Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I reassure the noble Lord, Lord Newton, that this is a group of probing amendments to see which, if any, the Government might feel on reflection ought to be accepted and the scope of the current scheme in effect retained. Clearly, the answer has not been one to encourage optimism on this side of the House, but there are cases, particularly the last one to which the noble and learned Lord referred, where the Government are trying, as so often, to have it both ways. In previous debates we have heard trade unions invoked as a source of advice and support for their members once legal aid goes. This is an area in which trade unions have for a long time been active in promoting the interests of their members. They will now lose that benefit. In my view, there is a strong case for the Government to look again at the position. I accept that they want organisations such as trade unions to support their members in the field of legal advice, but if so, they ought to endeavour to facilitate that, not at the Government's expense but by retaining success fees and the self-insurance element that the noble and learned Lord proposes to remove. Asbestosis is probably the most acute of the diseases involved, and when we will come to a debate on it I will strongly support the noble Lord, Lord Alton. It is sometimes forgotten that it is not just direct exposure to asbestos that causes problems and has resulted in litigation but indirect exposure. There have been cases in which wives dealing with laundry and clothes that have been contaminated with asbestos fibres have themselves suffered injury. They have eventually succeeded in obtaining compensation, but that is an illustration of the kind of difficulty and complexity that can arise. There may well be other cases. Every few years, a new condition reaches the courts. Asbestosis was one; miners’ lung disease, pneumoconiosis, was another; and there are others. Although it is certainly true that, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, some lawyers rather exploited the position in some of those cases involving minters, on the other hand many lawyers took these cases on over a very long period at considerable risk to themselves before obtaining settlements. That eventually led to the sensible outcome of a national scheme that determined a scale of damages and, for that matter, the scale of costs. There will be other cases. One imagines that cases may arise over time in the nuclear industry. There have already been some in which radiation has caused damage. I hope that at the very least the Government will look at those cases sympathetically. The noble and learned Lord referred again to the number of cases that are being pursued. However, I remind him of the figures that I quoted in the first debate: the very detailed analysis of 69,000 cases showed that a third would simply not have been brought under the proposals presently in the Bill. A significant proportion of cases would therefore be pursued, many of them no doubt successfully although others not. If we are still in the business of trying to promote access to justice by spreading the risk so that it is not always against lawyers’ interests to run cases with a lesser probability of success, that is something that the system should encourage. The fear is certainly that cases with less than a 75 per cent chance of success will just not reach the courts. A very respected firm, Thompsons, which acts for a number of trade unions, indicates that at the moment it takes cases with a risk level as low as 50 per cent, and it cannot see how it could conceivably do that in the future. Yet some of the very cases that we have been talking about involving asbestosis, pneumoconiosis and so on started off with a probable success rate of 50 per cent at best and arguably even worse. If we are not to close the door on emerging cases of that kind or on cases with perhaps a two-thirds chance of success, we have to have a balance to which success fees can contribute. The Opposition’s case is that that ought not to be simply a matter for successful defendants; it ought to be a collective insurance risk. That is the position that we seek to get to.