Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I rise in support of my noble friend Lord Thomas of Gresford’s amendment with considerable diffidence, as a layman tiptoeing for the first time into consideration of this legislation. As the noble Lord, Lord Davies of Stamford, has already reminded the Committee, the context is the further constriction of legal aid. I think the concern of all lay people, as well as practitioners, must be that this will in some way inhibit people’s access to justice unless they fall within narrow categories. I do not wish to detain the Committee at length on personal cases, but I first had experience of this—as typically happens, by chance—in relation to a personal injury claim involving a member of my family, which took place in the 1970s. As it happened to take place on a British-registered ship, which was at that time within United States territorial waters, it gave rise to a certain interest in the forum. At that time there were no contingency fee arrangements at all within the United Kingdom. However, as it was possible to bring litigation within the United States, I was able to avail myself of such an arrangement. I will say no more about it other than that it did provide an opportunity that would otherwise not have been available to me. Nobody wishes to make it impossible for individuals to pursue their personal injury claims or indeed for small and medium-sized enterprises to have redress for their commercial disputes with large multinational or well-funded companies or bodies. However, it has become clear recently that third-party litigation funding was growing in potential and was a growing practice—and, potentially, a growing problem across virtually all developed countries, broadly simultaneously. I have sought to inquire further into this by means of Parliamentary Question. I go along with my noble friend who moved this amendment very much in the spirit of inquiry to try to focus on the issue and see that it is properly handled. However, I am a little less optimistic than the noble Lord, Lord Davies of Stamford, as to whether arrangements that are based on transparency and the market solution will in fact work to the wishes of the public at large. It seems that we need a fairly robust code. My noble friend has sketched such a code to manage this, with further details to be supplied in due course by the Lord Chancellor. Those who are practitioners in the field will accept that there has to be some boundary to it. My concerns are threefold. First—and my noble friend has already referred to this—the potential for conflicts of interest can be pretty explicit in the arrangements, where it may be in the interests of the funder to stop the case but not in the interests of the litigant. Secondly, there is the question of transparency. I do not spend my life reading court reports, but they have the names of counsel, the instructing solicitor and, obviously, the parties, so you do broadly know what is going on. However, in cases where people are operating behind that, with arrangements that are being concluded privately, it becomes less clear what is happening. Thirdly—and I confess considerable distaste for the potential here—one can imagine a situation where it is not merely a matter of somebody taking on a particular venture but where these claims are warehoused, securitised or packaged in a bundle and sold on to third parties who have no interest in the interests of the litigant and probably no knowledge of who they are. It might simply become a kind of impersonal transaction. I feel myself very uncomfortable with that. If I go no further than members of my family who, unlike myself, happen to be lawyers, there is a certain resonance—even if they are not specialists in this area—in the concepts of maintenance and champerty. Those are enshrined in our traditions for a very good reason. We do not want to have a purely commercial interface in these matters. On the other hand, we do not want to stop access to justice or stop perfectly reasonable and above-board arrangements by responsible people operating within a framework. I feel a welling-up of some disquiet in this area. I have a feeling that we need to set boundaries on it and a fear that there might be potential for some hard case or scandal that would excite public interest—and the public would then ask how we had slept on this. I look forward to the Minister’s reassurance that the Government are on the case and that it will be sensibly—not restrictively but properly—regulated and observed.