Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Monks Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Monks]

My Lords, I declare an interest as a non-executive director of Thompsons Solicitors, which is probably the most experienced legal firm acting for workers in the personal injury and employment fields, and certainly the largest legal firm working with trade unions. That is enough of the advertising.

I am grateful to the noble Lord, Lord McNally, for affording me the opportunity to discuss my concerns about the Bill with him. A central concern relates to Part 2 which, if enacted, will undoubtedly make it harder, more hazardous and more expensive for many damaged workers to have access to justice. As a result, it will act as a major deterrent to applicants to apply for justice. A good thing too, some might say, including some employers and insurance companies. However, the losers will be the many victims suffering from injury or illness who are afraid to risk the expense of seeking redress.

In recent years, access to justice has been much encouraged by conditional fee agreements—the so-called no-win no-fee arrangements. These have certainly not led to an explosion of cases in the employer liability personal injury field. Employer liability claims are on a downward trend and fell between 2007 and 2011. There has been no noticeable surge in the compensation culture in this area. As the noble Lord, Lord Hunt, highlighted earlier, recently there has been a surge in road traffic cases, which are up 43 per cent to the very high figure of 791,000, 10 times the number of employer liability cases. I understand the Government's concern in the road traffic area, but that is no justification for making no-win no-fee arrangements in relation to employer liability and making access much harder for vulnerable claimants.

Conditional fee agreements were introduced to ensure that people who did not qualify for legal aid had an opportunity to instruct solicitors on a no-win, no-fee basis. Changes to funding, brought in by the Access to Justice Act, meant that from 2000 solicitors were able to make judgments about whether to proceed with cases with a degree of confidence that they would get paid; and, importantly by using the success fees that they recovered in cases that they won, they could fund riskier, less straightforward cases with worse odds of success. As the Bill is now, there will, at best, be a limited fund from success fees because they will be capped and it is a fund into which clients would have to pay from the compensation, if any, that they receive. We calculate that as many as 25 per cent of injured people whose cases would currently be run, and won, will not be able to find a lawyer willing to take on their cases.

The Bill is not making minor adjustments to the present system; it is scrapping the present system. Sections of society, other than the wealthy, will be frightened off pursuing cases. As the Law Society has argued, the other winner will be the insurance industry. I ask the Minister: is that industry preparing to cut premiums as a result of these substantial changes in its favour? They have given no such promises in the road traffic area, so those small and medium-sized employers who were in Ministers’ minds when they introduced the Bill had better not count on getting a better deal from their insurers.

Even at this stage, I hope that the Government will rethink their position. As the noble Lord, Lord Newton, said earlier, public finances may well not benefit. There could be a loss to the social security department in recoupable benefits, extra burdens on the NHS for the costs of care, and more people being reliant on benefits. Victims who win cases will have to pay a hefty slice of their compensation to lawyers, while many others will be deterred from taking cases at all. There is many a human tragedy, as we have heard today, behind all this technical talk of fees and so on. In today’s debate we have heard very moving stories about the victims of asbestos, from the Spinal Injuries Association, and other support and self-help groups. I ask the Government to look again at Lord Justice Jackson's two alternative packages, which would control recoverable success fees, and at the problems in the road traffic area.

I have one final point on legal aid. I would like to support points made by, among others, the noble Lords, Lord Newton and Lord Phillips, and the Chairman of the All-Party Group on Citizens Advice in the other place, that at a time when major changes are taking place in the welfare system, it is unwise to withdraw support for people who are challenging bad decisions. We heard the statistics on that earlier. I hope that the Government will urgently meet concerns in this area. There is a way forward that is more equal and effective than the current provisions in this Bill and I hope that we can persuade the Government to take it.