Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness O'Loan Excerpts

Monday 21st November 2011 Lords Chamber

[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

Tuesday 12th October 2010 Lords Chamber

[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.