House of Lords
(12 years, 10 months ago)
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Payday Loans
(12 years, 10 months ago)
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Lord Kennedy of Southwark
To ask Her Majesty’s Government what action they will take to ensure consumers are fully informed of the cost of payday loans.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, increasing transparency and understanding for consumers who use these loans is a key part of the work which came out of our consumer credit review, which is now concluded. We are working with the industry and consumer organisations to ensure that concerns about practices in this market that lead to consumer detriment are addressed in future codes of practice.
Lord Kennedy of Southwark
Does the noble Baroness agree that making sure that consumers make an informed choice is of paramount importance and that the consumer credit advertising regulations may be deficient in this respect? Will she facilitate a meeting between me and some campaigners with her right honourable friend the Business Secretary to discuss that matter?
Baroness Wilcox
I agree with the noble Lord that a well informed consumer is an empowered consumer. The information which is given out is often process driven by the people wishing to lend the money rather than those trying to borrow it. I have spent a long time looking at this, so I am with the noble Lord. I would welcome any ideas that he has which would enable us to work together on this.
Lord Newby
My Lords, does the Minister agree that one of the problems is that for many people of modest means there is a sparsity of easily accessible places in which to put their money and from which to borrow? What are the Government doing further to promote credit unions, which are the most obvious way for many of these people to manage their money?
Baroness Wilcox
My noble friend is absolutely right: credit unions are the way to go. Why they have never taken off in Great Britain, I will never know. For years and years consumer groups have tried to get people to save with credit unions. However, the Department for Work and Pensions will shortly report on its study on how we can best support these credit unions, which wish to extend their services to benefit many more customers.
Lord Borrie
Will the Minister indicate whether she agrees that percentage rates, including the annual percentage rate for loans which are available for only a short period, are often highly misleading? Indeed, they may suggest that the costs are far higher than they really are. Does she agree that what is needed by the consumer is cost in pounds and pence for each day that the loan is available, and information on whether there are administration costs or other costs? That clarification would be much more helpful than a mere percentage sign and a number.
Baroness Wilcox
I have to agree with every word that the noble Lord has said. He is a past director of the Office of Fair Trading and extremely well informed on this matter and together we have done much work on it over the years. There is no doubt that the APR should be replaced, certainly with a total cost of credit. We know that APRs are not the clearest way to show exactly how much short-term loans, such as payday loans, cost. It sounds terribly frightening to hear the figure £2,000. However, as we know, people borrow this money for a short number of days. The information they want is how much the loan will cost them for the short number of days they need to borrow it. As I say, I agree completely with the noble Lord’s remarks.
Baroness Howarth of Breckland
My Lords, does the noble Baroness not agree that people who take out these loans are usually the poorest in our society and have the least understanding of what even an APR is—never mind the interest rate? Does she not also agree that it is crucial that such people are able to get help from places such as citizens advice bureaux because they are local, or from groups that have outreach, rather than having to find credit unions that such people often do not understand? As the Government are so determined to tackle this problem, what is she going to do to encourage the CABs and outreach groups to move forward?
Baroness Wilcox
As the noble Baroness knows, a great deal of talk is going on with the CABs regarding the possible new range of duties that they will be delivering in the high street, which is, as she said, where people are and want to be. They do not necessarily want to join a credit union. They can go to other places for free debt advice but, inevitably, people need this money at the last minute for reasons that are very important to them. They are not going to seek advice, but they will need to know where it is when they need it. What we would like to do, and what we are pushing for in the industry, is ensure that before that money is loaned such companies make sure that people understand exactly how much money they will have to repay. I will take up any suggestions that the noble Baroness may have.
Lord Mackay of Clashfern
Is not the simple answer to require those who lend money to tell people the exact cost of repaying the amount that has been borrowed and the time over which it has been borrowed?
Baroness Wilcox
My noble and learned friend is exactly right, and that is what came out of the consumer credit review. We are working with the industry and consumer groups to ensure that that is the information that people get immediately when they need it.
The Lord Bishop of Gloucester
My Lords, the Church of England’s national investing bodies recently decided to avoid investment in payday lending firms because of the risk of exploitative lending. Bearing in mind that credit has to be provided responsibly and affordably, will the Government also consider instituting a requirement that payday lenders must, before advancing a loan, assess a borrower’s financial circumstances and ability to repay?
Baroness Wilcox
The firms are strongly controlled by the Office of Fair Trading as to how they get their licences. They should already be asking for and giving out such information. If evidence is brought that that is not happening, the OFT is very quick to come down on it, and the Trading Standards Institute is of course involved. At the end of the day, people who desperately need money will hardly hear what someone is saying to them about how much a loan is costing and how much they will have to pay back. Right now, right there and right then, they need a washing machine.
Lord Elystan-Morgan
My Lords, can the noble Baroness kindly tell the House what use is made by judges in England and Wales of the statutory powers vested in them that allow them to ameliorate or even to disallow conditions in a loan agreement that are unconscionably harsh upon a vulnerable borrower?
Baroness Wilcox
I do not have the answer to that question today, but I will certainly look into it, write to the noble Lord and put the answer in the Library.
Lord Mitchell
My Lords, over Christmas almost every bus in London was advertising wonga.com, which was going out of the way to encourage people to have these payday loans—loans that the firm itself was advertising at rates of 4,200 per cent per annum. Will the Government consider banning the advertising of these payday loans?
Baroness Wilcox
We are looking at all options, but we should always have in mind that it is difficult to take away from people the opportunity to have access to facilities that they need. One would therefore tread delicately in this area.
Company Cars
(12 years, 10 months ago)
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Lord Sheldon
To ask Her Majesty’s Government what action they plan to take to limit high mileage by company cars.
Earl Attlee
My Lords, the Government recognise that high mileage by company cars may impact the economy and environment. Our policies encourage businesses to consider whether they can reduce their travel and to embrace sustainable transport choices. Some businesses have operational needs that mean that a company car is vital. Motoring taxes such as fuel duty and company car tax can encourage fuel-efficient behaviour and the use of low-carbon vehicles, in addition to supporting the public finances.
Lord Sheldon
I thank the noble Lord for that reply, but is it not clear that mileage is higher for company cars, which are large cars, than for other cars, and is not the greater mileage driven in company cars unacceptably more than the tax liability of the individual?
Earl Attlee
My Lords, I do not accept that company cars are necessarily larger than average. It is up to the employer what size car to supply to the employee. The system of company car tax takes into account the retail value of the car plus accessories and the CO2 tailpipe emissions. A heavier car is likely to, but will not necessarily, have higher emissions and therefore higher costs for the employee.
Lord Berkeley
Is there not evidence that company car drivers tend to drive not only far further but faster and less safely than people who own their own cars? Should not the Government look at that?
Earl Attlee
My Lords, the noble Lord is right; I asked my officials that precise question. I suspect that the reason why the accident rate is higher with company cars is that company car drivers are working under increased pressure and can be more tired, which is a well known cause of accidents on the strategic road network.
Baroness O'Cathain
My Lords, can my noble friend confirm that many company car drivers use their company cars as offices? If they are sales reps, they cart around stuff that they could not possibly take on and off trains, et cetera, and visit many places that are way out in the sticks. Therefore, they need their cars and have high mileage as a result.
Earl Attlee
My noble friend makes an extremely important point. Many company car users have to use a company car; there is no alternative. I am also confident that the system of company car taxation is progressive and fair.
Lord Razzall
My Lords, does my noble friend agree that, apart from what he said in his last answer about ensuring that large company cars pay the maximum tax feasible, this issue would be better not dealt with by the Government?
Earl Attlee
My Lords, I am happy to agree that the Government should not interfere any more than we already do, by the system of company car tax that I have outlined, but I am also confident that bigger and heavier cars pay considerably more in company car tax, not least because an employee who is entitled to a large car will also be paying much higher rates of marginal tax, and company car tax is paid at the marginal rate of tax.
Baroness Gardner of Parkes
My Lords, one of the questioners asked my noble friend about insurance and there being many more accidents. What is the insurance position and is it taken into account in the terms of the taxation? Do people not care so much about accidents because it is not their no-claims bonus that they are losing?
Earl Attlee
My Lords, if a company car driver has an accident, I suspect that it would affect their no-claims bonus because they would have to declare their accident to the insurance company, but I am not absolutely certain on that point.
Lord Davies of Oldham
My Lords, the Minister will be all too well aware—he indicated this in his Answer—that the issue of car emissions is important for the health of our environment. Will he look again, and encourage his colleagues in the Treasury to look again, at whether we are giving sufficient encouragement to companies to provide greener cars for their people than they do at present?
Earl Attlee
My Lords, I am confident that with the CO2 emissions regime we already encourage cars to be as green and economical as possible. However, the noble Lord will also be aware that we are encouraging the use of electric vehicles, which are exempt from fuel duty and have numerous other taxation benefits.
Eurozone Agreement
(12 years, 10 months ago)
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Lord Dykes
To ask Her Majesty’s Government when they will next meet other European Union member state Governments to discuss the December 2011 Eurozone agreement.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, two meetings of the ad hoc working group on the fiscal stability union, in which the UK is participating, have been held so far. The first was on 20 December and discussed general views on the draft international agreement on a reinforced economic union and the practical arrangements for the preparatory work. The second meeting, on 6 January this year, discussed the proposed provisions in the draft agreement, particularly those relating to consistency and relationships with the law of the Union and fiscal issues. The ad hoc working group plans to hold a minimum of a further meeting a week.
Lord Dykes
My Lords, I thank my noble friend for that Answer. As the Liberal European leaders gave such good advice over the weekend, what is the coalition response to the points that they made, including the vital point about whether there should now be a full EU treaty?
Lord Howell of Guildford
The views expressed by the group to which my noble friend has referred were of course very interesting and coincided broadly with what we all accept: if, as the Deputy Prime Minister rightly said, the UK’s interests are properly and fully safeguarded, then eventually this could emerge as a European treaty. However, at the moment that is not the position, as my right honourable friend the Prime Minister had to make clear in the December Council, where it was plain that our interests were not safeguarded. Until that matter is resolved, it is difficult to see how this can become a full European treaty.
Lord Soley
Can the Minister explain what the Deputy Prime Minister meant when he said that the agreement would be folded into existing treaties, and does he think that that could be done with or without a vote, as has been suggested by the Government?
Lord Howell of Guildford
I understood the Deputy Prime Minister to say that the UK would want to make sure that the basic building blocks of the single market—namely, a level playing field upon which competition takes place—are properly safeguarded. It is a question of safeguards. I think that the meaning of what is said by anyone who applies a constructive approach to this whole situation is that, if there is to be a fiscal union treaty and it is to go forward in a way that the whole European Union can support, it will have to safeguard the issues that we regard as vital to our national interest, which means preserving open competition and preventing further discrimination against our financial services. That is what all who have applied their mind to this issue agree is the right way forward.
Lord Hannay of Chiswick
My Lords, can the Minister possibly say what provisions of the draft agreement which have been discussed in Brussels are objectionable to the British Government and prevent them signing?
Can the Minister also give me an answer to the question that I put to the Leader of the House after the 9 December meeting? Why did the British Government abandon the tried and trusted approach of the noble Baroness, Lady Thatcher, in the Milan European Council and the one before the Maastricht negotiations started, of making clear certain objections but also making clear that she would make up her mind whether or not to agree only at the end of the negotiating process?
Lord Howell of Guildford
I shall take those questions in reverse order. Unfortunately, one of the leading voices at the December meeting—namely, the French leadership—made it absolutely clear that there would be no acceptance of the safeguards which my right honourable friend the Prime Minister was seeking. I refer not to safeguards to give special protection to existing interests but to safeguards against further intrusion and further discrimination against interests, which would have affected Britain in particular but other countries as well.
I do not think that the noble Lord will be surprised to hear that we do not publish informal draft text proposals. He may not like that but that has been the practice for a long time and it continues to be the practice, particularly when those taking part are in the middle of negotiations.
Lord Tebbit
My Lords, does the doctrine of collective responsibility apply in these matters?
Lord Howell of Guildford
Broadly, yes—but occasionally with some flexibility, particularly in the coalition, which I know my right honourable friend strongly supports.
Lord Barnett
Does that reply mean that the Deputy Prime Minister has indicated to the Prime Minister that he will have his full support at the next Council meeting at the end of the month, as after the previous meeting he initially indicated his support for the veto even though he now says it stopped nothing—as it did not?
Lord Howell of Guildford
One can trade many words on what occurred at the December Council, but certainly something was stopped: namely, the proposal that there should be a pan-EU, 27-member amendment to the Lisbon treaty. That was stopped by my right honourable friend when he found that the safeguards he sought would not be available and that new intrusions on, and discriminations against, open competition were to be put in place. No doubt what emerges in the future will be developed in a constructive way and, I am sure, will have the full support of my right honourable friends the Prime Minister, the Deputy Prime Minister and all members of the coalition Cabinet.
Lord Pearson of Rannoch
My Lords, do the Government agree that the Greek, Spanish, Portuguese and other people would not be suffering as they are if it were not for the misguided project of European integration, complete with its ruinous euro? Has not the time come for the eurozone to abandon the euro and for all its members to return to their national currencies in an orderly fashion, complete with their own exchange and interest rates? Is that not the only sensible way forward?
Lord Howell of Guildford
The frank and sensible answer given by much higher authorities than me to the question, “Has the time come?” is, “We do not know”. As far as the situation of the Club Med countries is concerned—this applies in particular to Greece, which is having great difficulties in its debt restructuring—we hope that they will achieve it but we do not know, and we are not at all sure whether the necessary measures are in place to meet that short-term need. The broader issue of the fiscal stability union is aimed at the longer-term attempt to make sure that the eurozone is not constantly vulnerable to future crises. However, in the short term, if I told the noble Lord that I knew exactly what would happen, he would not believe me—and he would be right.
Lord Teverson
Does my noble friend agree that it is important in European economic and financial affairs, as it is in personal and social affairs, that one is seen not to snub one's friends, particularly when one might need their help in future?
Lord Howell of Guildford
I have to agree with that general proposition. As far as I am concerned, no snubbing went on. The UK sought to protect its interests and the integrity of the European Union treaty. We will continue to work both for our interests and for the stable and orderly development of EU economies generally. That will require a lot of co-operation but certainly will not require the UK, for instance, to join the eurozone, and no snubbing is involved in saying that we would rather stay out of it.
Lord Triesman
My Lords, I understand the Minister's difficulty in answering some of these supplementary questions. There may not have been 27 countries that took a different view, but there were 26. One reason was that there was little diplomatic contact before the event to discuss it. Indeed, the Minister will find that the officials in his own department lamented the fact that they were not tasked with engaging diplomatically in advance of the December meeting. What can the Minister say about a positive programme of re-engagement to engage and repair relationships—because unless those relationships are repaired the prospects for us having a substantive input are very small?
Lord Howell of Guildford
Words such as “repair” are overdramatised. We are involved in the ad hoc working group and participating not just as observers. We want to see the eurozone crisis resolved in an orderly way for the obvious reason that implosion and disorder on the continent of Europe would undermine one of our chief markets. We are working very closely with our colleagues and the relationships and involvements continue as before. To dramatise this as a tremendous break and imply that Britain is isolated and marginalised is to falsify the position. On the contrary, we are in a very strong position and are anxious to see the European economy recover.
Health: Influenza Vaccination
(12 years, 10 months ago)
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Lord Young of Norwood Green
To ask Her Majesty’s Government what steps they are taking to ensure the take-up of influenza vaccination among those who work in the health and care services.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this winter NHS employers ran a staff communications campaign to increase awareness and uptake of the flu vaccine in front-line healthcare workers. The department wrote to NHS trusts, medical royal colleges, professional bodies and the social care sector for their support in increasing uptake in this group. Good progress has been made. Uptake in healthcare workers to the end of November was 40 per cent, more than double what it was by this point last year.
Lord Young of Norwood Green
My Lords, I thank the Minister for his statement and welcome the improvement, but does he agree that there is still a significant way to go? Indeed, Professor Openshaw, the director of the Centre for Respiratory Infection at Imperial College London, said that in his view healthcare staff should be vaccinated and wear a badge saying, “I’ve been vaccinated. Ask me why”. I am not suggesting a compulsory approach, but more front-line education of staff would be a step forward, as would making vaccination available to health and care workers at their place of work. I would welcome the Minister’s comments on those points.
Earl Howe
I agree that there is some way to go. It is encouraging that we have made significant progress this year. Of course, the season is not yet at an end, and we hope that more healthcare workers will still be vaccinated. Uptake rates in healthcare workers have historically been low, as the noble Lord will be aware. A number of reasons have been suggested for that, but there is no doubt about the importance of this issue. Part of the reason is the need to ensure that healthcare workers do not transmit flu to those they are looking after. Also, it is in the interest of employers to ensure that absenteeism for sickness reasons is kept to a minimum.
Baroness Jolly
My Lords, will the Minister clarify whether the same measures will be taken whenever public or NHS money is spent, which is not only in the public sector but in the private voluntary and mutual sectors?
Earl Howe
My Lords, in general it is incumbent on employers, whether in the public or the independent sector, to ensure that their staff are protected appropriately. If my noble friend’s question alludes to the fact that independent providers may be offering services to the NHS, then I agree that there is a duty there, and we will see, as we already see, that that provision is taken account of in the contracts that commissioners take out with independent providers.
Baroness Finlay of Llandaff
With reference to the contracts and the contracting guidance, is the department considering that immunisation against infection, such as influenza, should be considered as an infection control measure in areas where patients are immunocompromised, such as those who are having chemotherapy or who are on other immunosuppressant drugs? They are at particular risk of high mortality as well as morbidity should they pick up an infection.
Baroness Knight of Collingtree
My Lords, does my noble friend recall a recent report from experts that stated that the present flu vaccine is very much less than universally good for the job that it is trying to do and that further experts reported that work was being done on a more effective vaccine that needs to be given only once a lifetime and that would do the job properly? Is there any further news about that possible development?
Earl Howe
My Lords, the Joint Committee on Vaccination and Immunisation issued a statement in November last year saying that there is good evidence that some new vaccines are demonstrably more effective in children in particular than the non-adjuvanted inactivated vaccines that are currently available. The JCVI concluded that,
“the live attenuated intranasal vaccine and adjuvanted inactivated intramuscular vaccine once available should be the vaccines of choice for use in children according to their market authorisations”.
However, it also said that a further review of data would be needed on the safety of these vaccines in certain groups, including asthmatics and those who are immunocompromised. There is further work to do in this area.
Jobseeker's Allowance (Jobseeking and Work for Your Benefit) (Amendment and Revocation) Regulations 2012
(12 years, 10 months ago)
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Lord Strathclyde
Commission for Architecture and the Built Environment (Dissolution) Order 2012
(12 years, 10 months ago)
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Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 10 months ago)
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Lord Beecham
“( ) The Lord Chancellor must review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved following the commencement of this Part.”
Lord Beecham
My Lords, this amendment amplifies the definition in Clause 1 in respect of the legal aid and advice that the clause requires the Lord Chancellor to secure. Among other things, the clause calls on the Lord Chancellor to,
“do anything which is calculated to facilitate, or is incidental or conducive to, the carrying out of the Lord Chancellor’s functions under this Part”.
The purpose of this amendment is to secure the provision of expert evidence where that is needed. The amendment is not intended to be a belated addition to the Christmas stockings of expert witnesses. It is perfectly reasonable for the Lord Chancellor to seek to secure economy in the provision of such services, but that must not be at the expense of ensuring that in appropriate cases there is available to parties to disputes—and indeed to the court—expert evidence of a kind that will assist the court in coming to a decision.
Of course, there are many cases in which expert witnesses can be helpful. They will often be medical witnesses but they may be from other professions; they could be scientists, engineers or surveyors. Therefore, there is a range of professional bodies whose members are called upon from time to time to give evidence in the course of civil litigation—and, for that matter, in some criminal cases.
I want to refer particularly to one group of expert witnesses: the Consortium of Expert Witnesses to the Family Courts, which has submitted interesting evidence to the Justice Committee in the House of Commons and also briefed Members of your Lordships’ House. Some 500 professionals are members of that consortium. They have a wide range of backgrounds—from paediatricians to medical and surgical specialists, forensic physicians, psychiatrists, psychotherapists, clinical psychologists, neuropsychologists, educational psychologists and the like. They have given, and give, evidence in a range of cases—usually but not exclusively involving children—in the domestic courts. That evidence will sometimes deal with the physical evidence of non-accidental injury and will also perhaps involve evidence about the impact of situations within the family on the children’s psychological and emotional well-being; for example, where there may have been domestic violence, where a parent may have engaged in substance abuse, where there may have been criminality, or where other life events may have impacted severely on the domestic situation.
The organisation gave evidence to the Justice Select Committee and expressed its concerns about the provisions currently obtaining in respect of the financing of expert witness evidence. Separately from this Bill, the Government have reduced the fees payable to expert witnesses by 10 per cent. In London—it might be thought somewhat paradoxically—fees are now one-third less than those for expert witnesses outside the capital. One might have thought that, with the oncosts in London generally speaking being higher, at least parity would be maintained, but that has apparently not been the case.
The consequence appears likely to be a reduction in the number of expert witnesses who would hold themselves available for cases where they would be publicly funded. It is estimated that 25 per cent of members overall of this group of 500 witnesses would not continue to give evidence in such cases and that that figure would rise to 50 per cent in London. That could seriously impede access to justice and the assistance that would be available to the courts in determining disputes. As I have said, it is not any part of the purpose of this amendment to defend the financial interests of a particular group of experts, and it is not simply a question of fee levels. It is certainly the case that a more efficient use of expert witnesses could save the public purse and perhaps the time of the courts.
The Justice Select Committee heard differing views on the use of experts. It called, in particular, for better case management by judges, with which the consortium agrees. It believes that experts could be jointly inspected so that there would be only one expert in a case, rather than two or perhaps even more; that there could be pre-hearing meetings involving the parties and the experts, so that the ground might be cleared more efficiently; and that the instructions given to experts could be better managed, with more concise and reasoned questions. It points out that it is not unusual to have sometimes 50 or more rather repetitious questions put to experts in a particular case, which is time-consuming and, therefore, necessarily expensive.
The point is also made—it should be said that this is not quite within the purview of the Bill but it reflects a problem which is causing difficulties to experts and thereby, ultimately, to the justice system—that at the moment payment is made through instructing solicitors. As a member of that profession, I am sorry to say that the profession does not have a good record in paying expert witnesses on time or, sometimes, at all. The suggestion made by the consortium is that payments should be made direct by the Legal Services Commission, which is to be absorbed within the department. Presumably, a successor body could have that same function.
Baroness Kennedy of The Shaws
My Lords, I support the amendment and want to reinforce my noble friend’s concern over creating a two-tier system in which those with money are able to access expertise and those without have difficulty.
I have reflected on the cases in which I have been involved in the past few years where legal aid has made available expert witnesses, and on the fact that I have within the past decade chaired an inquiry for the Royal College of Pathologists and the Royal College of Paediatrics and Child Health into sudden infant death—that was in the aftermath of miscarriages of justice for women who had been accused of killing their babies. What comes out of my experience is the fact that, even with the curtailment of legal aid in the way that is being envisaged by government, there will be areas where the need for expertise will be clear. The Government are saying that legal aid should be available for family cases where domestic violence might be an issue. One of the ways in which a contested question of domestic violence might arise is by having supportive evidence from professionals who have the expertise to assess whether someone has been subjected to abuse. In most of the domestic violence cases that I have done over the years, a breakthrough has been brought about as a result of the legal world understanding the nature of domestic violence through the assistance lent to the courts by experts. Those experts know, for example, that women often remain in relationships which are abusive and do not seek help because of the psychiatric state of learnt helplessness that they develop, where they cannot envisage being able ever to withdraw from the abusive relationship.
I think of the circumstances in which one has had to use experts to establish age in cases; for example, where an applicant’s claims to be under age may be an issue in the case. Establishing age is taken up by the state or by other authorities and is done through medical examination and expert evidence. Linguistics quite often arises as an issue in cases; for example, in listening to tape-recorded interviews, where one needs the assistance of people with language expertise. We are talking not just about psychiatrists or medical experts but about psychologists.
Let us think of the huge advance that was made within the justice system by our realising that some people confessed because of high levels of suggestibility in particular personalities. Let us think of the ways in which some people process information aurally, while others have real difficulty in doing so and therefore cannot respond well to questions. Those people often give answers that they later correct because they had not understood and were not able to process complicated questions easily. On issues of culture and difference of religion, I have on a number of occasions in recent years used experts to explain to the court matters of practice in certain religions.
I therefore urge the Committee to reflect carefully on curtailment of legal aid where it would be appropriate in cases to have the expertise of properly qualified people lent to the court so that the court can, in turn, do proper justice.
Lord Elystan-Morgan
I, too, support the amendment that has been moved with such clarity by the noble Lord, Lord Beecham. An expert is not a luxury. Irrespective of how conscientious, patient and thorough a judge may be, there are many technical issues on which he would be lost in coming to a proper, conclusive determination of the case without expert evidence to assist him.
In some cases there will be privately paid experts and no expert on the other side. How can there be an equality of arms in such a situation? Without elaborating on the case that has been properly put by the noble Lord, I would urge on Her Majesty’s Government a consideration that the denial of an expert in a proper case is a denial of justice and, more often than not, may not be a saving in net financial terms.
We shall deal later with other amendments on savings. The Government believe that they can save £350 million through the changes proposed in this part of the Bill. The Law Society, very conscientiously, has drawn up a plan suggesting that £375 million could be saved in a totally different way. I appreciate that there are conscientious and genuine differences as to these opinions but I have no doubt that much of the saving which, on the face of it, appears to be attractive in this situation of financial stringency, may very well not be a saving in actuality.
The diminution in the fees of experts was an extremely retrograde step. There was no justification for it and it will reduce the availability of experts. I speak as one who sat for many years in the family jurisdiction in North Wales, where one had to go far afield for experts in the Manchester and Liverpool areas. One was at the end of the queue and had to wait for months before an expert was available. Diminish that availability and you will add to an injustice that already exists.
Lord Clinton-Davis
The consortium has opined that deleterious effects will follow the Government’s proposals. It says that the standards and availability of experts will disappear or be badly affected. The Committee is entitled to know—I hope the Minister will discharge this in his speech—what meetings have taken place with the consortium. What are the effects? Are the Government closing their mind entirely to the representations that are being made?
Lord Morris of Aberavon
My Lords, a range of issues could be raised under the amendment, which I support. It is self-evident—it speaks for itself—that there should be accessibility to and a maintained quality of expert evidence. For justice to be done, it frequently turns on the quality and persuasive ability of the expert who is giving evidence.
We are debating the generality of the need for expert evidence. When we come to clinical negligence, we will return to more specific questions about the need to maintain particular panels. People in this field are highly respected and in very great demand, and frequently the problem is to lay one’s hands on someone who can deal with your specific problem. When I was a very young man, for a very short time I had something to do with mining cases in south Wales—a very long time ago—where the quality of the experts on both sides of the mining industry ensured that justice was done because the judges frequently knew many of the experts. The experts were well qualified on both sides. More often than not, cases were settled in view of the nature of the expert evidence that had been tendered, and that saved individuals and the state a great deal of money.
Lord Faulks
My Lords, most Members of this House would approve of the idea of having good-quality expert evidence in cases. In the area in which I practise there have been considerable strides forward in that regard. Although the noble Lord, Lord Beecham, speaks of hired guns and undesirable practices, it should be known that much has improved in this area, not least thanks to the major contribution of the noble and learned Lord, Lord Woolf, the CPR, the exchange of experts’ reports, experts’ meetings and a sensible control of the questions that are asked, so I would not like the House to get the impression that the world is a jungle where experts are concerned. Litigation is much more orderly than it was and the noble and learned Lord, Lord Morris, is quite correct that good experts often produce settlement and good results.
While I certainly applaud the sense the amendment, which is to encourage good-quality experts, the reason why they are sometimes not available is not simply because of money. There are difficulties simply in finding the right experts for the right cases because they have other commitments. Let us take paediatric neurology, for example, an area that is particularly important in clinical negligence cases. Very few are available, and they are very often not available for many months. In other words, there are factors that are not easily within the reach of any form of legislative provision. While approving the general spirit of the amendment, I would countenance some wariness in enshrining this in any legislative form.
Lord Howarth of Newport
My Lords, as everyone who has spoken has said, it would self-evidently be a false economy and prejudicial to justice if the Government were not willing to spend the money that they genuinely need to spend in ensuring that the expert evidence required is available to the courts. I ask my noble friend Lord Beecham, who moved the amendment, and the Minister—if, as he surely must, he agrees with the thrust of the amendment at least—what their views are on the appropriate methodology under the amendment. Does my noble friend consider that there should be some sort of standing body independent of the Ministry of Justice that would have the task of keeping this issue under continuous review and to report from time to time? I would have thought that it would be a continuing necessity for the Lord Chancellor to have the benefit of such advice so that he can be sure that the taxpayer is not being asked to spend more than is genuinely necessary under this head, but equally to be sure that sufficient resources are being provided. How does my noble friend or the Minister envisage that this function should be carried out? Perhaps they could say something about the practicalities of ensuring that that takes place, as that would be helpful.
Lord Walton of Detchant
My Lords, I had not intended to speak on this issue, except to give brief support to the amendment that has been tabled by the noble Lord, Lord Beecham, which he expounded so very clearly. My own personal experience of giving expert witness in neurological cases over many years, not for a long time but many years ago, has led me to give warm support to this proposal. It is fair to say that we heard comments a moment ago about expert witnesses in the field of paediatric neurology. This is an extremely difficult and sensitive area, particularly in cases of alleged child abuse when views have been taken by different experts on very good scientific evidence who have come to totally opposing opinions about the nature of the problem.
On the other hand, looking back on personal experiences, I have to say that the mechanism that I was familiar with many years ago has not been explored sufficiently. When I was involved in giving expert evidence in cases of head injury in miners, I remember receiving letters jointly signed by the then National Coal Board and the National Union of Mineworkers, saying that they would accept my report as being binding on both parties. That kind of agreement in advance of court hearings in cases of alleged negligence or industrial injury could be used very much more readily.
Lord Woolf
My Lords, may I say a few words in support of this proposal? Expert evidence is an area in which the courts have had considerable difficulties in the past. However, following on from what the noble Lord, Lord Faulks, said, it is right to acknowledge that great progress has been made over recent years in the way in which expert evidence is used in the courts, but the amount of knowledge that is available for expert reports in connection with litigation is limited. I suggest no more than that a review of the sort suggested in the amendment is well needed.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am most grateful to all noble Lords who have contributed to the debate. It has gone slightly wider in the use of experts than the narrow interpretation given in the amendment, and in some respects has read into the amendment things that are not there, but I shall try to deal with the points raised and noble Lords may then understand better what I am saying.
On the point made by the noble Baroness, Lady Kennedy, we are not withdrawing funds for experts. Where the case has public funding under legal aid and funding for expert opinion is appropriate, funding will be made available. The Government are working with the Legal Services Commission to develop and put in place a robust client and provider strategy that both reflects the demands and requirements of the new legal aid market and obtains the maximum value from the ongoing structure developed in the legal aid market.
In the Government’s response to the legal aid reform consultation, we confirmed that we would not be considering contracting with or paying experts directly in the short term because of the administrative costs to the LSC. However, when we have had time to consider the family justice review final report, which came out just before Christmas, we will look at this matter again. At the moment, there is no plan for the LSC to take this on from the solicitors to whom the noble Lord, Lord Beecham, referred.
Amendment 5 seeks to impose a duty on the Lord Chancellor to review the accessibility and quality of expert witness advice for the purposes of civil proceedings, as well as a duty to maintain or improve such accessibility and quality following the commencement of Part 1 of the Bill. This is an entirely unworkable amendment, in our opinion. By definition, expert witnesses are highly qualified and experienced professional individuals in their normally very technical fields. As professionals, they will be subject to the standards required by their respective professional membership bodies. It is not within the Lord Chancellor’s gift, nor should it be, to determine the quality provided by any given expert witness. Principally, this would be inappropriate; the Lord Chancellor cannot be expected to be in a position to determine the quality of the expert evidence or advice given, not least because the requisite expertise would not be held to reach a credible determination.
The costs of establishing a mechanism to assess credibly the quality of expert witnesses would also be prohibitive. Even if resources were unlimited, we have severe doubts as to the viability of such a mechanism. Disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate and even litigation.
Lord Campbell of Alloway
In trying to follow this, I must say that surely the question of the quality of the expert evidence is not fundamental. The fundamental question, is it not, is whether they need expert evidence. Who decides that? Is it an independent person or is it the legal aid authorities? Could I ask for an answer, if it is relevant?
Lord McNally
I refer to quality because the amendment itself does so, but the application for legal aid will go to the new director, who will consider both the question of legal aid and whether there is justification for having expert witnesses, as I said before.
As I said, disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate, even litigation, and the notion of a single objective standard that could be applied without reviewing evidence or advice given on a case-by-case basis, bearing in mind the myriad scenarios—in which, for example, a psychologist might be giving evidence or advice—does not hold water. Equally, we find the notion of accessibility somewhat difficult in the context of expert evidence. By definition, these individuals are experts in their fields and therefore few in number, and their engagement in any given proceeding is, outside the major urban conurbations, unlikely to be geographically convenient—a point made by the noble and learned Lord. Under the current framework, experts are quite naturally drawn from far and wide and it is not within the Lord Chancellor’s gift, nor should it be, to try to control or influence the geographical distribution of experts in England and Wales.
The noble Lord, Lord Beecham, referred to the matter of lower rates being applied in London. The fact is that expert provision reacts to normal economic considerations of supply and demand. It follows, of course, that in areas of higher supply there is greater competition, and it should be open to the Government to pay slightly lower rates to reflect that position.
Baroness Kennedy of The Shaws
I am sorry to interrupt. On the issue of the assumption that experts will cluster in London rather than elsewhere, the experience, particularly in the medical field, is that—after, for example, the “sudden infant death” debacle and miscarriages of justice, and due to the feeling that there has been considerable criticism of paediatricians or pathologists over matters involving children—there is now real reluctance among people to be experts. It is not that there is a plethora of experts around; in fact, the opposite is the case. It is very hard to get medical people to come forward as experts in the courts because they do not want to have that kind of exposure. They also find that they are not paid enough money to make doing so worth cutting into their professional time. There is a misunderstanding about the availability of experts, particularly in the medical field.
My point about domestic violence is that in family cases, where on the whole there will not be legal aid, if someone is claiming that they have been a victim of domestic violence then they will be able to claim legal aid, but often there will be an argument over whether indeed there has been domestic violence. It is experts who often can resolve that. Will there be legal aid available to help to resolve the issue of domestic violence in order to enable access to legal aid?
Lord McNally
I do not think that I can give that assurance. The more that this goes on, the more that one can see why the Government are reluctant to accept an amendment that would impose a kind of impossibilism on the Lord Chancellor. We are working our way carefully with the LSC to a system that we think reflects the position. I hear what the noble Baroness is saying about the availability of expert witnesses. This is not the conclusion to which my right honourable and learned friend the Lord Chancellor has come; he thinks that this structure will provide the necessary experts. The more that we hear these examples given, the more I believe that the idea that legal aid or public funds can fund the whole range of expertise that the noble Baroness was suggesting is dangerous and one that I cannot possibly support from the Dispatch Box. I think that we will see some of the worst-case scenarios but we have confidence that the system we are setting up will carry on some of the procedures and reforms set in place by the previous Administration, and that it reflects an effective way of using public money. Therefore, accordingly, I ask the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, I am grateful to noble Lords who have spoken in this debate. Several noble and learned Lords have been very sympathetic to the amendment; I am particularly grateful to my noble friend Lady Kennedy and the noble and learned Lords, Lord Morris and Lord Woolf. I am also grateful to the noble Lord, Lord Walton, whom it was my pleasure to instruct from time to time as an expert witness over many years, paying his very moderate and modest fees for his expert services.
I find the Minister’s response disappointing, to put it mildly. In answer to my noble friend Lord Howarth, I should say that a body to advise the Lord Chancellor in the exercise of the functions proposed by the amendment would be the right approach. However, the real issue here is accessibility, which depends on there being sufficient witnesses who are ready and willing to give evidence to assist parties and the courts. There is a clear concern about that, which is magnified by the issue of fees. The Minister rather airily dismissed the question of the availability of witnesses but did not address the point that I raised about the National Health Service finding difficulties with the proposed arrangements. My noble friend Lord Bach has handed me a letter which he has just received from the chief executive of the Central and North West London NHS Foundation Trust. The chief executive says that she writes,
“on a matter of some concern regarding the fees paid to expert witnesses … I have been approached by clinicians in my Trust who undertake expert witness work … I am informed that the fees payable for such work have recently been reduced to a rate (of £90 per hour) which is causing some concern in my … service. As the NHS, we are required to pay consultant medical staff at the national rate and these are not compatible with the rates set by the Legal Services Commission. Our staff are highly expert and it would be a great loss to the family courts if we were unable to release them for such expert witness work in the future”.
That is clear evidence of the kind of problem that we will see and which will presumably grow over time.
The noble Lord raised the issue of London having more people, and so on. However, a London expert giving evidence somewhere else, as many of them will have to do, will presumably be paid at the London rate, whereas an expert in a provincial city will presumably be paid at a lower rate. It seems incongruous to me.
I hope that the Government will look again at this and perhaps answer—if not on this occasion, then in writing—a question which was put by, I think, the noble Lord, Lord Clinton-Davis. What discussions have taken place with the consortium to which I referred, and were there any positive responses? In particular, if a third meeting was promised, why did it not take place? At this stage, however, I will not press the amendment, but beg leave to withdraw it.
“Pre-commencement impact assessment
(1) The Lord Chancellor must commission an independent review to assess and report on the following areas—
(a) the expected costs and impacts of Part 1 on—(i) children and young people; (ii) people with disabilities, including people with learning, physical, mental and psychological disabilities;(iii) women;(iv) victims of domestic violence;(v) black and ethnic minorities;(vi) government departments;(vii) courts and tribunals, including any changes in time and resources; and(viii) local authorities; and(b) any expected impact of Part 1 on—(i) the incidence of homelessness;(ii) the incidence of ill-health, or suicide;(iii) the commission of criminal or anti-social behaviour; and(iv) the future provision and availability of services including, but not limited to, law centres and citizens advice bureaux.(2) The Lord Chancellor must lay a copy of the final report commissioned under subsection (1) in both Houses of Parliament at the same time as laying a draft commencement order for any other section in this Part.”
Lord Bach
My Lords, in moving Amendment 6 I will speak also to my Amendment 194. In this group there are also two amendments in the name of the noble Lord, Lord Martin of Springburn, namely Amendments 191 and 195. My amendments would require the right honourable and learned gentleman the Lord Chancellor to lay before Parliament a full independent impact assessment of the planned cuts to legal aid before the Bill—or the Act, as it then will be—can commence. Inter alia, we would require him to quantify the impact on groups with what are described as protected characteristics—namely children and young people; people with disabilities, including those with learning, physical, mental and psychological disabilities; women; victims of domestic violence; and black and ethnic minorities. We would also like him to quantify the impact on the public purse, other government departments and courts and tribunals, including any changes in time and resources. We would also like him to quantify the impact on local authorities. Finally, we would like him to quantify the impact on the incidence of the most severe negative outcomes for individuals and society—namely first homelessness; ill health, and perhaps suicide; and criminal or anti-social behaviour—and on the future provision and availability of services, including but not limited to law centres and citizens advice bureaux.
These amendments have been tabled simply because the Government have failed to get to grips with the serious consequences of their proposed legislation. They simply have not quantified the impact of the cuts on the individuals involved, on society or on the public purse. I concede at once that the Government have at least tried to describe what some of the impacts might be. The Government’s impact assessment, which they made in their response to the consultation process, states that their cuts threaten,
“reduced social cohesion … increased criminality … reduced business and economic efficiency … increased … costs for other Departments … [and] increased transfer payments from other Departments”,
particularly in higher benefit payments for people who have spent their savings on legal action.
Those are pretty extraordinary statements. It sounds a bit like the end of the world, does it not? If this legislation results in reduced social cohesion and increased criminality, it will go not only against everything that the Government support—a big society, and, of course, less crime—but against everything that all of us believe in, which is more social cohesion and less criminality. The Government cannot be accused of not being honest. They are honest to a fault if this is what they say will be the consequence of their Bill. However, they can be criticised for putting forward a Bill which in their opinion will have those consequences.
Given that the aim of these cuts is to save money, it would seem prudent for the Government to have calculated how much will be saved, not least because in March 2011—about 10 months ago, after the consultation had ended—the Justice Committee in the other place, following an inquiry into these proposals, was critical of the Government for not assessing the likely impact on spending from the public purse. I wish to quote from two paragraphs of the report. At paragraph 69, on page 32, it states:
“According to the Government’s own figures, the changes it is proposing to the scope of legal aid will result in 500,000 fewer instances of legal help”—
we know that the figure is much closer to 650,000—
“and 45,000 fewer instances of legal representation being funded by legal aid annually. The Government has conceded that it does not know the extent to which these reductions would impact upon people with disabilities and black and minority ethnic people because of information gaps. While it is taking some steps to address those gaps, evidence we have received, and the Government’s own thinking, suggest that these people, as well as other vulnerable groups, rely more on legal aid services than do the less vulnerable, and so there is the potential for them to be disproportionately hit by the changes. If this were to happen it would sit uneasily with the Government’s commitment to protect the most vulnerable in society”.
At paragraph 136, the report comes to the following conclusion:
“It has been put to us that the removal from scope of many areas of social welfare law will lead to significant costs to the public purse as a result of increased burdens on, for example, health and housing services. 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”.
That was in March 2011. We are now in January 2012, and the Bill has been through the other place and is in Committee in your Lordships' House. Why have the Government not produced such assessments, as the Justice Committee invited them to do? I invite the Minister who will respond to this debate to tell the Committee why they have not done so.
Lord Wigley
My Lords, I support Amendment 6, which was so reasonably moved by the noble Lord, Lord Bach, and to which I have added my name.
The impact on society of some of the provisions in the Bill will be major and far reaching—perhaps further reaching than was anticipated when the Bill was formulated. I suggest that the Government have attempted to rush through so much legislation that little time has been given to the impact assessments. All Bills tend to have unintended consequences, but overloaded Bills such as this, covering material which perhaps should have been spread over two or three separate Bills, will have even more unforeseen consequences.
During Second Reading, I argued that the cuts in legal aid would have a disproportionate effect on the most vulnerable people in our society. This includes people with mental health problems and other disabilities, who will find it impossible to gain access to free legal advice due to the complexities arising in those cases. It also includes children and young people—particularly those caught up in messy divorce cases and in the likely psychological trauma that can ensue from lengthy court battles, many of which will no longer be covered by legal aid. It also includes those suffering domestic abuse, many of whom will not qualify for legal aid, as the spectrum of abuse that the Government concede to recognise is so narrow.
People with disabilities or mental health issues, children, young people and sufferers of domestic abuse are the groups that will be affected by the changes. However, as the amendment points out, the Bill is likely to have further unintended consequences on the rate of homelessness, social integration and, indeed, suicide. I support the amendment of the noble Lord, Lord Bach, as it would ensure that the Government had a duty to conduct an assessment of the likely impact that these changes would have on such vulnerable groups. It would also require the Government to review the likely costs that would result for these groups were the provisions in the Bill to be introduced.
As the noble Lord, Lord Bach, has noted, that is particularly important if we take into account the findings of the King’s College, London, report, Unintended Consequences: the cost of the Government’s Legal Aid Reforms, published yesterday. This shows that the cuts will result in unbudgeted costs of at least £139 million, cancelling out about 60 per cent of the £240 million projected from the legal aid cuts. The author of the report, Dr Graham Cookson of King’s College, argues that this research undermines the Government’s economic rationale for changing the legal aid budget. He also points out that £139 million is likely to be a substantial underestimate of the true cost. It certainly begs a question as to the extent to which the impact of these cuts has been properly assessed.
This follows on from the findings of the Government’s own impact assessment that the proposals present a risk to social cohesion and the possibility of higher criminality, reduced business and economic efficiency, and increased resource costs for other departments. This finding was noted in the Ministry of Justice’s cumulative impact assessment of November 2010, yet the Government have done nothing to counter these appalling consequences which will come about as a result of the Bill’s implementation.
According to the King’s College report commissioned by the Law Society, private family law will see knock-on costs of £100 million per annum set against the proposed saving of £170 million; social welfare law will see knock-on costs of £35.2 million against a £58 million saving; and clinical negligence cases will see knock-on costs of £28.5 million set against a saving of only £10.5 million. These proposals alone would cost the NHS three times the amount that will be saved by the Ministry of Justice.
The report does not include other costs identified by other research, including the analysis conducted by Citizens Advice in 2010, which suggests that the proposed cut of £60 million from social welfare legal aid will spell the closure of advice services that save the state some £338 million. This point is of course addressed by the amendment of the noble Lord, Lord Bach. In fact, the amendment urges the Government to look at the complete picture—at the destructive impact that these cuts will have on the fabric of our society. I urge noble Lords to support Amendment 6.
Lord Judd
My Lords, I support the amendment. As my noble friend argued so well in his introduction, it deals with the central character of the Bill. Inevitably in our deliberations we concentrate a good deal on legal ramifications. However, they are in a sense a means to an end. Surely what matters and what we should really be concerned about is the quality of our society. What is fundamentally wrong with the Bill is that it reduces access to justice and puts the burden on those least able to afford such a reduction.
The Government talk a good deal about their desire for partnership with the voluntary sector. I hope that this is a genuine, creative endeavour and not a cynical one. What is as clear as it could be to any of us who have worked in the voluntary sector is that as a result of the Bill the costs that will land on the budgets of that sector will increase very considerably, and the workload of the sector will inevitably increase. Therefore, before we come to final conclusions on the legislation, it is essential that we understand the ramifications, costs, burdens and adverse impacts that legislation of this kind is likely to have. I am very glad that my noble friends on the Front Bench are making a major stand on this issue. They are right to do so.
I will deal with another small matter and say that I support the utterly practical and sensible amendment tabled by the noble Lord, Lord Martin of Springburn. It is absolute madness—I refer to the economic rationale of the Bill—for us to embark on legislation of this kind without a comprehensive, authoritative and extensive review of what the cost to the courts system will be. If as a result of Parts 1 and 2 there will be an increasing number of personal litigants without professional support, over the years the cost of the administration of justice will increase very considerably. We need this information before we can make an informed decision.
The amendments go to the essence of what deeply concerns many of us about the implications of the Bill. I hope that my Front Bench will pursue the issues as vigorously as they have raised them.
Lord Pannick
My Lords, I, too, support the amendment. The case for the Bill depends on two factual premises. The first is that the Bill will save large amounts of public money. The second is that it will not cause the damage to access to justice for vulnerable groups that is feared by critics because there will be other means of providing advice and information. Each premise is highly contentious and each depends on assertion rather than evidence. Therefore I find it very surprising that the Government conducted no serious analysis of the facts relating to the impact of the Bill on these two vital matters before bringing the legislation before Parliament. Since the work was not carried out before the Bill was presented, surely it is vital that an independent assessment is carried out before it is implemented and brought into effect.
As I understand it, there will in any event be a substantial period of time between Royal Assent for this Bill and the bringing into effect of its main provisions. The amendment will not in any way commit the Government to accept the contents of the independent report. The report will be information that will be before the House and the other place when a commencement order is brought forward, so I, too, support this amendment. I very much hope that the Minister will be able to give a more positive response to the concerns that have been expressed on this amendment, and will be expressed in relation to other amendments that we will be debating today, than he felt able to do on the first day in Committee on this Bill.
Lord Howarth of Newport
My Lords, my noble friend Lord Bach is quite right to table an amendment requiring that the Government make an impact assessment before the commencement of this legislation. The Lord Chancellor wrote an article in the Guardian on 20 December in which he said:
“Access to justice is a fundamental part of a properly functioning democracy … Those most in need must be helped where they face serious injustice”.
Those are fine professions of principle, but I do not think that Guardian readers should assume that all will therefore necessarily be well.
It is true that it is difficult to assess the impact of removing welfare cases from the scope of legal aid. The Government’s own impact assessment stated:
“Any significant change in case outcomes may be associated with social and economic costs if this leads to wider economic and social issues arising (for example, relating to health, housing, employment or offending). There may then be associated costs to the Ministry of Justice, other government departments or public bodies or to society as a whole”.
That somewhat tortuous prose perhaps betrays the embarrassment of the authors of that document. It acknowledges that there are indeed risks of the kind that we fear. However, it goes on to claim that there is not enough evidence to quantify or further examine those costs for any area of legal aid and therefore the implication is that the attempt should be abandoned.
I cannot accept that. It seems to me that where you have very real risks to the well-being of individuals and families as well as to access to justice, every effort should be made to continue to identify the hazards and the potential costs of the policy of taking welfare out of scope. If, indeed, it proves impossible to measure with any reasonable exactitude, and at the same time common sense tells us that the dangers of the policy are great, then surely the proper conclusion is to abandon the policy. Since I do not think that the Minister is going to tell the Committee at the end of this debate that he is going to abandon the policy, I think we must support this amendment.
My noble friend’s amendment prescribes the approach that should be taken by those who are making the impact assessment. He itemises categories of vulnerable people. He is right to focus our concern on particular groups of people so that it should be possible for the Government and the wider public to understand what the impact of this policy would be on particularly vulnerable groups at moments in their lives of exceptional vulnerability.
I have two concerns about my noble friend’s amendment. The categories that he has selected are not sufficiently comprehensive. Women, for example, are specified, very rightly, but what about men who find themselves dealing with bad employers, bad landlords or bad benefits decision-makers? Indeed, is there not a risk that my noble friend’s amendment might be discriminatory in this regard? Who does my noble friend mean by “young people”? We know that 22 per cent of 18 to 25 year-olds are facing terrible difficulties as they cannot find jobs in this economy. In contrast to the much more fortunate situation of the baby boomers—most of us—this generation has to seek work that, for many, is simply not there. If they flag in their search for work, they are liable to fall foul of the JSA regulations. If they do that, they may come to the view that there is not justice in this society. There are no jobs for them, no benefits for them, and no legal aid to ensure that they have redress where they may have a legitimate legal case. If that happens, they may lose respect for our society and its institutions. My noble friend is right to anticipate that the policy may indeed increase the risks of crime and anti-social behaviour.
My other concern about my noble friend’s amendment is that these categories overlap. I think we are all familiar with the remarks of the tribunal judge Robert Martin, the president of the Social Entitlement Chamber, who said in response to the Government’s consultation:
“The principal flaw in the Government’s approach is the reliance on thematic categories of law as proxies for determining who is in need. These categories only have a loose association with real lives and real problems”.
Disability, discrimination, unemployment, debt, relationship breakdown and ill health chase each other around and tangle with each other. In picking on particular categories of case where legal aid will cease to be in scope, the Government are attempting—unrealistically and dangerously—to unbundle the reality of people’s lives. My noble friend, constrained by the structure of the Government’s own legislation and policy, is driven in his amendment to do the same.
I think it was the noble Lord, Lord Newton, who said in an earlier debate that actually what is needed is a combined impact assessment. It is estimated that not less than 135,000 people will be affected by the withdrawal of welfare cases from the scope of legal aid, more than half of them disabled people. We need a really searching analysis to try to discover what the impact of the totality of these policies will be on the totality of their lives. However, the Government do not want to do that. The Green Paper stated:
“We consider that these issues”—
these are financial issues for people in poverty—
“are of lower objective importance … than, for example, fundamental issues concerning safety or liberty”.
Ministers are at risk of finding themselves in a philosophical quagmire if they attempt to specify what is of “lower objective importance”, but I do not really mind about that. Common sense and common sympathy tell us that extreme poverty means inability to provide basic needs, malnutrition and prejudice to physical and mental health. Is that not fundamental?
Whatever the objective justification, I believe that the policies are reckless, especially given the huge incidence of erroneous benefits assessments and of successful appeals against those assessments. For example, in the case of appeals against a refusal to award DLA, I understand that the success rate for people who are accompanied and supported at their hearing is 60 per cent. The error rate in benefits assessments is well nigh certain to rise with the transition to universal credit, employment and support allowance and personal independence payments. Especially the policies are reckless at a time of economic blizzard, when the Government’s response to the economic blizzard is draconian cuts, some four-fifths of which fall on the poor.
I cannot but feel that Ministry of Justice policymakers live in another world. The Green Paper told us, with an apparently straight face, that,
“the accessible, inquisitorial, and user-friendly nature of the tribunal means that appellants can generally present their case without assistance”.
We are reminded by Justice for All, a campaigning consortium of a large number of immensely respected voluntary organisations in our country, that the DWP issued 8,690 pages of advice to its decision-makers in 2009. It is not only the regulations that have to be understood but the case law.
Baroness Massey of Darwen
My Lords, I want briefly to support this amendment moved by my noble friend and to welcome the contributions made by my noble friends Lord Judd and Lord Howarth about the potential downward spiral of misery that the Bill may bring on society. Of course we need a review of the costs for the groups and systems listed in this amendment. The lack of costing is very worrying, but what also concerns me is the impact on people’s welfare and health and on the stability of their lives. It has been said before that this is about justice and morality.
I want to give an example of the costs and impacts on young people. Later amendments will discuss the impact of the Bill on children and young people, on women and on those with disabilities. The noble and learned Baroness, Lady Butler-Sloss, has tabled a very comprehensive amendment, Amendment 33, on children affected by civil and family law proceedings. I have tabled amendments in the same group relating to legal aid for young people aged up to 24. However, I thought that I would flag up my concerns here in the hope that, in the gap between today and when the later amendments come up, the Minister will be able to give us more information not only about costs but about impacts. If the measures in the Bill do not save money in the long term—I repeat, in the long term—why have them?
As it stands, the Bill will lead to nearly 26,000 young people aged under 25 losing legal aid for social welfare cases each year. I will not go into a detailed breakdown now because I want to save that for my later amendments, but 26,000 young people may be plunged into misery and may not be able to find work, and their families will feel the impact of that, along with the rest of society. Protecting access to social welfare legal aid for all children and young people under the age of 25 would cost around £5.8 million a year. By way of comparison, the Prince’s Trust estimates that the weekly cost of youth unemployment is £20 million, which is an enormous contrast. Protecting legal aid for young people with disabilities and for care leavers is likely to cost a modest amount. I ask the Minister whether an assessment has been made of the size of these groups of young people and whether an estimate has been made of the costs that will be incurred by the measures proposed in this Bill. Also, how will the Government assess the potential of other impacts, such as those profiled by my noble friends Lord Howarth and Lord Judd? It is not just about money; it is about quality of life.
Baroness Lister of Burtersett
My Lords, like my noble friend Lady Massey, I want to draw attention to the impact of the proposals on quality of life. Like other noble Lords, I received a number of representations from organisations speaking out on behalf of various disadvantaged groups. Their representations bring home to me the need for a fine-grained impact analysis of the changes on people’s lives. The impact analysis that we have received does not provide that.
I want to draw attention to a few of these groups—we will talk about them in much greater depth later. My noble friend spoke about children and young people. The group JustRights has written about the vulnerability of those who are able to access legal aid in their own right. It says that 80 per cent of young people who report civil legal problems face other disadvantages such as lone parenthood, mental health issues and exclusion from education, employment and training. The group refers to the range of legal issues that these young people may need help with, one of them being immigration.
I spoke recently at a Law Society conference on social and economic human rights. A presentation was made by a group of young people from an organisation called Refugee Youth. Everyone at that conference was immensely impressed and moved by it. Afterwards, those young people wrote to me about the Bill. I hope that noble Lords will allow me to read from what they sent. They wrote:
“Many of us arrived as separated children, and have been through the asylum process. That has been successful for some of us, but not for all; and while many (not all) of us have been granted permission to stay in the UK, for some this has come from a non-asylum immigration claim”,
which is relevant to this Bill. They continue:
“Indeed many of us have experience of being refused asylum, but granted permission to stay for up to 3 years; and having to bring an immigration claim and appeal at the end of that period … We are very worried about the Legal Aid, Sentencing and Punishment of Offenders Bill, and the effect it will have on children and young people going through the immigration system in the future”.
They are not talking about themselves; they are talking about other young people who might be in the same position. They mention that it was said in the House of Commons that such young people would be assigned a social worker but they say why that is not adequate. They do not feel confident that social workers would have—and there is no reason why they should have—the legal expertise to be able to help such young people.
The organisation has produced a very useful briefing—I shall not read it all, obviously—in which it gives a number of reasons why it is so worried. It says:
“The court systems are intimidating and uncomfortable for young people … A court room is not made to be friendly, it is really intimidating. Having a lawyer makes you feel safe. As young people we feel we don’t have authority anywhere—let alone in a court room”.
It then quotes from some young people. One said:
“I had a really good lawyer and even though she was with me going to court was still one of the scariest things I have ever been through”—
this was from someone who had sought asylum. Another said:
“When I just had to say my name in court I was so scared and stuttering and shaking—I can’t even imagine how scary it would be to represent myself”.
Another young person said:
“It is too scary to relive traumatic experiences we have been through in court. Some things are too painful to represent ourselves”.
The organisation then makes the point:
“Unaccompanied young people rely on the expertise and knowledge of lawyers to represent them … Often we come from countries where you can’t criticize the police or the government or any authority, so sometimes we don’t know when it’s safe to speak out and tell our story. We need advice and support from our lawyers. When a lawyer is involved matters are taken more seriously”.
It is concerned about the quality of legal representation from private lawyers and the fact that they do not have the finances to pay for legal representation themselves. One individual said:
“If I hadn’t had that Legal Aid I don’t know what I would have done. I didn’t have a penny to pay for a lawyer and if I had to represent myself I would have no idea what evidence to provide”.
The organisation concludes:
“From our personal and lived experiences as young people involved in the asylum and immigration system we are absolutely certain that the proposed changes will have a severely damaging impact on us and our peers”.
Although that is a very subjective impact statement, it is rather telling and moving.
We have had other representations, such as from the National Federation of Women’s Institutes, which welcomes the concessions that have been made around issues of domestic violence and immigration but points out that this will not cover all women who are potentially affected. We will need to look at that and more general issues around domestic violence as we go through the Bill.
Baroness Howarth of Breckland
My Lords, I am beginning to feel rather sorry for the Minister as he listens to the debate because I can understand how the Government, faced with the deficit that they were faced with on the change of Government, had to look across the various departments to see where they would find money. I can see, too, working as I do in the court system—I declare an interest as the outgoing chair of the Children and Family Court Advisory and Support Service—that that looked like a pretty tasty budget. I also know that when you look across the range of expert witnesses there are times, certainly in my area, when there may be too many experts and that experts may prolong some cases.
However, having said that, I support the amendment. This is because, having understood where the Government came from at the beginning, I do not understand why they are now unable to rethink, having been given all the evidence, of which we have heard a great deal today. I am not going to speak at length and give many more examples, but we have heard that there is a real need for an impact assessment, if not for social justice then for economic reality. I will give one example from my experience about cases that are in the private realm in the family court.
We will have more cases brought by litigants in person. The evidence is that when litigants in person bring their cases, they take longer. The other evidence is that these families are of the 10 per cent who have not come to a conclusion themselves about what will happen to their children. That means that they are in the most difficult, complex situations that you can imagine. These families need more help. We find that the lawyers who represent them often act as mediators and cut through vast amounts of discussion and argument in order to shorten cases. That is another economic reason for making cases shorter. The more important one is that the sooner cases are resolved, the better it is for the children. The one thing that we have evidence about is that the longer cases are before the court and children are left in suspense about custody or any other issue, the more difficult it is for them.
I hope that the Minister will listen to the arguments, difficult as it is for him placed where he is—he must be between a rock and a hard place. I do not believe that he is a man with a hard heart, so he must be listening to the arguments, but I realise that he is in a hard place economically. He is in the wrong place in that unless the Government look in some detail at some of these arguments—I speak only to the amendment and not to a range of other things—and have a decent impact assessment that goes into this in depth, there will be serious consequences. As the noble Lord, Lord Howarth, said, the reason why this was not done in the beginning was that it was in the too-difficult box. These situations are difficult but they are assessable.
Baroness Turner of Camden
My Lords, I, too, support the amendment, which is about unintended consequences. The Government should be grateful that it has been raised at this stage of debate on the Bill because unintended consequences are often a problem with legislation introduced by the Government. In this case, I have had the benefit of the Law Society’s parliamentary brief, which is excellent and has already been referred to by my noble friend Lord Bach. The Law Society has produced evidence mainly concerned with family welfare and clinical negligence. It points out that this measure is designed to save £239 million, but the unintended extra costs are likely to be £139 million.
Frankly, I am interested in the Bill mainly from the standpoint of a former trade union official. My union, of course, provided advice across a whole range of issues to its members and supported them in the courts where need be. In particular, we were concerned about accidents at work. When we look at accidents at work, we are concerned not only about the physical and actual costs; there is also the question of other serious effects. If the threat of litigation in workplace accidents and diseases were reduced, health and safety at work would be significantly undermined, leading to an increase in avoidable accidents. Without recourse to the courts or with reduced compensation, injury victims would be much more reliant on state welfare and supplementary benefits. That point has been made by the TUC in respect of the possibility of accidents at work and support for them being diminished as a result of the Bill unless we have the examination that has been recommended strongly by a number of speakers and is recommended in the amendment.
I do not know whether the Government feel that individuals who would otherwise be facing the consequences of accidents and so on should put up and shut up. Fortunately, many people are simply not prepared to do that and will seek all sorts of other ways in which their cases can be pursued if they are blocked from following them via the court route. That is not a very good idea either because it can lead to all sorts of other problems for people who feel that they have a case but also feel that their way forward is blocked because they cannot get access to a hearing in court.
For these reasons, it is very important that we get the Government to have a very clear look at what the unintended consequences would be from what they suggest in this Bill. It has been spelt out by a number of speakers in this debate this afternoon and I hope that it will be taken very seriously indeed by the Government.
Lord Phillips of Sudbury
I am not sure whether I am speaking for these amendments or against them. I started the day at 3 o’clock our time having breakfast in Doha, and was rather choked when eating my toast when I read in the Gulf Times about the King’s research into the financial effects of parts of this Bill. I am sure that my noble friend the Minister will ponder those extremely hard.
I wanted to say a brief word about the important matter raised by the noble Baronesses, Lady Lister and Lady Howarth, and many others, of the prospect of many more of our fellow citizens having to represent themselves before courts and tribunals. I started life as a young lawyer in a country general practice, spending a great deal of my time in magistrates’ courts. My principal was part-time clerk to five country courts. All I can say is that you really do not need a pre-impact assessment of the effect on a would-be proponent or accused, whether before a magistrates’ court or a tribunal. You do not need to do any research to know the effect of having to go into battle without any legal help. That is particularly acute, obviously, with less confident and articulate people, but it is not confined to them. My experience is that you never know how many people are deterred from taking or defending proceedings because they cannot have legal assistance, because of course they just do not tip up; they do not pursue their claim or defend the claim made against them.
I know that my noble friend has thought long and hard about this and has a very difficult task in dealing with parts of the Bill, but the other thing that is easily forgotten is that if someone thinks that they are going to be opposed on the other side by a lawyer, that really is a finisher for the course that they adopt on those proceedings. I make those points merely to try to help the deliberations of the House.
Lord Elystan-Morgan
My Lords, I find myself in agreement with practically everything that has been said in this debate. The amendments go to the very heart, core and kernel of the Government’s thinking on this part of the Bill. I would even put the matter higher than most noble Lords have put it. They have put it that there are unintended consequences that now have to be considered. I would put it rather higher than that and say that, in dealing with the sensitive and almost sacrosanct area of the administration of justice and with the question of seeking to save funds at a time when they are desperately needed by the public purse, it is nothing short of reckless to proceed in circumstances where there is no certitude of success in either of those matters.
What is recklessness? Assuming that one takes a fairly lay interpretation, it is a situation in which a risk is created and the person creating that risk either closes his or her mind completely to the risk created or, appreciating that the risk is there, still takes it. That is recklessness. I hope that I do not use intemperate language in this or any discussion in this House. It is right that the Government should ask themselves, in a situation in which the onus of proof is so immense in relation to the area of the administration of justice and saving money for the public purse, whether sufficient consideration was given to as many of the risks as can be quantified—and I appreciate that some of them are very difficult to quantify.
Lord Clinton-Davis
I agree so much with what has been said by the noble Lord but I disagree with his conclusion about the leader of the Liberal Democrats. I have a great regard for him as well, but in this regard he has been an absolute disaster.
I would like to say something about my own experience in undertaking surgeries as a Member of Parliament. Quite often, the people who came along to those were inarticulate and unable to divulge the essence of the case that they wanted to put before me as their MP. They had enormous difficulty in expressing themselves and, if I may say so, I think that will be what happens regularly with regard to the Bill. I am sure that the Minister who leads the Liberal Democrats in this regard will sense that the whole House has great suspicion about the purposes of the Bill and does not see how it is going to work out in practice. There is no evidence to suggest that there will be a saving of money if people cannot express themselves cogently and coherently. From that point of view, an enormous amount of time will be wasted, as has been the case in our surgeries. Of course, not everyone here has been an MP, but those who have will surely view what I have said with some sympathy. I can recall a case where it took about an hour for a person to express themselves about the situation that befell them because they were unable to understand the points that were relevant to the issue that they had to consider. In my view, the Government are therefore bound to consider an aspect that at the moment they are loath to do.
I hope that the Minister, on reflection, will come to the conclusion that we are entitled to know his views about the position that I have sought to reflect. This issue is vital. To expect people to come before courts and express themselves sufficiently coherently is impossible. I speak not only as a former MP but from my knowledge of people whom I come across quite often in my daily practice. I look forward to hearing what the Minister has to say.
Lord Carlile of Berriew
My Lords, as another former MP I echo the point made by the noble Lord, Lord Clinton-Davis. Many is the time when Members of another place in their constituency surgeries have to give advice on legal issues to constituents, and it is often the poorest constituents who come with the largest and most complex, multiple legal problems, usually relating to welfare law. There are of course many cases in which an MP can say to a constituent, “Go along to the small claims court, appear on your own behalf and use the words ‘contract’, ‘consideration’ and ‘damage’, and you will do very well”. Litigants in person can succeed, particularly before small claims courts. However, multiple, complex legal issues do not lend themselves to litigation in person. The only responsible advice that Members of another place can give in such cases is, “You’ve really got to go to a decent solicitor who understands this kind of work”—and, if you are a really daring MP, you might discriminate among the solicitors in your constituency and recommend someone really competent in the hope that others do not find out what you have said.
My reason for supporting this amendment is founded in the sympathy that I have for my noble friend the Minister. I share the view that there is a great deal of waste in legal aid and that steps can be taken to reduce legal aid in many areas. I suspect that almost every Member of your Lordships’ House believes that. However, the list of people potentially affected in this amendment is very realistic. It sets out those very people and groups who are likely to be the most adversely and unfairly damaged by these reductions.
I would have expected the Government, in setting out legislation to cut legal aid, to do the work that is implicit in this amendment. I have looked through the notes on this draft legislation and everything that has come from the Government, and I have seen no evidence of any such assessment being carried out. I have not yet read anything but a summary of the King’s College London report, but if the headlines fairly represent what the report says, they are cause for alarm. It has done the work that the Government should have done and revealed that the savings may not be there at all in certain areas, not least, critically, in clinical negligence cases, which are of particular concern to me.
I cannot see that it would be anything other than responsible for the Government to carry out the work set out in this amendment. I would ordinarily have expected them to do so to justify the cuts that they are proposing to make to legal aid. For those reasons, I feel that it is right to support at least the aims and principles of this amendment.
Baroness Farrington of Ribbleton
My Lords, I have listened carefully to people speaking in your Lordships’ House who have a much greater knowledge of the legal system than I do. I look to the Minister to answer two questions. Will it work in terms of the savings; and is it right in the impact that it will have on vulnerable people?
I bring my knowledge from a background of working with people in local government, as do many of your Lordships. In particular, I know that the groups who have been identified as being vulnerable have a fear of officialdom and official settings. I cannot be the only Member of your Lordships’ House who has had to explain to someone how to vote. Someone who has decided for the first time in their life—in their 20s or 30s—that they wish to vote might be frightened of looking foolish by going in the wrong way or doing the wrong thing. I have had constituents who passionately supported their local school during a time of falling rolls, when school provision had to be rationalised. Some of those parents would not go to a public meeting in the school because they did not know how to speak in public. They did not wish to be embarrassed.
Speaking for myself, I was overwhelmed by Preston town hall—now Preston city hall—when I went in for the first time, prior to becoming a councillor. I was overwhelmed by County Hall and thought I would get lost and not know my way around. I ask all noble Lords to believe me because this is true. I was overwhelmed by being on the Committee of the Regions and thought I might get so lost in the Brussels buildings that I would never come back. The Council of Europe was a maze of places; I could have ended up in the Parliamentary Assembly instead of the Committee of the Regions there. Your Lordships’ House was daunting beyond belief. I know that for those noble Lords who had been in another place it was not daunting. They were just coming to the other end of the same building and felt at home, but I did not. I know from talking to people all around the House that I was not the only one who was quaking at my introduction. My five siblings came to watch, partly out of loyalty but also for the joy of watching their big sister Josie being overwhelmed and frightened of doing something. That appealed to them even more than the delight of seeing what was happening.
As I have listened to this debate, it seems to me that there is a misunderstanding about whether people can represent themselves in court, or will even dare to try, when a vital matter in their lives is at stake. That worries me. The Minister has been praised by some likely and, occasionally, unlikely sources. All I ask him for is honesty. Before this Bill goes through Report stage, I want to know that those vulnerable people who I know and he knows will not be further disadvantaged by the Government’s proposals. If, against all the odds, those people are to pay the price, I will have to be convinced that the price they will pay will meet an economic necessity and not just spread the debt into other departments.
Baroness Scotland of Asthal
My Lords, I very much agree with everything that my noble friend has just said with her great common sense and straightforwardness. She is right about the two questions but she is also right that this Bill has caused real anxiety, particularly among the most vulnerable. That is clear from what everyone has said in this debate. If the economic case is a clear and well evidenced one, I respectfully suggest to the Minister that that would be the greatest salve he could apply to the anxiety which has been caused in so many people’s minds.
I wish to add to what was said by the noble Lord, Lord Carlile. It is not just the vulnerable who find courts intimidating. Noble Lords will know that in this Bill it is proposed to remove all private family law from the scope of legal aid. All litigants, notwithstanding their normal level of articulacy, intellect and performance, find that area of law particularly challenging, delicate and painful. In those cases, the old adage is applied by lawyers that the client who represents himself is a fool. It is in those cases that help and support are particularly needed. The noble Lord will know that it is also an area where women tend to be disproportionately adversely affected, and that in domestic violence cases, which apply to men and women, 89 per cent of repeat victims are women. Therefore, there is real concern about the changes that are proposed if we do not understand the economic cost of so doing and the justification for it. Even those who are not poor have difficulty in family cases, particularly where the male member of the family is well endowed with money but the woman is not. Many women in that situation who may come from very advantaged families are obliged to use legal aid and will simply not try to receive their rights if they do not have it. One is therefore facing a potentially disproportionate and negative impact on women in those circumstances.
I therefore ask the noble Lord to think very carefully indeed about whether the evidence we have at the moment suffices and enables us to answer the two questions in particular that have been raised by my noble friend. If they cannot be answered in the affirmative, I hope that the Government will seriously think again.
Lord Dubs
My Lords, perhaps I may add a brief point to the debate, and I very much agree with the comments that have been made. A number of Members of this House have been Members of the Commons, as I have been, and we relied heavily in our advice surgeries on being able to steer people towards citizens’ advice bureaux or, indeed, to lawyers who could do a good job. However, one phenomenon that has disappeared more recently, but which was very marked as regards immigration cases in the 1980s, is people who set themselves up as advisers and who normally give thoroughly bad advice to distressed people who want help. One had to deal with that. If I got hold of constituents who were in such difficulties, I always steered them to the CAB, to the local law centre in Wandsworth or to decent lawyers.
I am worried that the phenomenon may happen again whereby, in the absence of legal aid support for certain types of cases, people will set themselves up as advisers who will pretend that they are doing this on the cheap and give advice that is not of the best quality and is, given my experience, thoroughly bad. I very much hope that one consequence of the Government’s measures will not be that people can set themselves up and mislead distressed and vulnerable people, take some of their money from them, and provide advice that is not at all helpful.
Lord McNally
My Lords, I am most grateful for all the contributions to what has been an extremely full debate—one that yet again has taken on some of the elements of a Second Reading debate, partly because of the structure of the amendment.
I have to say that we were one hour and 40 minutes into today’s deliberations before anyone—it was the noble Baroness, Lady Howarth—kindly mentioned that the debate and the Bill are set against the background of the economic situation we faced when we came into office. In the Ministry of Justice, a relatively small department, there was a commitment to find savings of £2 billion during this spending round. I say to the Benches around the House that there are no soft options.
I have not yet had a chance to read in full today’s speech by the Leader of the Opposition in which he is apparently asking the Labour Party to face up to the fact that cuts are inevitable. However, I have been following some of the advice he has received over the past week or so about facing that reality, some of which came even from Members of this House. I also think that some of the comments about the kind of social tsunami that we are going to face if the Bill is passed need a reality check: that after we have cut £350 million off the budget of our legal aid scheme—and I have not heard anyone challenge this—it will remain among the most generous in the world. The idea that somehow this is the end of civilisation as we know it does not stand up. We have been asked on a number of occasions to go back to first principles. We came into office with a commitment to make cuts in a department where there are really only four areas of expenditure: courts services, probation, prisons and legal aid. We set about trying to reshape the legal aid scheme in a way that addressed what we saw as the most fundamental issues of access to justice.
Lord Clinton-Davis
But if the Government are wrong about saving £350 million, and if the cost of providing services equivalent to legal aid mounts irrevocably, what does the Minister say about that? If the Government have miscalculated, is that not a grave offence?
Lord McNally
Fortunately, I know that the noble Lord has himself stood at this Dispatch Box, and I am sure that then he heard alarm bells going off in his head when anybody asked him questions with “if … if … if” in them. It is wise not to try to speculate. Of course things may happen beyond our control. The Government have made a judgment on these matters. We are asking the House to support that judgment, and we will find in the course of time whether that judgment is right.
The Bill is beginning to suffer from what I might call report fatigue, in that almost weekly a report comes out, usually sponsored by very interested parties, which is then quoted around the House. I would be the last to deny the right of groups to commission reports and to use their findings, but it is not necessary for those to be treated as holy writ. They are studies; we receive them, read them and take notice of them.
Baroness Farrington of Ribbleton
My Lords, I ask the Minister for the Government to produce their report. It is no good the Government dismissing or implying self-interest among those who are producing independent reports. I ask the Minister for the Government's evidence on which they base their judgment. Like him, I accept that all sorts of things come out of the blue. I want to know how the Government reached their conclusion. Where is the evidence? Please share it.
Lord McNally
I suggest that the noble Baroness reads our impact assessment, which has been quoted. Our critics cannot have it both ways. At one moment, they are banging the Dispatch Box and saying that the impact assessment reveals this, that and the other terrible finding, and then they say that we have not done any research. The noble Baroness has been in both national and local government. Many people in local government of all parties are having to take tough, difficult decisions. In a time of austerity there are no soft options. We have of course had cross-departmental discussions about the measures. It is almost impossible to assess with any accuracy the various impacts on one department or another of various measures—which involve, at maximum, £350 million in a relatively small department.
Lord McNally
One has to face up to these things but it is always a case of cuts being made somewhere else. We have tried to restructure legal aid in a way that reflects the economic reality that we face. My right honourable friend the Lord Chancellor has said very frankly that in his opinion we have become a society that reaches too easily for lawyers at taxpayers’ expense, and he is trying to roll back that tendency in this restructuring. We have also said that, as part of the restructuring, we want to look at alternative dispute resolution.
We understand the concerns that have been expressed about the not-for-profit or voluntary sector and the advice sector, and we have responded to them. I am not suggesting that this is a new announcement for the noble Lord, Lord Beecham, but we have found £20 million this year, despite the fact that the legal aid cuts do not impact on CABs at the moment as the cuts have not yet come into being. Under my honourable friend Nick Hurd in another place, we are also having a comprehensive look at the funding of that sector. Therefore, as I said, it is easy to put forward the case that has been made, but I and other Ministers were faced with a difficult decision regarding what we had to spend in the budget and how we could spend it.
Amendment 6 calls for a pre-commencement impact assessment of Part 1 of the Bill and for a copy of the report to be presented to both Houses of Parliament. The proposed review would look at the expected costs and impacts of Part 1 on a number of groups, including children and young people, women, black and ethnic minorities, and people with disabilities. It would also quantify impacts on the courts, tribunals, local authorities and government departments. Amendment 194 would bring the proposed new clause into force on the same day as the Act was passed.
Amendment 195 would require the Lord Chancellor, prior to commencement, to commission an independent review of the expected cost and impact on time and resources for judges and the courts of any increase in the number of litigants in person arising from the provisions in Parts 1 and 2 of the Bill. Amendment 191 would make the date on which the provisions of the Bill came into force subject to the provisions in Amendment 195.
Noble Lords will be aware that an established process, introduced by the previous Government, is already in place for the post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government’s internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check of new laws after three to five years. As set out in Cabinet Office guidance, these reviews normally take place three to five years after Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee and the Select Committee will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee’s findings should it choose to conduct a review of the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan.
As noble Lords will be aware, the Government are also, under Section 149 of the Equality Act 2010, subject to an ongoing public sector equality duty to have due regard to the effect of their policies on the groups protected by equality legislation. To that end, we have already produced detailed equality impact assessments—both at the point of consultation and alongside the introduction of the Bill—which set out the likely impact of our proposals on groups sharing protected characteristics. We will of course continue to act in accordance with our public sector equality duty.
In their amendment, noble Lords ask that the cost to other government departments is factored into this review of Part 1 of the Bill. We have given careful consideration to this issue as part of the policy development and clearance process throughout Whitehall. Extensive discussions between policy officials in different departments were held as part of that, and knock-on or downstream costs were factored into those discussions. Ultimately, costs to other government departments will be driven by behavioural responses to the reforms, and these cannot be predicted with any degree of accuracy.
As I have already said, the noble Lord, Lord Bach, referred to our risk assessment. From the very beginning, I have never hidden the facts in answering questions at this Dispatch Box. If you are dealing with cuts in almost any aspect of government—for example, as chairman of housing in a local authority—but especially if you have a budget specifically aimed at the more vulnerable in society, then I do not resile from the fact that the cuts will impact on the most vulnerable in society. However, the test is then how to protect the most vulnerable. One has to ask: “Have we done enough? Have we focused our scant resources enough?”. In part, that is what these debates will be about.
Lord Elystan-Morgan
The noble Lord has said very helpfully that downstream costs affecting other departments were factored into the consideration. Therefore, is the £350 million in fact a gross figure from which a factor of X has to be deducted, although at this stage we do not know and are not in a position to know what X might be?
Lord McNally
No. The commitment is to the expenditure from my department, and factored in are discussions with other departments which leave us confident that the kind of disproportionate impact which has been suggested will not occur. However, one knows how fluid these matters are when discussing government budgets. For example, how do last summer’s riots feed into the demand for prison places or indeed the demand for legal aid? There are variables and unknowns in these matters, but we have put forward our objective of cutting the legal aid bill by £350 million in a way that we hope is focused and takes account of some of the issues that have been raised. For example, domestic violence is in scope. We will have debates later about definitions of domestic violence, but to suggest that domestic violence is being taken out of scope is plainly not fair.
Baroness Scotland of Asthal
My Lords, I make it plain to the Minister and reassure him that no one is trying to be unfair in relation to domestic violence. The noble Lord will know that the impediments that have been put in the way of someone getting legal aid for domestic violence are quite acute. They have to have had an injunction within the previous 12 months, and there either has to be a person imprisoned within 12 months or the victim has to come at the top of the scale—that is, by being at threat of death or grievous bodily harm. That is an undue hurdle to overcome.
Secondly, we know that in many private law cases there are elements of domestic violence that are not proceeded with because the parties have lawyers and come to a settlement. The noble Lord wishes to use mediation. However, the King's College figures show that the additional mediation services that we would need would cost £46 million to £48 million; the Government's figures show that we have £10 million in the budget. Therefore, it is for these reasons that we ask for the evidence for the savings that will be made, because it does not appear to be there now.
Lord McNally
We will discuss this point at a further stage of the Bill. I compare that intervention by the noble and learned Baroness with her earlier one which was more broad-brush in its general condemnation. We will discuss the other areas when we come to them.
I will speak also about the issue of litigants in person, on which Amendment 195 focuses. I heard what was said, in particular by a number of noble and learned Lords—I do not think that the noble Lord, Lord Phillips, qualifies as learned.
Lord Phillips of Sudbury
I must rise to that jibe; I am an experienced Lord.
Lord McNally
Even after 15 years I am never sure who is gallant, who is learned and who is—like the noble Lord, Lord Phillips—just experienced.
Unrepresented litigants have always been a feature of our legal system. Judges make efforts to assist them by explaining relevant procedures and what is expected. We accept that the reforms are likely to lead to an increase in the number of litigants in person. We conducted a full review of the available literature on litigants in person, which was published alongside the consultation response. The review found that the evidence available on litigants in person tended to suggest a mixed impact on the length of proceedings where litigants in person were involved. It is also important to point out that there will be significantly increased numbers not going to court at all. We estimate that there will be 10,000 additional mediation cases as a result of our decision to prioritise this area. This will offset the additional burdens on the courts from dealing with litigants in person.
We took into account this issue in the impact assessment and the equality impact assessment, published at the time of consultation. One assumption we made in calculating costs and savings was the increase in unrepresented litigants. We are now considering how best to provide the support and training needed to those who assist unrepresented litigants, as well as to the litigants themselves. This will include looking to simplify the forms of guidance available to those using the courts in person and to improve the information we offer to members of the public through the new online content of the Directgov website. The ministry is considering the Civil Justice Council’s recent report and is liaising with the council on how best to take forward its recommendations for dealing with litigants in person.
The current system of post-legislative scrutiny achieves the right balance and value in effective scrutiny for both Parliament and the Government. Therefore, I urge the noble Lord to withdraw his amendment. We have had a very good debate. It had some elements of Second Reading and took just under three hours of the second day of Committee. I hope that noble Lords will believe me when I say that we are listening and that we will have further thorough, specific debates. However, the amendment takes us too far back to first principles on a Bill that has gone through the other place and has had its Second Reading in this place.
Baroness Farrington of Ribbleton
My Lords, will the Minister give an assurance to the House that he will read this debate carefully and, where there are unanswered questions about costs that could occur, including costs to other departments, or any other questions to do with the validity of the Government’s assumptions and of the background knowledge that he assures us that the Government have, they will be answered in writing before Report to all noble Lords who have taken part today?
Lord McNally
No, my Lords. I will read the debate and consider these matters, but frankly some of the issues raised were so speculative that no responsible Minister would respond in that way. I assure the noble Baroness with all honesty that I will bring the facts before the House and will deal with the Bill with all the responsibility that I can. However, she is too old a hand—
Baroness Farrington of Ribbleton
The noble Lord has lost none of his Blackpool charm.
Lord McNally
Coming from a Preston girl, that is a compliment—I think. I will read Hansard. I realise that very interesting points were made, which I will study carefully and draw to the attention of the Lord Chancellor. With that, I ask the noble Lord to withdraw his amendment.
Lord Bach
My Lords, we have had a very full debate, as the Minister reminded us. However, it was very worth while because this is a very important subject that goes to the heart of whether the Government did the work they should have done before bringing in such controversial and fundamental legislation. I start by saying how grateful I am to noble Lords from all sides of the Committee who spoke in the debate. I am very grateful to the noble Lord, Lord Wigley, for backing the amendment, as I am to the noble Baroness, Lady Prashar. I forgot to say earlier, as I was asked to, that she was unable to attend when the amendment was moved because of her appearance at a very well known and important committee. I am very glad to see her in her place now.
I thank noble Lords for making some very important points. I do not wish to embarrass the noble Lord, Lord Carlile, but I will thank him for his contribution if only because it gives me the chance on behalf of the Committee to congratulate him on the honour he received in the New Year Honours List. However, other speeches were just as good, on all sides of the Committee. The one thing they had in common—this is something that the Minister must take back to his department—is that they were all, in one way or another, critical of the way in which the Government approached this part of the Bill.
I will not speak for long; I do not for a moment believe that more than a few noble Lords are in the Chamber to hear me wind up the debate on this amendment. They are here for another reason that I cannot think of. However, it is necessary to make one or two points. Although of course I will not press the amendment, the issue is important and we may well come back to it on Report because it is fundamental to the Bill. If the Bill comes into force with us knowing so little about what its effects and costs are likely to be—whether to the MoJ, other government departments or society as a whole—that is not a satisfactory way of law making. This is not a political point but a common-sense point, and I hope that the debate has been conducted from a common-sense point of view.
The points I want to make are these: everyone around the House, including my party, knows that savings have to be made in the legal aid budget. Of course that is right. We put forward proposals in relation to criminal legal aid in the last few months when we were in government. We said it in our manifesto. Other proposals for savings in legal aid have been put forward in various amendments that we are going to debate in due course in this House. The Law Society has also put forward proposals. The question is not: should there be cuts in legal aid? The question is: where should those cuts be?
For the life of me, I cannot understand why the Government have chosen that part of legal aid—the social welfare law part, the law of everyday life, which is a pretty small part of it, in fact—which in its own way works successfully in helping the most underprivileged in our society get basic legal advice on legal problems that affect their daily lives. It follows that that early advice often sorts out the problem and means that courts and tribunals are not bothered with hopeless cases and that people’s lives can be improved. I cannot for the life of me understand why the Government should have chosen that aspect when they refused to do anything about criminal legal aid, where a number of us think that there is room for substantial savings in some parts of it. It is disappointing that when the Government say that they are not going to implement Part 1 of the Bill until April 2013, they go on to say that they are not even going to look at criminal legal aid again until 2015. That is disappointing. That is my first point.
My second point is that we believe that it is a false argument that the Government have chosen life and liberty as the only places where legal aid should apply today. The point has already been made in this debate that it is difficult to think of a more obvious place where legal aid is appropriate than to solve legal problems that affect people who are, through no fault of their own, poor or disabled or who lack any privileges. That is surely where a legal aid system should bite. To remove legal aid from there is a completely wrong thing to do.
I thank the Minister for his contribution because it is not easy to face the Committee which, on this issue at least, is pretty dead-set against him. He made a point about how weekly reports come out suggesting that the policy is wrong, and he appeared to criticise that. The fact is that there would not be so much criticism if the Government had done the work they should have done before they tried to legislate in this way. All we ask is that in the time between now and Report, he goes back to his department and asks—I do not think he answered this in the debate—why the Government have not done the assessments of costs and social costs so that Parliament has a better idea of what it is being asked to legislate for. The Government have clearly not done the work that should have been done—that is a pretty universal feeling around the Committee. It is not too late for them to start doing it now, and I would encourage them to do so. I beg leave to withdraw the amendment.
Railways: High-speed Rail
(12 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Earl Attlee
My Lords, with the leave of the House, I will now repeat a Statement made in the House of Commons by my right honourable friend the Secretary of State for Transport. The Statement is as follows:
“Mr Speaker, this morning I made a Written Statement to this House announcing my decision to give the go-ahead to High Speed 2—a national high-speed rail network. With the exception of High Speed 1, it will be the first major national railway line to be built in Britain since the grand central line in 1899. I would like to provide Members with further detail of the substance and rationale for my decisions.
I weighed up the evidence after one of the largest public consultations in our history. We wrote to more than 172,000 people living or working near the proposed line from London to the West Midlands, visited communities along the 140-mile route and held 41 days of road shows attended by almost 30,000 people over the five-month consultation period. Almost 55,000 responses were received from individuals, businesses and organisations across the country, representing a wide spectrum of views, many of which were strongly expressed both in favour of and against high-speed rail, views I carefully considered in making my decisions.
Since becoming Secretary of State for Transport, I have examined all the available evidence, including the work undertaken by my right honourable friend the Member for Runnymede and Weybridge and the previous Labour Administration in developing the consultation proposals, the evidence submitted during consultation and the further work undertaken by my department and HS2 Ltd. My decision had to take in the full environmental impact of HS2, but also the benefits of HS2 to our economy, to jobs and to competitiveness, not just today, but decades into the future. I also had to be clear about the implications of not investing in high speed, how that would affect our leading cities and how that would affect the road network and aviation.
Generating growth and helping people back to work, supporting Britain’s companies and wealth creators so they can compete and win in the global marketplace—these are at the top of this Government’s priority list. From day one in office, the coalition has had a laser focus on investing in and modernising this country’s transport infrastructure. Now, when it came to HS2, I could have made the easy choice, gone for the short-term option, rely on a patch-and-mend approach and leave our rail networks overstretched, overburdened and less resilient.
Well, let us be clear: the price for that would have been paid in lost business, lower growth, fewer jobs and more misery for passengers. We would have failed future generations who are depending on us to create the prosperous country they will want to live in. Good government is about acting in the long-term national interest. It is about taking decisions, however difficult, to improve people’s quality of life and the country’s economic prospects not just for the next four or five years but for the next four or five decades.
Our Victorian predecessors would have had immense pride to see their railways providing massive benefit today, over 100 years later, but as a result of today’s announcement the railway revolution they started is happening once again. We are ready for a new chapter in Britain’s transport history, one that is designed to boost our economy and our country just as the first coming of the railways or the motorways did for previous generations. That is precisely why I have given the green light to HS2.
In spite of the challenges of rising demand, our railways have been a huge success since privatisation. Passenger demand is growing year on year, particularly in the inter-city market, but I also recognise that further rounds of upgrades to our major north-south lines, even if they offer apparently good value for money, can provide only a short-term fix, one that is incapable of meeting the long-term challenge. In truth, they could add only limited further capacity. They could not offer the step change in performance that passengers wish to see. Moreover, upgrades would consign rail passengers and the vitally important rail freight industry to years, if not decades, of future engineering disruption, delay and unreliability—something users of the west coast main line will remember only too well.
Therefore, the question is not, “Do we build new lines?”; it is, “What type of new line should we build?”. When you weigh up the economic and social rewards, there is only one answer: high-speed rail. A high-speed line will deliver £6.2 billion more of benefits to the country than a line running at conventional speeds—at an extra cost of only £1.4 billion. By slashing journey times, as well as providing the step change in rail capacity that we need to keep the country moving, it will give a return on the additional investment of more than four to one. A modern, reliable and fast service between our major cities and international gateways, befitting the 21st century, will transform the way we travel and promote Britain’s economic and social prosperity.
HS2 will be built in two phases to ensure delivery of its benefits at the earliest possible opportunity. Phase 1 will link London to the West Midlands, plus a direct connection to the continent through the Channel Tunnel via High Speed 1. Even in the first phase, cities and towns off the HS2 network such as Stockport, Warrington, Liverpool, Preston and Glasgow will be served by trains able to use both HS2 and existing intercity lines, saving over half an hour on journeys to London. Phase 2 will provide onward legs to Manchester and Leeds, with intermediate stations in the East Midlands and South Yorkshire, plus a direct connection to our international hub, Heathrow Airport.
HS2 will mean very substantial time savings between Britain’s cities, reducing the journey from Birmingham to Leeds from two hours to just 57 minutes, and Manchester to London from two hours eight minutes to only one hour eight minutes. Edinburgh and Glasgow will benefit from a three and a half-hour journey time from London, encouraging modal shift from short-haul flights to high-speed rail.
In delivering HS2, I look forward to working with the Scottish Government and others to identify and evaluate options for developing the high-speed network and further reducing journey times. However, I emphasise to the House that in making my decisions I have been particularly mindful of our responsibility to safeguard the countryside and its wildlife, and to protect local communities as far as possible. I have worked hard to look at more tunnelling, to lower the route into cutting to reduce visibility and to move the route away from homes wherever viable. I have looked at how we can better protect our landscape, wildlife and heritage. My engineers have carefully re-examined the route in light of all the evidence, and I can therefore announce a package of alterations that significantly reduce the railway’s impacts.
The improvements include a longer, continuous tunnel under the Chilterns from Little Missenden to the M25, and a new 2.75-mile bored tunnel along the Northolt corridor to avoid major works to the Chiltern line and impacts on local communities in the Ruislip area. Of the 13 miles through the Chilterns area of outstanding natural beauty, fewer than two miles will be at or above the surface; the rest will be in deep cutting or tunnel. There will also be a longer green tunnel past Chipping Warden and Aston le Walls, another longer green tunnel to reduce impacts around Wendover, and an extension to the green tunnel at South Heath. There will also be a green tunnel past Greatworth. These are just a few of the suite of improvements, which are detailed in full in the Command Paper I presented to the House this morning.
The changes will bring significant benefits to communities and the environment. Compared to the consultation route, there will be a more than 50 per cent increase in tunnel or green tunnel, totalling around 22.5 miles. In addition, around 56.5 miles will be partially or totally hidden in cutting, a key way of helping to reduce noise in neighbouring communities. There will be 10 miles fewer of viaduct or embankment. In all, this means that around 79 miles—more than half the route—will be mitigated by tunnel or cutting. The revised tunnel alignment through the Chilterns will avoid an important aquifer, significantly reducing impacts on water resources. There will also be a reduction in the impacts on ancient woodlands and heritage sites.
Communities affected will benefit from the changes, with a near 50 per cent reduction in the number of dwellings at risk of land-take, and the number experiencing noticeably increased noise levels reducing by a third to just over 3,000 properties. I have always been very clear in my mind that, whatever the mitigation measures, there can be little comfort in knowing that the country will benefit enormously from HS2 when it is your house or business that has to be knocked down to make way for it.
The meeting I had with MPs last year allowed many of those representing communities along the proposed route to communicate to me directly the views of their constituents. To help people, we will bring in a package of compensation measures over and above what affected homeowners are already entitled to under law. These include: a streamlined purchase scheme to simplify the statutory blight process for property owners; a sale and rent-back scheme to give homeowners within the safeguarded area more flexibility; a streamlined small claims scheme for any construction damage; and a package of measures to reinforce confidence in properties above tunnels.
Homeowners will be offered before and after surveys, a thorough assessment of the impact of similar tunnels, an explanation of the measures that will be taken to prevent perceptible vibration impacts, financial compensation for the compulsory purchase of subsoil, and a legally binding promise that HS2 will be permanently responsible for resolving any related settlement or subsidence issues. There will also be a refreshed hardship-based property purchase scheme. Finally, we will work constructively and in a structured way with local authorities along the line of route to minimise the negative consequences of HS2 and maximise the benefits.
Having made the decision to press on with HS2, my intention is to drive it forward as fast as is practicable so that we can gain from its benefits as early as possible, and to end unwelcome uncertainty for those affected. A key part of this will be to engage fully and actively with organisations, communities and individuals along the whole Y network. People presented legitimate concerns in the consultation and, even though we have made significant improvements, I am keen to work hard with local communities so that as many concerns as possible are properly addressed.
I have instructed HS2 Ltd to undertake a range of activities to prepare for and to deliver both phases of the network. It is my intention to introduce a hybrid Bill by the end of 2013, including a detailed environmental impact assessment, to provide the necessary powers to construct and operate the line from London to Birmingham. I have instructed HS2 Ltd to deliver this project at pace but within milestones that will stand the test of time and with regular reporting to me on progress. The Major Projects Authority, which this Government launched last March to improve the performance of major government projects in delivering on time and in budget, will provide critical support and oversight.
This spring we will consult on the draft directions for safeguarding the proposed route from London to the West Midlands, as well as separately consulting on detailed compensation proposals. I aim to bring final safeguarding directions and an agreed compensation policy into effect later in the year. In March this year HS2 will advise me on route and station options to Manchester and Leeds, and in autumn 2012 we will start an engagement programme on a preferred route to discuss local views. I warmly welcome the political consensus on HS2 on the basis that it will help in the planning and construction of this transformational scheme as it is carried through to completion.
HS2 matters to the long-term success and prosperity of the whole of Britain. It will help to create jobs, support growth and regenerate our regions. It will better connect communities and improve people’s opportunities. With its potential to attract people and freight on to trains and away from long-distance road journeys and short-haul flying, combined with the increasing decarbonisation of the grid, HS2 is an important part of transport’s low-carbon future
Britain has faced such challenges before. The Victorian railway pioneers had the vision to build a rail network that has promoted growth and created jobs for more than a century. Those innovators transformed this country’s fortunes. Our industries flourished, our exports multiplied and our economy grew wealthy. Half a century later, another generation had the vision to start building the motorway network. Post-war planners developed the motorway network, connecting major cities and transforming the capacity of our road network.
Half a century on again, we now need to do for our Victorian railway what previous generations did for our road network. The time has come again to seize the moment, to be ambitious and to show the world that this is a can-do country. The lesson from history, and the lessons from our global competitors, is that no matter how hard times are, we cannot stop planning for the future, or investing in our infrastructure, if we want Britain to flourish.
HS2 will be the backbone of a new transport system for the 21st century, offering the vital capacity that we need to compete and grow as a country. It will transform the economic shape and balance of our country, linking our major cities to a level that previous generations could only dream of. By backing HS2, this Government are backing Britain, and I commend the Statement to the House”.
That concludes the Statement.
Lord Davies of Oldham
My Lords, the House is grateful to the Minister for repeating the Statement made earlier today in the other place. He made reference to the fact that the Government welcome the political consensus that revolved around this project. That consensus is secure as far as this party is concerned, which is why the Minister can anticipate a gentle inquisition from me at the Dispatch Box this evening, with perhaps one proviso.
The noble Earl will know how much we have invested in this project in terms of the origins being the significant work done by the last Labour Government, particularly by a Secretary of State who served in this House, my noble friend Lord Adonis. Recently, he went before the Transport Select Committee of the other place and reasserted the most cardinal of points with regard to the progress of this project. He said that he had always intended and had hoped that the committee would see the value of the legislation covering the whole of the route—not just London to Birmingham but to Manchester and Leeds as well in one Bill.
The Minister needs to address that very important question. I hope that this evening, from the Dispatch Box, at the very least he will indicate that the Government will continue to think about this. After all, he has just mentioned the fact that the Victorians had the courage to build a railway system in this country. The courage of the Victorians was to engage the other place and this House in constant legislation to ensure that the railways could be built. If it had not been for that commitment to railway legislation, we would never have had the network that we eventually came to enjoy.
I say to this Government that, in the 21st century, they have to address the issue of legislation as well, which means that they have to think about the fact that the Bill—I recognise the hybrid nature of the Bill—should cover the whole of the routes. That would give the real earnest of intention as regards the north of England and it is how we would engage the whole of our economy with confidence for the future in terms of this investment. I hope therefore that the noble Earl will be positive in his thoughts on these matters. If he is not able to be too assertive at the Dispatch Box today—I recognise that the Statement has been drafted and delivered elsewhere—I hope that he will join the lobby for the necessity of this legislation.
I know that that will mean some delay in the introduction of the Bill beyond the date indicated by the noble Earl. It would certainly require carry-over provision for the Bill to be successful. But that is exactly what we did with Crossrail and have recently done with the most important investment project in terms of rail in southern England in recent years. I am merely asking the Government to take this very important point on board.
I also ask the Government to look at costs with regard to this line. We appreciate their solicitous concern about the environment and the countryside, especially when that concern is addressed to them almost daily by those Members of Parliament who represent those particular areas and happen to be of the Government’s persuasion, particularly if one of them happens to be a Secretary of State in the Cabinet. We should welcome support for the environment from wherever it comes, particularly when it is effective.
However, this choice of route does not have the advantage of the route advocated by my party, which would have greatly reduced the impact on the Chilterns and, therefore, cost considerably less. I know that the noble Earl emphasises the costs of the alternative route, but this route requires extensive tunnelling at very significant cost. It requires a spur to Heathrow. Quite frankly, we do not have a chance of getting any European money unless this high-speed link has a relationship to Heathrow. It must have an international European dimension of benefit to it for us to qualify for European money. But the Government did not follow our argument and have chosen this one, which has much less security as regards the position of the link with Heathrow.
I should also like to ask the Minister whether the Government have begun discussions with the Scottish Government for the development of the network to Scotland, which is of enormous importance to the United Kingdom economy and is not unimportant to the future of the United Kingdom in a more general sense. I hope that they are giving due weight to the necessity of discussions on the long-term future with regard to that.
I hope also that the Government have taken into consideration the long-term costs of their proposals for this line. Do they think that any other significant transport development is going to take place in this country, whether that be for road or rail? Do they think that anyone is going to fail to build on the lobbying that has emphasised the essential environmental costs involved and the expenditure necessary to protect the environment? Do they think that other parts of the country are not going to be similarly concerned about the beauties of their own areas, too? I hope that the Government recognise the long-term costs of the strategy that they are pursuing.
I have two fairly brief questions, which the noble Earl might care to develop later. First, reference has been made to the work done on the number of flights that may be saved by the high-speed train. I would be grateful if he could give some indication of the department’s calculations on this. Secondly, while we recognise that this line is all about passenger transport, one crucial rationale for it is the extent to which it will free up capacity for the exploitation of our existing railway network. Almost as a throwaway comment, a passing reference was made to freight—that is what it was, a passing reference consisting of one sentence. I hope that the Minister will be able to give us a little more on how he thinks that aspect is to be considered.
Finally, of course we support the development of this project. We strongly support the building of HS2. However, a great deal of work needs to be done before the concept of today becomes the reality of tomorrow.
Earl Attlee
My Lords, I am grateful for the support of the noble Lord, Lord Davies of Oldham. I have no hesitation in paying tribute to the work of the noble Lord, Lord Adonis. The noble Lord asked about legislation that would cover the whole of the Y network. We are absolutely committed to the whole Y network, but noble Lords will be aware how difficult and detailed the necessary legislation will be just to cover the portion from London to Birmingham. Noble Lords should remember that this route alone is roughly twice as long as HS1 and that that legislation took some time to take through Parliament. I think that the sensible course of action is to get a hybrid Bill through for phase one. Noble Lords should remember that northern cities will benefit straightaway from the saving of half an hour in travel time from Birmingham to London. Noble Lords will also appreciate the need to schedule properly such large construction work for industry. We want to avoid the problem of feast and famine.
The noble Lord touched on the issue of the route through the Chilterns. I am advised that any alternative route would be considerably more expensive. On the issue of Heathrow, the spur will not be viable to service Heathrow until the full Y network is in place. That is why the spur will be constructed as part of the completion of the Y network connecting Manchester and Leeds. It will then become viable because of the increased traffic going to Heathrow.
The noble Lord also asked about the Y network. The Government are committed to the delivery of the full Y network. There would be little sense in stopping the network at Birmingham. The Secretary of State is actively exploring options for the inclusion of a purpose clause in the first hybrid Bill in order to demonstrate the Government’s commitment to the full Y network. I hope that that gives some comfort to the noble Lord.
Lord Snape
My Lords, as a founder member of the All-Party Parliamentary Rail Group in the other place and its first chairman, I congratulate the Minister on the Statement that he has repeated today. I further congratulate the Government on having the courage to go ahead with this project, which they have inherited from their predecessors, in the face of some pretty virulent opposition from people who could perhaps be regarded as traditional supporters of the noble Earl’s political party. I also support my noble friend on the Front Bench in his plea that the Government should look again at the question of the first hybrid Bill. The Minister will be aware that these Bills take many months, if not years, to get through both Houses, and the thought of two or three of these Bills is not going to speed up the project in the way that he might like.
Finally, how much is the new tunnel through the Chilterns going to cost? Some estimates suggest that it will be around £500 million. Does he agree that that is a pretty steep price to pay in order to keep the Welsh Secretary in the Cabinet? Is it not just as well that she is the only member of the Cabinet who has threatened resignation over this project, otherwise the total bill could well have been doubled?
Earl Attlee
My Lords, the noble Lord asked about the cost of the extra tunnelling. I do not have the full details, but they will be set out in the accompanying literature. A CD of the large bundle of documents that I have is available and I will ensure that all noble Lords who take part in these debates are given a copy of it. I am advised that the extra tunnelling through the Chilterns is cost neutral.
Lord Mawhinney
My Lords, I join those noble Lords who have congratulated the Government on this decision and on the fact that it is a cross-party decision. I was in office as the Secretary of State for Transport when the HS1 hybrid Bill was launched and I should tell my noble friend that it is a long, complicated and difficult process. For that reason, I encourage him to think again about whether it is really necessary to have two hybrid Bills or if it might not be more sensible to invite colleagues to gird their loins and do it once. It is not an easy or pleasant process, but it is absolutely vital and it would offer reassurance to those in the north of England. In that context, as my noble friend will know, when the noble Lord, Lord Adonis, was in office, he asked me to do the work on the High Speed 2 link to Heathrow, which this Government have accepted. I am pleased to see that they are going to put the spur into Heathrow during the second phase. He is right to say that it would not be financially viable before that. But that links back to the fact that aviation in this country would be more reassured if there was one hybrid Bill which included the Heathrow spur. Otherwise, it will only be in the second Bill, which could foster uncertainty about the aviation future of this country for too long.
Earl Attlee
My Lords, my noble friend is right to say that the hybrid Bill process is long and complicated. He suggests that we should do this in one Bill. I should point out that a difficulty with that is that, while we could secure political co-operation to deal with the Bill as expeditiously as possible, my noble friend will be aware that outside organisations can petition against a Bill as long as they have a locus, and there is nothing that we can do in Parliament to stop that—and I am not sure that we would want to either. My noble friend talked about including provisions for the spur in the initial hybrid Bill. I make no promises whatever, but I will mention his suggestion to my right honourable friend the Secretary of State.
Lord Berkeley
I very much welcome the Statement. It would be helpful if the Minister, through his colleagues in the Commons, could encourage as many Members of Parliament as possible along the route—they may have strongly opposed the project—to look at their constituents’ best interests now and say, “Right, we’ll work with this and get the best mitigating measures possible”. That is what happened with the Channel Tunnel, which I worked on, and High Speed 1. Members of Parliament, led by the noble Lord, Lord Howard, did extremely well in looking after their constituents’ interests rather than opposing the principle.
I have one question for the Minister on the connection between HS2 and HS1. I welcome the fact that there will be a railway connection, which is mentioned in the document, but I am very concerned that it will run for about half a mile along the North London line, which is not only at its most congested there—most people would say that it is full already—but will not be capable of taking any international train of the current design. I do not know whether that is another reason for the scheme not getting any European money, which my noble friend Lord Davies of Oldham referred to; but to make the system work, there has to be a through connection built to the new gauge. I understand from Network Rail that it is technically quite possible to do so, and it would probably be cheaper too.
Earl Attlee
My Lords, I am pleased to say that opposition to the scheme is waning in the light of the work done by my right honourable friend the Secretary of State and her predecessor, and I suspect that the noble Lord, Lord Adonis, might have done a little bit of work on the side as well. We must not forget that the duty of MPs is to represent their constituents.
The noble Lord asked about the important question of connectivity between HS2 and HS1. The North London line, to which he referred, will support at least three trains per hour in each direction while also maintaining the current service levels. Some gauge clearance will be necessary to accommodate the wider and taller HS2 trains on the North London line. We are confident that this can be achieved with minimal impacts on the local community and rail services.
Baroness Scott of Needham Market
My Lords, I very much welcome the Statement and, more importantly, the commitment to go ahead with the project. Does the Minister agree that if we are going to spend this amount of public money in these difficult times, it is very important that the public should have a general sense that this is a good thing; and that rather than the argument being entirely hijacked by questions of shaving minutes off journey times between London and Birmingham, we need to keep referring to the line in the context of a very important scheme to link the whole country together and then on to Europe? I am sure the Minister would agree that had Brunel started the Great Western line by saying that he was building the Maidenhead link, nobody would have been very inspired.
Earl Attlee
I agree with my noble friend. It is a capacity problem that we are trying to address. If we do not do something, we will run out of capacity on the west coast main line.
Lord Skidelsky
My Lords, I, too, welcome the Minister’s Statement. I have a couple of questions. How soon, and by what date, does the Minister expect to see some employment effects from this scheme? Does he agree with me that, given the massive spare capacity in the construction industry, it is important to start at least preliminary work as quickly as possible? Reference has been made to the Victorians. The Victorians built their much larger railway system far quicker than the leisurely pace envisaged by the HS2 scheme, and with inferior technology.
Earl Attlee
My Lords, the noble Lord referred to the benefits of these construction projects for employment. He needs to remember that the Crossrail project is already running and providing considerable employment. He spoke also about the achievements of the Victorians. We have a slightly more developed democratic process than they had, so we cannot get the legislation through quite as fast as they were able to.
Lord Faulkner of Worcester
I am sure that the Minister will be heartened by the so far universal expressions of support for the Government’s decision. I should like to add to them; I think that this is a very significant day for Britain’s railways and represents a real step change in our approach to transport policy. When I was working at the railways board in the late 1980s and 1990s, an official from the Department of Transport joined the board as a non-executive member, looked around the table at his first meeting and said, “You must understand that my job is to preside over the orderly decline of the railway”. That was only 20 years ago, so this decision and the fact that the government document that goes with it contains statements such as,
“the Government does not consider that there is a case for major new motorways”,
and,
“It does not … support a new runway at Heathrow and wants to see modal shift away from domestic routes where possible”,
with the emphasis in future to be on the railway, are very significant.
Can the Minister confirm that the package of compensation proposed in the Statement is significantly more generous than that accorded to householders who are affected by road-building programmes?
Earl Attlee
My Lords, I am grateful for the general support from the noble Lord, Lord Faulkner. On his specific question, we have improved the compensation arrangements for people affected, but I cannot say whether it is better than the arrangements for those affected by road construction projects. Inspiration has now come from the Box—but sometimes inspiration is not quite as complete as one would hope. My note says that compensation will be more generous than the law requires, but that does not necessarily mean that it is more generous than that for a road-building project. It might be possible—for instance, if someone was building a DBFO motorway or road project—to offer greater compensation, but I simply do not know. However, I do know that good compensation arrangements were announced today.
Lord Cormack
My Lords, I hope that I can expect an equally quick answer to the question that I will now ask as one who still has real concerns and misgivings about the environmental impact of this scheme in a tightly populated country where beauty is extremely fragile and where one of the loveliest areas of rural England is under threat. Is the National Trust, which advanced some extremely well constructed and moderate opposition to this proposal, now tolerably satisfied with the mitigation that my noble friend talked about?
Earl Attlee
My Lords, I do not know the answer to the noble Lord’s question, but I shall write to him.
Lord Lea of Crondall
My Lords, I convened a meeting six months ago between all the local authorities and villages affected by HS1, which had been through all this process with the Channel Tunnel link, and the local authorities and campaigners involved with HS2. What surprised some of the people in the line of HS2 was the degree of political satisfaction obtained by all the villages along the line of HS1, so that they can now say that there is nobody in Kent who will say that it was the disaster predicted. Nobody at that meeting said it, and I think that it was a penny that dropped. Although some of the changes to this route might seem disproportionate—for example, the proposal on page 98 to avoid Kenilworth Golf Club—they should be paid for, because at the end of the day, in 10 or 15 years’ time, I suspect that public opinion will generally see the benefits substantially outweighing the costs, including the benefits for the people along the West Midlands line and the Y extending to the north. Will the Minister comment on that?
Earl Attlee
The noble Lord makes an important point. I referred earlier to the work that both Houses did on the Channel Tunnel Rail Link Act. Local people were able to petition if the developers had not privately met their needs. The effort expended during that planning process has clearly given us long-term benefits. However, it is important not to short circuit the approval process of this project, otherwise we could face serious problems when we try to start the construction phase. That would be much more expensive than doing it properly in the first place.
Lord Bradshaw
Will the Minister consider the methods of appraisal that are likely to be used in producing the economic case? We now use economic measures that were developed in the 1960s and used on the Victoria line and on motorways. These put excessive emphasis on values of time and mean that the discounted cash flows which apply almost run out in 20 years. If we are building a line that will last 120 years, which I think it will, perhaps the noble Earl could ask his right honourable friend the Minister whether there should not be a reappraisal of how we look at these schemes, and to bring forward a different scheme from the one that is used now—which employs lots of people but produces nonsense results. I can assure him that that is the case.
Earl Attlee
My Lords, the noble Lord has made this point more than once. I suspect that it has some validity, and at a suitable opportunity I will discuss it with ministerial colleagues.
Lord Grantchester
My Lords, my noble friend mentioned the Y network. I believe that the base of the split of the Y will be at Lichfield. The Statement refers to the east arm of the Y, with intermediate stations in the East Midlands and South Yorkshire. The West Midlands route to the north-west is also of crucial importance. Our Victorian pioneers obviously knew what they were doing when they placed the gateway to the north-west at Crewe, as this opens up Liverpool, Derbyshire, Lancashire and Cumbria, as well as Wales, both north and mid-Wales. This Trent Valley route will build on the existing mix of the north-west, link to the airports and, as I understand it, the new deep port plans for Wales. It is also important that there are east-west links which, through Crewe, could link back to Manchester and the east side. Can the Minister tell the House the Government’s plans for this west north-west route and assure us that these phasing plans through legislation do not get interpreted as just focusing HS2 on the south?
Earl Attlee
My Lords, the noble Lord has asked me a detailed question about route strategy, and I shall be delighted to write to him.
Lord Marlesford
My Lords, given the huge success of the port of Felixstowe in the 25 years since it was bought, developed and now operated by Mr Li Ka-Shing using Hong Kong Chinese capital, will the Government consider encouraging China, which has much resource to invest overseas in infrastructure, to finance, build and, if possible, operate the new line?
Earl Attlee
My Lords, I am sure that Her Majesty’s Government look at all possible sources of finance.
Lord Stevenson of Balmacara
My Lords, I declare an interest as a resident of the Chilterns, and indeed of the village of Little Missenden, which the Minister kindly mentioned a few minutes ago. I am afraid that I cannot join the general celebration of the announcement today. That is not because I feel that the Chilterns are being badly treated—although I think that they are—but because I share some of the points made earlier about the way in which the business case has been made. I shall return to that at some other time. A key concern of many of the residents in this area, and of many others looking at this matter, is the environmental case. Can the Minister explain why that has been delayed and why we have so far not seen anything on it? Can he say when it will be published?
Earl Attlee
My Lords, I have to declare a slight interest—not only am I the Earl Attlee; I am also Viscount Prestwood, because my grandfather lived in the village of Prestwood. The noble Lord asked about the environmental impact assessment. As he points out, that will be produced later on. However, it is a very detailed document. There has been some sustainability assessment of the proposed route, but the environmental impact assessment will be very detailed and look at how we will deal with every adverse impact. That will come along with the hybrid Bill.
Scotland: Constitutional Future
(12 years, 10 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, with permission, I shall now repeat a Statement made by the Secretary of State for Scotland in the House of Commons.
“In May 2011 the Scottish National Party won a significant electoral victory—a victory this Government have openly acknowledged. The SNP has consistently campaigned for Scottish independence and its 2011 manifesto included a pledge to hold an independence referendum. As a Scot, I think it is vital that the Scottish people make a clear decision about our future within the United Kingdom—a decision made in Scotland, by the people of Scotland—but at present there is a lack of clarity about the referendum, its outcome and what the implications of that outcome would be. All of this creates economic uncertainty and that is bad for jobs and investment.
Since last year’s election, we have been asking the Scottish Government to set out their plans for a referendum but so far they have not done so. In particular, they have not said anything more about their legal power to deliver a referendum. This is not an issue that can be ducked. To legislate for a referendum on independence, the Scottish Parliament must have the legal power to do so. It is the Government’s clear view that the Scottish Parliament does not have that legal power.
Scotland’s future within the United Kingdom will be the most important decision we, as Scots, take in our lifetime. It is essential that the referendum is legal, fair and decisive. As a Government, we have been clear since May 2011 that we will not stand in the way of a referendum on independence. But neither will we stand on the sidelines and let uncertainty continue. Any referendum must let all of us in Scotland determine our future clearly and decide whether to stay part of the longest and most successful partnership of nations in history. That is why we are publishing a consultation to seek views on how to deliver a legal, fair and decisive referendum.
For a referendum to take place, legislation is required. This ensures that any referendum—on any issue—is subject to detailed consideration, debate and clear and consistent regulation. In 2010 the Scottish Government published plans to legislate for a referendum on independence. We have considered those plans carefully against the devolution settlement in Scotland as set out in the Scotland Act 1998. The 1998 Act is clear: the Scottish Parliament cannot legislate on matters reserved to this Parliament. Among the issues that are reserved is the constitution, including “the Union of the Kingdoms of Scotland and England”. Any Act of the Scottish Parliament that “relates to” a reserved matter is quite simply “not law”. Whether or not a Bill “relates to” a reserved matter depends on its purpose and effect.
We are clear that the Scottish Government’s purpose in bringing forward a referendum is to secure independence. Their intended effect is to secure a mandate for negotiating this. Both purpose and effect relate directly to the reserved matter of the union. Any distinction between a binding or advisory referendum is artificial. As the law stands, an independence referendum Bill is outside the competence of the Scottish Parliament. A Bill could be challenged in court and it is our view that the Scottish Government would lose.
So the consultation paper I am publishing today sets out different ways to deliver a legal, fair and decisive referendum. It explains how the powers for a referendum could be devolved under the Section 30 order-making provisions in the Scotland Act 1998— our preferred approach. It also invites views on devolving the powers using other legislation, including the current Scotland Bill, and for opinions on the possibility of running the referendum directly.
Given the clear legal problem that exists, we want to work with the Scottish Government to provide the answer. This is not about the mandates of Scotland’s two Governments or who calls the shots. It is about empowering the people of Scotland to participate in a legal referendum. That means that the UK Government are willing to give the Scottish Parliament the powers to hold a referendum which it otherwise cannot do legally.
But as well as being legal, a referendum must be fair and it must be decisive. For those reasons, the rules of the referendum must be demonstrably above board. The referendum should be overseen by those who have neutrality and the proven expertise to inspire confidence in the fairness of the process, such as the Electoral Commission.
But these issues are not for politicians alone to consider. That is why the consultation process that starts today will let people express their views on when a referendum should be held, what question should be asked, who should be entitled to vote and how the campaign should be run.
It will be open to all people in Scotland—and indeed outwith Scotland—to make their views clear, rather than rely on the opinions of politicians. It is in everyone’s interests that the two Governments take on board the needs of Scotland and the opinions of its people, work together and deliver the legal, fair and decisive referendum that is in our common interests.
This Government believe passionately in the United Kingdom. For over 300 years, our country has brought people together in the most successful multinational state the world has known. This Government are clear that independence is not in the interests of Scotland. The United Kingdom brings strength to Scotland and Scotland brings strength to the United Kingdom.
We recognise that this is not a view shared by all. But politicians from both sides of the debate owe it to everyone in Scotland to ensure that the referendum is delivered in a legal, fair and decisive way. The future of Scotland must not be worked out in secret, behind closed doors, nor determined by wrangling in the courts. It is my task to ensure that this referendum is made in Scotland, by the people of Scotland, for the future of Scotland. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Lord Davidson of Glen Clova
I thank the noble and learned Lord for repeating the Statement and add my gratitude for its notice. I trust that this will be a precedent for future practice.
The Statement is welcome, clear and, up to a point, informative. It opens discussion of what for too long has been either ignored or suppressed—namely, the legality of the Scottish Government’s proposals for a referendum. It should also have the benefit of obliging the Scottish Government to engage in open discussion on this important constitutional issue. It appears already to be succeeding at least in getting the First Minister to say that he will reveal within days his constitutional plans, which people have been asking him to reveal for quite some time. There is no doubt that the referendum will take place and what we must now do in all parties is work together to ensure that it is fair, legal and commands the respect of people in Scotland.
The democratic rights of people resident in Scotland have recently been prayed in aid by the Deputy First Minister. Democratic rights throughout the UK of course rest on the rule of law. That such an important issue be dealt with in a clear and lawful manner is something that all interested in democracy have a right to expect. The legal position should surely have been clear to all for some time but this has apparently not been accepted in certain quarters. On such an issue, frank and open discussion is the lifeblood of democracy. Secrecy and obfuscation may be clever gamesmanship, but they help no one, least of all the Scottish electorate, to understand complex constitutional issues.
The Government are to be congratulated on expressing their legal understanding openly and clearly, and we wait to see whether that openness is reciprocated by the Scottish Government. What, it may be asked, is the position of the Scottish Government on the legality of the Scottish Parliament proposing a referendum? There have been curious twists and turns as to how a referendum might be likened to an opinion poll and somehow have nothing to do with the constitution. That has been recognised as obvious nonsense.
The Scottish Government have a duty to make clear their position in relation to the legality of their own referendum, opinion poll or whatever. Anything less leaves them open to accusations of dissembling and trickery. The Government have made clear the view of UK law officers on this issue. Surely we are now entitled to know the view of Scottish law officers. If there were any genuine dispute, the issue might be taken to the Supreme Court for resolution. If there is no such genuine dispute, we can all get on with discussing, in a mature and less rancorous manner, how the referendum is to be organised for the benefit of all concerned.
I have five questions for the noble and learned Lord. First, if the Scottish Government produce contrary legal advice regarding the legality of the referendum, will the Government take the issue to the Supreme Court?
Secondly, Her Majesty's Government propose a Section 30 process to devolve powers for a referendum as their preferred option. But that, as with a Legislative Consent Motion, might give the Scottish Parliament a veto. Are the Government not anxious to avoid any such veto and has that been considered? Thirdly, as the noble and learned Lord will be aware, the First Minister says that he wishes to extend the franchise for his referendum—but only that—to 16 and 17 year-olds. Will the proposed consultation look at this issue and at whether only those resident in Scotland may vote?
Fourthly, the time limit within which the referendum was to be held appears to have been dropped. This seemed important. The Prime Minister said on Sunday that 18 months was to be the time limit, but during the week that appears to have been departed from. Why was that?
Finally, on the consultation itself, it surely has to be done properly rather than quickly. Eight weeks seems to be a somewhat abbreviated period for consultation on such an important issue. Why was that period chosen? As the Minister knows well, Calman provided a good model for consultation. Will Her Majesty's Government follow that model?
Lord Wallace of Tankerness
I am very grateful to the noble and learned Lord for his welcome of this consultation. I share many of the views that he expressed, not least that any Government of any Parliament on any mandate must operate within the rule of law. That is one of the fundamentals of our democracy. Clearly, too, simply having a straw poll on the day of someone's choosing would not amount to what we understand properly to be a referendum. That is why the Government take the view that any proper referendum is outwith the competence of the Scottish Parliament. That is why we have set out our view on how we might move forward.
I certainly agree with the noble and learned Lord that it would be in everyone's interests, particularly in Scotland but also in the wider United Kingdom, if these matters could now progress, in his words, “in a mature and less rancorous way”. That is certainly our hope and our intention by publishing this consultation.
The noble and learned Lord asked whether, if the Scottish Government produce conflicting legal advice, it would be referred to the Supreme Court. As he knows, the reference to the Supreme Court would fall on any legislation. The whole purpose of this consultation is to try to avoid that situation so that any legislation passed by the Scottish Parliament is within the competence of the Parliament because provision will have been made for it. That is the way of progressing in a mature and less rancorous way. It is in everyone's interest to avoid any legal uncertainty. In White Papers that were produced during the previous term, the Scottish Government themselves recognised that there was some uncertainty. What we are proposing in the consultation with our preferred Section 30 order is a way of ending that legal uncertainty.
The noble and learned Lord asked whether we had considered the possibility that the Scottish Parliament could veto our Section 30 order. That is obviously the case. A Section 30 order must be passed by both Houses of this Parliament and by the Scottish Parliament before being presented to Her Majesty in Council. Clearly, there would be an opportunity for that not to be passed by the Scottish Parliament. However, the whole point of having the consultation and of engaging not just with the Scottish Government and Scottish Parliament but with wider interests in Scotland is to try to avoid that situation, so that if a Section 30 order is brought forward it is one that can command consent and support.
With regard to the franchise, the noble and learned Lord will note that in the consultation document a question is raised about the franchise. It has been suggested by the First Minister that 16 and 17 year-olds may vote. The view of the Government is that the preferred franchise for the referendum is the one that we currently use to elect the Scottish Parliament. It seems perfectly reasonable, if that is the franchise to elect the Scottish Parliament, that it should be the franchise used for a referendum. Obviously, there are wider issues about whether 16 and 17 year-olds should have the vote. No doubt they will be properly debated in time, but it is not a matter to be debated in the context of this referendum. We asked the question but our view is that the franchise for the Scottish parliamentary elections makes the best franchise for a referendum.
With regard to time, the Government have always said that the referendum should happen sooner rather than later. If the Scottish Government work with us during the consultation process and we go down the route of the Section 30 order, it is possible that these powers can be used to deliver a legal referendum sooner rather than later. But this is a consultation and we are seeking the views of people about how best to deliver a legal, fair and decisive referendum, including when the referendum should take place.
Finally, it is explained in the eight-week consultation document that it is eight weeks because while our preferred option would certainly be to use a Section 30 order there is also the possibility of using primary legislation. The obvious vehicle for primary legislation is the Scotland Bill currently before your Lordships’ House. The House will recognise that there are time constraints on that, but we think that the issues here are very clear. It is not as if the points brought together in the consultation document are ones that nobody has been discussing, although the Scottish Government have perhaps not contributed too much until now. If they are about to produce their own response to this, that is a good outcome already from the consultation document. I think that the issues are clear and one would hope that we could get a wide range of Scottish opinion within the eight weeks and still allow the opportunity, if that should be the case, for the Scotland Bill to be used.
Lord McConnell of Glenscorrodale
My Lords, I accept absolutely the sovereignty of the people of Scotland on this issue, but I hope that they will exercise their choice to stay part of a multinational and multicultural United Kingdom. I agree also that there is a need to end the uncertainty and clarify fair rules around any referendum on independence for Scotland. However, I counsel the Government against falling into a nationalist trap, as they will wish to portray the Prime Minister—to amend a phrase used elsewhere in recent years—as going from Mr Bean to Stalin in relation to Scotland. It is vital that all of us ask both Governments to get around a table and agree the rules for the referendum and agree them properly and fairly. Will the Minister address his colleagues in Government on that issue and urge them to get involved not in a shouting match but in practical and concrete discussions that produce an end result? Does he agree that the 1979 referendum result in Scotland was not accepted by everyone in part because it was created in a divisive manner and the campaigns were executed in a divisive manner? The 1997 referendum result was accepted by everybody, including by everybody who opposed it, because the rules were agreed fairly and there was consensus about how it was done. Does the Minister agree that that is the way forward for Scotland, and that we have a result that is clear but accepted afterwards because every party and everyone involved has been engaged in the discussions about the creation of that referendum in the first place?
Lord Wallace of Tankerness
I thank the noble Lord for that contribution. I certainly entirely endorse the latter part of what he has just said. Having campaigned in both the 1979 and the 1997 referendums, I am certainly clear that the fact that in the 1997 referendum the campaigns and the rules were very clear and nobody had any cause to say that there was any jiggery-pokery, or that the goalposts were being shifted, meant that those on the losing side nevertheless felt able to accept the outcome. That is the goal that we all want to see in this. I say that in terms of the earlier part of his question, too. Anyone who reads the consultation paper will see that it is by far and away not a Stalinist document but one that invites consensus and provides a route map towards consensus. That is the spirit in which it is offered to the people of Scotland.
Lord Forsyth of Drumlean
My Lords, I congratulate the Prime Minister and my noble friend on this initiative. Could he help me with something that is causing me some bewilderment? The SNP manifesto, on which it got 45 per cent of the vote, says:
“We will give Scots the opportunity to decide our nation's future in an independence referendum”.
In that case, why is this initiative by the Government so unpopular with the Scottish nationalists?
Lord Wallace of Tankerness
That is a very fair question. I cannot understand why they would not wish to have the proposal to allow them to achieve their manifesto goal in a legal way, given that back in 2009 the First Minister was calling for a referendum in November 2010. Here we are providing a legal route. But the means of making it fair and decisive are perfectly reasonable proposals on which we are consulting, and I very much hope that on reflection the Scottish Government will agree that this is a proper way forward and will enter into the consultation in that spirit. This is not just a consultation for Governments; we hope that people from all walks of life, in Scotland and furth of Scotland, will also respond.
Lord Sewel
As one of those who sat for many hours and nights and days and months—it sometimes felt like years—trying to secure the passage of the original Scotland Bill through your Lordships' House, I welcome this bold Statement by the Government. It is absolutely right; if anything, it is slightly overdue.
On two particular issues, first, can I observe that it is important that there is a time limit to the referendum? It is absolutely vital for the future of Scotland that the matter of independence is settled quickly and clearly without doubt. It is holding back the whole progress of Scotland economically and socially, and that must be resolved.
Secondly, on the franchise, I would have thought that the answer was simple. If you want effectively to replace or modify the Scotland Bill, the franchise ought to be the same as the one that was used to secure the proposals on the referendum in the White Paper at that time.
One great advantage of the Government’s proposal is that it will avoid the dreadful situation and ultimate catastrophe whereby, if the Scottish Parliament played the matter long and it reached a stage where a referendum was about to be called, any individual could take the Parliament to the courts on the basis that the proposal was outwith the vires of the Parliament. That would be a most unsatisfactory situation. It is important to make the vires issue absolutely clear, and I think that the Government are absolutely right in drawing attention to the vires being decided on purpose and effect. That deals with the whole vires issue. If the constitution is reserved, anything to do with constitutional change, because it is purpose and effect, must also be reserved.
I come on to a slightly sensitive issue—
Lord Sewel
Does the Minister recognise that one problem is that for too long all the political parties in Scotland have refused to confront the issue and failed to challenge the fact that the present First Minister in Scotland has asserted that this is a function of the Scottish Parliament when clearly it is not?
Lord Wallace of Tankerness
My Lords, I certainly am very grateful and appreciate the support and welcome that the noble Lord has given, not least because of the very important role that he played in delivering the Scotland Act 1998 through many sittings in your Lordships' House. He asked about the timing, and clearly one could pray in aid comments from professional bodies, including the CBI Scotland. However, it is almost common sense and self-evident that at a time of otherwise considerable economic turmoil and concern, businesses, which in making investment decisions look to the long term, will factor in questions of uncertainty as to whether Scotland will or will not be part of the United Kingdom and, if not, whether it will have the euro or the pound. Clearly there are uncertainties there, which is why the Government, including a number of my ministerial colleagues, have expressed a view that we would prefer to see this referendum sooner rather than later.
The consultation paper sets out some of those factors and invites comment from people in Scotland as to the timing for the referendum. I hope that not only the United Kingdom Government but the Scottish Government will have regard to those responses.
I will not follow the noble Lord down his final path, because I do not believe that while we are trying to move forward and get a legal, decisive and fair basis for a referendum, and to have a campaign which those of us who firmly believe in Scotland's future in the United Kingdom want to co-ordinate and act on together, it is the moment for criticising parties north of the border.
Lord Steel of Aikwood
My noble and learned friend knows that I did not take any part in the last Scottish elections, because I was following the advice of the late Lord Weatherill and the noble Baroness, Lady Boothroyd, that as a former Presiding Officer I should not take part in party political activity, but that did not mean that I was not watching what was going on. Does the Minister agree that what happened was that the SNP leaflets, and indeed the ballot paper, did not say, “Vote SNP for independence”? They did not even say, “Vote SNP for a referendum”. They said, “Vote SNP for Alex Salmond as First Minister.” Objectively, I thought that was rather successful. However, the idea now that there was some kind of mandate and that people were rushing into the polling booths to authorise the SNP to organise a referendum—and to decide who should vote in it, what the question is and when it should be held—is complete nonsense. Their manifesto did not even refer to the timing coinciding with Bannockburn, so let us get rid of this mandate theory.
The Government are right to come forward with a consultation paper. I agree with the noble Lord, Lord McConnell, that what will scunner the people of Scotland is if we spend the next three years discussing these issues instead of getting on with getting the two Governments together to work out a sensible way of letting the people of Scotland decide their future as soon as possible.
Lord Wallace of Tankerness
I certainly know why my noble friend did not participate, having been a former Presiding Officer. I had some participation in the Scottish elections as an observer, and it is probably right to say that whether or not Mr Salmond was the best of the party leaders to be First Minister seemed to resonate in the debates more than the question of independence. Nevertheless, it has been the policy over many years for the Scottish National Party to have a referendum on independence. That clearly was in its manifesto and the United Kingdom Government have, since May last year, indicated that we recognise that. The timing was certainly not in its manifesto but, as I think my noble friends Lord Forsyth and Lord Steel said, the SNP said that it wanted a referendum on independence and we are trying to ensure that it gets one. What could be fairer than that?
Lord Foulkes of Cumnock
My Lords, we should all welcome this decisive action by the Government, which has helped to fill a vacuum that was there in putting the unionist case. However, in the consultative document there is one matter that causes me some doubt. Why is there any question about who should oversee the referendum? Surely, it must be the Electoral Commission that decides the wording of the question, how much money should be spent by each side and all the other aspects. Surely, that does not need consultation.
Perhaps I may ask a practical question in relation to the consideration by this House. Since the consultation finishes on 9 March and we are due to go into Committee on 26 January to consider the Scotland Bill, and since some of us have put down a number of amendments—indeed, I have put down one in relation to Section 30 that is exactly what the Government are proposing—are we really going to go ahead with the Committee stage on 26 January? It will really be a false debate that is taking place when we know that this consultation is under way. It will be going through the motions without any real substance to the debate. I hope that the Government will now consider postponing consideration in Committee as a result of that.
Lord Wallace of Tankerness
My Lords, with regard to the noble Lord’s first question, it is very clear on page 16 of the consultation document that the United Kingdom Government believe that the Electoral Commission should oversee any referendum on Scottish independence. Indeed, we have included provision in the draft Section 30 order which is appended to the consultation document. However, we put the question because this is an issue which the Scottish Government have called into question. It is something that should be consulted on, but the UK Government make it very clear that we believe that the body best equipped to oversee this, with a track record of overseeing impartially and fairly, is the Electoral Commission.
With regard to the timing of business, as a non-business manager it is always very difficult to embark into that territory. However, the consultation will be current because there are issues other than the question of the noble Lord’s amendments, and amendments tabled by other noble Lords, with regard to independence. There are other issues to be debated in Committee. Also, it would not necessarily do any harm to air some of the issues—perhaps in more detail, which we have in this consultation—and of course there will still be the Report stage to come back to, by which time we will have had the outcome of the consultation.
Lord Lang of Monkton
My Lords, I add my welcome to this Statement, which is absolutely excellent. I welcome its clarity and its tone. I welcome its firm and fair sense of purpose, particularly with regard to the timing. I hope that the absence of a reference to an 18-month time limit in no way suggests that the enthusiasm for speed has diminished in the hands of my noble and learned friend and my colleagues in Government.
However, whatever became of Braveheart? Last February, the Scottish National Party put out a policy document, which I am told said that it would hold a referendum as soon as possible. Now, less than a year later, it seems to have disappeared into the mists of time, so it is Braveheart to shrinking violet in less than one year. I hope that my noble and learned friend will press on, for the reasons that the noble Lord, Lord Sewel, gave. The Scottish economy is undoubtedly suffering and will continue to suffer as a result of the uncertainty which is happening. Investment is falling, inward investment is low and company formation is very low. Unemployment is rising faster in Scotland than elsewhere in the United Kingdom. We need firmness, clarity and a modicum of speed, provided always that we can ensure that all the facts and reality of the figures and consequences for Scotland are laid clearly before the people before a vote is taken. That requires independent verification by some kind of body, as my noble friend Lord Forsyth has suggested in the past.
Lord Wallace of Tankerness
My Lords, I am very grateful to my noble friend for his welcome for the approach which we are taking. As I indicated in my response to the noble Lord, Lord Sewel, it seems to be self-evidently the case that a question of Scotland's future within the United Kingdom is a cause for uncertainty as long as it remains unresolved. That indeed is why my ministerial colleagues and I are of the view that a referendum held sooner rather than later would be better. That is stated in the consultation but we thought it important that other people in Scotland, and indeed outwith Scotland, get the opportunity to express their position on the view.
My noble friend referred to Braveheart and shrinking violets. I note that in the Scottish Government's White Paper, Your Scotland, Your Voice, published in November 2009, the First Minister said:
“It is now time for the voice of the people to be heard—in the referendum on Scotland’s future we intend to hold in November 2010”.
Their manifesto for the 2010 elections said:
“We are taking forward a Referendum Bill in the Scottish Parliament this year”.
I just observe that it seems rather odd that when they were in the Scottish Parliament without a majority, they were wanting a quick referendum but when they can actually deliver it they want to delay it.
Baroness Liddell of Coatdyke
My Lords, it is self-evidently right that there should be a referendum that is legal, fair and decisive. The worst possible outcome for Scotland and for the union would be to have a conclusion that was narrow and that people believed had been rigged in some way. For that reason, I welcome this Statement and the consultation document. However, the rather intemperate response that we have seen from the Scottish Administration really gives one cause to question whether there had been any discussions with the Scottish Government prior to the publication of this document. If not, why not, and if it should prove to be true that the First Minister has said that he would boycott this process, what then would be the view of the Government?
Lord Wallace of Tankerness
My Lords, all I can say is that there has been ongoing discussion between Ministers of this Government and the Scottish Government since May of last year on a whole range of issues, including those relating to the Scotland Bill and UK Ministers trying to ensure that they can get some information from the Scottish Government about the referendum. I do not think that the details of this specific consultation document were discussed in detail but we have certainly been challenging the Scottish Government to indicate to us how they think that they could deliver on their manifesto commitment.
On the boycott, I very much hope that that will not happen and that people will realise in Scotland that what is being proposed here is a way forward. My noble friend Lord Forsyth expressed it absolutely succinctly: what is happening is a way forward for them to have their policy delivered in a legal way without it being challenged in the courts, which would be in no one's interest. That would lead to uncertainties and bad feelings, and perhaps be an indecisive outcome. That would be in no one's interests. Perhaps, in the cold light of day, it will be seen that what is proposed here is a sensible and very reasonable way forward. I hope that sense and reason will prevail.
Lord Stephen
My Lords, I would like to probe further the fury of the SNP on this issue. Will the Minister confirm that these proposals merely aim to create a fair, appropriate and legal framework that will allow a referendum on independence to take place—a referendum that will in fact be organised by the Scottish Government on terms fixed by the Scottish Parliament, all as promised by the SNP? Will he confirm that Alex Salmond and his Ministers will be able to set the wording of the referendum question, provided that the Electoral Commission agrees that it is not biased, rigged or gerrymandered in any way?
What is the SNP moaning about? As the consultation document makes clear, the most recent Scottish Government document on all this said that they wanted to have a referendum as soon as possible—and a referendum on independence, not on devo-max or on anything else. That is not, I remind the House, SNP policy. Is it not the truth that Alex Salmond is now desperate to have a second question to give him and his party an emergency escape route from the political meltdown that he will face when he loses a vote on independence? We should not give him that lifeline.
Lord Wallace of Tankerness
The simple answer to that is that we want a decisive referendum, and one of the key means of delivering that is to have one question. That is why the draft order that we propose makes provision for just one question. It would allow for provisions in relation to the UK Parliament for UK-run referendums to be applied to the Scottish Parliament and the Scottish Government, but we believe that that one question will resolve matters and we should not be muddying the water with devo-max—whatever that means. No one has a clue what it means; it was not in the SNP manifesto. What was in that party’s manifesto was a question about Scottish independence, and that is what we believe we are assisting the Scottish Parliament to deliver. I hope that the SNP will recognise that this Government are being very fair and reasonable in trying to achieve that end.
Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham
“( ) Before making arrangements under subsection (2)(c), a draft order with the proposed arrangements must be laid before, and approved by an affirmative resolution of, each House of Parliament.”
Lord Beecham
My Lords, after the nerve-tingling excitement of the debate on the previous amendment, we come to arguably more prosaic matters. The amendment deals with the provision in Clause 2 under which the Lord Chancellor would have the power to, as the Bill quaintly puts it,
“make such arrangements as the Lord Chancellor considers appropriate for the purposes of carrying out the Lord Chancellor’s functions under this Part”,
which is perhaps a little otiose. The crucial point arises under subsection (2), under which he may make arrangements for a variety of things:
“making grants or loans to enable persons to provide services or facilitate the provision of services … making grants or loans to individuals to enable them to obtain services, and … establishing and maintaining a body to provide services or facilitate the provision of services”.
The amendment would require any such arrangements to be made by way of an order that would have to be approved by an affirmative resolution of each House. That is consistent with the creation of what presumably, or potentially, would be a new quango—something that the Government have been at pains to dismantle wherever they have spotted one hitherto—and with the other provisions in Clause 2(2). It is necessary for there to be adequate parliamentary scrutiny of any such arrangements.
I confess to not having understood quite what the Government’s intentions are in respect of this clause; the Explanatory Notes do not live up to their title. Perhaps the Minister could sketch for us what in fact the Government have in mind regarding this provision. Do they propose to set up a quasi-Legal Services Commission? Will they set up some kind of Tesco law outfit that would be contracted to provide services more widely and perhaps on a less commercial basis?
What kinds of loans or grants are envisaged to individuals to enable them to obtain services? This is something of a novel concept—funding litigation by way of a loan from an organisation set up, presumably, by the Government. What sort of body is envisaged to provide services or facilitate their provision, given that the LSC disappears? None of this is apparent in the Bill or, as far as I can tell, in the Explanatory Notes, and it would be helpful if the Minister could enlighten the Committee about the ultimate intention.
Under Clause 2(5) there is a provision that allows the Lord Chancellor to make different arrangements under this clause—relating both to the matters to which I have referred and to remuneration, which we will come on to in a subsequent amendment—with regard to different areas in England and Wales, different descriptions of case and different classes of person. Again, it would be helpful to know what the Government have in mind. Would there be a different system of grants and loans according to different areas of law or in different parts of the country? What are the Government’s intentions, and how would they go about developing them? What consultations do they propose to hold, or indeed have they held, about this? In particular, what would be the impact not only on the legal profession but on the voluntary sector, law centres, Citizens Advice and other bodies? As I say, none of this is apparent in the Bill, hence this is something of a probing amendment. In any event, if the Government are to proceed along the lines sketchily laid out here, parliamentary approval for their proposals should be a prerequisite, and that is ultimately what the amendment comes down to.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, Amendment 7 seeks to require a novel situation whereby specific arrangements that the Lord Chancellor may make under Clause 2(2)(c) would have to be included in an order subject to the affirmative resolution procedure. I believe that it will be beneficial to expand on the purpose of the provisions in question before addressing the amendment itself.
The specific provision is designed to provide the Lord Chancellor with the powers to create a body to provide or facilitate the provision of services. In practice, this provision is included in the Bill to allow the Lord Chancellor to continue to provide services through the Public Defender Service. The PDS is a body established under the auspices of the Legal Services Commission that directly employs lawyers to provide legally aided criminal defence services, alongside solicitors’ firms in private practice that are contracted with by the LSC. This dual model tends to be used in areas where there have historically been issues with the level of availability of supply. The PDS must necessarily be distinct from the Lord Chancellor, given its role of defending individuals accused by the state of committing criminal offences.
Let me turn now to the proposed amendment. It appears to me a very novel suggestion that the legislative processes of these Houses would be used to consider arrangements that are not intended as legislative instruments but would nevertheless become so were the amendment to be adopted. The specific arrangements envisaged under this proposal—the continued provision of the Public Defender Service—do not and should not require parliamentary scrutiny. There is no question of protecting independence. Lawyers employed by the PDS are subject to the same professional obligations and ethical codes as those in private practice, regulated as they are by the Solicitors Regulation Authority. In addition to this, PDS lawyers are also subject to a PDS code of conduct, which is designed to help ensure independence. It is the Government’s intention that all current arrangements should continue under the new framework, including the PDS code of conduct.
This is explicitly dealt with in Clause 28, which provides for a code of conduct to be observed by civil servants and employees of a body established and maintained by the Lord Chancellor, the latter dealing with those individuals employed as part of the PDS. The PDS has operated unencumbered by interference since it was first deployed in 2001, and there is no basis for assuming that its continued operation should be in any way different under the revised framework before the Committee. I stress that this power will be used in law to re-establish the PDS under the new framework. However, in practice nothing will change: the PDS will operate in exactly the same manner and in the same locations, and it is not appropriate to use parliamentary time to endorse what is already in existence. Given those assurances, I hope that the noble Lord will withdraw his amendment. There is no need to put powers in the Bill to create the LSC’s replacement. This is a departmental administrative arrangement and the legal aid agency will be an executive agency of the MoJ.
Lord Beecham
My Lords, I am tempted to apologise to the Minister for not having the telepathic powers that would have enabled me to understand what the clause is about. It does not specifically refer to the Public Defender Service. Of course I accept the noble Lord’s explanation but it would be helpful if the Government were to amend the clause before we get to Report to make it clear that it is the Public Defender Service that is referred to. On the face of it, it could be any kind of arrangement that is being made, so, if I may say respectfully, it would be helpful for that course to be taken.
Lord McNally
If it would be helpful, I will write to the noble Lord to clarify and I will consult with colleagues on the point that he makes.
Lord Beecham
“( ) Before making regulations relating to the payment of remuneration to barristers and solicitors in accordance with subsection (3), the Lord Chancellor shall consult—
(a) the Bar Council;(b) the Law Society of England and Wales;(c) the Institute of Legal Executives; and(d) organisations representing the legal advice movement.( ) Where the Lord Chancellor makes regulations in accordance with subsection (3), he or she shall have regard to the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies.”
Lord Beecham
My Lords, the noble Lord may say that this amendment relates only to the Public Defender Service, in which case I suspect that my speech will be rather shorter than it might otherwise have been. The amendment refers to Clause 2(4), which refers to,
“arrangements for the purposes of this Part”—
not just this clause—
“that provide for a court, tribunal or other person to assess remuneration payable by the Lord Chancellor, the court, tribunal or other person … in accordance with the arrangements”.
The previous subsection provides that the Lord Chancellor may make such provision for remuneration by regulations. I apprehend that this will not refer to the Public Defender Service. If that is the case, I will proceed to outline the position that we wish to take.
On the assumption that this amendment is of general application, which appears to be the position, the amendment would require the Lord Chancellor to consult the Bar Council and the Law Society, which is the present position under the Access to Justice Act. In addition, it is suggested that consultation should take place with the Institute of Legal Executives, which is now a recognised and substantial body of contributors to the legal system, and with organisations that represent the legal advice movement—law centres and the like. These have, with cross-party support since their inception, played a growing and important role, again supplying legal aid and advice.
As we heard in the context of the debate on today’s first amendment—on expert witnesses—there is a potential issue about remuneration, which is linked to the possibility of maintaining an adequate supply of lawyers in this case, and to providing choice for consumers. Therefore, the amendment would make it necessary for consultation to take place, whereas the Government’s view is that it is not necessary to have that in legislation. They have indicated that they will continue to consult the Bar Council and the Law Society. We would say that consultation needs to be wider and that it needs to be statutory, rather than simply rely on the good will of the Government of the day. Consequently, any regulations that then come forward would also require approval.
Amendment 9 would make it a requirement—rather than, as matters presently stand, discretionary—for the Lord Chancellor to set and monitor standards of service in legal services. That seems a sensible provision, which would reinforce the need to ensure that there is access to advice that meets a standard. At present, under the legal aid scheme, certain quality standards have to be passed by practitioners and that should remain the case. Amendment 10 effectively reinforces that provision, again making it necessary for the Lord Chancellor or other persons to set and monitor standards of service under the Bill.
Amendment 11 refers to the need to consult the relevant organisations—the Law Society, the Bar Council and the Institute of Legal Executives—in devising and maintaining a system of accreditation for the purpose of providing legal services.
There is a question raised by Amendment 12, which as it stands would remove Clauses 3(4) and (5), which provide for the Lord Chancellor to charge for accreditation. This is designed to elicit a response from the Minister as to what the Government’s intentions are in this respect. It may be that charging for accreditation would act as a deterrent in certain areas, particularly perhaps in the voluntary sector and for law centres that would seek accreditation.
Amendment 104 again requires the Lord Chancellor to carry out consultation before making regulations in relation to criminal proceedings. He should consult with the Lord Chief Justice, the Director of Public Prosecutions and, again, the three legal bodies. There is a concern that the current pattern of reductions in support for organisations will impact on market sustainability, to use a phrase of the chief executive of the Legal Services Commission. People consider there is a danger that organisations will not survive, particularly in the voluntary sector. That is something on which the Government need to reflect when they are making regulations to secure the delivery of advice and support services.
The Access to Justice Act provides:
“When making any remuneration order the [Lord Chancellor] shall have regard to— … (a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies, … (b) the cost to public funds, and … (c) the need to secure value for money”.
That measure has commanded cross-party support for well over a decade. The thrust of these amendments is to ensure that that remains the case and to involve those who will be engaged in providing that legal advice and assistance in the regulations that the Lord Chancellor will be required to make regarding remuneration, the supply side of the service, as it were, and maintaining the quality of the service. I hope the Minister accepts that these amendments are designed to reinforce and support the system which the Bill seeks to create. I beg to move.
Lord McNally
My Lords, I note that the noble Lord spoke not only to Amendment 8 but to Amendments 9, 10, 11, 12 and 104. I hope that that was intentional. I am happy to reply to both groups. According to my batting order they were supposed to be spoken to separately. However, the noble Lord spoke to them so well that I am happy to reply to both groups. If anybody wants to speak to the group beginning with Amendment 9, I will sit down while they do so; otherwise, I will reply to both groups at the same time. I commend the noble Lord, Lord Beecham, on his splendid—
Lord McNally
Perhaps he would like to move the next four groups formally as well.
Amendment 8 seeks to achieve two things. First, it provides for the inclusion of provisions akin to those in Sections 25(2) and (3) of the Access to Justice Act in relation to the matters the Lord Chancellor must take into account when setting remuneration rates for barristers and solicitors in regulations under Clause 2(3), specifically,
“the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies”.
I realise that a number of the amendments that the Opposition have put forward have harked backed to the Access to Justice Act.
The second effect of the amendment would be to create a statutory requirement to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors. I recognise that the Delegated Powers and Regulatory Reform Committee drew the attention of the House to Clause 2(3) in light of the lack of a provision in the Bill equivalent to Sections 25(2) and (3) of the Access to Justice Act 1999. However, in our view Amendment 8 is unnecessary. In respect of factors the Lord Chancellor must take into account when making regulations setting rates of remuneration for barristers and solicitors, the matter specified in the amendment is naturally a matter that falls to be taken into account, along with other relevant considerations, when deciding how to set those remuneration rates, and it is therefore unnecessary to include a reference to them on the face of the Bill. It is also unhelpful specifically to list these factors when there will be a range of other factors that, in the particular circumstances prevailing at the time, also properly fall to be considered but may appear excluded, or be given a lesser status, by the proposed provision. I am sure that noble Lords will agree that, when making regulations setting remuneration rates, the Lord Chancellor should properly have regard to all the relevant considerations and give them appropriate weight and that the Bill should not imply otherwise.
In respect of the proposed duty to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors, we also consider this to be unnecessary. We will continue to engage the Bar Council, the Law Society and other representative bodies on remuneration matters wherever it is appropriate and constructive to do so. The absence of a statutory duty does not preclude this. With that assurance, I hope that the noble Lord will withdraw the amendment.
Lord Carlile of Berriew
If there are circumstances in which it would be inappropriate to consult the Law Society and the Bar Council about payments to be made to their members from public funds, will the noble Lord please explain to us what those circumstances are?
Lord McNally
No, my Lords. I go back to what I have said. Neither I nor my noble friend the Lord Chancellor wants to allow the Opposition to sprinkle the Bill with “must” in this respect. We need to apply common sense to this matter. I would be as hard put as him to find a reason why one would not consult such bodies—indeed, I would add the Institute of Legal Executives to the list. Common sense dictates that a Lord Chancellor would want to do this. I will give way but I add, to help the noble Lord with his next shaft, that that seems to me the sensible thing to do.
Lord Carlile of Berriew
I am very grateful to my noble friend and I apologise for interrupting him again but this is intended to be a shaft of light and not a bolt of lightning. Can he think of any circumstances in which a failure to consult ILEX, the Bar Council or the Law Society about their respective members’ pay would not be judicially reviewable? Surely, it is right that a failure to consult would provide a certain judicial review against the Government.
Lord McNally
One of the joys of this job is answering questions on the law posed by learned QCs. I honestly do not know whether that situation would be judicially reviewable. However, we do not think that it is necessary to include “must”. We have made it very clear that a sensible Lord Chancellor would consult these bodies and perhaps if some future—
Baroness Butler-Sloss
I am very grateful to the Minister but, speaking as another lawyer, the problem with “may” is that something may not take place. That is the point that the noble Lord, Lord Carlile, is making. If the Lord Chancellor has to do something, it is straightforward. However, if he may do something, he does not have to do it. The words used by the Minister may not actually meet the point.
Lord McNally
But if he “may” and he does not do it, again from my layman’s view and from what I gather my noble friend Lord Carlile was saying, that “may” would be tested by judicial review.
Lord McNally
The noble and learned Baroness asks that from a sedentary position. That is the position that the Government have come to. Again, my right honourable and learned friend at the other end of the Corridor will see this exchange. Whether or not this is a matter on which one should go to the wall, I do not know. I am not sure how many consultations went on with the previous Administration.
Lord Bach
I may not have been party to many of them, but I can assure the noble Lord that of course there were consultations with the various bodies representing lawyers of various kinds about payment. They did not always satisfy the lawyers involved, but the important point is that there was genuine consultation on these matters. For the life of me, I cannot see why the Minister cannot accept the amendment.
Lord McNally
The noble Lord knows very well why I cannot accept it, but I hear what has been said. If the noble Lord will withdraw the amendment and the position remains the same at Report, it is best that we return to the matter then. I cannot take it any further now. I also have a slight feeling that this desire to replace “may” wherever “must” appears is not always entirely helpful to good government, but we will see.
Amendments 9 and 10 seek to convert into duties the Lord Chancellor’s powers under Clause 3 to set and monitor quality standards, as well as to accredit organisations against those standards—here we go again. As I shall explain, these amendments are unnecessary. The current provisions in Clause 3 enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be either by the Lord Chancellor or by those authorised by the Lord Chancellor to do so. These powers are similar to those currently given to the Legal Services Commission in relation to the Criminal Defence Service and Community Legal Service.
The Legal Service Commission’s existing quality assurance standard is the specialist quality mark. This standard aims to demonstrate that organisations that hold a contract with the commission are well managed, provide a good level of client care and have systems in place to ensure delivery of good-quality advice. The Legal Services Commission also accepts the Law Society’s Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for its clients. Its successor will have the same job. The standards must be met and accreditation obtained prior to award of contract and throughout the lifetime of a contract. This compares favourably to the privately funded market, where these standards are not mandatory.
This is all done under the existing arrangements and ensures high-quality advice. There is no intention to derogate from the existing model in future under the provisions of this Bill and, accordingly, a duty to establish, maintain and accredit against quality standards is not required when the clear intention is to continue with the arrangements that have served the legal aid market and the quality of service delivered by that market so well under the current framework.
Amendment 11 concerns the Lord Chancellor’s power to make arrangements for the accreditation of legal aid service providers against quality standards under Clause 3. Specifically, the amendment seeks to require the Lord Chancellor to consult with the Bar Council, the Law Society and the Institute of Legal Executives prior to making arrangements for accreditation. This amendment assumes that the Lord Chancellor would seek to introduce a new accreditation scheme to replace the existing quality standards that must be met by a potential legal aid service provider prior to contracting with the Legal Services Commission—namely the LSC’s specialist quality mark and the Law Society’s own Lexcel standard.
In practice, it is highly unlikely that the Lord Chancellor would seek to develop a new standard. Legal aid providers are familiar with the existing standards, and these have worked well since the introduction of contracting to the legal aid sphere. Given their efficacy, and the inherent costs and time required to establish any new standard, there is no obvious need to develop and introduce one.
However, we cannot of course completely rule out the possibility that a new standard might be introduced at some point in the future under the provisions of the Bill. In that eventuality, the Lord Chancellor would, so far as it would be constructive and appropriate, engage with relevant representative bodies in the development and design of any such scheme. There is no need to make this a requirement in the Bill. The regulatory aspect of any such scheme would, in all likelihood, require engagement with the bodies mentioned in the amendment, as well as with the Legal Services Board and others—for example, the Institute of Advanced Legal Studies—to ensure that such a scheme was fit for purpose and had the support of the professions.
Historically, this engagement has always taken place and there is no reason to assume that the situation in the future would be any different. A recent example of this kind of collaborative working is the quality assurance scheme for advocates. The work was initially taken forward by the LSC and the Ministry of Justice, with the input of all relevant stakeholders, and is now being led by the regulators operating as a joint advocacy group. The JAG is made up of the three main regulators of advocates: the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards. This situation did not arise as a consequence of statutory requirement; it simply represents what is required in order to get any new quality standard established with the requisite support from the sector, and this would apply irrespective of the statutory framework under which any such scheme would be introduced.
Amendment 12 concerns the provisions in Clause 3 that enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for accreditation and monitoring of persons providing legal aid services. There are, of course, significant resource implications attached to the running of such schemes. These provisions would allow any accreditation body to meet its costs in carrying out any accreditation and monitoring function, which is entirely appropriate if they are to commit resources to such a function, and this reflects the current statutory provisions under the Access to Justice Act.
The same considerations arise in respect of where the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of that accreditation and the monitoring of the services that they provide. In conclusion, the provisions on charges for monitoring and accreditation are entirely appropriate and reflect the current statutory position.
Amendment 104 would require the Lord Chancellor to consult prescribed individuals and bodies before making regulation for criminal legal services for individuals involved in criminal investigations or proceedings. Clause 14 creates a power to make regulations that prescribe the advice and assistance that must be made available if the director has determined that a person qualifies for advice and assistance. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999 that require the Legal Services Commission to fund such advice and assistance as is considered appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings are distinct from those provided under Clause 12 to individuals arrested and held in custody. The services that we are talking about include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.
Lord McNally
No, I recognise a red rag when I see one. I will think about the point that the noble Lord made. I commend him for merging two groupings and ask him to withdraw the amendment.
Lord Howarth of Newport
Before my noble friend withdraws his amendment, perhaps I can ask the Minister a question. I am sure that the Committee is grateful to him for the full explanation that he has given in response to the amendments. He has assured the Committee that it is unimaginable that the Lord Chancellor would not consult regularly with bodies representative of those who provide legal services and he has insisted on the importance of due monitoring and accreditation—all processes no doubt designed to uphold standards. Can he give some account of how all those processes that he has said that the Government will undertake assort with something else of which the Lord Chancellor has made much? He said in his article in the Guardian on 20 December:
“This year we've begun deregulation of the legal sector, a change comparable in its possible impact to the Big Bang in the City in the 1980s”.
That suggests that there will be some very different procedures and that the relationship between the Ministry of Justice and the legal profession could become very different indeed.
In the context of the ministry's zealous desire to deliver substantial savings in public spending and its desire to break open some of the traditional structures and ways of carrying on, I wonder how the consultation, monitoring and continuing assurance of standards are to be reconciled with the exciting and radical new approaches that the ministry is developing.
Lord McNally
If I may say so, that is an extremely helpful intervention. One reason why my right honourable friend is reluctant to have these things battened down is that, as I have said from this Dispatch Box, the provision of legal services and the structures of the legal profession will be changed not by any radical zeal from the Ministry of Justice but by market forces and changes that are happening in our society. Much of what we have been talking about since the dinner break has concerned the machinery to be put in place, which very much replicates machinery already there but anticipates a more fluid situation in the legal profession.
That is why specifying named organisations and people could be dangerous. What must be clear is that the Lord Chancellor has those responsibilities, including the overriding one of protecting justice. I also invite the House to have some common sense: any Lord Chancellor or Secretary of State for Justice who tried to ignore or ride roughshod over the various bodies involved would soon come to grief.
I agree with the comment of the noble Lord, Lord Bach: successive Ministers will find that you can consult but you do not always agree. I am sure that there was not total agreement when the previous Government imposed cuts in various fees for parts of the legal profession. That is the nature of things. Any sensible Lord Chancellor would involve and consult those bodies. That makes the amendments unnecessary.
Lord Beecham
I am glad to have given the Minister the opportunity to buy one group of amendments and get another free. I am sorry that he has not accepted the offer. He twice used the pregnant phrase that this does not “preclude” consultation. If I may say so, that is a very negative way of looking at the responsibilities of the Lord Chancellor and a rather worrying phrase. It is not a question of not precluding; the Bill should lay down what is expected of the Lord Chancellor and what he should do.
The Minister has repeatedly objected to the substitution of “must” for “may” in my amendments. The word “must” is in Clause 1, which states:
“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.
In some ways, this is a mirror image of another debate that I am involved in, with other Members of your Lordships' House, on the health Bill. Many of us, including some on the government Benches, have been trying to secure that the Secretary of State for Health has the duty to provide health services. That aspiration is one which, in respect of legal services and legal aid as defined in the Bill, is embodied in the government's wording.
Given that, it is not enough for the Minister to say that the LSC has those powers now. After all, the LSC effectively disappears. The Lord Chancellor becomes the authoritative body for the provision of legal services. It seems to me sensible and in fact desirable to protect the Lord Chancellor from succumbing to the temptation not to consult properly or to do things in perhaps a rather rushed or narrow way either of his own volition or at the behest of the Treasury or other organs of government, looking, for example, to make savings very quickly and perhaps very radically. I dare say that that may not be the intention of the present Lord Chancellor but it would be better to protect him from the possibility of judicial review, to which the noble Lord, Lord Carlile, referred, in the first place by providing a clear responsibility.
I was rather worried by the Minister’s reference to market forces. This is, I suppose, a reference to the sort of Tesco law that we are beginning to see happening. It rather worries me that, particularly in relation to Amendment 104, which deals with the criminal justice aspect, market forces might be deemed to be fit and proper effectively to run the legal aid service, whereas in the particularly important area of public policy and justice there is no requirement to consult such responsible bodies and persons as the Lord Chief Justice, the Director of Public Prosecutions and the three legal professions. I do not think it is good enough just to say that any Lord Chancellor would do this. One would hope that that would be the case but I am not sanguine enough to accept that it is proper in dealing with these matters to leave it to the potential good will of a future Lord Chancellor.
I would hope that the Minister would recognise that there ought to be a duty here. It is something that, in the absence of any movement before Report, we will have to come back to, as we might with regard to some of the other aspects to which he referred—in particular, the issue of charging for accreditation. I can see some case for making charges but I can also see a strong case in the realm of the voluntary sector for a different scheme. I give way to the noble Lord.
Lord Phillips of Sudbury
Does the noble Lord not take some solace from the view expressed by my noble friend Lord Carlile and the noble Baroness on the Cross Benches that a Minister who ignored the obvious consultees would be susceptible to an effective judicial review? Is that not the best assurance that the noble Lord needs in order to rely on the present wording?
Lord Beecham
It strikes me that it would appeal to members of the Bar because it could be an endless source of work for them, but I do not think that that is the best way to make law—that is, leaving judicial review as an option and expecting that to act as a deterrent. Surely it is much better to have the duties clearly outlined in the Bill and placed on the person who has the statutory responsibility to secure the availability of legal aid and advice. It seems to me concomitant with that principal responsibility. I beg leave to withdraw the amendment at this stage but I may have to return to it at a later stage.
Lord Pannick
“( ) The Lord Chancellor must ensure that—
(a) the person designated as Director has such qualifications and experience in relation to securing access to legal services for individuals as the Lord Chancellor considers appropriate, and(b) the terms on which the designated person holds the post of Director are, as regard the making and termination of the designation and otherwise, such as to ensure the Director’s independence from Ministers of the Crown (subject to any direction or guidance given under subsection (3)) in relation to the carrying out of the Director’s functions under this Part.”
Lord Pannick
My Lords, this 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. The amendment arises out of a concern expressed by your Lordships’ Constitution Committee, of which I am a member, and it relates to Clause 4, which will transfer responsibility for the allocation of legal aid from the independent Legal Services Commission to the Lord Chancellor’s Department. Decisions on legal aid in individual cases will henceforth be taken by a civil servant, who will be designated by the Lord Chancellor as the director of legal aid casework.
At paragraph 15 of the Constitution Committee’s report, we expressed a concern as to whether there are sufficient guarantees of independence in the Bill for the director of legal aid casework. The Constitution Committee also noted with concern that Clause 4 says nothing about the qualifications and experience required for such a post. The Joint Committee on Human Rights has, in its report, similarly expressed concern about institutional independence from the Government so as to prevent an appearance of a conflict of interest when decisions are taken about the availability of legal aid and the Government’s decisions may be challenged.
Given the central importance of the functions that will be conferred on this director, it is, I suggest, appropriate, and indeed necessary, to include in Clause 4 provisions that recognise the need for the Lord Chancellor to focus his mind on these issues of qualification and independence. Amendment 13 is not prescriptive as to the details; it leaves the detail to the Lord Chancellor. However, it is essential that this important issue of principle is addressed in the Bill. I beg to move.
Lord Woolf
My Lords, as is always the case, the noble Lord, Lord Pannick, has summarised the arguments in support of the amendment with admirable clarity. There is very little that I can add but, looking at these provisions, I should have thought that the Minister—although he may prove me completely wrong—would say, “Of course, that’s exactly what I will do. I will see that the person appointed as director has the qualifications that I consider necessary. How could I do otherwise?”. Likewise, I should have thought that he would say that of course the director must be independent. However, I urge the Minister not to be led astray by some argument on those lines. It is significant that the committees have expressed the concern to which the noble Lord, Lord Pannick, referred with the view that the position should be clearer. I say respectfully that the committees were right to take that view. We are concerned here with access to justice, which is a fundamental constitutional right. Where a right of that sort is involved, it is appropriate that the position is dealt with clearly.
The issue of what sort of civil servant would be appropriate to fill a particular role is always difficult. I remember a time when it was automatically assumed that any Permanent Secretary in what became the Lord Chancellor’s Department would be a qualified member of the Bar or a qualified solicitor. That no longer happens; the days when a barrister or solicitor would perform that role are past.
It is a different type of task that the director will perform. He will have the say-so in determining who is given access to justice—because without legal aid there may be no access to justice, and we all know that that would be a very worrying situation. Therefore, perhaps the Minister will recognise that, irrespective of the good intentions of an officeholder, sometimes it is of benefit if the person concerned is familiar with the subject involved. The experience of senior civil servants filling roles of this sort is that often departments do not feel comfortable with the independence of one of their civil servants who has been—if I may put it this way—seconded for a time to fill an office such as the one about which we are talking. In that situation it is very easy for a department to start giving instructions to “one of their own”—a civil servant whom they see as belonging to the department.
I hope that the Minister will forgive me if I give an example that occurred just before Christmas in connection with the Bill and which caused me to write to him on behalf of two of my noble friends who, with me, wanted to get the assistance of the chief executive of the NHSLA, Steve Walker. A later amendment suggests that there should be a process and a safety net to ensure that, where there might be a claim for medical negligence, a medical report should be obtained prior to litigation being started. We wished to have the advantage of the great experience of that official but were told politely and courteously that he would not be able to give us that assistance because the subject was too political for him to become involved with. I was very surprised and I am now glad that the Minister has properly responded to my concerns—although I have not received his letter—and that the position has been rectified. However, it illustrates how easy it is, when a senior civil servant is on attachment in a role such as that of the director, for those who are experienced in a department not to appreciate how important it is not to interfere with the independent way in which the individual performs their functions. Therefore, these amendments are sensible and I hope that the Minister will feel able to accept them.
Lord Faulks
My Lords, I, too, support the amendments. I will be brief, as the reasons were so admirably summarised by the noble Lord, Lord Pannick, and by the noble and learned Lord, Lord Woolf. The post of director will be critical for the preservation of whatever is left of legal aid. The concern of the committees was that there was at least the potential for conflict, as has been outlined, because the director might seek to follow the direction of the Lord Chancellor and not be suitably independent.
May I give your Lordships an example of how important the director’s powers may be and of how important it is that he or she should be seen to be independent? He will have to determine whether a case falls in the so-called exceptional cases category under Clause 9. I understand that the Minister may well be telling us in due course that this category and the availability of legal aid for exceptional cases is an effective answer or partly an answer to the apparent deprivation of access in relation to clinical negligence. I think that some of your Lordships may need some satisfying in this regard, but that I believe is one of the answers to the apparent lacuna.
Whether a case falls within the exceptional case category is bound to be somewhat controversial. Even the current decision-making exercised by the LSC is not short of critics. However, if a director is seen simply as doing the bidding of the Lord Chancellor at the relevant time, confidence in his independence will be significantly undermined. If a Lord Chancellor—not this Lord Chancellor, of course—were to decide that too many claims were being brought against government departments or the NHS, he could, at least in theory, give some rather firm guidance to the director on the process of determining such exceptional cases. Therefore, I suggest that it is vital that decision-making about the availability of legal aid should be seen not to have even the appearance of being at the whim of the Lord Chancellor or Cabinet colleagues but rather to be the proper determination by a suitably qualified director on grounds not of political expediency.
I dare say that this is very much what the Government’s true understanding of the director’s role is, in fact, to be, in which case I hope and expect the Minister to welcome these amendments, which set out, I hope in clear terms, what may be the underlying intention of the Government about the role of the director and his or her independence.
Lord Phillips of Sudbury
My Lords, I speak to Amendments 14 and 16, where my name is coupled with those of my noble friends Lord Thomas of Gresford, Lord Carlile of Berriew and Lord Macdonald of River Glaven—I am sure that the Committee will recognise that we are four hardened lawyers. I concur entirely with what has been said so far. There is no question but that the world we live in is more and more a legalised world, where law and politics are often hard to disentangle. Therefore, the need for absolute independence—not only actual independence, but perceived independence as well—must surely be to the benefit of all concerned, including the Government themselves, because if the director of legal aid casework is thought by the media to be in the pocket of the then Lord Chancellor, what good does that do anyone?
I shall add something that is a difficult point to make because I would not for one second wish any negative conclusions to be drawn vis-à-vis the Lord Chancellors whom we have had since the reform. As noble Lords will remember, in the late 1990s, holding that great post was made no longer the monopoly of a senior judge. I believe now, as I believed then, that there are some disadvantages attached to that constitutional change. I believe that it is possible to conceive of a Lord Chancellor who is not in all truth well equipped to deal with the issues implicit in this part of the Bill. That is another reason why I think that all the amendments in this group are to be supported, including Amendments 14 and 16.
I would also quickly add that Sir Bill Callaghan, who is chair of the Legal Services Commission, which is about to be abolished, has warned in very strong terms against there being any possibility of political influence on the difficult decisions that the director of legal aid casework is bound to have to take as time goes by. I think that we should listen to what that gentleman, who has been through this mill, is saying. It is a point of view supported not just by the Joint Committee on Human Rights but also strongly by my professional body, the Law Society, and, indeed, I think, by anyone else who has taken the trouble to consider this matter.
I end by briefly sketching out the purport of Amendments 14 and 16. Amendment 14 explicitly requires the Lord Chancellor to make available independent assistance to the director of legal aid casework in the work that he or she has to do, and Amendment 16 stipulates that the Lord Chancellor not only cannot give binding directions or guidance on individual cases but cannot do that in relation to arms of the state. The amendment makes it clear that there cannot be any direction or guidance in relation to,
“the Crown, Government department, executive agency or non-departmental public body”,
where any of those is a party.
I will rest my case at that, except to say that, having reviewed the Bill and the amendments down tonight—and we may want to look at this again on Report—I really wonder whether it is wise in these circumstances to allow the Lord Chancellor to direct the director of legal aid casework as to how he or she shall carry out his or her function other than in respect of a specific case. As far as I can see, although the directions to be given by the Lord Chancellor have to be published, they are not subject to any oversight by this place. In the extremely sensitive world of law, prosecution and legal aid, that power of direction seems dangerous. I hope that my noble friend will take all these amendments to heart and come back to us at the next stage with a concession that deals with the central issue.
Lord Howarth of Newport
When the Minister replies, will he assist the House by telling us what will be the manifestations of the independence of the director of legal aid casework? For example, will the director produce an annual report to be laid before Parliament or in some other way made accessible to the public? Will he be free to make public comments, publish articles or take part in discussions on the radio or television? How will we know that he is independent? What will be the safeguards against him being dismissed by the Lord Chancellor for reasons of political convenience? We all remember the unhappy circumstances in the mid-1990s when the Home Secretary of the day dismissed the director-general of the Prison Service. This relationship may not be analogous; on the other hand, it would be helpful to be reassured that it could not be analogous.
Baroness Butler-Sloss
My Lords, there is a very real difficulty about the whole of Clause 4 because there is nothing in it that suggests that there is any degree of independence in the director, other than in subsection (4). I respectfully agree with all noble Lords who have spoken so far about the absolute necessity of having the word “independence” in a clause of this sort. Without it, the clause does not show that the director would be independent on general issues as opposed to specific cases.
Baroness Prashar
My Lords, I, too, support the amendments, particularly Amendment 15 in my name. I concur with all the comments that have been made so far because I am particularly concerned about the independence of the director of legal aid casework. Institutional pressure can work in very subtle ways. The director will be a civil servant and the new executive agency will be much more closely integrated into the machinery of government and subject to supervision by the Ministry of Justice. We know that the pressure to save resources can bear on individuals and therefore it is very important that there is a constant reminder that this person not only is independent but acts independently. Therefore, we need to build in some safeguards. While I am on my feet, I would like also to say that the other safeguard is the one in Amendment 18, which is about showing that the decisions made by the casework director are actually reviewed. I strongly support both these amendments. They are very sensible and I hope that the Minister will give concessions on them.
Baroness Howe of Idlicote
My Lords, as another non-lawyer, perhaps I may join in very briefly. I have listened to everything that has been said on this point, and what the noble Lord, Lord Phillips, said is particularly important. The Lord Chancellor has a different role. He might not have all the legal discipline of a lawyer, if he is not a lawyer.
I should like to make another point on the importance of independence that people are unfolding at this time. It illustrates the extent to which, if we cram everything into such a short space of time and so many Bills overlap—I am thinking about the Welfare Reform Bill and this Bill—it tends to leave us all wondering just how many amendments should be grouped together and whether they are being given the proper consideration that they should have. I very much support the intentions behind this group of amendments.
Lord Thomas of Gresford
The issue that concerns me in Clause 4 is subsection (3). Under subsection (4):
“The Lord Chancellor may not give directions or guidance about the carrying out of … functions in relation to individual cases”.
That is fair enough, but he must,
“comply with directions given by the Lord Chancellor about the carrying out of”,
his “functions”, and he must,
“have regard to guidance given by the Lord Chancellor about the carrying out of”,
his “functions”.
What does that mean? Does it mean, for example, that the Lord Chancellor can phone the director or call him into his office and say, “Now, look here, you’ve got far too many of these judicial reviews going through in relation to government business. I am not telling you about any particular case, so I am complying with subsection (4). But when it comes to subsection (3), would you please bear in mind that my guidance is that we have got too many of these cases? The judges are complaining. The lists are full.”? What exactly is intended by Clause 4(3)?
Lord Bach
My Lords, we have heard short but very impressive speeches on this very important group. Clause 4 is particularly important and it is absolutely vital that the Government get this right. We want to help them get it right all across the House. I hope that the Minister will have some freedom of manoeuvre on this matter, which is, in the end, a matter of some principle.
Perhaps I may start by commending the Government for bringing the Legal Services Commission inside the Ministry of Justice. When we were in power, we set up the Magee committee to produce a report on whether that would be an appropriate thing to do. It seemed to us at the time, and clearly to this Government, that there were a number of very good reasons why it is not satisfactory for the Legal Services Commission not to be an agency of government. In our view, it is appropriate that it should be and we commend the Government for doing that.
The problem always—it would have been as much a problem for us as it is for the present Government—is with the words “independence” and “perception of independence”. The Minister will know, as all of us know, that many interested people outside this House are very concerned about the drafting of Clause 4 and whether it meets what the Government clearly intend. No one is accusing them of bad faith here. Clause 4(4) shows that they clearly intend that this should be a system that works fairly and well. As the noble Lord, Lord Thomas of Gresford, pointed out, the wording is extraordinarily ambivalent and ambiguous, certainly as regards the relationship between subsections (3) and (4). The Government need to look at it again, and, I would argue, it probably needs to be redrafted.
I do not know whether noble Lords have had the opportunity to see an interesting, short note from Justice on this topic. Mr Roger Smith, who I think is well known to a large number of people who are interested in this issue and who has huge experience in this field, makes a very good point as to why this present drafting is not satisfactory. He says on what I think is an important part of the argument that:
“The provision will be most objectionable where the Director makes a decision to refuse legal aid for judicial review against his own minister. However justified that might be on the individual facts, it would be argued that the Lord Chancellor is being a judge in his own cause. Indeed, it may well be”—
this is the clever point—
“that interest groups are motivated to make exactly that accusation, regardless of the substantive worth of their application, precisely to obtain more publicity for their cause”.
As an example, among many others that could be referred to, he has shown where the Government have to tread extraordinarily carefully to make sure that independence is real and is perceived to be real. I therefore ask the Minister to be sympathetic and to look very carefully indeed at how this clause is currently drafted.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Bach, for the way he has summed up the debate. This clause reflects the Government’s absolute determination to make it clear that the director will be independent. I have to say that when I look at this cluster of amendments and see the names that are attached to them, I am tempted to repeat a phrase that I use occasionally about my own collection of legal advisers: if I had to pay them, I could not afford them. This is a very distinguished group of legal opinion and I make my reply conscious that that weight of opinion has been reflected in the debate.
Clause 4(4) gives clear guidance on the limits of the Lord Chancellor’s powers. However, I take on board the fact that there have been cases in the past of friction between senior civil servants and Ministers, and if Parliament is going to create an important body and function it will need to be perceived very clearly. I take the point made by the noble Lord, Lord Bach, that perception is also important. We have to get this right.
I want to make clear the point made by the noble and learned Lord, Lord Woolf. As I told him earlier, I have in fact signed off a letter to him, but cock-up often triumphs over conspiracy in these matters. As far as I can see, there was no intention to block the meeting he wanted, and somewhere in the postal system—this is not the Government’s standard promise that a letter is in the post—is his letter. I am sure that when he gets it, he will respect me in the morning because it does say that we certainly have no objection to the kind of meeting he seeks.
I am not sure that I would go as far as the noble Lord, Lord Howarth, on the point that the demonstration of independence needs civil servants to figure in television interviews and so on, although I have noted the points he made. It is also worth noting that some suggestions were made about dangers to the director’s independence—here I tread lightly into suggesting a legal form of words—but it would be ultra vires for the Lord Chancellor to interfere in directorial decisions in individual cases, and in that respect he is well protected by Clause 4(4). However, it is true that the Lord Chancellor will decide the criteria by which exceptional cases are granted funding, and these criteria will be published. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying-out of the director’s functions under Part 1 of the Bill, the Lord Chancellor cannot give directions or guidance to the director about the carrying-out of those functions in relation to individual cases.
Lord Howarth of Newport
Will the annual report say what the directions are? How are the legitimately interested public to know what directions the Lord Chancellor will give the director? Will the Minister tell us how they are to be known and what ground they would cover? What would be the subject matter of the directions?
Lord McNally
I think that we will have to await the document, but I will take advice on it. As far as I understand, the directions and guidance on the director’s functions will be published by the Ministry of Justice.
Lord Williamson of Horton
It is covered by the Bill, in subsection (5). The directions have to be published. Whether they should be in the Bill at all is another matter; but if they are in the Bill, they have to be published.
Lord McNally
I am also told that the director’s terms and conditions will govern the circumstances in which they could be dismissed. Some of the concerns that have been raised are either in the Bill or will be covered by guidance or in published directions and terms of reference from the department.
I go back to the point made by the noble Lord, Lord Bach. Clause 4 is not an attempt to create some stooge of either the Ministry of Justice or the Lord Chancellor of the day; it is to have somebody who will command public confidence and respect. I am not in a position to take note, here in a Committee stage, of the points that have been made; I will, as I said earlier, draw the Lord Chancellor’s attention to the views of the contributors to this debate. It would probably be of help both in looking forward and in winding up this debate if I were to set out the position as we see it now.
Amendment 13 seeks to introduce into the Bill a specification for the role of the director, in particular requiring that the person designated as director has such qualifications and experience in securing access to legal services for individuals as the Lord Chancellor considers appropriate. The amendment also seeks to have the concept of independence, and specifically the independence of the director when carrying out functions under Part 1, incorporated into the terms and conditions of the director’s employment. Amendment 17 provides a definition of “Minister of the Crown” to reflect the reference to the same in Amendment 13.
These are unnecessary amendments. Relevant experience and qualifications are, of course, factors that are taken into account in any appointment, and the recruitment of the director is no different. We can see no persuasive reasons why it should be necessary to include these considerations in primary legislation. The Committee should also note that the framework document which will govern the relationship between the Ministry of Justice and the new executive agency will also reflect the principle of independence of decision-making. The incorporation of this principle into the terms and conditions of the director would add nothing as the effect is already secured through the existing provisions.
Clause 4(2) requires the Lord Chancellor to,
“make arrangements for the provision to the Director by civil servants or other persons (or both) of such assistance as the Lord Chancellor considers appropriate”.
This means that the director will also be assisted by those with relevant experience and qualifications in discharging the director’s functions under Part 1 of the Bill, providing the necessary expertise alongside the director’s own. This support is essential as, in practical terms, it is not the case that the director will personally make all decisions on eligibility. That would be unworkable given the volume of applications made for legal aid.
Clause 5 sets out the director’s powers of delegation and, of course, this anticipates the delegation of decision-making on an individual application. As such, the need to ensure the requisite knowledge, skills, experience and qualifications for those making decisions applies to all and the proposed amendment does not further this imperative.
On the limb of Amendment 13, which seeks to have the concept of independence incorporated into the director’s terms and conditions, this is also an unnecessary amendment. The existing provisions of Clause 4 provide statutory protection to the director against ministerial or other political interference. In particular, while the Lord Chancellor can issue directions and guidance to the director about the carrying out of the director’s functions under Part 1, the Lord Chancellor is specifically prevented under Clause 4(4) from issuing directions or guidance about the carrying out of the director’s functions in relation to individual cases.
It is important to note that the prohibition in Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5. This is an important safeguard.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend’s flow, but surely for him to argue, as he just has, that all is well on the independence front because Clause 4(4) states that the Lord Chancellor cannot direct the director of legal aid casework in individual cases is small comfort given that it leaves intact Clause 4(3), which enables the Lord Chancellor to give directions, which the director must comply with, on anything to do with the director’s functions except in an individual case. A whole wide sea of discretion is given to the Lord Chancellor by that provision, which goes to the heart of the independence of the director.
Lord McNally
The noble Lord is repeating the thrust of a number of contributions that I have heard today. My response indicates the Government’s position at the moment. Again, along with this response will be the comments that he and other noble Lords have made. Let us see where we go from there. It is an important safeguard to ensure the director’s independence in carrying out his or her functions in relation to individual cases, which in the Government’s view is not improved or added to by the amendment.
Amendment 14 seeks to amend Clause 4(2) by removing reference to other persons who may be provided to the director under arrangements to assist in the discharge of functions under Part 1. Again, this is an unnecessary amendment. To the extent that independent persons are envisaged under the new scheme, the current drafting of Clause 4(2) does nothing to prevent such individuals being engaged. The amendment also may have unintended consequences that could serve to undermine the efficient operation of the new scheme. Were this amendment to be accepted, it would limit the range of those individuals who could be engaged to assist the director to either civil servants or independent persons. It may of course be that the director will in future only ever need the assistance of civil servants and independent persons to discharge their functions. However, we cannot be sure with any certainty that this would be the case in all eventualities in the future.
The current formulation of “or other persons” provides the requisite flexibility to meet any future scenario, including the provision of independent persons. Accordingly, Amendment 14 merely limits the pool of people that might be available to assist the director, with potentially problematic unintended consequences for the operation of the scheme.
Amendment 15 to Clause 4 is intended to alter the provisions in relation to the independence of the director of legal aid casework. As I hope to explain, we believe the amendment, again, is unnecessary. I will briefly set out for the benefit of noble Lords the role and key functions of the director and why I believe that independence is important and why it is already enshrined in the Bill. Under Clause 4, the Lord Chancellor is obliged to appoint a civil servant as a statutory officeholder who will be responsible for making funding decisions in individual cases, including funding decisions in relation to exceptional funding applications under the Bill.
The statutory officeholder is to be known as the director of legal aid casework. The Lord Chancellor is also obliged to provide civil servants or other persons, or both, to assist the director in carrying out their functions. The director must make determinations in legal aid cases in accordance with the provisions of Part 1 of the Bill.
Under the new arrangements, Clause 4 is potentially the most important. It ensures that the director has independence in carrying out functions and is free from any political interference in making decisions in relation to individual cases. This independence is enshrined by the specific provisions within this clause, specifically subsection (4), which the amendment would delete. Subsection (4) prohibits the Lord Chancellor from giving guidance or directions in relation to the carrying out of the director’s functions in relation to individual cases.
There are provisions within Clause 4 that oblige the director to comply with directions given by the Lord Chancellor about the carrying out of the director’s functions, and to have regard to guidance issued by the Lord Chancellor about the carrying out of those functions, but crucially such guidance and directions cannot relate to the carrying out of the director’s functions in relation to individual cases. This protection of the director against interference when carrying out their functions in relation to individual cases is an important safeguard.
I would like to assure noble Lords that the protection of this independence is a fundamental tenet of the new arrangements, which provide the necessary safeguards that are required to make the new arrangements work. It should be noted that the director is a separate office from the Lord Chancellor created by statute. As I have said, under Clause 4(4), the Lord Chancellor cannot give directions or guidance to the director about the carrying out of the director’s functions in relation to individual cases. That is a very explicit assurance about independence. The protection offered by Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5 of the Bill. I believe that the Bill already establishes a proper role for the director, free from any political interference in relation to the carrying out of his functions in relation to individual cases.
I now turn to Amendment 16, which seeks to amend Clause 4(4) by specifying a category of case in relation to which the Lord Chancellor cannot issue guidance or directions. As I have said already, Clause 4(4) provides the director of casework with statutory protection against interference in individual cases; to seek to specify classes of case in a clause that bars interference in any individual cases cannot in my view add anything to the existing provisions. The Government’s policy has been consistently that proceedings where the litigant is seeking to hold the state to account by judicial review are important and should generally be retained within the scope of civil legal aid. This is expressly covered in paragraph 17 of Part 1 of Schedule 1 to the Bill. As with other areas within the scope of civil legal aid, in a judicial review case that is within the scope of civil legal aid, the director’s functions under Part 1 of the Bill are to decide whether in each particular case the individual qualifies for funding.
Lord Thomas of Gresford
I wish to add further concerns, having heard the Minister’s reply. I understand that the director would have to follow directions and guidance given on matters of merits and eligibility. Standards would have to be set as to what has to be satisfied, and eligibility in relation to finance is something that the Lord Chancellor would be concerned with. But I have some concerns about the emphasis on individual cases as opposed to a category of cases.
We sought in Amendment 16 to take one category of case—namely, cases against the Government or government agencies, or whatever. The Lord Chancellor ought not to be able to interfere in any category of case that is within the scope of Part 1 of the Bill. He should not be able to say that there are too many of these cases and we have to cut down, and the wording leaves that open.
Another matter that concerns me is exactly what is intended. The Minister used once the expression “an executive agency”. What is that? Is it a body within the Ministry of Justice or is it to be set up separately? Is it to be staffed only by civil servants or is it to be able to recruit its own people to it? What is the relationship of the executive agency headed by the director to the Ministry of Justice? We are very familiar with the concept of the Director of Public Prosecutions and the sometimes rather fraught relationship between the DPP and the Attorney-General, who is responsible for the director’s decisions in a parliamentary sense but not necessarily able to give him directions or control him in any way. So the independence of the DPP is a very interesting model which I would have thought the director of legal aid casework ought to follow. That means having an executive agency recruiting its own people and a constructive tension between the director and the Lord Chancellor, or whoever the Minister of Justice happens to be at the time. I would like to probe the concept a little further at this stage. What is this executive agency? How will it be staffed? What is the relationship between its director and the Minister of Justice? It may be that I am posing these questions at the wrong stage in this debate. If my noble friend is not able to answer these questions at the moment, I am sure he will explain them to me at a later stage.
Lord McNally
I can do no more than suggest that the noble Lord reads the Bill, because it sets out the structure for carrying out this function within an agency which is within the Ministry of Justice and staffed by civil servants appointed on the criteria which have stood us in good stead for the past 130 years. Again, as with the other contributions to this debate, I will take those matters back and see whether there are areas that can be better clarified to give my noble friend the assurances that he requires.
Lord Pannick
My Lords, I am grateful to the Minister for the constructive approach that he has taken to the important issues raised by this debate. I would ask him to reflect with the Lord Chancellor on the central points which have been made by noble Lords on all sides of this Committee, and to whom I am very grateful. A civil servant—the director—is going to have the crucial task of determining who has effective access to justice. The director is going to do that, often in contexts where the Government are the potential defendants. It is then striking, as many noble Lords have pointed out, that Clause 4 says nothing express about ensuring the independence of the director. This is a particular concern, as noble Lords have emphasised, in the light of the uncertainty as to the limits of Clause 4(3).
Clause 4(4), as the noble Lord, Lord Thomas of Gresford, has emphasised, is not sufficient protection because it does not prevent directions from the Lord Chancellor to the director about categories of cases, or indeed as to the general approach to be adopted by the director. As I understood it, the Minister's response to this was that the Government's position today—although the Minister emphasised that that may change—is that they are as keen on independence as everybody else. If I understood him correctly, he said that independence is a fundamental tenet of this arrangement. The position of the Minister and the Government today is that Clause 4 is designed to achieve that objective and therefore these amendments are unnecessary.
The noble Lord will appreciate, and I hope that he will communicate this to the Lord Chancellor, that around this Committee the view is taken that, with great respect, that is not good enough because noble Lords prefer an express statement of the basic constitutional principle on which we are all agreed as to independence. Noble Lords prefer the drafting of Clause 4 to contain clear limits on the powers, in this context, of the Lord Chancellor and clear safeguards of the independence of the director. I hope that the Minister will be able to ask his officials to look again at the wording of Clause 4 so as to achieve these objectives, otherwise we will undoubtedly be returning to this matter on Report. For the time being, I beg leave to withdraw this amendment.
Lord Bach
My Lords, I am sorely tempted to test the opinion of the House on Clause 4 tonight; I think it would be the better course to take. I am going to resist that sore temptation, but only just, because—here I am supporting what the noble Lord, Lord Pannick, said in his closing remarks—apart from the Minister’s final remarks, his response to the debate was unsatisfactory. His response runs the severe risk—against the Government’s real instincts, I am sure—of being careless of the independence point. That is a fundamental point and, as the Minister himself pointed out, exactly the sort of point that this House is quite good at dealing with in revising legislation that comes from another place. Frankly, the current draft is just not good enough, and this point is so central that at some stage the House will have to take a view on the issue. I very much hope that the Minister will use his powerful persuasive powers to persuade others in the ministry that the clause must be altered for the better.
Lord McNally
I have a full speaking note on Clause 4, but I have heard what the noble Lord has said. I am not sure how persuasive my powers are. I want to read the debate in Hansard; one of the good things about Committee stage in the Lords is that it gives us a chance to hear the voices. I will consider this with my right honourable and learned friend, but I will spare the House my speaking note on Clause 4.
“Legal Aid appeals
(1) Decisions of the Director under this Part shall be reviewable by a first-tier tribunal established under the Tribunals, Courts and Enforcement Act 2007.
(2) The primary functions of the tribunal in respect of subsection (1) are to—
(a) consider applications for review; and(b) conduct and determine reviews,following a decision being made by the Director in respect of eligibility for legal aid under Part 1 of this Act.(3) A decision of the tribunal may be reviewed or appealed in accordance with the Tribunals, Courts and Enforcement Act 2007.”
Lord Bach
This, I hope, is one of the least controversial of our amendments. If enacted, it would ensure that the decisions of the director of legal aid casework were subject to the ordinary standard mechanism within the United Kingdom for challenging decisions of administrative bodies—that is, the tribunal system. We are going to hear a lot about tribunals during the course of the Bill. The Government’s line about tribunals—they have told us this already and will no doubt repeat it—is that the First-tier Tribunals that were set up to be user-friendly are a success, are the right forum for challenging administrative decisions and are an effective forum. So we know that the Government support the system of tribunals.
We have an array of First-tier Tribunals, the name given by the Tribunals, Courts and Enforcement Act 2007 to those bodies where appellants can appeal a decision in the first instance. Each of those tribunals is there to ensure that decisions made by emanations of the state are legally sound. For example, the General Regulatory Chamber of the First-tier Tribunal hears appeals against decisions by the Charity Commission, the Claims Management Regulator, the Office of Fair Trading, the Environment Agency, the Information Commissioner and local authorities. The Social Entitlement Chamber, where we would imagine these cases being heard, hears appeals against decisions by bodies that deal with social welfare and disputes about income support, jobseeker’s allowance, pensions and unemployment support allowance. There are four other chambers but the Committee will be pleased to hear that I do not intend to list all their duties. It should be clear that the established mechanism for challenging decisions by state bodies is the tribunals system, and we believe that in this amendment we are following the logic of the existing system.
Lord Phillips of Sudbury
Is one to read Amendment 18 as meaning that on any appeal from a refusal there will be an oral hearing, or is it possible that the initial appeal could be dealt with on paper? That might be a great deal quicker and cheaper in the first instance. One could then reserve an oral hearing for the really difficult cases.
Lord Bach
My Lords, I hope that I am correct in saying that our intention is that there should be a process whereby written applications can be made, but always with the provision that there can be an oral hearing in certain circumstances. The noble Lord makes a good point. I beg to move.
Lord Thomas of Gresford
My Lords, I wish to speak to Amendment 96 in my name. We take the view that the appeal to the First-tier Tribunal against a refusal of legal aid is a little excessive. However, we take the point that was made by the noble Lord, Lord Bach, a moment ago that the European convention requires that there should be an appeal process. We note that in Clause 11, headed “Determinations”, there is a provision in subsection (5) that regulations,
“must make provision establishing procedures for the review of determinations … and of the withdrawal of such determinations”.
That is fine, but we do not think that the review should be carried out by someone else within that executive agency about which I was talking a moment ago. We believe that an appeal should be made to an independent panel.
Your Lordships will recall that on Second Reading or on the first day of Committee I was involved in a clash over who had the longest involvement in legal aid. I recall that legal aid applications and appeals were very well dealt with by an independent panel of local solicitors within the area. It was all devolved. You did not have to come to London or attend a First-tier Tribunal in whatever building that tribunal sat. The matter was dealt with locally by people who understood the locality and probably knew the solicitor who was appearing before them to make an appeal, and had some idea how far they could trust that individual and how experienced he was.
Lord Woolf
As someone who was a member of such a committee, I should say that it also included members of the Bar. In view of what is happening to legal aid, members of the Bar may well be interested in performing this function.
Lord Thomas of Gresford
These events occurred long ago when I was in my solicitor phase. I was called “Mr” in those days. It was only when I became a barrister that I became “Esquire”, and later I became “learned”. These are the progressions one makes within the profession. Looking back to my early days, I think that the noble and learned Lord, Lord Woolf, is quite right: barristers were members of the panel that considered these applications. It was a perfectly satisfactory method of appeal, which was independent of the Government who were providing the funds. I envisage an independent panel to review the director’s decision, not an in-house person but people who could be referred to more cheaply than the First-tier Tribunal to which the noble Lord, Lord Bach, referred. I commend that process as opposed to the one put forward by Her Majesty’s Opposition.
Lord Carlile of Berriew
My Lords, having inherited a number of returns from my noble friend Lord Thomas of Gresford when we were both barristers outside London many years ago, I share the memory of the effectiveness of those committees, including the gloss placed on it by the noble and learned Lord, Lord Woolf.
I would like to point out a parallel that exists today. Those of us who from time to time undertake very high-cost criminal cases have to apply for permission to the Legal Services Commission to do certain aspects of preparation. If the commission refuses permission, for example to obtain an expert witness’s report or to make photocopies of original documents—believe it or not, it can descend to that—there is a committee made up of practising lawyers who determine whether that permission should be granted, and it works very well. If the committee decides against the applicant, he or she has the opportunity to apply for permission to apply for judicial review. That involves a paper process, initially before a judge. If permission is refused, it is open to the applicant to have an application heard before the full court, but it is far from universal that that is done.
We therefore have in the existing provisions for very high-cost cases something very similar to that described by my noble friend Lord Thomas of Gresford. I suggest to the Minister that this would be a practical way of dealing with this appeal problem that would cover the concerns of the noble Lord, Lord Bach, those who have signed his amendment and those of us who have signed my noble friend’s amendment.
Lord McNally
My Lords, the intention of the amendment is to establish a tribunal to review determinations made by the director about whether an individual qualifies for legal aid. This is very closely related to Amendment 96, which would make it a requirement for all reviews concerning determinations by the director under Clauses 8 and 9 to be referred to an independent panel.
The amendment is unnecessary. The Bill already establishes the director in a way that maintains and protects the director’s independence of decision-making in individual cases. The director is created by statute. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying out of the director’s functions under Part 1, the Lord Chancellor cannot give directions or guidance to the director about carrying out those functions in relation to individual cases. There is already provision in the Bill for review of the director’s decisions and appeals against them. This means that there is no need for an amendment to create a separate tribunal.
Clause 11(5) provides that regulations must make provision for procedures for the review of the determinations of the director under Clauses 8 and 9 as to whether a person qualifies for civil legal aid and for the withdrawal of such determinations. There is also power in Clause 11(6) to make provision for appeals to a court, tribunal or other person against the making or withdrawal of a determination in relation to civil legal aid. The Government intend to continue with the Legal Services Commission’s existing appeal and review procedures for cases determined under Clause 8—that is, those within the general scope of the civil legal aid scheme—including the use of independent funding adjudicators. Those procedures are well established and understood, and the intention is that they will include provision for internal review of decisions by the director.
Additionally, where a client is dissatisfied with the conclusions of a review on merits grounds concerning a decision on legal representation in civil and family proceedings in scope under the Bill, the client will be able to appeal to an independent funding adjudicator. As at present, there would be no appeal against refusal on means grounds, although a client can ask for their means to be reassessed.
In reflecting the current review arrangements, there will also under Clause 9 be a right of internal review for exceptional case determinations, although independent funding adjudicators will have no role in the review of exceptional funding decisions. This is because of the particular nature of the assessment at the heart of such cases, which will focus on an interpretation of the relevant obligations under the European Convention on Human Rights to provide legal aid. Exceptional case determinations, along with all other decisions by the director, would be subject to judicial review.
This is more than adequate provision to ensure that scrutiny can be applied to the decisions of the director where an individual believes that there are grounds for review. There is also provision for making regulations about the review of and appeals against the director’s determination on criminal legal aid. I refer noble Lords to Clause 14(9)—
Lord Carlile of Berriew
I apologise for interrupting my noble friend, but he referred in passing to Clause 11(6). Can he explain to the Committee the difference between subsection (5), which requires provision establishing procedures for the review of determinations, and subsection (6), which provides that regulations may make provisions for appeals to a court? Why the difference between “must” and “may” in those two subsections?
Lord Carlile of Berriew
Clause 11(5) says “must”, whereas Clause 11(6) says “may”—perhaps echoing a point made by the noble and learned Baroness, Lady Butler-Sloss, earlier.
Lord McNally
I will have to take advice on that, but I thank the noble Lord for drawing it to my attention. I sometimes wonder whether mays and musts are not spread through a Bill according to whether parliamentary counsel gets bored with the use of “must” and decides to put “may”, but I am sure there are far more legal reasons why those choices are made.
As I was saying, there is more than adequate provision to ensure that scrutiny can be applied to the decision of the director where an individual believes that there are grounds for review. There is also provision for making regulations about the review of and appeals against the director's determination on criminal legal aid.
Amendments 97 and 98 would change Clause 11(6), which concerns determinations of whether funding should be granted for any of the matters included in Schedule 1 or any excluded cases under Clause 9. These amendments would require regulations under Clause 11 to make provision for appeals to a court or tribunal against determinations made by the director under Clauses 8 and 9 and against the withdrawal of such determinations.
I have described the intention and effect of Clauses 11(5) and (6), as well as the intention to continue with the existing, effective processes and procedures currently used by the LSC in the new model, and I do not propose to cover the same ground here, although I take the point made by the noble Lord, Lord Carlile. However, requiring provision to be made for appeals to a court or tribunal against all determinations by the director would be expensive, resource intensive and likely to lead to delay in the hearing of appeals.
Clause 14 creates a power to make regulations that prescribe what advice and assistance must be made available if the director has determined that a person qualifies for advice and assistance. That largely reflects the provisions in Section 13 of the Access to Justice Act 1999, which requires the Legal Services Commission to fund such advice and assistance as it considers appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings is distinct from that provided under Clause 12 to individuals arrested and held in custody. The services we are talking about here would include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.
Although Clause 14 and Section 13 of the Access to Justice Act are framed differently, their overall effect is essentially the same. Clause 14 is intended to replace Section 13(1)(b) of the Access to Justice Act. The Bill confers a power to make regulations under Clause 14 for consistency with Section 13(1)(b) of the Access to Justice Act. That section provides that the Legal Services Commission's duty to provide advice and assistance to the individuals mentioned there arises only in prescribed circumstances, and “prescribed” means prescribed in regulations made by the Lord Chancellor.
The combined effect of Amendments 105 to 107 would require regulations made by the Lord Chancellor under Clause 14(1) to provide for appeals, but not reviews, to a court or tribunal in relation to the aspects of determination on legal aid set out in Clauses 14(9)(a) and (b).
Amendment 107 would preclude regulations allowing for appeals to any other person. The Government judge it more appropriate to allow the Lord Chancellor to make regulations, if he considers it appropriate, than to require him to do so. We will retain the existing arrangements whereby advice and assistance for criminal proceedings provided under Clause 14 are subject to a “sufficient benefit” test. In practice, this would be conducted on behalf of the Director of Legal Aid Casework by the litigator, who would provide the legal aid services. The LSC criminal contract provides that advice and assistance may only be provided on legal issues concerning English or Welsh law,
“and where there is sufficient benefit to the Client, having regard to the circumstances of the matter, including the personal circumstances of the Client, to justify work or further work being carried out”.
There is currently no appeal to a court or tribunal in relation to the sufficient benefit test. However, there is a right, set out in the LSC contract, for the person refused legal aid to apply to an independent funding adjudicator for a review of the decision not to grant legal aid. There are no plans to introduce appeals provisions immediately, although subsection (9) would allow for the introduction of provisions for reviews and appeals in the future if it were considered appropriate.
Procedures for review and appeal might, in any event, not be necessary or proportionate in establishing whether all criteria specified in regulations under subsection (5)(b) were met. For example, if a criterion was that the provider had to hold a contract to provide such services, then an appeal would not be necessary to establish whether a provider held a contract. The Government therefore believe that a duty to secure such arrangements is unnecessary and heavy-handed. In such circumstances, a right of appeal to a body other than a court might be more appropriate. The Government believe it is appropriate to have the flexibility to make regulations that could provide for either a review or an appeal, or a combination of both, and that a review or appeal might be made to a body other than a court or tribunal.
The noble Lords, Lord Bach and Lord Thomas, raised points concerning Article 6. It is intended that any arrangements made will comply with the ECHR.
On the rather interesting background to previous systems, it was the previous Administration that brought to an end what sounded like a nice little earner for the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Thomas and Lord Carlile.
Lord Phillips of Sudbury
My Lords, this cannot pass. It must be in Hansard that on this occasion, rare though it is, lawyers acted pro bono.
Lord McNally
As I say so often, I am not a lawyer—thank God.
There was a question about how the independent funding adjudicator system is working. Some 11,560 reviews were received in 2010, of which about 3,500 were subsequently appealed to an independent funding adjudicator at a cost of about £18 per case. The total cost of these appeals was just over £63,000, so it appears to be a very cost-effective scheme. I hope that the noble Lord will withdraw his amendment.
Lord Bach
I will withdraw the amendment, of course, but there is a real issue here which goes to the independence issue that we debated in the previous group. We argue that it is not satisfactory for there to be a system in which the LSC, as it were, comes in house and becomes an agency of government, with the old process of reviewing decisions remaining exactly the same. That is because the adjudicators, independent though they may be, are appointed by the ministry, so again there is the problem of the perception of independence. There must be a system of appeal against a legal aid decision.
I am certainly not in the mood to fall out with noble Lords opposite who believe that there is a better system than that of tribunals. They may be right or wrong, but what we agree on is much more important than what distinguishes us: namely, there must be a genuinely independent appeals procedure. Of course we do not want it to be expensive or long-winded, but there must be one in order that the perception of independence is there. I am afraid that the Government have not yet got the point that the system proposed in the Bill is not satisfactory for those who are refused legal aid and go to the adjudicator who has been appointed by the Ministry and are refused again.
For the perception of independence, it would be so much simpler and easier for there to be either a chamber of the tribunal or another totally independent body that will decide these issues. There are not that many of them each year; it would not cost the state a great deal of money. However, the principle of being able to appeal against a decision made in this case by a civil servant who has been appointed by the Lord Chancellor is very important. I beg leave to withdraw the amendment, but we may come back to this on Report. If we are coming back to the earlier independence issue, we shall have to come back to this one as well.
Lord Thomas of Gresford
Lord Thomas of Gresford
We come to Clause 7, “Civil legal services”. These services,
“include, in particular, advice and assistance in the form of … representation, and … mediation and other forms of dispute resolution”.
My amendment simply inserts “collaborative law” after “mediation”. Noble Lords may ask what it is. I am very grateful to the organisation Resolution for drawing it to my attention, and I am very keen on it.
It is perhaps inevitable in the House of Lords that one goes back over the years. Getting divorced these days is no problem; it is all done on paper. There is no Queen’s Proctor, confession of adultery or anything like that; one just signs a piece of paper. It is the children, the house and the funds that create the difficulty. Collaborative law is different from mediation. In mediation, the parties go in front of a mediator who listens to what they have to say. They may not be represented and may shout at each other. Statistics show that something like 60 per cent of attempts at mediation fail. People who are at each other's throats and ready to kill each other should not be put in proximity to argue in front of a mediator; it is not easy for the mediator or for everybody else.
The collaborative family law process is a relatively new way of dealing with family disputes. Each party appoints their own lawyer. However, instead of the lawyers conducting negotiations by letter or phone, they meet to work things out face to face. Therefore, each antagonist has a lawyer at their side throughout the process and receives legal advice as they go. The aim of collaborative law meets the Government's aim of resolving family disputes without going to court. Both parties meet their respective lawyers, discuss the different options and processes available and decide to attempt the collaborative process. Then a four-way meeting is set up—the two parties plus their lawyers—and at the first four-way meeting the lawyers make sure that both parties understand that they are making a commitment to work out an agreement without going to court. They all sign an agreement to that effect.
Baroness Butler-Sloss
I am an honorary member of Resolution. I would like the Committee to know that Resolution has extremely high standards in ensuring, if possible, that its clients settle every case which the lawyers deal with. It has a very impressive protocol on how each member of Resolution should behave in family law cases. I entirely agree with the noble Lord, Lord Thomas of Gresford, about the importance of collaborative law. As I understand it, it is the brainchild of Resolution, and Resolution is doing it with a view not to making a lot of money from it but to doing something to help families who otherwise will come before the courts. It is an admirable scheme run by an admirable organisation.
Lord Beecham
My Lords, like the noble Lord, Lord Thomas, I was unaware of collaborative law until I read the briefing from Resolution, but I congratulate the organisation and the noble Lord on bringing these amendments to the Committee today. In the run-up to the Bill, the Government laid great emphasis on the need to find alternative methods of resolving disputes, and particularly on mediation. Mediation can undoubtedly play a role but it is not a straightforward matter. As I said on Second Reading, particularly where there is no equilibrium between the parties—or, to use the other phrase which has been bandied around your Lordships' House for some time, no equality of arms between the parties—mediation is not particularly suitable.
Certainly, those of us who have practised family law have often found in these cases that one party or the other—usually the husband—plays a dominant role in the relationship, particularly when it comes to litigation. All too often in my experience the other party—usually the wife—gives way. Mediation is not an adjudication and it is not a question of reaching an agreement between equals. Even if it were more balanced, it is interesting that the Government’s own projection was that out of 230,000 family cases only an additional 10,000 would be referred for mediation once the system changed as the Bill envisages. In any event, it was clearly not going to extend very much further than it does at the moment.
As the noble Lord has indicated, this proposal is of an entirely different character. In particular, there will be legal advice available—there will be somebody with the parties—and that should redress the balance that is so often missing in mediation and should lead to agreement. In fact, this was something that the previous Government had encouraged. Certainly there was the intention—I am not sure if it was realised—for legal aid to be made available for this on the basis of modest fixed fees being paid to the lawyers involved. As the noble Lord has pointed out, there was no incentive for those lawyers to prolong the case or see that it went further.
I understand from the briefing from Resolution that there has been some discussion—or at least correspondence—with the ministry, which seemed to warm to the idea and indicated that while it was recognised that Schedule 1 to the Bill only refers to family mediation,
“we think that should we wish in future to fund, for example, collaborative law, this could still be achieved. This might, for example, be through the issuing of guidance about what we wish to cover under the term ‘mediation’”.
It is not mediation, as Resolution itself points out, it is something distinct and different and, I suspect from the perspective of many of us, rather better and more useful than mediation.
The amendment deals only with family law. In principle, this process could be taken further—for example to things like employment or perhaps even debt cases, where a less elaborate process than the full litigation which is currently available but which will no longer be available to be supported by legal aid can give way to a process analogous to that which the noble Lord has outlined in the case of family law. There is great potential in this, and it is a better way of reducing the burden on the courts and the costs of public—or indeed private—funding than mediation in many cases.
I hope that the Minister will acknowledge that there is merit, both in the principle and in the amendment that the noble Lord has moved. Perhaps he will consider whether that same principle might be extended to other areas which it is the Government’s intention to remove from scope—not all areas, obviously, but there may well be some—even if it is not possible to identify those at the moment because there would have to be further consultation, and to perhaps bring back an amendment that would allow for additions to what might be brought within the framework of collaborative law, in the same way as subsequent amendments will allow for the addition as opposed to the deletion of items from scope. In that way, we would have a more flexible system that was able to adapt to changing circumstances and a changing ethos within the legal profession and advice services, and build on what appears to be a very successful initiative.
I hope that the Government will agree to take this back and look at it in principle from a supportive standpoint, and that we can end up with something very much along the lines of the noble Lord’s amendment, possibly with the additional factors to which I have referred.
Lord Howarth of Newport
My Lords, I understand that the Government are increasing funding for mediation by two-thirds, which is something that the Lord Chancellor has made considerable play of. But are the Government not at risk of putting rather too many eggs into this basket, particularly with the removal of legal aid, which is normally available in family dispute cases? Those on low incomes will be more or less forced into mediation. But you cannot force people to go to mediation. It will not work and, as my noble friend Lord Beecham has said, there is the danger of considerable inequality of power between the two parties whose dispute is being mediated.
I join other noble Lords in asking the Minister to look positively at the suggestion in the amendment tabled by the noble Lord, Lord Thomas of Gresford. It may be useful to provide some funding for collaborative law. It may well be that the legislation should reflect the positive view that the Government take of the availability of this means of resolving disputes in a variety of circumstances.
Lord Phillips of Sudbury
My Lords, my name is on this amendment. As persuasively put by my noble friend Lord Thomas of Gresford, it seems to be an unarguable proposition. The only fiddling point I would make about calling it “collaborative law” is that it is not the law that is collaborative but the process. It might be better to call it “collaborative resolution”, but that is a detail. I hope very much that my noble friend will feel that this is an advance.
Lord McNally
My Lords, we are approaching the witching hour, as the opposition Whip moves stealthily to consult the government Whip. I do not want to give any clues as to whether this is going-home time, but if it is I am very grateful to my noble friend for ending our evening on a matter on which there is some hope of collaboration. I do not want to raise his expectations too much, but I agree with the noble Lord, Lord Beecham, that this concept, which is new to many of us, seems to have great potential. Again quoting from the noble Lord, it appears to be adaptable and flexible. It now has the not inconsiderable badge of approval from the noble and learned Baroness, Lady Butler-Sloss, as an admirable scheme run by an admirable organisation. Like book reviews, I am sure that Resolution will have that as a strap-line.
How does this fit in with what the Government are trying to do? In response to the points made by the noble Lords, Lord Beecham and Lord Howarth, I should say that we have never seen mediation as a cure-all. The Lord Chancellor has made it very clear that he wants to wean us away from almost automatic litigation at the taxpayers’ expense, which is one of the attractions of mediation. The collaborative law concept certainly has its attractions.
As the noble Lord, Lord Beecham, pointed out when he quoted from Resolution, the MoJ has said that the Bill as it stands does not exclude the possibility of funding collaborative law in the future. Clause 7 refers to funding,
“mediation and other forms of dispute resolution”.
The amendments are accordingly unnecessary in so far as they set out to make it possible, as opposed to requiring, for funding to be made available for collaborative law. However, given the reduction in the budget that we need to make and the additional costs of involving two lawyers, as would be required for collaborative law when compared with mediation, we cannot commit to the additional resources required to fund collaborative law at this stage. We would not, however, rule it out at some time in the future.
I should like to make one other point. The Government understand that some mediation cases are complex and need additional legal support. We will be providing further legal advice in such family cases where an agreement reached through mediation needs to be turned into a court order, with an independent fee set at this level of service at £200. This is in addition to the £150 fee for legal advice accompanying mediation as originally proposed, and taken together this means that there will be considerable scope for publicly funded legal advice to accompany mediation, especially in more complex cases.
As I have said, I cannot take out the chequebook this evening so far as collaborative law is concerned, but I assure my noble friend that by putting this on the agenda, as it were, there is no doubt that it will play a part in future. Again, as the noble Lord, Lord Beecham, has said and as I have said a number of times from this Dispatch Box, legal services are on the move and I can very well see that the concept of collaborative law or collaborative resolution, if my noble friend Lord Phillips has his way, may well play a part in the future. At this time of night, however, I ask my noble friend to withdraw his amendment.
Lord Beecham
My Lords, perhaps the Minister might suggest an experiment with collaborative resolution. If the Prime Minister and the Deputy Prime Minister underwent the process, it might help the noble Lord to get the resources needed to extend the principle more widely.
Lord Thomas of Gresford
My Lords, I have to confess that I am disappointed with my noble friend’s response and I shall certainly return to this issue on Report. The Government have to appreciate that they are taking family law out of scope, which means that there are going to be couples who are at each other’s throats. There are various ways in which they can resolve their problems. They can say, “He hit me on one occasion. It is domestic abuse, so I want legal aid”. All the fears that have been expressed by the Government of people pushing domestic abuse up the agenda in order to get legal aid and thus making it more difficult to settle will become prevalent.
Here is a system where, on a fixed fee, issues of finance, housing and children can be settled, which is exactly what we as solicitors used to do. We would pick up the phone and talk to the opposing solicitor in order to sort things out without having to go to court. If you do not have a system like this to resolve issues, inevitably it is going to cost more. As I say, there will not necessarily be made-up allegations of abuse, but the little disputes that have occurred in a marriage may perhaps be tarted up just enough to make it possible for legal aid to be involved. You are then into an expensive system. I will therefore return to the matter on Report and I shall continue to advocate this very excellent system. I am pleased to see that the noble and learned Baroness, Lady Butler-Sloss, is involved. So far as I am concerned, the process has been given the seal of approval. For the moment, however, I beg leave to withdraw the amendment.