Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, the noble Lord, Lord Hunt, has signified his support for the Government, but he is the only member of your Lordships’ House who has done so in respect of these amendments. We have had some powerful speeches from a variety of people with an interest in and experience of litigation of this kind: distinguished lawyers such as the noble Lords, Lord Pannick and Lord Elystan-Morgan; people with direct experience of the shop floor, such as the noble Lord, Lord Martin; people with a lifetime in the trade union movement, assisting members and no doubt helping them to make their legitimate claims for compensation and advice, such as the noble Lords, Lord Collins and Lord Monks; and the noble Lord, Lord Alton, with his extensive experience of the voluntary sector. They have all made a very clear case for exempting trade unions and charities from the restrictions of this Bill. We agree that there is a problem with the referral of claims and the industry that has grown up around them. That is commercial exploitation, which may well lead to expectations being aroused and cases perhaps being brought that should not be brought. That is why we support the thrust of the Government’s proposals. However, the Government and the noble Lord appear to be comfortable with third-party funding of litigation—subject, as we have heard and discussed in a previous debate, to possible regulation—but not at all comfortable with an arrangement by trade unions or charities for a referral fee for passing instructions, and no doubt assistance as well, to solicitors that they are recommending on behalf of their members. There is an element of quality assurance in that too. I do not understand, in this context, what the evil is that the Government’s proposals on referral fees are supposed to be curing. Who loses by the process that is being advocated in these amendments by those who support them? Where is the loss? There is no loss to the public purse, the insurance industry or defendants. There is no loser. It is not at all analogous to the commercial exploitation about which we spoke. This curious matter, to which I referred in moving the amendments in the first place and which I will take a little further now, arises under Clause 54(8) of the Bill, which provides that: "““Payment includes any form of consideration (but does not include the provision of hospitality that is reasonable in the circumstances)””." You can take somebody for a drink but you cannot provide any other service. Page 47 of the Explanatory Notes says: "““Subsection (8) provides that a referral fee can be any form of consideration (which would include, for example, an offer by a solicitor to take on other work at a reduced rate or for no payment at all), other than normal hospitality””." As part of my firm’s relationships with trade union clients, I used to offer a free will to a client for whom we acted after being referred to us by a trade union. We would offer free initial advice about other matters not connected with their personal injury claim, such as a matrimonial, employment or even a criminal matter. All of that would be caught by the Bill as it stands and as set out in these explanatory notes. Perhaps I am being naive, but I cannot believe that the Government really intended those consequences, even though they appear to flow from the Bill as drafted. It means that the expectation that has developed over many years between trade unions and their solicitors—and I dare say the same applies to charities and the solicitors that they recommend as well—that a service would be offered, either free or at a lower charge than might otherwise have been the case because of that connection, would be prohibited by law. That would be the consequence of this Bill. I do not know whether the noble Lord has addressed his mind to that. I would not be surprised if it has not occurred to him, given all the other matters he has to address. However, I would urge him to look again at that aspect even if he is reluctant to look at the other aspects, to which we will undoubtedly have to return on Report. What is being suggested here is a gross interference with a relationship of many years’ standing, covering both the categories of organisation we have talked about. With all respect to the Minister, I do not understand—