Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 4 months ago)
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Lord Wigley
My Lords, Amendment 137A stands in my name, as well as in the names of the two noble Lords who have already spoken. Back in the 1970s, as a young Member of another place, I was very involved in campaigning on respiratory injury caused by slate dust in the slate quarries in my area. Slate dust, of course, causes a progressive disease similar to asbestosis. I was also involved in the asbestos battle—and I also knew the late Nancy Tait very well—in that I had a Turner & Newall, or Ferodo, factory in my constituency and had constituents who were affected by asbestos. I also gave evidence to the Pearson commission on these matters in the 1970s.
In the debates on this Bill I have already made clear my feelings about how proposals to cut the Ministry of Justice’s budget will have a disproportionately negative effect on individuals who have been injured or disabled. During the debate on Part 1, I argued against removing access to legal aid from those injured due to clinical negligence. My comments today will, for the most part, centre on the legal implications for another group—those injured due to exposure to harmful substances such as asbestos. The case for mesothelioma has been made graphically by the noble Lords, Lord Alton and Lord Avebury, so I shall concentrate on the provisions of the Bill.
Under the proposals in Clause 43, a success fee under a conditional fee arrangement will no longer be recoverable from a losing party in all proceedings. This fee will instead have to be paid for out of the modest damages awarded to the injured person, meaning that they may lose up to 25 per cent of their damages. Clause 45 removes the recoverability of the after-the-event insurance premium from the losing defendant, and this will probably result in this premium also being taken out of the damages awarded to the injured party. To put this in context, an ATE insurance premium for an employer’s liability case, such as for industrial disease, can cost up to £12,000.
Both clauses will have an adverse effect on individuals attempting to bring cases against companies or organisations as a result of an illness or respiratory disease they developed after being exposed to a dangerous substance. For this reason, I support the amendments before us, and perhaps I may set out why I think this is necessary.
As it stands, the present system, which comprises both conditional fee arrangements and ATE insurance, allows an individual to proceed with a case against a corporation or organisation which has caused them harm without the fear that they will in some way be left worse off after bringing the claim. There is sometimes a feeling that no-win no-fee claims are bogus and encourage mercenary behaviour. This conveniently ignores the fact that many meritorious cases, including those brought by victims of industrial disease such as asbestos poisoning, rely on the no-win no-fee system to access compensation.
I draw to your Lordships’ attention a case brought to my notice by the Access to Justice Action Group involving an industrial disease claim for silicosis. The deceased person was employed in a local quarry. He worked in the vibrating shed and blast shed, where he was exposed to high levels of silica. As a result of this exposure, the deceased developed silicosis and lung cancer. He died due to his illness and a claim was brought by his widow. Initial prospects were put fairly high, at 65 per cent to 75 per cent, with potential damages assessed at over £100,000. The ATE insurer, ARAG, a German company, agreed to provide cover. The initial medical evidence obtained was very supportive, and a subsequent admission of liability was then made subject to medical causation.
The outcome was that despite the initial optimistic prospects for the case and liability being admitted, further medical evidence could not prove the necessary causal link. Based on the expert medical advice, the case had to be abandoned. The disbursements incurred totalled £2,019. ARAG settled these in full. Under the Government’s qualified one-way costs shifting proposals the claimant widow would be responsible for these disbursements, as QOCS makes no provision for the payment of claimants’ disbursements in failed cases and the ATE system will not survive to cover these claims. The net effect is that the widow would not have been able to pursue that case.
It would perhaps be beneficial to remember that accident cases are not limited to those accidents which occur on the roads. If Clause 43 is taken forward without amendment, these victims will no longer have a right to redress for the wrong done to them. Likewise, ATE insurance protects an individual from having to pay the costs of the other side if he or she loses a case. In cases which centre on industrial disease, the other side will usually be a multimillion pound organisation with access to teams of solicitors. ATE insurance also pays for additional expenses, such as medical reports, without which cases alleging illness as a result of exposure to a dangerous substance would flounder at the first hurdle.
If Clause 45 is agreed and the recoverability of ATE insurance is removed, the injured person would face losing a hefty proportion of his or her damages to pay for the premium. Thus, without recoverability, both the uplift required to allow a solicitor to take a case on a conditional fee arrangement, and the ATE premium necessary to pay for the costs risk if the case loses, will be paid from the claimant’s damages. That will inevitably mean that many solicitors will be unwilling to take on cases where the chance of recovering their costs is low, without the client having to lose most of their damages. This is particularly pertinent on noting that in lower value cases, the additional liabilities may even exceed the amount of damages awarded. One consequence of people being unable to afford solicitors’ fees will be an increase in litigants in person taking on large corporations which, as well as demoting access to justice, will have an inevitable toll on the courts system. In cases which do proceed, the increased risks for claimants, who will have to pay additional liabilities from damages, will result in a perverse incentive to compromise cases at below full value. This can hardly be said to be promoting access to justice.
It is vital that the present system be kept in place for genuine claimants who have developed illnesses resulting from industrial exposure. I should note that in preparing for this debate I have been assisted by First Assist Legal Expenses, the Association of Personal Injury Lawyers, the Access to Justice Action Group, and by Mr Tony Whitston, to whom the noble Lord, Lord Alton, has already referred. What they all hold in common is a firm view that access to justice should not be barred for those with legitimate grievances who would not otherwise be able to gain the compensation that is due to them.
Cases which involve asbestos poisoning and other industrial disease cases often have more than one defendant and are highly complex. Unsuccessful cases can thus be extremely expensive if there are multiple defendants whose costs would need to be covered if the case is lost. Without a recoverable insurance premium, these cases could not be brought by an individual unless that individual had access to substantial private funds. If an individual is diagnosed with asbestosis, this clearly indicates that they have been in contact with asbestos. Even so, due to the complex nature of these cases in establishing liability, pleural thickening and asbestosis cases attract only modest damages. Most solicitors will not be able to take on the risks involved in these cases without being able to recover the ATE insurance premium. Those suffering from industrial illness thus face being additionally victimised by the justice system.
Equally, and as the Association of Personal Injury Lawyers argues, individuals who are diagnosed with asbestosis are at a greater risk of developing a fatal disease like mesothelioma later in life. Currently, a case for asbestosis must be brought within three years of gaining knowledge of the disease. If a case is not brought within that time frame due to an increased risk of costs, and in the mean time mesothelioma develops, the injured party may well be unable to bring a claim for the disease. He or she would then be denied compensation twice—both for the asbestosis and mesothelioma.
In summary, the reforms proposed in Clauses 43 and 45 would have a disproportionately harmful effect on claimants bringing cases against corporations and organisations as a result of illness incurred after exposure to dangerous substances. The notion that the Government intend to remove the means currently in place that allow individuals to pursue justice in such distressing situations makes a mockery of the principle of equality of arms—a complaint that I brought against the proposals in Part 1 of the Bill. One of the principal reasons that the then Government introduced recoverability was so that meritorious cases could be proceeded with without potential claimants having to face undue costs if a complex case were lost. The then Government also recognised that victims having to pay additional liabilities from their damages put them at a disadvantage compared with claimants who were eligible for legal aid. If these reforms are implemented, the system will no longer be able to deliver compensation to individuals whom the law is designed to protect.
There is a related anxiety that without the deterrent of individuals being able to bring claims for compensation, breaches of the law will increase. Most pressingly, the Bill injects yet more uncertainty into cases that are already complex and distressing. Many individuals will not be able to proceed with legitimate claims, regardless of their merits, because they will not be able to find solicitors willing to take on their cases. These groups or individuals have already suffered grave wrongdoing at the hands of others. Surely our legal system should do all it can to redress that wrong rather than put up further barriers to justice for them.
Lord Martin of Springburn
My Lords, I support the amendment and the noble Lords who spoke. My thoughts turn to a lawyer, the late Frank Maguire, who died recently. He was a campaigning lawyer on behalf of asbestos sufferers north of the border. He took on very difficult cases. Many of them were test cases. The important thing for his clients was that he offered a no-win no-fee arrangement. We may be perhaps comfortable in our lives, but it should be remembered that a disease of the lungs creeps up on a person. They feel breathless gradually. They might put it down to smoking or something else around them. Also, because of their shortness of breath, they lose time at work if they are lucky to be employed, so they are not very well off financially by the time they go to see a solicitor. When they see the solicitor, it is a great relief to have a no-win no-fee arrangement.
I was in a room with a constituent who was being questioned by the late Frank Maguire. Frank would go back to a time when they were 15 or sometimes 14. Like a police officer, he would ask about every place of employment where the person had worked. The person suffering from the disease and difficulty had to recall all the places they had worked because—let us face it—an employer is going to deny liability and a lawyer has to ensure that the right person or company is being claimed against. That is not easy with all the closures that have taken place over the past 50 years. Many companies have closed down and others have changed their name. Some companies that have stayed in business have changed their address, so it is hard for a lawyer to track them down. It would be a great help if the Minister would say that in this instance the Government will make sure that they do not create any more difficulties not only for sufferers but for their families.
I did not set out to be an asbestos worker, but these things happen when you go into a factory. As an apprentice metal worker I was expected to drill metal; I made electric heaters. As in the case of the toasters that the noble Lord mentioned, the elements of the electric heaters were wrapped around light asbestos board. When I was 16, my boss used to instruct me to cut and drill the asbestos. There were many young women in the factory who drilled the asbestos. In fact, because it was white board instead of metal that was covered in oil that got on your denims, you quite liked this white powder that you could just wipe off, not realising the dangers involved. The relatives come into this because in those days, you did not send your clothes off to the laundry, mum did the washing. In some cases, there could be two or three daughters in one family working with that asbestos and going home. Their mum was exposed to the asbestos. Then if mum was ever feeling breathless, a good doctor—there are many good doctors around—would probably ask a man where he worked before he retired and if he said he worked in the shipyard there might be a possibility that he was using asbestos that was the cause of the breathlessness, but for a mother, a housewife, it might not dawn on the doctor that she had any contact with asbestos. That makes it all the harder for the lawyer to fight the case when it finally comes.
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.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 4 months ago)
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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 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, we are now at the end of Part 2—sorry, I mean Part 1. The Chief Whip was ecstatic at the thought that we might have reached the end of Part 2. As I am leading for the Opposition on Part 2, I would be ecstatic as well, but we are not there yet, and the House may not be so ecstatic when they hear me during our debate on Part 2.
This is another potential sting in the tail of Part 1, given that it looks to be another device to extract from beneficiaries of legal aid—or, more particularly, their advisers—money to help fund the general system. Of course, the practice of having a statutory charge on the assets recovered is long-standing and has been particularly relevant in matrimonial cases. It has been well understood that money was devoted to the cost to the legal aid fund incurred as part of the action. We are now apparently faced, in addition to the charge on property recovered, with a charge on costs paid by the other side in such a case. In reality, given that legal aid rates are significantly lower than the rates of inter partes costs, the defendant’s or unsuccessful litigant’s costs, the inter partes costs in effect help to subsidise the legal aid costs. There seems no logical reason to attach those costs—and it might well have a significant impact on providers, who in the swings and roundabouts that we will debate at some length when we discuss conditional fees under Part 2 actually help to subsidise the work.
Moreover, I understand that there has been no consultation about this aspect, which is a matter of some considerable concern. I do not know whether the Government have assessed the impact on the supply of legal aid providers—maybe they have. The suggestion from some in the profession is certainly that it would have a significant impact on the provision of legal services. I have heard today in a different or earlier context of a significant legal aid practice in the north-east that is seeking to drop a couple of its contracts because it is having to subsidise it from the rest of its work, and the practice cannot cope with that. This kind of provision will make that even more likely.
Lord Wigley
The noble Lord has referred to the fact that there could be some reduction in the number of suppliers who are available, and some may be withdrawing from this field. Does he have any indication of whether that is likely to be a blanket withdrawal or whether some sectors could be particularly badly hit by that, and that therefore those with cases dependent on those sectors might find themselves in a very difficult position?
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.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 5 months ago)
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Lord Wigley
My Lords, I rise to speak to the amendment so comprehensively moved by the noble and learned Lord, Lord Lloyd of Berwick, to which I have added my name. It would go some way towards rectifying the alarming situations that may be faced by individuals who have been disabled due to clinical negligence.
Many people involved in cases arising from clinical negligence by a public authority are among the most destitute. These cases will frequently involve parents or other family members bringing cases against public authorities as a result of traumatic injuries sustained by their children or other relatives. Considering the inequality of arms that inevitably arises, having access to expert reports is vital.
What is perhaps most distressing in cases centring on charges of clinical negligence is that individuals will come up against the state, with its teams of lawyers, during proceedings. Never is an inequality of arms more blatant than in those situations. This is somewhat ironic when we would all agree that the state should have a responsibility to ensure that an individual has the means to hold it to account.
To put this debate into context, there are about 1 million adverse accidents in the NHS every year. About 10,000 of those lead to action being taken against the NHS—in other words, about 1 per cent. These figures gainsay the claim that we live in a compensation culture, at least in this context. People who make these claims may have suffered grievous harm at the hands of a public authority, and they have every right to legal assistance in seeking redress.
What is more, and as the Unintended Consequences: the cost of the Government’s Legal Aid Reforms report, published last week by King’s College, made clear, charging ahead with these reforms would be economic nonsense, as the noble and learned Lord, Lord Lloyd, said. The report states that the proposed changes surrounding clinical negligence cases will cost the NHS some £28.5 million, which is nearly three times the amount to be saved by the Ministry of Justice—about £10.5 million. The figures may be slightly different but the ratios are the same.
Moreover, the Government have not yet specified how they intend to deal with the problems that will arise if legal aid is withdrawn from these cases. As the Bar Council has argued, the Government seem to assume that most clinical negligence claimants will receive representation under a conditional fee arrangement—that is, from a no-win, no-fee solicitor. They also seem to assert that the cost of funding expert reports will be paid for by the retention of recoverable “after the event” insurance premiums. If, however, the Government succeed in implementing these proposed changes to Part 2 of the Bill, clinical negligence cases, which are frequently among the most complex, will present too much risk, preventing most solicitors taking on cases on a no-win, no-fee basis. The difficulties involved in establishing liability will simply be too great.
What is more, under Part 2, after-the-event insurance premiums will no longer be recoverable from defendants, and a number of insurers have said that they will pull out of the ATE market. As the Bar Council once again made clear, it is highly unlikely that ATE insurance will be available for expert reports—hence, victims of negligence will be unable to establish whether their case has merit.
In these proposals, the Government appear to have lost sight of their duty to protect the vulnerable from further harm. Moreover, they have failed to provide a robust alternative to counter the inevitable damage to justice that would ensue if the proposals in the Bill went through unchecked. The Government must retain their responsibility to protect the vulnerable, and I hope that they will listen to the criticisms made in this debate.
Lord Faulks
My Lords, all the amendments in this group are directed towards the retention of legal aid in clinical negligence cases. This is an area in which I have practised as a barrister for the past 20 years or so, acting for both claimants and defendants; I continue to do so.
I should emphasise that in making these few remarks I am not against Part 2, which brings into effect the Jackson reforms. Litigation costs have become wholly out of control, particularly in smaller cases, where legal costs tend to dwarf the sums at issue, and litigation has far too often become concerned about legal fees and the recoverability of insurance premiums rather than what should really be at the centre of the dispute.
However, we should acknowledge that if Part 2 becomes law, difficult cases will be less attractive, as the noble Lord, Lord Wigley, has rightly pointed out. There will be no success fee recoverable, nor ATE premiums, and there is a significant risk that complex but meritorious cases will be uneconomical for legal practices to pursue. The paradigm case which concerns me—and, I dare say, many other noble Lords—is that of a brain-damaged baby. Of course, there are other entirely worthwhile and difficult cases, but such cases are particularly complex and often need many experts to tease out whether there is a case on liability or causation. Without legal aid, individual litigants or solicitors will have to carry investigative costs of many thousands of pounds before, in many cases, deciding that there is no claim to be pursued. There will, however, be quite a number of cases where entirely meritorious claims will simply be unfeasible, so that those who have to bring up brain-damaged babies will be unable to have the consolation and substantial financial assistance which a successful claim may bring as some slight mitigation to the hardship which the child and the child's family will have to undergo for the rest of that child's life.
I understand that the Government have acknowledged that there is potential injustice in the removal of legal aid for such cases. What answers have they put forward in what I acknowledge as being a constructive exchange of views in this area? The first is that CFAs should be available. I am unconvinced of that. Availability would be theoretical only. At the very best, some of the largest firms might take on the occasional case on the basis that they could bear the risk of funding it, but no individual will be able to do so. The second answer given is that exceptional funding within the terms of the Bill will be available in such cases. That is on the basis, as I understand it, that funding will be forthcoming in circumstances where there would be a violation of an individual's convention rights if there were to be no legal aid.
I pointed out at Second Reading that clinical negligence cases very rarely involve any human rights violations. To that argument comes the rejoinder that the relevant article of the convention is Article 6—the right to a fair trial—and that if the circumstances are such that Article 6 is violated, exceptional funding will be forthcoming. The problem with that answer seems to me to be that the jurisprudence from Strasbourg concerning the circumstances in which the denial of legal aid or other state support would constitute a violation of Article 6 is considerably lacking in consistency and coherence. I do not see how anyone could advise their client with any confidence that the refusal to provide legal aid would constitute a violation of Article 6. That means that the exceptional funding answer is remarkably insecure. If it is really the case that the refusal to provide legal aid in such cases constitutes a violation of Article 6, I venture to suggest that there may be some difficulty in justifying the declaration of compatibility with the Human Rights Act which has been signed in relation to the Bill.
If there is indeed an intention to provide funding for the sorts of cases that I am discussing, why not place the provision of such funding in the Bill rather than rely on the vagaries of exceptional funding and potential challenges by way of judicial review or otherwise if a determination turns out to deny access to legal aid in such cases? I appreciate that in the other place the Minister, Jonathan Djanogly, made some reassuring remarks in this area, but they went nothing like far enough to inspire the sort of confidence that is needed that these claims can be pursued.
Baroness Doocey
My Lords, I should like also to speak to Amendments 35 and 89. These amendments relate to the ability of claimants, the majority of whom are disabled, to appeal against decisions on their entitlement to welfare benefits. The intention behind these amendments is to protect some of the most vulnerable people in our society. The Bill as it stands would remove social welfare cases from the scope of legal aid, which would have an adverse and disproportionate impact on disabled people in particular, and would leave them unable effectively to challenge decisions when they are let down by the system.
Legal aid is currently available to assist individuals with a range of welfare benefit issues, from navigating complex benefit administration to reviewing and appealing against official decisions. When appealing against such decisions, advice is available to clients before appeal and tribunal, but legal aid does not cover legal representation—and there is no suggestion that it should. A number of noble Lords have already made the point that the welfare benefits system is complex, and more than half the welfare benefit assistance that is funded through legal aid relates to disabled people. However, despite the best efforts of all involved in a claimant’s initial application, mistakes are frequently made, and these are well documented.
The need for such legal aid is best demonstrated by the fact that nearly 40 per cent of all appeals against work capability assessment decisions are upheld. In addition, between October 2008 and February 2010—a period of just 17 months—60 per cent of disabled people who appealed were eventually found to qualify for employment and support allowance, even though they had initially been assessed as having no factors that would affect their ability to work. The proposals in the Bill would, every year, deny specialist legal advice for complex welfare problems to more than 130,000 people, of whom nearly 80,000 are disabled. Without legal aid, the ability of people to appeal against a decision would be undermined because the rules for benefit eligibility are extremely difficult to understand.
To give just one example, the complexity of the extensive legal precedents determining the criteria for being classed as virtually unable to walk make professional legal advice vital for anyone even thinking of appealing against a welfare benefit decision. We all recognise the need to make economies but the Government’s own impact assessment puts the spending on legal aid for welfare benefits at just £25 million, compared to a total legal aid budget of £2 billion. This is a relatively minor saving but it would have a major effect on large numbers of vulnerable people who need help with appealing when mistakes have been made about their entitlement to benefits. I also argue that failure to provide timely legal advice to assist disabled people who are put on the wrong benefit is a false economy that will almost certainly result in additional demands being placed on services such as the NHS, rather than delivering the savings that the Government are hoping for.
To make matters worse, the Bill is being considered at the same time that the Government are undertaking a dramatic overhaul of the welfare benefits system. With a reform on this scale, there will be a new and unfamiliar set of complexities to navigate through for both claimants and officials. During the transition, there is bound to be an increase in the number of inaccurate benefit decisions made and a consequent need for legal advice to challenge these.
I share the Government’s desire to reduce the number of appeals against decisions, but this reduction must not happen because the loss of legal aid prevents disabled people from challenging decisions. I therefore commend these amendments to the Committee as a means of securing justice for some of the most vulnerable people in our society whose needs are constantly overlooked. I beg to move.
Lord Wigley
My Lords, I strongly support the amendments so ably moved and spoken to by the noble Baroness, Lady Doocey. I recall her impressive speech on these matters at Second Reading. Some of us sat through 17 sessions of the Welfare Reform Bill in Committee and, in session after session, we came across the potential loss of important and valuable benefits on which many vulnerable disabled people depend.
Some of the changes will not be easily understood, and some will be seen as depriving this cohort of people of essential resources that would at least compensate for their disability or enable them to live with it. When they lose or are in danger of losing such benefits there will clearly be a strong feeling that they have been badly treated. If there is any dubiety in law with regard to the way in which they are losing, they will want to challenge that.
I put it to noble Lords that to introduce these two pieces of legislation simultaneously—tonight we are dealing with the legal aid Bill; tomorrow we are back to the Welfare Reform Bill on Report; and on Wednesday we are back to legal aid—given the combined effect that they may have for disabled people, is absolutely wrong. There should at the very least be a facility for those who may be deprived of benefits which are so important to them to challenge that in law during the opening period of the implementation of the Welfare Reform Bill. If, in due course, when things settle down, there is a need to change things, all well and good, but I remind noble Lords that the degree of benefit fraud in the context of disability is minimal. Therefore, it is a question of depriving people of resources to which they have been entitled, the loss of which will make a significant difference to their lives.
The Government should seriously look again at the cost implied by the amendment and the implications of the legislation to find a way in which disabled people and other vulnerable people affected by the Bill can at least have the basic right to challenge it in court.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 5 months ago)
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Lord Wigley
My Lords, I support Amendment 6, which was so reasonably moved by the noble Lord, Lord Bach, and to which I have added my name.
The impact on society of some of the provisions in the Bill will be major and far reaching—perhaps further reaching than was anticipated when the Bill was formulated. I suggest that the Government have attempted to rush through so much legislation that little time has been given to the impact assessments. All Bills tend to have unintended consequences, but overloaded Bills such as this, covering material which perhaps should have been spread over two or three separate Bills, will have even more unforeseen consequences.
During Second Reading, I argued that the cuts in legal aid would have a disproportionate effect on the most vulnerable people in our society. This includes people with mental health problems and other disabilities, who will find it impossible to gain access to free legal advice due to the complexities arising in those cases. It also includes children and young people—particularly those caught up in messy divorce cases and in the likely psychological trauma that can ensue from lengthy court battles, many of which will no longer be covered by legal aid. It also includes those suffering domestic abuse, many of whom will not qualify for legal aid, as the spectrum of abuse that the Government concede to recognise is so narrow.
People with disabilities or mental health issues, children, young people and sufferers of domestic abuse are the groups that will be affected by the changes. However, as the amendment points out, the Bill is likely to have further unintended consequences on the rate of homelessness, social integration and, indeed, suicide. I support the amendment of the noble Lord, Lord Bach, as it would ensure that the Government had a duty to conduct an assessment of the likely impact that these changes would have on such vulnerable groups. It would also require the Government to review the likely costs that would result for these groups were the provisions in the Bill to be introduced.
As the noble Lord, Lord Bach, has noted, that is particularly important if we take into account the findings of the King’s College, London, report, Unintended Consequences: the cost of the Government’s Legal Aid Reforms, published yesterday. This shows that the cuts will result in unbudgeted costs of at least £139 million, cancelling out about 60 per cent of the £240 million projected from the legal aid cuts. The author of the report, Dr Graham Cookson of King’s College, argues that this research undermines the Government’s economic rationale for changing the legal aid budget. He also points out that £139 million is likely to be a substantial underestimate of the true cost. It certainly begs a question as to the extent to which the impact of these cuts has been properly assessed.
This follows on from the findings of the Government’s own impact assessment that the proposals present a risk to social cohesion and the possibility of higher criminality, reduced business and economic efficiency, and increased resource costs for other departments. This finding was noted in the Ministry of Justice’s cumulative impact assessment of November 2010, yet the Government have done nothing to counter these appalling consequences which will come about as a result of the Bill’s implementation.
According to the King’s College report commissioned by the Law Society, private family law will see knock-on costs of £100 million per annum set against the proposed saving of £170 million; social welfare law will see knock-on costs of £35.2 million against a £58 million saving; and clinical negligence cases will see knock-on costs of £28.5 million set against a saving of only £10.5 million. These proposals alone would cost the NHS three times the amount that will be saved by the Ministry of Justice.
The report does not include other costs identified by other research, including the analysis conducted by Citizens Advice in 2010, which suggests that the proposed cut of £60 million from social welfare legal aid will spell the closure of advice services that save the state some £338 million. This point is of course addressed by the amendment of the noble Lord, Lord Bach. In fact, the amendment urges the Government to look at the complete picture—at the destructive impact that these cuts will have on the fabric of our society. I urge noble Lords to support Amendment 6.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Wigley Excerpts(12 years, 6 months ago)
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Lord Wigley
My Lords, I apologise, as did the noble Baroness, Lady Lister, for missing half this debate because of being engaged in the Welfare Reform Bill like a number of colleagues. Time is limited so I will confine my remarks to what I see as the most pressing elements of the Bill. My interest lies mainly in Part 1, but I would like to welcome a provision contained in Part 3, which abolishes the discredited system of indeterminate sentences. IPPs have been controversial. They effectively introduced life sentences by the back door for a huge range of offences. The Government are right to abolish them, although I am concerned that the new system would introduce a mandatory life sentence for those convicted of a second listed offence, so removing judicial discretion.
Unfortunately, the Government seem to be replacing one contentious system with another, which promises to throw up a number of problems. I ask, as did the noble Baroness, Lady Stern, a little earlier, why abolishing IPPs cannot also apply retrospectively. Those serving IPP sentences are languishing in our prisons since little focus is placed on putting them into rehabilitation programmes. Not enough thought seems to have been put into determining a prisoner’s tariff. On average, these prisoners serve 244 days beyond their tariff and it costs roughly £30,000 to keep somebody incarcerated for that period of time. If you multiply that by the 2,229 prisoners who are in that situation, you get a figure of no less than £68 million. The IPP regime has been a rather costly mistake.
Turning to Part 1, the cuts to legal aid propagated by this Bill are, I believe, unethical and will have a damaging effect on the make-up of our legal system. What is more, as the report published by the House of Lords Constitution Committee last week made clear, the cuts go against the constitutional right to legal advice. The cuts will create a market for the supply of legal aid driven by cost rather than the needs of the clients. Profits made by legal aid firms are relatively low and any move to fixed fees for all cases will mean suppliers will be encouraged to take on only the least complicated cases.
The most vulnerable clients, including those with mental health problems and people with a range of disabilities, may find it impossible to gain access to free legal advice due to the complications often arising in these cases, as described so effectively by the noble Baroness, Lady Doocey. As we have heard from many noble Lords, legal aid will also be denied to patients injured as a result of medical negligence as well as workers who have suffered illness due, particularly, to asbestos exposure. I was involved with that campaign 20 years ago, as I had a Ferodo factory in my former constituency.
At present civil litigation claimants are able to bring cases under the no-win no-fee system, which the Bill seeks to overhaul. Claimants can take out “after the event” insurance, ATE, to pay the defendant’s costs if the claim fails, while solicitors counter the risk of claims with success fees which are payable on winning a case. Under the new system, as I understand it, successful claimants will have to pay some costs and “after the event” premiums out of their compensation. Without ATE insurance, the risks of bringing a claim will simply be too great, so the right to redress will be lost for those caught up in the most distressing cases involving clinical negligence.
These proposals are totally unacceptable and made worse still when we note that the Government failed to carry out a full assessment of how their proposals would affect disabled people. Not even those suffering domestic abuse will be guaranteed free legal advice under this Bill. During earlier stages of the Bill in the House of Commons, the Government refused to recognise that the definition of domestic violence contained in the Bill is too narrow. This will leave vulnerable women without the support that they most certainly need. What is more, if the perpetrators of domestic violence are not entitled to legal aid and so act as litigants in person, they will be able to cross-examine witnesses, which will surely cause unnecessary anxiety.
The proposals included in Clause 12, which threaten to limit legal advice in police custody through secondary legislation, are also deeply worrying. This is yet another proposal on which the Government failed to consult and is a move which has been widely criticised. Errors and abuses at the police station can lead to miscarriages of justice, which are exceptionally difficult to resolve. The Bill as it stands allows the Lord Chancellor to replace advice in person in custody with telephone advice. This would be a dangerous step indeed. I strongly oppose the proposals to introduce a mandatory telephone gateway, which would mean that those seeking legal advice for discrimination cases would have to speak by telephone to an adviser, who may not be legally trained, to find out whether they are eligible for legal aid.
Many claimants, including those with disabilities and those with caring needs and learning difficulties, may be prevented from accessing the legal aid scheme due to communication problems. That is a real barrier to equal access to justice. The proposals ignore many subtleties that surround abuse and will abandon some of the most destitute and vulnerable people in our society without access to support. I urge the Government to reconsider these aspects of the Bill.
Public Bodies Bill [HL]
Lord Wigley Excerpts(13 years, 2 months ago)
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Lord Wigley
“( ) To the extent that this section may be applicable to Sianel Pedwar Cymru (“S4C”), only subsection (2)(a) to (c) and (g) and subsection (3)(a), (b) and (d) shall apply.”
Lord Wigley
My Lords, I declare my interest in matters relating to S4C, as I did in Committee. I beg to move Amendment 29A in my name and to speak to the other amendments: in particular, Amendment 34B in the name of the noble Lord, Lord Roberts of Conwy, and Amendment 40 in the name of the noble Lord, Lord Roberts of Llandudno.
I shall not speak at length, as I spelt out the general arguments in relation to S4C in Committee. Our concerns expressed at that time remain. They were particularly eloquently expressed during Committee by the noble and learned Lords, Lord Morris of Aberavon and Lord Howe of Aberavon, the noble Lords, Lord Elystan-Morgan, Lord Richard and Lord Rowlands, and, at that time, by the noble Lord, Lord Roberts of Llandudno, himself. I look forward to hearing his comments tonight. The Government have tabled no amendments to assuage the feelings we expressed.
In many ways, the amendments are being taken tonight in the wrong order. Amendment 40 would remove S4C from Schedule 4 and, essentially, from the Bill. That is what most of us from Wales want. Amendment 34B would bring S4C into Schedule 3 —something which many of us regard with trepidation, because that gives the Minister the power to apply the provisions of Clause 3 to S4C; and the powers are extremely wide ranging. It would allow the Minister to modify the constitutional arrangements of S4C in how employees exercise its functions, the power to employ staff, how it runs its committees and how it is accountable to the Minister. All those seem little short of giving the Minister powers by order to micromanage S4C.
Amendment 29A is moved not only to get my retaliation in first but to cope with the unfortunate eventuality that the amendment of the noble Lord, Lord Roberts of Conwy, should be carried and that S4C becomes part of Schedule 3. Amendment 29A restricts the power given to the Minister to subsection (2)(a) to (c) and (g) and subsection (3)(a), (b) and (d). That would still allow the Minister to be involved with the appointment of the chairman—as he apparently is very much at the moment. It would allow changes to the body and to the offices. It would still allow the powers with regard to reports and accounts, which are perfectly normal requirements in the circumstances, but it cuts out the temptation to micromanage S4C.
I shall be very interested to hear the justification of the noble Lord, Lord Roberts of Conwy, for inserting S4C into Schedule 3. Clearly, the Government did not think that those powers were necessary—otherwise they would have put them in the Bill or tabled a government amendment at this stage—or are the Government leaving their dirty work to a trusted pair of hands, who has bailed them out on so many occasions in Wales over the years? As I said, I would rather that Amendment 34B were not moved at all, or, if it is, that it is defeated. Equally, I urge that Amendment 40, to which I have added my name, should be carried. If it is rejected by the Government, it should be taken to a vote.
Lord Wigley
My Lords, the House has listened with considerable interest to the more substantial reply that we have had tonight, compared with the one we had in Committee. None the less, a number of issues remain unclear and some quite unsatisfactory. We still have not had the bankable commitments that my colleagues and I have sought on the ongoing financial independence. We all appreciate that RPI could not continue and in Committee we invited the Government to bring forward some alternative formulae—perhaps 2 per cent of the BBC licence fee—so that there was a sort of ongoing commitment, even though at a different level from that which obtains today. If there was a need for ongoing commitment when the previous legislation was passed, by what virtue is that ongoing commitment not needed in the present circumstances? People could argue that it is needed even more now.
If I understand correctly, we heard that money will be ring-fenced up to 2015-16 but that is a commitment in name which is not in any Bill. There is no mechanism for the safeguards and no assurances on where they will be enshrined. I do not know whether the Government will bring something forward for Third Reading on that; time will tell. Neither have we had any clarity on why the Government are so anxious to secure the provisions of Amendment 34B. It is a pig in a poke. Certainly, there may be things that need to be done but no limit is being given by the Government and no self-denying ordinance as to how far they will take it. The assurances we are given are that there will be consultation. I noted with much interest that consultation is to be based on Clause 10(1)(e), which says:
“the Welsh Ministers, if the proposal relates to any matter, so far as applying in or as regards Wales, in relation to which the Welsh Ministers exercise functions”.
Perhaps we should be reassured that Welsh Ministers will therefore be exercising functions with regard to S4C. That is the only interpretation we can have from what the Minister said, but perhaps she was inadvertently misleading the House where that was concerned.
Lord Wigley
No, if the Minister wants to intervene to correct me, I will by all means give way. But if she does not—no—I repeat that the provisions of Clause 10(1)(e) are in regard to those matters,
“to which the Welsh Ministers exercise functions”.
At present, they do not exercise functions with regard to S4C. If the consultation is based on that, presumably they will in future. That would be an interesting development.
I am afraid that the Minister has not answered what I regard as a critical point. It is the involvement of BBC nominees and people on the executive function of S4C, taking decisions in circumstances where S4C is adjudicating between various bidders for commissions —independent producers outside on one hand, and the BBC on the other, in competition with each other. If the BBC is to be involved in that mechanism, how on earth can that possibly be fair? Independence means independence, not having people sitting at the table where those decisions are being taken.
I am not sure what position the noble Lord, Lord Roberts of Llandudno, will take on Amendment 40. However, if there is no greater clarification on how those mechanisms are to be assured, I hope that if he does not move it tonight, he will certainly do so at Third Reading. As for my amendment, we have not had the assurances that we need with regard to it and I beg the House to support me in the Division Lobbies.