Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(14 years, 5 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to the noble Lord, Lord Bach, for his intervention, and to the two noble Lords who contributed to the debate. The role of the Ministry of Justice in pro bono work is undertaken in partnership with the Attorney-General to endorse, support and facilitate pro bono initiatives. The Attorney-General carries policy responsibility for pro bono work within the Government, presumably following the initiative of the noble and learned Lord, Lord Goldsmith. I certainly pay tribute to the work that he has done for the Access to Justice Foundation. I understand that the foundation runs an awareness-raising campaign, Unlock Funds for Justice, while on the other side the MoJ is providing funds for LawWorks over the next 18 months to fund two specific projects. LawWorks is the primary referral agency for legal help provided pro bono by solicitors. Although he is not in his place at the moment, I know that my noble friend Lord Phillips of Sudbury has played a big part in promoting the agency.
Let me say first that the Government recognise the valuable contribution made by the legal profession in providing advice through pro bono work. The pro bono contribution made by the legal profession is made alongside publicly funded legal assistance. It is an adjunct to, not a substitute for, such assistance. I think that these speaking notes must have been left over from one of the briefs of the noble and learned Lord, Lord Goldsmith.
Lord McNally
My Lords, Section 194 of the Legal Services Act 2007 allows courts to make an order for costs against a losing party in pro bono represented cases, with the moneys recovered going to a prescribed charity, the Access to Justice Foundation. The Ministry of Justice works with the Attorney-General who, as I have said, has policy responsibility for this work. The legislation reduces the disadvantage to parties represented pro bono by levelling the financial risks of litigation for both sides. It has also provided a new source of funding for the strategic support and promotion of pro bono work.
I am extremely grateful to the noble Lord, Lord Pannick, for highlighting this issue. The amendment, though, is one that the Lord Chancellor would like to consider further. Perhaps I may say that considering it further does not mean kicking it into the long grass or even making it a no-brainer, but it is one that needs proper consideration, and he has asked that, in that respect, he be given time to give it that consideration. I hope that the indications of support given in the Chamber tonight, the general direction of travel of this reply and my desire to make this a full house in terms of saying nice things about amendments that the noble Lord, Lord Pannick, has introduced today will give him confidence that what I have said is not a way of putting this matter into the long grass but of asking, as my briefing note does, that the Lord Chancellor be given time to give full consideration to this important matter. I see both the noble and learned Lord and the noble Lord coming for me.
Lord Goldsmith
One issue that we have looked at is whether it would be necessary to have any orders or consequential provisions made as a result of this change. I understand that, because of the existing Supreme Court rules, which can follow the rules in the other courts, it would not be a burden on officials. That might help the consideration to which the Minister has referred.
Lord McNally
The wonderful thing about this House is that you get free legal advice. I will certainly take that back to the Lord Chancellor with the weight of the advice of the noble and learned Lord, Lord Goldsmith, behind it. With that further steer, I would be grateful if the noble Lord, Lord Pannick, withdrew the amendment.
Lord Pannick
I am very grateful to the Minister. I will of course withdraw the amendment. I am very grateful to the noble and learned Lord, Lord Goldsmith, for his support, as I am to the noble Lord, Lord Bach, for his. It would indeed be churlish of me not to understand and accept the indications given by the Minister in respect of the amendment, which is plainly receiving far warmer consideration than some of the other amendments that we have discussed. I have to say that I cannot understand what further consideration is necessary in relation to an amendment of this sort in the light of the factors to which this debate has drawn attention, but on the understanding that this matter is receiving proper attention, in the hope that the Government will be able to bring forward an amendment in appropriate terms on Report and in thanking the Minister, I beg leave to withdraw the amendment.
Lord Bach
My Lords, this is the first debate of many, I suspect, on Part 3. Part 3 is entitled “Sentencing and Punishment of Offenders”, and Chapter 1 is entitled “Sentencing”. Luckily, there does not seem to be a part entitled “Punishment of Offenders”, but we know that that was a late introduction to the Title of the Bill many months ago.
I shall be very brief indeed. The Committee has been lucky enough to hear speeches from many noble Lords, all of whom have great experience of the criminal justice system in the best possible way—by being either magistrates or experts for many years in the work of the system. We are very lucky in the Committee and the House to have them to give us the benefit of their wisdom on it.
Part 3 is very important. The Opposition certainly do not intend to be difficult in any way about this part. If we think the reforms are wrong, we will say so; if we think they are right, we will happily agree with the Government. We know from our experience of government that this is not an easy area to deal with. Sometimes Governments have to be tough in the face of what seem overwhelming arguments from Parliament; and sometimes Governments can be too tough and not take note of sensible recommendations made.
From listening to what has been said on the various amendments tonight, some sensible suggestions have been made—none of them revolutionary or radical—to change the system. Clause 61 is liked; the noble Lord, Lord Dholakia, said that he approved of it, and I suspect that that is true of others around the Committee.
The only point that I will make concerns victims. I think that the Statement made by the right honourable gentleman the Lord Chancellor in another place on Monday regarding the Criminal Injuries Compensation Authority, as it is now known, and the change of policy on some of the tariffs may have been quite disappointing for some victims and victim groups. I am sure that does not mean that this Government are in any way less committed to looking after victims’ interests than were the Government of whom I was a member. I know that all those who talk about fair play for offenders—making sure that the system includes rehabilitation for them and a chance to do better—have exactly the same feeling about victims as the rest of us.
I do not want to go into any of these amendments tonight, and I am quite sure that the Committee is with me on that. However, I do want to hear the Minister’s response to the points that have been made. I hope that he is sympathetic to these amendments. I am sure that none of them will be pushed tonight but some important points have been made and we look forward to his reply.
Lord McNally
My Lords, I thank the noble Lord, Lord Bach, for the constructive way in which he has responded. I hope that Part 3 of the Bill can draw on the experience and expertise around this House. I see a number of old friends and familiar faces in this area of policy. I am also grateful to a number of noble Lords for having the chance to discuss these issues in advance of them reaching the Committee. That has been of great help in understanding where they are coming from with their amendments.
Before I turn to the amendments, it may assist the Committee if I explain what Clause 61 intends to do. It replaces the current Section 174 of the Criminal Justice Act 2003 with a revised section that simplifies the existing duty to give reasons for, and explain, the sentence.
In response to the consultation paper Breaking the Cycle, the judiciary, among others, said that the current statutory requirements are overly prescriptive and have become increasingly complex as additional requirements have been added. As a result, the current legislation is difficult to find and difficult to understand, and in the day-to-day operation of the court can simply become impractical. The Government wanted to address these problems, which is why we created in Clause 61 a replacement Section 174. It has been simplified and shortened and consolidates the various changes made to the section since 2003. In doing so, however, we have retained the important statutory requirement placed on courts to explain the effectiveness of the sentence and, crucially, the duty to state in open court and in ordinary language, in general terms, the court’s reasons for deciding on the sentence. This means that not only the offender but victims, witnesses and the public can see that justice is being done.
A balancing act is required here. On the one hand, we need to ensure that courts make very clear why a sentence is being imposed and what the effect of the sentence is. On the other hand, we need to avoid burdening courts with unnecessary and prescriptive provisions that are very often irrelevant in particular cases and which, rather than clarifying the position, simply confuse victims, witnesses and offenders.
I turn to the details of the amendments and begin with Amendment 172A in the name of the noble Lord, Lord Ponsonby. I start by saying that I take the point made by the noble and learned Lord, Lord Goldsmith, about greater transparency. He will remember that when he was Attorney-General there was an obligation on victim care units jointly run by the CPS and the police to explain sentences, regardless of whether the case was brought by the CPS or was a private prosecution. The Ministry of Justice has also embarked on a transparency programme, publishing data about the outcomes of court cases. We hope that being able to see the progress and outcome of cases will give people confidence.
Legal Aid
Lord McNally Excerpts(14 years, 5 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the equality impact assessments lay out the best estimates of the likely costs and benefits of the reforms. The equality impact assessment considers the financial implications for not-for-profit providers, of which law centres are an example.
Lord Bach
My Lords, I thank the Minister for his reply. Everyone agrees what a vital and civilising role law centres perform around our country. Everyone agrees that early legal advice solves problems, helps people, changes lives and often saves costly and unnecessary cases going to court. The effect of taking social welfare law out of scope will be to reduce the funding for legal help by law centres by 85.8 per cent. Law centres will inevitably close and many thousands of people, often the poor and marginalised, will be left without access to justice. Even the TaxPayers’ Alliance chairman wrote:
“Almost everyone who has looked at these particular cuts thinks that too many of them will end up costing taxpayers more than they save”.
Does the Minister agree with that analysis, and would it not be an absurd and wrong result if we should end up spending more public money in order to make our country less just and less civilised?
Lord McNally
My Lords, the noble Lord will not expect me to agree with that analysis, which has been his constant theme during the passage of the LASPO Bill, and I suspect will continue to be, based on a worst-case scenario. We are restructuring legal aid and that will have an impact on the not-for-profit sector. We have never resiled from that. However, we also appreciate the benefits of the not-for-profit sector, which is why we provided £107 million in transitional funds and an additional £20 million to help the sector restructure for the new framework of legal aid and legal services that the reforms are intended to bring about. I do not accept the worst-case scenario that has been the basis of the noble Lord's arguments throughout the passage of the Bill.
Lord Mackay of Clashfern
My Lords, does my noble friend agree that the law centres are probably the most efficient and economical way of providing advice for those who are not particularly well off but who really need advice?
Lord McNally
I thank my noble and learned friend for that helpful question—he is making a habit of helpful interventions. Of course we do, and nobody doubts that. That is why, as I said before, we have provided funds for this transitional period and why my honourable friend Nick Hurd is at this moment making attempts to identify funding that will give the not-for-profit sector a better long-term future. Nobody denies, underestimates or fails to appreciate the benefits of the not-for-profit sector. The key is how it will adjust to the new structure of legal services that we are bringing about by these reforms.
Lord Howarth of Newport
My Lords, is equality before the law not a basic liberal principle? Why has the coalition abrogated it?
Lord Phillips of Sudbury
My Lords, does the Minister accept that the Law Centres Federation expects several urban law centres to close? Where are the distressed people who have hitherto got essential advice from those law centres going to go? Secondly, if the Minister is inclined to say that they can use the telephone helpline that we propose to set up, would he not accept that many of the people in most need of basic welfare law advice, which is often hugely complicated, are inarticulate and unable to access the advice they need on a telephone helpline?
Lord McNally
Again, my noble friend quite often intervenes to ask a question and then provides part of the answer. Yes, part of the answer is the electronic means of advice through telephone gateways et cetera. I do not accept his definition of the capabilities of people to get advice this way. I think he is out of date in that respect—
Lord McNally
People now use local library facilities, go online and use all kinds of ways. I repeat that we are looking at the not-for-profit sector to see how it will be able to help. We do not always preach the worst-case solutions and scenarios which, again, have been the common theme from my noble friend. We are reforming the legal aid scheme, as the previous Administration said they would. It will cause differences in structure for the not-for-profit sector. We are trying to help it to adjust in that transition and are urgently looking for a long-term solution as far as its funding is concerned.
The Lord Bishop of Norwich
My Lords, what impact does the Minister expect the cuts to have, in particular, on disabled people who rely very heavily on law centres for advice on housing and welfare issues? Might this not be a further blow to those who are already disadvantaged in making their case to tribunals?
Lord McNally
We are having this debate more widely in the Bills going through the House. Some of the worst-case scenarios will not be borne out by experience. I think that the not-for-profit sector will adjust to these new circumstances. We have argued the case in the Bills for the changes we are making, which we think will not be borne out with some of the—I put it at its most gentle—worst-case scenarios that are put forward by those opposing us.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(14 years, 5 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this has been a very useful debate, with a good deal of passion. During parts of it, I was reminded of a saying that my old mentor, the late Lord Callaghan, used to be fond of, that a lie is halfway round the world before truth has got its boots on. He used to say that 30 years ago; what would he say today, with the internet, tweeting, blogging and the rest? Perish the thought.
We are in a very difficult area. Many of the issues that have been raised today are currently before various inquiries and committees of the other place, and, indeed, in litigation, so I shall tread carefully on this. I have to tell the noble Lord, Lord Prescott, that even under the present regulations, legal aid for judicial review is means-tested, and so I doubt whether he would get legal aid even in the present circumstances.
A number of very emotive cases have been raised. I saw the publicity around the Dowler case letter. I thought at the time, and I still think, that it is almost inconceivable that the Dowlers would not have been able to pursue their case under conditional fee agreements. The idea that they would have been powerless in the case that they had is perhaps countered by the fact that the matter was settled out of court—and if reports are to be believed, at a cost of £3 million to the offending company. I am not so sure that the argument that they would have been left powerless stands up in those circumstances.
I shall deal with the various issues raised. First, it is true that the Government are looking for an opportunity to legislate on defamation. We will have to await the Queen’s Speech to see whether it can be taken in the next Session, but we have made a lot of progress on it. We have had my noble friend Lord Lester’s Private Member’s Bill, which I then took to a government draft Bill. It has now had a very good and thorough examination by a Joint Committee of both Houses for pre-legislative scrutiny, under the chairmanship of my noble friend Lord Mawhinney. In turn, that committee has produced a very good report.
We are certainly ready to look at reform of defamation, but I would say—and again, this touches on much of what has been discussed today—that we are looking to try to remove some of what has been described as the “chilling effect” of our present defamation laws on the rights to free speech, as against the rights of the individual which the noble Lords, Lord Prescott and Lord Martin, have outlined today. It is important that we get the balance right.
I say with no sense of bitterness that 10 years ago, when I tried to introduce a modest amendment to strengthen and put some backbone into the Press Complaints Commission, I was told from this Dispatch Box by the Labour Minister of the day that my proposals were the,
“slippery slope to state control”—[Official Report, 6/5/03; col. 1067]—
of the press. That is where the Labour Government were 10 years ago.
We have to get the balance right between freedom of the press, which is so important to a functioning democracy, and proper responsibility on the part of that press. I hope that one of the things to come out of the recent discussions, debates and inquiries will be a much better form of accountability and regulation that addresses the very point made by the noble Lord, Lord Martin, about the speedy and cheap resolution of damage to reputation. We have come a long way from the time when people went into libel or defamation cases expecting to come away with football pools-sized awards. That is not the case. As has been said on a number of occasions, these days the likely costs of litigation always outstrip the likely awards.
I think that there is a good and useful account on this. We have to await the outcome of the Leveson inquiry, although I strongly believe that the opportunity to reform defamation is a separate matter. I would be very worried if Leveson produced a kind of tsunami of debate that swept away the real opportunity to go ahead with defamation reform.
Let me go back to the point with which the noble Lord, Lord Bach, opened the debate, after which I will comment further on the media issue. He mentioned professional negligence claims. Under our reforms people will still be able to bring cases on CFAs in areas in which they are currently used. After all, we are returning the CFA arrangements to their original form. I am aware of concerns about professional evidence claims that can involve, for example, claims against negligent building surveyors, accountants or solicitors. We have carefully considered the consultation responses on these types of case but remain unconvinced that there is anything fundamentally different about them to justify an exemption from the general principle of no recoverability of success fees and “after the event” premiums.
The noble Lord also mentioned financial services. A number of bodies could deal with those kinds of cases, including the Financial Ombudsman. As to how these reforms would affect small businesses, the Federation of Small Businesses, which is not always ready to support the Government’s approach, supports the proposals in this Bill.
The noble Lord, Lord Beecham, frankly said that this is one of a number of probing amendments to see whether the broad architecture, which provoked the original debate today, would be changed in any way. This and a number of debates to come will test whether we are likely to change our mind and make any exceptions from that broad architecture. The Government do not see that any exception to this is justified except in relation to ATE insurance premiums in respect of clinical negligence expert reports that we have previously discussed.
I therefore resist all these amendments, as they seek to undermine the Government’s reform of civil litigation funding and costs. The current arrangements with a recoverable success fee and ATE insurance allow for risk-free litigation where claimants have no real interest in the legal costing incurred on their behalf. This has led to an increase in the costs of civil litigation and must be addressed. The judgment of the European Court of Human Rights in the January 2011 case of Mirror Group Newspapers against the UK, usually called the Naomi Campbell case, found that the existing CFA arrangement with recoverability in that case to be contrary to Article 10, on freedom of expression, of the convention. Changes are therefore necessary and the current regime cannot continue.
The Government are aware of concerns about access to justice and the ability of those with modest means to pursue claims against often powerful media organisations. However, we do not believe that it is necessary to make any special provision in relation to the costs of privacy or defamation proceedings. We will continue to monitor the position following the introduction of the CFA reforms and other reforms to the law and procedure for defamation claims on which the Government have recently consulted.
As the coalition agreement made clear, we are firmly committed to reform of the law on defamation. The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society. We want to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation. There are real concerns that the threat of libel proceedings is being used to frustrate robust scientific and academic debate, and to impede responsible investigative journalism and the valuable work undertaken by non-governmental organisations. The draft Bill, which we published last year, aims to bring the law up to date and ensure that the right balance is achieved. We are also looking at ways of speeding up court cases so as to cut the costs involved in defamation proceedings, and encouraging the use of the alternative dispute resolution in order to facilitate early settlements.
The Government are also aware of concerns about professional negligence claims, which can involve, as I have said, claims against surveyors, accountants or solicitors. We carefully considered the consultation responses in respect of the impact of professional negligence cases, but remain unconvinced that there is anything fundamentally different about them that would justify an exemption from the general principle of abolishing the recoverability of success fees and “after the event” premiums. I can assure noble Lords that the Government have considered all these amendments individually and in the round. If accepted, the amendments to which I have referred would undermine the overriding objectives of the package of reforms, which are to make the costs of civil litigation more proportionate. The Government believe that lawyers will take on meritorious cases without recoverable success fees, including in cases to which these amendments relate. It is not unreasonable for any success fee to be paid by the party entering the CFA.
In respect of the risk of an adverse costs order, different considerations apply in respect of different proceedings. The Government have said that qualified one-way cost shifting should apply in personal injury cases. Lord Justice Jackson suggested that QOCS might be considered for introduction in some non-personal injury claims as an alternative to recoverable ATE insurance. The Government are not persuaded that the case for this has been made at this stage.
Personal injury cases, as a class, are different form other types of litigation. There are hundreds of thousands of personal injury cases each year. They are typically run on CFAs with ATE insurance and involve claims by individuals against generally well resourced or insured bodies. These claims have a high overall success rate and the primary remedy sought is damages. The position is different and less clear-cut in non-personal injury claims. CFAs are very much a minority form of funding in these claims, and rolling out QOCS to these would distort the market by imposing substantial changes on all cases in a particular category of proceedings for the benefit of a small number of claimants.
The Government will examine the experience of QOCS in personal injury claims before considering whether it should be extended further. Different considerations apply in different types of case. Environmental claims, for example, typically involve more than one claimant who can contribute towards the costs. “Before the event” legal expenses insurance may be available in relation to the provision of goods and services.
I have listened carefully to the arguments advanced in respect of exceptions in individual areas covered in this group of amendments. However, I am concerned that making these exceptions could undermine the benefits of these reforms. I therefore urge noble Lords not to press their amendments.
Lord McNally
My Lords, like the noble Lord, Lord Beecham, when speaking to the first series of amendments, the noble Lord, Lord Bach, continues to jab away at the broad architecture of these reforms. In these reforms we do not accept every last jot and tittle of Lord Justice Jackson’s report but, in the main, we accept its major thrust. It is a package of reforms and we are concerned not to dismantle it by accepting this series of amendments. The reasons for that are clear. The Jackson report was motivated not by government initiative but by judicial demand. Both the Master of the Rolls and the Lord Chief Justice wanted to look at a dangerous inflation in civil costs which in their view—a view that we share—was having an impact on access to justice. Whether there was or is a compensation culture, we can debate for a very long time, but we know that in many parts of the law there has been a quite worrying inflation in costs. A number of examples given by noble Lords on all sides suggest that action is needed. The Official Opposition’s view on the Jackson report was not clear from the remarks of the noble Lord, Lord Bach—he said that he did not agree with this bit of it. The noble Lord, Lord Beecham, looks like a greyhound in the traps, but perhaps at the end of the debate he can tell us his party’s general approach to Jackson.
Lord Beecham
My Lords, before my noble friend answers, perhaps the Minister can say which bits of the Jackson report he is in favour of, because there is quite a lot of it that he has not adopted.
Lord McNally
The bits that we are in favour of are in the Bill.
As someone who firmly supported the Hunting Act, I am not sure that I am allowed to use the term “shot my fox”, but the arguments that I was intending to deploy were very accurately read out by the noble Lord, Lord Bach. They remain the same as those which my honourable friend Jonathan Djanogly deployed in the Commons—that is, under our reforms people will still be able to bring cases on CFAs in areas where they are currently used in judicial review. After all, we are returning the arrangements to their original form. Legal aid is being retained for the vast majority of judicial review cases that are currently funded. Legal aid recipients will continue to benefit from costs protection. Although I understand what the Opposition are doing in testing various parts of the architecture of the reforms, I can only say again that we will resist the amendments, as they seek to undermine the Government’s reform of civil litigation funding and costs.
I have listened carefully to the arguments advanced in respect of exceptions in individual areas. However, we should not revisit arguments that have already been fully and properly aired in these debates. I am concerned that making the exceptions that the amendments advocate would undermine the benefits of our reforms. I therefore urge the noble Lord to withdraw the amendment.
Lord Pannick
Does the Minister accept that claimants in judicial review cases will not be able to pay success fees, because victory in a judicial review almost never results in the payment of damages to the claimant?
Lord McNally
Yes, I would think that that was true. I understand that such cases are extremely rare. A success fee would not be the enticement to take the case.
Lord Bach
My Lords, I thank the Minister for his response. When I first accused the Government of not having accepted the Jackson package, I was very careful to say that whatever Government were in power would probably not have accepted every word of such a major report. However, it is interesting what this Government have accepted and what they have left out. In short, they have left out any defence of legal aid, whereas Lord Justice Jackson was very concerned that there should be no more cutting in civil legal aid. That is also very much the view around the Committee on Part 1 of the Bill as well as, in relation to Part 2, in the case of clinical negligence if nothing else. We think that the Government have picked the wrong bits of Jackson to support, and they have left the best bits out, which is rather careless of them.
Three senior costs judges, who deal with some of these issues daily, said in their submission on the Jackson report:
“we do not agree with the proposals set out in the Report ... The CFA regime has undergone many changes and improvements since implementation. Having taken a decade for these to have been achieved, now is not the time to made radical changes which give no guarantee that access to justice at reduced costs will be delivered under Jackson”—
they go on, perhaps rather unfairly, to say—
“where it failed under Woolf”.
That was their view. So there is a difference—a justifiable difference—of opinion, both in this Committee and outside this Committee among those who have to decide these cases.
The Government should be warned that they should not just stick so rigidly to their formula for changing without looking at individual areas of the law. Flexibility is important, as well as having rules. If the Government are just going to say no to every exception to Jackson, I fear that, certainly in some areas, the reforms that will then go through, if the Government get their way, will be disastrous for civil justice in this country because they will mean that so many people will not be able to get justice who are currently able to do so.
This is a probing amendment, but it also has some real feeling behind it. However, of course I beg leave to withdraw the amendment.
Lord Bach
My Lords, we on this side very much support the amendment, in very much the same terms as the noble Lord, Lord Thomas of Gresford, has moved it. As he said, insolvency practitioners are appointed to help insolvent companies sue directors in order to recover money for creditors of the insolvent company. The companies are insolvent; they cannot pay for a lawyer—they have no assets. The practitioners’ job, which is sometimes a difficult one, is to recover as much money as possible. It is always in the public interest that they are able to do so, and I am sure that the Government would agree with that proposition. As both practitioners and regulators have warned, alongside HMRC and the Insolvency Service, these sorts of actions will be severely compromised in future. As the noble Lord has just told the Committee, HMRC is a major creditor, if not the major creditor, to many insolvent companies, so the public purse will itself be hit to the tune of £200 million. I remind the Minister that that is more than half of the total legal aid cuts and enough to pay for social welfare law at least twice over.
The Institute of Chartered Accountants for England and Wales, a very respected body, said:
“we are deeply concerned that the legislation in its current form could have a harmful impact on the insolvency process. Unless claims brought by insolvency practitioners are exempted, this legislation would prevent potential recovery from incompetent or fraudulent directors or bankrupts, which will result in greater losses being borne by innocent creditors when a business is made insolvent … Those creditors are usually small businesses or HMRC, who would lose potential tax receipts, a cost ultimately to the taxpayer. Furthermore, fraudulent directors and bankrupt sole traders would keep the gains they made from irresponsible management of their business”.
That is why Revenue and Customs and the Insolvency Service have lobbied the Ministry of Justice for an exemption, but to no avail.
Let me take noble Lords to the Guardian newspaper on 6 June last year, when it reported:
“A spokesman for the Ministry of Justice said: ‘We are considering the impact of abolishing CFA [conditional fee arrangements] recoverability in insolvency and related proceedings. These proceedings can bring substantial returns to creditors, including Her Majesty’s Revenue & Customs. We are therefore discussing the specific implications with a view to reaching a satisfactory conclusion.’ … A spokesman for Revenue & Customs said: ‘HMRC is in discussion with the Ministry of Justice about the implications of the Jackson Report but is unable at present to comment further on this matter’”.
The Minister can comment further on this matter in a few minutes’ time. What was the outcome of the negotiations between the Ministry and HMRC? We have heard why these cases need protection, but nothing on how this will be achieved. If the Minister is to support what is contained in the Bill, he should tell the Committee how he intends to protect against the arguments used by the noble Lord, Lord Thomas of Gresford, and myself in moving and speaking to the amendment. This is a good—if not the best—example of how wrongdoers will benefit at the expense of victims. In this case, it is even more serious, because the victims are us, potentially—the taxpayers and people of this country. That is why this particular amendment supports the proposition that a one-size-fits-all package is not right for the civil justice system and that a degree of flexibility needs to be built in. If the Government maintain their position on insolvency, the wrongdoers will gain and the creditors will lose. I look forward very much to hearing how the Minister defends this particular proposition.
Lord McNally
My Lords, I feel as any Minister would, who sees an amendment signed by the noble and learned Lord, Lord Mackay, and noble Lords, Lord Thomas and Lord Bach—the names sound like one of those formidable halfback lines from a 1950s soccer team. I know that it would be the wrong game for the noble Lord, Lord Thomas.
The amendments refer to both success fees and ATE insurance in insolvency. Just for information, Lord Justice Jackson recommended the abolition of recoverability of success fees and ATE insurance premiums in insolvency proceedings. However, we have already established that we do not simply use Lord Jackson as a defence in all matters. As the Government indicated in the other place, we are aware of the specific concerns around the impact of the CFA changes in insolvency cases. The use of CFAs in these cases, under the Insolvency Act 1986, can bring substantial revenue to creditors, including Her Majesty’s Revenue and Customs.
I cannot go a great deal further. The noble Lord, Lord Bach, has now introduced a new system whereby he makes my speech and his own speech and leaves not a lot for me to say. I am nevertheless grateful that on the record we had speeches from the noble Lord and from the noble Lord, Lord Thomas, setting out the problem in probing amendments, as they have acknowledged. As the noble Lord, Lord Bach, revealed in his speech, there are ongoing discussions between HMRC and MoJ, and the Government are considering the position in respect of insolvency proceedings. Until we have come to a conclusion—
Lord McNally
They are ongoing. I admit that sounds like that song “Reviewing the Situation” from “Oliver!” but I have no doubt that the good relations between the MoJ and Her Majesty's Revenue and Customs will produce a satisfactory result, which I will report to the House at the earliest possible moment. In the mean time, I request the noble Lord to withdraw his amendment.
Lord Thomas of Gresford
While I am most grateful to my noble friend for that reply, it would be helpful for these negotiations to complete before we have to vote on this matter on Report—as we undoubtedly will, along with the people who have signed it. Can I suggest to my noble friend that he talks to whoever he has to in order to get a move on? It seems a no-brainer to me that this amendment should be accepted and the quicker it is resolved, certainly before Report, the better.
Lord Stevenson of Balmacara
My Lords, this has been a very interesting debate that has been well supported all round the House. I hope the fact that so many noble Lords have spoken in support of these amendments will weigh on the Minister when he responds.
I would like to spend a few minutes talking about the dichotomy between the rhetoric that we have heard from the Government about the importance of human rights, which we support, and the impact of the measures before us. Under the existing regime, it is already extremely difficult for the cases that we have talked about to be brought in the UK. In the past 15 years, only nine or 10 such cases have been brought. However, these cases have had a significant impact not only on the lives of thousands of people directly affected but—this is important—on corporate practices and international norms in business and human rights.
When the Prime Minister met the Colombian President Juan Manuel Santos in London on 21 November, we were delighted to hear him say:
“Governments of the United Kingdom and Colombia reaffirm their shared commitment to respect, protect, and promote human rights. We reaffirm our commitment to uphold the human rights treaties and agreements we are signatories to, in particular the Universal Declaration of Human Rights, and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights”.
I am sure the Minister and his Government want to match reality to that rhetoric. The problem is that, possibly as a result of an unintended consequence or possibly of trying to get one cap to fit all cases, the considered view from all those involved in this area is that the practical result of the proposed changes will be that it will be almost impossible for poor individuals and communities from the developing world to pursue justice in UK courts. We think that this is wrong in principle but also because of the message that it sends to multinational companies based in the UK. Our amendments would create an exemption so that vulnerable victims of human rights abuses in the developing world would still be able to bring cases to the UK. There is no evidence of any need to address the possibility of a spate of spurious claims here; the truth is that it is already very difficult to bring these kinds of cases against UK-based companies in our courts.
Amending the Bill will be essential if the UK is to meet its commitments on business and human rights and to avoid giving the impression that somehow the Government have gone soft on the way they wish to treat business that causes abuse overseas. The rhetoric is good. We know that the Government have consistently supported the UN “protect, respect and remedy” framework for business and human rights and the guiding principles developed by Professor John Ruggie and adopted by the UN in June 2011. In those framework and guiding principles, Principle 26 explicitly states:
“States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing human rights-related claims against business, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy”.
As recently as December 2011, the UK submission to the UN Working Group on Business and Human Rights stated:
“The United Kingdom has placed human rights as central to and indivisible from the core values of British foreign policy. We believe the potential of business to impact on the human rights of individuals worldwide has only been fully recognised in recent years. The endorsement by the Human Rights Council of the UN Guiding Principles on business and human rights in June 2011 marks a high point of international consensus on the issue”.
In light of the praise for Professor John Ruggie’s achievements, it is vital that we keep open the chance of mounting human rights actions in the United Kingdom. The reality of today’s world is that global companies play an increasingly important role and can impact on almost all aspects of our lives. While many UK transnational companies act responsibly, it is important that in situations where human rights abuses occur abroad, poor and vulnerable victims can still seek justice in our courts.
As the noble Baroness, Lady Coussins, said, the Government have already made an exception in the Bill for ATE in clinical negligence cases. Is it not possible to do the same for this limited set of cases? As has been mentioned, the mover and supporters of the amendment met last week the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord McNally, who I thank for their time and courtesy in listening to us. I came away from the meeting feeling that there was a willingness to find an accommodation on this issue. If the Minister is happy to signal his willingness to continue those discussions, I am sure that there will be a way of resolving the differences, and I look forward to having a chance to do that.
Lord McNally
My Lords, I pay tribute to the noble Baroness, Lady Coussins, and her record in this area. Looking down the list of noble Lords who have spoken in this debate, I see the names of many with whom I have been shoulder to shoulder in many debates. I do not think that there is any division between us on that.
To address the point made by the noble Lord, Lord Stevenson, about the Government’s rhetoric on human rights, I shall, to quote Tony Blair, “leave it to history” to make judgments about the coalition Government. However, one thing that I am absolutely proud of is that in a time of great austerity the sustaining of our aid programme and the follow-on impact on human rights around the world will always be to our Government’s credit—as, too, will their decision to implement the Bribery Act, to take the lead in international anti-corruption campaigns and to be strong advocates for human rights around the world. There is more than rhetoric in this Government’s record on this issue.
I talked with the noble Baroness, Lady Coussins, and the noble Lord, Lord Stevenson, on these issues and, as they know, I am not convinced that the amendments are necessary or appropriate. Let me try to explain why. The Government believe that it is still possible to bring claims against multinational companies once our changes to CFAs are implemented, but the costs involved will be more proportionate to the sums at issue. The proposers seek to address not the validity of the claims but the iniquity of a system that can allow legal costs to escalate to significantly more than the damages at issue.
It is worth emphasising at this stage that the current system of recoverable success fees and recoverable ATE insurance premiums, with the consequence of high civil costs, is not seen in any other jurisdiction in the world. However, I should emphasise that while we should do all we can to ensure that UK business continues to flourish abroad, this will never be done at the expense of violating any of the rights and laws of the host country. The Government are committed to ensuring that UK companies continue to conduct themselves to the highest standards, especially when carrying out trade and transactions in other countries.
CFAs will continue to be available, but the Bill also extends another funding option, to which the noble Baroness, Lady Coussins, referred: the Government are making available alternative methods of funding—such as the use under Clause 44 of damage-based agreements, DBAs, which could be used to fund group actions against multinational companies. Some say that our proposals will decrease the number of these claims, while others, including the Confederation of British Industry and some American companies, are concerned that DBAs will in fact increase the number of such claims. The Government believe that they have the balance right between protecting access to justice and making costs more proportionate. Our aim has been to ensure that litigation is available to stop corporate harm.
It has been mentioned that we were among the champions of the Ruggie guidelines, and it is true that the Government strongly support the UN guiding principles on business and human rights that were developed by Professor Ruggie. We co-operated closely with him on his mandate and fully support the international working group that has been established to take his work forward. I was pleased that I was able to announce that support immediately after that report was published.
Lord Judd
I am very grateful to the noble Lord for giving way and I would not question at all his personal sensitivity to the issues that have been raised. Over a lifetime, I have known that he cares deeply about these things. However, can he assure the House that in their considerations the Government have taken fully into account one of the complexities that have arisen since 2009, when the Rome II regulations were introduced? They mean that the damages are related to what normally prevails in the country in which the harm occurred, whereas the costs may well be related to what applies within the United Kingdom. This means that there is a huge obstacle to taking on a case of this kind because of the risks involved and what the bill might be if the costs had to be met by those endeavouring to make the claim.
Lord McNally
I am aware of that. As the noble Lord said, that issue was to a certain extent present in the Trafigura case, where 30,000 people each received £1,000 and the lawyer got—or tried to get— £100 million.
Lord Elystan-Morgan
I am most grateful to the noble Lord for giving way. Without detracting in any way from the point made by the noble Lord, Lord Judd, is not the difference between the damages counted and the costs incurred in many cases indicative of the inequality of arms between the situation of the claimants and that of the defendants, many of which are multinational companies with a gross turnover per annum greater than that of 50 of the least privileged countries in the United Nations?
Lord McNally
Part of the problem of answering a debate such as this is the horror stories, abuses and problems raised about the capability of multinational companies to misbehave. No one denies that. I have spent most of my life in politics being greatly suspicious of many such operations. We cannot funnel that down to a change in an area that, it has been admitted, has covered 10 cases in the past decade. I understand noble Lords’ commitment to take on those abuses, but to suggest that the English legal system is in any way able to meet the point is to put too much of a burden on it.
As I told the noble Baroness, Lady Coussins, I do not believe that such cases will not be brought because often the motive is not profit; it is many of the motives that have been explained tonight. What is at stake for the companies concerned is often not money but reputation. I do not believe that we are creating an insurmountable barrier to take cases where English or Welsh companies are at fault, but I will draw the debate to the attention of my right honourable and learned friend the Lord Chancellor, because the speakers list should be respected. My right honourable and learned friend and I believe that the fear of the effect of what we are doing is exaggerated. The opportunity that the Bill offers for other forms of financing of litigation is underestimated, but I will ask him to read the debate, look at the arguments deployed and consider the amendments. For the moment, I ask the noble Baroness to withdraw her amendment.
Baroness Coussins
My Lords, I thank all noble Lords who have contributed to the debate and the Minister for his reply. I remain convinced that it would be much better to avoid an undesirable, unintended consequence than to worry about adding something to the Bill that might not be 100 per cent technically, strictly necessary. If the lawyers behind CAFOD, Oxfam and Amnesty are convinced that the amendment is necessary, the Government should take them seriously. I look forward to the Minister's response after he has spoken to his colleagues. This issue will not go away, but, for now, I am happy to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(14 years, 5 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it is a long time since I pointed out that we had a whole series of amendments, each taking a different aspect of the Bill’s architecture, suggesting that on this case the Government should make an exception. Of course, had we conceded all afternoon, nothing would be left of the Government’s architecture. I listened to what the noble Lord, Lord Bach, has said and sometimes I feel that he is a little harsh on the legal profession. I cannot believe that lawyers would be so unwilling to take cases in the circumstances of what will be left in place after the Bill becomes law.
Let me make one personal point about mesothelioma. My sister Betty died of this disease. I do not need to hear the graphic descriptions that have been used in this House because I saw it with her. The family did not decide to take legal action, although undoubtedly she worked with asbestos two times in her life. Some 50 years ago she worked in an ICI plant. She also worked in what were then the asbestos-constructed Ministry of Pensions’ prefabs at Norcross. But the chance of providing proof in either case was very vague. Quite frankly, the family felt that no amount of litigation, proof or anything else would bring Betty back. She was dead. But that was a personal decision of the family.
Part of this debate turns on our industrial heritage and cleaning up the mess. Of course, I agree entirely with what the noble Lord, Lord Bach, said, and I see the noble Lord, Lord Monks. The Health and Safety at Work Act is about this issue and workers working in dangerous and dirty conditions. I was born on an ICI estate and I sometimes shudder at the thought of what went on as normal practice in chemical factories 40 to 50 years ago. Certainly, these cases are extremely difficult.
Before we put too much faith in lawyers, I was very proud to be involved in the Labour Government who gave the miners compensation. But, my God, was there not some abuse of that by the lawyers?
Lord Martin of Springburn
I know that the hour is late. There might have been abuse from lawyers but there was no abuse from the victims.
Lord McNally
I never said that there was. But I can say to the noble Lord, Lord Alton, that I am quite sure that the insurance industry has been lobbying on this Bill. However, I can also tell him that the lawyers have not been too bad at lobbying either.
Lord Alton of Liverpool
I have no brief from either the insurance industry or from lawyers. I simply make the point that this is not about money from the public purse or money being abused by this or that group. This is treading dangerously close again to the arguments about people manipulating or misusing the system, or claiming compensation to which they are not entitled. Surely the noble Lord would agree that, because of the very moving personal circumstances which he described, and as the noble Lord, Lord Bach, has said, no one can fake these circumstances where mesothelioma is involved.
Lord McNally
I am not treading anywhere near that. I am saying that we are trying to bring a structure to the civil side that squeezes out of the process what has been considered by the senior judiciary, and by Lord Justice Jackson when he looked at the issue, to be an inflationary element of the process. Listening to some speeches, it sounds as though conditional fee agreements would not be possible; they will be. It also sounds as though 25 per cent of the compensation has to go on the success fee. It is entirely discretionary. Lawyers could refuse to take a success fee. In fact, I think it was my noble friend Lord Thomas who said earlier that we may well find that lawyers make a selling point of not taking success fees. This is not a hard, uncaring Government picking out difficult cases. They will go ahead and they will be won. The Government are ready to take steps to try to help people in this area.
In April 2011, supported by the Government, the insurance industry set up the Employers’ Liability Tracing Office. ELTO provides an online resource through which claimants and their representatives can search for the relevant policy, reducing the time and costs that are often involved in such searches. This difficulty was referred to earlier: namely, the difficulty of identifying and finding the employer’s insurer. ELTO provides claimants with access to an electronic database of EL policies through an online inquiry facility, substantially enhancing the previous tracing service that relied on insurers checking against their own policy records.
With effect from 1 April 2011, the Financial Services Authority introduced rules requiring an EL insurer to publish tracing information for all newly issued or renewed EL policies, and for old policies on which new claims are made. Insurers may use ELTO to satisfy their own requirements or publish details on their websites. To date, more than 98 per cent of the active EL insurance market has joined ELTO, as have a large number of insurers in run-off who are not covering current employment but are still liable or potentially liable for past cover. Most of the tracing information for new policies and some historical policies is readily accessible on the ELTO central database.
The FSA is continuing actively to consider how best to address the issue of other historical policies. Some insurers have voluntarily included additional historical policies on the ELTO database. The answer is unlikely to be as simple as requiring details of all historical policies to be put on the database, as these are not always readily available, especially when searching archives from over 10 years ago. While ELTO will ensure that in the future more people can obtain civil damages for industrial diseases, it may still be very difficult to trace historical policies, especially for those individuals suffering from long-tail diseases such as mesothelioma. We understand the urgency of the situation in which injured people, after all other avenues have been exhausted, are still unable to find an insurer to claim against, and we are working hard to see what can be done for them. We are still working closely with all stakeholders to see what can be done to compensate people with mesothelioma who are unable to claim civil damages because their employer no longer exists and their EL insurer cannot be found.
If, for any reason, someone who contracts mesothelioma is unable to bring a civil claim because they cannot trace their employer or the relevant employers’ liability insurance policy, a number of other possible routes of redress are available through state schemes operated by the Department for Work and Pensions. I take the point made by my noble friend Lord Avebury about the discussions going on at the DWP. The department is continuing to work with stakeholders to see what can be done to compensate people with mesothelioma and similar conditions who are unable to claim civil damages because their employer no longer exists and the employers’ liability insurance policy cannot be found. In the light of this, I am not persuaded—
Lord Wigley
Is the Minister considering using the 1979 Act, which was set up for cases where it was impossible to find the previous employer, as a basis for a formula of compensation, or is that not practical?
Lord McNally
I would have to take advice on that. On that and the point raised by the noble Lord, Lord Avebury, I shall write to the noble Lords, as well as those who have taken part in this debate, to update them on where discussions in DWP have reached.
It is very difficult to overestimate the personal damage suffered by the individuals who have been highlighted. The Government are trying to reform the civil legal system in a way that retains access to justice. It was said that litigants would be responsible for defendants’ costs if they lost; this is not true. QOCS will apply in this kind of case, so that litigants will not be susceptible to defendants’ costs.
It is a difficult area, but our overarching aim is to create an architecture which squeezes inflationary costs out of the civil justice system. Without our reforms, high and disproportionate costs in civil litigation will continue.
Lord Bach
I was not claiming that losing claimants would have to pay winning defendants’ costs—I accept that QOCS would come into consideration; I was saying that a losing claimant would have to pay their own disbursements in those circumstances, which is a different issue. That was the point that I was trying to make.
Lord McNally
I take that point.
I think that I have said all that I am going to say on this. It is a tough case, but it would be just another concession within the range of issues that we have discussed today. The noble Lord, Lord Bach, almost gave the game away in saying, “Well, you’ve made the clinical negligence concession; why can’t you make this concession?” It would then be another, and then another, and then another, and Jackson would disappear.
Lord McNally
My Lords, I do not think that it is analogous. The other actions that the Government are taking address some of the issues that have been raised tonight. We are exploring other initiatives that we can take. I do not think that it is necessary, therefore, to make the exception that is being argued for. It is admittedly being argued for very powerfully, but it is not enough to convince the Government.
Lord Pannick
Does the Minister seriously dispute that the provisions in the Bill will at least to some extent damage the ability of claimants in this area to obtain legal advice and assistance and will make it more expensive for them to do so? If he does not, is it really fair to impose these provisions?
Lord McNally
I do not know how lawyers will behave. I hope that they will behave a lot better than in some of the worst-case scenarios. People who go into litigation, even in cases like this, will to a certain extent be taking risks. If one were to listen to the arguments put by the noble Lord, we would have a legal aid system that paid for everything, and we cannot afford it. Therefore, we are trying to create with limited resources one that is fair. Of course, with his eloquence and ingenuity, the noble Lord can always pitch questions to me that make it sound as though I am saying, “No, let them eat cake”, which is certainly not our intention.
Lord Pannick
However, we are concerned here not with the expenditure of public funds but with a fair allocation of risks as between the defendant and the claimant. With respect, I do not understand the noble Lord’s point in relation to that. Is it really right that the interests of this group of claimants should depend upon the Government’s inability to predict how lawyers are going to behave? Surely this should not depend on how lawyers behave.
Lord McNally
This is not only about public funds, but it is about how you create—to use this term again—an architecture for this type of litigation that squeezes out from the system the inflation that went to the lawyers. That was identified by the Master of the Rolls, by the Lord Chief Justice and by Lord Justice Jackson. In trying to respond to that problem, I am fully aware of the hard cases, and I have spent most of the afternoon dealing with them. Of course hard cases are difficult to argue, but that is the central issue that we are trying to address. To succeed, we will have to stand firm against some of these hard cases, I am afraid.
Lord Thomas of Gresford
The issue really is this: should all cases be treated alike? Well, Lord Justice Jackson did not treat all types of litigation alike. For example, he specifically recommended that clinical negligence should stay within legal aid, for various reasons that we have gone through that I do not need to repeat. Nor did he suggest that all his proposals should be limited to personal injury cases; he thought that they should be broader but they could vary, depending on the particular circumstances.
The reason for that is that risk varies. For road traffic accidents, nine out of 10 cases will be won because it is fairly easy to determine in a road traffic accident who is at fault, to what degree and so on, and the quantum follows thereafter. In clinical negligence cases, three out of four cases will be lost, so the risk is very different. That is why Lord Justice Jackson decided that clinical negligence should remain within the scope of legal aid. We are not involving government money or public money here; what we are trying to discuss is what constitutes a fair balance in a particular category of case, which can vary from case to case. I do not think that we should approach this on the basis that there is an architecture that should apply to every particular type of claim that is ever brought.
In mesothelioma cases, for example, we are not so much concerned with the fact that the person has the disease; what we are concerned with, as the noble Lord will appreciate from the very moving story that he told about his own family, is causation. That is the issue in this type of case. You can easily show that someone has died as a result of this disease, but what caused it, when, how and whether the case has been brought within a reasonable period of time are at issue. Very often, that requires not the sort of expenditure on medical reports that you get in clinical negligence cases; it often depends on expert reports on where the asbestos was, how it was dealt with and whether there was a likelihood, which passes the threshold of more likely than not, that that particular presence of asbestos in the workplace at a particular time caused the disease from which, as in the case that I cited, many years later the particular individual dies. We can therefore see that in some cases it is a medical issue, while in some cases it is causation, but they differ—and it is quite legitimate for the Committee to consider the different type of case, as we have in our discussion of judicial review, for example. In our debate on the next set of amendments, I shall come on to the question of environmental law, where very different issues arise compared with other types of litigation. We are not looking for an architecture to involve everything; we are looking for what is right in a particular category of cases. I propose in a moment, when this amendment will I hope be withdrawn, to enlighten your Lordships a little about environmental law.
Domestic Violence, Crime and Victims (Amendment) Bill
Lord McNally Excerpts(14 years, 6 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, first, I thank the noble Baroness, Lady Gale, for that promise of Official Opposition co-operation, and I fully accept what she said about the earlier Act. It was a unique step that broke new ground. The job of the Opposition at the time was to press the Government of the day, and the job of the Government of the day was to make a judgment about how the issue should be dealt with. The noble Baroness, Lady Gale, quoting the noble and learned Baroness, Lady Scotland, said that it would be revisited at an appropriate time. As a number of noble Lords have said, including the noble Baroness, Lady Gale, and the noble Lord, Lord Laming, when he introduced the Bill, now is the time. I am most grateful to all noble Lords who have contributed to the debate.
In his brief intervention, the noble Lord, Lord Reid, emphasised the difficulty that Ministers face in dealing with these issues. They are extremely emotive and need to be addressed with due proportionality. The noble Lord and the noble and learned Baroness, Lady Butler-Sloss, and indeed the noble Lords, Lord Lester, Lord Cormack and Lord Sheikh, raised the question of whether this Bill is proportionate. I have no hesitation in repeating the assurances given by my honourable friend Crispin Blunt in the other place about co-defendants:
“If one of the defendants has been the victim of, or a witness to, domestic violence, the steps that that defendant could reasonably have been expected to take may be more limited than the steps that someone not suffering or witnessing the violence could reasonably have been expected to take. Depending on the facts of the case, the court may find that it was not reasonable for the defendant to take some of the steps that might otherwise have been available to them. The same principles will apply to the extended offence. In other words, the offence will be sensitive to the circumstances in each case”.—[Official Report, Commons, 21/10/11; col. 1184.]
That addresses the point which has troubled a number of noble Lords.
Several speeches went far beyond the scope of the Bill: stalking, trafficking, forced marriages and genital mutilation. All those are serious and important issues and none the worse for being given an airing in this Second Reading debate, but the Bill is specialist in its intention. I add my tribute to the noble Lord, Lord Laming. The comments made by the noble Lord, Lord Cormack, the noble Baroness, Lady Howe, and others made it clear that this country is in his debt for the contribution he has made to the intensely difficult and emotional issue of violence against children and vulnerable adults. I am honoured to be part of a debate that has been initiated on an issue like this.
Likewise I pay tribute to Sir Paul Beresford in the other place. The noble Lord, Lord Elystan-Morgan, said that we are all in his debt. Sir Paul already has a very distinguished parliamentary CV, but taking the Bill through the other place and getting it this far, with all the tribulations that Jack Straw has referred to, will be a badge of honour on that CV for the rest of his life. We are very grateful to Sir Paul for the work that he has done. As for the role of the Government, I shall treasure the tribute paid by the noble Lord, Lord Elystan-Morgan, and hope that it is the forerunner of many to come, but I will not hold my breath.
On the co-operation of Sir Paul, I should also put on the record that we have worked closely with him through the Commons stages of the Bill and we are satisfied that, as amended in Committee in the Commons, the scope of the offence is restricted to what is needed to fill the gap that a number of noble Lords saw and which was acknowledged in the original Bill. The original Bill has worked and it is right to extend it, and that is what we are trying to do today.
The offence in Section 5 of the 2004 Act—causing or allowing the death of a child or vulnerable adult—was introduced by the previous Government in 2003. Under the law as it then stood, if a child or a vulnerable adult suffered a non-accidental death and it could be proved that one or more members of the household had caused the death, but not which of them, none of them could be convicted of a homicide offence. As has been explained, that is what the 2004 Act addressed. The aim of the Section 5 offence was to remedy that injustice. As the noble Lord, Lord Sheikh, and others have pointed out, it was used successfully in bringing charges against those who had abused baby Peter Connelly. The crucial aspect of the Section 5 offence is that the prosecution need not prove whether the defendant is responsible for “causing” or “allowing” the victim’s death. This means that it is much harder for those co-accused of the death of a child or vulnerable adult to evade justice by virtue simply of remaining silent or of blaming each other.
However, we know of cases where, although it is clear that serious injuries short of death suffered by a child or vulnerable adult must have been sustained at the hands of one of a limited number of members of the household, there is insufficient evidence to point to the particular person responsible. In such cases, it may not be possible to mount a successful prosecution. Sometimes the victim may be too young to give evidence, or too severely injured or afraid to do so. But offenders in such cases should not be able to escape justice because the victim has escaped death. We therefore agree that it is right to extend the Section 5 offence in the way proposed by this Bill.
Broadly speaking, the Bill extends the offence by inserting references to “serious physical harm” at appropriate places in Section 5 of the 2004 Act so that the same conditions which apply in the case of causing or allowing the death of a child or vulnerable adult will also apply in the case of causing or allowing serious physical harm. In particular, the extended offence will be limited to cases where the victim has died or has suffered serious physical harm as a result of an unlawful act; it will apply only where the victim was at significant risk of serious physical harm, and only to members of the victim’s household who had frequent contact with the victim, and could therefore reasonably be expected to have been aware of a risk of serious physical harm to the victim, and to have protected the victim from such harm. The extended offence will not apply to a death or serious physical harm which results from an accident or from natural causes, nor will it apply if there was no reason to suspect a risk of serious physical harm. I hope that that gives some assurances to noble Lords who have expressed concerns about the proportionality of the Act.
The noble Lord, Lord Sheikh, welcomed the provision in the Bill for a maximum penalty of 10 years’ imprisonment for causing or allowing serious physical harm. The Government believe that this is proportionate when considered against the maximum penalty for causing or allowing death, which is 14 years’ imprisonment, and against those of other offences of grievous bodily harm.
The noble Lord, Lord Elystan-Morgan, gave a welcome tutorial on Section 6 procedures. However, perhaps I may make a small point on procedure to so distinguished a judge. There are times when I thought he thought he was appearing before the noble and learned Baroness, Lady Butler-Sloss, in that he addressed her directly when making these complex legal arguments. I know that old habits die hard. The points he made on these procedures were pertinent and I shall read Hansard carefully, take advice on them and see what we can do in response.
The evidential and procedural provisions are in Clause 2. They are similar to those in Section 6 of the 2004 Act and apply to the offence of causing or allowing serious physical harm in the same way that Section 6 applies to the offence of causing or allowing death. Section 6 of the 2004 Act modified certain evidential and procedural provisions on alternative charges in trials involving the Section 5 offence. The modified procedures apply where a defendant is charged with a Section 5 offence and with murder or manslaughter in the same proceedings and in relation to the same death.
Briefly, there are two main changes in normal trial procedures, a point raised by the noble Lord, Lord Sheikh. The first change means that during the trial a submission of no case to answer on the murder or manslaughter charge is delayed until all the evidence is heard, both from the prosecution and the defence, rather than taking place at the close of the prosecution case, again a point to which the noble Lord, Lord Elystan-Morgan, drew attention. The second change concerns the drawing of an adverse inference from silence in court. Where a defendant refuses to give evidence in court, any adverse inference that may be drawn in relation to a Section 5 charge may also be drawn in relation to the murder or manslaughter charge, even if there would otherwise be no case to answer on that count.
These changes to normal trial procedure are intended to encourage defendants to give evidence and to ensure that the more serious charge of murder or manslaughter remains available if evidence emerges during the trial as to who is responsible for the victim’s death. In other words, the aim is to identify the person who caused the victim’s death or injury so that defendants can be convicted and sentenced according to their culpability.
The Bill applies similar evidential and procedural provisions to the extended Section 5 offence. However, in keeping with the extraordinary nature of these provisions, they apply only to the more serious offences that are likely to be tried with the extended Section 5 offence. So, in the context of causing or allowing serious physical harm, the procedural provision would be limited to cases where the defendant is charged with the extended Section 5 offence and with either a serious assault offence under Section 18 or Section 20 of the Offences Against the Person Act 1861—another point made by the noble Lord, Lord Elystan-Morgan, which, again, I would like to take advice on—or with attempted murder under Section 1 of the Criminal Attempts Act 1981. As with existing offences, the modified procedures would apply where a defendant is charged with the extended Section 5 offence and one of the other offences in the same proceedings and where the two offences arise from the same serious physical harm caused to the victim. These explanations will appear in Hansard and I hope that they will be read as being the desired but proportionate extension.
The noble Lord, Lord Loomba, reminded us of our responsibilities under the Convention on the Rights of the Child. Every time one of these cases arises it causes real indignation and often fire is directed at the authorities. I remember a director of social services who was in the centre of one of these media fire storms saying to me, rather ruefully, “You know, no social worker has ever been convicted of the death of a child and yet they have to take these awesome responsibilities on behalf of us all”. The Bill is an attempt to amend and extend a good law to ensure that those responsible for these terrible crimes bear the responsibility and face the full force of the law.
The noble Baroness, Lady Howe, said quite rightly that we have come a long way since the term “a domestic” meant that the police and the authorities did not take much interest in what was going on behind closed doors. The Bill is an extension of the increasing commitment of society as a whole to ensure that these crimes do not go unpunished and that for those who are complicit in cruelty to and abuse of a child or a vulnerable adult, to use the words of the noble Lord, Lord Cormack, there will be no hiding place.
I am very pleased to have taken part in the debate and to be able to say on behalf of the Government that we wish the Bill well.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(14 years, 6 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
I am pondering whether to say, “If the noble Lord, Lord Thomas, is playing into the Government’s hands, it would be for the first time”, but I will not. Instead, I will simply say that we have taken a decision on the shape of this Bill which we have continued to explain. We have returned to a number of issues around that, and this amendment seeks to include a power within the Bill to fund the not-for-profit sector to do work that is outside the proposed scope of the civil legal aid scheme. I acknowledge that a number of noble Lords have concerns about the sustainability of the not-for-profit sector, and I will return to that later. However, to seek to include a provision within the Bill to fund the sector for work outside the proposed legal aid scheme is, in our view, unnecessary. Not-for-profit providers have been eligible to compete for legal aid contracts since 2000, and while the proposed changes set out in the Bill will impact on the type of cases they currently handle, future contracts for work that remains in scope will continue to provide opportunities for such organisations to bid to deliver legal aid services.
It is also unnecessary to provide for such specific powers in the Bill, as the Ministry of Justice can provide grants to organisations promoting Ministry of Justice objectives. For example, both the Ministry of Justice—
Lord Goldsmith
Is the Minister able to tell the Committee whether any analysis has been done to see which areas of law are currently used to fund not-for-profit agencies, but which are now going to be taken out of scope? At the moment a lot of housing work, employment and welfare law is done. If that all goes out of scope, how will the not-for-profit agencies get any of the contracts that the Minister is talking about?
Lord McNally
They will bid for them. It is as simple as that. They are in a market where they will be able to bid for this work.
Lord Goldsmith
If the work that they are doing is out of scope, how do they get a contract? I have obviously misunderstood something.
Lord McNally
They will not get a contract for work which is not within scope of the Bill. That is why we keep on going round in circles. As the noble Lord said, he wants to put this sector back into the scope of the Bill. We do not want to do that.
Lord Goldsmith
The Minister said that the answer for the not-for-profit agencies is that they can bid for contracts. If at the moment they are bidding largely for work relating to housing, welfare and employment—things that will go out of scope—what contracts will they bid for? My specific question was whether the Minister or his department had done an analysis so that we might see what percentage of the money that the agencies have up to now received would no longer be available because it would be for work which was out of scope.
Lord Bach
The Government may not have done that analysis, but the Law Centres Federation and the CABs have. I do not have the precise figure in my head, but law centres would do about 70 per cent less work because of the matters that are taken out of scope. It would not be quite as much, of course, in the case of the CABs, but they would have a much reduced caseload which would make their existence in some cases doubtful. That work has been done by the agencies, but I agree with my noble and learned friend that the department should perhaps confirm those figures or come up with some new ones. The agencies are going to lose work.
Lord McNally
Of course they are going to lose work in the areas that are being taken out of scope. That is self-evident. I make no complaint about it, but we continually have brandished at us reports from organisations with, to put it bluntly, an interest in the issue. It can at least be examined thoroughly. Organisations which have been involved mainly in areas which are being taken out of scope will find that that work is no longer there, which will have an impact on some of them. However, they will still be free to bid for work which is within scope. We can go round that time and again.
Lord Phillips of Sudbury
I know that my noble friend is trying to get into his speech but, en route, important issues come up, and one has a duty to the Committee to continue with them. Does he not appreciate—I do not think that he can—first, that local authorities, because of their financial stringencies, have withdrawn grants to law centres and CABs all around the country and, secondly, that, if the centres can no longer do the work that is taken out of scope, many if not most of them will simply shut their doors and go away? The consequence of that, my noble friend will, I am sure, recognise.
Lord McNally
Throughout the passage of this Bill, assertions are made about what is going to disappear and the nightmare of a country without CABs—to quote my noble friend. Unlike the noble and learned Lord, Lord Goldsmith, I cannot airily, as he did in his intervention, say, “£20 million? That is not enough. Perhaps we should put another nought on the end”.
Lord Goldsmith
I did not say that; with respect, the Minister should listen. I said that I did not know whether £20 million was enough. That is something that I would like to hear from the Minister, either now or at a later stage of the Bill.
Lord McNally
Throughout the Bill, we have tried to restructure legal aid so as to deal with the most vulnerable in our society in a way which we think is fair. My noble friend Lord Phillips referred to the squeeze being put on CABs by local authorities. There have been squeezes on local authorities and on the Ministry of Justice. The country is having to readjust to a considerable degree to what is available for many good causes, and that is why this debate is reoccurring in Committee.
As I say, I recognise the general concern about the future of such funding. I hope I can reassure the House by making it clear that the Government value the services provided by the not-for-profit sector and are committed to ensuring that people continue to have access to good-quality free advice in their communities. That is why the Government have launched the advice services fund and a review of free advice services. The Government have set aside £20 million to support the not-for-profit sector. That is about the seventh time of announcement but, to provide clarity for the noble Lord, Lord Beecham, I say that it is still the same £20 million. This fund will provide immediate support for the not-for-profit advice service providers to deliver essential services in debt, welfare benefit, employment and housing advice. An announcement on the fund and review was made on 21 November by my honourable friend Nick Hurd MP, Minister for Civil Society, in the other place.
It is important to recognise that legal aid is only one of several funding streams that not-for-profit organisations receive and that the future sustainability of the sector is a cross-government issue which this Bill cannot be expected to solve on its own. Accordingly, alongside the advice services fund, the Cabinet Office is conducting a review into local advice provision, looking at the funding environment for these services, likely levels of demand and how government can play a positive role. The Cabinet Office will work with other departments that either fund advice services or whose activities have an impact on advice services, such as my department, the Department for Business, Innovation and Skills, the Department for Work and Pensions, the Department for Communities and Local Government, and the Treasury.
The House may also be reassured to know that both the Prime Minister and the Deputy Prime Minister are taking a keen interest in these reviews. Stakeholder events with representatives from the sector, to gain their input into the review, have already been held by the Cabinet Office. I urge the House to await the conclusions of that review, which is expected in the spring. My officials are working closely with colleagues across government to support this important work. I hope this will reassure the Committee that I and my colleagues in government are united in our efforts to support the not-for-profit sector while it adapts to difficult changes in the funding landscape. I therefore urge the noble Lord to withdraw his amendment.
Lord Thomas of Gresford
My Lords, I am grateful to all noble Lords who have spoken in the debate and I accept all the criticisms that have been made as no doubt very well founded. In his reply, my noble and learned friend—
Lord Thomas of Gresford
No—but you will be by the time I have finished.
In his reply my noble friend said that we must await the conclusions of the group that is looking into this matter, which has already taken advice, as I understand it, and carried out various consultation processes. I want to know when it is going to report. I have discovered that in government departments the spring can turn quickly into the summer. The Bill will be through this House by the middle of March and we would all be much happier if we were assured by that time that the future of the CABs, the law centres and so on is secured to give precisely the advice for which the grant was announced in November—for welfare, for employment and so on—as the noble Lord said.
I am anxious that the group should get a move on and that we should receive these reassurances so that we can be confident that the gap that will arise through the withdrawal of legal aid will, to a degree, be filled. I understand the position of the noble Lord, Lord Bach. He does not want anything to interfere with the general thrust that everything in social welfare law should go back under Part 1. Indeed, voices on my Benches have made exactly the same comments, including me. However, if that is not to happen we must be sure that there is a source of advice in these very important areas which will be available to the citizens of this country. At the moment, I ask leave to withdraw the amendment.
Lord Beecham
My Lords, in principle I welcome the notion of a review and some of the provisions that are effected in the amendment clearly make sense. However, despite the most distinguished provenance of the amendment I am left in doubt as to some of the wording and/or implications of what is proposed.
To begin with, the only duty on the Lord Chancellor, apart from initiating the review, is to lay a report before Parliament. There is no obligation for him in any sense to implement the review or to make changes having regard to the review. One fears that such a report might meet the fate of the infamous Black report—or the famous Black report that was infamously treated—in 1980, which some Members of the Committee will recall was published just before a bank holiday and disappeared from view thereafter. In other words, all we are getting is a report.
Moreover, the report, although it talks about the procedures and costs of claims, apparently is not required to deal with the funding of such claims. It talks about the costs but does not direct the person appointed to carry out the review and to report or comment on funding mechanisms—as I read it. The noble Lord, Lord Phillips, may put me right when he replies. It is quite sensible to have a provision that the reviewer may propose a,
“voluntary scheme or schemes as he or she shall see fit”,
but I am not quite clear what is meant by “voluntary scheme”. Is it a voluntary scheme of advice, or of conducting cases?
Subsection (6) defines “claims” as meaning,
“claims and complaints made by patients receiving services provided in the United Kingdom and commissioned in England”.
I am not quite sure what that means. Is it a reference to the Welsh situation? Does it mean that a clinical commissioning group, or indeed that a claimant of the nature of a private patient seeking treatment in a hospital in another part of the United Kingdom, would be subject to review in this report even though a claim might arise outside the jurisdiction of the English courts? It certainly is not clear to me quite what is intended, so although I certainly support the principle I am not sure that what is being sought here in detail quite meets the aspirations of those who drafted the amendment—let alone being sufficient to secure the support of the Minister. He will no doubt tell us what he thinks shortly.
If this matter is going to be pursued, it really needs some further thought and elaboration. If it is brought back at Report, it might be better to do so in a clearer form and, in particular, not to create a situation in which all that is produced at the end of it is a report which can be kicked into touch.
Lord McNally
My Lords, I would hope to persuade the Opposition not even to support the principle of this amendment, which says:
“The Lord Chancellor must, before the end of the period of one year beginning with the day on which this Act is passed, appoint an independent person to review generally claims for clinical negligence and means of improving the modes, procedures and outcomes relating to the same”.
We would prefer to stick to the process established by the previous Government, which put in place post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government’s internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check on new laws after three to five years.
As set out in the Cabinet Office guidance, these reviews normally take place within three to five years of Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee, which will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee’s findings should it choose to conduct a review into the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan. It is intended to review each policy between three and five years after the implementation date.
Noble Lords may also be aware that the Government have conducted a public consultation this year on how lower value cases should be dealt with more efficiently in the county courts. We are working closely with the National Health Service Litigation Authority to consider whether a lower value scheme similar to that which is currently operating for low-value road traffic accident cases would work for lower value clinical negligence cases. At the same time, we are actively considering the Government’s response to the consultation and will publish the response in the near future. In the light of these remarks, I hope that my noble friend will withdraw his amendment.
Lord Phillips of Sudbury
Before my noble friend sits down, could I be perfectly clear about what he said at the start of his response? Is he saying that there will be a formal review of clinical negligence in the course of reviewing the whole of this Act, as it will become?
Lord McNally
Yes. I have been one of the strongest supporters of post-legislative scrutiny, and I am just putting it in place in terms of the Freedom of Information Act. The Justice Committee in another place has just taken from the Ministry of Justice a full assessment of how that Act has been working and will then take evidence. I would have thought it inconceivable that such post-legislative scrutiny would not examine the issues relating to clinical negligence.
Lord Howarth of Newport
I apologise to the Committee that I was not able to be here at the beginning of this debate. In the Minister’s view, does the legislation as drafted provide the flexibility to enable the Lord Chancellor to respond constructively and effectively to such findings as a review might produce at a suitable interval?
Lord McNally
Yes. If it did not, presumably we would bring forward primary legislation to correct it, but that is the parliamentary process.
Lord Phillips of Sudbury
My Lords, I thank the Minister for his reply. I was going to say that I thanked the noble Lord, Lord Beecham, for what he said—I sort of do. I will not play legal games with him at this time of night, but if this is brought back I will certainly read carefully the points that he made.
As for the Minister’s reply, my sense is that the review that I am calling for in Amendment 99A is far more particular and focused than any review that would come forth under the general review of this legislation, not least because clinical negligence has only a very limited part to play in it. Further, the Bill deals with the scope of clinical negligence in terms of legal aid, not with the detailed functioning of clinical negligence litigation. I would like to read what the Minister has said and perhaps have a conversation with him before Report in order to see whether there is any point in persisting with the nub of this amendment. I beg leave to withdraw the amendment.
Lord McNally
My Lords, if I may interrupt, this may ruin a few speeches but I think it will help if I say that the Government intend to table an amendment to Clause 12 on Report that will remove the power to introduce means testing for initial advice and assistance at the police station.
Lord Macdonald of River Glaven
My Lords, I have never achieved such remarkable success with so few words. In those circumstances, I shall withdraw my amendment. I thank my noble friend for what he has just said.
Lord McNally
I assure the House that it was my noble friend’s eloquence that produced that result.
Lord Wigley
Can I be clear that the proposals that the Government are bringing forward—I have an amendment in the Marshalled List that is almost identical to this one—will cover all the worries that have been built into the amendments today, and that they are not a superficial way of getting out of the debate today?
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
My Lords, this concerns a very simple point, or rather a short one—I am not entirely clear whether it is simple. I would be grateful for the Minister’s response to this.
Clause 14 is headed “Advice and assistance for criminal proceedings”. Subsection (1) refers to regulations providing,
“that prescribed advice and assistance is to be available under this Part to an individual described in subsection (2) if … prescribed conditions are met, and … the Director has determined that the individual qualifies for such advice and assistance”.
That is fine. Subsection (2) sets out in paragraphs (a), (b) and (c) three classes of individuals who will be entitled to this advice and assistance. My amendment would add a fourth class of,
“individuals who are involved in investigations which may lead to a caution or warning”,
as opposed to,
“individuals who are involved in investigations which may lead to criminal proceedings”.
I admit that it is a long time since I practised, but I understand that people who are cautioned are liable to have that caution recorded and for it to be on their record for a period of time. In those circumstances, would it be better for that class of person to be granted advice and assistance, as are the persons covered by paragraphs (a), (b) and (c)? I will not argue with the Government if there is a good reason for not including that class of person. I just want to hear why there is not a fourth class of person covering,
“individuals who are involved in investigations which may lead to a caution or warning”.
I beg to move.
Lord McNally
My Lords, as the noble Lord has said, Amendment 103 would allow the Lord Chancellor to provide specifically for criminal legal aid under Clause 14 to be available for individuals who are involved in investigations that may lead to a caution or warning.
Clause 14 creates a power to make regulations that prescribe what advice and assistance must be made available to individuals in connection with criminal proceedings if prescribed conditions are met and the director has determined that a person qualifies for such advice and assistance in accordance with the regulations. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999. Advice and assistance for criminal proceedings is distinct from criminal legal aid provided under Clause 12 for individuals in custody.
Under the Access to Justice Act 1999, the Legal Services Commission has the discretion to decide what advice and assistance it considers it is appropriate to fund. Under the Bill, this discretion rests with the Lord Chancellor. In making a decision, the Lord Chancellor will take account of any legal obligations including the requirements of Article 6 of the European Convention on Human Rights. Both sets of provisions leave the criteria for making a determination to secondary legislation.
The proposed amendment would allow the Lord Chancellor to make provisions that legal aid may be available for individuals who are involved in investigations that may lead to a caution or warning. We believe that it is unnecessary to add the suggested amendment as provision could already be made under Clause 14(2)(a). If an individual is involved in an investigation that may lead to a caution or warning, that individual must be involved in an investigation that may lead to criminal proceedings. Cautions and warnings are used, where it is appropriate to do so, to divert certain offenders from the criminal justice system as an alternative to instigating criminal proceedings. For an individual in custody at a police station, or other premises, legal aid will be provided under Clause 12. I therefore invite the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, this amendment refers to Clause 16, which sets out the principles on which qualification for representation for legal aid can be determined. This is basically a probing amendment. Subsection (3) states:
“The Lord Chancellor may by order amend subsection (2) by adding or varying a factor”,
to or of the five factors set out in subsection (2). I apprehend that the Minister will confirm that such an order will be subject to the affirmative procedure. Given that the qualifications for representation for criminal legal aid are at stake, it is particularly important that that should be the procedure. If that is the case, the Opposition will be entirely satisfied and the amendment will be withdrawn.
Lord McNally
My Lords, as the noble Lord said, the amendment would omit subsection (3) from Clause 16. This provides a power for the Lord Chancellor to use secondary legislation to add to or vary the list of factors in subsection (2). The Access to Justice Act also contains such a power at paragraph 5(3) of Schedule 3 to that Act. Any order made under Clause 16(3) would be subject to the affirmative procedure.
The factors in the interests of justice test broadly reflect the requirements of the European Convention on Human Rights, which, at Article 6(3)(c), provides expressly for a right for a person,
“to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.
We see no reason now to depart from the principle established in current primary legislation that it is appropriate to provide a power for the Lord Chancellor to use secondary legislation to add to or vary the list of factors in subsection (2). This allows for the flexibility to react to any developments in relation to factors relevant to the interests of justice requirement. As I have said and as the noble Lord asked, these would be subject to the affirmative procedure. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
I am most obliged to the Minister for that assurance. For future reference, it might be helpful in these cases if it were to be made clear in the Bill that the affirmative procedure would be used. It would save a little time. However, we have not spent much time on this and I beg leave to withdraw the amendment.
Lord McNally
My Lords, at this late hour this debate is taking on a confessional nature. There has also been a little bit of topsy-turvy. For a time, I was just sitting back while the noble Lord, Lord Bach, and his colleagues were rubbishing the amendments tabled by my noble friend Lord Thomas and his colleagues, and now I am going to defend the activities of the previous Government.
As has been explained, the amendment is intended to allow the restrained assets of those accused of criminal offences to be taken into account when granting legal aid and to allow legal expenses to be paid from a defendant’s restrained assets. Before the next debate, I must check on the noble Lord’s distinguished career in government as I am not sure whether he was responsible for the Proceeds of Crime Act 2002. Was it on his watch?
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.
Baroness Buscombe
My Lords, I was the shadow Minister on the Proceeds of Crime Bill. I have rather a good memory, and I can say that the Minister is absolutely accurate in his comments about why the Government chose not to use the Proceeds of Crime Act as an opportunity for dealing with this issue.
Lord Bach
It is very good to have the noble Baroness, Lady Buscombe, joining the debate, but if that was the best defence that the previous Government could put up for that, it was really not satisfactory. I remind the Minister that that argument has been described as,
“fallacious, and easily remedied by the simple implementation of a cap on defence fees, careful supervision by the court and/or an assessment by the court taxing officers, who are familiar with assessing what constitutes ‘reasonable’ costs in such cases”.
If that was the argument put forward by my Government at that time, I say here and now that it was a fallacious argument and not one that the present Government should fall into the trap of adopting.
Lord McNally
As I said, we are in confessional mood tonight. The Government are currently considering a related proposition under which the value of restrained assets might be taken into consideration in the Crown Court means test. Until that proposition has been considered fully, we believe it premature to suggest an amendment to the Proceeds of Crime Act.
This has been an interesting debate. We have heard what the noble Lord, Lord Bach, said in apology for previous omissions by his own Government. As I say, we are looking at the value of restrained assets in the Crown Court, but at the moment we believe it premature to suggest an amendment to the Proceeds of Crime Act and I therefore ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
The problem is that my noble friend the Minister has not explained why people are allowed recklessly to dissipate criminal assets in civil cases. Why do you have one rule for civil cases, when you can use what are described as criminal assets although they are not necessarily so, and another rule in criminal cases? What is happening at the moment is that defendants are recklessly dissipating legal aid. That is the point and that is why legal aid is so high in criminal cases—it is being recklessly dissipated. My noble friend Lord Carlile explained how it can be done: you can have application after application; you can have little trials within trials; you can have satellite litigation; and the case can run on and on for months.
In the old Stafford Assize Court, which possibly the noble Lord, Lord Bach, has visited—
Lord Beecham
My Lords, this is one of four amendments with which I hope to deal in pretty short order. It relates to the provisions in Clause 20 and the determination of financial resources for legal aid. Clause 20(6) provides for,
“determinations to be made and withdrawn in writing, by telephone or by other prescribed means”.
That is not very satisfactory because it does not leave a sufficient audit trail. In any event, verbal communication, and possibly online communication, may not be suitable in all cases given the variable capacity of people to manage telephonic or online communication. In particular, if an appeal is made to the magistrates’ court subsequent to a determination, it is necessary to have that audit trail. Hence, the amendment proposes that the communication should be in writing and not by telephonic or other electronic means. I beg to move.
Lord McNally
My Lords, concerns about the proposal to establish the community legal advice helpline as the mandatory single telephone gateway in four proposed areas of law were the subject of considerable debate in Committee on 20 December. Given that, and for the purpose of today’s debate, I will therefore address solely the specifics of this amendment as they relate to Clause 20.
Amendment 110 relates to the method by which determinations about financial eligibility for legal aid are made and withdrawn. It would require all determinations about financial eligibility to be made or withdrawn in writing to the person making the legal aid application. It would therefore stop determinations about financial eligibility being made or withdrawn by telephone, or by other prescribed means, thus of course affecting the proposed mandatory single telephone gateway. However, this amendment would go much further than just affecting the gateway. It would seriously affect the financial and operational viability of the provision of legal aid advice by telephone altogether.
In Committee, the noble Lord, Lord Bach, described existing telephone advice provision as “excellent” and,
“a fantastic channel for delivering advice”.—[Official Report, 20/12/11; col. 1759.]
This excellent service is provided through the community legal advice helpline. Currently included in this service is the making and withdrawing of determinations about financial eligibility by telephone.
Determinations about financial eligibility are currently made immediately upon receipt of a call by the community legal advice helpline. No suggestion has been made that the system has not operated effectively and efficiently. This would add considerable time, cost and complexity to the provision of civil legal aid services by telephone. It could delay in particular callers who are not financially eligible for legal aid but are provided with alternative sources of assistance. It could also delay those who are eligible for legal aid help receiving it, as staff and resources would be involved in completing and sending out notifications about eligibility.
Determinations are made after asking precisely the same questions of all callers as face-to-face legal aid providers would ask. Where a person is eligible, they will usually start to receive help on the same day. They do not have to wait perhaps a few days or more for an appointment before their eligibility can be assessed or before they can start to receive help to address their problem, as a person walking into a face-to-face provider’s office may have to do.
In addition, Clause 11(3)(h) means that individuals will have the reasons for the making of a determination explained to them. It will, however, not necessarily be in writing. The assessment of financial eligibility through the community legal advice helpline also filters out those who are not financially eligible for civil legal aid. This assists those individuals by allowing them to receive information about suitable alternative sources of assistance immediately after that assessment is made, enabling them to begin to take alternative action to address their problem promptly and with the minimum of delay.
The current community legal advice helpline is a well used route to access civil legal advice. It offers a high-quality service and works well—the noble Lord’s description of it as excellent is testament to that. The Government understand the concerns behind Amendment 110, but restricting or preventing the operation of the community legal advice helpline will not help those who are in most need to obtain legal aid advice services to help them resolve their problem. This amendment is not in their best interests and I urge the noble Lord to withdraw it.
Lord Wigley
My Lords, the Minister said that he would address the narrow parts of this amendment because of the debate that took place before Christmas on some of the broader issues. Before we move on, can he tell the Committee whether the Government have given further consideration to some of the aspects that were exercised at that time, particularly with regard to the need to make sure that disabled people do not miss out in this process?
Lord McNally
The answer I gave in our December debate was that we are looking at the points raised. We are in contact with representatives of disabled groups to ensure that the facilities that are available through the helpline will enable all aspects of disability to be dealt with in an effective way. I hope that that reassures the noble Lord.
Lord Wigley
If I understand it correctly, the Government are still looking at the representations being made in this area in order to make sure that disabled people do not miss out. Have I understood that correctly?
Lord McNally
Yes. As I said after that debate, we will continue to liaise with the disabled organisations to ensure that we are getting this right.
Lord Beecham
My Lords, I regret to say that I do not find the Minister’s answer satisfactory. It is true that many people find the telephone advice line to be perfectly acceptable, but others do not. Telephone advice lines are not the best option for delivering advice to older people, those with language difficulties or those who do not understand English very well. However, this is not about advice; it is about the determination of financial eligibility, and there may be cause for people to appeal against decisions. It is difficult to do that on the basis of a telephonic communication. That is all this amendment requires. Although I beg leave to withdraw the amendment, I cannot say that the Minister has satisfied us about the difficulties which we envisage the proposal will create. It might be something that we have to return to.
Lord Beecham
My Lords, we return again to affluent criminals in a slightly different context. This amendment refers to the definition of an individual about whom information is requested for the purposes of a determination about that individual’s financial resources. The Bill defines such an individual as an “individual”, which is helpful, and goes on to say,
“and any other individual whose financial resources are or may be relevant for the purposes of the determination”.
The problem is that this may not cover, for example, a limited company or possibly a trust effectively controlled by the individual whose financial circumstances are being investigated. The purpose of the amendment therefore is to extend the definition to ensure that any connected companies or trusts are included in the assessment. It may be that the noble Lord will want to take a further look at this, but we are seeking to ensure in a different context the kind of approach advocated by the noble Lords, Lord Carlile and Lord Thomas, in respect of cases—in admittedly slightly different circumstances—where there are means which ought to be brought into account. I beg to move.
Lord McNally
My Lords, Amendment 111 relates to Clause 21, which provides a gateway for the disclosure of certain information to the “relevant authority”, defined as the director of legal aid casework or other person prescribed by the Department for Work and Pensions, Her Majesty’s Revenue and Customs and the equivalent Northern Ireland department. The information can only be requested by the relevant authority for the purpose of facilitating a determination about the individual’s financial resources for legal aid; that is, for the purpose of finding out whether they are financially eligible for legal aid. The categories of information that may be requested are listed in subsections (3) and (4) of Clause 21. Those categories refer to types of information in relation to a relevant individual. A “relevant individual” is defined in Clause 21(8) as meaning the individual seeking legal aid and any other individual whose financial resources are or may be relevant for the purposes of determining financial eligibility for legal aid.
We intend as at present to continue to require those applying for legal aid to disclose any company directorships, positions or shareholdings in companies and to provide detailed information about such companies. More generally, applicants are required to disclose whether they receive any support from a third party, including an individual company or trust. Funding may be refused if this information is not supplied. In relation to companies, it is also possible to conduct an additional search through Companies House. There are indeed circumstances in which such information may be relevant. The Bill includes at Clause 24 a power that will enable the Lord Chancellor by regulation to require or permit the resources of a person other than the client to be treated as the resources of the client. That is currently done under the existing financial regulations.
Regulation 11 allows the resources of a person who is, has been or is likely to be substantially maintaining the client to be treated as the resources of the client. Regulation 11 also allows the resources of another person that have been or are likely to be made available to the client to be treated as the resources of the client. Regulation 12 provides a power to take into account resources that the client has either transferred to another person, deprived themselves of, or converted into resources that would be disregarded for the purpose of reducing their resources. For the purposes of those regulations, “another person” can mean a company, partnership, body of trustees and any body of persons corporate or not corporate. The effect is to prevent applicants for legal aid avoiding a full assessment of their resources by, for example, transferring them into the name of a company.
I return to Clause 21. The information listed in subsections (3) and (4) is about individuals because it is basic information such as date of birth, national insurance number and employment status, which can be related only to an individual. However, the information listed in subsection (4), which can be requested from HMRC, includes information about whether a relevant individual is carrying on a business, trade or profession, as well as further information—for example, the name of the business and its address.
As I have said, those applying for legal aid will continue to be required to disclose any company directorships, positions or shareholdings in companies and to provide detailed information about any such company. It is therefore inappropriate and unnecessary to extend the definition of “relevant individual” to include companies and other legal persons. I hope that, with that explanation, the noble Lord will withdraw the amendment.
Lord Beecham
My Lords, the Minister has given a clear indication that the objectives of the amendment are likely to be met by the present operation of the system. In those circumstances, I beg leave to withdraw the amendment.
Lord Thomas of Gresford
I thought there was a printer’s error here: that is why I inserted “not”. It is not a matter of principle; I could not imagine that the Government would require someone’s contribution to exceed the costs and put money into the hands of the Lord Chancellor. I do not see any reason for that and I await the explanation with interest.
Lord McNally
This had better be good. Amendments 112 and 113 would prevent anyone in receipt of civil legal aid being required to pay an amount for that legal aid which exceeds the amount of the legal aid itself. We intend to use the powers in subsection (3) to establish a supplementary legal aid scheme which will provide an additional source of funding to supplement the legal aid fund. As indicated in our response to the consultation on legal aid reform, under this scheme 25 per cent of damages obtained by successful legal-aided parties, other than damages for future care and loss, will be recovered by the legal aid fund. The supplementary legal aid scheme will apply to successful damages cases where the successful party is legal aided, including any out-of-scope cases which are funded through the exceptional funding scheme.
The provision at subsection (3) is not new. There is already an equivalent provision in Section 10(2)(c) of the Access to Justice Act 1999, which allows for the establishment of a supplementary legal aid scheme whereby a legal-aided person makes a payment exceeding the cost of the services received. The power has not been exercised to date but, as we have made clear, we intend to do so in the future, so it is important that the Bill retains the provision to enable this.
At a time when the public purse is constrained, the funds recouped by the supplementary legal aid scheme will help to put legal aid on a sustainable footing and therefore help support the funding of civil legal aid cases. Besides creating a valuable additional source of funding for legal aid, in setting up the supplementary legal aid scheme we are addressing the interrelationship between legal aid and the proposal for reform to the cost of civil litigation put forward by Lord Justice Jackson and reflected in Part 2.
We want to ensure that, so far as it is possible to do so, the recovery level of damages by the supplementary legal aid scheme is consistent with the Jackson reforms to ensure that conditional fee agreements are no less attractive than legal aid. We have therefore selected a recovery level of 25 per cent of all damages, other than those for future care and loss. This mirrors the maximum level of damages that a solicitor will be able to claim from a successful client under a conditional fee agreement in a personal injury case. Under the Jackson proposals, there will also be an increase of 10 per cent in non-pecuniary general damages such as damages for pain and suffering and loss of amenity in tort cases for all claimants. This will help claimants to pay their CFA success fee or supplementary legal aid scheme contribution.
With that explanation, I hope the noble Lord will agree to withdraw his amendment.
Lord Beecham
My Lords, I am not in a position to say and I fear—perhaps I am wrong—that the Government are not in a position to say either, which is part of the point. There does not seem to have been a consultation. There may or may not have been an assessment of the impact, but there certainly ought to be. As I say, this provision has come out of left field, to quote the noble Lord, Lord Thomas, on an earlier point. It really ought not to be progressed until there is a proper assessment of its impact, in consultation with the profession.
In any event, it seems there is something of an issue of principle as to whether the statutory charge should apply not just to the property secured by legal aid but to costs paid by the opposite party, as a contribution towards the total costs incurred on behalf of a claimant. That seems to be a novel principle and one which, as I say, came out of the blue and certainly needs justification. On the face of it, it is difficult to see what the justification would be. I beg to move.
Lord McNally
My Lords, I hope to end the evening on a reassuring note. We recognise that by virtue of the specific reference to costs, the language of Clause 24(1) is different from that in the equivalent provision at Section 10(7) of the Access to Justice Act 1999. However, we consider that costs are capable of falling within the existing provision on the statutory charge as,
“property recovered or preserved by”,
a legally aided person. In any event, I reassure noble Lords that Clause 24 does not represent a change of policy and will not result in any change to current practice.
The provisions in Clause 24 reflect existing practice by protecting the interests of the Legal Aid Fund in the same way that those interests are currently protected by the provisions of the Community Legal Service (Costs) Regulations 2000. For example, the provision in those regulations regarding payment of money due to a legally aided person relate to all such money, including any costs awarded. We therefore have no intention of altering the existing position that operates in cases where interparty cost orders are made and a claim is made against the Legal Aid Fund by a supplier. The current position in such cases will remain exactly the same when we implement the relevant provisions of this Bill.
Indeed, we recognise that market rate costs payments where interparty costs are ordered represent an important source of income for legal aid providers, and nothing in the Bill is intended to interfere with the present position in respect of such payments. Specifically, legal-aid-only costs will continue to be payable to providers where a supplier recovers interparty costs, to the same extent as at present. So the existing position, including in partial cost order cases, will remain. I also confirm that, in the specific context of interparty costs, we intend to exercise the power in Clause 24 of the Bill so that it is clear that legal-aid-only costs, including in partial cost order cases, remain payable to suppliers. This will make the position clearer than it is at present, given that the entitlement to payment for legal-aid-only costs currently appears only in the LSC contract. I hope that with those assurances, the noble Lord will withdraw this amendment.
Lord Beecham
My Lords, that certainly sounds extremely reassuring. I will read what the Minister has said with some care—not that I doubt him, of course—because on the face of it, if the clause does not change the previous legislation, I am not quite sure why we have it at all. However, accepting his assurances and good will, and in a spirit of relief at 10.45 pm, I beg leave to withdraw the amendment.
Freedom of Information Act 2000
Lord McNally Excerpts(14 years, 6 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in the spirit in which the Leader of the Opposition intervened, perhaps I may say that it is an interesting idea to broaden the post-legislative scrutiny. The rules are that it is within the scope of the relevant committee to do that, but I will draw her remarks to the attention of Sir Alan. It would be useful if that committee made use of the experience and expertise available. One of my memories of the original Act was the ludicrous situation at that time whereby there was pre-legislative scrutiny by two committees—one from this House and one from the Commons—sitting at either end of the Corridor, with witnesses moving from one to the other.
First, I apologise to all noble Lords who have taken part. This should have been a three-hour debate that gave the eminent people who have contributed a proper opportunity. I will not do my usual practice of trying to refer to the individual points raised. Instead, I should like to provide a considered omnibus reply that I will send to each Member who has participated and put it in the Library of the House, because the issues raised are too important. If I tried to reply to each in turn, I would look up and all my time would have gone. With the permission of the House, I will do it that way.
I must say in passing that I have never seen so many mandarins in one place since my school production of “Chu Chin Chow”, and it was great to see them all out. I am of course immensely grateful to my old friend and colleague, the noble Lord, Lord Hennessy. He is quite right—it is about time that I got a PhD from Queen Mary college because of the number of times I see a letter beginning with, “Professor Hennessy has suggested you might be able to help with my research”. I am grateful in one way because I am in several footnotes to history around the various work that is done. My time goes back even further than his clash with the noble Lord, Lord Armstrong, because I was working for Harold Wilson when the Times, with great fanfare, announced this new creature that was going to pace the corridors of power: a Whitehall correspondent, one P Hennessy—to which Harold announced that any civil servant found talking to this new creature would be fired on the spot. Such was the spirit of the age.
The Leader of the Opposition pointed out that the Freedom of Information Act was the work of the previous Government. Let me put on record my admiration for the noble Lord, Lord Clark of Windermere, who produced the first White Paper on freedom of information and on which the Act was built.
I am grateful to the noble Lord, Lord Thomas of Gresford, for the quotation from “Yes, Prime Minister”. I do not think that any of us who have watched “Yes, Prime Minister” and “Yes Minister” and have actually worked in Whitehall and Westminster have ever considered it as comedy; we watched it more as documentary. In passing, I should say that I still have not worked out how in those days Sir John Hunt could manage to get from his office way down in 70 Whitehall to the foyer of No. 10 to greet the Prime Minister without any of the electronic devices that we have today to know that the Prime Minister was about to return, but now as I watch it on the cable channels I find the show still very pertinent.
As many Members are aware, I am a long-standing enthusiast for transparency and freedom of information. I therefore continue to be proud to have an opportunity to help shape the next phase of freedom of information in this country. I note what the noble Lord, Lord Armstrong, said with his vivid quotation from Tony Blair’s memoirs and indeed the valedictory from the noble Lord, Lord Macdonald, who I am very pleased to see in his place. They are matters and opinions certainly to be taken in evidence, although it leaves me, as a proponent of the Act, also to argue that when Prime Ministers and mandarins object, this Act might actually be doing something that it was intended to do.
The noble Lord, Lord Hennessy, has placed considerable emphasis on the Government’s pledge to replace the current 30-year rule with a 20-year rule. I hope the noble Lord will appreciate the enormity of the task. Central government departments alone hold more than 3 million files that will need to be reviewed during this process.
However, just before I depart from the points that were made by a number of noble Lords about the battle—and this has been the battle throughout—between the safe space and the culture of secrecy, all I would say is: let the Parliament system work. The Act has the process of post-legislative scrutiny built into it. Let this process tease out some of the weaknesses that have been named today, and let the Government look at them, and let those who believe that those weaknesses exist give evidence of them. That can be nothing but healthy.
The detailed work has now been done to develop an implementation plan that will balance our intention to reduce the 30-year rule with the burdens that this will impose. I reassure noble Lords, and in particular the noble Lord, Lord Hennessy—who asked for my guarantees on this—that the Government remain committed to this course of action and that further details will be announced in due course. Let me also give him a guarantee that that is not Whitehallese for some time, never. Not on my watch it won’t; we will press ahead with this.
I know that the noble Lord, Lord Hennessy, is also keen for there to be a new Waldegrave initiative and an expansion of the current programme of official histories. I fully recognise the benefits to historians that such initiatives bring and I am sympathetic to his view. However, the subsequent introduction of FOI since that time means that the public—including historians—are free to request any records. Moreover, the reduction in the 30-year rule will result in more and more government records being made available earlier year by year.
I hope noble Lords will recognise that such a significant undertaking as the reduction in the 30-year rule would make additional simultaneous initiatives very difficult at this time of financial restraint. I also hope that noble Lords will recognise the unprecedented level of transparency that was not available at the time of the Waldegrave initiative. However, I will continue to keep the suggestion under review and I pledge here and now that it will be called Waldegrave 2. I have no ambitions for it to be called anything else.
As for the official history programme, a good deal of work is already in progress, and I hope that we can review future work in happier economic circumstances. I emphasise again my enthusiasm for the programme of official histories. It would be a tragedy if we were to allow them to wither on the vine after 2013.
Hand in hand with FOI is the transparency agenda being pushed through government by my right honourable friend Francis Maude. The transparency agenda is about much more than historical information; it is about much more than government records in the traditional meaning of the phrase. It is about the information and data that we deal with day to day to inform our decisions and provide our public services. Making that information available is what makes the transparency agenda truly revolutionary. More information than ever is being published proactively by this Government. In excess of 7,500 data sets have been made available to increase accountability, empower the public and foster innovation and economic growth.
As noble Lords will be aware, the Protection of Freedoms Bill includes provisions that introduce a new right to data to ensure that public authorities, including government departments, make data sets available in a reusable format where they can and make them available for reuse when releasing them in response to requests or through publication schemes.
The Government will also be developing a transparency and open data strategy and plan to publish their response to consultation on the form that it might take early this year. There is a strong public interest in increased transparency by all bodies in receipt of public funds, including those in the private sector. The Cabinet Office is considering the type of bodies to which an open data policy will apply.
Many noble Lords will also be aware of the significant steps that we are taking to extend the Freedom of Information Act to more bodies through the Protection of Freedoms Bill and secondary legislation under Section 5 of the Act.
As I said in my opening remarks, I am a long-standing supporter of freedom of information and transparency. I am proud that, on my watch, the Act has been extended and the independence of the Information Commissioner strengthened. I am well aware that the FOI still has its critics among both Ministers and officials. It was never meant to make those groups comfortable, but as the Minister responsible I have played this matter by the book. My department has consulted widely on how the act works in practice. We have produced a report that, I believe—I am grateful for the noble Baroness’s comment—is a model of objectivity in the post-legislative scrutiny process.
That is how matters should work. It is now in the hands of the Justice Select Committee, which has in turn asked for written comment by 3 February and urged interested parties to give the committee their views. As I said, I will pass on the noble Baroness’s comments about widening the basis of the group considering that.
I am confident that FOI is robust enough to survive rigorous post-legislative scrutiny. It is that process that will expose any flaws, if there are any. In the mean time, I thank the noble Lord, Lord Hennessy, for initiating the debate and all noble Lords who have spoken. As I said at the beginning, the tragedy is that a speakers list of this quality and a topic such as this should be crammed in to the dinner hour, but I will write to noble Lords on the points raised. In the mean time, I am most grateful for all contributions.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(14 years, 6 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, Amendment 21 would have the effect of removing Part 1, Schedule 1 and bringing within the scope of legal aid, civil legal services available for all categories of law except those excluded in Parts 2 and 3. Broadly speaking, these amendments seek to reinstate the approach to the scope of civil legal aid under the Access to Justice Act 1999—I think that the noble Lord, Lord Beecham, readily acknowledged that—which provided that most categories were in scope of funding except for those limited matters set out in Schedule 2. As noble Lords will appreciate, this would significantly impact on the savings and fundamentally defeats the object of the reforms. We have never hidden the fact that the aim of these reforms is not just to save public expenditure, given the position with the public finances, but to encourage alternatives to a legal settlement of disputes, not least through mediation. My right honourable friend the Lord Chancellor is attempting to reverse the trend on the part of many in our society over the past 20 years to see litigation—and tax-funded litigation, at that—as the first option, and we have gone about this in a way that moves away from the 1999 Act.
The Government have undertaken a comprehensive review of legal aid, have published impact and equality assessments and received nearly 5,000 responses. We have taken into account the importance of the issue, the litigant’s ability to present their own case, including their vulnerability, the availability of alternative sources of funding, and the availability of other routes to resolution. We have never hidden the fact that this is a change from the 1999 Act, but one which retains access to justice while coming to terms with economic reality. We have prioritised funding so that civil legal services as set out in Part 1 of Schedule 1 will be available in the highest priority cases; for example, where a person’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
With all respect to the Minister, that is not a very satisfactory reply. In the first place, to suggest that the whole purpose of these changes is to avoid litigation as the first option mistakes the nature of the system. It is not only legal aid and representation that will disappear under these provisions but legal advice and assistance, which often prevent cases going to court. In many cases such measures avoid what I and many observers fear will happen; namely, a significant increase in litigants in person. That is likely to lead to considerable delays, the clogging up of the courts, will be inefficient and, for that matter, costly. The noble Lord airily cited the 5,000 responses received to the consultation paper. He did not tell us how many of those responses supported the thrust of the consultation paper. The suggestion is that about 90 per cent of respondents were very much opposed to the proposals.
In any event, there is another issue. The Government are in effect tying their hands and those of their successors on what might ultimately be thought to be desirable to be brought within scope. That will now require primary legislation to amend the Bill, if it is enacted, on those points. No utility is served by that process. It is always open to Governments to change eligibility if they choose to do so and to take matters out of scope, but we are now seeing an attempt to fix the situation as it now is—to imprison the present system in amber, as it were. That makes change unnecessarily difficult should the situation in society as a whole change and require further alteration.
This matter goes to the heart of the Bill, along with the next amendments to be moved by my noble friend. In the circumstances, I will not push this to a vote at this stage, and I beg leave to withdraw the amendment.
Lord Bach
My Lords, first, I thank my noble friend Lord Howarth in particular for supporting our Amendment 24. Of the alternatives set out so clearly by the noble Lord, Lord Phillips of Sudbury, Amendment 24 is the preferred amendment. But I want to make it absolutely clear from our Front Bench that our real quarrel is with the Bill as drafted. In the mild words of the noble and learned Baroness, Lady Butler-Sloss, it is astonishing to find Clause 8(2) in modern legislation. It goes without saying that we believe that this is a non-party issue. Right around the Committee, it has been suggested that on this the Government have got it seriously wrong. If I am a little harsher on the Government than noble Lords have been so far, it is because this is an essential and very important part of this Bill. It is crucial that the Government move on it, if not at this stage, then later. I very much hope that on this group, the Minister can help us by implying that the Government are thinking of changing their position.
The Bill represents an attack on a number of crucial areas of civil legal aid. If the Government get their way, the whole edifice of social welfare law will be severely damaged, perhaps to destruction. The restrictions on private family law are poorly thought through and the proposed taking out of scope of clinical negligence, which we are to debate shortly, seems more ridiculous as every day passes.
We all agree—we certainly do—that there must be some cuts to legal aid. But there should not be these cuts, and any cuts should not be so fast or so far. I pose again to the Minister a question to which I have had no response up till now: why on earth is all criminal law seemingly off limits? Is there no waste, nothing that could be rationalised, in that area of law which, I remind the Committee, takes well over 50 per cent of the whole legal aid budget? The answer is apparently not, because the Government have announced that there will be no moves on criminal legal aid until 2015 at the earliest. I pose the question again: why?
The present position, as I understand it, is that a government can, to a limited extent—I shall be frank in saying that I am not sure to what extent—alter by order what is in and out of scope; for example, by amending the funding code as felt appropriate. But what the Bill asks us to accept is a quite new proposition; namely, that the Government should have the power to omit services from Schedule 1 by order. However, there is no suggestion, of course, that they should have the power to add services by order. Again, the question that all noble Lords have been asking the Minister is: why not? Why this imbalance, this tilt, against legal aid? My own view is that the answer is a bit depressing. It is that, to put it mildly, the ministry has a rather small-minded, extraordinarily partial view of legal aid; it does not much like it and would rather be rid of it than defend it. It does not see it as central to access to justice, let alone the rule of law, and is rather looking forward to cutting more. What other impression can one possibly get from the way in which this clause is drafted?
It is often said, particularly in this House, that the real argument against allowing a provision like this is not for now but for a future government who may not be troubled by the same principles as are supposed to exist in all modern governments of whatever complexion. However—and I hope that this does not sound too harsh—my own reason for not allowing this crude power to omit legal aid to the Government is just as much to do with what I fear is the present Government’s careless attitude towards legal aid as with some rogue government in the future.
Right across this Bill, or right across Part 1 at any rate, the cavalier manner in which it is proposed to decimate social welfare law, to remove clinical negligence from scope and to restrict the definition of domestic violence on the one hand and have too wide evidential criteria for it on the other all tend to suggest that, on the importance in our society of the availability of civil legal aid for ordinary citizens to access justice, the Government really do not have the enthusiasm that they should have. I believe that this view is shared by many inside and outside this Committee. How then can it be right to entrust the Government with the new extensive powers that they propose? Legal aid could be further diminished by order, but nothing could be added to it except by primary legislation. Just to state that proposition shows how wrong it is.
No one apart from the noble Lord, Lord Goodhart, has referred to the two important reports that have been published for our benefit. One was from the Delegated Powers and Regulatory Reform Committee, which discussed this issue and came to the following conclusion:
“The Committee has concerns about clause 8(2), and those concerns were not allayed by the explanation in the memorandum that this was merely an updating provision. However, there is precedent for a power of this type to be delegated and subject to affirmative procedure (whether the power is to add or to remove from the Schedule), and on that basis, we do not find it inherently inappropriate. But we draw it to the attention of the House because it is not limited to routine updating and may legitimately be used to make substantial omissions from Schedule 1.”
The Select Committee on the Constitution said this about Clause 8(2):
“Under the Bill the Lord Chancellor will have a power to modify Schedule 1 by omitting further services from the scope of civil legal aid (clause 8(2)). Orders made under clause 8(2) will be subject to the affirmative resolution procedure. This provision should be amended to enable the Lord Chancellor not only to omit services from the scope of civil legal aid but also to add services to the scope of civil legal aid.”
I do not want to quote from the Government’s response to both those committees’ reports. Perhaps the only advantage was that of consistency, because the two paragraphs were the same in each case. If noble Lords look at those paragraphs they do not make a convincing case, or indeed any case at all, against the amendments that have been raised in Committee today.
This is another part of the Bill where the Government must move. I very much hope that the Minister will show signs that the Government have listened to the unanimous view of these committees on this matter today.
Lord McNally
My Lords, I thank all noble Lords who have contributed to this debate, and particularly my noble friend Lord Faulks for introducing it. There is a little bit of the political bruiser in me that always wants to take the noble Lord, Lord Bach, full on, particularly when he is in piety mode. He was part of a Government who carried out six reviews of legal aid in its last five years, brought in real cuts, and had an actual manifesto commitment to cut legal aid.
Lord McNally
As I said at the very beginning, we were faced with circumstances where we had to make hard choices. The noble Lord sticks to the mantra, “Not these cuts, not this place, not now”.
A number of telling points have been made by the contributions today. To clarify a point that my noble friend Lord Faulks asked for, the regulations under Clause 8(2) would be subject to the affirmative procedure in terms of parliamentary scrutiny. However I take full note of the point that the noble and learned Baroness, Lady Butler-Sloss, made, that strong and experienced legal opinion has advised against this one-way street which is built into the Bill. I also take on board—which is why I want to come back to this at the end—the question of primary legislation as against secondary legislation.
I also take note of the advice of the noble Baroness, Lady Mallalieu, about the need for flexibility and future-proofing, which my noble friend Lord Thomas also referred to. The importance, as the noble and learned Lord, Lord Scott, pointed out of the adequacy of the civil justice system, is something that is constantly in our minds in trying to determine our priority, and I take on board the warnings that we have had about the dangers of litigants in person.
The noble Baroness, Lady Kennedy, asked whether the aim was to see legal aid wither on the vine. That is certainly not our intention. Like previous speakers, the noble Baroness argued again the case for having some guard against what she termed the “law of unintended consequences”, although the term “sucking on the sweetie” must be some aspect of Scottish law rather than English law. As a non-lawyer, I would not know. However I agree that “sucking on the sweetie” may well be the test of all legislation.
My noble friend Lord Carlile called for us to keep the door open. He was right to say that all Ministers must be ready to take lobbying; that is not in doubt.
Lord Clinton-Davis
What I said was that secondary legislation should be introduced only where essential, and the onus of proof is on the Government.
Lord McNally
I did hear the noble Lord’s speech. I was merely pointing out that as a parliamentarian I, too, have worried about the overreliance on secondary legislation, which is a point that I would concede to him.
There is no doubt that there is great strength of feeling about these amendments. I assure the Committee that the Lord Chancellor has noted the concerns; my noble friend Lord Thomas and others had a meeting with him earlier in the week when they put this case very strongly. With the leave of the House, and I think the noble Lord, Lord Bach, intimated this in his wind-up speech, in the full light of the points made in this debate and by the Delegated Powers Committee and the Select Committee on the Constitution, both of which have been referred to, may the Justice Secretary look at these matters again and give serious consideration to the amendments—not all of which mesh together—so that we can bring back proposals regarding this clause for further debate on Report? Given that assurance that we are taking this matter away in a constructive way, I hope that noble Lords will agree to not to press their amendments today.
Lord Faulks
My Lords, I am very grateful to all noble Lords who have spoken in this debate. It is a matter of happenstance that I am dealing with this amendment. The other amendments are in the same spirit, although to slightly different effect. I do not wish to intrude on the spat between the noble Lords, Lord McNally and Lord Bach. My concern, in this amendment, is not so much the detail, which we are going to develop in due course in argument, but more the question of principle, which I would suggest, and others all round the Committee have suggested, is at the moment embodied in this clause in a most unsatisfactory way.
I am, however, very grateful for the conciliatory noises made by the noble Lord, Lord McNally, and for his assurance that what has been said in this debate, and what has been said in the various committees that have considered this clause, will be noted by the Lord Chancellor. I very much hope that, when this matter comes back on Report, those concerns can be reflected by the Minister. In that guise, I am happy to withdraw this amendment.
Lord Bach
I agree absolutely. It seems to follow because the people who practise this kind of law—and we know that they are not particularly well-paid lawyers—are very careful, on the whole, to give advice on the position in law and not necessarily what the claimant wants to hear. It is right that people with hopeless claims do not go forward and those with meritorious claims do go forward—as they should do.
These are legal problems—let us make no mistake about that. The truth is that the welfare benefits field, as we have heard all round the House from great experts, is very complex in many cases and people need help with these matters before they can decide the right thing to do.
Judge Robert Martin, the head of the Social Entitlement Chamber of the First-tier Tribunal, gave evidence to the Justice Committee inquiry some time last year. The 7,500 pages I referred to in an intervention are the reference material that was issued to the tribunals and which is now spread over six volumes. He made that point to the Justice Committee. He was asked by the chair, the right honourable gentleman Sir Alan Beith:
“Will it bring more people into the tribunal because they have not been advised that their case has no chance of success in the tribunal”?,
which I think is the question the noble Lord, Lord Thomas of Gresford, asked me. Judge Robert Martin said:
“Yes, because a general public awareness of tribunals is very low. Very little is put into public education of the law and how to seek redress for grievances. There is this risk that we will see many people who have been drawn to the tribunal believing it is the most appropriate forum to solve things, whereas it may be just a mistaken conception about the tribunal”.
He continued:
“Legal help is so important in that triage function of sifting out cases which can be redressed but not through the tribunal or the court, and assisting those cases where the tribunal or the court can assist to have the case prepared in a way that maximises the chance of success”.
That gives the answer from someone who is, as it were, at the coal face. He went on to say:
“With the removal of legal help, we will have to spend a lot more time explaining simply what the tribunal is about rather than getting to the heart of the matter”.
This Bill is at its worst in this particular part. I argued at Second Reading—and I argue again today—that it is unconstitutional in that it removes access to justice for a large number of citizens, it is immoral because the state should not try to save a fairly small amount of money by targeting the poor and the disabled by removing their legal rights, and it is financially crazy because the savings will be non-existent. As benefits mistakes are not remedied, the problems will grow and the cost to the state will explode.
We are very proud of our legal system in this country and we encourage, quite rightly, foreign citizens to litigate their cases in British courts. They do so because of the extreme fairness and expertise of the British legal system from top to bottom. It is ironic, is it not, that we should be asking foreigners to litigate their serious cases in our courts because of the greatness of our system, while at the same time we seek to reduce some basic rights in law for our own citizens who are the least able to look after themselves?
Lord McNally
My Lords, Amendments 32 and 89 seek to bring welfare benefit matters into the scope of legal aid funding, first, by deleting the exclusion for welfare benefits in Part 2 of Schedule 1 and, secondly, by adding social welfare as an in-scope category in Part 1 of Schedule 1.
The amendments are contrary to our reform programme in which we are focusing our resources on the highest priority cases. Currently legal aid is available for legal advice but not representation in relation to decisions on welfare benefits at the First-tier and Upper Tribunals. While we recognise that many people rely on welfare benefits, these cases are primarily about financial entitlement. In our reforms we have concentrated on the fundamental issues of liberty or safety. Given the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme.
Lord Howarth of Newport
Can the Minister explain why poverty is a less fundamental issue than liberty or safety?
Lord McNally
I am going to go on to this. I must say to the noble Lord that it would help if I can get further than just past page one. I will deal exactly with the issue that he has raised. As the noble Baronesses, Lady Mallalieu and Lady Howe, indicated, we will have a series of debates on a number of specific individuals who will be affected by reforms.
A number of noble Lords have cited their own experiences, either professional or personal, so I shall in part answer the question asked by the noble Lord, Lord Howarth, by giving a personal experience of my own. In 1976 I sat in the Cabinet Room in Downing Street with the Chancellor of the Exchequer and the Prime Minister—Denis Healey and James Callaghan—and during the course of a two or three hour meeting the pound fell from 1.95 to 1.45 against the dollar. By the time it hit 1.45 we had sent for the Governor of the Bank of England and decided to call in the IMF. Like many events, it has left a political scar, which is this: if you lose control of your own economy, all the concern for the poor and the disabled and the disadvantaged is as nothing because you cannot help them if you are not in control of your own economy.
Many of the debates that we have heard in the past few days, including this one—and probably the one tomorrow—have addressed the kind of issues that we have heard today. As I look around the House, I know that on all Benches there are people who have devoted their lives to the betterment of the citizens of this country. No one party has a monopoly on that. However, it is right to say that we have had to take hard decisions in difficult circumstances. I hear that £1 million is within the margin of error and that £20 million is trivial, but in a department like mine those are the figures that we are having to face and deal with. Therefore, although I understand some of the—
Lord Howarth of Newport
I am sure we all accept that it is imperative that the Government do not lose control of the economy, as the Minister puts it, but it is a question of how you gain control of the economy. Why do this Government prefer to deprive people of legal aid in their appeals for welfare benefits in order to save £25 million—they think, but very good reasons have been put by noble Lords all round the House as to why that saving would be illusory—while being prepared to spend much larger sums on freezing council tax, which will largely benefit more affluent people, or on weekly refuse collections? It is a question of priorities.
Lord McNally
Politics is always a question of priorities. We keep on having this Second Reading debate. If we want a bit of knockabout, it has taken the Shadow Chancellor and the Leader of the Opposition 18 months into this Government to accept the cuts that the Government are imposing. We can have a knockabout if you want. We started this debate some months ago and what we are talking about is a department that is making its contribution to a roughly 20 per cent cut in public expenditure. That kind of adjustment was necessary—and I think has been successful—to retain the confidence in our economy which others have lost, and which has allowed us to borrow at lower interest rates and keep that readjustment within manageable terms.
Of course, as each department brings its proposals forward, tough choices are made. I am sure there are people in local government who are having to make tough choices, and when they make those tough choices people will extrapolate the consequences of those tough choices—but let us not pretend that there are alternatives to those tough choices. It is also interesting. I am not sure where we are on this. I could not intervene because my noble and learned friend Lord Wallace was in charge of that.
During the medical debate, the noble Lord, Lord Phillips, stood up and with a perfectly straight face, and supposedly making an argument on his side, cited a case where £90,000 was spent—£45,000 on legal fees and £45,000 on advice—to produce £4,500 of compensation for the person offended. It did not seem to occur to the noble Lord, Lord Phillips, but it did to me as a poor, innocent, non-legal layman, that there is something wrong with a system that absorbs £90,000—
Lord Beecham
That was hardly a representative example of cases. In most cases—although necessarily costs in clinical negligence cases are higher than the average—they are nothing like that proportion.
Lord McNally
I never even suggested that. However, I am suggesting that we are talking about processes where the response of the Opposition, and sometimes my noble friends, seems to be yet more lawyers, yet more litigation—
Lord Phillips of Sudbury
I thank my noble friend for giving way, but I must just reply. First, the whole point of my alarming case was to show how desperately needed reform was. Secondly, it was to support the amendment because were aid available to get expert reports right at the beginning, you would know at the outset whether the case was a runner and some of these crazy expenses would be knocked out.
Lord McNally
It still seems barmy to me. Likewise, with regard to the 7,500-page volume mentioned by the noble Lord, Lord Bach, and the noble Baroness, Lady Lister, in 13 years of Labour Government, did nobody think, “What kind of system are we producing that requires that kind of detailed explanation and advice?”? It seems to me that the approach is not reform, as the noble Lord, Lord Phillips, said, but forever putting another layer of wallpaper on an already dirty room. We are about reform and one of the things that we are reforming—again, it would be interesting in wider debates to hear where the Opposition is on this—
Lord Bach
If the Minister’s best point is that the volumes on welfare benefits increased in the years of the Labour Government—as no doubt they did in the years of the Conservative Government before, and have done for 30 or 40 years as the system has got more complicated—that is a pretty poor argument for taking out of scope social welfare law, frankly.
Lord McNally
That is not my best point. The best point is that we are having, supposedly, a national debate about welfare dependency and welfare reform. It may be a bit unsettling that a number of reforms are taking place at the same time, but my understanding is that the welfare reforms before this House are attempting to simplify a much overcomplicated process and that that had the broad support of the Opposition. I do not think we are going to win this argument, some of which we will return to.
Amendment 35 seeks to bring into scope legal aid for advice and assistance for appeals to the First-tier Social Entitlement Chamber in respect of welfare benefits that are payable under social security legislation as a result of disability. The intention of the amendment appears to be for legal help and representation to be provided for welfare benefit appeals in the First-tier Tribunal for those with disabilities. Currently, legal aid is available for legal advice only in relation to decisions on welfare benefits in the First-tier Tribunal. Legally aided representation is not available for tribunal hearings because they are designed, as has been said, to be user-friendly without the need for legal representation. Therefore, we believe that this amendment would increase the cost of legal aid by expanding it into areas where it is not currently available.
We recognise that this amendment is concerned about the impact on those with disabilities who are appealing to the tribunal. While we recognise that those with disabilities may face additional obstacles, the tribunal is a relatively informal venue. The tribunal itself will comprise a medical practitioner and a disability expert as well as a tribunal judge when considering disability living allowance appeals. Given this and the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme. I hope that my noble friend will withdraw her amendment.
Baroness Doocey
My Lords, I am grateful to all noble Lords for their support on these amendments.
I have listened very carefully to what the Minister has said and I cannot pretend I am not disappointed by the response. There is no doubt that we need to get a higher proportion of benefit decisions right the first time round but I have not seen anything to convince me that this is going to happen any time soon.
Huge numbers of mistakes are made in decisions on benefit, and these have catastrophic effects, not just on the person trying to claim the benefit, but on their entire family.
I will give you one example. Somebody that I have known for 30 years has incredibly complex problems with her back following an accident. She had worked all her life, and was forced to claim benefit. She is so badly damaged, having had multiple operations, that she is incapable of standing for more than three minutes at a time. She spends the majority of her life lying down to take the pressure off her back, and is on incredible amounts of medication. Initially she was assessed as having no problems whatever, and that she could work. While she is a highly articulate person, she is terrified of authority, and so without being pushed by a number of us, and having recourse to legal aid, because she had no money at all, she could never have appealed that decision, which was clearly absolutely wrong.
I therefore really worry about what is going to happen if this goes through. I really hope that the Minister will reflect again and consider bringing back some hope at Report stage. Meanwhile, I beg leave to withdraw my amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(14 years, 6 months ago)
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Lord McNally
My Lords, even at this late stage of the night, the mere appearance of the noble and learned Baroness at the Dispatch Box brings a smile to my face. I hope that the noble Lord, Lord Bach, does not feel any jealousy.
Lord McNally
Of course, having listened to a debate dominated by what I acknowledge is a great deal of expertise and experience in this area, I will go away to ponder and think about what has been said, and discuss it with my right honourable friend the Lord Chancellor. At this time of night, like the noble Baroness I think it is better if I put on the record our approach and we can then resume on Wednesday.
Amendments 33, 34, 39, 40, 41, 51, 52, 79B, 80, 80A, 82A, 82B and 82C all concern legal aid for children and young people, or people with dependent children. Others refer to the use of mediation in family cases. While—as I have said—I acknowledge the expertise and experience on display today, and while I understand what motivates these amendments, I ask the House in turn to acknowledge the economic realities behind the difficult decisions that we have been forced to take.
As the House is well aware, the Government’s approach has been to look at every area of law where legal aid is provided, and to consider whether it should continue, and in what form. In developing our proposals, we have considered carefully a number of factors, including: the importance and complexity of the issue; the litigant’s ability to present their own case; the availability of alternative sources of funding; and the availability of other routes to resolution. We have used these factors to prioritise funding so that civil legal services will be available in the highest priority cases; for example, where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or for domestic violence remedies, or where children may be taken into care.
A number of noble Lords have drawn inferences that this is a cruel and uncaring Government; as the noble Lord, Lord Alton, said, a government for the sharp elbowed. Let me just put on record at this stage and remind noble Lords that even after our reforms are in place we will still be spending £120 million of funding per year for private family law, including domestic violence; an extra £10 million per year on mediation; £50 million on categories of social welfare law; £6 million on clinical negligence; and £2 million on education. That is why I sometimes bridle at suggestions that we are destroying the legal aid system. We are trying to manage an overall cut in legal aid that will still leave us with—as I have said before—one of the most generous legal aid systems in the world.
Amendment 33 applies to all civil and family proceedings, and seeks to bring into scope civil legal services for many areas of law that are excluded where the individual has a child who is dependent on them. The intention appears to be that this group of people should receive civil legal services because of the potential impact on their children of the withdrawal of legal aid. The amendment would retain funding across the board for people with dependent children, without regard to the relative priority and alternative methods of resolving disputes, and would lose the bulk of the £170 million of annual savings, as most family law cases involve a respondent or applicant who has dependent children. It would also significantly impact on the £110 million saving in other areas of civil law. We have not sought simply to retain legal aid for any case where the individual has a child. Doing so would mean expending limited funds on a range of cases: some important, some not as important and some where alternative ways of resolving the dispute would be preferable. Therefore, I hope that noble Lords will not press the amendment.
Amendment 79B would bring all civil non-family matters within scope for children, with the exception of work relating to breach of a statutory duty, the making of wills, trust law and business cases. Amendment 82C seeks to bring into scope civil legal services covering welfare benefits, debt, housing and employment for those aged 24 or under or who are represented by a legal guardian. Amendment 82B seeks to bring into scope civil legal services in relation to advice and proceedings where the person is a care leaver under the age of 21 in wide-ranging civil and family areas specified in the amendment. Amendment 79B would mean that nearly all civil cases would be brought into scope if the applicant were a child. It is worth making it absolutely clear that in civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s litigation friend rather than by the child themselves. This accords with the normal rules of civil litigation. The civil justice system as a whole does not generally require children to act on their own behalf.
I turn now to the rest of the amendments in the group. Providing blanket funding for all cases where the child or young person is the applicant would be costly, unnecessary and might create perverse incentives for parents to attempt to bring civil litigation in their children's name purely to secure funding in otherwise out-of-scope areas of law. The Government recognise the importance of funding in a range of cases where children's interests are paramount. This is reflected in the decisions that we have reached. As a result we have protected funding in areas that specifically involve children. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We have also made special provision so that legal aid will be available for children who are made parties to private family proceedings.
There will also be an exceptional funding scheme that will ensure the protection of an individual's rights to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. Each case will be decided on its own facts, but in cases where Article 6 of the European Convention on Human Rights is engaged, the ability of the client to present their own case, the complexity of the issues and the importance of the issues at stake will be relevant factors when a decision is taken on whether to grant exceptional funding. Therefore, where a child brings an action without a litigation friend, this will be an important factor in deciding whether they have the ability to present their case.
Amendments 80 and 80A seek to bring into scope civil legal services for any person who is under 24 and has a disability. They include but do not limit themselves to particular areas of scope that are excluded. Amendment 82A seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 or under and has a disability or lacks mental capacity. We have considered the point that the amendment makes about legal aid for those with disabilities. The equality impact assessment published alongside the Government’s response to consultation sets out our analysis of the potential effects that the reforms may have on people sharing protected characteristics in accordance with the public sector equality duty set out in the Equality Act 2010. We have acted consistently with that duty, one requirement of which is to have due regard to the impact on groups of different ages and those with different needs, such as disabilities. While we have identified the potential for the reforms to have greater impacts on some groups, we believe that those impacts are proportionate and justified by the need to meet our objectives, including the pressing need to make savings from legal aid.
Lord Howarth of Newport
As this issue came up in an earlier debate, will the Minister explain to the Committee how it is that his policies that he acknowledges will have an impact on disabled people are not discriminatory and therefore legally offensive?
Lord McNally
They are not legally offensive. We have been honest right from the first day I answered questions. I go back again to this, which is something that the noble Lord in his many, many interventions never acknowledges. If you are making cuts in such an area that is directed at the poorer sections of society, of course, you will affect the poorer sections of society. But what will also affect the poorer sections of society is if you lose control of the economy and are forced to bring in further draconian cuts over which you have no control. We will return, as we have done, through six or seven parallel debates with the same briefings and research from the same organisations. We have a fundamental difference of opinion on how to tackle these problems. I am not even sure that the noble Lord is quite on message at least with the latest pronouncements from his Front Bench in the other place about what we are facing in these matters. I suspect that we will have further discussions on this.
The Bill contains important safeguards for children and adults who lack capacity and who require treatment for mental health issues. Paragraph 5 of Part 1 of Schedule 1 provides that legal aid may be made available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning medical treatment of patients or those who lack capacity. Furthermore, paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the mental health tribunal. Paragraph 4 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual: medical treatment, including psychological treatment; life; liberty; physical safety; the capacity to marry or enter into civil partnerships; the capacity to enter into sexual relations; or the right to family life. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for an onward appeal to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope.
As I have already mentioned, there will also be an exceptional funding scheme that will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights as well as those rights to legal aid that are directly enforceable under European Union law.
Amendment 34 applies to all civil and family proceedings. It seeks to bring into scope civil legal services for many areas of law that are excluded for any child party or child represented by legal guardian. I will address the amendment on the basis that the term “legal guardian” means the child’s guardian of the type appointed by CAFCASS. We are already retaining legal aid for child parties in family proceedings which we have prioritised. This part of the amendment is therefore unnecessary. Otherwise the amendment retains funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them.
As I said, the Government recognise the importance of funding in a range of cases where children’s interests are paramount. That is reflected in the final decisions we have reached. As a result, we have protected funding in areas that specifically involve children. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings.
Baroness Scotland of Asthal
I understand that the Minister is trying to give a full response, but in his valiant reply he said that the international child abduction cases were difficult and complex and that domestic abduction cases were not. Will he think again on that issue, not least because the complexity of the issues relating to abduction is similar in both domestic and international cases? Quite often the parents are greatly distressed, very confused and in need of the quick, experienced lawyer who is able to navigate the system. Many lawyers find abduction cases difficult and international cases are not very dissimilar. Will the Minister take back to the department that the belief that domestic cases may be easier than international cases is not quite as it may think it is.
Lord McNally
That is always the problem. If you say that one thing is more difficult it is implied that the others are easier. No, I was not implying that. I take the noble and learned Baroness’s point. One of the more difficult areas is where there is a break-up of a family and a loss of contact. I shall read what has been said and take it back.
Baroness Butler-Sloss
Perhaps I may add to what the noble and learned Baroness, Lady Scotland, has said. I have listened with interest to what the Minister is saying to us, but he suggested that the police would intervene even without going to court. Will he check as to whether the police are prepared to act in the absence of a court order? My experience, which is now six years out of date, was that the police were not prepared to act unless there was a court order. It would be very helpful if the Minister could find out about that very practical and basic point because it adds a great deal of force to what the noble and learned Baroness, Lady Scotland, has said.
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.
Prisons: Population
Lord McNally Excerpts(14 years, 6 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government have embarked on a series of policies to make the public safer—in particular, by breaking into the cycle of reoffending. Our policies, including measures in the Legal Aid, Sentencing and Punishment of Offenders Bill now before this House, are expected to impact favourably on the size of the prison population.
Lord Dubs
My Lords, does the Minister agree that since the coalition came to power, the number of people in prison has risen to a record figure of over 80,000, the highest ever for England and Wales, and that, even if the impact assessment on the legal aid Bill works out fully, that will barely bring the prison population down to what it was before the coalition came in? Is it not fair to say that the Government have given up on this?
Lord McNally
My Lords, on the contrary, what the Government have not done is to play the numbers game. People are in prison as a response to offences committed and sentences imposed by the courts. Simply making arbitrary decisions on prison numbers is pointless, but what we are doing is putting into place policies which, as I have said, particularly tackle what I think is one of the major problems in the upward trend in our prison population—that is, the unacceptable level of reoffending. That is why we are putting a lot of effort into policies on the rehabilitation of offenders.
Baroness Knight of Collingtree
My Lords, will my noble friend bear in mind how many times we have seen news of a prisoner who has been let out of prison early causing great trouble, including murder? We must always keep an eye on the danger of letting people out of prison too early.
Lord McNally
My Lords, that is the mirror image of the Question put by the noble Lord, Lord Dubs. There is no doubt that every time you release a prisoner, there could be a danger of reoffending. That is why the assessment is very thorough and the management—the Opposition Front Bench is nodding as though I was saying something brilliant. I am not changing policy at all, and what we are certainly not going to do is let out 80,000 people early because we have mismanaged the prison building programme. If anyone wants to talk about mismanaging prisons, we can look at the record over 10 years of the previous Government. In terms of the question asked by my noble friend Lady Knight, it is absolutely correct that Ministers are aware of public concern about the management of ex-prisoners. That is why we take great care in these matters and why, when we look at the alternatives to prison, we make sure that the public have confidence in the policies we put in place. That is the reality.
Lord Mackenzie of Framwellgate
My Lords, does the Minister agree that one of the greatest deterrents to the commission of crime is the fear of being caught? How is this helped by a 20 per cent cut in police funding?
Lord McNally
Again, there are great nods from the Opposition. Apparently the reality of the necessity for cuts has reached the Leader of the Opposition, yet any specific cut is met with shakes of the head. The police are being asked, as are many others, to carry through efficiency programmes, but we remain confident that they will deliver in terms of public safety while carrying out the programmes that have been requested of them.
Lord Woolf
Does the Minister agree that more important than when a prisoner is released is whether, when he is released, enough has been done while he is in custody to ensure that he does not quickly return to prison by reoffending?
Lord McNally
That is exactly the point that my right honourable friend the Lord Chancellor made. It is the rehabilitation of offenders that we must look at. Yes, people who have committed serious crimes should be put in prison but, unless you are going to keep them in prison for ever, you are going to release them at some stage. Therefore, the policy aim must be to put in place programmes of rehabilitation to avoid reoffending wherever possible. It was put to me on a prison visit that the best chance of avoiding reoffending is for prisoners to have the prospect of a job, a place to live and a relationship. Those are difficult things to put in place but that is, and will continue to be, the thrust of our policy.
Baroness Hamwee
My Lords, can my noble friend tell the House about any progress that is being made in reducing the number of women in prison, both on remand and following sentencing? I know that he shares my view that this carries a huge cost—not just a financial one but in particular a social one.
Lord McNally
My Lords, there are about 4,000 women in our prisons at the moment, and anyone who takes a moment to study these matters will say that that is far too large a number. We are taking forward a range of measures to look at how women who have committed crimes outside the prison regime can be treated. I pay tribute here to the landmark Corston report from the previous Administration. We are pursuing most of the recommendations, as did the previous Administration, but, like them, we have found the key recommendation specific to small units too costly to pursue. It is widely said that women need a different kind of treatment and I believe that to be the case. This is a serious problem and one that we are taking seriously in terms of initiatives on drugs, debt and treatment outside. Those are the facts.
Lord Bach
My Lords, when the Government were in their first flush of enthusiasm, they were full of claims as to how much smaller the prison population would be by the time of the next general election. Who was playing the numbers game then? How times have changed. Particularly bearing in mind the increase in crime that is now being reported, what is the current forecast of what the prison population will be at the next election in May 2015? What a contrast all this is with the days of the previous Labour Government, when crime was being reduced by 43 per cent.
Lord McNally
The commitment that we have made is to try to bring in a raft of policies that address specific problems about reoffending which are key to the size of our prison population. I am not going to play a numbers game; indeed, we never have. I look across at some of the heads shaking and nodding opposite, but I personally find this matter far too serious to play a numbers game.
Lord McNally
I know that they do not like it but the fact is that during their period in office the Labour Government oversaw a massive increase in our prison population without tackling at any time scandalous levels of reoffending, ranging from 50 to 70 per cent.
Lord McNally
Time, yes; and it is time that the Labour Opposition faced up to their appalling record on crime.