House of Lords
Allotments
Baroness Sharples
To ask Her Majesty’s Government what plans they have to ensure that the provision of allotments is sufficient to meet demand.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, it is local authorities that have a duty to provide allotments. Nevertheless, the Government are working with voluntary and community sector organisations, including the Federation of City Farms & Community Gardens, the Allotments Regeneration Initiative and the National Society of Allotment & Leisure Gardeners, to promote the importance of allotments and to encourage and support local authorities and other landowners to make more land available for food growing.
Baroness Sharples
With a countrywide shortage of plots and a growing list of applicants, who in some cases have waited many years, does my noble friend know why councils do not follow the good example of Christchurch in Hampshire, which is developing an allotment strategy consultation to help everyone concerned?
Baroness Hanham
My Lords, I am sure they can do that without any intervention from Parliament. As I said, local authorities are responsible for the provision of allotments and for encouraging their own communities to look at the sort of strategy that the noble Baroness has suggested.
Lord James of Blackheath
My Lords, is the Minister aware of the undertaking given by the previous Government when a similar Question was asked, to the effect that they would stop the practice of councils dumping contaminated soil on allotment land and then renting that land out to handicapped people who are not in a position to resist? Will the Minister move immediately to stop this outrage?
Baroness Hanham
My Lords, the noble Lord has raised a point on which I am not briefed. I am bound to say that it goes a bit wider than I had expected. However, if that is happening and it is true that local authorities are dumping contaminated soil on allotments, that is an outrage because people are growing vegetables and produce for eating. I will make some inquiries and come back to my noble friend.
Baroness Parminter
Given the huge benefits to individuals and communities of food growing and the welcome explosion in interest in doing so, does the Minister believe that the final form of the national planning policy framework, unlike the draft, should recognise the key role of local authorities in promoting food growing?
Baroness Hanham
My Lords, the final form of the national planning policy framework is still being realised. Of course, the Localism Act contains a number of provisions that would help local communities to do precisely what the noble Baroness has suggested. There is a community right to challenge, so voluntary and community bodies can challenge on bits of land to suggest that they take them over. There are the neighbourhood planning provisions, where local neighbourhoods can come together and identify land for use that they think is sensible, and allotments might come under that. There is also the community right to buy, where again local communities can identify land that they consider to be an asset and if it comes up for sale they are in a position to make a bid for it.
Baroness Gardner of Parkes
Will the Minister tell me whether there are many problems such as the one in my village, where the allotment holders were encouraged to grow everything without any water supply? They did so successfully for many years. However, as we have had a few very dry years it has not been possible recently. Now they want to put in a water supply, and apparently, in order to make it practical for the allotment holders to fund the water supply, they need a long- term lease on the property, which I believe is owned partly by the local church. However, the lease is not the main issue, but rather a total disagreement about who should provide water to an allotment.
Baroness Hanham
My Lords, again, the question put by the noble Baroness is quite localised, because I suspect that there are some allotments which are provided with water. That must be a matter for the local authority to which she refers, and I should think that the allotment holders would be in a very strong position to ensure that they received or found that water.
Baroness Howe of Idlicote
My Lords, given the importance we all clearly give to the growing of food and the knowledge of how food is grown, could the Minister give us any indication of how many schools have allotments, and whether there are many others that are preparing to follow their example?
Baroness Hanham
My Lords, I cannot give an exact reply to the noble Baroness about numbers. There is, however, strong encouragement for schools not only to work allotments but to have their own facilities in their schools to encourage children to grow food, and many schools do that. Defra is already encouraging that. There is a strong element of enthusiasm and encouragement to make sure that schoolchildren understand where food comes from, and that it does not just come out of a plastic packet.
Baroness Royall of Blaisdon
My Lords, clearly this is principally a matter for local authorities, but there is a great deal of best practice to be spread, and I am sure that both the Government, the Opposition and all members of this Chamber can assist in spreading best practice. I am very proud to be a patron of Thrive, a charity which works with disabled people and gardening, and encourages them to have healthy lifestyles and gardens. I would encourage not only the Minister but all Members of this House to get out and spread best practice, because in these straitened economic times, eating healthily and health and well-being are of the utmost importance.
Baroness Hanham
My Lords, we can certainly agree with all that the noble Baroness has said, and I congratulate her on giving so much support to this particular aspect.
Baroness Jenkin of Kennington
My Lords, I wonder whether the Minister is aware of schemes such as Landshare, which, in places where allotments are scarce, are a tremendously useful resource. Those who have additional land that they can no longer manage themselves are encouraged to advertise it on a website, so that local people can come and dig it over and use it themselves, thereby expanding the use of land whose owners can no longer manage it.
Baroness Hanham
My Lords, that is an extremely good scheme. Of course, one of the things that may affect that is the nature of the agreement with the local authority, if that is who owns the plots, as to how they can be used. There are already examples of land being subdivided, and plots being subdivided where people find them too large. That is excellent, because it means that more people can get involved.
Baroness McIntosh of Hudnall
My Lords, although of course I accept that this is largely a local authority matter, does the noble Baroness agree that allotments in cities are a very important part of the overall urban ecology, and that there are often small plots of derelict land which could be made available? Will she encourage local authorities in cities to view the possibility of small amounts of land being turned over to food production where there is a local community willing to set them up?
Baroness Hanham
My Lords, that takes me back to an earlier reply. In future, under the Localism Bill, as regards plots of land such as the noble Baroness has described, if local communities think that that would be a good use for them, they can identify that and, under neighbourhood planning, make sure that that happens. I do not think that there is anything against what the noble Baroness has put forward. Indeed, there should be a lot of encouragement for it. However, land in London is very expensive.
Schools: Grammar Schools
(12 years, 11 months ago)
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Baroness Jones of Whitchurch
To ask Her Majesty’s Government what will be the impact on local parental choice of allowing grammar schools to expand their pupil intake.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, through the revised schools admissions code we seek to give all schools, including grammar schools, greater flexibility in determining the number of places they wish to offer to their communities. This should help to ensure that parents are increasingly able to have the offer of a place at a good and popular school, whatever its type.
Baroness Jones of Whitchurch
I thank the Minister for that reply. Will he confirm that it is now the Government’s policy that existing grammar schools can expand their size or create satellite schools in neighbouring areas? Is he concerned that well run state schools could be forced into a battle for survival as nearby grammar schools attempt to cherry-pick the best performing pupils? What advice would he give to parents of children who fail the 11-plus or would prefer their children to attend non-selective schools, and who are no longer able to object to grammar school expansion under the new schools admissions code?
Lord Hill of Oareford
My Lords, first, the Government have not changed the rules governing satellite sites and the possibility of that. They are the same rules that were in place under the previous Government and the admissions code does not affect them. With the admissions code generally, we are trying to get to a point where it is possible for all kinds of schools—where there is popular demand for them and where there are good and strong schools—to be able to grow in response to parental demand. We did not think that it was right to exclude from that greater freedom the small number of selective schools in the system.
Lord Cormack
My Lords, does my noble friend accept that many of us who had the advantage of a grammar school education believe that the destruction of the grammar schools is to be deeply regretted? Therefore, will he accept that the policy that he has enunciated today will give modest encouragement to many people, and rightly so?
Lord Hill of Oareford
My Lords, I think, and hope, that the policy I have enunciated today is a consistent and pragmatic approach to how we can try to get more choice into the schools system for all kinds of schools. This change to the admissions code makes a modest contribution to that, but we think it is right that that should extend to grammar schools, as it does to all other types of school.
Baroness Walmsley
Will my noble friend join me in congratulating Bradford Girls’ Grammar School, which has decided to abandon selection, to become an academy and accept the statutory admissions code, and thereby to return to its roots—providing a good education to all girls locally?
Lord Hill of Oareford
I am very happy to join my noble friend in extending congratulations to that school and to all others. I am glad that they are able to take advantage of the freedoms that the Government have provided to choose academy status and to decide what they think is the best way forward. Clearly, we know that a large number of schools—I would point, obviously, to some academy schools—have done extremely well without selection. The Government’s priority is to make sure that children on free school meals are given a decent education and that we address the gap between rich and poor.
Lord Flight
My Lords, does the Minister agree that able children should be able to go to academically good schools, whether they are grammar schools, academies or new independent schools, and that it is not only the right thing for them but in the national interest to make sure that the ability is coming up to run key aspects of the nation’s life?
Lord Hill of Oareford
I agree with my noble friend. The point of what we are trying to do is to make sure that there is a decent education system that can stretch and provide a good education for children of all abilities and aptitudes, including the bright and academically gifted. As it does, we are trying to increase the provision of university technical colleges and studio schools for children who are of a different bent.
Lord Grocott
Would not the Minister acknowledge that these really were the bad old days? A decision was made whether children, at the age of 11, should go into a form of education that would in most cases determine their life chances thereafter—their income, capacity to join professions and a range of other possibilities? The other not half but three-quarters of children, or in some cases even 90 per cent—the percentage varied almost randomly according to which local authority area you happened to live in—were told, at age 11, “This is how the rest of your life will operate. We’ve made a judgment. You’re not as able as the rest, and therefore your life chances will be diminished”. We do not want a return to those bad, bad old days.
Lord Hill of Oareford
My Lords, the point I was trying to make is that we want a system that provides opportunities for children irrespective of their background, gives them the chance to get on, whatever their age and stage, and gives them repeated chances to get on. To that extent I agree with the thrust of what the noble Lord said. For some that will be an academic route; for some it will be a technical route; for some it will be a vocational route. We want to move away from the idea of one size fitting all and have a more diverse system that responds to what children need.
Baroness Farrington of Ribbleton
Does the Minister accept that there are those who attended selective schools who did not find them helpful? I ask him to remember that when, at the age of 13, I was asked by my careers teacher in a girls’ grammar school about my ultimate aim in life and I said, “To become a Labour politician”, I was asked whether I was being deliberately insubordinate.
Lord Hill of Oareford
I am not sure that how the noble Baroness has turned out would have been affected by any educational system.
Electoral Register
(12 years, 11 months ago)
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Lord Rennard
To ask Her Majesty’s Government what is their response to the recent Electoral Commission report on the accuracy of the electoral register.
Lord Wallace of Saltaire
My Lords, we have funded research by the Electoral Commission to discover how deep the problems with the existing system are. It shows that the register has become significantly less complete during the past 10 years. The register is around 85 per cent accurate and, as of December 2010, was 85 to 87 per cent complete, with around 6 million electors missing from the register compared to an estimated 3.5 million in 2000. The data show that the current system is not as good as many people thought it was. These findings show that now, more than ever, it is important that we take steps to improve registration rates as part of the move to individual registration. This includes looking at how we can most effectively reach those groups most likely to be missing from the register.
Lord Rennard
Does the Minister agree that we need talks between all the parties, the Electoral Commission and others so that we have confidence that we are handling the transition to individual voter registration in such a way as to ensure that many more people are not missing from the voter register in future? Given the consensus shown in this House in last Thursday’s debate, does he agree that the sanctions which currently apply to households and make most of them conform with the process should continue to apply to individuals?
Lord Wallace of Saltaire
My Lords, my noble friend asks several questions. We value the independence of the Electoral Commission as an umpire for this system. We recognise that the integrity of the system depends on the trust and confidence of all parties involved. We noted the calls from around the House, including from the noble Lord, Lord Wills, last Thursday, for a new all-party group to ensure that confidence is maintained. I have fed that in to fellow Ministers.
Lord Wills
My Lords, I welcome the response from the Minister on cross-party talks and very much endorse what the noble Lord, Lord Rennard, said. Does he agree with the assessment of the Electoral Commission that the approach being taken by the Government towards implementing individual registration risks even more millions of eligible voters falling off the register?
Lord Wallace of Saltaire
My Lords, the Electoral Commission’s estimate that there might be as many as 10 million electors missing was very much a worst-case analysis. We are proceeding from that basis and have to ensure that we achieve a much better result than that. As the noble Lord will know, experiments with data-matching have been achieved. We are considering how one might “nudge” people as they visit the benefit office or apply for a driving licence, and in various other ways, to think about their civic duty to register.
Baroness Berridge
My Lords, the Minister mentioned various ways of ensuring that people stay on the electoral register. One of the groups missing comprises those in private rented accommodation. Will my noble friend the Minister take forward the specific suggestion I made in last Thursday’s debate: that we ask the Post Office to include on the application form for redirecting mail a question about whether customers want to go on to the electoral register at their new address?
Lord Wallace of Saltaire
My Lords, we took that on board and it is one of the many matters being considered. I stress that the people who fall off the register most rapidly are those who move. They are closely associated with people who are young, unmarried, students, and often those in private rented accommodation. That is the area on which all these efforts have to focus.
Lord Tyler
My Lords, did my noble friend note that in the debate on Thursday there was unanimous support from all sides of the House for the obligation to register and for a penalty if you do not do so? That strong view was also held by the Electoral Commission, which believes that if the signal is given that registration is no longer an obligation, without a proper penalty, there will be a disastrous fall-off from the register which is already woefully inadequate, as the Minister has already indicated.
Lord Wallace of Saltaire
My Lords, I was well aware of the sentiments expressed on Thursday. The Government are looking at whether the current offence of failing to return the form from the household should be extended to making it an offence for an individual not to register. We would prefer not to extend the offence, but that is a matter for consideration and no doubt for debate in both Houses.
Lord Tomlinson
Does the Minister accept that if any objective observer looked at our system of election registration in the way which we have the pretension of looking at the electoral systems of many other countries, we would find it very difficult to persuade them that the basis of a democratic election, the electoral register, constituted a free and fair election? Would the Minister consider consulting the international body, the Venice Commission, to see how it, on our collective behalf, advises newly emerging democracies to conduct elections using electoral registers that are much more significant than our own?
Lord Wallace of Saltaire
My Lords, the Electoral Commission has conducted a number of studies of international comparisons. I would merely point out that the OSC electoral monitors have criticised Britain for retaining household registration, and thus very strongly supports the move—as do all parties—from household to individual electoral registration.
Lord Naseby
My Lords, will the Minister look at the situation in Australia, where there is compulsory voting and the register is highly accurate?
Lord Wallace of Saltaire
My Lords, I am not sure how highly accurate the Australia system is. People move in Australia, too, particularly in cities, and young people tend to avoid these things. I am not sure that there would be sentiment for compulsory voting as a basis in Britain, but perhaps we will test that as we take the Bill through the House.
Lord Empey
Is the Minister aware that a significant number of women living alone find themselves at risk by going on to the register? They can be targeted in certain circumstances by thieves and robbers. Could there not be a case for having a register where certain people have the ability not to have their address on the published register, but on one that is available to electoral officers in a polling station?
Lord Wallace of Saltaire
My Lords, I was not aware of that point and will take it on board.
Lord Teverson
My Lords, would my noble friend the Minister tell me what progress the Government are making on ensuring that the owners of second homes do not register electorally at those properties?
Lord Wallace of Saltaire
My Lords, I suspect that a great many Members of this House are registered in more than one property. I certainly am since we have lived both in Yorkshire and in London for a very long time. The questions of what is a second home and what is a holiday home very delicate. I am conscious that in south-west England this is a particularly sensitive issue.
Lord Campbell-Savours
My Lords, why are the Government so keen on removing the offence?
Lord Wallace of Saltaire
My Lords, perhaps I may be precise and make it clear that the Government are not removing the offence. The offence is the failure to return the form for the system of household registration. If we were to make it an offence not to register on an individual basis, that would be extending the offence. We will return to this when the Bill is being considered in both Houses.
Health: End-of-life Care
(12 years, 11 months ago)
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Baroness Greengross
To ask Her Majesty’s Government what measures are in place to inform people of the steps they need to take to ensure their wishes regarding medical treatment at the end of life are respected if they lose capacity.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Department of Health makes annual resources available to the NHS and local authorities to implement the Mental Capacity Act. These resources are for them to inform and support people who may have lost or be about to lose capacity about their wishes regarding treatment and care. The department’s end-of-life care strategy provides further guidance in this area.
Baroness Greengross
I thank the Minister for that helpful reply. Advance directives are now well established in this country, and it is accepted that patients’ wishes in this respect should be followed wherever possible. What systems does the NHS use to record the existence of advance directives and to ensure that they are accessible to doctors as well as available to them so that patients’ wishes can be respected? Where patients have made an advance decision in this regard, what evidence does the Department of Health have on the degree of adherence to their end-of-life medical preferences?
Earl Howe
My Lords, the department does not hold information about the degree of adherence to advance decisions, but I can tell the noble Baroness that there are a number of systems available in the NHS that enable patients to record their preferences for care at the end of life and the choices that they would like to make, including saying where, if possible, they want to be when they die. We know that there is widespread use in the NHS of the Preferred Priorities for Care tool that supports decisions about preferences.
We have also supported the piloting of electronic palliative care co-ordination systems to ensure that a person’s wishes and preferences for care are taken into account and to improve communication between the professions and organisations. The Information Standards Board is currently considering a proposed standard setting out a core data set to support the implementation of those systems.
Lord Walton of Detchant
My Lords, what evidence do the Government have regarding the number of elderly people in the population who have taken advantage, as I have, of signing an advance directive and lodging it with my general practitioner to specify what forms of treatment I would and would not wish to have if I became incompetent? What is the present position of the legal right of an individual to specify while competent a proxy who could fulfil a similar role if the individual in turn became incompetent?
Earl Howe
Unfortunately, my Lords, we do not hold information about how many advance decisions have been made out or pursued; those statistics are not collected centrally. However, I am aware that lasting powers of attorney, which the noble Lord will know came in under the Mental Capacity Act, are growing in popularity and number. The numbers are rising, although I do not have those statistics in my brief. We are encouraged by the fact that people are now aware that they can delegate to a loved one—a family friend or whoever—to take decisions in their best interests should they lose capacity later on.
Baroness Bakewell
Given that people on the whole now know that they have a right to decide when treatment can be withdrawn, and to ask for that to happen, what advice is in place for medical staff who, faced with such a decision, still hesitate to carry out the wishes for fear of prosecution?
Earl Howe
My Lords, the end-of-life care strategy that we are pursuing, published by the previous Government, highlighted the need for a cultural shift in attitude and behaviour related to end-of-life care within the health and social care workforce. The noble Baroness is quite right that this is an issue. In partnership with the national end-of-life care programme, we have taken forward a number of initiatives to develop the workforce’s understanding. We have commissioned the development of an e-learning package, which is turning out to be popular, that includes advance care planning and communication skills. Core competences and principles for end-of-life care have been developed, and a number of pilots have been taken forward in that area. A document called Talking About End of Life Care: Right Conversations, Right People, Right Time has been published and was completed early last year. There are a number of initiatives in this area.
Lord Carlile of Berriew
Does my noble friend agree that the new NHS commissioning arrangements are such that they give an opportunity for advance directives to be collected and collated in a coherent way by general practitioners? Will he also confirm that, whatever advance directives are given, the need to provide comfort to patients remains a duty on clinicians?
Lord Singh of Wimbledon
My Lords, in considering better enhanced provision for end-of-life care for those who have lost capacity, will the Minister note that our opinions and attitudes change with the perspective of time? A young boy may consider that upon reaching the age of 60 or 70, life would not be worth living. I think that a 60 year-old—and most of us here—would differ from that opinion. It is very important that advance directives—living wills—should be considered and should be important. However, they should be tempered with proper questioning and proper care.
Earl Howe
I agree fully with the noble Lord. Advance care planning is not a one-time issue, it is an ongoing process. It requires regular reviews of a patient’s wishes and assessments of their needs. Support, training and education for staff in understanding that, and taking forward care planning, are being made available through the end-of-life care strategy. People’s wishes and needs change throughout life, and that is to be expected.
House of Lords: Car Park
The Chairman of Committees (Lord Brabazon of Tara)
My Lords, with the leave of the House I would like to make a brief statement.
Following the remarks made in the Chamber last Wednesday, I thought that it might be helpful to say something about the new arrangements in the Peers’ car park. As noble Lords are aware, on 29 November the Administration and Works Committee agreed that there should be a three-month trial of new access arrangements in the Peers’ car park. The new arrangements were designed to improve vehicle security measures, and it had been my intention that the Administration and Works Committee should review the trial at the end of the three months.
However, I have heard the concerns of noble Lords about the new arrangements, and have therefore asked Black Rod to produce an interim report for the committee to consider at its next meeting on 7 February. Black Rod is recording a variety of data on vehicles using Black Rod’s Garden Entrance and entering the Peers’ car park at different times of the day, and is keeping a log of concerns raised by Members, so I would encourage Members to contact Black Rod directly about any concerns that they might have. The information gathered will be presented to the Administration and Works Committee on 7 February so that the committee can consider whether to proceed with the trial, and whether, if it does continue, any modification should be made. Following this, I will report back to the House.
Finally, I would like to echo the remarks made by the Leader of the House last week, that the Floor of the House is not the appropriate place to discuss security matters. For this reason I do not propose to take any questions at this stage.
Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 11 months ago)
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Lord Beecham
“(a) they are not specifically excluded under Schedule 1, and”
Lord Beecham
My Lords, perhaps the noble Baroness should be aware that domestic matters will come later. I have, if not by my bedside at least on my bookshelf, the splendid volume The Rule of Law by the late and most distinguished Lord Bingham. I was struck by one quotation in that book from the chapter on dispute resolution, in which the author made a case with compelling clarity. He stated:
“Legal aid is a service which the modern state owes to its citizens as a matter of principle. It is part of the protection of the citizen’s individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves. Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law. That law again is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the State to make its machinery work alike, for the rich and the poor”.
Lord Justice Jackson, on whose report the Government rely heavily for much of the Bill, particularly Parts 1 and 2, was implicitly very supportive of that definition. He was certainly very clear that the scope of and eligibility for legal aid should not be reduced.
The Bill seeks, in effect, to turn on their head some provisions of the Access to Justice Act 1999, particularly those parts to do with the availability of legal aid, which commanded all-party support. The Access to Justice Act indicated which services the Community Legal Service would not provide and Section 4(2) of that Act provided that legal assistance would be available in all other areas. This Bill seeks to reverse that position and make legal aid provision a matter of exception rather than of course. It is that aspect that these amendments address. Their effect would be to reverse the way that the Government are putting matters. Instead of listing only matters that would be eligible for legal aid, they exclude everything except those matters that are contained within the clause.
There will be a further debate, which my noble friend Lord Bach will initiate, about the procedures to change how the clause we are currently debating might be amended if it stands. However, to fix at a particular point in time an exclusive list of areas of law that should be eligible for legal aid is profoundly mistaken. After all, the law, like society itself, is not static. When I qualified as a solicitor 44 years ago, there were whole areas of law that are now justiciable and part of everyday life which were not recognised at all. There was effectively nothing in the way of equality legislation or legislation affecting discrimination or disability. There was little, if anything, explicitly around the human rights or environmental agendas. Employment law was effectively in its infancy. I well remember the Redundancy Payments Act 1965 and, for a time, giving lectures on what was then developing as employment law. In all these areas, legal assistance, legal advice and legal aid ultimately came to be provided.
We cannot say at this point that similar situations will not arise in future and that there will not be similar changes in the law which should give rise to a right to legal aid provision. The presumption that the Bill makes is that legal aid is not to be available. We on this side submit that that is the wrong presumption. The presumption should be that legal aid should be made available unless it is decided, for reasons of economy or other reasons, to exempt particular matters. That has happened in the past under the previous Government and I have no doubt that there will be occasions when it might be justifiable in the future. However, I submit that the Bill is antithetical to that very clear call, cited with such approval by Lord Bingham, for legal aid and access to justice to be available to all in significant areas of public policy and every-day life. I beg to move.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, Amendment 21 would have the effect of removing Part 1, Schedule 1 and bringing within the scope of legal aid, civil legal services available for all categories of law except those excluded in Parts 2 and 3. Broadly speaking, these amendments seek to reinstate the approach to the scope of civil legal aid under the Access to Justice Act 1999—I think that the noble Lord, Lord Beecham, readily acknowledged that—which provided that most categories were in scope of funding except for those limited matters set out in Schedule 2. As noble Lords will appreciate, this would significantly impact on the savings and fundamentally defeats the object of the reforms. We have never hidden the fact that the aim of these reforms is not just to save public expenditure, given the position with the public finances, but to encourage alternatives to a legal settlement of disputes, not least through mediation. My right honourable friend the Lord Chancellor is attempting to reverse the trend on the part of many in our society over the past 20 years to see litigation—and tax-funded litigation, at that—as the first option, and we have gone about this in a way that moves away from the 1999 Act.
The Government have undertaken a comprehensive review of legal aid, have published impact and equality assessments and received nearly 5,000 responses. We have taken into account the importance of the issue, the litigant’s ability to present their own case, including their vulnerability, the availability of alternative sources of funding, and the availability of other routes to resolution. We have never hidden the fact that this is a change from the 1999 Act, but one which retains access to justice while coming to terms with economic reality. We have prioritised funding so that civil legal services as set out in Part 1 of Schedule 1 will be available in the highest priority cases; for example, where a person’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
With all respect to the Minister, that is not a very satisfactory reply. In the first place, to suggest that the whole purpose of these changes is to avoid litigation as the first option mistakes the nature of the system. It is not only legal aid and representation that will disappear under these provisions but legal advice and assistance, which often prevent cases going to court. In many cases such measures avoid what I and many observers fear will happen; namely, a significant increase in litigants in person. That is likely to lead to considerable delays, the clogging up of the courts, will be inefficient and, for that matter, costly. The noble Lord airily cited the 5,000 responses received to the consultation paper. He did not tell us how many of those responses supported the thrust of the consultation paper. The suggestion is that about 90 per cent of respondents were very much opposed to the proposals.
In any event, there is another issue. The Government are in effect tying their hands and those of their successors on what might ultimately be thought to be desirable to be brought within scope. That will now require primary legislation to amend the Bill, if it is enacted, on those points. No utility is served by that process. It is always open to Governments to change eligibility if they choose to do so and to take matters out of scope, but we are now seeing an attempt to fix the situation as it now is—to imprison the present system in amber, as it were. That makes change unnecessarily difficult should the situation in society as a whole change and require further alteration.
This matter goes to the heart of the Bill, along with the next amendments to be moved by my noble friend. In the circumstances, I will not push this to a vote at this stage, and I beg leave to withdraw the amendment.
Lord Faulks
Lord Faulks
My Lords, the amendment is in my name and that of the noble Lord, Lord Pannick, and others. The noble Lord, Lord Pannick, asked me to give the House his apologies for his unavailability today. The amendment concerns Clause 8(2), which gives the Lord Chancellor the power to modify Part 1 of Schedule 1 so as to omit services from the scope of legal aid and assistance. I have considerable concerns about that power.
First, this allows for still further reductions in the scope of legal aid by means of delegated legislation. Your Lordships' House is currently debating the scope of legal aid. For example, we are shortly to consider the withdrawal of legal aid for clinical negligence. The power would allow the Lord Chancellor to remove areas from the scope of legal aid without proper debate on the Floor of the House. There should surely be the opportunity for such debate if the Lord Chancellor is inclined to restrict in future the scope of legal aid.
Furthermore, although the Lord Chancellor can remove legal aid from the scope in areas he thinks appropriate, he is not given the concomitant power to restore legal aid. There are two circumstances in which he or his successor might want to do that. The first is if there was an improvement in the economy. The cuts in legal aid are, as the Minister has repeatedly said, needed as a result of the Government's overall strategy. Should matters improve, there should be an opportunity for the Lord Chancellor to restore legal aid within the terms of the Bill.
There is another reason. However well planned the cuts are—I know that much criticism is made, particularly by the party opposite, of the lack of an impact assessment—it is difficult to be absolutely confident about the effect. For example, I do not think that the party opposite had any idea of the extent of the take-up of conditional fees when it introduced changes in the Access to Justice Act.
I suggest, further, that the uncertainty about the effect of legal aid was acknowledged by the Government themselves in last year's Community Legal Service (Funding) Amendment Order 2011. The Explanatory Memorandum stated that,
“the LSC will monitor the situation to ensure that they are aware of any market shortfall and the Government will work closely with them so that that they are able to respond promptly, effectively and appropriately”,
should this materialise. The Lord Chancellor should be able to respond in a like manner should there be some egregious examples of market shortfall or the establishment of legal aid deserts. Your Lordships’ Constitution Committee said in paragraph 20 of its report that if the Lord Chancellor is to have the power to take away by delegated legislation, he must also have the power to provide.
The amendment is intended not to be destructive but to improve the Bill so that, within the constraints considered necessary by the Government, there should none the less be a proper reflection of the principles of access to justice. This amendment and others in the group should help to achieve this. I beg to move.
The Lord Speaker (Baroness D'Souza)
My Lords, I should remind the Committee that, if this amendment is agreed to, I cannot call Amendments 23 to 27 for reasons of pre-emption.
Baroness Butler-Sloss
My Lords, I have put my name to Amendments 23 and 27, which are very much on the same lines as the amendment by the noble Lord, Lord Faulks. I find it absolutely astonishing that the Government should, in Clause 8, have an arrangement whereby they can delete legal aid but they cannot bring it back. It is particularly astonishing because a number of judges who know what they are talking about—two Supreme Court judges who have been judges in the Family Division and the present president of the Family Division—all say that this is a false economy. I very well understand that it is absolutely necessary to cut the legal aid bill. However, if the Government cut it in the wrong way, as I suggest they are doing and as I shall say in the debate on later amendments, they cannot put it back if it requires primary legislation.
As the noble Lord, Lord Faulks, has already said, the whole purpose of these amendments is not to destroy the Bill but to allow the Government, or indeed a subsequent Government, a degree of flexibility so that they do not have to use primary legislation to achieve their purpose. Therefore, I very much support all the amendments in this group.
Lord Goodhart
My Lords, I entirely agree with what has been said by the noble Lord, Lord Faulks, and the noble and learned Baroness, Lady Butler-Sloss. At present, as has already been pointed out, the Bill authorises the Lord Chancellor to omit the services under Schedule 1 but it does not permit him to extend his powers by adding to the services in Schedule 1. Any extension of the power would therefore require primary legislation. By contrast, the deletion of existing services would, under Clause 132(5), require only the affirmative procedure, which is quicker, simpler and cheaper than primary legislation.
From long service on the Delegated Powers Committee, I am satisfied that it would be acceptable to use the affirmative procedure to use Clause 8(2) to delete services that now exist under Schedule 1. We should recognise that as desirable. From that, it follows that we should make it as easy as possible to reconstruct the provisions that have been cut and that ought to be restored when the financial situation permits. That would be done most swiftly by including in the Bill the ability to introduce powers to add new services by the affirmative procedure, as well as a power to remove existing services. That will cost nothing today but it will help to satisfy those of us who accept that some reduction is needed now but who do not want it to continue when the reduction is needed no longer. In some years to come, that will be the case.
Therefore, if we are to go ahead with the Government’s proposal, it is essential to add to it the requirement that the Government accept that in the future, when it is possible on economic grounds to do so, existing provisions can be added and not just deleted by the affirmative procedure in both Houses.
Baroness Mallalieu
My Lords, I wonder what on earth could, in fact, be a valid reason for objecting to the spirit of the amendments in this group, in particular the one proposed by the noble Lord, Lord Faulks. If, as I fear, some parts of the Bill remain unchanged by amendment and legal aid is withdrawn from some areas, it is almost certain that it will be shown in due course that legal of aid was essential for the smooth running of our benefits systems, our legal system and our society. I suspect that there will be a public sense of unfairness when the extent of the proposed cuts is more widely known. I suspect that at that stage there may need to be, as others have already said, some rapid amendment to the existing system.
Who knows whether our economy may once again prosper? Further money may be available to spend, not just on more lavish opening ceremonies for the Olympics, royal yachts or high-speed railways but on the needs of people who are poor and disadvantaged. It is surely not beyond the bounds of possibility, as history has often shown, that a new field of law will develop rapidly and that legal aid will need to be extended to a different category that has not been anticipated to require it. Flexibility, as others have said, so that further primary legislation, which is costly and time consuming and inevitably involves considerable delay, can be avoided, ought surely to be embraced by the Minister with enthusiasm. I look forward to seeing it in a moment.
Lord Thomas of Gresford
My Lords, the problem for many lawyers is that we so often look into the past. Common lawyers in particular try to piece together what has happened before. Consequently, we tend always to look for evidence to support our interpretation of events. I certainly share that problem, but I have also had some experience of running an independent local radio company. During that time I realised the great difference between businesspeople and lawyers. Businesspeople have to take decisions about the future, and they can do that only on limited information.
In this instance, the Government have had to take a decision; it has been forced upon them. To adopt a phrase first used by the noble Lord, Lord Elystan-Morgan, 50 years ago, “The Visigoths were at the gates”. It was therefore necessary to decide how best we can cut the deficit and how, in this instance, legal aid should share that burden. This is an issue which I think I raised with Ministers before the Bill came here—I certainly referred to it in my Second Reading speech—and I have had further discussions since. When taking decisions about the future, one has to have flexibility when the future happens. One has to be able to adopt what was decided at one moment in accordance with experience.
This is an instance of that. Some of the prognostications that we have heard from the lawyers around this place—and there have been a lot of “mays” and “what is likely to happen” and so on from lawyers—might happen in the future, in which case the provision of legal aid will have to change. The changes might be positive and legal aid granted more widely. It is therefore essential that the Lord Chancellor has the power to add back into the scope of legal aid matters that prove not to be profitable in the way that the Bill envisages. There are not the alternatives that the Minister speaks of for dealing with various legal issues and the very important question of access to justice. That is why I am speaking to Amendment 25 in my name. This is a very positive way in which the Minister can demonstrate that the Government will be flexible in this area, will listen to the concerns that are voiced in the Chamber and will adapt the Bill accordingly.
Lord Scott of Foscote
My Lords, I support strongly the amendment proposed by the noble Lord, Lord Faulks, and the other amendments in the same spirit. It is important in considering the merits of the amendments that we bear in mind the purpose of a civil justice system. I suggest that a country is not entitled to regard itself as civilised unless it has a proper, workable system for the administration and attainment of civil justice. I spent my professional life working in the civil justice system. Of course, the criminal justice system has its own imperatives, but a civil justice system whereby individuals can obtain remedies or resist attempts to obtain remedies against them is of critical importance if our country is to retain the status that it has earned over many years of being a civilised country in which it is a pleasure to live.
Lord Scott of Foscote
I beg your pardon. That might have sounded like a peroration but I am afraid it was only a beginning. Cutting down on legal aid might be very necessary for cutting the deficit, but it must not be allowed to get to a stage where it imperils the adequacy of the civil justice system.
A plethora of litigants in person is not an ornament to a civil justice system but a reproach. I was a judge for many years, and on many occasions litigants in person appeared before me, sometimes as plaintiffs and sometimes as defendants. It is never a satisfactory means of conducting a trial. Every judge wants to come to the correct conclusion if they can, and every judge must bear in mind that one party is going to lose and must leave the court feeling that he or she has had justice. Where there is a litigant in person, the judge cannot avoid appearing to be on the side of that party. The litigant in person usually does not know how to put their case or the best arguments for the propositions that they are advancing, so the judge will step in and examine them on behalf of the litigant in person. That is fine for the purpose of obtaining justice but does no good in persuading the party on the other side, who has listened to his or her lawyers attempting to argue against the judge, that this is an appropriate means of obtaining a just result. That is the effect of producing a state of affairs in which one or other party cannot afford access to justice through the remedy of employing lawyers to appear in the case.
It is of very great importance, if the Minister is to have the power to remove areas of eligibility for legal aid or to add areas where there should be legal aid, that both those forms of executive law-making should be associated with the requirement for an affirmative resolution from each House, as the noble Lord, Lord Goodhart, suggested. Without that safeguard, these amendments are essential. If they are not agreed, that safeguard at least should be included.
Baroness Kennedy of The Shaws
My Lords, I apologise for interrupting the noble and learned Lord, Lord Scott. There is no greater crime than for a barrister to interrupt a judge mid-speech, so I am covered in a white shroud as I appear before him.
I, too, support the noble Lord, Lord Faulks, in this amendment, and in the other amendments. They tend to flush out a rather important question: is it the intention that this is a continuation of the erosion of legal aid, and that the idea of turning it back is never to be considered? Are we talking about the withering on the vine of legal aid? If so, you would not have in mind the opportunity of the Lord Chancellor to reinstate legal aid or to put it back in place as a result of evidence of shortcomings. If the intention is simply to reduce legal aid inexorably, of course you would not bother having that bit as part of the powers of the Lord Chancellor.
The piece of law to which I want to speak is that of unintended consequences. We know that it is only in the experience of the absence of legal aid that we will see its impact. I want to reinforce what others have said, that it will be in the sucking of the sweetie that one will be able to work out whether the consequences are so serious that the Lord Chancellor might want to reinstate legal aid or to put it into a place where it had not previously been. I strongly urge the Minister to look again at this and to have that reciprocal part of the power so that it will be possible to put legal aid in place, or to reinstate it where it has been removed.
Lord Carlile of Berriew
Like other noble Lords, I wish to support what has been said by all speakers so far in this short debate. We are talking not merely about reinstatement of legal aid but about adding to legal aid issues that have not yet been considered. In the first debate this afternoon, the noble Lord, Lord Beecham, referred to his experience, which I share. When I and many others in this House started practising the law, there were many things that we had not envisaged that we now take to be absolutely basic rights. For example, equalities legislation, the equality of women and the right to equal pay in the workplace for equal work had barely started when I was called to the Bar in 1970. We must, therefore, keep the door open for such issues to be added to legal aid.
The final point is a question to my noble friend the Minister. Why are the Government opposed to addition or reinstatement? The only informed speculation, if I can call it that, which I have heard on the reasons for this provision is that Ministers feel that they would avoid being lobbied by outside interest groups if this were a one-way-only provision. Surely being lobbied is something that we expect and welcome in political life in this country, and Ministers of the Crown and their officials should be robust enough to resist if the lobbying lacks merit. If the Minister is to resist the spirit of the amendments this afternoon, the House would be grateful for a coherent set of reasons why.
Lord Elystan-Morgan
My Lords, I was exhilarated, enthralled and deeply flattered by the reference made by the noble Lord, Lord Thomas, to my existence 50 years ago. It is surprising that he should remember that I was there at all, let alone the hackneyed clichés that I was given to in those days.
I shall speak to this amendment, and to Amendment 23, if I may. Their effect would be to give the lie to the canard, which may well be suspected by many people, that the Government are a liquidator of legal aid. The first part of Schedule 1 is the remnant, remainder and rump of what was once a splendid system created in 1949. I make no apology for reminding the House that in 1949 the financial condition of Britain, having fought and won a dreadful war, at massive expense, was even more parlous than it is today. Yet the Government did exactly that. They sent John Maynard Keynes to the United States to negotiate, on very hard terms, a massive loan that had harsh conditions, the last instalments of which were repaid only some six or seven years ago. That was the situation and it would have been easy for the Government of the day to have said, “Justice is a magnificent thing—it is a noble ideal—but in our weakened condition we simply cannot afford it”. They did not say that, to their eternal credit. The first point to be made is that the amendments give the lie to the idea that the present Government are trying to reduce legal aid and that they are a liquidator of everything that legal aid fundamentally represents. That is neither the attitude nor the intention of the Government.
Lord Howarth of Newport
My Lords, should not the governing principle be that every single one of our citizens, regardless of their income or personal resources, should have available to them legal advice and representation should they find themselves in a situation of dispute and where they have a reasonable case to pursue through legal channels? Is that not a fundamental liberal principle? The noble and learned Lord, Lord Scott of Foscote, articulated it very finely and much better than I can, but this has to be our benchmark.
Of course, I recognise that this group of amendments is designed to salvage what can be salvaged and to limit damage. However, we ought to differentiate quite carefully between the purport of the amendments in this group, because they are not all saying the same thing. I support Amendment 24, tabled by my Front Bench, because the effect of it would be that no further areas could be taken out of scope other than by new primary legislation. The way that Parliament deals with secondary legislation does not provide adequate opportunity for debate about very important and contentious matters. Therefore, it would be a proper safeguard that there could be no further attrition of legal aid—we would not take any additional areas out of scope—without Parliament thinking deeply about it, taking care about it and being fully aware of what it is doing.
On the other hand, Amendment 24 would allow areas to be brought back into or added to the scope of legal aid by order. That is acceptable because you are not taking away people’s legal rights, you are enhancing them, and there must be a presumption in favour of that as a matter of principle and that Parliament would therefore not be required to give such proposals the same intensive scrutiny as it ought to give to proposals to take areas out of scope. I agree with my noble friend Lady Mallalieu that there may very well be instances where Parliament would wish to act fast to bring an area back into scope. Therefore, Amendment 24 is preferable within the group.
Perhaps the Minister will again defend the Government’s breach of liberal principle in taking whole areas out of scope of legal aid with the argument that it is imperative to save public expenditure. I noticed that the Lord Chancellor, in that very interesting article he wrote in the Guardian just before Christmas, said that:
“Legal aid in England and Wales costs vastly more than other common law variants—twice as much per head as New Zealand’s system for example”.
However, I understand that the cost of civil legal aid in New Zealand is not significantly higher per head. It is of the same order as it is in England and Wales, and it is in fact in the criminal legal aid area that the New Zealand system is so much more economical—they spend less per head on criminal legal aid but not on civil legal aid. However, although the Government justify what they are doing by reference to the comparison with New Zealand, they have not chosen to seek economies in criminal legal aid, but in civil legal aid. The Government need to examine these figures and, I hope, explain their economic rationale rather more fully than they have so far.
I am sure the Minister has had the opportunity to see the study entitled Unintended Consequences: the Cost of the Government’s Legal Aid Reforms by Dr Cookson of King’s College, London, in which he examines the possible knock-on effects—the higher spending that may be incurred for other government departments and indeed for the Ministry of Justice—as a result of the polices in this Bill. The Minister has been extremely helpful to the Committee in writing to us very fully to explain why the Government have adopted the policies that this Bill would enact. If the Minister would be kind enough to write to us with a detailed refutation of the arguments that Dr Cookson, a distinguished academic, has put forward in criticism of the Government’s case that it will be making a net saving to public expenditure, I am sure that that would be very helpful.
I am very far from saying that the sky should be the limit in terms of what we spend on legal aid. I would entirely agree that where there is waste, it should be taken out. However, the assault should be on waste, not on scope. If the principle is that every citizen should have equal access to the law, then it is not proper for the Government to say, “But if the conflict or dispute that might be litigated is in one particular field, then the citizen is not to have access to the law for a dispute of that kind”. It is fine to do all you can strenuously to reduce unnecessary costs, but do not breach the fundamental principle.
I would finally say that while it seems to be almost common ground around the House that it is necessary to reduce the legal aid bill, with respect, it is an absurd proposition to say that we cannot afford what we are spending. I repeat: we do not need to spend every penny of it, because there may well be waste in the system and it may be possible to reform it to make it more economic while maintaining access to justice. However, to say that a total of £2.2 billion spent on legal aid, which is only 1 per cent of the social security budget, is something that as a country we cannot afford—a country that prides itself on being a liberal society, and on the rule of law—seems to me to be wrong. This is a moral and a political choice, not a matter of economic exigency.
Lord Phillips of Sudbury
My Lords, I would very briefly reassert the fundamentalism of access to the law. Equality before the law is one of our basic claims. If in fact it does not exist, it damages not only the law and the rule of law but democracy itself.
This group of amendments is interesting. Amendment 22, moved by the noble Lord, Lord Faulks, which leads the group, simply removes subsection (2) of Clause 8, which will mean that any change in the scope of legal aid would have to be by primary legislation. Our amendment, spoken to by my noble friend Lord Thomas of Gresford and to which my name is added, seeks to even things up by saying that not only can the Government omit or change by deletion the scope of legal aid, but can add to it. The third position is that of the noble Lords, Lord Bach and Lord Beecham, who in their amendment reverse the tables, saying that you cannot remove from scope but you can add to it.
I must confess that I would, if the world were a perfect place, prefer the first amendment, Amendment 22, which would require all changes in scope to be by primary legislation. However, living on a pragmatic globe, I suspect that the best we may do is at least to have equality as between diminution of scope and addition to it. Hence Amendment 25, which incidentally is mirrored by Amendment 23, spoken to by the noble and learned Baroness, Lady Butler-Sloss.
I would just add this point, which has not been sufficiently clarified or emphasised. Whether something is in or out of scope is not, in my book, most significantly a question of finance. If we are the most legislated democracy on earth—do not forget that we pass about 14,000 pages of new statute law a year—it behoves us, in this Parliament above every parliament, to ensure that what we do has fairness of application in the real world. Above all, I put it to my noble friend Lord McNally that there has been a unanimity of view from those who have contributed to this debate that, as things stand, the exclusions from scope are going to cut so deep that the consequences will be social and political unless they are reversed speedily. For that reason alone, if I were sitting in the seat of my noble friend, I would want to be able to add back speedily. I promise him that if this Bill goes through as drafted, scandals will arise, which the Government will want to rectify swiftly. Therefore, I hope that the Government will move on this.
Lord Clinton-Davis
As a former Member of the other place and as a Member of this House, I am deeply suspicious of secondary legislation. The onus of proof that secondary legislation is absolutely essential must rest on the Government. There are too many instances where people do not vote on the issues which arise because they happen perhaps late at night or in circumstances where it is not regarded as absolutely essential that Members should attend. Whether that is right or wrong does not matter. What is important is that the Government should resist the temptation to indulge in secondary legislation wherever possible.
The onus of proof rests fairly and squarely on the Government. In my view, they have not begun to do that. They disregard entirely the essential nature of that duty. In other words, they are saying that it is not important. I think that it is vital that Parliament conducts itself properly and scrutinises legislation where possible. I do not think that we should resort to secondary legislation, except where it is proven to be absolutely essential.
Lord Bach
My Lords, first, I thank my noble friend Lord Howarth in particular for supporting our Amendment 24. Of the alternatives set out so clearly by the noble Lord, Lord Phillips of Sudbury, Amendment 24 is the preferred amendment. But I want to make it absolutely clear from our Front Bench that our real quarrel is with the Bill as drafted. In the mild words of the noble and learned Baroness, Lady Butler-Sloss, it is astonishing to find Clause 8(2) in modern legislation. It goes without saying that we believe that this is a non-party issue. Right around the Committee, it has been suggested that on this the Government have got it seriously wrong. If I am a little harsher on the Government than noble Lords have been so far, it is because this is an essential and very important part of this Bill. It is crucial that the Government move on it, if not at this stage, then later. I very much hope that on this group, the Minister can help us by implying that the Government are thinking of changing their position.
The Bill represents an attack on a number of crucial areas of civil legal aid. If the Government get their way, the whole edifice of social welfare law will be severely damaged, perhaps to destruction. The restrictions on private family law are poorly thought through and the proposed taking out of scope of clinical negligence, which we are to debate shortly, seems more ridiculous as every day passes.
We all agree—we certainly do—that there must be some cuts to legal aid. But there should not be these cuts, and any cuts should not be so fast or so far. I pose again to the Minister a question to which I have had no response up till now: why on earth is all criminal law seemingly off limits? Is there no waste, nothing that could be rationalised, in that area of law which, I remind the Committee, takes well over 50 per cent of the whole legal aid budget? The answer is apparently not, because the Government have announced that there will be no moves on criminal legal aid until 2015 at the earliest. I pose the question again: why?
The present position, as I understand it, is that a government can, to a limited extent—I shall be frank in saying that I am not sure to what extent—alter by order what is in and out of scope; for example, by amending the funding code as felt appropriate. But what the Bill asks us to accept is a quite new proposition; namely, that the Government should have the power to omit services from Schedule 1 by order. However, there is no suggestion, of course, that they should have the power to add services by order. Again, the question that all noble Lords have been asking the Minister is: why not? Why this imbalance, this tilt, against legal aid? My own view is that the answer is a bit depressing. It is that, to put it mildly, the ministry has a rather small-minded, extraordinarily partial view of legal aid; it does not much like it and would rather be rid of it than defend it. It does not see it as central to access to justice, let alone the rule of law, and is rather looking forward to cutting more. What other impression can one possibly get from the way in which this clause is drafted?
It is often said, particularly in this House, that the real argument against allowing a provision like this is not for now but for a future government who may not be troubled by the same principles as are supposed to exist in all modern governments of whatever complexion. However—and I hope that this does not sound too harsh—my own reason for not allowing this crude power to omit legal aid to the Government is just as much to do with what I fear is the present Government’s careless attitude towards legal aid as with some rogue government in the future.
Right across this Bill, or right across Part 1 at any rate, the cavalier manner in which it is proposed to decimate social welfare law, to remove clinical negligence from scope and to restrict the definition of domestic violence on the one hand and have too wide evidential criteria for it on the other all tend to suggest that, on the importance in our society of the availability of civil legal aid for ordinary citizens to access justice, the Government really do not have the enthusiasm that they should have. I believe that this view is shared by many inside and outside this Committee. How then can it be right to entrust the Government with the new extensive powers that they propose? Legal aid could be further diminished by order, but nothing could be added to it except by primary legislation. Just to state that proposition shows how wrong it is.
No one apart from the noble Lord, Lord Goodhart, has referred to the two important reports that have been published for our benefit. One was from the Delegated Powers and Regulatory Reform Committee, which discussed this issue and came to the following conclusion:
“The Committee has concerns about clause 8(2), and those concerns were not allayed by the explanation in the memorandum that this was merely an updating provision. However, there is precedent for a power of this type to be delegated and subject to affirmative procedure (whether the power is to add or to remove from the Schedule), and on that basis, we do not find it inherently inappropriate. But we draw it to the attention of the House because it is not limited to routine updating and may legitimately be used to make substantial omissions from Schedule 1.”
The Select Committee on the Constitution said this about Clause 8(2):
“Under the Bill the Lord Chancellor will have a power to modify Schedule 1 by omitting further services from the scope of civil legal aid (clause 8(2)). Orders made under clause 8(2) will be subject to the affirmative resolution procedure. This provision should be amended to enable the Lord Chancellor not only to omit services from the scope of civil legal aid but also to add services to the scope of civil legal aid.”
I do not want to quote from the Government’s response to both those committees’ reports. Perhaps the only advantage was that of consistency, because the two paragraphs were the same in each case. If noble Lords look at those paragraphs they do not make a convincing case, or indeed any case at all, against the amendments that have been raised in Committee today.
This is another part of the Bill where the Government must move. I very much hope that the Minister will show signs that the Government have listened to the unanimous view of these committees on this matter today.
Lord McNally
My Lords, I thank all noble Lords who have contributed to this debate, and particularly my noble friend Lord Faulks for introducing it. There is a little bit of the political bruiser in me that always wants to take the noble Lord, Lord Bach, full on, particularly when he is in piety mode. He was part of a Government who carried out six reviews of legal aid in its last five years, brought in real cuts, and had an actual manifesto commitment to cut legal aid.
Lord McNally
As I said at the very beginning, we were faced with circumstances where we had to make hard choices. The noble Lord sticks to the mantra, “Not these cuts, not this place, not now”.
A number of telling points have been made by the contributions today. To clarify a point that my noble friend Lord Faulks asked for, the regulations under Clause 8(2) would be subject to the affirmative procedure in terms of parliamentary scrutiny. However I take full note of the point that the noble and learned Baroness, Lady Butler-Sloss, made, that strong and experienced legal opinion has advised against this one-way street which is built into the Bill. I also take on board—which is why I want to come back to this at the end—the question of primary legislation as against secondary legislation.
I also take note of the advice of the noble Baroness, Lady Mallalieu, about the need for flexibility and future-proofing, which my noble friend Lord Thomas also referred to. The importance, as the noble and learned Lord, Lord Scott, pointed out of the adequacy of the civil justice system, is something that is constantly in our minds in trying to determine our priority, and I take on board the warnings that we have had about the dangers of litigants in person.
The noble Baroness, Lady Kennedy, asked whether the aim was to see legal aid wither on the vine. That is certainly not our intention. Like previous speakers, the noble Baroness argued again the case for having some guard against what she termed the “law of unintended consequences”, although the term “sucking on the sweetie” must be some aspect of Scottish law rather than English law. As a non-lawyer, I would not know. However I agree that “sucking on the sweetie” may well be the test of all legislation.
My noble friend Lord Carlile called for us to keep the door open. He was right to say that all Ministers must be ready to take lobbying; that is not in doubt.
Lord Clinton-Davis
What I said was that secondary legislation should be introduced only where essential, and the onus of proof is on the Government.
Lord McNally
I did hear the noble Lord’s speech. I was merely pointing out that as a parliamentarian I, too, have worried about the overreliance on secondary legislation, which is a point that I would concede to him.
There is no doubt that there is great strength of feeling about these amendments. I assure the Committee that the Lord Chancellor has noted the concerns; my noble friend Lord Thomas and others had a meeting with him earlier in the week when they put this case very strongly. With the leave of the House, and I think the noble Lord, Lord Bach, intimated this in his wind-up speech, in the full light of the points made in this debate and by the Delegated Powers Committee and the Select Committee on the Constitution, both of which have been referred to, may the Justice Secretary look at these matters again and give serious consideration to the amendments—not all of which mesh together—so that we can bring back proposals regarding this clause for further debate on Report? Given that assurance that we are taking this matter away in a constructive way, I hope that noble Lords will agree to not to press their amendments today.
Lord Faulks
My Lords, I am very grateful to all noble Lords who have spoken in this debate. It is a matter of happenstance that I am dealing with this amendment. The other amendments are in the same spirit, although to slightly different effect. I do not wish to intrude on the spat between the noble Lords, Lord McNally and Lord Bach. My concern, in this amendment, is not so much the detail, which we are going to develop in due course in argument, but more the question of principle, which I would suggest, and others all round the Committee have suggested, is at the moment embodied in this clause in a most unsatisfactory way.
I am, however, very grateful for the conciliatory noises made by the noble Lord, Lord McNally, and for his assurance that what has been said in this debate, and what has been said in the various committees that have considered this clause, will be noted by the Lord Chancellor. I very much hope that, when this matter comes back on Report, those concerns can be reflected by the Minister. In that guise, I am happy to withdraw this amendment.
Lord Lloyd of Berwick
“Clinical negligence(1) Civil legal services provided in relation to the obtaining of one or more expert reports in clinical negligence proceedings.
(2) In this paragraph—
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);“expert report” means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;“proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated.”
Lord Lloyd of Berwick
My Lords, we now to come to the first of 60 or so amendments dealing in detail with Schedule 1. It is safe to assume that all of those amendments would be likely, in one way or another, to add to the cost of legal aid. The amendment now before your Lordships is different. It is true that Amendment 28 would add £6 million to the legal aid bill, but, coupled with Amendment 139, to which I shall also be speaking, it will save the taxpayer at least three times that amount, and probably a great deal more.
It is because of that special feature that I wrote to the noble Lord, Lord McNally, on 16 November and asked to see the Lord Chancellor and the Minister in charge of the Bill in the House of Commons. I received a very courteous reply from the noble Lord, Lord McNally, on 1 December, for which I am grateful. It refers to the point which I had raised in some little detail, but, if he will forgive me for saying so, it does not actually answer the point. It is a point, I hasten to add, which is not my point, but is a point which has been made by Lord Justice Jackson. I would not normally refer to the views of a member of the judiciary in moving an amendment, but as he is the author of the report on costs in litigation which forms the whole basis of Part 2 of this Bill, it seemed right to make an exception in this case.
So what, after all that, is the point? As I suspect your Lordships know all too well, clinical negligence cases are currently funded in two ways: either by legal aid or by conditional fee agreements—CFAs—supplemented in almost every case by “after the event” insurance. The purpose of taking out the “after the event” insurance is, of course, to cover the claimant against an adverse order for costs. The premium is paid by the claimant, as one would expect, but since 2000, when the 1999 Act came into force, the cost of the premium has been recoverable from the defendant—usually, although by no means always, the National Health Service—whether the claimant wins or not. That is the whole point.
It was hoped that in that way the cost of legal aid would be reduced. But of course it has not worked out, as these things seldom do, exactly as intended. The reason is the huge increase in the cost of taking out such insurance. It is now a major element in the cost of bringing clinical negligence proceedings. It is also a cost which, as I have said, currently falls on the National Health Service, one way or the other, and is therefore ultimately borne by the taxpayer.
Therefore, the Government’s original intention, as one can well understand, was that the cost of ATE premiums should cease to be recoverable from the National Health Service. That was clear enough; whether one agrees with it perhaps does not matter. However, the Government then listened to representations and decided to make an exception in the case of expert reports. They had a principle but then made an exception. The point was made very clearly by the Minister in the other place, Mr Jonathan Djanogly, when he said:
“One particular aspect of clinical negligence cases is the significant up-front costs involved in obtaining expert reports. Following consultation, the Government are seeking a tightly drawn power in the Bill to allow the recoverability of after-the-event insurance premiums in clinical negligence cases”.—[Official Report, Commons, 31/10/11; col. 710.]
Perhaps even more clearly, on 2 November he said:
“Such reports, which can be expensive, are often necessary in establishing whether there is a case for commencing proceedings, which raises particular issues if recoverability of ATE insurance is abolished. In responding to these concerns, clause 43”—
Clause 45, as it now is—
“provides, by way of exception, for the recoverability of premiums in respect of ATE insurance taken out to cover the cost of expert reports in clinical negligence cases”.—[Official Report, Commons, 2/11/11; col. 1027.]
I imagine that we would all agree that, if clinical negligence claims are not to be covered in toto by legal aid, there should at least be legal aid to cover the cost of expert reports, including legal advice, without which a claim for clinical negligence simply cannot get off the ground. I suspect we would all agree with that. The trouble is that the Government have set about achieving that result in the wrong way. You have only to look at Clause 45, which is the subject of the other amendment to which I am speaking, to see why. In a lecture given in Cambridge on 5 September last year, Lord Justice Jackson did not mince his words. He described Clause 45 as,
“the most expensive and inefficient mechanism which it is possible to devise in order to achieve”—
the Government’s “policy objective”. Those words are repeated in the recent report of Professor Cookson of King’s College in paragraph 8.3.4.
In the article in the Guardian to which the noble Lord, Lord Howarth, referred, the Lord Chancellor said that it was his ambition to simplify and deregulate civil litigation. We would all say amen to that; nobody could seriously quarrel with it. However, if we look at Clause 45—starting with “unless” at line 29—we find the exception to which the Minister in the other place referred in the passages which I have read out. How is that exception to be achieved? The Lord Chancellor must make regulations concerning all manner of things, including the contents of the policies and the maximum premiums to be charged in any policy. The subject matter to be covered by these regulations takes eight sub-paragraphs and 20 pages of text. One can only imagine what the regulations themselves would look like if the subject matter is as lengthy as that. If the Lord Chancellor wants to simplify and deregulate civil litigation, surely Clause 45 is not the way ahead. It would be far simpler and better to allow legal aid to remain for the very limited purpose of obtaining reports in clinical negligence cases.
Lord Wigley
My Lords, I rise to speak to the amendment so comprehensively moved by the noble and learned Lord, Lord Lloyd of Berwick, to which I have added my name. It would go some way towards rectifying the alarming situations that may be faced by individuals who have been disabled due to clinical negligence.
Many people involved in cases arising from clinical negligence by a public authority are among the most destitute. These cases will frequently involve parents or other family members bringing cases against public authorities as a result of traumatic injuries sustained by their children or other relatives. Considering the inequality of arms that inevitably arises, having access to expert reports is vital.
What is perhaps most distressing in cases centring on charges of clinical negligence is that individuals will come up against the state, with its teams of lawyers, during proceedings. Never is an inequality of arms more blatant than in those situations. This is somewhat ironic when we would all agree that the state should have a responsibility to ensure that an individual has the means to hold it to account.
To put this debate into context, there are about 1 million adverse accidents in the NHS every year. About 10,000 of those lead to action being taken against the NHS—in other words, about 1 per cent. These figures gainsay the claim that we live in a compensation culture, at least in this context. People who make these claims may have suffered grievous harm at the hands of a public authority, and they have every right to legal assistance in seeking redress.
What is more, and as the Unintended Consequences: the cost of the Government’s Legal Aid Reforms report, published last week by King’s College, made clear, charging ahead with these reforms would be economic nonsense, as the noble and learned Lord, Lord Lloyd, said. The report states that the proposed changes surrounding clinical negligence cases will cost the NHS some £28.5 million, which is nearly three times the amount to be saved by the Ministry of Justice—about £10.5 million. The figures may be slightly different but the ratios are the same.
Moreover, the Government have not yet specified how they intend to deal with the problems that will arise if legal aid is withdrawn from these cases. As the Bar Council has argued, the Government seem to assume that most clinical negligence claimants will receive representation under a conditional fee arrangement—that is, from a no-win, no-fee solicitor. They also seem to assert that the cost of funding expert reports will be paid for by the retention of recoverable “after the event” insurance premiums. If, however, the Government succeed in implementing these proposed changes to Part 2 of the Bill, clinical negligence cases, which are frequently among the most complex, will present too much risk, preventing most solicitors taking on cases on a no-win, no-fee basis. The difficulties involved in establishing liability will simply be too great.
What is more, under Part 2, after-the-event insurance premiums will no longer be recoverable from defendants, and a number of insurers have said that they will pull out of the ATE market. As the Bar Council once again made clear, it is highly unlikely that ATE insurance will be available for expert reports—hence, victims of negligence will be unable to establish whether their case has merit.
In these proposals, the Government appear to have lost sight of their duty to protect the vulnerable from further harm. Moreover, they have failed to provide a robust alternative to counter the inevitable damage to justice that would ensue if the proposals in the Bill went through unchecked. The Government must retain their responsibility to protect the vulnerable, and I hope that they will listen to the criticisms made in this debate.
Lord Faulks
My Lords, all the amendments in this group are directed towards the retention of legal aid in clinical negligence cases. This is an area in which I have practised as a barrister for the past 20 years or so, acting for both claimants and defendants; I continue to do so.
I should emphasise that in making these few remarks I am not against Part 2, which brings into effect the Jackson reforms. Litigation costs have become wholly out of control, particularly in smaller cases, where legal costs tend to dwarf the sums at issue, and litigation has far too often become concerned about legal fees and the recoverability of insurance premiums rather than what should really be at the centre of the dispute.
However, we should acknowledge that if Part 2 becomes law, difficult cases will be less attractive, as the noble Lord, Lord Wigley, has rightly pointed out. There will be no success fee recoverable, nor ATE premiums, and there is a significant risk that complex but meritorious cases will be uneconomical for legal practices to pursue. The paradigm case which concerns me—and, I dare say, many other noble Lords—is that of a brain-damaged baby. Of course, there are other entirely worthwhile and difficult cases, but such cases are particularly complex and often need many experts to tease out whether there is a case on liability or causation. Without legal aid, individual litigants or solicitors will have to carry investigative costs of many thousands of pounds before, in many cases, deciding that there is no claim to be pursued. There will, however, be quite a number of cases where entirely meritorious claims will simply be unfeasible, so that those who have to bring up brain-damaged babies will be unable to have the consolation and substantial financial assistance which a successful claim may bring as some slight mitigation to the hardship which the child and the child's family will have to undergo for the rest of that child's life.
I understand that the Government have acknowledged that there is potential injustice in the removal of legal aid for such cases. What answers have they put forward in what I acknowledge as being a constructive exchange of views in this area? The first is that CFAs should be available. I am unconvinced of that. Availability would be theoretical only. At the very best, some of the largest firms might take on the occasional case on the basis that they could bear the risk of funding it, but no individual will be able to do so. The second answer given is that exceptional funding within the terms of the Bill will be available in such cases. That is on the basis, as I understand it, that funding will be forthcoming in circumstances where there would be a violation of an individual's convention rights if there were to be no legal aid.
I pointed out at Second Reading that clinical negligence cases very rarely involve any human rights violations. To that argument comes the rejoinder that the relevant article of the convention is Article 6—the right to a fair trial—and that if the circumstances are such that Article 6 is violated, exceptional funding will be forthcoming. The problem with that answer seems to me to be that the jurisprudence from Strasbourg concerning the circumstances in which the denial of legal aid or other state support would constitute a violation of Article 6 is considerably lacking in consistency and coherence. I do not see how anyone could advise their client with any confidence that the refusal to provide legal aid would constitute a violation of Article 6. That means that the exceptional funding answer is remarkably insecure. If it is really the case that the refusal to provide legal aid in such cases constitutes a violation of Article 6, I venture to suggest that there may be some difficulty in justifying the declaration of compatibility with the Human Rights Act which has been signed in relation to the Bill.
If there is indeed an intention to provide funding for the sorts of cases that I am discussing, why not place the provision of such funding in the Bill rather than rely on the vagaries of exceptional funding and potential challenges by way of judicial review or otherwise if a determination turns out to deny access to legal aid in such cases? I appreciate that in the other place the Minister, Jonathan Djanogly, made some reassuring remarks in this area, but they went nothing like far enough to inspire the sort of confidence that is needed that these claims can be pursued.
Lord Carlile of Berriew
My Lords, my name is one of those that have been put to Amendment 30. I set no particular store by this amendment, save to say that it is one of the attempts to deal with the issue that has been eloquently described by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Faulks, with whom I agree entirely.
Looking around the Committee this afternoon, I see a dozen or so Members of your Lordships’ House who had to deal with constituency surgeries on a regular basis while in another place. The noble Lord, Lord Wigley, who earlier spoke very eloquently, has had the same experience as me of dealing with constituency issues in quite a remote rural part of Wales. Clinical negligence relating to perinatal damage does not choose its location. It is just as likely to arise in rural Montgomeryshire or in rural Caernarvonshire. Indeed, I have certainly seen people in years gone by who have come to a constituency surgery devastated by what they believed had happened to their child while the child was being born in a neighbouring hospital. In the case of Montgomeryshire, this was almost always over the border in England, but that may be beside the point.
The people who come with these problems are often not only overwhelmed by the care of their children, but also by the future they face: the lifetime of having to look after a damaged child to whom of course they are generally entirely devoted and to whom they will give the whole of their life or the child’s life—whichever lasts longer. They are often, too, people from poor circumstances. In many cases, they have no experience of dealing with lawyers and are frightened of lawyers. They have read in the newspapers that the medical profession—and I hope I will not offend any of my many friends who are distinguished members of the medical profession—is chronically defensive in its approach to allegations. They will not be aware that the chair of the National Health Service Litigation Authority has made it clear that, in her view, legal aid for clinical negligence should continue because it is a way of ensuring that medical practice is carried out responsibly and with reasonable care.
It may be that in some big cities there are firms of solicitors who would take on cases of this kind pro bono, at least in the first stages, because they can afford to carry that excess. However, that does not apply in the small towns of rural Wales and the shire counties of England. People whose child has been damaged at birth may only know of, let alone know, one solicitor, who may be in a small practice somewhere in their neighbourhood. It is right that people in that situation be able to at least explore bringing legal action to see whether there is a course of action that may be effective in relation to the injury that has occurred to their child. In some cases, if disbursements can be expended on expert evidence, it will be shown that there is a strong case of negligence, and most of those strong cases will be settled in due course—often for very large sums of money.
The proposals in the Bill run the risk of depriving parents in that situation of the remedy which they will discover only if they and their solicitors are allowed to spend the money to obtain expert reports as early as possible. There are amendments which suggest that there should be co-operation over expert reports and that other measures should be taken to limit the costs. I applaud those proposals. I suggest to the Minister that the Government include, in any concessions that in my judgment they will be bound to make in due course on this subject of perinatal injury to children, ways of ensuring that money is not wasted on a multiplicity of expert reports, but that the right reports are obtained as early as possible. In my judgment, the case for legal aid at the early stage of potential perinatal damage claims is absolutely unanswerable. The Government would be seen to have lost their human face if they refused to amend the legislation to reflect those concerns.
I say to the Minister, however, that perinatal negligence is not the only area in which were legal aid to be removed great injustice would be caused. One can think of endless examples of poor negligent treatment in hospital which result in devastating injuries: the loss of limbs, the loss of eyes, brain damage, and so on. They fall into the same broad category as the perhaps emotive example of perinatal injury. I therefore suggest to Ministers that they should consider permitting legal aid to continue in cases—I do not say that this formulation is perfect but it reflects the spirit of what I mean—where a severe injury has occurred in a clinical setting. If those involved in such cases were permitted to receive legal aid, the injustice envisaged in the amendments would be resolved.
ATE insurance and CFAs have their place, which may be in some of the types of cases I referred to—but not right at the beginning. As the noble and learned Lord, Lord Lloyd, said clearly, the cost of insurance premiums for even quite small cases is out of proportion to the claim. Potential claimants dealing with severe injuries that occurred in a clinical setting may not be able even to contemplate the prospect of whatever element of cost they might face through the insurance system. It does not provide an answer to all cases.
I urge my noble friend to answer sympathetically the huge burden of representations that have been made by those who have knowledge and experience of conducting these cases or experiencing their consequences directly. They make an overwhelming case.
Lord Phillips of Sudbury
My Lords, my name is on Amendment 30A, along with that of my noble friend Lord Faulks, who spoke clearly and persuasively to it, and that of the noble and learned Lord, Lord Woolf, who apologises for his inability to be here today. He sent me a note in which he rather pithily justified the contents of the amendment—which, it has to be said, is more modest than the one so eloquently moved by the noble and learned Lord, Lord Lloyd, at the start of the debate.
The noble and learned Lord, Lord Woolf, made two points. He stated that,
“in many cases a report”,
from an expert,
“will be sufficient to produce a settlement … where this is not possible, its contents will enable solicitors to decide whether the case can or cannot be taken on a C.F.A.”.
These are two great virtues. Even those in this Committee who have had nothing to do with clinical negligence claims—I congratulate them because these cases are grisly affairs and perhaps the most unsatisfactory and anguish-making aspect of litigation—will know that the expert’s report is absolutely crucial to everything to do with the case. It currently determines whether you get legal aid, and, as the noble and learned Lord, Lord Woolf, said, in future if the reform goes through it will determine whether you get effective coverage under a conditional fee agreement.
I will give the vivid example of a case notified to me by Emma Braithwaite, a solicitor with the National Health Service Wales Shared Services Partnership. Noble Lords may not know that Wales is way ahead of us in trying to find a via media between conflicting issues in clinical negligence cases. Amendment 99A attempts to address the general picture. This particular case was finalised by the payment of damages by the NHS of £4,500. The costs, which NHS Wales had to pay, were £95,897. Roughly half the amount—£44,000—went on legal fees. The case was conducted under the conditional fee system. The balance was mainly experts’ fees.
The case was always small; it was never a case in which large damages would ever be contemplated. The initial offer from the NHS was £3,000, which as I said, settled on £4,500. In a nutshell that explains why we will spend more time on clinical negligence than many who are not lawyers can readily understand. However, it makes it absolutely clear that we need to introduce effective, practical reforms that will make this whole area of litigation fairer, cheaper and speedier. That is why Amendment 30A is in this group.
Baroness Turner of Camden
My Lords, I support Amendment 28. I have received a number of briefing letters from all sorts of organisations in connection with this Bill. One of the most frequent issues is clinical negligence, which the Government propose to remove from the scope of legal aid entirely. A few cases may fall within the exceptional funding test, but that could have massive impacts on some of the most serious cases of clinical negligence, particularly those involving very badly injured children. I understand that significant numbers of parents already receive support from legal aid around clinical negligence on behalf of their children.
The Government’s stated intention, however, is that those cases should be brought on a conditional fee—the no-win no-fee basis. That is not the right way in which to handle such cases, as they often need extensive medical reports, running into thousands of pounds, just to establish whether there is a case. They often have to be held in abeyance to try to assess the long-term consequences for a child. In those circumstances, I am advised that it is not commercially practical to run such cases on a no-win no-fee basis. That is the view of organisations that have made representations, such as the Bar Council and the Law Society.
The Government’s proposed solution of allowing the recovery of insurance premiums related to the costs of disbursements has been widely criticised as not being terribly workable. I also understand that the Government claim that up to 100 per cent of some types of legal aid proceedings will be brought back into legal aid by means of the exceptional funding test. However, the test is deliberately narrowly drawn and its legal and practical implications remain completely unknown.
I support Amendment 28 because it spells out in detail exactly what is meant by clinical negligence proceedings. It seems to me that the Government should take this issue very seriously, particularly in view of the representations that have been made right across the board from all kinds of organisations that really know what they are talking about because they are involved in the day-to-day application of the law in this area. Will the Government please consider what they are proposing with regard to clinical negligence? In my view, it is highly unpopular with organisations that know what they are talking about and with the many people who have had experience of trying to raise issues on behalf of injured children, particularly those injured as a result of clinical negligence.
Lord Goodhart
My Lords, the speech of the noble and learned Lord, Lord Lloyd, at the beginning of the debate was both thorough and persuasive. There is nothing that I wish—or would be able—to add to the basis of his arguments. It is widely believed, and I am one of the believers, that post-accident insurance premiums have been an unsatisfactory element of legal aid in the past. It is therefore very undesirable that that should be continued specifically through Clause 45. The noble and learned Lord, Lord Lloyd, made it clear that Amendment 25 is highly preferable to the Government’s Clause 45. I hope, therefore, that the Government will see fit to accept that conclusion.
Baroness Eaton
My Lords, I shall speak to my Amendment 36A, which deals with the position of children in medical negligence cases. I am not a lawyer and so I speak with some trepidation, having heard so many noble Lords who are experts in the field of legal matters.
The proposals to remove clinical negligence entirely from the scope of legal aid will have an enormous impact on the most serious cases of clinical negligence, especially where catastrophic injuries to children have occurred. A freedom of information request to the Ministry of Justice revealed that in 2009-10, 870 medical negligence cases in the name of children were supported by legal aid. Under the proposals in this Bill, 640 of those cases would no longer be supported by legal aid. Whenever I have raised this as an issue, I have been told—as have many Members—that the Government’s view is that these matters can be dealt with through conditional fee arrangements. We have heard from my noble friends Lord Faulks and Lord Carlile, the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Lloyd of Berwick, about the complications and why this is likely not to provide a satisfactory response.
Cases that are brought for children are often very long—sometimes complicated matters can last six or seven years—and cases that are not quite so complicated can still last for 34 months and longer. This is a terrible situation for families and parents to consider and contend with. Of the £17 million medical negligence cases funded by legal aid, less than a quarter are children’s cases. I understand that the majority of these involve perinatal injuries. These are particularly difficult cases and success is very uncertain.
When we are talking about the technicalities of legal aid and all that is involved in it, we should remember that clinical negligence cases affect not only the child in question but the parents and the whole family. Having a child myself who was wrongly diagnosed with a psychosomatic illness, which was in fact a very virulent form of bone and tissue cancer, I understand something of the trauma felt by such families. We did not proceed to litigation as the stress of doing so was, we felt, too great for us to cope with. We were an emotionally strong family in the fortunate position of being both strong for each other and able to afford the additional costs that occur to families in such situations. Others are not always so lucky. For families with a number of other children needing parental attention, the difficulty for parents to retain their employment can be a problem. I have seen many situations where the stress on families of looking after such children is so high that it has brought about a breakdown between parents.
The process of litigation with the support of legal aid is traumatic enough, but for a child to be denied that right must add hugely to the burden on the child and the family. I do not believe generally that the state should do things for people that they can do for themselves. I do believe, however, that a civilised society should provide a safety net for the most vulnerable.
I also do not believe in wasting public money or spending it unwisely. As we have heard today, independent research on behalf of the Law Society has found that the knock-on effect of the proposals in this Bill for legal aid in clinical negligence cases will cost almost three times the Ministry of Justice-predicted savings. I hope the Minister will be able to reassure your Lordships that this issue will be reconsidered and that the Ministry of Justice will produce a financial impact assessment so that decisions will be based on sound information.
Lord Clinton-Davis
The noble Baroness has spoken from personal experience of this issue and I hope that the Minister will take into account everything she has said.
Representations on this issue have come from many sources: the Law Society, firms of solicitors practising in this area, and the National Health Service Litigation Authority. I have received—as have many noble Lords, no doubt—a letter from a firm of solicitors called Withy King, which raises two particular issues. It asks:
“What is being done to address the increase in medical negligence in the NHS and what steps are being taken to minimise the risks and ensure patient safety?”.
The Minister should address this issue. It also asks:
“What is being done to ensure that the NHSLA handles litigation appropriately, settles claims quickly, makes payments when they are due and is generally fit for purpose?”.
Again, it is incumbent upon the Minister to address this issue.
I apologise to the noble and learned Lord, Lord Lloyd of Berwick, for being absent for part of his speech. He may have addressed these issues himself—I do not know. I had to make an urgent phone call so I apologise. There is no doubt that the issues raised by Withy King are complex, but they are essential. Therefore, I hope that the Minister will focus his attention on the points it has raised, which arise out of professional experience, and that is most important.
Baroness Finlay of Llandaff
My Lords, I have my name to Amendment 36B, as does my noble friend Lady Grey-Thompson, who has sent a message to apologise that she has unfortunately been delayed, despite making every effort to get here for the opening of this debate. I hope the Minister will reflect on all the comments that have come from around the House. We have heard some very eloquent speeches packed with information. The real problem here is: what are the unintended consequences of this change and who is going to be harmed by it?
One problem is that those who stand to lose the most in clinical negligence are indeed those harmed at birth, and children, because they are unable to be advocates for themselves, and their parents are often in more financially straitened circumstances than others. In Wales we have a disproportionate number of people who are at a lower income level and have therefore been eligible for legal aid. Therefore, we have instigated a system called Putting Things Right, which has already been alluded to, which allows a speedier and more cost-effective means of resolving claims below £25,000 in value without the need for litigation.
However, the problem for patients in general is that they entrust themselves to the NHS and they expect to receive care. When things go wrong, this may be because medicine is shades of grey, but when there is clinical negligence there really is the need for some support—not in terms of redress, because you cannot undo what has gone wrong—but to help people cope. But the problem is that they are also dependent on the NHS itself for their ongoing support and care, which puts them in a different situation from those harmed by others generally, who can avoid contact with the system that has harmed them.
Baroness Mallalieu
My Lords, a number of noble Lords have spoken who have experience both of the legal and the medical sides of such cases. I am not one of them—it is outside the scope of my field of practice—but I am conscious that this debate on clinical negligence has produced some very powerful arguments, and more very powerful arguments are likely to be produced in the debates on Schedule 1 which are to follow it.
Noble Lords clearly will be arguing what I imagine will be described as special pleading for a number of deserving areas. After clinical negligence I know we are moving on, among other arguments, to those in relation to children, the disabled, disabled children, victims of domestic violence, victims of human trafficking, those who are in need of a guiding hand through the labyrinth of our welfare system, and those whose cases involve complex issues of law which often—indeed almost always—require expertise to present them fairly. Those are just some of the areas to follow. So my sympathy for the Minister, in listening to this particular debate, is great. However, it seems that the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, is the very least that could be conceded. I am not by any means sure that it goes far enough, for the reasons which I will come to in a moment, and which the noble Lord, Lord Faulks, set out very clearly.
The Minister will have a difficult time at the end of the debates on these particular additions—as parts of the House will seek to make them—to Schedule 1. He could just stop his ears and refuse to concede on anything, and if he does I suspect that he will leave civil legal aid in tatters, and leave the civil justice system almost wholly to the well-off—to those who can afford to pay. He could pick one or two of the special cases—perhaps clinical negligence, which is very strong, or some of the others, about which we are about to hear. He could pick cases to concede on the basis of who shouts the loudest. He could pick cases that have the strongest or most numerous advocates in debate, those that are likely to attract a bad press for the Government, those that are likely to command public sympathy or—perhaps even more likely—those whose advocates manage to twist his arm most severely between Committee and Report stages in this House.
I respectfully suggest that the Minister should look first at just how much will in reality—particularly in the light of the King’s College research—be saved by each one of these proposals. As the noble Baroness, Lady Eaton, said, in some cases it seems that the gain simply is not worth the candle and that legal aid is ultimately the cheapest option and should remain, albeit with the careful scrutiny suggested by the noble Lord, Lord Phillips of Sudbury, for areas where money could clearly be saved.
Once the Minister has done that and has looked at each of the special areas to see whether the financial argument stands up, surely he must look at those remaining areas to see whether alternative access to justice could be maintained by other means—by mediation; by some form of alternative dispute resolution; or, in clinical negligence cases, by CFAs. We have heard from people closely involved in that area who say that those means will not be available in relation to clinical negligence.
Having done that examination, I am sure that the Minister will find areas where, in his own mind, he has a very real doubt about whether a satisfactory alternative exists and whether he is, by persevering with the Bill in its present form, going to leave people to make their own arrangements without financial help, expert guidance or advocacy and where the result is that the consequences of no legal aid will leave citizens who need the help of our civil justice system with no realistic means of access to law.
I am quite sure that neither he nor the Lord Chancellor would wish to do any of that. When he comes to examine fairly each of the arguments on this aspect and the ones to follow, I hope that he will be open minded in his approach to what is to be done. As I understand it, fairness is the principle that our Prime Minister has said all the cuts which the Government propose are to accord. I cannot believe that that means that civil justice should henceforth be the prerogative of those with means. Unless the Minister, whose judgment I respect and admire, is personally satisfied in each case that an adequate alternative provision is available to such people, I hope that he will take the matter back to his department, take out a red pen where necessary and put his foot down.
Lord Newton of Braintree
My Lords, I rise in the hope of commanding your Lordships’ attention for two reasons. First, my name is on one of the amendments in this group in the name of my noble friend Lady Eaton. Secondly, since I was unable to be here last week, I want the Front Bench to know that I am back. I have listened with care to the speeches that have been made, and obviously I express my support in particular for the arguments on children’s clinical negligence which were raised by my noble friend Lady Eaton. I also want to say to my noble friends that when they come across an amendment with the names Newton and Tebbit on it, they are in trouble. I am sorry that my noble friend is evidently not able to be here today. We are friends but no one who knows us both will think that we always come from the same perspective. Here, we are united.
I need not repeat the points that have been made in debate, not least the very important points made by a number of my noble friends, including my noble friends Lord Faulks and Lord Carlile and—not to minimise any other speeches—the very constructive remarks just made by the noble Baroness, Lady Mallalieu. I share the view that this is one of those areas where it is highly likely not only that the game is not worth the candle but that the costs to other departments will be greater than any savings to the Ministry of Justice. That simply cannot be a sensible way to approach the problem of the deficit as a whole.
Without rehearsing all these arguments again, I hope that I am right in detecting in the air today a move away from what my noble friend Lord Carlile memorably described at an earlier stage as “irritated intransigence” from the other end of the building, and that we will get a constructive approach. We have certainly heard a lot of constructive speeches; I think that they deserve—if I may say so to my noble friends on the Front Bench—a constructive response. Leaving aside the Newton-Tebbit point, if I were them and looked at the totality of the names on the amendments in this group, I would decide, if I may coin a phrase, that concession was the better part of valour.
Lord Howarth of Newport
My Lords, the noble Lord, Lord Carlile, was right to draw attention to the unwillingness of members of the medical profession to admit fault. I have a son who was brain-damaged at birth. The evening after he was born, I spoke to the consultant gynaecologist, a very famous individual, who reassured me that that there was no reason to suppose that anything had gone wrong. But when the diagnosis of cerebral palsy was made, and my wife and I decided that we ought to pursue the possibility of a clinical negligence claim, we found—I am not sure that it is really surprising, though it is very shocking—that the file had gone missing, and it took a considerable time to obtain it. We know that clinical negligence claims take a very long time to pursue. Part of the reason for that is the intransigence of the system—it is very human; it is very understandable—and we have to be realistic about that.
In the interests of being realistic, I should like to pick up a point made by the noble Lord, Lord Phillips of Sudbury, à propos his Amendment 30A, in which he favours the appointment by the NHS Litigation Authority of a single expert witness who would produce a report. We can see the attractions of this in the interests of economy, but if there is mistrust between the claimant and defendant, as there so very often unfortunately is, I wonder how much confidence claimants will have in such reports commissioned by the defendant, the NHS Litigation Authority. That is particularly so if the expert witness appointed by the NHSLA finds that there was no negligence, which may indeed be correct, but can we expect the claimant to accept that that is so?
We all agree that it is unthinkable that legal remedy should not be available for victims of clinical negligence, but I believe, as do others far more authoritative than I, that this is a field in which legal aid must be retained. For example, if you are looking to solve part of the problem by disbursement-only ATE policies, it appears that they are simply not commercially viable. I am advised that, based on an ATE insurer’s real figures, for the average cover of £2,000 needed for preliminary investigations—which does not include the high investigation costs of cases such as catastrophic birth injuries—the premium would need to be of the order of £11,000. So it simply will not work. The noble and learned Lord, Lord Lloyd of Berwick, was right to put it to us that this, at minimum, is an area in which legal aid must be preserved.
If the Government’s proposal to remove ATE recoverability were to be accepted, there would be an increase in the number of unscreened cases, because ATE insurers are pretty risk averse and pretty sceptical. For very good business reasons they do not want to see unviable cases going through. They are therefore part of the mechanism, part of the system, that enables the bad cases, the weak cases, to be screened out. I understand the NHSLA shares that view.
Finally, I will quote to the Committee, if I may, a paragraph from a paper by the NHS Litigation Authority, which is impressive. Its view ought to carry weight with the Committee. It says:
“Ironically, whilst a so-called perceived ‘compensation culture’ (which does not actually exist currently when it comes to healthcare) is said to be one of the drivers for reform, the proposed changes will do more to promote the unsavoury aspects of a ‘compensation culture’ than deter them. For example relinquishing the degree of quality control afforded by the legal aid system for clinical negligence will throw the market open completely to non-specialist and less scrupulous solicitors and claims farmers. There would in all likelihood be an increase in this type of activity.”
That is powerful evidence that I am sure the Government have considered, but that the Committee also ought to consider.
Lord Phillips of Sudbury
The noble Lord made a perfectly reasonable criticism of one aspect of this amendment. First, he commended the NHSLA, but does he not accept that the amendment says,
“a list maintained by the NHSLA and AVMA”,
which is an independent body that exists to see fair play done?
Lord Howarth of Newport
I am second to none in my admiration, indeed my gratitude, for AVMA, which helped me and my family at a very difficult stage of our lives. I am deeply appreciative of them. If the list of expert witnesses was to be maintained both by the NHSLA and by AVMA, rationally speaking that is a list that should command confidence. None the less, in the emotionally fraught circumstances of a dispute, particularly where a baby has been damaged at birth or where some other catastrophic injury has taken place, it is asking a lot to expect people to trust witnesses and reports that are to be commissioned—the noble Lord’s amendment would require that—by the NHSLA.
Lord Thomas of Gresford
My Lords, I hope the Government do not think that this debate is special pleading, as the noble Baroness, Lady Mallalieu, feared. There are a number of reasons for that. First, clinical negligence—at the moment, exceptionally in personal injury cases—already attracts legal aid. It is currently within scope. Secondly, there are considerable difficulties in proving clinical negligence. When a car accident happens, almost anyone, given proper evidence, can determine who is responsible. Clinical negligence is a very different field. It is very difficult to prove causation. If you can prove causation—that the condition of the claimant has been caused by the clinician concerned—you then have a further hurdle to surmount: whether that clinician has exercised the proper standards of care as known at the time.
I vividly remember a case in which I was involved where it was established that the arachnoiditis was caused by an injection into the spinal cord by a clinician. Arachnoiditis affects the limbs of a person and causes considerable paralysis. We could establish causation, but by the standards of the time it could not be shown that the injection was negligent.
The third matter that I draw to the Committee’s attention was referred to by the noble Baroness, Lady Finlay—that there is currently quality control in the provision of legal aid in clinical negligence cases. There are panels provided by the Law Society or Action for Victims of Medical Accidents, and it is only to solicitors who are on those panels that legal aid certificates will be granted. That ensures that there is a proper approach to the issues that arise in clinical negligence cases, and a proper conduct of those cases. For all those reasons, this is not special pleading; clinical negligence deserves consideration quite separately from all the other matters that we are raising under the first schedule.
I would like the Government to consider at what level legal aid can be granted. The noble Lord, Lord Faulks, and my noble friend Lord Carlile referred to the possibility that legal aid should be granted in serious cases that have an impact upon the lives of people. For example, if a case is worth only £4,500, which has been referred to, that may not be one in which public money should be involved—certainly not to the extent of £95,000. However, if, as so often happens, the lives of people and members of their families are altered for good, surely a humane society should provide legal aid to cover the cost of litigation in those circumstances?
Lord Beecham
My Lords, this has been a very thoughtful debate, and that owes much to the fact that so many of those who have participated have experience, either legal or medical, of cases of this kind. They are certainly among the most difficult that either clinicians or lawyers have to deal with. The noble Lord, Lord Wigley, referred to the rather alarming statistic that 10 per cent of National Health Service patients in any year suffer from clinical negligence. That ought to concern all of us, especially those with responsibility for the health service.
However, it is also right to point out that this does not give rise to a spate of litigation. In view of the numbers of people who must suffer from clinical negligence, the fact that only around 10,000 or 11,000 cases a year receive legal advice, and of those only about 3,500 proceed to receive legal aid for representation, completely contradicts the assumption that there is a compensation culture—certainly in this area of law and, many of us would argue, generally. There is no compensation culture. However, it is a measure of the scale of the need for representation that of the successful legal aid cases—some 1,500 cases adjudicated in, I think, 2009-10—the average period during which these cases were pursued was as long as 55 months. That might partly be a reflection of the complexity of the evidence, or partly of the fact that you cannot really settle a case until the prognosis becomes clearer, until a client’s needs are defined, particularly in the case of children who suffer perinatal injuries or other forms of clinical negligence. Obviously their future lives cannot be predicted with any certainty at too early a stage. However, it also owes something, as the noble Lord, Lord Thomas, pointed out, to the reluctance of authorities—the NHS bodies and, I suppose, private bodies—to admit liability.
Lord Faulks
My Lords, would the noble Lord confirm that one of the causes of delays is that in complicated cases—we have been concerned with perinatal injuries—there are a number of different experts who have to report? One expert is not enough; you have an obstetrician and you may have a paediatric neurologist, a neonatologist, a neuroradiologist, a midwife and possibly even a geneticist. Trying to make sure that all those experts bring their expertise to bear at the same time and co-ordinate can itself be a reason for delay and therefore for the complexity of these cases.
Lord Beecham
My Lords, that is right. In addition to that issue, which goes to matters of causation and, potentially, liability, there is also a range of experts whose evidence is needed in determining the future needs of the patient in terms of care, education and support. The point is to underline that these are, necessarily, often complex cases, and they need careful investigation and support before they can be either settled or adjudicated.
The Ministry of Justice has estimated the savings from its proposals at some £10 million. That figure will not go far towards matching Mr Gove’s suggestion of a new royal yacht as a timely gift to Her Majesty the Queen to celebrate the Diamond Jubilee and it occurs to me that the £250 million allocated by Mr Pickles for weekly waste collection would cover the sum in question for 25 years, but all that is beside the point. The reality is that the cost to the NHS will be considerably greater than £10 million. The recent King’s College report that some noble Lords have referred to suggested that a figure of £28 million would be the cost to the NHS of the Government’s proposals. That is surely something that none of us wishes to see. It would be caused by the availability of success fees where hitherto legal aid cases have not attracted such fees, and by meeting the cost of “after the event” insurance—again assuming, as a number of your Lordships have questioned, the availability of ATE. If ATE were not available then of course even more injustice would be done because it would be impossible to bring cases. But there must be a real question about the likely existence of a market for ATE insurance. Furthermore, under the Government’s proposals, there would be the 10 per cent increase in general damages. All of that clocks up to a figure substantially more than what would be saved.
In addition to the financial aspect, there is the real impact on people who require assistance. The King’s College report also indicated that there would be a reduction of 75 per cent in legal help and 65 per cent in legal representation from the admittedly not very large number of cases that are actually brought. That is a significant reduction. Although the noble Lord, Lord McNally, is not replying to this debate, he threw out the figure of a 17 per cent reduction in legal aid expenditure in discussing a previous amendment. However, the cut in civil legal aid generally would be 30 per cent, not 17 per cent. The Government propose saving some £285 million out of something like £900 million or £1 billion. Even the figure of 30 per cent looks modest, though, in relation to the cut that would be inflicted on a number of people who would be entitled to legal aid and representation in this most difficult area of law.
The effect of what is being proposed here is another example of cost-shunting on to other government departments. I have a Question for Written Answer about whether consultations have taken place with other departments by the Ministry of Justice about the impact of the proposals in the Bill on their budgets and whether that has been agreed. In due course no doubt the noble Lord will reply to that and we will see then what is to happen. We have not ventilated the question of a risk register under this Bill as we have in respect of another and I hope that we do not have to go down that road, but it is clear from the evidence that there will be a significant burden on other departments and therefore the net saving to Government from these proposals, if any, is likely to be minimal.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I join the noble Lord, Lord Beecham, in congratulating those who have taken part in what has been a very serious debate. The Committee has benefited from experience: the experience of those who have practised law in this sphere; the personal experience of my noble friend Lady Eaton and the noble Lord, Lord Howarth of Newport; and the experience of those who had formerly been Members in another place—my noble friend Lord Carlile of Berriew and the noble Lord, Lord Wigley, have had to deal with issues such as this in the course of their constituency work.
A number of your Lordships asked that Ministers would listen. In a debate of this profundity it is only appropriate that we should reflect on the many contributions that have been made, contributions which carry forward a number of the concerns that were expressed at Second Reading. As well as compensation, clinical negligence also raises the point which was reflected on by the noble Lord, Lord Clinton-Davis: the importance of standards for those who provide medical treatment. Related to that, the Department of Health is currently consulting on our duty of candour proposals, with the intention of implementing these through contractual changes. These proposals will make sure that providers of NHS care are more open with patients about harmful adverse effects. We would expect the duty of candour to apply to NHS patients treated, typically, in hospitals, where at least moderate harm results. The proposals specify that,
“There must be appropriate investigation undertaken to establish the facts of an incident”,
and that,
“New information that emerges during an investigation … must be shared with patients and their carers/families within 5 working days of its inclusion in any incident report”.
We would expect that claimants’ solicitors could use a duty of candour when investigating potential claims. This might act as a lever to identify when NHS providers are non-compliant. Providers could also use these requests as an indicator for a potential claim being made, prompting early action to resolve the matter before claims are made. Overall, we believe this should facilitate access to justice and help speed up settlements. There is a general acceptance that the way in which the NHS handles claims has improved significantly over recent years, but, as I have indicated, it is important that we continue to ensure that we have the highest standards and the best practice in dealing with incidents such as these when they occur.
The amendments which have been spoken to have as their common theme the extension, in one way or another, of legal aid in cases involving clinical negligence. We recognise that many of these cases raise serious issues, especially where damages are required to meet future care needs. My noble friend Lord Carlile talked about particular parents who are overwhelmed not only by their current care responsibilities but also by the knowledge that they face—well into the future in many cases—continuing care responsibilities to their children. These are serious issues, which can lead to very substantial claims for compensation. We also recognise that some litigants will be vulnerable because of disabilities resulting from negligent treatment. My noble friend Lord Faulks acknowledged that the Government have recognised the seriousness of these particular issues, because clinical negligence claims are not being treated like personal injury claims, or indeed like other torts.
My noble friend Lord Faulks also indicated that the Government had sought to engage constructively to address these issues, although he expressed very serious concerns and reservations about the different proposals that have been brought forward to try to address them. I will try to deal with these in the course of my reply. He indicated, for example, some scepticism as to whether the conditional fee agreement could replace legal aid. Figures from the NHS Litigation Authority show that in 2010-11 approximately 82 per cent of clinical negligence cases where the funding method was known were funded by means other than legal aid, such as conditional fee agreements, “before the event” insurance, legal expenses insurance and private funding. We considered the fact that there are viable alternatives to legal aid in this area when coming to the view that legal aid would not be justified in these cases and that—as has been a frequent refrain in these debates—limited funding should be targeted in other areas.
Lord Phillips of Sudbury
Does my noble friend not understand that a poor litigant simply cannot afford any ATE premium in order to get to the point of knowing whether there is a claim to be made?
Lord Wallace of Tankerness
My Lords, the point that we are making is that while the ATE insurance premium is being abolished generally, in the event of a CFA being agreed in a case of clinical negligence, the Government are retaining the recoverability of ATE insurance premiums. These are very rarely paid up-front. I understand that it is almost an insurance of insurance. If the claimant loses, the premium will not be recoverable from the claimant. It is often the case, too, that if it has been recovered from the other side, there is an increase at that time to take account of those cases in which the insurers will not get their premium.
Lord Phillips of Sudbury
I need to answer that; I do not think that is right. The position of a poor claimant is that they cannot afford to put themselves in hock for the premium. It is all very well saying that they can pay it later, but if they lose they have to pay it.
Lord Wallace of Tankerness
My Lords, I think the position is that if they lose they do not pay it. That is what we are retaining in cases of clinical negligence. In short, poor people will not have to pay up-front for the necessary expert reports in clinical negligence cases.
Lord Thomas of Gresford
The problem is that you cannot get a conditional fee agreement unless you have a case, and you cannot get insurance unless you can show that there is a case. In clinical negligence, you do not have a case unless you have the medical reports. That is the problem. The Government’s solution, as put forward in Clause 45, does not solve the problem at all.
Lord Wallace of Tankerness
My Lords, we certainly believe that going down this road will mean that poor people do not have to pay up-front for their necessary expert reports. Indeed, that is why we draw a distinction between our reforms as they affect clinical negligence and the reforms that affect claims for damages in other areas.
We are working closely with the NHSLA and other stakeholders to discuss how the commissioning of these reports can be improved so that joint expert reports can be commissioned wherever possible. That would involve the NHSLA commissioning and sharing expert reports on liability with claimants at an early stage. There is a lot of agreement that that is what we should be doing—trying to get it at such an early stage. That, in turn, will help to encourage the early notification of claims.
My noble friend Lord Faulks and the noble Lord, Lord Wigley, expressed some concern about whether there would be a market for ATE insurance if it was not recoverable in other areas. We certainly recognise that these concerns about the funding of medical expert reports have been expressed, but the reality is that claimants usually take out ATE insurance. We expect the ATE market to adapt to the new arrangements. As my noble friend Lord Faulks accepted—although he queried whether it should have been done earlier, rather than during the passage of legislation—a working party has been set up to consider the recoverability of ATE and to ensure that premiums for expert reports reflect the risks involved. ATE insurance brokers have been asked to contribute to this working group. It is a concern to which we are alert and one that we seek to address.
Furthermore, we wish to reassure the Committee that we will be introducing qualified one-way cost shifting, which will be available in personal injury claims and, therefore, will by definition apply in clinical negligence claims. Qualified one-way costs shifting will mean that, in the majority of cases where damages for clinical negligence are sought, the claimant is not at risk of having to pay a winning defendant’s costs. We have therefore protected the claimant’s interests to ensure that they are not denied access to justice for fear of having to pay the defendant’s costs if they were to lose.
One of the main areas of concern in respect of expert reports is those cases concerning babies who suffer obstetric brain injury. This has been reflected in a number of contributions. While we consider that in most clinical negligence cases funding will be available through a combination of conditional fee agreements and ATE insurance, we have always recognised that there may be obstetric injury cases with high disbursement costs, which are currently funded by legal aid but for which it may be difficult to secure conditional fee agreements.
My noble friend Lord Faulks expressed concern as to whether the provisions in Clause 9 with regard to these exceptional payments, which we will debate later, would be fit for purpose and meet the task which we wish them to achieve. It is because of this that we have sought to make funding available. The safety net would be in the form of an exceptional funding scheme, which will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as those rights to legal aid that are directly enforceable under European Union law. In considering whether exceptional funding should be granted in cases engaging Article 6 of the European Convention on Human Rights, the director will take into account general jurisprudence set out by the European Court of Human Rights on Article 6. The jurisprudence takes into account the following relevant factors: the ability of the client to present his or her own case; the complexity of the matter; the importance of the issues at stake; and all other relevant circumstances. It is important to put this into context. Our impact assessment estimates that we will continue to spend £6 million of the £16 million we currently spend on clinical negligence cases on exceptional funding cases. We estimate that the vast majority of this £6 million—
Lord Faulks
I am very grateful to the Minister for giving way. Can he help the House as to whether it is the Government’s position that a cohort of cases such as brain damage cases, which are exceptional to the family but do not raise exceptional points of law, would nevertheless be regarded, if there was no legal representation, as a violation of Article 6?
Lord Wallace of Tankerness
My Lords, it would not be appropriate to second guess, as it were, what the director of legal aid casework might decide on any individual case. Suffice to say that the purpose of having Clause 9 in the Bill is to take account of cases where the client would find considerable difficulty in presenting their own case and where there is, indeed, a complexity—these are not necessarily cumulative—in the important issues at stake. The fact that we estimate that some £6 million would be spent in dealing with these complex and lengthy cases is indicative of the fact that we do take—
Lord Carlile of Berriew
I apologise for interrupting my noble and learned friend again but does he regard it as satisfactory that cases falling within what my noble friend Lord Faulks described as a cohort should be determined not on a merits-based approach but on an administrative law approach? If an aggrieved party wished to challenge a decision of the director of civil legal aid, and what the Minister is saying applies, it will have to be necessary for the aggrieved person to show that the director of civil legal aid was Wednesbury unreasonable, which has only the remotest connection with the merits of the case. Is this really the system that the Government wish to inflict on people whose babies have suffered devastating perinatal injuries?
Lord Wallace of Tankerness
We do not wish to inflict the scenario which my noble friend indicates. The scale at which we believe the exceptional funding will be used is indicative of our expectation that exceptional funding will be available to assist these very profound cases. No one is disputing the seriousness of this. However, the amount of money that is being made available is not insignificant by any stretch of the imagination—£6 million out of the £16 million that is sought to be saved overall—which indicates that this measure is not just incidental but tries to address very directly the proper and sensitive concerns that have been raised.
Lord Thomas of Gresford
My noble and learned friend referred to Clause 9 and to exceptional cases. He will be aware that a specific category of special exceptional cases is delineated in that clause: namely,
“advocacy in proceedings at an inquest under the Coroners Act 1988”,
where there is a “wider public interest determination”. Are the Government prepared to consider whether in this very sensitive type of case there could be a subsection inserted into Clause 9 which deals with the very difficult issue of clinical negligence instead of leaving it under the broad wording of subsection (2)?
Lord Wallace of Tankerness
I thought that I was going to be diverted down the tracks of coroners’ inquests. However, I take the point which my noble friend makes. We believe that the relevant provision already covers the matter. He draws a comparison between measures within the same clause. We will have an opportunity to return to that matter when we come to Clause 9. It is only right that I should consider the point, which I am sure was made with helpful intent.
The question of relative costs has been raised and one or two noble Lords have pointed to the reservations made by the NHSLA. It is fair to point out that as regards the King’s College research which has been referred to, the Department of Health has confirmed that in the context of the reforms as a whole, which include all the Jackson reforms, the costs to the NHS are expected to reduce substantially and not to increase. It is important to look at the matter in the context of the overall impact of our reforms: namely, that the costs will decrease.
The noble and learned Lord, Lord Lloyd, has sought to contrast what he believes will be the cost of his amendment with the costs he believes will be incurred under Clause 45(2). He will be able to reply shortly. He quoted my honourable friend the Minister, Mr Djanogly. I think that the noble and learned Lord recognised that Clause 45(2) is a clear attempt to address the concerns which are shared not just by him and me but by the Committee as a whole. His view is that it would be more expensive to go down this route than to adopt his amendment. One of the differences between our proposal in Clause 45 and the use of legal aid for clinical negligence is that it would be restricted to those who are otherwise eligible for legal aid where the ATE power of recoverability will provide access to justice to everyone.
I think that the noble and learned Lord acknowledged my next point when he gave his figures. We do not readily recognise his figures. We feel that the costs of the ATE market as adjusted would not give rise to the costs which he indicated. I noted all his figures very carefully, but I probably was not quite keeping up with them. He said that he did not expect me to comment on the detail of his figures today but asked me to provide an answer. That is the least one can do, given the amount of work that the noble and learned Lord has clearly put into this. As I say, we do not readily recognise the case that he put forward. However, we must undoubtedly reflect on the issue. It would not necessarily make sense to embark on something which led to considerably greater cost when the overall object of the reforms is to reduce cost. I hope that with the assurance I gave at the beginning that we will reflect seriously on all the important issues that have been raised, the noble and learned Lord will withdraw the amendment.
Lord Lloyd of Berwick
My Lords, as was to be expected, the debate has gone far wider than the limited purpose of my amendment because this is the first opportunity that we have had to consider clinical negligence as a whole, and there are other amendments in this group.
So far as my amendment is concerned, everyone has accepted that expert reports are the key to the problem. The question then is: what is the best way to fund expert reports? I am especially grateful in that connection for the support of the noble Lord, Lord Faulks, given all his experience in this field. My impression was that his view is the same as mine and, indeed, that of Sir Rupert Jackson, whereby Clause 45 is not the way ahead. That is the purpose of my amendment. I am also especially grateful to the noble Baroness, Lady Mallalieu, for saying that the amendment is only the minimum required. On that I entirely agree. If clinical negligence generally is to be covered, my amendment will fall away, but it is the essential safeguard if there is not to be wider coverage by legal aid of clinical negligence cases.
Of course I will not press the amendment because I cannot do so until I know the Government’s answer to the figures that I have put forward. However, if those figures turn out to be correct, as I believe they will be, then Clause 45 is not the way ahead and it is far better from the point of view of saving money for the taxpayer to adopt the limited degree of legal aid required for expert reports. I look forward to the answer to the figures I put forward and, in the mean time, beg leave to withdraw the amendment.
Baroness Doocey
“Social welfareCivil legal services provided in relation to a benefit, allowance, payment, credit or pension under—
(a) the Social Security Contributions and Benefits Act 1992,(b) the Jobseekers Act 1995,(c) the State Pension Credit Act 2002,(d) the Tax Credits Act 2002,(e) the Welfare Reform Act 2007,(f) the Welfare Reform Act 2011, or(g) any other enactment relating to social security.”
Baroness Doocey
My Lords, I should like also to speak to Amendments 35 and 89. These amendments relate to the ability of claimants, the majority of whom are disabled, to appeal against decisions on their entitlement to welfare benefits. The intention behind these amendments is to protect some of the most vulnerable people in our society. The Bill as it stands would remove social welfare cases from the scope of legal aid, which would have an adverse and disproportionate impact on disabled people in particular, and would leave them unable effectively to challenge decisions when they are let down by the system.
Legal aid is currently available to assist individuals with a range of welfare benefit issues, from navigating complex benefit administration to reviewing and appealing against official decisions. When appealing against such decisions, advice is available to clients before appeal and tribunal, but legal aid does not cover legal representation—and there is no suggestion that it should. A number of noble Lords have already made the point that the welfare benefits system is complex, and more than half the welfare benefit assistance that is funded through legal aid relates to disabled people. However, despite the best efforts of all involved in a claimant’s initial application, mistakes are frequently made, and these are well documented.
The need for such legal aid is best demonstrated by the fact that nearly 40 per cent of all appeals against work capability assessment decisions are upheld. In addition, between October 2008 and February 2010—a period of just 17 months—60 per cent of disabled people who appealed were eventually found to qualify for employment and support allowance, even though they had initially been assessed as having no factors that would affect their ability to work. The proposals in the Bill would, every year, deny specialist legal advice for complex welfare problems to more than 130,000 people, of whom nearly 80,000 are disabled. Without legal aid, the ability of people to appeal against a decision would be undermined because the rules for benefit eligibility are extremely difficult to understand.
To give just one example, the complexity of the extensive legal precedents determining the criteria for being classed as virtually unable to walk make professional legal advice vital for anyone even thinking of appealing against a welfare benefit decision. We all recognise the need to make economies but the Government’s own impact assessment puts the spending on legal aid for welfare benefits at just £25 million, compared to a total legal aid budget of £2 billion. This is a relatively minor saving but it would have a major effect on large numbers of vulnerable people who need help with appealing when mistakes have been made about their entitlement to benefits. I also argue that failure to provide timely legal advice to assist disabled people who are put on the wrong benefit is a false economy that will almost certainly result in additional demands being placed on services such as the NHS, rather than delivering the savings that the Government are hoping for.
To make matters worse, the Bill is being considered at the same time that the Government are undertaking a dramatic overhaul of the welfare benefits system. With a reform on this scale, there will be a new and unfamiliar set of complexities to navigate through for both claimants and officials. During the transition, there is bound to be an increase in the number of inaccurate benefit decisions made and a consequent need for legal advice to challenge these.
I share the Government’s desire to reduce the number of appeals against decisions, but this reduction must not happen because the loss of legal aid prevents disabled people from challenging decisions. I therefore commend these amendments to the Committee as a means of securing justice for some of the most vulnerable people in our society whose needs are constantly overlooked. I beg to move.
Lord Wigley
My Lords, I strongly support the amendments so ably moved and spoken to by the noble Baroness, Lady Doocey. I recall her impressive speech on these matters at Second Reading. Some of us sat through 17 sessions of the Welfare Reform Bill in Committee and, in session after session, we came across the potential loss of important and valuable benefits on which many vulnerable disabled people depend.
Some of the changes will not be easily understood, and some will be seen as depriving this cohort of people of essential resources that would at least compensate for their disability or enable them to live with it. When they lose or are in danger of losing such benefits there will clearly be a strong feeling that they have been badly treated. If there is any dubiety in law with regard to the way in which they are losing, they will want to challenge that.
I put it to noble Lords that to introduce these two pieces of legislation simultaneously—tonight we are dealing with the legal aid Bill; tomorrow we are back to the Welfare Reform Bill on Report; and on Wednesday we are back to legal aid—given the combined effect that they may have for disabled people, is absolutely wrong. There should at the very least be a facility for those who may be deprived of benefits which are so important to them to challenge that in law during the opening period of the implementation of the Welfare Reform Bill. If, in due course, when things settle down, there is a need to change things, all well and good, but I remind noble Lords that the degree of benefit fraud in the context of disability is minimal. Therefore, it is a question of depriving people of resources to which they have been entitled, the loss of which will make a significant difference to their lives.
The Government should seriously look again at the cost implied by the amendment and the implications of the legislation to find a way in which disabled people and other vulnerable people affected by the Bill can at least have the basic right to challenge it in court.
Lord Newton of Braintree
My Lords, I intervene briefly not to support every last dot and comma of the amendment—not least because I have not heard what the Minister has to say about cost, which we cannot completely ignore—but to indicate my general sympathy with the concerns that have been expressed by the noble Baroness and echoed by the noble Lord, Lord Wigley. I indicated earlier my concern about the Bill extending to the social security area for a number of reasons. First, the Welfare Reform Bill, whatever its merits—I am a strong supporter of it as a whole—creates a certain amount of turbulence, to put it mildly, for a lot of people, including many disabled people and carers. They have great concerns, which may well lead them to want to challenge some decisions. They ought to be able to do so.
Secondly, there is an interrelation here with the concerns expressed about the absence of sufficiently effective proposals to come anywhere near replacing the availability of legal aid, or at least legal advice, in such cases. We know from a debate in the House only shortly before Christmas that citizens advice bureaux are feeling acute pressure in their ability to maintain, let alone enhance, their level of service. This may have come up earlier, before I was able to be present, but we know that law centres are also feeling acute pressure from expected losses of money from the legal aid changes. From the point of view of claimants in the social security field, as one or two people have said—including me on previous occasions—there is a double or triple whammy here: you do not get help from one quarter; you are steered to another quarter; but that quarter itself is being starved of resources and unlikely to be able to help you.
I make no apology for repeating things I have said on previous occasions: there is an absence of apparent—I choose my words reasonably carefully—joined-up government. Ministers have effectively said that they do not know what is the overall financial effect of this, because they know what is saved to the Ministry of Justice, but they do not really know what are the costs elsewhere.
I doubt whether they even know what will be the net effect on the Ministry of Justice. It is well known to anyone who knows anything about tribunals that the less help and advice that people have in social security tribunals and related matters, leading them to represent themselves, the more time will be taken at the tribunal trying to sort out what are the issues. Cases will get taken to tribunals which would not have been had people been well advised beforehand. There will be costs to the Tribunals Service in the Ministry of Justice that I am not sure are allowed for in the costing that the Ministry of Justice has ascribed to the savings on legal aid. We need more convincing answers on this than we have so far had. I do not want to see the amendment pressed to a vote tonight, but I hope that Ministers have their ears open on this one and will look carefully at the reality, as opposed to the optimistic forecasts of the original estimates of savings in this field.
Baroness Lister of Burtersett
My Lords, it is always a pleasure to follow the noble Lord, Lord Newton, so I am keen to come in at this point.
I support the amendments proposed powerfully by the noble Baroness, Lady Doocey. I shall focus on Amendment 32 but say just a few words on Amendment 35. Although I would not want to confine advice and assistance for social security claims before tribunals to disabled people, if it was to be confined to a single group, there is a strong case for that being the group, because of the high proportion of those who are affected who have additional needs over and above legal needs which affect their ability to exercise their legal rights.
That is brought out very well in the briefings we have received from Citizens Advice and Scope’s report, Legal Aid in Welfare: the Tool We Can't Afford to Lose. I also received a case study from Charnwood CAB, which is local to my university. I will not read it out because it is rather long and complex, but someone came for help because of the interaction between decisions on disability living allowance and income support. Then they ran out of time in appealing and were going to get in a real mess. It was only with the help of the citizens advice bureau that they were able to lodge an appeal. The CAB pointed out that that cost the taxpayer no more than £167 excluding VAT—since October, it would have cost £150.
That exemplifies the more general point of Amendment 32, which would put social security law back into scope. As the noble Baroness said, like it or not, social security law is complex and will remain so however successful universal credit is.
The Government's suggestion that people can turn to Jobcentre Plus or the benefits advice line for help with such cases has been described as incongruous by the president of the First-tier Tribunal, his honour Judge Martin. It is utterly incongruous when one considers that it is their mistakes that have so often given rise to the need for legal advice in the first place. According to Liberty, Community Links advice service recorded that in 2010, 73 per cent of benefit-related cases handled by its staff arose from errors made by the Department for Work and Pensions.
The president of the First-tier Tribunal also pointed out that the emphasis on the user-friendliness of the tribunal system misses the point, because the tribunal has no role to play in assisting claimants to decide whether to bring their appeal or to help them prepare their case. The experience of CABs and other agencies and research by the LSE shows that often the role played is to stop cases getting to the appeal tribunal, so, in a sense, saving the Government money, because the advisers know whether there is a case worth pursuing or not.
As the noble Lord, Lord Newton, said, the other suggestion is that people can turn to CABs, law centres and so forth. However, as the noble Lord said, these are under immense pressure. Not only that but sometimes people ask how what is happening now compares with what was happening in the 1980s, when we had social security reform and cuts. At the time, I was working at the Child Poverty Action Group. One thing that is making things much harder now is that in the 1980s local authorities were expanding welfare rights advice services, and they were able to help people to deal with the turbulence of social security reform and the changes being made. Now, local authorities throughout the country are cutting back on welfare rights advice services, and this is happening when law centres, like CABs, are under pressure. Therefore, that is not the answer either.
As has already been said, removing legal aid for help with social security law would be damaging to some of the most vulnerable people in society at the best of times, but doing so when we are facing the most radical change in social security law in 60 years, as the Government themselves bill it, could be seen as bordering on the vindictive.
I want to turn to a rather limited but important aspect of this issue. On our first day in Committee, the Minister and I had an exchange about whether legal aid was available for cases coming before the Upper Tribunal and the higher courts. I am sure that, like me, the Minister went away and did his homework. My homework confirmed that I was right: legal aid is available for advice before one gets to the Upper Tribunal. However, I was only partially right because in some cases it can also be available for representation. I sought advice from Roger Smith of Justice, who is a former colleague of mine, and this is what he said:
“Legal help is, of course, currently available for advice. The position on representation is a bit more complicated. Legal aid for representation is not available as routine for social security cases in the Upper Tribunal but has been available for further appeals to the courts. Legal aid for court representation will be withdrawn under the Bill.
Legal aid is available for certain specified appeals to the Upper Tribunal, basically where legal aid was available prior to the establishment of the Upper Tribunal but this does not include social security”.
Nevertheless, he continues:
“The Access to Justice Act allows funding in exceptional circumstances where proceedings are otherwise out of scope … and, therefore, can cover representation at Upper Tribunal cases. This is the provision that is used to provide representation in inquests but it covers all proceedings”.
The Child Poverty Action Group confirmed that it had legal aid for a social security case in the Upper Tribunal, even though, admittedly, it was hard to get.
Roger Smith also drew my attention to a very useful article in the CPAG’s Welfare Rights Bulletin by the group’s solicitor, Sarah Clarke. She points out that legal aid for social security matters at higher courts is being withdrawn despite the fact that the Ministry of Justice puts no savings on this at all. In fact, at our first sitting, the Minister said that this would save £1 million. In public expenditure terms, £1 million is so well within the margin of error that it hardly counts as public spending; it can simply be written off. The article is helpful. It says:
“In the future, social security claimants who find themselves faced with an incorrect Upper Tribunal decision, or who win their case at the Upper Tribunal but find themselves on the receiving end of an appeal by the DWP, HMRC or a local authority, could be facing the courts and the costs risks attached on their own or not at all. It also means that the big social security test cases which reached the higher courts by way of the appeals process, such as Zalewska on the lawfulness of the Workers’ Registration Scheme, Hinchy on the interpretation of the overpayment recovery test, Pedro, on the meaning of ‘family member in EU law’, and Mallinson, the seminal case on the interpretation of the law on disability living allowance, will not be funded in future.
In view of the complexity of the relevant law and procedure, the importance of what is at stake for the applicant and others, and the fact that many social security claimants are vulnerable and may be disabled or may not have English as a first language, and therefore are particularly disadvantaged in presenting their cases, it seems possible that, particularly in cases before the higher courts, a lack of legal aid could breach the rights of claimants under Article 6 of the European Convention on Human Rights”.
Given that an appeal to the Upper Tribunal has to be on a point of law; given the complexities of that law and how much is at stake in terms of the livelihoods of some of the most disadvantaged members of our society; given that, as Justice points out, even if the Supreme Court had agreed to a case because of its complexity and its importance, legal aid would not be available because the Government say that it is not complex or important enough; and given that the savings are so minuscule that the Ministry of Justice does not even normally record them, can the Minister explain to the Committee why the Government are withdrawing legal aid from this small yet important category of cases, and can he please justify this to the Committee?
Lord Phillips of Sudbury
My Lords, I am in entire agreement with what has been said by my noble friends Lady Doocey and Lord Newton and the noble Baroness, Lady Lister of Burtersett. I should be very grateful if, in responding on these amendments, my noble friend Lord McNally would tell the Committee whether in respect of later amendments that seek to ensure proper funding for CABs and advice agencies there is going to be a positive answer, because that will have a major effect on my whole approach to this part of the Bill.
It does not need repeating that cutting legal advice in relation to social welfare claimants is, on the face of it, utterly bonkers. First, the people seeking that advice are the most vulnerable in our society. I wonder how many people who are now in this Chamber have ever sought assistance under the Social Security Contributions and Benefits Act 1992 or the Welfare Reform Act and so on. There is a whole forest or jungle of social security law, and I ask anyone in this Committee who thinks that, because it is for the common man it is simple, to have a look at any of the legislation. It is a nightmare. I have given a bit of legal advice in law centres in my time. It was a nightmare when I did it as a young solicitor but it is a treble nightmare now. Someone said recently that the CAB advice manual for social security law ran to a couple of hundred pages, but it now goes well into the thousands.
Lord Phillips of Sudbury
I am most grateful to the noble Lord, Lord Bach. There are 7,500 pages, and the devil of it is that a lot of these statutes interrelate. In many cases, finding a way through this stuff is, believe me, a job for a lawyer and not a job for the harassed citizen. Do not let us be carried away by the telephone helpline. It will help in all sorts of cases but in very many it will not. That is because, first, the complexity will outrun the knowledge of the person on the phone. Of course, the answer is that they should then refer the person to someone else, but I have to tell your Lordships that these advice lines—and I have experience of them too—are very powerful instruments. The second reason is that it is a commonplace that people find it very difficult to explain the facts and so on in relation to these social security measures face to face, let alone down a telephone line.
Therefore, I hope that we will be honest with ourselves and that the excellent civil servants, the excellent Bill team and the excellent Front Bench spokesmen will recognise that this is not territory with which we are familiar. I suggest that we need to be a little humble before we say categorically that the status quo after the Bill comes into force will be sufficient to enable hard-pressed, often bemused and sometimes desperate people to access the benefits that we have legislated for them.
Baroness Howe of Idlicote
My Lords, let us face it, the next group of amendments covers almost exactly the same area as this one. I shall reserve what I was going to say until we reach my amendment in that group. However, in view of the comments made by my noble friend Lord Wigley about running all these Bills together simultaneously, I wanted to point out that—believe it or not—in the Moses Room this afternoon, going on in parallel with what was going on in this Chamber there was a Motion about jobseeker’s allowance. Aspects of the Welfare Reform Bill and the legal aid Bill are interwoven in an appallingly complex way.
We have just heard from the noble Lord, Lord Phillips, a very clear case as to why the whole exercise is going to be costly. I agree with the sympathetic point he was making for the Government: any change made to these forms of welfare help is almost by definition bound to involve extra cost and extra complexity, because it is yet another layer added to the thousands of pages that have to be understood by the professional expert. Then, one appears to be busily taking away, or making it much less easy to access, the professional help we have had in the past. There is also the point made that the CABs, which have been so marvellous in the past, are going to be shorter and shorter of money. The whole thing is becoming really worrying and I hope that the Government will reflect on this.
Lord Howarth of Newport
My Lords, like my noble friend Lady Lister, I often feel that after the noble Lord, Lord Newton of Braintree, has spoken, there is not very much to add. However, all noble Lords who have subsequently spoken have indeed made very valuable additional contributions. I would like to say a few words because this is a debate of absolutely central importance in our consideration of the Bill. We should all be extremely grateful to the noble Baroness, Lady Doocey, for moving as she did the amendment that she and colleagues have tabled. She raised an interesting and important point—among many others. Since such a high proportion of those who receive legal aid to support them in welfare benefits cases are disabled people, this policy may be in effect discriminatory against disabled people. That in itself is something that we ought to reflect upon. I hope that when the Minister replies he will be able to tell us whether or not this is the case, and if he thinks it is not the case, how he explains that.
The noble Baroness also reminded us of the high success rate of appeals and of appeals made by disabled people. Of course, the proportion of successful appeals is higher when people have been advised, when people appear personally in court, and when they are accompanied. If the Government are going to take away legal aid from welfare benefits cases, it raises the question of whether they want people who are entitled to receive benefits to do so. I believe that they do. I cannot believe that the Liberal Democrats and the Conservative Party do not want people who are genuinely and properly entitled to receive welfare benefits to do so. However, the reality is that if they take away legal aid in support of those cases, they are ineluctably going to prevent very significant numbers of people who should receive those benefits from doing so. I ask them fairly and squarely this question, and again I would like the Minister to respond specifically to this point: do they want all these people to receive benefits, and if they do, how do they suppose that they are going to receive those benefits?
Ministers at the Ministry of Justice have been pretty blunt hitherto in saying that they consider welfare benefits cases to be of lower importance than other categories of case which will continue to be in scope of legal aid. I would like to know—and again I ask the Minister to tell us in his reply—exactly why the Government believe that welfare benefits cases are less important than other categories of cases that they have determined should remain eligible for legal aid. I think that for people in poverty, welfare benefits are extremely important, and those people would be interested to know the Government’s explanation of their policy, just as we would be.
Of course, there are going to be growing numbers of these people. This is partly because of the recession, which is increasing unemployment and the hazards of life, and making much, much more difficult the personal, domestic, and financial circumstances of very many people. There is also going to be an increased number of people who wish to appeal against decisions that they should not receive welfare benefits, on account of the transition to the new incapacity benefit, employment support allowance, personal independence payments, and the whole panoply of welfare reform upon which the Government have embarked. This is undoubtedly going to lead to confusion, to administrative complexity, and to a higher error rate on the part of staff whose job it is to determine eligibility for welfare benefits. We are going to see an increasing number of appeals that people will very properly want to be able to make. The Government therefore need to have very good reasons indeed for why they are going to make it harder for people to pursue these appeals successfully. After all, they are expecting, by their own admission, to make savings to the public purse of only some £25 million net—a trivial saving, absolutely trivial, in the context of overall public spending.
What is going to happen to these people who do not get legal aid? They will try to go to other sources of advice, but the charities which might advise them are not going to be in a position to do so, as they have been telling us. The citizens advice bureaux in particular have been warning us very earnestly that they will not be in a position to provide the advice that they have been able to provide with the support of legal aid and local authority funding—neither of those, in large part, are going to be available. Would-be appellants—claimants—may then be driven to other kinds of private adviser. I dread to think what sort of advice they may receive from those sources. We are very aware in the immigration field that some extremely dodgy and dubious people offer advice who are frankly exploitative of people when they are in very great difficulties.
We will see an increase in self-representation: people will go to the tribunals to try and make their own case. The notion, to which the Government are so attached, that the tribunal system is a user-friendly, accessible, informal alternative to the court system, is a pipe dream. Of course it is highly desirable that there be more informal, more economical, more user-friendly systems of justice available. Again and again, attempts have been made to achieve that but, again and again, the system becomes less informal, more complex and more arduous to navigate, and people need expert help to find their way through. It is unrealistic of the Government to suggest that the tribunals system is somehow going to be there and that it will be all right for people to represent themselves.
The consequences of a policy that will result in people not being able to make their appeals in order to obtain the benefits that they should be able to obtain will include increased unemployment, particularly among disabled people, because if they do not have the tailored support that they ought to have, their chances of securing employment, with the odds already stacked against them because of their disabilities and in this very difficult labour market, will be further reduced. We will find more people in debt and suffering ill health, because poverty will mean that people will not be able to afford a proper diet or heating and will have to cope with anxiety about their poverty. We will see more cases of poor physical and mental health. All these predicaments will produce costs to other government departments. I fear that we will also see a greater resort to criminality as people despair and feel that there is no longer a just system available to them. I do not think that there will be savings to the public purse; there will be additional costs to the public purse. Above all there will be a great cost for all of us to pay in national shame.
Lord Alton of Liverpool
My Lords, as my noble friend Lady Howe rightly said a few moments ago, other amendments later in our proceedings will return to the general question of legal aid. I will reserve some of my remarks for that later group of amendments, as my noble friend indicated that she, too, would do. However, I would be sorry to see the amendment proceed without as many voices as possible being raised around your Lordships’ House in support of what the noble Baroness, Lady Doocey, said today. As the noble Lord, Lord Howarth, intimated, this is of central concern. The noble Baroness was right about this at Second Reading and she was right to bring this amendment before the House today. I hope that the Government will reflect on the arguments that were laid before us.
At Second Reading I mentioned that an organisation of which I am a patron, the National Association of Child Contact Centres, had written to me expressing concern about the number of volunteers who are withdrawing from voluntary service because of the pressures that we are placing on them. That, in tandem with the reduction of resources being made available to Citizens Advice and other voluntary organisations because local authorities have to cut back on their funding, should cause all of us to stop and ask the kind of questions that the noble Lord, Lord Newton, properly put to us earlier. I am sure that the Minister shares many of these concerns. He would not want to see—any more than any noble Lord would want to see—people with spina bifida, autism, cerebral palsy or any number of physical or mental disabilities placed in a position where they cannot get proper or adequate representation or advice in order to pursue their cases. I hope that he will be able to tell us whether he has had direct discussions with organisations such as Leonard Cheshire Disability and Scope; and I hope that before coming to a final conclusion on these issues he certainly will.
My noble friend Lord Wigley was right to remind us at the outset of the increase in the number of complex questions that are now being placed before people who are dealing with disabilities. During my time as a constituency Member of Parliament I, like my noble friend—although we had very different constituencies; one in rural Wales and one in the heart of the city of Liverpool—was confronted again and again, just as the noble Lord, Lord Phillips, was when he worked as a volunteer in legal aid centres or on telephone lines, with complex and difficult questions. The noble Lord, Lord Bach, reminded us that these days the advice runs to more than 7,000 pages in a handbook. It is impossible to deal with these questions when, as we heard, they are incredibly complex and changing day by day, even as your Lordships consider them.
I was struck by a leading article in a Sunday newspaper that commented on the anachronistic nature of your Lordships' House. It went on to say, thank God for these anachronisms because last week in debates on the Welfare Reform Bill it was the anachronistic House of Lords that stood up for the voiceless and powerless people for whom no one else would speak. I suspect that your Lordships will have to perform the same role again.
Baroness O'Loan
My Lords, I support Amendment 32, tabled by the noble Baroness, Lady Doocey. It is generally acknowledged that attempts by government to simplify the welfare system are to be welcomed because the systems are complex and difficult. Despite the fact that legal aid has been available for appeals against decisions on entitlement, we have seen a very significant lack of take-up of the benefits to which people are entitled. Under the Government’s proposals, that legal aid will no longer be available. It is accepted by the Legal Services Board that dispute resolution and advice in social welfare law requires legal and technical competence. We know from Scope that 39 per cent of appeals against work capability assessments are upheld. Without legal assistance, people simply will not be able to meet the challenges that will enable them to retain the benefits to which they are entitled.
There will be 3.2 million people affected by the change to DLA alone, and 1.8 million will migrate from incapacity benefit to DSA or jobseeker’s allowance. People in those cases may be ill, seriously stressed, living in profoundly difficult circumstances, illiterate or incapable of dealing with correspondence. They may not recognise the importance of attending various assessments or may lose out simply because of their vulnerability. If a family loses the benefits to which it is entitled and cannot access professional help, inevitably there will be very serious consequences such as more children going hungry, not having enough warm clothes for the winter and not having heat in their homes. Parents will have to make appalling choices.
The consequence may be situations in which individuals go to tribunals in cases in which, had they received legal advice, they would have known that they did not have a valid case. A tribunal costs approximately £293. The cost of legal advice to help people in this situation is of the order of £150 to £200. As noble Lords said, there are serious concerns about the consequential increases in the number of cases going to tribunal. Put simply, there are very good financial reasons to continue to provide the current, low-cost legal help.
Lord Bach
My Lords, client A was a single mother aged 20 with two young children. She had no permanent home and was living with her mother. She had no income other than a crisis loan and suffered from mental health problems. She had been awarded employment and support allowance, but this was suspended when she was admitted to hospital and missed a medical assessment. She was then informed that she was not entitled to employment and support allowance. The Leicester community advice and law service lodged an appeal on her behalf. The DWP agreed to reinstate her claim while the advice and law service explained her medical problems to the department.
Client B was also a single mother. She suffered from bipolar disorder and received employment and support allowance and other benefits. She had debts totalling £2,500, including overpayments of benefits and arrears owed to utility companies. The advice and law service assisted her in making successful claims for disability living allowance and associated benefits, thus increasing her income by more than £100 per week. Her housing benefit had been suspended. The service challenged the decision and housing benefit was reinstated and backdated, thus avoiding an escalation of rent arrears that ultimately would have led to the loss of her home.
Both cases took place in my home city of Leicester, but there will be examples from every city, town, village and hamlet in the country. What do the two stories have in common? First, both clients were helped by the same advice agency. The crucial point is that they were helped using legal aid. Advice was given and lives were changed. If this Bill goes through in its present form, this sort of life-changing advice would probably never have been given. Those two clients who had real legal problems would not have been legally helped.
It does not take much imagination or knowledge of the world to know that events in both cases would have gone downhill fast if advice had not been given. Not just the mothers themselves but, one suspects, their children would have suffered. The state would have had to pick up the pieces at a much later stage when much more damage would have been done. If the Bill goes through, welfare benefit advice will be out of scope, not just at the beginning but at the end, too. The costs of the Leicester law service organisation that took up this case are negligible. We have heard about the small costs of each case of this type. They are tiny compared with the social and real financial costs if there had been no early intervention.
How can the Government be so stupid to think that what they are proposing can do anything but harm? I speak with all the strength that I have in support of the amendment moved so passionately by the noble Baroness, Lady Doocey, who has given a lifetime’s service to disabled people. I agree with other noble Lords who have said that her amendment is central to what we have to debate and decide on in this Bill. Her amendment would return to the scope of legal aid: advice and assistance on eligibility for welfare benefits, applications for welfare benefits, and appeals against the decisions of granting authorities. Although the expertise of the noble Baroness, as has been said around the House, is in helping disabled people, her amendments, as she would be the first to say, cover a much wider group in society than merely those who are disabled; they cover all citizens who find themselves in that position.
The amendment is identical to that tabled in another place in Committee and on Report by my party. The first time—in the Public Bill Committee—the amendment was defeated on Division by the government parties, but on Report the Liberal Democrat Members of the Public Bill Committee tabled an amendment to the same effect. Unfortunately, because of a heavily guillotined timetable, and, I am sad to say, filibustering by those who should have known better, no debate and thus no vote was held. It is possible that had the vote been taken in another place, we might not have this question quite in the form it is in today.
There is rightly great strength of feeling from all sides of the Committee about the removal of advice on welfare benefits. There is a real fear that it will lead quickly to a downgrading in the efficiency of a system that, while not perfect, has worked pretty well over 40 or 50 years, and which, crucially, has been supported by all Governments of whatever complexion and by all major political parties in this country. There is consensus that the state has an obligation to provide this sort of help for the poor, for disabled people and for those who need help—it could be any one of us in certain parts of our lives—because it is both practical and humane.
There is great concern that if the Bill goes through as it stands we will lose that and, as my noble friend said, be diminished as a country in how we conduct ourselves. That is why this issue is so central. It will drive tens of thousands of litigants-in-person to try to deal with complex issues that they might not fully understand or be able to communicate. Thousands of people will be left without a lifeline. Those who have real cases will have to join a queue because tribunals will take so long to reach their cases. Then people might find themselves completely destitute: their homes at threat, relationships breaking down, and their children helpless. There will be that drive downwards that we see so often.
Lord Newton of Braintree
There is something that the noble Lord has not mentioned, which could be an important factor, bearing in mind his reference just now to children left helpless and some of his earlier case studies relating to single-parent families. I cannot remember the figure but there is a huge cost for every child taken into care. I would like the Minister to tell us the cost of each child taken into care as a result of the knock-on effects that could arise from these proposals. It costs tens of thousands of pounds every time, and I do not believe that all that has been taken into account.
Lord Bach
I am grateful to the noble Lord as he is absolutely right about the social and financial costs of abolishing this sort of legal aid. It is impossible to say what they will be, but they will be huge, which I should have thought was fairly obvious.
The outcomes that we have talked about in this debate are not beyond the realms of probability, nor can anyone say that they would be unexpected. It is up to us in this Committee, and in the House perhaps on a future date, to decide whether the outcomes that have been described would cross the basic line of British decency that it is our obligation to defend. As part of that decision-making, we must look at whether these particular cuts are economic in the first place. Would they achieve even the Executive’s highly limited narrow goals of saving money?
The ministry plans to remove entirely funding for welfare benefits from scope. It claims that that will save £25 million a year. That sum normally goes to dealing with 135,000 cases per year. The advice is delivered, not altogether but pretty much through third-sector not-for-profit agencies such as Citizens Advice, law centres and many other advice centres. Advice goes to those seeking reconsiderations of decisions by the DWP and related agencies and to those appealing decisions before the First-tier Tribunals and then the Upper Tribunals. We have heard who receives the advice. Women are disproportionately users of this advice, as are ethnic minorities. As the noble Baroness indicated, 69 per cent—a very high percentage indeed—of those receiving advice are ill or disabled in some way.
As for who gets more complex advice—that relating to grounds for appeal—the published data for First-tier Tribunals show that of the 50,000 or so benefits-related cases heard a year, 90 per cent relate to disability-related benefits. That is hardly a surprise. For all its sins, jobseeker’s allowance is a simple entitlement for which to calculate eligibility. When there is a degree of subjectivity in deciding on the impairment caused by disability, agencies are more likely to make mistakes and thus require decisions to be appealed.
What does the advice funded by legal aid deliver? Colleagues in another place tabled a series of Parliamentary Questions to establish the percentage of people who win their appeals before tribunal with and without advice. The figures provided by the ministry show that in 2009-10 in welfare benefits-related cases, people were 78 per cent more likely to win if they had advice than if they did not have advice. For ESA the figure was even higher. People appealing employment support allowance decisions were more than twice as likely to win with advice than if they did not have advice. I point out what is obvious: those winning appellants are all legitimate claimants. They are not scroungers; they are not feckless—for the main part they have probably suffered some form of disability. They have been denied their rights by an emanation of the state, by the Executive, and they are legitimately challenging that decision.
Lord Thomas of Gresford
Would the Minister agree that the statistics he has just—
Lord Thomas of Gresford
It is just habit. Would the noble Lord agree that his statistics suggest that where there is advice, meritorious claims are brought forward and money and time are not wasted by tribunals in hearing litigants in person?
Lord Bach
I agree absolutely. It seems to follow because the people who practise this kind of law—and we know that they are not particularly well-paid lawyers—are very careful, on the whole, to give advice on the position in law and not necessarily what the claimant wants to hear. It is right that people with hopeless claims do not go forward and those with meritorious claims do go forward—as they should do.
These are legal problems—let us make no mistake about that. The truth is that the welfare benefits field, as we have heard all round the House from great experts, is very complex in many cases and people need help with these matters before they can decide the right thing to do.
Judge Robert Martin, the head of the Social Entitlement Chamber of the First-tier Tribunal, gave evidence to the Justice Committee inquiry some time last year. The 7,500 pages I referred to in an intervention are the reference material that was issued to the tribunals and which is now spread over six volumes. He made that point to the Justice Committee. He was asked by the chair, the right honourable gentleman Sir Alan Beith:
“Will it bring more people into the tribunal because they have not been advised that their case has no chance of success in the tribunal”?,
which I think is the question the noble Lord, Lord Thomas of Gresford, asked me. Judge Robert Martin said:
“Yes, because a general public awareness of tribunals is very low. Very little is put into public education of the law and how to seek redress for grievances. There is this risk that we will see many people who have been drawn to the tribunal believing it is the most appropriate forum to solve things, whereas it may be just a mistaken conception about the tribunal”.
He continued:
“Legal help is so important in that triage function of sifting out cases which can be redressed but not through the tribunal or the court, and assisting those cases where the tribunal or the court can assist to have the case prepared in a way that maximises the chance of success”.
That gives the answer from someone who is, as it were, at the coal face. He went on to say:
“With the removal of legal help, we will have to spend a lot more time explaining simply what the tribunal is about rather than getting to the heart of the matter”.
This Bill is at its worst in this particular part. I argued at Second Reading—and I argue again today—that it is unconstitutional in that it removes access to justice for a large number of citizens, it is immoral because the state should not try to save a fairly small amount of money by targeting the poor and the disabled by removing their legal rights, and it is financially crazy because the savings will be non-existent. As benefits mistakes are not remedied, the problems will grow and the cost to the state will explode.
We are very proud of our legal system in this country and we encourage, quite rightly, foreign citizens to litigate their cases in British courts. They do so because of the extreme fairness and expertise of the British legal system from top to bottom. It is ironic, is it not, that we should be asking foreigners to litigate their serious cases in our courts because of the greatness of our system, while at the same time we seek to reduce some basic rights in law for our own citizens who are the least able to look after themselves?
Lord McNally
My Lords, Amendments 32 and 89 seek to bring welfare benefit matters into the scope of legal aid funding, first, by deleting the exclusion for welfare benefits in Part 2 of Schedule 1 and, secondly, by adding social welfare as an in-scope category in Part 1 of Schedule 1.
The amendments are contrary to our reform programme in which we are focusing our resources on the highest priority cases. Currently legal aid is available for legal advice but not representation in relation to decisions on welfare benefits at the First-tier and Upper Tribunals. While we recognise that many people rely on welfare benefits, these cases are primarily about financial entitlement. In our reforms we have concentrated on the fundamental issues of liberty or safety. Given the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme.
Lord McNally
I am only one and a half pages into my reply. I do not mind. Carry on.
Lord Howarth of Newport
Can the Minister explain why poverty is a less fundamental issue than liberty or safety?
Lord McNally
I am going to go on to this. I must say to the noble Lord that it would help if I can get further than just past page one. I will deal exactly with the issue that he has raised. As the noble Baronesses, Lady Mallalieu and Lady Howe, indicated, we will have a series of debates on a number of specific individuals who will be affected by reforms.
A number of noble Lords have cited their own experiences, either professional or personal, so I shall in part answer the question asked by the noble Lord, Lord Howarth, by giving a personal experience of my own. In 1976 I sat in the Cabinet Room in Downing Street with the Chancellor of the Exchequer and the Prime Minister—Denis Healey and James Callaghan—and during the course of a two or three hour meeting the pound fell from 1.95 to 1.45 against the dollar. By the time it hit 1.45 we had sent for the Governor of the Bank of England and decided to call in the IMF. Like many events, it has left a political scar, which is this: if you lose control of your own economy, all the concern for the poor and the disabled and the disadvantaged is as nothing because you cannot help them if you are not in control of your own economy.
Many of the debates that we have heard in the past few days, including this one—and probably the one tomorrow—have addressed the kind of issues that we have heard today. As I look around the House, I know that on all Benches there are people who have devoted their lives to the betterment of the citizens of this country. No one party has a monopoly on that. However, it is right to say that we have had to take hard decisions in difficult circumstances. I hear that £1 million is within the margin of error and that £20 million is trivial, but in a department like mine those are the figures that we are having to face and deal with. Therefore, although I understand some of the—
Lord Howarth of Newport
I am sure we all accept that it is imperative that the Government do not lose control of the economy, as the Minister puts it, but it is a question of how you gain control of the economy. Why do this Government prefer to deprive people of legal aid in their appeals for welfare benefits in order to save £25 million—they think, but very good reasons have been put by noble Lords all round the House as to why that saving would be illusory—while being prepared to spend much larger sums on freezing council tax, which will largely benefit more affluent people, or on weekly refuse collections? It is a question of priorities.
Lord McNally
Politics is always a question of priorities. We keep on having this Second Reading debate. If we want a bit of knockabout, it has taken the Shadow Chancellor and the Leader of the Opposition 18 months into this Government to accept the cuts that the Government are imposing. We can have a knockabout if you want. We started this debate some months ago and what we are talking about is a department that is making its contribution to a roughly 20 per cent cut in public expenditure. That kind of adjustment was necessary—and I think has been successful—to retain the confidence in our economy which others have lost, and which has allowed us to borrow at lower interest rates and keep that readjustment within manageable terms.
Of course, as each department brings its proposals forward, tough choices are made. I am sure there are people in local government who are having to make tough choices, and when they make those tough choices people will extrapolate the consequences of those tough choices—but let us not pretend that there are alternatives to those tough choices. It is also interesting. I am not sure where we are on this. I could not intervene because my noble and learned friend Lord Wallace was in charge of that.
During the medical debate, the noble Lord, Lord Phillips, stood up and with a perfectly straight face, and supposedly making an argument on his side, cited a case where £90,000 was spent—£45,000 on legal fees and £45,000 on advice—to produce £4,500 of compensation for the person offended. It did not seem to occur to the noble Lord, Lord Phillips, but it did to me as a poor, innocent, non-legal layman, that there is something wrong with a system that absorbs £90,000—
Lord Beecham
That was hardly a representative example of cases. In most cases—although necessarily costs in clinical negligence cases are higher than the average—they are nothing like that proportion.
Lord McNally
I never even suggested that. However, I am suggesting that we are talking about processes where the response of the Opposition, and sometimes my noble friends, seems to be yet more lawyers, yet more litigation—
Lord Phillips of Sudbury
I thank my noble friend for giving way, but I must just reply. First, the whole point of my alarming case was to show how desperately needed reform was. Secondly, it was to support the amendment because were aid available to get expert reports right at the beginning, you would know at the outset whether the case was a runner and some of these crazy expenses would be knocked out.
Lord McNally
It still seems barmy to me. Likewise, with regard to the 7,500-page volume mentioned by the noble Lord, Lord Bach, and the noble Baroness, Lady Lister, in 13 years of Labour Government, did nobody think, “What kind of system are we producing that requires that kind of detailed explanation and advice?”? It seems to me that the approach is not reform, as the noble Lord, Lord Phillips, said, but forever putting another layer of wallpaper on an already dirty room. We are about reform and one of the things that we are reforming—again, it would be interesting in wider debates to hear where the Opposition is on this—
Lord Bach
If the Minister’s best point is that the volumes on welfare benefits increased in the years of the Labour Government—as no doubt they did in the years of the Conservative Government before, and have done for 30 or 40 years as the system has got more complicated—that is a pretty poor argument for taking out of scope social welfare law, frankly.
Lord McNally
That is not my best point. The best point is that we are having, supposedly, a national debate about welfare dependency and welfare reform. It may be a bit unsettling that a number of reforms are taking place at the same time, but my understanding is that the welfare reforms before this House are attempting to simplify a much overcomplicated process and that that had the broad support of the Opposition. I do not think we are going to win this argument, some of which we will return to.
Amendment 35 seeks to bring into scope legal aid for advice and assistance for appeals to the First-tier Social Entitlement Chamber in respect of welfare benefits that are payable under social security legislation as a result of disability. The intention of the amendment appears to be for legal help and representation to be provided for welfare benefit appeals in the First-tier Tribunal for those with disabilities. Currently, legal aid is available for legal advice only in relation to decisions on welfare benefits in the First-tier Tribunal. Legally aided representation is not available for tribunal hearings because they are designed, as has been said, to be user-friendly without the need for legal representation. Therefore, we believe that this amendment would increase the cost of legal aid by expanding it into areas where it is not currently available.
We recognise that this amendment is concerned about the impact on those with disabilities who are appealing to the tribunal. While we recognise that those with disabilities may face additional obstacles, the tribunal is a relatively informal venue. The tribunal itself will comprise a medical practitioner and a disability expert as well as a tribunal judge when considering disability living allowance appeals. Given this and the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme. I hope that my noble friend will withdraw her amendment.
Baroness Doocey
My Lords, I am grateful to all noble Lords for their support on these amendments.
I have listened very carefully to what the Minister has said and I cannot pretend I am not disappointed by the response. There is no doubt that we need to get a higher proportion of benefit decisions right the first time round but I have not seen anything to convince me that this is going to happen any time soon.
Huge numbers of mistakes are made in decisions on benefit, and these have catastrophic effects, not just on the person trying to claim the benefit, but on their entire family.
I will give you one example. Somebody that I have known for 30 years has incredibly complex problems with her back following an accident. She had worked all her life, and was forced to claim benefit. She is so badly damaged, having had multiple operations, that she is incapable of standing for more than three minutes at a time. She spends the majority of her life lying down to take the pressure off her back, and is on incredible amounts of medication. Initially she was assessed as having no problems whatever, and that she could work. While she is a highly articulate person, she is terrified of authority, and so without being pushed by a number of us, and having recourse to legal aid, because she had no money at all, she could never have appealed that decision, which was clearly absolutely wrong.
I therefore really worry about what is going to happen if this goes through. I really hope that the Minister will reflect again and consider bringing back some hope at Report stage. Meanwhile, I beg leave to withdraw my amendment.
Organisation for Security and Co-operation in Europe
(12 years, 11 months ago)
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Lord Bowness
To ask Her Majesty’s Government what is their assessment of the present role of the Organisation for Security and Co-operation in Europe and whether they have plans to increase awareness of its work.
Lord Bowness
My Lords, I am a member—together with the noble Lord, Lord Dubs, and the noble Baroness, Lady Hilton of Eggardon, and colleagues from another place—of the Parliamentary Assembly of the Organisation for Security and Co-operation in Europe, the OSCE. The question tonight is about the OSCE and not the Parliamentary Assembly, although there is a connection to which I will return.
Noble Lords here tonight will know the history of the OSCE, but for the record, and to emphasise the breadth of its membership and activities, I will briefly outline its structure and history. Its origins go back to the early 1970s and the East-West détente, and the formation of the Conference on Security and Co-operation in Europe, which became the Organisation for Security and Co-operation in Europe in 1994. In the Helsinki Final Act of 1975 the participants agreed commitments in three security dimensions—political and military, economic and environmental, and human rights—and also agreed 10 principles to govern relations between the member states and their peoples.
There are 56 member states, from Vancouver to Vladivostok, including the largest and the very smallest nations: the USA and Canada in North America, through all Europe to the Caucasus, and into Eurasia, Russia and Kazakhstan. Even the Holy See is a member. The highest decision-making body is the Meeting of Heads of Government, or summits. These are infrequent, the last being in Astana. The Ministerial Council meets once a year unless there is a summit. The last was in Vilnius, last December, at the conclusion of the Lithuanian chairmanship, that role having being taken up at the beginning of this year by Ireland.
The Permanent Council, attended by our Permanent Representative, discusses and decides upon current developments in the area. It meets weekly in Vienna, as does the Forum for Security Co-operation, the chairmanship of which rotates among the member states on a four-monthly basis.
The Vienna Document requires states to share information on their military forces, equipment and defence planning, and provides for inspections and evaluation visits. The Office for Democratic Institutions and Human Rights is involved in the implementation of OSCE commitments to democracy, rule of law and human rights, and plays a particular role in the monitoring of elections. The High Commissioner on National Minorities addresses the problems of ethnic tensions in member states, and works with the states to improve legislation related to such issues. The Representative on Freedom of the Media acts as a watchdog to promote compliance with OSCE values on freedom of the media.
The OSCE is also involved in areas of vital interest to the United Kingdom and its European Union partners. A list of its operations and missions is a roll call of actual or potential trouble spots: Bosnia, Kosovo, Montenegro, Macedonia, Serbia, Moldova, Ukraine, Belarus, Armenia, Azerbaijan, Turkmenistan, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. It is involved in all these vital areas. Important work is done on the ground in activities essential to any state governed by rule of law and democracy, and to all the states in the region, such as control of the spread of illegal arms and border control.
In 2010 the local office in Kosovo, which I visited in November last year, was involved in the following activities: monitoring community rights; property rights, including resolution of problems arising from returning refugees; human rights; rule of law issues; development of the police service; anti-trafficking training; good governance and support for the Kosovo assembly; support for the electoral process; assisting the media regulator; promoting police and public partnerships, and many other initiatives.
The organisation has relations with other international and regional organisations and with Asian and Mediterranean partners for co-operation. The organisation and the Parliamentary Assembly have already been involved in monitoring elections in Tunisia, in which the noble Baroness, Lady Hilton, took part.
A Conflict Prevention Centre works on problems which include Moldova and Transnistria, and Armenia, Azerbaijan and the Nagorno-Karabakh problem. The Office of the Co-ordinator of OSCE Economic and Environmental Activities works on the problems of hazardous waste, energy security and sustainable development in places where—particularly in Soviet times—there appears to have been rather less concern for the environment and the damage caused by industrial process.
Lastly, a Department of Management and Finance provides financial management and administrative advice to participating states.
I believe that there is a considerable lack of knowledge about OSCE and what it does, not just in the wider world but, with great respect, also in Parliament itself. I therefore pose some questions to Her Majesty’s Government. Do the Government consider the OSCE to still be a relevant organisation? Do they believe that an organisation based on consensus can work, when the position of Russia on issues such as Georgia makes resolution almost impossible? Do we co-ordinate our efforts in OSCE with our European Union partners? Surely it is a forum where the elusive CFSP could begin to work. Apart from our budgetary contribution, how far are we prepared to go in funding secondees to assist in the work of OSCE? A 2010 report showed that we provided 48 people. How many are financed now by additional finance beyond our budget?
Why is it that we hear so little from Her Majesty’s Government about OSCE, about our position in that organisation and the policies that we seek to promote in it? Since May 2010 there has, as far as I can see, been only one Written Statement following a ministerial meeting. No separate Statement was issued after the Astana summit. The 18th ministerial meeting in December in Vilnius did not even merit a Statement, written or otherwise, to either House of Parliament. The most we have is a blog on the FCO site by my right honourable friend Mr David Lidington, and I thank him for it—any information is welcome—but is a blog, however good, an appropriate way to inform Parliament?
If Her Majesty’s Government are convinced of the importance and relevance of the OSCE, surely Statements, written or otherwise, should be made to Parliament after every summit and every ministerial meeting, formal or informal; and from time to time Parliament should be brought up to date with the proceedings of the Permanent Council and the Forum for Security Co-operation. With weekly meetings of both in Vienna, it is difficult to believe that there is nothing in the course of a year which merits some report to Parliament.
This is where I square the circle with membership of the Parliamentary Assembly. As a member of the Parliamentary Assembly, I would find it much easier to fulfil the role of the Parliamentary Assembly, which includes, though not exclusively, assessing the implementation of OSCE objectives, discussing subjects addressed at the OSCE Ministerial Councils and summits, contributing to the development of OSCE and its institutional structures and relations, and co-operation between the existing institutions of the organisation.
The Parliamentary Assembly has problems about the way in which its business is transacted and the use of the time available, but that is for the Parliamentary Assembly to resolve. Without the information, there is no point in putting the time to better use. I believe that Her Majesty’s Government could help these objectives to be better fulfilled if Parliament and the public were better informed about OSCE activities. I look forward to hearing the Minister’s response.
Lord Dubs
My Lords, I congratulate the noble Lord, Lord Bowness, on initiating this debate. I know that it is normal to congratulate those who have initiated a debate, but in this case he really has broken important new ground. I very much agree with the thrust of what he said, although I find it hard to distinguish between the work of the OSCE as a whole and the work of the Parliamentary Assembly. I prefer to see them as part and parcel of a wider issue.
I have been on the Parliamentary Assembly since the previous election and I have attended two meetings in Vienna and Belgrade. In the next month or two, there will be another meeting in Vienna. In my discussions with colleagues, there is little awareness of the work of the OSCE. It might almost not exist. The first time I told people that I was off to the OSCE in Vienna or wherever it was, most people asked, “What is that?”. Even Members of this House and the Commons asked that and I had to explain. There is something the matter with an organisation, which involves a lot of good work, effort and money on the part of its member Governments, if its work is so little known and regarded.
At the first meeting in Vienna about a year ago, I was quite astonished. The OSCE local office in Belarus had just been closed by the regime and we were looking forward to hearing the OSCE official who had been in charge of Belarus. He was due to give us a report on the situation prior to his expulsion, but he did not turn up and we were unable to discover why. In terms of his own ability, there was certainly no reason for him not to come to the meeting, but something in the OSCE bureaucracy stopped him.
I very much appreciate a lot of the good work that has been done by the OSCE, to which the noble Lord, Lord Bowness, referred in some detail and which I shall not repeat. The local offices do good work. Clearly, election monitoring is very important and involves a lot of the organisation’s time and energy. The OSCE produces regular bulletins and reports on the situation in many countries about which there are concerns that are invaluable for keeping members of the Parliamentary Assembly informed of what is going on.
I was also appointed to a group of four parliamentarians who looked at the situation in Moldova. We had one visit to Moldova and to the Transdniestrian part of Moldova, which was a useful approach. We are going to continue with that and do some follow-up work. Having said that, I am still aware that one has to explain very hard to people what we are doing and why we are doing it.
In terms of the effectiveness of the organisation, the OSCE operates from three centres—Vienna, Copenhagen and Warsaw—which seems a little excessive for an organisation of that size. I am not totally clear why it has to be done in that way. I have two main criticisms. First, there is a lack of connection between what the OSCE does and the Parliamentary Assembly. Very little of the work of the OSCE and its many facets come before the Parliamentary Assembly, which is the one body that can properly scrutinise what is going on. For the life of me, I cannot understand why we have got into this position. It seems to me that the Parliamentary Assembly really has one main function: to scrutinise, monitor and oversee the work of the OSCE, the local offices, election monitoring and so on. It is very hard to get feedback on that at the Assembly meetings. This disconnect does not seem proper. I very much hope that the Irish presidency will be able to do something about that.
Surely we need proper accountability by the OSCE to the Parliamentary Assembly. I cannot understand how it can work unless there is such accountability. After all, we and the Commons are here in order for the Government to be accountable to Parliament. I cannot see why we have a Parliamentary Assembly that does not have a similar form of accountability. After all, it happens in the European Parliament. Even the Council of Europe seems to have more accountability than there appears to be in the OSCE.
My key point is that every organisation needs to have within itself the ability to assess on an ongoing basis its efficiency and effectiveness. We do not do it as well as we might at Westminster but we certainly do it. I should like to feel that the OSCE had some form of mechanism that did the same thing, otherwise we have no sense that the money is being spent in the best possible way or that the work is being done as efficiently as possible. We should look at the outcomes to see whether our priorities are right. It is a general proposition that organisations should assess their efficiency and effectiveness, but it certainly applies to the OSCE.
I should say that I have enjoyed my attendance at the Parliamentary Assembly and learning about the OSCE. Despite my criticisms, it does a lot of good work. I should like to know more about it. It is an odd comment to make that I have learnt more about the OSCE from the speech made by the noble Lord, Lord Bowness, than I did in many days of attending Parliamentary Assembly meetings, looking at my e-mails and so on. There is something the matter. Noble Lords might say that that is my fault, but I do not believe that it is. I believe that something is amiss when we have to have a debate such as this to learn about an organisation on whose Parliamentary Assembly I serve.
As I said, I believe that the OSCE does good work. It has the supreme advantage that it includes the United States and Canada, which the Council of Europe does not. We get a broad spectrum of countries that can bring their experience and strength to bear on the many difficult issues in some countries, such as breaches of human rights, problems with elections and so on. I congratulate the OSCE on its good work but I would like to see better scrutiny and more accountability.
Baroness Stern
My Lords, I join the noble Lord, Lord Dubs, in expressing very warm thanks to the noble Lord, Lord Bowness, for securing this short debate. His experience of intergovernmental organisations is extensive and it is too rarely that this House has the benefit of hearing and learning from that wide experience.
My knowledge of the OSCE in no ways matches the noble Lord’s but it goes back a long way. I first became involved nearly two decades ago through the Office for Democratic Institutions and Human Rights, or ODIHR for short—an acronym I shall continue to use, although it does not sound as enthusiastic as it might. It is the OSCE’s work in relation to democracy, human rights and the rule of law about which I want to make a few remarks this evening.
In the mid-1990s, that office was headed by a very distinguished British public servant, Audrey Glover, who was a former legal adviser to the Foreign Office and a most eminent contributor to human rights and the rule of human law. This was the time when the newly independent countries of the former Soviet Union were beginning to reform their legal systems and prison systems. ODIHR was in the forefront of that work and did a great deal of good.
Over the years, the work of ODIHR has developed in line with the changing times. Now, as the noble Lord, Lord Bowness, pointed out, much of it is concerned with how far elections are free and fair. For example, last Thursday, 12 January, an OSCE report was released on the state Duma elections held in Russia in December. That report noted that although the elections were technically well administered, the election administration was not independent. The count was characterised by frequent procedural violations; there were instances of apparent manipulation, including several serious instances of ballot box-stuffing; and there was undue interference by state authorities at different levels. Therefore, the election was slanted in favour of the ruling party. I am sure the Minister would agree that having an independent report like this in the public domain is invaluable and that probably only the OSCE could produce it.
A fair and impartial legal system is the bedrock of a state run according the rule of law. For some former Soviet countries, it has been a hard struggle, a struggle that is still going on, to achieve that. I am sure the Minister would also agree that a conference held in Ukraine last month about strengthening the independence of Ukraine’s judiciary, where specific and pragmatic suggestions for change were made, was important not just for Ukraine but for the rest of us in Europe.
Next week, ODIHR is organising a visit to Croatia for officials from the Ministry of the Interior and the security services training school in Tajikistan to learn about the methods of teaching on human rights and countering terrorism used by the Police Academy of Croatia. I imagine that we can all see the advantages of such a programme, and once again the OSCE is the organisation best placed to arrange it. However, in case this sounds a little theoretical, I want to bring in a little personal experience.
A year ago, I attended a number of events organised by the OSCE office in Dushanbe, Tajikistan, to coincide with UN Human Rights Day. I much appreciated the efforts of our excellent and hard-working embassy there to arrange my participation and to support the events. One of the events was a very big meeting to consider a report of the ODIHR election observation mission on the 2010 parliamentary elections in Tajikistan. The meeting was well attended by large numbers of what might be called “ordinary people”: that is, not officials or young people with laptops, but elderly women who looked as if they had had to walk a long way to get to wherever they picked up transport eventually to reach the capital and a lot of men who obviously came from a lifetime of agricultural work. A very passionate discussion took place and it was clear how much democracy mattered to these people.
On my second visit, which was this year, the OSCE office allowed me to attend a meeting of the non-governmental organisations they worked with and supported in the law enforcement and justice sector. These organisations tried among other things to provide legal representation to arrested people, to raise concerns about ill-treatment and to visit prisons—not easy or very safe work. The support from the OSCE was enormously important to them and made it possible to do that work, otherwise it would not have been done.
Why is this important and why should the UK support it perhaps a little more energetically than it does at present? The promotion of human rights, democracy and the rule of law is in the interests of all of us, and the work of the intergovernmental organisations that support it has made a huge difference to the shaping of the post-Soviet world. The OSCE brings to that reshaping two important factors: first, it has a broader remit than the Council of Europe; and, secondly, it brings together security and human rights. That conjunction is vital if we really want a more secure world.
The OSCE calls its human rights work the human dimension, and the human dimension is indispensable for real security. Additionally, its work is very important in countries that are not in the Council of Europe: the countries of central Asia, for instance. For them, the OSCE provides a forum where they can interact with European colleagues on an equal footing through regional and international events, allowing them access to expertise and best practices that they would not otherwise encounter.
What is Government’s policy on seconding British expertise to the OSCE and in particular to ODIHR, where people from the United Kingdom made such a contribution in the past? Are we still enthusiastic about seconding people? Do we encourage groups to come here to see good practice: for example, in dealing with violence against women, where we have some of the best services and approaches in the world which those involved would be most willing to share, or in detention monitoring and security sector reform? Does the FCO offer UK expertise to ODIHR when it is looking for help with training, such as in human rights and the rule of law? How far do the Government see the OSCE’s work in human rights, democratisation, the protection of minorities and resolving conflict as a valuable part of the achievement of UK ambitions in these areas? If indeed the Government value that work, could they perhaps develop ways of showing that enthusiasm a little more than they do currently?
Lord Patten
My Lords, it is reasonable and fair from time to time to point a finger at any organisation. Rather like the small child who had the unfortunate experience of watching Lord Randolph Churchill canvassing and pointed his finger and said, “Mama, Mama, what is that man for?”, it is quite fair to point a finger at an organisation from time to time and say, “What is that organisation for?”. There will be more of that later on in my speech.
It is also very important to judge the OSCE against the things to come in 2012; 2012 may see more dangerous moments than have been seen at any time since the end of the Cold War, the events of 9/11 included. The litany is long and scary: Iran, North Korea, India-Pakistan and the side-winds of withdrawal from Afghanistan, Syria and the flashpoints around Mediterranean. Add to that not just that Russia at the end of December fired a salvo of two Bulava-30 intercontinental missiles from the White Sea to hit its targets on the Kamchatka peninsula, nearly 5,000 miles away, at exactly the same time as China formally confirmed for the first time in a statement from its Ministry of National Defence that it had also successfully fired from a submarine some Julong-2 ballistic missiles in the face of the imminent Taiwanese elections, and the atmosphere for 2012 can be seen to be pretty turbulent, to put it delicately, at a high level.
All these issues arise in the middle of severe economic difficulties in Europe and the US that affect our capabilities in everything from conflict prevention and resolution to hardcore defence. The West must not fail in economic regeneration, for the old USSR failed as its old economic system failed and lost as a result military and economic power, which are simply inseparable.
Yet the new economic reality demands difficult but necessary cuts in capabilities of all sorts. We see this with the United States. I do not know the current view of the United States Government on the OSCE, but President Obama issued new strategic guidance on 5 January this year, coincidentally just after those Russian and Chinese missiles started flying. His announcement demonstrated that, just as we in the UK once faced up to the need to withdraw from east of Suez, so the US is now pulling back a bit, for reasons that I fully understand, from west of Suez. It is quite clear and quite deliberate. This is not only in the face of the difficulties of funding the most capable armed forces that the world has ever seen—the Pentagon being much larger than that of the next 10 countries combined—but, I sense, because President Obama sees himself as a Pacific president and not as a European president. Unfortunately—and I think this applies right across the political spectrum in the United States—the US also sees most European countries as not even, when the going was good, fulfilling their defence responsibilities to the extent of, let us say, spending 2 per cent of GDP per annum, with the honourable exceptions of France and of the United Kingdom. Not only that but the forces that they do have left are not deployable. My right honourable friend Philip Hammond was right to say earlier this month in the US:
“Too many countries are failing to meet their financial responsibilities to NATO, and so failing to maintain appropriate and proportionate capabilities”.
Less diplomatically, I would say that most NATO countries are getting a free ride. It is because of that and because of American disillusion that we see, Dover beach-like, the slow, almost unnoticed, withdrawal of once very detailed and intense American involvement in Europe. Their attention is going elsewhere. I do not see this as declinist in any way; I simply see it as realistic and reasonable on the part of the United States. We must set the OSCE against this background. I do so declaring my interests as recorded, but also I have nothing in the way of foreign affairs expertise to declare—no membership of even the smallest think tank.
How should we see the OSCE? It is itself a creature of the Cold War, as my noble friend Lord Bowness said in his splendid introductory speech, but now boasts 56 members, ranging geographically in a pretty contorted way from the US all the way through to those “-stans” in central Asia. None of the countries at either end of this geographical arc is exactly European, although the core of the membership most certainly is. No longer is the OSCE a Cold War forum for better East/West understandings as it once was. It now has—and I have done my research—three self-styled dimensions: politico-military, economic and environmental, and human.
Conflict resolution, for example, is part of its remit, and I applaud that. It does excellent work. However, it is interesting watching the delightfully titled—and I do not make this up—“chairperson in office” at the head of the OSCE. That is what he is called. The rest of his title is Irish DPM, Eamon Gilmore. When presenting his 2012 priorities last week in Vienna on 12 January, he ranged over an extraordinarily lengthy and sprawling shopping list, from protecting freedoms of expression in the digital age to money-laundering and back again. It is very hard to get one’s hands and arms around these concepts as always necessarily being integrated. Discussion of money-laundering must be very interesting indeed, and I imagine sometimes quite amusing, when Governments of member countries like Belarus or Montenegro are brought to account.
The big question in asking what the OSCE is for is whether we would today invent such a geographically extraordinary, democratically diverse and sometimes very unfocused organisation that is largely unknown to most politicians and opinion-formers, let alone to the general public. We would almost certainly not invent it in its present form, despite the good work that has been done, which I do recognise; it has, for example, brought Russia to the bar of world opinion over the Georgian situation, tried to help resolve the Nagorno-Karabakh conflict, and all the rest.
Am I going to say that it should be abolished? Again, probably not, at least not at the moment, on the grounds that it is there; that it brings together all sorts of good countries, indifferent countries, bad countries, and some very bad countries indeed from Europe and central Asia, in the spirit of jaw-jaw being better than anything else; and that it tries to encourage the setting of better standards and freedoms, even if these are much more honoured in the breach in the case of Belarus and a number of the aforementioned “-stans”.
Does it need reform, and does it need more focus? Surely the answer is that someone has to get a grip on this organisation, reform it and give it some focus so that one can point one’s finger at it. I will then readily understand what this organisation is for. To get greater credibility, even though it is a consensus-driven organisation, it might have to face up to suspending some of its freedom-repressing members until they decide to reform themselves rather than benefit from the cloak of respectability that is thrown around their shoulders from simply having OSCE membership bestowed upon them. It is politically very poorly led. No one is getting a grip on it or giving it a political lead.
I end on this point. In March this year, NATO, which is in high-profile difficulty, as many of your Lordships will know, hopes to begin to try to resolve at the forthcoming Chicago summit of NATO countries some of the difficulties that are facing it. OSCE’s difficulties are of a much lower profile. As a number of other distinguished speakers have already said, it has such a low profile that most people do not know that it exists. However, it too needs the treatment of such a summit, or of some similar mechanism, urgently to resolve what it is really for. I do not know the answer to that at the beginning of 2012.
Lord Liddle
My Lords, once again the noble Lord, Lord Bowness, has done the House a service in raising this Question for Short Debate about the future of the OSCE. We would all like to thank him and my noble friend Lord Dubs for the work that they do on its parliamentary assembly.
As my noble friend Lord Dubs said, many people, including many parliamentarians, have probably never heard of the OSCE and there is always a temptation—I think that the noble Lord, Lord Patten, is going in that direction—to see the organisation as some kind of redundant hangover from the Cold War, an organisation that has outlived its time, a fossilized relic of the past. You can think of all the phrases. On this side of the House we would certainly agree with him that the Government should be asking the OSCE to justify itself. There should be more information in this House and in the other place about the activities of the OSCE and the value that it is creating. However, from listening to the noble Lord, Lord Bowness, my noble friend Lord Dubs and the noble Baroness, Lady Stern, it is clear to me at least that it would be wrong and misguided to rush to the judgment that the OSCE should go. We say that because it is a multilateral organisation—we are committed supporters of multilateralism—working in one of the most difficult and troubled areas of the world. The Deputy Prime Minister does not get many tributes these days, but he deserves a generous tribute for his decision to attend and speak at the OSCE’s summit in Kazakhstan just over a year ago.
We live in a dangerous world where, if anything, the trends are against multilateralism and commitment to multilateral organisations. Emerging powers such as China put much more emphasis on their own sovereignty, not on working together in multilateral organisations. The noble Lord, Lord Patten, referred to the trends in the United States to focus on the Pacific and, with the necessity for huge defence cuts, pull in its horns in Europe. It seems to us that that means that we should tread warily in dismissing the value of the OSCE, given the work that it does.
It feels like a long time since the collapse of the Soviet Union and since the OSCE’s members signed up to the Paris charter in which they declared their belief in a,
“new era of democracy, peace and unity”.
We know that that lofty ambition has not been fulfilled. Vladimir Putin has redefined democracy in Russia as something he calls “sovereign democracy” and we do not know quite what that means. There has been a war in Georgia between two OSCE members and there are many other troubles throughout the region.
I agree with the noble Baroness, Lady Stern, that we can be critical of the OSCE’s work and say that it is inadequate, but it is doing something to deal with human rights abuses, democratic flaws and the absence of the rule of law in some of the most difficult areas possible. Of course the responses are inadequate. If you have an organisation where 56 participating members have to agree and one of them is the mighty Russia, it is going to be difficult to get things done. However, the role that the OSCE plays in the areas of election monitoring, human rights and media freedom is a valuable one. It is a bit better than a case of “stick with nurse for fear of something worse”. There is a real role for this organisation.
From this side of the House, we would like to know what the Government think about the possibilities of making the OSCE more effective. My noble friend Lord Dubs asked some relevant questions about the relationship between the organisation and the assembly that is supposed to monitor it. He asked what steps have been taken to review its efficiency and effectiveness. The noble Lord, Lord Bowness, asked whether we support it, whether the Government are prepared to back it with resources—I am thinking of staff secondments in particular—and whether we are prepared to use our diplomatic efforts to build alliances within it. For instance, do we work in it within an EU framework as we now do in many international organisations?
The OSCE could be more effective in partnership with the European Union. My noble friend Lady Crawley gave me the latest edition of the magazine that we get from Azerbaijan, which referred to my noble friend Lady Ashton’s visit there quite recently when she talked about the EU working with the OSCE Minsk Group in trying to resolve the Nagorno-Karabakh conflict. We have leverage over the EU as well as being members of the OSCE. How are we working to try to make those interventions more effective? The EU has real leverage that it can bring to bear in terms of its budgets, its trade access and of course visas.
The work of the OSCE is more relevant in the Balkans where there is enlargement fatigue regarding the EU. If we think that we are not going to be able to get enlargement in the next decade or so, we need to continue to support the OSCE. More than that, we can see within the region that many troubles are likely to flare up in future. We have seen in the recent Duma elections in Russia the need for proper election monitoring. We saw the role that the OSCE played in monitoring the farcical elections in Belarus. If anything, these problems will mount in future; they will not go away. It will therefore be important, from the perspective of noble Lords on this side of the House, to feel that the Government are taking this seriously and have a strategy for making the OSCE as effective as possible.
Lord Wallace of Saltaire
My Lords, if the world were straightforward, and all states were democratic, I am sure that we could have a number of effective, well organised and well respected international organisations.
In thanking the noble Lord, Lord Bowness, for initiating this debate, I should say that I was reminded how far back we all go. Some of us will remember the Helsinki Declaration and the Final Act of 1975, and the extent to which that set of criteria—particularly the human rights dimension—was part of the way in which democratic states gained leverage over socialist states. Dissidents within those states felt empowered because they were able to quote at their rulers the standards which they had signed up to. I remember in particular some extremely brave former dissidents in Prague, whom I got to know in the early 1990s, who told me how they used to quote these things at length at the secret policemen who were inspecting and searching their apartments when they were holding meetings there. I also remember, as a former think-tanker and, at one point, the secretary of the British-Soviet Round Table, the extent to which the fact that the Soviet elite wanted to be thought of as civilised Europeans gave us some degree of leverage over their behaviour.
After that, when the CSCE became the OSCE in the early 1990s, there was a brief period of tremendous optimism that it would become a core organisation for a post-socialist Europe. Those hopes were disappointed, but nevertheless I would argue, and Her Majesty’s Government would argue, that it remains a useful organisation—even though it so often operates in the margins of international relations—with the constructive ambiguity of providing modest leverage to improve the behaviour of states which are perhaps less democratic and less concerned about the rule of law than many of us would like.
I should declare an interest. I spent some time working with my former employer, the London School of Economics, in a series of training courses for Kazakh officials before they took over the OSCE chairmanship. It was a useful exercise, partly because we saw a large number of Kazakh officials who were interested in the role of the OSCE and how it affected Kazakhstan’s role in the world. Therefore, this is all part of a process at the margins, in which we begin to inform each other about our different domestic standards.
However, the nature of the organisation, which, as noble Lords have remarked, is based on consensus, is that all progress is slow and major change is rare and hard earned. I would suggest to the noble Lord, Lord Patten, that, if there are good arguments for remaining an inclusive organisation, which I would suggest there are, then pulling states such as Russia along with us—let alone Ukraine, Belarus or Uzbekistan—takes a great deal of effort. One sometimes feels one is not achieving very much, but it is the nature of diplomacy that persistence is required to achieve slow progress on this range of issues. One often feels that very little progress is being made—as indeed it did feel in the mid-1980s—but eventually one makes real progress.
Noble Lords have mentioned that there are three dimensions. There is the security dimension, on which a Written Ministerial Statement was laid in both Houses on 25 November 2011, advising of the British decision to take legal and proportionate countermeasures against Russia in response to Russia’s suspension, in 2007, of participation in the Treaty on Conventional Armed Forces in Europe verification arrangements. On the second dimension, which is the economic and environmental dimension, most of the work is quiet and expert, and a matter of missions coming and going, but, as noble Lords have suggested, it is nevertheless useful work. Much of our debate so far has been about the third dimension, the human dimension in all its complexity, including in particular the work of ODIHR in inspecting elections.
I am informed that the OSCE is much better known among the public and Parliaments of those member states east of Vienna. It is not as well known in Britain, partly because we need the OSCE less. I inquired about this and am happy to remind noble Lords that there was indeed an OSCE mission to observe the British general election. That is quite right; there had to be. There was an OSCE mission to observe the previous US presidential election, which I understand did not manage to agree the quality of its report. The OSCE mission to oversee the Duma elections will be repeated to oversee the Russian presidential elections. I imagine that a number of us will look forward avidly to that report when it comes.
Some noble Lords asked for much greater efficiency and effectiveness in the organisation. Of course, we would all like that. However, when one is moving with a number of very reluctant member states—I have spent a lot of time since 1989, as well as before, arguing with senior Russian officials—one can only move slowly. One also needs to be careful to preserve the autonomy of the secretariat. The United Nations itself is not a perfect or efficient—or often effective—organisation. Nevertheless, it is a useful organisation. We all recognise the limits within which we have to operate.
The noble Lord, Lord Bowness, asked a range of questions, which I will try to follow. On his question about whether the OSCE has joint EU operations within it, I am informed that it was one of the first bodies to which the EU applied joint action post-Maastricht. The United Kingdom supports that. However, nearly half the membership is now drawn from the membership of the EU, and one has to say that on a number of sensitive issues there is not entire consensus within the EU. The relations that some EU members have with Russia, for example, are very different from those that the UK would wish to have. The amount of pressure that is put on Russia in view of its role in some of the frozen conflicts with which the OSCE is dealing varies from EU member state to member state, so what we are able to agree in the EU context about OSCE policy is not always as coherent as the United Kingdom would wish.
Therefore, we have a mixed record on frozen conflicts. The Minsk Group, the group that deals with Georgia and the various consultations that deal with the Moldova-Transnistria conflicts have not made as much progress as we would have wished. Progress in the Balkans has been rather better. I remind noble Lords that the largest of all the OSCE field missions is the mission in Kosovo, which continues to work. Progress in the Balkans has been a great deal more encouraging.
The noble Lord, Lord Bowness, asked how far we are prepared to go in funding secondees. We currently fund three civilians in OSCE field presences but have no further plans at the moment to finance additional secondees. The 2010 report suggested that we were funding some 48 national secondees. I can confirm that, as of the beginning of last year, we were indeed funding 48 UK national secondees and contracted staff, of whom three are funded by the UK Government through the FCO budget and the others through the common budget.
The question of how much the Government should report to the two Houses on the OSCE is one that we take on board. Perhaps there should be more Statements to Parliament. That is something that we will take back and consider. With hindsight, we recognise that noble Lords might have welcomed a Written Ministerial Statement about the Astana summit in December 2010, where the British delegation was led by the Deputy Prime Minister, and the Vilnius Ministerial Council in December 2011.
Perhaps there is an argument for greater visibility but much of the useful work of the OSCE is done partly because an enormous amount of political capital is not made out of it. We regret that there is on occasion a degree of rivalry between the Parliamentary Assembly and the OSCE’s secretariat as such and we would very much like to see the Parliamentary Assembly and the OSCE secretariat working more closely together. We encourage members of the OSCE Parliamentary Assembly to bring what they have learnt back into the British debate. I recall that on one occasion the noble Lord, Lord Judd, did his work on Chechnya through the Council of Europe Assembly and brought that back very actively into the British Parliament.
I think that the OSCE operates from four centres, not only from three. I think that there is also an office in The Hague. I will check that and will write to the noble Lord, but that is one of the necessary ways in which international organisations have to operate. The EU, after all, has offices scattered through the majority of member countries. However, I agree strongly with the noble Baroness, Lady Stern, that only the OSCE could have provided the quality of report that it did on the Duma elections. This is not in any sense a perfect organisation but it provides useful work. It works by consensus, which is both its strength but also its weakness as it means that decision-making is ponderous when each participating state has an effective veto on most substantive action.
This Government believe that if the organisation did not exist there would be a significant gap in the family of international organisations, particularly in respect of wider European security issues. We will therefore support fully our Irish colleagues throughout this year in their chairmanship in office in our own right and, as appropriate, in concert with a large number of like-minded partners which we have within the organisation. The nature of the OSCE all but excludes earth-shattering new developments and agreements. Nevertheless, it plays a valuable role in European security in promoting the values which we and many of our partners share.
Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness O'Loan
“Children affected by civil and family law proceedingsCivil legal services provided to a person having dependent children related to—
(a) private family law;(b) any benefit, allowance, payment, credit or pension under—(i) the Social Security Contributions and Benefits Act 1992,(ii) the Jobseekers Act 1995,(iii) the State Pension Credit Act 2002,(iv) the Tax Credits Act 2002,(v) the Welfare Reform Act 2007,(vi) the Welfare Reform Act 2011, or(vii) any other enactment relating to social security;(c) all areas of employment law not otherwise covered in this Schedule;(d) all areas of housing law not otherwise covered in this Schedule;(e) all areas of debt-related disputes not otherwise covered in this Schedule;(f) all areas of immigration and asylum law not otherwise covered in this Schedule;(g) all areas of clinical negligence law not otherwise covered in this Schedule;(h) consumer law;(i) all areas of consumer law not otherwise covered in this Schedule;(j) appeals to the Criminal Injuries Compensation Authority;(k) reviews or appeals under sections 11 or 13 of the Tribunals, Courts and Enforcement Act 2007; or(l) appeals to the Supreme Court.”
Baroness O'Loan
My Lords, I have put my name to the amendment, which seeks to restore families with dependent children to the list of those eligible for legal aid and advice in respect of a range of legal issues that can be fundamental to the ability of a family to function. The proposed changes in the Bill, and in other Bills before your Lordships’ House such as the Welfare Reform Bill, which was referred to before the break, will have a disproportionate effect on those families in our society who are the least advantaged, most marginalised and most deprived. The number of those who would benefit from the amendment is necessarily limited by the terms and conditions under which legal aid and advice is available, but they may well be the people who are least able to contemplate the complexities and mysteries of conditional fee agreements, of lawyers, and of the costs of the ATE insurance premium in cases that they may have to fight.
We in this country have to make many decisions about how we spend our money. In November last year, the Government affirmed their commitment to spend £200 million on an airstrip in the south Atlantic, for St Helena island, which has 4,000 inhabitants. As we contemplate our reasons for doing that and observe similar expenditure, we should ask ourselves: what would be the consequences of removing access to legal aid from the poorest and most marginalised families in our country? The Minister spoke earlier today of the hard choices faced by government. They are infinitely harder for those upon whom these choices and legislative changes will fall.
Some 650,000 of the poorest people will be deprived of the access that they currently have through solicitors, CAB law centres and other advice centres that are estimated to provide services at a cost of between £150 and £200 per case. Justice for All, a coalition of some 4,000 organisations, has estimated that approximately 140,000 children will be affected by the proposed measures as legal aid is withdrawn from the adults who care for them, and that at least 6,000 children will be deprived of legal aid altogether. It is also estimated that 57 per cent of those who will no longer be able to access specialist advice on welfare benefits are disabled—about 78,000 people. Where those disabled people are part of families with dependent children, or where dependent children are living in a family, they will encounter even more marginalisation as a result of the consequential difficulties of access to specialist advice.
The Coalition: our Programme for Government stated:
“The Government believes that strong and stable families of all kinds are the bedrock of a strong and stable society”.
We know from the recent Save the Children report that 45 per cent of parents living in severe poverty are considering cutting back on food to pay energy bills. Many families with very low incomes, lacking job stability because of the area in which they live, facing deprivation on a scale of which most of us have little experience and living in overcrowded accommodation, nevertheless provide a stable and strong base from which to launch their children into the world as active, contributing members of society. When they face legal challenges, they should be supported, because it is the right thing to do and also because if we do not, they may find themselves unable to maintain their family lives and will inevitably become a cost to the state.
I want to say a word about private family law. Great concern has been expressed about the fact that private family law cases have been excluded from legal aid provision. Not all cases of family breakdown are susceptible to mediation or even to the type of collaborative law project discussed earlier. There will inevitably be cases where legal aid and advice is required by families. Concerns have been raised about cases in which a child is unlawfully removed from one part of the United Kingdom to another, and about cases in which a spouse has suffered prolonged violence during a relationship or has other problems, such as extreme poverty, illiteracy or even as simple a thing as no one to mind the children. That person may not have the capacity personally to challenge the other in the courts to try to recover the child. If it has to be done before the courts, under the proposed arrangements, it could result in two spouses both personally conducting their cases in court—surely a recipe for all sorts of failure in the delivery of access to justice.
Legal aid is not being withdrawn for international child abduction cases. The effect of moving a child from Barnstaple to Belfast may be as difficult as moving a child from Barnstaple to Brittany. In such cases, the safety of the child may be at risk. There is the risk of psychological and emotional damage because of their inability to contact the second parent, or the risk that the parent who looks after the child ensures that the child has a distorted and damaged view of the action of the other parent.
To make a blanket provision excluding all private family law cases is neither proportionate nor necessary. The ultimate result will inevitably be a significantly enhanced burden on the individuals concerned and further involvement of the various statutory agencies, which carries its own cost.
We discussed benefits just before the dinner break. I therefore do not intend to say any more, other than that benefits are not something extra to a family's income, they are the family's income. They are that which enables the family to function, and there are good financial reasons to continue to provide the current low-cost legal assistance which has been available to date.
In cases of employment, as with civil litigation, access to legal aid permits a screening of cases, which facilitates the handling of such cases in a reasonably effective manner. The removal of access to pre-tribunal advice will have consequences similar to those which are being predicted consequential to the removal of legal aid for civil litigation. People will bring actions before tribunals without advice and, because of their lack of knowledge of tribunal procedures and employment law, there will undoubtedly be delays, additional adjournments and a necessity for the tribunal chair to ensure that litigants have equality of access in the absence of appropriate representation, particularly where the respondent is legally represented, as is the case in most employment tribunal applications. The cost of providing this service will inevitably rise.
There is a significant risk that the removal of legal advice in such cases could result in an awareness that employees have much reduced opportunities to assert their legal rights, with a consequent lowering of general standards of protection in employment. Those who face serious exploitation or discrimination at work may ultimately end up unemployed and on benefits. That could be the beginning of a downward spiral for many families—a situation in which today they could be successfully protected through the tribunal process.
Although housing advice is being retained for those at imminent risk of homelessness, there will nevertheless be situations in which people have serious housing benefit problems or other housing-related issues. One example given by Justice for All involves a woman who had previously attempted suicide and her 11 year-old daughter. They were living together and both were receiving psychiatric help following the suicide attempt. They were subjected to a campaign of harassment by newly arrived neighbours. There was verbal abuse, poison-pen letters, and endless complaints about the puppy which they had happily owned but which had to go because of complaints about noise. Shelter, using legal aid, was able to get them rehoused. People in this situation have been known to feel, as this lady did previously, that their only escape lies in suicide. What would this woman have done had she not been able to go to Shelter for help?
Many people in this country are living on the minimum wage, which amounts to less than £200 a week, or on benefits such as jobseeker’s allowance, where the weekly benefit is £53.50 for a person under 25 or £67.50 for a person over 25. I ask noble Lords whether they could live on even £67.50 a week, after housing benefit of course. People in this situation live from day to day and from week to week. Planning ahead is not really possible. Meeting the costs of sudden illness or a reduction in working hours, which is happening to many people across the country, is a burden too far. Pay-day loans and other debt solutions are an unwarranted and disliked solution in such circumstances. They simply tie the borrower into the debt spiral, often with massive rates of interest, and the borrowers know this but they have nowhere else to go.
Debt causes stress and illness, and it leads to conflict and tension in families. People who find themselves in intractable difficulties despite their wish to work need help, such as that offered by money advice agencies, to access benefits to which they are entitled, to make a manageable agreement to repay their debts and ultimately to avoid losing their homes. If such advice and help is not available in the early stages, the consequences are almost inevitable. The cost to the public purse of the splitting up of the family is equally predictable in terms of sickness, housing costs, welfare benefits and access to medical services.
I want to say a brief word about immigration, which I have also included in the amendment. Trafficked persons and children would have no access to legal aid under the Government’s proposals. Refugees would not have access to advice about cases involving bringing members of their family to safety, and there would be no legal aid for many immigration judicial review cases, thereby reducing the accountability of the UK Border Agency.
Clinical negligence we have discussed at length, and I shall say no more other than that the King’s College, London, report is fairly persuasive that the ultimate cost could be £18 million, consequential upon the increased costs of ATE insurance.
There are compelling reasons to provide legal aid and advice for those families who would qualify in these circumstances. Acknowledging these issues, the Government have announced £20 million of funding to support people affected by the cuts. However, this is limited to the current financial year. There will be no capacity for sustainability in this measure. CAB research, which has not been challenged, has shown that for every £1 of legal aid advice and expenditure, the state potentially saves £8.80.
It is very clear that the attempts to remove access to justice from the most marginalised and deprived of our families will cause immense damage. Families with dependent children face not only the challenge of trying to make money stretch and to remain healthy, but also the challenge of producing the citizens of the future. If those children grow up knowing that their parents have no access to justice, how can they believe that this society cares for its weak and its vulnerable? How many families will splinter under the combined weight of lost jobs, lost expectations, reduced benefits, rising interest rates, and our failure to provide them the access to justice which will enable them to be, in the Government’s words,
“strong and stable families … the bedrock of a strong and stable society”?
I beg to move.
Baroness Benjamin
My Lords, I have put my name to Amendment 33, which seeks to retain legal aid in cases where a child will be affected by the outcome of a case brought by a parent or guardian. Many children are affected by civil law problems and family cases involving their parents or guardians, even though they themselves are not the applicant or claimant. The Government have said that,
“where children are involved, legal aid will still be provided”.—[Official Report, 7/7/11; col. 343.]
However, this is not in fact the case under the proposals in the Bill. I know that the Government recognise the importance of legal aid funding in a range of cases where children’s interests are paramount, which is good news. There are, however, still areas that cause grave concerns to many charities and organisations across all parts of society, and which unfairly affect children. They are: housing; welfare; immigration; domestic violence; clinical negligence; criminal injury compensation; and education. This will probably be due to their parents’ lack of financial resources and ability to navigate the legal system. Their parents may also be hindered by disability, language barriers, poverty, and mental health issues. These are no good reasons for children to be penalised.
Almost 150,000 children under 18 will lose the civil law and family law protection provided by legal aid. They are currently helped by legal advice or representation in court to deal with problems that are no fault of their own. Children are the named party in 6,000 cases per year that will no longer qualify for legal aid, and are financially affected by more than 140,000 cases per year involving their parents. The amendment would ensure that where dependent children will be affected by a case their parents are being represented in, legal aid will continue to be available subject to existing rules on financial suitability and the viability of the case.
For welfare benefit advice, currently 135,000 advice sessions per year are funded by legal aid. Under the Bill’s proposal, however, legal aid’s support for benefit advice is being abolished. In tribunal appeals where the applicant has legal advice, 55 per cent of all Department for Work and Pensions decisions to cut benefit are found to be wrong and are overturned. About 36,000 children are affected each year who come from the lowest income families, for whom losing the benefits they are entitled to will make a significant difference to their lives. As I have often said, childhood lasts a lifetime and the adversities children go through when they are young will in most cases stay with them for ever and affect their adult lives.
Lord Howarth of Newport
I have a number of anxieties about the impact of the Government’s proposals on children in painful and difficult situations. If the Minister can reassure me that my anxieties are misplaced I shall be more than pleased. However, I suspect that they are valid and that a number of amendments in this large group would be helpful.
First, I am concerned about inequality of arms. Wealthy people will be able to go to court armed with their lawyers while people on modest incomes will not. They will therefore appear either as litigants in person or cave in and be defeated because they lack the legal advice and support that would allow their case to be heard on a fair basis. Secondly, legal aid is to be confined to cases of physical or sexual assault. Surely that is too narrow. It will leave unhappy children in inappropriate residential and contact arrangements, split off perhaps from siblings and grandparents. We should surely widen the range of circumstances in which legal aid is available in support of children in those situations.
Thirdly, I think that there will be a perverse incentive. If an allegation of abuse would be a gateway to legal aid, some parents may be tempted to up the ante. In particular, we should be concerned that there may be cases where there has been some violence during the breakdown of the marriage or relationship but there is not a longstanding history of violence and there is no persuasive reason to suppose that there would be patterns of violence in the future; the violence has been generated by the crisis in the failure of the relationship. I do not think that it is in children’s interests that contact arrangements should be determined by such a factor. Of course, it will increase the private law workload of CAFCASS.
Fourthly, there is possibly another perverse incentive if a trigger for legal aid is to be the existence of a formal child protection plan. Some parents may be tempted to allege child maltreatment when other forms of help would be more appropriate and better for the children. Clogging up the child protection system could be disastrous. Again, more private law cases could spin over to the children’s social care workload which is already staggering following the Baby P case and will be under immense pressure with the cuts to come. There will be more formal child protection investigations and more case conferences, often when a more consensual approach would be more in the interests of the child. I fear that there will be increased and prolonged bitterness between parents.
Finally, while the Bill does not propose changes to legal aid for children and parents involved in public law care, clogging up the system with private law cases and litigants in person will have an adverse effect on the speedy resolution of such cases in the courts. That will be harmful, particularly to young children for whom it is very important to have a speedy return to permanent family arrangements, whether with parents, relatives or adopters.
Baroness Eaton
My Lords, I rise to speak to Amendment 34 standing in my name and the names of my noble friends Lord Newton of Braintree and Lord Cormack and the noble and learned Baroness, Lady Butler-Sloss.
The reductions to the provision of legal aid as proposed in the Bill will leave 40,000 children and 69,000 18 to 24 year-olds struggling with serious legal problems relating to employment, education, welfare benefits, homelessness and debt. Children and young people affected by these changes are among the most vulnerable in our society, with 80 per cent, as we have already heard from the noble Baroness, Lady Benjamin, of young people reporting civil legal problems also facing challenges and great disadvantages.
The cost of legal aid for children is small compared with the total amount spent on legal aid. The cost of fully protecting all children up to the age of 18 from the cuts to legal aid would be £10 million, which is the equivalent to the cost of imprisoning just 71 young offenders. For young people aged 18 to 24, the cost is £40 million, less than half the weekly cost of youth unemployment. The cost of not providing appropriate legal advice is far greater. We know that when young people do not get advice their problems increase. There are well researched links between civil legal problems and crime. Many young people who have been arrested have higher levels of housing problems, debt and benefit problems, all of which are key factors influencing reoffending. Fifty-five per cent of 16 to 24 year-olds arrested were experiencing at least one difficult to solve civil justice problem.
There is substantial evidence of an adverse impact of legal problems on young people’s mental and emotional health, with 34 per cent of 18 to 24 year-olds not in employment, education or training reporting stress-related illness as a result, and more than one-third going on to use National Health Service services. Citizens Advice estimates, as we have heard before, that for every £1 saved by the removal of legal aid, the Government will spend £8 dealing with the social, judicial and health issues that will result.
Recent figures from the Ministry of Justice give a breakdown of the types of cases for which children and young people use legal aid to help deal with their problems. The top four legal issues for children and young people are debt, housing and welfare benefits, asylum and immigration. Help with legal representation is most often given for housing, immigration and clinical negligence. Eighty per cent of young people reporting legal problems also face other disadvantages, including sole parenthood, having a mental health issue, being a victim of crime, or exclusion from education, employment and training.
It is disturbing to note that many children and young people in the United Kingdom meet the criteria for vulnerability. Thirty per cent of households headed by a 16 to 24 year-old live in poverty and 36 per cent of people presenting as homeless in the three months January to March 2011 were aged 16 to 24. The latest unemployment figures show that 20.2 per cent of 16 to 24 year-olds are unemployed. In 2010 approximately 225,000 young people aged 16 to 24 lived alone.
These are very serious issues for society. We have to ask why so many young people are in such a vulnerable position. However, for us today the issue is to recognise the needs that these children have and the help that legal aid can give in enabling them to turn their lives around. The Government’s proposals will remove from the scope of legal aid most cases concerning education, including disputes about exclusion, school closure issues, bullying cases, disputes about poor educational standards, disputes about grants and loans, and cases about choice of school. Only education cases involving discrimination and special educational needs will qualify for legal aid support but then only for telephone advice.
These plans will leave 29 per cent of children who are currently represented in their educational needs cases without legal representation in court. Pupils with special educational needs are eight times more likely to be excluded permanently or for a fixed period than other children. There is a strong correlation between exclusion from schooling and falling foul of the criminal justice system. Removing legal aid support that enables children to challenge exclusion may have more children turning to crime, which would lead to future youth justice costs for the Government.
I fully appreciate the Government’s desire to reduce the UK deficit, but in order for any savings to contribute to this reduction, the reforms must not generate consequential costs or the shunting of costs to other government departments. The Justice Select Committee in another place reported that the magnitude of these knock-on costs had not been estimated. I sincerely hope that, on the basis that these proposed savings of £270 million from the legal aid budget will not achieve the aim of reducing costs, the Minister will consider seriously the effect of proposed savings on the vulnerable children involved and the additional cost to the public purse of implementing the changes unamended.
Baroness Butler-Sloss
My Lords, I support Amendments 33 and 34. I have been asked by the noble Lord, Lord Low of Dalston, to present his apologies as he is unable to be here to take part in this debate. I will also speak to other specific amendments that are in my name.
Of course I recognise the need to save money, but equally we must remember the importance of the paramountcy of the welfare of the child in family cases, as set out in Section 1(1) of the Children Act 1989, which is still good law. My amendments are all practical and based on practical and personal experience of how family cases work. In this part of the Bill there is a real danger that the welfare of the child may be downgraded and even overlooked if these amendments and subsequent amendments that affect children are ignored by the Government.
Amendments 33 and 34 show how children are affected by civil and family law proceedings, either indirectly or directly, and recognise that children have separate interests to their parents—it hardly needs to be said that they are obviously far less well equipped to represent themselves and their interests. There is a serious gap that will, from time to time, need to be plugged.
Amendments 33 and 34 refer to one group in particular: children who are involved in immigration proceedings. There are five possible situations that may affect children on immigration issues: they may be facing separation from their parents because of a decision to remove a parent where the child has British citizenship; they may be facing separation because of a decision to remove the child from the United Kingdom although the parents may be here; children who are refugees or whose parents are refugees may be unable to join or be joined by their parents; or they may be unaccompanied asylum seeker children applying for an extension of discretionary leave to remain. I shall deal with victims of trafficking who are also covered by immigration issues under Amendment 61A.
I will move on to Amendments 39, 40 and 41, to speak about child abduction both internationally and in England—or in the United Kingdom. I am sure that the Minister will know that children who are abducted from one part of the United Kingdom to another country outside the United Kingdom will almost always come under the international Hague convention, because some 90 countries support it. However, internal child abduction also arises on a regular basis and is an equally important risk in parental disputes. To my dismay, there appears to be no provision to support the children and the parent who has lost the child through child abduction. Ninety-one per cent of the members of Resolution, the family law solicitors, say that abduction is a real risk in the cases which they and their clients are dealing with.
I shall cite a case which was referred to earlier this evening by the noble Baroness, Lady O’Loan—she dealt with Belfast and Barnstaple, while I have Cornwall and Cumbria, but it is all exactly the same story. If a child is taken from Basildon to Belfast—which is in fact under a different legal system, but within the United Kingdom—or indeed from Cornwall to Cumbria, where it is the same legal system, there is a very real danger that that child may never see the left-behind parent again, and the left-behind parent will not have the chance to look after and take an interest in that child.
It is absolutely crucial that the left-behind parent gets to the court quickly, to get the relevant orders to know where the child and the parent—usually the mother—are living, and to get orders for the child to be returned to its home. It is necessary to make immediate and urgent applications to a judge. However, there is no provision for this, although there is provision, as there has to be, under the Hague convention. Amendment 41 deals with the various orders that are required to be made for the left-behind parent to get to the court. I hope that this is inadvertent on the part of the Government. I hope that they have simply overlooked this particular specialist form of family law, where the child is seriously at risk in most cases if she or he does not have a chance to retain a relationship with the father.
Amendment 42 is rather specialised; it refers to cases where a vulnerable adult—often a woman who has been badly treated by her partner—goes to court for a protection order, and has to face the man who she says has been abusing her, and who will be cross-examining her. It is an extremely unsatisfactory situation, and for the woman—or occasionally the man—who is the victim to have to be cross-examined by the alleged perpetrator, is a form of extra abuse.
I move to Amendment 51, which is, if I may respectfully say to the Minister, particularly important. It deals with the issue of mediation. I am totally in support of mediation. It is the most sensible arrangement you can possibly have as far as it goes. However, the Master of the Rolls, the noble and learned Lord, Lord Neuberger, gave an interesting lecture some time ago in which he criticised the Government for treating mediation as the panacea for all ills, pointing out that it only went so far. Indeed, it does only go so far. I am totally supportive of the good intentions of the Government on mediation. However, Resolution—I come to it again—assess that 41 per cent of its cases are incapable of mediation. There are occasions when the mediator throws up his or hands in horror and says, “I cannot possibly mediate in this case”. It is perfectly obvious that forced mediation is no mediation at all.
Perhaps I may respectfully say that the Government have failed to take on board that there is a group of parents who for a variety of reasons—including drink, drugs, mental health issues or, if I can use the phrase, sheer bloody-mindedness—will not agree to anything. Over the years I tried those cases again and again. The only way that we ever got the chance of a settlement or a proper, sensible outcome, as the noble and learned Baroness, Lady Scotland, will also say, was by two lawyers banging the heads of the parents together. For some of those intractable cases, they got a result. Collaborative law is another way of getting such a result.
I will not go through Amendment 51 at this hour, but I would ask the Minister to look at each paragraph of the amendment for the circumstances in which it would be the mediator and not the parties who would say, “This case is not fit for mediation. It needs to go to court and it needs lawyers”. I make no apology for reminding the Minister that the welfare of the child is paramount. In these cases, it is the child who suffers.
I am sure that the Minister is aware of the Norgrove report on family law. In that report emphasis was placed on that very narrow line between public and private law where risk to the child overlapped the two. How on earth will the judge deal with the really serious risk factors where two parents are unfit to make sensible decisions about what should happen to their child; where social workers cannot be brought into the case if they do not agree and judges do not have the power to make social workers start care proceedings; and where guardians are not all that easy to find? CAFCASS is doing an excellent job these days but it is at the limit of its ability to cope. If judges feel that the lawyers are not there to try to settle the case and deal with the worries and needs of the children, he will have to bring in a guardian, which will cause an enormous delay and the child will suffer.
I should like the Minister to take on board the fact that parents are creating the problems. They are not solving the problems, and they are not able to solve them without a combination of the judge, the lawyers and, often, the guardian. In the absence of lawyers, I do not know how this group of private law cases will manage.
As to Amendment 51, there are also situations where one parent—very often the mother, often for no good reason—refuses to have contact with the other parent and absolutely refuses to turn up to mediation. The mediation would not get off the ground and the case would have to go to court. The child is being deprived of a parent and, without lawyers, the judge would have great difficulties. That is quite apart from the point made by the noble Lord, Lord Howarth, on the clogging-up of the courts. I know from my experience that a case involving two litigants absolutely intending to fight would not take less than a week. Absolutely rightly, the Government are keen to speed up public law cases. They are very keen to get adoptions dealt with quickly. Private law cases will clog the courts to the exclusion of public law and adoption cases.
Finally, Amendment 52 deals with the potential cross-examination of the child by a parent. Where the child is making allegations about the way in which the parent has behaved and there is no legal aid, the parent against whom the allegations are made may find himself cross-examining his own child, which is another form of abuse of the child. It would be extremely serious if that took place. I ask the Minister to reflect on these situations—which are not intended to open the floodgates, but intended to deal with specific problems that are very real and cannot just be ridden over as if they do not matter.
Baroness Howe of Idlicote
My Lords, this group of amendments contains tremendous overlap. It is for that reason, among others, that your Lordships will see a number of our names on one another’s amendments. I am very happy to follow my noble and learned friend Lady Butler-Sloss, because we could not have a greater expert in what happens in courts. I am sure that we have all taken in everything that she was discussing just now.
I shall concentrate on the amendment that I have tabled, which is to do with young people with disability. As it stands, the Legal Aid, Sentencing and Punishment of Offenders Bill will lead to some 75,000 young people under 25 losing legal aid each year. This amendment would provide particular protection for young disabled people.
Young people with a disability have usually received special protection and additional access to services in recognition of the fact that they may, and probably will, need additional support. The amendment would ensure that they continued to be able to access legal aid up to the age of 24. The definition of disability is that used in the Equality Act 2010, which identifies a person as having a disability if they have a physical or mental impairment and if this impairment is expected to have a substantial and long- term adverse effect on their ability to perform normal day-to-day activities.
Other amendments to the Bill seek to protect access to legal aid for all children aged up to 18, but there is a significant precedent for extending additional protection to young people up to the age of 24 and particularly to young people with disabilities. The Connexions service, which was set up to provide help and advice to young people aged 13 to 19, extended this help to young people up to the age of 24 who had a disability or learning difficulty, encompassing those with a statement of special educational needs, mental health difficulties, autistic spectrum disorders, dyslexia, ADHD and physical, sensory and cognitive impairments.
We also know that disabled young people are more likely to experience legal problems than other young people or older people with disabilities. Data from the Civil and Social Justice Survey showed that 56 per cent of under-25 year-olds with long-term disabilities had experienced problems compared to 35 per cent of all young people. It also found that young disabled people were more likely to experience legal problems than older people with a disability—51 per cent compared with 37 per cent. Disabled young people in general were more likely to experience multiple legal problems, in particular problems relating to housing, debt and welfare benefits.
JustRights, a coalition of more than 30 organisations in the children’s, youth and legal advice sector co-ordinated by the Law Centres Federation and Youth Access, has provided me with a case study which shows how legal advice can be vital in helping young disabled people to access their rights.
Chantelle was 18 when she came to the law centre for help. She had been born with cerebral palsy and had great difficulty walking. Her parents had to drive her to college and were worried that they could not afford to buy her a car and that she would be unable to attend university. They had applied for disability living allowance for Chantelle, but had been refused. The law centre helped Chantelle appeal against the refusal, gathering evidence from her school and her hospital specialist and representing her at the benefit tribunal hearing. Chantelle was successful in her appeal and was awarded the low rate of the care component of DLA and the higher rate of the mobility component. She swapped her mobility payment for a Motability car and passed her driving test. Chantelle now has a place at university and will be able to drive herself there each day, making a huge difference to her independence and quality of life, and probably her ability not to be dependant on other forms of public support. We know that advice provided early in cases such as Chantelle’s is cost-effective, and saves money in the long run through preventing the costs of problems spiralling.
I support all the amendments in this group. I hope that this particular modest amendment will receive a sympathetic hearing and acceptance by the noble Lord, the Minister, and I hope that he will give equal consideration to the equally important amendments that others are proposing.
Baroness Massey of Darwen
I speak to Amendments 80A, 82A, 82B and 82C. Perhaps I may first say how delighted I am to be speaking after so many passionate speeches about children, children’s welfare, and children’s rights by so many noble Lords, because children are a touchstone as to how we treat those who need help. My Amendment 82A simply adds to the amendment tabled by the noble Baroness, Lady Howe, and she has spoken to that so I will not deal with it.
Before I speak to this group of amendments in my name I would like to add briefly to the concerns expressed so eloquently by the noble Baroness, Lady O’Loan, and the noble and learned Baroness, Lady Butler-Sloss. Before the dinner break, the noble Lord, Lord Newton, talked about the costs of taking children into care. He implied that there are—and I know that there are—huge costs in terms of finance and of social adjustment and academic achievement.
There is also a group of people whom we have not talked about this evening but whom I want to talk about: family-and-friends carers who can prevent children going into care and make sure they are well looked after. I want to make a plea for those people. The noble Lord, Lord McNally, was good enough to meet me and the Family Rights Alliance and a young family carer to discuss this. I hope he will be sympathetic. In a Green Paper on legal aid reform, the Government announced that they propose to withdraw legal aid from private law children applications. This will include applications by family-and-friends carers. A number of organisations concerned with the interests of children living with family-and-friends carers have raised anxieties about the impact of these proposals because such carers might in future be prevented, through lack of legal aid, from applying for the relevant order to provide permanence for a child, particularly when the other party in the proceedings, who is alleged to have failed in their parenting task, may be their son or daughter.
Following consultation on the Green Paper, the Government announced that a private law application would be retained within the scope of public funding, where the application was with a view to protecting the child who is at risk of abuse. This is not really the point. Clause 11 of the current Bill deals with the availability of public funding where the child is at risk of abuse. However the Government have made it clear that they will by regulation require that evidence of abuse is provided by the applicant in order for the application for public funding to be successful. This has its own limitations. The effect will be to prevent family members taking action to protect children when they are first at risk of harm—for example, when they are first subject to child protection enquiries. The 12-month time limit referred to in the Government’s response to consultation could also prevent a family-and-friends carer applying to court to take on the care of a child who is within the care system for more than 12 months. These potential carers will therefore not qualify for public funding to apply for residence or special guardianship orders because they fall outside the 12-month time limit. It is essential that family-and-friends carers with such an order have access to public funding to be legally represented at such applications. It is vital that the Government do not introduce such restrictions to legal aid, and I hope that the Minister will be able to comment on this, if not now then later.
I turn to my Amendments 80A, 80B and 82C. These seek to retain access to legal aid for young people aged up to 24 in social welfare cases. As it stand, the Bill will lead to nearly 26,000 people aged under 25 losing legal aid for social welfare cases each year—for example, over 9,000 for debt and 9,000 welfare benefit cases. The figure for employment cases is almost 2,000, while the 500,000 housing cases cost about £1.5 million.
The coalition has made commitments to support children and young people. For example, the recent Positive for Youth paper states that:
“This Government is passionate about creating a society that is positive for youth. Young people matter. They are important to us now, and to our future, and we need them to flourish”.
The MP Dr Julian Huppert supported this by saying that the Liberal Democrat youth policy included a commitment to providing young people with access to specialist support and advice on legal aid and responsibilities.
Young people’s alienation from the legal system and, in turn, from mainstream society needs to be addressed. Research, which has been quoted before, has shown that many young people view the legal system as there for their punishment rather than for their protection. Reform of legal aid provides a golden opportunity to create a more modern, client-centred system that does not serve to exclude this important section of society.
Protecting access to social welfare legal aid for all children and young people under the age of 25 would cost just £5.8 million a year. In comparison, the Prince’s Trust estimates the weekly cost of youth unemployment at £20 million. Protecting legal aid for young people with disabilities and for care leavers is likely to cost a very modest amount. I wonder if the numbers for these groups have been costed along with the other costs associated with them.
We know that many of the children and young people who seek help with social welfare problems are highly vulnerable and are unlikely to be able to navigate the legal system without help. Recent research shows that 80 per cent of 16 to 24 year-olds with civil justice problems fall into at least one vulnerable group—for example, they may have a disability or mental health problems, or they may have been a victim of crime. Half of the young people seeking advice are not in education, employment or training.
The Government’s recently published youth policy, which I quoted earlier, says that disadvantaged and vulnerable young people can be at risk of poor outcomes and need additional and early help to overcome the challenges that they face. Changing the Welfare Reform Bill may mean that more young people with disabilities face social welfare problems. The Bill removes the youth condition for qualification for employment and support allowance, which allowed disabled young people to qualify automatically for the contributory form of benefit. That means that many more disabled young people could potentially face means testing, although of course the House discussed this last week. The Bill also seeks to replace the disability living allowance with the personal independence payment, which will require a face-to-face assessment to qualify. This may lead to young people needing help to understand the new benefit regime.
With youth unemployment now over 1 million, this group of young people will be in particular need of support over the next few years and we cannot afford to abandon them. However, advice services for young people are already being cut. Local authorities are trying to spend 38 per cent less this year than last year on Connexions, the national information, advice and guidance service for 13 to 19 year-olds. Research by Youth Access, the national membership organisation for young people’s information, advice and counselling, found that 42 per cent of their members faced the risk of closure this year. Advice for children and young people can help stop problems escalating, generating considerable long-term cost savings. A new report by Youth Access on the impact of advice shows that removing legal advice from vulnerable children and young people may save money in the short term but actually cost more in the long term.
Lord Ramsbotham
My Lords, I shall speak to my Amendment 79B, and also speak in support of the amendments tabled by the noble Baroness, Lady Massey, who has just spoken very fully about them.
I do not want to detain the House any longer than necessary. My Amendment 79B is merely designed to ensure that the needs of children, and the cases where they need access to legal aid, are included in the section of the schedule about inequality, which without the amendment excludes mention of children. I am sure that the August riots last year alerted us all to the unemployment situation of youngsters, which has been referred to by many noble Lords, and also the alarming alienation from society of too many of our young people.
Many times, in this House, in connection with other Bills, I have quoted the fact that the only raw material that every nation has in common is its people, and woe betide it if it does not do everything it can to identify, nurture and develop the talents of all its people. If it does not, it only has itself to blame if it fails. That means particularly that, in the interests of tomorrow, we must identify, nurture and develop the talents of our young people, because they are our tomorrow.
This weekend I shared the joy that I am sure many other Members of this House share, as I was with an 11 year-old grandson. During the weekend, I reflected that it simply is not reasonable to expect children and young people to negotiate an adult legal system without legal advice, assistance or representation. I also reflected that it is very important to understand the impact of brain development on the competence and problem-solving ability of young people, because that part of the brain develops last. Therefore, their ability to make complex decisions that will affect their future, or ensure their best interests, is the last to emerge. If we are being serious about the long-term future, it must be wrong to do anything wilfully that interrupts that whole process. This particularly applies to children’s access to the very complex legal situations that have been described so graphically by many noble Lords.
I notice that in October 2010, Sarah Teather, the Minister of State for Children and Families, said that the best interests of the child would be a primary consideration in all government legislation. Many other noble Lords have mentioned this Bill’s links to the Welfare Reform Bill, the Health and Social Care Bill and the education Bills. I wonder, and ask the Minister, whether, in the preparation of this clause, there has been full consultation with all the other departments involved about the parts of those Bills that have an impact on children in the light of what the Minister said about the best interests of the child being the primary consideration. As I have listened to what has been said so graphically around the Committee this evening—and I am sure that the Minister has, too—I question whether the measures that the Government are proposing really are in the best interests of the children of this country.
Lord Alton of Liverpool
My Lords, there are 13 amendments in this group. The Committee will be relieved to know that I intend to speak to only one of them. The thing that links all these amendments is what my noble and learned friend Lady Butler-Sloss described earlier as the paramount interests of the child. That is at the heart of what all of us who come to the debate have in mind.
My noble friend Lady O’Loan, in moving Amendment 33, the amendment to which I should like to speak, said that the key issue here was how this legislation and these proceedings would affect the family and the child. I was struck by a letter that appeared in the Times last week, signed by the most reverend Peter Smith, the Archbishop of Southwark. He joined those who have spoken so eloquently in your Lordships’ House this evening in stating that the Bill will, in his words,
“affect thousands of children whose parents are involved in civil cases”.
He went on to warn that,
“the result is likely to be increased long-term public costs and greater suffering”.
The Government have consistently and rightly talked about the importance of responsible parenting in a child’s development. Indeed, when the Prime Minister discussed the structures necessary for giving children the best start in life, he identified them as “strong and secure families” and “confident and able parents”. Yet how can a parent be expected to remain secure or confident when they face debt that could lead to their utilities being cut off; a discrepancy over benefit payments that could leave them unable to pay for the weekly shopping; or even a compensation claim over an injury leaving them unable to work—all without adequate advice or representation? It is perverse that the Government should, on the one hand, rightly emphasise responsible parenting, and then take away the very mechanisms for securing families’ basic legal remedies on the other. The challenges posed by the Bill will be felt sorely enough by individuals in the vast range of situations already mentioned in your Lordships’ House today and in previous debates, some of which I referred to in my Second Reading speech. Such challenges will only be exacerbated for those with dependent children for whom they need to provide and care.
The experience of those working on the front line underscores the fact that for many parents civil legal aid is no less than an essential component in securing legal redress for their families in some of the most serious and threatening cases. It was the magnificent Lord Bingham who once remarked:
“Legal aid is a service which the modern state owes to its citizens as a matter of principle”.
But principle, along with access to justice, seems to have become an early casualty in our sharp-elbowed Britain. The national charity, Housing Justice, emphasises:
“Housing cases involving families and children are frequently lengthy and complicated, so legal aid is vital if justice is to be done”.
It further remarks:
“It is imperative that children in particular … do not have their misery prolonged because of the difficulty in getting legal redress”.
The House needs to consider today the genuine human suffering that thousands of children will face as a direct consequence of restrictions to their parents’ legal aid entitlement.
As we have heard from my noble friend and many others during the debate today, and from people within the charitable sector, the hardship likely to result will be compounded by the simultaneous changes to the social security system. Many of those changes are complex and will leave many of the most vulnerable families more in need than ever of legal support. This has on more than one occasion been described as a “pincer movement” against the United Kingdom’s poorest. Depressingly, it reinforces the impression that we are not all in it together and that only those with sharp elbows will survive.
In researching the likely effects of the Welfare Reform Bill, the Catholic Church’s social action arm, Caritas Social Action Network, heard from a client of the admirable Cardinal Hume Centre in Westminster, only a stone’s throw away from this place. This lady, a single mother of three children, who is currently studying, was asked about the likely impact on her family if she fell victim to the new provisions on the recovery of benefit overpayments. Her response was simple:
“My kids and I would suffer”.
She went on to state:
“I would struggle to buy anything apart from food”.
Were she to find herself in this situation, as many individuals and families are likely to, she would have to face it without the professional advice or support that such complex and technical issues may well necessitate. She would ultimately be left with the choice of trying to challenge a decision herself, balancing this with her studies and with raising her young family, or she would have to take it as a hit without dispute, consequently being left with just enough to put food on the table. I dare say that in some cases parents will be left struggling to do even that. How is this in any sense a fair or just state of affairs?
A very similar case has been drawn to my attention by Caritas in the northern diocese of Salford. It involves another single mother, training to become a beautician, who received a letter regarding an error in her benefit payments which stated that if she did not repay an amount owed her current benefits would stop. In the event, she was able successfully to challenge the decision and continue her training, but once the 135,000 benefit cases each year are taken out of the scope of legal aid how many like her will be left without any suitable recourse? Of course, the impressive work undertaken by the charitable sector will mitigate some of the impact. However, as I said in the earlier debate about disability, from the experience that I have had during my time as patron of a charity dealing with children’s issues I know that it is already overwhelmed, and will be increasingly overwhelmed in the future, especially with the cuts to local government funding and the funding that comes in turn to those voluntary organisations. The sheer volume of cases, many involving a significant degree of complexity, will inevitably leave families falling through the gaps.
I particularly want to draw the Committee’s attention to the Caritas community worker's commentary on the case which I have just mentioned. That caseworker says that the mother,
“is trying to develop a positive future for her family through gaining qualifications that will hopefully lead to employment but the stress of her situation could have harmed these goals”.
The removal of support in such cases will not be a mere inconvenience to parents; it will be a genuine challenge to their best efforts to create a safe and supportive environment for their children to grow up in. In the long run this will, of course, result in significant costs to the state, in economic as well as human terms, as we have heard from my noble friend Lord Ramsbotham and others. Many noble Lords have indicated that they are familiar with research from Citizens Advice, which highlights that for every £1 of legal aid expenditure on benefits advice as much as £8.80 could be saved in public expenditure. In cases involving children who suffer as a result of their parent’s case, the true cost may be far higher. That is penny wise but pound foolish.
Finally, I should like to draw the attention of the House to the devastating effects that the withdrawal of legal aid for immigration cases will have on children. Another study from the Cardinal Hume Centre relates to a client with twin girls, aged three. Legal aid was essential to resolving the immigration issues that had created immense difficulties in securing housing and left her at risk of being split from her children. It seems hard to justify denying support in such situations, which would appear certain once again to result in human suffering and, ultimately, public costs.
As highlighted by noble Lords promoting this and the other amendments, there are many areas beyond benefit cases and immigration cases in which children will be hurt by the provisions of this Bill. I commend the report Not Seen and Not Heard, by Sound Off For Justice and Just Rights, which outlines in detail the worrying scope and scale of all this.
It was Churchill who once said that you measure the degree of civilisation of a society by how it treats its weakest members. Surely that is the test that we should apply when considering the ramifications of the provisions of the Bill. I hope that when he replies to these 13 amendments the Minister will give us some assurance that he will go away and consider further some of the arguments that have been advanced.
Baroness Walmsley
My Lords, I will be brief but I have six big guns to call in aid. I support Amendment 34 in the name of my noble friend Lady Eaton and the sensible proposals of the noble and learned Baroness, Lady Butler-Sloss, about child abduction and mediation.
The noble Lord, Lord Ramsbotham, mentioned the comments of my right honourable friend the Minister for Children, Sarah Teather, about the best interests of the child. She was of course talking about the child’s rights under the UN Convention on the Rights of the Child. Big gun number one is Article 4 of the UNCRC, which states that the Government must take,
“all appropriate legislative, administrative and other measures”,
to ensure the realisation of rights protected under the UNCRC, and must also apply,
“the maximum extent of their available resources”,
to this purpose. This convention right is engaged by the Bill. It is one of the important general measures of the convention.
Big gun number two is Article 6 of the ECHR, which states:
“It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before the court … and that he or she is able to enjoy equality of arms with the opposing side”.
The Children’s Commissioner stated the blindingly obvious in her letter of 6 January to the Secretary of State. She said:
“Children, by virtue of their age and capacity, will not be able to present their case effectively in the majority of proceedings”.
I share her concern and that of the Joint Committee on Human rights that,
“the ability of the Director of Legal Aid Casework to grant exceptional funding is insufficient to make rights practically effective due to the need”,
to speed things up. She also stated that,
“children without legal advice and assistance will encounter difficulties even in accessing a determination by the Director”.
Big gun number three is Article 12 of the UN Convention on the Rights of the Child, which provides that states parties,
“shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”.
Article 12 states in particular that the child shall,
“be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or appropriate body”.
Big gun number four is the whole of Article 3 about the best interests of the child, which has been quoted by the noble and learned Baroness, Lady Butler-Sloss. It is also enshrined in UK law in the Education Act 1986.
Big guns numbers five and six are the Hague convention and the noble and learned Baroness, Lady Butler-Sloss. As she has already fired her fiery cannonballs at my noble friend, he does not need my bit of buckshot to add to them.
Those are international convention obligations to which we have signed up voluntarily. We now need to step up to the mark and honour them. If we do not, we will be taken to the international court. It is as simple as that.
Baroness Shackleton of Belgravia
I shall speak in support of the noble and learned Baroness, Lady Butler-Sloss, in particular on Amendment 41, which deals with child abduction. I saw the Minister wave his white hanky, which I hope is a sign of peace. If we are to look after what is in the paramount interest of a child, in most circumstances, that means contact with both parents. In the absence of legal aid, the parent who does not want to have contact effective—who wants to frustrate contact—will simply up sticks and go off with the child. If that happens, it is extremely important that measures are taken instantly to return the child because, if not, the child will become accustomed to living in the place to which it is abducted and it will be much more difficult to get it back. Absence of legal aid will encourage people to do that, which is of great concern.
Baroness Scotland of Asthal
My Lords, the Minister has had a powerful display of the House’s feeling on these matters. It is of note that not one person has spoken during Committee in support of the Government's position. Perhaps that is not surprising. When we consider issues that refer to children who have not been responsible for poor conduct but have found themselves in difficult and painful positions, the House has always spoken with one voice to protect the child and ensure that their rights are upheld. That is something that all sides of this House have always agreed and acted on in unison. I, for one, am not surprised that we have had powerful speeches from all Benches about the paramount interests of the child and the need to ensure that legal advice and support is available.
If the Government's proposals succeed, as the House knows, they will mean that more than 210,000 fewer private family cases will qualify for legal help; 45,000 fewer private family cases will qualify for legal representation; and 68,000 children will be affected by legal aid being removed for family contact and finance disputes. The noble and learned Baroness, Lady Butler-Sloss, spoke about the importance of family contact, as did the noble Baroness, Lady Shackleton.
The reason that there is unison on that issue is that any noble Lord who has participated in family cases knows the difficulty that such contact cases promote. Of the 68,000 children who will be deprived of legal aid, the majority fall within the poorest sector of society, because 95 per cent of those in receipt of civil and family legal help are in the bottom income quintile. That means that they are most in need of help, support and succour. The social implications are considerable. Fifty-seven per cent of the members of Resolution who were surveyed believe that parents risk losing contact with their children in at least half of its cases. That amounts to more than 4,000 children according to the lawyers surveyed alone.
The rise in the number of litigants in person for whom mediation is unsuitable and legal aid is unavailable will add more pressure to the court system, which is facing the closure of 40 per cent of courts. Ninety-nine per cent of those asked said that cases take longer when parties represent themselves, and the noble and learned Baroness, Lady Butler-Sloss, gave graphic examples of what will happen when a case takes a week. At the moment, more than 90 per cent of private family law cases are settled. The 10 per cent which go to law are the most intractable and most difficult.
Family law is slightly different from many other forms of litigation. Most family lawyers worth their salt see their job as damage limitation because, when a family breaks down, everyone loses and there are no winners. Therefore, if a case has to go to court, we are dealing with even greater failure. The court has grown accustomed to relying on lawyers who, in this area, are not rich fat cats. Over half of those surveyed who practise family law earn less than £35,000 and a fifth earn less than £25,000, which is less than the UK’s median annual salary. We are dealing with people who are trying to give succour to families.
The wide spectrum of law that has been spoken about—welfare law, family law and housing law—all interact. Stephen Cobb, chairman of the Family Law Bar Association, put it succinctly when he said that without access to justice—by which he meant effective access—for broken families, wider society would pay a very high price indeed. That is what we have heard echoing right around the Chamber from virtually every single speaker today.
The Family Justice Review has identified that in a significant number of cases serious child welfare and safeguarding concerns are raised when families appear in a private law court case, and those can trigger investigations by local authorities and result in public law proceedings. Statistics in the NSPCC’s report of November 2011, All Babies Count, show that around 20,000 children are living with a parent who has used class A drugs in the past year—we are talking about babies under a year old—around 100,000 live with a parent who is a problem drinker, and around 150,000 live with a parent who has a common mental health problem. One in every two cohabiting couples will have split by the time their children are five years old, and at least half of these children will face a parental breakdown. Not all couples will require a courtroom but, for those who do, many vulnerable adults will have no access to justice in private law and will be left with a choice of mediation or litigation in person—litigation which will add to, not detract from the difficulties that the family is likely to face.
For all the reasons that have been given powerfully by every single speaker, I seriously ask the noble Lord to think again. I respectfully suggest that the Government’s approach to this issue lacks foresight. It lacks full consideration of the consequences of the Bill for families for whom legal funding is not available, legal advice is not affordable and mediation is unlikely to be suitable. The cost of mediation is currently estimated by the Government to be between £6,000 and £10,000. If the Government’s own figures are right, the research indicates that it is likely to cost £48 million to undertake the mediation proposed. If half of those cases do not succeed in reaching a settlement, we will be left with dealing with them in the court in a way that is unlikely to be helpful if legal advice and support are not made available.
One of the benefits of having had such powerful speeches and it now being so late is that the noble Lord will have one relief: namely, that I do not intend to deal with each and every speech seriatim. I know that that at least is something which will make him smile, although I suppose that nothing else from this debate is likely to. I invite him to take away from this debate the strong expression made by every single speaker that what this Government are proposing is unjust, wrong, and should no longer continue. The noble Lord may think that he will get rejoicing not only in the ranks by further waving the white handkerchief. If that wave is to say he concedes, I can tell him that there will be much rejoicing in heaven.
Lord McNally
My Lords, even at this late stage of the night, the mere appearance of the noble and learned Baroness at the Dispatch Box brings a smile to my face. I hope that the noble Lord, Lord Bach, does not feel any jealousy.
Lord McNally
Of course, having listened to a debate dominated by what I acknowledge is a great deal of expertise and experience in this area, I will go away to ponder and think about what has been said, and discuss it with my right honourable friend the Lord Chancellor. At this time of night, like the noble Baroness I think it is better if I put on the record our approach and we can then resume on Wednesday.
Amendments 33, 34, 39, 40, 41, 51, 52, 79B, 80, 80A, 82A, 82B and 82C all concern legal aid for children and young people, or people with dependent children. Others refer to the use of mediation in family cases. While—as I have said—I acknowledge the expertise and experience on display today, and while I understand what motivates these amendments, I ask the House in turn to acknowledge the economic realities behind the difficult decisions that we have been forced to take.
As the House is well aware, the Government’s approach has been to look at every area of law where legal aid is provided, and to consider whether it should continue, and in what form. In developing our proposals, we have considered carefully a number of factors, including: the importance and complexity of the issue; the litigant’s ability to present their own case; the availability of alternative sources of funding; and the availability of other routes to resolution. We have used these factors to prioritise funding so that civil legal services will be available in the highest priority cases; for example, where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or for domestic violence remedies, or where children may be taken into care.
A number of noble Lords have drawn inferences that this is a cruel and uncaring Government; as the noble Lord, Lord Alton, said, a government for the sharp elbowed. Let me just put on record at this stage and remind noble Lords that even after our reforms are in place we will still be spending £120 million of funding per year for private family law, including domestic violence; an extra £10 million per year on mediation; £50 million on categories of social welfare law; £6 million on clinical negligence; and £2 million on education. That is why I sometimes bridle at suggestions that we are destroying the legal aid system. We are trying to manage an overall cut in legal aid that will still leave us with—as I have said before—one of the most generous legal aid systems in the world.
Amendment 33 applies to all civil and family proceedings, and seeks to bring into scope civil legal services for many areas of law that are excluded where the individual has a child who is dependent on them. The intention appears to be that this group of people should receive civil legal services because of the potential impact on their children of the withdrawal of legal aid. The amendment would retain funding across the board for people with dependent children, without regard to the relative priority and alternative methods of resolving disputes, and would lose the bulk of the £170 million of annual savings, as most family law cases involve a respondent or applicant who has dependent children. It would also significantly impact on the £110 million saving in other areas of civil law. We have not sought simply to retain legal aid for any case where the individual has a child. Doing so would mean expending limited funds on a range of cases: some important, some not as important and some where alternative ways of resolving the dispute would be preferable. Therefore, I hope that noble Lords will not press the amendment.
Amendment 79B would bring all civil non-family matters within scope for children, with the exception of work relating to breach of a statutory duty, the making of wills, trust law and business cases. Amendment 82C seeks to bring into scope civil legal services covering welfare benefits, debt, housing and employment for those aged 24 or under or who are represented by a legal guardian. Amendment 82B seeks to bring into scope civil legal services in relation to advice and proceedings where the person is a care leaver under the age of 21 in wide-ranging civil and family areas specified in the amendment. Amendment 79B would mean that nearly all civil cases would be brought into scope if the applicant were a child. It is worth making it absolutely clear that in civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s litigation friend rather than by the child themselves. This accords with the normal rules of civil litigation. The civil justice system as a whole does not generally require children to act on their own behalf.
I turn now to the rest of the amendments in the group. Providing blanket funding for all cases where the child or young person is the applicant would be costly, unnecessary and might create perverse incentives for parents to attempt to bring civil litigation in their children's name purely to secure funding in otherwise out-of-scope areas of law. The Government recognise the importance of funding in a range of cases where children's interests are paramount. This is reflected in the decisions that we have reached. As a result we have protected funding in areas that specifically involve children. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We have also made special provision so that legal aid will be available for children who are made parties to private family proceedings.
There will also be an exceptional funding scheme that will ensure the protection of an individual's rights to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. Each case will be decided on its own facts, but in cases where Article 6 of the European Convention on Human Rights is engaged, the ability of the client to present their own case, the complexity of the issues and the importance of the issues at stake will be relevant factors when a decision is taken on whether to grant exceptional funding. Therefore, where a child brings an action without a litigation friend, this will be an important factor in deciding whether they have the ability to present their case.
Amendments 80 and 80A seek to bring into scope civil legal services for any person who is under 24 and has a disability. They include but do not limit themselves to particular areas of scope that are excluded. Amendment 82A seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 or under and has a disability or lacks mental capacity. We have considered the point that the amendment makes about legal aid for those with disabilities. The equality impact assessment published alongside the Government’s response to consultation sets out our analysis of the potential effects that the reforms may have on people sharing protected characteristics in accordance with the public sector equality duty set out in the Equality Act 2010. We have acted consistently with that duty, one requirement of which is to have due regard to the impact on groups of different ages and those with different needs, such as disabilities. While we have identified the potential for the reforms to have greater impacts on some groups, we believe that those impacts are proportionate and justified by the need to meet our objectives, including the pressing need to make savings from legal aid.
Lord Howarth of Newport
As this issue came up in an earlier debate, will the Minister explain to the Committee how it is that his policies that he acknowledges will have an impact on disabled people are not discriminatory and therefore legally offensive?
Lord McNally
They are not legally offensive. We have been honest right from the first day I answered questions. I go back again to this, which is something that the noble Lord in his many, many interventions never acknowledges. If you are making cuts in such an area that is directed at the poorer sections of society, of course, you will affect the poorer sections of society. But what will also affect the poorer sections of society is if you lose control of the economy and are forced to bring in further draconian cuts over which you have no control. We will return, as we have done, through six or seven parallel debates with the same briefings and research from the same organisations. We have a fundamental difference of opinion on how to tackle these problems. I am not even sure that the noble Lord is quite on message at least with the latest pronouncements from his Front Bench in the other place about what we are facing in these matters. I suspect that we will have further discussions on this.
The Bill contains important safeguards for children and adults who lack capacity and who require treatment for mental health issues. Paragraph 5 of Part 1 of Schedule 1 provides that legal aid may be made available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning medical treatment of patients or those who lack capacity. Furthermore, paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the mental health tribunal. Paragraph 4 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual: medical treatment, including psychological treatment; life; liberty; physical safety; the capacity to marry or enter into civil partnerships; the capacity to enter into sexual relations; or the right to family life. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for an onward appeal to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope.
As I have already mentioned, there will also be an exceptional funding scheme that will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights as well as those rights to legal aid that are directly enforceable under European Union law.
Amendment 34 applies to all civil and family proceedings. It seeks to bring into scope civil legal services for many areas of law that are excluded for any child party or child represented by legal guardian. I will address the amendment on the basis that the term “legal guardian” means the child’s guardian of the type appointed by CAFCASS. We are already retaining legal aid for child parties in family proceedings which we have prioritised. This part of the amendment is therefore unnecessary. Otherwise the amendment retains funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them.
As I said, the Government recognise the importance of funding in a range of cases where children’s interests are paramount. That is reflected in the final decisions we have reached. As a result, we have protected funding in areas that specifically involve children. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings.
Baroness Scotland of Asthal
I understand that the Minister is trying to give a full response, but in his valiant reply he said that the international child abduction cases were difficult and complex and that domestic abduction cases were not. Will he think again on that issue, not least because the complexity of the issues relating to abduction is similar in both domestic and international cases? Quite often the parents are greatly distressed, very confused and in need of the quick, experienced lawyer who is able to navigate the system. Many lawyers find abduction cases difficult and international cases are not very dissimilar. Will the Minister take back to the department that the belief that domestic cases may be easier than international cases is not quite as it may think it is.
Lord McNally
That is always the problem. If you say that one thing is more difficult it is implied that the others are easier. No, I was not implying that. I take the noble and learned Baroness’s point. One of the more difficult areas is where there is a break-up of a family and a loss of contact. I shall read what has been said and take it back.
Baroness Butler-Sloss
Perhaps I may add to what the noble and learned Baroness, Lady Scotland, has said. I have listened with interest to what the Minister is saying to us, but he suggested that the police would intervene even without going to court. Will he check as to whether the police are prepared to act in the absence of a court order? My experience, which is now six years out of date, was that the police were not prepared to act unless there was a court order. It would be very helpful if the Minister could find out about that very practical and basic point because it adds a great deal of force to what the noble and learned Baroness, Lady Scotland, has said.
Lord McNally
I promise the noble and learned Baroness that I shall go into the Lord Chancellor’s room tomorrow and say, “Baroness Butler-Sloss has asked me to ask you to clarify what you told me”. It is a very serious point. My briefing states that the police would help. She has made a relevant point about whether they would do so without a court order. I have never pretended that my knowledge on these matters was only six years out of date. In fact, my expertise is right up to date because I am learning all the time. I take on board what both noble and learned Baronesses have said, and I will try to explain to the Lord Chancellor that when I stand at the Dispatch Box I am facing a considerable amendment of experience and expertise which, dare I say it, he does not always face in the other place.
Amendment 41 is also open to the argument that it would extend to applications to prevent the child being moved by the parent with whom he or she resides and so put back into the scope of legal aid a very common type of family dispute. It is hard to estimate what effect this would have on our savings, but it would inevitably run into many millions of pounds. However, I will go back. As we know from other aspects of this thing about the rights of fathers—the noble and learned Baroness gave some of the horrific statistics about family break-up—we are touching a very sensitive area and I will raise these matters with my right honourable colleague.
Amendment 51 seeks to guarantee the availability of legal aid, subject to the means and merits test, for every family dispute that is not resolved by mediation. In considering the effect of this amendment, it is important to remember that both privately paying and publicly funded clients are already required to consider mediation before bringing proceedings. Given those existing requirements, it is difficult to see how this amendment would do anything other than maintain the status quo, retaining legal aid for all or most family cases. That would completely undermine our targeted approach to legal aid reform. We have to reduce expenditure on legal aid, but we also want less reliance on litigation as a means of solving problems. This amendment would do the opposite. If the fact that mediation had not resolved the parties’ differences were to become a route to legal aid, it would have the unintended consequence of discouraging people from paying more than lip service to the mediation process and reducing genuine engagement with it.
The Government’s position is clear. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. Accordingly, for most divorces, child contact applications or ancillary applications to divide up the family assets, legal aid will no longer be available. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend an extra £10 million on mediation, taking the total to £25 million a year.
However, we accept that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family cases where there is evidence of domestic violence and cases where a child is at risk of abuse. We will be turning to the matter of domestic violence on Wednesday. I want to make clear that funding for victims of domestic violence seeking a protective order will remain available as at present; that is, we will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, such as a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. Again, the exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as the rights to legal aid that are directly enforceable under European law.
Amendment 52 is aimed at providing legal aid for any adult party in family proceedings where a child party may give oral evidence, presumably to prevent cross-examination of the child by the alleged perpetrator. I understand the concerns which the noble Baroness who moved the amendment is trying to address here, but we are seeking to ensure funding for the most vulnerable in society. We do not think that to automatically extend funding to an alleged perpetrator fits well with this. It would be a mistake to assume that the only means of protection for the prospective witness is funding representation for the prospective questioner.
The situation which the noble and learned Baroness seeks to address can already occur in the courts. Should a victim of abuse face questioning from their abuser, judges have powers and training to manage the situation, to make sure that the court’s process is not abused and that hearings at which oral evidence is given are handled sensitively. In family proceedings, for example, the court is specifically empowered to limit cross-examination—it can have questions relayed to the witness rather than asked directly—and can use video links and intervene to prevent inappropriate questioning.
That brings me to the end of that list. I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.
Baroness O'Loan
I thank the Minister for his comments, and I am glad to hear that he will reflect further upon this very wide-ranging debate, in which the consequences of the proposed legislation have been so well articulated on all sides of the House. I am not persuaded by what the Minister has said—that it is right, necessary or proportionate that there should be a whole-scale removal of the availability of legal aid to families with dependent children, when there is such a huge range of issues of vital importance, such as basic family income.
The Government suggest that we may save £270 million, but we know already that those figures are very questionable. Careful analysis suggests that the consequences of this part of the Bill will be a much greater involvement of social services, housing authorities, welfare services, the criminal justice system, education services, and, I fear, ultimately the health service.
The Minister has not persuaded me that the drafters of this Bill have had sufficient regard to the needs of the child and of the family to which the child belongs. We may need to return to the matter on Report. For the present, I beg leave to withdraw.