| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Some ask whether this is an Anglo-Saxon problem, notably the much-lamented late Lord Bingham, and the noble and learned Baroness, Lady Hale, in her celebrated Henry Hodge memorial speech last June. Our adversarial system is heavily dependent on preparation by lawyers, with the judge coming in at the end to decide. If the judge were more proactive, the argument runs, there would not be such a need for an expensive and lengthy presentation of the case, so access might be easier. However, our courts are faster and cheaper than those in the inquisitorial system, so, as the noble and learned Baroness, Lady Hale, says, the total legal system is not extravagant and legal aid is necessary to ensure access.
The Jackson report, on which the Government base much of their rationale, did not recommend purging legal aid, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Faulks, both said. I will quote just one more sentence from Sir Rupert Jackson:
"I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas".
Will the Minister confirm the total cost of our judicial system relative to that of other common law countries? The Lord Chancellor said in the House of Commons that our system costs four times that of New Zealand, which is a rather smaller country. Does this make a true comparison for civil legal aid?
We should realise that the costs of severe reductions in legal aid will not fall on the Ministry of Justice budget. Its own cumulative impact assessment states that,
- "if dispute outcomes were much less fair ... these resource gains might be more than outweighed by the total economic cost ... This would include wider social and economic costs, both tangible and intangible".
Can the Minister give any idea of what costs might fall on other budgets if people are not helped early on in their battles over housing, debts, employment or family breakdown? What is being sacrificed for this dubious saving? A huge proportion of civil legal aid under threat in this Bill is spent on things that matter very much indeed to poor people: getting the benefits they have a right to, domestic violence, fair compensation for injuries that prevent normal living or earning a living, getting the appropriate education for their children or housing.
Take an appeal against the refusal of a planning application for a Traveller site. It looks as though High Court planning appeals and planning injunction actions would all be out of scope for legal aid, and it seems that if a local authority takes eviction action against an unauthorised encampment in the county court, and even if it does this in an unlawful way, say by ignoring government guidance, the defendants will not be allowed legal aid. Would the Minister confirm this? If that is so, a very high proportion of Travellers who have no legitimate home will lose the chance of acquiring one or will face unlawful eviction.
As long as local authorities shirk their task of providing enough sites, an inability to get legal aid for the interim stages of establishing legitimacy or for
21 Nov 2011 : Column 859
To supplement the already scarce social good of legal aid, the no-win no-fee system was brought in. That enlightened decision by the noble and learned Lord, Lord Mackay of Clashfern, and the second even more enlightened decision by my noble and learned friend Lord Irvine of Lairg to extend the conditional fee agreement system were responsible for some important settlements of fair entitlement. How could the countless mesothelioma cases, the passive smoking landmark cases or the Trafigura case have been brought under the proposed new regime?
My noble and learned friend Lord Davidson of Glen Clova referred to the United Nations Secretary-General's special representative for business and human rights' commendation of the UK system in cases of high public interest in his letter of 16 May to the Justice Minister, Jonathan Djanogly, and expressed concern over the proposed reforms. Could that letter be placed in the Library? I think noble Lords would find it helpful. This Bill would take away advice that often results in cases not going expensively to court, and it cuts away equal access to the rule of law in major areas of deep human importance.
Finally, I refer to Magna Carta again:
"To no one will we sell, to no one will we deny or delay, right or justice".
There is a facsimile copy in the Voting Lobby that noble Lords can have a look at. I think it is time for the Barons to get on the case again.
5.50 pm
Lord Ramsbotham: My Lords, I shall not touch on legal aid or sentencing, which have been so comprehensively covered by other noble Lords, but instead try to explain a long-held disappointment and how it leads to a current fear.
When I heard that there was to be a legal aid, sentencing and rehabilitation of offenders Bill, I hoped that this marked the end of the mistaken idea that the criminal justice system is solely about punishment. However, when the Bill appeared, my heart sank because there was the word "punishment" instead of "rehabilitation". The change had been ordered, I was told, by No. 10 Downing Street, and it confirmed my fears that a truly coherent criminal justice policy remains an impossibility while there is a continued failure to understand or accept what its acute part-imprisonment-is all about.
The criminal justice system is made up of four distinct parts: courts, police, prison and probation. The success or failure of the system as a whole depends on these four understanding and working with each other. I put imprisonment in pole position because, like hospitals in the NHS, prisons are the acute part, where treatment takes place and to which no one should be sent unless they need the treatment that only
21 Nov 2011 : Column 860
However, just as the healthcare system would break down if hospitals were choked with people who did not need that level of treatment, so the criminal justice system has broken down over the past 18 years because prisons have been choked with steadily increasing numbers who do not need expensive imprisonment. The Justice Secretary should know this because he was Home Secretary in the early 1990s, the last time that there was any clear thinking about imprisonment, as set out by his predecessor, the noble Lord, Lord Baker of Dorking, in his 1991 White Paper Custody, Care and Justice, following the prison riots in 1990, and the masterly report on their causes and possible repair by my noble and learned friend Lord Woolf.
That White Paper, agreed to by all political parties, laid down clear priorities for the Prison Service. These included: to develop community prisons, which will involve the gradual realignment of the prison estate into geographically coherent groups serving most prisoners within that area; to increase delegation of responsibility and accountability to all levels, with clear leadership and a published annual statement of objectives; to provide a code of standards for conditions and activities in prisons which will be used to set improvement targets in the annual contracts made between prison governors and their area managers; and to provide active and relevant programmes for all prisoners, including unconvicted prisoners. Had those priorities been enacted and had the thoroughly unpleasant competition between the main political parties to appear tougher-or not weaker-than the other not undermined rational thinking about the role of imprisonment, I believe that we would not be in today's mess.
What is that role? Some say that it is to deter people from crime, but the figures prove that the fear of imprisonment does not do this; others that it is to satisfy victims, but they are only a small part of society; others that it is to reform and rehabilitate those who are sentenced to imprisonment; and others that it is to punish, but the deprivation of liberty is the only punishment involved. Courts determine the length of that punishment, related to the seriousness of the crime. Therefore, while imprisonment is punishment, prisons are not for punishment, at least not in a civilised country, which we purport to be. Finally, some think that it is a mix of all four.
However, roles are synonymous with aims. The overall aim given to the criminal justice system is to protect the public by preventing reoffending. Therefore the role of the Prison Service should be related to the prevention of reoffending, which means rehabilitation. Taken objectively, I am surprised that successive Governments, while voicing their concerns about the rising numbers of those in prison, appear not to have thought through why the current conduct of imprisonment is clearly failing-witness the appallingly high reoffending rate-and what this says about that conduct. I contend that the avalanche of confusing legislation and torrents of wishful thoughts and undeliverable ideas, not least the expensive introduction of the so-called National Offender Management Service-which, if it is anything
21 Nov 2011 : Column 861
If you accept that imprisonment is the acute part of the criminal justice system, and should be structured and managed accordingly, you will understand why I am so afraid that the Secretary of State should be embarking on the rehabilitation revolution-the intent for which I strongly support-without the necessary structures or management in place to ensure that it can succeed. It would be an avoidable tragedy if it failed for all the wrong reasons. At present, prisons are not organised into geographically coherent groups, with regions responsible for the rehabilitation of their own prisoners. Today's incoherent prison population management system, as when I first saw it in 1995, prevents continuity of treatment. Also, because no one is responsible or accountable for any type of prisoner, other than high security, there is no consistency of treatment in prisons of the same type, and individual prison governors are not required to carry on from where their predecessor left off. Imagine the outcry if acute hospitals in the NHS were run in the same way. Why are acute prisons?
Therefore, during the passage of the Bill, I will be tabling amendments designed to try to improve the ability of the acute part of the criminal justice system to carry out its role, not least in improving alternatives to custody. I shall challenge some of the omissions and the wishful thoughts, and shall focus on the working prison, substance abuse treatment, women in the criminal justice system, restorative justice and the treatment of young adults.
Finally, I would like to say a word about indeterminate sentences, to which I have been opposed ever since they were introduced. Of course there will always be some criminals who should never be released, most of whom receive natural life sentences. However, the obscenity of the IPP is that the overcrowded system cannot provide the programmes that prisoners need to qualify for release. While I applaud the Secretary of State's decision to end IPP sentences, like my noble and learned friend Lord Woolf, I am concerned that he has not tackled the problem of those serving such sentences now.
There are two immediate steps that I believe the Secretary of State should take, for which he has given himself the necessary weapon in Clause 117 of the Bill. First, he should conduct a census of all IPP prisoners and establish precisely why any of them are over their tariff, what is required of each of them to qualify for release, and what plans, if any, have been made to ensure that they are enabled to do so. This task would be far easier to execute if, as should have been done years ago, someone was made responsible and accountable for the oversight and management of all IPP prisoners, because that information would be available now. I urge him to make such an appointment. I have had more than 500 letters from prisoners serving an IPP, and their families. I share their view that the IPP is a stain on our reputation for civilised behaviour
21 Nov 2011 : Column 862
This is a very important Bill because it contains many features of the rehabilitation revolution. Sadly, it has lost some of the clarity of purpose contained in Breaking the Cycle, which this House now has an opportunity to restore. I know that the Justice Secretary and the Minister share my concern that the acute part of the criminal justice system should be made fit for purpose. We must not waste this opportunity of helping them to make it so. I hope that, unlike their predecessors, they will repair the flaws in the system that they have inherited.
6 pm
Lord Newton of Braintree: My Lords, before I say anything else, I should make one prefatory remark of apology to the House and the Minister. It will not surprise those who have observed me in recent times to learn that my stamina is not quite what it was. I hope it will be understood that I shall not feel able to stay for the winding-up speeches later on. I am sorry for not complying fully with the conventions of the House in that respect. If the Minister chooses to ignore me entirely, I shall of course understand completely. In the mean time, I shall try to refrain from asking him too many questions.
In line with almost everybody else in this debate-I want to make this clear to my noble friends on the Front Bench-I am not opposed to this Bill in principle. It is important, and there is a lot of important stuff in it. I do not think that we should attempt to frustrate it. We have had as good a debate as I can recall on any such matter, and it has been a privilege, as a non-lawyer and layman in the field, to have the opportunity to take part in it. I should also tell my noble friends-this may be music to their ears-that wherever I can give the Government the benefit of the doubt they will have it. As for the sentencing and punishment-I must say that I prefer the word rehabilitation-of offenders chunk, if it is in line with the normal liberal instincts of my right honourable friend Kenneth Clarke, I shall be happy to go along with it.
I am also pleased that my noble friend Lord McNally said that he was listening. If I am allowed to note it and it is in line with the rules of the House, I was particularly pleased to note that my right honourable friend Kenneth Clarke actually came along to listen this afternoon, which was a further encouragement.
I want to concentrate on civil legal aid, or rather the proposed cuts in it. I am not now talking about the Jackson aspects, which I broadly support and which seem broadly sensible. Nevertheless, I hope that attention will be paid to the wise words of my noble friends Lord Hunt of Wirral and Lord Faulks and, indeed, to the words of the noble and learned Lord, Lord Woolf, which seem to me to be very important in this context.
The areas that concern me have already been highlighted, so I am not going to rehearse them. One is social welfare law, including the effects on disabled people, on people with special educational needs and learning disabilities, who are a subset of disabled people, and on the law centres that are associated with
21 Nov 2011 : Column 863
As I have already said, I am not going to rehearse the arguments. Noble Lords on all sides of the House will have representations running out of their ears, and I have them running out of mine. The conclusion I draw is that there is now so much smoke on some of the issues that I have touched on that there must be some fire somewhere, and we need if possible to put it out.
I shall mention three or four other points briefly. I have never seen such a strong feeling that a set of cuts will not produce the savings that they are said to produce. What we appear to have here, as I judge it-and I should warn the Minister that this is an area that we all need to explore very vigorously in Committee-is a set of cuts that will save the Ministry of Justice money at the cost of passing costs to a number of other departments, including the welfare departments, throughout Whitehall and beyond, including, perhaps, local authorities as well.
Even within the Ministry of Justice, I suspect that we have proposals that are going to pass costs from one part of the ministry to another. I was the previous chairman of the Administrative Justice and Tribunals Council. It was notorious that, in many jurisdictions, cases where people turned up unrepresented took longer and cost more than cases where they had legal advice or assistance. Has that been costed? I am not sure. I happened to speak at the beginning of last week with a barrister who had been involved in a case involving a litigant in person. He sounded a sensible fellow, although I cannot validate this in any other way. He reckoned that this case-a High Court case, not one involving civil legal aid-had taken, in his estimation, two and a half weeks instead of four days because of the appearance of a litigant in person. If that was replicated on any scale at all, the savings in possible civil legal aid cases would disappear in a flash. We need to explore that. It was brought out very clearly by my noble friend Lord Pannick-I am going to call him my noble friend for this purpose.
I accept the need to make savings, and I hope that that will not be thrown at me. However, the Government's position, which I support, was to make these savings and fill the debt hole, or whatever we want to call it, with savings that would not be at the expense of the poorest and most vulnerable but might even help them. As I hear things at the moment, this Bill does not do what it said on that tin.
Let me conclude with one very brief example. If I was not here, I would be upstairs in Committee on the Welfare Reform Bill. While discussing that Bill, we
21 Nov 2011 : Column 864
6.09 pm
Lord Phillips of Sudbury: My Lords, this Bill is another monster piece of legislation-234 pages long-amending no fewer than 34 other statutes and repealing parts of 20 statutes. I rather concur with the suggestion made by my noble friend Lord Goodhart that it might have been more manageable were we to have taken this in two bites. Certainly, the complexity of this measure will tax all of us to the limit and, I fear, the Minister beyond endurance. Having heard the noble Lord, Lord Pannick, mention the speech made by Sir Hartley Shawcross on 15 December 1948 in moving the Second Reading debate of the Legal Aid and Advice Bill, I cannot resist quoting the first two sentences, the first of which illustrates the gulf of style that separates then from now and the second of which is a rather pithy encapsulation of what the Labour Government were then trying to do. I wish that I could put on his accent, but he said:
"If I might translate a respected expression from the promissory and ephemeral field in which it has been misemployed of late into the sphere of intended enactment, I should be inclined to call this Bill a charter. It is the charter of the little man to the British courts of justice".-[Official Report, Commons, 15/12/48; col. 1221.]
Like the noble Lord, Lord Clinton-Davis, I have been a solicitor for more years than I dare to remember. But I came into the profession in the 1950s fired-I have to be frank-with a certain idealism that the 1949 Act had brought justice within the reach of every man and woman. I fear that I still persist in that ideal, although one has to confess that over the intervening years the legal aid scheme has run down and down. There is one reason above all for that-it is not a popular scheme with the great British public. It is if you take advantage of it but it is not in general. I am afraid it is assumed that anything that is good for the legal aid scheme is most of all good for lawyers and we are the least popular branch of the entire establishment. In my view that makes it more essential that we defend the legal aid scheme.
I accept and want to make clear, especially to my noble friends on the Front Bench, that it must have been most difficult to put this measure together in a circumstance where all departments of state are having to take their share of unpopular and unwished for cuts, but which are, none the less, I believe, necessary. However, two broad matters, both of which have been referred to by other noble Lords in this excellent debate, have to be faced by the Government and have
21 Nov 2011 : Column 865
The first matter is simple, yet complex, and it has been referred to many times; that is, the boast in this country of equality before the law. Is it not something which enables us to sleep soundly that the judges are not corrupt and that the law is designed with the best of intentions? Again, if we are honest, we have to accept that year-by-year-it does not matter which Government are in power-we legislate more and more benefits for the disadvantaged, the poor, the unable and so on. It is a large slice of every party manifesto. Religiously and properly we legislate and enact those good intentions. But we all know full well that those rights are not enjoyed by a large minority of those for whom they are intended. There is no access to those benefits. Why? Above all, it is because the law relating to access is a jungle. If you think that only tax law is a complicated jungle, just have a look at welfare law.
I believe that if we legislate rights and benefits for our less advantaged citizens, knowing that they will not be taken advantage of because we do not have the wherewithal to enable the people who need those benefits to access them, we are engaged in an organised hypocrisy. We undermine this place and democracy. We add to citizen disenchantment and to a social context which I believe is one we should all worry greatly about-a context which I suggest showed at least one aspect of itself in the riots a few months ago.
I am apologetic to my noble friends on the Front Bench because I appreciate that they are in a position that I am not, but I cannot resist saying, as an old lawyer who has spent his life standing up for legal aid-I formed the Legal Action Group with others in 1971-that I cannot go along with a situation where we pretend that we are doing good to our fellow citizens when we know we are not and we know why we are not. Yet in this Bill we are doing exactly that.
To take but one example, we are excluding welfare advice from legal aid henceforward. Can anyone imagine any aspect of our law which more needs help and advice than welfare law? I cannot. Citizens Advice has 400 main offices and 3,300 satellites. It deals with 2.1 million advices every year and welfare law problems are a major part of that. Yet that will be taken out of scope. Law relating to social security, debt, housing, immigration, community care and employment will be taken out of scope, although not totally. However, welfare will be. Citizens Advice calculates that at present the advice given in those areas by the CABs and the approximately 50 law centres that still exist, but which are declining, costs £25 million plus to the Exchequer. If this Bill is enacted as currently drafted, that sum will be down to £5.5 million. But as others have said, no serious attempt has been made to calculate the downstream impact in just financial terms, let alone in terms of pain, suffering, disenchantment and cynicism.
Recently, the Ministry of Justice stated:
"The lack of a robust evidence base means we are unable to draw conclusions as to whether wider economic and social costs are likely to result from the programme of reform or to estimate their size".
21 Nov 2011 : Column 866
What are we doing? We know the suffering, the disenchantment and the cynicism that will follow. We have made no attempt to calculate the financial costs in social or other terms. We know that these problems come in clusters and that if a man is not given advice on a housing problem because it is now out of scope, that may lead to an eviction order in a court, which in turn will lead to a plethora of social security and welfare engagements, such as children-you name it. Tens of thousands of pounds could be involved for the saving of a piece of advice by a CAB or a solicitor-God bless him if he is still doing this type of work. Let us not forget either that the cost of this work is by the standards of most solicitors puny. It is a £150 fixed fee for every case that they take on. A City solicitor charges £150 for 10 or 15 minutes of his precious time.
I could go on but time is against me. I hope that when we get into the details of this Bill, we will be able fairly and squarely to face up to the on-the-ground realities so that we emerge with a Bill that does justice to the Government's needs and aims but also does justice to justice.
6.19 pm
Baroness Kennedy of The Shaws: My Lords, like the noble Lord, Lord Phillips, I came in to the law full of idealism. I have remained idealistic about the law and what its purposes are and I have remained proud of the legal system in which I work. That has not meant that I have not been a critic of the legal system. Frequently and regularly, I have been involved in criticising the law's failures and suggested ways in which we could improve the system. From the 1970s onwards, I have campaigned for women's issues and for greater fairness for women in the courts, hoping and working for better sentencing and so on. I have been only too aware of ways in which we have had miscarriages of justice, and I have been involved in many of those cases.
However, when you travel abroad, nothing fills your heart with greater joy as a lawyer than to realise just how wonderful our legal system is. I happen to believe that it is the best legal system in the world and that it is a source of pride to us. Yet I ask myself regularly: why is it, when we have something so precious and wonderful that is the best in the world, that we should we seek in any way to undermine it and actually take steps to destroy it?
One of the ways in which we are measured as a democracy is that we are proponents of the notion that the rule of law and democracy travel hand in hand. Britain is looked to as a great place of law, with great judges who are not corrupt, as the noble Lord, Lord Phillips, said, and great lawyers, whatever public opinion might be. When I go to the United States and speak to judges even in the Supreme Court, they say that they have sat and watched proceedings in our courts, like the Old Bailey. They say, "We have some great lawyers who are as good as some of your greatest advocates; but we do not have great lawyers in the middle ranks to measure against the lawyers that you have in the general run of courts". It does not come without a price. We train our junior lawyers well. We give them opportunities to hone their skills. They start small doing legal aid cases, as I did, and build it up. I
21 Nov 2011 : Column 867
I want to remind noble Lords why all of this matters. Only a week ago I was discussing the rule of law with people in government in Iraq. They asked, "How do we make access to justice real?". When I am describing how our system has operated, it is a solid reminder that the rule of law is about more than passing laws and what we do in this House. It is about making it real by giving people genuine access. The Master of the Rolls, the noble and learned Lord, Lord Neuberger, recently made a speech in which he, like the late Lord Bingham and the noble and learned Baroness, Lady Hale, talked about how we get incredible value for money compared to other places. We also have a strong sense of what the rule of law is about. The noble and learned Lord made it very clear in speaking about its three facets: making clear and effective laws, which we try to do by honing, refining and improving legislation; enforcing those laws effectively and clearly through a good legal system, which I consider the best in the world; and ensuring that the law and the legal system are accessible to all.
As the noble Lord, Lord McNally, told the press in a recent interview, like every other government department, the Ministry of Justice had to take its hit. Of course, that is done at the behest of the Treasury, which is not really looking at the principles of the rule of law. However, two-thirds of the savings being made are being paid for out of the legal aid pot. The Ministry of Justice could have been bolder about taking more money out of the prison system. Regrettably, over the past 20 years, we have seen the ratcheting up of the numbers of people going in to prison, all satisfying a sort of Dutch auction on sentencing when we really ought to be much more creative about the ways in which we deal with crime. We could have been bolder about the ways in which this requirement to reduce the bill in the Ministry of Justice was fulfilled. Instead of reducing across the board what legal aid would mean in civil law, we have seen whole areas of law being removed from its ambit. It cannot be right or good for law.
The cuts are going to dismantle two key elements of the existing system. Others have mentioned how the legal aid system came into being at the end of the Second World War. It was saying that law is not just for the rich or for those who have money, but for all of us. That is what having a mature democracy is about. What came into being at that time was essentially legal aid that started off in family law and provision for women who did not have equality of arms and for their children when it came to the increase in divorces and in family disputes. The second thing that happened in the stages of this building up of legal aid was the Legal Advice and Assistance Act of 1972, which was taken through this House by Lord Hailsham, who was not exactly a bleeding heart on matters to do with law but a very fine constitutional lawyer who understood why it was important. He introduced assistance, which was the green form scheme, to which I will turn in a minute. We are going to see that dismantled. Having
21 Nov 2011 : Column 868
The 1972 Act introduced a scheme for legal advice on any matter of English law, known variously as the green form scheme or the £25 scheme. It meant that a solicitor was available to give you advice. Law centres and advice bureaux came into being around that time, too, to give advice-on welfare benefits, community care, mental health, education law and so on-on that first call, when people have anxieties about how something is affecting their lives. I know good, decent, committed, idealistic lawyers, who have not become rich but who can persistently stay in this area providing that kind of advice to people. For us to be destroying it seems to me to be crazy.
The suggestion that there is a compensation culture, I am afraid, has been swallowed by our Lord Chancellor-to my surprise, because I am a great admirer of his. With the tabloid notion that a compensation culture exists, in a society that has idealised materialism and put the greatest value on money, it is not surprising that when bad things happen to people, they will want to be compensated. If you deregulate the professions and make it possible for them to ambulance-chase, it is not surprising that you will have poor outcomes. Judges at the Old Bailey now tell me that, because of the legal aid cuts by the previous Government, they are seeing a decline in the quality of representation in the courts before them. Why is that? Increasingly, people will go in ill prepared. Cases of weight are being conducted by inexperienced people. That happens if you are paying people very little money for doing a professional job.
I really think that a mistake is being made in these proposals. I urge the Front Bench, which I know is concerned about these matters, to think again. This is a precious part of our legal system and the consequences of the cuts may be far greater than anyone imagines.
6.29 pm
Lord Martin of Springburn: My Lords, I have an interest to declare. Before entering this House I took up a complaint with the Times newspaper on a no-win no-fee basis and I was successful. Whether you are a long-standing politician or a showbiz personality, when you point out to a newspaper that it got the story wrong and ask it, in a civil manner, to rectify the matter, you are soon regarded as its enemy. The newspaper will look upon a complainant as someone who is attacking its professional integrity as a newspaper and it can take weeks to negotiate in the hope that you will go away. If you are lucky, you will get a few lines of correction somewhere in the back pages. The private individual who is not in public life can expect to be treated just as badly when he or she is publicly traduced, scorned or sneered at. It will be a daunting task for an individual as the newspaper deliberately delays or drags its feet in the hope that the complainant will go away. At least with the no-win no-fee arrangement the private citizen does not need to worry about his or her modest savings or house, or both, being at risk.
21 Nov 2011 : Column 869
The Government and the media tell us that 100 per cent success fees are too high. If that is the case, why not go to a 50 per cent success fee, with stages at 10 per cent and 25 per cent for pre-court settlements, and 50 per cent only after a full court hearing? That 50 per cent should be paid by the losing party; it should not come out of the winning claimant's settlement. This would give private citizens access to libel lawyers without considerable financial worry.
There are many examples of decent people who have benefited from no-win no-fee arrangements: a Catholic priest who was wrongly accused of habitually stealing from his church collection, an Army officer who was falsely accused of being involved in the abuse of prisoners in his care, and a teacher who was wrongly accused of inappropriate contact with female pupils. The Dowler family has written to our Prime Minister to say that it could not have taken through its successful case had it not been for the no-win no-fee arrangements.
There is also the case of Mr Christopher Jefferies, the landlord of the late Joanna Yeates, who was brutally murdered. This man who lived quietly was arrested on suspicion of murder and was going about the business of convincing the police that they were wrong to suspect him. However, eight newspapers, most of them national, indulged in a hate campaign against this good man. They described him as a "Peeping Tom", a "weird", "posh", "lewd" and "creepy" individual, a "blue-rinse loner", a "creep" who "freaked out schoolgirls". What kind of people do we have in the media who can behave in such a manner against innocent people? This was after Mr Jefferies' lawyer warned the media to desist from publishing damaging stories. It should be pointed out that in law a journalist is even allowed to get things wrong provided that he can prove he acted responsibly. Eight newspapers failed in their duty to act responsibly with regard to Mr Jefferies.
I am speaking tonight not for the benefit of highly-paid lawyers but for men and women on low or modest incomes who might be caught up with the media that we have the misfortune to have. I thank noble Lords for listening to me.
6.34 pm
Lord Prescott: My Lords, I cannot declare an interest or experience as a barrister, a lawyer, a solicitor or, indeed, a judge, but I can declare some experience from my seafaring days when the ship owners used to call me a barrack room lawyer. I did not have legal aid, but a bit of industrial muscle helped. Perhaps I can just declare one interest. I am presently, after the comments made by the noble Lord, Lord Martin, involved in a no-win no-fee situation with the Metropolitan Police. Indeed, I concur with what the noble Lord has said. If you try to get justice for an offence committed by the press, they just ignore you or say, "We'll sue you", and you have to think about whether you will take on a no-win no-fee case. I identify with those circumstances.
I want to concentrate my remarks on what people have criticised about the Bill, which is that it is about cutting costs and money. Indeed, everybody admits that. But the people who are carrying the burden are
21 Nov 2011 : Column 870
It has been said that many more cases are taken on under conditional agreements. Naturally so, and many have been won that way. Why is that? It is because people could not afford to take on the press before, who in contempt would not make any kind of apology. By the way, if you did get an apology, it was usually printed on page 25, even if you had probably been given the front page, as they often did with me. But eventually, when you win the case for an apology-by the way, they do not use the word "apology"; they say "correction"-basically it is put on the back pages. They are in contempt of justice for the individual. We therefore now have an opportunity to take into account how this Bill affects this area.
What offends me most about the Bill is that it strengthens the most powerful group against the vulnerable individual. The press have the money, the lawyers and the influence, and they use all that effectively against the individual. What this Bill seeks to do is strengthen that strong group by helping to reduce its costs on the one hand and by increasing its influence in these situations on the other. Look at what the Bill is actually proposing on damages-and we are talking about an industry that does not look as if it is going to change. Listen to the inquiry being conducted by Lord Leveson, or to what was said there today by Milly Dowler's family. The press are still carrying on with business as usual. This is a group that does not want any change or a statutory framework. It is making it clear that it wants to keep the voluntary system. That has to be questioned.
The importance of that, particularly for this Bill, is: how do you bring an action against a powerful interest group like this? It is accountable to the useless Press Complaints Commission. It is absolutely useless. We have had Members of this House chairing the commission-I think the noble Baroness, Lady Buscombe, was one. In fact she was the chair of this pretty useless group when it was fined or had to pay damages for libel against one of the lawyers in the hacking case. In that case, did the press pay her legal fees and did they pay the damages? I keep asking but I get no answers. But I can tell you for a cert that it would have been carried by the industry. The PPC is a total failure. It does not carry out its job. Why is that? It is because it is self-regulated. It is controlled by the Editors' Code of Practice Committee and by its code. If anybody saw the apology made by the Daily Telegraph in regard to Vince Cable, the Business Secretary, about what it did to him, they will see that the newspaper admitted that it was in the wrong and in breach of the Editors' Code of Practice, but thought that it could still go ahead with the story. Publish and be damned because it could not care a damn, quite frankly, as long as it
21 Nov 2011 : Column 871
This Bill will actually help to reduce the costs of the press, which they are moaning about, and not only in individual cases. Last July, we had a debate in this House on the private Defamation Bill introduced by the noble Lord, Lord Lester. The press were worried about libel tourism and who would carry the costs of that when our judges were making judgments on damages in some of the other cases that they thought to be excessive. Are they excessive when they breach the law and breach people's rights and even object to judges giving a decision? Look at the case of Mr Dacre, who attacked the judge for making a judgment on human rights issues in regard to the Mosley case. That was totally unacceptable. It is the judges' right to make the decision about the balance between public interests and private rights. That is what we ask them to do. Mr Dacre was saying it is not the job of the judges to do that. Journalists want human rights legislation changed, so it is not only in regard to individual claims that we have to watch this powerful interest group. They want changes right through the system. They want changes to reduce costs and damages so they can continue to pay them, limited as they are, in order to publish and carry on. That is what concerns me most.
In my own regard, the police constantly opposed my application for a judicial review. Thank goodness the judges eventually made a judgment that I should have one. But the police were contesting it. Who pays the police's costs if there are damages involved? Who pays for them to employ the best barristers? That is paid, presumably, by the Metropolitan Police, which means by the public. I could not have taken out a case against the press if I had not had the chance to use the conditional system and to pay insurance. We now hear that the Government in this Bill are going to transfer insurance and other costs on to those who win their case. That is totally unacceptable, frankly. We talk about individuals paying damages if they have lost a case, but here we are talking about a powerful, wealthy body called the press which is asking us to make these changes.
There have been recommendations by Alan Rusbridger, editor of the Guardian. He suggested having a proper press complaints procedure with intervention and mediation by the Press Complaints Commission. He is absolutely right. He said it should be an independent body. He is absolutely right. But he does not want it to be a statutory one. How are you going to enforce everybody to be part of the PCC unless there is a statutory framework? How are you going to enforce sanctions, if you believe in doing that? I would suggest to him that in no-win, no-fee cases, the PCC should consider acting in mediation, and if courts or individuals refuse to accept that, then let the Press Complaints Commission take the complaint. Let it offer a conditional agreement so that the individual can then take the case, and let that be a cost to the industry, because it might be an effective deterrent if it has to pay to put something on the front page that is wrong. The Government in this Bill are reducing those penalties and strengthening the press and that is not acceptable.
21 Nov 2011 : Column 872
This House will be debating a number of pieces of legislation. One is the legal aid Bill which is now before us. The second will be a defamation Bill that will presumably come before this House. There will be a new Human Rights Bill, a Bill of Rights or whatever, which normally comes to this House. And there will be a new public complaints or mediation facility and perhaps even a cross-media ownership issue. All these involve the media. This is an opportunity for this House to get a very clear idea of how the press fits within the framework. I believe in a free press-I think it is necessary-but one that defines what the public interest is, not one that is out of control. The Guardian's proposal is that the editors should determine the public interest. Editors determining the public interest? They are only concerned about their own private interest and the selling of newspapers. To suggest, against the background of what our press has been doing, that they should define the public interest is unacceptable. They have defined it and they have no time for it. It is all about press freedom. I hope when we come to debate this legislation, we will consider all these parts. This is about the role of the press in a free society but not one where it is business as usual, as they are now proposing.
6.44 pm
Baroness King of Bow: My Lords, this House knows that when a Bill is put before it, the Government of the day usually get some of the legislation right and some wrong. But the wrongs contained in this Bill, whether by accident or design, are monumentally devastating. They cannot be made good by the benign aspects of the Bill or written off as collateral damage to be borne by British citizens in times of austerity. The Bill undermines the very compact between citizen and state. Were it to become law, British citizens who cannot afford a lawyer will effectively lose fundamental rights they have today.
I will confine most of my remarks to the legal aid section of the Bill. Those affected could be almost anyone but they include some of the most vulnerable groups in Britain: disabled children whose lives are ruined by medical negligence, battered women who are victims of domestic violence, terminally ill patients-for example, those suffering from asbestosis-related disease-the disabled, the abused and the sick. Under this Bill these are the scapegoats for austerity Britain. What is the Government's argument? They say they must clamp down on frivolous and trivial cases and the claim culture. We all agree with that. But how can they claim that a person dying of asbestos-related disease is a trivial or frivolous case or is part of the claim culture? I am sure the Minister does not claim that; in which case, surely he must bring those claims back within the scope of legal aid.
The same is true of domestic violence. Those crimes can never be described as trivial or frivolous. I was struck by what was said by a domestic violence survivor, Jeanie, who came here to the House of Lords to address Peers a fortnight ago. She said:
"It's not an ideological issue; it's one of basic fairness and justice".
Jeanie was thrown down the stairs by her husband late in her pregnancy. She gave birth at the bottom of her
21 Nov 2011 : Column 873
I now turn my remarks to the Bill's impact on children. The Government have said that where children are involved, legal aid will still be provided. In the Minister's opening remarks he said that 95 per cent of children who are currently covered by legal aid will retain that protection. First, having spoken to all interested parties, I am not yet convinced of that fact. Secondly, the Minister cannot be including within that statistic all the children affected by their parents' or carers' loss of legal aid under these proposals. The Minister will know that almost 150,000 children will lose civil law and family law protection provided by legal aid. Children are the main party in 6,000 cases a year that will no longer qualify for legal aid. They are financially affected by more than 140,000 cases a year involving their parents. Another obvious example, about which we heard earlier, is welfare benefit advice. Currently in tribunal appeals where the applicant has legal advice-this is an incredible statistic; if your Lordships are drifting off, I advise you to come back for this one and remember it-55 per cent of all DWP decisions to cut benefits are declared wrong and are overturned. On decisions taken to appeal, the Government are proved wrong more often than they are proved right. This means without a shadow of a doubt that low-income households will unfairly and through no fault of their own suffer when they no longer have recourse to legal aid. That includes 36,000 children every year from the poorest families who will no longer be able to appeal poor benefits decisions of this nature. A previous speaker talked about equality of arms. This is a precise illustration of how we are losing that equality of arms and how power is slipping from the individual towards the
21 Nov 2011 : Column 874
On the subject of children, the NSPCC unsurprisingly says that it is "gravely concerned" by the Bill and that:
"The proposals fail to protect the interests of children's welfare and the interests of justice".
That is a damning critique. The Children's Society is equally concerned and says:
"Taking whole areas of legal matter out of scope will inevitably affect the poorest, most vulnerable and marginalised families".
So let us add those vulnerable families to the other specific groups targeted by the Bill: the disabled, the abused and the sick. There must surely be a better way of reforming legal aid than making life unbearable for those on the margins.
I was so concerned about the proposals in the area of medical negligence that I wrote to all Peers on the subject before the summer. I was overwhelmed by the responses that I received from all sides of the House. Your Lordships clearly do not think that it is wise or just to remove legal aid in medical negligence cases. I am sure that the Government will want to listen intently to the will of the House by accepting an amendment on this subject at an early stage.
My last sentence on this matter returns us to the victim of domestic violence, Jeanie, whose husband's violence killed her child. Jeanie named her daughter, who was stillborn at the bottom of her stairs, Hope. She found the courage to protect her children and save her own life using legal aid. Jeanie is relying on us, on the Minister and especially on Peers on the government Benches to ensure that other lives are not ruined by a legal system where justice is denied.
6.53 pm
Lord Elystan-Morgan: My Lords, I wish to use the time available to me to speak to Parts 1 and 2 of the Bill, that robustly harrowed area in respect of which we have heard the most distinguished and powerful contributions already.
Unless a Government of the future pass a one-clause Bill to abolish legal aid completely, the contents of this Bill and the proposals surrounding them must constitute the most savage and most deadly attack upon the institution of legal aid in the 62 years of its existence. The Government have pleaded three justifications for those proposals. The first is that we live in a society that is overindulgent with eccentric litigants, that legal aid is wasted and, even worse, that in some way or another it encourages and stimulates utterly irresponsible litigation. The second is that, in the context of legal aid, there is every alternative possible that can ameliorate and mitigate any loss that would otherwise exist. Furthermore, they say that, in any event, it is a system that will be greatly improved by the proposals in the legislation.
A few questions should be asked about those propositions. First, is there a litigation culture that menaces the community in which we live? I doubt it very much. I draw all my experience from some 50 years in the law as a solicitor, a barrister and a judge. I have seen many cases of legal aid. There may well be some
21 Nov 2011 : Column 875
The first point that I would wish to make in challenge to that proposition of overindulgence and creating a culture of litigation is to be found in the report by the noble Lord, Lord Young, some few months ago, entitled if I remember rightly, A Community and a Safe Society.
Lord Faulks: My Lords, it was Common Sense, Common Safety.
Lord Elystan-Morgan: I am most grateful and obliged to the noble Lord. In that report, the noble Lord, Lord Young, made it perfectly clear that the conclusion that he came to, from all the evidence that he had heard, was that there was no such thing as a litigation culture in society but there was in the minds of tabloid editors. Of course, there are eccentric litigants. Let us just think of how poor the reports of the law of tort and the law of contract in the 19th century would have been were it not for eccentric litigants. However, they were rich and they were certainly not on legal aid. That is what we have to consider. There is no evidence whatever that we live in a situation where legal aid has stimulated a culture of litigation.
Secondly, we ask whether the effects of what we see now are going to be destructive or benign. So much has been said here today that it needs me only to ask that particular question for it to be answered. It is perfectly clear that the whole foundation, the whole ethos, of legal aid is being challenged and attacked. In those situations, the scope of the cuts and the very nature of the deprivations are such that it is inevitable that there will be very considerable destruction. There will be no legal aid generally, but only in that cluster of sparse areas referred to in Schedule 1. Six hundred thousand people who are now eligible for legal aid will be taken out of that system. There will be no legal aid for private family cases apart from domestic violence-and it seems that the gateway to that has already been deliberately created as a massive obstacle course for likely applicants.
Thirdly, I look to the question of whether amelioration is possible. I doubt it. No doubt mediation has its part to play. Even if we had an army of persons trained, skilled and experienced in mediation-and I hope that some day we might very well come to that; a great deal might be done-some cases, especially family cases, as I well know, could take days but would otherwise be utterly impossible. Again, so much has been said about no-win no-fee to make it obvious that, although that may fill some of the gap, a huge and yawning chasm will still remain.
Lastly, I ask a question about the cost to the Exchequer. In its third report on legal aid, the House of Commons Select Committee on Justice expressed amazement that there was no comprehensive study of the knock-on effects. These knock-on effects will show themselves in one of two ways: either people will retreat from defending or asserting their rights altogether, or there will be a knock-on effect in massive expenditure in other departments.
21 Nov 2011 : Column 876
It has been calculated by the CAB that for every £1 that is spent on legal aid, £2.34 will be spent on housing, £7.18 on employment, and £8.80 on benefits. Where is the gain? What is the gain commensurate with the anguish, the loss and the injustice? At Second Reading of the Bill in the other House, the Secretary of Justice said:
"I accept that access to justice for the protection of fundamental rights is vital for a democratic society-something on which I will not compromise".-[Official Report, Commons, 29/6/11; col. 986.]
It is not by their words but by their deeds that they will be judged, as far as this matter is concerned.
7.02 pm
Lord Morris of Aberavon: My Lords, in the limited time available, I shall try to avoid Committee points, but I am confident that this House has a formidable task as a revising Chamber. The Lord Chancellor was, reputedly, one of the first to agree to the Treasury's demand to contribute to the cut in the deficit. With hindsight, that might turn out to be a mistake. All his proposals flow from his efforts to meet the required amount: sentencing, remission, prison numbers and now the legal aid budget. Our job is to assess their fairness. How fair are they? In which fields will the most vulnerable suffer disproportionately? The words of the late Lord Bingham ring in our ears-they have already been quoted by my noble and learned friend Lady Scotland. He said that,
- "denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law".
The Law Society, in today's Times,recites some of the most vulnerable who will suffer. This House will have to examine in detail proposals for family law, some victims of domestic abuse, and victims of clinical negligence. The view has already been expressed of the grave concern that clinical negligence will be outwith legal aid. In the absence of legal aid, no-win no-fee has been the only means of litigation for many. From what I understand, a great deal of the ground is to be cut from under the feet of many by the Bill's proposals.
Let me pinpoint one issue-the environment. As a constituency MP for more than 40 years, I was constantly reminded of environmental problems created by industry and developers. Litigation is the last resort in these fields, only when other means have failed. It is a battle of David and Goliath. There are occasions when the means should be provided for David to have his day in court. The Bar Council, in response to the Government's proposals for legal aid reform, has made proposals for £350 million savings in the administration of justice. It is the profession's belief that its views have fallen on deaf ears.
Let me make one point of detail-a detail which, if continued to be ignored, distorts the legal aid budget substantially. I have defended over the years many defendants who have hitherto enjoyed significant wealth. The cases would involve drug dealing, particularly importation, VAT frauds, mortgage frauds and the like. The defendants would frequently, having enjoyed the trappings of wealth, be on legal aid-or, in the course of a trial would be granted legal aid. You may well ask why. It would be because their assets would have been frozen by court orders on the application of
21 Nov 2011 : Column 877
Let me give the basis of all this. In 2005, more than 50 per cent of Crown Court legal aid expenditure was consumed by 1 per cent of cases. These are the kinds of cases I was involved in. The average cost per case would be £2.6 million. To give an idea of the sums under restraint, the value in 2009-10 was £560 million, rising to £744 million in 2010-11. If we used some of that money for legal aid that is not necessary, the legal aid budget would be more realistic, fairer and more easily understood. The Treasury says that it can recover some of the money through confiscation orders. But how successful is it? Does not that basis distort the whole picture of legal aid? In any event, I believe that it is an unfair and distorted way of portraying and allocating public expenditure.
I will touch briefly on sentencing. When I sat as a recorder from 1973 to 1997, we were bombarded each year by criminal justice Acts. Sentencing was a labyrinth that you navigated as best you could. The pressure on the judiciary to get a sentence right was unremitting. Let me give two examples of how some things fell into or out of favour. At one stage, suspended sentences were very much in favour-with or without conditions. Then they fell out of favour. And now we are, back again, to look at how they are to be implemented. Secondly, the four-year imprisonment tariff became important; release depended on whether the sentence was just under or just over four years. That had immense consequences for the sentencing judges.
Some of the proposals in the Bill may well have a great deal of merit. We will examine them exceedingly carefully and hold on to that which is good. But I hope and pray for some respite in the introduction of the equivalent of the criminal justice Bills which change whatever is the fashion from year to year. The judiciary should be allowed to get on with it. Sentencing would be easier; the professions would understand it better; and the defendant-an equally important person-would understand it better. Constant changing in sentencing does not make life any easier for anyone at the criminal Bar.
7.09 pm
Baroness Prosser: My Lords, I am pleased to be able to contribute to this debate, but less than pleased with the proposals contained within the Bill itself. I will restrict my remarks to the social welfare law aspects of the Bill, plus a couple of comments regarding access and rights.
Prior to becoming a trade union organiser, I worked in a south London law centre for six and a half years. It was work that I thoroughly enjoyed and was an experience which has given me a good understanding of the range of issues dealt with and the types of people looking for help.
I also clearly understand how the law centre and advice centre network is interdependent, providing general and specialist advice and services and a system of cross-referrals, almost always with good connections to services, benefit offices and so forth. There seems to
21 Nov 2011 : Column 878
However, common sense would teach us that these matters are as legally complex, with case law and precedents to be taken into account, as any other legal area. Where they differ, of course, is that the first port of call for a hearing or an appeal is usually a tribunal where an unqualified lay person can speak and represent the claimant or client. The law centre and advice centre movement is also acutely aware that to claim legal aid for non-legal advice is simply against the law.
Because of the interdependency of the services provided, restricting the availability of legal aid support in the ways proposed is likely to see the collapse of the whole advice network. It is very hard to see how in a civilised society justification can be made to withdraw access to legal remedies from the most vulnerable and needy among us. It seems that there is a view that such people will somehow be able to look up the law, draft out a legal case and speak to the court-all this, of course, after going through the mandatory telephone gateway where they will be required to refer to complex documents at the same time as interpreting the legalese and trying to articulate their case-all in the name of reducing the overall legal aid bill, where civil legal aid is not even the culprit.
Many other aspects of the Bill cause me to feel dismayed. There is to be no housing advice unless the person is likely to lose their home. What about redress against landlords who make their tenants' lives a misery, turning off the electricity for example or refusing to do essential repairs? There is to be no help in cases of domestic violence until the point where the woman is likely to be afraid for her life and often the lives of her children. There is to be no help for employment cases. Combine that with the introduction of fees to access the employment tribunal and a wronged employee has no effective right of redress at all. The Minister refers to the fact that tribunals were intended as more informal venues where the ordinary person can go along and state their case. He implied that it would be good to get back to that happy state and I am sure that most of us would agree, except that we cannot go back. We are where we are. Informal venues have been turned into highly legalistic arenas where the inexperienced will be swallowed up by complex arguments and convoluted language. Eleven years of sitting on the employment appeal tribunal tells me that unrepresented cases will take up much more court time. Where is the saving?
I turn briefly now to matters of rights and access. I declare an interest as deputy chair of the EHRC. There are two areas of particular concern. The first is the likely impact of the mandatory telephone gateway on those with disabilities. The equality impact assessment carried out by the Government does not properly assess whether the impact can be justified as a means of achieving a particular aim. Indirect discrimination in services and public functions is of course unlawful unless it can be objectively justified.
The second is the overall question of legal rights being no rights at all if they cannot be accessed. As is known, we have international obligations and the right
21 Nov 2011 : Column 879
7.15 pm
Baroness O'Loan: My Lords, there can be no doubt that the current arrangements represent, as the Minister said, an "unignorable problem of affordability". However, even in that situation the current arrangements do not enable access to justice by huge sectors of society who must make the decision not to bring legal proceedings, based not on the merits of their case, but simply on the basis that they do not have the resources to fund litigation. So the current situation is far from perfect. The Bill as drafted will in some respects exacerbate a very difficult situation. It will not be compliant with Lord Justice Jackson's insistence that there should be,
Elements of the Bill are welcome. I refer to the proposed introduction of a new offence of squatting in a residential building-a problem which became quite widespread as it was realised that it is possible to occupy a building without any possibility of criminal sanction. The costs of such occupation in terms of property damage and the consequential civil legal proceedings to eject a party can be very significant and can cause massive distress. This provision is clearly a common-sense and necessary improvement to the law. The only question is why it has taken so long to get there.
I wish to address the issue of the extent to which the current proposals will restrict access to justice for the most vulnerable and marginalised members of our society in circumstances in which they find themselves the victims of crime-of clinical negligence, professional negligence or fraud. I think of those who are very poor; those who have to cope with the consequences of disability in all its forms; of the 20 per cent or so of our population who effectively cannot read and write; of prisoners, who are disproportionately represented among those with mental health and literacy difficulties; and of immigrants for whom access to justice was completely unknown in their home country and who have come to this country believing in the rule of law and the principles thereunder to enable access to justice. The current civil legal aid provisions are very restricted but they do allow people with very limited assets to bring the proceedings that are necessary to assert their rights. The evolving conditional fee arrangements provide some access to justice for those who are not entitled to legal aid but who can seek redress in the courts through alternative arrangements.
I am no fan of the ambulance chaser. Indeed, I would prohibit the type of advertisement to which I-like many other noble Lords, I am sure-have been subjected, suggesting that I have suffered an accident and the sender of the text will provide me with legal representation to enable me to secure compensation. However, the Access to Justice Action Group has stated that Part 2 of the Bill will affect the capacity of some 600,000 ordinary people to get access to justice.
21 Nov 2011 : Column 880
The reality for a parent who has given birth to a child who has suffered significant injuries as a consequence of medical negligence is very grim. Such parents face, even in the present situation, an almost insuperable problem. They must learn to come to terms with the consequences of the alleged negligence in terms of their baby's ability to function. They must enter a world which they hitherto never knew of clinical process and, in some cases, almost constant emergency situations. They must learn to do that which doctors and nurses normally do, to preserve the life and function that their children have. Often, they will be constantly exhausted and frightened. They may have to care for their other children while coming to terms over years with the ongoing, developing consequences of that medical negligence. In the midst of all this, and of all the consequential visits to doctors, occupational therapists and physiotherapists, as well as to those who provide wheelchairs and other aids and adaptations for those with disability, they must contemplate the need to commence legal proceedings to seek compensation, which will enable them to secure proper care for their children in the future.
Similar situations will arise for those whose adult friends and relatives have suffered catastrophic damage as a consequence of medical negligence. They too will have to come to terms with a whole new way of life if they decide to become the carer for the injured party. By so doing, they will save the state a lot of money, because the state will not have to provide residential care. What too of the situation of those with an industrially-acquired disease and the widows and children of those who die at work as a consequence of an employer's negligence?
In the midst of all the grief, the confusion, the fear and the exhaustion, they will need to know how long they have to initiate legal proceedings. They will need to know when it is best to do so, because the consequences of medical negligence may take a little time to emerge. They will have to contemplate the costs of expert medical and other technical evidence to support and explain the situation to them. They will need the capacity to keep their claims going through years of litigation-and all this without legal support. Is this possible?
All the while, in many negligence cases the costs of the defendant are borne by the public purse. We fund the defendant, but we will refuse to fund the complainant. The effect of the current proposals will be that yet another two-tier system will emerge. There will be those with sufficient resources to bring actions with legal representation, for whom compensation may ultimately be decreed and consequentially a higher standard of care. Then there will be those whose parents or carers just cannot contemplate how to bring such proceedings and who will ultimately suffer the consequences in terms of reduced living standards.
21 Nov 2011 : Column 881
As the noble Viscount, Lord Simon, said, where the injury has been suffered as a consequence of the failure of state-provided care, it is even more necessary to provide an accessible remedy in law. There will have to be revision to this section of the Bill. The provision for exceptional cases will not meet the needs of these claimants. I also echo the words of the noble Lords, Lord Pannick and Lord Newton, about the court costs resulting from the appearance of an unrepresented litigant. I echo too those who identified the serious problems which will emerge from the withdrawal of legal aid for welfare cases.
There is one other matter in the Bill to which I will refer briefly. It is the matter of how the law deals with those offenders who are dangerous and violent and who will be sentenced, but in respect of whom there is an enhanced need for public protection which must be dealt with in a proportionate manner. This matter was dealt with in Northern Ireland by means of the Criminal Justice (Northern Ireland) Order 2008, which created indeterminate custodial sentences. Under the legislation, a judge contemplating an ICS has first to consider whether an extended custodial sentence,
The purpose of that law is to ensure that the ICS is imposed only where there is no other proportionate way to protect the public. Mr Justice Hart stated in the case of R v McGleenon this year:
"Common to each of these four sentencing options (determinate sentence, ECS, ICS, life sentence) is the need to consider whether the accused presents a danger to others by virtue of being a significant risk to members of the public of serious harm in the event that he were to commit offences of the same or a similar nature in the future".
In that case, Hart imposed an indeterminate custodial sentence with a minimum term of five years' imprisonment, meaning that the defendant would not automatically be released after the minimum term has elapsed, but rather that he would be released when the parole commissioners are satisfied that it will be appropriate to release him.
It appears to be the view in Northern Ireland that the combination of judicial discretion as to the question of dangerousness-similar to that applied in England and Wales-and the requirement to consider an ECS before imposing an ICS has meant that the number of public protection sentences has grown slowly, far lower than anticipated. Consideration of the operation of that system may assist in providing a public perception and reality of protection while ensuring that there is not a disproportionate use of the ICS.
7.24 pm
Baroness Newlove: My Lords, I have listened with great interest to the debate, which so far seems mostly about legal aid. I cannot comment knowledgeably about that, but I want to speak about what I know. I stand with a great weight of expectation on my shoulders as I speak out for victims of violent crime. I cannot hope to represent all the different views held by this group, but I will try. Many good and honest people, through no fault of their own, have entered the criminal justice system as victims. I add my own and my daughters' personal and eye-witness
21 Nov 2011 : Column 882
I support these innocent, grievously wounded people, and I speak also for Garry and the many others, deeply loved and missed, who are silenced for ever. This Bill has the capacity to right many wrongs and bring real justice. The coalition Government's strong sentencing package will make a huge sea-change reform of our justice system. It will ensure that criminals are punished for their crimes and made to face up to the causes of that criminality, and it will restore public confidence in our criminal justice system. I ask you to listen with your heart as well as your ears and minds. There but for the Grace of God go you.
I am grateful and humbled by the Minister saying on record that the victim will be at the centre of these reforms. I thank my noble friend. Our criminal justice system needs overhauling. Our jails and young offender units are full and overflowing. The system is creaking at the seams and not working when we see the depressing and costly figures of reoffending. Many people locked away are not violent, but others who can cause hurt have their freedom. It is shocking that about half of all prisoners reoffend within a year of release; 74 per cent of young people sentenced to youth custody and 68 per cent of young people on community sentences re-offend within a year. Something is broken and needs urgent fixing.
The scales of justice are tipped too far to the rights and needs of the offender. They must be balanced towards the victim; or, if their lives have been cruelly taken from them, then towards the families left behind. They should have a say in the sentencing, parole and probation of offenders. Although the argument rages between rights of victim and offender, there is another interested party to this; the public. Victims were the public once. Anyone can join our terrible club in a heartbeat. Membership is lifelong and unwanted. Lives will always be affected by the violence they never asked for.
We need to restore public confidence in the judicial processes, to look at the proposals put forward in this Bill and why we must make these changes. Offenders are not victims. Please do not patronise and disrespect us by confusing the two. Mitigating factors of background, bad parenting and social circumstances can influence an individual to commit terrible crimes, but this can never be a cloak to excuse criminal behaviour. Ultimately it is down to individual choice and we must do all we can to inform, educate and, if that fails, enforce common laws of acceptable behaviour. That is how a just and strong society functions. The will and actions of every individual must support and nurture the community. It protects the weak and defenceless, the young, aged and those with disabilities and learning needs. For without the common goals of strong values, self-respect and self esteem, we turn feral. We become a society that looks to self-gratification, to thinking me, me, and mine, mine. That takes out and does not put back in; grabs and steals but does not earn; tramples everyone that stands in the way of getting what we want; and passes these wrong behaviours to the next generation. In this downward spiral we risk never releasing the compassionate good that is within every one of us.
21 Nov 2011 : Column 883
I do not speak from a vengeful and bitter platform. What has happened to my family and so many like us will be with us for ever. We cannot turn back the clock. What victims want is that it does not happen to anyone else. The suffering we experience cuts to our very hearts. My daughters will never have their father walk them down the aisle on their wedding day. My grandchildren will have to be content with photos and stories about the grandfather they will never see. Birthdays, anniversaries, Christmas, the back of a head in a crowd which is so familiar, the words or tune of "our song"-I cannot describe the physical pain which strikes unexpectedly and ferociously; words do not exist.
I welcome the Bill's promise to simplify, release and recall arrangements and clarify the statutory duty to explain a sentence. Again, it must be clear and easily understood and accessible by the public. It must not be lip service. Communication is vital for everyone to understand our criminal justice system and the Bill promises to strip out unnecessary clutter. The government support of approximately £50 million to the victims' voluntary sector this year was a real commitment to rebalancing the criminal justice system. Extra funding for the homicide services and a redirection of offender surcharge and earnings are all steps in the right direction.
The Bill looks to encourage the use of compensation orders. This should be mandatory and paid directly to the victim involved or, where refused, the money should still be deducted and retained for other victims. Focusing on punishment for the perpetrator will help them to recognise and accept the wrong they have committed against others. This could well have a positive effect on reoffending. It will certainly appease the general public who are unhappy to learn that offenders can get away with working just six hours a week. A consultation document on victims' services will be published soon by the Ministry of Justice and I look forward to the public's chance to influence policy-makers. The victims' code should focus on sharing information and offer complete transparency. I recommend that we should explore new technology to help us in the fight against criminal behaviour and offender management. The public will accept community orders as long as they feel that they are safe and are guaranteed that offenders are not left to roam free but are properly monitored and put to real work.
Tomorrow I will look at a new GPS-linked UK tagging device called Buddi Tracker. This has an impressive record of stopping repeat breaking of parole conditions. It could help in the fight against organised gangs as tracker devices can alert when two or more banned individuals try to get together. While I believe in localism and returning power to local communities and agencies, I am also very afraid that we risk losing consistency in supporting victims by handing over these services completely. There needs to be an umbrella organisation so that, no matter where you live, the same platinum service is delivered to support victims and encourage witnesses to testify.
The annual three-year grant funding of £38 million to Victim Support, with its roots embedded in communities and supported by local volunteers, is to my mind a good thing. I shall be speaking next month at the first meeting of a victims' alliance of charities
21 Nov 2011 : Column 884
The Bill promises to tackle reoffending by young people so that the young offenders of today do not become the hardened career criminals of tomorrow. I recently visited the West Midlands to see a police initiative which is driving down anti-social behaviour by bringing young offenders and victims together to thrash out their differences in a safe, controlled environment. It is very early days but the initiative holds great promise and similar avenues of restorative justice should be explored. Success builds community trust in the police and empowers victims while exposing offenders to the suffering that they cause. This can stop minor bad behaviour escalating to dangerously high levels, as I know only too well.
Outrageous stories of foreign nationals abusing our hospitality while using human rights to stay and cause terrible harm to our citizens are shocking. The Bill promises to do what we all clamour for-remove them from our shores at the earliest possible moment and keep them out. Possessing a bladed article in a public place is already an offence. The new custodial sentences are welcome, but the message must be clear that no one should carry a knife in a public place without good reason; for example, for use in their job. It is the wrong message to send that unless someone threatens or endangers another it is okay to carry a knife. We must speak out loudly and impose harsh deterrents to reinforce the message to prevent anyone of any age carrying a knife. By setting an age limit, those under it will be coerced or bribed into carrying for their elders.
May I ask noble Lords to join me in conveying a huge thank you and get well soon message to the four brave police officers who were stabbed in the line of duty yesterday in north London? Our officers get up each morning, kiss their loved ones goodbye and walk into the unknown-a violent and unpredictable world. There is no guarantee that they will return unharmed, as this latest knife attack reminds us all. That is why we have to get knives off our streets, to limit the risk to them and us.
Finally, I want to comment on the review of the IPP sentencing to make this easier for the public to understand. I welcome clarity in sentencing laws. Victims need to know exactly how long offenders will be imprisoned. I hope this means that we see the end of a review of tariff at half-term stage for those convicted of murder and that instead they are subject to the new extended determinate sentence and will have to serve at least two-thirds of it behind bars before release. Victims must know that offenders are made to serve time and that there will be no automatic release before end of sentence for the most serious cases.
Sentencing, punishment, rehabilitation of offenders and the cost to the public purse of legal aid will be overhauled by this new Bill. It might not be totally perfect but it goes a long way to rid us of the current wrongs in the system and reassures the public that this
21 Nov 2011 : Column 885
7.38 pm
Lord Monks: My Lords, I declare an interest as a non-executive director of Thompsons Solicitors, which is probably the most experienced legal firm acting for workers in the personal injury and employment fields, and certainly the largest legal firm working with trade unions. That is enough of the advertising.
I am grateful to the noble Lord, Lord McNally, for affording me the opportunity to discuss my concerns about the Bill with him. A central concern relates to Part 2 which, if enacted, will undoubtedly make it harder, more hazardous and more expensive for many damaged workers to have access to justice. As a result, it will act as a major deterrent to applicants to apply for justice. A good thing too, some might say, including some employers and insurance companies. However, the losers will be the many victims suffering from injury or illness who are afraid to risk the expense of seeking redress.
In recent years, access to justice has been much encouraged by conditional fee agreements-the so-called no-win no-fee arrangements. These have certainly not led to an explosion of cases in the employer liability personal injury field. Employer liability claims are on a downward trend and fell between 2007 and 2011. There has been no noticeable surge in the compensation culture in this area. As the noble Lord, Lord Hunt, highlighted earlier, recently there has been a surge in road traffic cases, which are up 43 per cent to the very high figure of 791,000, 10 times the number of employer liability cases. I understand the Government's concern in the road traffic area, but that is no justification for making no-win no-fee arrangements in relation to employer liability and making access much harder for vulnerable claimants.
Conditional fee agreements were introduced to ensure that people who did not qualify for legal aid had an opportunity to instruct solicitors on a no-win, no-fee basis. Changes to funding, brought in by the Access to Justice Act, meant that from 2000 solicitors were able to make judgments about whether to proceed with cases with a degree of confidence that they would get paid; and, importantly by using the success fees that they recovered in cases that they won, they could fund riskier, less straightforward cases with worse odds of success. As the Bill is now, there will, at best, be a limited fund from success fees because they will be capped and it is a fund into which clients would have to pay from the compensation, if any, that they receive. We calculate that as many as 25 per cent of injured people whose cases would currently be run, and won, will not be able to find a lawyer willing to take on their cases.
21 Nov 2011 : Column 886
The Bill is not making minor adjustments to the present system; it is scrapping the present system. Sections of society, other than the wealthy, will be frightened off pursuing cases. As the Law Society has argued, the other winner will be the insurance industry. I ask the Minister: is that industry preparing to cut premiums as a result of these substantial changes in its favour? They have given no such promises in the road traffic area, so those small and medium-sized employers who were in Ministers' minds when they introduced the Bill had better not count on getting a better deal from their insurers.
Even at this stage, I hope that the Government will rethink their position. As the noble Lord, Lord Newton, said earlier, public finances may well not benefit. There could be a loss to the social security department in recoupable benefits, extra burdens on the NHS for the costs of care, and more people being reliant on benefits. Victims who win cases will have to pay a hefty slice of their compensation to lawyers, while many others will be deterred from taking cases at all. There is many a human tragedy, as we have heard today, behind all this technical talk of fees and so on. In today's debate we have heard very moving stories about the victims of asbestos, from the Spinal Injuries Association, and other support and self-help groups. I ask the Government to look again at Lord Justice Jackson's two alternative packages, which would control recoverable success fees, and at the problems in the road traffic area.
I have one final point on legal aid. I would like to support points made by, among others, the noble Lords, Lord Newton and Lord Phillips, and the Chairman of the All-Party Group on Citizens Advice in the other place, that at a time when major changes are taking place in the welfare system, it is unwise to withdraw support for people who are challenging bad decisions. We heard the statistics on that earlier. I hope that the Government will urgently meet concerns in this area. There is a way forward that is more equal and effective than the current provisions in this Bill and I hope that we can persuade the Government to take it.
7.44 pm
Baroness Linklater of Butterstone: My Lords, this has been a fascinating and important debate and I am honoured to be part of it. This is an enormous Bill, not only in its size but also its scope and aspirations. Of particular interest to me are the relative roles of prison and community sentencing in the future and how this will be managed. I agree with everything that my noble friend Lord Dholakia has said on specific aspects of sentencing policy and so will not repeat those arguments. I shall concentrate on Part 3.
The Lord Chancellor came into office to find our criminal justice system in a mess. There are soaring costs. The NOMS resource budget alone for 2011-12 is £3.679 billion-I thought they might have got the "b"s and "m"s muddled up, but apparently not; prison numbers are soaring and are currently around 85,000; and reoffending rates are soaring. Of those serving short sentences of a year or less, nearly two thirds will reoffend. Where children are concerned, the figure for reoffending rises to more than 71 per cent. This is the
21 Nov 2011 : Column 887
The Lord Chancellor's initial response in the Green Paper, Breaking the Cycle, recognised that short custodial sentences do not work, and he proposed instead the development of effective, tougher, targeted community penalties, which are much more successful at reducing reoffending, thus making society a safer place. He proposed making prisons work better by reducing the impossible overcrowding created by those serving short terms and allowing them to do what they do best, which is to deal with the violent, dangerous, prolific offenders, who are serving long sentences, from whom we need to be protected. He talked about a rehabilitation revolution and presented a coherent programme of legislative reform, which was very welcome and made many of us cheer.
Since then, there has been a move back from the clear, constructive focus on prevention, rehabilitation and the reduction of reoffending to giving punishment a more central focus. Hence the change to the last part of the name of this Bill from "the Prevention of Reoffending" to "the Punishment of Offenders" after it was first published and the Bill had to be reissued. I regret this because it injected an unhelpful, retributive and negative tone. From my earliest days of working in prisons, I have been told that not only was imprisonment the sanction of very last resort and for as short a time as possible, but that those who were sent to prison went as a punishment, not for punishment.
Despite this, I believe that the Bill could usher in a shift of focus, or emphasis, so that much of what is being proposed is constructive and could succeed in the core aim of reducing the number of short-term prison sentences, and thus reoffending, save money and protect the public. However, that will depend crucially on the work that will have to be done with sentencers in both magistrates' courts and Crown Courts to generate understanding and, more importantly, confidence in the proposed community sentences and the quality and availability of these new tough sentences in the community. The decision on whether to use these alternatives remains with the sentencers. However, there is nothing in the Bill about the nature, range or expectations of the community sentences, which are to be alternatives to short sentences and on which the reduction of reoffending is predicated.
At a meeting with the Minister, Crispin Blunt, he was emphatic that there is no government money for this provision, but rather an expectation that payment by results will provide the answer. My noble friend Lord McNally did indeed refer to that in his opening remarks, but I have yet to find any detail in the Bill. Perhaps this is because this is an approach which is still only being trialled at the moment and that the success or otherwise is as yet unknown and unproved. The result will take at least two years to demonstrate, so the country will have to wait several years. This means we are indeed putting on hold the kind of revolution we hope to see. There is one much-heralded project at Peterborough prison, run by the prison, the
21 Nov 2011 : Column 888
I have the honour to be the patron of an excellent medium-sized, voluntary sector organisation called SOVA, which is also attempting to make such a PBR scheme work. It is very well placed to do so in terms of its knowledge and experience of working with offenders in the community. The problem is that for the first two years at least there is no return on its investment, which, as an organisation, is extremely expensive, because the payment only comes after two years, based on the result of reduced reoffending; this is of course a major gamble. There are in fact only a few agencies in the voluntary sector able to afford such up-front commitment. The voluntary sector has been the bedrock of community-based work with offenders and consists mainly of SOVA-sized organisations which will struggle and have to take on huge risks to deliver results. The field is left mainly to the few large voluntary organisations or the private sector who can afford to become players if and when they choose. These are the ones who have come into the criminal justice world through providing STCs-our child prisons-YOIs, some adult prisons, and escort services such as Serco or G4S. Meanwhile, the Probation Service, which provides the basic, statutory work with offenders in the community, is itself facing cuts and is very limited in its ability to participate-although I understand that there is a project on which it is working with NOMs.
How is it that on this very important and key element of policy, on which the reduction of the prison population is predicated, and which we all want to succeed, there so little explanation of how it will work, be managed, structured, co-ordinated, staffed, or delivered? I have searched the Bill without success. Perhaps the Minister can help me.
I welcome the Bill's aspirations in Part 3 as a positive first step in the approach to reforming our sentencing system and making it more fit for purpose, particularly in relation to community penalties including PBR, and the reduction of short-term prison sentences. Much will hinge on the nature and effectiveness of how these penalties are devised, how they command confidence-regarding sentences in particular-and show themselves to be truly effective. I sincerely hope that these aspirations will be realised.
7.53 pm
Lord Borrie: My Lords, several participants in the course of this debate have referred to and quoted from the book by our late colleague Lord Bingham. If noble Lords will forgive one more quotation, he described the Legal Aid and Advice Act as one of the great but less celebrated achievements of the post-war Attlee Government. The noble Lords, Lord Pannick, Lord Goodhart, and others, made the point, following on from what Lord Bingham said, that legal aid is a service that the modern state owes to its citizens as a
21 Nov 2011 : Column 889
These are powerful and persuasive sentiments. Because of the cost of legal aid-many noble Lords have rightly concentrated on this this afternoon-increasing, of course, in the 60-plus years that have passed since 1949, successive Governments and senior judges alike have promoted alternative remedies. The noble and learned Lord, Lord Woolf, in particular has promoted alternative dispute resolution procedures such as arbitration, mediation, more informal tribunal hearings, and alternative methods of financing litigation in the courts through conditional fee arrangements. Some of these are not appropriate in all circumstances, and I do not think that anyone is suggesting that they are. However, as people have worked through those proposals and as some of them have been implemented, we have come to see their value but also their limitations.
This Government, like the previous Government-and I certainly have no objection to this at all-are trying to reduce the costs of civil litigation. Many participants in the debate this afternoon have indicated serious doubts about the detail of the Bill because it very specifically limits legal aid for the most vulnerable and impecunious in society, such as those in need of advice on social welfare. Many people in this House, this week, next week and so on, will be involved in the most tremendous upheaval in welfare rights, and many individuals who may or may not be on welfare at the moment will have somehow to see whether they are eligible under the new legislation that will be in force very soon.
Many provisions in this Bill are counterproductive, as has been indicated, sometimes with detailed figures such as those given by the former Attorney-General, the noble and learned Lord, Lord Morris of Aberavon, and as Citizens Advice has pointed out as well. Judges have said many times that if applicants are unrepresented in the courts-and in the tribunals, which deal with so many welfare matters-they will be overwhelmed trying to cope with litigants in person. Trials that might have taken such and such a time will take much more time if litigants are not represented. The noble Lord, Lord Newton of Braintree, made a special point about this.
A seemingly minor change is a promised requirement that applicants must use the telephone as the only method of communication. Several people have put it as a mandatory requirement. Yet it must be clear to many people that for those with mental health problems or linguistic problems, the telephone is a more difficult method of communication compared with others.
The only other matter that I wanted to mention briefly relates to criminal proceedings. I do not think that it has been mentioned today; it is the provision that bail should be granted to a defendant where,
that the defendant will be sentenced to imprisonment at the conclusion of the proceedings. But of course, as many people realise, bail is normally determined at the
21 Nov 2011 : Column 890
- "it will not be clear until the conclusion of the trial ... whether the offence ... merits a custodial sentence".
So what is the point of this in determining whether bail should be given?
Finally, again on the subject of bail, the Opposition in the other place made a powerful case for the prosecution to have the right of appeal against a court decision to grant bail to an accused person. Jonathan Vass was given bail in a rape case in 2009, despite the fact that he had a very violent past. While on bail he murdered a woman who had earlier filed a number of complaints of rape against him. I understand that the Director of Public Prosecutions endorsed the desirability of a change in the law through a statement made by Parliamentary Under-Secretary Mr Crispin Blunt, and that favourable comments were made by the Government a few weeks ago in favour of the prosecution having the right of appeal against the granting of bail. I will be interested both in what the noble Lord, Lord Macdonald, will say shortly and in what the Minister will say in due course.
8 pm
The Earl of Listowel: My Lords, I am prompted to speak briefly about the debate tomorrow on the Public Bodies Bill-and the amendments that are coming back from the other place-by what was said by the noble Baronesses, Lady Newlove and Lady Linklater of Butterstone, about the reoffending rate for young offenders, which is put at 71 per cent. Clearly we want to see that figure reduced. I draw noble Lords' attention briefly to the programme of change that the Youth Justice Board has set in motion in this area. Key to the effective rehabilitation of young offenders is the ensuring of good resettlement back into their home areas. The Youth Justice Board has worked with consortia of local authorities to develop programmes of work, accommodation, training and education for young people. It is early days, but one striking fact is that in the recent riots only one child in the programme was involved in criminal activity. I cannot tell noble Lords how many children are involved, but so far four large local authorities in the north-west of England have been pulled into the programme, which is now moving down to Wales. I hope that noble Lords will make time to listen to the debate tomorrow on amendments to the Public Bodies Bill-I apologise, the debate is in fact on Wednesday-because it will be germane to this debate.
I was grateful to the Minister for introducing the Bill in the way he did, and in particular for paying attention to concerns about the welfare of women and children. I am speaking because of concerns that have been raised by many bodies about the impact of the legislation on their welfare. I was grateful to the Minister for making clear that the Bill will not directly affect looked-after children in local authority care. I was also very pleased to hear some things that he said
21 Nov 2011 : Column 891
I will comment on the rehabilitation revolution. It is perhaps important to bear in mind the success of the previous and current Governments in reducing the numbers of children coming into custody. There has been a 30 per cent reduction in the past three years in the number of children coming into custody. That is a very striking result. There has also been a 51 per cent reduction in the number of under-14s coming into custody in the past four years. Given that we have an exceptionally low age of criminal responsibility, and that such concern has been expressed in this area, it is very good news and one must pay tribute to the previous and current Governments for achieving those results.
Given the success that we have seen in the Youth Justice Board arena with these children in terms of reducing the numbers coming into custody, will the Minister consider again the recommendation made by the noble Baroness, Lady Corston, in her report on women in the criminal justice system? She recommended that there should be a women's justice board that would give appropriate focus to the smaller number of women, with their complex needs, in the criminal justice system. I understand that the decline in that area has not been sustained, and indeed that the numbers may be climbing again.
I return to the Bill and say that I share the concerns expressed in particular by the noble and learned Baroness, Lady Scotland. I will address briefly the important point raised by the Minister in previous debates regarding the disproportionate size of our legal aid system when compared with that of our international peers. Many noble Lords tonight spoke of the rule of law, which is perhaps dearer to us than to many nations. The Minister prompted me to reflect on differing national priorities. In Finland, 40 applicants for a teaching post are rejected for every successful candidate, and it takes five years to qualify as a teacher. In Denmark, a social pedagogy degree-the qualification for working with vulnerable children-is almost as popular as one in law or medicine. In France, the literature suggests that social workers have a high status and are held in high respect by the courts. In this country we are beginning to address the low status of social workers, teachers and others who work with our most vulnerable children. However, we have always prized the law. It has always been a high-status profession.
I sat in with a lawyer doing pro bono work at the Waterloo Legal Advice Service. He was advising a young, pregnant woman about her rights of tenure in her home. I was compelled to admire the clarity of reasoning he applied to the young woman's situation. In our culture it is vital to ensure that the weak have access to the law, because so many of their other advocates are absent or weak. Therefore, I share the deep concerns expressed by the noble and learned Baroness, Lady Scotland of Asthal, and other noble Lords. While I recognise the complexities of the issues that face the Government, I am very worried about how the raising of the threshold of access to justice will hit the most vulnerable.
21 Nov 2011 : Column 892
I share concerns that were raised that many more litigants in person may clog up the courts. I worry that this will add to delays for children both in private and public family law, as the same courts are used for both. For example, has the Minister considered how the Bill may impact on the time it takes for children to go through the adoption process? Is he concerned that it may add to delay? I share the concerns raised about the likely knock-on costs of poor decisions or no decisions being taken, in particular by the family courts.
As I said, I am grateful for the care with which the Minister in his opening remarks addressed anxieties about the impact on children and women. Is he prepared to undertake an impact assessment of the Bill's consequences for children and its compliance with the United Nations Convention on the Rights of the Child? I look forward to his response.
8.07 pm
Lord Howarth of Newport: My Lords, it is a bedrock principle of a liberal society that there should be equality before the law. Every citizen, regardless of means, should be able, where they have a reasonable case, to have access to legal advice, assistance and, should it be necessary, representation in court. This is a matter of both constitutional and humanitarian principle-a principle that the Government are abandoning in the Bill.
Legal aid costs £2.1 billion. Is that too much to pay to make such a fundamental principle a reality in practice? Is it really unaffordable? It is no more than 1 per cent of social security expenditure, yet legal aid, too, is an indispensable part of the welfare state. Of course, where there is waste in legal aid, or unintended injustice in its working-as the noble and learned Lord, Lord Woolf, explained-it should be stripped out. However, when that has been done, I do not mind-and I suspect that most of my fellow citizens do not mind-how much tax we pay to fund legal aid.
Justice for All warns that more than 700,000 cases a year will lack legally aided support following the reduction of legal aid funding for advice centres and the removal from the scope of legal aid of housing, welfare benefits, debt, employment, immigration, education, clinical negligence and family breakdown. The organisations that form Justice for All-including the Law Society, Justice, the Disability Alliance, AvMA, Mind, the National Autistic Society, Gingerbread, Citizens Advice and Shelter-are experts, and I trust their evidence and their motives.
The Government take the view that legal aid is not justified in welfare benefits cases. Paragraph 4.219 of the Green Paper states that,
and the tribunal system is so "user-accessible",
Not of sufficiently high importance for whom? I think that they are of very high importance for people in poverty. And how are people beset by the multiple, interlinking problems that the poor have to battle with and facing all the complexities of debt, the benefits system and the law to represent themselves? It is
21 Nov 2011 : Column 893
Those served by law centres and other advice centres funded through legal aid include people who are ill and unable to manage day to day, have physical or sensory impairments, are learning disabled, cannot speak English, cannot read, have addictions, are old people with support needs or young people with support needs, or are refugees. Legal aid is to be taken away from people who are in acute difficulty.
The Government are legislating to remove legal aid from employment cases at a time when youth unemployment has passed 1 million and employment prospects are bleaker than they have been for a generation. Shelter anticipates that more than 50,000 housing cases will be unaided when legal aid is removed.
The removal of legal aid for clinical negligence is very worrying. The noble Lord, Lord Faulks, spoke powerfully about that. I ask Ministers to imagine the grief and the stress for a family in such a situation. Parents seeking legal redress and compensation in the interests of their damaged child have to battle not only with the distress and the practical difficulties at home that such an event creates but with daunting legal complexities, substantial costs for expert reports and the implacable resistance of the NHS to admitting fault. Your Lordships will want to examine rigorously the Government's contention that reformed conditional fee agreements and the insurance industry will make up the gap.
Special educational needs are also removed from scope. Parents again face constant struggle and stress as they try to establish the rights of a child, ground down by the determination of so many LEAs to provide the minimum. If the parents' marriage should break down, adding new dimensions and intensities of distress to their lives, again the Government intend that they should no longer have access to legal aid to help them through the crisis.
The policy in the Bill on legal aid is not only indecent; it will not only create fear and suffering to save net, perhaps, £20 million or £25 million on legal aid for welfare cases and just £11 million for clinical negligence cases; it is also stupid. It will end up costing more to other government departments and to local government. Early advice and intervention prevent problems escalating to become more serious, complex and costly. The Howard League warns that:
"The logical conclusion of reducing legal aid is that ... youth crime will increase and greater economic costs will be incurred further down the line".
Through legally aided advice centres, litigation is actually averted, tribunal procedures are smoothed, ill health is prevented and children are saved from harm.
There is an ignorance and unrealism in the ministry's approach. Real life is messy and fails to fit bureaucratic categories. Citizens Advice has testified that,
- "advising only on debts where a home is at 'immediate risk' is not practical, as most clients have multiple debts which must be addressed for them to achieve a sustainable financial position".
21 Nov 2011 : Column 894
The National Federation of Women's Institutes has noted that:
"To exclude areas of law such as housing and debt from the legal aid scheme denies victims of violence the support they need".
Then there is the new obligatory telephone gateway to legal aid. My noble friend Lord Borrie asked questions about this. How are people with poor language skills, speech impairments or mental health problems leading to stress and poor concentration to explain themselves over the telephone? Clients need face to face contact with advisers. Advisers need to read body language, and build clients' confidence and ability to explain and understand. Poor presentations and poor advice will lead to poor decisions and further costs.
The exclusion of poor people from advice and legal aid comes when the Government are cutting local authority funding by 30 per cent; forcing cuts to Sure Start, social care and other local authority services that are crucial in assisting disadvantaged people to cope; cutting and capping benefits; making social housing tenure more uncertain; driving up unemployment through reckless cuts to public spending; and making it easier for employers to sack people.
The Ministry of Justice has failed to seek economies in the right places. The Law Society says:
"There is significant scope to make efficiency savings within the legal aid and the civil and criminal justice systems that will enable at least £400 million to be saved".
It is not civil legal aid whose costs have been rising. The ministry is hitting the wrong targets. It is cutting the fees paid to legal aid practitioners by 10 per cent, yet legal aid lawyers typically earn only around £25,000 a year. The ministry's policy will also result in a 77 per cent loss of legal aid income to charities, which is essential to fund staff. Volunteers need professional training and cases need the continuity that only professional staff will supply.
Sixty per cent of appeals against the refusal to award disability living allowance, when the claimant is accompanied by an adviser, are successful. Appeals against the refusal of employment and support allowance have quadrupled in the last two years. Why are the Government penalising claimants instead of the DWP for the appalling quality of its decision-making? It has to be anticipated that the introduction of universal credit from 2013, affecting huge numbers of people, will be accompanied by a high error rate. Legal aid will be essential for the success of welfare reform.
At a time when we are seeing mass protests, which the Government should take very seriously, they are introducing a policy in this Bill that will drive more people to hold the view that politics, law and public administration in this country are unjust.
I had hoped that we agreed across the parties that in hard times, and indeed at all times, we should protect the weakest and the most vulnerable. Of course I do not believe that Ministers personally want to hurt anyone, but this policy of withdrawing legal aid, of hitting people when they are down, will be cruel in effect, and it is wrong.
21 Nov 2011 : Column 895
8.17 pm
Lord Macdonald of River Glaven: My Lords, as my noble friend Lady Linklater said a few minutes ago, this has been a fascinating debate, and it is a great privilege to speak in it. I listened with particular interest to the speeches of my noble friend Lord Phillips of Sudbury and of the noble Baroness, Lady Kennedy of The Shaws. I found myself agreeing with every single word that they uttered.
It is clear that the legal aid bill is high, but it is equally clear that Part 1 of the Bill, if it passes into law, will narrow access to justice. That is a quite inevitable consequence and in that sense it is surely a retreat. It is all the more essential then that the areas where access will be narrowed are carefully chosen and the most vulnerable, we would hope, protected. It seems that many noble Lords on all sides of the House feel that these important aims may not yet have been entirely achieved by the Bill so that if Part 1 passes into law unrevised, the pain will, on the contrary, fall disproportionately on the weakest and the most vulnerable. That cannot be the Government's intention.
I want to address the question of domestic violence, which has already been spoken to by a number of noble Lords. When I was chief prosecutor some years ago, I saw the extent of the scourge of domestic violence, its impact on those who suffered it, who were mainly women, and its impact on the children, who usually witnessed it, many of whom would enter their own chaotic cycles later in life. We did a great deal of work with the police and other agencies to try to improve the response of criminal justice to crimes of violence committed against women and children in the home. The first lesson we learnt doing this work was that it is impossible to predict the responses of people who are suffering that sort of crime. They do not respond in a way that you can always predict. Sometimes their responses appear to be entirely out of kilter with what is happening to them. One thinks of women returning again and again to abusive partners. This first lesson which we learnt appears to have been forgotten by the drafters of this Bill, who completely fail to understand that the responses of people who are being beaten and abused by their partners will not fit into the sort of narrow tramlines that serve as a gateway to legal aid under Part 1. An inevitable consequence of the Bill's approach to domestic violence is that more people-again, mainly women and children-will be trapped in more abusive relationships with no succour at all from our law. I venture to suggest to noble Lords that that is a situation that would bring shame upon our entire legal system.
It surely at the very least must make sense for the definition of domestic violence in the Bill to be the same as the tried and tested ACPO definition that has been used by the police and the Crown Prosecution Service and well understood by the courts for many years. It is a matter of very great regret that the definition of domestic violence in the Bill is narrower and, I have to assume, deliberately narrower than the definition used by ACPO and the CPS. I ask the Government to think very carefully about whether it is appropriate to have a narrow definition of domestic
21 Nov 2011 : Column 896
I want to address one other issue in the Bill because it seems to be another illustration of the application of the law of unintended consequences as it applies to the Bill. Clause 12(1) concerns criminal legal aid in the context of advice and assistance for individuals in police custody. The right of a prisoner to consult a solicitor in a police station is a fundamental protection. It has been described by the Court of Appeal as,
The United Kingdom Supreme Court has endorsed this view saying that,
- "on arrival at a police station, the detainee must be advised about his right to free legal advice".
However, the provision of legal advice in police stations is not simply a protection for detainees; it is also a protection for the police. This was very well understood by Parliament when it passed the Police and Criminal Evidence Act into law under a Conservative Government in 1984. This legislation followed notorious police abuses in the 1970s and early 1980s, when mistreatment in police stations was common and confessions were regularly fabricated. One notable and inevitable effect of this misconduct was the growing unwillingness of juries to convict defendants on the strength of police evidence alone and widespread cynicism among them about confession evidence generally. This cynicism certainly meant that some guilty people escaped justice, adding insult to the injury of their victims.
It was in response to this that the Police and Criminal Evidence Act enshrined the right to legal advice in police stations into our law. The effect of this long-overdue reform was immediate and entirely beneficial. Of course it helped fundamentally to regulate conduct in police stations-and that was a good thing-but it also protected the police because it gave honest officers, the overwhelming majority, protection from malicious allegations of abuse. The universal availability of free legal advice in custody suites throughout England and Wales has improved beyond measure the quality of criminal justice and, along with tape-recorded interviews, improved the standard of prosecution evidence to the general benefit of the public.
Of course, a critical aspect of this legal advice was that it was readily available and free. This meant that its provision was swift, it was certain, and it did not tend to disrupt the flow of an investigation with additional layers of scrutiny and paperwork. However, Clause 12(1) raises the spectre of this all changing in the future, and changing for the worse, because it indicates the possible future introduction of means-testing before police station advice may be available. Leaving aside the extent to which the cost of administering means-testing often seems to outweigh any financial benefit occasioned by its introduction, it is very difficult to conceive of any environment less suited to its always rather clumsy operation.
We are talking about busy police stations, in the early stages of an investigation, possibly when the need to interview a suspect is urgent. However, if he wants legal advice, he cannot be interviewed until he has received that advice-after all, if he remains silent,
21 Nov 2011 : Column 897
The truth is that suspects in police stations need legal advice and it is equally in the interests of the police that they should have it. It is certainly in the wider public interest too because appropriate and legally compliant behaviour in our police stations is the starting point for a fair and decent justice system worthy of public confidence. We would tamper with this gateway at our peril.
8.25 pm
Baroness Stern: My Lords, I am very glad indeed to follow the noble Lord, Lord Macdonald, and wholeheartedly endorse his comments about free legal advice in police stations. However, I shall concentrate my remarks on the sentencing part of this Bill, Part 3, which contains many proposals that are broadly welcome.
The Lord Chancellor has said on more than one occasion:
"A sensible review of sentencing policy is much overdue".
This followed his statement soon after his appointment that he was "amazed" that the prison population had doubled since he was Home Secretary in the early 1990s and now stood at more than 85,000, which he described as "an astonishing number", which he would have,
if it had been put to him as a forecast in 1992. He said:
"We need an enlightened and effective penal system that the public can both trust and afford to pay for ... Too often prison has proved a costly and ineffectual approach".
These are very sensible words that have proved a little difficult to put into policy.
It is perhaps worth noting, in support of the Lord Chancellor's view, that it is a feature of England and Wales that our use of prison is high compared to similar countries, and our use of prison rises year by year, unlike similar countries. England and Wales have 154 prisoners per 100,000 of population; Germany, a similar, large, western country, has about 87. So we are about 70 per cent higher. Germany's prison population has not been on a steady upward trend for the past 20 years; it has fluctuated around 90 per 100,000, and has gone down by 6 per cent since 2007. In England and Wales, the prison population has gone up steadily for the past 20 years and has increased by 6 per cent since 2007.
The Lord Chancellor is right to think that there are models of an "enlightened and effective" penal policy, and prison numbers can be reduced, especially since there is no evidence to connect imprisonment rates and crime rates; for example, in New York, the number
21 Nov 2011 : Column 898
There is therefore much to welcome in Part 3 of this Bill. For example, there are provisions for greater use of compensation orders, which take victims into account. There is flexibility for the court in dealing with breaches-that is, more discretion for judges; greater discretion and flexibility in supervising community orders-and probation staff are likely to be more effective if they are given the opportunity to use their discretion and tailor what they do to the individual before them; more flexibility in imposing referral orders, trusting the court to do what is best for the juvenile before it; and reducing remands in custody, and, in particular, juvenile remands.
Obviously many of us who have spoken so often in this House about the injustice inherent in the IPP system will welcome the abolition of the IPP sentence, and also the proposal to reform the release test for prisoners serving IPP sentences. The Convenor of the Cross Benches, the noble Lord, Lord Laming, has received and passed to me a huge packet of letters from the families of current IPP prisoners-I believe that they have also written to the noble Lord, Lord Ramsbotham-pointing out the injustice of their continued detention. Many of them are without access to the facilities that would enable them to progress towards release. Can the Minister also tell the House in his response what the Government plan to do to deal with those currently serving IPP sentences?
Not everything that has been put before us in Part 3 of the Bill is so welcome. Curfews of up to 16 hours, with the length of curfew periods up from six to 12 months, seem to me neither sensible nor enlightened, especially for children and young people. The provision for mandatory four-month detention and training orders-that is, prison sentences for 16 and 17 year-olds-for threatening with a knife could bring another 200 to 400 teenagers into prison every year. It is not clear to me that that is sensible either.
I must end with a word about the legal aid aspects of the Bill, although I can see that the Minister feels he might well have heard enough about them. It is my experience when dealing with improving observance of the rule of law in countries where it is grossly deficient that the one measure most likely to create a more lawful, fair and democratic society is to give poor people access to justice and access to means of redress of abuses by the powerful or by the state. In a democratic society, people-whatever their social position-should be able to get wrongs righted and injustices rectified. So I am in wholehearted agreement with the very powerful points that have been made all
21 Nov 2011 : Column 899
8.34 pm
Lord Judd: My Lords, in opening this debate, the noble Lord, Lord McNally, in his engaging, candid way, asked us to be reasonable and accept that it was not possible for everyone who sought legal aid to have it. The trouble is, if I may say so to the noble Lord, that those with wealth can always have access. That is the basic contradiction and injustice in the system. We must not lose sight of that in our deliberations. Quite apart from the burden on judges, courts and legal systems as a result of inadequate legal aid, which will be caused by the absence of proper professional legal representations, we have to remember the indirect costs, which have been spelt out for other spheres of government and for the economy as a whole; that is, the costs of stress, mental illness, homelessness and the impact on economic performance by people who are so stressed or, indeed, broken.
My noble friend Lord Howarth was right. We have to remain focused on the people about whom this legislation is concerned. We have to focus on the widow, the single mother, the disabled, the chronically sick, the bereaved, the recently unemployed and the redundant. These people often are devastated, broken and bewildered. It is not just a matter of leaving it to them; they need particular help and assistance in their struggle simply to keep going.
The distinguished Howard League has raised key issues in approaching most of us, I think, about these deliberations. It has raised magistrates' sentencing powers and has asked whether, if we are really serious about reducing the number of people unnecessarily in prison and ensuring adequate rehabilitation, the issue of committing people to prison should be in the realm of the Crown Court and not the magistrates. It has also raised the issue of curfews and extending them, as proposed, to 16 hours. What impact will that have on rehabilitation? For people who are expected to stay at home even longer, what will the situation really be? Will this assist them in becoming more well adjusted, productive citizens or will it make matters worse? The Howard League has suggested that perhaps there is provocation, in effect, in extending the hours, which makes the system almost certain to fail.
On bail, in 2009, 40 per cent of people remanded in custody did not go on to a custodial sentence. Almost two-thirds of those on remand in prison are accused of non-violent offences. The average waiting time is 12.3 weeks. What are the social and economic consequences of this? What about family disruption? Are we thinking through the implications of some of these measures?
The Howard League rightly concentrates, as have other noble Lords, on the position of women. In dealing with women, we are also dealing with children and families. Do we remember that the average distance of prisons away from home is 55 miles? Very often, that distance is faced by families with virtually no spare means available. Only 5 per cent-a shocking statistic-of the children of women in prison remain
21 Nov 2011 : Column 900
As a former director of Oxfam, I very much share the concern of my old organisation and other organisations working in the same sphere about the way in which wealthy companies have invested heavily in cheap agricultural land in poor countries. In many cases, the land sold is being used by poor families to grow food. Families are often forcibly evicted with little or no warning or compensation. Research by my old organisation has revealed that residents regularly lose out to local elites and domestic or foreign investors and to local corruption, because they lack the power to claim their rights effectively and to defend and advance their interests. There is concern that the changes in this Bill to the cost regime for civil litigation would make it almost impossible for foreign victims of human rights abuses committed by UK multinational companies to access justice in the United Kingdom.
There is real anxiety lest the abolition of success fees being payable by defendants will mean that claimant firms will not be able to run the risk of taking on cases against multinational companies. The financial risk of losing the case will be great. Even if they are successful, they may not be able to recoup all their expenses. This, of course, will be particularly pertinent when the claimants are from developing countries.
The Bill also proposes that the claimant, rather than the defendant, should pay for the "after the event" insurance premium, again reducing compensation recovered. In recognition of the significant expense and expertise required, clinical negligence cases are to be exempt. Surely human rights cases, which require similar levels of expense and expertise, should therefore be exempt. This will need our careful consideration. I think the example that I have just given brings home that, at an international level as well as within the UK, justice is indeed often the key to full mobilisation of people's potential rather than simply handouts or grants.
Access to justice is, of course, the hallmark of a decent society. Lack of convincing access is a spur to social fragmentation, alienation, instability, or worse. To talk about all being in it together is provocative when it is patently obvious that, in effect, we are not all equal in the processes of the legal system and when too many people simply cannot get access to justice at all. In our deliberations, we must be vigilant lest overall this Bill aggravates that sad reality.
8.42 pm
Baroness Mallalieu: My Lords, I must first declare two interests. I am a practising member of the criminal Bar with an almost exclusively legal aid practice. In addition, I have a daughter who has followed me into the same area of practice, despite my best efforts to stop her boarding a sinking ship. I have had 40 years'
21 Nov 2011 : Column 901
Most members of the public give credit to the 1945 Labour Government for laying down the foundations of the National Health Service. However, few people outside this Chamber remember that that same Government introduced legal aid and that, later on, reforming Labour Lord Chancellors, notably Lord Gardiner and Lord Elwyn-Jones, built on those beginnings to try to ensure that no one in our country should be denied access to justice through lack of funds. They saw that principle, as I do, as a fundamental aim of a just and civilised society and part of our very constitution.
Since then, like the health budget, the legal aid budget has grown and grown as areas of law have developed and expanded. In the present climate, every area of public spending, including legal aid, faces cuts in addition to those that have already been imposed on criminal legal aid with very damaging consequences under the previous Administration.
The legal profession has not been guilty of special pleading. It entered into the consultation with the Government fully on this Bill and identified alternative cost savings of more than £350 million in the administration of justice, which the Government have so far chosen to ignore. Those proposals would have saved money yet retained the structure of the legal aid system without abandoning some of the most vulnerable to do-it-yourself justice. But instead, in Part 1 of the Bill, the Government have preferred to throw out the baby as well. Indeed, Part 1 might just as well be titled the "slash and burn" Bill, because it is destructive and in no way constructive. What it says is, "We'll get rid of legal aid and maybe we'll give a little help to some further mediation here or a bit of encouragement to some pro bono work there".
If access to our health service was to be reduced to as many people and to the extent to which this Bill proposes to reduce access to legal assistance for those in need, there would be a public outcry and very probably a major demonstration taking place outside in Parliament Square today. We can all readily envisage a time when we or those close to us may need a doctor or a hospital, but few of us envisage needing a lawyer or having to go to court until it actually happens to us. Much of the outcry against this Bill, and there is one which will grow as its reality becomes better known to the wider public, comes from people who have seen for themselves those in need of help and the protection of the law, or with good and valid claims sometimes against government departments or large companies with big purses, who lack the means and the ability to pursue them without proper help.
Like others who have spoken, I hold no brief for ambulance chasing, for referral fees which should rightly go, or for excessive legal costs. For the reasons given by the noble Lord, Lord Thomas of Gresford, I spoke out against conditional fee agreements when they were introduced in this House, but I have to say now, "Thank goodness for them". I am very concerned about some of the steps that are proposed in a later part of the Bill which are likely to close that avenue off to many people.
21 Nov 2011 : Column 902
To remove legal aid altogether, saying that there will be nothing but self-help in so many areas of the law for those who cannot afford to pay, ultimately does not punish the greedy lawyers, who if they exist in this field will simply move on to other work, but puts the most needy outside the protection of the law. Strong cases have been advanced in a number of areas during the course of this very interesting debate. People have argued for the victims of domestic violence, for those involved in welfare claims and also in cases of clinical negligence. All of these are likely to fall outside the scope, as far as I can see, of any remedy. I would just say this. Clinical negligence is not alone. There are many other cases where medical reports and expensive preparations have to be made before a case can be begun, and I doubt very much that many solicitors will take up those costs unless the case is 100 per cent sure, which they seldom are.
As the noble Baroness, Lady Kennedy, said, we have in this country the best legal system in the world. Our judges are drawn from the top of the practising profession and they are of the highest quality. Our courts are not corrupt, they are relatively speedy and they have a worldwide reputation for fairness. But our justice system will be tarnished if it lies beyond the means of whole sections of our poorest citizens. On the figures I have heard mentioned, over half a million people a year who would now be eligible for help will be excluded. If people are left with no alternative but to grin and bear it or try to represent themselves, usually against a trained lawyer experienced in the field, where does that take equality of arms? I sat as a recorder for some years in both criminal and civil cases. A litigant in person was the one thing I most dreaded. The whole case took far longer as everything had to be explained-the procedure and the law, which usually I had no time to check. I had to help them with the evidence, with cross-examination and, indeed, with every aspect of the case. The rest of the list, which was always long, often went out of the window.
The Government's own research shows that poorer outcomes, longer delays, fewer settlements and overall a greater likelihood of injustice occurs where someone is not represented. To take away legal aid in cases where at present there is no practical alternative and to leave so many of our poorer people without help in a time of need is to strike a blow at fairness itself. We may all have to stomach many unpalatable cuts in these difficult times but we would be mad to dismantle the very structure of one of the pillars of our constitution which goes to the essence of fairness in our society and respect for the rule of law.
When we come to the Committee stage of this Bill for my part I shall support the amendment which the noble Lord, Lord Pannick, indicated that he would put down and which the noble and learned Lord, Lord Woolf, indicated that he would support, which will place clearly on the head of the Lord Chancellor a duty to secure that legal aid is made available in order to ensure effective access to justice. If we cannot stop unpleasant and painful cuts being made, we can at least stop the pillars of our constitution being knocked down in this way.
21 Nov 2011 : Column 903
8.50 pm
Lord Shipley: My Lords, my noble friend Lord Thomas of Gresford indicated that I would say something about access to justice. My concerns relate to the planned reduced availability of legal aid and the impact on the voluntary sector, in particular on law centres, which helps those who lack the resources to buy their own representation. I wish to address the issue from two perspectives-first, law centres, and secondly, the court system.
Law centres are non-profit legal providers. In 2010, Newcastle Law Centre opened 550 casework files on a mix of welfare benefits, housing, immigration, asylum and employment-including discrimination-cases. The law centre works closely with and complements the work of Shelter and Citizens Advice and it meets a gap in provision. All 550 cases were for clients on low incomes who might not otherwise have received legal representation. In addition to those 550 cases progressed, Newcastle Law Centre gave some 2,000 instances of one-off advice to individuals-people who might manage themselves or could secure advice and help from elsewhere. In that year this law centre's income was just £346,000 with nine full-time equivalent workers. Experienced solicitors were paid on average £29,000 a year and experienced caseworkers were paid £25,000 a year. That figure of £346,000 is made up of £206,000 from the Legal Services Commission, £60,000 from the Equality and Human Rights Commission, £65,000 from Newcastle City Council-I declare my interest as a member of that council-and other incidental income. Within this year's budget there has been a 10 per cent cut in contract fees already.
In England and Wales there are 52 law centres and all of them have a legal aid contract with the Legal Services Commission. The Law Centres Federation estimates that up to 18 of the 52 law centres-that is just over a third-receiving Legal Services Commission funding would close as a consequence of this Bill. These 18 are primarily or entirely funded by legal aid work. The curtailment of the scope of civil legal aid hits law centres hard as it focuses on those areas in which law centres specialise-welfare benefits, employment, housing, debt and so on. In Newcastle funding will be reduced from £206,000 to £48,000 as a consequence of the abolition of the Legal Services Commission. This cut cannot be taken in isolation since the Equality and Human Rights Commission grant of £60,000 is disappearing as well. In total at least 63 per cent-effectively two-thirds-of Newcastle Law Centre's income is set to disappear, which leaves us with the question of what will happen to those 550 cases and where those people will get the detailed help that they need.
Secondly, I want to address the issue of access to the court system. In December 2010 the Ministry of Justice announced the closure of 142 courts-93 magistrates' courts and 49 county courts-out of a total of 530 courts in England and Wales. Although the business of these courts is being transferred to other courts, the court closure plans have caused the loss of experienced caseworkers and counter staff, while simultaneously making it more difficult to access a local court.
21 Nov 2011 : Column 904
The proposed removal of public funding from private family cases-essentially, divorce, contact and residence disputes-will decimate the legal profession in these areas. Legal aid firms already typically work for only £50 an hour for this type of work. They provide excellent value for money in these critically important cases. Without their continued help, access to justice for our most vulnerable will be severely harmed and social cohesion damaged. Without that help, legal rights may not be enforced. With this modest but crucial income stream removed, many legal aid firms will withdraw from this work and many will go out of business altogether. If they do, there will be no going back. Having left this type of work, it is unlikely that firms will return to it should there be a later change of mind by government.
Initial access to proper matrimonial legal advice is often a gateway to other areas of social welfare law, including housing and debt. It may minimise conflict between separating parents and head off social services involvement and potentially expensive, harmful and disruptive care proceedings at much greater cost to the state.
Those members of the public who avoid the temptation simply to take the law into their own hands will be forced to attempt mediation. Should mediation fail, the parties will be forced, unrepresented, into a complex and technically difficult arena. While the judiciary are experienced in dealing with litigants in person, there is likely to be a flood of unrepresented litigants, which will severely impact on the courts' business and lead to delay, lack of proper presentation of cases and potential injustice. The reduction in experienced court staff will exacerbate the situation, as there will be no one to help guide the public through the procedures and forms they need to complete to prepare their own cases. Cases which might have proceeded smoothly through the system will require direction hearings, with greater judicial input, for the judge to explain to the parties in layman's terms what is required to prepare and present their cases, and final hearings will be lengthened.
Budgetary cuts have already led to a reduction in the number of sitting days for part-time judges, leading to overlisting of cases, longer adjournments and greater inefficiency in the court system. Justice delayed is justice denied, and there is a very real and serious risk that those delays will only worsen when the flood of litigants in person starts to come through the system.
The removal of legal aid as proposed could have many unintended consequences. I hope that we shall be able during the passage of the Bill to make changes which guarantee effective access to justice for all. That means access to good-quality, face-to-face, free advice from a qualified person, and representation when it is needed for those without their own resources to enable them to pursue their right to equality under the law.
8.58 pm
Lord Alton of Liverpool: My Lords, it must surely remain one of the highest ideals of any society, perhaps its very first duty, to provide equal and unfettered access to justice regardless of economic status. Justice is not a commodity to be rationed. Any legal system which depends on the amount of money that you have
21 Nov 2011 : Column 905
Specifically, I want to speak about the changes to legal aid and to success fees, and the deleterious impact which these changes will have on victims of personal injury and on claimants who have modest means. I particularly regret that the Government did not accept amendments in another place to retain legal aid in cases of clinical negligence and have chosen to ignore significant and broad-based opposition, which includes the Judges' Council and the Lord Chief Justice.
I take as my starting point the Bar Council's assertion that it is profoundly concerned about the impact that the Bill's proposals could have on access to justice, particularly for some of the most vulnerable members of society. It says that access to justice will be replaced by do-it-yourself justice; that access to justice will be seen as an unaffordable luxury; that there will be a concomitant and inevitable short and long-term decline in the availability of quality advocacy services. That point is underlined by the Law Society, which says that the Bill ensures that serious injustice will be done and that clients with physical or mental health difficulties or low levels of education may be unable to resolve their problems in the absence of support through legal aid.
Take the specific example highlighted by Tony Whitston of the Asbestos Victim Support Group, who vividly points out that mesothelioma sufferers will have to bear their share of risks by paying up to 25 per cent of their damages for pain and suffering in legal costs. That should be simply be unconscionable. Many learned jurists from Lord Bingham to Hartley Shawcross have been quoted in our debates today. Let me rely instead on the Greek philosopher, Thucydides, who proclaimed:
"Justice will not come . . . until those who are not injured are as indignant as those who are injured."
For those who have contracted mesothelioma, or who are in the position of the lady who spoke with such dignity at a meeting here last week about the life which lies ahead of her in bringing up a brain-damaged baby, we in this House need to be indignant on their behalf; indignant at the prospect that recourse to law will in future be denied them; indignant that their damages may be swallowed up in meeting legal costs. Forcing mesothelioma sufferers-many of us who have been constituency Members of Parliament will have met victims, whose life expectancy is nine to 12 months from diagnosis-to surrender as much as 25 per cent of damages, which average about £65,000, because of austerity measures or charges of ambulance-chasing or compensation culture or the bad practice of some claims management companies, is cruel and unjust.
I would particularly like to draw the attention of the House to a case involving the president of the Liverpool Law Society, Mr Norman Jones; a case which ended in the Supreme Court and is known to the noble Lord, Lord Bach. Hugely significant in the development of the common law concerning mesothelioma, the judgment has given hope to many thousands of asbestos victims
21 Nov 2011 : Column 906
The judgment in Sienkiewicz v Greif (UK) Ltd was given in the Supreme Court in March this year. Mr. Jones handled the action under a conditional fee agreement. There were CFAs for the County Court proceedings, the Court of Appeal and the Supreme Court. Norman Jones tells me that without the 100 per cent success fee payable under the CFAs, the risks of the handling this case would have been totally beyond his firm. Putting it bluntly, he says, had it lost, his firm may have been facing bankruptcy. It is not only the claimant who will suffer-so will many of their representatives. Small practices and single-handed solicitors working in disadvantaged cities and regions are likely to be the most badly affected by these proposals.
Donal Bannon, the director of the Liverpool Law Society says that Liverpool is one of the most deprived cities in Europe and that the impact of the proposed reforms will have a disproportionate effect there. I asked the Liverpool Law Society for more examples and it sent me several. They include a medical negligence case, a vicious-circle case involving an unemployed drug addict, where no one is willing to bear cost liability for an expert witness, and children's cases that they say would simply be out of the reach of anyone but the very rich without public funding. It says that the idea that mediation can resolve all these matters is delusional. One of its member solicitors says that if we want a society where only the rich can litigate, then we are certainly heading in the right direction.
This is why the Bill represents a huge assault on access to justice. Lord Justice Jackson stressed the importance of making no further cuts to the availability of legal aid, specifically in the case of medical negligence. He stressed,
- "the vital necessity of making no further cutbacks in legal aid availability or eligibility ... the maintenance of legal aid at no less than present levels makes sound . . . sense and is in the public interest ... 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".
| Next Section | Back to Table of Contents | Lords Hansard Home Page |