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Lord Harris of Greenwich: Speaking as a former chairman of the Parole Board, I very much welcome the observations of the noble and learned Lord about discretionary life panels. When I was chairman of the board the Home Secretary alone took the final decision. As a result of the judgment these decisions are made by panels of the Parole Board. That being so, it is highly desirable that there should be legal assistance in cases of this kind, and I very much welcome what the noble and learned Lord said.
5.15 p.m.
Lord Windlesham: I also was chairman of the Parole Board and had an opportunity to observe discretionary life sentence prisoner hearings. I was under the impression that applicants were already legally aided.
Lord Meston: Before the noble and learned Lord responds further--if he intends to do so--perhaps he
can add to the list of those whom he acknowledges provide good representation for those who appear before employment tribunals, in particular the Free Representation Unit. Further, when considering whether conditional fee agreements are appropriate before such tribunals, will he bear in mind that they would be inappropriate in many cases where the primary remedy sought was reinstatement rather than financial compensation, and also that they might be inappropriate before tribunals where inter partes orders for costs are not the norm?
The Lord Chancellor: That is the problem, is it not? It is very difficult to make conditional fee agreements wholly effective where costs do not follow the event. That was the point that I was at pains to make. Conditional fee agreements can work in a regime where costs do not follow the event, but they have the disadvantage that the fees of the claimant's lawyers and the uplift must come out of the compensation and so reduce the amount to which ex hypothesi the claimant is entitled. Conditional fee agreements therefore work much more effectively in a regime where costs follow the event.
It is not however obvious why costs should not follow the event in tribunals when that is the norm in every other class of litigation. But conditional fee agreements in employment tribunals can, without the benefit of a general presumption that costs follow the event, still improve upon the current state of affairs. I can assure the noble Lord that I am ready to add my voice to that of others in praise of the Free Representation Unit.
Lord Donaldson of Lymington: Do I understand the noble and learned Lord the Lord Chancellor to say that it is not obvious to him--or I assume to anyone else--why costs should not follow the event in employment tribunal cases? I believe that it is very obvious. Usually they are cases in which individuals are suing their employers. The employer has considerable assets and can incur enormous sums in costs. If the employee loses, under a revised regime he will be liable for the employer's costs. In many cases that would strongly deter the employee from seeking to assert his rights. The very threat would achieve the employer's result. It is not a case where one would expect the employee to insure against that liability. Not all employees--perhaps not even the majority--have trade unions behind them to act as substitute insurers. I would be very alarmed at any move to make costs follow the event in employment tribunals except to the extent that it already exists; for example, if there were a major abuse of process by the claimant.
The Lord Chancellor: This is a matter that we can debate to a substantial degree. A rule that costs follow the event must be a reciprocal one. The applicant would have to be liable for costs if he lost. That is the position in all civil litigation. One asks what is so special about employment tribunals that entails that the rule that applies in all other civil litigation should not apply in employment tribunals. Throughout the country employers are sued for damages in the county courts
and the High Court by employees where the rule applies that costs follow the event. What reason in principle is there for making a difference in employment tribunals? The noble and learned Lord suggests one reason may be that the applicant will be deterred from bringing his case before the employment tribunal by the risk of a liability in cost. It can be argued, however, that one should discourage weak cases. Very often applicants bring weak cases before employment tribunals inspired by animus against their employers arising out of their dismissal. If the effect of changing the cost rule were to deter weak claims and prevent employers being vexed by them there is a highly respectable argument in favour of that change. There is a lot to argue about in this area, but perhaps now is not the time.
Lord Simon of Glaisdale: This most valuable debate has brought out a number of interesting points. I draw attention to one spin-off. We now have a clear demonstration that conditional fee agreements are not a universal panacea. They do not give access to the legal system in all circumstances but much less to justice. I hope that the proponents of the contingency legal aid fund--the noble Lord, Lord Goodheart, and my noble and learned friend Lord Brightman who made such a striking speech on the White Paper--will note that. I understand that it is not proposed that the contingency legal aid system should be in addition to conditional fees. My noble and learned friend is right when he said that if that were so, the conditional fee agreement would cream off all the cases likely to succeed leaving only the more speculative cases. That is not what I understand is proposed. On the contrary, the contingency legal aid fund system covers the same ground as the conditional fee agreement area, but without any of the disadvantages of the latter. However, it has been a valuable debate. We now have clearly demonstrated one of those disadvantages.
Lord Goodhart: I am grateful to those who have spoken in the debate; and I am grateful to the noble and learned Lord the Lord Chancellor for the answers he has given to the amendments in the group.
In descending order of gratitude, perhaps I may touch on the replies to the amendments. First, on Amendment No. 102 relating to the proceedings before the discretionary "lifer" panels I am entirely satisfied by the response of the noble and learned Lord the Lord Chancellor. It clarifies a point which was not clear on the face of the Bill and was a matter of considerable concern to Justice.
As regards immigration proceedings, there is a considerable, unmet, need for assistance. However, in view of the extensive review of immigration proceedings now under way, this may not be the moment to press that issue further. It is a matter that I wish to take away. I shall be interested to hear the view of the noble and learned Lord, Lord Archer of Sandwell, on this aspect.
I shall wish to read what the noble and learned Lord the Lord Chancellor said on social security proceedings,
and to consult with bodies which are actively involved in that area before deciding whether the issue should be brought back. However, in the case of appeals before the social security commissioners--they are appeals from the first level of appeal tribunal under the 1998 Act--there is inevitably a strong case at that level for providing publicly funded assistance. By the time the matter is before the social security commissioners it necessarily involves a point of law. It involves necessarily technical arguments, and it is surely appropriate that assistance should be provided there.Finally, on employment tribunals the noble and learned Lord accepted that it was desirable in principle that in a number of cases, and subject to a case satisfying the applicable merits test, there should be publicly funded assistance. But that was dependent on getting the budget in order. I am somewhat disappointed. If that is the objective, the provision should go into the Bill now, even though at present it is necessary to give it a low priority. It is desirable that a clear aim of the Government should not at the very first stage be wholly excluded, but should be included on the understanding that it inevitably receives a low priority.
Having said that, I beg leave to withdraw Amendment No. 100 at this stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 101 to 104 not moved.]
Lord Clinton-Davis moved Amendment No. 105:
The noble Lord said: It does not follow that all coroners' inquests, and public and judicial inquiries, would fall within these categories; but in the light of the exclusion of clinical negligence from the general negative approach towards legal aid, I believe that these amendments could be associated with that provision. I presume the reason for excluding clinical negligence from the general rule that personal injury negligence should not come within legal aid is because of its complexity, the expense involved and the difficulties of carrying out investigations. I submit that enabling representation to take place where these difficult considerations are likely to apply could well obviate costs.
I have appeared at inquests and have found that material which had not been willingly given--perhaps suppressed is too hard a word--was available at the inquest. I cannot remember a case where I charged to appear at an inquest; it has not been eligible for legal aid in the past. But in my experience, and I am sure that of other practitioners present, in particular in clinical negligence cases, it would have been extremely difficult to obtain the information and evidence to enable that to happen. I believe that there is an argument for this to be considered by my noble and learned friend in relation to the approach that he has indicated about other matters.
The same argument applies as regards public and judicial inquiries. I do not press that so hard and I should be happy to abandon that part of the amendment. The issue is more important in relation to coroners' inquests.
I hope that my noble and learned friend will recognise the point I made at the outset. It is a way of obviating costs which could be expensive if the provision is not allowed. It occurs at present; and I believe that it should not. My noble and learned friend will always have discretion in relation to these matters. I commend the idea to him. I beg to move.
Page 54, line 32, at end insert--
("(I) proceedings in coroners' inquests into death, and
(j) public and judicial inquiries").
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