Legal Aid, Sentencing and Punishment of Offenders Bill

Jonathan Djanogly Excerpts

Tuesday 24th April 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I beg to move, That this House disagrees with Lords amendment 1B.

[Mr Speaker]

With this it will be convenient to consider the Government motion to disagree with Lords amendments 2B and 196B, the Government motion to insist on its disagreement with Lords amendment 31, and Government amendment (a) in lieu.

[Mr Djanogly]

As you have reminded the House, Lords amendment 1B, dealing with the statutory duty for legal aid, impinges on the financial privileges in this House. I should also say that my interests remain as I declared at the last stage of ping-pong on 17 April. I ask the House to disagree to this amendment, and I will ask the Reasons Committee to ascribe financial privilege as the reason for doing so.

Let me first address Lords amendment 31, which concerns the sensitive and important issue of mesothelioma, in the light of the amendment we have tabled. I should emphasise at the start that the Government take very seriously the plight of mesothelioma victims and do not believe that mesothelioma cases are being brought inappropriately. We should appreciate that the issue in mesothelioma cases is not so much causation as process. In effect, the challenge for the Government, employers and insurers is how we ensure that we have procedures in place that enable sufferers to receive compensation more quickly and without the stress of having to pursue protracted litigation.

Much has been done by recent Governments to improve the position of mesothelioma sufferers when the employer’s insurer can be traced. There is now also a consensus that more needs to be done in respect of sufferers who cannot trace their employer’s insurer. Let me be clear that the Government are committed to action on that point. We are working closely with insurers and other stakeholders on this pressing issue with a view to making an announcement before the House rises in July.

I have considered very carefully the points that have been made both in debates in the House last week and the other place last night. We have also held ministerial meetings with campaigners on behalf of mesothelioma victims, including with Lord Alton, the right hon. Member for Wythenshawe and Sale East (Paul Goggins) and my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch).

The Jackson reforms in part 2 of the Bill are due to come into effect in April next year. We have reviewed that timetable in the context of mesothelioma. On careful reflection about the special position of mesothelioma sufferers, I can now give the House the assurance that we will not commence the relevant provisions in clause 43, on success fees, and clause 45, on after-the-event insurance, in respect of mesothelioma claims in April next year. Rather, we will implement the clauses in respect of those claims at a later date, once we are satisfied on the way forward for those who are unable to trace their employer’s insurer. The amendment commits the Lord Chancellor to carrying out a review of the likely effect of the clauses in relation to mesothelioma proceedings and to publish a report before those clauses are implemented.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

The concession that the Government are making goes some way to dealing with the concerns that many on both sides of the House have expressed in relation to mesothelioma, but it does not deal with the point raised in the other place by Lord Thomas yesterday, which was that success fees should not be claimed in such cases because liability is not in issue. What will the Government do about that?

[Mr Djanogly]

As I have said, this is not an issue of causation. I heard Lord Thomas speak in the other place yesterday, and I very much agree with what he had to say, which was essentially that in cases in which causation is not an issue, there is—in many respects—no reason why solicitors should have a success fee for that type of work. But the Opposition have made their case, as have others, and the Government have to deal with things as they stand. That is why we are offering to make this concession, but it is a time-limited concession only. The overall Jackson reforms stand as our preferred way to move forward.

[Ian Lucas (Wrexham) (Lab)]

I am grateful to the Minister for having listened closely to the debate last week and to the debate in the House of Lords. But is it not the case that this legislation facilitates a solicitor recovering a success fee from the client’s damages, and that if this legislation did not proceed, that could not happen?

[Mr Djanogly]

No. The hon. Gentleman rather distorts the implications of the legislation. We are capping success fees, which are currently 100%, at 25%.

[Andrew George (St Ives) (LD)]

On the point about the delay until the review has been undertaken, is that merely a delay or is it a genuine review? If it is a review, what will it consider and will he give an indication of its timetable?

[Mr Djanogly]

Given the timing of this development, we have not thought through the exact procedures of the review, but it will certainly be undertaken before we move to ending the provisions that remain.

We now come to the amendment in lieu passed by the other place in respect of clause 1, and what has been described as a purpose clause. It was suggested variously in the other place yesterday that this amendment would have no effect; that it would have some effect, although that effect was not entirely clear; and that it would have a future effect in guiding successive Lord Chancellors when consideration was being given to what services might be added to the scope of legal aid under clause 8(2).

The difficulty the other place has so far had in establishing the precise effect of the amendment is instructive as this House decides whether it should stand. A duty with an uncertain effect is desirable neither in legislative terms nor for the person attempting to discharge that duty. However, it is the Government’s view that the effects of this duty can be described and are highly undesirable. The amendment would remove the uncontroversial, unambiguous duty the Bill places on the Lord Chancellor to ensure that legal aid is made available according to part 1 of the Bill. This made a clear link between the duty and legal aid. In terms of a clear duty, it does not get much clearer than this. However, the amendment would not only remove that but would replace it with a duty that would bring ambiguity and uncertainty. It refers to “legal services” rather than “legal aid”.

The argument was also made in the other place that the amendment had no effect other than to underline the Government’s commitment to the principle of access to justice. We contend that the imposition of any duty on the Lord Chancellor in legislation must create in law a potential course of action through challenges to the discharge of that duty. If it is accepted that the imposition of such a duty must give rise to a potential course of action, the amendment’s effect must be to bring into question the range of services provided under the Bill. The matter would then turn on the question of which legal services meet people’s needs. That contrasts with the clear and unambiguous duty in clause 1(1) requiring the Lord Chancellor to

“secure that legal aid is made available in accordance with”

part 1.

The Government believe that the question of which legal services meet people’s needs is not relevant to the Bill. Schedule 1 lists the services that Parliament, following consideration of first principles and extensive consultation, believes it appropriate to make available under legal aid. To reopen that question via an ongoing duty would frustrate our intention to bring certainty and clarity to the scope of services funded by legal aid. The amendment would result in only one thing: numerous expensive judicial reviews—more than likely at taxpayers’ expense as the boundaries of the new duty are tested and because the question of which services should be provided would be reopened.

It was said yesterday in the other place that such JR applications would almost certainly fail, and that consequently there would be no cost implications to the amendment. However, even rejected applications have an inherent cost: lawyers are paid legal aid fees for their work up to that point and the Government pay their own lawyers to defend such cases.

I would also like to address the argument put forward in the other place about the amendment’s effect in guiding future Lord Chancellors. It seems novel to include in the Bill an overriding duty that activates when the Lord Chancellor considers adding a service or services to the scope of legal aid. I am not convinced this is possible, and I am certain it is unhelpful. Adding services to the Bill requires the affirmative approval of both Houses. Such a process will be more than adequate to ensure that the Lord Chancellor takes account of the relevant factors when considering what, if any, services should be added to the scope of legal aid.

I emphasise, however, as Lord McNally did in the House of Lords yesterday, that the Bill’s present form arises from extensive debate and consideration across both Houses and reflects decisions about the future nature of legal aid. In short, the amendment is incompatible with the Bill. It would muddy both the duty to which the Lord Chancellor is subject and the scope of services that might be funded.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I am not arguing that the House should agree to the Lords amendment, but the Minister will know, as the Lord Chancellor does, that I have asked that the Government consider bringing immigration matters—whether onward appeals by judicial review or when a judge gives permission for a case to go to a higher court—back within the scope of legal aid. Will he put on the record the response to that plea, which I have made to the Lord Chancellor and him several times?

[Mr Djanogly]

My right hon. Friend finds the right moment to ask about something not subject to the amendment. It is an important point, however. My right hon. and learned Friend has written to him about onward appeals in immigration cases. The Department will conduct a review of the impacts of withdrawing legal aid in such cases once we have sufficient data and after implementation of the reforms. I envisage allowing about a year for the reforms to take effect before starting such a review.

Lords amendment 2 was passed in the other place yesterday by the extremely narrow margin of three votes. Unusually for this topic, no one spoke other than the mover and my right hon. Friend Lord McNally. That indicates how far we have moved. I remind the House of the main points. First, and crucially, legal aid to obtain the full range of injunctions and orders to protect against domestic violence will remain exactly as at present. There is no evidential gateway for legal aid for these remedies, and those who need legal aid to protect themselves can get it, regardless of their means.

Secondly, although we have removed most of private family law from the scope of legal aid in favour of funding mediation and less adversarial proceedings, we have made an extremely important exception for victims of domestic violence. That is so that they can take or defend proceedings about child contact or maintenance, or about the division of property, without being intimidated by their abuser during the proceedings.

We have made significant changes to the detail of this exception in response to concerns expressed in both Houses. We have accepted in full the Association of Chief Police Officers’ definition of domestic violence. We have also significantly widened the list of evidence that we will accept as demonstrating domestic violence for the purposes of the exception. That list will now include undertakings, police cautions, evidence of admission to a refuge, evidence from social services and evidence from GPs and other medical professionals. That is in addition to the range of evidence that had already been confirmed, including the fact of an injunction or order to protect against domestic violence having been made, a criminal conviction or ongoing criminal proceedings for domestic violence, a referral to a multi-agency risk assessment conference and a finding of fact by the courts that there has been domestic violence. We have also doubled the previously announced time limit for evidence for this exception from 12 months to two years.

[Kate Green (Stretford and Urmston) (Lab)]

We all noted the Lord Chancellor’s commitment in the Chamber last week to extending the time limit to two years. Will the Minister clarify whether that will also apply in cases of child abuse, which seem to be encompassed by the definition of domestic violence that now applies in the Bill? Clarification would be welcome on that, as there are clearly instances in which proceedings might be brought in relation to child abuse after more than 12 months, including in care proceedings, in which it would be entirely appropriate to grant legal aid.

[Mr Djanogly]

Yes, I am pleased to be able to confirm to the hon. Lady that that is the case.

We think that we have struck the right balance, although some will disagree. However, such disagreement misses the fact that there are two important safeguards to our system, which will provide genuine victims with a route into legal aid even if they do not have the headline forms of evidence. First, when a court has to consider whether domestic violence is a factor in a private family case, it may consider any relevant evidence, including police call-outs or evidence from domestic violence support services, or other types of evidence that have not even been suggested by the Opposition. This is also relevant in regard to the time limits. When a case involves older incidents of domestic violence and a court considers that the matter is still relevant and makes a finding of fact, legal aid funding could still be triggered. There is also the more generic safeguard of the exceptional funding regime.

We continue to believe that the evidential requirements should not be in the Bill. The level of detail required means that those requirements will be much better left to regulations, subject to the affirmative resolution procedure, rather than to primary legislation. Given how far we have moved on this topic, and the safeguards that I have outlined today, I invite the House to disagree with Lords amendments 2B and 196B.

[Sadiq Khan (Tooting) (Lab)]

I shall try to keep my comments short, as I know that a number of colleagues wish to speak in the debate. The Bill sustained 11 defeats on Report in the Lords, which is a record for this Parliament, and a further three yesterday. The Government need to show some humility when they have suffered 14 defeats, and I am pleased that we have seen some evidence of that today.

It is still unclear why the Government are so resistant to Lords amendment 1B. They have given different reasons on different days for their opposition to Lord Pannick’s amendment. A statement of legislative purpose is frequently included in legislation of this nature. Lord Pannick’s drafting of the amendment would result in a statement of purpose within the financial limits set out in the Bill. The key question is whether there should be a duty on the Lord Chancellor to take into account citizens’ needs before making arrangements for legal aid provision. The amendment has been drafted with reference to the financial resources available, and would therefore not incur further expense for the Government. The Government cannot have it both ways. They say that the amendment replicates provisions that are already in place, and that it is therefore unnecessary. They also say that it would add to Government expenditure. We will be voting against the Government on Lords amendment 1B.

--- Later in debate ---

[Sadiq Khan]

What my hon. Friend has said echoes some of the powerful speeches that were made last week.

It is worth bearing in mind that the progress that has been achieved is due to work done by Members in all parts of both Houses. We welcome the concessions that have been made today, we welcome the pause, and we approach the amendment in good faith. For reasons that we appreciate, the details could not be fleshed out today, but we assume that there will be an independent assessment of the evidence gathered during the due diligence phase.

We hope that the review will consider the impact on victims’ damages. According to some, they will increase by up to 10% as a result of the Government’s proposals, but others disagree, and we expect the review to look into that.

[Mr Djanogly]

It would, in fact, be a matter for the judges who would apply the 10% increase, rather than for the Government.

--- Later in debate ---

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

It is a pleasure to follow the hon. Member for Chatham and Aylesford (Tracey Crouch), who has played a brave and important role in discussions over recent days. I pay tribute to her for that. In relation to Lords amendment 31 and amendment (a) in lieu, the whole House is rightly paying tribute to Lord Alton and his supporters in another place for raising the issue in the first instance and for then persisting in their opposition to what the Government have until now been proposing in the Bill.

I also want to thank Lord McNally and Lord Freud for the constructive approach that they took in a meeting that I attended with Lord Alton last week, and in the days since. I welcome the concession that the Minister is offering this afternoon, and I appreciate that he cannot go into great detail about any proposals, which he said he hoped the Government would be able to bring forward before the summer recess. However, I can tell the House that his ministerial colleagues made it clear in the meeting I attended that they are striving to negotiate and implement a system of compensation and support for mesothelioma victims that is swifter and more sympathetic than the one currently in place. I am sure that the whole House would want to encourage them in their endeavours.

Whether amendment (a) in lieu is sufficient will depend entirely on the answers to a number of questions. In particular—this has already been raised—what will the extent and conduct of the review be? Crucially, how will the commencement of the relevant provisions of the Bill be aligned with the proposals that the Department for Work and Pensions hopes to publish before the summer recess? I would be happy to take an intervention from the Minister if he wishes to make a clear commitment this afternoon that he will not seek to implement the relevant provisions in the Bill unless and until an improved system of compensation is in place.

[Mr Djanogly]

I do not want to give any binding commitments about the process today, because things have not been finalised. However, I can tell the right hon. Gentleman that if the process is to be improved by the Department for Work and Pensions, which we hope it will be—he will have some insight into our proposals from the discussions he has had—that could well require DWP legislation, in which case we would look to roll the ending of the provisions into the commencement of the DWP provisions. That is how I foresee the process now, but again, I am not making that a commitment.

[Paul Goggins]

I am grateful to the Minister for that helpful intervention, because if there is to be legislation to introduce the new system, there will have to be full parliamentary scrutiny of those proposals in both Houses.

It has been a privilege and a pleasure to support Lord Alton in his efforts to protect mesothelioma victims. He has asked me to say that he is grateful for the cross-party support he has received from this House, and that, along with other Members of both Houses, he awaits with interest the outcome of the review and the details of the new compensation scheme. Above all, he is pleased that Parliament has acted to protect mesothelioma victims.

For my part, I am pleased that the Minister’s comments of last week—in particular that the families of dying mesothelioma victims should, and would, be watching the lawyers’ clock as fees mounted—have now been overtaken by an acceptance that mesothelioma victims are not part of a compensation culture and that they should not be expected to pay their lawyers a success fee out of their damages, and, finally, that through the amendment in lieu and other measures that will follow Parliament should continue to do all in its power to give mesothelioma sufferers the best possible help and support.