Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Woolf]

My Lords, may I say a few words in support of this proposal? Expert evidence is an area in which the courts have had considerable difficulties in the past. However, following on from what the noble Lord, Lord Faulks, said, it is right to acknowledge that great progress has been made over recent years in the way in which expert evidence is used in the courts, but the amount of knowledge that is available for expert reports in connection with litigation is limited. I suggest no more than that a review of the sort suggested in the amendment is well needed.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I am most grateful to all noble Lords who have contributed to the debate. It has gone slightly wider in the use of experts than the narrow interpretation given in the amendment, and in some respects has read into the amendment things that are not there, but I shall try to deal with the points raised and noble Lords may then understand better what I am saying.

On the point made by the noble Baroness, Lady Kennedy, we are not withdrawing funds for experts. Where the case has public funding under legal aid and funding for expert opinion is appropriate, funding will be made available. The Government are working with the Legal Services Commission to develop and put in place a robust client and provider strategy that both reflects the demands and requirements of the new legal aid market and obtains the maximum value from the ongoing structure developed in the legal aid market.

In the Government’s response to the legal aid reform consultation, we confirmed that we would not be considering contracting with or paying experts directly in the short term because of the administrative costs to the LSC. However, when we have had time to consider the family justice review final report, which came out just before Christmas, we will look at this matter again. At the moment, there is no plan for the LSC to take this on from the solicitors to whom the noble Lord, Lord Beecham, referred.

Amendment 5 seeks to impose a duty on the Lord Chancellor to review the accessibility and quality of expert witness advice for the purposes of civil proceedings, as well as a duty to maintain or improve such accessibility and quality following the commencement of Part 1 of the Bill. This is an entirely unworkable amendment, in our opinion. By definition, expert witnesses are highly qualified and experienced professional individuals in their normally very technical fields. As professionals, they will be subject to the standards required by their respective professional membership bodies. It is not within the Lord Chancellor’s gift, nor should it be, to determine the quality provided by any given expert witness. Principally, this would be inappropriate; the Lord Chancellor cannot be expected to be in a position to determine the quality of the expert evidence or advice given, not least because the requisite expertise would not be held to reach a credible determination.

The costs of establishing a mechanism to assess credibly the quality of expert witnesses would also be prohibitive. Even if resources were unlimited, we have severe doubts as to the viability of such a mechanism. Disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate and even litigation.

[Lord Campbell of Alloway]

In trying to follow this, I must say that surely the question of the quality of the expert evidence is not fundamental. The fundamental question, is it not, is whether they need expert evidence. Who decides that? Is it an independent person or is it the legal aid authorities? Could I ask for an answer, if it is relevant?

[Lord McNally]

I refer to quality because the amendment itself does so, but the application for legal aid will go to the new director, who will consider both the question of legal aid and whether there is justification for having expert witnesses, as I said before.

As I said, disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate, even litigation, and the notion of a single objective standard that could be applied without reviewing evidence or advice given on a case-by-case basis, bearing in mind the myriad scenarios—in which, for example, a psychologist might be giving evidence or advice—does not hold water. Equally, we find the notion of accessibility somewhat difficult in the context of expert evidence. By definition, these individuals are experts in their fields and therefore few in number, and their engagement in any given proceeding is, outside the major urban conurbations, unlikely to be geographically convenient—a point made by the noble and learned Lord. Under the current framework, experts are quite naturally drawn from far and wide and it is not within the Lord Chancellor’s gift, nor should it be, to try to control or influence the geographical distribution of experts in England and Wales.

The noble Lord, Lord Beecham, referred to the matter of lower rates being applied in London. The fact is that expert provision reacts to normal economic considerations of supply and demand. It follows, of course, that in areas of higher supply there is greater competition, and it should be open to the Government to pay slightly lower rates to reflect that position.

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[Baroness Kennedy of The Shaws]

I am sorry to interrupt. On the issue of the assumption that experts will cluster in London rather than elsewhere, the experience, particularly in the medical field, is that—after, for example, the “sudden infant death” debacle and miscarriages of justice, and due to the feeling that there has been considerable criticism of paediatricians or pathologists over matters involving children—there is now real reluctance among people to be experts. It is not that there is a plethora of experts around; in fact, the opposite is the case. It is very hard to get medical people to come forward as experts in the courts because they do not want to have that kind of exposure. They also find that they are not paid enough money to make doing so worth cutting into their professional time. There is a misunderstanding about the availability of experts, particularly in the medical field.

My point about domestic violence is that in family cases, where on the whole there will not be legal aid, if someone is claiming that they have been a victim of domestic violence then they will be able to claim legal aid, but often there will be an argument over whether indeed there has been domestic violence. It is experts who often can resolve that. Will there be legal aid available to help to resolve the issue of domestic violence in order to enable access to legal aid?

[Lord McNally]

I do not think that I can give that assurance. The more that this goes on, the more that one can see why the Government are reluctant to accept an amendment that would impose a kind of impossibilism on the Lord Chancellor. We are working our way carefully with the LSC to a system that we think reflects the position. I hear what the noble Baroness is saying about the availability of expert witnesses. This is not the conclusion to which my right honourable and learned friend the Lord Chancellor has come; he thinks that this structure will provide the necessary experts. The more that we hear these examples given, the more I believe that the idea that legal aid or public funds can fund the whole range of expertise that the noble Baroness was suggesting is dangerous and one that I cannot possibly support from the Dispatch Box. I think that we will see some of the worst-case scenarios but we have confidence that the system we are setting up will carry on some of the procedures and reforms set in place by the previous Administration, and that it reflects an effective way of using public money. Therefore, accordingly, I ask the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I am grateful to noble Lords who have spoken in this debate. Several noble and learned Lords have been very sympathetic to the amendment; I am particularly grateful to my noble friend Lady Kennedy and the noble and learned Lords, Lord Morris and Lord Woolf. I am also grateful to the noble Lord, Lord Walton, whom it was my pleasure to instruct from time to time as an expert witness over many years, paying his very moderate and modest fees for his expert services.

I find the Minister’s response disappointing, to put it mildly. In answer to my noble friend Lord Howarth, I should say that a body to advise the Lord Chancellor in the exercise of the functions proposed by the amendment would be the right approach. However, the real issue here is accessibility, which depends on there being sufficient witnesses who are ready and willing to give evidence to assist parties and the courts. There is a clear concern about that, which is magnified by the issue of fees. The Minister rather airily dismissed the question of the availability of witnesses but did not address the point that I raised about the National Health Service finding difficulties with the proposed arrangements. My noble friend Lord Bach has handed me a letter which he has just received from the chief executive of the Central and North West London NHS Foundation Trust. The chief executive says that she writes,

“on a matter of some concern regarding the fees paid to expert witnesses … I have been approached by clinicians in my Trust who undertake expert witness work … I am informed that the fees payable for such work have recently been reduced to a rate (of £90 per hour) which is causing some concern in my … service. As the NHS, we are required to pay consultant medical staff at the national rate and these are not compatible with the rates set by the Legal Services Commission. Our staff are highly expert and it would be a great loss to the family courts if we were unable to release them for such expert witness work in the future”.

That is clear evidence of the kind of problem that we will see and which will presumably grow over time.

The noble Lord raised the issue of London having more people, and so on. However, a London expert giving evidence somewhere else, as many of them will have to do, will presumably be paid at the London rate, whereas an expert in a provincial city will presumably be paid at a lower rate. It seems incongruous to me.

I hope that the Government will look again at this and perhaps answer—if not on this occasion, then in writing—a question which was put by, I think, the noble Lord, Lord Clinton-Davis. What discussions have taken place with the consortium to which I referred, and were there any positive responses? In particular, if a third meeting was promised, why did it not take place? At this stage, however, I will not press the amendment, but beg leave to withdraw it.

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[Lord McNally]

My Lords, I am most grateful for all the contributions to what has been an extremely full debate—one that yet again has taken on some of the elements of a Second Reading debate, partly because of the structure of the amendment.

I have to say that we were one hour and 40 minutes into today’s deliberations before anyone—it was the noble Baroness, Lady Howarth—kindly mentioned that the debate and the Bill are set against the background of the economic situation we faced when we came into office. In the Ministry of Justice, a relatively small department, there was a commitment to find savings of £2 billion during this spending round. I say to the Benches around the House that there are no soft options.

I have not yet had a chance to read in full today’s speech by the Leader of the Opposition in which he is apparently asking the Labour Party to face up to the fact that cuts are inevitable. However, I have been following some of the advice he has received over the past week or so about facing that reality, some of which came even from Members of this House. I also think that some of the comments about the kind of social tsunami that we are going to face if the Bill is passed need a reality check: that after we have cut £350 million off the budget of our legal aid scheme—and I have not heard anyone challenge this—it will remain among the most generous in the world. The idea that somehow this is the end of civilisation as we know it does not stand up. We have been asked on a number of occasions to go back to first principles. We came into office with a commitment to make cuts in a department where there are really only four areas of expenditure: courts services, probation, prisons and legal aid. We set about trying to reshape the legal aid scheme in a way that addressed what we saw as the most fundamental issues of access to justice.

[Lord Clinton-Davis]

But if the Government are wrong about saving £350 million, and if the cost of providing services equivalent to legal aid mounts irrevocably, what does the Minister say about that? If the Government have miscalculated, is that not a grave offence?

[Lord McNally]

Fortunately, I know that the noble Lord has himself stood at this Dispatch Box, and I am sure that then he heard alarm bells going off in his head when anybody asked him questions with “if … if … if” in them. It is wise not to try to speculate. Of course things may happen beyond our control. The Government have made a judgment on these matters. We are asking the House to support that judgment, and we will find in the course of time whether that judgment is right.

The Bill is beginning to suffer from what I might call report fatigue, in that almost weekly a report comes out, usually sponsored by very interested parties, which is then quoted around the House. I would be the last to deny the right of groups to commission reports and to use their findings, but it is not necessary for those to be treated as holy writ. They are studies; we receive them, read them and take notice of them.

[Baroness Farrington of Ribbleton]

My Lords, I ask the Minister for the Government to produce their report. It is no good the Government dismissing or implying self-interest among those who are producing independent reports. I ask the Minister for the Government's evidence on which they base their judgment. Like him, I accept that all sorts of things come out of the blue. I want to know how the Government reached their conclusion. Where is the evidence? Please share it.

[Lord McNally]

I suggest that the noble Baroness reads our impact assessment, which has been quoted. Our critics cannot have it both ways. At one moment, they are banging the Dispatch Box and saying that the impact assessment reveals this, that and the other terrible finding, and then they say that we have not done any research. The noble Baroness has been in both national and local government. Many people in local government of all parties are having to take tough, difficult decisions. In a time of austerity there are no soft options. We have of course had cross-departmental discussions about the measures. It is almost impossible to assess with any accuracy the various impacts on one department or another of various measures—which involve, at maximum, £350 million in a relatively small department.

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[Noble Lords]

Oh!

[Lord McNally]

One has to face up to these things but it is always a case of cuts being made somewhere else. We have tried to restructure legal aid in a way that reflects the economic reality that we face. My right honourable friend the Lord Chancellor has said very frankly that in his opinion we have become a society that reaches too easily for lawyers at taxpayers’ expense, and he is trying to roll back that tendency in this restructuring. We have also said that, as part of the restructuring, we want to look at alternative dispute resolution.

We understand the concerns that have been expressed about the not-for-profit or voluntary sector and the advice sector, and we have responded to them. I am not suggesting that this is a new announcement for the noble Lord, Lord Beecham, but we have found £20 million this year, despite the fact that the legal aid cuts do not impact on CABs at the moment as the cuts have not yet come into being. Under my honourable friend Nick Hurd in another place, we are also having a comprehensive look at the funding of that sector. Therefore, as I said, it is easy to put forward the case that has been made, but I and other Ministers were faced with a difficult decision regarding what we had to spend in the budget and how we could spend it.

Amendment 6 calls for a pre-commencement impact assessment of Part 1 of the Bill and for a copy of the report to be presented to both Houses of Parliament. The proposed review would look at the expected costs and impacts of Part 1 on a number of groups, including children and young people, women, black and ethnic minorities, and people with disabilities. It would also quantify impacts on the courts, tribunals, local authorities and government departments. Amendment 194 would bring the proposed new clause into force on the same day as the Act was passed.

Amendment 195 would require the Lord Chancellor, prior to commencement, to commission an independent review of the expected cost and impact on time and resources for judges and the courts of any increase in the number of litigants in person arising from the provisions in Parts 1 and 2 of the Bill. Amendment 191 would make the date on which the provisions of the Bill came into force subject to the provisions in Amendment 195.

Noble Lords will be aware that an established process, introduced by the previous Government, is already in place for the 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 of new laws after three to five years. As set out in Cabinet Office guidance, these reviews normally take place three to five years after Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee and the Select Committee 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 of 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.

As noble Lords will be aware, the Government are also, under Section 149 of the Equality Act 2010, subject to an ongoing public sector equality duty to have due regard to the effect of their policies on the groups protected by equality legislation. To that end, we have already produced detailed equality impact assessments—both at the point of consultation and alongside the introduction of the Bill—which set out the likely impact of our proposals on groups sharing protected characteristics. We will of course continue to act in accordance with our public sector equality duty.

In their amendment, noble Lords ask that the cost to other government departments is factored into this review of Part 1 of the Bill. We have given careful consideration to this issue as part of the policy development and clearance process throughout Whitehall. Extensive discussions between policy officials in different departments were held as part of that, and knock-on or downstream costs were factored into those discussions. Ultimately, costs to other government departments will be driven by behavioural responses to the reforms, and these cannot be predicted with any degree of accuracy.

As I have already said, the noble Lord, Lord Bach, referred to our risk assessment. From the very beginning, I have never hidden the facts in answering questions at this Dispatch Box. If you are dealing with cuts in almost any aspect of government—for example, as chairman of housing in a local authority—but especially if you have a budget specifically aimed at the more vulnerable in society, then I do not resile from the fact that the cuts will impact on the most vulnerable in society. However, the test is then how to protect the most vulnerable. One has to ask: “Have we done enough? Have we focused our scant resources enough?”. In part, that is what these debates will be about.

[Lord Elystan-Morgan]

The noble Lord has said very helpfully that downstream costs affecting other departments were factored into the consideration. Therefore, is the £350 million in fact a gross figure from which a factor of X has to be deducted, although at this stage we do not know and are not in a position to know what X might be?

[Lord McNally]

No. The commitment is to the expenditure from my department, and factored in are discussions with other departments which leave us confident that the kind of disproportionate impact which has been suggested will not occur. However, one knows how fluid these matters are when discussing government budgets. For example, how do last summer’s riots feed into the demand for prison places or indeed the demand for legal aid? There are variables and unknowns in these matters, but we have put forward our objective of cutting the legal aid bill by £350 million in a way that we hope is focused and takes account of some of the issues that have been raised. For example, domestic violence is in scope. We will have debates later about definitions of domestic violence, but to suggest that domestic violence is being taken out of scope is plainly not fair.

[Baroness Scotland of Asthal]

My Lords, I make it plain to the Minister and reassure him that no one is trying to be unfair in relation to domestic violence. The noble Lord will know that the impediments that have been put in the way of someone getting legal aid for domestic violence are quite acute. They have to have had an injunction within the previous 12 months, and there either has to be a person imprisoned within 12 months or the victim has to come at the top of the scale—that is, by being at threat of death or grievous bodily harm. That is an undue hurdle to overcome.

Secondly, we know that in many private law cases there are elements of domestic violence that are not proceeded with because the parties have lawyers and come to a settlement. The noble Lord wishes to use mediation. However, the King's College figures show that the additional mediation services that we would need would cost £46 million to £48 million; the Government's figures show that we have £10 million in the budget. Therefore, it is for these reasons that we ask for the evidence for the savings that will be made, because it does not appear to be there now.

[Lord McNally]

We will discuss this point at a further stage of the Bill. I compare that intervention by the noble and learned Baroness with her earlier one which was more broad-brush in its general condemnation. We will discuss the other areas when we come to them.

I will speak also about the issue of litigants in person, on which Amendment 195 focuses. I heard what was said, in particular by a number of noble and learned Lords—I do not think that the noble Lord, Lord Phillips, qualifies as learned.

[Lord Phillips of Sudbury]

I must rise to that jibe; I am an experienced Lord.

[Lord McNally]

Even after 15 years I am never sure who is gallant, who is learned and who is—like the noble Lord, Lord Phillips—just experienced.

Unrepresented litigants have always been a feature of our legal system. Judges make efforts to assist them by explaining relevant procedures and what is expected. We accept that the reforms are likely to lead to an increase in the number of litigants in person. We conducted a full review of the available literature on litigants in person, which was published alongside the consultation response. The review found that the evidence available on litigants in person tended to suggest a mixed impact on the length of proceedings where litigants in person were involved. It is also important to point out that there will be significantly increased numbers not going to court at all. We estimate that there will be 10,000 additional mediation cases as a result of our decision to prioritise this area. This will offset the additional burdens on the courts from dealing with litigants in person.

We took into account this issue in the impact assessment and the equality impact assessment, published at the time of consultation. One assumption we made in calculating costs and savings was the increase in unrepresented litigants. We are now considering how best to provide the support and training needed to those who assist unrepresented litigants, as well as to the litigants themselves. This will include looking to simplify the forms of guidance available to those using the courts in person and to improve the information we offer to members of the public through the new online content of the Directgov website. The ministry is considering the Civil Justice Council’s recent report and is liaising with the council on how best to take forward its recommendations for dealing with litigants in person.

The current system of post-legislative scrutiny achieves the right balance and value in effective scrutiny for both Parliament and the Government. Therefore, I urge the noble Lord to withdraw his amendment. We have had a very good debate. It had some elements of Second Reading and took just under three hours of the second day of Committee. I hope that noble Lords will believe me when I say that we are listening and that we will have further thorough, specific debates. However, the amendment takes us too far back to first principles on a Bill that has gone through the other place and has had its Second Reading in this place.

[Baroness Farrington of Ribbleton]

My Lords, will the Minister give an assurance to the House that he will read this debate carefully and, where there are unanswered questions about costs that could occur, including costs to other departments, or any other questions to do with the validity of the Government’s assumptions and of the background knowledge that he assures us that the Government have, they will be answered in writing before Report to all noble Lords who have taken part today?

[Lord McNally]

No, my Lords. I will read the debate and consider these matters, but frankly some of the issues raised were so speculative that no responsible Minister would respond in that way. I assure the noble Baroness with all honesty that I will bring the facts before the House and will deal with the Bill with all the responsibility that I can. However, she is too old a hand—

[Noble Lords]

Experienced.

[Baroness Farrington of Ribbleton]

The noble Lord has lost none of his Blackpool charm.

[Lord McNally]

Coming from a Preston girl, that is a compliment—I think. I will read Hansard. I realise that very interesting points were made, which I will study carefully and draw to the attention of the Lord Chancellor. With that, I ask the noble Lord to withdraw his amendment.

[Lord Bach]

My Lords, we have had a very full debate, as the Minister reminded us. However, it was very worth while because this is a very important subject that goes to the heart of whether the Government did the work they should have done before bringing in such controversial and fundamental legislation. I start by saying how grateful I am to noble Lords from all sides of the Committee who spoke in the debate. I am very grateful to the noble Lord, Lord Wigley, for backing the amendment, as I am to the noble Baroness, Lady Prashar. I forgot to say earlier, as I was asked to, that she was unable to attend when the amendment was moved because of her appearance at a very well known and important committee. I am very glad to see her in her place now.

I thank noble Lords for making some very important points. I do not wish to embarrass the noble Lord, Lord Carlile, but I will thank him for his contribution if only because it gives me the chance on behalf of the Committee to congratulate him on the honour he received in the New Year Honours List. However, other speeches were just as good, on all sides of the Committee. The one thing they had in common—this is something that the Minister must take back to his department—is that they were all, in one way or another, critical of the way in which the Government approached this part of the Bill.

I will not speak for long; I do not for a moment believe that more than a few noble Lords are in the Chamber to hear me wind up the debate on this amendment. They are here for another reason that I cannot think of. However, it is necessary to make one or two points. Although of course I will not press the amendment, the issue is important and we may well come back to it on Report because it is fundamental to the Bill. If the Bill comes into force with us knowing so little about what its effects and costs are likely to be—whether to the MoJ, other government departments or society as a whole—that is not a satisfactory way of law making. This is not a political point but a common-sense point, and I hope that the debate has been conducted from a common-sense point of view.

The points I want to make are these: everyone around the House, including my party, knows that savings have to be made in the legal aid budget. Of course that is right. We put forward proposals in relation to criminal legal aid in the last few months when we were in government. We said it in our manifesto. Other proposals for savings in legal aid have been put forward in various amendments that we are going to debate in due course in this House. The Law Society has also put forward proposals. The question is not: should there be cuts in legal aid? The question is: where should those cuts be?

For the life of me, I cannot understand why the Government have chosen that part of legal aid—the social welfare law part, the law of everyday life, which is a pretty small part of it, in fact—which in its own way works successfully in helping the most underprivileged in our society get basic legal advice on legal problems that affect their daily lives. It follows that that early advice often sorts out the problem and means that courts and tribunals are not bothered with hopeless cases and that people’s lives can be improved. I cannot for the life of me understand why the Government should have chosen that aspect when they refused to do anything about criminal legal aid, where a number of us think that there is room for substantial savings in some parts of it. It is disappointing that when the Government say that they are not going to implement Part 1 of the Bill until April 2013, they go on to say that they are not even going to look at criminal legal aid again until 2015. That is disappointing. That is my first point.

My second point is that we believe that it is a false argument that the Government have chosen life and liberty as the only places where legal aid should apply today. The point has already been made in this debate that it is difficult to think of a more obvious place where legal aid is appropriate than to solve legal problems that affect people who are, through no fault of their own, poor or disabled or who lack any privileges. That is surely where a legal aid system should bite. To remove legal aid from there is a completely wrong thing to do.

I thank the Minister for his contribution because it is not easy to face the Committee which, on this issue at least, is pretty dead-set against him. He made a point about how weekly reports come out suggesting that the policy is wrong, and he appeared to criticise that. The fact is that there would not be so much criticism if the Government had done the work they should have done before they tried to legislate in this way. All we ask is that in the time between now and Report, he goes back to his department and asks—I do not think he answered this in the debate—why the Government have not done the assessments of costs and social costs so that Parliament has a better idea of what it is being asked to legislate for. The Government have clearly not done the work that should have been done—that is a pretty universal feeling around the Committee. It is not too late for them to start doing it now, and I would encourage them to do so. I beg leave to withdraw the amendment.