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Mr. Vaz: I thank the hon. Member for Worthing, West (Mr. Bottomley) for his thoughtful and valuable contribution which was sincerely felt. He may have misunderstood the system in America. It has an advanced
case of contingency fees, as opposed to conditional fees, which is what Britain has. I, too, have similar reservations to contingency fees being used, but not to conditional fees. These arrangements have proved successful and they can focus the client and the solicitor on issues in a much more productive way. I can assure the hon. Gentleman that the Lord Chancellor and I would not be proposing the changes if we were not satisfied that the agreements do work and will work. However, I shall certainly take on board the thoughts that the hon. Gentleman has expressed today.
Amendment agreed to.
Amendments made: No. 24, in page 18, line 22, leave out 'enhanced fees' and insert 'a success fee'.
No. 25, in page 18, line 37, leave out 'enhanced fees' and insert 'a success fee'.
No. 26, in page 18, line 47, at end insert--
Mr. Hawkins:
I beg to move amendment No. 98, in page 19, line 3, after 'proceedings', insert
This is an important amendment. I hope that the House will bear with me if I take a little time to explain why not only we, but the Law Society and the crucial campaigning charitable organisation, Shelter, think so too. We hope to persuade the Minister and the Government that, even if they cannot accept the amendment today, they can, nevertheless, reflect on it further.
The Law Society strongly supports the amendment. It is intended to ensure that the decision of the Court of Appeal in Thai Trading Co. v. Taylor, reported in The Times on 6 March 1998, to which the Minister referred briefly when dealing with the previous group of amendments, is incorporated in full. The Court of Appeal's decision in that case overruled a previous decision of the divisional court in British Waterways Board v. Norman. It thus permits legal representatives to act in housing disrepair cases in magistrates courts for tenants of low means.
Legal aid is not available to such tenants because proceedings under the Environmental Protection Act 1990 are technically criminal proceedings; they therefore rely on lawyers who are prepared to work on their behalf on a speculative basis. The exclusion of all criminal proceedings from Thai Trading-type conditional fees thus bars those speculative arrangements. That is why we, as well as Shelter and the Law Society, think that the present position is unwise and unhelpful. The amendment would ensure that the rights given by Parliament in the 1990 Act, which was introduced by the previous Conservative Government, are not effectively removed by the Bill.
The Law Society points out--this is bound to be of concern to Members on both sides of the House, but perhaps to Government Back Benchers in particular--that, without that change being made, it will be not at all clear whether the Minister can properly confirm, as he and the Lord Chancellor have sought to do, that the Bill will comply with our obligations under the European convention on human rights. That is also our view.
The Government have incorporated the European convention on human rights into British law and they have to certify that every Act of Parliament will comply with it. That includes the Bill, but we respectfully agree with the Law Society that the Lord Chancellor and the Minister may have grave difficulty in certifying that, unless the amendment is accepted. A similar amendment moved by Lord Goodhart in the other place was withdrawn only after the Government said that they would consider the issue further and, if appropriate, table their own amendment. We therefore find it somewhat surprising that they are not prepared to accept our amendment, or table one very similar, today.
I was a member of the Standing Committee, which debated amendment No. 49 on the afternoon of 4 May. The Minister's predecessor--the Minister of State, Foreign and Commonwealth Office, the hon. Member for Ashfield (Mr. Hoon)--said that he could not accept an amendment that would make public funds available for representation for summary complaints, which are technically criminal proceedings because they require a complaint to a magistrates court to be issued. He argued that the risk of costs not being paid by a defendant was slight and went on to say:
Sadly, tenants of houses in disrepair are, by definition, likely to be of limited means. As the Minister must know from his constituency case work, it is extremely rare for such tenants to have the means to fund the legal cost of taking enforcement action. Magistrates court proceedings are an effective means of securing a remedy in such cases. The Law Society rightly says that tenants usually rely on solicitors being willing to take a case in the knowledge that, if unsuccessful, the tenant will be unable to pay their costs.
Many such cases are taken by law centres, and the Government are rightly at pains to say how much they support them. As the Minister knows, law centres are not allowed to charge their clients. Legal aid has never been available for such proceedings. Many may be entitled to free legal advice under the green form scheme, but as the Minister well knows, that cannot cover representation in court proceedings.
The Government propose to clear up any doubt about whether solicitors can act on such a basis by giving statutory force to the Court of Appeal's decision in respect of Thai Trading. That is very welcome. However, the bar on such agreements in criminal proceedings rules out their availability, and the Act will make them unenforceable unless it is changed.
As the issue raises considerable implications relating to the European convention on human rights--Parliament is expressly prohibiting the only kind of arrangement whereby such actions could be funded--the rights given to tenants under section 82 of the Environmental Protection Act 1990 by the last Government would become meaningless. The Bill is called the Access to Justice Bill, but, as the Law Society rightly says, there will be no access to justice for such tenants if it is left unamended. Certainly the Government would be very unwise if, in a Bill that they have entitled the Access to Justice Bill, they denied access to justice in a way that has previously applied.
In Thai Trading Co v. Taylor, the Court of Appeal expressly overruled the decision of the divisional court in British Waterways v. Norman, which was itself a housing disrepair case. In that case it was held that, in effect, solicitors could not recover costs in successful cases when they had acted speculatively. We want the Government to think again.
I found it particularly moving that a fax briefing that I received from Shelter on this matter drew attention--it was blocked in black--to the fact that Shelter's president had been the late great Cardinal Hume, to whom Members on both sides of the House have paid tribute, and who will be sadly missed in this country. I hope very much that, in tribute to Cardinal Hume if for no other reason, the Government will pay careful attention to what the organisation of which he was president for many years has said about clause 27.
Shelter is absolutely committed to supporting our amendment. It points out that it
Shelter does not accept the Government's argument--nor do I, and nor do my hon. Friends--that an exception should not be made to the general principle that conditional fee agreements are not appropriate in criminal proceedings. It says:
'(5) If a conditional fee agreement is an agreement to which section 57 of the Solicitors Act 1974 (non-contentious business agreements between solicitor and client) applies, subsection (1) shall not make it unenforceable.'.--[Mr. Hill.]
'save those brought under Section 82 of the Environmental Protection Act 1990'.
"I believe that other methods of funding such as no-win, no-fee agreements of the type that we constantly discuss can be used and the non-availability of legal aid does not prevent a complainant from taking a reasonable case to court."--[Official Report, Standing Committee E, 4 May 1999; c. 160.]
It was, therefore, with considerable surprise that members of the Law Society heard the then Minister say in Committee:
"We believe that it would be imprudent, and possibly unjust, to make a single exception of that kind without fuller consideration of all the issues of the principle and practice raised by doing so."--[Official Report, Standing Committee E, 11 May 1999; c. 256.]
The Law Society says that it is not clear why the Government so changed their approach in the week between 4 May and 11 May, and assumes that some lobbying or some departmental interventions might have taken place. Who can say? Perhaps the Minister will enlighten us. However, the consequence is that, unless the amendment is accepted, Parliament will give people a right to take action in respect of housing disrepair and certain other nuisances even though it intends to deny those affected the means to enforce their rights.
"provides a range of legal services for people with housing problems",
and that its advisers
"provide legal advice and assistance on housing matters through our nationwide network on housing aid centres."
It has
"a legal team with a wealth of experience of taking housing cases through the legal system."
It considers the amendment to be vital. It points out that its clients
"are often disadvantaged citizens in urgent housing need,
and says:
"It is vital that such people have access to justice and that their cases are dealt with speedily by the courts."
22 Jun 1999 : Column 1049
As Shelter says,
"Section 82 prosecutions provide",
currently,
"a vital remedy for many of our clients, particularly in the social housing sector"--
I am sure that that is important in the constituencies of the vast majority of hon. Members--
"who otherwise have no effective means of combating conditions that may jeopardise the health of their families."
Shelter's housing aid centres deal with numerous cases of that kind every year, helping clients to bring prosecutions when, for example, unscrupulous landlords fail to deal with condensation, dampness or unsafe electrical circuitry. Shelter says:
"Without legal aid or conditional fee agreements to fund these cases, many of them would not be brought."
Shelter says that it hoped that the Government would
"return to its original thinking on this issue by restoring the position to that following the Court of Appeal's judgment in Thai Trading Co v Taylor by making a suitable amendment to the Courts and Legal Services Act during the passage of the Access to Justice Bill."
That, it says, was its understanding--as well as the Law Society's understanding--of the statement made by the Minister's predecessor, the hon. Member for Ashfield, in Committee on 11 May.
"By neither making legal aid available nor allowing conditional fees to fund these cases, many of our clients will be denied access to justice and essential works to improve their living conditions will not be carried out."
This is an important matter, and I strenuously urge the Minister to think again. If he cannot do so tonight, it is still not too late for the Government to indicate firmly that they intend to correct the position. It is not too late for them to accept our amendment--or a very similar proposal--to ensure that people have the opportunity to bring vital cases, and that the rights that they have enjoyed since the Conservative Government's 1990 Act will continue.
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