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As I said in my opening remarks, when addressing an issue such as this one, and within the constraints under which the Government are operating, lines have to be drawn. It is legitimate for the Opposition to argue that that line has been drawn in the wrong place or that a time limit has been put in the wrong place. In the end, however, Governments have to make decisions-and we have made decisions. As I said, I hope that the House will look at the decisions we have made and see that we have listened and acted in a way that puts us on the side of victims and their children and that, in practice, those who face the problem of domestic violence and who want to obtain legal aid for decisions in private family law cases will find that the concessions we have made and the rules and the guidelines we have laid down will give the women and children-I accept that there may be others, but mainly women and children-who are affected by this scourge access to legal aid. I therefore ask the House to support Motion B.
Baroness Scotland of Asthal: I am disappointed that the Minister takes that view. As he will know from our previous debates, our assessment is that as a result of the changes that the Government are proposing, 54.4 per cent of victims currently obtaining legal aid and assistance for family proceedings will not be able to obtain such help and assistance in future. Although I absolutely accept that the Government intend, or wish, to be supportive, these provisions demonstrate the reverse-that they will not be supportive. I therefore wish to test the opinion of the House.
Lord McNally: The noble Lord's amendments concern the independence of the director of legal aid casework. I am confident that we all share the sentiment that the Lord Chancellor should have no involvement in a decision about legal aid funding in an individual case. However, I share the view of the House of Commons that this amendment has undesirable and unforeseen consequences and that it is possible to provide the assurance and protection required without adopting the amendment.
The primary concern with these amendments is that they would have the effect of preventing the director being appointed as a civil servant. It is our strong view that the director will enjoy full independence from the Lord Chancellor yet can be appointed as a civil servant. For the avoidance of doubt, we are abolishing the Legal Services Commission and creating a new executive agency to provide Ministers with greater policy control and improved accountability for legal aid. Giving full independence to the director would run entirely contrary to this intention.
Clause 4 already provides protection in subsection (4) with a statutory bar on the Lord Chancellor's involvement in making funding decisions in individual cases. The Bill also imposes a duty on the Lord Chancellor to publish any guidance and directions issued to the director, thereby providing transparency. Noble Lords will recall from Report stage that we amended the Bill to offer greater transparency by requiring the director to produce an annual report for the preceding financial year on the exercise of their functions during that period. This report will be laid before Parliament and published.
As I alluded to at the outset, we share the noble Lord's view with regard to the protection being sought, which is why the Government's amendment in lieu was offered in the House of Commons. This amendment places a specific duty on the Lord Chancellor to ensure that the director acts independently of the Lord Chancellor when applying directions and guidance given under Clause 4(3) in relation to an individual case. I hope the House shares my view that this new provision provides the assurances sought, incorporating as it does the concept of independence in the Bill while
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Lord Pannick: My Lords, together with the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Hart of Chilton and Lord Faulks, I tabled the amendment on the independence of the director that was approved in this House. I thank the Minister and the Government for listening on this important subject and for including in the Bill, as the Minister explained, a reference to the independence of the director, which will give great comfort to all those who will be involved in the administration of this legislation.
Although these are matters of constitutional principle, they can be addressed by compromise, I am happy to say. I very much hope that the Government will be able to adopt a similarly conciliatory approach to the amendments that your Lordships' House approved earlier this afternoon. I thank the Minister.
Lord Beecham: My Lords, tempting though it is to regard the notion of an entirely independent civil servant as somewhat oxymoronic, I echo the remarks of the noble Lord, Lord Pannick, and welcome the fact that the Government have moved sufficiently to meet the considerations that were advanced on Report. We are glad to be able to conclude these matters, and look forward very much to seeing precisely how the system works in practice.
Baroness Northover: My Lords, noble Lords gave great attention to this issue in earlier stages. I hope that the discussions that have resulted, both within and outside the Chamber, have helped to reassure them.
I begin by saying that the Government have always agreed that telephone legal aid advice will not be suitable for everyone. That is why there will be exceptions to having to use the gateway to apply for legal aid-for example, for emergency cases. Those who are eligible for legal aid will be assessed on a case-by-case basis to identify whether they are suitable for telephone advice.
A key consideration in assessing suitability for receiving advice over the telephone will be whether a caller is able to give instructions and act on advice over the telephone. Trained and skilled assessors will assess this suitability, and a range of reasonable adjustments and service adaptations will also be available to assist callers in their contact with the gateway.
The gateway, based on the existing highly successful Community Legal Advice helpline, will be a two-stage process-not just, as some have called it, a "call centre" service. It may help noble Lords if I briefly set out how the process will work in practice.
Stage one: when applying for legal aid in one of the areas of law subject to the gateway, trained and skilled telephone operator service staff will engage with the caller to identify their problem and eligibility for legal aid, giving the caller the time needed to explain their problem. Organisations such as the Samaritans have contributed to training for current operator service staff. These staff will not provide legal advice, but will route clients to sources of help. If the problem is in an area of law subject to the gateway, the client will be transferred to a legally trained specialist for telephone advice.
In the second stage, as now, under the current Community Legal Advice Helpline contract, where an eligible caller is transferred to a specialist, legally trained telephone adviser, that adviser will speak to the caller to assess their needs, including their suitability for telephone advice. Where it is clear, having regard in particular to whether a caller is able to give instructions and act on advice over the telephone, that face-to-face advice is needed, the client will be referred to a face-to-face provider. I ask noble Lords to note that both the telephone operators and specialist telephone providers will have ongoing training, including awareness of different vulnerable callers, such as those with mental health issues and learning difficulties.
The Government have engaged and will continue to engage with stakeholders, including equality groups, to identify any additional reasonable adjustments for callers with specific needs. For those with little or no spoken English, a free three-way translation service in 170 languages can assist engagement with the gateway. Few face-to-face providers could offer this extensive range of languages. A third party, including a family member or advocate, can contact the gateway to speak for a person or help them explain their problem. To minimise costs, all potential callers can contact the gateway by mobile phone text or the internet to ask for a call back, and all callers can ask for a call back, too.
The use of new technologies such as Skype and webcam-wider than for just the British Sign Language service-are being investigated to enhance the service further. There will also be a service enabling an individual to contact the gateway by secure e-mail. The Government will raise awareness of the gateway to users, including the services and support it offers and we will also be monitoring its operation from day one of implementation and engaging with those using it to ensure that needs are indeed met. As we have also stressed, there will be a review of its implementation and operation, and the report of that review will be published. This will happen within two years of the implementation of the gateway and before any decision about any possible extension of the gateway to other areas of law is taken.
The Government are confident that a mandatory gateway can facilitate efficient and prompt access to legal advice, including advice for those vulnerable people in need of it. The effect of Amendment 24 and,
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Amendment 24B would require every eligible client to receive face-to-face advice, regardless of their particular circumstances or personal preference. This would result in a very inflexible system that would invariably introduce a delay in clients receiving advice as not only would they have to locate a suitable provider, they would also need to contact them to make an appointment to see them. No longer, for example, would a client be able to make contact with and discuss their problem at a time and place convenient to them.
Noble Lords have already acknowledged the effectiveness of telephone advice itself. On 20 December, the noble Lord, Lord Bach, described the Community Legal Advice helpline as excellent and he was sure that noble Lords would be glad to see its work continue and expand. However, such a requirement would invariably mean the end of any telephone advice as it would be highly unlikely that any individual who has explained their problem to a face-to-face advice provider would then choose to switch to a different telephone advice provider at a later stage.
Not only would this amendment have the potential to eliminate all the savings from the gateway, it could add about £4 million to the legal aid bill for criminal cases and additional cost to civil legal aid for additional face-to-face advice-advice which is currently successfully provided by telephone. The specific duties contained in Amendment 24B are also unnecessary. I can assure the noble Baroness that the Government have complied with the public sector equality duty under Section 149 of the Equality Act 2010 and we have published an equality impact assessment-at the time of the consultation on the legal aid reforms and at the time of the Government's response-which includes consideration of the mandatory gateway policy. The public sector equality duty is a continuing one and we will continue to comply with it.
As noble Lords know, under the public sector equality duty it is necessary to have due regard to the need to eliminate discrimination, harassment, victimisation and other conduct that is prohibited by or under the Equality Act 2010, advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. The relevant protected characteristics for these purposes are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These types of discrimination are all defined in the Equality Act 2010 and we are complying, of course, with that. For these reasons, I beg to move.
Baroness Grey-Thompson: My Lords, I thank the Minister and his team for meeting with me earlier today and also for the letter I received this morning which laid out, with much greater clarity, issues previously discussed. I believe the telephone gateway will be positive for many people, and perhaps would go so far as to say that, for some, it could be better. I welcome the details of the exclusions that have been given: where there is an emergency; where the client has previously been assessed by the mandatory gateway as requiring advice face to face; where the client has accessed face-to-face advice within the past 12 months and is seeking further help to resolve linked problems from the same face-to-face provider; where the client is in detention; and where the client is a child, defined as being under 18. Some of the reassurances that have been given are positive, but these are really around those with much less complex cases.
In previous debates I have spoken much about the cost to the system and to individuals. and I initially welcomed the call-back system that has been proposed. However, on reflection, I cannot imagine an individual with a complex need or a vulnerable adult requesting this call back on the promise of a return call-there is just too much at stake.
I still have some areas of concern. The first is the continuing use of the word "mandatory". I know that this is an operational matter; not only does it sound inflexible, it is. There are still many unanswered questions around the number of staff who will be employed, both in the first line and specialist operators, and also the cost. It is to be welcomed that they will be trained in listening, but the areas of law they will need to understand will be extensive and complicated.
The Minister has provided more information on this, and while those who work in the call centre will not be under any time constraint to get through the call, there will be a significant amount of pressure on them not only to guide the client in the right way, but to ensure that the client has understood what they are being told. How will this be measured? Will it be on customer satisfaction, or will the number of cases that progress or do not progress be used in some way?
The Minister in his letter-and I believe this is telling-twice mentions the fact that the key test will be whether the individual is able to give instructions and act on the advice given over the telephone. I am extremely concerned that vulnerable people, with complex problems, will drop out of the system, even if they make it to the first phone call. Just finding the telephone gateway may be a challenge for some. The same can be said of the online form on the DirectGov website. They may not be able to do it themselves, nor find appropriate third-party support to offer help.
I know that the Government are committed to reviewing these operations, and to make adjustments if they are not working correctly, but we could be 24 or 36 months into a new system before the figures are gathered and we understand who has been able to access the right support. It is all well and good that a client who makes it through the first call may be directly transferred to a specialist adviser, I take this to mean within the initial phone call-but I am still unclear about the route through for someone who will be advised to go to a face-to-face meeting. The current system relies on the individual being given three local centres and then making the necessary arrangements, but surely the proposed system should be better than the current one. How will this take-up rate be monitored to ensure that clients have taken the steps they are entitled to, and what are the costs attached to them?
My last amendment was rejected under financial arrangements, because there is a cost to it, but what is the cost of setting up this mandatory telephone gateway and, if vulnerable people are not able to access legal aid, what are the potential costs that could be shifted to other areas such as local authorities or the NHS? I believe a little more flexibility is required to ensure that the most vulnerable are able to access the support they are entitled to. I beg to move.
Lord Phillips of Sudbury: My Lords, I listened carefully to what the Minister said and I am afraid that I am not satisfied that the arrangements she explained are anything like adequate to deal with the more difficult cases that will be presented to those on the telephone lines. Indeed, the problem is that they will not be presented at all. As one who spent a large part of his early days in the law trying to help ordinary people with their so-called ordinary problems, I know that there is much greater difficulty in getting instructions from inarticulate, anxious or unconfident people than well intentioned, middle-class people can believe.
It is simply unrealistic to say that when vulnerable people come on the phone there will be sympathetic people to direct them here, there or somewhere else because they will never get on the phone. The reason is
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I do not mind how many reviews we have about this, this system will not work for those people. I know it. I worked with the Samaritans for years, and every Samaritan knows that for every one person who comes on the telephone there are many more who never even get that far.
I am afraid to say that I shall be in opposition to the Government's response to Amendment 24, the beauty of which was that it was the Lord Chancellor's duty to deal with people's needs by a range of forms. Such a system would be much more flexible. Indeed, the Minister, quite rightly, said that the need for every person to have face-to-face advice, as is required by subsection (a) of the proposed new clause in Amendment 24B, is too inflexible. However, by the same token, her argument that every case will be dealt with by telephone is too monopolistic and will not work for a very important slice of the population.
I ask all noble Lords to think of someone they know who does not have the confidence to speak up, the analytical ability to know quite what their problem is and certainly not the confidence to use this facility, well intentioned though it is. I hope the Minister will reflect on what I have said and, if she doubts me, talk to others who know more than I. Perhaps she will say in summing up what is now the position with the CABs and law centres. At least they have the facility for people to go in and meet other members of the public who work voluntarily for the CAB and have time. It can often take half an hour to find out what the problem is. Is the funding of CABs and law centres now assured so that they can do that?
Lord Clinton-Davis: My Lords, I agree with what the noble Lord has said. I can remember that many years ago, when I undertook my surgery in my constituency, people came there who were all too often inadequate, vulnerable and inarticulate. I do not know how they could have possibly represented their case on the telephone; they were afraid of the telephone. All I wish to say in my brief remarks is that I have first-hand knowledge of what the noble Lord has said and that what is now being proposed will affect such people. The majority of people who sought aid and assistance that they would otherwise not have received were incapable of representing their perfectly justified remarks.
Lord Wigley: My Lords, Amendment 24B improves on the original amendment rejected by another place in that it specifies the criteria that should be taken into account when determining the client's needs.
The proposed telephone gateway would simply not be a suitable means for many people to access legal advice. Among the groups which the amendment seeks to protect are those whose disabilities and frailties would prevent them from being able to convey their case across the telephone; those whose first language is not English; and those whose cases are so sensitive that they would be hindered in discussing the details over the phone. That could include clients who have experienced abuse, rape and those with HIV/AIDS conditions.
The Government's proposals have no regard to the individual circumstances of individual cases. People's dignity should not be compromised in order to make what are likely to amount to modest savings. Cases should not be unnecessarily prolonged by operators with little or no legal training. The Government should surely listen to the many voices that oppose these proposals and reform this risky scheme.
Lord Low of Dalston: My Lords, I, too, have grave doubts as to whether a telephone helpline of the kind we are talking about can be regarded as fit for purpose if the purpose is to disentangle the client's case with empathy and give appropriate advice on it. The matter is made worse if use of the telephone gateway is to be made mandatory. There may be a place for a telephone gateway-it can have a role in filtering cases, as the Minister said-but it is surely entirely inappropriate that it is made the sole route to discriminating and informed advice.
This is not a matter of speculation for we have been here before and we know what we are talking about. I am talking about the experience that we had with the student loans company when it took over the administration of the disabled students' allowance. This was administered by a service staffed by the kind of people who will, presumably, be staffing the telephone gateway. They proved to have little understanding of or empathy with the kind of problems disabled students have and for which they were seeking the support provided by the disabled students' allowance. In fact they were inclined to make light of them and even suggest that the students were somehow swinging the lead or making unmeritorious excuses for financial support from the state.
Those applying for disabled students' allowance have much in common with the kind of vulnerable people we are talking about needing help with welfare benefits cases. I would not wish to place my confidence in a service of this kind as the mandatory gateway to legal advice and I do not think the House should either.
Lord Bach: My Lords, it is rather disappointing to have to speak on this subject again. One hoped that the other place might take note of our amendment and carry it through. However, the noble Baroness, Lady Grey-Thompson, has in her usual clear and well expressed way explained that our concern is not with telephone services per se. That is not the point at all. All of us here know the value of telephone services. I saw it at first hand as a Minister and I am delighted
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However, the point is that in a limited range of cases, whether classified by the type of person, such as those with communication problems, or by the type of case, such as very complex cases or cases that require searching through reams of papers to identify the nature of the real issue-a point that was made very powerfully by the noble Lord, Lord Phillips of Sudbury-it is counterproductive to expect someone to go through a telephone gateway. In those cases there should be a provision for face-to-face advice from the outset. That is hardly an unreasonable request. Indeed, it is common sense.
I am not the first and I will not be the last to remind the House that today is St George's day. Perhaps in rather a laboured way, I make the point that there is an English tradition of pragmatism, flexibility, seeing what actually works in the real world rather than what I fear is behind the Government's stance: too much inflexibility, a kind of didacticism and, as I have described before using a French expression, a rather dirigiste approach towards this issue. It is an issue that cries out for flexibility and trying various ways to make sure that people who need this help can get it. The noble Baroness made her case very powerfully indeed and other speakers have supported her. I very much hope that we can ask the other House to think again on this.
"I was grateful for the Minister's reassurance, but I have to say that I am not persuaded. Like any MP with a constituency containing people from many different races and backgrounds, with many different first languages, and with all the disabilities that any mixed community has, I simply do not believe that a telephone route into deciding eligibility for legal aid is right for everybody. It may be right for many people, and I understand that it will be a good service, but if we ask constituents such as mine whether they have always been satisfied with the council response line-whether under Labour now, or with us running it, as previously-the answer is always no. That does not change, irrespective of who is running the show. I understand the Government's position and I hear what they say about a review, although I add a request for the review to be regional as well as general, but I believe that the Lords who pressed for amendment 24 have a well-made case. I shall support the Lords in respect of amendment 24".-[Official Report, Commons, 17/4/12; cols. 206-07.]
Baroness Northover: My Lords, I thank noble Lords for their attention to this very important area and I especially thank the noble Baroness, Lady Grey-Thompson, for her kind words to my noble friend about his engagement with her concerns. I have a note that I need to correct the figure given for the costs of the noble Baroness's amendment. The costs are likely
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In reaction to what the noble Baroness, Lady Grey-Thompson, said, I point out that stage 1 is where people come in and it is decided whether they need to go through the telephone system. Stage 2 is the detailed case assessment of suitability.
To my noble friend Lord Phillips I point out that the kind of cases to which he points may well be those that are then directed towards face-to-face advice. It is extremely important to bear in mind the flexibility that is built into this system and to contrast that with the lack of flexibility of insisting that the advice is face to face. This system means that when people are taken into the telephone system their cases can be assessed to see whether they are suitable for phone advice or face-to-face advice.
Lord Phillips of Sudbury: I did not explain myself adequately. I was trying to get across the point that people will not get as far as a telephone. That is the problem. Once they are there, I absolutely think that what my noble friend has explained to the House is fine. However, I am talking about the people who, for the reasons I tried to explain, will not have the confidence or the competence to say what their problem is over the phone because it is often so damn difficult to do so.
Baroness Northover: I understand what my noble friend means about getting to that point. I ask him to ask himself how they would get to face-to-face advice. There they are with a major problem. They may very well end up in a CAB, in which case the CAB may assist them in phoning the telephone gateway and may indicate in its call that this is a suitable candidate for face-to-face advice. My noble friend needs to go back a bit and ask how the person who is in such circumstances will access any advice and then see how this may route them through to the kind of suitable, appropriate and flexible advice that I hope I have laid out.
Lord Clinton-Davis: However, where someone is incapable of expressing themselves-I remember having to listen to such a person for more than an hour-would they not be excluded from what is being proposed?
Baroness Northover: Let us assume that that person has come to you as a constituency Member of Parliament-I think that is the kind of case the noble Lord is talking about. Again, the Member of Parliament could phone the helpline and say that, for the reasons given by the noble Lord, in this case the person is likely to need face-to-face advice. If someone else, such as a family member, were to phone up, it would become apparent that the person in question could not do this. For those reasons it becomes apparent that this person is going to need face-to-face advice.
As I said in my introductory remarks, there are clearly cases where, for all sorts of reasons-and noble Lords have experience of these kinds of cases-that person will not be best helped by the telephone. In other cases that might be exactly what a person prefers: the distance of telephone rather than face-to-face
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The other point to bear in mind is the provision of language translation. Some 170 languages can be provided on the phone line, and very few CABs or constituency advice surgeries have that kind of provision; so there are certain advantages to that provision that might be of help to other cases. The important thing to remember in all this is the equality duty-the diversity of people and their situations and our obligation to address those needs. Those needs will need to be met in different ways, and that is built into how the system operates. The very fact that the Samaritans have been involved in training the operators is an indication of how seriously we consider the responsibility towards people with those diverse needs. Of course, the Samaritans operate a phone system for their own advice line.
My noble friend Lord Phillips asked about the Budget, which announced £40 million and £20 million in each of the remaining years of the spending review. I think he sought assurance of provision for the CABs.
I have emphasised how operator service staff and specialist telephone advisers will be trained to be aware of the needs of callers, especially those with mental health and learning impairment problems. There will be reasonable adjustments and adaptations available to assist callers, including provision for a third party such as a family member to call on an individual's behalf. As long as a person authorises someone to call on their behalf, the third party could equally be a member of a CAB or other support or advice service. If the caller is assessed as unsuitable for telephone advice, they will still have access to face-to-face assistance and be referred directly to that provider. That is an improvement over the current situation, in which they might be given three phone numbers of advisers whom they then have to contact. Again, they have to use the telephone to set up these appointments, whereas with this they could be referred directly to that provider and will not have to find the face-to-face provider themselves from those phone numbers, and those providers will have to make contact back to the person.
Noble Lords might bear in mind how flexible the system is within the new arrangements. In December, the noble Lord, Lord Bach, referred to the satisfaction rates with both the existing community legal advice helpline operator service and the specialist telephone advice service; 96 per cent of respondents found the operator service helpful, and the 2010 survey of clients advised by telephone showed that 90 per cent of respondents found the advice provided helpful. That is a very encouraging response.
As I emphasised, and as we will continue to emphasise, we will keep this under review so that we can make sure that it is working as effectively as possible. As my noble friend Lord McNally assured the House, I assure noble Lords that the telephone gateway will apply initially to only a limited number of
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Baroness Northover: My noble friend assures me that we will review how this is working and publish the findings. I am sure that noble Lords will scrutinise that with the greatest of care. I reiterate that the operation of the system will be monitored from the very beginning. Therefore, noble Lords do not need simply to wait for the review at the end of two years to make sure that this is working in the way that we trust will assist people, as opposed to raising the concerns that noble Lords have expressed. I hope that the noble Baroness will be able to withdraw her amendment.
Baroness Grey-Thompson: I thank noble Lords who have taken part in this afternoon's debate, in particular the noble Lord, Lord Phillips of Sudbury. Not for the first time, I wish that I had trained in the law rather than doing a politics degree. I accept that my wording could be slightly better but, as the noble Lord, Lord Wigley, said, it has been improved since the last time I moved the amendment.
It seems that we are stuck in two slightly inflexible viewpoints. I wholeheartedly agree with the noble Lord, Lord Low, when he says that there is a place for a gateway. However, I also believe that there is a place for something else to help the most vulnerable. One idiosyncrasy of this system is that an individual could go into a citizens advice bureau and ask for help but be told to ring a phone number and be sent away. In an ideal situation, that person would be able to stay in the citizens advice bureau and make the call from there, and could even have that third-party support. If they are sent away, they may take that to mean that they are not eligible or that they do not understand some of the issues.
I thank the noble Baroness, Lady Northover, for her comments. It is probably not the right time to debate this, but now that we have a system that can be accessed on the internet through www.directgov.com or by Skype and through phone calls-there is information coming back and forth-I wonder whether there are not almost too many options for people. Perhaps a gateway and the potential for a face-to-face interview might be the simplest way to do it.
I go back to the point made by the noble Lord, Lord Phillips of Sudbury. I am sure that everyone in your Lordships' House knows one, two, or maybe more people who would struggle to make that first contact and might drop out of the system, finding it
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31A Because it is not appropriate to make an exception from clauses 43, 45 and 46 for proceedings which include a claim for damages for respiratory disease or illness arising from industrial exposure to harmful substances.
Lord McNally: My Lords, when we were opening this debate the noble Lord, Lord Alton, intervened to make the very valid point that it was only by him raising the issue of mesothelioma in debate in this House that this important issue has received the attention that it deserved. I pay tribute to him, having known him for a long time as an adept campaigner. Whatever happens, he can take great credit for the way that he has focused attention on this terrible disease. As with some of our other debates, however, this is not about whether you are in favour of or against mesothelioma victims. This is a debate about how our legal system is being reformed.
We are implementing fundamental reforms of conditional fee agreements, or CFAs, following the recommendations in Lord Justice Jackson's review of civil litigation costs. The current regime allows for risk-free litigation for claimants and substantial additional costs for defendants. We want to restore a fair balance
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That is the general case, and it is important not to lose sight of it in considering respiratory disease claims, mesothelioma claims or others, but I want to repeat some specific points about mesothelioma. No one is suggesting that these tragic cases are contributing in any way to what has been described as a compensation culture-this is a horrible disease which acts very fast, and that suggestion has never been any part of my case in putting forward the Government's position, as noble Lords know. It is a horrific disease and we have nothing but sympathy and compassion for its victims. Recent Governments of all colours have taken measures to help claimants in these cases, and this Government are continuing that work with due urgency.
In an earlier debate I spoke of recent legal changes that have significantly lowered the bar for mesothelioma claims. These cases are always tragic but they are mainly straightforward and relatively low risk. The costs should not be as high as they can be under the current regime. Legal costs need to be controlled in these cases, as in others. These reforms have been carefully put together as a balanced package. Having considered the interests of claimants against the interests of defendants, we are implementing a number of additional measures. These include a 10 per cent increase in damages for non-pecuniary loss and, in personal injury cases, a cap on the success fee of 25 per cent of damages, excluding future care and loss. Let me emphasise that that is a maximum cap. No lawyer is required to take any success fee from a claimant, and many lawyers will wish to maximise the damages that victims can receive. We are also introducing qualified one-way costs-shifting so that "after the event" insurance is no longer necessary in respect of the other side's costs.
These measures are intended to work alongside the abolition of recoverability to ensure that all sides have an interest in keeping costs down and resolving more claims more quickly. Because speed is the other crucial element in mesothelioma cases, it is imperative that fair compensation is paid as quickly as possible. Under the current regime, however, standard cases can take as long as two years or more to be resolved. That is often longer than the sufferer survives. The Government have their part to play in speeding up this process and we are engaged with stakeholders and government colleagues in relation to it. However, to exempt mesothelioma cases wholly from our reforms would be to retain the status quo, undermining the package of reforms and allowing cases to drag on.
I should highlight that the reforms under Part 2 are not taking place in isolation. Last week I met with the Minister for Welfare Reform, my noble friend Lord Freud, to discuss the work that he is actively undertaking with stakeholders. I am glad to confirm that real progress has been made and that the Department for Work and Pensions hopes to make an announcement before the House rises for the summer on a programme
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The Government are not ignorant of or indifferent to the plight of mesothelioma sufferers. These are important cases which need to be dealt with as quickly as possible-that is a matter of humanity. Of course, greater speed generally also means reduced costs, which benefits everyone. As I say, we are actively working with the DWP to ensure that victims can access the help that they need. I urge noble Lords to consider the whole picture, not just the element of reform which we have in front of us today. The work that we are doing on civil litigation costs is closely related to the work that we are undertaking on helping mesothelioma victims who are unable to trace their insurers. To undermine one reform may be to endanger another, which is a scenario that we should avoid. I urge noble Lords not to insist on Amendment 31 and to support Motion E. I beg to move.
Lord Alton of Liverpool: My Lords, before the vote on 15 March on Report, a cross-party group of 18 Members of your Lordships' House signed a letter urging us to defend the rights of mesothelioma victims. The House subsequently voted by a majority of 31 in favour of that amendment, which enables victims of asbestos to keep 100 per cent of their much-needed compensation. The amendment adds nothing to the public purse-that is why there is no financial privilege claim against it-but it seeks to support terminally ill victims of mesothelioma and their families.
All sides of your Lordships' House have agreed that such cases are, as the Minister has just reiterated, not part of a compensation culture. No one has been able to give any examples of fraudulent or frivolous claims, and nothing that the noble Lord has said today would dispute that. Indeed, at no stage during our proceedings has he ever either asserted or implied that. However, I was concerned to see that the Minister in another place, Mr Jonathan Djanogly, in disputing this amendment, said that the current regime,
I wonder what the noble Lord has to say in contradicting that assertion made in another place. The Minister there was challenged to name one case where a mesothelioma victim had taken an unreasonable or vexatious case to court. He chose not to do so. On reflection, I am sure that he would want to reconsider linking bogus claims to the issue of mesothelioma.
The Minister then said two other things which I ask the noble Lord, Lord McNally, to ask his right honourable friend the Justice Secretary, Mr Kenneth Clarke, to ponder. One was the suggestion that people dying of mesothelioma should be "watching the clock", which
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"Whilst you are trying to cope with the physical and emotional trauma that comes with the words, terminal illness you cannot contemplate the extra worry and anxiety that claiming compensation would bring".
It is also erroneous to suggest that everyone has relatives to fight their corner for them. Even if they do, should that be their primary concern when a loved one is in the last few months of their life? It is not the job of someone dying of mesothelioma to become the Government's regulator or watchdog, watching the clock or challenging exorbitant legal fees. That is the job of regulators, not victims of a lethal industrial injury.
"How can the Minister expect such victims and their families-people who have received the diagnosis and know that they are going to die-to shop around for the cheapest possible lawyer when they need every ounce of their energy to fight their disease?".-[Official Report, Commons, 17/4/12; col. 278.]
Although our amendment was rejected in the Commons, it once again enjoyed all-party support and the government majority was one of the smallest since coming to office. That underlines the crucial role of your Lordships' House in scrutinising legislation, especially on a day when the House is once again being told that it must be reformed. It is worth noting, as I did earlier in an intervention following the remarks of the noble Lord, Lord Higgins, that this issue was not even debated in earlier Commons stages. Our Lords amendment gave the Commons its first opportunity to consider an exception for those who had no chance of surviving their illness and little hope of seeing justice done in their lifetime. It is not a bad illustration of what one national newspaper described as "the conscience role" frequently played by this House and how it scrutinises and examines details of legislation and its effects. When an issue of this importance, affecting thousands of terminally ill people can be overlooked at Second Reading and then caught by a guillotine at Committee and Report stages, leaving it completely undebated, that raises some serious questions about which House is most in need of reform.
By sending this amendment back to the Commons, it finally allowed a one-hour debate to occur last Tuesday, although the Member for Scunthorpe, Mr Dakin, was at the very beginning of his remarks when the guillotine fell and we never got to hear what he wanted to say on behalf of his constituents. Other honourable
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In the Division which followed, Conservative and Liberal Democrat Members of Parliament were among those who voted for the amendment. The speech by Tracey Crouch, the Member of Parliament for Chatham and Aylesford, who previously worked in the insurance industry, is especially noteworthy. She said:
"It is not my insurance background that drives my real interest in this issue; it is on a constituency basis that I care most. Medway has been highlighted as a hot spot for mesothelioma, which is unsurprising given that the towns have historically provided the industrial hub for Kent, and that the Chatham dockyard was one of the biggest employers for many decades".
"My constituency, like that of my hon. Friend, has a higher than average incidence of mesothelioma. We have no shipbuilding, but there has been significant employment in other asbestos-related industries across the High Peak.-[Official Report, Commons, 17/4/12; col. 271.]
Unsurprisingly, with 30,000 deaths thus far, and many thousands more to come, many honourable Members talked about their own experiences in dealing with asbestos-related cases, and there was a series of very well made speeches. Mr Andy Slaughter, the Member of Parliament for Hammersmith, reminded the House of Commons that it is misleading to suggest that victims would be better off as a consequence of a 10 per cent uplift if some victims were to lose up to 25 per cent of their damages. He said:
"The Government have refused to reduce base costs for lawyers, which would be the obvious way to stop inflated costs. Instead, they are going after victims' damages. The beneficiaries of all this will be the defendants and their insurers. They will have significantly reduced liabilities if they lose".-[Official Report, Commons, 17/4/12; cols. 269-70.]
"I note the Association of British Insurers is warning that mesothelioma sufferers might not benefit from those reforms if the amendment goes through. I do not believe that, and I want to issue the counter-warning that, on fatal industrial diseases such as mesothelioma, the Government will be judged on what they do to help victims, whether through financial or other types of support.-[Official Report, Commons, 17/4/12; col. 272.]
I spoke to Tracey Crouch earlier today and she told me that if we send this amendment back to the House of Commons she will persist in championing it. The reason why Members feel so strongly was summed up very well by Mr Ian Lucas, the Member of Parliament for Wrexham. He is a lawyer and said:
The Minister argued that it would be unjust to single out one class of claimants for exemption. Of course it is never possible to do what we would like for
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Noble Lords should recall that mesothelioma has attracted more legal challenges to limit liability for compensation than any other disease. Exceptionally, mesothelioma has a latency period of up to 60 years. It is a fatal disease; there is no cure. No industrial disease places claimants in such difficult circumstances when facing the stress of taking legal action.
It is moving to reflect on the comments of the late Lord Newton of Braintree, who was one of the key supporters of this amendment. Lord Newton, a former Secretary of State, Minister for disabled people and Leader of the House of Commons, referring to victims of asbestos exposure, said:
"I have some experience of claims relating to that disease-or rather to mesothelioma ... I think there is a real case for wondering whether we should not maintain assistance to that group of people ... this condition is what you might call very slow burn. Exposure to asbestos that occurred very many years ago may give rise much later to mesothelioma, one of the nastiest forms of cancer".
"I hope my noble friends on the Front Bench will not consider that this amendment would have a scattergun effect but that it is well targeted and deserves careful consideration".-[Official Report, 30/1/12; col. 1359.]
In a letter to the Times from my noble and learned friend Lady Butler-Sloss, the noble Baroness, Lady Finlay, the noble Lords, Lord Beecham and Lord Avebury, and myself and others, we remarked on the creation of an exceptional injustice if this amendment is not supported. We said:
Following the Commons debate, I am glad to say that the noble Lords, Lord McNally and Lord Freud, held talks last week with the right honourable Member for Wythenshawe and Sale East, Mr Goggins, and me. They are actively trying to find ways forward and I welcome that. As one can imagine, we were treated with characteristic respect and understanding. The movers of the amendment made it clear to Ministers that we are looking for a constructive outcome. If it comes to a Division, I hope that the House will continue to support the amendment while we continue to seek an agreed way forward. Society owes a huge debt to those who are now losing their lives to this terrible disease. Thousands of people will lose their lives in decades to come as a result of criminally negligent exposure to asbestos long after the dangers were known to government, industry and health and safety enforcement agencies. I hope that noble Lords will join me in keeping this issue in contention until a just solution is achieved. I beg to move.
Lord Avebury: My Lords, I join my noble friend Lord McNally in paying tribute to the noble Lord, Lord Alton, who has fought so tenaciously for the rights of mesothelioma victims and their bereaved families over many months and previously, before we got to these debates. I know that he has always espoused their rights and tried to do the best that he could for them. I also thank my noble friend Lord McNally for what he said about the Government's intentions, the programme for settling cases without the necessity to go to court and the development of a scheme analogous to that which operates in the case of motor accidents where it is impossible to find the insurer. I welcome those moves but they are not in any way in conflict with what the noble Lord, Lord Alton, proposes in his amendment.
The arguments in favour of the amendment have been covered exhaustively in both Houses and I do not propose to repeat any of them now. I will say only that it is incomprehensible that, in the face of near unanimity on all sides among those who have spoken in those debates, the Government are still unwilling to give way. The argument that the amendment undermines the principle that in CFA cases the success fee and the ATE are to be paid by the winning claimant is destroyed by the concession that has been made on clinical negligence cases.
In moving to reject the amendment in another place, Mr Djanogly said that it was unnecessary because there was nothing in the Government's proposals to prevent cases being taken or those affected receiving appropriate damages. If he had read the evidence that was provided by the Asbestos Victims Support Groups Forum UK, he would know that that was not true because many victims have said that they would not have brought cases if they had known that the success fees and ATE insurance would be deducted from the damages awarded. The Minister did not reply when asked directly by Kate Green whether he accepted that some cases would go unrepresented and unpursued.
Secondly, he trotted out the argument of inconsistency. Throughout these debates we have been perfectly clear in saying that we wanted to make an exception for the victims of what is universally acknowledged to be a particularly horrible disease that is invariably fatal, and the majority who voted for it were fully aware they were making an exception to the general pattern of CFA cases. The Minister then insinuated that the claims dealt with in the amendment were part of the compensation culture-an infamous suggestion when we are talking about people who are terminally ill. He went on to say that the Government were not persuaded that these cases were substantially different from other personal injury cases. I question whether he bothered to read our debates or has any knowledge of the ordeal that is experienced by mesothelioma sufferers in the final months of their lives. This is graphically described in the evidence submitted by the victims and relatives' organisations, and known about directly by many past and present honourable Members from testimony that they received at their advice bureaux.
Finally, the Minister said that the Government were determined to bring down the cost of litigation. Let us be clear that, as my noble friend Lord McNally acknowledged, in this amendment we are talking about whether the claimant or the defendant pays the success fee. No cost to the taxpayer arises.
In another place, five Conservative honourable Members defied the Whip by voting for the mesothelioma amendment and several others abstained. It can be assumed that if it had been a free vote, the other place would have upheld the amendment and we would not be debating it today. It is only right that we should give them another opportunity to set aside the callous treatment that the Government have insisted on all along, and to substitute what we all know is the fair and compassionate answer.
Lord Morris of Aberavon: My Lords, I add my support to the noble Lord, Lord Alton. As constituency MPs, many of us saw cases to do with this very issue and the difficulties that some of our constituents had in establishing liability after years of contact. I added my name to the noble Lord's original amendment and heard his speech then, which set out the case admirably. I congratulate him on continuing to expose such an injustice. At this late hour, all I wish to say is that my support continues and I hope that the noble Lord will succeed.
Lord Thomas of Gresford: My Lords, why success fees should be claimed at all by lawyers in this type of case just defeats me. The problem is in identifying the insurers of a particular firm that may have exposed the sufferer to asbestos many years before. I am delighted to hear that discussions are afoot on setting up a scheme akin to the Motor Insurers' Bureau, whereby insurers come together to meet the damages and costs of a sufferer who cannot identify a particular insurance company behind his former employer. I hope that comes to pass. If it does, it will cure a lot of problems. It is obvious when a person suffers from mesothelioma; you do not have to prove that someone is suffering from this condition.
As a result of the Supreme Court's decision last year, it has to be shown only that an employer has exposed an individual to asbestos in the past for that individual's claim to succeed. The statistics show that these cases settle. What does that mean? It means that the fees of the lawyer are not at risk; he will have his ordinary fees paid by the insurer. Therefore, why should he get a success fee over and above that? On Report, I proposed that there should certainly be no success fee payable if a case settles before steps are taken to bring it to trial. I ask the Minister to take this into account when regulations are drawn up under what will be Section 46. The lawyer is not at risk. He has done nothing to earn more than the fees that he can properly charge. We did not have success fees in the past. We acted for people and, if we lost, we did not charge them. When we won, we got our costs and the expenses that we had paid from the other side, properly taxed. That was how the system worked.
I hope that the Government can bring in a combination of the Motor Insurers' Bureau scheme for this type of case and couple it with regulations that say that no
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Lord Howarth of Newport: My Lords, I have no doubt at all about the sincerity of the noble Lord, Lord McNally, and the compassion for victims of mesothelioma that he expressed at the outset of his speech. None the less, he felt that he must advise the House to reject the amendment so powerfully moved by the noble Lord, Lord Alton of Liverpool.
I say to the Minister that there is no virtue for the Government in dogmatic consistency. I believe that they would do themselves good and, much more importantly, they would do a great deal of good for those diagnosed with mesothelioma, as well as their families and dependents, if they would agree to make an exception in this instance. If they were to do so, it would not create a permanent anomaly, and in the short term I do not believe that it would undermine the central principles of the Government's reforms because they are absolutely secured in the legislation that Parliament will pass. In any case, the Minister need not fear because this is a category of cases that is going to reduce in number over time. Mesothelioma is, I understand, exclusively associated with exposure to asbestos. All too belatedly the terrible damage that asbestos can do to human health was recognised, and for some time due to regulations and industrial practice there has been no further exposure of people to this hazard. We can foretell with confidence that this category of cases will dwindle and, I think, disappear. Therefore, the Minister need not worry that there will be a permanent anomaly. I say to him that he does not need to persist in a doctrinaire position which runs counter to his own very real human sympathies.
Lord Faulks: My Lords, what was said in the other place about there being some advantage, as the noble Lord, Lord Alton, said, in any case of mesothelioma was most unfortunate and was, I hope, a simple slip of the tongue. Using this appalling disease to give an example of the compensation culture was equally ill advised. It plainly is not.
There is no dispute about the diagnosis of mesothelioma on any occasion. However, this is part of Part 2 of the Bill, and Amendments 31 and 32 have the effect of undermining the structure of the Bill. Part 2 was the result of Lord Justice Jackson's report and represents an attempt to remove some of the more unattractive and, frankly, almost iniquitous aspects of the system that had grown up as a result of the changes unleashed by the previous Government's legislation. The fact that this amendment would create an exception to this new, much fairer and proportionate system is not of course itself a reason for objecting to the amendment if it would be a denial of justice to these very deserving cases. There is no doubt that they are highly deserving cases and that they need
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What is important about these cases is that, as a result of a series of Acts of Parliament and decisions of the courts, they are no longer difficult to prove. With respect, they are not like some of the more complex clinical negligence cases where there are great differences of opinion over causation or diagnosis. It really is not complicated to prove these cases; nor should it be.
Therefore, the question is this: will lawyers take the cases? If they will, there will not be the terrible denial of justice to which the noble Lord refers. In my view, they will take the cases. They will be properly rewarded financially for doing so and they will have the satisfaction of representing those who deserve compensation. Therefore, while having every sympathy for the sufferers and great admiration for the campaign that has been launched on their behalf, we need to stand back and say what this amendment is about. It is about whether lawyers will be paid more money and whether the fact that they will be paid less money will prevent these cases taking place. I do not believe that it will.
Lord Carlile of Berriew: My Lords, the noble Lord, Lord Alton of Liverpool, has made a very persuasive case for those who suffer from mesothelioma. Part of that case is that he believes-and he has much support for this-that there will be sufferers from mesothelioma who will not be able to recover damages unless the amendment that was previously passed remains in the Bill. We have just heard from an expert on personal injury cases-my noble friend Lord Faulks-who has expressed the contrary view. He said that lawyers will be prepared to take these cases because they are not very difficult to prove and that there will be no deficit for potential claimants if the amendment is not restored to the Bill. That leaves those of us who are genuinely interested in knowing the truth about these claims on the horns of a dilemma. Given that there is no claim of financial privilege in relation to this amendment, the answer to that dilemma is extremely important.
Therefore, I, for one-and I am sure that other noble Lords around the House share this view-would be grateful if in replying to this debate or at some point during the debate the Minister could tell us whether the department has made an assessment of this problem. What is the department's view? Does it
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Lord Wills: My Lords, the case for this amendment was powerfully made in this House last month and in the other place last week, and I rise now briefly to add another voice in urging Ministers to think again, even at this late stage, and to try to find a constructive solution to this issue.
Before coming to your Lordships' House, I was an MP in Swindon. Because of that town's industrial history and particularly because of the large railway works, which employed many thousands of people over many years, this illness was known locally as the Swindon cancer. I, too, thank the noble Lord, Lord Alton, for his sterling efforts on behalf of all my former constituents who have suffered from this terrible disease and, I am afraid, will suffer from it in years ahead.
Ministers have claimed that it would be wrong for various reasons-I understand and completely accept what the noble Lord, Lord McNally, has said about this-to make a special case for this one disease. The fact, however, of this disease's particular virulence, that it is inevitably fatal, that it progresses with terrifying speed, that it is hard even to find palliative care for it once it has taken hold, all argue powerfully for it being just such a special case.
It is unconscionable to force sufferers from this terrible disease, and their families, at a time when every hour is precious to them, to go through the processes required by this Bill to secure the compensation to which they are entitled. Those are fundamental points for me-whether they can secure lawyers and whether success fees are to be secured for the lawyers. Every hour is precious. The people who are diagnosed with this illness have months and sometimes only weeks to live. We should not force them to go through the processes required by this Bill.
As my noble friend Lord Howarth has already said, accepting this amendment would do no damage to the fundamental principles behind the Government's reforms of the legal aid system. It is the only decent thing to do.
Lord Bach: My Lords, it is the Opposition's view that there should be no moneys taken from victims' damages in these cases. That is the basis of our view. So we speak in favour of the amendment that has been so well moved.
There is a great feeling across this House that we have to protect victims of industrial disease and ensure that they and their families are not victims once again
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Honourable Members on all sides of the Chamber spoke with passion, knowledge and experience about this subject. Not least was Ms Crouch, a former insurance executive, who criticised both her Minister and the Association of British Insurers for their stance on these amendments. Indeed, as I understand it, she has spoken to the noble Lord, Lord Alton, today and has also put out a press release. I am delighted that a number of Members of Parliament on all sides who spoke in that debate are listening to our debate this evening.
I could also mention Mr Andrew Percy who represents Brigg and Goole, which noble Lords will know is famous for its historic shipbuilding past, and Mr Andrew Bingham, the MP for High Peak, an area that also has a high incidence of asbestosis. They spoke against the Minister's proposals and, to their credit, voted in the Opposition's Lobby. Their concern was perfectly understandable. Why on earth, with absolutely no savings to the state, are we reducing the amount of money that victims get from those who harm them, while handing that money to lawyers or insurers instead? Those Members on all sides who voted were not persuaded by the stupid assertions-if I may call them that-of the Minister in the other place that industrial disease sufferers should be treated in the same way as an organised gang faking whiplash injuries for payouts or someone lying about a slip or a trip on a pavement crack. Again and again, the other place heard stories of horrific suffering of victims-and the fact that you simply cannot fake cancer of the pleural linings, peritoneum or cardiac sheath.
The history of asbestos-induced diseases-and, indeed, general industrial diseases-is not a proud one for the insurance industry. It knew for decades that asbestos killed before it acted and only then at Parliament's promptings. Insurers have fought cases-to the death-trying to get out of paying just awards to genuine victims. There is a long history of insurers fighting claims until after the death of the claimant. It is in part thanks to their tireless lobbying that compensation levels in England and Wales are not by any standard generous in cases of this kind. They are forensically calculated to reflect pain, suffering and loss of amenity and costs of past and future losses. They are far less than victims receive in comparable jurisdictions. For example, Mealey's Litigation Report in 2007 maintained that the average jury award in the United States for mesothelioma was $7.5 million-the average award here is £65,000. Of course, the differences between jury and judge-calculated awards and our judicial systems apply, but there is a huge difference.
No one could argue that the damages victims of this disease receive are very great; they should certainly not be eaten into in the way that this Bill, if allowed,
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Lord Thomas of Gresford: Does the Minister not support my argument that it is better that there should be no success fees at all, rather than that success fees should be claimed against the insurers, which is what this amendment amounts to-in other words, a continuation of the current system? Does the Minister not agree that in these cases, which are easy to prove once you establish the insurer, success fees are really irrelevant?
Lord Bach: I am grateful to the noble Lord again for calling me the Minister-it is a couple of years, I think, since that was the case. I take his point though; it is a serious point. I am not convinced that lawyers who take up these cases, if this Bill in its present form becomes law, will not take success fees. In fact, I am pretty certain that they will. I cannot see why they would not. It may be a shame, but in the reality of the legal world, if they are entitled to take success fees, they will do so.
Lord Bach: I certainly do not have the experience of the noble Lord in this area of the law, but with the greatest respect I ask whether his view is not as speculative as mine. We just do not know, but I would have thought that the history of legal proceedings of this kind is that where success fees are available they will be sought. Maybe not always up to 25 per cent, but they will be sought.
Lord Bach: That may be what the noble Lord, Lord Thomas of Gresford, would suggest to the Lord Chancellor that he should do, but is there any indication that that is what will be done? Will regulations be put before Parliament that say it is forbidden to take a success fee in a case of this kind? If so, will not the Lord Chancellor run into exactly the same sort of problems that critics of this amendment raise here against the noble Lord, Lord Alton, and me? Will that not be the position?
Lord Thomas of Gresford: Not if there is an abuse, as the noble Lord suggests. If claimants' solicitors in cases which are not difficult to prove start charging success fees, which the Lord Chancellor or public opinion decide is simply not acceptable, then the Lord Chancellor will have the power to stop it.
Lord Bach: It may not be difficult to prove, and I understand what noble Lords say about that. But there is a history, I have to say, of insurance companies taking an extremely long time to agree to settle cases of this kind. For whatever reasons-and I do not want to go though them tonight in this House-it may be
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Lord Higgins: Does the noble Lord agree that the crucial thing we have to decide this evening is whether we should send the amendment back to the Commons? I find that I now understand the issues put forward by the noble Lord, Lord Alton, much better than I did at earlier stages of our parliamentary proceedings. Given all the representations that we have received, that is probably true at the other end of the building as well. Therefore, there may be a strong case on those grounds for their reconsidering it. The argument is otherwise very simple, which is that they did not conclude the debate on this amendment in the previous exchanges in the House of Commons. Therefore, if we send it back, it will give them an opportunity to do that. Indeed, if the Minister sought the leave of the House at the end of the debate in the other place, he could actually reply to the debate, which he was prevented from doing by his own guillotine.
Lord Bach: I am very grateful to the noble Lord-I think the whole House will be grateful to him-for shutting me up. That is the first thing that he succeeded in doing, but he also made the point that this is about whether this House believes that the other place should have a closer look at this. What worries me slightly is that, as I understand the programme Motion in the other place, there may be only one hour in the programme for all the matters that they have to consider; but I am not sure that I understand the procedures of this House, let alone those of the other place.
The noble Lord has persuaded me to sit down now. I think that was his intention. I look forward to hearing what the Minister has to say in response to the points that have been made. Surely the other place should take up this matter again-it is of such huge importance.
Again, this has been a very useful debate, with two parallel arguments. I go back to my opening remarks: nobody underestimates the horror of mesothelioma and the importance of getting speedy redress for sufferers. Parallel to that, however, are the attempts that we are trying to bring forward to bring some order to the costs of litigation. It simply is not true that the Jackson reforms are intended just to catch dodgy whiplash claims. There was a general feeling that the amendments to CFAs which the previous Administration introduced brought in an overall inflation of costs in our legal system. We all pay for that inflation.
I hear what the noble Lord, Lord Wills, said, but the truth is that the present system which the sufferers have to use is slow and expensive. I repeat that the intention of this Government is to move as speedily as possible to get to where we can through agreement with the industry, to get litigation out of the way. It is true, as has been said by a number of noble Lords, that there was callous treatment of sufferers. There was
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Lord Bach: As far as that is concerned, the setting up of a body in order to get a move on with this was mentioned in a White Paper from the previous Government two years ago. We have seen absolutely nothing after two years to suggest that that body will be set up soon. Indeed, every comment made by the insurance industry as a whole has been opposed to any organisation that would stand in, as it were, when they cannot find who is responsible for these diseases being caused.
Lord McNally: As I made clear in my opening remarks, my noble friend Lord Freud hopes to be able to make a Statement on this by the summer. The House, the insurance industry and sufferers from this disease should understand that we mean business on this. We are addressing this with a real sense of urgency. Whatever happens regarding this amendment, given the plight of sufferers from this disease, they deserve fairness and speed in settlement for the many reasons that have been put forward.
The noble Lord, Lord Howarth, said that there is no virtue in dogmatic consistency and he even had the strong support of my noble friend Lord Carlile in that. Certainly, there is no virtue in dogmatic consistency, but we need to consider the integrity of the legal system as a whole and fairness between different claimants. There are two parallel debates. There are the necessary Jackson reforms of legal costs, which will apply across the board, and the need to move with speed to get a system that deals with the problems of mesothelioma victims as quickly as possible. We can only make our impact assessments.
My noble friend Lord Carlile asked whether we thought that the Jackson reforms will prevent sufferers' access to justice. We do not believe that. We would not have brought this forward if we had thought it. The point was made about success fees. I repeat that they are not compulsory. As my noble friend Lord Faulks has pointed out, there may be some proper, healthy competition among lawyers that will address the question of success fees.
It is not the responsibility of somebody suffering from a terminal illness to watch the clock as far as costs are concerned. It is the responsibility of government. The Jackson reforms take that responsibility away from claimants. Not just in this particular case but in the broad there was no responsibility on litigants or their lawyers to watch costs. That was the weakness of the whole system. The Jackson reforms put some emphasis back on to the responsibility to watch costs-not on somebody suffering from a terminal illness but through the reforms that we are putting through across the board in this area. For a claimant who does not have to pay a success fee, the 10 per cent uplift could mean more compensation than he or she would otherwise have got. I make no firm claim on that. It is not a question of being callous towards the sufferers. On the contrary, the Government are taking very speedy action to try to get in place an agreement which I am sure we all agree should have been in place many years before.
Sadly, this is not a problem that will go away. That is one of the reasons why I believe that we need a sense of urgency in our approach to this. Although we are now fully aware of the dangers of asbestos, this insidious disease can strike 20, 30 or 40 years after exposure. Therefore, there is a need not for a complicated, expensive, lawyer-based system of compensation, but for a system that will address the needs of sufferers. I am sorry that I cannot help more in relation to making it an exception. Horrific as the disease is, it is not an exception to the way in which the justice system should work. We should have a system in which lawyers get a proper return for the job that they do and in which those deserving compensation receive proper compensation. It is not a case of grabbing 25 per cent of that compensation. Competition and even some morality might drive that out of the system. Even bigger than that is the prize that the Government are seeking: a system that is not lawyer-based but one that is based on need, clearly agreed with the industry. As I have assured the House, we hope to make a Statement by the summer and we hope to have a system in place that brings speed and fairness to the sufferers of this disease. I ask the House to reject the amendment and to support the House of Commons resolution.
Lord Alton of Liverpool: My Lords, I am grateful to all noble Lords who have participated in this debate and in the earlier debates. The Minister has, with his usual courtesy, dealt with the arguments that have been put forward today. I reiterate my thanks to him for the time that he has spent with me, with Mr Paul Goggins last week and with the noble Lord, Lord Freud. He has said a number of things this evening on which the House should reflect, one of which was about the new scheme that it is hoped will be brought in in future and which will be a lot less reliant on lawyers. If we can achieve that, I think that there will be consensus in your Lordships' House that it will be a very significant and purposeful step forward and it is certainly one that I will wholeheartedly support. The noble Lord, Lord McNally, has told us that that announcement will be made in the summer. However, it will require primary legislation, which is not before us, so there will be at least another 18 months from the time of the announcement before anything is on the statute book.
In the course of this evening's proceedings, there has been dispute between different lawyers and different Members of your Lordships' House about the practical effects of the law as now drafted on victims of mesothelioma. Pending the announcement in the summer and the new legislation that might come, I beg your Lordships not to play Russian roulette with the lives of people who have a terminal illness. I beg you not to be drawn into either side's arguments about how this might work out and not to take chances but to preserve, as the noble Lord, Lord McNally, said the amendment would do, the status quo and keep things as they are at the moment until such time as we have something better to put in its place.
Success fees have been mentioned a great deal during the proceedings. The noble Lord, Lord Faulks, said that many lawyers would not want them, the noble Lord, Lord Thomas, said that they should not take
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I agree with what the noble Lord, Lord Thomas, said earlier that it would be better if such a system were entirely swept away, but it has not been. If we are to wait for regulation, how do we know whether those regulations will be put forward by the Government or whether they will be successful? I do not think that we should do this on a wing and a prayer.
The noble Lord, Lord Avebury, thanked me for my persistence but, 40 years ago, in 1972, the noble Lord issued a pamphlet championing people who were suffering from mesothelioma. Thirty thousand people have died from the disease over the years. As the noble Lord, Lord McNally, has just intimated, probably the same sort of number will die before this is all over.
We are often accused of being preoccupied with fringe issues, but in a week or so, we shall have Workers' Memorial Day. Surely, this evening, it would be fitting for us to recognise the sacrifice that workers have made in the service of their companies and this country in many heavy industries. This does not affect just those who have worked in heavy industries as even those who washed the clothes of people working in those industries have contracted this awful disease. Surely this is something on which we can raise our voices tonight, knowing that there are Members in another place who wish to pursue this further in the House of Commons and who were denied the opportunity to do so at earlier stages. Many of the issues that we have been debating this evening, which are new, should have been debated in Committee in another place much earlier on. We have been reassured that there are no financial questions. This is not about austerity; it is not about fraud; it is not about ambulance chasing; and it is not about a compensation culture. However, it is about elementary justice. I hope that your Lordships will agree with my Motion. I wish to test the opinion of the House.
32A Because it is not appropriate to make an exception from clauses 43, 45 and 46 for proceedings which include a claim for damages for a disease, condition or illness resulting from a breach of duty owed by an employer to an employee.
Lord McNally: My Lords, Motion F contains Amendment 32, which seeks an exemption from Clauses 43, 45 and 46 for industrial disease claims. The Government cannot accept this very broad exemption to the provisions in Part 2, and the House of Commons has agreed with our position.
The suggested exemption is very wide and would cover all manner of conditions, including relatively minor problems that may be better resolved outside
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For all the sympathy that we have for sufferers of any industrial disease and the desire of all of us to make the legal process easier, particularly for those facing terminal illness, I cannot see that a system based on exceptions would be fair to other claimants. I fear that we would be failing in the wider duty of fairness in legal proceedings, which, as I mentioned in the earlier debate, is the key element behind the Jackson reforms. I urge the noble Lord not to insist on his amendment. I beg to move.
Lord Wigley: My Lords, the House of Commons has rejected this amendment on the spurious grounds that it is inappropriate. That is a matter of opinion and judgment, no more and no less. Amendment 32 would exempt industrial disease claims from these changes. I supported the amendment that has just been passed by the House that relates specifically to exempting cases of respiratory disease from these changes. Amendment 32 goes wider to cover all diseases, conditions and illnesses that arise from a breach of duty owed by an employer to an employee, some of which may be much more complex than cases of mesothelioma, as we heard a moment ago. In the debate in the House of Commons, the argument was put that there should have been no specific amendment for one condition, such as mesothelioma, but a general approach. By passing this amendment, we give the House of Commons an opportunity to consider having that general approach.
I wish to draw to your Lordships' attention to the meagre hour allowed in the Commons for debating Amendments 31 and 32. The Minister, Mr Djanogly, concentrated overwhelmingly, almost exclusively in fact, on Amendment 31. He said:
The whole tenor of the debate was in the context of mesothelioma, which we dealt with in our debate on the previous amendment. Of the 20 MPs who spoke, 15 spoke specifically about mesothelioma and 15 supported Amendment 32 when it came to a vote. The case against Amendment 32 was just not made in the Commons. We are supposed to respond to what the Commons has told us. It had not debated it at earlier stages, and it did not debate Amendment 32 in the hour that it had on 17 April.
At earlier stages during the passage of the Bill, the case has been made on the basis of road traffic claims and the savings that could be made in that context. Industrial disease cases are wholly different from road traffic accident claims; and, as many organisations, including the Association of Personal Injury Lawyers, have advised me, in road traffic accident claims liability is far simpler to prove than in industrial disease cases. That is why we need to have support for those cases, whatever the condition arising from industrial disease, not just mesothelioma. There is a range of other diseases. In the earlier debate, the Minister referred to further thought being given to mesothelioma by the Government and the DWP later this year. Presumably, on the basis of the argument that he put a moment ago, that further thought will also be given to the more complex cases that arise from other backgrounds in the industrial context. It is important to have the Minister's response on the record on that.
Lord Bach: My Lords, I can be very brief on behalf of the Official Opposition. The Motion that was passed last time in this House was in my name, and it follows that we support the Motion in the name of the noble Lord, Lord Wigley, today. He has summed up the case extremely well, and in our view this amendment should be supported. It is quite wrong that any part of the damages awarded in industrial diseases should be taken from the successful claimant. In principle, it is wrong. Therefore we support the amendment.
Lord Phillips of Sudbury: My Lords, I can be very brief. There is a belief on this side that Amendment 32 would drive a coach and horses through the Jackson amendments, and we are broadly in support of the need to amend and reform conditional fee agreements and the like. I also draw the House's attention to the fact that the wording of this amendment is extraordinarily wide. It will not apply just to cases of damages for industrial disease, as the heading would indicate; it will relate to any proceedings that include a claim for damages for a disease, condition or illness. That could be a minority part of the claim, and the rest, piggybacking on it, would also be outside the broad changes to these conditional fee agreements that have, in my view and in the view of the Government, had extremely unpropitious consequences for litigation generally, some of which we heard in discussion on the previous amendment. I am afraid that I oppose this amendment.
Lord McNally: My Lords, I am grateful for my noble friend's support. We should move quickly to a decision on the matter. This is a very wide amendment. It ducks the issue that the Government have made central to this Bill and which I made in our debate on mesothelioma. Singling out a sector for special treatment is unfair across the board. We are looking in that case for non-legal solutions to the problems of the victims. The Government have taken action on a number of areas of specific industrial diseases and will continue to do so.
As I said at the beginning of my remarks, we will not undermine what most people saw in the system that is now in place: a very inflationary form of financing litigation where neither the claimant nor the lawyer has any need to concern themselves about cost. That is why Jackson was set up and why he came up with the solution that he has. As in previous cases, the idea that the 25 per cent is compulsory is not necessary. I should like to see much more competition and willingness to take these cases. Noble Lords have seen that it is easy to take very hard cases and then to say, "Well, we can't go along with this". If you do that, you dismantle the Jackson reforms. I believe that the debates in both Houses over the full period of this Bill have been mainly supportive of the central architecture of the Jackson reforms. I hope that when they vote on this amendment, noble Lords will see its flaws and will support what the Commons has proposed.
Lord Wigley: My Lords, I have listened carefully to what the Minister has said in this short debate, but the fact remains that if one considers the debates that took place at Second Reading, in Committee and on Report in the House of Commons, these issues have not been handled in depth and in detail. We have not seen the figures on how financial savings will arise in detail from the changes that are being made. If there are complexities in law with regard to many of the cases for compensation for injury or disease in a place of work, surely without financial support people will not be able to get the compensation to which they are entitled. If they are entitled to compensation, it is downright unacceptable that up to 25 per cent can be skimmed off.
Time after time the Minister has said that there is no compulsion to take up to 25 per cent. There may not be compulsion but it is available, and the Government have chosen to make it available. To my mind, and I believe to the minds of many noble Lords, that is unacceptable. The House of Commons needs to get its act in order and to apply itself in detail to these questions in a way that did not happen on 17 April when about one-third, at most, of an hour was allotted to the content of this amendment. For those reasons, I wish to test the will of the House.
That this House do not insist on its Amendment 168 to which the Commons have disagreed for their Reason 168A, do not insist on its Amendments 169 and 240 and do agree with the Commons in their Amendments 240A and 240B.
6A (3) Civil legal services provided in relation to an appeal on a point of law to the Upper Tribunal, the Court of Appeal or the Supreme Court relating to a benefit, allowance, payment, credit or pension under-
Lord McNally: My Lords, the amendments in Motion G would bring the majority of welfare benefit matters back into scope. Before I get into the detail of this Motion, I want to remind the House that these amendments have been considered by the House of Commons. That House has disagreed with Amendment 168, ascribing financial privilege as the reason for doing so, and in place of Amendments 169 and 240 has accepted the Government's amendments in lieu. Despite this, the noble Lord, Lord Bach, has tabled an amendment to Amendment 168 that would bring into scope advice and assistance for all welfare benefit appeals in the First-tier Tribunal. It is my opinion that this amendment will elicit the same response from the House of Commons.
As in our earlier debate, the fact that the amendment infringes privilege is the only reason that is given. I do not object to the amendment; as the Clerk of the House of Commons recently put it after a privilege reason, "That does not exclude a second try by the Lords". However, as was said by the Joint Committee on Conventions, of which I was a member:
"If the Commons have disagreed to Lords Amendments on grounds of financial privilege, it is contrary to convention for the Lords to send back Amendments in lieu which clearly invite the same response".
As I have said many times, the Government consider that, in most cases, appellants can and do present their welfare benefit appeals in the First-tier Tribunal in plain language and without legal assistance. The tribunals system has been designed precisely so that they can do this. Indeed, a report by the president of the Social Entitlement Chamber of the First-tier Tribunal has pointed out that Department for Work and Pensions decisions are most commonly overturned because the tribunal elicits additional factual information from the appellant, usually in the form of oral evidence provided by the appellant. This suggests that legal arguments are not the most common reason for a welfare benefit decision being overturned in the tribunal. Furthermore, in his 2008-09 report, the president stated:
We have committed to ensuring that not-for-profit advice remains widely available and we have supported this view, as I reported earlier, with further funding, making available £16.8 million for advice service funding, which is already helping 300 front-line advice organisations. In addition, £20 million of funding will be made available in each of the financial years 2013-14 and 2014-15.
Perhaps I could draw the attention of the House to the government amendments, which, as I have said, I think are a genuine response by the Government to points that were made, not least from my own Benches. We have listened very carefully to the arguments raised here and in the House of Commons about retaining legal advice and some representation for onward appeals on a point of law in relation to a welfare benefit matter. At this point, I pay particular tribute to the noble Baroness, Lady Hollis, who has engaged in a constructive discussion on this topic with my noble friend Lord Freud. Her contribution has undoubtedly helped us to produce a sensible and workable solution.
We accept that legal aid may be justified in these cases and we offered government amendments in lieu in the House of Commons. These government amendments will make legal advice and assistance available for welfare benefit appeals on a point of law in the Upper Tribunal, including applications to the Upper Tribunal for permission to appeal. In addition, the amendments would bring into scope advice, assistance and representation for welfare benefit appeals in the Court of Appeal and the Supreme Court, including applications to these courts for permission to appeal. It is worth noting that the right to appeal to the Upper Tribunal in relation to a welfare benefit matter is a right to appeal on a point of law arising from a decision made by the First-tier Tribunal.
The House of Commons also recognises that there may be cases-although the Government think that there will be very few-where appeals relating to welfare benefits in the First-tier Tribunal will be on points of law. The Government have listened to arguments on this and have undertaken to look into this issue and investigate whether we can devise a workable system whereby advice and assistance can be made available for certain welfare benefit cases in the First-tier Tribunal.
Lord Bach: My Lords, this House dislikes the Bill. I am referring not only to the 11 defeats and two draws that the Government sustained on Report or the defeats today but to a wider feeling that Part 1 in particular is mean-minded, picks on the poor, disabled and vulnerable and is not worthy of this country's traditions and its legal system. This view is held virtually throughout the House. There were more than 50 speakers on Second Reading, but it is difficult to recall anyone who spoke up for Part 1.
I believe that many Conservatives are offended by the way in which the Government have picked on the poor and the vulnerable. It is against their traditions and they are unconvinced that there are any savings to be made by decimating social welfare law, particularly as the Government have consistently refused to give figures, in spite of committees asking them to do so.
I also believe that the Liberal Democrat Benches are offended by the taking out of scope debt, employment, immigration and, if the Government have their way, welfare benefit cases. If they had been in opposition now, I venture to suggest that they would have opposed Part 1 of the Bill with all their might, yet somehow,
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Of course we welcome the Government's amendment concerning upper court appeals. It was always ridiculous that claimants at an Upper-tier Tribunal-the Court of Appeal or the Supreme Court-should not automatically get legal aid to argue their case, which, as the Minister has just reminded us, can be only on a point of law. The Government knew all along that it was ridiculous and the Minister, to his great credit, never tried to argue seriously against it. We were always going to get this concession at some stage. I do not want to be difficult about the concession; we are grateful for it and for any part that the Minister may have had in getting it.
However, the position is still deeply unsatisfactory with regard to First-tier Tribunal appeals. Last Tuesday, in the other place, an extraordinarily unconvincing pantomime took place between the right honourable and learned gentleman the Lord Chancellor and the honourable Member Mr Tom Brake. I should explain to any noble Lords who do not know who Tom Brake is that he is the Commons equivalent of the noble Lord, Lord Thomas of Gresford. That is meant as a compliment to him.
The Lord Chancellor hinted tantalisingly-using expressions such as "if we can solve the problems", "if we can find" and so on-that an arrangement might be reached whereby a lower-tier judge could certify a point of law and give legal aid to a claimant. I do not think it unfair to describe that arrangement as vague, unthought-out, superficial, strictly back-of-an-envelope stuff and, as we know, arranged very much at the last minute. Amazingly, however, it resulted in the said honourable Mr Brake immediately withdrawing an amendment that he and others had moved-not unlike my amendment today, as it happens. I am afraid that no one was fooled by this last-minute arranged minuet of an agreement. In a boxing match, it was a clear fixed fight, with Mr Brake going down to a knockout by arrangement in the second round.
Lord Thomas of Gresford: That is absolute rubbish. I say now-I would say it in a speech later-that it is not worthy of the noble Lord, Lord Bach, to attack Tom Brake in that way when he is not here to answer for himself. I am proud to be an associate of Tom Brake, who leads on legal matters in the House of Commons from the Back Benches, as I do here. He very bravely put forward that amendment and achieved a great success in getting the concession that he did, which I will develop at a later stage.
Lord Bach: If that was the concession that was sought, it was very poor fare indeed. The reasons why the deal is so unsatisfactory are numerous. Let me be brief about them. First, it is utterly impractical. What happens in real life is that, following an adverse review by the DWP, a claimant will decide whether to appeal to the lower tribunal. At present the claimant will be able to see a specialist adviser who will tell him whether there is a case or not. This prevents hopeless cases from clogging up the First-tier Tribunal but ensures that good cases go ahead to the First-tier Tribunal, which is a tribunal of fact and law.
None of this will happen under the proposed arrangement. How can a judge decide whether a case has a real point of law until it comes before him or her? Without sensible legal advice, it may never come before the First-tier Tribunal. This will mean that in practice many good cases, when mistakes have been made, are never taken up and may well mean that rubbish, hopeless cases clog up our already overburdened tribunals.
Secondly, this distinction between pure law and pure fact is a chimera. It is a nonsense at this stage. The First-tier Tribunal is not just a tribunal of law in the way that the second-tier tribunal is. It deals with the whole position and makes decisions on fact and law as they apply. Indeed, no one made that clearer than the Conservative Member of Parliament Mr Robert Buckland, who said in an intervention:
"I am listening to my right hon. and learned Friend's arguments with great care, but I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand, and they are often best handled by a lawyer. I worry that we are making an artificial distinction".-[Official Report, Commons, 17/04/12; col. 227.]
"A person does not come through the door of the citizens advice bureau, the law centre or the local practitioner saying, 'I am a problem of fact' or, 'I am a problem of law.' They come as individuals with a particular issue that needs untangling by somebody with expertise. That somebody will, I am afraid to say, often be a lawyer. That is a fact and we should not shy away from it. Often a lawyer can quickly, in the provision of advice-I am not talking about representation in the tribunal at this stage-"
Let us look at a real-life impact of the measure that the Government propose. According to official figures last year, 173,880 people appealed a benefits decision in the First-tier Tribunals. Of those, 161,400 related to disability benefits-that is, 80 per cent-including incapacity benefit, employment support allowance, and DLA or industrial injuries disablement benefit. About 60 per cent of all appellants who received advice from a front-line agency won their case but only 39 per cent of those who did not receive advice won their case. That is clear evidence of what can be called the advice premium.
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