Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I join the noble Lord, Lord Beecham, and my noble friend Lord Phillips, in thanking my noble friend Lord Thomas of Gresford for introducing this compendious set of amendments. It is useful to do that because it brings together all the different strands of this package. As the noble Lord, Lord Beecham, said, my noble friend Lord Thomas introduced the issue and spoke to the amendments with great clarity. In doing so, he raised a number of important issues to which I hope to respond. I shall, obviously, deal with the amendments, but if accepted, they would completely undermine the reforms that we are trying to make to civil litigation costs. I shall try to take the amendments together in some of the natural groupings: Amendments 118 to 120 and Amendments 127, 131 and 133 all relate to Clause 43; Amendments 138, 143 to 146, 147A and 148A all relate to Clause 45; Amendments 158, 159, 160 to 162 and 190 to 193 all relate to Clause 53; and Amendments 137B and 137C would insert a new clause. To respond to the general comments that have been made, both by my noble friend Lord Thomas and the noble Lord, Lord Beecham, perhaps it is worth emphasising the importance of Part 2 of the Bill, even though I shall not go down the Shakespearean historical paths of the noble Lord, Lord Beecham. Part 2 includes provision to implement fundamental changes to the current no-win no-fee conditional fee arrangements regime. As my noble friend Lord Thomas has indicated, it is taking us back to the regime introduced by my noble and learned friend Lord Mackay of Clashfern when he was Lord Chancellor in the 1990s. We believe that the Bill will restore a fair balance to civil justice. It is worth reminding ourselves that conditional fee agreements were used successfully then without the substantial additional costs that have followed the changes introduced by the previous Government in the Access to Justice Act 1999. Under our changes in this Bill, meritorious claims will be resolved but at a more proportionate cost, while unnecessary or avoidable claims will be deterred from progressing to court. We believe that these changes can help businesses and other defendants who have to spend too much time and money in dealing with avoidable litigation—actual or threatened. It is worth reminding ourselves that if a defendant feels pushed into a position where they feel they have to settle a claim that they think does not have any merit at all because of the potential costs that they might incur if they proceeded to defend the action, it is not justice. It is not justice if unmeritorious claims are allowed to succeed. The noble Lord, Lord Beecham, claimed that there would be additional costs across government as a consequence of the measures. We believe that that will not be the case. Taking the Bill as a whole, it is estimated that the changes will lead to savings of up to £50 million per annum, for example, for the National Health Service. The noble Lord, Lord Beecham, and the noble Baroness, Lady Turner, mentioned road traffic cases. The noble Baroness also mentioned cases arising from employers' liability. For completion of the picture, it is worth reminding the Committee that the existing road traffic claims process, which was negotiated under the previous Government, came into effect in April 2010. It covers claims of up to £10,000 where liability has been admitted. There is a general consensus that it has worked well. Following a recommendation of the 2010 report Common Sense, Common Safety from the noble Lord, Lord Young, the Prime Minister announced that we would extend the scheme upwards in value to £25,000, and to other types of personal injury cases, including employers' liability and public liability. The Government intend in due course to set out a way forward on extending the scheme, and we look forward to working with stakeholders on the detail. Clause 43 seeks to abolish the recoverability of a success fee under a conditional fee agreement from the losing party in any proceedings. This will require claimants pursuing claims under CFAs to take an interest in keeping down their costs and will reduce the disproportionate impact of their costs on those who face the claims. At the moment, a claimant has no interest at all in tackling mounting levels of costs. The costs that losing parties must pay can comprise their own legal costs and the winning party's basic legal costs. That much is reasonable and applies generally in civil litigation. However, under CFAs the losing party also has to pay the winning lawyer's success fee of up to 100 per cent of the base costs, as well as the ““after the event”” insurance premium that can be very substantial, as we heard from my noble friend Lord Thomas. That is why a losing defendant in a CFA case can expect to pay more than double the legal costs of a defendant in a non-CFA funded case. This in turn can put CFA-funded parties at a significant disadvantage over those whose cases are funded by other means.