Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness O'Loan Excerpts(12 years, 4 months ago)
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Lord Alton of Liverpool
My Lords, as my noble friend Lady Howe rightly said a few moments ago, other amendments later in our proceedings will return to the general question of legal aid. I will reserve some of my remarks for that later group of amendments, as my noble friend indicated that she, too, would do. However, I would be sorry to see the amendment proceed without as many voices as possible being raised around your Lordships’ House in support of what the noble Baroness, Lady Doocey, said today. As the noble Lord, Lord Howarth, intimated, this is of central concern. The noble Baroness was right about this at Second Reading and she was right to bring this amendment before the House today. I hope that the Government will reflect on the arguments that were laid before us.
At Second Reading I mentioned that an organisation of which I am a patron, the National Association of Child Contact Centres, had written to me expressing concern about the number of volunteers who are withdrawing from voluntary service because of the pressures that we are placing on them. That, in tandem with the reduction of resources being made available to Citizens Advice and other voluntary organisations because local authorities have to cut back on their funding, should cause all of us to stop and ask the kind of questions that the noble Lord, Lord Newton, properly put to us earlier. I am sure that the Minister shares many of these concerns. He would not want to see—any more than any noble Lord would want to see—people with spina bifida, autism, cerebral palsy or any number of physical or mental disabilities placed in a position where they cannot get proper or adequate representation or advice in order to pursue their cases. I hope that he will be able to tell us whether he has had direct discussions with organisations such as Leonard Cheshire Disability and Scope; and I hope that before coming to a final conclusion on these issues he certainly will.
My noble friend Lord Wigley was right to remind us at the outset of the increase in the number of complex questions that are now being placed before people who are dealing with disabilities. During my time as a constituency Member of Parliament I, like my noble friend—although we had very different constituencies; one in rural Wales and one in the heart of the city of Liverpool—was confronted again and again, just as the noble Lord, Lord Phillips, was when he worked as a volunteer in legal aid centres or on telephone lines, with complex and difficult questions. The noble Lord, Lord Bach, reminded us that these days the advice runs to more than 7,000 pages in a handbook. It is impossible to deal with these questions when, as we heard, they are incredibly complex and changing day by day, even as your Lordships consider them.
I was struck by a leading article in a Sunday newspaper that commented on the anachronistic nature of your Lordships' House. It went on to say, thank God for these anachronisms because last week in debates on the Welfare Reform Bill it was the anachronistic House of Lords that stood up for the voiceless and powerless people for whom no one else would speak. I suspect that your Lordships will have to perform the same role again.
Baroness O'Loan
My Lords, I support Amendment 32, tabled by the noble Baroness, Lady Doocey. It is generally acknowledged that attempts by government to simplify the welfare system are to be welcomed because the systems are complex and difficult. Despite the fact that legal aid has been available for appeals against decisions on entitlement, we have seen a very significant lack of take-up of the benefits to which people are entitled. Under the Government’s proposals, that legal aid will no longer be available. It is accepted by the Legal Services Board that dispute resolution and advice in social welfare law requires legal and technical competence. We know from Scope that 39 per cent of appeals against work capability assessments are upheld. Without legal assistance, people simply will not be able to meet the challenges that will enable them to retain the benefits to which they are entitled.
There will be 3.2 million people affected by the change to DLA alone, and 1.8 million will migrate from incapacity benefit to DSA or jobseeker’s allowance. People in those cases may be ill, seriously stressed, living in profoundly difficult circumstances, illiterate or incapable of dealing with correspondence. They may not recognise the importance of attending various assessments or may lose out simply because of their vulnerability. If a family loses the benefits to which it is entitled and cannot access professional help, inevitably there will be very serious consequences such as more children going hungry, not having enough warm clothes for the winter and not having heat in their homes. Parents will have to make appalling choices.
The consequence may be situations in which individuals go to tribunals in cases in which, had they received legal advice, they would have known that they did not have a valid case. A tribunal costs approximately £293. The cost of legal advice to help people in this situation is of the order of £150 to £200. As noble Lords said, there are serious concerns about the consequential increases in the number of cases going to tribunal. Put simply, there are very good financial reasons to continue to provide the current, low-cost legal help.
Lord Bach
My Lords, client A was a single mother aged 20 with two young children. She had no permanent home and was living with her mother. She had no income other than a crisis loan and suffered from mental health problems. She had been awarded employment and support allowance, but this was suspended when she was admitted to hospital and missed a medical assessment. She was then informed that she was not entitled to employment and support allowance. The Leicester community advice and law service lodged an appeal on her behalf. The DWP agreed to reinstate her claim while the advice and law service explained her medical problems to the department.
Client B was also a single mother. She suffered from bipolar disorder and received employment and support allowance and other benefits. She had debts totalling £2,500, including overpayments of benefits and arrears owed to utility companies. The advice and law service assisted her in making successful claims for disability living allowance and associated benefits, thus increasing her income by more than £100 per week. Her housing benefit had been suspended. The service challenged the decision and housing benefit was reinstated and backdated, thus avoiding an escalation of rent arrears that ultimately would have led to the loss of her home.
Both cases took place in my home city of Leicester, but there will be examples from every city, town, village and hamlet in the country. What do the two stories have in common? First, both clients were helped by the same advice agency. The crucial point is that they were helped using legal aid. Advice was given and lives were changed. If this Bill goes through in its present form, this sort of life-changing advice would probably never have been given. Those two clients who had real legal problems would not have been legally helped.
It does not take much imagination or knowledge of the world to know that events in both cases would have gone downhill fast if advice had not been given. Not just the mothers themselves but, one suspects, their children would have suffered. The state would have had to pick up the pieces at a much later stage when much more damage would have been done. If the Bill goes through, welfare benefit advice will be out of scope, not just at the beginning but at the end, too. The costs of the Leicester law service organisation that took up this case are negligible. We have heard about the small costs of each case of this type. They are tiny compared with the social and real financial costs if there had been no early intervention.
How can the Government be so stupid to think that what they are proposing can do anything but harm? I speak with all the strength that I have in support of the amendment moved so passionately by the noble Baroness, Lady Doocey, who has given a lifetime’s service to disabled people. I agree with other noble Lords who have said that her amendment is central to what we have to debate and decide on in this Bill. Her amendment would return to the scope of legal aid: advice and assistance on eligibility for welfare benefits, applications for welfare benefits, and appeals against the decisions of granting authorities. Although the expertise of the noble Baroness, as has been said around the House, is in helping disabled people, her amendments, as she would be the first to say, cover a much wider group in society than merely those who are disabled; they cover all citizens who find themselves in that position.
The amendment is identical to that tabled in another place in Committee and on Report by my party. The first time—in the Public Bill Committee—the amendment was defeated on Division by the government parties, but on Report the Liberal Democrat Members of the Public Bill Committee tabled an amendment to the same effect. Unfortunately, because of a heavily guillotined timetable, and, I am sad to say, filibustering by those who should have known better, no debate and thus no vote was held. It is possible that had the vote been taken in another place, we might not have this question quite in the form it is in today.
There is rightly great strength of feeling from all sides of the Committee about the removal of advice on welfare benefits. There is a real fear that it will lead quickly to a downgrading in the efficiency of a system that, while not perfect, has worked pretty well over 40 or 50 years, and which, crucially, has been supported by all Governments of whatever complexion and by all major political parties in this country. There is consensus that the state has an obligation to provide this sort of help for the poor, for disabled people and for those who need help—it could be any one of us in certain parts of our lives—because it is both practical and humane.
There is great concern that if the Bill goes through as it stands we will lose that and, as my noble friend said, be diminished as a country in how we conduct ourselves. That is why this issue is so central. It will drive tens of thousands of litigants-in-person to try to deal with complex issues that they might not fully understand or be able to communicate. Thousands of people will be left without a lifeline. Those who have real cases will have to join a queue because tribunals will take so long to reach their cases. Then people might find themselves completely destitute: their homes at threat, relationships breaking down, and their children helpless. There will be that drive downwards that we see so often.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness O'Loan Excerpts(12 years, 4 months ago)
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Baroness O'Loan
“Children affected by civil and family law proceedingsCivil legal services provided to a person having dependent children related to—
(a) private family law;(b) any benefit, allowance, payment, credit or pension under—(i) the Social Security Contributions and Benefits Act 1992,(ii) the Jobseekers Act 1995,(iii) the State Pension Credit Act 2002,(iv) the Tax Credits Act 2002,(v) the Welfare Reform Act 2007,(vi) the Welfare Reform Act 2011, or(vii) any other enactment relating to social security;(c) all areas of employment law not otherwise covered in this Schedule;(d) all areas of housing law not otherwise covered in this Schedule;(e) all areas of debt-related disputes not otherwise covered in this Schedule;(f) all areas of immigration and asylum law not otherwise covered in this Schedule;(g) all areas of clinical negligence law not otherwise covered in this Schedule;(h) consumer law;(i) all areas of consumer law not otherwise covered in this Schedule;(j) appeals to the Criminal Injuries Compensation Authority;(k) reviews or appeals under sections 11 or 13 of the Tribunals, Courts and Enforcement Act 2007; or(l) appeals to the Supreme Court.”
Baroness O'Loan
My Lords, I have put my name to the amendment, which seeks to restore families with dependent children to the list of those eligible for legal aid and advice in respect of a range of legal issues that can be fundamental to the ability of a family to function. The proposed changes in the Bill, and in other Bills before your Lordships’ House such as the Welfare Reform Bill, which was referred to before the break, will have a disproportionate effect on those families in our society who are the least advantaged, most marginalised and most deprived. The number of those who would benefit from the amendment is necessarily limited by the terms and conditions under which legal aid and advice is available, but they may well be the people who are least able to contemplate the complexities and mysteries of conditional fee agreements, of lawyers, and of the costs of the ATE insurance premium in cases that they may have to fight.
We in this country have to make many decisions about how we spend our money. In November last year, the Government affirmed their commitment to spend £200 million on an airstrip in the south Atlantic, for St Helena island, which has 4,000 inhabitants. As we contemplate our reasons for doing that and observe similar expenditure, we should ask ourselves: what would be the consequences of removing access to legal aid from the poorest and most marginalised families in our country? The Minister spoke earlier today of the hard choices faced by government. They are infinitely harder for those upon whom these choices and legislative changes will fall.
Some 650,000 of the poorest people will be deprived of the access that they currently have through solicitors, CAB law centres and other advice centres that are estimated to provide services at a cost of between £150 and £200 per case. Justice for All, a coalition of some 4,000 organisations, has estimated that approximately 140,000 children will be affected by the proposed measures as legal aid is withdrawn from the adults who care for them, and that at least 6,000 children will be deprived of legal aid altogether. It is also estimated that 57 per cent of those who will no longer be able to access specialist advice on welfare benefits are disabled—about 78,000 people. Where those disabled people are part of families with dependent children, or where dependent children are living in a family, they will encounter even more marginalisation as a result of the consequential difficulties of access to specialist advice.
The Coalition: our Programme for Government stated:
“The Government believes that strong and stable families of all kinds are the bedrock of a strong and stable society”.
We know from the recent Save the Children report that 45 per cent of parents living in severe poverty are considering cutting back on food to pay energy bills. Many families with very low incomes, lacking job stability because of the area in which they live, facing deprivation on a scale of which most of us have little experience and living in overcrowded accommodation, nevertheless provide a stable and strong base from which to launch their children into the world as active, contributing members of society. When they face legal challenges, they should be supported, because it is the right thing to do and also because if we do not, they may find themselves unable to maintain their family lives and will inevitably become a cost to the state.
I want to say a word about private family law. Great concern has been expressed about the fact that private family law cases have been excluded from legal aid provision. Not all cases of family breakdown are susceptible to mediation or even to the type of collaborative law project discussed earlier. There will inevitably be cases where legal aid and advice is required by families. Concerns have been raised about cases in which a child is unlawfully removed from one part of the United Kingdom to another, and about cases in which a spouse has suffered prolonged violence during a relationship or has other problems, such as extreme poverty, illiteracy or even as simple a thing as no one to mind the children. That person may not have the capacity personally to challenge the other in the courts to try to recover the child. If it has to be done before the courts, under the proposed arrangements, it could result in two spouses both personally conducting their cases in court—surely a recipe for all sorts of failure in the delivery of access to justice.
Legal aid is not being withdrawn for international child abduction cases. The effect of moving a child from Barnstaple to Belfast may be as difficult as moving a child from Barnstaple to Brittany. In such cases, the safety of the child may be at risk. There is the risk of psychological and emotional damage because of their inability to contact the second parent, or the risk that the parent who looks after the child ensures that the child has a distorted and damaged view of the action of the other parent.
To make a blanket provision excluding all private family law cases is neither proportionate nor necessary. The ultimate result will inevitably be a significantly enhanced burden on the individuals concerned and further involvement of the various statutory agencies, which carries its own cost.
We discussed benefits just before the dinner break. I therefore do not intend to say any more, other than that benefits are not something extra to a family's income, they are the family's income. They are that which enables the family to function, and there are good financial reasons to continue to provide the current low-cost legal assistance which has been available to date.
In cases of employment, as with civil litigation, access to legal aid permits a screening of cases, which facilitates the handling of such cases in a reasonably effective manner. The removal of access to pre-tribunal advice will have consequences similar to those which are being predicted consequential to the removal of legal aid for civil litigation. People will bring actions before tribunals without advice and, because of their lack of knowledge of tribunal procedures and employment law, there will undoubtedly be delays, additional adjournments and a necessity for the tribunal chair to ensure that litigants have equality of access in the absence of appropriate representation, particularly where the respondent is legally represented, as is the case in most employment tribunal applications. The cost of providing this service will inevitably rise.
There is a significant risk that the removal of legal advice in such cases could result in an awareness that employees have much reduced opportunities to assert their legal rights, with a consequent lowering of general standards of protection in employment. Those who face serious exploitation or discrimination at work may ultimately end up unemployed and on benefits. That could be the beginning of a downward spiral for many families—a situation in which today they could be successfully protected through the tribunal process.
Although housing advice is being retained for those at imminent risk of homelessness, there will nevertheless be situations in which people have serious housing benefit problems or other housing-related issues. One example given by Justice for All involves a woman who had previously attempted suicide and her 11 year-old daughter. They were living together and both were receiving psychiatric help following the suicide attempt. They were subjected to a campaign of harassment by newly arrived neighbours. There was verbal abuse, poison-pen letters, and endless complaints about the puppy which they had happily owned but which had to go because of complaints about noise. Shelter, using legal aid, was able to get them rehoused. People in this situation have been known to feel, as this lady did previously, that their only escape lies in suicide. What would this woman have done had she not been able to go to Shelter for help?
Many people in this country are living on the minimum wage, which amounts to less than £200 a week, or on benefits such as jobseeker’s allowance, where the weekly benefit is £53.50 for a person under 25 or £67.50 for a person over 25. I ask noble Lords whether they could live on even £67.50 a week, after housing benefit of course. People in this situation live from day to day and from week to week. Planning ahead is not really possible. Meeting the costs of sudden illness or a reduction in working hours, which is happening to many people across the country, is a burden too far. Pay-day loans and other debt solutions are an unwarranted and disliked solution in such circumstances. They simply tie the borrower into the debt spiral, often with massive rates of interest, and the borrowers know this but they have nowhere else to go.
Debt causes stress and illness, and it leads to conflict and tension in families. People who find themselves in intractable difficulties despite their wish to work need help, such as that offered by money advice agencies, to access benefits to which they are entitled, to make a manageable agreement to repay their debts and ultimately to avoid losing their homes. If such advice and help is not available in the early stages, the consequences are almost inevitable. The cost to the public purse of the splitting up of the family is equally predictable in terms of sickness, housing costs, welfare benefits and access to medical services.
I want to say a brief word about immigration, which I have also included in the amendment. Trafficked persons and children would have no access to legal aid under the Government’s proposals. Refugees would not have access to advice about cases involving bringing members of their family to safety, and there would be no legal aid for many immigration judicial review cases, thereby reducing the accountability of the UK Border Agency.
Clinical negligence we have discussed at length, and I shall say no more other than that the King’s College, London, report is fairly persuasive that the ultimate cost could be £18 million, consequential upon the increased costs of ATE insurance.
There are compelling reasons to provide legal aid and advice for those families who would qualify in these circumstances. Acknowledging these issues, the Government have announced £20 million of funding to support people affected by the cuts. However, this is limited to the current financial year. There will be no capacity for sustainability in this measure. CAB research, which has not been challenged, has shown that for every £1 of legal aid advice and expenditure, the state potentially saves £8.80.
It is very clear that the attempts to remove access to justice from the most marginalised and deprived of our families will cause immense damage. Families with dependent children face not only the challenge of trying to make money stretch and to remain healthy, but also the challenge of producing the citizens of the future. If those children grow up knowing that their parents have no access to justice, how can they believe that this society cares for its weak and its vulnerable? How many families will splinter under the combined weight of lost jobs, lost expectations, reduced benefits, rising interest rates, and our failure to provide them the access to justice which will enable them to be, in the Government’s words,
“strong and stable families … the bedrock of a strong and stable society”?
I beg to move.
Baroness Benjamin
My Lords, I have put my name to Amendment 33, which seeks to retain legal aid in cases where a child will be affected by the outcome of a case brought by a parent or guardian. Many children are affected by civil law problems and family cases involving their parents or guardians, even though they themselves are not the applicant or claimant. The Government have said that,
“where children are involved, legal aid will still be provided”.—[Official Report, 7/7/11; col. 343.]
However, this is not in fact the case under the proposals in the Bill. I know that the Government recognise the importance of legal aid funding in a range of cases where children’s interests are paramount, which is good news. There are, however, still areas that cause grave concerns to many charities and organisations across all parts of society, and which unfairly affect children. They are: housing; welfare; immigration; domestic violence; clinical negligence; criminal injury compensation; and education. This will probably be due to their parents’ lack of financial resources and ability to navigate the legal system. Their parents may also be hindered by disability, language barriers, poverty, and mental health issues. These are no good reasons for children to be penalised.
Almost 150,000 children under 18 will lose the civil law and family law protection provided by legal aid. They are currently helped by legal advice or representation in court to deal with problems that are no fault of their own. Children are the named party in 6,000 cases per year that will no longer qualify for legal aid, and are financially affected by more than 140,000 cases per year involving their parents. The amendment would ensure that where dependent children will be affected by a case their parents are being represented in, legal aid will continue to be available subject to existing rules on financial suitability and the viability of the case.
For welfare benefit advice, currently 135,000 advice sessions per year are funded by legal aid. Under the Bill’s proposal, however, legal aid’s support for benefit advice is being abolished. In tribunal appeals where the applicant has legal advice, 55 per cent of all Department for Work and Pensions decisions to cut benefit are found to be wrong and are overturned. About 36,000 children are affected each year who come from the lowest income families, for whom losing the benefits they are entitled to will make a significant difference to their lives. As I have often said, childhood lasts a lifetime and the adversities children go through when they are young will in most cases stay with them for ever and affect their adult lives.
Lord McNally
I promise the noble and learned Baroness that I shall go into the Lord Chancellor’s room tomorrow and say, “Baroness Butler-Sloss has asked me to ask you to clarify what you told me”. It is a very serious point. My briefing states that the police would help. She has made a relevant point about whether they would do so without a court order. I have never pretended that my knowledge on these matters was only six years out of date. In fact, my expertise is right up to date because I am learning all the time. I take on board what both noble and learned Baronesses have said, and I will try to explain to the Lord Chancellor that when I stand at the Dispatch Box I am facing a considerable amendment of experience and expertise which, dare I say it, he does not always face in the other place.
Amendment 41 is also open to the argument that it would extend to applications to prevent the child being moved by the parent with whom he or she resides and so put back into the scope of legal aid a very common type of family dispute. It is hard to estimate what effect this would have on our savings, but it would inevitably run into many millions of pounds. However, I will go back. As we know from other aspects of this thing about the rights of fathers—the noble and learned Baroness gave some of the horrific statistics about family break-up—we are touching a very sensitive area and I will raise these matters with my right honourable colleague.
Amendment 51 seeks to guarantee the availability of legal aid, subject to the means and merits test, for every family dispute that is not resolved by mediation. In considering the effect of this amendment, it is important to remember that both privately paying and publicly funded clients are already required to consider mediation before bringing proceedings. Given those existing requirements, it is difficult to see how this amendment would do anything other than maintain the status quo, retaining legal aid for all or most family cases. That would completely undermine our targeted approach to legal aid reform. We have to reduce expenditure on legal aid, but we also want less reliance on litigation as a means of solving problems. This amendment would do the opposite. If the fact that mediation had not resolved the parties’ differences were to become a route to legal aid, it would have the unintended consequence of discouraging people from paying more than lip service to the mediation process and reducing genuine engagement with it.
The Government’s position is clear. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. Accordingly, for most divorces, child contact applications or ancillary applications to divide up the family assets, legal aid will no longer be available. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend an extra £10 million on mediation, taking the total to £25 million a year.
However, we accept that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family cases where there is evidence of domestic violence and cases where a child is at risk of abuse. We will be turning to the matter of domestic violence on Wednesday. I want to make clear that funding for victims of domestic violence seeking a protective order will remain available as at present; that is, we will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, such as a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. Again, the exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as the rights to legal aid that are directly enforceable under European law.
Amendment 52 is aimed at providing legal aid for any adult party in family proceedings where a child party may give oral evidence, presumably to prevent cross-examination of the child by the alleged perpetrator. I understand the concerns which the noble Baroness who moved the amendment is trying to address here, but we are seeking to ensure funding for the most vulnerable in society. We do not think that to automatically extend funding to an alleged perpetrator fits well with this. It would be a mistake to assume that the only means of protection for the prospective witness is funding representation for the prospective questioner.
The situation which the noble and learned Baroness seeks to address can already occur in the courts. Should a victim of abuse face questioning from their abuser, judges have powers and training to manage the situation, to make sure that the court’s process is not abused and that hearings at which oral evidence is given are handled sensitively. In family proceedings, for example, the court is specifically empowered to limit cross-examination—it can have questions relayed to the witness rather than asked directly—and can use video links and intervene to prevent inappropriate questioning.
That brings me to the end of that list. I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.
Baroness O'Loan
I thank the Minister for his comments, and I am glad to hear that he will reflect further upon this very wide-ranging debate, in which the consequences of the proposed legislation have been so well articulated on all sides of the House. I am not persuaded by what the Minister has said—that it is right, necessary or proportionate that there should be a whole-scale removal of the availability of legal aid to families with dependent children, when there is such a huge range of issues of vital importance, such as basic family income.
The Government suggest that we may save £270 million, but we know already that those figures are very questionable. Careful analysis suggests that the consequences of this part of the Bill will be a much greater involvement of social services, housing authorities, welfare services, the criminal justice system, education services, and, I fear, ultimately the health service.
The Minister has not persuaded me that the drafters of this Bill have had sufficient regard to the needs of the child and of the family to which the child belongs. We may need to return to the matter on Report. For the present, I beg leave to withdraw.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness O'Loan Excerpts(12 years, 6 months ago)
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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,
“no further cutbacks in legal aid availability or eligibility”.
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. It states that there will be 25 per cent fewer claimants and that the remaining 75 per cent will lose up to 25 per cent of their compensation. This will almost inevitably, in medical cases, result in additional costs to the National Health Service. Have those costs been factored in to the overall savings said to be consequential on the proposed changes?
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.
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,
“would be adequate for the purpose of protecting the public from harm”.
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.
Referendums: Constitution Committee Report
Baroness O'Loan Excerpts(13 years, 7 months ago)
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Baroness O'Loan
My Lords, this is a carefully reasoned and well evidenced report on the use of referendums. The questions addressed by the committee are very specific and address the range of key issues fundamental to this debate.
Perhaps the most compelling conclusion is that contained in paragraph 94 of the report, which states:
“Notwithstanding our views that there are significant drawbacks to the use of referendums, we acknowledge arguments that, if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues”.
The committee went on to give us an indication of what it regarded as fundamental constitutional issues. The list was not definitive, but it was strongly indicative of the boundaries which the committee considered reflect the appropriate use of referendums.
Those referendums which have taken place within the United Kingdom since 1973 fall largely within the definition of constitutional issues, although it is questionable whether they were all fundamental constitutional issues. Perhaps the most significant one for me was the Belfast agreement in 1998, in which 71.1 per cent of those polled gave community consent for the continuation of the Northern Ireland peace process on the basis of the agreement. The road to peace was long and hard, both before and after the agreement, but the referendum and the breadth of the provisions of the Good Friday agreement formed a sound basis on which the community could embrace the proposed mechanisms for peace. Although we continue to be subject to paramilitary activity, the majority of the population are focused on the economic and social development of Northern Ireland. I would argue that that is the proper use of a referendum.
The committee noted the claimed positive features of referendums, but was persuaded by the counter arguments to recommend limitations on their use. The limitations are well articulated in the report: that referendums tend to be dominated by elite groups—we have certainly seen that; that they can have a damaging effect on minority groups; that they may block progress, but they do not settle the issue anyway; that they fail to deal with complex issues; that they tend not to be about the issue in question, particularly when the issues are very complex; that voters show little desire to participate in referendums; that referendums are costly—already today several noble Lords have mentioned the £120 million cost of a national referendum; and, most importantly, that they undermine or have the potential to undermine representative democracy.
The committee concluded that there are significant drawbacks to the use of referendums. It noted that,
“we regret … the manner in which referendums have been used, often as a tactical device, by the government of the day”.
The committee recommended that, where possible, cross-party agreement should be sought on the circumstances in which it is appropriate for referendums to be used. Yet, as has been said by noble Lords today, we do not have cross-party agreement on the current proposed referendum and I am not even sure that there is coalition Government agreement on the proposed referendums.
There are many complex issues which evoke calls for referendums. For example, in response to rising crime levels there were calls for the return of birching in the 1950s and since. There are regular calls for the reintroduction of capital punishment and for the banning of immigration. There are calls also for a referendum on the issue of assisted dying. These are profound and fundamental questions. Should we have referendums on all these issues as well?
I want to use the issue of assisted dying to explore this matter through the evidence given to the committee. There are opinion polls which regularly indicate that a majority of people would favour a change in the law on assisted dying, but that is not, of itself, a sufficient reason for changing the law. Few would suggest that Parliament's role is simply to legislate in accordance with what opinion research suggests. Obviously, public opinion has to be given due weight by legislators, but like everything else it has to be examined thoughtfully and its significance assessed. When one speaks to the disabled and the terminally ill, they use one word to describe their reaction to the possibility that the state will license killing and that word is fear. They are afraid. Despite the popular calls for euthanasia or assisted dying, none of the disability organisations, and none of the organisations for sufferers from diseases such as MND or MS, has called for it.
In reality, referendums are helpful only in telling us what individuals say in response to a given question. They do not tell us much, if anything, about the respondents themselves, about how knowledgeable they are, for example, on the subject in question and how strongly their views on the subject are held.
Like so many issues, assisted dying is a highly complex issue, transcending a number of specialised areas of expertise, including law, medicine and ethics, on which few people can be expected to have any in-depth knowledge. To say that is not to argue that the opinions of people who have an incomplete understanding of any subject should be of no account. We all have opinions on subjects about which we may know little or nothing, but we cannot seriously expect our opinions to be translated into legislation simply because we hold them. Sound law-making has to be founded on solid evidence and objective assessment as well as on public opinion. It is Parliament's role to examine the evidence on any particular issue in an objective and dispassionate manner and to reach balanced conclusions.
For example, the noble and learned Lord, Lord Mackay of Clashfern, took evidence from more than 140 expert witnesses in four jurisdictions before reporting. We also had lengthy debate on the Joffe Bill. That is quite different from the sort of spin and media treatment that issues will receive in the media, which is the source of many people’s knowledge of any subject and which will lead, almost inevitably, to a given result in the polls.
The committee examined initiative processes which allow citizens to propose statute laws, constitutional amendments or broad policy principles or to challenge statutes and amendments passed by representatives. The committee was not convinced by the arguments in favour of those initiatives.
Reference was made in the evidence to the experience in Oregon, where assisted dying was legalised, after a lengthy and complex legal process. The Act was first passed in November 1994 by a margin of 51 per cent in favour and three years later it was implemented after extensive and multiple legal proceedings. The committee heard evidence from Dr Tolle of the Oregon Health and Science University Centre for Ethics in Health Care. She said this about the vote which introduced the Death with Dignity Act.
“The day after the vote I wrote an article … In that article I described the fact that when people voted, and remember you cannot change anything, you vote yes or you vote no on an initiative, many people were voting about a very tragic experience a loved one had had in end of life care and saying, ‘I vote for anything different’. Many would say, ‘What you have said is too narrow for me, I would include poor pain management, I would include inadequacies in the hospital, I would include poor conversations and planning, I would include much more in the basket and then say yes’. In some ways it was a vote of no confidence about some aspects of end of life care”.
There is a cautionary note there on the limitations of the use of a referendum. Those limitations are well recognised by the committee in its references to complex issues.
The complexity of the arguments in relation to assisted dying is a clear example of why the committee has drawn those conclusions. Complex issues are not amenable to decision-making by a yes/no answer to a question. I am pleased, therefore, to see the government response to the report, which indicates that they will not support the wider use of referendums, but I am a little perplexed that they are holding a referendum which appears to be presenting the people with the choice of alternative voting or first past the post, with no reference to the other options—I think that there are about a dozen options for alternative voting systems—particularly the single transferable vote, which we have in Northern Ireland. It seems to me that deciding to offer alternative voting in a referendum but not to discuss issues of the House of Lords or to offer other options is not consistent with the Government's broader response to the committee's report.
In conclusion, responsibility for decision-making on why and when we need a referendum is Parliament’s, and only those decisions which are of a fundamental constitutional nature should be put to a referendum. For the rest, Parliament should continue to exercise its historic and profoundly important functions.