Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Carlile of Berriew Excerpts(12 years, 3 months ago)
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Lord McNally
How unworthy! The test of that will be what we bring back on Report, but this is not a way of dodging a debate tonight.
Lord Carlile of Berriew
I hesitate to interrupt my noble friend, but we are curtailing the debate and what he has said is very helpful. Can he assure the Committee that, in preparing an amendment, the Government have in mind the importance of the duty solicitor scheme and of there being a process of integrity in the police station, so that suspects do not choose to refuse to answer questions in interview because they are not properly represented? Can he also assure us that the Government will bear in mind the risks of evidence obtained in police stations being rejected by courts because of a failed and unfair procedure in those police stations? Those of us who started practice at the Bar would say to my noble friend that there were long periods in our early practice when we cross-examined police officers about what used to be called “verballing”. I am sure that my noble friend understands the expression. I hope that whatever amendment is introduced will ensure that we do not have to return to the bad old days before the enactment of the Police and Criminal Evidence Act 1984.
Lord Bach
The Committee will be relived to hear that I will not be making the speech that I intended to make. I absolutely agree with what the noble Lord, Lord Carlile, has just said. I, too, started practising in those days. What happened, in effect, was that guilty men got off—that is the truth of the matter—because, after a while and some notorious cases, juries were not inclined to believe on the basis of confessions alone. The Conservative Government of the time deserve enormous credit for passing one of the greatest Acts of Parliament in criminal justice, the Police and Criminal Evidence Act, which has worked pretty well, as the noble Lord, Lord Macdonald, was about to say before he was so rudely interrupted by the Minister.
Lord Thomas of Gresford
Solicitors. It is perfectly possible for a solicitor to apply to the court, as happens in civil cases, with a cost schedule which indicates how much his costs will be and what reasonable rates he will charge, and for the judge to make an order to control the whole process to permit the release of funds to fund the criminal defence. To my mind, this is an area which the Government should seize on as reducing the burden of criminal legal aid. It is unlikely that all the assets of the individual will be recovered in an application under the Proceeds of Crime Act. Accordingly, the sooner that the Ministry of Justice gets its hands on the money—in the sense that it does not have to pay out legal aid—the better.
I hope that my noble friend will take the issue seriously and address my proposals. I beg to move.
Lord Carlile of Berriew
My Lords, I shall start by making a few comments about my professional experience and then look at the broader picture. In recent years, the bulk of the publicly funded work I have done at the Bar has been in very high-cost cases, as they are called—very large fraud cases. I have seen a procession of those cases in which substantial funds have been restrained and not used for the costs of the case. Confiscation proceedings have followed in those cases where there have been convictions. In some cases, they have been long drawn-out. The funds have rarely been confiscated in full.
In one case I can think of, the confiscation proceedings lasted two or three years and, in the end, the defendant was returned £30 million, I believe, because the wrong procedures had been used by the prosecution. In another case from my experience in recent years, a defendant who was later sentenced to nine and a half years’ imprisonment and made the subject of a confiscation order in excess of £130 million remained, throughout the period leading up to and during the trial and for a considerable time after—as far as his family was concerned—living in one of the finest apartments in central London, worth many millions of pounds. Nobody was able to lay a hand on any of it. By the time the confiscation proceedings were over, such a miasma of transactions existed that that substantial property was immune from any confiscation. There are current cases, about which colleagues have told me—and without referring to any of my own current cases—in which a similar picture may emerge. This is an issue on which the Bar Council, of which I am an elected member, as I said in an earlier sitting, has given a great deal of attention. I should say that on this subject at least it might be worth listening to the Bar Council. Senior members of the Bar act for the prosecution and defence in every one of these cases, bar a very few.
The intention of the Bar Council in proposing amendments, believe it or not, was to save legal aid funding and to create a situation in which people’s own money, subject, of course, to proper controls, was used to pay for their own defences. It would create a situation in which a defendant, who at present may be able to relax while public money is expended on abuse of process hearings, dismissal hearings, disclosure hearings, and all kinds of satellite proceedings, costing him nothing, may have to control the spending on his defence. It seems a very sound principle that the defendant who has resources should have some control over the spending on his or her defence.
Furthermore, restraint orders are on the increase, as the General Council of the Bar has pointed out to the Government. In 2009-10 the CPS made 1,549 restraint orders. That had increased to 1,641 by 2010-11. The estimated value of assets under restraint in 2010-11 was as much as £744 million, every penny of it being money available to be spent on criminal defence but not so spent. Any legal advice and representation in those cases is charged to the legal aid fund. These are cases which, on the latest available figures—from 2005—caused the expenditure of more than 50 per cent of Crown Court legal aid, although the cases amounted to only 1 per cent of the cases. The average cost per case for those cases in 2003-04 was £2.6 million, with the average trial lasting 67 working days. These are very big cases, which are being unnecessarily funded from public funds.
A defendant accused of serious fraud may, for example, have £1 million on deposit in a bank account, frozen under a restraint order. An order may be made for the funds to be unfrozen to pay his children’s private school fees. I was involved in a case recently in which exactly that happened. The defendant was unable to fund his own defence but he was able to fund his son’s school fees at one of the best public schools. My noble friend Lord Thomas of Gresford has contrasted the criminal situation with the civil courts. He described the reaction of the noble and learned Baroness, Lady Butler-Sloss, to what he had told her and she certainly represented the civil court position correctly.
The Government’s response to the Bar Council’s proposal, and that of some of your Lordships, has been to argue, at least so far, that the sums restrained need to be preserved in the hope that, at some point further down the line, a confiscation order may be obtained on conviction. In November 2011 several national newspapers ran stories on revelations that at the end of March 2011, the sum of money outstanding in purported confiscation orders was £1.26—wait for it—billion. That made the front page of the Sun. I suggest to my noble friend that the hope that some money might be recovered is no substitute for meeting the up-front costs of the defence via the legal aid bill.
When confiscation orders are made, they are not used to fund legal aid but are channelled to other government departments; they go into the general Exchequer pot. This does not reflect the strain placed on the legal aid budget by high-cost fraud cases. Therefore, this seems to be—if I may be forgiven a vernacular phrase—a complete no-brainer. It is a way of saving the legal aid fund—to use another such phrase—shedloads of money. I say to my noble friend: let us wake up and do it.
Lord Bach
My Lords, I must say, having heard those two speeches, that I would not want to be the Minister tonight. Having heard what was said and having read about this from the Bar Council and the Law Society, which both put in effective papers, I will say at once that I regret that in my time as Minister we did not spot this, because there is no question that we should have acted on it. The noble Lord can make as much fun of me as he likes, but it is no answer to the points that have been made. There are times during the passage of Bills when a Government behave totally irrationally. I speak from experience. There are all kinds of examples—not that many in my case, but some. I know that the noble Lord, Lord McNally—
Lord McNally
Nevertheless, the previous Government passed the Proceeds of Crime Act 2002, which prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. The Committee will be aware that assets recovered from the proceeds of crime are already applied to offset the overall costs to the public purse, although I note the points made by the noble Lord, Lord Carlile, about the success of confiscation orders. The noble Lord, Lord Thomas, will know that when he put this idea to me, it seemed very attractive with a little Robin Hood stuff about it. However, the reason that the previous Government took action through the Proceeds of Crime Act was that in their judgment there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. In 2002, the then Government decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence. Restrained assets in these cases are suspected to be the proceeds of crime. They are not therefore legitimate money, and they should not be used to fund the costs of a person’s defence lawyers. First and foremost, the victims of crime ought to be compensated for their loss.
Lord Carlile of Berriew
Before my noble friend goes down this course, which is an accusation that defence lawyers are simply going to charge what they like and take as much as they want, will he read his own clause? Nobody is saying that defence lawyers should be able to say, “Okay, I’ll take £1,000 an hour for representing you”. It is all subject to regulation and to the kind of limitations that currently apply through the LSC. What the Minister is saying at the moment simply does not recognise what the amendment provides. Will he please answer the amendment?
Lord McNally
I think the noble Lord protests too much. I was explaining to him the motivations of the previous Government for bringing in the Proceeds of Crime Act.
Lord Carlile of Berriew
In his closing remarks, perhaps my noble friend would like to reflect upon what the noble Baroness, Lady Buscombe, said. In the last group of amendments there was some discussion of post-legislative scrutiny. It is now something like nine years since the Proceeds of Crime Act was passed and I am not aware of any post-legislative scrutiny on this issue. Might this not be the occasion for some creative post-legislative scrutiny?
Lord Thomas of Gresford
I should hate to say who should be there in sackcloth and ashes, but clearly things went wrong and the reasons that were given by the Government of the day proved to be without foundation. The situation is simply a disgrace. The quicker the Government move to carry out this review that they are having in the Crown Court, the better.
I shall withdraw this amendment, but I can assure my noble friend the Minister that I shall be pounding on his door about it while this Bill is going through and, if nothing happens, thereafter.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Carlile of Berriew Excerpts(12 years, 3 months ago)
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Baroness Kennedy of The Shaws
My Lords, I apologise for interrupting the noble and learned Lord, Lord Scott. There is no greater crime than for a barrister to interrupt a judge mid-speech, so I am covered in a white shroud as I appear before him.
I, too, support the noble Lord, Lord Faulks, in this amendment, and in the other amendments. They tend to flush out a rather important question: is it the intention that this is a continuation of the erosion of legal aid, and that the idea of turning it back is never to be considered? Are we talking about the withering on the vine of legal aid? If so, you would not have in mind the opportunity of the Lord Chancellor to reinstate legal aid or to put it back in place as a result of evidence of shortcomings. If the intention is simply to reduce legal aid inexorably, of course you would not bother having that bit as part of the powers of the Lord Chancellor.
The piece of law to which I want to speak is that of unintended consequences. We know that it is only in the experience of the absence of legal aid that we will see its impact. I want to reinforce what others have said, that it will be in the sucking of the sweetie that one will be able to work out whether the consequences are so serious that the Lord Chancellor might want to reinstate legal aid or to put it into a place where it had not previously been. I strongly urge the Minister to look again at this and to have that reciprocal part of the power so that it will be possible to put legal aid in place, or to reinstate it where it has been removed.
Lord Carlile of Berriew
Like other noble Lords, I wish to support what has been said by all speakers so far in this short debate. We are talking not merely about reinstatement of legal aid but about adding to legal aid issues that have not yet been considered. In the first debate this afternoon, the noble Lord, Lord Beecham, referred to his experience, which I share. When I and many others in this House started practising the law, there were many things that we had not envisaged that we now take to be absolutely basic rights. For example, equalities legislation, the equality of women and the right to equal pay in the workplace for equal work had barely started when I was called to the Bar in 1970. We must, therefore, keep the door open for such issues to be added to legal aid.
The final point is a question to my noble friend the Minister. Why are the Government opposed to addition or reinstatement? The only informed speculation, if I can call it that, which I have heard on the reasons for this provision is that Ministers feel that they would avoid being lobbied by outside interest groups if this were a one-way-only provision. Surely being lobbied is something that we expect and welcome in political life in this country, and Ministers of the Crown and their officials should be robust enough to resist if the lobbying lacks merit. If the Minister is to resist the spirit of the amendments this afternoon, the House would be grateful for a coherent set of reasons why.
Lord Elystan-Morgan
My Lords, I was exhilarated, enthralled and deeply flattered by the reference made by the noble Lord, Lord Thomas, to my existence 50 years ago. It is surprising that he should remember that I was there at all, let alone the hackneyed clichés that I was given to in those days.
I shall speak to this amendment, and to Amendment 23, if I may. Their effect would be to give the lie to the canard, which may well be suspected by many people, that the Government are a liquidator of legal aid. The first part of Schedule 1 is the remnant, remainder and rump of what was once a splendid system created in 1949. I make no apology for reminding the House that in 1949 the financial condition of Britain, having fought and won a dreadful war, at massive expense, was even more parlous than it is today. Yet the Government did exactly that. They sent John Maynard Keynes to the United States to negotiate, on very hard terms, a massive loan that had harsh conditions, the last instalments of which were repaid only some six or seven years ago. That was the situation and it would have been easy for the Government of the day to have said, “Justice is a magnificent thing—it is a noble ideal—but in our weakened condition we simply cannot afford it”. They did not say that, to their eternal credit. The first point to be made is that the amendments give the lie to the idea that the present Government are trying to reduce legal aid and that they are a liquidator of everything that legal aid fundamentally represents. That is neither the attitude nor the intention of the Government.
Lord Carlile of Berriew
My Lords, my name is one of those that have been put to Amendment 30. I set no particular store by this amendment, save to say that it is one of the attempts to deal with the issue that has been eloquently described by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Faulks, with whom I agree entirely.
Looking around the Committee this afternoon, I see a dozen or so Members of your Lordships’ House who had to deal with constituency surgeries on a regular basis while in another place. The noble Lord, Lord Wigley, who earlier spoke very eloquently, has had the same experience as me of dealing with constituency issues in quite a remote rural part of Wales. Clinical negligence relating to perinatal damage does not choose its location. It is just as likely to arise in rural Montgomeryshire or in rural Caernarvonshire. Indeed, I have certainly seen people in years gone by who have come to a constituency surgery devastated by what they believed had happened to their child while the child was being born in a neighbouring hospital. In the case of Montgomeryshire, this was almost always over the border in England, but that may be beside the point.
The people who come with these problems are often not only overwhelmed by the care of their children, but also by the future they face: the lifetime of having to look after a damaged child to whom of course they are generally entirely devoted and to whom they will give the whole of their life or the child’s life—whichever lasts longer. They are often, too, people from poor circumstances. In many cases, they have no experience of dealing with lawyers and are frightened of lawyers. They have read in the newspapers that the medical profession—and I hope I will not offend any of my many friends who are distinguished members of the medical profession—is chronically defensive in its approach to allegations. They will not be aware that the chair of the National Health Service Litigation Authority has made it clear that, in her view, legal aid for clinical negligence should continue because it is a way of ensuring that medical practice is carried out responsibly and with reasonable care.
It may be that in some big cities there are firms of solicitors who would take on cases of this kind pro bono, at least in the first stages, because they can afford to carry that excess. However, that does not apply in the small towns of rural Wales and the shire counties of England. People whose child has been damaged at birth may only know of, let alone know, one solicitor, who may be in a small practice somewhere in their neighbourhood. It is right that people in that situation be able to at least explore bringing legal action to see whether there is a course of action that may be effective in relation to the injury that has occurred to their child. In some cases, if disbursements can be expended on expert evidence, it will be shown that there is a strong case of negligence, and most of those strong cases will be settled in due course—often for very large sums of money.
The proposals in the Bill run the risk of depriving parents in that situation of the remedy which they will discover only if they and their solicitors are allowed to spend the money to obtain expert reports as early as possible. There are amendments which suggest that there should be co-operation over expert reports and that other measures should be taken to limit the costs. I applaud those proposals. I suggest to the Minister that the Government include, in any concessions that in my judgment they will be bound to make in due course on this subject of perinatal injury to children, ways of ensuring that money is not wasted on a multiplicity of expert reports, but that the right reports are obtained as early as possible. In my judgment, the case for legal aid at the early stage of potential perinatal damage claims is absolutely unanswerable. The Government would be seen to have lost their human face if they refused to amend the legislation to reflect those concerns.
I say to the Minister, however, that perinatal negligence is not the only area in which were legal aid to be removed great injustice would be caused. One can think of endless examples of poor negligent treatment in hospital which result in devastating injuries: the loss of limbs, the loss of eyes, brain damage, and so on. They fall into the same broad category as the perhaps emotive example of perinatal injury. I therefore suggest to Ministers that they should consider permitting legal aid to continue in cases—I do not say that this formulation is perfect but it reflects the spirit of what I mean—where a severe injury has occurred in a clinical setting. If those involved in such cases were permitted to receive legal aid, the injustice envisaged in the amendments would be resolved.
ATE insurance and CFAs have their place, which may be in some of the types of cases I referred to—but not right at the beginning. As the noble and learned Lord, Lord Lloyd, said clearly, the cost of insurance premiums for even quite small cases is out of proportion to the claim. Potential claimants dealing with severe injuries that occurred in a clinical setting may not be able even to contemplate the prospect of whatever element of cost they might face through the insurance system. It does not provide an answer to all cases.
I urge my noble friend to answer sympathetically the huge burden of representations that have been made by those who have knowledge and experience of conducting these cases or experiencing their consequences directly. They make an overwhelming case.
Lord Phillips of Sudbury
My Lords, my name is on Amendment 30A, along with that of my noble friend Lord Faulks, who spoke clearly and persuasively to it, and that of the noble and learned Lord, Lord Woolf, who apologises for his inability to be here today. He sent me a note in which he rather pithily justified the contents of the amendment—which, it has to be said, is more modest than the one so eloquently moved by the noble and learned Lord, Lord Lloyd, at the start of the debate.
The noble and learned Lord, Lord Woolf, made two points. He stated that,
“in many cases a report”,
from an expert,
“will be sufficient to produce a settlement … where this is not possible, its contents will enable solicitors to decide whether the case can or cannot be taken on a C.F.A.”.
These are two great virtues. Even those in this Committee who have had nothing to do with clinical negligence claims—I congratulate them because these cases are grisly affairs and perhaps the most unsatisfactory and anguish-making aspect of litigation—will know that the expert’s report is absolutely crucial to everything to do with the case. It currently determines whether you get legal aid, and, as the noble and learned Lord, Lord Woolf, said, in future if the reform goes through it will determine whether you get effective coverage under a conditional fee agreement.
I will give the vivid example of a case notified to me by Emma Braithwaite, a solicitor with the National Health Service Wales Shared Services Partnership. Noble Lords may not know that Wales is way ahead of us in trying to find a via media between conflicting issues in clinical negligence cases. Amendment 99A attempts to address the general picture. This particular case was finalised by the payment of damages by the NHS of £4,500. The costs, which NHS Wales had to pay, were £95,897. Roughly half the amount—£44,000—went on legal fees. The case was conducted under the conditional fee system. The balance was mainly experts’ fees.
The case was always small; it was never a case in which large damages would ever be contemplated. The initial offer from the NHS was £3,000, which as I said, settled on £4,500. In a nutshell that explains why we will spend more time on clinical negligence than many who are not lawyers can readily understand. However, it makes it absolutely clear that we need to introduce effective, practical reforms that will make this whole area of litigation fairer, cheaper and speedier. That is why Amendment 30A is in this group.
Lord Wallace of Tankerness
My Lords, it would not be appropriate to second guess, as it were, what the director of legal aid casework might decide on any individual case. Suffice to say that the purpose of having Clause 9 in the Bill is to take account of cases where the client would find considerable difficulty in presenting their own case and where there is, indeed, a complexity—these are not necessarily cumulative—in the important issues at stake. The fact that we estimate that some £6 million would be spent in dealing with these complex and lengthy cases is indicative of the fact that we do take—
Lord Carlile of Berriew
I apologise for interrupting my noble and learned friend again but does he regard it as satisfactory that cases falling within what my noble friend Lord Faulks described as a cohort should be determined not on a merits-based approach but on an administrative law approach? If an aggrieved party wished to challenge a decision of the director of civil legal aid, and what the Minister is saying applies, it will have to be necessary for the aggrieved person to show that the director of civil legal aid was Wednesbury unreasonable, which has only the remotest connection with the merits of the case. Is this really the system that the Government wish to inflict on people whose babies have suffered devastating perinatal injuries?
Lord Wallace of Tankerness
We do not wish to inflict the scenario which my noble friend indicates. The scale at which we believe the exceptional funding will be used is indicative of our expectation that exceptional funding will be available to assist these very profound cases. No one is disputing the seriousness of this. However, the amount of money that is being made available is not insignificant by any stretch of the imagination—£6 million out of the £16 million that is sought to be saved overall—which indicates that this measure is not just incidental but tries to address very directly the proper and sensitive concerns that have been raised.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Carlile of Berriew Excerpts(12 years, 4 months ago)
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Lord Carlile of Berriew
If there are circumstances in which it would be inappropriate to consult the Law Society and the Bar Council about payments to be made to their members from public funds, will the noble Lord please explain to us what those circumstances are?
Lord McNally
No, my Lords. I go back to what I have said. Neither I nor my noble friend the Lord Chancellor wants to allow the Opposition to sprinkle the Bill with “must” in this respect. We need to apply common sense to this matter. I would be as hard put as him to find a reason why one would not consult such bodies—indeed, I would add the Institute of Legal Executives to the list. Common sense dictates that a Lord Chancellor would want to do this. I will give way but I add, to help the noble Lord with his next shaft, that that seems to me the sensible thing to do.
Lord Carlile of Berriew
I am very grateful to my noble friend and I apologise for interrupting him again but this is intended to be a shaft of light and not a bolt of lightning. Can he think of any circumstances in which a failure to consult ILEX, the Bar Council or the Law Society about their respective members’ pay would not be judicially reviewable? Surely, it is right that a failure to consult would provide a certain judicial review against the Government.
Lord McNally
One of the joys of this job is answering questions on the law posed by learned QCs. I honestly do not know whether that situation would be judicially reviewable. However, we do not think that it is necessary to include “must”. We have made it very clear that a sensible Lord Chancellor would consult these bodies and perhaps if some future—
Lord McNally
No, I recognise a red rag when I see one. I will think about the point that the noble Lord made. I commend him for merging two groupings and ask him to withdraw the amendment.
Lord Thomas of Gresford
These events occurred long ago when I was in my solicitor phase. I was called “Mr” in those days. It was only when I became a barrister that I became “Esquire”, and later I became “learned”. These are the progressions one makes within the profession. Looking back to my early days, I think that the noble and learned Lord, Lord Woolf, is quite right: barristers were members of the panel that considered these applications. It was a perfectly satisfactory method of appeal, which was independent of the Government who were providing the funds. I envisage an independent panel to review the director’s decision, not an in-house person but people who could be referred to more cheaply than the First-tier Tribunal to which the noble Lord, Lord Bach, referred. I commend that process as opposed to the one put forward by Her Majesty’s Opposition.
Lord Carlile of Berriew
My Lords, having inherited a number of returns from my noble friend Lord Thomas of Gresford when we were both barristers outside London many years ago, I share the memory of the effectiveness of those committees, including the gloss placed on it by the noble and learned Lord, Lord Woolf.
I would like to point out a parallel that exists today. Those of us who from time to time undertake very high-cost criminal cases have to apply for permission to the Legal Services Commission to do certain aspects of preparation. If the commission refuses permission, for example to obtain an expert witness’s report or to make photocopies of original documents—believe it or not, it can descend to that—there is a committee made up of practising lawyers who determine whether that permission should be granted, and it works very well. If the committee decides against the applicant, he or she has the opportunity to apply for permission to apply for judicial review. That involves a paper process, initially before a judge. If permission is refused, it is open to the applicant to have an application heard before the full court, but it is far from universal that that is done.
We therefore have in the existing provisions for very high-cost cases something very similar to that described by my noble friend Lord Thomas of Gresford. I suggest to the Minister that this would be a practical way of dealing with this appeal problem that would cover the concerns of the noble Lord, Lord Bach, those who have signed his amendment and those of us who have signed my noble friend’s amendment.
Lord McNally
My Lords, the intention of the amendment is to establish a tribunal to review determinations made by the director about whether an individual qualifies for legal aid. This is very closely related to Amendment 96, which would make it a requirement for all reviews concerning determinations by the director under Clauses 8 and 9 to be referred to an independent panel.
The amendment is unnecessary. The Bill already establishes the director in a way that maintains and protects the director’s independence of decision-making in individual cases. The director is created by statute. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying out of the director’s functions under Part 1, the Lord Chancellor cannot give directions or guidance to the director about carrying out those functions in relation to individual cases. There is already provision in the Bill for review of the director’s decisions and appeals against them. This means that there is no need for an amendment to create a separate tribunal.
Clause 11(5) provides that regulations must make provision for procedures for the review of the determinations of the director under Clauses 8 and 9 as to whether a person qualifies for civil legal aid and for the withdrawal of such determinations. There is also power in Clause 11(6) to make provision for appeals to a court, tribunal or other person against the making or withdrawal of a determination in relation to civil legal aid. The Government intend to continue with the Legal Services Commission’s existing appeal and review procedures for cases determined under Clause 8—that is, those within the general scope of the civil legal aid scheme—including the use of independent funding adjudicators. Those procedures are well established and understood, and the intention is that they will include provision for internal review of decisions by the director.
Additionally, where a client is dissatisfied with the conclusions of a review on merits grounds concerning a decision on legal representation in civil and family proceedings in scope under the Bill, the client will be able to appeal to an independent funding adjudicator. As at present, there would be no appeal against refusal on means grounds, although a client can ask for their means to be reassessed.
In reflecting the current review arrangements, there will also under Clause 9 be a right of internal review for exceptional case determinations, although independent funding adjudicators will have no role in the review of exceptional funding decisions. This is because of the particular nature of the assessment at the heart of such cases, which will focus on an interpretation of the relevant obligations under the European Convention on Human Rights to provide legal aid. Exceptional case determinations, along with all other decisions by the director, would be subject to judicial review.
This is more than adequate provision to ensure that scrutiny can be applied to the decisions of the director where an individual believes that there are grounds for review. There is also provision for making regulations about the review of and appeals against the director’s determination on criminal legal aid. I refer noble Lords to Clause 14(9)—
Lord Carlile of Berriew
I apologise for interrupting my noble friend, but he referred in passing to Clause 11(6). Can he explain to the Committee the difference between subsection (5), which requires provision establishing procedures for the review of determinations, and subsection (6), which provides that regulations may make provisions for appeals to a court? Why the difference between “must” and “may” in those two subsections?
Lord Carlile of Berriew
Clause 11(5) says “must”, whereas Clause 11(6) says “may”—perhaps echoing a point made by the noble and learned Baroness, Lady Butler-Sloss, earlier.
Lord McNally
I will have to take advice on that, but I thank the noble Lord for drawing it to my attention. I sometimes wonder whether mays and musts are not spread through a Bill according to whether parliamentary counsel gets bored with the use of “must” and decides to put “may”, but I am sure there are far more legal reasons why those choices are made.
As I was saying, there is more than adequate provision to ensure that scrutiny can be applied to the decision of the director where an individual believes that there are grounds for review. There is also provision for making regulations about the review of and appeals against the director's determination on criminal legal aid.
Amendments 97 and 98 would change Clause 11(6), which concerns determinations of whether funding should be granted for any of the matters included in Schedule 1 or any excluded cases under Clause 9. These amendments would require regulations under Clause 11 to make provision for appeals to a court or tribunal against determinations made by the director under Clauses 8 and 9 and against the withdrawal of such determinations.
I have described the intention and effect of Clauses 11(5) and (6), as well as the intention to continue with the existing, effective processes and procedures currently used by the LSC in the new model, and I do not propose to cover the same ground here, although I take the point made by the noble Lord, Lord Carlile. However, requiring provision to be made for appeals to a court or tribunal against all determinations by the director would be expensive, resource intensive and likely to lead to delay in the hearing of appeals.
Clause 14 creates a power to make regulations that prescribe what advice and assistance must be made available if the director has determined that a person qualifies for advice and assistance. That largely reflects the provisions in Section 13 of the Access to Justice Act 1999, which requires the Legal Services Commission to fund such advice and assistance as it considers appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings is distinct from that provided under Clause 12 to individuals arrested and held in custody. The services we are talking about here would include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.
Although Clause 14 and Section 13 of the Access to Justice Act are framed differently, their overall effect is essentially the same. Clause 14 is intended to replace Section 13(1)(b) of the Access to Justice Act. The Bill confers a power to make regulations under Clause 14 for consistency with Section 13(1)(b) of the Access to Justice Act. That section provides that the Legal Services Commission's duty to provide advice and assistance to the individuals mentioned there arises only in prescribed circumstances, and “prescribed” means prescribed in regulations made by the Lord Chancellor.
The combined effect of Amendments 105 to 107 would require regulations made by the Lord Chancellor under Clause 14(1) to provide for appeals, but not reviews, to a court or tribunal in relation to the aspects of determination on legal aid set out in Clauses 14(9)(a) and (b).
Amendment 107 would preclude regulations allowing for appeals to any other person. The Government judge it more appropriate to allow the Lord Chancellor to make regulations, if he considers it appropriate, than to require him to do so. We will retain the existing arrangements whereby advice and assistance for criminal proceedings provided under Clause 14 are subject to a “sufficient benefit” test. In practice, this would be conducted on behalf of the Director of Legal Aid Casework by the litigator, who would provide the legal aid services. The LSC criminal contract provides that advice and assistance may only be provided on legal issues concerning English or Welsh law,
“and where there is sufficient benefit to the Client, having regard to the circumstances of the matter, including the personal circumstances of the Client, to justify work or further work being carried out”.
There is currently no appeal to a court or tribunal in relation to the sufficient benefit test. However, there is a right, set out in the LSC contract, for the person refused legal aid to apply to an independent funding adjudicator for a review of the decision not to grant legal aid. There are no plans to introduce appeals provisions immediately, although subsection (9) would allow for the introduction of provisions for reviews and appeals in the future if it were considered appropriate.
Procedures for review and appeal might, in any event, not be necessary or proportionate in establishing whether all criteria specified in regulations under subsection (5)(b) were met. For example, if a criterion was that the provider had to hold a contract to provide such services, then an appeal would not be necessary to establish whether a provider held a contract. The Government therefore believe that a duty to secure such arrangements is unnecessary and heavy-handed. In such circumstances, a right of appeal to a body other than a court might be more appropriate. The Government believe it is appropriate to have the flexibility to make regulations that could provide for either a review or an appeal, or a combination of both, and that a review or appeal might be made to a body other than a court or tribunal.
The noble Lords, Lord Bach and Lord Thomas, raised points concerning Article 6. It is intended that any arrangements made will comply with the ECHR.
On the rather interesting background to previous systems, it was the previous Administration that brought to an end what sounded like a nice little earner for the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Thomas and Lord Carlile.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Clinton-Davis
I agree so much with what has been said by the noble Lord but I disagree with his conclusion about the leader of the Liberal Democrats. I have a great regard for him as well, but in this regard he has been an absolute disaster.
I would like to say something about my own experience in undertaking surgeries as a Member of Parliament. Quite often, the people who came along to those were inarticulate and unable to divulge the essence of the case that they wanted to put before me as their MP. They had enormous difficulty in expressing themselves and, if I may say so, I think that will be what happens regularly with regard to the Bill. I am sure that the Minister who leads the Liberal Democrats in this regard will sense that the whole House has great suspicion about the purposes of the Bill and does not see how it is going to work out in practice. There is no evidence to suggest that there will be a saving of money if people cannot express themselves cogently and coherently. From that point of view, an enormous amount of time will be wasted, as has been the case in our surgeries. Of course, not everyone here has been an MP, but those who have will surely view what I have said with some sympathy. I can recall a case where it took about an hour for a person to express themselves about the situation that befell them because they were unable to understand the points that were relevant to the issue that they had to consider. In my view, the Government are therefore bound to consider an aspect that at the moment they are loath to do.
I hope that the Minister, on reflection, will come to the conclusion that we are entitled to know his views about the position that I have sought to reflect. This issue is vital. To expect people to come before courts and express themselves sufficiently coherently is impossible. I speak not only as a former MP but from my knowledge of people whom I come across quite often in my daily practice. I look forward to hearing what the Minister has to say.
Lord Carlile of Berriew
My Lords, as another former MP I echo the point made by the noble Lord, Lord Clinton-Davis. Many is the time when Members of another place in their constituency surgeries have to give advice on legal issues to constituents, and it is often the poorest constituents who come with the largest and most complex, multiple legal problems, usually relating to welfare law. There are of course many cases in which an MP can say to a constituent, “Go along to the small claims court, appear on your own behalf and use the words ‘contract’, ‘consideration’ and ‘damage’, and you will do very well”. Litigants in person can succeed, particularly before small claims courts. However, multiple, complex legal issues do not lend themselves to litigation in person. The only responsible advice that Members of another place can give in such cases is, “You’ve really got to go to a decent solicitor who understands this kind of work”—and, if you are a really daring MP, you might discriminate among the solicitors in your constituency and recommend someone really competent in the hope that others do not find out what you have said.
My reason for supporting this amendment is founded in the sympathy that I have for my noble friend the Minister. I share the view that there is a great deal of waste in legal aid and that steps can be taken to reduce legal aid in many areas. I suspect that almost every Member of your Lordships’ House believes that. However, the list of people potentially affected in this amendment is very realistic. It sets out those very people and groups who are likely to be the most adversely and unfairly damaged by these reductions.
I would have expected the Government, in setting out legislation to cut legal aid, to do the work that is implicit in this amendment. I have looked through the notes on this draft legislation and everything that has come from the Government, and I have seen no evidence of any such assessment being carried out. I have not yet read anything but a summary of the King’s College London report, but if the headlines fairly represent what the report says, they are cause for alarm. It has done the work that the Government should have done and revealed that the savings may not be there at all in certain areas, not least, critically, in clinical negligence cases, which are of particular concern to me.
I cannot see that it would be anything other than responsible for the Government to carry out the work set out in this amendment. I would ordinarily have expected them to do so to justify the cuts that they are proposing to make to legal aid. For those reasons, I feel that it is right to support at least the aims and principles of this amendment.
Baroness Farrington of Ribbleton
My Lords, I have listened carefully to people speaking in your Lordships’ House who have a much greater knowledge of the legal system than I do. I look to the Minister to answer two questions. Will it work in terms of the savings; and is it right in the impact that it will have on vulnerable people?
I bring my knowledge from a background of working with people in local government, as do many of your Lordships. In particular, I know that the groups who have been identified as being vulnerable have a fear of officialdom and official settings. I cannot be the only Member of your Lordships’ House who has had to explain to someone how to vote. Someone who has decided for the first time in their life—in their 20s or 30s—that they wish to vote might be frightened of looking foolish by going in the wrong way or doing the wrong thing. I have had constituents who passionately supported their local school during a time of falling rolls, when school provision had to be rationalised. Some of those parents would not go to a public meeting in the school because they did not know how to speak in public. They did not wish to be embarrassed.
Speaking for myself, I was overwhelmed by Preston town hall—now Preston city hall—when I went in for the first time, prior to becoming a councillor. I was overwhelmed by County Hall and thought I would get lost and not know my way around. I ask all noble Lords to believe me because this is true. I was overwhelmed by being on the Committee of the Regions and thought I might get so lost in the Brussels buildings that I would never come back. The Council of Europe was a maze of places; I could have ended up in the Parliamentary Assembly instead of the Committee of the Regions there. Your Lordships’ House was daunting beyond belief. I know that for those noble Lords who had been in another place it was not daunting. They were just coming to the other end of the same building and felt at home, but I did not. I know from talking to people all around the House that I was not the only one who was quaking at my introduction. My five siblings came to watch, partly out of loyalty but also for the joy of watching their big sister Josie being overwhelmed and frightened of doing something. That appealed to them even more than the delight of seeing what was happening.
As I have listened to this debate, it seems to me that there is a misunderstanding about whether people can represent themselves in court, or will even dare to try, when a vital matter in their lives is at stake. That worries me. The Minister has been praised by some likely and, occasionally, unlikely sources. All I ask him for is honesty. Before this Bill goes through Report stage, I want to know that those vulnerable people who I know and he knows will not be further disadvantaged by the Government’s proposals. If, against all the odds, those people are to pay the price, I will have to be convinced that the price they will pay will meet an economic necessity and not just spread the debt into other departments.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Howarth of Newport
I will come to that in a second. The noble and learned Baroness will be pleased to know that I am about to wind up. We should all be grateful to the noble Lord, Lord Pannick, for tabling an amendment that challenges us to debate the principles against which the detailed amendments should be judged.
I conclude by saying that I believe that the Government have no mandate for what they seek to do. They have no political or moral authority and no permission from the people to take away their right of access to justice and to dismantle that part of the justice system. It would be a dereliction of our constitution if the Government and Parliament were not to resolve to spend the money that is genuinely necessary to secure access to justice for all. I do not know whether the noble Lord, Lord Pannick, will press his amendment to a vote. If he does I will certainly support it. If he does not, I hope that when we come back to the issue on Report, he or others will table an amendment that fairly and squarely insists on the fundamental principle. If they were to table the amendment proposed by the Constitution Committee in all its principled directness and simplicity, that would be preferable.
Lord Carlile of Berriew
My Lords, speaking as a liberal from the Liberal Democrat Benches, it is with regret that I say that I support the amendment in the name of the noble Lord, Lord Pannick. I support it with regret because I had hoped that we would not be in this position by the time we started Committee. Noble Lords will recall the Second Reading debate at which unfortunately I was not able to be present because I was out of the country. Since that debate there has been private and public negotiation, lobbying, a great deal of journalism and an expectation that we would move from the position that was expressed from the government Front Bench at Second Reading. However, I detect absolutely no hint that any concessions will be made. Indeed, I detect an air of irritated intransigence coming from the Ministry of Justice in relation to the Bill.
I would not feel driven to vote for the amendment of the noble Lord, Lord Pannick, and to take the same position as my noble friend Lord Faulks from the Conservative Benches on the coalition side, if I felt that there was some movement in the direction of the general principle set out in the amendment. Furthermore, as the noble Lord, Lord Pannick, explained, this is not an expression of a new principle, nor is it an expression of a principle that is to be applied outside the context of this very Bill. It seeks merely to set out a principle that I believe every person in this House should embrace within the Bill’s in effect financial constraints, which are expressed in the amendment.
I, as a liberal and a Member of the Liberal Democrats, have understandably—like, I am sure, my noble friend Lord Faulks—been encouraged not to cause difficulties, not to intervene too much and not to obstruct the Government in getting their Bill through; in other words, I have been encouraged to support this coalition Government, which I would very much like to do. However, I have detected an assumption that Liberal Democrat Peers are to support the Government’s approach to this Bill, and I say to my noble friend Lord McNally that it is not sufficient to make us wait to find out later what concessions are to be made on the many representations that have been made.
I agree wholeheartedly with the Government that a great deal of legal aid money is being wasted at present. I believe that fervently, and I could identify, and indeed have identified when asked, areas in the legal aid system where savings could be made. However, arguments have been made for concessions in areas where access to legal services is required as the only way, in effect, to meet the needs of people whose rights have been adversely affected. If my noble friend wishes us not to support this amendment, I invite him to tell us when he replies to this debate the areas in which concessions are to be made and the general nature of those concessions, not the particulars. In other words, I am asking my noble friend not merely to assume our support from these Benches but to earn our support from these Benches. Without that, I am afraid that I shall remain dissatisfied and will feel free to intervene during these debates on the merits of these amendments.
Lord Ramsbotham
My Lords, I briefly support the amendment by echoing the words that have already been quoted—those of the Lord Chancellor, who said:
“access to justice is a hallmark of a civilised society”,—[Official Report, Commons, 15/11/10; col. 659.]
and those of my noble friend Lord Pannick, who has said repeatedly that access to justice is a vital constitutional principle.
At Second Reading, I regretted that the word “rehabilitation” had been replaced by the word “punishment” in the title of this Bill, and I fear that the proposed denial of legal aid to some for whom its provision is a vital part of their rehabilitation suggests that there are some in government who are allowing an uncivilised concentration on punishment to supersede their duty to protect the public. I know that this is a hybrid Bill and that Part 3 will concentrate on rehabilitation, but I wish I felt the same of Part 1.
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Lord Howarth of Newport
My Lords, my noble friend Lord Bach and the noble Baroness, Lady Grey-Thompson, have identified, imaginatively and sensitively, extensive groups of people for whom a mandatory telephone gateway would be entirely inappropriate. I hope that the Minister will reflect carefully on the apprehensions expressed this evening. The noble Baroness, Lady Prashar, and the noble Lord, Lord Shipley, both suggested that it would be a false economy to skimp on the cost of the initial advice and assistance. We could end up, perversely, having to spend a lot more because people did not receive the advice and assistance that they needed, it was not comprehensible to them, it failed to match what was appropriate for them or because they lacked the encouragement to explain themselves fully, so their cases were not taken further through the appropriate channels and their personal predicament deteriorated. We must take all those worries seriously.
The noble Baroness, Lady Grey-Thompson, touched on the question of training, and the noble Lord, Lord Shipley, talked about the need for the people who are to provide the service to be of high calibre. Those things are important. It would be helpful if the Minister would say more about what the Government envisage by way of training programmes and the level and standard of personnel who will be recruited to provide the service. We are in a familiar dilemma as we examine the legislation. It is perfunctorily articulated in extremely important aspects. We were asked to take the Government on trust. We are willing to take the Government on trust to the extent that they will explain themselves to us and we know what we are being asked to trust. I hope that the Minister will be able to be helpful to the Committee on those points.
I have two quick questions to put to the Minister. Will this be a freephone service? Secondly, does he envisage that there will be a network of telephones that people will be able to use when they make these calls? It could be a very sensitive matter for people explaining themselves to someone at the other side of the telephone gateway about issues concerning family breakdown, debt and so forth. It is not just that they are painful topics but that it could be positively hazardous for people not to be able to make those telephone calls in circumstances of privacy where they can be confident that they will not be overheard or interrupted. We need to know a lot more detail about how the Minister anticipates that the system will be made to work in practice.
Lord Carlile of Berriew
My Lords, I raise just one or two points about the notion of a compulsory telephone gateway. The first relates to legal professional privilege. Can my noble friend confirm that all communication in the telephone gateways are and will continue to be covered by legal professional privilege, so that we can avoid the risk of cases eventually arriving in court and initial conversations with telephone gateways being used for the purposes of cross-examination when the person accessing the telephone gateway may well have been lacking in confidence and have stated their case in an inaccurate way?
The second matter I wanted to raise is about the group of people—and there are many of them—who contact what I will call informed lay services. That would include people going to citizens advice bureaux, well informed councillors, Members of the Welsh Assembly in their constituency surgeries and, of course, Members of Parliament in their constituency surgeries. It would not make much sense if people who had gone through those routes were then required thereafter to access a mandatory telephone gateway. Otherwise, we will run into the ludicrous situation where people sit in those establishments with their MPs and a call is made to the telephone gateway during the constituency surgery. That would of course be an absurdity. Perhaps the Minister would explain to the Committee what is proposed in such circumstances, the ones that I have described being but examples.
Personal Injury Lawyers
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Lord McNally
Whether the question of referral fees will find its way into the Bill is a matter for the study that we are undertaking into ways that this could be implemented. However, we are trying to bring forward a range of the Jackson proposals in that Bill. As to referral fees, as my noble friend will be aware, the Legal Services Board and the Transport Select Committee advised a solution in terms of transparency. Lord Justice Jackson recommended a ban and, as I indicated, the Government are sympathetic to the idea of a ban.
Lord Carlile of Berriew
My Lords, in addition to that, will my noble friend confirm—as he indicated to me in a Written Answer to me on 23 June—that referral fees or kick-back fees in criminal cases are illegal, corrupt and should not be undertaken in any case by any lawyer?
Lord McNally
If that is what I said in a Written Answer it must be—[Laughter.] Even more so, it just sounds right.
Social Welfare Law
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Lord McNally
My Lords, under our proposals, legal aid will be retained in the highest priority housing cases, where a person’s home is at immediate risk, for homelessness, serious disrepair, unlawful eviction, orders for the sale of the home, and asylum support cases relating to accommodation. Legal aid will be available in debt matters where a person’s home is at immediate risk. We will still be spending about £50 million a year on this section of legal aid.
I have read the comments of the noble and learned Baroness, Lady Hale. I have said from this Dispatch Box that if you have a policy that is aimed at the poorest in our society and you cut the budget, of course there will be an inevitable impact. But in trying to develop this policy we have tried to minimise that impact and focus our resources on those most in need.
Lord Carlile of Berriew
My Lords, would my noble friend like to take a short journey down to the Lambeth County Court and other comparable courts in London, Manchester, Sheffield and other cities, where he would find if he spent half a day there that the only way in which to get your house repaired is to sue the local council? All other measures to obtain house repairs are not succeeding. He would then perhaps realise that limiting legal aid to quite the extent which the Government are ambitious to limit it is going a step too far.
Lord McNally
Well, I hear what my noble friend is saying. The department was faced with some very hard decisions on a £2 billion cut in a department which, as I have said before, has expenditure on only four areas—prisons, probation, legal aid and on the administration of justice. We have tried to focus where we can on areas of need. I was very interested in the editorial in the Guardian on legal aid, which was headed, “Unjust cuts”. In the course of that editorial, it said:
“It is now being examined for the eighth time since the Children Act 1989”.
The noble Lord knows very well that his own Administration were looking hard at legal aid and how to cut it. It went on:
“The need for reform, and for a more cost-effective system, is undisputed … Professionals acknowledge that too many of these cases come to court, and welcome the proposal for greater use of mediation … Change is needed. There are savings to be made”.
That is under the title of “Unjust cuts”. Those are the realities that we are facing.