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Legal Aid, Sentencing and Punishment of Offenders Bill


24th April 2012

Jonathan Djanogly leads a further debate on Lords amendments and also announces that in response to the previous debate the Government will delay the changes to the rules governing “no win, no fee” cases for mesothelioma sufferers.

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I beg to move, That this House disagrees with Lords amendment 1B.

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

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

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

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

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

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

4.45 pm

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

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

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

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

Andrew George (St Ives) (LD): On the point about the delay until the review has been undertaken, is that merely a delay or is it a genuine review? If it is a review, what will it consider and will he give an indication of its timetable?

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

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

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

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

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

part 1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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