The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, both Public Health England and the NHS Commissioning Board, subject to the passage of the Bill, will have a clear interest in ensuring that early diagnosis supports improved outcomes in line with the NHS outcomes framework, the public health outcomes framework and the Secretary of State's mandate. The Government, as set out in Healthy Lives, Healthy People: Update and Way Forward, continue to reflect on where commissioning responsibility for early diagnosis campaigns should rest.
Lord Sharkey: The Minister will know that there have been recent and very welcome significant advances in the early diagnosis of bowel and oesophagal cancers, but not in lung cancer, which is the most common cause of cancer deaths in men and women. Cancer Research UK points out that early diagnosis would make a significant difference to the current 5 per cent 10-year survival rate. Given that, can the Minister tell the House how much money will be spent on lung cancer early diagnosis campaigns in this financial year and how much is planned for next year?
Earl Howe: My Lords, we have provided funding for a number of local lung cancer awareness campaigns. On 10 October, we launched a five-week regional lung cancer awareness campaign in the Midlands, using TV, radio, press and face-to-face events. All those campaigns are aimed at improving public awareness of the signs and symptoms of lung cancer and to encourage people to visit their GP when they have symptoms. An evaluation of the impact of those campaigns is now taking place. I do not have the figure in front of me of the cost of those specific campaigns, but I shall let my noble friend know.
Lord Walton of Detchant: Does the Minister accept that, with recent advances in molecular biology and genomic diagnosis, many previously untreatable rare diseases have been identified, and that early diagnosis is crucial in order to introduce the newly available treatments for those conditions? Is he satisfied that the national Commissioning Board, with its outreach into the subnational senates, will have the facilities available to manage these rare diseases appropriately?
Earl Howe: My Lords, the noble Lord makes an extremely good point. The answer to his question is, yes, I believe that it will have the capacity to do that. He rightly mentions advances in genomic science, which of course will have a major part to play in the field of diagnostics. As regards rarer diseases, as he will know, we are placing responsibility with the national Commissioning Board for the commissioning of specialised services for rarer conditions.
Lord Collins of Highbury: My Lords, as the Minister is aware, the reduction of 10 per cent in weight maintained over a period can reduce the risk of developing type 2 diabetes by 50 per cent. Small improvements in eating and drinking are needed. Will the Minister accept that the country needs a major awareness programme, led by the Government, on what to do to avoid developing type 2 diabetes; and, under the new legislation, will he continue to use his powers?
Earl Howe: My Lords, the Government have no current plans for a specific national campaign to raise awareness of diabetes. On the other hand, as part of Change4Life, which we are continuing with, we aim to raise awareness about diet and physical activity, and to create what we hope will be a mass movement to help to reduce obesity and related conditions, including diabetes. The campaign encourages everyone to,
There is also the very important ingredient of the NHS Health Check in this area, which the noble Lord is familiar with, for people in England aged 40 to 74. We think that this has the potential to prevent over 4,000 people a year from developing diabetes.
Baroness Gardner of Parkes: My Lords, I am sure that the noble Earl is well aware that not only lung cancer but all forms of cancer benefit hugely from early diagnosis. Will he ensure that one existing problem is dealt with, perhaps through further encouragement of medical education? In the very rare cases of osteosarcoma, and to a certain extent oral cancer, GPs are not really aware; cases are referred to them and are missed. Surely this must be a matter of further training in the specialities of these rare conditions.
Earl Howe: My noble friend is absolutely right. It is widely recognised that GPs have very important roles in prevention and early diagnosis of cancer of all kinds but that, until recently, there has been very little information available to enable GPs to benchmark their own activity and performance against that of other practices. We have launched what we are calling GP practice profiles, which will bring together a range of outcomes and process information relevant to cancer in primary care, so that GPs have comparative information available to benchmark their own performance. I think this will be a major plus in taking these variations forward.
Baroness Finlay of Llandaff: My Lords, the responsibility for paediatric care for children aged five to 19 is moving from health-where it is to remain for the under-fives-to local authorities, and public health will be responsible for many of these campaigns for early diagnosis. In view of this, how will the Government
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Earl Howe: The noble Baroness draws attention to an issue which we have been debating in various forms under this Bill, which is how we join up services and make the whole system hang together in the way that we all wish to see. The short answer to her question is that, at local authority level, the health and well-being boards will be responsible for co-ordinating that kind of information. However, we will also want to make sure that this takes place at a national level too. The outcomes data that we get from secondary care providers will in time, I am confident, produce information that will feed into public health campaigns.
Lord Hughes of Woodside: My Lords, I welcome the emphasis on and campaigns for early diagnosis, but will the Minister recognise that equally important is early treatment, and therefore not abandon targets for ensuring that people get early intervention of the highest quality?
Earl Howe: Yes, my Lords, we recognise fully that waiting times are important, and in particular diagnostic waiting times. I am certain that the noble Lord will be reassured to know that waiting times in both respects remain low, and we intend that they should remain that way.
To ask Her Majesty's Government, further to the Answer by the Secretary of State for Culture, Media and Sport on 8 September (HC Deb, col. 543), how they will ensure higher prominence for children's public service channels on electronic programming guides.
Baroness Rawlings: My Lords, we are considering the whole picture of public service broadcasting, including electronic programme guides, as part of the communications review. We will publish our thoughts in the communications Green Paper around the turn of the year.
Baroness Benjamin: I thank my noble friend. I am sure that she agrees that the BBC's children's channels are the largest providers of UK-made public service programmes. The other children's channels provide mainly a relentless diet of cartoons and bought-in programmes. Yet on the Sky electronic programming guide, EPG, BBC children's channels are low on the list. Does she agree that this is not what Parliament meant by "appropriate prominence" in the Communications Act 2003, under which Ofcom is required to review the position of PSB channels at least every two years? There has not been such a
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Baroness Rawlings: My Lords, my noble friend Lady Benjamin is right. As we all know, she has formidable experience in this area and is a passionate supporter of children's television in the UK. We believe that with around 30 dedicated children's channels in the UK, our younger viewers have a wide choice of programmes. Two of these are public service broadcasting channels: the BBC services of CBeebies and CBBC. I hope that my noble friend agrees that the BBC is fulfilling its public duty by making certain that these channels play a very important role in the provision of high-quality children's programmes in this country.
Baroness McIntosh of Hudnall: My Lords, will the Minister answer the question that the noble Baroness, Lady Benjamin, has just asked? It was not about whether CBeebies and CBBC are good providers but where they stand on the electronic guide. As I know to my cost, having searched for them in the interests of giving my grandchildren something worth watching, you have to go right down to number 71 on the electronic programming guide to find CBeebies. I do not think that that is high enough. Will the Government put pressure on Ofcom to make it better?
Baroness Rawlings: The noble Baroness makes an important point. I am sorry if I did not stress that Ofcom is an independent body that decides these things, and the communications review will be looking at this. The prominence of a children's programme is decided by Digital Multiplex Operators Ltd, DMOL, and other operators.
Baroness Howe of Idlicote: My Lords, the BBC is renowned for its children's broadcasts-there is little doubt about that-but as far as concerns radio programmes for children, it has not been as effective as it could have been. Will the Minister do her best to persuade all the Ministers in the department to keep up the pressure on the BBC about this and also to encourage the BBC to do a much better job in that respect than it has done up to now?
Baroness Rawlings: The noble Baroness is very expert on these matters and has gone to the core of the matter regarding radio programmes. It is up to the BBC to follow up on its children's programmes. The assessment of whether radio and television broadcasters are meeting their obligations towards children is a matter for Ofcom.
Baroness Rawlings: My noble friend Lord Brooke brings up a very important point. That is why the communications review Green Paper is being discussed at the moment. In the new year we will publish the
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Lord Soley: Will the noble Baroness draw this exchange to the attention of Ofcom and, when she does so, will she express her own view that it should be higher up the list and not be down at the bottom? Will she do that?
Baroness Rawlings: Yes, my Lords; the EPG prominence is an extremely important tool for making certain that as many people as possible have easy access to the full range and diversity of the PSB channels. However, we intend to take the opportunity of the communications review to look into this properly, to make certain that we have a fit-for-purpose system for the long term.
Baroness Walmsley: Does my noble friend the Minister agree that children's radio is a very valuable tool for helping children to develop their language, particularly those children for whom English is not their first language? Does she also agree that the BBC has entirely failed in this despite a great deal of urging from many Members of your Lordships' House? Is there anything that the Government can do to encourage commercial broadcasters to fill this important gap?
Baroness Rawlings: I am sure that that is exactly one of the areas that we will be including in the communications Green Paper. While the whole world outside will be celebrating the Olympics and the Jubilee, your Lordships will have the pleasure of the exciting communications Green Paper and the Leveson review, which will be looking into all forms of broadcasting.
Baroness Jones of Whitchurch: My Lords, given that there is inevitably limited space on the front pages of EPGs, does the Minister agree that greater priority should be given to ensuring that public service broadcasters and, as part of that, quality children's programmes should appear on the front pages, rather than the Secretary of State's declared policy of giving priority to local TV?
Baroness Rawlings: Regarding local television, the Government want local services to achieve EPG prominence on Freeview through acquiring a sufficiently high channel number. The Government hope that this will be Channel 8, which is currently vacant in England and Northern Ireland, and another high number for services in Wales and Scotland where Channel 8 is already in use.
Baroness Northover: My Lords, the Government are focusing on delivering specific results and better value for money through our programmes. DfID is
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Lord Sheikh: My Lords, I thank the Minister for that response. The Public Accounts Committee in another place found recently that DfID had no systematic or comprehensive approach to quantifying the extent of foreign corruption and was unable to provide an estimate of the scale of leakage. Does the Minister agree that this is not acceptable, and what action are the Government taking to put this right to ensure that they secure value for money?
Baroness Northover: My Lords, it certainly would be unacceptable if this were the case. The report very much reflects the position of the past and takes little account, it seems to me, of the changes made by the coalition. For example, in 2009-10 about 43 per cent of known losses were recovered, whereas over the past year that has risen to 92 per cent. We have also transformed the way in which the department manages its finances so that spending is attached to tangible results, which are being rigorously scrutinised by the new independent aid watchdog that I referred to just now.
Lord McConnell of Glenscorrodale: My Lords, will the Minister comment on the current position on the budget aid to Malawi? Six months ago the Secretary of State suspended budget support to Malawi but gave us assurances that funds would be redirected by other means to be spent in that country for those in need. Is it possible to give an estimate at this stage of all the money that will be spent in this financial year, and are we now on target to achieve the objectives set out in our own Government's development plan to support Malawi this year?
Baroness Northover: I realise that the noble Lord has a great interest in Malawi from his work in the Scottish Parliament. I will write to him so that he has the most up-to-date details on that. His question reflects the difficulty, which we all recognise, of working in some of the most complex countries around the world. It is extremely important that we balance the needs of the poorest people in these countries with the difficulty of working through some of their Governments.
Lord Hannay of Chiswick: My Lords, will the Minister confirm that, as the press reports, the Secretary of State for International Development has today, or recently, written warning the FAO and UNESCO for the last time that their aid from us may be at risk? Will she say whether the Secretary of State intends, in the light of the 20 per cent or more cut in UNESCO's budget, for reasons that have nothing whatever to do with its efficiency, and for reasons that I imagine the Government do not sympathise with, to take that into account when considering that particular case?
Baroness Northover: I hear what the noble Lord says. In the initial part of his question, he is referring to the multilateral aid review that took four organisations out of those that DfID would support and put four into, as it were, special measures, to be reviewed. UNESCO's current problems are very significant. He is referring to UNESCO deciding to recognise the Palestinian Authority and the withdrawal of United States support as a result. I will write to him with the latest information on that.
Lord Roberts of Llandudno:My Lords, especially at this time of heavy youth unemployment, could we ask the Government to encourage organisations such as Voluntary Service Overseas to expand their activities and to give jobs to as many as, say, 20,000 young people in developing these projects? It would give work to those who have no work, and it would give hope to those who have little hope.
Baroness Northover: My Lords, we are currently piloting the International Citizen Service, which is giving more than 1,000 young people from all backgrounds the opportunity to spend three months doing voluntary work overseas. This will make a real difference to some of the world's poorest people, while developing skills that will be invaluable as they seek employment in the future. Our intention is to scale up this programme so that 7,000 young people will benefit over the next three years.
Lord Turnberg: My Lords, is the Minister aware that in the Palestinian West Bank territories many textbooks contain all sorts of anti-Semitic and anti-Christian remarks and incitements to violence? Is that not something that DfID should pay attention to in its funding arrangements?
Baroness Northover: The noble Lord is right that some of these textbooks include things that we would certainly not wish to see within them. There is no doubt about that. With his work in the area, he knows how difficult it is to bring together groups that come from opposing positions. Sometimes it is extremely important to try to take forward the bigger picture and ensure that the Israeli side has security and that the Palestinian side has some kind of hope. That has to be the focus of DfID in supporting those who are in poverty in whatever situation they may be living.
Baroness Kinnock of Holyhead:Does the Minister share my concern that the Development Assistance Committee of the OECD has reported that international donors have met only one of the 13 targets that they set themselves on aid effectiveness and that, in addition, aid is now fragmented, unpredictable and poorly co-ordinated and lacks transparency? Will she give an assurance that the Government will raise these issues as a major concern at the Busan high-level forum on aid effectiveness later this month?
Baroness Northover: The noble Baroness is right that as more organisations and countries have become involved in aid, which itself is welcome, there is a lot of fragmentation. Previous meetings such as those in Paris and Accra have tried to take this forward, and
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The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, the United Kingdom has been at the forefront of international activity on Syria. To raise the international pressure on the regime further, we have tabled a draft human rights resolution in the UN General Assembly Third Committee. We have also made clear the need for firmer action in the UN Security Council. The UK has been active in welcoming and supporting the Arab League, and is in regular discussion with key players in the region, including Turkey.
Lord Risby: My Lords, as we have watched with horror the murder and mayhem that has descended upon the people of Syria in the last eight months or so, we should nevertheless remind ourselves of a long-standing historic tradition in Syria, unique in the region, of quite exceptional tolerance between the different religious communities. Therefore, when my noble friend the Minister and his ministerial colleagues have discussions with our Turkish friends and the Arab League at the United Nations, and most particularly with the Syrian opposition, can the clearest possible reassurances be given publicly to the minorities, for whom this is an extremely fearful and difficult time, that in the event of a change of government in Syria, which now seems increasingly likely, their rights and way of life will be fully protected?
Lord Howell of Guildford: The short answer to my noble friend is yes. Those are very important points and have certainly been brought to the fore in all these discussions, including those that took place only a few hours ago between my right honourable friend the Foreign Secretary and several opposition leaders in Syria. Our view is that minorities would be best protected if the Syrian Government themselves would stop their violent and oppressive activities and the slaughter of many of their citizens, and at every point we have sought to encourage the opposition leaders to engage with minorities and maintain non-sectarian approaches as far as they conceivably can.
Lord Wright of Richmond: Perhaps I may remind the Minister of a question that I asked on 8 June this year, in which I warned of the danger of calling for the overthrow of a system of government that is, for all its
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Lord Howell of Guildford: The noble Lord is absolutely right that there are many complexities, risks and concerns, both in keeping the present regime and, indeed, in the removal of it. Who knows whether the violence and horrors of the present situation will evaporate and be removed by a replacement? There may well be difficulties ahead. However, we are encouraged by the fact that the Arab League has taken the position it has, of criticising and challenging the Syrian Government-indeed, of expelling them from the Arab League-and taking a very firm stand for the future. We want to see the Arab League take a lead on the whole Syrian situation and indeed we are working at the United Nations to see that it has a stronger say so that we can mobilise the full force of the global community for change.
Lord Triesman: My Lords, the noble Lord, Lord Risby, asks the right question, and at a key moment. I greatly appreciate the work that the Government have done on the human rights resolution, and I hope that it might be possible, with the visit of the President of Turkey, to pursue some of those arguments as well in the near future. Does the Minister think that there is scope for an escalating pattern of sanctions, which could be agreed at the UN; for the encouragement of appropriate bodies which nominate people, to remove Syria from some of the multinational bodies on which it still sits; and for an extension in issuing warrants under the rubric "crimes against humanity", in order to increase the pressure on what is an obnoxious regime?
Lord Howell of Guildford: There can certainly be an escalation of pressures. Indeed, that is what we are involved in with the new EU measures that we are proposing, which will come forward on 1 December-the week after next-and the UN Human Rights Commission report, which is appearing next week, as well as doing what we can to carry forward the possibility of a UN Security Council resolution. However, one has to be realistic. In the UN Security Council there remains very great reluctance and indeed obstruction to advancing any Security Council agreement on a full resolution for further action. We are constantly working to overcome that, but it is there. That of course applies to the International Criminal Court aspects as well because, as Syria is not a signatory to the ICC, it requires a UN Security Council resolution to authorise the ICC to
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Lord Wallace of Saltaire: My Lords, as no amendments have been tabled to the London Olympic Games and Paralympic Games (Amendment) Bill, it may be helpful if I announce at this point the advisory speaking time for the Second Reading of the Legal Aid, Sentencing and Punishment of Offenders Bill. There are 54 speakers signed up. If Back-Bench contributions are kept to a maximum of seven minutes, the House should be able to rise at around the target rising time of 11 pm.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, this is a substantial and far-reaching Bill. Its breadth is a consequence of the scale of its ambition, which is nothing less than intelligent, radical reform of the justice system. It aims to reform our criminal justice system so that it protects and serves the needs of the law-abiding, especially victims. It recognises that, for many offenders, prison does work and clear, stiff punishments are the right response to serious crime. But it also seeks to meet the challenge of persistent offending by bringing on stream a rehabilitation revolution which, if successful, would be a win-win, saving future victims from the trauma of a crime and the taxpayer the cost of incarcerating the offender once again, at the same time introducing to society a productive citizen whose life is not wasted in the cycle of criminality.
The Bill's second goal is the long-overdue renewal of our system of civil justice. A modern system should resolve conflict as early as possible in the most cost-effective way. Yet the reality is that many ordinary users find going to law a slow, expensive and daunting experience that fosters rather than minimises litigation, often at the taxpayer's expense.
The Bill therefore seeks to remove certain areas from the scope of legal aid while encouraging a step-change in the use of mediation and other ways of resolving disputes. It also implements the recommendations of
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Underpinning these first two aims is our third intention; namely, to make a contribution to unavoidable and necessary reductions in public spending. We approach our task with a profound belief in the fundamental importance of access to justice but the system as it stands faces an unignorable problem of affordability. Therefore, Part 1 introduces major reforms to the scope of civil legal aid. Alongside this, the changes in Part 1 mean a fundamental shift in the way the legal aid and wider civil justice system works.
For those who say that those most in need must have legal help to support them when they have a serious legal problem, I agree. For those who say that people must have legal help for whatever they want, whenever they want, I cannot agree. Access to justice is not the same as state-funded access to legal representation at court. We must do more to encourage people to use alternative, less adversarial means of resolving their problems.
We have approached our reforms of legal aid from first principles and have taken into account the relative importance of the issues at stake, the litigant's ability to present their own case, the availability of alternative sources of funding as well as alternative sources of help and advice. Our proposals seek to focus legal-aid funding on circumstances where a person's life or liberty is at stake, where they are at risk of serious physical harm, or where they face immediate loss of their home. Importantly, we are also retaining civil legal aid in cases where children may be taken into care.
The net effect of all this is significant change. Yet, in all, we estimate that the taxpayer will still spend the best part of £1.7 billion on legal aid each year after these reforms have been carried through. Prioritising critical areas of spend necessarily means taking a more radical approach elsewhere. That is why, for example, we have decided to remove taxpayer funding for legal representation in private family law cases and, instead, increase spending on mediation. Similarly, in areas such as employment, routine immigration applications and welfare benefits issues, legal aid will no longer be available. As noble Lords well know, the original rationale of the tribunals system was precisely to enable people to make their case without the intervention of a lawyer.
Although narrowing the scope of legal aid, we intend to provide a safety net. The exceptional funding scheme established in the Bill will provide funding for an excluded case where failure to do so would amount to a breach of a person's right to legal aid under the Human Rights Act or European Union law. We also intend to address worries about the future of the valuable work done by the not-for-profit sector. This is an important part of our alternative and we recognise the need for a strong sustainable body of advice providers.
The Government have already announced a £100 million transition fund for the not-for-profit sector. I can confirm that, as announced this morning, we are injecting an extra £20 million specifically for
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Concerns have also been raised about the impact of Part 1 on children and women. Let us be clear from the outset: we have retained legal aid for child protection cases, civil cases concerning child abuse and those involving special educational needs. We have also made special provision to retain legal aid for child parties in family cases. The consequence is that the vast majority of support for children will be unaffected by our changes. In 2009-10, the Government provided £133 million in civil legal-aid funding to child parties in all categories of law. Under our proposals, 95 per cent of that will continue.
In relation to women's access to legal aid, we are again prioritising those most at risk of harm, retaining legal aid for private law cases involving domestic violence, where we have broadened the range of evidence accepted. Applications for protective injunctions and associated advice will continue to be funded.
In addition, in private family cases, Part 2 extends the courts' powers to require one party to pay towards the other's costs. This will help significantly in cases in which there is an inequality of arms. In family law as a whole, the taxpayer will still be providing over £400 million, much of which will benefit women.
Of course, the dire economic situation that we inherited drives some of the tough choices that we have had to make. Indeed, noble Lords opposite were already trying to cut legal aid at a time when they were still telling us that they had cured boom and bust. We all agree that legal help for those facing serious legal difficulties is fundamental. On the other hand, substantial changes and reform are much needed. We believe that our proposals in Part 1 achieve this balance.
Part 2 implements reforms in civil litigation funding and costs, based on Lord Justice Jackson's recommendations. No-win no-fee conditional fee agreements were first introduced in England and Wales by my noble and learned friend Lord Mackay of Clashfern. Most observers believe that they succeeded in their goal of improving access to justice for those who were neither poor enough to qualify for legal aid nor wealthy enough to afford the costs of privately funded litigation. However, later changes tilted the balance much too far in favour of claimants. The Master of the Rolls, the noble and learned Lord, Lord Neuberger, said to the Times only last week:
This Bill intends to do something about it by ending the recoverability from losing parties of success fees and insurance premiums that drive up legal costs. This will be balanced against a 10 per cent increase in general damages for claimants. By taking these steps, we will restore common sense to the system and stop the perverse situation in which fear of excessive costs often forces defendants to settle, even when they know that they are in the right. This marks a return to the
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I am well aware that a number of noble Lords, many of whom are sympathetic to the broad thrust of the Jackson reforms, have concerns about how this will impact on certain areas of litigation. I will listen to what they have to say both during today's debate and when we return to those matters in Committee.
I turn now to the third and final part of the Bill, which concerns our sentencing proposals. I want to start by making the point that these reforms are designed with the victims of crime very much in mind. As I have said already, for many, prison is necessary and it works. However, if it is truly to protect the public, it needs to do a much better job on tackling reoffending.
We have two key proposals to deliver this change. The first is to introduce reforms across the estate to make our prisons places of hard work, not idleness. Getting prisoners into the habit of work matters in its own right not only because unemployment is a major risk factor in reoffending, but because once you get offenders working, you can institute a much more effective system of reparation to victims and to communities. Accordingly, this Bill enables deductions to prisoners' earnings to pay for victims' services and puts a positive duty on the courts to consider handing down compensation orders, the proceeds of which can go direct to victims. These reforms will help to move prisoners from being a purely negative drain on the system to making a positive contribution and pay genuine reparation to the victims who their actions have affected so terribly.
Running parallel to the Bill, our second key proposal is paying by results those organisations which work to rehabilitate offenders. This is a truly radical reform with the potential to revolutionise the way a lot of rehabilitation services operate. Rehabilitation is the key theme that runs right through the Government's sentencing proposals. One need only look at this summer's riots, where around three-quarters of suspects had previous convictions, to see that existing punishments have so far failed to reform. I believe that we need punishment which is robust and proportionate but that is also accompanied by a determination to get offenders to face up to the causes of their crime. We are offering those who commit crimes a choice. For those who do wrong, you will be punished, but for those who choose to mend their ways, we are extending a helping hand. That helping hand includes freeing up courts to impose drug, alcohol or mental health treatment requirement programmes which are tailored to individual needs.
I can also announce today that the Government intend to introduce reforms to the Rehabilitation of Offenders Act 1974, the outdated operation of which inhibits rehabilitation. We intend to bring forward amendments to achieve the right balance between the need to protect the public while removing unnecessary barriers that prevent reformed offenders contributing to society. I pay tribute to my noble friend Lord Dholakia on his long campaign on this matter. We believe that punishment must be proportionate, flexible and productive, so let me turn to some of the key measures in the Bill which will ensure that.
The first of the measures is greater discretion. We are legislating to provide more flexibility for judges and magistrates to sentence appropriately. The Bill is a first step to unpicking the labyrinth of legislation governing sentencing and creating a single framework for the release and recall of offenders. We are also proposing a simpler, clearer duty on the court to explain the sentence it passes, enabling it to be understood better. The Bill also introduces greater flexibility and discretion by removing the so-called "escalator principle" of out-of-court disposals for under-18s, which forces young people arbitrarily into the criminal justice system, regardless of the nature of their offending. In this area of youth justice reform, we are also undertaking the important step of treating 17 year-olds as children for remand purposes, and giving "looked-after child" status to all young people aged under 18 who are securely remanded. This will enable, for the first time, care plans to be created for those young people who are remanded to youth detention accommodation.
In the wider system, we seek to take a tougher approach to waste and reduce unnecessary pressures. Our major reform here is our proposals on remand in Chapter 2 of Part 3. These focus the use of remand in custody on those who are likely to receive a custodial sentence if convicted, with an exception in domestic violence cases. While I recognise that this change will be unwelcome to some, continuing to remand into custody people who in reality have no prospect of being sent to prison if convicted is simply a wasteful use of expensive prison places. On the other hand, if you have committed a serious crime, you can expect a serious punishment, so Part 3 introduces a number of new criminal offences which ensure that the public have confidence in the system. These include: criminalising squatting in a residential building; minimum sentences for those aged 16 and over who use a knife or offensive weapon to threaten another person and cause an immediate risk of serious physical harm to that other person; and a maximum penalty of five years' imprisonment for causing serious injury by dangerous driving.
Lord Reid of Cardowan: Before we leave sentencing I would like to ask the Minister a question about indeterminate sentences, which he has not mentioned. In doing so, I declare my interests, as registered. The Minister may know that some years ago when I was Home Secretary, I gently reminded the judiciary of the premise behind the sentencing guidelines that people should not be sent to prison for offences that did not merit it but should be given community services, whereas people who were a serious danger to society should be retained indefinitely for protection, not for punishment. Could he say something about that relationship, in particular indeterminate sentences, before he moves on?
On knife crime, in particular, I understand the arguments of those requests and the desirability of minimum sentences. We have not taken this decision lightly but only after careful consideration. The stark reality is that too many people are affected by this scourge and more often than not those targeted will be
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I now wish to turn to one of the Bill's most important reforming measures, namely reform of the current system of indeterminate sentences for public protection. IPPs are poorly understood by the public. They lead to inconsistent sentences for similar crimes. They deny victims clarity about the length of time an offender will serve. The previous Government estimated that there would be around 900 such prisoners in jail. There are now 6,500 and more than half of those are beyond their tariff. As of the end of June 2011, only 320 had been released.
IPPs clearly need major reform. We will replace the IPP with the new extended determinate sentence. Instead of serious violent and sexual criminals being released automatically halfway through their sentence, those receiving the new extended determinate sentence will have to serve at least two-thirds before they can be considered for release, and the more serious offenders will not be released at that point unless the Parole Board considers it safe to do so. Under our plans we expect that more dangerous offenders who commit a second serious crime will receive a mandatory life sentence. We believe this is a balanced reform, one where victims will have a clearer understanding of how long offenders will spend in prison and will be kept informed of progress and release plans. It is an attempt to deal with the real problem without compromising the public safety or ignoring legitimate concerns about serious offenders.
I am well aware, given the range of expertise in this House, that the sentencing reforms that I have outlined will be subject to scrutiny and debate, both today and in Committee. So, too, will our proposals on legal aid, on the Jackson reforms and the rehabilitation revolution. This is as it should be for this is a revisory and an advisory House of great wisdom and expertise, and I will listen. But we remain clear about the need to make hard choices and fundamental reforms in our justice system. If we get this right, the prize is a justice system that contributes to a safer and fairer society by tackling reoffending and by putting the victim at the heart of everything we do. Moreover, it will be a system that protects access to justice where it counts while keeping costs under control and ensuring the system has less waste and less delay. Our aim has always been to propose a balanced package and I can tell the House that that remains exactly what this is. This is a radical and reforming Bill and I commend it to the House. I beg to move.
As the Minister indicated, the Bill is plainly a substantial piece of legislation. It makes major changes to the civil law, with consequences for access to justice. Our principal concern focuses on extensive cuts to legal aid and a dramatic switch in civil litigation to place greater financial burdens on winning claimants, hitherto treated as entitled to restitution for their loss and damage. As the House's Select Committee on the Constitution has observed-as if there were any doubt about the matter:
The section of the Bill on criminal justice is perhaps less sweeping and less controversial, encompassing as it does both sentencing reform, much of which we support, and the creation of new criminal offences, the latter for the main part having been introduced on Report in another place.
It is the changes to both legal aid and civil litigation that have rightly attracted the most concern, the most representations from civil society and the most debate in another place. It should be clear from the outset that we oppose many of these changes. I know from speaking to certain of your Lordships that these concerns are shared by many here. My noble friend Lord Bach and I will advance arguments as to why those changes are both economically misguided and target the wrong people. They target, for example, the most vulnerable in the case of legal aid, including vulnerable families, and victims in the case of civil litigation reform.
Part 3 of the Bill contains a variety of fairly substantial changes to the criminal justice system, some of which we welcome. For example, the Government intend to divert away from custody people with mental health and addiction problems as well as young people. These proposals are both sensible and proportionate. The Government propose to end indefinite sentences for public protection, IPPs, which have attracted considerable criticism over the years. The plan to replace IPPs with extended determinate sentences and mandatory life sentences for the offender who commits certain specified offences twice will plainly require scrutiny in Committee, as the Minister anticipated.
The Bill also aims to change the way in which remand works in England and Wales by limiting its use where a judge rules that there is no probability of a custodial sentence. Our view on this issue is that there is of course merit in reducing the use of remand where it is unnecessary, but only if it does not put victims and the general public in harm's way. Further, there are due process issues for a magistrate, who, without having seen prima facie evidence, is required to decide whether an offender is likely to be sentenced to custody. The Government have signalled their intent to bring forward in this House further changes to remand in response to campaigns such as that by the parents of Jane Clough, who was murdered by her ex-partner while he was on bail pending charges for her rape We expect that these will require considerable scrutiny so that we can balance keeping the use of remand while protecting the public.
The Bill also creates new, or possibly restated, criminal offences of threatening with a knife and squatting, alongside what the Government call a "clarification"
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I return to Parts 1 and 2 of the Bill, which correctly have attracted most concern. The cuts to legal aid set out in Part 1 and the reduction of damages that victims receive set out in Part 2 are contiguous assaults on access to justice for both the most impecunious in society and those of moderate means. The Government aim to make substantial cuts to social welfare legal aid and advice. Welfare benefits will be removed from the scope of legal aid. Education advice and representation, except for matters dealing with special educational needs or discrimination, will be removed from scope, as will be debt advice, except where the client's home is at risk, employment advice and representation, except discrimination issues, and housing advice, except where the client's home is at risk. The Government apparently hope to save some £64.5 million by removing these areas of law from scope while, we say, adversely affecting the most vulnerable people in society. We say "adversely affecting" as these citizens will now have to navigate the First-tier Tribunals on their own without advice or representation.
I appreciate the First-tier Tribunals are meant to be more user-friendly to the unrepresented applicant than the courts, but they still rule on matters of law, which user-friendliness in itself does not assist. The Minister has indicated that today apparently £20 million will be made available in respect of free advice. I have one or two questions about this. It would be interesting to know, for example, whether this is free legal advice, because legal questions tend to require legal advice. I ask this question because we on these Benches have received little information about this proposal. I also ask whether this is possibly the same £20 million to which reference was made on 2 June this year.
The risk is that someone who has a learning disability or poor language or communication skills will receive no help at all. Answers to Parliamentary Questions reveal that those who appear before the tribunals with specialist advice are twice as likely to win as those without specialist advice. If we look at the data for the last year, taking advice away from those who won raises the question whether those 51,000 people who received advice and won their case would have in fact won at all.
The real concern is that people, who have meritorious cases, where advice would permit their cases to be pled cogently and persuasively, will lose out. We know that where the vulnerable lose out, their lives can sometimes tip over into ill health, homelessness and family breakdown. Of course, it is then, only then, that the state will be obliged to intervene.
"The design of the legal aid reductions and changes will take away routes to accessible early advice (including by the damage done to the advice sector, which in turn damages access to wider pro bono legal services) and leave intervention too late or denied altogether. As a result we will find more cases started by self-represented claimants that need not have been started, more cases where self-represented defendants are involved for longer than need be, and more cases not starting when they should be started so that they can be resolved. We will find problems clustering, with increasingly wide and serious consequences for the individual, for families, and the state".
The Government's own assessments do not read particularly hopefully. They say the cuts to social welfare legal aid threaten to lead to reduced social cohesion; increased criminality; reduced business and economic efficiency; increased costs for other departments; and increased transfer payments from other departments, in particular higher benefits payments for people who have spent their savings on legal action.
These proposals merit considerable scrutiny by this House. I urge those who have not done so to read the Hansard record of the Committee and Report stage of this Bill in another place. Members from all sides have argued that these changes will do little to enhance our society. This House's Select Committee on the Constitution suggests an amendment to oblige the Lord Chancellor to,
The second major change to the legal aid system is that to private family legal aid. Private family legal aid, which helps impecunious applicants with matters including divorce, custody or ancillary relief-payments and maintenance following divorce-will no longer be funded by legal aid unless the applicant has suffered domestic abuse. The Government have set out six forms of evidence that they will accept for the purposes of accessing private family legal aid.
We believe, as do many others including the Women's Institute, Rights of Women, and End Violence Against Women, that this evidential prescription will adversely affect women. In particular, the Opposition are very concerned that the evidential criteria adopted by the Government are too narrow. In fact, they do not even reflect best practice across government. The UK Border Agency's list of accepted evidence on domestic violence is broader than the Bill's treatment of someone seeking legal aid for divorce.
One is given to understand that the Government are worried that evidential criteria containing an element of self referral and their decision to make domestic abuse the gateway to legal aid will create a perverse incentive to claim abuse where they might be none. But this approach seems to create and foster institutionalised doubt as to the veracity of victims' claims in the first instance. Put colloquially, women will lie. We fear that it will disadvantage women and indeed men who leave a partner after sustained abuse. They may not have revealed their experience of abuse to others but they will be denied legal aid because they do not fit the set criteria. That is hardly an advance, noble Lords may agree.
Part 2 of the Bill deals with reform of civil litigation funding and costs. The Government believe that
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The Government's plans, which we will examine in their technicalities in due course, propose major changes to the settled system that we have now. How will it affect those who find themselves needing recourse to litigation, often literally through no fault of their own? Winning claimants-that is, those who have been wronged-will lose out. They may have to pay up to 25 per cent of their damages to their lawyers excepting any award for future care. It is true that to make up for part of these losses the Government plan a 10 per cent increase in damages for pain, suffering and loss of amenity, but not all damages awards. The simplest arithmetic shows that the increase is unlikely to replace the percentage paid to the lawyer.
Oddly, losing claimants, however, will gain. They will no longer have to pay the costs of winning defendants. That is part of the qualified one-way cost shifting scheme that the Government intend to introduce once the Bill passes. Local authorities and insurers are privately counselling that that will lead to an explosion in fraudulent small claims, typically slips and falls, where the authorities' costs of defending exceed the claim. Elsewhere, the Government say that they fear perverse incentives.
We also find that losing defendants-that is, the wrongdoers, those proven to have caused harm-will gain because they will not have to pay the cost of after-the-event insurance and the victim's lawyer's success fee thus limiting their and their insurers' liabilities. Winning defendants who successfully defend their cases will no longer be able to reclaim the cost of their defence thanks to qualified one-way cost shifting. Not all defendants, of course, are large companies or insured persons.
The gainers from this Bill are losing claimants and losing wrongdoers and their insurers. The losers are claimants who prove their cases and defendants who are held not to be at fault. Such outcomes are at best curious to those who prefer justice and fairness.
The majority of civil cases involve road traffic accident personal injuries and it is true that the Association of British Insurers and the right honourable Jack Straw have highlighted how so-called whiplash fraud is a real problem in this area. However, this Bill has consequences well beyond that problem, which can be resolved by a more focused approach. The effect of the Government's changes will be to render much of the law that protects the individual no longer practically accessible to many of our fellow citizens. If we take the acute area of clinical negligence, for example, the NHS Litigation Authority-hardly a claimants' advocate because it defends clinical negligence cases- identifies in its response to consultation that severely brain-damaged
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I turn to another area of the adverse effects of this Bill: business and human rights. Cases such as Trafigura, the toxic waste to Africa case, will be most unlikely ever to be brought again in future, and that for cost reasons. The UN Secretary-General's special representative for business and human rights, Professor John Ruggie, of Harvard University, alongside campaigners such as, inter alia, CAFOD, Friends of the Earth, Amnesty and Oxfam, all urge a rethink. We join them.
Turning to employment law, it is already under assault in so many ways, whether from tribunal charges, legal aid cuts or so-called blue-sky thinking to remove the laws completely. If people are made redundant or sacked unlawfully and their entitlement to remedies is blocked, the result in many cases will be that the state has to provide the support for which otherwise the employer is liable. We note also that insolvency cases raise issues. HMRC and the Insolvency Service have stated that they are lobbying for an exemption, which is possibly not an example of a joined-up government. I should also mention concerns about defamation law. Your Lordships will be aware that the Joint Committee on the draft Defamation Bill has observed that this Bill's proposals do not put libel proceedings,
Finally, I turn to industrial illness and disease, one of the most difficult areas. Many charities, including those that support the victims of asbestosis, have expressed real concern that this Bill threatens their ability to get access to justice. I will read a few excerpts from a letter written by Yvette Oldham, whose partner Trevor was a victim of asbestosis. She wrote:
"My husband Trevor and I were devastated upon hearing his diagnosis of mesothelioma in March 2010. We were just a normal couple with a grown-up son, leading busy lives at work, socialising and sporting activities. Trevor is in no way to blame for his condition and was exposed to asbestos between 16 and 24 years of age when he was an apprentice lift engineer erecting lifts on building sites ... This disease has affected our lives in every possible way and stress levels have been extremely high for both of us ... Trevor has been in pain since the condition showed itself, he is very sensitive to strong pain-killing drugs, so is unable to take more effective pain relief. Compensation would be eroded by having to pay legal costs plus insurance to cover defendants' legal costs, plus the worry of having to pay some fees upfront. This is an insult and will discourage people from making a claim to which they are entitled. This Bill should be designed to stop the
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This Bill overturns central aspects of our civil justice system that have proved positive and progressive. The most vulnerable people in society and victims are being disadvantaged. Some say that the purpose is to attack a so-called compensation culture. Of course, there are abuses, as can occur in all systems, but there is no evidence-evidence, not headlines-of continuing pervasive abuse requiring this Bill's approach. We believe that the Government will struggle to justify the changes this debate will highlight. We can promise that the Bill will be subject to substantial scrutiny in Committee.
Lord Thomas of Gresford: My Lords, one of the three great universal lies is, "I am from the Government and I am here to help you". I assure my noble friend Lord McNally that we are from the Liberal Democrat Benches and we are here to help him. I hope that by the time we have finished this process that will not turn out to be the fourth great lie.
Many aspects of this Bill are very welcome. The sentencing provisions demonstrate the enlightened views of the Lord Chancellor, who sees great merit in improving the system of retribution and reform by community sentences, not to mention the many millions of pounds that it will save in keeping offenders out of our great universities of crime. One client said to me not so long ago-he was a man of excellent character before he went to prison-"I don't need to work again. After what I've learnt in here over the last six months, my future is made", so that is one less on the jobless list. It is true that in this Bill the old devil is peeping out from the provisions for mandatory sentencing, but we shall deal with that in Committee. My noble friends Lord Dholakia and Lady Linklater will speak further on these matters shortly.
Once again, parts of this Bill have not been debated by our elected representatives and have passed through on the nod. I single out particularly the new crime of squatting. Are current civil powers of kicking out squatters and letting them go on their way not enough? Must we punish the homeless with fines and imprisonment as well? My noble friend Lady Miller of Chilthorne Domer, who wished to make this point today, is unhappily not with us but she will address this issue in Committee. This is certainly not hating the sin but loving the sinner; it is hating the sinner because of the chaotic person he usually is.
I declare an interest in that over the past 50 years I have made my living from legal aid, and I am proud to say so. The system has been due for revision and change for some years. It is a basic principle that:
The legal aid provisions of the Bill are not designed to increase access to justice; they are meant to save money. That is fair enough. Those lawyers who have
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In welfare, immigration and benefit law, one principle stands out, and it is a principle to which my noble friend Lord McNally referred in his opening remarks-that of equality of arms. There has to be equality of arms between the state and its offshoots and any person in dispute with the state. At the very least that requires legal advice, assistance and advocacy in the Upper Tribunal on appeals from the social entitlement and the immigration and asylum chambers of First-tier Tribunals to the Upper Tribunal and appeals from there to the Court of Appeal and the Supreme Court. It also means a focus on better decision-making at first instance in these areas and a far less adversarial and more co-operative climate where litigants appear in person in front of First-tier Tribunals.
For the moment, I shall say little about areas of law that are removed from the scope of legal aid, save that the argument to retain clinical negligence within scope is, in our opinion, overwhelming. The Lord Chancellor takes power to remove further areas of the law out of scope, but takes no power to return into scope those areas where, as we reluctantly predict, the courts and tribunals will quickly grind to a halt.
I must make this point too; we on these Benches are not committed to smaller government, and when the economy improves we will look to ensure that access to justice in all areas is guaranteed. However, if financial necessity demands savings, it is essential that advice services to the public are fully supported. My noble friend Lord Shipley will expand on that, but it seems to me that if the Government are stipulating that the only gateway to legal aid is initially through the Community Legal Advice helpline, they should think again. The legal advice centres, citizens advice bureaux and other voluntary advice organisations, whose very existence is threatened by the cuts in legal aid, are a national resource not to be lightly cast aside. Rather than expanding the CLA helpline, the Government should fund these organisations to use their considerable expertise and local knowledge in providing the independent telephone and e-mail advice, which will certainly be required.
In the course of the Bill, I intend to focus on the changes promoted to conditional-fee agreements and after-the-event insurance in Part 2 of the Bill. My noble friend Lord Phillips and I were hotly opposed to the alterations contained in the Access to Justice Act 1999 on the principle that a lawyer ought never to have a financial interest in the outcome of a case. I shall table amendments to continue that fight against the creeping advance of third-party litigation funding, which used to be called maintenance and champerty, to introduce regulation into a completely unregulated field.
However, we have to sort out in the present provisions of the Bill not only the principle of whether the success fee and after-the-event insurance premium should be deducted from the damages of a claimant who has been injured by the negligence of the defendant, but the uncertainty introduced by the proposals for qualified one-way costs shifting, to which the noble and learned Lord, Lord Davidson, referred. The unintended consequences of the present proposals include much more satellite litigation: the destruction of after-the-event insurance in claims other than personal injuries, such as in environmental law where we have international obligations under the Aarhus convention, and in other complex and different cases where the ordinary man faces an industrial or commercial giant or the intransigence of local authorities. The concept of abolishing referral fees is to be welcomed, but it is another area that must be fully explored and the real abuses rooted out.
Baroness Grey-Thompson: My Lords, I have a number of concerns about this Bill, specifically in the area of legal aid which has been outlined wonderfully by the noble Lord, Lord Thomas of Gresford. Like many, I have worried that we have been creeping towards a more litigious society. However, research suggests to me that instead of encouraging litigation, legal-aid advisers recommend that clients go to appeal only if they judge that there is a realistic chance of winning. They act as independent gatekeepers, keeping costs down.
The Bill proposes that legal aid should be provided for some alleged victims of abuse in private divorce and children proceedings, but not for the alleged perpetrator. This will almost certainly result in those alleging abuse, including disabled people and vulnerable adults, being cross-examined by the accused, creating significant risks to their welfare through the court process. The final report of the Family Justice Review points out that protections are available to prevent vulnerable witnesses going through this ordeal in the criminal courts, but not in the family courts.
It was announced this morning that in Middlesbrough, the nearest large town to where I live, there were 4,500 reports of domestic violence in the last year. I am seriously concerned that many women, and some men, will be put in the vulnerable position of not taking cases forward because of fear of the system they are entering.
Disabled people are facing the biggest changes to the welfare system that we have seen in a long time. I think many in your Lordships' House would agree that reform is necessary, and I welcome a simplification of the system. Based on the Government's projection, approximately 250,000 households with a disabled person living there will be lifted out of poverty due to the introduction of universal credit. However, this could be undermined in the absence of appropriate legal advice that might prevent a disabled person
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No benefits system is easy to understand. However, to push technical advice to volunteers or to Jobcentre Plus is not appropriate. Specialist advice is required in compiling evidence and also to meet the tight timescales in the appeals process. I am very interested in this area as I have an amendment to the Welfare Reform Bill, now in Grand Committee, which seeks to remove an extra step to the appeals process. One reason that I believe in protecting legal aid for disabled people is that in 60 per cent of appeals in which disabled people were eventually found to qualify for ESA, zero points had been allocated at the initial assessment. That is a massive turnaround, highlighting some of the problems with the assessment process, which quite rightly has been discussed elsewhere. However, it is clear to me that it is right to support people through the appeals process and this must be protected.
The Government's impact assessment shows that disabled people make up a disproportionate number of those who receive legal aid for welfare benefits cases: some 58 per cent. This translates to over 78,000 disabled people who could be denied specialist legal help if these measures go through. I have spoken many times about my desire to get more disabled people into work, but it is about getting the right advice and putting the right steps in place to encourage this to happen.
The Government's own research has found that the public will face poorer case outcomes, longer delays in the resolution of cases and a declining prospect of settlements, and vulnerable people with complex needs will be forced to present their own cases. The court system could be thrown into chaos by the increasing number of litigants in person. This process can be intimidating for the most articulate and informed of individuals.
There are several questions that I would like to ask the Minister. Citizens Advice has provided evidence to the Government that removing welfare benefits from legal aid will cost more in the long term. Can the Minister explain what account has been taken of that advice? The Government's own impact assessment has suggested that there could be increased costs for other departments due to these proposals. What are these costs, and which departments are involved? I accept that we are in difficult times and that tough choices have to be made. To redress the balance, the Ministry of Justice will rely on a proposed exceptional funding test as stated in Clause 9. However, the threshold for the test means that very few-only 5 per cent of cases-will likely be brought back into scope.
I also have serious concerns about the telephone gateway being proposed for community care law, debt, discrimination and special educational needs. The cases of disabled people are complex. A phone call will not take into account the nuances of the situation. If a disabled person has struggled to put their case forward in an assessment process, a phone call will not make it easier. In these tough times, I am concerned that local
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Data from the Civil and Social Justice Survey show that disabled people are more likely to report that they do now know their rights compared to non-disabled people: 69.2 per cent compared with 63 per cent. The 63 per cent figure also causes me concern, but perhaps it is not something to address here.
The Disability Law Service believes that this Bill will deny legal representation and advice to 650,000 people on low income, many of them disabled people. Where will these people go for help, advice and support, and the opportunity to get into work if more barriers are put in their way?
My final question concerns the consultation process. I understand that there were 5,000 responses and that around 90 per cent did not support the proposed changes. What notice has been taken of the consultation process?
The Lord Bishop of St Edmundsbury and Ipswich: My Lords, Members on these Benches, like many noble Lords who spoke, have many serious questions about the legal aid provisions in Parts 1 and 2, but broadly welcome the sentencing provisions in Part 3, particularly the ending of IPP sentences. I recently spoke to a Crown Court judge who had not used to such a sentence for more than two years, and had found them very unsatisfactory before that. Questions remain about those who are in the system already under IPP sentences, and how some of the anomalies will be dealt with. However, that is something apart from the Bill.
It is not easy for those of us who are not lawyers to evaluate the claims and counterclaims made about the workings of legal aid. However, some principles from which we on these Benches work include the very clear concern for justice that runs right through the scriptures. In the Old Testament, the prophet Amos said:
Members on these Benches are aware not only of the widespread opposition in the legal profession to these changes but of the apprehensiveness of many voluntary organisations that work with less well-off recipients of legal aid.
There is a consensus that costs are too high in both the civil and criminal courts, but there is a lot of disagreement about the causes. We understand the problems that the Government face. A well known study by the University of York concluded that the high expenditure is driven by the high income ceilings on eligibility, although I realise that the Select Committee on Justice in another place concluded that the ceilings here were not very different from those in comparable European Community countries. There is also a wide coverage of different areas of law and a necessity for high-quality representation in an adversarial system. The committee also found that the comparatively high proportion of legally aided criminal cases was due in part to the higher rates of recorded crime and to the higher proportion of cases brought to court. Given this, some remedies lie outside the legal aid system, which cannot help being a victim of its success.
It seems that the limitation on the types of cases eligible for legal aid, the changes to the criteria of eligibility and the extension of means testing will have drastic effects on many litigants and defendants. The Bar Council stated:
The question is one of access to justice. The repeal of the duty to ensure that individuals have access to legal services that effectively meet their needs is regressive, as the Constitution Committee of the House noted. Surely there is the potential to swamp the courts with ill-equipped litigants in person. This would not only put extra pressure on the individuals but would extend the length of proceedings, thereby partly cancelling out the savings made by cutting legal aid.
I have particular areas of concern. There remains an anxiety that the Bill will have a damaging effect in family law cases, particularly where domestic abuse is involved. A number of children's advocates remain anxious about what has been curtailed in the way of legal aid in this area. The Bill will limit the ability of people to seek compensation in areas such as clinical negligence. The proposal to amend defendants' cost orders looks like a blow to innocent defendants who choose to fund themselves. The exclusion of most immigration cases will affect people who often have no alternative means of resolving disputes and enforcing their rights. The provision of exceptional case funding for people in special need seems puzzling. Almost all cases should pass the proposed test, so why have exceptional funding in the first place?
As we heard, notably from the noble Baroness, Lady Grey-Thompson, disabled people are likely to be disproportionately affected. They tend to rely on benefits and are less able to represent themselves. If firms specialising in legal aid are put under financial pressure or go out of business, there will be considerable knock-on effects. The Bill may save money in one area at the expense of considerable social disruption and consequent expenditure in others.
As I said, it is difficult when you are not a legal expert; however, when we stand and listen to the debate, as Members from these Benches will do with great care, we remain hopeful that Parts 1 and 2 will continue to be heavily scrutinised and substantially amended by your Lordships' House. Our attention will be there.
Lord Hunt of Wirral: My Lords, I declare my interest as a partner in the international commercial law firm DAC Beachcroft LLP and the other interests that I declare in the register. However, I would like to return to the speech of my noble friend Lord Thomas of Gresford, with whom I have previously worked. How right he is to criticise the changes that were introduced to the no-win no-fee system which made it exceedingly complicated but also benefited a number of groups, to which I will refer in a moment.
I also worked closely with him on the Legal Services Bill, to emphasise the need for access to justice. In that context, I want to refer to the recommendations of Lord Justice Jackson and to declare an interest in my
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I strongly support those recommendations, but remind your Lordships that Sir Rupert started with a blank sheet of paper. He then spent four months gathering evidence and a further three months in consultation, before examining that evidence, balancing all the special pleading that was introduced by various vested interests, and coming up with recommendations which were firmly in the public interest. It is that balance which we must insist we keep in view throughout the passage of the Bill in this House.
What Sir Rupert Jackson said-and I remind the noble and learned Lord, Lord Davidson, of this-was to advocate the return of the no-win no-fee system that was originally introduced in 1995. I take this opportunity to praise the work of my noble and learned friend Lord Mackay of Clashfern, who as Lord Chancellor steered those reforms into law.
This is now very much his view of how litigation should be funded, and I thought, until the noble and learned Lord spoke from the opposition Front Bench, that it was based firmly on his Scottish roots. The system which the noble and learned Lord, the then Lord Chancellor, introduced and which Sir Rupert now advocates, is still no-win no-fee. It worked perfectly well, both for the severely injured and for those with lesser injuries. It also worked in other areas of law, such as human rights litigation and insolvency. It was never intended to be like the US style of contingency fees. Although Sir Rupert advocates the introduction of contingency fees, that certainly does not mean that we are introducing a US-style litigation culture as a consequence.
I do not think that there is anything in the idea of the client contributing towards the costs incurred on their behalf that would be against the established principles of our English legal system. Historically, there has always tended to be a difference between the cost which any litigant could recover at law from the opposing party and the total cost that they were liable to pay their own solicitor. Of course, there is a great debate about whether we have a compensation culture in this country, but Sir Rupert clearly thought that our legal costs culture had gone too far and, for my part, I strongly agree with him.
I shall give one example, which has been given in another place by Mr Straw and was referred to by the Lord Chancellor. At present, over 570,000 people present claims for whiplash. That is up 32 per cent in the past three years. That is the equivalent of one person every minute of every hour of every day. The number of such claims notified increased by 72 per cent between 2002 and 2010 against a background of a reduction of 16 per cent in the number of car
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All I would say to my noble friends is that we have to listen critically to any claims from any vested interests here, but let us concentrate on the hard facts as, indeed, Sir Rupert did in his excellent report.
Baroness Scotland of Asthal:My Lords, I declare my interest as chair of the All-Party Parliamentary Group on Domestic and Sexual Violence and founder and patron of the Corporate Alliance Against Domestic Violence and the Global Foundation for the Elimination of Domestic Violence.
Many elements of the Bill have already been alluded to in part and are meritorious of our anxious consideration and concern. For my part, I wish to concentrate on the provisions that affect domestic violence. The noble Lord said that they were to be preserved in relation to private law concerns, but I have to say to him that the preservation that has been retained does not adequately meet the needs of domestic violence victims. I also wish to say straightaway that throughout the years when I had the privilege of addressing the House from where the Minister now sits, I was always confident that I would have on domestic violence the total support of all those who now sit on the Benches opposite. Nothing ever divided us. Indeed, I do not see the Chief Whip in her place, but many in this House will remember her trenchant support. Indeed, she was very much my comrade in arms.
I understand that the provisions that are now coming before us are coming before us because it is felt that the fiscal position we now find ourselves in is such that drastic reform has to be made. I also understand what the noble Lord has said, on this occasion and in the past: that hard choices have to be made. However, may I say that hard choices have to be made but they should be the right choices? They should be made on principle and with a proper understanding of what is just and proper. It is right for us to remind ourselves, as the Constitution Select Committee has reminded us, that these issues are of constitutional importance. I draw the House's attention to what the committee said in its report. At paragraph 7, it reiterates the comments made by the late Lord Bingham:
"In his book, The Rule of Law, the late Lord Bingham forcefully argued that one of the ingredients of the rule of law itself was that 'means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve'. He went on to say that 'denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law'".
When we say that we cannot afford legal aid, we should think very carefully about whether we are saying that we cannot afford justice. Justice should be available in times of good and ill. In times of ill, it is more necessary than ever.
I accept that there has to be some modification, and that cost is a matter of importance. However, I have acute anxiety about the provisions in this Bill. They do not display any proper understanding of the nature of domestic violence, which I find acutely disappointing and, I have to say, surprising. These provisions reduce in both scope and extent the nature of legal aid that will be available to those who suffer from domestic violence. As your Lordships will be only too well aware, one in four women and one in six men are subject to domestic violence in our country. Eighty-nine per cent of victims are women; the repeat victimisation is of women.
It is well known that many victims, through shame and other matters, do not come before the courts with any degree of speed. They are reluctant and resistant and quite often do anything other than go to law. Any suggestion that we have to restrain or restrict the applicants seems misplaced. A woman will normally be assaulted 39 times on average before she will come forward. As your Lordships will know, some women will come forward straightaway but the majority will not, and sometimes they will suffer hundreds of assaults before they do.
These provisions restrict the legal aid given to victims in a number of significant ways. First, the definition of domestic violence is far narrower than the definition that we have all come to accept, which is accepted across government and by practitioners in the field. Secondly, there is a time limit of one year on when the person can come forward; one has to have either obtained an injunction or indeed got a conviction against the perpetrator within a year. Your Lordships will know that quite often abuse goes on for more than a year; for example, if a perpetrator is sentenced to five years' imprisonment and comes out after two and a half years, he may still present a threat to his wife but that conviction will be more than 12 months ago and therefore the proposed litigant will not get legal aid. Finally, the victim has to have been identified as high risk by the multiagency risk assessment criteria. Your Lordships will know that that means that the victim has to be at risk of either death or grievous bodily harm. Many victims who are in that condition never get to make an application for legal aid. The important thing is to assist individuals long before they get to that stage.
I know that Members opposite care deeply about these issues. I ask the Government to think very carefully indeed about the economic cost of these provisions. Your Lordships will know that as a result of the proper application of a joined-up approach, we have been able to reduce domestic violence in our country by 64 per cent and have saved £7.5 billion in economic costs. Each murder has a cost to the system in excess of £1.1 million. In London alone, from 2003 we reduced domestic homicide significantly. In 2003 there were 49 such homicides. In 2010, when we left government, that figure had been reduced in London to five. If £1.1 million is saved with each murder that is
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There are many things that we should do, but I say to the House very strongly indeed that the provisions on domestic violence are not one of them. This is a cut that we cannot afford, both in human terms and economically. I will be asking the Government to think again. There are so many provisions to look at, but I ask the Government to give these provisions particular and anxious consideration.
I will add just one more word, if I may, on the welfare claims. We know that the Government are currently minded to remove the Administrative Justice and Tribunals Council. The noble Baroness, Lady Grey-Thompson, has already indicated that over 650,000 cases are dealt with by the tribunal system. If we are not to have legal aid, and if we are not to have the supervision and oversight of the AJTC, how do the Government think that justice can be preserved?
Lord Dholakia: My Lords, much has happened since the introduction of the consultation paper, BreakingtheCycle. I shall leave it to the lawyers to deal with Parts 1 and 2 of the Bill. I shall concentrate on Part 3.
I trust the Minister will not be surprised if the thrust of my contribution relates to the rehabilitation process. I welcome the Bill and the fact that many of its provisions will help to reduce this country's entrenched overuse of prison custody. This country currently has 154 people in prison for every 100,000 in our general population, compared with 96 in France and 88 in Germany. Eighty of our 132 prisons are overcrowded and this overcrowding severely hampers prisons in their attempts to provide rehabilitative regimes. We send many offenders to prison to serve short sentences which are too brief for a sustained attempt at rehabilitation but are long enough for prisoners to lose their homes and jobs, which in turn makes them more likely to reoffend.
Several of the Bill's provisions will give courts greater ability to use non-custodial and suspended sentences. For example, the Bill will allow courts to suspend sentences of up to two years, rather than sentences of up to one year as at present. It gives courts more options when dealing with offenders who have breached conditions of community sentences. For example, courts will now have the option of fining the offenders and allowing the order to continue. The Bill will allow referral orders for young offenders to be used more often and more flexibly. All these changes should help to reduce the unnecessary use of custodial sentences.
I have one reservation about the proposed changes to non-custodial sentences and this relates to curfew requirements. The Bill increases the maximum period of a curfew from 12 to 16 hours a day and extends the period for which a curfew can last from six to 12 months. Confining offenders to their homes for such an extreme length of time could result in extreme family tensions in homes which are often overcrowded and characterised by chaotic lifestyles. In some cases it could increase
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The Bill includes some welcome provisions to reduce the number of prisoners who are unnecessarily remanded in custody. Around 40 per cent of defendants remanded in custody are either acquitted or given non-custodial sentences. Of course, in some cases the offender receives a non-custodial sentence because the court takes into account the fact that he or she has already been held in custody on remand. Nevertheless, to deprive someone of their liberty when they have not yet been found guilty of a crime is an extremely serious matter. It is surely right to ensure that we are not using custodial remands where the severity of this measure is disproportionate to the seriousness of the alleged offence. I therefore strongly support the Bill's provision that defendants should not be remanded in custody when there is no real prospect that they will receive a custodial sentence if they are convicted. Those who have studied the use of remand in custody at international level will concur with the Government's approach.
The Bill also puts right a serious anomaly in relation to defendants aged 17. At present, 17 year-olds are treated as juveniles for sentencing purposes but as adults for the purpose of bail and remand arrangements. This is indefensible and illogical, and I am pleased that the Government are ending this anomaly and putting the matter right. In common with the overwhelming majority of people involved in the penal system, I am delighted to see the back of the sentence of imprisonment for public protection, referred to by many noble Lords. The sentence has been a disaster for criminal justice and a disaster for the prison system, which is now clogged with more than 6,000 IPP prisoners with no certain release date, as the Minister has mentioned. It is particularly unjust that many prisoners who have passed their tariff dates are on lengthy waiting lists to start offending behaviour courses which could reduce their risk and make them good prospects for release.
While I welcome the abolition of the IPP sentence, I have some reservations about the measures which the Bill proposes to replace it. The first is the automatic life sentence for a second serious offence. Mandatory sentences always tend to produce injustice by preventing courts from taking into account all the circumstances of the individual case and tailoring their sentences accordingly. However, I acknowledge that this measure is much more restricted in its scope than the IPP sentence. It is limited to cases in which both the previous offence and the current offence merit sentences of at least 10 years and courts will not have to impose the automatic sentence if they consider that the interests of justice require another sentence.
I also have reservations about the proposal that offenders receiving extended sentences should have to serve two-thirds of their custodial term in custody compared with one-half as at present. At present, the point of an extended sentence is not to increase the period which offenders spend in custody. Extended sentences are currently intended to make sure that when serious offenders are released they are subject to
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However, the Bill would increase the time which an offender given an extended sentence spends in prison. This means that the time which he or she spends under supervision will correspondingly be reduced, which makes little sense. Can the Minister explain why the Government have decided that a court wishing to impose an extended period of post-release supervision will be able to do so in future only if it passes a sentence which also increases the length of time spent in custody before release? If a court does not want to increase the time the offender spends in prison but wants to make sure that he or she has an extended period of supervision on release, why should they not be able to order this as they can under the current provisions for extended sentences?
Clause 63 replaces the current complicated requirements on courts to explain the implications of and reasons for their sentences with a simpler requirement that they should explain the sentence in ordinary language. This is a welcome simplification of the court's duties at the sentencing stage. However, I have one concern about this change; namely, that it abolishes the requirement for courts passing prison sentences to explain why they consider that the offence requires a custodial sentence. Depriving offenders of their liberty by passing a custodial sentence is a uniquely serious decision that is in a different category from imposing even the most restrictive and intensive community sentences. The discipline of having to give reasons for passing a custodial sentence helps to concentrate the sentencer's mind on the gravity of that decision. It is designed to help ensure that custodial sentences are imposed only when there is no reasonable alternative. I hope that the Government will think again and decide to retain this important requirement.
I have never believed in miracles, but I am delighted that the noble Lord has indicated his wish to bring amendments on the rehabilitation of offenders, and I certainly welcome this. Reform of the Rehabilitation of Offenders Act 1974 would enable many offenders who have left crime behind to apply for jobs without fearing that they will be rejected on the basis of old and irrelevant convictions.
Reform of the Act would reduce crime by removing some of the obstacles that face former offenders who are seeking to live productive, law-abiding lives. This reform is in line with the Government's stated intention in this House and in last year's Green Paper, Breaking the Cycle.This is the right thing to do. It is right that those who wish to lead a law-abiding life are assisted to do so. I shall study the Government's amendments with great interest. In the mean time, it is right that I record my thanks to my noble friend Lord McNally.
Lord Pannick: My Lords, the exceptional quality of all the contributions that your Lordships have heard so far in this debate confirms-as if there were any doubt-the importance to the rule of law of the issues raised by this Bill. I want to focus my comments on
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The 1949 Act recognised that the rights conferred by Parliament and the duties imposed by Parliament are undermined to the extent that people cannot enforce their legal entitlements through the judicial process. The law and democracy are quite simply brought into disrepute. As with other pillars of a civil society-such as an efficient National Health Service, an effective defence system and effective border controls- there is no getting away from the fact that these cost money.
I want to mention four main objections to Part 1 of the Bill. First, it does not recognise that access to justice is, as we have already heard today, a vital constitutional principle. Mention has been made of the report of your Lordships' Constitution Committee last week. I am a member of that Committee and I will be putting down an amendment to replace Clause 1(1) of the Bill. The amendment will state that the Lord Chancellor must secure, within the resources made available, that individuals have access to legal services that effectively meet their needs. I hope that the Minister will be able to accept such an amendment, because it echoes precisely the current statutory provision in Section 4(1) of the Access to Justice Act 1999.
The second objection to Part 1 that I want to mention-we have heard about this already-is that it removes from the scope of legal advice and assistance many complex areas of law where the law is a vital safeguard of basic needs for the most vulnerable sections of our community-areas such as clinical negligence. The fact of the matter is this. It is indisputable that the removal of legal aid in these contexts will inevitably result in many hopeless claims being pursued by litigants in person, because they will not have had objective legal advice, as well as many proper claims not being pursued or, almost as bad, being pursued ineffectively by litigants in person. Do-it-yourself litigation-because that is what it is-will be as effective as a do-it-yourself medical operation, and I do not think that the elementary truth of that proposition is undermined by my declaration of interest. I am a practising barrister who occasionally has the privilege to act in legal aid cases.
I recognise the problems of delay and expense in the legal system. They continue to impede access to justice despite the exceptional work done in this area by the noble and learned Lord, Lord Woolf of Barnes, who I am delighted to see will be speaking later in the debate. But it is wholly unrealistic to suggest, as the Minister did in his measured opening to this debate, that mediation or a telephone helpline are practical solutions to the exclusion of legal aid in welfare law,
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The third point I want to mention is that Clause 8(2) will confer power on the Lord Chancellor by subordinate legislation to take further categories of services out of the scope of legal aid. This is inherently objectionable in that inevitably there will not be full parliamentary scrutiny. It is all the more objectionable when the Bill confers no power on the Lord Chancellor to add services back into the scope of legal aid, a point already mentioned by the noble Lord, Lord Thomas of Gresford, if, for example, experience shows a lack of wisdom in the exclusion or if, as we all hope, the economy improves. Again, I will be tabling an amendment on this subject, which was addressed by your Lordships' Constitution Committee.
Fourthly, and finally, the money that the Government hope to save through these measures really needs to be assessed by reference to the financial costs that will have to be met by the state. Judges will need to deal with many more hearings in which litigants in person are going to waste valuable and expensive court resources. The health and housing agencies of the state and other welfare agencies will have the burden of dealing with the consequences of vulnerable children and adults being denied the benefits to which the law entitles them. The Justice Committee in another place and the Law Society have rightly criticised the Government for conducting no study into the costs of the provisions contained in this Bill.
I hope that the Minister will forgive me for saying that I know that he personally did not come into politics to aid and abet the infliction of serious harm to the legal aid system which Sir Hartley Shawcross introduced, and I very much welcome his assurance today that he will be listening as this House carries out its vital work of scrutinising the Bill in Committee and on Report.
Viscount Simon: My Lords, as has already been mentioned by the noble Lord, Lord Hunt of Wirral, in February of this year three senior cost judges made a report about the proposals of the Ministry of Justice for reform of civil litigation and costs in England and Wales. I suspect that the Law Society is not alone in disagreeing with various parts of the report. It is thought that the problems which affect the conditional fee regime will not be resolved by the abolition of the recoverability of success fees by paying parties, as the Ministry of Justice proposes. On the contrary, shifting the burden of success fees away from tortfeasors and on to claimants will not only cause injustice, but cast aside the many commendable steps that have already been taken by interested parties over the past decade to iron out the malign aspects of the conditional fee arrangement regime, which is widely recognised as having been a blight on the English and Welsh legal system.
Under the conditional fee agreements it is often said that claimants have no interest in the costs of their claim. Quite apart from the fact that claimants
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I now turn to medical accidents and the impact on injured patients and their families who are not able to challenge the NHS with the help of legal representation. Practically every clinical negligence claim represents a failure in patient safety, even if the case successfully results in negligence liability and causation is proved and compensation paid. The vast majority of cases are robustly defended by the NHS simply because there is no understanding of serious errors made which have led to avoidable harm to patients. It is often only because the case has been investigated independently that it becomes clear that errors have been made, resulting in some learning taking place to help prevent the same errors being repeated. The reforms under this Bill, particularly taking clinical negligence out of the scope of legal aid, will prevent vast numbers of people ever having their case properly investigated, thereby denying the NHS vital lessons for improving patient safety. This is due to the very high costs encountered by medical experts. If there is no legal aid, solicitors will be able to cherry pick the more clear-cut cases. Because the vast majority of clinical negligence victims are harmed at the hands of a state body-the NHS-there is a strong moral argument that the state should ensure that these people have access to justice.
There are many more areas of concern which I am sure will be raised by other noble Lords but I would like to mention citizens advice bureaux where, under the Legal Help scheme, thousands of people are assisted with their varied problems. According to the Government, this kind of assistance should not be within the scope of legal aid and these people should be able to represent themselves. The proposed changes will prohibit eligibility for assistance and restrict people's access to justice. It will also have a serious financial impact on CABs and other non-profit agencies. We are told frequently that the Government listen. However, Citizens Advice has told me that 93 per cent of those who responded to the consultation did not support the proposed changes and raised serious concerns about them. These responses have not received the scrutiny they deserve and should be looked at in much more detail. The Government may well listen but they do not seem to take into account the concerns of so many people.
Baroness Howe of Idlicote: My Lords, like other noble Lords, I shall be addressing my remarks only to certain parts of this somewhat hybrid Bill, starting with the provisions for legal aid cuts. Obviously all departments-indeed all of us but we are discussing departments-must share the burden of these cuts. The legal aid system may indeed have become bureaucratic and expensive. In 2009-10 it spent more than £120 million. But as one young lawyer's e-mail pointed out, the average salary for a young legal aid lawyer is £25,000, which is comparable to that of a teacher or policeman. So quite clearly other parts of the system need attention as well as what we pay lawyers.
Upstairs in Committee on the Welfare Reform Bill, one of our major concerns is to see that the most vulnerable sections of our community-children, the disabled, those with special educational needs and their carers-are protected as far as possible from the otherwise laudable attempts by government to get those who could be in work back into employment, an aim which would be even more laudable were the jobs available. But with the many changes that the LASPO Bill brings, the need for expert legal advice for vulnerable groups will be of even greater importance if the resulting, long-term costs for this group are not to escalate, as other noble Lords have mentioned. A particular area of concern for SEC, the Special Educational Consortium, is that young people with SEND aged between 16 and 25 who are not in school, or not in provision formally designated as a school, will be outside legal aid. Nor apparently does it cover young people with a learning difficulty assessment, which sets out the support they need beyond school; that is, in a college. As SEC points out, help and advice in that particularly difficult transition to adulthood can be important for SEND families.
Equally worrying, the Equality and Human Rights Commission points out that the new criteria for receiving legal aid for private family law may well mean that fewer victims of domestic abuse will be eligible for support. The basis for these concerns is that almost 50 per cent of family court cases where a report is ordered may have involved domestic violence. Government reassurance that legal aid advice will be available beyond doubt in these circumstances is therefore important. The noble and learned Baroness, Lady Scotland, made that point clearly.
We all know that imprisonment of children is both expensive and ineffective, with 80 per cent of those imprisoned reconvicted within a year. It is therefore good to see, not least because one-third of children currently remanded to youth detention are subsequently given community sentences, that Clauses 91 to 94 of the Bill, dealing with youth detention, place two sets of conditions on the court before a child can be remanded. The Government are rightly commended for this by the Prison Reform Trust, and for giving the court in Clause 73 extra powers conditionally to discharge the young offender or indeed to give a second referral order.
I turn to what follows, or should follow, from sentencing and punishment: rehabilitation. As the Prison Reform Trust points out, young men aged 18 to 20 are disproportionately represented in the prison population
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However, it is surely even more important to focus, much earlier in a child's life, on early intervention. We now have conclusive evidence from Frank Field, Graham Allen and others that this approach is the way forward. The Government are again to be congratulated on taking an important step by committing to early testing of all children at the start of their primary schooling. Funds for further research are still needed to identify those chaotic families with many generations of offending behind them as the real targets for extra help and supervision. If this is achieved it will not only help to ensure useful and satisfying lives for such children, but will be saving a considerable amount of the literally millions of pounds of taxpayers' money spent unnecessarily on prisons.
Last, and certainly not least, I turn to women. As the CAB and Equality and Human Rights Commission point out, indirect discrimination is unlawful unless it can be objectively justified. Yet over the past 15 years numbers of women in prisons have doubled. Many of these have themselves been victims of serious crime, domestic violence and sustained sexual abuse. One-third lose their homes and, worse, around 18,000 children are separated from their mothers. In 2009, women accounted for 43 per cent of the 24,114 incidents of self-harm in prison, although women are only 5 per cent of the total prison population. One essential amendment, backed by PRT, NCW and others-and certainly backed by me-would be to require the Government to produce a strategy to promote the just and appropriate treatment of women in the criminal justice system. When he replies, I would be very grateful if the Minister could give us any hope that the Government will indeed consider producing such a strategy.
Lord Faulks: My Lords, the intention behind Parts 1 and 2 of the Bill is to restore some balance to our civil litigation system. The system should provide access to justice but should not be so distorted that it provides a source of excessive profits to lawyers and a small industry of parasitic organisations which have been spawned by the current arrangements. Whether there is indeed a compensation culture does not matter very much. In fact, successive government investigations have suggested that there is no such thing. What, however, is indisputable is that the litigation process has been disfigured by the whole machinery of referral fees, crude advertising and cases which too often become about legal fees rather than the underlying dispute. The case for reform is clear. But does the Bill go too far?
The noble Lord, Lord Pannick, is quite right: we should see the whole question in historical context. When legal aid was introduced in 1949, it came shortly after the establishment of the national health system and reflected the national mood. However, we should
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It was to restore a sense of balance that the Court and Legal Services Act 1990 brought in some modest changes allowing conditional fees to provide access for what has now become known as the squeezed middle. There was a view that these changes did not go far enough, hence the Access to Justice Act 1999, which unleashed the changes now to be redressed by the Bill. The provisions of that Act allowed for the recoverability of success fees up to 100 per cent and large ATE premiums which were effectively unchallengeable. This has meant that defendants have suffered an unfair disadvantage in litigation. I remind the House, as did the noble and learned Lord, Lord Davidson, that not all defendants are multinationals or emanations of the state.
The Jackson report, about which the noble Lord, Lord Hunt of Wirral, spoke so clearly, was the remarkably detailed and comprehensive response to these problems. It forms the basis of Part 2 of the Bill. I am broadly if rather cautiously in favour of these changes. I am concerned that some meritorious claims by the victims of industrial disease and even of environmental disasters may not now be viable. I will leave other noble Lords to develop arguments in these areas. However, a fundamental point ought to be made about Sir Rupert Jackson's report. It assumed the continuation of legal aid.
I want to concentrate the remainder of my remarks on clinical negligence. I should declare an interest as a practising barrister who has been instructed for defendants and claimants in this area of litigation. Many noble Lords will consider that we should retain the status quo, which allows legal aid at least where children are concerned. I have considerable sympathy for this view. The retention of legal aid for clinical negligence is supported not only by the NHSLA, as has been referred to by the noble Lord, but by Sir Rupert Jackson himself. In a lecture to the Cambridge law faculty in September this year, he said,
Although I would prefer to keep legal aid for seriously injured children as it is, it should at least be retained for the costs of investigation. Let me give a specific example of where injustice will follow if the current Bill is not amended. In cases of brain-injured children there are often considerable difficulties in establishing whether there has been a breach of duty, and sometimes greater complications still in establishing causation. Even the most experienced solicitors in the field will need expert opinions from obstetricians, midwives, neuro-radiologists, paediatric neurologists and/or neonatologists. Under the existing system, the LSC, which carefully monitors expenditure, allows for considerable legal and medical costs involved in forming a view on whether a case can go forward.
Without legal aid I cannot see how a brain-damaged child and his or her family can begin to pursue these cases. The cost of an ATE premium will be beyond the
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For reasons that will be developed in Committee, the so-called exceptional funding provisions, which seem to be directed at Human Rights Act cases, are no answer. In this connection perhaps I may refer the Minister to the case of Powell v United Kingdomin 1990, decided by the European Court of Human Rights, which makes it clear that medical negligence cases will very rarely, if at all, involve violations of the convention. I am afraid that I am also wholly unsatisfied by the Government's proposal in Clause 45 that there will be some modification of the rules to allow the recoverability of ATE premiums in respect of expert reports. Where is there any evidence that such a market can simply be created by the Government in this context?
The only other response is that CFAs should be enough. For the reasons that I have given, I cannot see how anyone in this situation will be able to obtain a CFA, particularly if the profitability is to be so reduced. It is interesting that the existing LSC funding code, which specifically identifies investigative help as being of,
So even if a CFA could be obtained, it is not a very impressive reason for declining legal aid in these cases, particularly when legal aid is granted only where the solicitors are franchised and thus experienced in the field. That is a point of fundamental importance to access to justice. I profoundly hope that the Government will make changes to put the matter right.
I hope that there can be a degree of consensus in the approach to the vitally important process of improving the Bill. That would be much easier to achieve if the party opposite were to acknowledge in the course of debate that it too would have made significant, if not wholly identical, changes to the civil litigation system. Would it really have ignored the Jackson recommendations? Was it really happy with some of the grotesque results of the legislation that it brought in?
This momentous legislation is a necessary corrective to the unsatisfactory system. It reflects the economic times in which we live. There are changes to the Bill which we need, not least in the definition of the Lord Chancellor's duties to which the noble Lord, Lord Pannick, referred-I support his proposed amendment in that regard-and the role of the director of legal aid casework. In scrutinising this legislation it will be vital to ensure that access to justice is not a meaningless mantra. It is a critically important part of what it means to be British.
Baroness Gould of Potternewton: My Lords, there is so much in the Bill to be concerned about. The Bill is discriminatory and will entrench inequality for women, people from minority ethnic groups, disabled people and other groups facing discrimination, all of whom will be disproportionately affected, as I am sure we will discover as we go through it. I wish to follow my noble and learned friend Lady Scotland and deal with domestic violence, and I will go through the consequences of the Bill in some more detail.
First, I congratulate the National Federation of Women's Institutes on the work it has undertaken in talking to vulnerable women, who have made it clear that the Bill will leave them without support or access to protection under civil remedies. As my noble and learned friend says, the Bill demonstrates a complete lack of understanding of the nature and dynamics of domestic violence. It flies in the face of the violence against women and girls strategy produced by the Government only last year. The strategy stated that a,
is required. Perhaps the Minister can explain why the definition in the Bill is not the one used by other government bodies, the one in the national strategy or the one used by the CPS and ACPO, which defines domestic violence as,
Domestic violence takes all these forms, but the definition, quite deliberately, does not take that into account and in no way reflects the Government's stated aim of affording access to justice and legal protection to victims of domestic violence. How much is that commitment honoured when looking at the criteria required for evidence of domestic violence? No one challenges that there have to be criteria and evidence, but they must reflect the reality of life for domestic violence survivors.
The Minister in the Commons stated that the Government had to engage in a difficult balancing act in providing legal aid for genuine victims of domestic violence without encouraging false allegations. I want to look at what he means by balance. Under the Bill, to get legal aid a domestic violence sufferer must have obtained one of four kinds of civil injunctions or a criminal conviction against the perpetrator, a multi-agency risk assessment conference, which is used only for a few exceptionally serious cases, or a non-molestation order. These do not reflect the reality of how women react and respond to domestic violence; 70 per cent of women choose not to go to the police and very few get non-molestation orders.
How is it "balance" when an overwhelming allegation of domestic violence, supported by witness evidence, will not qualify for legal aid under the law? One would assume that a doctor would be a credible witness, or that staff in accident and emergency departments, where the battered victim is regularly seen, would be credible witnesses, but no.
The important word is "might". What if they are certain that the victim's injuries come from domestic violence? She will still not get legal aid under the criteria. The word of a neighbour who may have heard blows and rescued the victim from the violence she was suffering, or even if the police attended and saw her being beaten, is insufficient to meet the criteria. Here is another unbelievable quote from the Minister:
If the woman asks for an injunction, judges often tell a perpetrator that he can save the cost of a hearing by undertaking not to hurt her in future. The court registers that undertaking. It is a contempt of court if the man breaks it, but it will not help her to get legal aid. Should she get admission to a refuge, although the staff will be experienced in assessing complaints it will not get her legal aid. As the Minister said:
For a woman suffering domestic violence, self-reporting might be absolutely essential. A victim may have eye-witnesses, police and medical evidence, records from refuges and perpetrator programmes, undertakings not to assault, and photographs of injuries, but she will not get legal aid.
A further barrier in the criteria for assessing legal aid is the restrictive 12-month timeframe. This is sheer nonsense. The woman may delay reporting for a number of reasons and the problems that require legal aid may continue to affect her more than 12 months after she has experienced violence. There is example after example of women who, post-separation, have spent many years being harassed and stalked by the perpetrator. The 12-month timeframe fails to reflect this. A time limit of any duration, particularly such a restrictive one, will take many individuals out of eligibility.
Then we come to mediation. Although information from the Ministry of Justice shows that currently more than 50,000 couples are referred to mediation services annually, just 13,500 of those couples participate in mediation. It appears that little research has been done to ascertain why that is the case. Mediation is not always less confrontational as the Minister seems to believe. It can place the victim at further risk of violence or abuse. It gives the perpetrator the opportunity to continue to have contact with the victim and can cause revictimisation. Evidence shows that mediation works best when entered into voluntarily, but sometimes that is not the case. One victim identified that she was bullied and manipulated in mediation and found it hard to stand up to her "ex". The Bill also assumes that parties will be able to come to agreement in mediation. This, again, is not always the case. There may be partial resolution. In those circumstances, can the Minister say what happens next? What is the victim expected to do?
Two further proposals will make it hard for victims to take action. Reference has already been made to the telephone gateway-the first port of call-and talking to someone who may have no legal qualifications but is expected to make a legal assessment. Disclosure is difficult enough, so at least you would expect to speak to somebody who understands what you are talking about. This proposal is certainly not appropriate for people who have language difficulties or mental health problems or are in distress.
In addition to my concerns about the process I have a number of questions. Will there be a free phone number? Will the conversations be recorded, kept securely and quality-controlled in case of further litigation arising? How will the number be publicised? It has been suggested that the victim might represent herself in court. Domestic abuse involves abuse of power. Many victims, whether subjected to physical power or other forms of abuse, do not have the capacity, skills or expertise to face and question the perpetrator in court. Not only would it be a traumatic experience, it could also put a victim in further danger.
This Bill will mean that too many women will have no alternative but to stay in an abusive relationship, with serious consequences not only for themselves but for their children. I thought that those days were past and that we were moving away from women living in fear and children living in violent households. This Bill will bring that back.
It is said that the Prime Minister is to appoint someone to look at the effects of policy on women. I suggest that she examines this Bill and its consequences on women's lives; maybe then will women who are victims be listened to.
Lord Goodhart: My Lords, in the last year of his life, Lord Bingham-the greatest judge, I believe, of my adult life-wrote and published a short but remarkable book called The Rule of Law. In Chapter 8, he wrote:
"The pressure for reform culminated in the Legal Aid and Advice Act 1949 ... For half a century the legal aid scheme enabled those without means to sue and defend themselves in the courts ... But its cost was its undoing. In the years 1988 to 1996/7 expenditure on civil (and also criminal) legal aid rose at a rate substantially in excess of inflation, and was the fastest rising item of government expenditure overall".
Lord Bingham was, I am afraid, undoubtedly correct, and some reduction of costs here is necessary. On that basis, I start by saying that I agree very strongly with the general principles of my noble friends Lord Hunt of Wirral and Lord Faulks. Of course, we need to keep a no-win no-fee system. The amount involved in this should not be as large as it has been. We cannot justify paying the cost of fees for clients who have no serious chance of winning an action.
Part 1 of the Bill contains changes to the existing law that need to be enacted, but there also are other changes that I do not think should be enacted, particularly those relating to clinical negligence and family violence-although those are not the only ones-where legal rights are plainly necessary and should continue. We should regard a number of provisions introduced in the Bill as, at best, temporary provisions which could be removed when public resources increase. I feel that that is the basis on which we must go ahead. Importantly,
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Part 3 of the Bill deals with very different issues which I believe should have been dealt with in a separate Bill. However, it is too late for that now. I am most concerned with Chapter 5. I welcome the abolition in Clause 113 of indeterminate or IPP sentences. IPP was a failure from the beginning. It relied on the ability to train prisoners while in prison, and there has been no such ability. There have been many-often justified-complaints, of which I have received a number, about the difficulty of ensuring that prisoners have access to the probation services which are essential for release. It would have been impossible to release many of these prisoners because of the difficulties of administration. IPP should not be allowed to continue for those who are already subject to it and it should be replaced by a fixed time limit. It is absolutely wrong that those subjected to this wholly undesirable sentence of uncertainty should not have a proper degree of certainty about when their time will end.
I am also concerned with Clause 114, which imposes a life sentence for a second listed offence. That is a mandatory sentence and it must be imposed unless the court is satisfied that there are special circumstances. That is perhaps a little better than the Californian custom of two strikes and you're out, but it is not that much better. The judge will have seen the prisoner under questioning in court and he will have heard the evidence of the witnesses, so I believe that the judge and no one else should decide whether the prisoner should receive a life sentence. That will happen under Clause 115, which empowers the judge to decide whether to impose an extended sentence. Why should that not also apply to the question of life sentences under Clause 114? After all, it is open to the Attorney-General to appeal to the Court of Appeal if the judge has acted wrongly.
Lord Woolf: My Lords, it has been a privilege to be able to hear this debate so far. If my arithmetic is correct, I have heard 14 speeches, and I am in the happy position of saying that there is nothing which has been said so far with which I disagree. I include in that the speech for the Government introducing this Bill, by the noble Lord, Lord McNally, in case it is thought that there was an implied exception.
I have two reasons for saying that this Bill has special relevance to me, with regard to the two inquiries which I carried out when I was a serving judge. The first inquiry related to access to justice, a subject about which we have heard quite a considerable amount so far. The second was the inquiry into riots in our prison system caused by overcrowding, a problem which, alas, is still with us today.
The inquiry into access to justice was over a decade ago, and it is not surprising that it should need looking at again after this period. I for one was very pleased when the Master of the Rolls invited Lord Justice Jackson to make his report. I do not think anyone can doubt that this difficult task was undertaken by Lord Justice Jackson, as the noble Lord, Lord Hunt, has indicated, in an exemplary manner. He had a huge amount of material to marshal, and he did so and made recommendations of which, I suggest, on the whole this House could make favourable use.
The inquiry was needed not only because more than a decade had elapsed since my attempts to improve the situation, but also because it was clear that reforms which were made, for which I bear no responsibility, were causing the system to become unbalanced. The conditional fee-for which the noble and learned Lord, Lord Mackay, is rightly to be congratulated-initially helped to obtain access to justice for those who were not able to use the court because they were neither poor enough to qualify for legal aid, nor wealthy enough to dine at the Ritz. That section of the community, which was a large section, at the time of my report was not receiving access as was necessary. However, while those changes initially worked well, the noble and learned Lord, Lord Irvine, thought, rightly or wrongly, that further changes were needed if the conditional fee arrangements were to work as hoped. The problem was that there were doubts as to whether they gave lawyers enough assistance to take on the really difficult cases because of the need for payment of an uplift fee, which it was hoped could be smaller than ultimately proved to be the case.
In addition, it was found that insurance was necessary. This is because the costs for a claimant if he was unsuccessful could be very substantial, and so we had the after-the-event insurance. This, from one point of view, was beneficial; but it had the effect that a claimant who had paid the after-the-event insurance premium was left substantially out of pocket. Therefore, it was ordered, first, that the uplift to which I referred should be paid by an unsuccessful defendant; and secondly, that the premium to which I referred should also be paid by an unsuccessful defendant. The practical consequence was that a defendant who was unsuccessful could end up paying four sets of costs: first, the costs he incurred himself; secondly, the costs of the claimant who won; thirdly, the uplift, which could be up to 100 per cent; and, fourthly, the insurance premium. I say to the House with absolute confidence that there were many defendants who regarded the total burden as wholly inappropriate, to the extent that they had no option other than not to contest cases that they otherwise would have.
Since I ceased to be Chief Justice, I have earned a living-here I declare an interest-by conducting mediations on occasion. I have found that some defendants reach settlements in the course of mediation that they would not otherwise have done because of the deterrent effects of the combination of four sets of costs. While one was very anxious that justice should be done for claimants, it must also be done for defendants in the same position. This is something that requires attention. In due course we will have to consider whether the
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I emphasise what was drawn to our attention by my noble friend Lord Faulks: namely, the fact that Lord Justice Jackson was not directly involved with the question of legal aid. He was not asked to report on it. I suggest that if the system is to be amended in the way proposed by the Bill, it is regrettable that he did not have an opportunity to look at the matter objectively and independently in the way that was needed. I fear that his report could be a victim, as I consider I was because I was only shown part of the picture of where change will take place.
Again, I encourage the House to accept that view. Lord Justice Jackson went on to state that if the position were to remain as is now proposed, an additional exception should be made to the cuts in legal aid. He said:
"On the assumption that it is decided not to maintain civil legal aid at present levels, the question may possibly arise as to whether any particular area of civil legal aid is particularly important and should be salvaged from the present cuts. My answer to that question is that of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate".
I hope that the House will pay attention to that remark. I see the time that I have already taken and I apologise for speaking for two or three minutes more. I would like to say something else with regard to Part 3.
I am the chairman of the Prison Reform Trust and I am grateful to my noble friend Lady Howe for her comments, which are based on research done by that trust, and which deserve considerable attention. There are matters on which the Government are to be congratulated. They have been mentioned by other Members of the House and there is no need for me to go over the same ground.
However, I submit that when we now know the problem with IPPs, it is extraordinary that the House should be asked to accept a more modified form of IPP. The one thing we want to avoid is people being in custody longer than they should be. Although the Bill repeals IPPs, it is, understandably, not retrospective. We have a deplorable situation in our prisons today, where thousands of prisoners who might be able to be safely returned to the community cannot be, because unfortunately the Parole Board is not in a position to deal with their cases due to the resources available to it. That will continue for some time. Surely it would be possible to change the procedures for those prisoners to obtain release? There is nothing in the Bill about that.
With that indulgence from the House, I conclude my remarks. I hope that there will be many amendments
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Lord Clinton-Davis: It is a great privilege for a mere solicitor to follow the noble and learned Lord, Lord Woolf. Contrary to the view of the noble Lord, Lord McNally, I think that this Bill is profoundly flawed. In my view, many of the clauses are not capable of amendment. Many people, in both civil and criminal fields, will be adversely affected by these proposals.
I had some 25 years' experience of legal aid litigation. In its earlier days, the scheme was seen to be an essential part of the system of social justice introduced by the post-war Labour Government. The House will be grateful to the noble Lord, Lord Pannick, for his views about that.
The advantage enjoyed by the legislation introduced by the Labour Government of that day was that it brought legal protection and legal rights within the reach of ordinary working people and also middle-class people, who would pay a contribution towards the Legal Aid Fund. This was enjoyed for the very first time; previously they had been outside the scope of any remedy whatever. Much of what was introduced by the Labour Government was opposed by the Conservative Party then and, apparently, now. Of course, a small minority of lawyers milked the system, but few made hefty profits. Nowadays, with ever-declining numbers of solicitors operating legal aid, younger members of the profession are disinclined to be part of the whole system. Who can blame them? Is this not bound to have a deleterious effect on the question of obtaining legal aid?
In my day, even the most complicated criminal cases rarely lasted more than three months. Today that situation is very different. Of course, the law has become more complex. Perhaps I can make a tentative suggestion-namely, that the system of applying for more funds should be readjusted. But it should be recognised that in normal circumstances approval should not be given, save where the claimant can establish beyond a peradventure of doubt that it is in the interests of justice that the application should succeed. However, there should be a term limited by the award.
The real trouble with this Bill is that there will be no savings: indeed, the very reverse. Unrepresented persons will appear before courts and tribunals and many, through no fault of their own, will make false and incoherent points. Time will be wasted. Inevitably, judges and chairmen will provide greater slack than ever, and accordingly costs will burgeon. Many organisations-charities, the judiciary, the Bar, the Law Society, many victims' groups, Justice, the Magistrates' Association, CABs, the Sentencing Guidelines Council and now the bishops, by a large majority-have signposted their anxieties about the Government's proposals. They have all been spurned.
My own umbrella organisation, the Law Society, has raised a number of vital points. So far, the claims which they have made have been unanswered. They say that the cuts to civil legal aid are a violation of the European Court of Human Rights and the Charter. Are they right about that?
Finally, they say that there is a serious risk that the courts will declare that compatibility under Section 4 of the Human Rights Act 1998 will be seriously impaired. The £350 million postulated by the Government by way of savings has been challenged by others, including the noble and learned Baroness, Lady Hale, of the Supreme Court. She has argued that this will be exceeded, and there can be little doubt that the poor and the most vulnerable will be the principal victims.
The Government reply in a superior and uncomprehending way. For example, they recommend more telephone advice and excellent advice to ensure that the legal system is hardly ever used. Most people needing such advice are without telephones and, if they do manage to get through, are incapable of communicating their often-complicated problems. Are the Government wholly out of touch with reality as far as this is concerned?
In conclusion, it is noteworthy that one of the principal supporters of this legislation has been the Association of British Insurers. It perceives that it is in its interest to see the decline of legal aid and ordinary people's access to justice. My hope is that these disgraceful endeavours will be frustrated. The House of Lords now has the chance to demonstrate that it prefers to protect the interests of ordinary people rather than the powerful, such as Enron and Lehman Brothers. This legislation is fatally flawed.
Baroness Whitaker: My Lords, we all believe in upholding the rule of law, but when it comes to making a reality of what the law provides, there are problems. Our law is not easy for everyone to understand. The vast accumulation of case law from Magna Carta on, let alone the wording of the statutes, whose occult succinctness is so cherished by parliamentary draftsmen, makes it almost impossible for the average person to grasp what they can and cannot do, or have done to them, without expert help, and there is no alternative.
The law is not always coterminous with justice, but it is our best shot, and if we want access to justice we have to have a means of getting the point of laws. Professional lawyers are that means, and when the aggrieved person is poor, legal aid is the path. I think it was a judge who said that a person who represents himself has a fool for a client. I do not know about that, but I have sat on tribunals where the people who brought the case did not understand the rules of evidence, did not know the difference between facts and opinions, could not present their case in the terms of the law at all, and yet had a
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