Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I apologise for missing the first few minutes of this debate. The debate I listened to earlier on Clause 43 showed that there is a great deal of feeling about an injustice being perpetrated here in all forms of the use of no win, no cost. I have been in an interesting situation that I would like to relate to noble Lords as an example of what can happen under these new changes. At Second Reading, I made it clear that I thought this Bill moved power and resources to the wealthy and more powerful and away from the individual, and that the individual was going to be the victim because they were seeking legal redress. These amendments will make it much more difficult to achieve that. It is really about strengthening the more powerful in our society, particularly in regard to individuals and the press. The evidence is clear in the many examples. They do this by changing the rules of no win, no cost under the 1999 Act and other legislation. Under this Bill, the cost of the insurance to take out these cases and, indeed, the changes in the risk payments, will transfer not from the loser, but from the one who has won the case. If you win the case, you are still going to pay a penalty. In looking at the circumstances—and I shall refer to my court case on telephone hacking—one can see the fundamental difference. I am talking about individuals who see their rights being breached by the media. For example, under the system we have at the moment, I was awarded £40,000 damages. My solicitor’s costs were about £80,000. That means that I got £40,000, my solicitor got £80,000 and the insurance and the risk were included in that. What we are proposing now is to limit the amount of money paid to lawyers for the risk factor—I shall not go into all the arguments that have been made here—which is how they secure more money to take on more risky cases for more people to get access under this no win, no cost situation. In my mind, that is straightforward. The damages come to me, they are mine. The lawyers get their full costs. Who carries all these costs? The people who lost the case, the ones who have been phone hacking, who have been breaking the law, which we are all aware of, and who have even been paying the police. In those circumstances, why should they not pay the full penalty? I understand that they quote the Mirror Group case at the European Court of Human Rights. In that case, the costs were high. Why? It has always been the practice of the press to fight until the last minute. If anybody wishes to pursue them with no win, no fee, they say, ““Sue us””. You may well have a case, but they will make you sell your house and everything else before you have sufficient resources. At the end, when you have done all that, they say, ““Okay. We’ll concede the case””, and they will offer you some kind of damages. That is the pressure that puts costs up in the courts in these cases. What would have been the effect if I had pursued my case under these new rules? Believe me, this press is not going to go away; it is still going to be committing the same offences. We have a PCC that is particularly useless and will continue to be unless we make fundamental changes. Anyone listening to the Leveson inquiry must hear that the press has not changed its mind; it is still going to go ahead and do the same things because that is how it sells newspapers. Let us assume I have a complaint of a similar nature against the press. This would mean that I would have to get a no-win, no-fee situation. Given that they have already reduced the risk costs, it is highly unlikely that they may find this a risky situation. In fact, when I was complaining in this House and elsewhere about what the press was doing about phone hacking and about Murdoch, I was almost a lonely voice. I do not think that will go away but if you reduce the risk costs, those lawyers will say, ““This is a big risk, I am not going to take the case””. You will be on your own to see if you can pursue it. Let us say you find a lawyer who is prepared to do that; they will sue for damages and make the claim. Taking my case, let us even assume that the lawyer is successful, after those difficulties, and that damages are awarded to me. Under these new rules, I will have to carry the insurance cost and the risk cost, given that the difference is limited to 110 per cent. If that is the case, I will be the one who is penalised. I worked out what the costs were under this formula. It would mean that nearly all my damages would have gone in paying the costs that I am expected to pay if I win the case, and the people who have their costs reduced are the people I am suing, even though they have admitted they are wrong. Therefore, the one who has actually won the case is worse off. They would take nearly the £40,000—I have looked at these figures and that is the possibility. Does that strengthen the individual or does it strengthen the more powerful party in this unequal relationship? Indeed, this clearly shows that the latter is the case. A survey has just come out—I do not know whether Members have seen it—of 16 press organisations. It was conducted by the Ministry of Justice. Question 1 was: "““Do you agree that CFA success fees should not longer be recoverable from the losing party in any case?””." The answer was: "““Yes, for the reasons set out in the response enclosed. UK law also needs to be amended to comply with Article 10 of the European Convention on Human Rights””—" and that is quite apart from being shattered from our people claiming the human rights when they are spending most of the time trying to defeat it. But the point is that there are 16 identical replies—every one of the replies from television, radio, the Guardian, the Mail, Sky, BBC, was exactly the same, to all 60 questions. All of a sudden, when they are usually divided about many issues, when it comes down to money, all 60 answers are that they should keep their position. Even the good old liberal Guardian sided with Dacre, for God’s sake—that takes a bit of thinking about. They are now agreed that they should be able to keep more of their money, even though they are the ones that transgressed in this situation. For those 16 to get together—some lawyer has written the answer to every one of them. If a trade union did that, we would be in trouble. It would be all over the front pages: ““60 identical replies, it must be a conspiracy””. Of course it is a damn conspiracy. That they have come together in this survey to give exactly the same answers is perhaps not a crime, but it is near to it. They have the power for to do it. It is not new to me. When I was in the other place, they made exactly the same request to the Labour Government. The Labour Government did not agree— there was a bit of quibbling around at times but I will not go into that—and the change was prevented. We explained that it would reduce the possibility of people taking cases, it was putting the burden on the most vulnerable individual and reducing the burden on the press. That is totally unacceptable, so we rejected the change. Why have this Government come along and said, ““Now we are going to give permission””? They must have in the records the reason why we refused it—they are always exploring our past records. They believe that we should shift the power to the more powerful group and reduce the individual’s rights in these circumstances. That is unacceptable. You may think that the press has changed, but I do not and so we will wait and see. I have been a victim of many of its attacks, and I live with that. I have an example of a political action in the past week by the Daily Telegraph. I announced that I might stand for the job of police and crime commissioner and I got a full page on that in the Telegraph. What worried me was that it used as evidence all personal facts. When I got on to the paper and asked, ““Where did you get that information, because it is lies?””, I was told, ““We got it from Wikipedia””. It did not even ask a question; it just pumped it out. Why? Because it was a political action to attack somebody from another political party for decisions they have made. I have an action for a judicial review. What would happen now with judicial review? I get no-win, no-fee; it helps me to take against the police. You can hardly argue that it is not a public interest. They have not carried out their jobs and I hope that shortly they will make an apology for that, but I could not have won that without no-win, no-fee. That is the reality of it. If that is removed, how would you take an action on judicial review? What I also find offensive is that I will be told I should not have the assistance but the Metropolitan Police will use all the money in its accounts employing the best barristers to take me on—and that is taxpayers’ money—while I am told as an individual that I cannot have that right. That is what this Bill is going to do. It will make it more difficult to say to the Metropolitan Police, ““You have got it wrong””—and I hope shortly that will come out. The whole point of this is that we are shifting power from the vulnerable to the powerful. We are shifting the cost and putting it onto the more vulnerable. This is what these amendments are opposing. At Second Reading, the noble Lord, Lord McNally, said this was a radical shift. Well, it is, but I did not think it was as radical as I now understand it to be. It is a radical shift away from the weak and to the strong, and it is going to make it more difficult, particularly in these media applications. This Bill is not about better civil justice, it is about disadvantaging the vulnerable. That is what we should not accept and that is why we are moving these amendments.