House of Lords
(12 years, 11 months ago)
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Leave of Absence
(12 years, 11 months ago)
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The Lord Speaker (Baroness D'Souza)
My Lords, the Conference of Speakers and Presiding Officers of the Commonwealth will be held in Trinidad and Tobago in January 2012. Accordingly, I seek leave of absence from your Lordships' House on 10 January.
Economy: Private Capital Investment
(12 years, 11 months ago)
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Lord Empey
To ask Her Majesty’s Government what additional fiscal measures they will take to encourage private capital to invest in manufacturing or tradable services in the United Kingdom.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, the Autumn Statement announced several measures which encourage private capital investment: an above-the-line research and development tax credit from 2013, ensuring that the relief continues to attract large-scale investment in innovation; 100 per cent capital allowances for six enterprise zones; and a new seed enterprise investment scheme in 2012 to help early-stage companies. The draft Finance Bill also set out further steps in wider corporation tax reform.
Lord Empey
I am sure that the Minister will agree that the best way of achieving long-term financial and strategic security for the United Kingdom is to strengthen our international trading position. A significant increase in our manufacturing capability is one of the best ways of achieving this. Can the Minister tell the House whether the Government have any plans to offer increased fiscal incentives to encourage businesses, especially SMEs, to invest in R&D spending? Can he further advise whether any additional fiscal incentives are being considered that will create sufficient confidence in the private sector to boost investment in manufacturing?
Lord Sassoon
My Lords, the first thing to remind the House is that the changes already made in corporation tax and the capital allowance regime will in total, in 2015, contribute an extra £700 million in reduced taxes to the manufacturing sector. For example, £1 billion of R&D relief was claimed in 2009-10, including by 7,400 SMEs. So this Government are indeed taking considerable targeted action to support our manufacturers, including SMEs, whether by way of encouraging R&D or through other aspects of the corporation tax regime.
Lord Barnett
My Lords, the Question asked what additional facilities the Government have provided. In practice, would the Minister agree that there are no additional facilities outside the deficit reduction plan? Indeed, the measures that he has already mentioned were well taken care of when the OBR reported that growth will be down to 0.7 per cent, which is hardly helping. In the light of the current economic situation, will the Government consider real, additional facilities outside the deficit reduction plan?
Lord Sassoon
My Lords, to be clear, the three measures that I mentioned in my opening Answer were indeed new and additional measures, the costings of which are given in the Autumn Statement.
Lord Lawson of Blaby
Does my noble friend expect that the important changes in the relationship with the Royal Bank of Scotland that the Chancellor of the Exchequer announced yesterday might lead to more lending by the Royal Bank of Scotland to small and medium-sized enterprises?
Lord Sassoon
My Lords, that is a very interesting question. The board of RBS has made it clear that it is going to concentrate its business on its corporate and personal banking and therefore, certainly relative to its total business, it will indeed achieve that.
Lord Anderson of Swansea
My Lords, will the new enterprise zones be wholly or mainly limited to the manufacturing sector?
Lord Sassoon
My Lords, the enterprise zones are not limited to any particular sector.
Baroness Kramer
My Lords, the Minister will be aware that the banking industry is not serving this aspect of investment particularly well and that barriers to entry are limiting new banks. Is he therefore observing the growth of peer-to-peer lending and will he give us some assurance that those new lenders entering the market will be appropriately regulated but not to the point of being stifled?
Lord Sassoon
My Lords, we are very interested in anything that keeps credit flowing. However, although my noble friend is very good at reminding us of that issue, we are getting a bit far away from fiscal measures.
Lord Eatwell
My Lords, I am sure that the Minister will agree with the noble Lord, Lord Empey, that, however low interest rates may be and whatever fiscal incentives may be in place, ultimately investment is determined by business confidence. Is he aware that the Institute of Chartered Accountants in England and Wales produces an index of business confidence? In its latest report, it says:
“The Confidence Index has suffered its largest quarterly decline since the survey began”.
The survey began in 2004. Is it not clear that the destruction of business confidence is the main outcome of the Government’s economic policies?
Lord Sassoon
My Lords, the best measure of the expected effects of the fiscal measures that I outlined in my first Answer is what business organisations have had to say. For example, the EEF, the engineering employers organisation, has said that the R&D tax credit,
“will send a powerful signal that government intends to make the UK the number one choice for R&D investment and is another step on the road to making the UK the most competitive tax system in the G20”.
I could give the noble Lord similar quotes from the CBI and others.
Baroness Wheatcroft
My Lords, large companies are sitting on almost unprecedented amounts of cash rather than investing it. Would the Minister consider means of encouraging those companies to invest in smaller companies and nurture them?
Lord Sassoon
My Lords, we are always open to new and imaginative suggestions. Large companies have been talking to us positively about how to develop the supply chain and encourage their smaller suppliers.
Lord Brookman
As one of those turkeys not voting for Christmas, I ask the Minister to put to bed for ever a comment made to me some years ago. I come from manufacturing, as many of us on these Benches do, but I was told that it was dead and we were going to sustain our future by banking, the service sector and finance. Will the Minister confirm that manufacturing has a future in this country?
Lord Sassoon
Indeed, and I am very happy to say it and say it again. We have a manufacturing sector in the UK that is close in size to that of France. We have exporters that have grown their exports by 15 per cent since the election. Manufacturing and exporting are alive and well in this country.
Justice: Personal Injury Cases
(12 years, 11 months ago)
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Lord Hoyle
To ask Her Majesty’s Government why they are proposing that personal injury claimants pay part of their legal costs.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the Government are reforming no-win no-fee conditional fee arrangements to return them to the basis on which they were first introduced in the 1990s. CFAs worked well then, and personal injury claimants were liable to contribute to their lawyer’s success fee if the lawyer charged one. However, CFA claimants no longer have an interest in the costs run up on their behalf. Our reforms will bring proportion to civil litigation costs while preserving access to justice.
Lord Hoyle
Does the Minister not understand that many people who have suffered serious and maybe life-threatening injuries will be deterred from seeking compensation? Far from saving £50 million, as has been suggested, recent Parliamentary Answers have shown that this measure will cost the Government over £100 million, which comprises legal fees, additional compensation and loss of income from recovered treatment fees from insurers? This is a folly. It will deter ordinary people from going forward to seek the compensation that is due to them.
Lord Wallace of Tankerness
My Lords, the Government do not accept that the measure will deter people from coming forward. As I indicated, the reforms brought in by my noble and learned friend Lord Mackay of Clashfern in the 1990s, which introduced the no-win no-fee conditional fee agreements, allowed people suffering from personal injuries to come forward and pursue their claims. We are not satisfied that at present there is a proper proportion with regard to the amount of fees charged, particularly where the claimant has no interest in ensuring that they are kept within modest means. The system has got out of proportion; our reforms seek to bring it back into proportion.
Baroness O'Loan
Is the Minister satisfied that there will be equality of access to justice for the very poorest victims of clinical negligence in circumstances in which they must bring their action against public authorities, whose defence will be funded by the state?
Lord Wallace of Tankerness
My Lords, I perfectly recognise that the issue of clinical negligence is one that many Members of your Lordships’ House raised during Second Reading, and I am sure that it will be fully debated when we reach the relevant stage in Committee. We say that “after the event” insurance premiums should be allowable in cases of clinical negligence. Indeed, we are seeking through the NHS and those who represent claimants to try to ensure that, where there can be joint reports and better agreements between the two sides, that should be done. I hope that we can make progress on that but no doubt it will be fully debated in the weeks to come.
Baroness Turner of Camden
Does not the Minister think it very unfair that somebody who has been injured through somebody else’s fault, and is suing on the basis that someone else is at fault, should lose some of their compensation even though it is not their fault?
Lord Wallace of Tankerness
My Lords, success fees are intended to cover the risk of not winning and the lawyers not being paid. In many cases where there is personal injury there is a very low risk of that happening. Indeed, it begs the question whether it is necessary for solicitors to charge success fees at all in these situations. However, as my noble friend Lord Gold pointed out at Second Reading, claimants who fund themselves often do not receive the full amount of their compensation. It seems rather odd, to put it mildly, that those who are funded by the taxpayer should get the full amount back but those who fund themselves do not recover the full amount of their compensation.
Lord Faulks
My Lords, I understand that there is an intention to bring in damages-based agreements whereby a claimant will have to pay some of their costs out of the damages they receive. The compensation factor is that there will be a 10 per cent increase in general damages for pain and suffering and loss of amenity, which is currently assessed by judges on an ad hoc basis and according to the Judicial Studies Board guidelines. However, bereavement damages have long troubled people as being far too low. They are £11,800, which can be split between all those who are bereaved as a result of an accident. Do the Government have any plans to increase the size of bereavement awards, particularly in view of the fact that other awards may be increased by 10 per cent under the new regime?
Lord Wallace of Tankerness
My Lords, my noble friend raises the important point about damages in respect of bereavement. As he noted in his question, conventionally these matters have been dealt with by the judiciary. Certainly, the proposed 10 per cent increase will be taken forward by the senior judiciary. I will ensure that the important point my noble friend makes regarding damages for bereavement is drawn to its attention.
Lord Thomas of Gresford
My Lords, the Minister will know that the NHSLA—that is, the legal arm of the NHS—opposes these changes and desired that legal aid should continue in clinical negligence cases. That was its answer to the consultation process. What is its current position?
Lord Wallace of Tankerness
My Lords, I am not aware that it has made any further pronouncements on the matter. However, the Government believe that a conditional fee arrangement backed by ATE insurance will ensure that the vast majority of clinical negligence claims will be able to be investigated and that the ATE insurance market will adapt to the new arrangements. It is also important to point out that in Clause 9 of the Bill there is an exceptional funding scheme, which may well be relevant in profoundly serious cases where clinical negligence arises. However, I am sure that my noble friend will make a contribution on these matters when this is debated, I hope next month.
Baroness Seccombe
My Lords, does my noble friend agree that people in minor accidents are sometimes encouraged to find that they have whiplash, which encourages a lawyer to say that they must be legally represented?
Lord Wallace of Tankerness
My Lords, I made the point earlier that there is little or no risk involved in many cases, but I also think—and this relates to my noble friend’s point—that some cases in which a claimant is funding their own legal costs may well never come to court, whereas if all their fees are paid for them it may be easier to pursue the claim.
Cyprus: EU Presidency
(12 years, 11 months ago)
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Lord Maginnis of Drumglass
To ask Her Majesty’s Government what they consider will be the longer-term effect of the Republic of Cyprus assuming the presidency of the European Union in July 2012.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, we are confident that the Republic of Cyprus will carry out its presidency responsibilities as defined by the Treaty on European Union. It is for the Government of the Republic of Cyprus to set the objectives for its presidency of the European Union from July to December 2012.
Lord Maginnis of Drumglass
However, my Lords, have Her Majesty’s Government considered the consequences for the United Kingdom when it endorses an EU presidency by a bankrupt nation that has for 40 years maintained a dishonest and discriminating policy towards Turkish Cypriots and has survived under a leadership that has recently been defined by 90 per cent of its own people—Greek Cypriots—as corrupt? What will that say about our national values?
Lord Howell of Guildford
I think the whole House recognises that criticisms can be levelled at a number of countries, including the Republic of Cyprus, which, in the list I have here, comes 30th out of 191 countries in Transparency International’s examinations of levels of corruption, and comes 16th out of 30 countries in the European Union. There is obviously a problem there which I think is recognised in the republic itself. As to the future presidency, it is our hope that there will be decisive progress in the coming months towards a settlement that everyone in the north, Turkey, Greece, the Republic of Cyprus and indeed this country desires. If we can move forward in that way, everyone benefits.
Baroness Hussein-Ece
My Lords, I declare an interest in that I have just returned from a visit to Cyprus that was funded by the north Cypriot Government. Is the Minister aware that the Turkish Cypriot north set up and established the Immovable Property Commission in 2006, thus allowing mainly Greek Cypriots to get compensation for properties that they had lost? To date, the commission has received 2,629 applications and has paid out more than £63 million. As the Minister will know, this has been ratified by the European Court of Human Rights. Are Her Majesty’s Government aware that no such local remedy is available for Turkish Cypriots to claim for properties they have lost? Hundreds of people have had to go to the European Court of Human Rights to claim their compensation. Is this acceptable for an EU country that is about to take over the presidency of the EU? Should it not set an example?
Lord Howell of Guildford
We want to see progress on all sides on this vexed question of property. The commission that my noble friend mentions is making a positive contribution. Ultimately, we believe that the whole property issue can be solved only as part of a comprehensive settlement. We certainly support any efforts to resolve the issue, whether in the north or in the republic. I cannot say more than that at the moment.
Lord Harrison
My Lords, I, too, declare a pecuniary interest as having returned from northern Cyprus on a visit sponsored by its Government. Does the Minister recall a Question that I laid earlier when I asked the British Government to use their best interests to bring together both sides so that the presidency will bring renown to the island of Cyprus and to its two peoples? Unfortunately, there is little working together for a common purpose, as was demonstrated during our visit.
Lord Howell of Guildford
I do indeed recall the noble Lord’s earlier Question in which he rightly expressed the hope, which we frankly all share, for decisive progress. The next meeting in the UN process under the Secretary-General of the United Nations takes place at the end of January, and we all hope for further progress. At the latest meeting, the stance was not totally negative but there was not much progress, and we hope that they will do better this time. The gains for all sides from a successful advance in the UN process are so enormous that one longs to see it move forward, but so far, I am afraid, we have been disappointed.
Lord Hannay of Chiswick
My Lords, perhaps the Minister will forgive me if I take the opportunity to wish the noble and learned Lord, Lord Howe of Aberavon, a happy birthday, he having been a Foreign Secretary who worked tirelessly for a solution of the Cyprus problem. Does the Minister agree that it would be rather useful if the Governments of both Cyprus and Turkey reconsidered their attitude towards each other? The petulance with which the Government of Turkey are approaching the Cyprus presidency would seem to be barely fitting for a rising nation of great importance to us. As for the Government of Cyprus, their blocking Turkey joining the EU to work on measures against Syria and their blocking of many of the chapters of Turkey's accession is entirely counterproductive for their own interests. Would not some reconsideration by both sides of their attitude towards each other be in order?
Lord Howell of Guildford
First, I warmly endorse the noble Lord’s wishes for the happy birthday of my noble and learned friend Lord Howe of Aberavon. I think I can speak on behalf of Her Majesty's Government in presenting those congratulations to him on his 86th birthday. That is terrific.
As to the broader points made by the noble Lord, Lord Hannay, he himself has played a significant part in trying to get the parties to take a more reasonable attitude to each other. He is right: the compromise that will emerge from the end of Cyprus’s tribulations can be achieved only if there is a more giving and revised attitude on both sides. Very hard lines have been taken up. There has to be compromise, there has to be movement, there has to be some revision of views between the two sides. Then we will make progress. What the noble Lord says must be right, and we have to work for it.
Lord West of Spithead
My Lords, can the Minister confirm that there is no intention to change the status of the sovereign base areas in Cyprus or the military facilities there?
Lord Howell of Guildford
I can confirm that. As the noble Lord knows, there was a recent review of the sovereign bases. A Statement was made to Parliament indicating that the review has been completed. It has not been fully published, but its broad conclusions are established, which are that the bases are vital and will certainly continue. There was, of course, already the view that in the event of a settlement and the unity of Cyprus, 50 per cent of the sovereign base area would be part of the settlement and would be available to help it. Generally, the commitment is as firm as it has always been that the sovereign bases are important and will remain.
Lord Pearson of Rannoch
My Lords, on the other hand, can we not look forward to a happy and fruitful presidency of Cyprus, which after all shares so many of its attributes with the bloated Commission in Brussels?
Lord Howell of Guildford
The noble Lord is tempting me into wider issues and debates, which I will vigorously resist.
Bovine Tuberculosis
(12 years, 11 months ago)
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Lord Krebs
To ask Her Majesty’s Government what scientific evidence they have used in developing their proposals for controlling bovine tuberculosis by culling badgers.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)
My Lords, evidence of the effect of badger culling on bovine TB incidence rates comes principally from the randomised badger culling trial. The scientific evidence from the trial suggests that proactive badger culling, done on a sufficient geographical scale in a widespread, co-ordinated and efficient way and over a sustained period of time of at least four years, will reduce the incidence of bovine TB in cattle in high-incidence areas. It is the Government’s judgment that these results can at least be replicated by a farmer-led cull using controlled shooting. The two pilots will test our assumptions about the effectiveness, humaneness and safety of this method.
Lord Krebs
My Lords, I thank the Minister for that reply. I should declare an interest as the instigator of the randomised badger-culling trial some years ago. I agree with the Minister that sustained, long-term culling could reduce the incidence of TB in cattle by about 16 per cent, but can he help me with two questions which are puzzling me concerning the Secretary of State’s announcement last week in another place? First, this pilot involves two areas. As a scientist, I know of no statistical technique for analysing the results from a trial involving just two areas, so perhaps the Minister could enlighten me on that point. Secondly, the Secretary of State referred to a wider rollout depending on the results of the pilot. Does that mean that the Government would consider rolling out this shooting policy to the 39,000 square kilometres of the English countryside affected by bovine TB, with the implication that one would end up shooting between a quarter and a third of the UK’s badger population?
Lord Taylor of Holbeach
I am grateful to the noble Lord for that supplementary question, and I acknowledge the authority with which he raises these questions. The purpose of the pilots is to evaluate the effectiveness of the process, rather than to provide a scientific appraisal of the cull, which is designed to last over a four-year period, and I think that the noble Lord will understand that. At the bottom of this is the fact that we are hoping to monitor the humaneness and effectiveness of a shooting policy before we roll it out, and I hope that noble Lords will agree that that is right and proper. It is suggested that the pilots should be held over a series of areas, rather than one complete area, as that would defeat the object of trying to find areas that are viable. The pilots will cover an area of at least 150 square kilometres, perhaps extending to as much as 350 square kilometres.
Lord Walton of Detchant
My Lords, as a young doctor I saw the ravages of bovine tuberculosis, particularly in young children, many of whom suffered spinal tuberculosis with paralysis and infection of long bones. As that type of infection disappeared following the widespread pasteurisation of milk and the screening of cattle herds, is the Minister satisfied that a more extensive badger cull would significantly reduce the potential risk of the spread of this infection into the human population?
Lord Taylor of Holbeach
The answer to the risk of bovine TB being transferred to humans is, as the noble Lord mentioned in his question, the pasteurisation of milk. Milk is pasteurised to make it safe for human consumption. We are concerned about the incidence of the disease, which is crippling for cattle and, of course, for badgers, but I think that I can reassure the noble Lord that the purpose of this programme is not the fear of its transfer to humans.
Lord Strathclyde
My Lords, we have time. Perhaps we may hear from the noble Baroness, Lady Mallalieu.
Baroness Mallalieu
My Lords, is the noble Lord aware of the desperation of my neighbours on Exmoor, most of whom are under a restriction and are losing cattle at every retest? They are frustrated with science because year after year they have been promised that if they will only wait a little longer there will be an effective oral vaccine. They are still being told that. Is the noble Lord also aware of the welcome for the courage that has been shown by the Defra Ministers in this Government in finally starting to tackle this problem?
Lord Taylor of Holbeach
I am very grateful to the noble Baroness for those comments and I shall convey them back to my colleagues. It is correct to say that, in a 12-month period, in some of the worst areas nearly a quarter of cattle herds are under restrictions. Clearly, that cannot be tolerable. It causes immense stress to farmers, particularly in highly infected parts of the country.
Baroness Parminter
My Lords, the estimated costs for policing this eradication programme have risen from £200,000 to £2 million per cull area. What share of those costs will Defra meet with the Home Office and what budget lines will be cut in order to take forward this programme, which may well do more harm than good?
Lord Taylor of Holbeach
I would not agree with my noble friend’s last comments; I think she is misjudging the situation. I think this is a programme that we have to carry forward. Clearly, we have to allow for policing and Defra has agreed to meet half the costs.
Lord Davies of Oldham
My Lords, is the Minister suggesting that this policy is scientifically based and without controversy? Is he not aware that the approach of culling will occasion great consternation among a very large number of people in this country and, therefore, that it is bound to incur costs for the safety and policing of the project?
Lord Taylor of Holbeach
I think it is very much in the interests of this policy that noble Lords should be prepared to recognise the importance of going ahead with it. I cannot agree at all with what the noble Lord has said.
Procedure of the House
(12 years, 11 months ago)
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The Chairman of Committees
To move that the 10th Report from the Select Committee (HL Paper 231) be agreed to.
House Committee
(12 years, 11 months ago)
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The Chairman of Committees
To move that the 2nd Report from the Select Committee on Recovery of money wrongly claimed by Members (HL Paper 238) be agreed to.
The Chairman of Committees (Lord Brabazon of Tara)
My Lords, this is a simple report that we hope will constitute the final element of the House’s response to the expenses scandal. As noble Lords will be aware, the House has already dealt robustly with those Members found to have abused the system of financial support. However, the House Committee felt it important to ensure that any Members who have not repaid the wrongly claimed money are prevented from returning to the House until they have done so. I hope that noble Lords will agree that it would be inappropriate to restore to such Members the privilege of taking part in the important work of this House and the right to claim financial support until they have settled their debts to the public purse in full.
Accordingly, this report proposes that any Member who is found by the House to have wrongly claimed money under the system of financial support but has not repaid all of that money by one month before the end of their suspension from the House should receive a further suspension until the money has been paid in full or until the end of the Parliament, whichever comes first. If the debt were still outstanding at the beginning of the following Parliament, then the House would be invited to approve a further suspension and so on. The suspension of an individual under these provisions would be imposed by the House agreeing a Motion in the name of the Chairman of Committees.
I should just mention the role of the Committee for Privileges and Conduct, which I chair. In its sixth report of this Session, the committee stated that the recovery of debt was not a disciplinary matter and therefore did not come within its remit. The committee went on to say that securing repayment was a matter for the Clerk of the Parliaments, consulting the House Committee which oversees the system of financial support for Members. The Clerk duly consulted the House Committee, which noted that the Committee for Privileges and Conduct had concluded in its 2009 report on the powers of the House as follows:
“The House possesses … an inherent power to discipline its Members; the means by which it chooses to exercise this power falls within the regulation by the House of its own procedures”.
In line with this conclusion, the House Committee is now inviting the House to use its existing powers in a new way. I believe that our proposals are appropriate and I commend them to the House. I beg to move.
Baroness Scotland of Asthal
My Lords, I have to tell the House that I am troubled by the Motion that is presented to the House. I am troubled on two bases.
First, I am unclear as to whether the House intends the Motion to have retrospective effect and thereby to reopen decisions made by this House during 2010. Noble Lords will know that a number of cases were dealt with by the Committee for Privileges and Conduct, whose members at that time included the noble and learned Lords, Lord Mackay of Clashfern, Lord Howe of Aberavon—who sits in his place and whom I, too, wish happy birthday—Lord Scott of Foscote and Lord Irvine of Lairg. The decisions arose out of the complaints made by and against a number of Members of this House during 2009. All those complaints were dealt with under the code of conduct made in the fourth report of Session 2007-08, to which I shall now refer as the report on procedure.
The House knows that there was a broad spectrum of complaints about the way in which expenses were claimed by some Members of this House. Each complaint was dealt with on an individual basis and differently. Some Members were asked to apologise in writing; some were asked to apologise to the House; some were dealt with by the Clerk of the Parliaments; some came before the Committee for Privileges and Conduct sub-committee; some came before the full committee; some were dealt with by the police; and some Members were tried and sent to prison. All those cases were dealt with under the old procedure. The variations in treatment are difficult to explain shortly, but it is unnecessary for me to go through that history because this House decided, I believe properly, to institute a new, clear and transparent system by which Members would be entitled to receive expenses.
Transgression of the new rules should be clearly and robustly dealt with. Therefore, if the House Committee’s recommendation is meant to refer to any future transgression under the new system, I can see the merit of making the position crystal clear to Members as we go forward so that Members will know, if sums are improperly claimed, a Member’s return to the House during that Session of Parliament will not be considered until full repayment has been rendered. There will then be no scope for misunderstanding of the rules. However, if the recommendation is intended to have retrospective effect, I have to confess to your Lordships that I have a problem.
The House will recall that in the hearing before the Committee for Privileges and Conduct, the issue of whether there should be a separate sanction for non-payment of moneys improperly received by a Member under the old system contained in the report on procedure was dealt with. The committee said this at paragraph 56 on page 20—and with the leave of your Lordships I intend to quote it in full:
“As a point of principle, and regardless of the circumstances of the present case, we have decided that the length of suspension should not be determined by reference to the time of repayment. Repayment is not a sanction: it is an act of restitution, the returning of money wrongly claimed and paid. The over-riding priority must be that this money should be returned to the House, and thus to the public purse. Lady Uddin’s appeal makes the point that she does not have the means to pay so large a sum. We are not in a position to comment on her financial circumstances, but it is clear that the sanction recommended by the Sub-Committee risks having the effect of preventing her indefinitely from returning to the House. Not only is there a danger that an ‘indefinite suspension’ could exceed the powers of the House, which are limited to suspension ‘for a defined period not longer than the remainder of the current Parliament’, but there is also a possibility that an indefinite suspension would result in the money never being recovered”.
I believe that the Privileges and Conduct Committee’s analysis was right in law and in principle. The House endorsed its conclusion, which was proper. The decision of the House was then communicated to the parties. It is contained in full in the sixth report of Session 2010-11, published on 21 October last year. Therefore, the House was specifically asked to determine the issue of principle as it related to the old system and came to a definitive view. I would be troubled indeed if, by this Motion, the House purported to resile from this principle on a retrospective basis. In my view, that would be improper.
The issue of whether a further suspension could be imposed in respect of the non-payment of moneys due came before the newly constituted Privileges and Conduct Committee, of which I am now a member. On 31 October this year, the committee was invited by the House Committee to think again and to review the recommendations made by the previous Privileges and Conduct Committee, of which I was not a member. The noble and learned Lords, Lord Mackay of Clashfern and Lord Scott of Foscote, and I all sat on that committee. We found no basis on which we could properly disagree with the previous committee's legal analysis or with the principles enunciated in the report. The Privileges and Conduct Committee specifically includes Members of this House with a legal and judicial background in order to assist the House by making recommendations that are consistent with the rule of law and with fairness.
The second issue that troubles me is whether the House, by using the stratagem of a Motion, intends to circumvent the prohibition that exists in law on suspending a Member of this House permanently. As Members will know, chapter 12.12 of the Companion states:
“The House of Lords does not have the power to suspend a member permanently. A writ of summons, which entitles members of the House to a ‘seat, place and voice’ in Parliament cannot be withheld”.
I respectfully suggest that we should not set ourselves up in opposition to Her Majesty's writ—not least because there is no appeal against our determination. Any suspension imposed by the House can only be temporary and can last only for the duration of one Parliament. I can find no lawful authority that entitles us to act to the contrary. Nor am I aware of any other provision that would enable us so to do.
I am well aware that a sizeable number of Members of your Lordships' House would like the position changed. There is merit in saying that, where a Member has so transgressed as to make it intolerable for them to continue to be a Member of the House, legal provision should be made for their expulsion. But that can be done only by legislation, which we do not currently have.
Therefore, I invite the House to decline to accept the House Committee’s recommendation in its current form. If the House wishes to send a clear signal in the future, and I think that it should, there is force in us so doing. However, this Motion should not have retrospective effect and neither should it apply for more than one Parliament unless and until legislation is passed to enable us lawfully to implement a permanent suspension. Your Lordships know that there is no appeal from this House—none at all, not to the EU, not to our courts. We determine our own procedure, we determine what is right, and therefore a heavy burden is put on us. If we wish to be unfair, unjust or immoderate, we are entitled to be so. I know this House too well to believe that that would ever be our intent, so I invite the House not to make a decision in relation to this Motion and to give the House an opportunity to think again.
Lord Scott of Foscote
My Lords, I declare an interest. I was a member of the Privileges Committee, as the noble and learned Baroness, Lady Scotland, has informed the House. The danger of the proposal currently before the House is that it risks confusing two separate matters. On the one hand, the House needs power to impose appropriate sanctions if Members of the House become convicted of dishonourable behaviour of various sorts. The sanction in those circumstances takes the form of suspension from the House and it is in the nature of a punishment for the conduct that has been found to be proved against the Member of the House in question. However, there is an additional factor, which is the repayment to the House of money that the Member of the House owes and has wrongfully obtained. Of course, those two different purposes may overlap. It may be that the wrongful conduct was the reason why the debt arose in the first place—there is plainly an overlap—but none the less I think it important that the two should be kept separate.
That was not always the case in the law of this country. Many Members of this House will have read, and many who have not will know of, the Dickens novel Little Dorrit, which is based upon the experiences of a family in the Marshalsea prison, the father being there for a debt that he could not repay. That imprisonment could go on, as I recall, indefinitely. Those sad days are now long behind us. People do not get punished for not paying money that they have not got, and this House ought not to reverse that trend by introducing a sanction that can be imposed for failure to repay money that is owing that the individual has not got and cannot repay.
An individual who is found guilty of dishonourable conduct can expect an appropriate sanction to be imposed by the House proportionate to the gravity of the dishonourable conduct. The individual, he or she, who owes money to the House, which may or may not have been associated with the dishonourable conduct, can be expected to be called upon to repay it. If he or she thinks that he or she has not got the financial resources to manage repayment, then the individual can expect to have to make a disclosure of assets to the appropriate accounting officials of the House to demonstrate that that is so and, maybe, to have to submit to questioning so that the official can satisfy himself or herself that that really is so. The individual, the Member of the House, can then expect to have some recommendation perhaps made by the official as to what should be repaid, what instalments perhaps might be appropriate and so on. But if the end result of a full and frank disclosure, and answers to whatever questions may have been put, is that the individual has not got the assets to repay, or to repay more than a moderate amount fixed by the official, I respectfully suggest that that should be an end of any sanction. A person should not be subjected to an additional sanction that is not available to be imposed on those with the money to discharge their debts if he or she simply cannot afford to pay and does not have the money to discharge.
I believe that the proposal before the House confuses those two separate matters. I, too, would oppose it.
Lord Lloyd of Berwick
My Lords, I support the two speeches that have just been made. I have no worry about those who could pay but have not done so and I support the proposals in the report so far as they go in that regard. But I am concerned about those who are or may become insolvent. It has always been a principle of insolvency law that a person should in due course be able to get his discharge. Thereafter, he is entitled to retain his personal earnings because he must be allowed to support himself and his family. That principle was established in 1872 by Mr Justice Vaughan Williams in the case of Hawkins. I am concerned that the indefinite suspension, which may well be the result of what is before the House, would be against that basic principle of insolvency law.
Lord Hamilton of Epsom
My Lords, I take a certain amount of issue with the noble and learned Baroness, Lady Scotland. We are not here in a court of law. We are a self-regulating House and we have the reputation of this House to worry about. There seems to be great concern about whether the noble Baroness, Lady Uddin, has the means to repay the amount of money which she seems to have fraudulently claimed. But have we looked into the circumstances of the noble Baroness? I gather that she owns her own house in London. Could she not mortgage that house and repay in that way, or could she not even sell it and buy a smaller one? It strikes me that we are rather taking her at her own word that she is unable to repay this amount of money.
We have the reputation of this House to consider very deeply. If we were to invite her back while enormous sums of taxpayers’ money were still owing, I do not think that the British public would understand that in any way whatever.
Baroness Farrington of Ribbleton
My Lords, from listening very carefully, my understanding is that the issue that my noble and learned friend Lady Scotland raised was not specifically to do with the individual case. It was to do with the process of retrospection and those rules that applied at the time that a decision was taken with regard to a particular case. I have not been in your Lordships’ House as long as many noble Lords but, from listening carefully, particularly to noble and learned Lords over the years, I know that the issue of retrospective legislation of any sort is anathema to most people in your Lordships’ House. I hope that we will not debate this issue with reference to an individual or to whether an individual can or cannot repay. I hope that we will stick entirely to the issue of retrospection.
Lord Pannick
My Lords, I cannot share the view that there is some retrospective element here. It is not retrospective to apply the proposed suspension to noble Lords who were found to have claimed expenses without good cause, and in some cases such as that of the noble Baroness, Lady Uddin, in bad faith, and who were ordered to repay the relevant sums but who have failed to do so. That failure surely entitles the House now to decide what action it is appropriate to take against them. Paragraph 56 of the Privileges Committee report, which the noble and learned Baroness, Lady Scotland, read out, does not address, as I read it, what should happen if the noble Baroness, Lady Uddin, fails to pay up.
On the noble and learned Baroness’s second point, I do not understand this to be a permanent exclusion from the House. The suspension will apply on its terms only for the duration of this Parliament. It will be a matter for the next Parliament to decide whether it is appropriate then to suspend the noble Baroness, Lady Uddin, or any other noble Lord in default if they still have not repaid the relevant sums.
The answer to the point made by the noble and learned Lords, Lord Scott and Lord Lloyd, is surely this: it must be implicit in this report that the relevant committee will have a discretion not to take action if it is persuaded that the noble Lord in question does not have the means available to pay the sum. In my view, there is no unfairness whatever in what has been proposed by the committee.
Lord Baker of Dorking
My Lords, I am grateful to be speaking after the noble Lord, Lord Pannick, because I was about to rise with some temerity to take on three distinguished lawyers in this House. However, having been a member of the House Committee for a number of years, particularly during the period of having to deal with this very shameful episode in our history—let us remember that some Members were claiming money fraudulently—I have to say to the noble and learned Baroness that this was all without precedent both for the Privileges Committee and for the House Committee. We were literally living from day to day without knowing what was going to happen as a result of investigative journalism.
The attitude of the House Committee was incredibly scrupulous during the investigations. We did not take into account the personal circumstances of any of the Members involved, or of their religious and political beliefs. We were indifferent in the old-fashioned use of the word in that we were not careless but we were impartial. As a result, it was very clear that the system had to be changed. We brought in the new system, which I hope will avoid these problems in the future. It was also difficult for us, in investigating these cases, soon to discover that we were not the only people conducting investigations. The police and the Crown Prosecution Service were also involved, so it was a complex procedure. As all noble Lords know, certain evidence was produced and conclusions reached, and certain cases became well known in the press. The Privileges Committee, being the committee that deals with matters of discipline, dealt with these, but again if I may say on a very ad hoc basis. There was little precedent for the decisions that the committee had to make and the amount of suspension that it was prepared to grant.
It fell to us, as the committee responsible for the allowances system in the House, to consider one particular case. It was indeed a difficult matter for us and it was debated at considerable length. The position we reached was that we should establish a principle. I believe that the noble and learned Baroness, Lady Scotland, was saying that she rather agrees with our conclusion but that it should be applied only in the future and not to the past. That is the nub of her argument, which I think has been effectively answered by the noble Lord, Lord Pannick. The principle is simply this: that someone in this House who has fraudulently claimed money on an extensive scale should not be allowed to re-enter this House until that money has been repaid. It is not a question of insolvency, and since there is no insolvency in this matter, insolvency law does not come into it at all. Further, we have to be aware not only of our own reputation in this House and in our debates here but of the wider public interest in this matter.
Let us think about what would happen in the private sector in a similar case. If a senior executive in a large company was discovered to have been fraudulently claiming massive expenses on a regular and practical basis, thus taking money out of the company, he would almost certainly be subject to instant dismissal. If he were not, he would be suspended and the board would examine the case. I am sure that it would then say that the executive could come back to the company but only if he repaid the money first. That is the principle that we are trying to establish, and I must say that it is entirely fair. We have tried to establish this principle irrespective of how it affects individual people. That is a very important point about a principle. A principle must be just that. I think it is a principle that is widely understood by the country, and I commend it to the House.
Baroness Flather
My Lords, I have heard the arguments and I think that I have understood them. As a lay person, it seems to me that if you have no means to pay back money that you have taken fraudulently, it does not excuse you. It does not excuse you in normal life and it should not excuse you in your Lordships’ House. A large amount of money, £125,000, has been taken. It takes a long time to take that much money out of expenses in your Lordships' House. We cannot just overlook that and say, “It’s all right”, because the noble Baroness, Lady Uddin, cannot repay. Well, she can borrow; she can get a loan; she can see where she has money—she has money in Bangladesh; and she should pay back the money to Parliament and then discharge whatever borrowing she has made. You cannot be excused because you are too poor. I am sorry, but I cannot agree with that idea.
Lord Richard
My Lords, the noble Baroness, Lady Flather, has in a sense put her finger on it. We have no procedure in this House for assessing whether someone in these circumstances is capable of repaying. If the noble Baroness, Lady Uddin, cannot in all conscience repay this money because she does not have it, I would not be in favour of penalising her in the way that she is being penalised. If on the other hand she can repay it and is deliberately not doing so, it seems to me that the decision that the House is being asked to make is perfectly proper. There is a gap. We have no procedure for determining what her circumstances are, and it would have to be done in a quasi-judicial way. I wonder whether the way out today, because this is a very troubling matter, is for the Chairman to take the matter back to the committee and see whether we cannot institute some form of sensible procedure for determining the basic question of fact upon which, in the end, this matter depends.
Lord Alderdice
As a member of the committee, I toiled with other members of the committee over this very difficult question, on which it is not easy to become entirely clear. Noble Lords who were on the Privileges Committee have to some extent confused the role that they very properly exercised at that time—exercising discipline in respect of an offence that had happened—with the quite different responsibility of the House Committee to address not a matter from the past but a current problem of continued and ongoing indebtedness to your Lordships' House. Therefore, I agree entirely with the noble Lord, Lord Pannick, that it is not a retrospective matter but a current matter, and that the indebtedness continues. It is not clear whether the person’s failure to repay is intentional or because there were no other possibilities, although I know in my part of the world that it has not been entirely unusual for people to have their fines paid for them, never mind their debts. That is not an area in which we can necessarily get involved.
However, there is a further matter. Comparisons have been made with Dickens and debtors’ prisons and things of the kind. This is not a private club; it is not a company; it is part of the legislature of this country. It is not a right for us to be here; it is a responsibility for us to be here and to fulfil that responsibility on behalf of the country.
I have no doubt in my mind how the country would regard a Member of your Lordships' House who continued not to repay debts that should never have been incurred in the first place. I know what the country would say about speeches, votes, questions and interventions by a noble Lord—indeed, I do not think that people would regard such a person as a noble Lord at all. We have the reputation of your Lordships' House to consider in this matter.
Noble Lords will, I am sure, have read the report and will understand that when the noble and learned Baroness, Lady Scotland, talked about there being no right to permanently suspend a Member, she was of course right. However, the report makes it clear that this can last only until the debt is repaid and until the end of the Parliament. If it is still unpaid in the next Parliament, the next Parliament must then make its decision. This is not permanent; it is dependent on the repayment of a current debt, not the punishment of a past misdeed. Therefore, it is highly unlikely that the House Committee could properly return with anything other than the recommendation that it has thoughtfully made to your Lordships' House today.
Lord Dobbs
My Lords, this should be a day of great joy for me because it is exactly a year ago today that I entered this House, but because of this desperately sad issue there is no joy. I listened closely to what the noble and learned Baroness, Lady Scotland, said. Of course, this is a heavy burden that we undertake, but I cannot agree with her that this is retrospective. When a fine is imposed, it is meant to be repaid. There is an explicit understanding in that. Repaying a fine is not a voluntary gesture.
I hope that the noble and learned Baroness will forgive my impertinence, because she has far greater legal experience than me, when I say that she has made a fundamental error. For all the legal learning, she has construed an argument that would never be accepted by a jury of ordinary men and women. A Peer who had misappropriated public funds and not repaid them is not a victim. He or she cannot expect simply to walk back in as if nothing had happened; £125,000 is not a drop in the ocean, it is a huge figure. How many decades does a state pensioner have to wait until they get anywhere close to that sort of total?
The Chairman of Committees is entirely right. What he proposes is sensible, measured and just. I also happen to believe that it is in the best interests of the noble Baroness, Lady Uddin. I wrote an entirely personal letter to her some time ago, but I thought it appropriate that I should not say anything in public that I would not have said to her directly. I urged her to take into account that if she were to rush back here without having repaid her outstanding dues, she would find herself subject to huge public and press hostility. It would do her and this House only further harm. I have not had a reply and perhaps I should not expect one, but if she would only let it be known to the House that she will not rush back and has no intention of claiming more money, perhaps there would be no need to take the action that we are proposing to take today. However, she has not, so I fear that we must. I hope that she will bear in mind—
Lord Elton
I do hope that your Lordships will stop personalising this case. We are addressing a matter of principle not a particular case.
Lord Dobbs
Indeed, my Lords, but the matter of principle involves individuals. The noble and learned Baroness, Lady Scotland, herself admitted that when she was the first to raise the issue of the noble Baroness, Lady Uddin.
Baroness Scotland of Asthal
Can I make it absolutely clear that the submissions that I made for the House to consider were matters made in relation to law and principle and did not refer to any individual? Indeed, I recited verbatim the paragraph in the Committee for Privileges and Conduct report, which said that the committee was deciding a point of principle and not in relation to any particular Member.
Lord Dobbs
Yes indeed, my Lords, but, if she will forgive me, it was the noble and learned Baroness, Lady Scotland, who first raised the name of the noble Baroness, Lady Uddin, in this debate. It is all very well talking about principle, but we have to be aware of the practical implications of these matters.
I hope that we will all bear in mind that most people beyond Westminster will not be asking themselves why suspended Peers should not be allowed back until they have repaid their debts, but will be asking, simply and bluntly, why they should be allowed back here at all.
I agree with the noble and learned Baroness, Lady Scotland, that, at some point in the near future, we may have to go further in looking at the self-regulatory powers in this House, but we have to deal with the situation as it is today. I know how much care the members of the Committee took, and how much sadness it gave them to come to their conclusion. I can do nothing but commend them for the difficult job that they have done extremely well.
Baroness O'Loan
My Lords, I will make two brief points. First, I support the analysis of the noble Lord, Lord Pannick, of the impact of the report of the House Committee in this case. Secondly, this House is funded by the public purse and our ongoing membership of this House costs the public purse. That is relevant to this debate and the situation in which we find ourselves. It is a matter of the integrity and credibility of the House. We need to consider all factors. It is not a matter of personality; it is a matter of fairness.
Lord Soley
My Lords, I wish to follow up a number of points. First, this is a question of principle. We know about the individual concerned, but it is a question of principle, and if we allow this to go through as we are suggesting today it will apply in other situations. That is problematic. I agree that the image outside is appalling, but, occasionally, you have to look at other, wider issues besides simply responding to what the public image is. Indeed, politics involves people in doing that from time to time.
Secondly, it is important to understand what I think my noble friend Lord Richard has put his finger on. I say this as a non-lawyer. This House is not a court of law. If it was a court of law, this would be a bit easier. I suspect, however, that a court of law would not be able to do what is being recommended today, as it would not have the lawful authority to do so. In effect, this is a retrospective form if not of punishment, at least of an order. I want, therefore, to suggest where that leads us. If we are not a court of law, but we in some way regulate ourselves, as is being suggested—and I understand that and the reasons why—then there is an important fact that we have to bear in mind. If this was a company or organisation outside, when such events happened and a person was disciplined and punished in the way that we are doing, he or she could then go to court if they felt it was unfair for whatever reason. The court would then decide whether that organisation had acted properly. We cannot do that, because nobody can go to court as a result of an unfair punishment from here. They cannot even go to the European court over it, so there is no appeal mechanism.
What would happen if we were a court of law? I assume—and again, I am speaking as non-lawyer—that a decision would be made, and the person concerned, if they felt it was unfair, might at that stage argue their case and so on. If they did not pay, the court would bring them back as it would with a fine that had been imposed, for example, and would either order goods to be possessed or, alternatively and more normally, conduct a means inquiry. As I understand it, although I am not a lawyer, that is where the Charles Dickens case comes from: there was a feeling that you had to inquire into a person’s means to find out whether the non-payment was deliberate or because they could not pay. We do not have a mechanism for doing that. We are trying to behave at one level as though we are a court of law, but then not giving ourselves the powers to do what a court of law would do. We are also saying that we are going to impose this punishment or condition—whatever you wish to call it—on a Member, but that that Member will have no recourse to the law.
I felt very uncomfortable when I began to look at it yesterday, or the day before. We are doing something, as a point of principle, that is deeply undesirable. We have to clarify, in our own minds, that if we are not going to be a court of law—and we cannot be—we need to have a system that follows through; when we impose a punishment or condition, or whatever we call it, we have to have a mechanism for deciding how that is done. We should not do that retrospectively, because a court of law could not do that. I will feel uncomfortable if this House gives itself powers that we do not think a court of law should have; yet does not give itself the power to inquire into means when they are relevant, as in this case. I personally would not support this Motion approving this report as it is today, and I ask the House to consider taking it away and thinking again about this important issue of how, if we are not a court of law, we impose our sanctions; and how we then ensure that the sanction we impose can realistically be delivered, and delivered fairly. That is the issue we have to face. That is the principle—and it even overrides the great public feeling there will be on cases like this.
Lord Filkin
My Lords, I am struggling to understand, let alone have sympathy for, some of the sophistry that is being argued against the House Committee’s report. It seems, I think, to most of us in this House that a wrong has been committed, restitution ought to be possible and the person ought to make restitution. We should not welcome somebody back to this legislature until that has been fulfilled. The House Committee could hardly have brought in any other recommendation than the one it has, and we should support it without further debate.
Lord Hunt of Kings Heath
My Lords, I thank the noble Lord the Chairman of Committees for introducing the report from the House Committee this afternoon. It is with regret that we have to revisit an issue that has done great damage to the reputation of your Lordships’ House in relation to money wrongly claimed under the system of financial support for Members.
The public interest and reputation of Parliament require that these matters are dealt with in as rigorous a way as possible. A number of Members of your Lordships’ House have found themselves subject to investigations—in some cases by the authorities and in some cases by the relevant mechanisms of your Lordships’ House. In a small number of cases Members of this House have been suspended. In two cases, investigation by the authorities has led to prosecution and custodial sentences. The House has had, through a very, very difficult period, to consider the adequacy of its mechanisms. Changes have subsequently been made, both to the system of financial support for Members and to the code of conduct governing membership of your Lordships’ House. I pay tribute to the work of those involved in dealing with these matters. I believe the rules produced and decisions reached were sensible. They are worthwhile provisions and have been of benefit to the House during a very difficult period for Parliament as a whole, including this House.
My noble and learned friend Lady Scotland, with her customary eloquence, has put forward a number of very serious points this afternoon. The noble Lord, Lord Pannick, made the point that suspension of a Member of Parliament from this House under any such Motion would be for the lifetime of the Parliament, and a further Motion would have to be brought at the beginning of the next Parliament. I understand the point my noble friend has made in relation to retrospective provision. Noble Lords will always be very wary of retrospective legislation and rightfully so, but there is, in effect, a different interpretation in the report before us today from the House Committee. That has identified a gap that needs to be filled. The sixth report from the Committee for Privileges and Conduct in October 2010 stated that the recovery of money wrongly claimed was not a disciplinary matter and not a matter for the committee. However, as the noble Lord the Chairman of Committees stated in his opening statement in that report:
“We therefore recommend that it is for the Clerk of the Parliaments, as Accounting Officer, consulting the House Committee as necessary, to consider what arrangements with Lady Uddin may be necessary to secure repayment of this sum to the House”.
In essence, the House Committee has now brought forward its advice in the form of an invitation to this House to agree a clear principle that a Member should not return to the House while still owing money. In the end, that principle is in the public interest. I cannot disagree with it and I will be supporting the recommendation of the House Committee.
Lord Laming
My Lords, I will not detain the House for more than a few minutes because I support the Motion that is before it. The House will know that I have been a member of the relevant committees for only a relatively short time, but I bring to them many years, sadly, of experience of dealing with disciplinary matters in the public services. Sad to say, that experience has taught me that these matters often involve conflict and sometimes considerable distress, which is made more serious when the people involved may be known to us personally.
However, I have an overriding impression of the way in which the House Committee has dealt with this matter and I support entirely the comments made by the noble Lord, Lord Baker, in saying that the committee has approached this matter from the point of view of principle, not from that of personality. It has gone out of its way to try and be fair, but every Member of this House will know that being fair in these circumstances is not a simple matter. Of course, one wants to be fair to the individuals involved but there is also an issue of being fair to your Lordships’ House and, more than that, of being fair to the taxpayer. The money does not belong to your Lordships’ House; it belongs to the taxpayer and it should be returned to the taxpayer.
Over the years, sad to say, I have dealt with many instances when taxpayers’ money has been wrongly claimed. The first responsibility of any organisation dealing with matters of this kind, particularly a public organisation, is to seek to recover the money—and to seek to do that recognising that it has to make a decision in the circumstances in which it now finds itself. I believe that the House Committee has both been reasonable in these matters and adopted a stance which tries to be fair and to reflect the seriousness with which the public would view this situation if we did not endeavour to recover the money. This does not imply permanent suspension from the House. I commend the Motion to the House because I believe that it is a reasonable, fair and sensible course of action to take.
The Chairman of Committees
My Lords, perhaps the House feels that we should come to a conclusion on this matter now. I feel a little daunted in facing the first three noble and learned Lords who spoke in the debate, particularly the noble and learned Baroness, Lady Scotland, but I am glad to say that some of the points that were made have already been answered by other noble Lords.
On the question of retrospectivity, which the noble Lord, Lord Pannick, answered very well, this is not retrospective because the sanctions agreed by the House last year related to the original breach of the expenses scheme. The House is today being asked to approve the principle that any Peers who subsequently fail to repay the money which they have been found to owe should be suspended for that reason and that reason alone. I should say to the House that this is a report in generality, not a report about any particular Peers, so I rather regret that a number of names have been mentioned at this stage. That may or may not come up later; as the report says, a further Motion will have to be moved in the new year.
The second point related to the Privileges and Conduct Committee. It is true that that the committee did not believe that the length of suspension which it recommended should be determined by reference to repayment and that it rejected the idea of an indefinite suspension. However, the House Committee’s proposals to suspend Members until they have repaid is not a second punishment for abusing the system. It is related to the failure to repay, which falls within the remit of the House. Neither is it an indefinite or permanent suspension; what we propose is a carefully defined suspension that can be ended as soon as the Member in question pays up.
Moreover, we are not thwarting the writ of summons because, as the noble Lords, Lord Pannick and Lord Alderdice, said, at no point would we be suspending a Member for a period longer than the remainder of the Parliament. A further suspension early in the following Parliament would be a separate suspension, not a continuation of the earlier one. As a number of noble Lords have said, it may be that we should legislate in future for longer than that but that would need new primary legislation.
Lord Soley
The report says:
“If money remains outstanding at the start of the following Parliament, the Chairman of Committees should move a further motion to initiate a further suspension”.
I want to be clear: is the committee taking the view that in future Parliaments we should do this all the time? Is that the recommendation?
The Chairman of Committees
If the money had not been repaid, the issue would be up for a new Motion by the Chairman of Committees at the beginning of the new Parliament. The Peer in question would already have received their writ of summons and would be able to come to the opening and so on, but then the Motion might go ahead.
Another point made by noble Lords, particularly the noble and learned Baroness, Lady Scotland, and the noble and learned Lord, Lord Lloyd of Berwick, was that the system is discriminatory against people who do not have the money. I accept that less wealthy Members may struggle to pay off their debts to the House, but of course they should not have made their wrongful claims in the first place. Moreover, I do not think it would be right to means-test errant Members and then make special concessions to those who could not afford to pay. The House Committee believes as a matter of principle that Members who have cheated the taxpayer of money should not be allowed to take part in proceedings of the House or claim any further money until they have repaid their debt in full. How they might raise that money is a matter for them.
A number of noble Lords, including the noble Lord, Lord Richard, suggested that we should take this back and have another look at it. I will resist that temptation. As my noble friend Lord Baker said, the House Committee spent a great deal of time looking at this in detail. This is the conclusion that we came to and which I recommend to the House. I beg to move that the report be agreed.
Draft House of Lords Reform Bill
(12 years, 11 months ago)
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Lord Strathclyde
That, notwithstanding the Resolution of this House of 6 July, it be an instruction to the Joint Committee on the Draft House of Lords Reform Bill that it should report on the draft Bill by 27 March 2012.
Lord Higgins
My Lords, I suggest to my noble friend that some explanation of this Motion might be of interest to the House.
Lord Strathclyde
My Lords, of the many Motions that I have moved in the House, I would have thought that this one would be almost entirely self-explanatory. The House will remember that last July both Houses of Parliament agreed to the creation of a Joint Committee of both Houses to examine the Government’s draft Bill on the future reform of the House of Lords. In that Motion, the Joint Committee was due to report by March 2012. At that time, a number of questions were raised about whether the Joint Committee would be able to report in that time, and I indicated that if it wished to have an extension it would be able to ask for one. A few weeks ago, the noble Lord, Lord Richard, the chairman of the Joint Committee, wrote to me and indicated that it would need some more time and suggested the date of 27 March. All this Motion does is extend the time available to the Joint Committee by about a month to take us to 27 March 2012. I hope that that is a sufficient explanation of the Motion before us.
Lord Cormack
My Lords, what is the point of all this if the Deputy Prime Minister tells the world that he intends to force through legislation, invoking the Parliament Act, regardless of what the committee might say? We had a contempt of Parliament committed yesterday and I would be grateful if my noble friend would indicate that the committee will indeed report properly, that its report will be debated and that no one, least of all someone who wants to treat the constitution as his own personal plaything, should be allowed to usurp the functions of a committee of two Houses.
Lord Strathclyde
My Lords, I might have expected my noble friend to speak, but I think he is being unnecessarily intemperate. It may be a surprise to him to hear that what the Deputy Prime Minister said yesterday was not new at all. He had said it once or twice before. In fact, I said something similar last June in this House. It is surprising how quickly all these things are forgotten. I said:
“Therefore our intention is to introduce a Bill next year and to hold the first elections to the reformed House in May 2015”.—[Official Report, 21/6/11; col. 1155.]
The Deputy Prime Minister yesterday was simply following my lead. In the light of that, I do not think there is anything too much to worry about, although, of course, there is a process before a Queen’s Speech is brought to this House. However, the really important thing that my noble friend asked about was whether the report of the Joint Committee would be taken seriously. I can say unequivocally that it will be taken most seriously.
Lord Richard
The noble Lord, Lord Higgins, asked for an explanation. The Joint Committee has been meeting regularly and is considering this Bill in a full and detailed way. It is being given full and detailed consideration. All I am saying is that we need another month to continue with that full and detailed consideration, at the end of which we will no doubt produce a report.
Lord Grocott
Following that comment, will the noble Lord the Leader of the House make it clear that, should the Joint Committee find that it cannot reach a conclusion by the new date that has been set—many of us anticipated that that would be the case when it was set up—the timetable under which it operates will not be determined by what is required for the Queen’s Speech, the date of which has still not been announced? In particular, can he tell the House—I cannot recall this ever happening before—whether the second most important Minister in the country has announced the Government’s flagship policy for the next Queen’s Speech even before the date when that speech should take place has been determined? In order to regain propriety, rather than following what seems to be a make-it-up-as-you-go-along policy, and having told us the most important content of the next Queen’s Speech—in the Government’s estimation, not mine—will the Leader of the House help us by at least giving us the relevant date?
Lord Strathclyde
My Lords, it is always nice to hear that the noble Lord, Lord Grocott, is the guardian of the Government’s conscience. I can assure him that my right honourable friend the Deputy Prime Minister is not the first keen Minister to wish to pre-empt Queen’s Speeches and make sure that there is a clear case for his Bill, nor will he be the last. The date of the end of this Session, and therefore the date of the beginning of the next Session, will be announced a few weeks before in the normal way, following well-worn precedent. The noble Lord, Lord Richard, spoke extremely eloquently a minute ago. No doubt he and his committee came up with the date of the end of March because they believed that it would be possible to achieve that date. I am sure that Members of the committee will hear this debate and will have seen what was in the papers yesterday. I very much hope that we will not need to extend any longer the time that we have to wait for this report.
Lord Elton
Can my noble friend the Leader of the House tell me on what other occasion a senior member of the Government has announced in advance that he is going to use the Parliament Act?
Lord Strathclyde
My Lords, I am not aware that my right honourable friend said that he would do so. He used words about the will of the House of Commons; and the Parliament Act is of course part of a process that kicks in when the two Houses disagree with each other. It is a well understood process, and although it has perhaps not been well used, it has been used on many occasions. It is always of regret to me when Parliament Acts are used because I believe that, between the two Houses, there must be a better way of reaching agreements.
Lord Ryder of Wensum
My Lords, my noble friend has been exceedingly patient. Would it not be wise for us to close this debate on the grounds—on which we are united—that the speech made yesterday by the Deputy Prime Minister showed only a veneer of expertise?
Lord Strathclyde
My Lords, I will not be tempted down that road by my noble friend.
Baroness Symons of Vernham Dean
My Lords, I congratulate the Leader of the House on the skill with which he has dealt with the remarks of the Deputy Prime Minister. The noble Lord has answered them in exactly the way that they merited.
Lord Pearson of Rannoch
My Lords, further to the remarks of the Deputy Prime Minister, can the noble Lord at least clarify whether it would be constitutional for the Government of the day to use the Parliament Act to radically reform and change your Lordships’ House without its consent?
Lord Strathclyde
My Lords, the Parliament Act is a matter of statute law. It is our view that it would be illegal to use the Parliament Act when changing the composition or powers of this Chamber.
Baroness Walmsley
Does my noble friend the Leader of the House agree that it should not surprise any noble Lord that the Government wish to bring forward legislation to realise a matter that was in the manifestos of every single major party in the last election—and that we should get on with it?
Lord Strathclyde
I share with my noble friend her surprise that there is any surprise at all.
Electricity and Gas (Carbon Emissions and Community Energy Saving) (Amendment) Order 2011
(12 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text
Lord Marland
That the draft Order laid before the House on 21 November be approved.
Relevant Documents: 34th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 14 December.
Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Pannick
“( ) The Lord Chancellor must secure (within the resources made available and in accordance with this Part) that individuals have access to legal services that effectively meet their needs.”
Lord Pannick
My Lords, the amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. It is an appropriate amendment with which to begin the Committee stage of this important Bill.
As the debate at Second Reading indicated, there is considerable concern about the contents of Part 1. There is widespread acceptance that in tough financial times legal aid must bear its share of the cuts in public expenditure and that the Government have to make difficult choices. However, there is widespread concern about the wisdom of the choices that are being made in Part 1 and whether it is appropriate to limit legal aid so extensively for those sections of the community that are most in need of advice and assistance to obtain the legal rights and benefits to which they are entitled.
The amendment seeks to focus this Committee’s debate on the contents of Part 1, and seeks to remedy a considerable defect in Clause 1. The defect is that the clause fails to mention that the objective of Part 1 must be to secure access to justice, to protect the needs of individuals and to do so in an effective manner. Clause 1 fails to recognise that our debates about the content of Part 1 should take place in the context that legal aid is a vital element in securing access to justice, and that without access to justice, the rights and duties which we spend time creating in this Parliament by legislation are reduced in value and effect.
The drafting of Amendment 1 is closely based on Section 4(1) of the Access to Justice Act 1999, which imposes duties on the Legal Services Commission. When the Bill transfers those responsibilities into the Lord Chancellor's Department, the primary objective of securing access to justice by effective means to meet needs must be retained in the Bill. That point was made in the report of your Lordships’ Constitution Committee, of which I am a member.
I very much hope that the Minister will be able to tell the Committee that he can accept the amendment. It is carefully drafted to recognise, as does Section 4(1) of the 1999 Act, that the duty to provide access to services in order to meet needs is not absolute. It is a duty defined by reference to the resources available. The drafting does not impose an independent duty which trumps the specific contents of Part 1. On the contrary, it says expressly,
“in accordance with this Part”.
I hope that the Minister will be able to accept the amendment as doing no damage whatever to the specific clauses which we shall be debating later in Committee. At the same time, the amendment ensures that the Bill recognises the vital principle which always has been and which should remain at the heart of our legal aid provisions: a commitment to providing access to justice. I beg to move.
Lord Faulks
My Lords, I support the amendment. As the noble Lord, Lord Pannick, explained, the current drafting is a change from the wording of the Access to Justice Act 1999 and the amendment makes it clear that the Lord Chancellor has an obligation to secure the access to legal services that meet the needs of the individual. That was recommended by the House of Lords Constitution Committee, although the amendment contains an important modification in that there is a qualification that the provision of legal aid must be on the basis of resources,
“made available in accordance with this Part”—
Part 1. In other words, there is no absolute requirement on the part of the Secretary of State to make legal aid available regardless of the financial situation.
I understand the purpose behind the Bill, which is, first, to save approximately £350 million as a contribution to reduction in expenditure generally and, secondly, to make some important changes to the litigation system as a whole. Although legal aid and the amendment are concerned with Part 1, it cannot be viewed in isolation, particularly not from Part 2, which brings about changes in current conditional fee arrangements. The need for those changes is clear. As recently as yesterday, a Court of Appeal judge observed at the end of the case that it was another case in which,
“the existence of a conditional fee agreement has made it practically impossible to obtain a settlement”.
He went on to observe that, ultimately, it is the public who pay for these things, either through higher premiums, or through the unwarranted expenditure of public resources.
Access to justice means satisfactory access not just for claimants but also for defendants. My reading of the purpose of some of the amendments put forward by the Front Bench of the party opposite is that they are intended substantially to maintain the status quo. This is somewhat surprising in view of the widespread acceptance of the undesirable effects of the current system, not least by Mr Jack Straw, former Secretary of State for Justice, in debates in the other place. I suggest that some of these amendments will actually impede access to justice.
There is an additional benefit from this amendment, apart from the clarity that I hope it provides. Our law is generally subject to the Human Rights Act—in particular, Article 6 of the convention, which provides for the right to a fair trial. How an individual state decides to reflect this principle in its provision of legal aid or some other form of assistance is, I suggest, very much for that state to decide, and it should be well within the so-called margin of appreciation—theoretically, at least—permitted by the courts in Strasbourg. There have been cases where in one context or another the lack of legal aid has been found to violate Article 6, although it might be said that the jurisprudence in this area lacks some coherence. However, this amendment should make such challenges far less likely to succeed in that there is a clear statement of the Lord Chancellor’s obligation and, contained within it, a sensible acknowledgement of the limits provided by available resources.
The Lord Chancellor said in an interview with the Guardian, published yesterday, that the Bill was concerned with,
“protection of fundamental rights of access to justice for critical issues that no civilised society can do without”.
I suspect that all in your Lordships’ House would agree with that aim. It is an aspiration that should inform our debates on the Bill in Committee in the weeks to come, and I suggest that this amendment is a good beginning.
Lord Howarth of Newport
My Lords, the Constitution Committee did us, as it always does, a good service in reminding us and stating emphatically that access to justice is a constitutional principle. The amendment that it proposed to Clause 1, which would say that the Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice, would be a humdinger of an amendment. It would reassert absolutely and emphatically the fundamental constitutional principle of equal access to justice for all our people. The amendment that the noble Lords, Lord Pannick and Lord Faulks, and others have tabled and placed before us is not the same as that amendment. They have chosen to qualify the requirement on the Lord Chancellor by including language about his obligation being only within the resources made available for the purpose. The noble Lord, Lord Pannick, also said that in his view the duty was not absolute, although a little later in his remarks he said that access to justice was a vital principle. I am not clear exactly what the degree of obligation on the Lord Chancellor would be.
It certainly seems to me that if the legal aid budget is to be cut by £350 million, it may not be possible within the resources available to secure access to justice. I am beginning to wonder whether the noble Lord, Lord Pannick, and his very distinguished co-signatories, all of them lawyers, may find themselves in somewhat the same position as the revolutionary students in Paris in 1968, whose motto was “Demand the impossible”. It is very exciting to demand the impossible but the prospects for your proposition are not necessarily very good. At all events, I am a little confused about exactly what their amendment would require of the system, and I wonder whether there is not some sort of internal conflict within the amendment.
For my part, I believe that the duty on the Lord Chancellor and the Government should be absolute. If equal access to justice is a fundamental constitutional principle, then I believe that we, as citizens and taxpayers, should pay whatever it reasonably takes to secure it. The legal aid budget, running at some £2.2 billion, is a lot of money. On the other hand, as I mentioned at Second Reading, £2.2 billion is only around 1 per cent of the social security budget and the £350 million cut to the legal aid budget that is being proposed by the Government would, I think, be 0.2 per cent of the deficit, about which all of us are very properly exercised.
I think it is disputable whether the existing legal aid budget is unaffordable. If we believe that it is a fundamental constitutional principle, we could afford to pay what it costs. Of course, costs must be disciplined and the previous Labour Government were severe on that matter. I was not entirely happy when the former Prime Minister, Mr Blair, spoke of his intention to,
“derail the gravy train of legal aid”,
because I believe that a great many legal aid lawyers are working for pretty small remuneration and are not riding on any kind of a gravy train. Nor was I entirely in agreement with the tone and the sentiment of my right honourable friend Jack Straw when he spoke of,
“BMW-driving civil liberties lawyers”.
Of course, it must be right—this is very much the intention that the Lord Chancellor declares in his article in the Guardian today—to attack lawyers who are drawing entirely excessive remuneration out of work that may be funded by legal aid.
My noble and learned friend Lord Irvine of Lairg, when Lord Chancellor, mounted a vigorous attack on the cost of the legal aid system. He attacked the costs but he did not attack the principle. The Government are right, of course, to examine the costs. If it costs £120 million to run the Legal Services Commission, then that commission must be a candidate for economy. However, I am sure that noble Lords will agree here, as elsewhere, that we should not throw the baby out with the bathwater. We are speaking of a fundamental constitutional principle, of a fundamental entitlement for our citizens. Can we speak of a fundamental constitutional principle in the context of an unwritten constitution? I believe that we can, and so I think does the Constitution Committee of your Lordships' House because it quoted the noble and learned Lord, Lord Steyn, and Lord Bingham speaking very eloquently about the right to equal access to justice.
Noble Lords will be very well aware of the Sir Henry Hodge Memorial Lecture, given by the noble and learned Baroness, Lady Hale, in June. I had the privilege and pleasure to listen to that lecture, in which she told us that the principle of equal access to justice is to be found in the Magna Carta:
“To no one will we sell, to no one deny or delay right or justice”.
That is a principle that has been established cumulatively through our history. She told us that a statute of 1494, in the reign of Henry VII, provided for actions to be brought in forma pauperis, relieved from court fees and provided with lawyers acting pro bono. Then later in our history, there was the famous case of Ashby v White, the Aylesbury election case in 1703, when Lord Chief Justice Holt, in his judgment said:
“If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of a right and want of a remedy are reciprocal”.
Some noble Lords may have read an excellent and informative article in the London Review of Books, on 20 October, by Joanna Biggs, who traced some of the history of the establishment of the right of equal access to justice. She describes how, in 1944, Henry Betterton, who, like the right honourable Kenneth Clarke, the Lord Chancellor, was a barrister and indeed a Conservative Member of Parliament for Rushcliffe, was appointed to chair a special committee on legal aid and legal advice. In his report in 1945 he said:
“The great increase in legislation and the growing complexity of modern life have created a situation in which increasing numbers of people must have recourse to professional legal assistance”.
The free legal aid that was at that stage available was, he said, at best somewhat patchy and totally inadequate. He recommended that in the future legal aid should be available not just for the poor but for people of small or moderate means. People who could afford to do so should contribute to their legal costs. Barristers and solicitors were to be paid adequately. There should be legal aid centres across the country. That was the vision that underlay the Legal Aid and Advice Act 1949. That legislation was widely recognised as being part of the structure of the new welfare state that was being created by that Labour Government.
Lord Lester of Herne Hill
I do not mean to prolong the noble Lord’s speech by my interruption, but perhaps I could suggest that it is not helpful to his case if he becomes narrowly partisan. This is not an area where any one party can claim a monopoly of virtue or vice. It is much better to focus on what unites the House rather than what divides it.
Lord Howarth of Newport
I hope to be able to do that. I hope that I have not been unduly partisan, but we all feel strongly on this issue and I very much hope that noble Lords on the Liberal Democrat Benches, who I understand feel strongly on the issue, will explain their case to us and, when it comes to voting in the Division Lobby, will act according to their professions. Perhaps in that remark I am becoming a little too party political—for which I apologise to the Committee.
If the Government say that a national debate is taking place, I would reply that the 5,000 responses to the Green Paper demonstrate that there is a very strong consensus against what they propose and that they would be wrong to defy that consensus.
Baroness Butler-Sloss
Perhaps I could ask the noble Lord a question. I listened with great care to what he said. It would be extremely helpful to know where his argument is directed. Is it intended to support or oppose Amendment 1?
Lord Howarth of Newport
I will come to that in a second. The noble and learned Baroness will be pleased to know that I am about to wind up. We should all be grateful to the noble Lord, Lord Pannick, for tabling an amendment that challenges us to debate the principles against which the detailed amendments should be judged.
I conclude by saying that I believe that the Government have no mandate for what they seek to do. They have no political or moral authority and no permission from the people to take away their right of access to justice and to dismantle that part of the justice system. It would be a dereliction of our constitution if the Government and Parliament were not to resolve to spend the money that is genuinely necessary to secure access to justice for all. I do not know whether the noble Lord, Lord Pannick, will press his amendment to a vote. If he does I will certainly support it. If he does not, I hope that when we come back to the issue on Report, he or others will table an amendment that fairly and squarely insists on the fundamental principle. If they were to table the amendment proposed by the Constitution Committee in all its principled directness and simplicity, that would be preferable.
Lord Carlile of Berriew
My Lords, speaking as a liberal from the Liberal Democrat Benches, it is with regret that I say that I support the amendment in the name of the noble Lord, Lord Pannick. I support it with regret because I had hoped that we would not be in this position by the time we started Committee. Noble Lords will recall the Second Reading debate at which unfortunately I was not able to be present because I was out of the country. Since that debate there has been private and public negotiation, lobbying, a great deal of journalism and an expectation that we would move from the position that was expressed from the government Front Bench at Second Reading. However, I detect absolutely no hint that any concessions will be made. Indeed, I detect an air of irritated intransigence coming from the Ministry of Justice in relation to the Bill.
I would not feel driven to vote for the amendment of the noble Lord, Lord Pannick, and to take the same position as my noble friend Lord Faulks from the Conservative Benches on the coalition side, if I felt that there was some movement in the direction of the general principle set out in the amendment. Furthermore, as the noble Lord, Lord Pannick, explained, this is not an expression of a new principle, nor is it an expression of a principle that is to be applied outside the context of this very Bill. It seeks merely to set out a principle that I believe every person in this House should embrace within the Bill’s in effect financial constraints, which are expressed in the amendment.
I, as a liberal and a Member of the Liberal Democrats, have understandably—like, I am sure, my noble friend Lord Faulks—been encouraged not to cause difficulties, not to intervene too much and not to obstruct the Government in getting their Bill through; in other words, I have been encouraged to support this coalition Government, which I would very much like to do. However, I have detected an assumption that Liberal Democrat Peers are to support the Government’s approach to this Bill, and I say to my noble friend Lord McNally that it is not sufficient to make us wait to find out later what concessions are to be made on the many representations that have been made.
I agree wholeheartedly with the Government that a great deal of legal aid money is being wasted at present. I believe that fervently, and I could identify, and indeed have identified when asked, areas in the legal aid system where savings could be made. However, arguments have been made for concessions in areas where access to legal services is required as the only way, in effect, to meet the needs of people whose rights have been adversely affected. If my noble friend wishes us not to support this amendment, I invite him to tell us when he replies to this debate the areas in which concessions are to be made and the general nature of those concessions, not the particulars. In other words, I am asking my noble friend not merely to assume our support from these Benches but to earn our support from these Benches. Without that, I am afraid that I shall remain dissatisfied and will feel free to intervene during these debates on the merits of these amendments.
Lord Ramsbotham
My Lords, I briefly support the amendment by echoing the words that have already been quoted—those of the Lord Chancellor, who said:
“access to justice is a hallmark of a civilised society”,—[Official Report, Commons, 15/11/10; col. 659.]
and those of my noble friend Lord Pannick, who has said repeatedly that access to justice is a vital constitutional principle.
At Second Reading, I regretted that the word “rehabilitation” had been replaced by the word “punishment” in the title of this Bill, and I fear that the proposed denial of legal aid to some for whom its provision is a vital part of their rehabilitation suggests that there are some in government who are allowing an uncivilised concentration on punishment to supersede their duty to protect the public. I know that this is a hybrid Bill and that Part 3 will concentrate on rehabilitation, but I wish I felt the same of Part 1.
Baroness Mallalieu
My Lords, I wonder whether others felt, as I did, that what the noble Lord, Lord Carlile, just said was music to the ears.
Of the amendments currently tabled to this Bill, I regard this amendment as by far and away the most important, and it is one that I strongly support. It provides the litmus test of what the Government are really trying to achieve with legal aid. This part of the Bill has been presented to us as a cost-saving measure that, in today’s climate, is hard to oppose, but as it stands it is far more than that. As others have said, Schedule 5 to the Bill repeals the fundamental principles of legal aid, which appear at present in the Access to Justice Act 1999. By removing them under Schedule 5, the Government have removed their obligation to supply legal services, to make sure that they are available and to make sure that the means of accessing them are available to those in need. They are, in effect, casting away two of the most vital parts of our constitution and essential ingredients of a just society. They are, first, equality before the law and, secondly, the principle that no one should be denied access to justice through lack of means. The omission of an overarching statement of principle at the start of this Bill signals that the Government no longer wish to honour that obligation. If the obligation does not rest on the Government, it does not in reality rest, or exist, at all.
Lord Elystan-Morgan
My Lords, 43 years ago, I was a Home Office Minister but I doubt very much whether the procedures that have been so dramatically described by the noble Baroness were current in those days.
I rise to support wholeheartedly this amendment and to salute the courageous and most splendid speech of the noble Lord, Lord Carlile. This amendment goes fundamentally to the heart, core and kernel of what we mean by justice, the rule of law and the fundamental constitutional principles that govern Parliament. If one looks at that splendid book, The Rule of Law, by the late Lord Bingham, which was published last year, the right to justice where a person has a reasonable cause is utterly fundamental. In the immortal words that he used, one of the ingredients of the rule of law itself was that,
“means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve”.
He went on to say that,
“denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.
No one could put it more splendidly than that. Indeed, it is on that basis that the Constitution Committee has attacked the elements which seek to undermine legal aid. The clear recommendation made by the committee on this clause was that:
“Clause 1 should be amended to read: ‘The Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice’”.
I consider those words in the light of the amendment moved by my noble friend Lord Pannick.
On the one hand, one can see that a distinction can be drawn between the two. One is in absolutist terms while the other is in qualified terms. But I do not think that the Committee need worry a great deal about that. The words chosen by my noble friend have already been enshrined in statute in the Access to Justice Act 1999, and all that we are doing is saying that we wish to take the House and the British community back to the mentality which supported the Access to Justice Act. In doing that, I wholeheartedly respect and support this amendment.
The idea that access to justice is a constitutional right has been spelt out in the courts. In 1994, in the matter of R v Secretary of State for the Home Department, ex parte Leech, Lord Justice Steyn ruled in the Court of Appeal that the,
“principle of our law that every citizen has a right of unimpeded access to a court … even in our unwritten constitution …must rank as a constitutional right”.
No one could put it clearer than that. It means, therefore, that any substantial impediment to the reasonable exercise of that right is something that undermines the very concept of our constitution, unwritten though it be. I can well imagine that the Deputy Leader of the House, the noble Lord, Lord McNally, will say, “Well, these are difficult times. Everyone has to react to the crisis and to accept responsibility which is joint and several in respect of all of us”. I can understand that, but I would say in reply to such a submission that, first, no credible and enlightened Government in our day and age can ever stand before the world and say, “We are too poor to be able to afford justice”. Secondly, it is almost certain that the net saving in respect of the £350 million which the Government claim will be slashed from the legal aid bill will either be a very small saving or no saving at all. We will debate these matters in the months to come and there is ample evidence in support of that proposition.
Lastly, let us remember what the situation was in 1949 when the Legal Aid and Advice Act was passed. Britain had emerged from a terrible war bloodied, weakened and practically insolvent. John Maynard Keynes was sent to the United States to negotiate on the best terms possible a loan that it took many decades to repay. The Americans absolutely screwed us and, as we know, it was only a few years ago that that loan was repaid. The Government of the day in 1949 could have said, “We are so impoverished and reduced in our strength that we cannot conceive of such a luxury as legal aid”, but they did not.
Lord Goldsmith
I rise to support this amendment for reasons which I will explain—
Lord Goodhart
My Lords, it is the turn of this side, but I wait with pleasure to hear what the noble and learned Lord has to say.
When I started my career as a barrister in the late 1950s, we had started with legal aid for only a few years. Up until then, aid from lawyers to poor people who were prosecuted for criminal offences mostly came from a group of barristers of poor quality who spent their time sitting in the court in the hope of being chosen by the defendant to defend them. Legal aid replaced all that, for civil cases as well as criminal, and we must never get anywhere near the previous situation.
This amendment is one of the most important in the Bill; indeed, it is in many ways the most important. The right of access to justice is a central feature of British justice, as it has been for centuries. We are rightly proud of that. We have over the years achieved the right of access to law. Now that right is under threat. Clause 1(1) is not adequate. This is made clear by the 21st report of the Select Committee of your Lordships' House on the Constitution, published on 17 November. That is a very distinguished committee. The four Members who have put their names to Amendment 1 include two members of that committee, the noble Lords, Lord Pannick and Lord Hart. They also include the noble and learned Lord, Lord Woolf, the former Lord Chief Justice and an outstanding judge of recent times, and, finally, my noble friend Lord Faulks, who is a relatively new Member of your Lordships' House but who has proved his high quality as a lawyer and a politician.
I am aware that in recent years the costs of legal aid have risen too far. This was recognised by Lord Bingham in chapter 8 of his book, The Rule of Law, which has already been mentioned. Steps are being taken by the Government to reduce costs in a justifiable way, but we must make it clear that access to justice is essential and that we cannot set up in this country a legal system which does not provide access to justice to those who cannot afford it out of their own pockets.
Lord Goldsmith
My Lords, I am glad that the noble Lord, Lord Goodhart, went before me, because I can wholeheartedly agree with the last sentiment that he has expressed—I am not surprised that we share that view.
Before I speak about my hesitation in respect of the amendment, I should declare, because I was unable to take part at Second Reading, that I am a practising lawyer, though not a publicly funded lawyer for a long time. I am also chairman of the Access to Justice Foundation and president of the Bar Pro Bono Unit, two organisations which try to help people who have legal need through the generosity of lawyers who are prepared to do that for free.
My reason for being hesitant about the amendment is that it does not go as far as the Constitution Committee, of which I am proud to be a member, said it should. There is a qualification of importance in the amendment, which is the reference to available resources. I was concerned that allowing that qualification might allow the damage to be done to the legal aid system and the access to justice that so many people need that we are fighting for.
I recognise the constraints. I also recognise that this was a formulation which the Government of whom I was a part put forward—I was not that happy about it then either, as it happens. However, there is a reason why I shall support the amendment: it is a way of testing what the Government actually believe in. It is a way of testing whether this Government are prepared to sign up, on the basis that there is not a blank cheque, to the principle that the Lord Chancellor has an obligation to secure justice for those who need it and to make sure that it is secured effectively. I do not believe that the noble Lord, Lord McNally, has a computer chip in his neck—I hope that I have known him long enough to know that that is not the way he operates—but I shall look forward with interest to two things during this debate. The first is what he says about this amendment. It will be telling in the extreme if he is not able to accept that, even though there will not be a blank cheque and even though it depends on the resources being available, his department should acknowledge a duty to secure that individuals have access to legal services that effectively meet their needs. That is a constitutional principle that the Government should at least support.
Secondly, I will look to see the answers to individual amendments and the issues that arise in relation to particular aspects of the Bill. For example, I am very concerned about welfare, where so much of the resource at the moment is provided not to well paid lawyers, barristers in Chambers or City firms of solicitors, but to legal advice centres. They are agencies that work on a shoestring and depend on legal aid, so much of which will be cut to them. The Government should be judged on the attitude that they take to that—not more fat for the fat cats, but helping the poor people of the country, the vulnerable and the less privileged, and ensuring the rights that it is one of the jobs of this House to provide.
Lord Alton of Liverpool
My Lords, the noble and learned Lord, Lord Goldsmith, was born in inner-city Liverpool. I had the privilege of representing part of that city for 25 years, first as a city councillor and later, as the noble Lord, Lord McNally, knows, as a Member of the House of Commons. Liverpool is one of the more deprived and economically disadvantaged parts of this country. Therefore, not as a lawyer but as someone who knows communities that have been socially disadvantaged and where access to law and justice is crucial, I spoke at Second Reading strongly against the proposals in the Bill.
I want today to support my noble friend's amendment because, like the noble Lord, Lord Goodhart, I believe that it goes to the very heart of what the Bill is about. It demands the perfectly possible. It is perfectly possible because it is what we do already. Unlike the noble and learned Lord who has just spoken, I turn the attention of Members of the Committee not to the word “resources” but to what the amendment says at the end. It says,
“that individuals have access to legal services that effectively meet their needs”.
To oppose the amendment and vote it down would be for us to say that people should not have access to legal services that effectively meet their needs. Do we really want to turn the clock back to those pre-1949 days that my noble friend Lord Elystan-Morgan spoke about a few moments ago? We are all aware of the five giant evils that the noble Lord, Lord Howarth, mentioned in his remarks that were identified by Lord Beveridge. It was Hartley Shawcross who, from the Labour Benches in 1949, introduced the legal aid provisions. Hartley Shawcross was the Member of Parliament for another Merseyside seat, St Helens.
By way of illustration, the Liverpool Law Society wrote to me recently about what would happen if the provisions in the Bill were to be enacted, and one of the examples comes from St Helens. It involves a long-distance lorry driver who died of lung cancer after a mistake was made in his diagnosis. The settlement was made with his widow after commissioning significant experts’ fees. Under the new regime, the Liverpool Law Society said that the client,
“would not have been in a position to fund any disbursements to enable an investigation to be taken forward”.
That is only one example of many that I have been given of people who for one reason or another, particularly because of changes to legal aid, would no longer be able to get that crucial access to justice that is available in this country at present.
The Bar Council says that it is,
“profoundly concerned about the impact that the Bill's proposals could have on access to justice, particularly for some of the most vulnerable members of society”.
The point is underlined by the Law Society, which said that,
“the Bill ensures that serious injustice will be done … Clients with physical or mental health deficiencies, or low levels of education, may be unable to resolve their problems in the absence of support through legal aid”.
It is worth reminding the Committee what Lord Justice Jackson said when he examined the proposals and came out very strongly against any cuts in legal aid. He said:
“I … stress the vital necessity of making no further cutbacks in legal aid availability or eligibility … the maintenance of legal aid at no less than present levels makes sound economic sense and is in the public interest … On the assumption that it is decided not to maintain civil legal aid at present levels, the question may possibly arise as to whether any particular area of civil legal aid is particularly important and should be salvaged from the present cuts. My answer to that question is that of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate”.
We have heard several references to the Committee of your Lordships’ House. The House of Commons Justice Committee stated that the Government are in error in failing to undertake a comprehensive assessment of the knock-on costs arising from the cuts to legal aid. In other words, this is penny-wise but pound-foolish. This is a point borne out by Action Against Medical Accidents. Indeed the noble Lord, Lord Carlile, who spoke so eloquently earlier on, chaired a meeting at which I and other Members of your Lordships’ House, including the noble Lord, Lord Howarth, were present, where Action Against Medical Accidents said that in order to save the Ministry of Justice just £11 million it will cost the NHS at least £14 million and possibly as much as £21 million.
This is what the House of Commons Committee said:
“We are surprised that the Government is proposing to make such changes without assessing their likely impact on spending from the public purse and we call on them to do so before taking a final decision on implementation”.
We still have a chance between now and Report to do that. As the noble Lord, Lord Carlile, said he would be, I will be looking for a signal from the government Front Bench today of reasonableness: a willingness to re-examine whether or not the propositions that have been put to us by the Bar Council, the Law Society, practising lawyers and people who have represented disadvantaged communities hold up and are up to scrutiny. It is in that context that we should return our sights to the amendment before your Lordships today, proposing that,
“individuals should have access to legal services that effectively meet their needs”.
When we come to vote we will be voting on that proposition. Unless I hear from the Front Bench that it is prepared to look at this again between now and Report, I will join my noble friend in the Lobby.
Lord Newton of Braintree
My Lords, it is probably my turn, if my noble former constituent will allow me. I have been stimulated, not for the first time and I hope not for the last, by some of the speeches in this debate. First, the noble Baroness, Lady Mallalieu, reminded me of how grateful I was that, in 18 years as a Minister, nobody ever sent me anywhere near the Home Office. I do not know whether or not I would have withstood it, but I am glad that I did not have to be tested.
Secondly, the speech of my noble friend Lord Carlile was absolutely spot on. I have not had the same experience as he has of being pressurised by the Whips: they have given up on me. I am glad to support him, because we need some signs of movement in the speech that will be made at the end of this debate. I say to the noble Lord, Lord Pannick, that I would much prefer it if this amendment were treated as putting down a marker to see what response we get and that we should judge things in the light of what may happen later on with the Bill as well as what is said tonight. In that respect, I have a lot of sympathy with what the noble and learned Lord, Lord Goldsmith, said. But we need something less than irritated intransigence, as my noble friend Lord Carlile put it, from the Ministry of Justice in the way that it responds to the concerns in the Committee. We should make that very clear tonight. In other words, if we do not get some sense of willingness to move then we should return to this on Report. Meanwhile, I look forward very much to a constructive response from my noble friend.
Baroness Verma
My Lords, let us hear first from the noble Lord and then from my noble friend.
Lord Clinton-Davis
My Lords, I would like to ask the Government a simple question. What do the Bar Council, the Law Society and the organisations concerned with poverty with regard to legal services have to say? Have the Government taken the trouble to consult these organisations? The noble Lord says that they have. So what is their reply? They remain obdurately opposed to the principles that the Government are putting forward today. I unhesitatingly support the amendment. Pretty well all the speeches in the Committee—whether from the Conservative, Liberal Democrat or these Benches, and on the Cross Benches—have expressed opposition to what the Government are trying to do and support for what the amendment stands for.
I also unhesitatingly support the remarks of the noble Lord, Lord Carlile. He has spoken very bravely, and has been supported by several noble Lords who share his profession. A bevy of Silks have announced support for the proposition advanced by the amendment. I got involved with legal aid from pretty well the very beginning, because of a very simple notion—I thought it was imperative that ordinary people should be able to advance their cause and, where they are impaired from doing so, they should be supported by the state. That was my view then. The amendment sets out very clearly, within the constraints that are necessarily imposed upon us, the basic principles that we should preserve.
It is vital that individuals should have access to legal services, where their rights are being seriously impaired or are not being properly advanced—subject always to the provisions of the 1999 Act. There is a serious risk that both of these will occur, separately, under the changes to legal aid provision now being contemplated. I am surprised that any person of any sensitivity—and I think that the noble Lord, Lord McNally, would fall into that category—would support such changes. I have always had great admiration for the noble Lord—I do not know why, as he has done his best to impair that decision on my part. It is not a question of party prejudice at all; it is a question of downright decency and that is what I support today.
Lord Phillips of Sudbury
My Lords, one could be in danger of being slightly sentimental about the Access to Justice Act. Some in this Chamber will remember it very well and opposed it very strongly. I called it the “Exit from Justice Act”. However, I recognise that legal aid is a sort of Cinderella of the welfare state and is a very difficult service to defend in terms of public opinion, for reasons that I advanced at Second Reading and which I do not propose to repeat. However, I will just say that I am, always have been and always will be, passionately committed to the legal aid scheme. Without an effective legal aid scheme the legislation we produce in this place can be viewed as cynical. To legislate rights knowing that a large number of those for whom they are intended do not have access to them must be a form of cynicism. Having said which, the Government are placed in an extremely difficult position, and there is no jibbing the fact that all departments of state have to bear some part of the cuts which the Government have determined are essential for our economic well-being. I am one who concurs with that judgment.
Lord Clinton-Davis
There must be some restriction. I unhesitatingly support the legal aid system but there has always been an understanding, has there not, that the amount of resources which are available must be consonant with what we can afford?
Lord Phillips of Sudbury
The noble Lord has just made the case for the Government rather succinctly. That is the argument; what I am saying is that if you put the qualifying phrase,
“within the resources made available”,
into Clause 1, then everything is subservient to it. At the moment, the legal aid cost rises and falls—it usually rises but occasionally falls—according to the demands of the citizen upon it within the scope of legal aid availability. As I say, with this phrase in it the Government could say at the start of the year, “We are not paying out more than blank pounds for legal aid”, and that would be that.
Lord Goldsmith
Perhaps I might say to the noble Lord that I was concerned about precisely that point. I look to the noble Lord, Lord Pannick, and indeed to the Government, but I hope that the answer is in the requirement that it should be secured,
“in accordance with this Part”,
and that that therefore means that those things which I, too, hope will be in the Act at the end of this Bill’s passage will have to be secured, and will not be subject to any monetary qualification. I hope that that is the answer as it was part of my reason for taking the view, after my hesitation, that I would support the amendment.
Lord Phillips of Sudbury
I refer the noble and learned Lord to the fact that the sentence within the brackets which qualifies the obligation of the Lord Chancellor to secure includes the words,
“within the resources made available and in accordance with this Part”.
If they are in conflict—namely, that the resources made available are insufficient to meet the demands of this part of the Bill—then we are in a bit of a muddle, are we not?
Baroness Kennedy of The Shaws
My Lords, my starting point was the same as that of my noble and learned friend Lord Goldsmith, in that I, too, felt very alarmed that this amendment seems to be too concessionary because it was acknowledging too much on the resource front. However, I acknowledge now that it pins down the question of whether there is a constitutional issue here. If there is, it has to cut across all the areas of law.
I was always battling the previous Government over their cuts to legal aid because of what they meant to quality. What concerns me about the Bill is that it takes whole sections of law out of the purview of legal aid so that medical negligence is not included, and nor are family matters unless there is domestic violence. It is the business of creating whole areas that are not covered by legal aid that is a source of alarm to me, and that is met by the amendment. If you are committed constitutionally to access to justice, you cannot create whole areas that are excised from legal aid. That is how I would read it now.
There are two things I want to say pre-emptively before the Minister stands up to reply. First, one of the things that is always said by the Minister responding on issues like this about legal aid is, “Look how many lawyers have spoken”, as though somehow or other we are the beneficiaries, we are all in this great trade union and we are basically protecting a closed shop. I say to the noble Lord, Lord McNally, known to us all as a decent and fair man, that it is not surprising that lawyers will by and large be the people who speak on this. We know from our work in the courts that it is the poor who will be disadvantaged. It has been my experience while acting in the courts that the disadvantaged will always be those with few resources. We have to make provision for them. That is what access to justice is all about; we know that from our experience. This is nothing to do with protecting the interests of lawyers.
Secondly, on looking for cuts, I have always said to the Government, and I said it to the previous one, that there are other areas where we can make savings. It has always been a source of amazement to me that when the Government need lawyers—for example, when Treasury Counsel sought representation for different government departments—they are not paid at legal aid rates; they are paid at commercial rates. They are paid the sort of money that the corporate sector pays its lawyers. If we want to save money, we should be making serious savings in what government departments pay lawyers for representation. It was always a source of amusement to me that when the Hutton inquiry took place and the Prime Minister at the time, Mr Blair, needed representation, it was to Mr Sumption that he turned—one of the most expensive barristers around. I do not think that it was Mr Blair’s own purse that paid the bill; it was the taxpayer. I would like to see the Government making cuts with regard to the lawyers that they choose to represent them and that pocket of money distributed to those who really need representation—the poorest in our society.
We are concerned that there is a constitutional issue here. Whole areas of law should not be taken out of the purview of legal aid.
Baroness Butler-Sloss
My Lords, I wonder whether I might make some brief comments, bearing in mind the time. I would like to add to what has been said. It has largely been lawyers who have spoken, and I very much hope that noble Lords will not give less weight to the names on this first amendment or to the lawyers who have supported it. That is, as the noble Baroness, Lady Kennedy, has just said, inevitable because we know what goes on on the ground. As a former judge, hearing mostly legal aid cases, I have clear knowledge of what happens on the ground.
The lawyers who have spoken are all very distinguished. They have done a great deal in the past and indeed are still doing it. What they have to say should resonate with all Members of this House because these are not party political issues. I very much hope that no noble Lord will make them party political issues. Seeing as people have spoken from all sides of the House, it would be good if no one spoke any longer in a party political way. This issue is too important for us to do so.
To recognise and accept the amendment would not drive a coach and horses through the Bill. On the contrary, it recognises financial restraints and in my view is very shrewdly phrased. I do not believe that it has the effect that the noble Lord, Lord Phillips of Sudbury, was suggesting. There is nothing to stop us dealing with other areas where we would say it is necessary to have legal aid and it would not be possible for the Government to say that such legal aid should not be forthcoming. However, one has to recognise reality. We have to recognise that not every aspect of the current legal aid bill can continue to be paid. There are areas highlighted by amendments—some of them my own and some from other noble Lords—which we have to look at and say that there should not be cuts. One example of that is private law.
This amendment sets out in simple language the right of citizens to have access to justice in general terms. It is an amendment that would be extremely difficult to oppose and I strongly support it.
Baroness Verma
My Lords, if we could hear from the Liberal Democrats, the Cross Benches and then the Labour Party.
Lord Lester of Herne Hill
My Lords, many years ago, when Lord Scarman was chairman of the Law Commission, I remember him saying that his cleaning lady came to him one day and asked whether he could help her with a social security problem. He described how it took him three days of combing through the social security legislation before he was able to help her. He told us this story because he was explaining how there was an enormous need for poverty lawyers—the ones who deal with the legal problems of the poor—to be empowered to provide those services. If a Law Lord such as Lord Scarman took three days to do what a law centre could do more quickly, it illustrated the point.
The great virtue of the amendment of the noble Lord, Lord Pannick, is its conspicuous moderation and realism. I cannot understand those noble Lords who criticise him for being so moderate and realistic. The real value of his amendment is that it strengthens the hand of the Lord Chancellor and Justice Secretary in his dealings with the Treasury. Many years ago when I was Roy Jenkins’s special adviser, I remember that Barbara Castle, a Minister in the then Government, explained why she supported cuts in civil legal aid. She wrote to her colleagues saying that if she had to choose between hospitals and legal services, she would unhesitatingly preserve hospitals. It is that notion that legal services for the poor are a soft target and matter a great deal less culturally and politically than health services which is at the bottom of the problem in my view.
Successive Governments have found it very easy to sabotage civil legal aid since the original Legal Aid and Advice Act was passed. This is not a party political problem; it has pervaded all parties. The noble and learned Lord, Lord Irvine of Lairg, who, unfortunately is not in his place, cut legal aid when he was Lord Chancellor, and followed a long line of Lord Chancellors in doing so. He attacked what he called fat-cat lawyers to justify some of the cuts that he made. When Lord Taylor’s memorial service was held in St Paul’s cathedral, Sir Humphrey Potts, in giving the encomium—I recall that the noble and learned Lord, Lord Irvine, was at the front of the cathedral—made a joke at his expense, saying that he saw that he, in a fit of post-retirement remorse, was attacking fat-cat lawyers. It was a good joke but it illustrated a powerful point. It would be very easy for my noble friend Lord McNally when he replies to make some cynical remarks about his legal friends standing up for the closed shop. However, I am sure that he will not fall into this trap. As the noble Baroness, Lady Kennedy of The Shaws, has said, those of us who are here today are not in the platoons of legal services for the poor lawyers who will be most hit by these cuts, along with their clients.
Baroness Verma
Perhaps the noble Lord could speak first, followed by the noble Baroness.
Lord Hylton
My Lords, I rise with great caution as a lay man in this very legal debate. However, I read the article in today’s Guardian by the Lord Chancellor, in which he spoke of promoting non-adversarial solutions. I therefore invite the Deputy Leader of the House, when he replies, to tell us a little about how that will work out in practice and to what extent those kinds of solutions will compensate for the very large cut that is proposed to be made to the current legal aid budget.
Baroness Whitaker
My Lords, I will be brief. Very much following the speech of the noble and learned Baroness, Lady Butler-Sloss, I should like to add another slant to why the amendment should be supported. The trouble is that Clause 1, as it stands, does not confer access to justice. The wording does not make it clear that such a provision will meet individuals’ needs. It could be minimal, perfunctory and partial, and yet still comply.
What individuals need is the crucial element of what my noble friend Lady King of Bow called in her Second Reading speech the state’s compact with the citizen: that is, if the rule of law is unintelligible and unavailable to the citizen, their rights and responsibilities are withheld, so not only is the individual deprived of what they might be entitled to but democracy is significantly eroded. We should not allow the wording of Clause 1 to be unamended, and I hope that the Minister will recognise that.
Baroness Howe of Idlicote
My Lords, we have heard legal speeches from the top lawyers in this country, and no one should fail to recognise that. In particular, as my noble and learned friend Lady Butler-Sloss said, this is a very modest amendment that clearly takes account of the situation that we are all in. However, those of us—and there are many in this Chamber—who sat through Committee on the Welfare Reform Bill know very well where the needs are. There are needs other than those who are disabled or have special needs. As we heard, I think a couple of days ago, there are those who suddenly hit crises and need help.
Above all—from the way I look at these things; I wish we knew more—I support my noble friend Lord Ramsbotham’s plea for rehabilitation. One should consider the amount of money that we could save if we actually addressed the point about early intervention and all the matters that are now rising to the top of the list of things that are accepted but to which we are still not prepared to give the resources that are needed.
I also realise that there are difficult loyalties between members of the coalition. One or two of your Lordships have made their position clear, and I admire them for it. It is difficult to vote against your party. I almost beg the Minister to realise that the amendment would meet his and the coalition’s needs and should be accepted.
Lord Thomas of Gresford
My Lords, I have been involved with legal aid for longer than anyone except my noble friend Lord Phillips. I started in 1958.
Lord Thomas of Gresford
I can go from 1958 to last Friday on doing legal aid work. I do not know whether the noble Lord can follow me on that, so I have some experience of legal aid. I have filled in the forms and appeared in various tribunals and courts, and I have sometimes appeared pro bono with the assistance of legal aid granted by panels of solicitors who control that sort of thing. However, I am afraid that the amendment does not say anything. That is my concern. It states:
“The Lord Chancellor must secure … that individuals have access to legal services that effectively meet their needs”.
That is a fine statement of principle, except that it is qualified in two ways: first, by the words,
“within the resources made available”,
and importantly by the words,
“in accordance with this Part”.
That can have meaning only if we look at what is in this part of the Bill, not just at this precise moment but by the time we have finished dealing with it.
Your Lordships have seen the Marshalled List and will appreciate the number of amendments in my name that make it clear that I am not satisfied with the settlement put forward by the Government within the resources that are made available. The noble Lord, Lord Clinton-Davis, asked what the Bar Council, the Law Society and all the NGOs say. They speak with one voice and accept the need for reductions. They accept that case, and so do I. It is an unhappy position and I wish it were otherwise.
In my Second Reading speech, I said that I hoped that the Government would commit themselves to saying that we are not here to squeeze government expenditure for all time but that when the economy improves we can widen the use of resources that will be available at that time.
Lord Clinton-Davis
What the Government are proposing will cost much more, because of various things. What does the noble Lord have to say about that?
Lord Thomas of Gresford
I will say something about that in our debate on Amendment 2. I entirely agree. I think that the Government are making a mistake in welfare law and that cutting legal advice and assistance for people at the bottom end of society will cause more problems than it solves; it will not achieve the savings that the Government think it will. That is my case. Your Lordships have only to look through the Marshalled List of amendments to see that, time and again, I seek to rejig Part 1 in a way that I think will make more sense while attempting to save the Government the money that they must save to meet the deficit in this area. That is why, to be honest, I am not concerned about this amendment. As I said, it does not say anything; it just concerns what resources will be necessary to meet what will be in this part of the Bill when we have finished with it.
Our decisions in Committee should not be about piling back in everything that has been taken out. We are living in a different world. There are different needs. Society has changed. From getting on for 60 years of experience, I think I know what those needs are. I hope, with your Lordships’ assistance, to go through it all piece by piece, detail by detail, and point out to the Government what they should rethink.
I can make a speech about principles. Good God, I have done rhetoric all my life—I am a Liberal Democrat. I listened to the noble Lord, Lord Howarth, earlier. He made a fine speech, and I agree with every word, but what it had to do with the Committee's proceedings I was not quite sure.
We want to get away from rhetoric and down to the nuts and bolts of the Bill to see what solution we can come out with at the end. That is why I shall support my noble friend if this is taken to a vote and ask my colleagues to come with me to support the Government at this stage. It might be necessary later in our proceedings to hammer home certain points that we have not yet discussed, but I respectfully suggest that it is not necessary to defeat the Government on this amendment.
Lord Beecham
My Lords, I must begin by declaring some interests. I am an unpaid consultant with the firm of which I was senior partner for 30 years, in the course of which I engaged in legal aid work in the fields of personal injury law, family law and criminal law. I was also one of the founders of the citizens advice bureau in Wallsend, near the town in which I live, and I was instrumental in securing a law centre in Newcastle. I also have to declare a paternal interest, as my daughter practises in the field of housing and employment law at the Bar.
I congratulate the noble Lord, Lord Pannick, and his co-signatories on tabling the amendment. I confess that I share some of the reservations expressed by other noble Lords about the qualification included in the amendment. I am tempted to say that if my noble and learned friend Lord Goldsmith is satisfied, I must be satisfied. In all events, I am open to persuasion by the noble Lord, Lord Pannick, whom, with his display of forensic skill and general persuasiveness, I have never heard without being utterly persuaded. I am sure that he will persuade me and others of your Lordships that the amendment is on the right lines. The reference to Part 1 is predicated upon changes that I think many of your Lordships would like to see to the scope of the Bill.
The key issue for Parts 1 and 2 is that of access to justice, as fully explained by the noble Lord, Lord Pannick, in his brief opening remarks. There are two parts of the Bill with somewhat different purposes. Part 1 deals with legal aid, which is what we are dealing with today. Part 2 deals with litigation funding and is based on the recommendations of Lord Justice Jackson. Taken together, they mark a fundamental change in our system of justice. We will debate the Jackson proposals in Part 2 later. Many will see merit in many of his proposals.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I thank the noble Lord, Lord Beecham, for his words. We are very pleased to see the noble Lord, Lord Bach, with us. He very courteously explained to me the personal reasons why he could not be with us earlier, but it is good to see him in his place now.
The debate has taken on some of the aspects of a Second Reading debate and it is none the worse for that. The first amendment allows for such wide-ranging points to be made. I shall not try to reply to them all at this point, as we are at the very start of Committee stage. My noble and learned friend Lord Wallace and I will return to many of the issues, like medical negligence and social welfare, as the Committee stage runs forward.
I accept the point made by the noble Lord, Lord Beecham, that the official Opposition are not arguing for retaining the status quo. He and the spokesman for the Labour Party in the other place have made it clear that, if they had been in office, faced with the economic situation with which we are faced, they too would have been making cuts. The debate is about where those cuts should be made and with what impact. It is fair for him to look at the impact assessment, and the fact that it lends some ammunition to him is an assurance that it is a very fair impact assessment. The very first question I answered from this Dispatch Box about the Bill related to the fact that if you make budget cuts to a section of government expenditure that is focused mainly on the needy, it is the needy who will find the impact of those cuts. That is true of housing, social welfare, and so on, and that is the reality of a Government who have to cut back on expenditure.
I make no complaint at all about the contributions from lawyers in the debate. If we were debating a fundamental issue about medicine, I would hope that the noble Lord, Lord Winston, and other expert medics in the place would contribute; and if we were talking about defence, I would hope that our generals would contribute. I do not think that there is anything wrong with the fact that a large number of the contributors have come from the legal profession. The daunting thing for me, as a non-lawyer, is the array of talent that is on display from the legal profession. I always remind my colleagues down the corridor that, whenever I stand at this Dispatch Box, I am very conscious that somewhere in the listening audience there are about three former Lord Chancellors and half a dozen former Solicitor-Generals or Attorney-Generals. I have never quite got to grips with the number of QCs that we have in the House of Lords, but there is a goodly number. We have good legal expertise and this debate is, and the Committee stage will be, all the better for it.
It is certainly not my intention to approach this—I am trying to find that barb from my noble friend—with something like tetchy impatience. In fact, over the past few months, I have been watching my noble friend Lord Howe at the Dispatch Box. He will be my model for this Committee stage—a kind of concerned bedside manner.
However, in talking about Committee stage when I was on the Benches opposite, I was on record as saying that if the House divides in Committee, almost invariably one will have to resist. I genuinely want to use Committee stage to listen. I cannot make blanket promises and I certainly, at this stage, cannot start giving a list of concessions. The position of the Government is that the Bill has been delivered from the other place in pristine condition and ready for adoption but, as our system works, we listen to the advisory—
Lord Beecham
I am not so sure about adoption being that much more difficult these days.
Lord McNally
We will listen and we will ponder. I hope that that will be the spirit in which we conduct the debates. It is certainly not, as the noble Lord, Lord Alton, suggested, an attempt to turn the clock back. Even when this exercise is finished, no one could dispute that we will have one of the most generous legal aid schemes in the world. My right honourable friend the Lord Chancellor, in his article in the Guardian, which has been quoted a number of times, says:
“Access to justice is a fundamental part of a properly functioning democracy”.
He goes on to make the point that the noble Lord, Lord Howarth, and a number of others made: “Without legal aid, and”—I emphasise this—
“the dedicated lawyers who deliver it, our system of justice would quite simply collapse”.
That is the starting point.
Lord Alton of Liverpool
The noble Lord, Lord McNally, has just cited the idea that we have the most generous legal aid system anywhere in the world, which he said no one would dispute. During the debate, noble Lords have heard from the noble Lord, Lord Beecham, myself and others about what Lord Justice Jackson has said about any further cuts in legal aid. He certainly disputes it, as do surely many others.
Lord McNally
There is absolutely no logic in what the noble Lord has said, with the utmost possible respect—I think that is what you say to each other when you are insulting one another. Lord Justice Jackson may well have a perfectly reasonable opinion that legal aid should not be cut, but it does not follow that, if it is cut, it will not remain the most generous system in the world. There is a non sequitur in what was said. Lord Justice Jackson says that he does not want the present system cut, which is fair enough but, if the system is cut, it will remain the most generous legal aid system in the world.
Lord Phillips of Sudbury
Does my noble friend at least accept that we legislate vastly more than any free democracy in the western world? We have between 200 per cent and 400 per cent more statute law than any free state that I have yet discovered.
Lord McNally
I have no idea whatever whether that figure is correct. I am not even going to promise to write to my noble friend about that. Yes, I think both members of the coalition came into government determined to legislate less and I am sure that, if and when power changes, any new Government will come into power wanting to legislate less. However, you get into a department and find that it has two or three Bills that it has just been waiting to get on to the statute book, or some campaigning organisation, probably chaired by my noble friend Lord Phillips, has a ready-made Bill to get on to the statute book as soon as possible.
First, perhaps I can deal with the calumny from the noble Baroness, Lady Mallalieu. I am not a Home Office Minister; I am a Ministry of Justice Minister. We benefit from that subtle division of responsibilities carried out by the previous Administration, which has so benefited government. Just as my noble friend Lord Carlile emphasises the liberalism of his approach, I make no apologies for approaching these matters as a social democrat. I look at these issues through those eyes, including that raised by the noble Lord, Lord Ramsbotham. It is extremely important that in reforming our justice system, we keep rehabilitation in the forefront. It is important to make clear that we will have a vigorous system to prosecute justice and punish offenders. However, if we carry on casually allowing the upward rise of our prison population into six figures, it will be a self-defeating process. Unless we attack the rehabilitation of offenders to stop the horrendous reoffending rates, as the noble Lord, Lord Ramsbotham, has often championed, we will be doomed to be spending increasingly more on punishment in a justice system with no real help to society at large.
This has been a philosophical debate. The noble Lord, Lord Howarth, set the tone in a speech which, as my noble friend Lord Thomas of Gresford pointed out, was wonderful in its rhetoric but brought us to why there was not universal support for the Pannick amendment. It suggested that the Government might have to take some account of the resources available. The noble Lord, Lord Howarth, went back to Magna Carta, quoting Lord Bingham and others. I have beside my bed a copy of his The Rule of Law, which is a guide for any lay innocent Justice Minister. We have to accept the fact that Governments and departments have to meet budgets and that they cannot find blank cheques and never have been able to.
I went to see the noble Lord, Lord Hutchinson of Lullington, who, sadly, can no longer attend the House and has taken leave of absence. Jeremy Hutchinson is now 96, but was one of the group of lawyers who helped to bring in the 1949 Act. He said rather wistfully, “We thought that we were bringing in a National Health Service for law”. In a way, I can understand that that is a noble aspiration. However, as successive Governments have shown, it is one that must be constrained by the economic realities of the day. Therefore, we are having to make choices—and sometimes hard choices. Perhaps I may again quote my right honourable friend’s article in the Guardian:
“The logic is simple: to determine carefully which types of cases most urgently merit scarce resources, to encourage people to use non-adversarial solutions to their problems where appropriate, and to speed up and simplify court processes where they are not”.
That is the philosophy of the Bill and it is what we are attempting to do. It is unfair when people use language suggesting that we are taking an axe to a whole system of justice. I know from my contact with the Lord Chancellor that that is not his intention.
The noble Lord, Lord Hylton, asked me about our approach to non-adversarial solutions. As the Lord Chancellor indicated in the Guardian article, we are looking to increase funding for family mediation. The Government are committed to increasing it by £10 million, which would fund an extra 10,000 cases.
I hear the speeches from my own Benches and am always interested when someone like my noble friend Lord Carlile makes an intervention followed by praise for courage from around the House. I draw his attention to the line in George Bernard Shaw’s “Saint Joan”:
“Woe unto me when all men praise me!”.
Actually, I am a little bit old fashioned. I believe that the real courage is in standing up and saying, “I support the Government. I think that this is a very good Bill and I intend to vote for them tonight”.
Lord Lester of Herne Hill
I am sorry to interrupt and I am grateful to the Minister for giving way. I want to help the Minister, I really do. I do not yet understand whether he really disagrees with the principle stated in the amendment tabled by the noble Lord, Lord Pannick. The principle stated would replace what is in Clause 1 with what seems to me a platitude but a very important one. I do not hear the Minister say that he thinks it is not the right principle.
I suggest that this needs to be thought about right now because we had the same situation in connection with the Public Bodies Bill. In Committee on that Bill, the noble Lord, Lord Pannick, and I did a rather bold and perhaps unthinkable thing and I stood on my head about it. The noble Lord made the House divide on my amendment to write a principle at the front of that Bill. We did that at the beginning in Committee, and getting the principle in had a beneficial effect. I am not suggesting that that might be necessary now, but it would help those of us who are loyal to the Government to know whether there is a real disagreement with the statement of principle in the amendment of the noble Lord, Lord Pannick.
Lord McNally
If my noble friend had a fault—and, my God, that is a dangerous thing even to suggest—it is his impetuosity. I was just coming to the nub of the Pannick amendment, but thought that after a long debate it was reasonable to try to pick up at least some of the points made by noble Lords.
The amendment seeks to place a statutory duty on the Lord Chancellor to secure access within the resources made available and in accordance with the provision in Part 1: the legal services that effectively meet the needs of individuals. We accept that this proposed amendment is very similar to the duty placed on the Legal Services Commission by Section 4(1) of the Access to Justice Act 1999. We also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1. However, against the backdrop of this Bill, we believe that Amendment 1 is unnecessary. It is central to our proposal for reform that the reforms establish an affordable system while ensuring that no one is denied their fundamental right of access to justice. Legal aid will be a key element in ensuring access to justice in some cases, but in many cases justice can and should be afforded without the assistance of a lawyer funded by the taxpayer. Fundamental rights to access to justice are the subject of international protections such as the European Convention on Human Rights and certain enforceable EU rights, and are protected by this Bill in relation to legal aid through the areas retained in scope in Schedule 1 and through the exceptional funding provision in Clause 9.
The exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. These rights are of fundamental importance, and the Government consider that the Bill adequately protects them. However, we do not consider that any more extensive right to taxpayer assistance by way of legal aid to access to the courts should be established. In light of the way the Bill protects fundamental rights of access to justice, to the extent that the amendment seeks to introduce requirements over and above what is required by, for example, Article 6 of the European Convention on Human Rights, it is not desirable or necessary. To the extent that it would require no more than, for example, Article 6, it is also unnecessary. Clause 1 states that the Lord Chancellor must secure that legal aid is made available in accordance with Part 1 of the Bill. The Lord Chancellor has powers under Clause 2 to make arrangements to meet that duty.
Considerations about the demand for civil legal aid services have not been ignored. Under Clause 10 the Lord Chancellor will make regulations setting out criteria that the director of legal aid casework will be required to consider when making decisions. When settling the criteria, the Lord Chancellor must consider the extent to which the criteria should reflect certain factors. These include the availability of resources to provide the services and the appropriateness of applying such resources to provide the services, having regard to present and likely future demands for civil legal aid services.
In addition, the Lord Chancellor will be required, in carrying out his functions, to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor will have specific duties under the Constitutional Reform Act 2005. We have also been clear in our response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and to put in place a procurement strategy that will reflect the demands and requirements of the new legal aid market.
Having read that out, I appreciate that a large number of noble Lords will want to read Hansard, see what it says and see how it matches. It would be madness for any Minister faced with an amendment tabled by the noble Lords who tabled this amendment simply to dismiss it. I will certainly draw the attention of the Lord Chancellor to the debate.
Lord Clinton-Davis
So far the Minister has not mentioned the conversations that he and the Government have had with the Bar Council, the Law Society and other bodies concerned with this aspect of law. They have been critical of the Government's approach, have they not? In what way?
Lord McNally
At one stage I accused Peter Lodder, chairman of the Bar Council, of stalking me, so often did I see him. Of course the Bar Council, the Law Society and various other bodies, including committees of this House, will give an opinion on legislation. We are certainly in conversation on these matters. The noble Lord shakes his head, but when he was a Minister he did not say, “Come in, vested interests, tell me what you want and I will do it”. He listened to them, and where they could convince him he made changes. I assure noble Lords that my honourable and right honourable friends the Ministers in the other place and I have made ourselves constantly available to a wide range of bodies, including professional organisations, and we will continue to do so during the passage of the Bill. No organisation has a rubber stamp on the matter, but we will listen.
In philosophy and in content, this has been an extremely useful debate that I will draw to the attention of the Lord Chancellor. When it comes to the crunch, we face a division between the principled approach of the noble Lord, Lord Howarth, that access to justice means that we must pay the legal aid bill, whatever it is.
Lord Howarth of Newport
I referred to expenditure that was genuinely necessary to ensure that all our citizens have equal access to justice. I certainly did not endorse any inefficiencies or extravagances in the legal aid system that there might be at the moment.
Lord McNally
The point is that that is genuinely what we, too, are trying to do. It is a matter of judgment. In the next month or six weeks, as we take the Bill through the House, we will test those judgments in detail. I hope that in the light of my response, the noble Lord, Lord Pannick, will withdraw his amendment.
Lord Lester of Herne Hill
The Minister referred to Article 6 of the convention being the standard. We should bear in mind, as he said, that among the 47 states we have one of the best systems, yet by using Article 6 we are adopting a standard well below common law and anything that we in this country have enjoyed since 1949. Will he reflect on that?
Lord McNally
As I said, I reflect on almost anything that my friend says, and it is now in Hansard as well.
Lord Pannick
My Lords, this has been a lengthy debate that has touched on a large number of very important issues. In responding, perhaps I may briefly take the attention of the Committee back to what we are debating: the terms of Amendment 1. With all due respect to the Minister, I simply cannot understand his objection to the amendment. It is not a matter of legal complexity, it is not a matter of legal expertise, and it is certainly not a matter of philosophy. Surely the amendment identifies in terms that I hope are clear and uncontroversial the aims of the legal aid system in our society. It recognises that the provision of legal aid must be within available resources, so it does not cut across the Minister's understandable desire to save money. There is no question of the amendment requiring a “blank cheque”, which was his phrase in answering criticisms of the Bill. Surely a statement of constitutional principle such as this is absolutely vital at the start of a Bill of this nature.
I suggest to noble Lords that the Government's refusal, through the Minister, to recognise a simple, and I hope uncontroversial, statement of principle in Clause 1 is deeply troubling in what it tells the Committee and the world outside the House about the Government's approach to legal aid and to the more detailed provisions that we will come to debate in Committee.
Lord Thomas of Gresford
Perhaps the noble Lord would outline what is meant by,
“in accordance with this Part”.
Lord Pannick
I will come to the noble Lord's concern that the amendment does not go far enough. My point is that if the Government are not even prepared to recognise the principle that the Bill should seek to secure, within the resources available, individuals’ access to legal services that effectively meet their needs, why should the Committee support the detailed reductions in the scope of legal aid that we will come to debate?
Lord Thomas of Gresford
I do not think that the noble Lord grasped my point.
Lord Pannick
I will deal with the noble Lord’s point if he will be patient; I prefer to deal with it in the course of my remarks and not at this precise moment. The Minister said that the amendment was unnecessary. I say with respect that that ignores the need for a statement of constitutional principle to assist the Lord Chancellor, the director, the courts and the public. The Minister suggested that these matters were inherent in the role of the Lord Chancellor. What, then, is the objection to putting the statement in the Bill?
The Committee heard support for the amendment from all sides of the House, and I am grateful to all noble Lords who spoke. The only noble Lords who spoke against the amendment, apart from the Minister, were the noble Lords, Lord Phillips of Sudbury and Lord Thomas of Gresford. Each was concerned that the amendment did not go far enough: that it was either anodyne or positively dangerous in cutting down on the possible provision of legal aid. I say to each of those noble Lords, and in particular to the noble Lord, Lord Thomas of Gresford, that his comments, with respect, ignore the provision that has been on the statute book since 1999: Section 4(1) of the Access to Justice Act 1999, the terms of which are echoed in this amendment. Under all Governments since 1999, that has been the state of the law, and Section 4(1) refers both to “the resources made available” and to provision,
“in accordance with this Part”,
so I cannot understand the objection to including those same phrases in Amendment 1.
Lord Thomas of Gresford
I do not think the noble Lord has grasped what I was saying. The amendment states,
“in accordance with this Part”,
but we have not determined what this part will cover. As the noble Lord realises, I have put down many amendments to Part 1 in an attempt to rejig what will be in scope and what will not. He is inviting the Committee to accept,
“in accordance with this Part”,
at the very outset before we have decided what is going to be in it.
Lord Pannick
With great respect to the noble Lord, I am inviting the Committee to accept that whatever the Bill is at the end of proceedings in this House and in Parliament as a whole, it is vital to have at the outset a statement of constitutional principle. This amendment is entirely without prejudice to all the amendments that we will be debating, considering, and perhaps voting on, many of which I support, but that is an entirely distinct question from the issue that we are now debating, which is the constitutional principle about what goes into the Bill. I was particularly grateful to the noble and learned Lord, Lord Goldsmith, for his support on this point, and I respectfully agree with what he said.
I am not going to test the opinion of the House today—I am going to take the advice of the noble Lord, Lord Newton of Braintree—but I very much hope that the Minister will be able without a vote to recognise that the opinion of the House is very strongly in favour of this amendment for all the reasons that have been expressed in Committee today. I am sure that the Minister will recognise that if there is no movement on this issue—an issue that I and many other noble Lords regard as absolutely fundamental—the House will return to this matter on Report, and it is clear, I suggest, that the Minister and the Government will face a substantial rebellion on their own Benches. For the present, I beg leave to withdraw the amendment.
Lord Thomas of Gresford
“( ) The Lord Chancellor must secure equality between the state and any party in dispute with the state in the provision of services of advice, assistance and representation for appeals on any point of law in the fields of welfare benefits, employment, debt, housing, immigration, education, and asylum.”
Lord Thomas of Gresford
My Lords, we are now coming to what I regard as the nitty-gritty of this Bill: what is going to be in scope and what is not? What is to be provided for? I have focused in particular on the area of welfare law, which I think is of extreme importance in our deliberations. I am speaking to Amendment 2, and, as your Lordships can see, to Amendments 29 and 78. They are concerned with the provision of legal aid in the appeal system in the tribunals. I have other amendments set down which I hope will address what I consider to be a very important part of our deliberations: how do you provide advice and assistance to people before they ever get into the tribunal system? When they are faced with a problem and they want a resolution of it, to whom do they go? I have amendments down which will deal with that part of the matter.
It seems to me to be a fundamental principle that if you get to the Second-tier Tribunal and then to the appeal courts beyond that and if, as will undoubtedly happen, the Government are represented by counsel and solicitors ready to argue the point in front of those experienced tribunals, under the principle of equality of arms, which is a very important principle under the European Convention on Human Rights, it is very important that the applicant—or appellant, as he will have become—should be fully represented as well. It would be quite improper, wrong and a breach of the convention if we were to have litigants in person in front of the Second-tier Tribunal and beyond seeking to put their case forward and to argue law as well as fact.
I sometimes have the feeling that the Ministry of Justice is living in the past. At one time, when the tribunal system was set up, it perhaps—I am not convinced of it—did not require experience, skilled advocacy and the putting together of a case. However, with all the legislation going through that my noble friend Lord Phillips of Sudbury is concerned about and with the new Bill on welfare law, it is clear that there are going to be some very important issues of law to be discussed at that level. Therefore it is quite simply a statement of principle in Amendment 2 and of practicality in the two other amendments to which I have referred that I urge upon your Lordships for your consideration. Equality of arms is vital to justice, and nowhere more so than in the field of welfare law. I beg to move.
Lord Newton of Braintree
My Lords, I shall intervene briefly. My remarks, such as they are—I hope they will not be long—apply also to quite a number of other amendments for which I shall not be able to stay, some of them in the name of the noble Lord, Lord Bach. At Second Reading, I indicated that I have a lot of sympathy with many of these concerns, not least those in the field of welfare, for exactly the reason that my noble friend Lord Thomas of Gresford has just outlined. At one and the same time, we are passing—or the Government are proposing that we should pass—significant changes in the welfare area affecting hundreds of thousands of people and we are seeking to reduce the scope for people to have legal aid or support of one kind or another in challenging some of the decisions that will then be made. I think I referred to it at Second Reading as a sort of pincer movement in that respect and I see no reason to change that judgment now.
That leads me to make two or three points. First, we really need something that we have not had, which is a combined impact assessment of the effect of the various pieces of legislation on poor and vulnerable people. We have not had it. This is not joined-up government and it is very difficult to make a judgment about what we collectively as a Parliament are doing to these people in those circumstances. That is aggravated by what has been acknowledged in this debate, which is that the Government do not know—I do not know whether the Minister will accept these words—what the financial effects of these measures will be, although we all know that there will be effects in increasing costs for other departments. The Government say that they cannot quantify them but I do not think that they would deny that they will be there. If they cannot quantify them, but cannot deny that they will be there, the savings figures are potentially meaningless.
Even within the Ministry of Justice, which I assume has costed the consequences, the extra costs of claimants, litigants and appellants defending themselves will almost inescapably drive up the costs of the Tribunals Service. Has that been measured? Is it taken into account in these savings figures? These are the questions to which we have to have answers. I do not want to see these amendments pressed to a Division tonight any more than I did the previous one, but they enable us to say that we need to know what we are doing before we can make a judgment in these matters.
I cannot stay for too much longer for reasons which I hope the House will understand but there are all sorts of things that one could say. Mediation was referred to earlier as well as alternative forms of advice in one way or another. Again, we need to know just what the position is. I should make the point that mediation has absolutely nothing to do with social welfare. You cannot have mediation about whether you are entitled to a benefit or not. You either are or you are not, although I accept that mediation may have a part to play in some other areas about which we are concerned.
In any event, we keep hearing talk about more cost-effective ways—I do not know the exact phrasing—of assistance, advice and so forth. But as has been said and as was illustrated in the debate on the CABs not much more than a week ago, most sources of advice are being squeezed either by this Bill—for example, the effect on law centres and other advisory services depending on pro bono work or legal aid work from lawyers—or by the squeeze on local authorities, which is putting the bite on CABs. We then hear talk about this, that or the other amount of money being available, but it is far from clear whether the Government know whether the availability of other forms of advice is going up or down and whether the measures will have any significant effect in either direction. We need to know more about all this before we can make a sensible judgment. I am very grateful to my noble friend for having raised this issue, even though I hope that he will not press it further tonight.
Baroness Lister of Burtersett
My Lords, it is always a pleasure to follow the noble Lord, Lord Newton, who I am tempted to call my noble friend even though technically he is not. I rise in support of Amendments 2, 19 and 29 in particular, although I do so with some trepidation because I am not a lawyer. After what my noble friend Lady Kennedy of The Shaws said, perhaps that is not such a bad thing after all. In fact, my first job was as a legal research officer with the Child Poverty Action Group. Many people assumed that I was a lawyer because the group did not have one in those days.
From what we have already heard in relation to Amendment 1, this Bill is not about a narrow understanding of the law; it is about an understanding of the law as an important instrument of citizenship. These amendments are about something I spoke on at Second Reading, the relationship between the citizen and the state. I cannot believe that any Member of your Lordships’ House wants to weaken the position of the individual citizen against the state, yet my fear is that that is what this Bill will do in Part 1.
I am a believer in the state, particularly the welfare state. But the state can loom very large and very oppressively in the lives of some of our most marginalised citizens. It is really important that they can turn to the legal system in their relations with the state. I also want to refer briefly—we will come back to this in later amendments—to the importance of the tribunal system. One of my first pieces of work as legal research officer at the Child Poverty Action Group was on one of the first empirical studies of the supplementary benefit appeal tribunal system. I was very privileged to be supervised by the late Professor John Griffiths, who I think would be horrified by the measures in front of us today.
Lord Phillips of Sudbury
My Lords, I agree with every word that has been spoken so far. I say to my noble friend the Minister that it is easy for those who have never been involved in what one might call social security law to underestimate the extent to which so-called ordinary citizens can be completely baffled and often frightened by their engagement with it, certainly if one is talking about appeals; it is important for the Minister to note that the amendment, to which my name has been added, is only in respect of appeals on points of law. I ask him to contemplate how he would feel, with all his self-confidence and eloquence, if he had to go before any of the tribunals mentioned in Amendment 2,
“welfare benefits, employment, debt, housing, immigration, education, and asylum”,
although heaven forfend that the Minister should appear before a tribunal in relation to asylum. Seriously, however, it is not reasonable to demand a citizen even to decide whether he or she has a point of law which can be taken before a tribunal. It is simply unrealistic. One could almost say it is cruel to pretend that we are creating rights for those citizens most in need when they cannot even get advice and representation on points of law at appeals.
Finally, I shall quote from the National Association of Citizens Advice Bureaux briefing that has been sent to us all because I am sure that we all share a huge admiration for Citizens Advice. The association says that it agrees with the arguments made covering legal assistance in the Upper Tribunals, which share the jurisdiction of the High Court and follow complex procedural rules to hear appeals on points of law; and that most often it is either public bodies or large corporate employers that use these tribunals to appeal decisions made in the claimant’s favour in lower tribunals, and they instruct legal counsel to do so. It is important to realise that it is not Mr Jones or Mrs Brown appealing, but the public body they have worsted at the tribunal appealing against the order made in their favour. If these people are denied the right to legal representation, what sort of justice is that? It is not justice and I hope that, with regard to this amendment and the others in the group, the Government will consider and agree to this change.
Lord Williamson of Horton
My Lords, on an amendment such as this it is important that we look first at the substance. This is an important and substantive amendment, and in general I think it is a very good one. However, it is also important to look at the text. I have one point on the text which, if I may, I shall put via the Minister to the mover. The reason I do so is that the coverage is very wide; that is to say, the amendment covers employment, housing and education —not just other welfare services but a whole range of things that go very wide. My question concerns the phrase,
“in dispute with the state”.
To a lawyer that may be absolutely clear, but as a non-lawyer I am not clear about what is covered in terms of important bodies like local authorities and so on. They are part of the state, but are they fully covered? Such a range of things is listed here that I would like some clarification on that.
For example, what about a state-owned bank which is in dispute with its staff about employment? Is that or is that not covered? I do not want to make too much of this point because it is not a substantive one on the main objective but, if we have an amendment before us, it is quite important to understand what the intention of the mover is in relation to its coverage.
Lord Dubs
My Lords, I am in broad agreement with the amendment, although again I share the reservation expressed just now by the noble Lord, Lord Williamson, as to what is meant by the state. Does that mean central government, local government, public bodies or other agents of the state? That needs to be made clear because in some of these areas there might be a dispute with a local authority or even a housing association.
Anyone who has been a Member of Parliament or a local councillor will know that at their Friday evening and Saturday morning surgeries there will be people who come in on all these issues. The question then is where one refers them to. I am not absolutely clear whether the phrase,
“appeals on any point of law”,
is at a higher level or whether it refers to a first-instance tribunal. That may reflect my lack of legal background. However, if one has given advice as a Member of Parliament or as a local councillor, one has to become a little bit of an expert at triage in recommending where one’s constituents should go for more specialised advice. I used to have the social security handbooks so that I could look these things up, and one becomes not too bad at it. One is never an expert, but one needs to be good enough to know where to refer people, and hence I appreciate that the amendment talks about “advice, assistance and representation”. The reference to “advice” is important because we all know that if there is a dispute between an individual and the state or local government, the individual needs help.
I agree strongly with the noble Lord, Lord Phillips, that this is too difficult for people. Some of us, even the non-lawyers, might have enough experience and legal friends to give us advice, but for most people it is too daunting a prospect. We even know from our surgeries how nervous people can get about going to see their MP because MPs are authority figures. One needs to put them at their ease in order to discuss their issues with them. Expecting people to be unrepresented at a tribunal is simply an impossible suggestion. It is not going to work. People need further help in order to do that. So, while I like the amendment, I have my doubts about the word “state”. However, I hope that it will help the argument along on what is a very important part of the difficulty that this Bill presents us with.
Lord Hylton
I support the principle laid out in Amendment 78, which is in this group, because appeals will almost always involve points of law. However, I urge the Government to think further about the kind of legal advice that is essential to immigrants and asylum applicants at a much earlier stage in the process. They cannot be expected to know when they leave their country of origin everything that is contained within the 1951 UN Refugee Convention, nor can they be expected to know the highly complex law that we now have in this country, much of which is expressed in statutes which refer to earlier statutes.
Therefore, I ask the Government to think deeply, as the previous Administration began to do when they set up the Solihull pilot project, about providing legal advice to asylum seekers at a very early stage before even they have had their principal interview. That project has been going on for more than one year. I hope that it will very soon be possible to draw practical conclusions from it which can be extended to the whole country.
Legal advice for these people does not necessarily have to be given by fully qualified solicitors or barristers who know or can be expected to look up the whole range of English law; it needs to be given by persons who understand the current content of immigration or asylum law.
Lord Bach
My Lords, I apologise to the Committee for not being present during the first, very important debate. I hope that I informed the principal players in that debate that I would not be here for personal reasons —I had to go to a funeral of a dear friend. I am grateful to the Minister for welcoming me in the manner in which he did. However, when I came and heard my noble friend Lord Beecham making his speech, I wondered why I bothered to come back at all.
Lord Bach
That is what I mean—in case there is any misunderstanding about it. I can see how that could be misinterpreted.
As the noble Lord, Lord Thomas of Gresford, said, with his Amendment 2, to which he spoke along with his later amendments, Amendments 29 and 78, we get down to the nitty-gritty. I want to talk briefly about Amendment 19, which is in my name and that of my noble friend Lord Beecham. It is the first outing of what I think will be a very important issue in this Committee, which is what should happen to scope of legal aid in particular areas of social welfare law.
The noble Lord, Lord Thomas of Gresford, and the others who spoke in favour of his amendment have been too gentle with the Government on this issue. It is absolute nonsense that there could be any question that anyone who gets to the second tier, the Court of Appeal or even, heaven forbid, the Supreme Court, on a point of law—for example, on a welfare benefits issue—should not have legal can not afford their own lawyer to conduct their case, and I very much hope that the Government put it in the Bill in order to take it out. It is inconceivable that John Smith, as it were, could turn up alone at the Supreme Court with his case and be faced with the Supreme Court justices and the very experienced and brilliant counsel representing the other side. I cannot think of any other Government, of any persuasion, ever having thought of doing anything like that. I am quite sure that the Government of whom the noble Lord, Lord Newton, and the noble and learned Lord, Lord Mayhew, were distinguished members would not even have dreamt of suggesting that someone should appear on their own at a case like that without the benefit of legal aid. I very much hope that we do not hear too much more about it.
Some vital case law—on welfare benefits, for example—has been decided at the higher courts as a consequence of the claimants concerned having been properly legally represented. Big social security test cases which reached the higher courts by way of the appeals process include Zalewska, on the lawfulness of the workers’ registration scheme; Hinchy, on the interpretation of the overpayment recovery test; Pedro, on the meaning of “family member in EU law”; and Mallinson, the seminal case on the interpretation of the law on disability living allowance. The idea that cases of that kind, or even those that are less important, should be conducted by a claimant in person is absurd. So I hope that the Government will accept Amendment 2 without cavil. Whether the wording is right is not a matter for tonight, but it is the principle that matters.
We argue in our Amendment 19, which is a probing amendment designed to find out what the Government feel about it, that the law should go wider and that there should be no question of taking out of scope reviews of welfare benefits. The amendment would ensure that individuals seeking to defend their fundamental economic and social rights had the advice that they needed to be able to present their cases and understand the processes that they would be subject to. Our amendment would allow the applicants to get advice before going to a tribunal. The First-tier Tribunals were set up, as we have heard, to consolidate the various tribunals that adjudicate on administrative matters of the state. Admirable work has been done and is being done to try to make First-tier Tribunals as user-friendly as possible—I praise the noble Lord, Lord Newton of Braintree, for having played a big role in this, as well as Lord Justice Carnwath, whom we should congratulate on being elevated to the Supreme Court today.
Lord Phillips of Sudbury
The noble Lord’s mention of Lord Justice Carnwath put me in mind of a fact which none of us has so far mentioned but which I invite him to endorse, which is that the amount of court and tribunal time wasted by having unrepresented appellants has a cost attached to it.
Lord Bach
I agree with the noble Lord and I shall say a little word about that before I sit down.
Admirable work has been done in the First-tier Tribunal to make it as friendly as one can. However, it is impossible—and the Minister has heard this from around the Committee today—to square the circle in that those tribunals still fundamentally are ruling on matters defined and decided through laws, rules and guidance, which is sometimes pretty heavy, that often carry criminal sanctions if violated. It is quite clear when one looks at official statistics on the First-tier Tribunals that the Government are wrong when they say that tribunals can be accessed without advice. You are twice as likely to win an appeal if you have had some basic advice rather than no advice at all. The Minister's team has kindly provided information that allows us to quantify the increase in likelihood of winning an appeal if the appellant has been advised. This is to the First-tier Tribunal. For some types of cases, such as employment support allowance, you are more than twice as likely to win. Given that it allows people to return to work, seeing thousands of cases that would have been won with advice is surely wrong headed.
Lord Thomas of Gresford
Rather than saying that cases would have been won, would the noble Lord not use the expression “gained access to justice and obtained the benefits to which they were entitled”?
Lord Bach
In my legal career and otherwise, I have always given way to better phrases used by Welsh lawyers and certainly by the noble Lord, Lord Thomas of Gresford, and I do on this occasion too. Access to justice is rather important because you cannot win if you do not have access to justice. One of the worries is that the Bill will ensure that there is no access to justice for many who have had it up until now.
The reason for marked disparities is that appealing on welfare benefits inevitably requires, as my noble friend Lady Lister and the noble Lord, Lord Newton of Braintree, have just mentioned, an understanding, whether we like it or not, of complex statutes and rules and guidance that govern how the state evaluates an individual's eligibility for legal aid. Had legal aid not been present in 2009-10, if we apply the success rate for those without advice to those who did receive advice, 51,223 people in total would have lost their appeals. The long-term cost of supporting those people is incalculable. Never mind Second-tier, Court of Appeal and the Supreme Court; to take out of scope advice on a review to the First-tier Tribunal is unfair and wrong.
The effect of people not being able to exercise their rights is again frankly explained in the Government's own impact assessment. The Government say that the changes may lead to:
“Reduced social cohesion … Increased criminality … Reduced business and economic efficiency … Increased costs for other Departments … Increased transfer payments from other Departments, in particular higher benefits payments for people who spent their savings on legal action”.
In welfare benefit cases, it is not enough to have legal aid at the Second-tier Tribunal upwards. In fact, if you do not have it earlier you are unlikely to ever get to the Second-tier Tribunal or above. Advice is needed when seeking to review, for example, DWP decisions before the First-tier Tribunal. It does not have to be expensive or sophisticated legal advice, but it has to be legal advice.
If advice is given at that stage, hopeless cases, as has been said, can be got rid of. First-tier Tribunals would not be so clogged up in the future. The Committee will remember what Judge Martin of the Social Entitlement Chamber said about unrepresented defendants—that at least 10 per cent of time is wasted in explaining what is going on. Proper cases can therefore go ahead quicker. In particular, many legal issues can be sorted out by the advice that is currently given so that the wrong can be put right before the tribunal ever gets involved.
That is what the present system does, although not perfectly. Lots of people do not take advantage of it and sometimes it does not work, but more or less it works pretty well. People get their advice, which frankly does not cost very much money and lawyers certainly do not get rich on it. The truth is that many cases no longer have to go anywhere near a tribunal. It does not encourage courts or tribunals: it actually avoids courts and tribunals. That is why it is slightly ironic that the Lord Chancellor said today in his Guardian article that legal aid’s,
“broad scope means that problems are dragged straight to the courtroom that could often be solved earlier and more simply elsewhere”.
That comment is not his finest: I would go so far as to say that it is rather absurd. The type of legal aid that he seeks to abolish is exactly the type of legal aid that he should be encouraging and reinforcing because it avoids courts and tribunals rather than encouraging them. In fact it often has some sort of mediating effect, and we know that mediation is an important and proper part of the Government's policy in this field.
The Minister has described himself today as a social democrat and someone who has a copy of The Rule of Law by his bed. If he is a person of that sort, he must see the argument that has been put in the Committee tonight.
Lord McNally
I thank the noble Lord, Lord Bach, for that summing up. I was well aware of his own deep concern about social welfare law and I am not surprised by the passion with which he deployed his arguments. I was interested that he talked about advice. Quite often as this Bill goes through we will move between what is advice, what is legal advice and what is taxpayer legally paid advice. It may be that some of the areas of concern are addressed by other means.
On the point made by the noble Lord, Lord Thomas of Gresford, about tribunals, I am advised that upper-tier tribunals are under a duty in accordance with the overriding objective to make sure that cases are dealt with fairly and justly. That includes,
“avoiding unnecessary formality and seeking flexibility in proceedings”,
and,
“ensuring, so far as practicable, that the parties are able to participate fully”.
I am also advised that legal aid is not available now under the current system for representation at the Upper Tribunal or on welfare benefit cases, so we are not operating from a basis on which legal aid is as generally available now, as some of the speeches might have indicated.
Baroness Lister of Burtersett
I might be wrong, but is it not true that legal aid is available for advice for people who attend those tribunals?
Lord McNally
The noble Baroness is an expert. She wrote a precursor to 1,620 pages of advice, so I will accept that. We will have plenty of opportunities for correction if either of us is wrong.
When I started as a Minister I started counting the number of times the noble Lord, Lord Newton, and I disagreed, but I have now stopped counting. Nevertheless, my love for him remains totally undiminished and I know of his own concern and expertise in this area. He mentioned the danger of a pincer movement, but a number of proposals that are currently being considered across government should make it easier for people to receive the right provision or entitlement in areas such as welfare, benefits and education. The most notable of these is the universal credit, which will help to reduce the scope of error significantly, as it makes the whole benefits system simpler and easier to understand. The Ministry of Justice is working closely with the Department for Work and Pensions as part of its wider welfare reform programme to improve the quality and effectiveness of initial decision-making in social security applications, considerations within the DWP and the system of subsequent appeals to tribunal. That is another aspect.
A number of people have asked about the impact of particular reforms. It has not always been acknowledged that other government actions might be improving the situation in some of these areas. It is always difficult to give the full impact of any particular measure. As the Lord Chancellor points out in his oft-quoted Guardian article—I did not know there were so many Guardian readers in the House—part of the aim is, to a certain extent, to change attitudes and approaches so that we do not become overly reliant on legalistic solutions. There might well be changes, both beneficial and less beneficial, in the outcomes of some of the things that are going on.
I accept the point made by the noble Baroness, Lady Lister, the noble Lord, Lord Phillips, and others that appearing before a tribunal is daunting for the lay man. The noble Baroness, Lady Lister, asked me a specific question about the cost of legal aid appeals to the Upper Tribunal on welfare benefit matters. I am advised that at the moment we spend approximately £1 million a year on legal aid for advice and representation on welfare benefit appeals to the Upper Tribunal and higher courts. I will come back to Amendment 2.
Amendment 19 deals with Clause 7, which defines what “legal services” and “civil legal services” mean for the purposes of Part 1. Clause 7 provides an overarching definition, but the specific levels of service—for example, legal help and legal representation—that will be available in any particular case will be set out in regulations made under Clause 10. This approach is based closely on the current model, where Section 4(2) of the Access to Justice Act 1999 describes the types of services that can in principle be funded, and the Legal Services Commission’s funding code criteria set out the precise levels of service that are available in any particular case.
The definition of service in Clause 7 is wide enough to cover the things that one would expect, such as advice from a high street solicitor about a case that a person wishes to bring. I can perhaps assure noble Lords that legal advice and assistance in relation to tribunals is a service that is already encompassed in the description of legal proceedings in Clause 7(1). Indeed, “legal proceedings” is defined in Clause 41 as meaning,
“proceedings before a court or tribunal”.
We rely on this for the provision of services, including advocacy, in, for example, mental health tribunals as set out in paragraph 5 of Part 1 of Schedule 1 or in paragraph 9 of Part 3 of Schedule 1. The definition of legal services in Clause 7 is therefore wide enough to include legal help and indeed advocacy in proceedings before a court or tribunal, and this amendment is unnecessary.
Amendments 2, 29 and 78 all broadly concern appeals to the Upper Tribunal and appellate courts on a point of law. Amendment 2 seeks to make legal aid available in relation to,
“appeals on any point of law in the fields of welfare benefits, employment, debt, housing, immigration, education, and asylum”,
where an individual is in dispute with the state. Amendment 29 seeks to make legal aid, including advocacy, available in social security appeals before the Upper Tribunal and appellate courts. Amendment 78 would add a new paragraph to Schedule 1 and seeks to include appeals on a point of law,
“from the Immigration and Asylum Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court”,
within the scope of legal aid.
The categories of law in question include ones such as welfare benefits where tribunals are used. Legally aided representation is not available for most tribunal hearings because tribunals are designed to be user-friendly, without the need for legal representation. Indeed, legal aid is not currently available for legal representation in point-of-law appeals on welfare benefits. Amendments 2 and 29 seek to extend legal aid even beyond its current boundaries by providing legal representation for these Upper Tribunal appeals.
The Government have considered whether funding remains justified for all appeals, regardless of the area of law in which they arise. In the Government’s view, it does not. Under the present scheme, funding is not provided for cases that are not considered a priority for the scheme, such as defamation or business cases, even where these take place in the High Court, the Court of Appeal or the Supreme Court. We consider that the ability of the client to represent their arguments and the importance and complexity of the issues will vary from case to case. The fact that a case is to be heard in a higher court or tribunal does not automatically mean that it will be particularly complex; nor will the forum in which a case is heard outweigh other considerations that determine our priorities for funding.
The noble Lord, Lord Hylton, referred to immigration. Since consultation, we have taken on board some of the concerns raised, including those raised during the passage of the Bill in another place on domestic violence and immigration cases. On the introduction of the Bill, we included in Part 1 of Schedule 1 funding for advice in asylum support cases concerning the provision of accommodation. However, our fundamental position has not changed. It is our view that most immigration cases do not require a lawyer. I should make it clear, however—because some of the points made by noble Lord, Lord Hylton, refer to asylum cases—that asylum cases will remain within scope. I can assure noble Lords that funding is being retained, including for advocacy, for a range of tribunal appeals. These include appeals to the First-tier Tribunal under the Mental Health Act 1983 and appeals to the Upper Tribunal in special educational needs cases. Here, we have focused our limited resources on the highest priority cases.
On the question of appeals to the Supreme Court, we will continue to fund appeals to the High Court, the Court of Appeal and the Supreme Court where the area of law to which the appeal relates remains in scope. Again, this will allow for our limited resources to be focused on areas of higher relative priority.
Amendment 2 appears to suggest the requirement of an equality of arms with the state in such cases. The principle of equality of arms is clearly important but is susceptible to misunderstanding. This amendment implies that justice can be done only in a particular case where both parties in proceedings have identical representation. This is not a view supported by the law, or by the experience of many litigants who currently appear before tribunals without the benefit of legally aided representation.
The important question is whether an imbalance in representation gives rise to an obvious unfairness in the proceedings. The case law on Article 6 of the ECHR sets out the circumstances in which legal aid will be required to guard against an obvious unfairness in proceedings. In determining this question, it is necessary to consider all the circumstances of the case, including the nature of the rights at stake, the complexity of the law, the capacity of the individual to represent themselves and whether there are alternative means of securing access to justice. In many cases, for example before tribunals, the procedure is relatively straightforward and there are sufficient safeguards in place to ensure that the absence of legal representation on one side does not lead to an unjust outcome.
Clause 9 provides for an exceptional funding scheme that will continue to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as the rights to legal aid that are directly enforceable under European Union law. I must emphasise that the threshold here is very high—as the name suggests, they will have to be exceptional cases. However, in cases in which Article 6 of the ECHR is engaged, the exceptional funding scheme will provide an important safety net for those in which an egregr—
Lord McNally
Thank you, Cambridge. This is the value of the House of Lords—there is always an expert around to help you. Queens’ College, Cambridge, comes to my aid.
Lord Prescott
The noble Lord would not have made that mistake if he had not been reading it out.
Lord McNally
This is another moment in history. I have been heckled for mispronunciation by the noble Lord, Lord Prescott. I stand corrected. The exceptional funding scheme will provide an important safety net for cases in which an egregious inequality of arms would lead to an obvious and unlawful unfairness in proceedings.
We have had to make difficult choices about legal aid. Our reforms to the scope of the scheme are designed to refocus civil legal aid on the most serious cases in which legal advice and representation is justified. In social welfare law, education and immigration, we are reducing the availability of legal aid; but it will remain for cases with the highest priority, and we will continue to spend £50 million on social welfare law.
As I said in the other debate, I realise that noble Lords will want to study some of the things that I read out at speed while referring and cross-referring to parts of the Bill. I think my noble friend indicated that he will withdraw his amendment, and I hope he will, although I am making no promises of massive change. One of the crunch parts of this Bill as it passes through the House will be whether we rightly judged which areas we are withdrawing from the scope of legal aid. The Lord Chancellor and my colleagues in government are confident that we have made the right decisions, hard as they have been in some cases; so, as I say, I hope that the noble Lord will, at this stage, withdraw his amendment.
Lord Thomas of Gresford
My Lords, I thought I detected in the last few sentences the possibility of some movement in this area, but despite that the final sentence was a killer. I am very disappointed with my noble friend’s response to what I considered to be an overwhelming case. If you cannot get legal aid for the Second-tier Tribunal, the Court of Appeal and above, as of right, we really are in a very parlous position. I assure my noble friend that I shall press him on these matters in the future. I thank all noble Lords for their participation in this debate and say to your Lordships that the state in Amendment 2 is widely defined to include local authorities, government organisations and so on. That is quite well understood when we deal with the concept of equality of arms.
While I listened to my noble friend’s summing up, I was reminded of the one person I know quite well who appeared as a litigant in person in the Divisional Court and won—my noble friend Lady Walmsley. The authority concerned went to appeal, where she was represented by a leading counsel, who is now a High Court judge, and by my son, who is a Queen’s Counsel in his own right, and lost. Fortunately her costs were all paid by the authority concerned. It takes an exceptional person to be able to take a case before a judge as a litigant in person and argue it through. The Government have underestimated just how exceptional that person has to be. For the moment, and subject to what I shall say at a later date, I beg leave to withdraw this amendment.
Public Service Pensions
(12 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, I will now repeat a Statement made earlier today in another place by my right honourable friend the Chief Secretary to the Treasury.
“Mr Speaker, with permission, I would like to make a Statement on the reform of public service pensions. Seven weeks ago, I reported to the House that in an effort to secure agreement, the Government were making a new offer to public service workers. Despite some unnecessary interruptions, scheme negotiators have been working hard to reach detailed heads of agreement by the end of the year deadline that we set.
It has not been an easy task, but this Government have demonstrated that they will not shy away from taking difficult long-term decisions in the nation’s long-term interest. We wish to see pensions for public service workers that are fair, sustainable, provide dignity in retirement and are affordable to both those workers and to taxpayers. That is why we committed in the coalition agreement to establishing an independent commission to bring forward proposals for reform. Lord Hutton’s magisterial report did just that. We have stuck closely to the recommendations of the former Labour Work and Pensions Secretary throughout this process.
The case for reform is self-evident. The average 60 year-old today is living longer now than they did in the 1970s. It means people are living in retirement longer—the life expectancy of a 60 year-old was 18 years in the 1970s, but has risen to 28 years today. As a result the costs of public service pensions have risen to £32 billion a year, an increase of one-third over the past 10 years. We have already made some changes that deal with short-term pressures, including changing the basis of pension uprating to CPI, and increasing member contributions by 3.2 percentage points, phased over three years.
Next year’s contribution increase is almost identical to that planned by the previous Government. The precise details of next year’s increase have been set out by departments—all are tiered by income to protect the lower-paid. The Government will review the impact of next year’s increases, including on opt-outs and equality, before taking final decisions on how future increases will be delivered. Interested parties will have the opportunity to provide evidence and views to the Government.
I know that many Members of the House will be concerned about pay and conditions of our Armed Forces. Let me be clear. Members of the Armed Forces will continue to make no contributions towards their pensions and will be exempt from the increases announced at the spending review.
From the beginning of this process, we have committed to ensuring that public service schemes continue to offer a defined benefit pension based on the size of workers’ salary—not dependent on the market performance of a fund, and not available to most people in the private sector. From the beginning, we have been clear that all accrued rights will be protected, in full; and that the taxpayer needs to be properly protected from future risks associated with further increases in life expectancy by linking scheme normal pension age to state pension age.
In November, we improved the offer to a one-60th accrual rate, an increase of 8 per cent that is available only in the event of agreement being reached, together with protection for those 10 years from retirement. I would like to pay tribute to the Minister for the Cabinet Office, the TUC and the scheme negotiators on both sides for their efforts to reach agreement.
I am pleased to report that heads of agreement have now been established with most unions in the local government, health, Civil Service and teachers’ schemes. It will of course now be for union executives and memberships to decide their response. These heads of agreement deliver the Government’s key objectives in full, and do so with no new money since our November offer. In future, scheme pension ages will match the state pension age, future schemes will be on a career-average basis, and all the agreements are within the cost ceilings I set in November and will save the taxpayer tens of billions over the decades to come.
Because heads of agreement have been reached, the better offer I made in November has been secured by trade unions for their members, including the no-change guarantee for workers 10 years from retirement. The heads of agreement also deliver a number of the key objectives set out by the trade unions during the talks. Negotiations on these heads of terms are now concluded. We and the unions agree that this is the best outcome that can be achieved by negotiation. This is the Government’s final position and we will bring forward legislation to the House. The full details of the heads of agreement in each scheme are today being set out in Written Statements by each department.
The key changes made are as follows. In the Civil Service, we have agreed to revalue each year’s contribution by CPI rather than earnings, allowing an accrual rate of 44ths to be offered. This costs the same as our original offer, but with a configuration preferred by the trade unions. As a consequence, the new scheme will be very similar to the nuvos scheme already available within the Civil Service, except that in future the normal pension age will be linked to the state pension age as it rises. It is therefore disappointing that the PCS has rejected the heads of agreement and walked away from the talks.
I have previously made the point that the local government scheme must be treated differently because it is a funded scheme. The Local Government Association and the trade unions have agreed that the pension age in the new scheme will be linked to the state pension age, and that their preference is to deliver a career-average scheme. Further discussions will take place over the next three months to agree the details. In health, we have agreed to a revised revaluation factor of CPI plus 1.5 per cent. This allows the accrual rate to be improved to one-54th. In education, we have agreed to a revised revaluation factor of CPI plus 1.6 per cent, allowing for the accrual rate to be improved to one-57th, along with modest improvements to early retirement factors.
All these heads of agreement are within the cost ceiling I set out in November, but in a configuration preferred by the unions. Discussions on police, Armed Forces, judiciary and fire service schemes have been a separate process from the start, and proposals will be brought forward in due course.
Let me turn to some other aspects of these deals. All of these agreements include a cap on taxpayer costs at 2 percentage points above or below the scheme valuation. This cap is symmetrical, so employees will benefit if costs fall. As Lord Hutton made clear, with the other aspects of reform now agreed, there is no reason to believe that under normal circumstances this cap will be used. It is there as protection for taxpayers and for workers if extraordinary, unpredictable events occur. In the course of all these talks, unions have stressed the importance of ensuring that their members will continue to be able to receive the benefits of these schemes if they are outsourced. This is the purpose of the fair deal policy, the future of which we have been consulting on. Because we have agreed to establish new schemes on a career-average basis, I can tell the House that we have agreed to retain the fair deal provision and extend access for transferring staff.
The new pensions will be substantially more affordable to alternative providers and it is right that we offer workers continued access to them. In addition, the Government will consider what practical options might be available to reform the terms of access to the NHS pension scheme, in particular for NHS staff who move to a non-NHS “any qualified provider” delivering NHS services. At the same time, by offering transferred staff the right to remain members of the public service scheme, we are no longer requiring private, voluntary and social enterprise providers to take on the risks of defined benefit that deter many from bidding for contracts in the first place.
Replacing so-called bulk transfers of pensions with continued access to public sector schemes means that we continue to protect public service workers’ pensions, manage the risk to the taxpayer and forge ahead with our ambitious plans on public sector reform. I have committed that these reforms will be sustained for at least 25 years. The Government intend to include provisions in the forthcoming public service pensions Bill to ensure that a high bar is set for future Governments to change the design of the schemes.
What does this deal really mean? For our workforce, it means they will continue to receive the best quality pensions available in this country—and rightly so. These pensions could be bought in the private sector only at the cost of one-third of salary. This is a proper reward for a lifetime’s commitment to serving the public. This new scheme is fairer to women too. By moving to career average, we will be giving a better pension in future to those, mainly women, who have low or steady salaries throughout their careers.
The Government have been clear that, because we are living longer, public service workers must work a bit longer and pay a little more for their pensions but, in return, we have also made an important commitment: that at retirement, those on low and middle incomes will get at least as good a pension as they do now. I can confirm today that we have met that commitment. For people who depend on our public services, it means that most unions will be asking executives to lift the threat of further strike action while work is done to conclude the final agreement, and I hope that the remaining unions do the same. For the taxpayer, it means that tens of billions of pounds extra that would have been spent on unreformed pensions over the next 30 years is now available for other pressing demands.
These are reforms that significantly improve the long-term fiscal sustainability of this country and reinforce the credibility of our fiscal stance. The Office for Budget Responsibility will provide a forecast of these savings in its next fiscal sustainability report. For industrial relations, I believe this shows that it is possible to reach agreement through negotiation in good faith, based on clear objectives. That is the right way to approach relations between government and the trade unions. In these difficult times, it is important to show that people can come together to achieve genuine reform, preserving the best of the past but recognising the realities of the future. This is a fair deal for public service workers, an affordable deal for the taxpayer and a good deal for the country. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Lord Eatwell
My Lords, it is important to remember that what we are discussing is the reduction in the lifetime living standards of a significant proportion of the people of this country. We are discussing the fact that the real incomes of public service workers will, in retirement, be significantly lower than they had every right to expect when they took up their positions in the public service. When the noble Lord speaks of “reform” of public service pensions, he means reduction of public service pensions, and when he speaks of saving,
“the taxpayer tens of billions over the decades to come”,
he means reducing the incomes of pensioners by tens of billions over the decades to come.
Noble Lords will be aware of the difficult choices that we all face over the question of pensions. The excellent report a few years ago by the noble Lord, Lord Turner, and the recent study by my noble friend Lord Hutton have spelt out the consequences of lower birth rates and greater longevity for the provision of pensions. Given that the standard of living of everyone depends on the goods and services produced by the working population, the smaller the working population is in relationship to the whole the more difficult it becomes to provide for the non-working pensioners. The choices that need to be made when facing such a major, secular shift in demography and in the economy should have been the subject of bipartisan national debate. They should have been approached with the clear understanding that what is under consideration is the decision to reduce lifetime living standards.
In his report, oft cited by the Government, my noble friend Lord Hutton stressed the need to approach these issues in a careful and balanced way, with particular care for the impact of any increased contributions on lower-paid public service workers, and the need to sustain high-quality, reliable pensions provision. Having people retire into poverty, dependent on state benefits in their old age, cannot be an answer under any circumstances. In taking up my noble friend’s points, the Government failed on both counts by seeking to impose a steep rise in contributions and a permanent switch in indexation from RPI to CPI, neither of which measures formed part of my noble friend’s recommendations.
The consequence of this arbitrary and authoritarian approach to reducing the lifetime incomes of some of the lowest-paid people in the country was 10 months of stalemated negotiations and then strike action, in many cases by people who had never dreamed that they would ever go on strike. The strike on 30 November, a strike that could and should have been avoided, seems to have brought the Government to their senses. We on this side of the House are pleased that the people who rely on public services, as well as millions of public sector workers, can approach the holiday season knowing that proper negotiations are taking place at last and that a solution that is fair to pensioners and fair to taxpayers may be on the horizon.
We are pleased that the Government have at last recognised the need to protect the lowest-paid from unaffordable increases in contributions, the need to reassure older employees worried about how long they will have to work and the need to ensure that people who dedicate their working lives to our public services can expect a decent income in retirement. It is important that, in any proper national consideration of how best to tackle the changing demographic factors behind pensions provision, the Government should provide the fullest and clearest information on what is proposed and on the consequences for public service workers at all levels of income.
For each of the four schemes under consideration, what are the new proposals for contribution increases? What is the timetable according to which they will be introduced? How do the Government intend to ensure that the new contributions are affordable for lower-paid workers, including part-time workers? What assessment have the Government made of the impact that their proposed changes might have on the number of public service workers opting out of the scheme, of the impact that this may have on future pensioner poverty and of consequential demands on state benefits? In taking steps to increase the pension age, what allowance do the Government intend to make for those in physically demanding jobs where the current retirement age from that particular line of work may indeed be appropriate?
Most importantly, the Government must now realise that a pensions agreement in the public services should be for the long term and should be part of the fundamental relationship between Government and people, whichever party is in power. How will the Government make good on their promise to deliver a deal that is secure and sustainable for the next 25 years? Will they learn from their errors of the past year and understand at last that a properly informed public debate, and an appropriately negotiated agreement with strong bipartisan support, is the only way to achieve a fair and lasting agreement?
Lord Sassoon
My Lords, I am sorry that the noble Lord, Lord Eatwell, does not welcome the deal that the Government have come to today with the great majority of unions in the public sector. The Government must get a grip on the significant increases in the cost of providing public sector pensions that have simply arisen from the fact that people are living longer. That is why we asked the noble Lord, Lord Hutton of Furness, the Work and Pensions Secretary in the previous Government, to look at the current position and identify whether further reform was required. The noble Lord, Lord Hutton, set out an overwhelming case for reform, saying that,
“the status quo is not tenable”,
and that,
“Future costs are inherently uncertain”,
and that at present,
“the … public cannot be sure that schemes will remain sustainable in the future”.
It is based on his recommendations that we have reached an agreement with the unions today.
It is a good deal. It ensures that public service pensions will remain among the very best available. If members retire later, as most of them will, most of them will not see a reduction in the pension that they receive at retirement; indeed, many of them will get more than they would now. I do not think that the noble Lord, Lord Eatwell, recognises that. The deal delivers on our objectives to ensure that most low and middle earners working a full career will receive pension benefits at least as good as, if not better than, what they would get now.
I turn to the specific questions that the noble Lord asked me. On the increases in contributions, the scheme-by-scheme contributions for 2012-13 are set out on the respective departmental websites. They follow on from separate consultations that were held over the summer. The average is a 3.2 per cent increase over three years, with 40 per cent of that increase falling in the first year and 40 per cent in the second, building up to the full increase in the third and final year. The projections are that anyone with earnings below £15,000 will face no increase and that those between £15,000 and £21,000 of earnings will have their contributions increased by only 1.5 per cent over the three years. Individual schemes have worked out other particular protections; health, for example, has protected those earning up to £26,000 by having no increase in the first year.
On the question of part-time workers, it is the case that all public service scheme members, whether full-time or part-time, are included, apart from those within 10 years of retirement who are, as I have explained, protected. The lower-paid will not pay more for their pensions. The pension benefits themselves are based on full-time equivalent earnings and it is appropriate that the contributions are calculated, as are benefits, on the same basis. There are approximately 350,000 part-time workers in local government, where alternatives to contribution increases are being considered, and a further 150,000 part-time workers would be partially protected as their full-time earnings are less than £21,000.
On the question of opting out, the general point to make is that there is no reason why members should do so. There will remain a strong economic rationale for them to remain in their schemes, and it is important that all employees in the public sector hear that message clearly. Beyond that, we have committed to reviewing the impact of opt-outs following the increase in members’ contributions. We will do that before final decisions are taken on how future increases are made. It needs to be borne in mind that it would cost a member around 30 per cent of their earnings to purchase equivalent benefits in the private market.
I turn to the question of the increase in pension age and the effect of that, particularly on those in physically demanding jobs. For the armed services, firefighters and police, the noble Lord, Lord Hutton of Furness, recommended an earlier retirement age of 60, and we accept that recommendation. For the other schemes, we have agreed that the retirement age will be the state retirement age, the same age when other citizens will receive their state pension. It will be for employers to review the appropriateness of certain jobs for older employees and to make appropriate arrangements for staff possibly to move into alternative roles as necessary. The NHS, for example, has already agreed to set up a tripartite review involving the department, NHS employers and the NHS trade unions which will look at addressing the impact of working longer in the NHS, with particular reference to staff on the front line and in physically demanding roles, including emergency services. I accept that this is an important point but it is one which is already being addressed.
On the final questions of the noble Lord, Lord Eatwell, around how the Government will be able to deliver a commitment on no further reform for 25 years, the critical point here is that we have set out a position that is not only fair and sustainable for those who work in the public sector but is a reform that is sustainable in terms of the public finances. I reiterate the point that, as the Government address the very difficult fiscal position that we inherited and as we compare ourselves with countries in Europe and elsewhere, this is an important reform that will underpin the fiscal sustainability of the public finances for many years to come. Therefore, I believe that no further reform should be necessary for 25 years. To give substance to this, we intend to include provisions on the face of the forthcoming primary legislation to ensure that a high bar is set for future Governments to change the schemes, as I said in repeating the Statement.
Lord Prescott
My Lords, having listened to the Minister claiming the support of the noble Lord, Lord Hutton—the architect of the scheme—for his interpretation, and then having listened to my noble friend Lord Eatwell give a different interpretation, I am all the more sorry that the noble Lord, Lord Hutton, is not here to give his interpretation. I wish to ask the Minister a question, as in 2008 I negotiated pension agreements with local government workers. That is a different pension scheme from the state one as it is funded by the employers and the employees. We made major changes in that pension agreement which I do not have time to explain. We did that with a struggle but we did not have the strikes that we have witnessed on this occasion. We have learnt that there is a heads of agreement with the unions, and we hope that they will move to some sort of agreement. The Minister mentioned this in his contribution. However, tonight we learn that another letter has been written by the Secretary of State for the Environment, Mr Pickles, who is well known as the rogue elephant in the Cabinet, which states that the limits to be placed on the employers’ contribution are quite different from what the Treasury is saying. Will the Minister say which letter is operating in these negotiations? I am told that the letter I have mentioned has been withdrawn. Is Mr Pickles in charge or the Treasury as regards the difference between the two schemes? Will the Minister explain that to us?
Lord Sassoon
My Lords, I am happy to try to clear up any misunderstandings on this. As the DCLG has made clear this afternoon, it is in discussion with the unions to resolve any misunderstanding and reassure them that the intentions of the department and of the Government have not changed. It would seem that the unions have read more into the letter that was issued today than was intended by the DCLG. No new conditions are being imposed by the department. In order to iron out any ambiguity, the department will be issuing a new letter to make clear that there is no ambiguity, there is only one deal and there are no conditions. Therefore, I am confident that this can be resolved quickly, but as noble Lords will understand, there have been many deals with a lot of unions and several departments. We must clear up this ambiguity that has slipped in on one particular aspect.
Baroness Kramer
My Lords, the Government and the unions that have signed the heads of agreement deserve congratulations on having achieved this in this day and age, given the immediate financial pressures and the reality that we will all live much longer and therefore need pensions for a much longer period in our lives. They have achieved an agreement that retains defined benefit schemes—when the private sector has essentially abandoned that and gone on to defined contribution schemes—and have provided protection for those approaching retirement and for those on the lowest incomes. That is a real achievement by both sides and we ought to acknowledge it.
However, I wish to ask the Minister two questions. Can he clarify for us where the negotiations now stand with the PCS? The experience that has been described tonight demonstrates that negotiation has to be the way forward, not strikes. The Minister said that the PCS had walked away. The newspapers used the phrase, “not invited to future talks”. Can he clarify what he sees as the progress that can be made in that regard—preferably progress which does not inflict any more strikes on the long-suffering British public?
Secondly, can the Minister expand a little on an area I find most intriguing: namely, the position of staff transferring from the public service to the voluntary or private sectors or to social enterprises who will retain access to a public service pension? I cite the example of the NHS in that regard. Should we see that in narrow terms, or are we moving towards an arrangement which will allow a much more flexible structure for future public services as technology and demand change, creating the opportunity for movement in and out of different organisational arrangements? Is this the first building block of something larger, or is it just something to be seen narrowly within the terms of this negotiation?
Lord Sassoon
My Lords, I am grateful to my noble friend for welcoming this deal. She rightly points out that it means that public sector workers have among the best pensions available in this country, including defined benefit schemes which are not now generally available to people entering private sector schemes. Therefore, I endorse entirely her comments in that respect.
The PCS has not agreed to put the final design of the Civil Service scheme to its executives. It is important to remember that the PCS represents fewer than 5 per cent of the members of the public service schemes and discussions will continue without it. We believe that the final deal—it is a final deal—is a good one and that the remaining unions will recommend it to their members. We are clear that what has been set out today is the Government’s final position.
My noble friend asked about the ability of members exiting a public sector employer to remain in the pension scheme under the “Fair Deal” provision. Implicit in her question was the notion that this may have wider implications. I certainly think that this opens up all sorts of possibilities, whether in relation to the mutualisation of services or the ability of people to come in and out of the public sector.
Lord Lea of Crondall
I echo the opening remark of the noble Baroness, Lady Kramer, in referring to the constructive nature of the recent negotiations, albeit at the eleventh hour. I hope that the Minister will take care in saying who represents 5 per cent of what. One minute he is talking about the total public sector negotiation and the next minute he picks out a statistic which is to do with the Civil Service. We ought to be very careful not to pick and mix in that particular way.
I hope that the Minister will comment on a general point: namely, now that we have reached where we have got to, it would be very useful for all of us to discourage people from going in for rhetoric such as many Members of the Minister’s party, both in this House and in the Commons, have indulged in. Their slogan can be summarised as, “Private sector employment is productive; public sector employment is unproductive”. It is not just the Daily Mail, the Daily Express, the Daily Telegraph and the Murdoch newspapers that say that—it is members of his own party in this House and the other House. I do not mean that anyone in this House tonight has said that, but it has been said on other occasions. Such comments are quite ridiculous. People will think that nurses and teachers are unproductive, and that hedge fund managers and second-hand car dealers are productive. Is it not time that, in a modern social democracy or mixed capitalist economy—I do not mind what you call it—we agreed that that is a ludicrous way of dividing people up?
That leads to the point that we must get on with improving pension provision in the private sector. The Adair Turner report on auto-enrolment has been stymied to some extent. Is it not important that we do not have a race for the bottom as regards pensions? I am glad that we have drawn back from that to some extent.
Am I not right in thinking that CPI has been selected instead of RPI because CPI has been growing more slowly in recent years? Would the Government have preferred CPI to RPI if it had been growing faster? I have been around for long enough to know that that is exactly how the Treasury thinks. I ask the Minister whether he agrees with me that there is a position in the final set of correspondence which refers to CPI plus 1.5 per cent or 1.6 per cent, and that that is the rationale for some of the arithmetic, which—understandably, given the Government’s predicament—is based on getting more in for the Treasury, hence the 3 per cent take-away.
Finally, is this not also the time to say, given the huge growth in pension pots for the top 0.1 per cent of people—which is scandalous and is getting up the nose of everyone in the country, apart from that 0.1 per cent—that the idea that we are all in this together is a bad joke, unless that issue is also addressed?
Lord Sassoon
I am sorry—I thought there was a new and welcome procedure whereby Back-Benchers could answer questions on my behalf. That is an excellent idea, but it might require discussion before we do something so radical.
I should first be clear about the interesting analysis of the noble Lord, Lord Lea of Crondall, on how we have got to this point and what else we should be doing. When he talks about an eleventh-hour deal, it is worth reminding the House that the final deal was put on the table by the Government on 2 November. The agreement today is entirely in line with what was put on the table then, well ahead of the strike action on 30 November.
The question around CPI and RPI broadly relates to the nature of the deal whereby individual negotiations were carried out, scheme by scheme, around the level of benefit accrual and indexation rates. That is why we allowed considerable flexibility for the unions to vary the balance of factors within the total cost caps that were set. That is why a variety of different approaches was taken. There was considerable flexibility within the overall parameters set by the Treasury.
As to the question of what people in the private sector should be doing, perhaps we had better stick to public sector pensions, which are very important and should be what we are talking about.
Baroness O'Cathain
I must apologise to my noble friend for jumping up. It is just that I was slightly goaded by the noble Lord, Lord Lea of Crondall. I want to come back to him about the CPI versus RPI issue, because I have a pretty long memory, too. In the early stages of the Monetary Policy Committee and the Labour Government, there were endless discussions every month about the RPI. One of the reasons that the statisticians wanted to move to the CPI was so that they could get month-by-month comparisons with mainland Europe—the EU. That is exactly why it happened, and then it all started to go wrong. We should have a discussion off the Floor of the House and go to the Library to look at all that. It was fascinating stuff, and an enormous number of people wanted to go for the CPI, as opposed to the RPI.
Lord Lea of Crondall
I should be very glad to have such a discussion, but I have an even longer memory. For many years, I represented the TUC on the Retail Prices Index Advisory Committee, which was abolished by the Treasury when we made a recommendation that it did not like. The recommendation in about 1970 was that we should stick with the RPI for general purposes because—
Lord Lea of Crondall
I am quite entitled to come in for a second time within the 20 minutes. I have been asking a question. Is there not a case for looking at which index should be used, based on considerations other than which one is likely to increase more slowly than the other?
Lord Sassoon
My Lords, this was a negotiation between the unions and the employers. It was a choice regarding accrual rates and indexation, and the unions have expressed a preference for going for that measure of inflation, essentially as a way of funding better accrual rates. That was just the nature of the negotiations.
Consumer Insurance (Disclosure and Representations) Bill [HL]
(12 years, 11 months ago)
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Lord Sassoon
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, I beg to move Amendment 1, which leaves out Clause 2(5). This subsection was added to the Bill following acceptance of an amendment in Committee. I will also speak to Amendment 2, which proposes an alternative and—I hope that the House will agree—improved approach to addressing the Committee’s concerns about renewal of insurance contracts. Having considered the amendment accepted by the Committee, we felt it was necessary to come forward with alternative drafting to achieve what noble Lords had in mind through the original amendment.
Taken together, these two amendments will mean that insurance companies are expected to have to show that they told their policyholder that answering questions on renewal was important. However, they also avoid some unintended consequences of including this requirement in its current form as part of Clause 2.
These amendments address something which the Bill Committee touched on extensively in its deliberations. There was much discussion of the implications of the Bill for consumers renewing insurance. Renewal involves entering into a new contract and consumers are therefore under the same obligation as when first purchasing their policy—that is, they must take reasonable care to answer the insurer’s questions, or the insurer may be entitled to refuse a later claim. Noble Lords were concerned that consumers might not recognise the significance of questions asked on renewal, as they may not understand that it is a new contract, and as a result might not take sufficient care to answer these questions.
The Government agree that insurers should take measures to ensure that their consumers are aware of the importance of responding to questions which they are asked at renewal. However, as I mentioned, to ensure that the effect of this change to the Bill reflects the wishes of noble Lords, we felt that it was necessary to come forward with alternative drafting. There are some relatively small drafting points.
The inserted text splits subsections of the current clause which need to run together, and the phrase “make clear” may be a difficult standard. However, most importantly, it leaves no remedy for an insurer who has not included the right wording, even if the consumer’s failure to reply was a deliberate or reckless misrepresentation. I am sure that the Committee did not intend to give consumers a “get out of jail free card” in circumstances where they knowingly and deliberately deceived their insurer. The amendment therefore removes the drafting accepted in Committee stage and substitutes an alternative in Clause 3. That explicitly adds to the list of factors that a court may take into account, when determining whether a consumer acted reasonably, whether the insurer communicated the importance of answering questions on renewal. Both the Association of British Insurers and the Investment and Life Assurers Group agree that that is a more suitable approach.
There are many ways in which an insurer may communicate the importance of answering questions at renewal. The Committee discussed whether wording which explicitly told the consumer that they were entering into a new contract would achieve that. That is indeed one way in which an insurer may communicate the importance of answering questions as required by the amendment.
It might be helpful if I set out for noble Lords current market practice at renewal and the effects of the amendment in this context. An insurer will often send the consumer a letter to say that their insurance is up for renewal. Market best practice is usually to send a list of the facts that the consumer told them the last time. The consumer is asked to read and consider the list, and to contact the insurer if the facts have changed.
In motor insurance, it is common practice for insurers to renew the policy even if the consumer fails to reply. It is now a criminal offence for a motorist to allow their car insurance to lapse without notifying the Driver and Vehicle Licensing Agency and we therefore welcome any practice which makes renewal a simple process for the consumer. If nothing has changed, there is no need for the consumer to reply, but if something has changed and the consumer fails to respond, this is capable of being a misrepresentation. As my noble friend Lady O’Cathain stated during the last Committee sitting, it may be that nothing has changed in relation to your car insurance. Alternatively, you may have been convicted of a new driving offence which you should tell your insurer about. As a result of this amendment, the insurer should clearly communicate the importance of mentioning such changes. If the letter is poorly laid out or in very small print, or if it fails to tell the consumer that failing to mention changes may lead to claims being refused, then a consumer may act reasonably in overlooking it.
In circumstances where the consumer fails to respond because they did not understand the implications, the insurer would be expected to show that they told the consumer how important it was to respond to the questions at renewal time. The insurer would know that it could not just point to the consumer’s oversight. This last important point was teased out in Committee and was, I believe, noble Lords’ real intention. I believe that the amendment addresses the concerns raised by noble Lords during those discussions.
Lord Eatwell
My Lords, as I have stated throughout our proceedings, we on this side of the House fully support the Bill as a measure which makes a major improvement to the relationship between insurer and insured in consumer insurance. We have sought to improve the Bill, making clear elements of the drafting which were unclear or which, on careful examination, did not correspond to the declared intentions of the Law Commission and therefore required amendment. Accordingly, in Committee I proposed the amendment to which the noble Lord has referred and which in due course the Committee passed almost unanimously, the only dissenting voice being that of the Minister himself.
Before dealing with the substance of the Minister’s amendments, I first ask him whether he consulted the Companion before tabling them. Paragraph 8.133 states that,
“an issue which has been debated and voted on in committee can be reopened, provided that the relevant amendment is more than cosmetically different from that moved in committee”.
When we look for the meaning of “cosmetically different”, earlier in the same paragraph it is stated that amendments must not be identical or of identical effect. Consequently, the Minister cannot argue that this amendment has identical effect. If he does, he must withdraw the amendment.
Lord Sassoon
I wonder whether it would be helpful at this stage to confirm that the government amendments have been drafted in full recognition of what the Companion says. As I tried to explain in setting out the rationale for the amendment, I do not believe that it has the same effect because it provides greater clarity and, I believe, delivers what, in Committee, noble Lords wanted to achieve. My understanding of the process is that, if there had been a problem with the technical raising of the amendment, the Public Bill Office would have raised questions on it. Therefore, I believe that both in substance and in form the right things have been done.
Lord Eatwell
I think that the noble Lord is contradicting himself. He said that it was what noble Lords wanted to achieve when they voted on the amendment in Committee, yet he says that it is not identical in effect. That does not seem consistent. However, let us move on.
Turning to the substance of the amendment, I accept that its placement in the Bill is superior to that which I proposed in Committee, and for that I am grateful. However, the intention of the Committee was that insurers would be required to make clear to consumers that when a policy was renewed, it would in fact be a new policy, and consequently the importance of questions asked would be of the same order as when new business was written. As many noble Lords argued in Committee, they were not aware of this—indeed, I believe that the Minister himself admitted that he was not aware of it—and they could well understand a consumer failing to be aware of it too. This lack of awareness might result in the consumer taking insufficient care in answering questions posed by the insurer.
The Government’s amendment does not refer explicitly to the fact that a renewal is a new contract and hence this is not of identical effect. Instead, it proposes the vague test of,
“how clearly the insurer communicated the importance of answering those questions (or the possible consequences of failing to do so)”.
That is a very vague rendition of what was intended by the amendment in Committee. Instead of being explicit, the matter is now to be left to the courts to decide. However, I note that the Minister stated that explicitly telling the consumer that they were entering into a new contract would be “one way” in which the insurer could communicate the importance of the questions asked at renewal. I fully expect that the ABI and the ILAG will draw this passage in Hansard to the attention of their members and that it will form a background to any subsequent court proceedings. On that basis, I shall raise no objection to the government amendment.
Finally, I would be grateful if the Minister would clear up the matter raised in Committee by the noble Lord, Lord Goodhart, and not subsequently resolved. That is the relationship between Clause 5(1) and Clause 5(3). As the noble Lord, who is in his place, pointed out, they seem to duplicate one another and hence, potentially, they are a source of confusion. As we still have a chance to sort this out at Third Reading, perhaps the Government could enlighten us about the reasoning behind this dual oddity of drafting.
Lord Lloyd of Berwick
My Lords, I am very glad to hear that the noble Lord, Lord Eatwell, is not objecting to the amendment. Whether it is something new or exactly the same in a different form does not matter so much, but I am glad that the amendment proposed will not be opposed by the noble Lord.
While on my feet, perhaps I could say a word about the Law Commission and the part that it has played in bringing us to this point. The report was originally published in 2009. It followed three years of intensive research and a great deal of evidence-taking, as one can see from the report. The commission then succeeded in reconciling the many divergent interests and produced, as a result, a draft Bill, which is the Bill before us with only a few alterations. It is unquestionably the most important reform of the law of insurance since the Marine Insurance Act 1906. The draftsman of that Act was Sir Alfred Chalmers, who is always referred to in this part of the law as the “legendary Chalmers” because he was a brilliant draftsman. It seems to me that this Bill is a worthy successor to the Chalmers Act of 1906. We owe a great debt of gratitude to the Law Commission and, in particular, to David Hertzell, who was in charge of the report. I hope that we may have many more Bills from that stable and I gather that there is already one in the offing, but as it relates to some rather obscure matters of trust law I assume that we shall not have the pleasure of the noble Lord, Lord Sassoon, taking it through the House.
Lord Goodhart
My Lords, I would like to mention one matter as the noble Lord, Lord Eatwell, has referred to the amendments that I put forward in Committee. As I said then, there was basically a pedantic reason for what I did. I thought what I did was slightly better but, quite frankly, it was not a serious problem at all. As they were not automatically accepted in Committee, there is no point in raising the matter again now. I am quite happy that it no longer appears.
Lord Borrie
My Lords, I share the view of the noble Lord, Lord Goodhart, and, therefore, share the view of my noble friend Lord Eatwell today in raising again the duplication that there seems to be in Clause 5. I do not think that anyone wants to press the point. In addition to the thank you to the Law Commission and the usefulness of this Bill, to which the noble and learned Lord, Lord Lloyd, has just referred, I express thanks for the excellence of the chairmanship of the noble and learned Lord.
Lord Sassoon
My Lords, thank you for that short and focused discussion. On the specific point about the interlinkage of Clause 5(1) and Clause 5(3), I think that my noble friend Lord Goodhart has answered the question. Frankly, if the amendment had come forward again, in the Christmas spirit I and the Government might have accepted it. For goodness’ sake, I hope that it is now too late to table a handwritten amendment, but it was a fine bit of drafting either way.
I would rather stay with the noble and learned Lord, Lord Lloyd of Berwick, in welcoming the importance of this small but targeted measure. I echo my thanks to him as chairman of our committee under this special procedure, to the Law Commission, and in particular to the commissioner, David Hertzell. I will not say that I wish I did not have to deal with more Law Commission matters because your Lordships may have seen the fourth, topical Question tomorrow morning, which touches on recent Law Commission work on intestacy. As the Question refers to inheritance tax, it is down to me, so I cannot escape Law Commission matters even this week.
Lord Sassoon
“( ) in the case of a failure to respond to the insurer’s questions in connection with the renewal or variation of a consumer insurance contract, how clearly the insurer communicated the importance of answering those questions (or the possible consequences of failing to do so),”
Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 11 months ago)
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Lord Bach
My Lords, this amendment, short though it is, is important because it allows the Committee to question the Minister and to have a discussion around public legal education. That subject does not appear much in the Bill and we thought it worth tabling a probing amendment. If the Minister is not able to answer all the questions today, I am sure that he will be kind enough to write to Members of the Committee.
Perhaps I may go down memory lane for a moment or two. When I held the position that the Minister’s colleague, Mr Djanogly, now holds, part of my brief covered public legal education. It was based on the thesis that, of course, it is important for people to be able to access justice, but people will do so only when they know that a civil wrong may be or has been done against them. The truth is probably that many millions of our citizens do not know when they have some claim—perhaps not big or major—because some civil injustice has been done against them. They have no idea how the system works.
We very much want to keep the good things in this system, which means that people with a legal claim can get advice and, it is hoped, sort out the claim in that way. We think that legal aid plays an important role in making that system work. However, when we live under the rule of law in a modern liberal democracy, what do we do when people do not have a clue about their rights and responsibilities in this legal sense?
I was lucky enough to chair a pretty powerful committee of independent outsiders at the department on this issue. From outside the ministry, a committee group was led by the brother-in-law of the noble Lord, Lord Brooke. He is a very distinguished former Lord Justice of Appeal who has done very good work in many fields, as the Minister is confirming. The committee included people such as Professor Hazel Genn; Richard Susskind, the expert on legal IT and associated subjects who has advised Governments of all colours and none; Michael Smith, a very distinguished solicitor; the chairman of the Legal Services Board; and Amanda Finlay, to name just a few. What we talked about and tried to do something about, and what we as a Government were prepared to put money into, was an attempt to make our legal system better understood by ordinary citizens.
Public legal education is not a very attractive phrase, but we know what we mean by it. The question was where we would concentrate the limited resources that were devoted to such a concept. It seemed to me that there was one place where more work ought be done. Some work had been done in schools, which was excellent, but more was needed. Also, sixth-form colleges and colleges of further education were places where probably there was not much teaching or education even in its broadest sense about a citizen's legal rights and obligations. We thought that this was an important part of trying to establish a proper democracy that lives under the rule of law.
I hope that other noble Lords will join in the debate and ask other, perhaps deeper questions. In the Bill the requirement to provide legal education is discretionary rather than mandatory. Our probing amendment argues that it should be mandatory; there should be an obligation on the Lord Chancellor. What mechanisms does the Minister’s right honourable friend intend to use to secure the provision of information about the law? That is an important point. Online facilities, with the exception of YouGov, are fragmented and of varying quality. How does his right honourable friend intend to work with other departments of state and external actors to ensure that citizens are informed of their rights and duties when interacting with the state and other services?
I think that most noble Lords in Committee will agree that this question could be well directed to the Department for Work and Pensions, because I imagine that we will talk quite a lot about mistakes that have been made by that department. However, it applies also to the Department for Education, the National Health Service, private banks and of course local authorities. Our concern is that the Government have rather put on one side this sort of work, either for financial reasons or because they do not believe that it has much place in the Ministry of Justice's responsibilities.
What is the Government's attitude towards the future of public legal education under our system, and to the goal of educating more of our citizens in the ways of knowing what their obligations and rights are, so that they do not walk around blind to the kinds of rights and obligations that they have in a society such as ours? That is the point of the amendment. I need hardly tell the Committee that of course I shall not press it; it is a probing amendment to elicit the Government's views on the issue. I beg to move.
Lord Phillips of Sudbury
My Lords, I declare an interest as president and founder of the Citizenship Foundation, which is the principal educator about the law in schools in this country. We work with more than half of all primary and secondary schools and try to give young people a sense of what it is to be a citizen of the modern, highly complex state. I commend the noble Lord, Lord Bach, for bringing forward this amendment and, indeed, I commend the Minister and the Government for an imaginative clause. I do not think that a clause such as this has appeared in legislation before, and I wholly commend it.
I have only a couple of points to add to what the noble Lord, Lord Bach, said in moving his amendment. The first is that we still live in a system where ignorantia legis neminem excusat, which is all very well if you know Latin and if you know a bit of law, but the average man or woman in the street, let alone the average pupil in any of our schools, is understandably, predictably, woefully ignorant of this extraordinarily complicated society and state that we have given birth to, principally, I have to say, in these Houses of Parliament. I have mentioned before, and I have to mention again in relation to this amendment and this clause, that we have a larger corpus of statute law than any democracy in the world by far and, of course, we are supposed to be a common law system, so it is not as if it stands on its own.
I believe that one of the principal causes of civic disaffection, if I can call it that, in this country, which I think is present and apparent on all sides—and I do not refer just to the riots a few months ago, I refer also to the declining turnout at elections and the declining inclination of people to stand for office in local government and so on—has everything to do with how people, not even consciously, feel that somehow we carry on here in total disregard of them out there. They never get asked, and they never get told, unless there is an election on, when all candidates are deeply keen to engage with the public at large. We have to do something about this. I am delighted to see that this clause is here. I shall be interested to hear what the Minister and other noble Lords say, but I would have thought that the importance of doing something about this is so pressing and so little understood that to have a requirement here rather than a discretion would, on balance, be desirable because there is no time to lose.
I shall give one small example of what a desert there is of accessible information about the law. It is that the Citizenship Foundation publishes the Young Citizen’s Passport, which is a passport to the law that will affect young citizens when they leave the school gates or, indeed, before they leave them, to do with housing, sex, contract and so on. The Citizenship Foundation has sold 2 million copies of this booklet, and that is not a small number. I suggest that that gives an indication of what a thirst there is for accessible, practical information about issues of law that are not voluntary for anybody, but are compulsory for everybody. I wholeheartedly support this amendment.
Lord Howarth of Newport
It was a very good idea of my noble friend Lord Bach to table this amendment, and I do not want to introduce a jarring note because I am sure that we want to be consensual on this matter, as on others, but I make the point that if more people are going to have to represent themselves in tribunals and courts, they are going to need better opportunities to inform themselves about the law and it is not quite clear how that is to happen, not least against the background of reductions in funding from the Department for Business, Innovation and Skills, the Ministry of Justice and local government for CABs, a matter we touched on earlier this afternoon.
The need is going to be acute, and I fear that it will be the greater because with the reductions in legal aid there is a risk that more of our people will feel alienated from our society. They will no longer have confidence that the legal system will sustain all their legal rights when they find themselves in baffling situations of conflict in which they feel that they may suffer injustice and that there is no one there to champion them. That is dangerous and risks disaffection from the state and the justice system, and would develop cynicism about the law. That is a cultural trend that we may need to anticipate and the Government will need to think deeply about how they might mitigate and counter it.
When the Minister replies to this debate, it would be helpful if he would tell the House a little about how the Government envisage general information about the law and the legal system may be provided. It is not a duty on the Government, as expressed in the Bill, but presumably they are contemplating this at least as a possibility. I certainly think that they should do so.
The noble Lord, Lord Phillips of Sudbury, mentioned with legitimate pride the Citizenship Foundation. But we have learnt, I think this week, that citizenship is to be removed from the national curriculum. Once again, that underscores the importance of finding ways to help a new generation of young people to be aware of their responsibilities and rights as citizens. It may well be that there are excellent members of the legal profession who already visit schools and do pro bono work in helping to advance the legal education of our young people. I hope that that is so. Again, I do not know whether the Government have plans to encourage more of such activity.
I think that we can all remember the days when the law reports in the newspapers were very much fuller and the serious newspapers felt that it was their responsibility to communicate the important cases and decisions in the law. I may be wrong but I have the impression that law reports in the broadsheet newspapers are now more perfunctory than they were. Of course, the tabloid treatment of legal issues is almost entirely sensational. There is a challenge as to how more responsible, more thoughtful, more informative and more effective education through the media can be achieved. Information technology must offer new and better possibilities. I do not know whether the Ministry of Justice is thinking of developing its own website or of encouraging others to develop websites that may help to supply the present deficiency.
If we had less law and clearer law, and if we had more law codified in relatively succinct and simple terms, it would be easier for the people of this country to understand it. Finally, I therefore ask the Minister to say something about the Government’s plans to support the Law Commission in pursuing its perennial task of bringing the law up to date and making it relatively accessible and comprehensible for lay people.
Baroness Butler-Sloss
My Lords, I share with the noble Lord, Lord Phillips of Sudbury, the commendation of the Government for putting in the extraordinarily interesting and, I think, very valuable subsection (3) in Clause 1. It is excellent. The only thing that I do not understand is why the word is “may” and not “must”. One starts by knowing that whatever happens in the latter part of this Bill, we are bound to have a situation where the Government will have less money to put into legal aid. As the noble Lord, Lord Howarth, has pointed out, consequently, more people will have to deal with their own cases.
It is very important that there should be an obligation, rather than just the opportunity, for the Lord Chancellor or the Ministry of Justice to have some imaginative ideas to help people who are going to have to do their own cases. The word “must” should be in the Bill. I am somewhat surprised that the Government, having gone so far with this imaginative idea, did not think that it was necessary to make it compulsory.
Lord Elystan-Morgan
My Lords, I support the amendment and congratulate the Government on their imaginative development in relation to this matter, but I too accept that it should be mandatory rather than discretionary. As the noble Lord, Lord Howarth of Newport, mentioned, there is the problem of the unrepresented defendant—the bane of every judge’s life, particularly, if I may say so, that of the circuit judge. Often one found in a perhaps not uncomplicated situation two unrepresented defendants. One would have to spell out to them with bullet points essentially what the civil law is. One would then have to explain that if the claimant could on a balance of probability establish the case, he or she would succeed. If not, the other side, the defendant, would triumph.
However, it is not really the unrepresented defendant, complicated though the situation is, that this matter deals with, but the person who has not made a claim at all and will possibly never make a claim. I think it must have been around 10 years ago that I saw a memorandum from the Law Society. It had conducted a comprehensive survey across the country and found that around 30 per cent of straightforward industrial claims which had every prospect of success were, for some reason or another, never pursued. That is the essential community that this piece of legislation is aimed at. Therefore I commend the Government on their imagination, but to my mind there is no earthly reason why it should not be mandatory rather than discretionary.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it is warming to find a clause in the Bill that has such general approval. Amendment 3 seeks to amend Clause 1(3) to make the power of the Lord Chancellor in relation to the provision of information a duty. This amendment is not appropriate. The duties of the Lord Chancellor under this Bill relate to the provision of legal aid for those who qualify for it in accordance with Part 1. In contract, this subsection is aimed in particular at enabling the Lord Chancellor to direct those ineligible for legal aid to other sources of advice. In the future this may include the provision of referral to paid-for advice through a telephone helpline service. The Government have decided not to implement the proposal at this stage, but intend to run a pilot scheme. The intention is that any individual who is seeking legally aided services but is ineligible for legal aid advice could be signposted to other sources of advice that may be able to assist them in their problem. However, to create a duty in this regard would be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all encompassing service. In a sense, the debate has covered demands for that much broader service, but I still maintain that we cannot make this a bounden duty on the Lord Chancellor. However, it takes us in a direction that is interesting so far as this debate is concerned and, indeed, in the way our legal services are being developed.
Some of the issues raised by the noble Lord, Lord Bach, and my noble friend Lord Phillips go far beyond the responsibilities of the Ministry of Justice and of the Bill about the rights and responsibilities of the citizen in our society. However, I accept that it is sensible to address the need for a better understanding of how the justice system works and allow the citizen a more fully understood access to it.
Lord McNally
He will be very annoyed; that is what his father was called. It is one of the problems of being in the House of Lords that you remember their fathers. I am working with Francis Maude on our transparency agenda. On a number of things that have been, and will be, discussed in this Bill, some of my noble friends talk as if the legal profession was set in aspic. I suspect that we are about to see an enormous change in the legal profession. As in any sector where there is change, it is unsettling, but it could also be very enabling. I wonder whether alternative business structures, whereby accessing a lawyer might not be so formidable as calling on the high-street solicitor but a matter of going to somewhere in your local Co-op, might make a difference in terms of access.
Noble Lords underestimate just how willing people are to use the telephone and, increasingly, their e-mails and computers to get information. One has only to see the impact of eBay to appreciate how confidently people use that kind of technology for everyday use. The idea that people will get their advice via telephones and computers is not so far fetched.
The noble Lord, Lord Howarth, asked me what the department was doing. Through Directgov, the public can gain access to a range of information online about the justice system, including legal aid. The introductory page on legal aid on Directgov includes specific information about accessing the community legal advice helpline via the telephone or by completing a web-based online form to book a call back from the helpline in a language and at a time convenient to the caller. Plans are for e-mail advice and community legal advice, and the Legal Services Commission is currently working to enhance the facilities for clients to access advice electronically from the community legal advice helpline via secure e-mail. Initial access to the CLA e-mail advice service will be via the current “contact us, call me back” page on Directgov.
Online general services come in three forms: free web-page services provided by a variety of commercial and not-for-profit organisations such as National Debtline, the Adviceguide from Citizens Advice, and consumer credit counselling services.
I went to the Law Society awards ceremony earlier this year and it was interesting how many of the award-winning companies had online services. Some of them went quite a way down in terms of advice before you pressed the button to start being charged. Again, online services are an interesting development.
These online and digital resources also explain court processes and procedures and how court hearings work, which is particularly important for litigants in person. There are a number of links that demonstrate how comprehensive these resources are. They give advice on, for example, how to avoid repossession, what to do if you get into mortgage arrears and a whole variety of other services.
I am suggesting that part of what the noble Lord, Lord Bach, raised in this amendment, which I welcome because it allowed us to tease out some of these matters, is that a great part of our responsibilities under this section will be carried through by the new technologies. We believe that the public, who in other parts of our life show an amazing capacity to use these new technologies, will find them an important part of understanding and having access to our legal system.
We resist the amendment because we think that this should not be a duty, although it is certainly a direction of travel for the MoJ. We regard the creation of a duty at this stage to be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all-encompassing service. I hope that the noble Lord will accept where our intentions lie and where our direction of travel lies, and at this stage will agree to withdraw his amendment.
Lord Bach
I will withdraw the amendment in due course, although I must say that having had the support that I have had around the House I am sorely tempted to have our first vote on this Bill tonight. But as I think that we are probably the only part of the whole of British society that is working at the moment—they certainly are not at the other end—I will resist that very strong temptation.
I am about to find out what Section 4(2)(a) of the Access to Justice Act 1999 says. I believe that it says that the Government have to provide general information about the law—I will find out in a moment—so the praise with which the present Government have been lauded during the course of this debate for having raised this issue for the first time ever may be a little premature. At the same time, it is good to have it in the Bill, but not good to see it as a “may” rather than a “must”. I shall start by saying to the Minister that we may well come back to this on Report, on the basis of what he said.
Section 4(1) of the Access to Justice Act says, under the heading “Community Legal Service”, that the commission—which means the Legal Services Commission—shall,
“establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs”.
We met those last words earlier today, so I will not mention them again. Subsection (2) goes on:
“The descriptions of services referred to in subsection (1) are … (a) the provision of general information about the law and legal system and the availability of legal services”,
so the Government have done well to put it back into this Bill, but it is a pity that it is voluntary and not mandatory.
I would like the noble Lord to tell us, either tonight or in writing, what is in the budget for this work—what is being spent on it this year and what is planned to be spent on it next year. I hope that the answer is not “Nil”. I rather fear it might be.
Lord McNally
I cannot give precise figures, but I am, as I said, the Minister responsible for digital development within the system and have been witnessing a lot of work going on, concerning how to make websites understandable, accessible and people-friendly. Since we are being swamped with advice, a little bit that has come to me says that, under the Access to Justice Act 1999, the provision of information is part of civil legal aid, but we have decided to take it out of the concept of legal aid because, although it appears in Section 4(2)(a) of the 1999 Act, the Legal Services Commission did not in practice treat it as something that it would normally fund. It was put in the Act, but nothing happened, which is not unknown.
Lord Bach
We spent quite a lot of money on it, and planned to spend more. I think that that is as far as we can take it tonight, but if the noble Lord can supply the figures, if there are any, that would be helpful to the Committee.
I want to thank all noble Lords who have spoken in this fairly short debate. I particularly want to praise the noble Lord, Lord Phillips of Sudbury, for his role in the Citizenship Foundation. As my noble friend Lord Howarth pointed out, it is wrong to congratulate him this week if citizenship is no longer to play the role that it has done in the curriculum. I suspect that the noble Lord, Lord Phillips, will have more to say on that, perhaps even now.
Lord Phillips of Sudbury
My Lords, I would simply like to make clear that the noble Lord, Lord Howarth, was right up to a point: the issue is not decided. There is everything to play for. I say to anybody in this Chamber who thinks that it would be a bad step, please get your pen out and write to Mr Gove.
Lord Bach
As the noble Lord says, there is everything to play for—rather like this Bill, I hope.
At the risk of taking up too much time, I will just quote from the speech of Lucy Scott-Moncrieff, the vice-president of the Law Society this year, who I am sure will be a very distinguished president next year. She has had a great deal to do with the Law Society’s reaction to and comments on this Bill. In a speech to the Northumbria School of Law earlier this month, which I have been lucky enough to see, she said the following, which I think is pertinent:
“But access to the courts is only half the story … the story of those who know that they have a problem, and perhaps know that there is a legal remedy, but have limited opportunity to use the legal system to achieve justice. The other part of the story concerns people who may not realise that their problem has a legal remedy, who have a whole tangle of issues affecting their lives which need to be unpicked to understand what solutions are possible - which may or may not be legal solutions. Very few people who receive legal advice proceed to litigate”.
That point was made before the dinner break. Those are wise words and there is a lot for the Government to gain by making sure people have a better understanding of their legal rights.
I will withdraw the amendment in a moment, but will just say that this is an issue that may be small in terms of the length of amendment, but may be an important issue that we should press the Government on when we come to Report. I seek leave of the Committee to withdraw the amendment.
“( ) The Lord Chancellor must ensure that a person eligible for legal aid advice is able to access it in a range of forms ab initio, including securing the provision of initial face-to-face advice.”
Lord Bach
My Lords, we come on now to an important element of Part 1 of the Bill, which is the mandatory gateway. Although I am sure the Committee knows this very well, I just remind noble Lords that if the relevant area of law is out of scope, there will be no point in ringing up the mandatory gateway, because the client will be told—no doubt very politely—that this is not in scope and that they will have to go elsewhere if they want legal advice. When we talk about the mandatory gateway, it is for the areas of law that remain in scope, such as parts of housing law, very small parts of debt, community care and parts of education. We are talking about a limited field. It is no answer to the areas of law that it is intended to take out of scope.
I start by saying that my experience as a Minister was that the telephone advice centre is a fantastic channel for delivering advice. I am sure that the noble Lord and his colleague the Legal Aid Minister have, as I have, visited telephone advice centres and been impressed. I certainly was in my turn. It can be convenient for those with busy lives, allowing them to access services at their convenience, and it can be—although it is not always—a cheaper way to deliver advice than face to face through a bricks-and-mortar centre. We also have the community legal advice helpline, which is excellent. All of us, I am sure, would be glad to see the work of that organisation continue and expand.
However, there is a “but” here, and it is a big “but”. We on this side of the House do not think that the right way of dealing with the issue of getting advice lies in the Government’s plans to institute a mandatory telephone gateway. We will ask the Government exactly what they intend, but this would seem to mean that anyone seeking to use a service funded through the legal aid and advice scheme would have first to call a hotline that would then direct them to the right service.
Our concerns are these. It is proposed to introduce the mandatory single telephone gateway first for matters of debt, although comparatively few debt matters are left if the Bill goes through in its present form; for special educational needs—that part of education law that the Government have had second thoughts about and that is still now in scope; for discrimination—the only part of employment law that remains; and for community care cases, which, again, the Government quite rightly had second thoughts about. The Government have stated their intention to roll it out to other areas of law as soon as practicable.
It is hard to find much mention of the mandatory gateway in the Bill. You have to look pretty hard, but in Clause 26 the Committee will see that there is mention of various ways in which advice can be given. It is otherwise something that we know about because the Government have spoken a lot about it, but it is not something that appears directly in the Bill. Clause 26(2) is actually the subsection that I am thinking of.
If the Government have stated their intention to roll out this mandatory gateway as I have said, they have failed in our view to answer, particularly in another place, some fairly fundamental questions that need answering before Parliament should sanction such a departure from the present abundance of channels. Perhaps the Minister can illuminate us as to how the Government’s thinking has evolved on this issue, which I am sure they have spent a long time thinking about.
When an individual with learning difficulties, for example, communication and speech problems or mental health problems tries to find help, will they be able to, first, find this new gateway service, secondly, properly access and understand the service and, thirdly, gain full utility from it? Will an individual who may be severely upset or traumatised—a victim of domestic violence, perhaps, or someone who is in extreme debt and feels rather ashamed about it—be willing to speak to a distant person without the comfort of direct, human interaction? Is it really the Government's case that they will all be happy to do that?
How will someone who is utterly impecunious be able to make a lengthy telephone call, in which the caller refers to documents and must wait for interpreters and answer detailed questions, in anything close to an acceptable manner from, say, public telephone boxes, which still exist? For those with English as a foreign language, there may be a particular problem. There might be an interpreter, too; three-way conversations are hardly practicable. It will be difficult to consider documents over the phone. What if the caller is perhaps semiliterate or, in fact, illiterate? They will obviously need personalised help—the kind of help that they get at the moment. What if there is a mass of documents, only one or two of which are particularly relevant? Visually, someone obviously sifts through these papers, as they are using knowledge in a particular form that is relevant, but it could become a nightmare on the telephone.
We think that those fears, which I am sure the Government have thought about, might prove an insurmountable hurdle to a number of those who, quite justifiably and within their rights, need legal advice or help. There are those with communication problems or mental health issues, those with learning difficulties or literacy issues, and those who just cannot express themselves in a particularly articulate way. Those who would be unwilling to use a phone need the immediacy of face-to-face contact and we fear that they may drop out. If the mandatory gateway is the only way through, will they actually get the advice that may solve the problem or get them their rights?
There is an economic argument, too, because if telephone conversations become muddy and too long, with both parties struggling to make themselves understood while sifting through masses of paper and language difficulties, cost-efficiencies look much less likely. We think that there are ways of mitigating these issues, but at the moment there has been no proper debate about this issue. In a way, I am sorry that this debate is taking place in Committee at this time today, but it is still an opportunity for the Government to express their views and for other noble Lords to say whether or not they agree. On how this part of the Bill will actually work, we have little to guide us. We have Clause 26(2), but that gives us little insight into how it will work. I look forward to the debate on this issue in the time available to us.
I end, I hope not too pretentiously, with this comment: when the great writer EM Forster talked about only connecting—“Only connect” was his model for living—he was talking not about connecting two telephone wires but about human interaction. The Government should not discount human interaction when they or lawyers are in the business of giving advice on some of the matters that we have been discussing in this Committee. I beg to move.
Baroness Grey-Thompson
My Lords, I support Amendment 4, which has been comprehensively moved by the noble Lord, Lord Bach. I have a number of concerns about the gateway and how people may access it, specifically disabled people in the wider sense. While it makes a lot of sense to limit the access to the gateway to four areas initially, I feel that this could cause some difficulty for a number of people who may be confused about signposting. We are talking about areas of rights and obligations that are complex and specialised and require a great deal of knowledge of the system.
That leads me straight on to staff training. The Justice Minister in Committee in another place said that,
“legal qualifications will not be a contractual requirement”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 6/9/11; col. 294.]
I seek further assurance that, if this is pursued, appropriate training will be carried out.
While I am supportive in principle of simplifying any system—for disabled people especially, the idea of cutting down on travelling, which can be difficult, is very positive—I immediately start thinking of the number of people who might just find this method too difficult to use. Does the Minister have any thoughts on the number or possibly the percentage of people who may struggle to use the proposed system? Whether they be people with a hearing difficulty who might not have access to the right equipment if they are only recently impaired, people whose impairment may make this type of communication difficult, people with language difficulties or people with learning disabilities, the group could be wide and varied. It is not easy to categorise those people who might find some difficulty with this. Also, that presumes that the individual knows and understands how their individual impairment affects them. What about those who do not, or those who need extra help making the initial phone call?
I have also been thinking about those people who might find it difficult to take down an accurate record of what has been discussed, perhaps even to follow the line of questioning. I would like some more detail about how records are going to be kept and what information will be sent to the individual. If they do not agree with the record of the conversation, how will this be monitored? What is the follow-up?
I would like to understand how the system will be evaluated. Obviously, you need a trial system in operation to iron out as many bugs as possible, even if this is the trial system for wider expansion. I know from my work on the Welfare Reform Bill that the assessment process is critical not just to asking the right questions—that is hard enough—but to getting the correct and useful information from the individual and then being able to tie all that data together to get to an appropriate outcome. I receive a reasonable amount of correspondence about face-to-face assessments, where the visual recognition of response and the nuances of conversation are easier to pick up. That is why I am so concerned about the initial assessment being through a phone call.
The Minister mentioned the use of technology. I am a huge fan of technology, and for lots of disabled people it can be used in an incredibly positive way. I do not think that any of us would be surprised at how many young people are using technology now or at the stories in the media about toddlers who think that every TV screen is a touch screen and can flick through the channels—they are almost born knowing how to use this technology. The reality, though, is that older people and disabled people still struggle with different forms of technology. For me it is not just about the access to technology; that is just the first part. The second part is actually understanding how to signpost people to get to that information, and that is difficult for a large number of people.
Baroness Prashar
My Lords, I rise to support this amendment. I thank the noble Lord, Lord Bach, for introducing it in such a comprehensive way. I also thank the noble Baroness, Lady Grey-Thompson, for spelling out some of the broader implications of this matter. I will be brief as I want to underline just a couple of points. One is that I fear that the single mandatory telephone gateway will potentially reduce access for some of the most vulnerable members of the community. I think that the Government’s intention to deliver legal services through a single telephone gateway and to further provide some casework by telephone fails to recognise the difficulties this will present to many of those attempting to access the system, particularly those with complex or distressing legal problems, as has been spelt out by the noble Lord, Lord Bach.
As we have heard, telephone services are, of course, of value to many and their expansion is welcome. However, in my view they do not provide a universal solution to those seeking initial legal advice. When a problem arises, many seek legal advice from providers that they have used before and know and trust. A strong relationship between adviser and client is central to clients providing vital information about their circumstances. Remote mediums of seeking advice are not conducive to building trust with an adviser.
Research by the Legal Action Group has revealed that people in social classes D and E are the most likely to experience a social welfare legal problem, are most reliant on local advice centres for help and are least likely to use telephone advice. It is also the case that those who make initial contact by phone like to follow it up with face-to-face advice. As we heard from the noble Lord, Lord Bach, those with language difficulties and urgent matters to address prefer personal contact, and there may well be issues with literacy. There are real dangers that driving all advice provision to a telephone gateway will result in a substantial number of those who currently seek face-to-face advice dropping out and not receiving any legal aid at all. Their problems will be left to become more complex and expensive for the state to resolve further down the line. This in the long run will defeat the purpose of the legislation.
My second concern is the Bill’s implications for the sustainability of local legal services which are normally embedded in the community. One can see what will happen to those. With their local knowledge, these organisations not only promote good practice but campaign to improve services. We need more strategic provision for legal advice services drawing on the best practice of local solutions. Throughout this afternoon we have heard that access to justice is a constitutional principle. Initial legal advice provided in an appropriate way is a first step to accessing justice and can avert long-drawn-out legal wrangles. In my view it is therefore imperative that legal aid advice is provided in a range of forms and is accessible to those who really need it.
Lord Shipley
My Lords, I rise to speak to Amendments 114 and 116 and to all the principles that lie behind the amendments in this group. We are discussing a mandatory telephone gateway and whether it can on its own deliver equal and effective access to legal aid. Currently, signposting comes from a variety of sources such as library information desks, council customer services, GP surgeries, councillors’ and MPs’ surgeries, voluntary and public organisations, charities and so on. They all currently direct people to CAB, law centres and voluntary organisations such as Shelter. That system works. In the main, the signposting is of high quality and gets people who need help to the right advice from the most appropriate place.
There is a great danger in a call-centre approach. I hope that that is not what the Government intend, but a call-centre approach is dependent upon speed and low costs as its main drivers. The telephone can be very good, but in this case it would be very good only if: first, individuals can communicate via the telephone—for example, there could be significant levels of documentation to quote from, and there is therefore a strong probability of complexity in an inquiry; secondly, if individuals have the confidence to clearly prepare what they need to say and then say it; and thirdly and crucially, if the quality of the staff is sufficient to answer the initial inquiry in terms of their legal knowledge and ability to prompt the facts to come out in conversation. In conclusion, a telephone gateway should have, as a minimum, law graduates or experienced advice workers taking the initial calls, not unqualified generalists who may fail to pass on a call that should be passed on, or who may fail to diagnose a case because they think it is out of scope, when actually something that is related to it is within scope.
The telephone can never be the only means of accessing legal aid—nor should be electronic variations such as the internet and so on. Sometimes a face-to-face initial interview can be a more effective and cheaper option than the telephone or the web. We should bear it in mind that large numbers of households in the UK do not have access to broadband or the internet and are reliant upon public services such as public libraries and schools for access. Around a quarter of households simply do not have any access to that means of communication. Normally, but not necessarily, very many members of those households will be poor and unable to afford the relevant equipment. Expecting them to communicate across the web could be a significant problem.
Most contact for assessing an initial inquiry is currently face-to-face. I have not followed why, if someone accesses, say, a CAB, law centre or public library, the initial face-to-face inquiry that has already taken place cannot then be referred for another face-to-face discussion. Why should there be the additional cost of an extra loop in the system by generating a computer record that can then be accessed by a range of other people?
I have concluded that we must have a range of providers that can address the needs of all those likely to require help, some of whom may not speak English well. I noted recently research from the USA that shows that one-fifth of people who receive telephone advice do not act upon it because they have not fully understood what the advice actually means.
There is a further issue around cost. Is it cheaper? Figures have been quoted of savings of between £50 million and £70 million. In my view, the cost could prove to be much less than that because the current calculations compare the cost of face-to-face interviews with the cost of a telephone call via a community advice line, but they are not directly comparable because those who use the latter are a self-selecting group who are content and confident with using a telephone.
We need to look at a whole range of issues more deeply. I hope that my noble friend will be willing to undertake further work on the advisability of a single mandatory channel; that further work will be done on the relative costs involved; and that the proposal’s impact on equality and access to justice will be looked at very closely. There are real dangers that some of those most in need of help will fail to secure it through a mandatory telephone gateway.
Lord Howarth of Newport
My Lords, my noble friend Lord Bach and the noble Baroness, Lady Grey-Thompson, have identified, imaginatively and sensitively, extensive groups of people for whom a mandatory telephone gateway would be entirely inappropriate. I hope that the Minister will reflect carefully on the apprehensions expressed this evening. The noble Baroness, Lady Prashar, and the noble Lord, Lord Shipley, both suggested that it would be a false economy to skimp on the cost of the initial advice and assistance. We could end up, perversely, having to spend a lot more because people did not receive the advice and assistance that they needed, it was not comprehensible to them, it failed to match what was appropriate for them or because they lacked the encouragement to explain themselves fully, so their cases were not taken further through the appropriate channels and their personal predicament deteriorated. We must take all those worries seriously.
The noble Baroness, Lady Grey-Thompson, touched on the question of training, and the noble Lord, Lord Shipley, talked about the need for the people who are to provide the service to be of high calibre. Those things are important. It would be helpful if the Minister would say more about what the Government envisage by way of training programmes and the level and standard of personnel who will be recruited to provide the service. We are in a familiar dilemma as we examine the legislation. It is perfunctorily articulated in extremely important aspects. We were asked to take the Government on trust. We are willing to take the Government on trust to the extent that they will explain themselves to us and we know what we are being asked to trust. I hope that the Minister will be able to be helpful to the Committee on those points.
I have two quick questions to put to the Minister. Will this be a freephone service? Secondly, does he envisage that there will be a network of telephones that people will be able to use when they make these calls? It could be a very sensitive matter for people explaining themselves to someone at the other side of the telephone gateway about issues concerning family breakdown, debt and so forth. It is not just that they are painful topics but that it could be positively hazardous for people not to be able to make those telephone calls in circumstances of privacy where they can be confident that they will not be overheard or interrupted. We need to know a lot more detail about how the Minister anticipates that the system will be made to work in practice.
Lord Carlile of Berriew
My Lords, I raise just one or two points about the notion of a compulsory telephone gateway. The first relates to legal professional privilege. Can my noble friend confirm that all communication in the telephone gateways are and will continue to be covered by legal professional privilege, so that we can avoid the risk of cases eventually arriving in court and initial conversations with telephone gateways being used for the purposes of cross-examination when the person accessing the telephone gateway may well have been lacking in confidence and have stated their case in an inaccurate way?
The second matter I wanted to raise is about the group of people—and there are many of them—who contact what I will call informed lay services. That would include people going to citizens advice bureaux, well informed councillors, Members of the Welsh Assembly in their constituency surgeries and, of course, Members of Parliament in their constituency surgeries. It would not make much sense if people who had gone through those routes were then required thereafter to access a mandatory telephone gateway. Otherwise, we will run into the ludicrous situation where people sit in those establishments with their MPs and a call is made to the telephone gateway during the constituency surgery. That would of course be an absurdity. Perhaps the Minister would explain to the Committee what is proposed in such circumstances, the ones that I have described being but examples.
Lord Phillips of Sudbury
My Lords, I want to make one point and one point only but I hope to do so forcibly. If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted. It is a small but significant group, and it would be an irony if the most needy people in our society were the very ones who were, in effect, cut off from access to legal help when they most needed it.
I say this from a considerable amount of personal experience working for the Samaritans and for one of the London law centres, and from my life as a young solicitor in a general practice and, indeed, as the director of the first national legal telephone helpline. I emphasise to the Minister that the problem really is not at all obvious. It is a commonplace that the younger generation today is phenomenally computer literate and so on, but there is still a small group of people who are totally lacking in self-confidence and in an ability to analyse their own problems, and they are fearful of being made fools of on a telephone. I could go on describing this group. I quite accept that for the majority of people what is currently proposed is fine but, as my noble friend Lord Shipley and others have said, we must, whatever else we do, have a second route into legal help which does not cut off that most needy group.
Lord McNally
I thank noble Lords for their comments. A number of points have been raised. The helpline is an 0845 number. However, callers can text or call to request a call back at minimum cost, and the call back will be entirely free. There is also an online form which can be sent to the helpline at no cost. The helpline is a confidential service and the legal advice given will be protected by legal professional privilege.
I hear what my noble friend Lord Phillips says, although it is ironic that one of the experiences that he quotes is that of the Samaritans, whose service is based on the telephone. I hear that there will be this needy section of society but I suggest that the range of services mentioned by my noble friend Lord Shipley will capture these people. There are also health visitors and local councillors. If there are such people in our society and if they are disabled in this way in the broader sense of that word, they will get advice. I really think that it is taking the argument too far to say that there must be a system that can identify the individual who is so afraid of the modern world that he will not engage. No system on earth can cover that.
I am not being flippant about what we are addressing now but, when we were involved with broadcasting issues, noble Lords would make a great fuss about some mythical pensioner, who lived in the West Riding, had a nine-inch Bush television and would ask whether she would be able to get the television stations when we switched to 625 lines from 405. We can always take things to the extreme, but the people who were mentioned by my noble friend Lord Phillips and others are those who will be given other sources of advice to enable them to go through the gateway.
I will deal with the issues raised by the noble Baroness, Lady Grey-Thompson. She asked how records will be kept. Recordings and case records will be retained for six years after the contract with the provider has expired. If a caller calls on more than one occasion, the operator will hold on to the information held. She asked whether an advocate can ring on behalf of a client. All clients will be assessed on a case-by-case basis and a caller identified as being unable to give instructions, or to act on advice given, will be referred to a face-to-face advice service and there will be provision for a third party to call a gateway on a client’s behalf.
We have taken on board the issues of people with learning difficulties or mental health issues. Where a client who lacks capacity contacts the specialist telephone advice service, or the adviser believes that they may lack capacity, the advice provider will need to follow relevant professional standards. However, the specialist advice service will be able to discuss the details of the case with an authorised third party.
The noble Lord, Lord Shipley, raised the question of whether the operating service may not correctly diagnose a problem. Only where the operator service is fully satisfied that it has correctly diagnosed that a case is out of scope will they make a decision. If there is any doubt, they will refer the matter to a legally trained specialist. The noble Lord, Lord Bach, asked how people will know how to ring the helpline. We will be developing a communication strategy between now and 2013 when it will come online. That was also a question asked by the noble Baroness, Lady Grey-Thompson. That information about the line will be appropriate and specifically targeted to routes that individuals currently use to find out information.
Both the noble Lord, Lord Howarth, and the noble Baroness, Lady Grey-Thompson, asked whether helpline operators will be legally qualified. The answer is no, because they do not offer callers legal advice. They are fully trained to identify key words from a client’s description of a problem to ensure an accurate diagnosis. That means that the client can then be passed on to the appropriate legally trained adviser who is able to give advice on the relevant point of law.
The noble Lord, Lord Shipley, and the noble Baroness, Lady Grey-Thompson, asked about qualifications. Gateway operators are fully trained. Telephone advice specialists are required to have the same level of qualification as their face-to-face equivalents.
I am well aware from the debate that noble Lords have concerns about the mandatory single gateway and the Government are seeking to give assurances about those concerns. Amendment 4 relates to Clause 1 and would affect the introduction of the mandatory single gateway as set out in the Government’s consultation response on legal aid reform. It is essential that the Government should seek to provide legal aid services in a cost-effective manner that meets the needs of their clients. However, this amendment seeks to fetter the Government’s flexibility to do so by placing the specific duty on the Lord Chancellor under Clause 1 that for those people eligible for legal aid, those legal aid services must be available in a range of forms and that this must include face-to-face advice. This would preclude the possibility of providing, subject to exceptions, legal aid services in certain areas of law only through specialist telephone advice services. This amendment would also conflict with the provisions in Clause 26(1) and (2), which provide that the Lord Chancellor’s duty at Clause 1 does not, where an individual qualifies for legal aid, include a duty to secure that services are made available by the means selected by the individual. The Lord Chancellor may discharge that duty by arranging for services to be provided by telephone or by other electronic means.
The Government explained in their consultation response their intention to implement a mandatory single gateway, based on the community legal advice helpline, initially in a restricted number of areas of law. Clients in these areas would generally be required to apply for legal aid over the telephone or other electronic means, and would then, if they qualify for legal aid, be offered legal aid advice only over the telephone or other electronic means. The areas of law concerned are debt, in so far it remains in scope; community care; discrimination—in other words, claims relating to a contravention of the Equality Act 2010—and special educational needs. There would be an exception to using the mandatory single gateway to the four areas of law covered by the gateway. These would be emergency cases; instances where the client had previously been assessed by the mandatory single gateway as requiring advice face-to-face within the last 12 months and is seeking further help to resolve link problems from the same face-to-face provider; and clients who are in detention, including prison, a detention centre or a secure hospital, and children, defined as those under the age of 18.
In the legal aid consultation response, we also explained that where clients access the community legal advice helplines through the mandatory single gateway in those four areas of law, we expect that those who qualify for legal aid would normally be transferred to the community legal advice specialist telephone adviser. However, both gateway call operators and specialist advisers will assess the specific needs of all callers on a case-by-case basis. This assessment will be based on the personal circumstances of the client and the nature of the issue about which they are seeking legal assistance. Generally speaking, the key consideration is whether the individual client or someone on their behalf will be able to give instructions and act on the advice given. But where it becomes clear that legal representation will be necessary, clients will be given the option to see a face-to-face provider.
Where it is determined that face-to-face advice will be more appropriate for the caller, they will, where possible, be given a choice of face-to-face advice provider either from a list of suitable advice providers or a specific suitable provider known to the client. The Government do not believe that there will be any significant delay to an individual receiving the help they need or any increased bureaucracy caused by the introduction of a gateway. In some cases—for example, where a client does not know which provider will be able to help—we believe that telephone advice is likely to be quicker even where a referral is to a face-to-face provider. The Government believe that the diagnostic and routing service offered by the gateway will be of value to many.
Amendments 114 and 116 would require that where legal aid services are provided by telephone or other electronic means, those services should be provided solely by a not-for-profit sector. I recognise and value the important role that not-for-profit organisations play in delivering advice at the local level. I also recognise the concerns of many noble Lords about not-for-profit organisations and the future provision of advice services. However, seeking to create a type of monopoly for not-for-profit organisations is not the way to address this.
As noble Lords will be aware, it would not be possible for the Government to commit to awarding contracts for telephone services solely to a specific sector, as any services commissioned by public bodies are subject to EU procurement rules. However, not-for-profit and charitable organisations can and already do bid for contracts to provide specialist telephone advice under the existing community legal advice helpline. At present, six of the 15 contracts for specialist telephone advice through the helpline are held by not-for-profit or charitable organisations. Future contracts will continue to provide opportunities for such organisations to bid to deliver specialist telephone advice services through the helpline and the telephone gateway. Of course, such organisations are also able to bid for the telephone operator contract for the helpline. The amendments would also mean that the criminal legal aid telephone advice service, CDS Direct, could be provided only by the not-for-profit sector. Not-for-profit organisations do not currently provide telephone criminal legal aid advice and I am not aware that they wish, or are currently equipped, to do so.
Related to general concerns about the future provision of face-to-face advice services is the decision to limit the initial scope of the telephone gateway to four areas of law, which will have a more limited impact when compared with the original proposal set out in the consultation paper. The Government are confident that implementing the telephone gateway in limited areas of law will enable better monitoring of the impact on clients and providers in order to inform future decisions about any further expansion of the gateway.
On future civil legal aid advice provision more generally, the Government are committed to ensuring that people continue to have access to good-quality, free advice in their communities. This is why the Government have launched the advice services fund and a review of free advice services. They have set aside £20 million—I say to the noble Lord, Lord Beecham, that it is the same £20 million; I am not announcing yet another £20 million—to support the not-for-profit sector in the short term. The fund will provide immediate support to not-for-profit advice service providers in England to deliver essential debt, welfare benefit, employment and housing advice services. The details of the fund were announced on 21 November by my honourable friend Nick Hurd MP, the Minister for Civil Society.
Lord Bach
I will certainly withdraw my amendment, and I thank the Minister for his very full reply. Speaking for myself, I have to say that I remain entirely dissatisfied by his speech about this very important part of the Bill. I will be as quick as I possibly can be because of the time.
I thank the noble Baronesses, Lady Grey-Thompson and Lady Prashar, for signing the amendment in the name of my noble friend Lord Beecham and myself and for their excellent speeches, and I thank all other noble Lords who spoke—all of them against the proposal for the mandatory gateway.
A number of important issues came out, which I think the Government really should pay careful attention to. The remark made by the noble Baroness, Lady Grey-Thompson, that legal issues will remain unrecognised is a crucial point. The comment made by the noble Baroness, Lady Prashar, about reducing access to some of the most vulnerable is also crucial.
As far as the freephone service is concerned, I do not know whether the Minister is able to give an answer to the question asked by my noble friend Lord Howarth. We understand that the current cost of the community legal advice helpline is 4p per minute, but I do not know what the intention is for the future. Perhaps the Minister can tell us now or write about that when he has had the chance to ask.
Lord McNally
I will write to the noble Lord to clarify that. If there is a problem of cost, a person will be able to make a short call or send an e-mail asking for a call back. I will have to seek advice on whether the 0845 number is a free number.
Lord Bach
I am not concerned about that tonight, but the position is not clear yet and we need to be clear. The real problem is the mandatory nature of this provision, which is what worries us. It is not the fact that there will be telephone advice. Such advice is excellent. When the Minister gently chides some of his noble friends for taking the argument too far, surely the Government are taking it too far by insisting on a mandatory gateway. Flexibility is everything in something like that.
The Minister almost gave the game away when he said that someone who was unable to make a telephone call would somehow get advice from someone. No, they will not necessarily. Perhaps they will but they may not. Nor will they get legal advice, which they probably need, from anyone. The Government cannot be as vague about it as they currently appear to be.
What worries us is that the present system does not work badly. I wish to refer to two points made in the debate. The noble Baroness, Lady Prashar, said that these not-for-profit organisations and solicitors are embedded in the community. They are part of our way of life. The noble Lord, Lord Shipley, has a great deal of experience and knowledge in this field. He talked about the right advice from the right place. That is the British way of doing this and it is a system that works pretty well. There is flexibility and various ways in which a person can get advice. It is not that a person has a choice between all sorts of ways of getting advice—the best way for them will be obvious. But to restrict it to a mandatory gateway sounds almost too dirigiste for this country. We should be much more flexible, which is much more in our political tradition. What makes it even better is that it works. The great danger is that in their attempt to change everything, the Government will change this for much the worse. Of course, tonight I will withdraw the amendment but the noble Lord knows that we will certainly return to this issue.