Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, Members will wish to be made aware—if they are not already—that the noble Baroness, Lady Thomas of Winchester, is not able to attend today and has withdrawn her Question for Short Debate, which would have been the third item of business today. Members may also wish to be made aware that the wording of the Question for Short Debate tabled by the noble Baroness, Lady Gardner of Parkes, was changed after House of Lords business was last printed but appears correctly on today's Order Paper. Finally, I remind the Committee that in the quite likely event of there being Divisions in the Chamber, the Committee will adjourn for 10 minutes from the sounding of the Division Bell.
Health: Pancreatic Cancer
(12 years, 6 months ago)
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Lord Aberdare
To ask Her Majesty’s Government what steps they will take to improve both the quality of care and the overall survival rates for pancreatic cancer in the United Kingdom.
Lord Aberdare
My Lords, pancreatic cancer is in some respects the poor relation of major cancers. It is the fifth most deadly cancer in the UK after breast, lung, bowel and prostate cancer. However, its survival rate, unlike those of the other cancers, has hardly improved in the past 40 years. In addition, there is evidence that pancreatic cancer patients often do not receive an adequate standard of care. Pancreatic cancer is all too often seen as a death sentence, leaving little or nothing to hope for. I sought this debate to try to focus on ways in which the Government, working with others concerned, might help to bring some hope—something more to live for—to sufferers from pancreatic cancer and their friends and families.
My concern about the issue is purely that of a layman without medical or specialist expertise. Two friends of mine died from pancreatic cancer in recent years. One was a business acquaintance who battled with it for several years, the other a friend who died within weeks of diagnosis. At least three others lost parents at a relatively early age, while another currently has the disease and is doing his utmost to beat the odds. He has been lucky enough to be treated privately at the Royal Marsden Hospital. Through the efforts of his medical team he was given a drug called Folfirinox, which is not approved for this purpose by NICE but which shrank his tumour to the point where it could be operated on. He is convinced that without that operation he would have died.
As I prepared for this debate, I was struck by the number of people who have had direct experience of friends or relatives falling victim to pancreatic cancer. When I looked at the statistics relating to it, I found them shocking. There are more than 8,000 diagnoses of pancreatic cancer in the UK each year, which represents less than 3 per cent of total cancer diagnoses. However, it accounts for nearly 5 per cent of deaths, and the length of time between diagnosis and death is typically less than six months. More than 80 per cent of patients will die within a year of diagnosis. Three-year survival rates in the UK range from 3.6 per cent to 11.9 per cent, and five-year rates from 0 per cent to 10.4 per cent. Only 3 per cent of patients survive for five years. The figures have hardly improved since the 1970s, yet countries such as the USA, Canada and Australia achieve five-year survival rates that are twice as high, and a number of European countries also do better than the UK. Furthermore, there are significant variations in outcomes between different UK regions. London and the south-east have better results than the north of England, Scotland, Wales and Northern Ireland.
Of equal concern is that the 2010 NHS National Cancer Patient Experience Survey showed that pancreatic cancer patients had a poorer NHS experience than most other cancer sufferers, for example in the information they received, in the management of their pain, and in the confidence they had in their medical teams. One aspect of this is the support available from clinical nurse specialists. Although most pancreatic cancer patients surveyed said that they had access to a clinical nurse specialist, research by Pancreatic Cancer UK found that those specialist nurses were concerned that they were not receiving the support and resources they needed to do their job well. Moreover, although it is estimated that some 20 per cent of pancreatic cancer patients may be suitable candidates for surgery, which is recognised as the only effective way of tackling the disease, only about 10 per cent receive it. Noble Lords may share my view that these figures are deeply disappointing and raise serious questions about whether we in the UK cannot and should not do considerably better for those unlucky enough to contract this dreadful disease.
There are three issues I should like to highlight as needing to be tackled. The first is to increase research into the many aspects of the disease which are not yet adequately understood. Despite accounting for 5 per cent of cancer deaths, pancreatic cancer attracts only 1 per cent of cancer research funding. Any prospect of improving survival rates must start from better data about what causes or contributes to the disease and what sorts of treatment are effective in tackling it. Experience, for example with breast cancer, has clearly shown that research does lead to improved survival rates.
The second issue is to find ways of diagnosing pancreatic cancer earlier. There are no straightforward ways of recognising the disease, and many weeks or months often pass before a firm diagnosis is reached, with almost 30 per cent of patients visiting their GPs five times or more. However, the prospects for successful treatment—or even for high-quality palliative care—depend largely on how soon the disease is identified. In addition, many patients do not have the chance to participate in clinical trials for new treatments because their condition is already too far advanced by the time they are diagnosed.
The third issue I want to raise is the quality of care for all pancreatic cancer patients, which needs to be improved, for example through better information for patients and their carers, better co-ordination between those involved in treatment, better support from clinical nurse specialists and a more consistent service across the UK.
I know that the Government share my concern about the need to improve the experience of pancreatic cancer sufferers. Paul Burstow, a Minister in the Department of Health, has met Pancreatic Cancer UK and indicated his support for its Campaign for Hope, and I welcome the fact that two pancreatic cancer-related research studies are to be conducted under the aegis of the National Cancer Intelligence Network.
I very much look forward to the Minister's response to this debate, as well as to the contributions and suggestions of other noble Lords who have much greater experience and knowledge of this issue than I do, but who none the less get three minutes as opposed to my 10. I am sure they will do much better with it. Government, of course, cannot provide all the answers; but in partnership with other organisations and interested parties—the medical profession, research bodies, funders, charities, carers, and of course patients themselves and their families and friends—they can offer encouragement, support and resources.
In particular, I ask the Minister to answer four questions. First, will he look into conducting a full audit of current pancreatic cancer services, to assess why different regions currently achieve different results, and what structures and systems work best to provide pancreatic cancer patients with an optimum quality of care?
Secondly, will he ensure that pancreatic cancer is firmly included in the national awareness and early diagnosis initiative to assess what can be done to shorten the time to diagnosis?
Thirdly, what steps will he take to increase the amount of funding going to pancreatic cancer, both for research and care, in line with its significance among major cancers in the UK? Finally, how will he seek to improve the experience of care for pancreatic cancer patients?
Progress on other major cancers has shown how much improvement can be achieved through focused efforts to raise awareness and improve diagnosis and treatment. Surely we can also improve the outlook for pancreatic cancer sufferers and give them some real hope for longer lives, better care and greater fulfilment in the time that remains to them.
The Earl of Selborne
My Lords, every Member of the Committee will be enormously grateful to the noble Lord, Lord Aberdare, for making this debate possible. I am sure we all congratulate him on his speech. Pancreatic cancer is indeed the poor relation. It is disheartening to find what little progress has been made over 40 years compared to the great successes in most other cancers.
I shall confine my remarks to the need for earlier diagnosis and try to explore some of the reasons why it is difficult to achieve at the moment. Pancreatic cancer is usually diagnosed late in its progress, making surgery very much harder to accomplish. With earlier diagnosis, there is a small chance that the progress of the disease can be slowed down, thereby prolonging life and there is a possibility that the patient may be fit enough to take part in clinical trials. Again, with later diagnosis sometimes clinical trials simply are not an option.
The difficulties of early diagnosis cannot be denied, though. Like the noble Lord, Lord Aberdare, I stress that I am a complete layman, but I recognise that there are no simple tests and indeed that many patients do not experience symptoms until the cancer has spread from the pancreas. Sometimes, however, families are able to recognise with hindsight that a range of symptoms had manifested themselves which, had they led to a diagnosis some time earlier than was eventually the case, might have given some more hope for treatment and trials. Often this manifested itself in more frequent visits to GPs and to hospital before potentially triggering an emergency presentation like jaundice.
The barriers to early detection have been well set out by Pancreatic Cancer UK’s Study for Survival. Its informative summary notes that GPs themselves record that there is a lack of sufficient information and knowledge about pancreatic cancer’s signs and symptoms, a lack of sufficient formal evidence relating to them to support the development of effective referral guidelines, and a lack of access to risk assessment tools to support GPs to identify patients with a pancreatic cancer concern.
We need to develop tools, such as a risk assessment tool, and to improve access to diagnostics. Doctors should always include the possibility of pancreatic cancer in their index of suspicion when presented with a patient with symptoms that do not seem to add up, and should always be ready to refer the patient to a consultant for investigation in such circumstances and without delay.
Baroness Warwick of Undercliffe
My Lords, I, too, thank the noble Lord, Lord Aberdare, for securing this debate and for his thoughtful and compassionate speech. It is clear that I am not the only speaker today who has had the harrowing experience of seeing a beloved family member or friend suffer from this lethal disease. My sister-in-law died of pancreatic cancer, and her story mirrors much that has been said today. She was prescribed pills for depression and had a late diagnosis, first of pancreatitis, which was not considered serious, and only much later one of pancreatic cancer. There was little understanding from her GP—not indifference, but perplexity over the symptoms of a disease that we know GPs will see as a new case perhaps only once every five years.
The statistics speak for themselves and I will not repeat them, except to remind the Committee that this is the fifth most common cause of cancer death in the UK, yet it receives less than 1 per cent of overall cancer research funding. For the 8,000 people a year in the UK who are diagnosed with the disease—that is 22 people for every day of the year—the outlook is grim indeed. Figures from the excellent body Pancreatic Cancer UK suggest that these patients have the least satisfactory health service experience of all patients diagnosed with major cancers. Its Campaign for Hope has two ambitious goals: to double survival rates within the next five years and to move the experience of pancreatic cancer patients from being one of the worst to one of the best.
How can we do that? We need, as others have said, to increase early diagnosis; we need greater investment in research and effective treatments; and we must improve the quality of patient experience for those with pancreatic cancer. A first step would be, as the noble Lord, Lord Aberdare, said, to place it firmly on the national awareness and early diagnosis initiative agenda, and I would like the Minister’s response on that. A review would look at, for example, how we can develop and provide risk assessment tools for GPs.
Then we need to be sure that any new commissioning arrangements and guidelines provide GPs with sufficient information about pancreatic cancer and referral criteria. Will the Minister confirm that this cancer will receive the attention that it deserves within the Government’s Improving Outcomes strategy for cancer?
We need a significant increase in research investment, and we need to increase clinical trials. What steps are the Government taking to ensure that clinicians and patients are fully informed about all available pancreatic cancer clinical trials?
Finally, we need to improve the experience of patients. I know that specialist nursing support—clinical nurse specialists—can make a huge difference to the experience of pancreatic cancer patients, but access to these amazing individuals is limited. Does the Minister recognise the vital role these CNS staff play in helping to improve the experience of patients, and can he offer any assurance about future provision?
There is no excuse for patients in the UK faring so much worse than those in other countries. We must improve survival rates and the quality of care—and of life—for those with this terrible form of cancer.
Baroness Jolly
My Lords, I join with others in extending thanks to the noble Lord, Lord Aberdare, for securing this debate, and to Cancer Research UK and Pancreatic Cancer UK for such excellent briefings.
One in three of us will get cancer in our lifetime, and that diagnosis, for the most part, is quite straightforward. The past decade has seen phenomenal increases in survival rates, such that fairly soon 2 million people will be living with and beyond cancer. That number is growing. This is real cause for celebration, but sadly not yet for those with pancreatic cancer. It has one of the highest incident-to-mortality ratios for any disease. The problems of difficult and late diagnosis, leading to late treatment—often too late for surgery—have been well outlined by noble Lords.
The coalition Government’s document, Improving Outcomes: A Strategy for Cancer, was published on 12 January this year. It set out a range of actions to improve cancer outcomes. Care Minister Paul Burstow said that the strategy,
“sets out our ambition to bring England's cancer survival rates in line with the European average by 2014-15”.
He added that this,
“shows that if England’s survival rates were as good as the best in Europe we would save 10,000 additional lives per year”.—[Official Report, Commons, 7/11/11; col. 139W.]
He said that the Government estimated that of those additional lives saved, 75 would be those with pancreatic cancer. That is all to be welcomed, but 2014-15 is only three years away and we therefore need to understand what actions are being taken.
It is tragic that at the moment in England there is little hope for most patients with pancreatic cancer. The Government have acknowledged difficulties in late diagnosis, the need to consider biomarkers for pancreatic cancer because there are often no symptoms until late stages, the 2005 NICE guidelines for urgent referral of patients, the high incidence of late decisions around surgery—often too late—and some suggestion of reluctance on behalf of clinicians to recommend surgery.
In his summing up, I should be grateful if my noble friend the Minister could address three issues. What mechanisms and levers are there within the Health and Social Care Act that will be able to reassure carers and those who have pancreatic cancer that these aspirations can be met? What role does value-based pricing have in the long term? What engagement is there between the department and royal colleges to address the deficits in doctor training and continuing professional development in this area that is so particularly fraught?
Long-term research needs to be supported and accelerated and, on a brighter note, a few weeks ago, Kirtana Vallabhaneni, aged 17, from West Kirby, beat 360 other entrants to be awarded Young Scientist of the Year for 2012 for her work as part of the University of Liverpool’s research projects. She—at 17—was working on identifying the harmful cells that cause pancreatic cancer. We need many more like Kirtana to increase the level of care and survival rates that are so deserved by those with pancreatic cancer and their carers.
Baroness Morgan of Drefelin
My Lords, I congratulate my noble friend on securing this important debate and I declare my interest as CEO of a cancer research charity. I am also proud to be a patron of Pancreatic Cancer UK, and I am particularly proud of its work in its Campaign for Hope, which is a very important initiative. As a vice-chair of the All-Party Parliamentary Group on Cancer, I wanted to try to put together some of those interests and to talk about the work that the all-party group is doing that is important to patients with pancreatic cancer.
As we have heard, people with rare cancers are often diagnosed later and suffer poorer outcomes than those with more common cancers. I should like to thank the Government for listening to the all-party group and others for including one-year cancer survival rates alongside five-year rates for breast, lung and colorectal cancer in the NHS outcomes framework.
We believe this focus on the NHS implementing interventions that improve early diagnosis—which is key to better survival—is important. However, we must not forget that 53 per cent of people who die from cancer in the UK have a less common cancer such as pancreatic cancer. We have to ensure that improvements are made across the board and that the gap in survival between patients with less and more common cancers does not widen but starts to narrow. This is why the All-Party Parliamentary Group on Cancer has called for the one-year and five-year indicators in the NHS outcomes framework to be expanded to cover all types of cancer. I would be grateful if the Minister could provide an update on what consideration his department has given to broadening out these indicators to include less common cancers and pancreatic cancer in particular.
I would like to make a couple of points on patient experience. We know that the experience of cancer patients must improve, particularly for those with pancreatic cancer. The 2010 National Cancer Patient Experience Survey revealed that patients with rarer cancers had less positive views of their treatment than those with more common cancers. Pancreatic Cancer UK has today illustrated this further through its briefing for this debate. If we are to encourage commissioners to take action to improve this situation, the National Cancer Patient Experience Survey must be conducted annually and be included as an indicator in both the NHS outcomes framework and the commissioning outcomes framework. It would be helpful to know what progress has been made towards this.
As we all know, cancer networks have been extremely important in driving up standards in the last few years. Once the reforms are implemented, CCGs will be responsible for non-specialised cancer services while the NHS Commissioning Board will undertake specialised commissioning. For patients with rarer conditions, such as pancreatic cancer, this means that some parts of their care pathway will be commissioned locally while others will be commissioned nationally. Cancer networks play an important role in overseeing commissioning plans and ensuring that seamless care pathways for patients are delivered. Could the Minister update us on the Government’s plans for cancer networks?
I thank my noble friend Lord Aberdare once again for securing this important debate and Pancreatic Cancer UK for its vital work.
Lord St John of Bletso
My Lords, I am grateful to my noble friend Lord Aberdare for giving us the opportunity for this important and very topical debate. At a time when there have been so many dramatic improvements in the cure and treatment of cancer, it is sad and very alarming that there have been little to no such improvements as regards pancreatic cancer. As my noble friend mentioned in his alarming statistics, the situation has not improved for almost 40 years.
It is also very concerning that the National Cancer Patient Experience Survey in 2010 showed that pancreatic cancer patients have some of the worst overall experiences of all cancer patients. In my allotted few minutes today, I want to touch on just two issues: diagnostics and research. There is currently no screening test for pancreatic cancer and, given that we now know that the disease takes 10 to 15 years to progress and that there is significantly more understanding of the biological and genetic makeup of the disease, what assurance can the Government give that more funding will be made available to provide this effective test?
Secondly, I understand that most drug trials for pancreatic cancer in the UK are currently focused on testing combinations of existing drugs. Given that there have been significant developments in the understanding of the biology of pancreatic cancer in recent years, what actions can the Government take to ensure that more trials are conducted on new drugs which build on the existing research? Essentially, we need a far more radical and creative approach to pancreatic cancer. Time restricts me from speaking on the scope for more surgery, but I cannot understand why, when 20 per cent of patients are eligible for surgery, only 10 per cent have the opportunity of having it.
In conclusion, I applaud the tremendous work of the charity Pancreatic Cancer UK and its Campaign for Hope. I sincerely hope that today the Minister can give us all some encouragement that more financial research and support can be given to address this important campaign so that the UK can achieve its potential for doubling survival rates.
Lord Ribeiro
My Lords, I declare an interest as a retired general surgeon who previously operated on patients with pancreatic cancer but was wise enough to give way to more specialised surgeons of this condition.
I support the development of pancreatic cancer centres, as suggested by the noble Baroness, Lady Morgan of Drefelin, because these 28 specialist centres in the British Isles are endeavouring to improve the standard of care for patients with pancreatic cancer. However, there are marked variations between the centres, and their outcomes should be the subject of a national audit.
I join others in thanking the noble Lord, Lord Aberdare, for bringing this debate, in this short time, to highlight some of the problems that exist. The cardiothoracic surgeons have shown the way by their national survey, over many years, of cardiac surgery outcomes. For the second year they have published the National Thoracic Surgery Activity and Outcomes report. It is important that all specialist associations take part in an audit so that it is possible to compare the outcomes between different centres and, frankly, highlight the ones that are good enough and those that are not good enough, so that at least those who know that they fall outside a 95 per cent confidence limit will improve their practice, find out how to do it better, or perhaps desist, as I did.
The argument for centres undertaking large-volume surgery is now accepted, but this needs to be underpinned by proven expertise, and I would say it takes years to actually develop that, within teams, to come up to the standards. It also needs to be underpinned by good research. Resection rates as high as 20 per cent, with 2 per cent mortality, are achievable in some centres, while others report mortality of 14 per cent.
A German study found that cancer cells in the liver and bone marrow appear in some 36 per cent to 76 per cent of patients. Undetected, these patients may well be subject to surgery, only to develop recurrent disease later. Does my noble friend the Minister acknowledge that we need greater investment in research beyond the current 1 per cent of overall cancer research funding, as suggested by the noble Lord, Lord Aberdare?
Exciting new modalities involving genomics, gene therapy and immunotherapy to complement neoadjuvant therapy are in development and need support. Let us be clear: pancreatic cancer is a difficult and complex cancer. Unlike the one-stop-shop diagnosis that can be achieved for breast cancer—which, by the way, is a very visible and obvious cancer—it can take up to six weeks to investigate and diagnose pancreatic cancer in patients prior to surgery.
Commissioners of health need to understand that this is not a cheap cancer, and they need to negotiate with the providers of healthcare and make sure that the complexity and cost are taken into account when managing pancreatic cancer.
I hope that my noble friend the Minister will use the current anti-smoking campaign to draw attention to the 70 per cent increased risk of developing pancreatic cancer among smokers as compared to non-smokers.
Lord Sharkey
My Lords, in preparing for this debate, three things struck me with a special force; the first was that 25 per cent of pancreatic cancer patients experience symptoms up to 12 months prior to diagnosis; the second was that nearly 30 per cent of pancreatic cancer patients visited their GP five or more times before diagnosis; the third was the alarming fact that the disease attracts less than 1 per cent of overall cancer research funding. With regard to the first and second areas, this seems to me to suggest very strongly indeed the need for better information to be made available both to the doctor and to the patient. Will the Minister give urgent consideration to putting in place quickly a pilot campaign whose objectives are to increase awareness among both patients and doctors of the possible symptoms of this disease? I know that the Government have done that very successfully for bowel cancer.
The third area is the question of the very low level of research funding for the disease. I realise that it is not a simple matter to increase the funding for one particular disease, no matter how pressing the case may be. In many ways this is because there is an analogue of the market mechanism in operation when it comes to the allocation of research funds. That is not a criticism of what happens in a general sense; I point out only that relying on the normal processes of allocating research funding is unlikely to result in much of an increase for the rarer types of cancer, such as pancreatic cancer, in any reasonable timeframe.
That is why I ask the Minister to see if there is any way of bypassing or supplementing the normal process of funding allocation and to see if there is any way of directly intervening to generate a substantial and urgent increase in funding. I realise that this is not easy, and it is consistent with the Government’s commitment to improve the treatment of cancer in the UK and bringing our survival rates up to those enjoyed by many advanced countries.
I, too, thank the noble Lord, Lord Aberdare, for giving us the opportunity to debate this vital issue. I hope that the Minister may be able to give sympathetic consideration to the proposals that I have put forward.
Lord Kakkar
My Lords, I join other noble Lords in congratulating my noble friend Lord Aberdare on having secured this important debate. In so doing, I declare my own interest as a practising surgeon and professor of surgery at University College London, where we have an important interest in the management of pancreatic cancer.
I shall focus on four issues in the time available. The first is to explore the problem of the diagnosis of pancreatic cancer in primary care. As we have heard from noble Lords, nearly 30 per cent of patients have three or more consultations with their primary care practitioner before a putative diagnosis of pancreatic cancer is made, along with referral to a specialist for further investigation. Are there any opportunities, or have arrangements been made or strategies considered, for trying to improve the ability of those practitioners in primary care to be sensitive to the rather non-specific symptoms attending the early presentation of pancreatic cancer, so that they might improve diagnostic strategies?
The second issue relates to specialist treatment. Improving the outcomes guidance, which has driven the cancer strategy over the past 10 years, has provided an emphasis on a focus on the management of patients with pancreatic cancer in specialist centres. What proportion of patients with pancreatic cancer is being managed in specialist centres with specialist multidisciplinary teams, comprising hepatobiliary surgeons with expertise in pancreatic cancer, specialist radiologists and specialist medical oncologists, who could well be in a position to provide the best care for patients once diagnosed, in terms of both understanding how later-presenting disease might be downstaged and of course providing the best curative surgical or palliative radiological procedures for these patients?
The third area is innovation. Your Lordships’ Science and Technology Select Committee, chaired by my noble friend Lord Patel, presented an interesting report in 2008 on genomic medicine, which was widely appreciated. What arrangements have been made about the application of genomic and personalised medicine in the area of pancreatic cancer, particularly with reference to the chief executive of the NHS’s recently published review on innovation and the putative development of academic health science networks? Will these networks provide an opportunity for the early adoption of innovation that might improve both the diagnosis of pancreatic cancer and, potentially, the development of biomarkers or other personalised medicine screening tools to improve therapeutic options tailor-made for individual patients to improve their outcomes with pancreatic cancer?
How many trials are open in the National Cancer Research Institute’s portfolio of clinical trials specifically dealing with novel therapies in phase 2 or phase 3 for pancreatic cancer? What impact has the European Clinical Trials Directive, adopted some years ago, had on participation with regard to trials in pancreatic cancer? We know generally that, in our country, participation in clinical trials has fallen from 6 per cent prior to adoption of the European Clinical Trials Directive—that is 6 per cent of all patients in the world participating in clinical trials coming from our country prior to adoption of the directive—to only 1.4 per cent last year. Has the Clinical Trials Directive impacted on clinical research in pancreatic cancer?
Lord Patel
My Lords, I want to report that the All-Party Parliamentary Group on Pancreatic Cancer is in the process of being set up, supported by Pancreatic Cancer UK. It now has the necessary qualifying members and will hold its first meeting soon. I hope that noble Lords present here will join it.
I had a speech prepared, but I have changed my mind because I can tell your Lordships the story of my noble friend Lord Turnberg, who is sitting on my left. He is reported to be a survivor of pancreatic cancer but he is not. His pancreatic cancer was diagnosed in 1997 and he was operated on. I have his permission to tell you this story, so I am not breaching any patient confidentiality. It subsequently turned out that it was acute pancreatitis, which his colleagues had diagnosed as pancreatic cancer. Although that was 1997, it highlights how difficult this disease is to diagnose. Nothing has changed and many noble Lords have commented on this. We need to improve our ability to diagnose pancreatic cancer. I also have personal stories of my own family: my mother and mother-in-law died of pancreatic cancer. Both faced their disease with courage. My mother was operated on and died a few days later. The surgeon was well meaning but did not have the competence to do the complicated surgery. I once watched my professorial colleague operate with a laparoscope for 18 hours. As the noble Lord, Lord Ribeiro, and the noble Lord, Lord Kakkar, have pointed out, it requires a great deal of stamina, courage and tenacity to do surgery for 18 hours through a laparoscope.
I was impressed by some aspects of Pancreatic Cancer UK’s survey. I would like to highlight three issues. Nearly 25 per cent of pancreatic patients experience symptoms for up to 12 months prior to diagnosis. That is a difficulty in diagnosis. Survival rates are poor but, as has been pointed out, there are, importantly, great variations in survival rates across cancer networks. This needs to be explained, because we need experienced people, particularly surgeons, to look after these patients. Comments have been made about biomarkers and it is true that biomarkers are a way of screening. However, we are a long way from achieving that. Research is being done in this country and in the United States to identify a biomarker and to identify genetic variations and genetic associations of at-risk patients. There is currently funding for research—at Cardiff University there is a programme grant for research on understanding the diagnosis and the variations in results.
The timing of the debate has gone wrong—the clock indicates that I have been speaking for only .07 minutes. That is good—I have time left. I was going to finish by pressing the Minister to look further at providing a full audit of pancreatic cancer services—along the lines of the Healthcare Quality Commission’s national bowel cancer audit—not just focusing on surgery but on all aspects of pancreatic cancers. Such an audit will also help better commissioning in the future and I hope the Minister will address it.
Baroness Finlay of Llandaff
My Lords, I am grateful to the Committee for allowing me to speak in the gap. In this important debate, there has been much focus on research. However, results will take years to come through. Work on early diagnosis and necessary training will also take time. There are patients now with an advanced form of the disease, and there are patients whose disease will recur even when they have gone through treatments that put it in abeyance. Under the new contracting process, how will we ensure that patients with pancreatic cancer have access to anaesthetic intervention services for nerve blocks such as celiac blocks? How will we ensure that clinical nurse specialists work seven rather than five days a week, and that they work as part of multi-professional teams? Without expert medical back-up, the complexity of pancreatic cancer symptoms is difficult to deal with. How will we ensure anticipatory prescribing to reduce the complications of pancreatic cancer such as thromboembolism that sometimes kill patients before the cancer itself? Patients should also have access at all times of the day and night to drugs for pain relief and to combat vomiting.
Baroness Thornton
My Lords, as ever with these debates, particularly when we are disciplined by having a short time, I find that most of the questions that the Minister needs to address have been asked—some of them more than once, and certainly much more ably than I can manage. I start by thanking Pancreatic Cancer UK for its excellent briefings, and also the Library for the excellent and detailed briefing that it produced for this debate.
I will focus on two issues. One is a catch-up on research that I know was published last December and January and was featured by the BBC and at least one national newspaper. I will then ask a question about research that will amplify things. The research linked processed meat to pancreatic cancer. It was done by researchers in Sweden. The World Cancer Research Fund joined in the discussion on that research, which focused on eating red and processed meat. We knew that this had been linked to bowel cancer, but the study published in the British Journal of Cancer analysed data from 11 trials and 6,643 patients with pancreatic cancer. It found that eating processed meat increased the risk of pancreatic cancer. The risk increased by 19 per cent for every 50 grams that someone added to their daily diet. Eating an extra 100 grams increased the risk by 38 per cent.
Professor Larsson, who conducted the research, made the obvious point that pancreatic cancer has poor survival rates, so as well as diagnosing it early it is important to understand what increases the risk of the disease. Has any further research been done on the issue of the link with diet? We know that smoking, too, is a risk factor. I am thinking of the responsibility campaign on food and diet that the Government have been running. Are they using those statistics as part of the campaign on what people should or should not eat?
My second question is about research. We know that there is a commitment to further investment in research into pancreatic cancer. However, I am aware that unless the research is properly commissioned, even if the funding is there, the money will not be spent in a timely fashion. My question echoes that of other noble Lords: are the Government increasing the spend on research in this area? How will they ensure that we develop the kind of critical mass of UK talent that will enable us to deliver world-class, groundbreaking research into pancreatic cancer, as we have done in other areas?
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I thank the noble Lord, Lord Aberdare, for tabling today’s debate. I am aware that this is a very important issue for him and for countless other people and families across the country. The coalition Government’s cancer outcome strategy was published in January last year. It sets out how we will make sure that people with any form of cancer get care and outcomes as good as anywhere in the world, whoever they are and wherever in the country they live.
Probably the most important factor affecting the survival rates of any cancer is the speed with which it is diagnosed—I think all noble Lords mentioned that issue. We have addressed that in the cancer outcome strategy, and that is why we are supporting the strategy with more than £450 million over four years. This funding is part of more than £750 million of additional funding for cancer over the spending review period to support our ambitions for cancer care. On top of that, or course, a range of support is already available to help GPs assess when it is appropriate to refer patients for investigations for suspected cancer, such as a NICE referral guideline. However, we can do more to support them.
Cancer Research UK and the National Cancer Action Team are working together to develop a new GP engagement programme for the coming years that will allow them to increase awareness and improve training. This will all help diagnose cancer cases earlier. I can say to my noble friend Lord Selborne that Professor Willie Hamilton is currently developing a risk assessment tool to support GPs in the investigation of pancreatic cancer.
The noble Lord, Lord Aberdare, asked if the National Awareness and Early Diagnosis Initiative could do some specific work on pancreatic cancer. Our cancer outcome strategy says that we will work with a number of charities linked with rarer cancers. There have already been meetings with several, including Pancreatic Cancer UK and Pancreatic Cancer Action, to see what more might be done to diagnose these cancers earlier. The Government’s future work on pancreatic cancer will be informed by what we learn from those charities.
I am aware also that Pancreatic Cancer UK is hosting an early diagnosis workshop in June. The National Cancer Director, Professor Sir Mike Richards, my honourable friend the Minister of State for Care Services and officials from NAEDI will be attending. The workshop will be looking at practical steps that can be taken to help GPs and secondary care health professionals diagnose pancreatic cancer at the earliest stage possible. We look forward to receiving the findings of the workshop.
My noble friend Lord Sharkey and the noble Baroness, Lady Warwick, talked about the possibility of awareness campaigns. Decisions on campaign work in this financial year will be based on the evidence from the pilots that we have run regionally in 2011-12. To further address the need to improve awareness of rarer cancers such as pancreatic cancer, consideration is being given to piloting a symptom-based awareness campaign based on covering multiple cancers. We are talking with stakeholders, including rarer cancer charities, about that work.
Once pancreatic cancer is diagnosed, patients need to have access to appropriate and consistent treatment, delivered to a high standard, across the board. I am aware that there are variations in survival rates across the country and across cancer networks. Pancreatic Cancer UK’s Study for Survival 2011 confirmed that. Quite simply, it is not good enough and it must change. That is why we are providing data to help the National Health Service tackle regional variations. For example, the National Cancer Intelligence Network has made available data collections on survival rates and surgical resection rates across a range of cancers, including pancreatic cancer. These data will allow providers and commissioners to benchmark their services and outcomes against one another and to identify where improvements need to be made. They will then be able to channel resources into improving services in the areas that need to be brought up to an acceptable standard.
The noble Lord asked whether we would develop an audit of pancreatic service and care. The National Advisory Group on Clinical Audit and Enquiries recently considered a proposal for an audit of pancreatic cancer as part of the National Clinical Audit and Patient Outcomes Programme. I understand that the proposal was not recommended for inclusion in the national programme. However, the advisory group suggested that elements of the proposal could be taken forward as part of the existing bowel cancer audit when this is retendered in 2012. I will ensure that this option is considered when the department reviews the existing arrangements for the bowel cancer audit later this year.
In Improving Outcomes: A Strategy for Cancer—First Annual Report, published in December last year, we said that continuing to provide the NHS with benchmarked data,
“as a lever for improvements”,
is a priority for 2012.
Of course, a hugely important element in all this is the patient experience, to which the noble Baroness, Lady Warwick, referred. In December 2010, we published the report of the 2010 cancer patient experience survey, which recorded the views of more than 67,000 cancer patients across 158 trusts. The survey showed that 90 per cent of patients with an upper gastrointestinal cancer, which includes pancreatic cancer, reported having a clinical nurse specialist. The survey also showed that cancer patients who had support from a clinical nurse specialist had a better overall experience of care. We expect the National Health Service to consider this in developing its policies to improve patient experience. A 2011 survey is now in progress. We will be looking closely at the results of the survey to see where improvements have been made and where more needs to be done.
Research featured large in this debate, including in the speeches of the noble Lord, Lord Aberdare, my noble friends Lord St John of Bletso and Lord Sharkey, the noble Lord, Lord Kakkar, the noble Baroness, Lady Thornton, and others. The National Institute for Health Research is making a significant contribution to the search for scientific breakthroughs in pancreatic cancer. The institute’s clinical research network is currently hosting 17 studies of pancreatic cancer and is recruiting patients as we speak. In August 2011, the Government announced £6.5 million of funding for the Liverpool biomedical research unit for gastrointestinal disease. About half this investment will support pancreatic cancer research. The NIHR clinical research network, as mentioned by the noble Lord, Lord Kakkar, is currently hosting 17 trials and other well designed studies in pancreatic cancer that are recruiting patients. In 2010-11, a total of 687 patients were recruited to pancreatic cancer studies hosted by the CRN. The National Cancer Research Institute’s upper-gastrointestinal clinical studies group is dedicated to developing a portfolio of research studies in pancreatic cancer, and has a pancreatic cancer subgroup, which has developed a number of internationally run trials. That is a cause for some encouragement.
The noble Baroness, Lady Thornton, referred to the research involving processed meat. She is right; Swedish research published in the British Journal of Cancer in January 2012 said that two rashers of bacon or one sausage a day increases the risk of pancreatic cancer by 20 per cent. There is also a link with bowel cancer. The department urges everybody to have a balanced diet. As with other forms of cancer, higher consumption of fruit and vegetables seems to be protective, but I will write to the noble Baroness if I have any further information on that subject.
The noble Lord, Lord Aberdare, referred to new cancer drugs. Our priority is to ensure that cancer patients get the drugs that their doctors believe are best for them. We have delivered on our promise in the coalition agreement for a cancer drugs fund, with £650 million, all told, devoted to it. This funding has so far helped more than 12,500 cancer patients in England to access the cancer drugs that their clinicians recommend. We have listened to feedback on the first year of the fund’s operation, and today are publishing new guidance on the cancer drugs fund, which will further speed up access for patients. The new guidance makes it clear that patients will not normally need to go through the primary care trust funding processes prior to applying to the fund. In most cases, it will mean that patients are able to access drugs within a matter of days of an application being made to the fund. In the longer term, our intention is to introduce a system of value-based pricing for new drugs, with the aim of enabling patients to have greater access to effective and innovative new medicines. The whole premise of value-based pricing is to ensure that the price of a drug will be linked much more closely to its assessed value. It will bring the price that the NHS pays more into line with the value that a new medicine delivers.
My noble friend Lady Jolly asked about that. She also asked about mechanisms in the Health and Social Care Act that might assist cancer patients. The main mechanism is the outcomes framework, which will of course pervade everything that the NHS Commissioning Board does in the way of commissioning guidance, and will inform the way that the commissioning outcomes framework is developed. She also asked about engagement with the royal colleges. Ministers are currently meeting representatives from the royal colleges on education and training—I do not think on pancreatic cancer specifically but certainly on the training of doctors.
The noble Baroness, Lady Morgan, asked me a number of questions. The NHS outcomes framework— I pay tribute to the work of the All-Party Group on Cancer over a number of years—will be updated annually to ensure that the most appropriate measures are used for comprehensiveness, while recognising that we need to keep a broad continuity of indicators year on year. The refreshed NHS outcomes framework 2013-14 will be published alongside the mandate in the autumn. To support the ongoing development of the framework, we are in the process of establishing an independent technical advisory group that will provide advice to the department and the board about current indicators and proposals for new ones.
The noble Baroness asked about the national cancer patient experience survey. With the leave of the Committee, as there is a small amount of time left I propose to utilise it, unless there are any objections. In the first NHS outcomes framework we explained that the approach to Domain 4, which is patient experience, was evolutionary and the initial set of improvement areas for this domain was drawn from existing nationally co-ordinated surveys or from surveys that would be available in 2011-12. Collectively, the improvement areas aim to achieve wide coverage of the interactions that people have with the NHS and focus on different features of patient-centred care. Future work will involve refining surveys and developing new questions and measures to allow existing indicators to be replaced over time as necessary.
With regard to cancer networks, we have already made clear that there is a role for clinical networks such as cancer networks in the reformed NHS, as a place where clinicians from different sectors come together to improve the quality of care across integrated pathways, and the cancer networks are a clear example of how that way of working delivers better quality. That is why the Secretary of State announced last May that we would continue to fund cancer networks this year and that, subject to legislation, the Commissioning Board will support strengthened cancer networks.
The noble Lord, Lord St John of Bletso, asked about quality standards. There is no intention to produce a quality standard for pancreatic cancer as such, but in future there will continue to be flexibility in the library of quality standards to take account of new and emerging priorities, should such need arise.
Our ultimate goal is to improve survival rates and the quality of life for those living with all cancers, including pancreatic cancer. There are many challenges to be overcome but they are not insurmountable. Because of the Health and Social Act, clinical commissioning groups will be free to pursue innovative ways of delivering care that bring better results for all patients, including those with pancreatic cancer, and NHS provider organisations will have the operational independence to determine how best to meet the needs of commissioners.
We have set five ambitious but measureable goals: to prevent people from dying prematurely from cancer; to improve the quality of life for people with cancer; to help people recover from episodes of ill health; to improve the experience of care; and to ensure that all patients are treated and cared for in a safe environment. We will continue to deliver on those goals.
Lord Patel
I am not sure if it is in order for me to do this, but I know that whatever the Minister says is taken as gospel, and he quoted a study from Sweden about the association of eating meat with pancreatic cancer. I do not know about the quality of that study, but it sounds surprising that that amount of meat-eating increases the risk of pancreatic cancer by 20 per cent. I presume that he was talking about relative risk, not absolute risk.
The Deputy Chairman of Committees (Lord Geddes)
The Grand Committee stands adjourned until 4.30 pm, or indeed there may be a Division during that time, in which case it will be 10 minutes from the time when the Division is called.
Housing: Flats
Baroness Gardner of Parkes
To ask Her Majesty’s Government what proposals they have with regard to residential service charges and other matters affecting leasehold blocks of flats.
Baroness Gardner of Parkes
My Lords, I have declared my interest in the register as a long-standing leaseholder. Having always seen the leasehold situation from a personal point of view and how I have been affected by changes, I had not appreciated that it is a vast subject which affects over 2 million people in the UK—half a million in the capital alone pay more than half a billion pounds annually in service charges. This March, the London Assembly produced Highly Charged, an 80-page report on residential leasehold service charges in London. The foreword states,
“the complexity of the service charges regime comes as a shock”,
and looks, in particular,
“at the way the transparency of service charges can be improved and leaseholders can be given greater control over the way services to their homes are provided”.
I urge your Lordships to study this report and the Lords Library briefing pack, most capably prepared by our Library staff, in detail.
There are many different issues in leasehold. Here is a brief list of some of the key ones: simplification of the law—a consolidation Act; regulation of managing bodies; transparency—complaints processes; closing loopholes—protecting leaseholders’ rights; easier change to commonhold; right to manage—tenants’ associations; standard of services—value for money; exit or transfer fees; and financing home ownership.
Regarding simplification of the law, many people who buy leasehold property have no idea what is involved. They are looking for somewhere they can afford to live and, generally, their focus is on buying the flat. They look at the service charge for that year but many will not be looking at this going up or at large capital outlay in the future for block repairs—these are often nasty surprises. They expect to be able to rely on managing agents—normally appointed by the freeholder or some other tier of landlord—to act fairly on their behalf. The leaseholder is always at the bottom of the pile.
As Act after Act has constantly altered sections in earlier Acts, ordinary leaseholders—and even lawyers—find it difficult to navigate through the morass of legislation covering leasehold in England and Wales. There is real need for a Consolidation Act and I support the views of the Federation of Private Residents’ Associations as set out in their paper Forgotten Leaseholders.
There is a strong call for regulation of managing bodies. I am ambivalent on the point as the necessary changes in the law are far greater and a Consolidation Act which could clarify and simplify would be better. Regulation may be a helpful first step. The Government do not seem to have sufficient data on the working of leasehold law. For instance, in 2009, the British Property Federation wrote to the then Government stating that it fully supported better regulation, yet it is often quoted by Ministers as opposing regulation. Sections 152 and 154 of the 2002 Act were due to be in force by now but the Government have not implemented these protective clauses. Residential tenants’ deposits are protected by the law but the much larger amount, the leaseholders’ money held by managing agents, has no protection.
Transparency, a major news topic in recent weeks, is vital in the matter of service charges, works and repairs. Leaseholders are entitled to know how their money is spent and to be confident that they are getting what they have paid for. Shocking cases of massive overcharging have appeared in the press. In 2011, the Daily Telegraph on 3 December and the Mail on Sunday on 11 December published reports. There was a September case settled almost on the doorstep of the leasehold valuation tribunal where residents of St George Wharf, opposite Parliament, had received a refund of £1 million after a battle that went on for some years.
In the Charter Quay case against the same landlord, Mr Tchenguiz, in December, the leasehold valuation tribunal found that many interconnected companies were entering into contracts with other Tchenguiz family-owned companies and in that case received an excessive commission of 23.5 per cent for insurance. The chairman said:
“The result of entering these contracts has been extremely damaging financially, because the break clauses are so onerous”.
Peverel, the management company owned until recently by the Tchenguiz family, had a very poor record of dealings with its leaseholders.
There are too many cases where intermediate landlords or management responsible for arranging services such as insurance have agreed contracts which mean that they are pocketing money themselves to the detriment of their tenants. Transparency is necessary to reveal these situations and stop this abuse. The organisation Leasehold Knowledge Partnership is actively working to ensure good practice.
Easier change to commonhold was included in the 2002 Act and it is sad that so little commonhold has been developed since. It is so clearly in the interest of the resident. It gives people real ownership of the home in which they live. It should become government policy to facilitate commonhold. The 2002 Act allows leaseholders to convert to commonhold, but only if they are 100 per cent in agreement on the matter. That is an almost impossible percentage—just one flat can thwart it. Reduction to a simple majority would make a great difference. When residents see the benefits, as I have myself in my homeland, they would appreciate the great advantages of such a system. I support the views in favour of commonhold held by CARL, the Campaign for the Abolition of Residential Leasehold.
The right to manage and tenants’ associations can each be very beneficial. The difficulty arises in getting sufficient leaseholders in a block to agree on any option. This is particularly difficult in cosmopolitan areas where many tenants live only part time or property is in foreign ownership. At least some residents have to be willing to take on the work of handling contact with the relevant landlord or managing agent and this takes time and effort. There is no right to manage available if more than 25 per cent of the building is in commercial use. Procedures and percentages merit reconsideration.
My housing experience in GLC days showed me that the number of people willing to take on such a role on a voluntary, unpaid basis is very small and the work can be very demanding. A reputable managing agent has sent me interesting views about the need to train leaseholders to improve their knowledge of the system and obtain certification for this. He favours advisory bodies, alternative dispute resolution and mediation. He states that,
“many disputes could be avoided through early consultation”.
In an ideal world, he would be right, but many leaseholders find that whatever attempts they make fail to produce any response or necessary action from their managing agents. Agents change but are no better. Where routine inspections and long-term maintenance planning used to be the norm, little, if anything, is done now.
As regards loopholes, there is evidently a defect in the leasehold Acts. Some process exists whereby a landlord can avoid the obligation of offering their interest to the leaseholders in a block, by setting up what I think is called a sister company. In my block this has produced a very bad result for leaseholders who would, I believe, have wanted to buy in that head lease. It is wrong that we did not have the opportunity.
Exit or transfer fees have a very adverse effect on older people who wish to move to a retirement village home and when the time comes to move, perhaps to a care home. They find themselves faced with quite a high charge. This is often money that they need. If they have died, their family find that the property might be almost impossible to sell because of the high charges. This certainly needs to be looked at. It has a doubly bad effect in housing terms. Older people living in a house too large for them and who are keen to move to a sheltered housing facility are deterred from doing so because they have such a financial disincentive. This means that a large property is underoccupied and unavailable for a family in need of that size of accommodation. I support the Campaign Against Retirement Leasehold Exploitation—CARLEX.
As to financing home ownership, bridging finance—so common years ago—was short-term money advanced by a bank or building society to enable you to secure the home you wished to move to, and to give you time to sell your present home. This enabled people to move up or down in accommodation size or location, and it worked well. Today, lenders are clear that no such type of finance is available at all.
After a recent housing debate, the noble Lord, Lord Best, told me that Hanover Housing Association, of which he is the chairman, offers an older person the right to move into appropriate accommodation and gives them two years within which to decide whether they are happy and want to buy and stay, or to return to their original home. I find this a marvellous system. It should be more available.
Recently, I was involved in trying to help someone who wanted to buy a flat in a high-rise former council block—
The Deputy Chairman of Committees (Lord Geddes)
With apologies to the noble Baroness, a Division has been called in the Chamber. The Grand Committee stands adjourned until 4.51 pm.
Baroness Gardner of Parkes
I will repeat the first sentence of my paragraph: otherwise, it will not hang together. Recently, I was involved in trying to help someone who wanted to buy a flat in a former council block that had been bought under the right to buy. Application for a mortgage with a high-percentage deposit was approved in principle by the bank, and a valuation fee paid. The valuation report attached a zero value to the flat. Thinking that this must be an aberration, the prospective buyer went through the same process with another bank and got exactly the same response: the value was listed as nil. A valuer’s note said that no one was willing to lend on blocks that had a past or present connection with a local authority, particularly if they were high-rise. The two banks had been willing to offer terms, but neither would do so with a zero on the valuation report. Several other banks said that they would not offer mortgages on any high-rise blocks. The policy of Barclays is not to lend on property above four floors, with the exception of expensive new buildings such as One Hyde Park—and, I suppose, the Shard.
The implications of this are wide, particularly at a time when the Government are keen for more people to buy the flat in which they live. I sent details of the case to the Minister for Housing on 8 March, pointing out that people need to be able to move on if their circumstances change and they need larger or different accommodation, and asking who would want to buy if they were locking themselves in to a totally illiquid asset. His reply of 30 March stated that he had,
“contacted HM Treasury and they have agreed to accept responsibility for this correspondence”.
The acknowledgement card from the Treasury was dated 28 March. I await a reply. I hope that my response will be swifter than that to the consumer group Which? It has not yet had a reply from the Minister for Housing to its letter on leasehold property charges sent last October. I received the Which? article only today. I have no time to comment on it but I hope that other noble Lords may do so.
As I followed up on the high-rise case I was most impressed by how well blocks were managed by the local borough—a point made in the London Assembly report. The standard of consultation with tenants and of explanation of the work done was very clear, and far above anything that I had seen in private blocks. There are lessons to be learnt.
My brief time has run out. All I have been able to do is list some of the issues. They are complex and far-reaching, and affect many people. We all want to live in a fair and just society. We do not want to spend hours and days trying to get things done that should be done routinely and correctly. Having to complain, let alone having to do it formally through tribunal proceedings, is a slow and laborious process. Life does not need complication but simplification, and above all clarity. The issues need to be studied in detail for the benefit of all. I hope that the Government will consider the many points that I am sure your Lordships will raise today.
Baroness Maddock
My Lords, I should declare an interest: I am a vice-president of the Local Government Association. We should all be very grateful to the noble Baroness, Lady Gardner, for securing this debate on this very important subject. I am only sorry that it is such a short debate. I am sure that all of us have been paring our words, having been inundated with information.
There are 1.5 million leasehold homes in Great Britain. This means that between 2 million and 3 million people are living in long-term leasehold properties. As the noble Baroness, Lady Gardner of Parkes, showed—and as other speakers, too, will show—there are still considerable problems for those with homes in this sector. This is despite the many Acts of Parliament that have covered leasehold tenure, going back half a century. There were Acts in 1967, 1985, 1987, 1993 and, most recently, in 2002. I was involved in the 2002 Act and was surprised to realise that it was 10 years ago. There is much agreement, I think, about the need for helpful reform of leasehold across the parties. However, it is a complicated area, as we have already heard, and there is less agreement about how to make this reform a reality, and a reality that works.
The leasehold system that we are discussing today is almost a uniquely Anglo-Welsh system. The rest of the world has developed alternative approaches, to which the noble Baroness, Lady Gardner, alluded in her opening comments. The problems in the leasehold sector persist in large part because our present system is one of high legislation but low regulation. At the heart of most of the problems is the fact that the interests of the leaseholder—the one who usually has the most financial, practical and emotional investment in a property—are all too often excluded. As the noble Baroness, Lady Gardner, has pointed out, the balance of power between the freeholder and the leaseholder too often seems to be to the advantage of the freeholder. Furthermore, the root of many problems is that lessors are excluded from management decisions despite the fact that they are the people paying.
There is no independent or compulsory regulation. This situation allows unscrupulous and incompetent managers to continue operating and undermines the influence of those living in managed properties. The lowest source of redress for leaseholders is the land valuation tribunal, but it is often lengthy, expensive and bureaucratic. It is particularly detrimental for poorer households. Many living in leasehold properties are retired; in fact, more than a third of leasehold flats are occupied by economically inactive people—I believe that the noble Baroness, Lady Greengross, is going to talk about people in retirement and the problems that they have. In the short term, the existing infrastructure could be improved by focusing on levering in the interests of all leaseholders to the management process, with a compulsory ombudsman service, and improving the management of leasehold properties through licensing. This would incur some costs for leaseholders, and it would create limited hurdles for those entering as managing agents, but I feel it would improve the value and quality of the service. Greater leaseholder empowerment could be promoted by the Government taking steps to encourage the process of right to manage and the long-term expansion of commonhold.
Since 2002, complaints about managing agents have risen sharply; in fact they have more than quadrupled in the past 10 years. The number of people living in leasehold properties is growing. The Government are committed to unlocking the housing market, and leasehold properties will be an important part of this. We know that they will be particularly important in London, where the majority of new homes will be leasehold flats. In addition, the Government plan to reinvigorate the right to buy for social housing, and this is already creating more leaseholders. Surely leasehold reform should be a priority alongside increasing the housing supply. I am aware that the Housing Minister, Grant Shapps, has stated that the interests of freeholders and managing agents are balanced and that reform should be driven by a more proactive approach from the sector, not by greater regulation. However, it is clear that there are severe problems for leaseholders, and, as voluntary regulation allows companies to operate completely outside any regulatory regime, such problems will continue unless some action is taken.
The noble Baroness, Lady Hanham, who is here today, took part in debates on the 2002 Act, as perhaps did others in the Chamber. I do not know whether the noble Lord, Lord Best, was here at the time, but the noble Lord, Lord Rooker, was then the Minister. I can still hear him saying that the local valuation tribunals would improve matters for leaseholders. However, they are proving costly, lengthy and bureaucratic. What monitoring have the Government done of the operation of local valuation tribunals, and do they have any plans to improve the operation of the tribunals? What research have the Government undertaken on the take-up of commonhold? In 2002, it was supposed to take over from the old system, particularly for new build. I understand from the statistics that that just is not happening. People prefer to go to the old system. What are the Government planning to do to assist the take-up?
I conclude by saying that we have regulation across various areas where there is competition and the regulation is often there to try to look after the interests of consumers. We have not done that properly for leaseholders, and that is one of the best arguments for looking seriously at how we can regulate in the interests of leaseholders. I hope that this short debate this afternoon will assist the Minister in trying to bring home to the Housing Minister, Grant Shapps, how important this is if he really wants to ensure that we have more affordable homes for people.
Baroness Greengross
My Lords, I start by congratulating the noble Baroness, Lady Gardner, on securing this debate. It is a very important issue. I declare an interest as president of the Association of Retirement Housing Managers. I just want to make a few points about older people in retirement leasehold schemes, as the noble Baroness, Lady Maddock, suggested I might.
I start with the resolution of conflict situations, and there are quite a lot of them. As someone who for many years headed a charity which set up a mediation scheme for people in leasehold housing schemes, I was aware of the conflict. It is difficult, not least for the providers of schemes, who are dealing with people who are often prepared to spend 12 or more hours a day focusing on those issues and who can make amazing barrack-room lawyers—I do not want to be insulting—because they have so much time to concentrate on that. So it is a difficult as well as an important issue.
The industry might be better served in conflict resolution by stronger regulation through an independent regulatory body or, in the absence of that, some form of self-regulation underpinned by guidelines and codification—the sort of thing that the Association of Residential Managing Agents has proposed and supports. That is worth considering. To help residents avoid costly litigation processes, perhaps the Government could implement a dispute resolution structure based on compulsory mediation as a first step, as recommended by the London Assembly report on service charges. That might be helpful. We know that increased clarity is required on what is included in the annual service charges, what is not, and what is retained in reserve for contingency funds and what precisely those funds cover. People are often greatly lacking in knowledge about that.
On other charges, we know that the Office of Fair Trading is currently investigating transfer fees, which are payable to the landlord by the owner or their family once the property is sold. The level of fees is set out in the original lease, but the scale of the fee varies widely between property companies. Would the Government consider a scaled fixed fee of some sort, which might be helpful? There also appears to be some ambiguity on the issue of the house manager flat rental, charges for which are levied with the service charge. If people are dissatisfied with that charge, it is not entirely clear what can be done to resolve the issue. Might part of any new guidelines help to address that, and will landlords as well as management companies be expected to sign up to codes of practice which would cover allied issues such as the placement and cost of buildings insurance and any associated premium commission, which require a consistent and open approach across the industry?
Finally, older residents in retirement housing are much more likely to experience unforeseen events, such as a decline in health status or the death of a partner, than younger people and that might mean that they have to change accommodation or—more likely—have to make adaptations to their accommodation fairly rapidly. Codes of practice should include provisions to help older people and their families in those circumstances and to consider the additional provisions they may make to help older people in particular.
Housing designed for older people whose needs change as they age faces an almost built-in conflict of interest. They need more services as they age, so the costs are going to rise as more care is provided. Their income tends to be less over the years. They wish to reduce the cost but they need more services. Older and frailer residents are more costly, so when residents manage the schemes themselves they may wish to sell to active, fit and therefore younger people. There is a conflict in what extra-care housing is intended to do. It is there so that as you get older and, perhaps, more frail, the services increase to meet your growing needs but if only younger, fitter, stronger people are invited into a complex you are almost defeating the object. I do not know if this problem can be solved but it is there unless people massage the criteria for entry into this sort of housing. This is sad but it presumably happens from time to time.
These are issues which the Government and Members of your Lordships’ House who are expert in this sort of thing need to consider carefully.
Baroness Miller of Chilthorne Domer
My Lords, I, too, congratulate the noble Baroness, Lady Gardner of Parkes, because this is an enormously important issue. As she rightly said in her extremely good introduction, when people are looking at these flats they are just looking for something they can afford. They are not looking in great detail at the implications of becoming a leaseholder. I must declare an interest, having become a leaseholder in Kennington in 2002. What I say this afternoon is not because I am an expert but because our block is a microcosm of the issues raised by noble Lords in this debate. We have had the issue of residential service charges which have not gone up as much as some that I have read about but have nevertheless seen a steep increase.
In terms of capital repair charges, this year we have had a projection several years forward. As our managing agents have said, this is the first time ever for this and it is a terrific breakthrough. If there were going to be regulations, a five- or 10-year forecast should be obligatory and would help tremendously. Last year, the surcharge for external works was £2,000 on a two-bedroom flat. That is a huge amount when it has not been foreseen more than 12 months before. Not many people can just find £2,000 in a year.
If you happen to want to sublet your flat, there are charges for assignment of leases. This is an issue because if someone is marginal about subletting it might put them off. At a time when accommodation is at such a premium, we want to make sure that those charges are at least proportionate to the work done. I have come across charges for assignment of a lease where it was going to someone who was already a tenant in the block and was simply moving flats, so the taking up of references was pretty academic.
The issue of insurance was highlighted in the London Assembly report. Interestingly, it highlighted terrorism as one of the unnecessary things to insure against. Many insurance companies discount terrorism as something that you can insure against. However, in preparing for today’s debate I went back to the budgets for the block in which I live, and there was a £5,000 a year charge for insuring against terrorism. That is against the background of a number of restrictions. You cannot keep pets, you cannot keep bikes in your flat, you cannot have wooden floors and you cannot hang out washing. Perhaps all the prohibitions are reasonable. At least when we took on our leases we were aware of them.
What made the biggest difference over the decade was the revival of the residents’ association under the chairmanship of somebody who devotes a vast amount of time and energy, entirely voluntarily, to making the sorts of improvements that we should expect good regulation to make. She has made, single-handedly, a tremendous difference to the accountability of the management company. She has made it more transparent by asking lots of questions and then informing us on the structure of the freeholder and the management company, on the relationship between the two, and on the trustee whom the management company appoints. If anyone was going to speak this afternoon it should have been her, because she is a truly great expert on this. She also managed to end the perhaps unintentional divide-and-rule culture of the management company, whereby leaseholders did not come together to take on the management company over issues. Giving information about issues, and getting a consensus among leaseholders on how to resolve them, is tremendously important.
Given how difficult it is at the moment to form a residents’ management association, I hope that the Government will give at least some thought to making it easier to form one. Beyond that, I hope that they will give some thought to giving more resources to residents’ associations. I do not mean that the Government should give the resources. Perhaps the service charge could be top-sliced to give residents associations a minimal amount of funding to bring leaseholders together. That is the start point that is so difficult to achieve with no resources and few people willing to volunteer their time. If the issue is one of the David and Goliath—which is what it feels like most of the time for the management committee and the chairman of the committee—we should give a few stones for David to hurl at Goliath with his catapult. That would make an enormous difference. If we achieve anything as a result of this debate it should be in that direction.
Lord Best
My Lords, I, too, am very grateful to the noble Baroness, Lady Gardner of Parkes, for initiating this important debate on the management of leasehold flats. Since I agree with virtually everything she said, and virtually everything that everybody else said, I will not dwell on those points.
Since most leasehold property is managed by managing agents, we need to consider whether the current arrangements are satisfactory in ensuring that they do a good job. I declare my interest as chair of the property ombudsman TPO, which handles complaints by tenants and, significantly, by landlords about managing agents. I feel able to speak in this debate despite my interest because the property ombudsman TPO is principally concerned with estate agents that handle sales, where 95 per cent of agents are members, and managing and letting agents that handle rented properties, where the TPO accounts for some 60 per cent of the sector. There is another ombudsman service, quite separate from us, that handles the great majority of complaints about agents who look after leasehold property.
On ombudsman services in general, the resolution of disputes without the need to go to the courts, or in this case to take matters to tribunal hearings, has considerable advantages. Ombudsmen are not champions of consumers any more than they are on the side of providers. They must be entirely independent of both. They can in that capacity not only resolve disputes in individual cases but play a significant role in raising standards in an industry. For example, complaints against estate agents in relation to property sales have fallen, and the level of awards that agents have been required to pay has also fallen over recent years. It seems very likely that the pressure and publicity from the work of the property ombudsman in judging the behaviour of agents against a clear code of practice contributed significantly to this improvement.
Throughout their professional bodies, and in professional and trade magazines and journals, there is constant reference to the standards to be expected of agents in treating with consumers. Where the ombudsman's decision leads to an offending agent being expelled from the scheme, local publicity has a powerful impact. The ombudsman cannot deal with the more extreme cases, not least because his powers are limited to making a maximum award of £25,000 in the case of the TPO, and some matters must still go to the courts. However, the ombudsman service means that huge numbers of disputes can be resolved at low cost—indeed, at no cost to the complainant.
I recognise that there can be additional complications for leaseholders. An individual leaseholder may be insistent that the managing agent should take action, perhaps in accordance with their contractual agreement, where the cost of the agent doing so may mean that the management company, comprising the residents who will all have to pay, is not so keen for the managing agent to proceed in this way. In other words, there may be three parties engaged in a dispute: the individual leaseholder, the leasehold management company and the agent. This will require additional sorting out. One hopes that such cases are in the minority, and I would advocate much greater use of the existing ombudsman service to settle disputes and to raise standards for residential leaseholders.
We know that the Government are not keen on any new regulation in the private rented sector. The property ombudsman has argued for the same requirements on managing letting agents as exist for estate agents under the Consumers, Estate Agents and Redress Act, which would make it compulsory for all agents to belong to an ombudsman scheme. In the absence of such legislation, it seems that we must rely on voluntary action by agents to join an ombudsman scheme. The advantage to the agents will be that as consumers become aware of the difference between agents that belong to an ombudsman scheme where they can get their disputes addressed and agents that are outside such schemes, the market will ensure that few agents remain beyond the pale. In the private rented sector, a number of agents have got together with the National Approved Letting Scheme, and with the professional bodies representing agents, to launch a safe agents scheme that in particular requires all agents to have client money protection insurance. A publicity campaign by bodies representing leaseholders, such as the Federation of Private Residents’ Associations, to ensure that leaseholders choose only agents that belong to an ombudsman scheme, would certainly help to raise accountability and standards.
I will also comment on the practices surrounding payments that are required of leaseholders or their successors when they leave or die. Some contracts in retirement housing stipulate payments to the freeholder, and these exit fees have been the subject of serious complaint. Here I declare an interest as chair of the Hanover housing association, which has taken on the freeholds of several thousand leasehold retirement flats. From this I know that practices in the sector can vary from the good to the bad. At the positive end it can be beneficial to offer to occupiers the option that some part of the service charge—usually that covering the building up of a provision for major repairs, the replacement of lifts and so on—should be deferred until the occupier leaves. This will mean that every month those on tight incomes will have more spending money, and the accumulated service charge will come out of the sales proceeds when they leave or die.
At the other extreme are cases of small print where the occupier—or their heirs and successors—is required to pay 5 per cent of the sales proceeds to the freeholder in return for no discernible benefit. There have been complaints that purchasers did not understand such requirements buried in their contracts. The Office of Fair Trading looked at these questions, and it would be helpful to have an update from the Minister on the action that the OFT intends to take—not to throw the baby out with the bathwater but to clamp down on unfair and misleading contractual arrangements that are discovered. Although I recognise the Government’s aversion to statutory regulation, will the noble Baroness comment on the value of extending the role of ombudsman services?
Lord McKenzie of Luton
My Lords, like other speakers, I thank the noble Baroness, Lady Gardner of Parkes, for the opportunity to reflect on a particular aspect of housing policy and I am grateful for the briefings that we have had. I start by declaring an interest because I am, jointly with my wife, a long leaseholder of a flat in London. This debate has, if nothing else, spurred me to be more diligent in reviewing the paperwork.
As others have said, issues of residential leaseholders touch on a particularly complex area of legislation. The noble Baroness has previously sought a view from the Government about whether they will consolidate landlord and tenant legislation and was told, back in November, that there were no plans to do so. However, that exchange at Question Time brought forward suggestions that the matter might be referred to the Law Commission. Has anything been taken forward in this respect? In the same exchange, the Minister indicated that a wide range of housing regulations were being looked at as part of the red tape challenge. How is that progressing, which particular regulations are being reviewed and what areas are being looked at? In a further exchange on 17 January, the noble Baroness, Lady Hanham, reaffirmed that there were no plans for a wide ranging review of leasehold law, but indicated that the Government were keeping a watching brief and would not rule out making changes. Have any changes currently been ruled in?
Issues of leaseholders are just one part of the housing problems facing our country and, to be frank, are not the most pressing. House building has fallen by 11 per cent in the first 18 months of the coalition Government, private sector rents have risen and are unaffordable for too many and home ownership has declined as people struggle to get mortgages. We know that the Government have set their face against further regulation, scrapping Labour’s plans for a national register of landlords and regulation of letting and managing agents. This is at a time when some of the most vulnerable are having their housing benefit cut and are being directed to the cheaper and shabbier end of the private rented sector. Nevertheless, the issue raised by the noble Baroness is important and, as others have said, is likely to be of increasing significance if more blocks of flats are built, shared ownership schemes are promoted and—as the noble Baroness, Lady Maddock, mentioned—the Government attempt to reinvigorate the right-to-buy programme.
It is not just private sector freeholders and landlords who are involved with leaseholders. Some quite outdated ARMA data from 1998-99 suggests that 20 per cent of landlords are social landlords. The same survey suggested that less than half of leasehold flats were using a managing agent. Can the Minister update us on those data? I do not have time to cover it today, but there were issues about social landlords, leaseholders and the implications for decent home standards where a lot of money was being applied by local authorities to upgrade their stock and the implications of that for people who had bought a flat.
It must be acknowledged that this area is not entirely unregulated. The law requires consultation with leaseholders before works above a certain value can be carried out; demands for service charges must be in writing; there is an expectation under the law that service charges are reasonable and there is a right for landlords and leaseholders to seek a determination from a leasehold valuation tribunal. Leaseholders are entitled to a summary of service accounts and to inspect documents. Service charge funds are deemed to be held on trust but do not have to be held in separate trust accounts: thereby hangs a problem. However, as I understand it, where there is a residents’ management company or a right-to-manage company, service charge moneys are subject to a statutory trust.
Apart from the law, managing agents who are members of RICS or ARMA—the Association of Residential Managing Agents—are required to adhere to the RICS code of conduct on service charges for residential management. There is a separate code for retirement housing managers. New best practice guidance has been introduced by the RICS in co-operation with the accountancy bodies, in the face of the Government’s refusal to implement what was previously proposed. Is that considered fit for purpose, and will the Government reconsider giving it some statutory backing?
Despite the voluntary code, as we have heard and seen from our briefings, difficulties abound. Barriers to the managing agent industry are low; and not all managing agents belong to the RICS or ARMA schemes and are therefore not bound by the code. There are no ombudsman arrangements to which all managing agents are required to adhere, and the noble Lord, Lord Best, made a powerful argument to change that. It has been suggested that some of the difficulties arise from the essential imbalance of power between freeholders and landlords on the one hand and leaseholders on the other—the David and Goliath syndrome. Notwithstanding this, it would seem that some of the conflicts arise because insufficient attention is paid when a lease is entered into or required in the first place.
The London Assembly report suggests a requirement for more specific advice at the point of agreement. Estimates of service charges for the next five years, I think, were suggested in that case. It was interesting to hear the experience of the noble Baroness, Lady Miller, currently. The concerns around service charges are inflated prices, not having to achieve value for money, undisclosed commissions, awards of contracts to related companies of managing agents, and the lack of security for leaseholder moneys. The report prepared by the London Assembly also raised issues concerning the leasehold valuation tribunal, suggesting that the process was getting increasingly complex, with an impact on cost. There was difficulty in getting information from landlords, who were increasingly employing counsel, reflecting on-costs. What is the Government’s assessment of how the tribunal is currently working?
There is a case for more regulation—if not by government, by industry bodies—but this must be effective. We have a policy review under way, and in this connection the principles that we would deploy to address this issue require ensuring good practice is promoted, improving transparency, supporting a register of competitive tendering processes for services, and having systems, perhaps mandatory, for the resolution of disputes.
The Deputy Chairman (Lord Geddes)
The noble Lord times it quite beautifully. A Division has been called in the Chamber. The Grand Committee stands adjourned until 5.37 pm.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I thank noble Lords who have taken part in this debate—most especially the noble Baroness, Lady Gardner of Parkes, for introducing it. She has taken a long-term interest in housing and has great experience. It is therefore important to be able to deal with the issues that she has raised and those raised by subsequent speakers. I have a limited time, and I say at the outset that if there are areas that I miss, we will make sure that letters are written afterwards.
We believe and understand that most leaseholders are, in fact, satisfied not only with their property but with the way it is managed. However, I accept immediately that there are a number of exceptions to this rule. We also know that leasehold tenure can be complex, and problems and disputes arise, which cause concern, frustration and, in some cases, real distress to the people concerned. We have a statutory framework in place that aims to balance the different parties’ interests in the same property. The goal is to provide leaseholders with the rights and protections they need, while recognising the legitimate interests of landlords.
The current legislative framework, if properly dealt with, can deliver the right balance between the parties involved—but provided it is matched by an increasingly proactive and socially responsible approach by the professionals who are working within the sector. In taking this approach, the Government are, I recognise, presenting a real challenge to those professionals. I am therefore pleased to see this challenge being taken up by various professional bodies such as the Association of Retirement Housing Managers, to which the noble Baroness, Lady Greengross, referred. This can only help leaseholders and others concerned within residential leasehold.
The noble Baroness, Lady Gardner, referred to the London Assembly report, as did other noble Lords. We have noted that the London Assembly’s report on its investigation, Highly Charged, is a thorough and thoughtful contribution to these issues. Most of the report’s recommendations to government in fact relate to the procedures of the leasehold valuation tribunal. As such—although I will refer to the LVT later—they are issues for the Ministry of Justice, and it is up to that ministry to address these issues. It is also now for the Mayor of London and the Assembly to decide what steps they will take, but I suspect that as purdah is in place, I should not continue on that matter.
The noble Baroness, Lady Gardner, also raised the case for consolidation of legislation. This matter is unbelievably complicated. I do not know if the noble Lord, Lord McKenzie, had anything to do with consolidating legislation when he was in government, but it is not to be undertaken lightly at all. We recognise that sometimes it can be beneficial to bring together all relevant legislation, but it takes a long time. You have to bring not only the law but the regulations into one place. At the moment, it is probably not justifiable to spend time consolidating legislation in this area. The noble Lord, Lord McKenzie, referred to the Law Commission and asked whether we were planning to ask it to look at this issue. I said when we previously discussed this issue that we did not think that the Law Commission would be grateful for our recommendation, and that it was very much up to it to decide what it wanted to do. If the commission felt that there was a position or role for it, it would be in a position to take the matter up itself, but we are not at the moment planning to ask it to do so.
Service charges and the management of property were mentioned by the noble Baronesses, Lady Miller and Lady Maddock, as were the role of managing agents and their capability. Noble Lords will know that leaseholders have a range of legal rights concerning service charges and the management of property. They can hold managers and landlords to account if they believe that their service charges are unreasonable or if they are facing continuing poor management. Again, I recognise that this is not an easy area. It throws a lot of responsibility on to tenants’ associations and leaseholders’ associations. The noble Baroness, Lady Miller, referred to that.
However, I do not think that it is for government to intervene any further. People who buy leasehold properties first need to be very careful with the lease they are buying, to know what they are buying, to know what are the service charge implications and management implications. They need to know whether the managing agent has been appointed by the freeholder and what responsibility they take if that managing agent is not standing up to proper scrutiny. At the end of the day, leaseholds are the responsibility and under the ownership of the people who live in a block of flats and it is very much in their interests to have an organisation or association to use to help manage it. Although I accept that that involves a big responsibility on those who do that, there are some very determined leaseholders who manage to achieve it.
I touched briefly on the question of the leasehold valuation tribunal, which caused some ripples early on. I know that there are leaseholders who have had successes with the London valuation tribunals. Although I appreciate that there are difficulties and discrepancies between the amount of costs involved and those who pay for them, it is a fact that the leasehold valuation tribunal is there to be the arbiter in cases where otherwise landlords and tenants cannot agree.
The current maximum fee payable to a tribunal is £500. Sometimes no fee is payable at all, but of course as cases continue each party is responsible for their costs of representation. Leasehold valuation tribunals are independent and do not seek to favour one party or another. They are viewed as the most appropriate forum for dealing with a wide range of leasehold disputes. Any research on the effectiveness of leasehold valuation tribunals would, I fear, be for the Ministry of Justice. It seems ridiculous that that has got out of our hands, but that is where it is. They are given jurisdiction to determine leasehold disputes and parties can of course go to court. Again, I appreciate that that is all quite daunting for people who think that they might want to just go to live a quiet life, but that is not always possible.
Yes, managing agents are appointed by the freeholder.
Baroness Maddock
Before the Minister leaves leasehold valuation tribunals, having said that it is the responsibility of the Ministry of Justice, I would be grateful to know whether it has undertaken any review. As I said in my remarks, I can still hear the noble Lord, Lord Rooker, telling me in 2002 how wonderful it was going to be for everybody. I realise that it is not the Minister's responsibility now, but I would be grateful for that information at some stage.
Baroness Hanham
May I get back to the noble Baroness in due course? I will have to find out whether that has been undertaken.
Managing agents, as I say, are put forward by the freeholder. The leaseholders have some rights if they consider that they property is not being properly managed, and can go to the leasehold valuation tribunal about that or begin to think about taking over the right to manage the property for themselves, which would mean that they were then fully in charge.
Service charges are an issue. All sorts of issues have been raised today about the protection of money and service charges, how much they are and what is involved with them. Again, I am afraid that that is a matter for the leaseholders to watch carefully. It is important that what the managing agents do and the costs that they put forward are transparent, and that the leaseholders have a number of rights. They can and must ask for a summary of service charges, and those charges should be consulted upon. They must be able to see the supporting documentation. They have a right to see insurance documents and the right to have a management audit carried out, albeit at their own expense. So they have some control over the service charges, although I think my noble friend Lady Miller mentioned capital charges and the fact that some people had not understood that they were going to come in.
There are two codes of practice, one from the Association of Retirement Housing Managers, mentioned by the noble Baroness, Lady Greengross, and one from the Royal Institute of Chartered Surveyors, which I think the noble Lord, Lord McKenzie, mentioned. These pay particular attention to the disclosure of commissions. Although the issue has not been entirely raised today, there have been concerns about the commissions taken on insurance. There are good codes of practice that ought to be adhered to. The Association of Retirement Housing Managers code is in the process of being reviewed—we expect that to come off quite soon—and we hope that RICS will also look at that issue and revise what it says.
The noble Baroness, Lady Gardner, and other noble Lords raised two or three other points. I shall comment briefly on commonhold, something that I remember debating with the noble Baroness, Lady Maddock, in 2002 when we were, it is fair to say, vigorously opposed and saw all sorts of pitfalls coming up. Those pitfalls are still there but we could make it easier for a leasehold property to be changed to commonhold. This would now be a matter for the Lord Chancellor, which slips it away from me, and the Secretary of State for Justice. They will be required to have a look at it, and I am sure that we will refer them to this debate so that they will know what has been said about it.
The noble Lord, Lord Best, and the noble Baroness, Lady Greengross, raised the question of exit fees. We could not possibly comment on the practice of any particular company, but we are well aware that these are causing practical issues and great distress. The Office of Fair Trading, as the noble Lord, Lord Best, said, has been considering whether the exit fees might breach the unfair terms in consumer contracts, and if they do indeed constitute a breach, the OFT can take action and can take such companies to court.
I have been advised by the Whip at my right hand that I have truly run out of time. The only point that I have not covered is that on the ombudsman, which the noble Lord, Lord Best, raised. May I write to him about that, since I do not now have time? I have a note of it. I shall also write regarding the red-tape challenge.
There has been too much in this debate for me to go into as much detail in my response as I would have liked. We will scour Hansard and, if we have missed anything, I will write to noble Lords who have taken part. I thank everyone for their contribution on this extremely important subject, and I assure noble Lords that I will draw the Housing Minister’s attention to this debate and the concerns that have been raised.
The Deputy Chairman of Committees (Lord Faulkner of Worcester)
The Grand Committee will adjourn during pleasure until 6.30 pm.
Armed Forces: Personnel
(12 years, 6 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Dean of Thornton-le-Fylde
To ask Her Majesty’s Government what steps they are taking to resolve the issues of operational tempo, pay, pensions and housing affecting Armed Forces personnel reported in the latest Armed Forces Pay Review Body report; and how they ensure that such steps are compatible with the Armed Forces covenant.
Baroness Dean of Thornton-le-Fylde
My Lords, the opening words of the current military covenant say that,
“the whole nation has a moral obligation”,
to all those,
“who serve or have served in the Armed Forces…and their families”.
and that they deserve our
“respect and support, and fair treatment”.
That is the basis of my Question for Short Debate this evening. I ask myself whether the Government are fulfilling their obligation on the military covenant. It is an undertaking that goes back many centuries, indeed to the first great Queen Elizabeth—Elizabeth I—when an Act was passed which compelled parishes to contribute to the care of veterans. This nation has a very long history of seeking to give good support not just to our service men and women but to their families as well, both during and after their time in the services. The Armed Forces do not have the channels to speak out for themselves. They are not permitted to join a trades union, although if you look at the blogs and the chatter on the wires, you would see that many in the Armed Forces are now agitating that they should have a trades union. I make no comment on that.
They do not have the same right to speak freely in the public arena about their position as we do. However, in January this year, Catherine Spencer, speaking on behalf of the Army Families Federation, suggested that Ministers were close to breaching the military covenant. She said:
“I have to ask if the future has ever seemed more demoralising”.
I have always believed that you should look on the upside of things and not just the negatives. I have had a pretty awful weekend doing the research for this speech because I have become increasingly concerned about the state of our Armed Forces—I am talking about the personnel side, not the equipment, obviously. I recognise the need for austerity measures but my interpretation of the wording of the 2012 AFPRB report is that it expresses deep and serious concerns on the range of those austerity measures and how they are being applied to the Armed Forces.
I declare an interest as a former chairman of the Armed Forces Pay Review Body for six years. I am currently a vice-president of the War Widows’ Association and a trustee of the Armed Forces Pension Scheme. I have been in contact with none of them for this debate; I am not speaking to any external briefing. This is based on my experience.
It is a long time since I read a report from the Armed Forces Pay Review Body which has been so direct in talking about decreasing morale in the Armed Forces. The report states that the operational tempo remains “very high”. We know that, but that is almost a blanket for a number of problem areas: people not being with their families for as long as they should, going off on operations, coming back, going on training, not having the time that we have, in the military covenant, tried to ensure for them. Indeed, chapter 2.8 states:
“The 2011 Armed Forces Continuous Attitude Survey … indicated decreasing satisfaction … and declining morale”,
in the services.
Written and oral evidence from the services family federations highlighted uncertainty from those people about, for instance, the future of the pension scheme and the related transitional arrangements; changes to the Ministry of Defence allowances package; the impact on family life of the operational tempo; and the recurring theme of poor-quality accommodation and maintenance. These are ongoing issues that have been raised not just with the present Government but with the previous Government.
Those concerns are coupled with a pay freeze for 75 per cent of Armed Forces personnel for the past two years and a pay award for the remaining 25 per cent of just £250. In my view, the decision now to extend the pay restraint for a further two years, with no exclusions and a limit of 1 per cent, is having a cumulative and potentially damaging impact on the morale of our Armed Forces personnel and their families. We should be worried about that and we should try to address the issue.
A staunch pillar of the covenant going back generations has been the provision of housing, particularly in the Army. The Navy has a high proportion of its personnel who buy their own homes. To be in a community of forces families in similar situations—young families, often with Dad, or now sometimes Mum, absent for a lot of the time on operations—provides great mutual support. In the recent, successful television programme, “The Choir”, we saw how being there supported those young women. Just 45 per cent of Army personnel are buying or renting their own homes—two-thirds as many as the rest of us in the population. So the reasons for the drop in morale are obvious.
If this situation is to change, more help is needed. The home is at the heart of the family. It is somewhere we all retreat to when we have issues. The £8,500 from the current Long Service Advance of Pay Scheme to assist in buying a home is, in my view, insufficient; it was insufficient some years ago. I am not even sure whether it is still being applied, but the conditions for it are pretty onerous. It will not bring about the change that the Government—particularly the Minister—want. The Armed Forces Home Ownership Scheme is a good and very welcome initiative, but it hardly touches the problem. Just 93 personnel benefited from April 2010 to July 2011, so it needs a lot more resourcing. I accept that in a period of austerity that is very difficult; nevertheless, it needs more resource. With the number of personnel returning from Germany, what are their hopes for decent housing either within or without the services?
I read the review body report over the weekend, and from personal experience I know how much care goes into writing this report. The authors do not want to be negative when they write the report or cause problems by overspinning it, but the report brought home to me just how serious the concerns must be. Normally the authors would put it across very calmly and without exaggeration—and I believe there is no exaggeration in this report. So I was alarmed at the overall message in sections of it. One reference on its own would not be too concerning, but reference after reference to morale must lead to concern.
The review body deals with serving personnel, not veterans; the military covenant covers those serving and those who have served, and rightly so. The plight of some veterans is concerning and has been raised in this House over a number of years. It is not getting much better. Last year the Veterans Aid charity provided 19,700 nights of accommodation for former Armed Forces personnel. A disproportionate number of people who live on the streets come from the Armed Forces; we know that from debates that we have had in the House. The link with the poverty that those people live in must be of concern to us all.
The House has a reputation for taking a keen interest in Armed Forces personnel issues. I think that we all recognise the work and dedication that the noble Lord, Lord Astor, has applied to this. Nevertheless, there are still areas of criticism. I will bring together the list of issues of concern that contribute to a lack of morale. There has been pay restraint for two years for 75 per cent of personnel, yet they see in the Budget that people with plenty of money will get tax cuts next year. Job security is disappearing and career prospects have been cut, against a background of high operational tempo and the negative impact on family life.
Sometimes when I raise issues, for example on pensions, I am told that things cannot be changed because the consequences will bounce back on the public sector. I do not accept that as a rational argument. People in the public sector do not go off and give their lives. More than 400 of our men and women have lost their lives in Afghanistan up to March this year. It cannot be said that this is the same kind of job as working in an office or in a local authority. We need to look at this.
I am not asking for special treatment. I hope that on this occasion the Minister will not trot out the usual mantra that it is all the previous Government’s fault. I am asking that we honour the military covenant. It is our moral obligation. We are in serious danger of not meeting that obligation. Perhaps in his reply the Minister will kindly consider committing to remedy what people in the Armed Forces have lost. They face four years of pay restraint—a pay cut in anyone’s language—and a lack of job security and career prospects. We need a renewal of our commitment to the Armed Forces, and we need to carry out that renewal.
Lord Palmer of Childs Hill
My Lords, I thank the noble Baroness, Lady Dean, for initiating this debate, which is very appropriate. In reaching its recommendations, the Armed Forces Pay Review Body, which the noble Baroness mentioned, must have regard to,
“the need to recruit, retain and motivate suitable, able and qualified people taking into account the particular circumstances of Service life”.
I make no excuse for raising in this debate a subject that I raised at each stage of the Armed Forces Bill: Armed Forces housing. Surely the state of availability of such housing must be a major factor in recruitment, retention and motivation. Adequate housing must be one factor to balance against the “high operational tempo” that the Armed Forces pay review report identifies. The report described the lack of choice in accommodation, the variable maintenance performance and also what constitutes family eligibility for accommodation.
In answers given by Ministers to my many previous comments on Armed Forces housing, the proposal was made that in future families will be enabled to own their homes. This was mentioned by the noble Baroness, Lady Dean. I said at the time that I agreed with this as an alternative and as an aspiration but that home ownership should not be a requirement for our forces. The report rightly says that the MoD will need to continue to make a significant provision of good-quality housing for a mobile workforce.
A significant part of the report deals with the levels of rents and the size of any subsidy. My criticism is that the financial and economic requirements laid down in the report are divorced from the state of maintenance and the modernisation of services accommodation. The report states that there are 49,000 service family units in the UK, and that the 39,600 units in England and Wales—80 per cent of the 49,000—are leased from the commercial concern to which the MoD sold the properties. Only 20 per cent are owned by the MoD or by others.
The good news is that in 2010-11, £62.5 million was spent on improvements, with 900 properties being upgraded. The bad news is that there will be a three-year pause in the improvements programme from April 2013. The report shows that the MoD’s procurement strategy was to sell off most of its English and Welsh SFA estate for £1.7 billion in 1986, whereas the rent it has paid for those often badly maintained properties has been a massive £2 billion compared to the money received by the MoD of £1.7 billion. I hope that when my noble friend replies, he will comment on that procurement policy of the Ministry of Defence. Putting my accountant’s rather than my defence hat on, given £1.7 billion with interest of, say, half a billion pounds over the six years, one could have borrowed the £1.7 billion, paid the interest of roughly half a billion, and the MoD would still own the properties having received £2 billion-worth of rent and, at that stage, the rent roughly equalling the cost of repaying the loan and the interest. The MoD, would still own the properties which it has to repair and maintain although they are owned by someone else. I ask my noble friend whether it is right to make a judgment on forces’ housing on purely financial grounds without a strong consideration of the debt we owe our service personnel as contained in the Armed Forces covenant.
I do not want to be all negative, because I take account of the fact that I am part of a Government coalition party. There are many things which we have not highlighted. For instance, there has been a rise in council tax relief to 50 per cent for service personnel overseas, a pupil premium of £250 for every child with a parent in the services and a yearly fund of £3 million to support state schools with service children. I was delighted that the operational allowance was doubled for Armed Forces personnel serving in Afghanistan. The community covenant scheme was launched to strengthen support between civilian communities and the forces with a grant of £30 million and the establishment of a veterans’ information service—they often need it.
Members of the House will know that during various debates I have made a big thing about treatment of veterans and medals. I am pleased that the Armed Forces compensation payments have been ensured as not being required as payments for social care. Improvements to the Army's education programme have also been secured. I was also delighted that during the passage of the Armed Forces Act, thanks to input from many Members of this House, there was movement, with the Minister's help, on medals which had been awarded but were not allowed to be worn. That was a move of great sensibility in which I thank the Minister for taking such a great part. I hope that the commission set up to look into medals and veterans, which seems to be clouded in a measure of obscurity, looks at the whole question of medals, the treatment of veterans and the National Defence Medal itself.
The review is important and I hope that when the Minister replies to comments made by me and the noble Baroness, Lady Dean, we can feel more comfortable on behalf of our valuable Armed Forces personnel.
Lord Ramsbotham
My Lords, like the noble Lord, Lord Palmer, I congratulate the noble Baroness, Lady Dean, on obtaining this debate. It is very important and there is no doubt that word of it will get out to the Armed Forces that we have taken an interest in what, as I know from personal experience when serving, is regarded as the highlight of the year almost on the personnel side: the annual report of the Armed Forces Pay Review Body, of which the noble Baroness was herself a most notable chairman.
I must admit that what struck me when reading the report was its similarity with what I regarded as one of the low points of my career, which was in 1977, when we had to face what became known as the Irishman’s pay rise, when the pay rise we were given was less than the increase in the accommodation and food charges. The result was that a number of commanding officers resigned because they refused to read out to their men what they were told to read—that this was a good pay settlement and that there was also to be a considerable increase in what is now called voluntary outflow. The result of that, thank goodness, was that the incoming Conservative Government had taken note of what was happening. There was an almost immediate pay rise, following the new Government taking over in 1979, which rescued a very dangerous situation. I was struck by the similarities of that situation when I read that there will be rental increases varying from 2.9 per cent for grade 1 to nothing for grade 4, and a 4.9 per cent increase in the daily food charge, when so few people are getting any increase in their pay. That strikes me as being along exactly the same lines as the previous situation. People are not silly and will see it as such.
I was for a time the Adjutant-General, the personnel director, for the Army. I was fortunate with the Armed Forces Pay Review Body of the time. It was extremely well led and it listened. It was encouraging to me that the board always came back and discussed what it had heard from us. There was therefore a partnership between the board and the military. The board recognised that the military welcomed the board, rather than not liking having it around, and particularly welcomed this partnership.
I was therefore intrigued that this AFPRB, which, as the noble Baroness said, has produced a very direct report, is clearly listening. I noted that it pointed out, among other comments, that it had heard,
“significant concerns about the wide-ranging changes in train following the Strategic Defence and Security Review”.
In other words, it was looking widely and looking for causes to report about, not just for individual things. Why is that serious? It is very serious because here we are faced with another two-year pay freeze, and we are told that the achievement of what was set out in the strategic defence review depends on a financial upturn in 2015. Frankly, looking ahead, it does not seem that that financial upturn is likely to provide what people were talking about in the SDSR. Again, soldiers, sailors and airmen are not silly, and they can see this. Coming on top of a freeze, with jam tomorrow being promised to them, and with 2015 not looking like it will provide the jam that was suggested in the SDSR, they are understandably concerned—particularly when they see that against the natural requirement for an upturn in personnel costs, which have been so adequately and fully described by the noble Baroness, the equipment programme is so vast that it is likely to swamp or dominate the personnel side, if we are not careful.
However, two sentences in the report worried me more. They were:
“We were due to undertake a number of scheduled reviews this year. For some reviews, MoD did not submit the evidence we required at the start of the round and we made clear that further evidence was needed”.
Frankly, I find that utterly disgraceful. Despite all the evidence that is there every time you talk to a serviceman, the MoD could not establish the evidence on which the Armed Forces Pay Review Body was due to do its work. No one should know this more than the current Permanent Under-Secretary, with whom I once worked when she headed the Prime Minister’s Social Exclusion Unit. She knows all about the impact on people of the things we have been talking about.
I know that we are very fortunate in having in the Minister someone who listens, cares and will take note. This is not just criticism for criticism’s sake—it is serious alarm that the MoD should be reported on by the organisation to which service men and women look up to more than any other to look after their interests. It should not be accused of not providing the evidence needed.
This leads me to the one recommendation that I would like to put to the Minister, based on the Armed Forces covenant. As the noble Baroness said, the covenant is about the services and their families, and veterans and their families. I am not talking about veterans and their families. The key part, as we discussed during the Armed Forces Bill, is when the Secretary of State reports to Parliament on the covenant. At the moment there is no set date for that, but bearing in mind the importance of the Armed Forces Pay Review Body and its report, and the fact that we in this House—and, I hope, the other House—will take a keen interest in this, I suggest that the timing of the Secretary of State’s report on the Armed Forces covenant should be related to the annual report of the AFPRB so that the Government’s comments on the AFPRB can be included in that covenant report. I believe that that is what service men and women will be concerned about more than any other issue.
Baroness Warwick of Undercliffe
My Lords, I thank my noble friend for introducing this debate and providing us with an opportunity to consider issues of such importance to our Armed Forces personnel. As she has highlighted, our Armed Forces are currently under great pressure. As the report puts it, “operational tempo remains high”. Gruelling tours in Afghanistan, and the Libya campaign, have placed a heavy burden on our services personnel and their families. This summer, there are the added operational demands of providing security for the London 2012 Olympics and the Diamond Jubilee.
These demands are being met with commitment and good will, at a time when our forces are experiencing a two-year pay freeze, cuts to MoD allowances, continuing cost-of-living increases and uncertainties over changes to come from the strategic defence and security review. While the Armed Forces Pay Review Body’s 2012 report notes carefully that recruitment and retention are,
“currently acceptable overall against a reducing manning requirement”,
it also highlights a “difficult year” for services personnel and their families. We know that to be true. While the pay freeze affects the whole of the public sector, it is not the case that all those in the public sector risk their lives when doing their jobs on our behalf.
I support my noble friend in contrasting the discomfort of pressures on the cost of living with the unrelenting day-to-day pressures on those we expect to serve us in battle. Those pressures make it vital that we get right anything that influences the retention of experienced personnel in our Armed Forces.
We have been reminded that, since November last year, the principles of the Armed Forces covenant are now enshrined in law. The covenant promises that the Armed Forces community should not face disadvantage because of its military experience. It sets out what safeguards, rewards and compensation military personnel can expect in return for military service. Fairness on pay and pensions, therefore, lies at the heart of the covenant.
The Government’s decision to implement a pay deal for our Armed Forces amounting to a real-terms cut seems to be at odds with the spirit of the covenant. At the very least, the Government should have allowed the pay review body to make its recommendations before deciding to cap pay rises at 1 per cent from next year. This decision cannot but harm the morale of serving personnel, even while they accept their share of austerity, and the PRB rightly makes the point that this will have an impact on recruitment.
However, my key point today concerns pensions, an issue that was raised by personnel of all ranks during a visit I made to HMS “Dauntless” recently under the auspices of the splendid Armed Forces Parliamentary Scheme. There is real anxiety over the proposed reforms to the Armed Forces pension scheme. The scheme is a highly valued part of the total remuneration package for the services, and a key recruitment and retention tool. Indeed, Armed Forces pensions are hugely important to satisfaction with the forces’ way of life.
Pensions can be taken at 55. Generally, people stay on longer if they believe that they have a good chance of getting promoted. Many do not, and there are several early-departure payment schemes whereby an individual can get some pension on leaving. As Major-General John Moore-Bick, general secretary of the Forces Pension Society, said, the unique nature of military service and employment patterns means that service men and women generally need to draw their Armed Forces pension for longer than they draw their pay. The average length of service is nine years; only 2 per cent of personnel serve to the age of 55; 34 per cent will earn an early-departure payment; and 64 per cent will not serve to the age of 40.
Service men and women rely on these small payments to see them into civilian life. I know this from what they told me on “Dauntless”, and from the experience of a friend whose father came out of the Army and returned to the UK aged 40, with two small children, no job and no house. The EDP housed and fed them for many months until he found work. These payments matter enormously. Therefore it is essential that the new pension scheme being designed by the MoD should protect and preserve the interests of service personnel. Confidence in their pension is crucial to morale—but it was not what I saw on HMS “Dauntless”.
If the Armed Forces fear that they are being stitched up, there is a desperate need to stem the tide of doubt. The commission on public sector pensions, chaired by the noble and learned Lord, Lord Hutton, recommended a switch to options based on average earnings over a career. The noble Lord acknowledged that in the Armed Forces the switch would take longer than the expected target date of 2015, and stressed that Armed Forces schemes should be tailored to the unique requirements and hazards of military careers. He also recommended that accrued rights for those in existing pension schemes should be protected. This was accepted by the Government, yet widespread uncertainty remains. As the review body report noted, this is not least because the Government made clear commitments to other public sector groups but so far have not offered similar clarity on how the commitments will apply to services personnel. Will the Minister tell the Committee whether the MoD and HM Treasury will undertake to resolve any outstanding issues on accrued rights as soon as possible, and end the uncertainty over the protection of earned pension provision?
Rumours spread like wildfire in the services. Good communications are essential. The PRB stresses the importance of clear, jargon-free messages. I would like reassurance from the Minister that the MoD has a communication strategy to ensure that whatever it proposes in this complex area is explained and thus understood at all levels. The PRB asks, too, that in the absence of trade union representation, the MoD will ensure that service men and women are enabled to express concerns about pension changes, and to articulate priorities for future provision.
My final point concerns the importance of the role played by the AFPRB. The review body's independence is vital. It is right that it should question plans for further pay increases and should challenge the MoD to show more flexibility on military wages. Service men and women trust the AFPRB as an independent, honest broker, and rely on it to make their case on pay and remuneration and to keep in mind its remit to take account of the particular circumstances of service life. Those circumstances, and the risks that service men and women take on our behalf, should be kept in mind by us all.
Lord Craig of Radley
My Lords, the House should be most grateful to the noble Baroness, Lady Dean, for bringing this topic to attention. Her experience of the Armed Forces’ Pay Review Body was extensive, both as a member in 1993-94 and as the chair from 1999 to 2005. The Minister and Government should pay most careful attention to her remarks and criticisms, and those of other noble Lords who spoke. I will add my slant to the thrust of their remarks.
Noble Lords will recall that the early 1970s were a time of acute national economic difficulty. A series of government steps such as the pay and prices code and the Counter-Inflation Act 1973 were applied nationwide. Looking at the Government’s strictures on public sector pay, have we not all been here before? However, for the Armed Forces of today, things are not as they were then. Experiences of dealing with the Cold War and the threat from the Soviet Union are far removed from the expensive and extended expeditionary warfare of today, in which large numbers of an ever dwindling cohort of service men and women are now involved, at greater risk of being killed or severely wounded or of being long separated from their families.
This significant change was recognised by the previous Government in their Command Paper, The Nation’s Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans, and by this Government with the passage into law of the Armed Forces Covenant last autumn. That special recognition of the distinctive nature and value to the nation of the Armed Forces receives scant attention in this year’s AFPRB report. The Government’s across-the-board imposition of pay freezes in the public sector treats service personnel once more—as was the practice in the 1970s and 1980s—on a par with the rest of the public sector. However, it was the prime thrust of the Armed Forces Covenant and the previous Government’s White Paper that the services and their families were distinct from the rest of society and merited preferential treatment.
As this year’s AFPRB report makes clear, far from being independent and able to make its recommendations to the Prime Minister, the board has been directed by Ministers to observe the public sector pay restraints. This seems somewhat at odds with the response that I got to a recent Written Question about the Government’s attitude to the AFPRB. I asked the Government whether it was part of their commitment to the military covenant to implement the recommendations of the Armed Forces’ Pay Review Body in full. Their reply stated:
“The Government believe that the recommendations of an independent body such as the Armed Forces Pay Review Body (AFPRB) should constitute an integral part of the process used to determine the pay of the Armed Forces.”—[Official Report, 10/2/12; col. WA 113.]
That hardly describes the process followed this year and is some way, at least, from the assurances given by successive Governments in the past that the independent review body’s recommendations would be accepted unless there were clear and compelling reasons for not doing so. It would have been a more independent review if the body, after taking account of how comparators were faring, had been freer to reflect the increasing pressures of service life. The board stated:
“The Chancellor’s announcement in November 2011 of two further years of public sector pay restraint, with average increases (excluding increments) capped at one per cent, disappointed Service personnel who had made clear their expectation that we”—
the board—
“would return to making recommendations in the normal way following the pay freeze. We emphasised to the Secretary of State during oral evidence that this would be of great concern to our remit group and pressed him on whether there should be special consideration for the Armed Forces”.
I hope that the Minister will say something about that. The Board has perforce danced to the Government’s economic tune.
What gets overlooked in these immediate restrictions on pay and increases in charges is the longer-term impact on an individual’s financial circumstances. The baseline for calculating remuneration increases in future years has been debased and lowered while that for charges has been raised. As we heard from a number of noble Lords, at this sensitive time for morale and motivation in the services, the importance of treating service men and women—as both this Government and the previous one set out in statue and White Paper—is critical. Positive action, not vapid assurances that “we are all in this together”, is required to sustain the calibre of the forces that the nation must have to defend its interests.
Lord Lyell
My Lords, I apologise to the noble Lord, Lord Tunnicliffe, and to other noble Lords, for speaking now. I did not expect to arrive in time to ask the Minister my very brief question. The noble Baroness, Lady Dean, will know of the excellent work that our committee tried to do, I think four years ago, when we went to Colchester. I was detailed to take account of services family accommodation, and what was said to me then was quite chilling, although things seem to have improved considerably.
The Minister does not have to answer this point tonight; he can write to me. In paragraph 4.13, which begins,
“In its evidence, the Ministry told us that”
something was going on, the penultimate line on the page is:
“However, we received a rather more mixed impression on our visits”.
I will not say that that is necessarily what happened when your Lordships’ committee went down to Colchester. The report found that 42 per cent of respondents were satisfied with the quality of maintenance and repairs. I ask the Minister and indeed the rest of the Committee to glance at table A6.4 on page 76, labelled “2011 Armed Forces Continuous Attitude Survey results”. It is encouraging that 57 per cent of respondents declared that they were satisfied with the overall standard of service accommodation, and the figure for satisfaction with value for money was 65 per cent. So, in spite of the fact that a majority was not entirely happy with one aspect of value for money and service, the results were encouraging I hope that my noble friend will be able to give us further encouragement on the issue. I apologise and thank the noble Lord, Lord Tunnicliffe, for his forbearance.
Lord Rosser
I am actually Lord Rosser, not the noble Lord, Lord Tunnicliffe. Anyway, I, too, add my thanks to my noble friend Lady Dean of Thornton-le-Fylde for securing this important debate.
In a Written Ministerial Statement on 13 March this year, the Secretary of State for Defence said that he was pleased to confirm that the Armed Forces Pay Review Body recommendations would be accepted in full. But what he did not remind us of was the fact that his predecessor had previously told the PRB to confine its recommendations to a small overall pay increase to just those earning £21,000 or less, because of the two-year pay freeze imposed across the public sector.
The PRB has made it clear that, following its previous report it had heard a strong message from service personnel about the cumulative impact of the pay freeze, the Ministry of Defence allowance cuts and cost-of-living increases on their everyday lives, which implied a noticeable reduction in real income for many personnel. However, any suggestion that the PRB will soon be able to address the concerns also expressed by service personnel about perceptions of its independence appear to have been dashed.
In his Autumn Statement at the end of November last year, the Chancellor of the Exchequer made clear that the Government intended to continue to hold back pay in the public sector, including the Armed Forces, with awards at an average of 1 per cent for each of the two years following the freeze. The pay review body has told the Secretary of State for Defence that it believes that the Armed Forces would be disappointed by this, which seems a bit like the understatement of the year. It asked the Secretary of State to give it a degree of flexibility. This he has declined to do. Will the Minister confirm that this continues to be the Secretary of State’s position in relation to the next two years, despite service personnel regarding the two-year pay freeze as exceptional and making it clear to the PRB that they wanted it to resume its normal role in 2013?
The Government’s argument is that the Armed Forces’ pay has to be frozen and, after that, held back, because the United Kingdom is, to use their words,
“recovering from the deepest recession in living memory”;
that the overall value of the reward package to Armed Forces personnel remains “generous”, with pension provision being significantly better than in the private sector; and that, because of continued pressure on public finances, public sector pay awards must continue to be severely restricted following the end of the pay freeze.
However, a key reason for the continuing freeze and future heavy restraint on Armed Forces pay is the result of the Government’s economic and financial policy, which has led to the growth rate of the economy, which had been restored when the Government took office in 2010—some 1 per cent growth in GDP in the April-June quarter of that year—vanishing by the end of the year and not reappearing since. Growth provides increased tax revenues for government as well as more jobs and lower unemployment. This Government, in their enthusiasm to cut public expenditure too fast and not pay sufficient regard to the issue of growth, have killed the growth rate in the economy and thus the increased revenues that they inherited. That has made the financial situation more difficult than it could and should have been, and with it has given us at least the intended level of heavy restraint on Armed Forces’ pay over the next two years.
It is also worth mentioning that a continuation of severe pay restraint for our Armed Forces lies ahead at a time when well over 50 per cent of pay increases in the private sector are of at least 3 per cent, and the economic climate that the Government say necessitates their approach to severely restricting the pay of the Armed Forces does not also apparently prevent them from implementing next year a tax cut of 5p in the pound on incomes in excess of £150,000.
It is of course not only pay that is an issue, as my noble friend Lady Dean and others have so powerfully reminded us. The PRB itself referred to the significance of pensions as a top issue for many service personnel. As has already been said, personnel were already concerned about how pension changes might affect them, and particularly about how far a commitment to protect accrued rights would apply and how changes will affect the early-departure provisions in the current pension schemes. Pensions are important to service personnel, not least because they will be dependent on them for rather more years than people in other walks of life, and adverse changes—for example, in the basis of determining pensions and determining increases in pensions in payment—will have a much greater cumulative financial impact on service veterans and widows than on others.
On top of that, there are the uncertainties for personnel because of the redundancy programme at a time when unemployment is high in the external labour market, the continuing pressures arising from the sustained high operational tempo, issues over housing, the long hours worked by many service personnel, and the impact of separation from families. This is all having an effect on morale and motivation, as the Armed Forces Continuous Attitude Survey shows. The PRB said that, in general, levels of satisfaction fell in 2011 compared to the 2010 survey results, with significant falls observed around basic pay, allowances and pension benefits. Morale was less positive, it said, as was satisfaction with service life in general.
The question is: what does the Secretary of State for Defence—and I mean the Secretary of State, not the Minister—intend to do about this? Is he able to say anything about what will happen when the financial position improves? The holding back of pay and adverse changes in allowances and pensions will be permanent, unlike the present financial situation, unless the Minister can give an undertaking that the position will be looked at again as the financial situation improves, with a view to reversing the impact of the adverse effect of current policy on Armed Forces’ pay, allowances and pensions. Since the Government acknowledge the unique nature of military life, including the threat of loss of life or life-changing injuries, and we now have the military covenant enshrined in statute, will the Minister back up the Government’s view of service life and conditions by giving such an undertaking as I am asking about?
The Ministry of Defence is obviously determined to save money. One hopes that the Minister will now be equally enthusiastic over saving morale and motivation in our Armed Forces, to which the pay review body has drawn attention.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, I should like to start by congratulating the noble Baroness, Lady Dean, on securing this important debate. This is a subject about which she is well informed, having chaired the Armed Forces’ Pay Review Body until 2004, as other noble Lords and noble and gallant Lords said. As a result of her important work, service men and women trust the AFPRB. As the noble Baroness, Lady Warwick, said, that is very much down to the important work of the noble Baroness, Lady Dean. She has influenced Governments—not just this Government but the previous Government—and they have listened to her.
She is well aware of the independence of the pay review body. It retains a fundamental independent role in ensuring that the remuneration package of our service personnel is sufficient to recruit and retain the right people. We value its work, as do the Armed Forces, and the House can be assured that there are no plans to change this important principle.
The 41st report that noble Lords mentioned was published in March this year, and I am pleased to say that the recommendations have been agreed in full, with many of the changes taking effect from 1 April this year. However, we cannot ignore the financial crisis and the need to exercise restraint, and that is why it is necessary to freeze pay. None the less, pay for those earning less that £21,000 has increased, and it is important that we ensure that those who are experiencing the greatest challenges receive additional money. For those deployed for an average of six months, individuals will receive the tax-free operational allowance to the value of £5,280, and, as my right honourable friend the Chancellor announced in his Budget, council tax relief has doubled to some £600.
With Afghanistan in mind, the deployed welfare package has been increased. However, our forces are deployed not just to Afghanistan, and the noble Baroness mentioned in the title of this debate the operational tempo. It is true that some service personnel are now on a third or even a fourth tour, and it is testament to the work of the strategic defence and security review that we had the required capabilities to achieve what we did in support of the Libyan uprising. The increased separation from loved ones has been recognised and, as recommended by the pay review body, the qualifying period between increases in levels of the longer separation allowance has been reduced from 240 to 180 days. This means that progression through the 14 levels, ranging from £6.69 to £28.24 for each day separated, is attained more quickly.
We do understand that prolonged periods away from home impact on morale—an important point made by the noble Baroness. We do all we can to minimise this and use harmony guidelines to allow for operational rest. However, there will always be occasions where specialist skills are needed, often at short notice. This may mean that for some, harmony guidelines cannot be prescriptively followed, but we will make every effort to return the individual to their unit as soon as possible. The noble Baroness, Lady Dean, discussed morale at length. We recognise that this is a very difficult time for Armed Forces personnel and their families. Some tough policy decisions that may have had an effect on morale have had to be made as a necessary part of the department’s contribution to the overall government programme to reduce the United Kingdom’s deficit.
As my right honourable friend the Prime Minister has repeatedly set out, our combat troops will withdraw from Afghanistan by the end of 2014. Between now and then we will be able to reduce our numbers. This process has already begun. However, there cannot be some sort of cliff edge in 2014 when all remaining troops come out at once. The rate at which troops can be reduced will depend on transition to Afghan control in the different parts of Afghanistan. Although we will maintain a presence for some time after 2014, we would expect the frequency of deployment to reduce.
Armed Forces pay is frozen, as is the case for all public sector workers, with the exception of those earning £21,000 or less, to whom we have given £250 in each of the last two years of the pay freeze. Pay has also increased incrementally each year for those who are not at the top of their pay scale—some 75 per cent of personnel—a protection introduced for the Armed Forces to ensure that they were not disadvantaged by their lack of contractual entitlement. This is in accordance with the principles of the Armed Forces covenant and has meant that most service personnel will have received an increase in pay during the freeze period.
Increase in pay for the next two years will be limited to an average of 1 per cent each year. The pay review body has already begun its programme of visits to service personnel in the United Kingdom and overseas to gauge their views on pay and related issues. We always welcome the advice of the pay review body and, as we did this year, we will give due consideration to its recommendations.
The noble Baroness, Lady Warwick, mentioned pensions—in particular, the publication of the final report of the Independent Public Service Pensions Commission of the noble Lord, Lord Hutton, on 10 March last year, which resulted in a number of recommendations that were accepted as a basis for discussion on the design of new public service pension schemes to be introduced from April 2015. My department has now commenced its consultation process with service personnel and is conducting briefings throughout the service community. The consultation period ends on 20 June. However—I address the question raised by the noble Baroness, Lady Warwick—personnel have now been assured that any changes to the scheme will not affect the value of pension benefits that they earn up to 1 April 2015, and that those aged 45 or over on 1 April this year will see no change to the amount of pension that they will receive or the time at which it can be drawn.
My noble friend Lord Palmer mentioned accommodation, a subject in which I know my noble friend and all other noble Lords who have spoken take a close interest and which we discussed in the House on 1 March. We continue to examine accommodation provision but, in terms of making improvements, the Chancellor has made an additional £100 million available for service accommodation from the financial year 2013-14. It will be used by the MoD for repairing and refurbishing 650 family homes and buying a further 25.
While it is necessary to increase the daily charge in respect of accommodation, these increases range from a modest 2p per day through to 76p for accommodation in the highest standard. Increases are in line with the rental component of the retail prices index and are broadly comparable with the costs faced by civilians, but with a discount that reflects the disadvantages of living in service accommodation. This means that, for a typical three-bedroom property in the highest standard for occupation, occupants of other ranks pay some £306 per month.
The very basis of the covenant is to tackle disadvantage incurred as a result of service and to consider special treatment where appropriate. The covenant and the pay review body are not related. However, we ensure that the pay review body is kept informed of our commitments and changes.
In the two minutes left, I will very briefly address questions. The noble Baroness, Lady Dean, asked about troops coming back from Germany. The Defence Infrastructure Organisation is currently considering the likely housing requirements of those returning from overseas, including Germany.
My noble friend Lord Palmer asked about the three-year pause in the accommodation improvement programme from April 2013. As part of the MoD’s work to reduce the funding gap and balance defence priorities, from April 2013 there will be a three-year pause in the programme to upgrade lower-quality SFA homes. While this is regrettable, 96 per cent of service family accommodation properties and 42 per cent of single living accommodation bed spaces are now in the top two condition standards.
My noble friend also asked about medals. We worked constructively with the noble and gallant Lord, Lord Craig, on the issue of the PJM, and I congratulate the noble and gallant Lord on the resolute line that he took on that issue. The coalition Government have agreed to a fresh review of medals, and I hope that further details will be announced soon.
The noble Lord, Lord Ramsbotham, mentioned that my department was late in providing evidence to the pay review body. I was not aware of this, and I give him an undertaking that I shall look into it. I will write to him and copy in all other noble Lords who have spoken today.
The noble Lord also mentioned the timing of the Secretary of State’s report to Parliament. The covenant report will be produced each year and will consider the comments made by the PRB. I will pass on the noble Lord’s recommendation about the timing.
My noble friend Lord Lyell asked me to write on the issue of service families’ accommodation, particularly in Colchester. I will look into the issue and write to him and send copies to other noble Lords.
The noble Lord, Lord Rosser, asked me to give an assurance that the financial situation of Armed Forces personnel would be looked at when the financial position improves. That is, of course, the case; it will be looked at.
I hope that I have answered most questions but, if I have not, I undertake to write to all noble Lords with answers to questions that I have not answered. This has been an interesting debate and I am grateful for noble Lords’ contributions. The Committee can be assured that we will continue to listen very carefully to the pay review body, and we greatly value its work in support of service personnel and their families.
The Deputy Chairman of Committees (Baroness Fookes)
My Lords, that completes the business before the Grand Committee today. The Committee stands adjourned.
House of Lords
Deaths of Members
The Lord Speaker (Baroness D'Souza)
My Lords, I regret to inform the House of the deaths of the noble Lord, Lord Brett, on 29 March and of the noble Lord, Lord Ashley of Stoke, on 20 April. On behalf of the House, I extend our deepest condolences to the families and friends of the noble Lords.
Finance: Equity Markets
Viscount Hanworth
To ask Her Majesty’s Government what assessment they have made of the findings of the Kay review of United Kingdom equity markets and long-term decision-making; and whether they intend to take any consequential action.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, the Kay review’s interim report, published in February, presented a discussion on a wide range of issues highlighted by respondents to the review’s call for evidence. It did not include any firm conclusions or recommendations. We expect Professor Kay to make the recommendations in his final report in the summer and it would not be appropriate for the Government to prejudice Professor Kay’s findings ahead of the final report.
Viscount Hanworth
I am surprised by the Minister’s appraisal of the Kay report. However, will she concede that the rules of corporate government in the UK are in need of drastic revision? Does she not recognise the virtue of restricting the voting rights to shareholders who have long-term interests in companies in which they have invested, and is it not clear to her that the advisory role of shareholders on remuneration gives them insufficient powers to constrain the exorbitant executive awards that we have seen in recent times?
Baroness Wilcox
My Lords, as the noble Viscount will know, the review forms a key part of the action taken following the department’s A Long-Term Focus for Corporate Britain: A Call for Evidence, which was published in October 2010. We are exploring the issues of economic short-termism in the UK alongside executive pay and narrative reporting. Of course we are concerned. We have put forward this independent investigation by Professor Kay so that the very points that the noble Lord has mentioned will be addressed.
Lord Myners
My Lords, on 3 November in the other place, the Leader of the House, the right honourable Sir George Young, said that the Government were considering methods by which shareholders could become members of board remuneration committees. In this House on 30 January, the noble Baroness said that she would welcome employee representatives on board committees. Do those continue to be the Government’s positions and, if so, when will we see some action?
Baroness Wilcox
On the Government’s view on shareholder/worker representation on company boards and committees, we decided not to include such proposals in the packet of measures for greater transparency. However, Professor Kay’s independent report will inform all the Government’s judgments from this point.
Lord Razzall
My Lords, although I totally respect the view of the noble Baroness on premature discussion of the Kay report, does she not agree—a point with which I am sure the previous noble Lord would agree—that if markets are to take a longer-term view of investments, the fund management industry needs to change its method of remuneration so that fund managers are not rewarded by the short-term performance of the companies in which they invest?
Baroness Wilcox
My noble friend is right. We are looking at how the long-term proposals can be best served. Short-termism can be very advantageous, but it can also be dangerous in the long term, and we are only too delighted to support him in his view.
Baroness Anelay of St Johns
My Lords, the noble Lord, Lord Peston, will realise that there have already been two opening questions from the Labour Benches. It is now only fair that we go to the Conservatives.
Lord Naseby
My Lords, does my noble friend not recognise—I am sure that she does—that in times of low interest rates investors look for short-term and long-term reports, and that they therefore as a whole look forward to the report from Professor Kay and recognise that very little was done by the previous Government to address this issue?
Baroness Wilcox
My noble friend puts it extremely well. Of course short-termism and long-term planning go together. These are difficult times. We need to do the very best that we can. It is worth remembering that the United Kingdom has a world-leading corporate governance and company law regime. The World Bank rates the United Kingdom as the best place in Europe and the fifth best in the world for doing business. It is vital that the UK continues to be seen as world-leading in corporate governance.
Lord Peston
I did not give way because I was under the impression that the coalition was still part of the Government. Whatever the state of play is on that side of the House, is not the best performing economy in Europe Germany, to take an obvious example? Short-termism is frowned upon in Germany, where the shareholders are committed to the firms in which they hold shares in the longer term, as are the workers. We advised the Germans immediately after we won the Second World War. They ended up rich and we ended up a comparative economic disaster. Is it not time the Government stopped holding back from taking a view on this and actually started, as my noble friend Lord Myners said, to do something?
Baroness Wilcox
I am interested to hear the noble Lord’s question. In the more than a decade in which his party was in power, it did absolutely nothing to advance from the position after the Second World War that he quotes.
Lord Young of Norwood Green
Either I was too slow or someone else was too hasty. I am advised that the Kay report does not address the question of employee shareholders. Does that mean that the Government will reconsider their previous statements on employee shareholders?
Baroness Wilcox
As I have said and as I am happy to repeat, this is an independent report by Professor Kay. He is able to say what he likes on the whole of this subject and we look forward to what he recommends.
The Earl of Erroll
The challenge is how one incentivises people for longer-term thinking. The trouble is that if the quickest way of turning a fast profit in order to maximise one’s share options is to axe longer-term research and development, there will be no benefit to Britain in the longer term. One sees that happening too often. There are two sorts of shareholders and unfortunately the bigger lot are in there for the short term as well for investment purposes.
Baroness Wilcox
The noble Earl is quite right. We sell ourselves short if do not invest in the future and do not look at R&D. It is an important part of anyone’s balance sheets, certainly in the FTSE 100, and I am happy to agree with him.
Social Tourism
Baroness Rendell of Babergh
To ask Her Majesty’s Government whether they will incorporate social tourism policies, such as the provision of holidays by the Family Holiday Association for people living on a low income, in future tourism strategies.
Baroness Rawlings
My Lords, the Government support the work carried out by organisations such as the Family Holiday Association which provides holidays for families who would not normally be able to afford a break away from home, but we do not hold the view that holidays are a right. We do, however, keep an open mind about future tourism strategies. Our current priority is to encourage the potential that tourism gives to help the growth of our economy.
Baroness Rendell of Babergh
My Lords, I thank the Minister for her Answer. Is she aware that there are more than 2 million families in the United Kingdom—about 7 million people—who never enjoy a holiday and who will probably never have one in their whole lives? Is she also aware that while social tourism has never had official recognition or been integrated into tourism policy in this country, in the European Union, several countries integrate it—notably France and Spain, but also Portugal, Greece, Germany and Italy.
Baroness Rawlings
My Lords, the noble Baroness, Lady Rendell, asked a similar Question in February 2010. I know she is a redoubtable campaigner on social tourism and is patron of the Family Holiday Association. The Answer, which was very succinct, said that,
“the Government understand the value of access to leisure and tourism activities”—
and we are aware of the 2 million who never have holidays. It continued:
“By providing support for those who need it most, we are committed to a society where everyone can engage in leisure activities, including holidays, if they wish. A good example is our policy of free admission to many national museums and galleries”.—[Official Report, 8/2/10; col. 478.]
The noble Baroness asked about Europe. The Governments of some European countries, notably France and Belgium, take an interventionist approach to social tourism by directly funding or subsidising people to take holidays. Such countries take the view that holidays are a right.
Baroness Massey of Darwen
My Lords, would the Government consider setting up a working group to consider the social and economic benefits of social tourism?
Baroness Rawlings
I know that the noble Baroness, Lady Massey, was on the all-party group on social tourism. The Government were looking at this, but have not pursued it further. We are keeping an open mind and are aware of the European Calypso programme.
Lord Lee of Trafford
My Lords, I declare an interest as chairman of the Association of Leading Visitor Attractions and of the all-party tourism group. The proposed tax changes on air passenger duty, philanthropic giving to our great museums and galleries, restoration work for our major cathedrals, churches and historic properties and on static caravans all potentially have a negative impact on our very important tourism industry. Given that DCMS is a sponsoring ministry for tourism, could my noble friend tell the House whether it had any discussions before the implementation of the ideas of these tax changes?
Baroness Rawlings
The noble Lord asks a very relevant question. Regarding the tax changes, they are still very much in discussion. We are well aware that they have an effect on tourism and on many of the museums and galleries and all the charities that are involved with this. This is partly covered by the Treasury, but DCMS is very much aware of all this.
Lord Foulkes of Cumnock
When 2 million people do not get a holiday at all and those who are in the top tax bracket are now getting £45,000 a year extra and will be able to go on more skiing holidays and Mediterranean holidays, how can we all be in it together? Will the noble Baroness not listen for once to what is being said by knowledgeable people in this House, take it away and do something about it?
Baroness Rawlings
Social tourism is for the less well off. The Government are involved with the Family Fund, a registered charity covering the whole of the UK and mainly funded by the national Governments of England, Northern Ireland, Scotland and Wales. The funding from all four Governments amounted to £35 million, and included £27 million from England.
Baroness Jones of Whitchurch
I am sorry, we are being a bit slow on this side. Does the Minister accept the educational benefits of children and families travelling outside their own confined communities? Does she recognise the role that that might play in raising the aspirations of young people? Will she agree to talk to her ministerial colleagues in the Department for Education about the contribution that they can play in facilitating holidays for those too poor to afford a family break?
Baroness Rawlings
The noble Baroness raises a very good point. Such travel does raise the aspirations of children. Through our changes to the education and welfare system, we hope to overcome barriers to social mobility by giving families the power and resources to be able to go on holiday if they choose.
Immigration: Eurostar
(12 years, 6 months ago)
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Lord Berkeley
To ask Her Majesty’s Government what action they are taking to enable Eurostar to resume regular services between Brussels and Lille while avoiding any delays caused by immigration control being conducted at St Pancras.
The Minister of State, Home Office (Lord Henley)
My Lords, there has been no suspension of regular Eurostar services between Brussels and London which also stop at Lille. Following misuse of Brussels to Lille tickets by those seeking to avoid UK border checks, Eurostar has restricted the sale of tickets to casual travellers to three trains a day. Only these services are subject to routine immigration checks at St Pancras. We seek to keep delays to a minimum.
Lord Berkeley
I am grateful to the noble Lord for his response but is he aware that the consequence of all this is that passengers coming into the UK from Brussels, Lille, Disneyland Paris and anywhere except Paris have to queue to get through immigration for between half an hour and one hour at St Pancras? I have queued twice and I saw lots of families travelling from Disneyland Paris, of whom probably 99 per cent were British, having to queue for an hour, which is rather hard on them. Why cannot the immigration service process passports on the train after the passengers have left Lille, as it used to?
Lord Henley
My Lords, as the noble Lord knows, the ideal would be to process the passports at Brussels, which we try to do for seven of the 10 or 11 trains a day that go from there, stopping at Lille, that do not allow people to buy casual tickets. The noble Lord knows of the so-called Lille loophole, which we want to plug. As he has said, one solution would be to have staff on the train. We believe that that would be unnecessarily expensive and would not be cost-effective. We are talking about only three trains a day being affected by the Lille loophole. We think that we can continue to negotiate with the Brussels authorities to get them to allow us to do all the checks on all the trains, including the three on which casual tickets are allowed to be bought, at Brussels as would be appropriate.
Baroness Hamwee
My Lords, has the Minister been able to visit British Transport Police operations at St Pancras to look at what happens in relation to child trafficking? In a recent debate, he indicated that he would like to do so. My noble friend Lady Doocey pointed out that a number of simple steps could be taken to protect unaccompanied children coming into this country, including checks on the identity of such children and on the people collecting them, and a dedicated space on the train. Has he been able to follow any of those up?
Lord Henley
My Lords, I have not yet been able to visit St Pancras but I certainly hope to do so. My noble friend’s question is going slightly wide of the Question on the Order Paper, but it is valuable in that it points to the need not only to maintain appropriate security to provide the proper checks and safeguards for those who potentially are being child trafficked but to be able to do that in as user-friendly a manner as possible so that the complaints to which the noble Lord, Lord Berkeley, referred do not happen as well.
Baroness Goudie
Following on from my noble friend’s question, just before the Recess when we had a debate on human trafficking relating to Eurostar, I asked the Minister whether the Government would look at negotiating with the Eurostar authorities and the company which runs it to have the same arrangements as we have with airlines. Airlines are fined for bringing through children and adults who are to be human trafficked. The Minister promised to look at this and we have not yet received a reply.
Lord Henley
My Lords, I will make sure that a reply comes to the noble Baroness in due course. Obviously, we continue to negotiate on these matters with Eurostar. I should point out that Eurostar is a private company and we cannot order it to close the so-called Lille loophole with which we are trying to deal. Certainly, we will try to get to other matters and will negotiate accordingly.
Lord Bradshaw
Will the Minister turn his mind to the situation developing as regards trains from Germany which stop at several places before going into the tunnel? The same problem that applies to Lille will apply to a lot of other stations on the continent. Better arrangements need to be made.
Lord Henley
I am very grateful to my noble friend for raising that point. I understand that the German railways are already planning this and that there might be services from late 2015, so we have some time. He is right to point to the problems because of the confines of the concourse at St Pancras and other places, and the need to make sure that we can sort this matter out in the country of origin. That is relatively easy when you are talking about Brussels, Lille and London. It is considerably harder in the case of trains coming from a number of different stations in Germany. At that point different options will have to be looked at, but we have at least three years to do so.
Lord Grenfell
My Lords, I declare an interest, having been through the tunnel over 1,500 times, getting to work here and going home again, and indeed having lived to tell the tale. The Minister said that the Government would be trying to set up a system whereby the border agency’s immigration controls would be conducted in Brussels. He must be aware that this system works extremely well in Paris; it saves a lot of time and there is absolutely no delay arriving in St Pancras. I hope that he will look into this and tell us what the problem is. They are very friendly people. This morning when I came through I was asked by the immigration officer what I was planning to do with the House of Lords Reform Bill. I declined to share my views with him, in the same way that at the moment I decline to share my views with the House on that question.
Lord Henley
I commend the noble Lord on his diligence in attending this House and the frequency with which he has come through the tunnel. The system in Brussels works pretty well for most trains, in that most people go through the appropriate border security checks. The problem is that a number of people use Brussels to Lille as a commuter line rather than what it was originally designed for, a Brussels to London line. Those people are exempted from going through passport checks by the Brussels authorities and we cannot order them so to do; that is under EU rules. We therefore had to seek with Eurostar some solution to that problem, which does not arise in the case of those coming from Paris. There is similarly not a problem coming from London because, as the noble Lord knows, we do not allow people to use London to Ashford as a commuter route. It is the use of Brussels to Lille as a commuter route on that service that causes the problem.
Lord Davies of Oldham
My Lords, I am a little disturbed at the Minister’s complacency that we have got three years to sort this out. After all, the Government have had two years to sort out a range of problems, and the problems are getting worse rather than better. It is a very serious concern to all of us that a service that we are all proud of, the Channel Tunnel service, may in fact prove to be less advantageous to the travelling public in future because of these difficulties over passport checks. I hear what he says about additional expense, but if the expense is not borne by the service, it is borne by the travelling passenger having to wait for hours at the receiving station, St Pancras. Can he look at this issue with some urgency and produce a solution to it?
Lord Henley
I commend the noble Lord on the urgency with which he got to his feet, along with his colleagues on the opposition Front Bench. They have obviously been well rested by their three weeks off.
We are not complacent on this issue. All I am saying is that there is a serious problem. Part of the problem relates to the design of St Pancras and getting the passport checks done there. We would therefore like to have the checks done at the point of exit. Obviously that problem is going to be made more difficult once one has trains coming in from Germany and other places. At that point, we might have to look again at having checks done on the trains. As I said—although the noble Lord has not been that speedy—we have three years to do this because we are not likely to see trains coming in from Germany until the end of 2015.
Workers’ Memorial Day
(12 years, 6 months ago)
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Lord McKenzie of Luton
To ask Her Majesty’s Government what plans they have to mark Workers’ Memorial Day on 28 April.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, the Government extend their sympathy to all those for whom Workers’ Memorial Day is especially poignant. It is right to commemorate those killed, injured or made ill through work. The day also highlights the importance of good health and safety in the workplace. The Government continue to recognise Workers’ Memorial Day and consider that families and friends of those affected, and organisations representing workers, are best placed to decide how the day should be commemorated.
Lord McKenzie of Luton
My Lords, I thank the Minister for his reply, which I take to be personally sympathetic to Workers’ Memorial Day—which, as he said, is about remembering those who have been damaged by health and safety failures, and renewing the case for good health and safety provision. The Minister will have been availed of the report of Professor Löfstedt, which the Government commissioned. It states that,
“the vast majority of employers and employer organisations acknowledged the importance of health and safety regulation in their responses to the call for evidence and felt that, in general, the regulations were broadly fit for purpose. During the course of my review, I have neither seen nor heard any evidence to suggest that there is a case for radically altering or stripping back current health and safety regulation”.
Does the Minister agree with that? If he does, will he encourage the Prime Minister to refrain from such unhelpful utterances as “killing off the monster of health and safety”, and to act responsibly in these matters?
Lord Freud
My Lords, we are very supportive of the report by Professor Löfstedt. He made the point in the report that legislation,
“can contribute to the confusion, through its overall structure, a lack of clarity, or apparent duplication in some areas”.
That is why we are driving through reforms designed to make the system easy to understand, easy to administer and easy to enforce.
Lord Alton of Liverpool
My Lords, does the Minister agree that one of the cruellest industrial diseases is the asbestos-related lung cancer mesothelioma, which can strike up to 40 years after exposure and has thus far claimed the lives of 30,000 workers? Is not one of the best things that the Government can do to support such workers is to respond positively to the all-party calls made in both Houses for mesothelioma victims not to have to face surrendering up to 25 per cent of their much-needed compensation to pay legal costs—compensation which they need in facing the last nine months to one year of their lives?
Lord Freud
I am spending considerable time on mesothelioma currently and I hope to sort out the real problem, which is the large number of people suffering from the illness who are getting no compensation at all because they cannot trace who was insuring them. I hope to see some real progress in this area—looking at the whole area of mesothelioma, both those who have been traced and those who are untraced—and to report back on that in the not too distant future, certainly before the summer.
Lord Forsyth of Drumlean
My Lords, when I was responsible for health and safety as a Minister I asked to see all the regulations applying to small businesses. There was a three-month delay, and when I asked why, I was told that the Health and Safety Executive would have to hire a pantechnicon to send them round. Is the Prime Minister not absolutely right to emphasise the importance of the culture of health and safety in the workplace, rather than masses of regulations that people cannot possibly be expected to absorb and comprehend?
Lord Freud
Yes, my Lords, the Prime Minister is right: legislation must be comprehensible to people if it is to be useful. That process is currently under way, and we aim to reduce the legislation by up to half by 2014. We are confident that that can be done in a way that actually enhances the effectiveness of our health and safety regime.
Baroness Turner of Camden
My Lords, I thank the Minister for his sympathetic response. However, is he not aware that there is one organisation which represents organised employees in this country that has a system of training and of safety representatives that is well worth considering? I am, of course, talking about the TUC. Does he not think it a good idea to have some consultation with the TUC on these matters?
Lord Freud
My Lords, I am pleased to say that alongside my colleague Chris Grayling I wrote to the general-secretary of the TUC on the matter of Workers’ Memorial Day. We are in regular contact with him on a large number of matters, and this is one of them.
Lord Wigley
My Lords, on the question of mesothelioma, to which the Minister referred a moment ago, can he indicate whether the ideas which he will be working on over the coming period will require legislation? If so, why are the Government not taking advantage of the legislation that is currently going through this House?
Lord Freud
My Lords, it is possible, depending on the outcome, that we will need primary legislation on mesothelioma. However these things take time and we will have to structure any solution in consultation with the various stakeholders in order to get there. There is not time at the moment to attach any relevant legislation quite as rapidly as the noble Lord suggests.
Lord German
My Lords, Professor Löftstedt said in his report that there needs to be general community support as regards an understanding of risk. I therefore welcome the Government’s establishment of the independent challenge committee which allows the public to make a challenge when they see a risk that they believe is not appropriate. Can the Minister tell us how that body will be independent given that its chair is also the chair of the HSE, and whether it will not require a wider reporting mechanism than that currently envisaged?
Lord Freud
My Lords, my noble friend is absolutely right in the sense that it is often not so much what the regulation says as the way in which it is applied and used, and often those who are most shocked by how the regulations are applied are those in the HSE. This is a really valuable element of our society which has led to our having the lowest level of fatalities from workplace accidents in Europe. It is important that we concentrate this effort on where it really does save people’s lives. I think that the HSE does have an interest in making sure that that happens.
House of Lords Reform
(12 years, 6 months ago)
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The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, before formally moving the Business of the House Motion on the Order Paper, I should like to make a short business Statement about forthcoming business.
The whole House is now well aware that the Joint Committee on the draft House of Lords Reform Bill published its long-awaited report this morning. The Government are not only deeply grateful to the committee but would like to single out its chairman, the noble Lord, Lord Richard, for the time, effort and expertise that have gone into the preparation of this report. I know that the Deputy Prime Minister and his ministerial colleagues will be considering the report with great care before proposing a Bill to the Cabinet.
I am equally conscious that noble Lords around the House are eager to debate the report at the earliest opportunity. I have considered this with the usual channels and, although there will be plenty of opportunities to debate the report from the Joint Committee, subject to the completion of our legislative business by the end of Thursday of this week, I propose that we should start with a debate on the Joint Committee’s report, led by the noble Lord, Lord Richard, on Monday of next week.
I should add that should the Queen’s Speech on 9 May include a Bill to reform the composition of this House, there will be a further opportunity to debate the Government’s proposals in light of the Joint Committee’s report in the course of the debate on the humble Address—that is to say, in about a fortnight’s time. These two imminent occasions for debate may well be followed by others over the course of the next Session, for which I know a few noble Lords may be limbering up. I hope that we will manage to complete our legislative business by Thursday so I look forward to next week’s debate. In the mean time, I take the opportunity of reminding the House that copies of the Joint Committee’s report are available in the Printed Paper Office and, most importantly, on the Parliament website.
Baroness Royall of Blaisdon
My Lords, I am grateful to the noble Lord the Leader for his business Statement and I welcome the fact that the Leader, with the agreement of the usual channels, is hoping to make time available for a debate on the report of the Joint Committee on the Government’s draft House of Lords Reform Bill. I am sure that the debate will also cover the alternative report, which was published today. However, I am sorry that the Leader of the House has chosen not to make a fuller Statement on the Joint Committee report today.
Before the Recess, I urged the Government both to make time for a debate on further reform of your Lordships’ House, which the noble Lord has done, and to recognise the fact that Members of your Lordships’ House would wish today, as the House returns from a prolonged Recess, to have an initial discussion on these issues. I recognise the fact that we will have many debates on this issue in the House in the weeks and months to come.
I think that this House, and indeed many beyond the House, will find it hard to understand why all sorts of people and organisations have been debating these matters today, and yet, apart from the noble Lord’s brief business Statement, this House is not afforded an opportunity today to speak further about the issue. Indeed, the Leader was on “The Daily Politics” show and in recent days we have heard many things about a revolt by Conservative MPs on the 1922 Committee. We have seen various reports of a revolt being joined first by MPs, then by parliamentary Private Secretaries—many things have been happening.
We have been told that the Deputy Prime Minister is saying that he “won’t go to war” over Lords reform and the Prime Minister spoke of the issue on the “Today” programme this morning. We have been told all this and more, but we do not have an opportunity to discuss these things today in this House. Of course, we will all need time to examine and consider the report of the Joint Committee and the alternative report of the minority group of the Joint Committee. I have read both reports and think that they are excellent and extremely important contributions to the debate on the future of your Lordships’ House. I thank the noble Lord, Lord Richard, and all those involved, for their hard work and commitment.
I urge all Members of this House and people beyond to read and study both reports closely because we need to get reform right, as the noble Baroness, Lady Shephard of Northwold, said today. We on these Benches regret that there was not a more formal Statement on these issues today, but we look forward to the debate in a week’s time.
Lord Laming
My Lords, I am sure that all members of the Cross-Bench group wish to pay tribute to the noble Lord, Lord Richard, and all the members of his team—the committee that did this study—and indeed to the work of all the members in producing the extremely helpful alternative report. One waits for one report and two come along. This is a subject of immense importance to the citizens of our society. We owe it to them to make sure that Parliament is as effective as possible in holding the Executive to account and in scrutinising future legislation.
I am sure that members of the Cross-Bench group, who I have not had the chance to consult on this, are grateful to the usual channels and to the Leader for his Statement because we think that the report should be considered very carefully. I am sure that the arrangements for a debate next Monday will be welcomed by Cross-Benchers.
Lord Tyler
My Lords, I ask my noble friend whether it is the intention of the usual channels to permit the rising time for the House on Monday to be rather later than usual so that we can demonstrate that we in your Lordships’ House are very good at scrutiny. In doing so, perhaps I may also say how much as a member of the committee I appreciated the chairmanship of the noble Lord, Lord Richard. However, it is a very big report and if all of us who have different views, even among and within the parties, have only a few seconds to make our point on Monday I feel this would not be doing due deference or paying proper regard to the comprehensive report of the noble Lord. Therefore, can my noble friend let us please go to a later time on Monday evening. I feel sure there will be great enthusiasm in your Lordship’s House to go through the night, if necessary, on this issue.
Lord Grocott
My Lords, in welcoming as I certainly do the fact that the usual channels have set aside a day for this report, I ask for one further service to the House from the Leader of the House. He has already referred to the fact that there are actually two reports. There is an alternative view in an alternative report signed by 12 of the 25 members of the committee. If my maths is correct that means that if, you exclude the chairman, that is half of the committee—in my personal opinion, the best half of the committee. Can the Leader of the House ensure that the alternative report, as well as the full report, is made available in the Printed Paper Office to all Members? I do not think that facility is available at present.
Lord Hughes of Woodside
Can the Leader of the House confirm that the House is to prorogue on Monday?
Lord Foulkes of Cumnock
My Lords, may I just ask another question? While this is a matter of great importance, there are other matters. Will the Leader of the House confirm that it will be a full day’s sitting on Monday and that the debate will be preceded by Oral Questions and that if there are any urgent matters that Members wish to raise they can raise them under the normal procedures of the House?
Lord Forsyth of Drumlean
May I ask my noble friend a question, although it may be a naive question? Given that we had a manifesto commitment to seek a consensus on House of Lords reform and given that the Joint Committee is split completely down the middle, is that not the end of the matter?
Lord West of Spithead
My Lords, on St George’s day, and falling back on the line that I am very much a simple sailor, I am confused by the fact that half the committee effectively has an alternative view. I agree with some of the statements by other noble Lords that it seems to make a nonsense of this process. I am also very concerned, as I look in a simple way at next week, that there seems to be very little time in which to have a sensible debate about this issue.
Lord Strathclyde
My Lords, I am not at all surprised by any of the interventions that have been raised today. I am sorry that the noble Baroness is disappointed that there should not be a Statement. We have had the report for only a few hours and, after all, we are House that likes to have debates when we are informed. I thought that it would be better to give all noble Lords the opportunity to read the report before debating it next week.
I am at pains to suggest that next week will not be the only opportunity to discuss this report, or indeed the whole issue of reform. I am not one of those who wish to leak the contents of the Queen’s Speech, so I will not pre-empt it, but if a Bill on this subject were to be announced there would be plenty of time during the course of the Motion for an humble Address to debate it further. That will be in two weeks’ time. Between now and the Summer Recess, I am sure that there will be other opportunities if that is required. All that is to say that Members of the House do not need to rush to put their names down next Monday. The House will not prorogue next Monday. It will sit at the normal time for the normal business to be taken in the normal way.
As for the remarks of the noble Lord, Lord Grocott, I think that there were 26 members of the Joint Committee.
Lord Strathclyde
It may be that one never turned up, but he was still a member of the committee. I am sure that the alternative report will be discussed and debated, but I am afraid that I cannot commit the Printed Paper Office to publishing it. After all, it is a privately commissioned report, not a parliamentary report. I am sure that those who commissioned and wrote it will find it very easy to disseminate it themselves. Given the authority that they possess, I would be amazed if they were not able to do so.
As for what was said by my noble friend Lord Tyler, I have not considered the rising time of the debate on the report. Of course, much will depend on how many noble Lords wish to put down their names to speak. However, I see no reason for us to rise early on that day, and perhaps we can just take a view during the course of the week depending on how many names are put down, and given the opportunity that there will be to speak later on in the month.
It is right that we should debate it. As the Convenor of the Cross Benches, the noble Lord, Lord Laming, said, this is an important matter, which people want to have debated and discussed. As for the simple sailor, and my naive friend, the noble Lord, Lord Forsyth, I understand precisely why they might think, after nine months of deliberation, that there is still division and confusion on this issue. I think the Government should be congratulated on trying to cut through this to bring forward to Parliament something with clarity and vision. Parliament will then be able to decide what it wishes to do with it.
Lord Peston
Before the noble Lord sits down, I hate to introduce a cynical comment into this very serious matter, but will it not be nothing short of a miracle if any noble Lord can think of anything original on this subject when we debate it next Monday?
Lord Wright of Richmond
For the avoidance of doubt, I am sure that the noble Lord is aware that copies of the alternative report are freely available in the Library.
Business of the House
(12 years, 6 months ago)
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Lord Strathclyde
That, in the event of the Sunday Trading (London Olympic and Paralympic Games) Bill [HL] being read a second time, Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Thursday 26 April to allow the Bill to be taken through its remaining stages that day.
Canterbury City Council Bill
City of London (Various Powers) Bill [HL]
Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 6 months ago)
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16:41 - Division on Motion A1. - Ayes: 248 / Noes: 233 - Motion A1 agreed.
17:26 - Division on Motion B1 - Ayes: 239 / Noes: 236 - Motion B1 agreed.
18:28 - Division on Motion D1. - Ayes: 231 / Noes: 243 - Motion D1 disagreed.
19:46 - Division on Motion E1 - Ayes: 214 / Noes: 205 - Motion E1 agreed.
20:11 - Division on Motion F1. - Ayes: 174 / Noes: 220 - Motion F1 disagreed.
21:48 - Division on Motion G1 - Ayes: 159 / Noes: 197 - Motion G1 disagreed.
22:33 - Division on Motion H1. - Ayes: 125 / Noes: 168 - Motion H1 disagreed.
23:12 - Division on Motion J1. - Ayes: 100 / Noes: 154 - Motion J1 disagreed.
Lord McNally
That this House do not insist on its Amendment 1 to which the Commons have disagreed for their Reason 1A.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, today the House has the opportunity to consider the Commons reasons in response to the amendments passed by this House during its consideration of this Bill. We have engaged in complex, informed and sometimes passionate debate on a wide range of issues that are of fundamental importance. In so doing, this House has exercised its rights and responsibility as a revising and advisory Chamber. I would hope that, in turn, the Government and the House of Commons have responded attentively and constructively to the opinions of this House. In addition, my ministerial colleagues and I have had numerous meetings with individual Peers and interest groups. We have listened, and we have amended.
Before I deal with the details of Motion A, I would like to remind the House of some of the steps that we have taken to respond to its concerns and to make this a better Bill. From the start, our guiding principles have been to decide what kinds of case need public funding and what alternative routes are suitable for others. It is not all about cost savings, although they are clearly a vital factor; it is also about what kind of justice system we want for the future.
Successive Governments have concluded that the provision of legal aid in the current structure is too broadly drawn, and it encourages court-based litigation and the engagement of professional lawyers as a first, rather than a last, resort. With that in mind, the test that the Government have applied to amendments in both Houses is whether they strengthen or weaken the principles behind the Bill—what I have described many times as its central architecture. We have accepted amendments where they truly improve the Bill. The House has done much valuable work in correcting omissions and ensuring that the most serious cases continue to receive public funding, and I am grateful for the commitment that this House has put into the Bill.
As I have said, the Government have listened and have moved in important areas. We have accepted the arguments put forward by, among others, the noble and learned Baroness, Lady Scotland, and adopted the definition of domestic violence used by ACPO. We have widened the forms of evidence of domestic violence that will be acceptable to secure legal aid funding in private law cases, and doubled the time limit within which such evidence may be presented. We have removed the power to means-test suspects in police custody, and retained legal aid funding for cases involving human trafficking and domestic child abduction.
We have agreed that legal advice and assistance should be made available to welfare benefit appellants whose cases are heard by the Upper Tribunal, the Court of Appeal or the Supreme Court on points of law. We have committed to doing further work to see how we might provide funding for those appearing before the First-tier Tribunal whose case also turns on a point of law, and have retained legal aid for babies who are victims of clinical negligence. We have introduced further measures to put beyond doubt the extent of independence from Ministers enjoyed by the director of legal aid casework.
Many concerns have been listened to and many amendments made, but we have not been able to satisfy every demand. We have now reached the stage where the Government ask both Houses to disagree with amendments that, in our opinion, would undermine the rationale and principles underlying the Bill. The Government cannot accept amendments that use scarce resources on lower priority needs where other funding is available, where conflicts could be resolved by other means or where people can reasonably make provisions themselves. The Government have demonstrated their commitment to the not-for-profit sector, which does such invaluable work, by providing £20 million a year for the next two years, in addition to the £16.8 million we have allocated for this year. However, in a time of austerity, we must make responsible choices about spending public money. We must be rigorous in our decisions about allocating resources. We cannot rely on unrealistic thinking about alternative methods for achieving savings.
We have rehearsed the arguments at great length and in great depth. We are about to reflect on the House of Commons’ opinion of your Lordships’ amendments, and I will be asking the House to agree with the reasons of the House of Commons. I hope that this House will give good weight to that opinion. As I have said, we have listened and responded to the opinions of this House, which now has a responsibility to listen to the clear and settled view of the House of Commons.
Lord Higgins
If the noble Lord will allow me, he is saying that great attention has been given to the various issues that have been raised, for example by the noble Lord, Lord Alton. Is it not the case, however, that on some of these issues there was initially no debate in the Commons at all because it was programmed, and that when the matter returned from this House to the other place the Lords amendments were also programmed—that is, guillotined—and the debate was not brought to a conclusion in the usual way?
Lord McNally
My Lords, the debates came to a conclusion in the usual way. I must say that for a parliamentarian of the noble Lord’s experience, who must have carried through quite a few Bills himself on timetables and the rest—
Lord Higgins
When I was in the other place, we had a very sensible system. If the matter was being filibustered or was urgent, we had a half-day debate followed by a vote on whether there should be a guillotine. In total contrast, when I was carrying through legislation we certainly did not have the system of programming from which we are now suffering.
Lord McNally
I will leave it to the Opposition to explain fully the introductions that they made to timetabling,
Lord Cormack
I am most grateful for that flattering giving way. I point out to my noble friend that it was indeed a Labour Government who brought in automatic timetabling, but before the coalition Government were elected Sir George Young and others gave an assurance that any Conservative Government—or presumably any Government led by Conservatives—would not have timetabling. We still have it.
Lord McNally
This is an interesting side issue. Anybody who has read the debate in the other place will see that the amendments passed in this House were thoroughly discussed.
Lord McNally
The House is not doing itself much service by this, but do go on.
Lord Howarth of Newport
My Lords, on the issue of parliamentary procedure, is the noble Lord really happy that the first four amendments from this place that the Commons considered had only 26 minutes allocated to them? The House of Commons was allowed fewer than five hours to debate the 11 issues on which this House defeated the Government and offered its very earnestly considered advice.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
The Motion before the House is that we should deal with amendments that have come back from the House of Commons. If noble Lords wish to have a debate about process and procedure in the House of Commons, they can table questions and debate the issues. This is not the time for that; this is a time to deal with the amendments that we have before us.
Lord Alton of Liverpool
My Lords, before leaving that point, it was the Minister who raised the question of procedure and who said that these matters had been thoroughly dealt with in another place. The fact remains that the issue of mesothelioma, which was quite properly raised by the Minister’s noble friend Lord Higgins, was not debated on Second Reading, in Committee or on Report at all in another place. Had it not been for the amendment that your Lordships passed, it would not have been debated at all in another place. To give it only one hour at that stage and for it again to be timetabled is indicative of the need to reform not this place but, in light of what we heard earlier, the other place.
Lord McNally
The four interventions, interestingly, have all come from ex-Members of the other place.
Motion A and Amendment 1 in the name of the noble Lord, Lord Pannick, described by him on Report as a purpose clause, reflect that which features in the Access to Justice Act 1999. Amendment 1 would place a duty on the Lord Chancellor to secure within the resources made available and in accordance with Part 1 of the Bill that individuals have access to legal services that effectively meet their needs.
Despite what was said in the House of Commons by the shadow Justice Secretary, the basis for the Government’s opposition to this amendment has been clearly explained in this House. While I am grateful to the noble Lord for this new amendment, I am afraid that it has not addressed the issues with the original Amendment 1, and the Government oppose the new amendment on the same substantive grounds as we opposed the original construction. In addition to those issues which I will turn to in a moment, Amendment 1B would remove the duty in Clause 1(1) for the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of the Bill.
On Report I spoke at length about the technical issues with incorporating provisions of the Access to Justice Bill, where only excluded services are specified, to this Bill, where included services are specified. The Bill before us today, if enacted, will represent Parliament’s clear intention as to which services are to be capable of being made available to people by way of publicly funded legal aid services, and therefore to meet their needs in that regard. Any benefit of such a provision akin to that in Section 4(1) of the Access to Justice Act is simply not present in the context of this Bill. Further, both amendments conflate access to justice as a constitutional principle with the provision of legal aid. Access to justice means access to the courts, and does not mean access to a publicly funded lawyer whenever one is sought.
A further duty to provide unspecified legal services must also, in part, serve to muddy the waters and create uncertainty in respect of the services which might be funded under the Bill. It was said by the noble Lord when moving his original amendment that, as a result of the qualifications in it, the amendment,
“does not impose an independent duty which trumps the specific contents of Part 1”,
and that it,
“does not require any further expenditure by the Government”.—[Official Report, 5/3/12; col. 1559.]
I am afraid that we cannot agree with this analysis. By virtue of introducing a new duty on the Lord Chancellor, a potential cause of action must be created where such a duty is said to have not been met. Therefore, by definition, the Lord Chancellor must be at risk of being compelled to provide additional, and as yet unidentified, services to meet that duty or the duty would be a redundant one. This risk is heightened by the fact that both amendments refer to legal services, which are far broader than the legally aided services that the Bill is intended to provide. I acknowledge that this is the first time for the House to hear that observation. Such a scenario would entirely frustrate the Government’s intention of bringing certainty and clarity to the range of services that can be funded under legal aid. The amendment also has the potential to create a great deal of unhelpful and unnecessary litigation as the boundaries of that duty are tested in the administrative court.
The Bill’s purpose is clear, as are the Lord Chancellor’s duties under it. Therefore, I ask that this House does not insist on its Amendment 1. The Commons has decided against it and in my opinion the amendment in lieu from the noble Lord, Lord Pannick, will elicit the same response. Therefore, I urge the noble Lord to withdraw his Motion.
Motion A1 (as an amendment to Motion A)
Lord Pannick
At end insert “but do propose Amendment 1B as an amendment in lieu”
Lord Pannick
My Lords, as your Lordships have heard, the amendment that noble Lords approved on Report by a majority of 45 votes would state the purpose of legal aid: to promote access to legal services within the financial resources that are made available by the Lord Chancellor and subject to the other provisions in Part 1 of the Bill. The amendment had its origins in a recommendation from your Lordships’ Constitution Committee, of which I am a member, and was tabled by noble Lords from all sides of the House—the noble and learned Lord, Lord Woolf, the noble Lord, Lord Hart of Chilton, who is also a member of the Constitution Committee, the noble Lord, Lord Faulks, from the government Benches and, of course, me.
The amendment echoes the wording of Section 4 of the Access to Justice Act 1999, which is the current statutory provision. It is similar to the statutory provisions that have been found in earlier legislation from 1949 onwards. The other place disagreed with this amendment after a debate that was restricted to 27 minutes—a point made by the noble Lord, Lord Higgins, a few moments ago. Those 27 minutes to which the other place was restricted concerned not just this amendment but two others approved in this House after Divisions and to which we will come. They concern the very important subjects of the independence of the director of legal aid and the mandatory telephone gateway, which we will discuss later this afternoon. All those subjects had to be dealt with in 27 minutes—hardly the thorough consideration that the Minister suggested in his opening remarks.
The Minister in the other place, Mr Jonathan Djanogly, and the Minister today have made four main points. The first, which was emphasised in the other place but has not been mentioned today, is that financial privilege was applied to the amendment. Your Lordships will know that financial privilege in the other place does not prevent your Lordships asking the other place to think again about an amendment. Financial privilege simply requires that the amendment be varied in this House from the original amendment. That is why the amendment now before this House is not exactly the same as that which was approved on Report.
I do not want to make this a debate about financial privilege but I hope I may be excused for saying that I know that many noble Lords were as surprised as I was that financial privilege was applied to Amendment 1. The original amendment made it very clear that access to legal services would come within the resources made available by the Lord Chancellor and in accordance with the rest of Part 1, and therefore that amendment had no financial implications whatever.
Your Lordships may also be interested to note that when I made these points to the authorities in the other place and I asked for a brief explanation of the reason for financial privilege being attached to this amendment, because neither I nor the others responsible for tabling this amendment could understand the point, I was told that no reasons are given for the decision on financial privilege. Again, I doubt that I am the only noble Lord who finds it very regrettable that this House should be told that financial privilege controversially applies to an amendment but noble Lords are not told why that is so.
However, that is a side-show. In any event, the amendment now before your Lordships responds to financial privilege, and it does so by making it clear beyond any possible doubt that the question of what financial resources to make available is a matter for the discretion of the Lord Chancellor and the Lord Chancellor alone. That is what the amendment says beyond any question. It also makes it clear that its terms and effect are subject to the provisions of this part—in other words, subject to the restrictions in the Bill on what topics are within the scope of legal aid.
Lord Thomas of Gresford
Can the noble Lord explain what this amendment therefore adds to the provisions in the Bill? That is what puzzles me.
Lord Pannick
I was coming to that. If the noble Lord will have a little patience, that was the second point made in the other place. My first point, which I just want to complete, is that, with great respect, I do not accept that this amendment has any financial implications whatever.
The second point made by the Minister in the other place was that made just now by the noble Lord, Lord Thomas of Gresford. What is the point of this amendment? The view taken by noble Lords on Report was that now that legal aid is to be confined by this Bill, it is absolutely vital that we retain in the legislation a statement of principle that the purpose of legal aid is to promote access to justice within the available financial resources. That is important for this reason. The Government are proposing to limit legal aid by reason of current financial constraints and Parliament is accepting that. However, we all hope and expect that the economy will improve and, when it does, Clause 9(2) gives the Lord Chancellor a power to modify the substantive provisions of Part 1 to bring matters back within scope. When the economy improves, the case for relaxing the temporary limitations on legal aid should be considered by reference to principle, and the principle is that stated—I hope uncontroversially—in this amendment, which is to Clause 1 of the Bill. It is vital that this principle is not forgotten by reason of the temporary financial constraints under which we are all operating, and I can think of no better way of preserving the principle than setting it out at the beginning of the Bill. I happily give way to the noble Lord.
Lord Thomas of Gresford
But is not the effect of putting this at the beginning of the Bill precisely what the Minister said—that is, it leaves it open to lawyers to bring applications for judicial review and to ask judges to determine whether the financial situation has so improved that the provisions for legal aid should be extended? Is this not just making more work for lawyers?
Lord Pannick
The noble Lord, Lord Thomas of Gresford, again jumps the gun. This is the third point that was made in the other place, which I was coming to and will now address—
Lord Lester of Herne Hill
I hope I am not jumping the gun, but I do not understand from what the noble Lord has said so far why the principle of maintaining the rule of law, a duty which is imposed on the Lord Chancellor, and a duty to secure access to justice under the Human Rights Act do not themselves adequately state the general principles within which this Bill needs to be looked at.
Lord Pannick
The answer to the noble Lord, Lord Lester of Herne Hill, is that we are dealing with a Bill that specifically relates to legal aid. It is surely appropriate to include in a Bill relating to legal aid the purpose of legal aid—and to say so in uncontroversial terms. Nothing is more likely to lead to legal uncertainty—the concern that the noble Lord, Lord Thomas of Gresford, has—than that these matters should be left somehow to be implied, in the context of legal aid, by reference to the Human Rights Act. That would seem to me most unsatisfactory.
I turn to the third point: uncertainty. It was a point that the Minister emphasised this afternoon—uncertainty and, as he put it, the spectre of litigation. I find it difficult to understand this concern, given that the amendment makes it clear beyond doubt, in the plainest of language, that it is entirely a matter for the Lord Chancellor how much money to provide for legal aid purposes. The amendment makes it clear beyond doubt that this provision is subject to the detailed provisions in the Bill which specify what subjects are within scope.
In any event, this concern about litigation is a particularly unpersuasive argument in the present context. As I mentioned, the substance of this amendment has been part of legal aid legislation for many years. If lawyers were going to make mischief by reference to this type of wording, noble Lords will recognise that they would have done so by now.
Finally, the fourth point that has been mentioned by the Minister this afternoon is that the other place is, of course, the elected Chamber and that we should defer to its judgment. For my part, I recognise that there is, of course, force in this argument. Noble Lords will wish to reflect carefully on this amendment, as on all the other amendments before the House this afternoon, before asking the other place to think again.
I suggest to noble Lords, however, that this is an occasion—on this amendment certainly—when it is appropriate to ask the other place to think again. The amendment now before noble Lords addresses the concerns expressed by the Minister, Mr Djanogly, in the other place. There is simply no substance to the Government’s opposition to this amendment. It raises an issue of principle of considerable importance and it involves no financial cost whatever to the Government. I beg to move.
Lord Howarth of Newport
The noble Lord, Lord Pannick, for the avoidance of any doubt whatsoever, has made it clear beyond peradventure in the drafting of this amendment in lieu that what he and the House have sought to achieve contains no threat to the Government’s public expenditure plans. The wording makes it clear that,
“subject to the resources which the Lord Chancellor decides, in his discretion, to make available”,
the Lord Chancellor shall exercise his powers to secure that individuals have access to legal services.
For the sake of a completely illusory financial requirement, the Government propose to impair a constitutional principle of the first importance which goes back not just to 1949, as the noble Lord, Lord Pannick, reminded us, but to 1215. That is the principle of equality before the law. It should not be in doubt that it is the duty of the Lord Chancellor to secure equality before the law. We all recognise that there are constraints in the present very difficult circumstances of the economy, and that we face an imperfect situation. But it must be right to legislate in principle to ensure that, in normal times at the very least—I would contend at all times—it is a paramount duty of the Lord Chancellor to secure equality before the law for all our citizens. It is no use the law declaring high principles of which citizens cannot avail themselves in practice if financial constraints and the lack of support through legal aid mean that they are not able to substantiate their rights in the courts.
I praise the noble Lord, Lord Pannick, for persisting in this cause. I very much hope that the House will want to support him once again in inviting the other place to think again.
Lord Woolf
My Lords, I support what the noble Lord, Lord Pannick, has put before us. Doing my very best, I have found it very difficult to find any reason why this amendment should not be accepted. Attempting to rely upon what was said in the other place just does not wash. If the other place had understood the purpose of the previous amendment, I do not accept that it could have treated it in the way that it did. I do not need to go into detail about that matter because the noble Lord, Lord Pannick, has, with his usual clarity, set out the position perfectly obviously. The situation is as he indicated.
In Bills of this nature, it is frequently the practice to assist those who will subsequently have to apply the legislation—or, if I may say so with feeling, interpret the legislation—by setting out the purpose of the legislation. The Bill makes that purpose clear in so far as there was any doubt about it. There cannot be said to be any financial commitment involved. I am at a loss to understand how the Lord Chancellor, having the responsibilities that he has for the administration of justice under the Constitutional Reform Act 2005, can use that as an excuse for, without justification, trying to impede the proper consideration of this amendment. It reflects no credit to the way in which that office is now being handled for the Lord Chancellor to take that position. Every word that the noble Lord, Lord Pannick, has said with regard to the four points that were taken is of substance. I hope that, even now, the Lord Chancellor will consider whether it is consistent with his responsibilities to take the position that was adopted by the other place after very brief consideration.
I remind the Lord Chancellor of the oath that he takes when he takes office, which is laid down in the Constitutional Reform Act. I ask him to consider whether the position that he has now taken is consistent with that oath. Section 17 of the Act requires him to,
“swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law … and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”
The purpose of the amendment is to give the Lord Chancellor scope to do just that.
I would have thought that the proper course was to welcome the amendment, having regard to changes in the situation that can take place in the future. Again and again, in the course of consideration of this Bill, it has been said on behalf of the Government that they are following the course that they are taking because of the financial situation in this country. That argument demands the greatest respect, but as the noble Lord, Lord Pannick, has indicated, this amendment does not interfere with the Lord Chancellor doing precisely that. It is said that it may lead to increased litigation. If that litigation were to take place, as far as I can foresee, it would have to be by way of judicial review and it is well known that judicial review has built-in protections to avoid the litigation process being misused. The requirement of leave would mean that proceedings which are initiated without cause would have a very short life indeed. The Government of the day would be entitled to get the assistance of the courts, which they would receive, to ensure that there was no misuse of those proceedings in these circumstances. I suggest that, if full consideration had been given to this amendment, it would not originally have been objected to or objected to now.
Lord Phillips of Sudbury
Given the noble and learned Lord’s huge experience in these issues, would he kindly tell the House whether he considers that this amendment does not place any Lord Chancellor in any jeopardy in respect of judicial review? If that is the case—that is what I understood the noble Lord, Lord Pannick, to say—does that not make the provision toothless?
Lord Woolf
No one can anticipate what might happen with regard to the conduct of a particular Lord Chancellor in the future. However, in regard to the fears that have been expressed, there would be no possibility of those being treated as appropriate cases for an application for judicial review on the facts that could be reasonably expected to occur.
On the purpose of the legislation, I would adopt what was said by the shadow Minister in the other place: that the amendment states a purpose because the provision is a statement of legislative purpose. As to having a statement of legislative purpose, in legislation of this nature it is done frequently, not for the purpose of providing an enforceable duty but so that it is known what the legislation as a whole is intended to do.
Lord Lloyd of Berwick
My Lords, the noble Lord who moved the amendment as well as the noble Lord, Lord Howarth, and the noble and learned Lord, Lord Woolf, have referred to the purpose of the amendment as the avoidance of doubt. I hope that in his reply the noble Lord will explain to the House exactly what is the doubt which the amendment is designed to remove and which, presumably, the Bill will otherwise create. If he can answer that question to my satisfaction then I might vote with him. Until that question is answered, I would be inclined to vote with the Government.
Lord Thomas of Gresford
I regret that I have to disagree with the noble and learned Lord, Lord Woolf—I very rarely do. However, there is a statement of principle in Clause 1: it is that the Lord Chancellor must secure that legal aid is made available in accordance with this part. That is a very simple, short statement which would cause no judge any difficulty whatever in interpreting the provisions of the Bill. I said in Committee that the amendment then proposed was meaningless and added nothing to the Bill. I say precisely the same of the amendment as redrafted.
The amendment adds nothing, except this. I could be a very devious lawyer, and I might have a case for which I thought some funding was needed. So I might apply to the director of legal aid for special funding, knowing well that the case for which I am requesting funding is outside the legal aid scheme. The director of legal aid might say, “There is nothing special about this; I am refusing it”. I might then make an application by way of judicial review to the court, and I would get legal aid for that: judicial review carries legal aid. So I would get my money by making an application to the court for judicial review to say, “Look at this provision which the noble Lord, Lord Pannick, argues for: it is broad; it is wide; the circumstances of the country have improved; it is only reasonable that the director of legal aid should now grant me the funding that I need, or that the category of law with which I am now concerned should be brought within scope”. That is just one case. Other cases could then be brought forward in the same way.
Lord Woolf
Will the noble Lord explain how the risk to which he has just referred would be any greater than that which already exists in the words of Clause 1(1)—that the Lord Chancellor must secure that legal aid is made available in accordance with this part?
Lord Thomas of Gresford
It says in terms that it must be in accordance with this part. As the Minister has explained, the Bill as drafted says what is in scope. The Access to Justice Act 1999 set out what was not in scope.
Baroness Butler-Sloss
I am no expert in administrative law. However, my recollection is that that requires leave of the judge. If it is as spurious a case as the noble Lord has suggested, I would have thought that it would be likely to be rejected and that very little legal aid, if any, would be involved.
Lord Thomas of Gresford
Why should one run that risk? Why should one have applications for judicial review being made based on the amendment as currently drafted? This adds nothing to the Bill. All it does is open an avenue for satellite litigation which should not be permitted.
Lord Carlile of Berriew
My Lords, it would be a great disappointment to your Lordships’ House if you were to find that there was unanimity on these Benches. I am not going to disappoint your Lordships: there is not.
I agree entirely with the noble Lord, Lord Pannick—particularly in relation to the second and third parts of his speech—and also with the noble and learned Lord, Lord Woolf. In answer to my noble friend Lord Thomas of Gresford, I would say that Clause 1(1) contains absolutely no statement of principle whatever, whereas Amendment 1B does contain a statement of principle, albeit within the financial limits set by the Bill.
What I really wanted to do is say a few words about financial privilege. I suspect that there will be other noble Lords who were once Members of another place who, like me, have sat on the Reasons Committee. It is the Reasons Committee that drafts the reasons why the Commons do disagree with your Lordships' House. It sits in a room just behind the Speaker’s Chair. That room is known as the Reasons Room. Behind that Alice-in-Wonderland title lies an Alice-in-Wonderland process. In the Reasons Room, the Reasons Committee—which does not produce a Hansard record, or certainly did not do so in my time—produces reasons that, by and large, are presented on a piece of paper and nodded through. That seems to me to be what has happened here. The reason that is given is that,
“it would alter the financial arrangements made by the Commons”.
That is a statement of predictive certainty. What we have heard from my noble friend the Minister suggests that there might be a possibility at some stage in the future that some kind of judicial review action might, not would, have some effect on, not alter, the financial arrangements made by the Commons.
I echo the words of the noble and learned Baroness, Lady Butler-Sloss, about the process of judicial review. Every judicial review application goes in the first instance, on an entirely paper procedure, before a judge of the administrative court. As it happens, most applications—about 80 to 90 per cent—are refused on the papers and there is practically no expenditure upon them at all. I cannot see any circumstances in which it is more likely that judicial review proceedings would continue as a result of including this amendment in the Bill as compared with the Bill as it stands. As my noble friend Lord Thomas said, the Bill as it stands contains the potential for applications being made for judicial review against the exceptionality provisions and against a ruling that legal aid should not be given. What is proposed here hardly increases that risk.
Lord Carlile of Berriew
I will give way in a moment; I shall just finish the sentence.
If the other place has got its reasons wrong then surely we are entitled to question those reasons in this House, and if the burden of the debate justifies it, to ask the other place to reconsider, on the basis that it has got its reasons wrong. I will give way to my noble friend now—but he does not want me to. I am glad that I have answered his question. I have nothing further to add.
Lord Morris of Aberavon
My Lords, I rise in support of the noble Lord, Lord Pannick. I am concerned about the reasons given in the Marshalled List, and perhaps the Minister can help the House. What are the financial implications if this amendment were accepted? The reason given is:
“Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient”.
If that is the sole basis for rejecting the amendment—or if there is any other reason, any other sinister matter, that the Minister is concerned about—perhaps he will tell us.
The noble Lord, Lord Pannick, has told the House that there are no financial implications to his amendment. The amendment states that the Lord Chancellor shall exercise his powers under this provision in order to ensure that individuals have access to legal services, and that it is entirely within his discretion,
“and subject to the provisions of this Part”.
This is a very carefully drafted amendment. It secures the Government’s financial position. The ultimate discretion is the Lord Chancellor’s, and I find it very difficult to foresee, in reality, any other financial implication.
Lord Hart of Chilton
My Lords, I have supported the noble Lord, Lord Pannick, throughout the process of this Bill. I do so again and I will not take up time to enlarge on anything that has been said thus far in support of the amendment. I simply risk causing the Minister convulsions by drawing his attention to the clock and indicating that we are well on our way to doubling the amount of time that the Commons took to dispatch four of your Lordships’ amendments. It also had the temerity to adopt a programme Motion that caused Sir Gerald Kaufman to stop in mid-track when he was saying:
“It is out of order in this House of Commons to accuse anyone of hypocrisy, so I—”.—[Official Report, Commons, 17/4/12; col. 208.]
We shall never know what he was about to say, but it shows how well we attend to amendments in this House and how poorly they do so in the Commons.
Lord Elystan-Morgan
My Lords, the whole exercise of this House examining the reasons given for rejecting an amendment from this place turns on the supposition in the first instance that the other place has in a mature, reasonable and well informed way applied itself to all the relevant issues. I therefore take very much to heart the submissions made by way of preliminary argument by the Minister. It is his case that the other place has done exactly that: namely, that it has looked in a fair, reasonable and mature way and has comprehensively dealt with those issues. I think that his argument is utterly fallacious in that respect.
Lord Thomas of Gresford
Before using a word such as that, does the noble Lord not agree that there is a constitutional convention that—
Lord Elystan-Morgan
It is exactly on the question of constitutional convention that I seek to address this House now. The Minister’s case, in so far as it refers to the Government having carefully considered the situation, is amply made out. I am sure that battalions or squadrons of legal eagles have been burning the midnight oil looking carefully at every word, comma and expression in these matters. I have no doubt that that has been done thoroughly and comprehensively.
However, has the other place thoroughly and comprehensively considered this matter? There has been a double guillotine. First, there was a guillotine in dealing with the issue because it could not be raised at Second Reading, in Committee or on Report. There was a second guillotine in the meagre ration of time—27 minutes—allowed for this amendment and two or three others. You would not hang a dog on such a procedure.
Therefore, on that basis, I make no apology for raising what I consider to be a fundamental constitutional point. We are dealing with the rejection by the House of Commons of a matter on which the time taken presupposes that its consideration could not have been mature and comprehensive. In addition, we have the reason given on financial privilege. I am as sure as I am that financial privilege cannot apply to this case because the very thing that it avoids doing is increasing the burden on the public purse. If I am right—as I understand it, that has been the rule since the end of the 17th century—it is not a financial privilege matter. Therefore, we have two constitutional issues. One is the lack of time and it being ridiculously limited in the other place. The second is the reason advanced; the very basis for refusing it cannot be sustained in argument.
Perhaps I may also challenge in a respectable, and I hope friendly, way the noble Lord’s contention that those of us who have had experience—in my case, it was a very long time ago—as Members in the other place are in some way tainted and disqualified from making contributions in this House on this matter. Is he saying that we should be silent? If this House is anything at all, it is a first-class reviewing Chamber. Is he saying that, as a reviewing Chamber, this House should not comment on such matters? If it does not comment on such matters, it does not deserve to be a reviewing Chamber or a court of Parliament at all.
Lord Faulks
My Lords, I will be very brief. I supported the predecessor of this amendment as it went through the various stages in your Lordships’ House. I did so because, for the reasons that have already been given, I thought it was an important statement of principle that ought to govern the way in which we considered the Bill and ought to be part of the Bill. I remain of that view.
It seems that the real reason for the objection to this amendment is the fear of judicial review, or the rather vaguely described “satellite litigation”. I understand why government lawyers, who are not always right about everything, may consider that there is a risk of judicial review in all sorts of situations: because of the ingenuity of lawyers and perhaps the flexibility of the Human Rights Act. However, given the way in which it is currently framed, it seems absolutely hopeless to think that there could be judicial review in these circumstances. The amendment as formulated makes it entirely clear. We are all familiar with provisions with no such discretion or reference to the Lord Chancellor or the Secretary of State, in which case courts have sometimes said that it is an absolute duty. However, with this proviso it is almost as though the Government have had the benefit of the noble Lord, Lord Pannick, advising them on how to make the matter proof from judicial review.
Lord Phillips of Sudbury
My Lords, I went to the other place to hear our amendments debated. As I am not a former Member of the other place, perhaps my noble friend will take it from me that its consideration of some of our amendments was cursory—and that is putting it quite generously. I admit to being very disappointed that, on such an important Bill as this, the other place allowed so little time for consideration of these amendments that one cannot say that they scrutinised the amendments with the seriousness with which we try to scrutinise.
Having said all that, I am still mystified by this amendment. I agree with my noble friend Lord Faulks, and consequently with my noble friend—well, he is a friend but he is not a friend—Lord Pannick. It seems clear—indeed it was part of the case made by the noble Lord, Lord Pannick—that there is no prospect of judicial review, and he has designed this amendment to cut out that prospect. However, to the extent to which he has been successful—and I think he has been—it makes the clause ineffectual. It has absolutely no practical effect. I am afraid that it is admirable in sentiment but ineffectual in purpose and therefore should not be in the Bill.
Lord Beecham
My Lords, my noble friend Lord Hart inadvertently stole my opening line about the time we have spent debating this amendment. I could also point out that we will take little less time to vote on this amendment than the other place took to discuss, and allegedly debate, all four of the amendments about which we have heard.
The noble Lord, Lord Thomas, has entertained the House by conjuring up a vision of an army of devious lawyers mining the rich seams of the potential availability of legal aid for the purpose of pursuing claims for judicial review. Others of your Lordships have rather demolished the thrust of that argument, which in any case might be thought to be somewhat fanciful, especially in the light of the quite appropriate reference made by the noble Lord, Lord Faulks, to the fact that the amendment incorporates specific reference to the discretion of the Lord Chancellor. With respect to the noble Lord, Lord Thomas, there really is no substance in his objection to the amendment as it has been moved.
In relying once again on financial privilege—when it could have been waived and substantive arguments put in the form of a Motion asking this House to reconsider the amendment—the Government seem to be succumbing once again to the temptation of relying on this way out of a difficulty. They are becoming addicted to the use of financial privilege as a reason to reject amendments from your Lordships’ House, and that cannot be a satisfactory basis for dealing with significant matters of this kind. Therein lies the strength of an argument about financial privilege when, in dealing after a fashion with the amendment in the House of Commons, the Minister, Mr Djanogly, made one of his principle objections: that the Government,
“are concerned that the amendment replicates what is already in place”.—[Official Report, Commons, 17/4/12; col. 201.]
If it replicates what is already in place, how can it conceivably add to the Government’s expenditure? It is a ludicrous proposition in an attempt to have it both ways.
For that matter, those who argue that judicial review is something to be avoided seem to have forgotten that when we were discussing the position of the director of legal aid casework—the DOLAC amendment; we will come later to a welcome acceptance of an amendment in that respect—it was argued that judicial review would be available to those who sought to make a case for legal aid in exceptional circumstances. At that point, it was to come to the rescue of people who were being denied legal aid and was something to be embraced. Today, however, for the purposes of this amendment it is an issue that could be deployed against the amendment of the noble Lord, Lord Pannick.
There is no question that the purpose of this amendment is clear. It is declaratory, but it is important to be declaratory about important principles, and for that reason the Opposition wholly support the amendment.
Lord Lester of Herne Hill
My Lords, I will explain briefly why I do not agree with the amendment. I quite agree with those who have said that it is inconceivable that it will give rise to effective judicial review because it imposes no legally enforceable duty and it is therefore inconceivable that anyone could threaten the Government by way of judicial review. However, my problem with it is that it imposes no legal duty and then does nothing else.
The amendment begins:
“The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services—”.
Pausing there, it is of course already the Lord Chancellor’s duty to do so under the Human Rights Act, as I pointed out in a brief question to my noble friend and colleague Lord Pannick. Under that Act, the Lord Chancellor has to act in a way that is compatible with Article 6 of the convention, which secures a right of access to justice. Existing law and Section 3 of the Human Rights Act require that all legislation, including this Bill, must be read and given effect in so far as it is possible to do so compatibly with the Human Rights Act. That first part of the amendment is already fully taken care of by that Act. In so far as the rule of law is in play, it is also taken care of by the Constitutional Reform Act.
The amendment goes on:
“that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.
That completely swallows up any suggestion that this is some new, important principle. I am afraid it is written in water and I do not approve of putting anything in the statute that is simply an unenforceable duty written in water.
Lord McNally
My Lords, we have had a very interesting debate on this. I hope when the noble and learned Lord, Lord Woolf, has time to read his own remarks, which contain some fairly harsh strictures about the Lord Chancellor, he will reflect that the question of financial privilege is not a matter for the Government or for the Lord Chancellor. As the Clerk of the Commons explains, an amendment that infringes privilege would be the only reason that would be given. That is because giving other reasons suggests either that the Commons has not noticed the financial implications or that it somehow attaches no importance to its financial primacy.
We had a debate very like this one when we discussed the Welfare Reform Bill. I do not have figures at my fingertips—perhaps we can give the noble Lord, Lord Hennessy, the task of looking at the record of respective Administrations in using financial privilege—but when we last discussed the matter it was made clear that this is a matter for the Commons. As the Companion states:
“Criticism of proceedings in the House of Commons or of Commons Speaker’s rulings is out of order, but criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons”.
I think noble Lords have exercised that procedure today.
Lord Howarth of Newport
My Lords, the Minister said that financial privilege is not a matter for the Government but for the House of Commons. We understand—we are very familiar with the convention—that when the House of Commons rejects a Lords’ amendment it may state reasons of financial privilege and give no further explanation. However, that does not explain or justify why the Minister, Mr Djanogly, in opening the debate on the Lords’ Amendment 1 last Tuesday, began his speech by drawing to the attention of the other place that:
“Lords amendments 1 and 24 impinge on the financial privilege of this House. I ask the House to disagree to them and will ask the Reasons Committee to ascribe financial privilege as the reason for doing so”.—[Official Report, Commons, 17/4/12; col. 200.]
That was his argument, essentially because he could not think of a better one. It is very unusual for the Government to rely blatantly on financial privilege during the debate.
We have to contend with a new situation. We are not criticising the constitutional arrangements, the conventions or the manner of the relationship between the two Houses, but we are saying that the Government should not hide behind this formula, this antique convention, but should deal fairly and squarely with the merits of the argument.
Lord McNally
The noble Lord, Lord Howarth, has wandered—I shall come to some of his comments later—into interesting fields. The financial privilege of the House of Commons may be antique, but as an old House of Commons man I am rather attached to financial privilege. Kings have lost their heads and revolutions have taken place to protect financial privilege and I do not airily sweep it away as an antique remnant of a bygone age. It is an important part of the relationship between the two Houses.
Lord Howarth of Newport
Can the Minister explain how financial privilege applies in this case? Of course the Bill concerns public expenditure, and in that sense financial privilege applies, as it does to virtually every item of legislation, but how do the Government contrive to justify making it the basis of their argument to Members in another place? They asked them to reject the amendment on the grounds of financial privilege as if it were at risk of incurring unaffordable increases in public expenditure, which is simply not the case.
Lord McNally
My Lords, we can go round in circles. The qualification of financial privilege is a matter for the Clerks of the House of Commons. Former Mr Speaker Martin, when we last discussed this matter at the time of the Welfare Reform Bill, made very clear where the line is drawn.
I might not have had as long and continuous a place in the House of Commons as my noble friend but I have been around this place for the past 40 years, and one of the reasons why I teased some former Members of Parliament is that for the past 40 years, under various Administrations, I have heard these debates about the paucity of the way in which the House of Commons discussed a matter and the brutality with which the guillotine was used. That may well be one day—perhaps soon—the reason for a proper parliamentary reform Bill that takes in both Lords and Commons, but it is not an excuse for assuming that somehow, on this particular Bill and this particular issue, the Government are using chicanery or arguments that are not well understood in the relationship between these two Houses.
I also point out to the House that the one thing I have not done, and certainly did not do in my remarks at Report stage, Third Reading or today, is to hide behind financial privilege. I do not think that the Pannick amendment stands up to scrutiny and I was grateful for the contribution of a number of my noble friends in that. Part 1 of the Bill, the Lord Chancellor’s functions, states:
“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.
This seems to me a very clear statement of intent. The difference between the Act being replaced and this Bill is that the Act being replaced is an open-ended Act. It does not restrict where legal aid would apply. The whole point of the Bill—what makes it different from the previous Act—is that it limits, specifies and draws attention to where legal aid will apply and what will be out of scope. That is the danger of the Pannick amendment—that in its general good will to all men approach, it leaves the idea that things may be added. Indeed, both the noble Lord, Lord Howarth, and to a certain extent the noble Lord, Lord Pannick, said that when better days are here this whole circumstance may change. It may change, but not under a vaguely-worded Part 1 of the Bill. We have, in the course of the Bill, accepted an amendment from my noble friends that removed the ratchet and left a regulator in terms of what can be put back into the Bill, but that will be a matter for reflection and discussion in the future.
What worries me is that all the learned Lords who have spoken may be absolutely right, and if they are right we will all live happily ever after. But if they are wrong it is a future Lord Chancellor and the taxpayer who will have to pick up the consequences. Therefore, I think at this stage in the passage of the Bill, the Lord Chancellor of the day and the Government of the day see dangers in what, if it is anything, is either meaningless or has a meaning that has implications for the future; and if it does have implications for the future, in a Bill structured in this way, I think we are right to resist it.
I hope noble Lords will agree that the Lord Chancellor of the day and the Government of the day could and should have a sense of responsibility and care for the central architecture of the Bill, which we keep on talking about. The Bill is not open-ended but specific and the Pannick amendment is not something that should show on the face of the Bill. I hope that noble Lords reflecting on this, and the fact that it has been well considered and well debated and that I have not tried to hide behind financial privilege in addressing your Lordships either previously or today, will support the Government and the Commons in their amendment.
Lord Pannick
I am grateful to all noble Lords who have spoken in this full debate. I am grateful to the Minister for his consideration of the amendment and for meeting me last week to discuss the issues raised. The other place rejected the amendment and the Minister invites the House to reject the amendment because of a concern or belief that it would impose further obligations on the Government. In this House, a number of noble Lords objected to the amendment on the precisely opposite ground that it would impose no obligations on the Government. Perhaps I may briefly reply to both those concerns.
First, on the concern that the amendment would impose further obligations and would somehow undermine the architecture of the Bill, to use the Minister’s words, with great respect I have enormous difficulty in understanding those concerns. I could understand the concern if the amendment had any adverse financial consequences, but it plainly does not. It says,
“subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.
I am very grateful to the noble Lords, Lord Faulks, Lord Carlile of Berriew and Lord Phillips of Sudbury, for their views, which I share, that it is impossible to understand how in the real world this amendment could result in litigation that had any prospect of getting off the ground—certainly any more so than the original Clause 1. So the only possible objection to the amendment is that it does not impose further obligations on the Government and that it does nothing. That was the point made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Lester of Herne Hill, and was a concern expressed by the noble Lord, Lord Phillips of Sudbury. I say to those noble Lords and to the House, with great respect, that that is to misunderstand the purpose of an objects clause. The purpose of the amendment is to ensure that the Bill recognises that we are cutting back on legal aid, most regrettably, because of current financial stringency, but that the principle of securing that individuals have access to legal services that effectively meet their needs, which has been part of our law since 1949, has not been forgotten. It is still the purpose of legal aid and, when the economy improves, that is the principle by which Ministers and Parliament should assess—
Lord McNally
I hate to stop the noble Lord’s flow, but he has just put his finger on it. This is not an interim, pro tem measure, waiting for a return to the 1949 Act. Although, as I mentioned in my opening remarks, financial considerations of course have played a part, the main intention of the Bill is to restructure, reshape and re-point the direction of legal aid away from the open-ended nature of the 1949 Act and successive Acts and put it into a closed system. It is that closed system that the noble Lord’s amendment, with great skill aforethought, plans to undermine. That is why we are resisting it.
Lord Pannick
I entirely accept the Minister’s point that the Bill seeks to identify those subjects for which legal aid should be made available. But the Minister will recognise that, in the anxious debates that we have had through the progress of the Bill, we have considered a number of sensitive topics in respect of which the Minister’s argument has been that we would like to provide legal aid for this subject but, regrettably, we cannot do so because we do not have the money under the current financial stringency. The House has listened to that debate and accepted, with a heavy heart, that in relation to many of the subjects in respect of which legal aid has previously been made available it will regrettably no longer be made available. Having accepted that the Government must have their way for financial reasons on many of those very difficult areas, I believe that it is absolutely vital that we retain in this Bill a statement of the principle of why legal aid is made available so that when the economy improves—
Lord Pannick
I have given way to the noble Lord before. I anticipate that the House is anxious to move on. The House has heard the debate in relation to this matter. I say to the House that that part of the 27 minutes which the other place devoted—I am not giving way—
Lord Pannick
The House wants to move on. That part of the 27 minutes which the other place devoted to consideration of this amendment shows that the purpose and effect of this amendment were not understood. I think that we should ask the other place to think again on this important matter, and I wish to test the opinion of the House.
Lord McNally
That this House do not insist on its Amendments 2, 194 and 196 to which the Commons have disagreed for their Reasons 2A, 194A and 196A, do not insist on its Amendment 192 and do agree with the Commons in their Amendments 193A, 219A and 220A.
Lord McNally
My Lords, Motion B contains amendments in relation to domestic violence. As I have previously made clear, the Government take domestic violence extremely seriously. We fund a range of programmes to help deal with and prevent this crime, many of which—I am happy to acknowledge—were put in place by the previous Administration. As the noble and learned Baroness, Lady Scotland, has previously made clear, there is nothing between the Government and the Opposition in principle here.
This was reflected in our initial proposals. First, legal aid to obtain a protective injunction against domestic violence should remain exactly as it is at present, so that those who need legal aid to protect themselves can get it regardless of their means. Secondly, while we have removed most of private family law from the scope of legal aid in favour of funding mediation and less adversarial proceedings, an important exception should be made for victims of domestic violence. This was because such victims could be intimidated during court proceedings about, for example, child contact or maintenance issues. Again, it is fair to say that these principles were welcomed.
There has been considerable debate in both this House and the House of Commons over how to decide who qualifies as a victim of domestic violence for the purpose of legal aid for private law family proceedings. Therefore, there has been much scrutiny of the definition of domestic violence used in the Bill, the types of evidence that would prove that someone was a victim and the length of time for which these should be valid. The contributions across the House have been informed, sometimes passionate and extremely helpful. The Government have listened and moved on several key points.
As set out in government Amendments 193A, 219A and 220A, we have accepted the ACPO definition of domestic violence in full. The Bill now defines domestic violence as,
“any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other”.
This has been universally welcomed. We have also undertaken to widen the list of evidence, which will be reflected in regulations, to include: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, and where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.
These are in addition to those forms of evidence already accepted by the Government, which are: that a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party for the protection of the applicant is either in place or has been made in the past 12 months; a criminal conviction for a domestic violence offence by the other party against the applicant; ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; evidence from a multi-agency risk assessment conference of the applicant having been referred as being at risk of domestic violence from the other party and action recommended; and a finding of fact by the court of domestic violence by the other party against the applicant.
On time limits, we intend to double the previously announced time limit from 12 months to two years, save in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one. We think that some sort of time limit will still be needed—we are in the business of reducing rather than encouraging litigation—but we think that two years will make sure that those who need help get it.
I know that the noble and learned Baroness, Lady Scotland, continues to have concerns and has tabled amendments in lieu of her original amendments which ask for our list of evidence to be exactly the same as the list of evidence used by the UK Border Agency in assessing domestic violence immigration applications. I know from my conversations with her that she is worried about consistency and about genuine victims missing out. I have enormous respect for the noble and learned Baroness but I really do think that her fears are now misplaced, given how far we have moved.
On consistency with the border agency, we need to understand that the decisions being made are different, as is the context in which they are made. When the border agency takes a decision on whether domestic violence has occurred, it is a decision on the case itself. This would be analogous with a court looking at an application for a domestic violence protection order and a judge deciding whether domestic violence had occurred, not with a legal aid decision about a private family law case.
We are talking here about a secondary issue—in this case, legal aid—that arises indirectly from a person being a victim of domestic violence, not a decision that directly relates to someone’s protection, such as in an immigration context or an injunction application. What is needed for a grant of legal aid is a set of clear rules, not the kind of case-by-case nuance that is needed to decide whether someone requires immediate direct protection.
Other government departments have to grapple with similar issues when it comes to these secondary issues. They do not use the border agency list but take a judgment on what works in their particular context. One example is the rules for jobseeker’s allowance for victims of domestic violence, over which individual local authorities have discretion.
I should also point out that the noble and learned Baroness has never objected to a very important addition that we have made to the border agency list—namely, “a finding of fact” by a court that domestic violence is a relevant feature. This partly highlights the different context that we are dealing with; such a finding of fact is much less likely to arise in an immigration context, but it also provides a very important safeguard in these cases. By definition in this context, if you are seeking legal aid, it is because there is the prospect of family proceedings. If you cannot show any of the evidence of domestic violence that we have asked for but the court decides, perhaps on the basis of police call-outs or other types of testimony, that domestic violence is a feature in the case, then legal aid will be available. This is also relevant when thinking about the time limits. Where a case relates to older incidents of domestic violence but a court considers that the matter is still relevant and it makes a finding of fact, legal aid will be triggered.
When I spoke last week with the noble and learned Baroness, she suggested that we would be missing a large number of victims with our time limit because of how long victims take to come forward. She mentioned that the average time for a victim coming forward was five and a half years. However, it does not follow, as she suggested, that a two-year time limit for evidence cuts out nearly two-thirds of people as a result, because the crucial point is that the evidence will be generated when people come forward—that is, when they seek an injunction, turn to their GP or decide to go to a refuge. It is when the evidence arises, not when the abuse occurs, that indicates the start of the time limit.
I stress again how far the Government have moved on this issue. We now have a system which will genuinely and generally ensure that victims of abuse get legal aid in these private family cases. We have accepted the ACPO definition of domestic violence—indeed, we have gone beyond that. We have significantly expanded the range of acceptable evidence and doubled the time limit. There is one in-built safety mechanism in the form of “finding of fact” hearings, and of course there is a second safety mechanism in the form of exceptional funding, for the more unusual cases. So I think we have now got this right. I want to pay tribute to those across the House, not least to the noble and learned Baroness, Lady Scotland—I know her well and I know her deep concern on this issue.
For the sake of completeness, I should add that we cannot accept that the evidential requirements should be in the Bill. Legislation of course needs to be precisely drafted, and because of the level of detail required, the evidential requirements are much better left to regulations, subject to the affirmative procedure, rather than primary legislation.
Sometimes at this Dispatch Box one has to make the government case with a heavy heart. I have looked at this from where we started, where we have moved to, and what we now cover in this very important area. I am proud of what the Government have done in carrying on the broader work against this evil crime, but I am also proud of what we have now finished with in terms of a package to help in this particular case. I hope the House will give us its support. I beg to move.
Motion B1 (as an amendment to Motion B)
Baroness Scotland of Asthal
Leave out from “House” to end and insert “do not insist on its Amendments 192 and 194 and do agree with the Commons in their Amendments 193A, 219A and 220A, and do not insist on its Amendments 2 and 196 but do propose Amendments 2B and 196B as amendments in lieu”
Baroness Scotland of Asthal
My Lords, I move the amendment standing in my name not in any way to cause anxiety or concern to the Minister, or with any lack of appreciation for how far the Government have moved. I say straightaway that I welcome the moves that have been made in the right direction. However, I hope the Minister will forgive me when I say that I regret that such a move was not done immediately and that we have had to wait so long. I hope the noble Lord will not find me ungracious when I say that I would invite him to move a little further. The amendments that have been proposed by the Government widen the evidential gateway provided by the Bill as it stood before: my amendments take it just a little further.
Domestic violence applications are of great importance, not just because they relate to a large proportion of women, but also, as the noble Lord knows, because they affect men and many children. Up to 950,000 children are affected by domestic violence every year. My amendments specifically permit well founded evidence of abuse certified by a court and/or prescribed in regulations to be used in support of an application for legal aid relating to matters that touch on domestic violence. In addition, my amendments provide that no evidence shall be deemed inadmissible on the basis of the expiration while the general limitation period under the civil standard has not elapsed; in effect, moving limitation from the two years provided in the Government’s proposed regulations to six, which I think causes greater consistency.
Your Lordships will know that, in my Amendment 196B, I also seek to extend that more generous time limit to applications made in relation to children’s cases. The House has heard from me, at Second Reading, in Committee and on Report, about the importance of these issues to victims of domestic violence and their children. These amendments are, I respectfully say, vital. They are vital to all victims who may be affected by domestic violence. It is the reality of the domestic violence victim’s life that has to be properly acknowledged. Although I thank the Minister for moving both in scope on the definition and on the definition itself, it is clear from what he said in moving his Motion that the Government do not entirely understand the issues in relation to domestic violence as I had hoped that they would.
The evidential test is there to provide assurance that there is cogent information on which to base the assertions of domestic violence made by an applicant. The evidential gateway is just that: an evidential test to support the definition. The Government seek, on the basis of the amount of money that they have available, to narrow that gateway in a way that denies the reality of many victims’ lives. I would love to be able to say that my fear in relation to these amendments is misplaced. The reason I know that, tragically, it is not, is that I have had the privilege of working in this field since 1977. We know, through experience and the empirical data that we have, the consequence of a narrower gateway because there has been one in the past and we know that lives have been lost.
In many cases, women—I say “women” because 89 per cent of repeat victims are women—will not get the support they need. I will give one example, which has been given to us by St Anthony’s Centre for Church and Industry in Manchester. It relates to a case where a woman had entered into a marriage which was violent and traumatic. She wanted to start divorce and financial proceedings. She did not go to a refuge. She left her home and went to live at her parents’ house. While there, she was not able to work because she used to work for her husband in his business, so she lost her job; she was his bookkeeper. The husband remained in the joint home. He moved his mistress into that home and refused to engage in the divorce proceedings at all for a considerable amount of time. The wife could do very little about it. Eventually, because he would not negotiate and because she had no money and he had a great deal, she went and obtained legal aid to assist her to go back into the house and, if not to go back into the house, to get her just desserts in terms of financial relief. The husband had engaged some very expensive solicitors. She did not have any money to do so. That woman, today, would get legal aid. If your Lordships were to agree with the amendments and pass them in accordance with the Government’s proposal, she would not.
There are other cases. For example, a woman left her husband because of his violence and did not go back. She did not apply for any financial relief or anything at all. She simply wanted safety for herself and her children. Eight years later—way outside the two-year time limit—her husband came to apply for contact with those children. She had not gone to the police. She had not gone to her doctor. She had not gone to a refuge, because she had gone to her mother’s house. Neither had she sought to enter into litigation. But she did not have any money. At the moment, she is able to get legal aid; if these provisions are passed, she will not. I know that the noble Lord would want to provide help and assistance for those sorts of cases, but the current provisions will not do that which the Government purport to want.
Lord McNally
I have never doubted that. It is just that I keep getting nudged when I call someone learned and someone whispers in my ear that they are not.
Baroness Scotland of Asthal
Noble Lords are learned if they are in the Supreme Court or have been a Law Officer. Others, regrettably, may be learned in fact but are not learned in name.
Lord McNally
That helps me a great deal. I shall never refer to the noble Lord, Lord Bach, as learned again.
Lord McNally
My Lords, I have stated as clearly as I can why the Government and the Commons have put forward their reasons. The emotional span of this debate is sometimes extended to question whether we are in favour of victims and their children. The answer is that yes, we are in favour of them. As I said in my opening remarks, this debate is about how and whether and within which ambit we provide legal aid in private law cases. It is difficult to go beyond that into individual cases, which have been cited in debate at every stage. In many of these cases, the suspicion is that they would qualify either by application for an injunction or by a finding of fact by the court. The latter is extremely important in the additional list that we have put forward to qualify people for legal aid.
As I said in my opening remarks, when addressing an issue such as this one, and within the constraints under which the Government are operating, lines have to be drawn. It is legitimate for the Opposition to argue that that line has been drawn in the wrong place or that a time limit has been put in the wrong place. In the end, however, Governments have to make decisions—and we have made decisions. As I said, I hope that the House will look at the decisions we have made and see that we have listened and acted in a way that puts us on the side of victims and their children and that, in practice, those who face the problem of domestic violence and who want to obtain legal aid for decisions in private family law cases will find that the concessions we have made and the rules and the guidelines we have laid down will give the women and children—I accept that there may be others, but mainly women and children—who are affected by this scourge access to legal aid. I therefore ask the House to support Motion B.
Baroness Scotland of Asthal
I am disappointed that the Minister takes that view. As he will know from our previous debates, our assessment is that as a result of the changes that the Government are proposing, 54.4 per cent of victims currently obtaining legal aid and assistance for family proceedings will not be able to obtain such help and assistance in future. Although I absolutely accept that the Government intend, or wish, to be supportive, these provisions demonstrate the reverse—that they will not be supportive. I therefore wish to test the opinion of the House.
Lord McNally
That this House do not insist on its Amendments 3 and 4 and do agree with the Commons in their Amendments 4A and 4B.
Lord McNally
My Lords, we now turn to Motion C and to Amendments 3 and 4, tabled by the noble and learned Lord, Lord Pannick. The noble Lord is not learned, is he?
Lord McNally
The noble Lord’s amendments concern the independence of the director of legal aid casework. I am confident that we all share the sentiment that the Lord Chancellor should have no involvement in a decision about legal aid funding in an individual case. However, I share the view of the House of Commons that this amendment has undesirable and unforeseen consequences and that it is possible to provide the assurance and protection required without adopting the amendment.
The primary concern with these amendments is that they would have the effect of preventing the director being appointed as a civil servant. It is our strong view that the director will enjoy full independence from the Lord Chancellor yet can be appointed as a civil servant. For the avoidance of doubt, we are abolishing the Legal Services Commission and creating a new executive agency to provide Ministers with greater policy control and improved accountability for legal aid. Giving full independence to the director would run entirely contrary to this intention.
Clause 4 already provides protection in subsection (4) with a statutory bar on the Lord Chancellor’s involvement in making funding decisions in individual cases. The Bill also imposes a duty on the Lord Chancellor to publish any guidance and directions issued to the director, thereby providing transparency. Noble Lords will recall from Report stage that we amended the Bill to offer greater transparency by requiring the director to produce an annual report for the preceding financial year on the exercise of their functions during that period. This report will be laid before Parliament and published.
Lord Pannick
My Lords, together with the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Hart of Chilton and Lord Faulks, I tabled the amendment on the independence of the director that was approved in this House. I thank the Minister and the Government for listening on this important subject and for including in the Bill, as the Minister explained, a reference to the independence of the director, which will give great comfort to all those who will be involved in the administration of this legislation.
Although these are matters of constitutional principle, they can be addressed by compromise, I am happy to say. I very much hope that the Government will be able to adopt a similarly conciliatory approach to the amendments that your Lordships’ House approved earlier this afternoon. I thank the Minister.
Lord Beecham
My Lords, tempting though it is to regard the notion of an entirely independent civil servant as somewhat oxymoronic, I echo the remarks of the noble Lord, Lord Pannick, and welcome the fact that the Government have moved sufficiently to meet the considerations that were advanced on Report. We are glad to be able to conclude these matters, and look forward very much to seeing precisely how the system works in practice.
Baroness Northover
That this House do not insist on its Amendment 24 to which the Commons have disagreed for their Reason 24A.
Baroness Northover
My Lords, noble Lords gave great attention to this issue in earlier stages. I hope that the discussions that have resulted, both within and outside the Chamber, have helped to reassure them.
I begin by saying that the Government have always agreed that telephone legal aid advice will not be suitable for everyone. That is why there will be exceptions to having to use the gateway to apply for legal aid—for example, for emergency cases. Those who are eligible for legal aid will be assessed on a case-by-case basis to identify whether they are suitable for telephone advice.
A key consideration in assessing suitability for receiving advice over the telephone will be whether a caller is able to give instructions and act on advice over the telephone. Trained and skilled assessors will assess this suitability, and a range of reasonable adjustments and service adaptations will also be available to assist callers in their contact with the gateway.
The gateway, based on the existing highly successful Community Legal Advice helpline, will be a two-stage process—not just, as some have called it, a “call centre” service. It may help noble Lords if I briefly set out how the process will work in practice.
Stage one: when applying for legal aid in one of the areas of law subject to the gateway, trained and skilled telephone operator service staff will engage with the caller to identify their problem and eligibility for legal aid, giving the caller the time needed to explain their problem. Organisations such as the Samaritans have contributed to training for current operator service staff. These staff will not provide legal advice, but will route clients to sources of help. If the problem is in an area of law subject to the gateway, the client will be transferred to a legally trained specialist for telephone advice.
In the second stage, as now, under the current Community Legal Advice Helpline contract, where an eligible caller is transferred to a specialist, legally trained telephone adviser, that adviser will speak to the caller to assess their needs, including their suitability for telephone advice. Where it is clear, having regard in particular to whether a caller is able to give instructions and act on advice over the telephone, that face-to-face advice is needed, the client will be referred to a face-to-face provider. I ask noble Lords to note that both the telephone operators and specialist telephone providers will have ongoing training, including awareness of different vulnerable callers, such as those with mental health issues and learning difficulties.
The Government have engaged and will continue to engage with stakeholders, including equality groups, to identify any additional reasonable adjustments for callers with specific needs. For those with little or no spoken English, a free three-way translation service in 170 languages can assist engagement with the gateway. Few face-to-face providers could offer this extensive range of languages. A third party, including a family member or advocate, can contact the gateway to speak for a person or help them explain their problem. To minimise costs, all potential callers can contact the gateway by mobile phone text or the internet to ask for a call back, and all callers can ask for a call back, too.
The use of new technologies such as Skype and webcam—wider than for just the British Sign Language service—are being investigated to enhance the service further. There will also be a service enabling an individual to contact the gateway by secure e-mail. The Government will raise awareness of the gateway to users, including the services and support it offers and we will also be monitoring its operation from day one of implementation and engaging with those using it to ensure that needs are indeed met. As we have also stressed, there will be a review of its implementation and operation, and the report of that review will be published. This will happen within two years of the implementation of the gateway and before any decision about any possible extension of the gateway to other areas of law is taken.
The Government are confident that a mandatory gateway can facilitate efficient and prompt access to legal advice, including advice for those vulnerable people in need of it. The effect of Amendment 24 and, in particular, the amendment of the noble Baroness, Lady Grey-Thompson, Amendment 24B in lieu, would be to impact severely on the provision of any legally aided advice services by telephone, including the existing Community Legal Advice helpline, the existing criminal defence service direct telephone scheme as well as the proposed mandatory gateway for certain areas of civil legal aid. These amendments are unnecessary and disproportionate to the concerns of the noble Baroness, which previously have centred on the mandatory gateway and vulnerable people.
Amendment 24B would require every eligible client to receive face-to-face advice, regardless of their particular circumstances or personal preference. This would result in a very inflexible system that would invariably introduce a delay in clients receiving advice as not only would they have to locate a suitable provider, they would also need to contact them to make an appointment to see them. No longer, for example, would a client be able to make contact with and discuss their problem at a time and place convenient to them.
Noble Lords have already acknowledged the effectiveness of telephone advice itself. On 20 December, the noble Lord, Lord Bach, described the Community Legal Advice helpline as excellent and he was sure that noble Lords would be glad to see its work continue and expand. However, such a requirement would invariably mean the end of any telephone advice as it would be highly unlikely that any individual who has explained their problem to a face-to-face advice provider would then choose to switch to a different telephone advice provider at a later stage.
Not only would this amendment have the potential to eliminate all the savings from the gateway, it could add about £4 million to the legal aid bill for criminal cases and additional cost to civil legal aid for additional face-to-face advice—advice which is currently successfully provided by telephone. The specific duties contained in Amendment 24B are also unnecessary. I can assure the noble Baroness that the Government have complied with the public sector equality duty under Section 149 of the Equality Act 2010 and we have published an equality impact assessment—at the time of the consultation on the legal aid reforms and at the time of the Government’s response—which includes consideration of the mandatory gateway policy. The public sector equality duty is a continuing one and we will continue to comply with it.
As noble Lords know, under the public sector equality duty it is necessary to have due regard to the need to eliminate discrimination, harassment, victimisation and other conduct that is prohibited by or under the Equality Act 2010, advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. The relevant protected characteristics for these purposes are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These types of discrimination are all defined in the Equality Act 2010 and we are complying, of course, with that. For these reasons, I beg to move.
Motion D1 (as an amendment to Motion D)
Baroness Grey-Thompson
At end insert “but do propose Amendment 24B as an amendment in lieu”
Baroness Grey-Thompson
My Lords, I thank the Minister and his team for meeting with me earlier today and also for the letter I received this morning which laid out, with much greater clarity, issues previously discussed. I believe the telephone gateway will be positive for many people, and perhaps would go so far as to say that, for some, it could be better. I welcome the details of the exclusions that have been given: where there is an emergency; where the client has previously been assessed by the mandatory gateway as requiring advice face to face; where the client has accessed face-to-face advice within the past 12 months and is seeking further help to resolve linked problems from the same face-to-face provider; where the client is in detention; and where the client is a child, defined as being under 18. Some of the reassurances that have been given are positive, but these are really around those with much less complex cases.
In previous debates I have spoken much about the cost to the system and to individuals. and I initially welcomed the call-back system that has been proposed. However, on reflection, I cannot imagine an individual with a complex need or a vulnerable adult requesting this call back on the promise of a return call—there is just too much at stake.
I still have some areas of concern. The first is the continuing use of the word “mandatory”. I know that this is an operational matter; not only does it sound inflexible, it is. There are still many unanswered questions around the number of staff who will be employed, both in the first line and specialist operators, and also the cost. It is to be welcomed that they will be trained in listening, but the areas of law they will need to understand will be extensive and complicated.
The Minister has provided more information on this, and while those who work in the call centre will not be under any time constraint to get through the call, there will be a significant amount of pressure on them not only to guide the client in the right way, but to ensure that the client has understood what they are being told. How will this be measured? Will it be on customer satisfaction, or will the number of cases that progress or do not progress be used in some way?
The Minister in his letter—and I believe this is telling—twice mentions the fact that the key test will be whether the individual is able to give instructions and act on the advice given over the telephone. I am extremely concerned that vulnerable people, with complex problems, will drop out of the system, even if they make it to the first phone call. Just finding the telephone gateway may be a challenge for some. The same can be said of the online form on the DirectGov website. They may not be able to do it themselves, nor find appropriate third-party support to offer help.
I know that the Government are committed to reviewing these operations, and to make adjustments if they are not working correctly, but we could be 24 or 36 months into a new system before the figures are gathered and we understand who has been able to access the right support. It is all well and good that a client who makes it through the first call may be directly transferred to a specialist adviser, I take this to mean within the initial phone call—but I am still unclear about the route through for someone who will be advised to go to a face-to-face meeting. The current system relies on the individual being given three local centres and then making the necessary arrangements, but surely the proposed system should be better than the current one. How will this take-up rate be monitored to ensure that clients have taken the steps they are entitled to, and what are the costs attached to them?
My last amendment was rejected under financial arrangements, because there is a cost to it, but what is the cost of setting up this mandatory telephone gateway and, if vulnerable people are not able to access legal aid, what are the potential costs that could be shifted to other areas such as local authorities or the NHS? I believe a little more flexibility is required to ensure that the most vulnerable are able to access the support they are entitled to. I beg to move.
Lord Phillips of Sudbury
My Lords, I listened carefully to what the Minister said and I am afraid that I am not satisfied that the arrangements she explained are anything like adequate to deal with the more difficult cases that will be presented to those on the telephone lines. Indeed, the problem is that they will not be presented at all. As one who spent a large part of his early days in the law trying to help ordinary people with their so-called ordinary problems, I know that there is much greater difficulty in getting instructions from inarticulate, anxious or unconfident people than well intentioned, middle-class people can believe.
It is simply unrealistic to say that when vulnerable people come on the phone there will be sympathetic people to direct them here, there or somewhere else because they will never get on the phone. The reason is that today the law is so complicated that the kind of people I am thinking about will never get to the point of understanding, in articulate terms or with any clarity, what their problem is. The only chance of them getting to that point will be if they get before a sympathetic person, in a sympathetic context, who has the skill—and it takes skill—to coax out of them just what is the problem. Everyone sitting in this place may say, “Well, for Pete’s sake, they all go to school and have got technology that can do this and do that”, but at least 10 per cent of our fellow citizens are not in that category—they are the most needy people—and a system which fails the most needy 10 per cent is simply unacceptable.
I do not mind how many reviews we have about this, this system will not work for those people. I know it. I worked with the Samaritans for years, and every Samaritan knows that for every one person who comes on the telephone there are many more who never even get that far.
I am afraid to say that I shall be in opposition to the Government’s response to Amendment 24, the beauty of which was that it was the Lord Chancellor’s duty to deal with people’s needs by a range of forms. Such a system would be much more flexible. Indeed, the Minister, quite rightly, said that the need for every person to have face-to-face advice, as is required by subsection (a) of the proposed new clause in Amendment 24B, is too inflexible. However, by the same token, her argument that every case will be dealt with by telephone is too monopolistic and will not work for a very important slice of the population.
I ask all noble Lords to think of someone they know who does not have the confidence to speak up, the analytical ability to know quite what their problem is and certainly not the confidence to use this facility, well intentioned though it is. I hope the Minister will reflect on what I have said and, if she doubts me, talk to others who know more than I. Perhaps she will say in summing up what is now the position with the CABs and law centres. At least they have the facility for people to go in and meet other members of the public who work voluntarily for the CAB and have time. It can often take half an hour to find out what the problem is. Is the funding of CABs and law centres now assured so that they can do that?
Lord Clinton-Davis
My Lords, I agree with what the noble Lord has said. I can remember that many years ago, when I undertook my surgery in my constituency, people came there who were all too often inadequate, vulnerable and inarticulate. I do not know how they could have possibly represented their case on the telephone; they were afraid of the telephone. All I wish to say in my brief remarks is that I have first-hand knowledge of what the noble Lord has said and that what is now being proposed will affect such people. The majority of people who sought aid and assistance that they would otherwise not have received were incapable of representing their perfectly justified remarks.
Lord Wigley
My Lords, Amendment 24B improves on the original amendment rejected by another place in that it specifies the criteria that should be taken into account when determining the client’s needs.
The proposed telephone gateway would simply not be a suitable means for many people to access legal advice. Among the groups which the amendment seeks to protect are those whose disabilities and frailties would prevent them from being able to convey their case across the telephone; those whose first language is not English; and those whose cases are so sensitive that they would be hindered in discussing the details over the phone. That could include clients who have experienced abuse, rape and those with HIV/AIDS conditions.
The Government’s proposals have no regard to the individual circumstances of individual cases. People’s dignity should not be compromised in order to make what are likely to amount to modest savings. Cases should not be unnecessarily prolonged by operators with little or no legal training. The Government should surely listen to the many voices that oppose these proposals and reform this risky scheme.
Lord Low of Dalston
My Lords, I, too, have grave doubts as to whether a telephone helpline of the kind we are talking about can be regarded as fit for purpose if the purpose is to disentangle the client’s case with empathy and give appropriate advice on it. The matter is made worse if use of the telephone gateway is to be made mandatory. There may be a place for a telephone gateway—it can have a role in filtering cases, as the Minister said—but it is surely entirely inappropriate that it is made the sole route to discriminating and informed advice.
This is not a matter of speculation for we have been here before and we know what we are talking about. I am talking about the experience that we had with the student loans company when it took over the administration of the disabled students’ allowance. This was administered by a service staffed by the kind of people who will, presumably, be staffing the telephone gateway. They proved to have little understanding of or empathy with the kind of problems disabled students have and for which they were seeking the support provided by the disabled students’ allowance. In fact they were inclined to make light of them and even suggest that the students were somehow swinging the lead or making unmeritorious excuses for financial support from the state.
Those applying for disabled students’ allowance have much in common with the kind of vulnerable people we are talking about needing help with welfare benefits cases. I would not wish to place my confidence in a service of this kind as the mandatory gateway to legal advice and I do not think the House should either.
Lord Bach
My Lords, it is rather disappointing to have to speak on this subject again. One hoped that the other place might take note of our amendment and carry it through. However, the noble Baroness, Lady Grey-Thompson, has in her usual clear and well expressed way explained that our concern is not with telephone services per se. That is not the point at all. All of us here know the value of telephone services. I saw it at first hand as a Minister and I am delighted that the noble Baroness quoted me in her opening remarks. I hope that that excellent work continues and expands—of course I do.
However, the point is that in a limited range of cases, whether classified by the type of person, such as those with communication problems, or by the type of case, such as very complex cases or cases that require searching through reams of papers to identify the nature of the real issue—a point that was made very powerfully by the noble Lord, Lord Phillips of Sudbury—it is counterproductive to expect someone to go through a telephone gateway. In those cases there should be a provision for face-to-face advice from the outset. That is hardly an unreasonable request. Indeed, it is common sense.
I am not the first and I will not be the last to remind the House that today is St George’s day. Perhaps in rather a laboured way, I make the point that there is an English tradition of pragmatism, flexibility, seeing what actually works in the real world rather than what I fear is behind the Government’s stance: too much inflexibility, a kind of didacticism and, as I have described before using a French expression, a rather dirigiste approach towards this issue. It is an issue that cries out for flexibility and trying various ways to make sure that people who need this help can get it. The noble Baroness made her case very powerfully indeed and other speakers have supported her. I very much hope that we can ask the other House to think again on this.
I end by reminding the House of powerful words spoken by the deputy leader of the Liberal Democrat party in the other place just last Tuesday. He had listened carefully and he said this:
“I was grateful for the Minister’s reassurance, but I have to say that I am not persuaded. Like any MP with a constituency containing people from many different races and backgrounds, with many different first languages, and with all the disabilities that any mixed community has, I simply do not believe that a telephone route into deciding eligibility for legal aid is right for everybody. It may be right for many people, and I understand that it will be a good service, but if we ask constituents such as mine whether they have always been satisfied with the council response line—whether under Labour now, or with us running it, as previously—the answer is always no. That does not change, irrespective of who is running the show. I understand the Government’s position and I hear what they say about a review, although I add a request for the review to be regional as well as general, but I believe that the Lords who pressed for amendment 24 have a well-made case. I shall support the Lords in respect of amendment 24”.—[Official Report, Commons, 17/4/12; cols. 206-07.]
I do not always, or even often, agree with the right honourable Gentleman who I have just quoted at some length, but on this I do agree and I very much hope that the House will too.
Baroness Northover
My Lords, I thank noble Lords for their attention to this very important area and I especially thank the noble Baroness, Lady Grey-Thompson, for her kind words to my noble friend about his engagement with her concerns. I have a note that I need to correct the figure given for the costs of the noble Baroness’s amendment. The costs are likely to be in excess of £20 million per annum for both civil and criminal legal aid—I need to clarify that.
In reaction to what the noble Baroness, Lady Grey-Thompson, said, I point out that stage 1 is where people come in and it is decided whether they need to go through the telephone system. Stage 2 is the detailed case assessment of suitability.
To my noble friend Lord Phillips I point out that the kind of cases to which he points may well be those that are then directed towards face-to-face advice. It is extremely important to bear in mind the flexibility that is built into this system and to contrast that with the lack of flexibility of insisting that the advice is face to face. This system means that when people are taken into the telephone system their cases can be assessed to see whether they are suitable for phone advice or face-to-face advice.
Lord Phillips of Sudbury
I did not explain myself adequately. I was trying to get across the point that people will not get as far as a telephone. That is the problem. Once they are there, I absolutely think that what my noble friend has explained to the House is fine. However, I am talking about the people who, for the reasons I tried to explain, will not have the confidence or the competence to say what their problem is over the phone because it is often so damn difficult to do so.
Baroness Northover
I understand what my noble friend means about getting to that point. I ask him to ask himself how they would get to face-to-face advice. There they are with a major problem. They may very well end up in a CAB, in which case the CAB may assist them in phoning the telephone gateway and may indicate in its call that this is a suitable candidate for face-to-face advice. My noble friend needs to go back a bit and ask how the person who is in such circumstances will access any advice and then see how this may route them through to the kind of suitable, appropriate and flexible advice that I hope I have laid out.
Lord Clinton-Davis
However, where someone is incapable of expressing themselves—I remember having to listen to such a person for more than an hour—would they not be excluded from what is being proposed?
Baroness Northover
Let us assume that that person has come to you as a constituency Member of Parliament—I think that is the kind of case the noble Lord is talking about. Again, the Member of Parliament could phone the helpline and say that, for the reasons given by the noble Lord, in this case the person is likely to need face-to-face advice. If someone else, such as a family member, were to phone up, it would become apparent that the person in question could not do this. For those reasons it becomes apparent that this person is going to need face-to-face advice.
As I said in my introductory remarks, there are clearly cases where, for all sorts of reasons—and noble Lords have experience of these kinds of cases—that person will not be best helped by the telephone. In other cases that might be exactly what a person prefers: the distance of telephone rather than face-to-face advice. They might not be able to get to wherever the face-to-face advice is, or they might find that Skype is what they want to use.
The other point to bear in mind is the provision of language translation. Some 170 languages can be provided on the phone line, and very few CABs or constituency advice surgeries have that kind of provision; so there are certain advantages to that provision that might be of help to other cases. The important thing to remember in all this is the equality duty—the diversity of people and their situations and our obligation to address those needs. Those needs will need to be met in different ways, and that is built into how the system operates. The very fact that the Samaritans have been involved in training the operators is an indication of how seriously we consider the responsibility towards people with those diverse needs. Of course, the Samaritans operate a phone system for their own advice line.
I assure the noble Lord that there will be no restriction on the length of time that a person can speak to a caller. If that is the problem—that it is a matter of time—it will not kick in here.
My noble friend Lord Phillips asked about the Budget, which announced £40 million and £20 million in each of the remaining years of the spending review. I think he sought assurance of provision for the CABs.
I have emphasised how operator service staff and specialist telephone advisers will be trained to be aware of the needs of callers, especially those with mental health and learning impairment problems. There will be reasonable adjustments and adaptations available to assist callers, including provision for a third party such as a family member to call on an individual’s behalf. As long as a person authorises someone to call on their behalf, the third party could equally be a member of a CAB or other support or advice service. If the caller is assessed as unsuitable for telephone advice, they will still have access to face-to-face assistance and be referred directly to that provider. That is an improvement over the current situation, in which they might be given three phone numbers of advisers whom they then have to contact. Again, they have to use the telephone to set up these appointments, whereas with this they could be referred directly to that provider and will not have to find the face-to-face provider themselves from those phone numbers, and those providers will have to make contact back to the person.
Noble Lords might bear in mind how flexible the system is within the new arrangements. In December, the noble Lord, Lord Bach, referred to the satisfaction rates with both the existing community legal advice helpline operator service and the specialist telephone advice service; 96 per cent of respondents found the operator service helpful, and the 2010 survey of clients advised by telephone showed that 90 per cent of respondents found the advice provided helpful. That is a very encouraging response.
As I emphasised, and as we will continue to emphasise, we will keep this under review so that we can make sure that it is working as effectively as possible. As my noble friend Lord McNally assured the House, I assure noble Lords that the telephone gateway will apply initially to only a limited number of areas of law and will be monitored from day one. Noble Lords have picked up on the review, but I assure them that we will keep a watching brief over this from the very beginning to make sure that it is working well. The engagement with stakeholders that has already taken place and the need to make sure that everyone’s needs are addressed is a reflection of that. I can give that further assurance.
I hope that noble Lords will support the Government in this area.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend again, but can she tell the House that the review will be undertaken by an independent experienced reviewer?
Baroness Northover
My noble friend assures me that we will review how this is working and publish the findings. I am sure that noble Lords will scrutinise that with the greatest of care. I reiterate that the operation of the system will be monitored from the very beginning. Therefore, noble Lords do not need simply to wait for the review at the end of two years to make sure that this is working in the way that we trust will assist people, as opposed to raising the concerns that noble Lords have expressed. I hope that the noble Baroness will be able to withdraw her amendment.
Baroness Grey-Thompson
I thank noble Lords who have taken part in this afternoon’s debate, in particular the noble Lord, Lord Phillips of Sudbury. Not for the first time, I wish that I had trained in the law rather than doing a politics degree. I accept that my wording could be slightly better but, as the noble Lord, Lord Wigley, said, it has been improved since the last time I moved the amendment.
It seems that we are stuck in two slightly inflexible viewpoints. I wholeheartedly agree with the noble Lord, Lord Low, when he says that there is a place for a gateway. However, I also believe that there is a place for something else to help the most vulnerable. One idiosyncrasy of this system is that an individual could go into a citizens advice bureau and ask for help but be told to ring a phone number and be sent away. In an ideal situation, that person would be able to stay in the citizens advice bureau and make the call from there, and could even have that third-party support. If they are sent away, they may take that to mean that they are not eligible or that they do not understand some of the issues.
I thank the noble Baroness, Lady Northover, for her comments. It is probably not the right time to debate this, but now that we have a system that can be accessed on the internet through www.directgov.com or by Skype and through phone calls—there is information coming back and forth—I wonder whether there are not almost too many options for people. Perhaps a gateway and the potential for a face-to-face interview might be the simplest way to do it.
I go back to the point made by the noble Lord, Lord Phillips of Sudbury. I am sure that everyone in your Lordships’ House knows one, two, or maybe more people who would struggle to make that first contact and might drop out of the system, finding it too much to cope with, and would therefore not be able to access the help that they need. So as much as there has been some positive movement today and some very positive comments, I am not reassured that the most vulnerable would be supported through this system. Very reluctantly, I wish to test the opinion of the House.
Lord McNally
That this House do not insist on its Amendment 31 to which the Commons have disagreed for their Reason 31A.
Lord McNally
My Lords, when we were opening this debate the noble Lord, Lord Alton, intervened to make the very valid point that it was only by him raising the issue of mesothelioma in debate in this House that this important issue has received the attention that it deserved. I pay tribute to him, having known him for a long time as an adept campaigner. Whatever happens, he can take great credit for the way that he has focused attention on this terrible disease. As with some of our other debates, however, this is not about whether you are in favour of or against mesothelioma victims. This is a debate about how our legal system is being reformed.
We are implementing fundamental reforms of conditional fee agreements, or CFAs, following the recommendations in Lord Justice Jackson’s review of civil litigation costs. The current regime allows for risk-free litigation for claimants and substantial additional costs for defendants. We want to restore a fair balance to the system, with meritorious cases being brought at proportionate cost. We are therefore abolishing recoverability of success fees and “after the event”, or ATE, insurance premiums. These reforms are intended to apply across the board and will cause a real shift in our society’s approach to litigation.
That is the general case, and it is important not to lose sight of it in considering respiratory disease claims, mesothelioma claims or others, but I want to repeat some specific points about mesothelioma. No one is suggesting that these tragic cases are contributing in any way to what has been described as a compensation culture—this is a horrible disease which acts very fast, and that suggestion has never been any part of my case in putting forward the Government’s position, as noble Lords know. It is a horrific disease and we have nothing but sympathy and compassion for its victims. Recent Governments of all colours have taken measures to help claimants in these cases, and this Government are continuing that work with due urgency.
Lord Alton of Liverpool
Leave out from “House” to end and insert “do insist on its Amendment 31”.
Lord Alton of Liverpool
My Lords, before the vote on 15 March on Report, a cross-party group of 18 Members of your Lordships’ House signed a letter urging us to defend the rights of mesothelioma victims. The House subsequently voted by a majority of 31 in favour of that amendment, which enables victims of asbestos to keep 100 per cent of their much-needed compensation. The amendment adds nothing to the public purse—that is why there is no financial privilege claim against it—but it seeks to support terminally ill victims of mesothelioma and their families.
All sides of your Lordships’ House have agreed that such cases are, as the Minister has just reiterated, not part of a compensation culture. No one has been able to give any examples of fraudulent or frivolous claims, and nothing that the noble Lord has said today would dispute that. Indeed, at no stage during our proceedings has he ever either asserted or implied that. However, I was concerned to see that the Minister in another place, Mr Jonathan Djanogly, in disputing this amendment, said that the current regime,
“was meant to promote access to justice but has frequently ended up as something of a racket allowing risk-free litigation for claimants, inflated profits for legal firms, and punitive additional costs for defendants”.—[Official Report, Commons, 17/4/12; col. 265.]
I wonder what the noble Lord has to say in contradicting that assertion made in another place. The Minister there was challenged to name one case where a mesothelioma victim had taken an unreasonable or vexatious case to court. He chose not to do so. On reflection, I am sure that he would want to reconsider linking bogus claims to the issue of mesothelioma.
The Minister then said two other things which I ask the noble Lord, Lord McNally, to ask his right honourable friend the Justice Secretary, Mr Kenneth Clarke, to ponder. One was the suggestion that people dying of mesothelioma should be “watching the clock”, which is a phrase that was used in the other place—in other words, policing what lawyers are charging. He said that,
“it is quite right that someone who employs a lawyer has some idea of what is on that lawyer’s clock and what they are charging. That is very important. If someone is sick, they will have family who can help them through their sickness”.—[Official Report, Commons, 17/4/12; col. 268.]
I suspect that when you are dying, especially from a debilitating and excruciatingly painful disease, you may have other things on your mind than watching the lawyer’s clock. As one widow put it:
“Mesothelioma sufferers are in constant pain and always fighting to breathe, they suffer horrendously and they and their families are traumatised at what the future holds”.
She also said:
“Whilst you are trying to cope with the physical and emotional trauma that comes with the words, terminal illness you cannot contemplate the extra worry and anxiety that claiming compensation would bring”.
It is also erroneous to suggest that everyone has relatives to fight their corner for them. Even if they do, should that be their primary concern when a loved one is in the last few months of their life? It is not the job of someone dying of mesothelioma to become the Government’s regulator or watchdog, watching the clock or challenging exorbitant legal fees. That is the job of regulators, not victims of a lethal industrial injury.
The Member for Wythenshawe and Sale East, Mr Paul Goggins, who kindly shepherded this amendment in the Commons, asked with great clarity:
“How can the Minister expect such victims and their families—people who have received the diagnosis and know that they are going to die—to shop around for the cheapest possible lawyer when they need every ounce of their energy to fight their disease?”.—[Official Report, Commons, 17/4/12; col. 278.]
Although our amendment was rejected in the Commons, it once again enjoyed all-party support and the government majority was one of the smallest since coming to office. That underlines the crucial role of your Lordships’ House in scrutinising legislation, especially on a day when the House is once again being told that it must be reformed. It is worth noting, as I did earlier in an intervention following the remarks of the noble Lord, Lord Higgins, that this issue was not even debated in earlier Commons stages. Our Lords amendment gave the Commons its first opportunity to consider an exception for those who had no chance of surviving their illness and little hope of seeing justice done in their lifetime. It is not a bad illustration of what one national newspaper described as “the conscience role” frequently played by this House and how it scrutinises and examines details of legislation and its effects. When an issue of this importance, affecting thousands of terminally ill people can be overlooked at Second Reading and then caught by a guillotine at Committee and Report stages, leaving it completely undebated, that raises some serious questions about which House is most in need of reform.
By sending this amendment back to the Commons, it finally allowed a one-hour debate to occur last Tuesday, although the Member for Scunthorpe, Mr Dakin, was at the very beginning of his remarks when the guillotine fell and we never got to hear what he wanted to say on behalf of his constituents. Other honourable Members of the House of Commons also hoped to speak but were unable to do so.
In the Division which followed, Conservative and Liberal Democrat Members of Parliament were among those who voted for the amendment. The speech by Tracey Crouch, the Member of Parliament for Chatham and Aylesford, who previously worked in the insurance industry, is especially noteworthy. She said:
“It is not my insurance background that drives my real interest in this issue; it is on a constituency basis that I care most. Medway has been highlighted as a hot spot for mesothelioma, which is unsurprising given that the towns have historically provided the industrial hub for Kent, and that the Chatham dockyard was one of the biggest employers for many decades”.
Supporting her, Andrew Bingham, Conservative Member of Parliament for High Peak commented on the all-pervasive nature of this pernicious disease. He said:
“My constituency, like that of my hon. Friend, has a higher than average incidence of mesothelioma. We have no shipbuilding, but there has been significant employment in other asbestos-related industries across the High Peak.—[Official Report, Commons, 17/4/12; col. 271.]
Unsurprisingly, with 30,000 deaths thus far, and many thousands more to come, many honourable Members talked about their own experiences in dealing with asbestos-related cases, and there was a series of very well made speeches. Mr Andy Slaughter, the Member of Parliament for Hammersmith, reminded the House of Commons that it is misleading to suggest that victims would be better off as a consequence of a 10 per cent uplift if some victims were to lose up to 25 per cent of their damages. He said:
“The Government have refused to reduce base costs for lawyers, which would be the obvious way to stop inflated costs. Instead, they are going after victims’ damages. The beneficiaries of all this will be the defendants and their insurers. They will have significantly reduced liabilities if they lose”.—[Official Report, Commons, 17/4/12; cols. 269-70.]
Tracey Crouch said:
“I note the Association of British Insurers is warning that mesothelioma sufferers might not benefit from those reforms if the amendment goes through. I do not believe that, and I want to issue the counter-warning that, on fatal industrial diseases such as mesothelioma, the Government will be judged on what they do to help victims, whether through financial or other types of support.—[Official Report, Commons, 17/4/12; col. 272.]
I spoke to Tracey Crouch earlier today and she told me that if we send this amendment back to the House of Commons she will persist in championing it. The reason why Members feel so strongly was summed up very well by Mr Ian Lucas, the Member of Parliament for Wrexham. He is a lawyer and said:
“I am a solicitor, and I did not go into the law to take damages away from a dying person, pending the outcome of a claim”.—[Official Report, Commons, 17/4/12; col. 275.]
Finally, in resisting the amendment in the Commons, Mr Djanogly said that if it were passed,
“claimants in mesothelioma cases would have an advantage over others”.—[Official Report, Commons, 17/4/12; col. 268.]
An advantage over others? It is hard to think of many advantages enjoyed by victims of mesothelioma. That was an ill-judged and insensitive remark.
The Minister argued that it would be unjust to single out one class of claimants for exemption. Of course it is never possible to do what we would like for everyone—I fully accept that—but does that mean that we can never see the difference between one category of victims and another? Is there not a difference between someone lodging a claim for whiplash and someone who has contracted a terminal illness? Are we really incapable of prioritising or seeing grounds for exceptions, as we have now, for instance, in medical negligence cases—and rightly so?
Noble Lords should recall that mesothelioma has attracted more legal challenges to limit liability for compensation than any other disease. Exceptionally, mesothelioma has a latency period of up to 60 years. It is a fatal disease; there is no cure. No industrial disease places claimants in such difficult circumstances when facing the stress of taking legal action.
It is moving to reflect on the comments of the late Lord Newton of Braintree, who was one of the key supporters of this amendment. Lord Newton, a former Secretary of State, Minister for disabled people and Leader of the House of Commons, referring to victims of asbestos exposure, said:
“I have some experience of claims relating to that disease—or rather to mesothelioma … I think there is a real case for wondering whether we should not maintain assistance to that group of people … this condition is what you might call very slow burn. Exposure to asbestos that occurred very many years ago may give rise much later to mesothelioma, one of the nastiest forms of cancer”.
He concluded by saying:
“I hope my noble friends on the Front Bench will not consider that this amendment would have a scattergun effect but that it is well targeted and deserves careful consideration”.—[Official Report, 30/1/12; col. 1359.]
In a letter to the Times from my noble and learned friend Lady Butler-Sloss, the noble Baroness, Lady Finlay, the noble Lords, Lord Beecham and Lord Avebury, and myself and others, we remarked on the creation of an exceptional injustice if this amendment is not supported. We said:
“Asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers”.
The letter urged Parliament,
“to protect asbestos victims from a gross injustice”.
Following the Commons debate, I am glad to say that the noble Lords, Lord McNally and Lord Freud, held talks last week with the right honourable Member for Wythenshawe and Sale East, Mr Goggins, and me. They are actively trying to find ways forward and I welcome that. As one can imagine, we were treated with characteristic respect and understanding. The movers of the amendment made it clear to Ministers that we are looking for a constructive outcome. If it comes to a Division, I hope that the House will continue to support the amendment while we continue to seek an agreed way forward. Society owes a huge debt to those who are now losing their lives to this terrible disease. Thousands of people will lose their lives in decades to come as a result of criminally negligent exposure to asbestos long after the dangers were known to government, industry and health and safety enforcement agencies. I hope that noble Lords will join me in keeping this issue in contention until a just solution is achieved. I beg to move.
Lord Avebury
My Lords, I join my noble friend Lord McNally in paying tribute to the noble Lord, Lord Alton, who has fought so tenaciously for the rights of mesothelioma victims and their bereaved families over many months and previously, before we got to these debates. I know that he has always espoused their rights and tried to do the best that he could for them. I also thank my noble friend Lord McNally for what he said about the Government’s intentions, the programme for settling cases without the necessity to go to court and the development of a scheme analogous to that which operates in the case of motor accidents where it is impossible to find the insurer. I welcome those moves but they are not in any way in conflict with what the noble Lord, Lord Alton, proposes in his amendment.
The arguments in favour of the amendment have been covered exhaustively in both Houses and I do not propose to repeat any of them now. I will say only that it is incomprehensible that, in the face of near unanimity on all sides among those who have spoken in those debates, the Government are still unwilling to give way. The argument that the amendment undermines the principle that in CFA cases the success fee and the ATE are to be paid by the winning claimant is destroyed by the concession that has been made on clinical negligence cases.
In moving to reject the amendment in another place, Mr Djanogly said that it was unnecessary because there was nothing in the Government’s proposals to prevent cases being taken or those affected receiving appropriate damages. If he had read the evidence that was provided by the Asbestos Victims Support Groups Forum UK, he would know that that was not true because many victims have said that they would not have brought cases if they had known that the success fees and ATE insurance would be deducted from the damages awarded. The Minister did not reply when asked directly by Kate Green whether he accepted that some cases would go unrepresented and unpursued.
Secondly, he trotted out the argument of inconsistency. Throughout these debates we have been perfectly clear in saying that we wanted to make an exception for the victims of what is universally acknowledged to be a particularly horrible disease that is invariably fatal, and the majority who voted for it were fully aware they were making an exception to the general pattern of CFA cases. The Minister then insinuated that the claims dealt with in the amendment were part of the compensation culture—an infamous suggestion when we are talking about people who are terminally ill. He went on to say that the Government were not persuaded that these cases were substantially different from other personal injury cases. I question whether he bothered to read our debates or has any knowledge of the ordeal that is experienced by mesothelioma sufferers in the final months of their lives. This is graphically described in the evidence submitted by the victims and relatives’ organisations, and known about directly by many past and present honourable Members from testimony that they received at their advice bureaux.
Finally, the Minister said that the Government were determined to bring down the cost of litigation. Let us be clear that, as my noble friend Lord McNally acknowledged, in this amendment we are talking about whether the claimant or the defendant pays the success fee. No cost to the taxpayer arises.
In another place, five Conservative honourable Members defied the Whip by voting for the mesothelioma amendment and several others abstained. It can be assumed that if it had been a free vote, the other place would have upheld the amendment and we would not be debating it today. It is only right that we should give them another opportunity to set aside the callous treatment that the Government have insisted on all along, and to substitute what we all know is the fair and compassionate answer.
Lord Morris of Aberavon
My Lords, I add my support to the noble Lord, Lord Alton. As constituency MPs, many of us saw cases to do with this very issue and the difficulties that some of our constituents had in establishing liability after years of contact. I added my name to the noble Lord’s original amendment and heard his speech then, which set out the case admirably. I congratulate him on continuing to expose such an injustice. At this late hour, all I wish to say is that my support continues and I hope that the noble Lord will succeed.
Lord Thomas of Gresford
My Lords, why success fees should be claimed at all by lawyers in this type of case just defeats me. The problem is in identifying the insurers of a particular firm that may have exposed the sufferer to asbestos many years before. I am delighted to hear that discussions are afoot on setting up a scheme akin to the Motor Insurers’ Bureau, whereby insurers come together to meet the damages and costs of a sufferer who cannot identify a particular insurance company behind his former employer. I hope that comes to pass. If it does, it will cure a lot of problems. It is obvious when a person suffers from mesothelioma; you do not have to prove that someone is suffering from this condition.
As a result of the Supreme Court’s decision last year, it has to be shown only that an employer has exposed an individual to asbestos in the past for that individual’s claim to succeed. The statistics show that these cases settle. What does that mean? It means that the fees of the lawyer are not at risk; he will have his ordinary fees paid by the insurer. Therefore, why should he get a success fee over and above that? On Report, I proposed that there should certainly be no success fee payable if a case settles before steps are taken to bring it to trial. I ask the Minister to take this into account when regulations are drawn up under what will be Section 46. The lawyer is not at risk. He has done nothing to earn more than the fees that he can properly charge. We did not have success fees in the past. We acted for people and, if we lost, we did not charge them. When we won, we got our costs and the expenses that we had paid from the other side, properly taxed. That was how the system worked.
I hope that the Government can bring in a combination of the Motor Insurers’ Bureau scheme for this type of case and couple it with regulations that say that no success fee should be charged when a case settles. That would do a great deal to alleviate the problems of which the noble Lord, Lord Alton, speaks. He is right. I stand along with Ian Lucas, my Member of Parliament in Wrexham, who as a lawyer says, “We didn’t come into this profession in order to take money from injured people”. I think that only a heartless claimant’s solicitor would charge a success fee in cases of this nature.
Lord Howarth of Newport
My Lords, I have no doubt at all about the sincerity of the noble Lord, Lord McNally, and the compassion for victims of mesothelioma that he expressed at the outset of his speech. None the less, he felt that he must advise the House to reject the amendment so powerfully moved by the noble Lord, Lord Alton of Liverpool.
I say to the Minister that there is no virtue for the Government in dogmatic consistency. I believe that they would do themselves good and, much more importantly, they would do a great deal of good for those diagnosed with mesothelioma, as well as their families and dependents, if they would agree to make an exception in this instance. If they were to do so, it would not create a permanent anomaly, and in the short term I do not believe that it would undermine the central principles of the Government’s reforms because they are absolutely secured in the legislation that Parliament will pass. In any case, the Minister need not fear because this is a category of cases that is going to reduce in number over time. Mesothelioma is, I understand, exclusively associated with exposure to asbestos. All too belatedly the terrible damage that asbestos can do to human health was recognised, and for some time due to regulations and industrial practice there has been no further exposure of people to this hazard. We can foretell with confidence that this category of cases will dwindle and, I think, disappear. Therefore, the Minister need not worry that there will be a permanent anomaly. I say to him that he does not need to persist in a doctrinaire position which runs counter to his own very real human sympathies.
Lord Faulks
My Lords, what was said in the other place about there being some advantage, as the noble Lord, Lord Alton, said, in any case of mesothelioma was most unfortunate and was, I hope, a simple slip of the tongue. Using this appalling disease to give an example of the compensation culture was equally ill advised. It plainly is not.
There is no dispute about the diagnosis of mesothelioma on any occasion. However, this is part of Part 2 of the Bill, and Amendments 31 and 32 have the effect of undermining the structure of the Bill. Part 2 was the result of Lord Justice Jackson’s report and represents an attempt to remove some of the more unattractive and, frankly, almost iniquitous aspects of the system that had grown up as a result of the changes unleashed by the previous Government’s legislation. The fact that this amendment would create an exception to this new, much fairer and proportionate system is not of course itself a reason for objecting to the amendment if it would be a denial of justice to these very deserving cases. There is no doubt that they are highly deserving cases and that they need compensation quickly. The Government have announced that there will be an increase in general damages by 10 per cent. I have to admit that I remain somewhat queasy, in common with other noble Lords, about the 25 per cent success fee that will be paid to successful lawyers in these cases, but the Government have said—and I think they are right—that the competition for these cases is such that they cannot imagine that those lawyers will insist on their success fee. A number of experienced lawyers are well geared up to taking these cases, as they have done over the years, and I very much doubt that they will want a success fee. They are, after all, as the noble Lord, Lord Thomas, said, lawyers who will recover the costs to which they are entitled. If those costs are not agreed, they will be entitled to have them assessed by a costs judge, and in due course qualified one-way costs shifting should assist.
Lord Carlile of Berriew
My Lords, the noble Lord, Lord Alton of Liverpool, has made a very persuasive case for those who suffer from mesothelioma. Part of that case is that he believes—and he has much support for this—that there will be sufferers from mesothelioma who will not be able to recover damages unless the amendment that was previously passed remains in the Bill. We have just heard from an expert on personal injury cases—my noble friend Lord Faulks—who has expressed the contrary view. He said that lawyers will be prepared to take these cases because they are not very difficult to prove and that there will be no deficit for potential claimants if the amendment is not restored to the Bill. That leaves those of us who are genuinely interested in knowing the truth about these claims on the horns of a dilemma. Given that there is no claim of financial privilege in relation to this amendment, the answer to that dilemma is extremely important.
Therefore, I, for one—and I am sure that other noble Lords around the House share this view—would be grateful if in replying to this debate or at some point during the debate the Minister could tell us whether the department has made an assessment of this problem. What is the department’s view? Does it accept that cases will not be brought if the amendment is not restored to the Bill? If so, there is a very powerful case for an exception, as otherwise people will be denied justice for an extremely serious illness by reason of what I think the noble Lord, Lord Howarth, called dogmatic consistency. I share his view that dogmatic consistency is not a necessity for any Act of Parliament. Indeed, one has only to examine half a dozen at random to see how little dogmatic consistency there is in Acts of Parliament. Therefore, I hope that the Minister will give us that information during this debate so that we can make an informed judgment in deciding whether to vote and, if so, how.
Lord Wills
My Lords, the case for this amendment was powerfully made in this House last month and in the other place last week, and I rise now briefly to add another voice in urging Ministers to think again, even at this late stage, and to try to find a constructive solution to this issue.
Before coming to your Lordships’ House, I was an MP in Swindon. Because of that town’s industrial history and particularly because of the large railway works, which employed many thousands of people over many years, this illness was known locally as the Swindon cancer. I, too, thank the noble Lord, Lord Alton, for his sterling efforts on behalf of all my former constituents who have suffered from this terrible disease and, I am afraid, will suffer from it in years ahead.
Ministers have claimed that it would be wrong for various reasons—I understand and completely accept what the noble Lord, Lord McNally, has said about this—to make a special case for this one disease. The fact, however, of this disease’s particular virulence, that it is inevitably fatal, that it progresses with terrifying speed, that it is hard even to find palliative care for it once it has taken hold, all argue powerfully for it being just such a special case.
It is unconscionable to force sufferers from this terrible disease, and their families, at a time when every hour is precious to them, to go through the processes required by this Bill to secure the compensation to which they are entitled. Those are fundamental points for me—whether they can secure lawyers and whether success fees are to be secured for the lawyers. Every hour is precious. The people who are diagnosed with this illness have months and sometimes only weeks to live. We should not force them to go through the processes required by this Bill.
As my noble friend Lord Howarth has already said, accepting this amendment would do no damage to the fundamental principles behind the Government’s reforms of the legal aid system. It is the only decent thing to do.
Lord Bach
My Lords, it is the Opposition’s view that there should be no moneys taken from victims’ damages in these cases. That is the basis of our view. So we speak in favour of the amendment that has been so well moved.
There is a great feeling across this House that we have to protect victims of industrial disease and ensure that they and their families are not victims once again of reforms that are there to deal with dodgy whiplash claims and motor insurance premiums. In another place, as we heard this evening, there was a very powerful and intelligent debate on this subject. Those who often express the view that debates in this Chamber are always of a superior nature to those of another place should read Hansard carefully and look at what took place in that very short hour towards the end of Tuesday last week. It was a very good debate.
Honourable Members on all sides of the Chamber spoke with passion, knowledge and experience about this subject. Not least was Ms Crouch, a former insurance executive, who criticised both her Minister and the Association of British Insurers for their stance on these amendments. Indeed, as I understand it, she has spoken to the noble Lord, Lord Alton, today and has also put out a press release. I am delighted that a number of Members of Parliament on all sides who spoke in that debate are listening to our debate this evening.
I could also mention Mr Andrew Percy who represents Brigg and Goole, which noble Lords will know is famous for its historic shipbuilding past, and Mr Andrew Bingham, the MP for High Peak, an area that also has a high incidence of asbestosis. They spoke against the Minister’s proposals and, to their credit, voted in the Opposition’s Lobby. Their concern was perfectly understandable. Why on earth, with absolutely no savings to the state, are we reducing the amount of money that victims get from those who harm them, while handing that money to lawyers or insurers instead? Those Members on all sides who voted were not persuaded by the stupid assertions—if I may call them that—of the Minister in the other place that industrial disease sufferers should be treated in the same way as an organised gang faking whiplash injuries for payouts or someone lying about a slip or a trip on a pavement crack. Again and again, the other place heard stories of horrific suffering of victims—and the fact that you simply cannot fake cancer of the pleural linings, peritoneum or cardiac sheath.
The history of asbestos-induced diseases—and, indeed, general industrial diseases—is not a proud one for the insurance industry. It knew for decades that asbestos killed before it acted and only then at Parliament’s promptings. Insurers have fought cases—to the death—trying to get out of paying just awards to genuine victims. There is a long history of insurers fighting claims until after the death of the claimant. It is in part thanks to their tireless lobbying that compensation levels in England and Wales are not by any standard generous in cases of this kind. They are forensically calculated to reflect pain, suffering and loss of amenity and costs of past and future losses. They are far less than victims receive in comparable jurisdictions. For example, Mealey’s Litigation Report in 2007 maintained that the average jury award in the United States for mesothelioma was $7.5 million—the average award here is £65,000. Of course, the differences between jury and judge-calculated awards and our judicial systems apply, but there is a huge difference.
No one could argue that the damages victims of this disease receive are very great; they should certainly not be eaten into in the way that this Bill, if allowed, would permit. We start from a low baseline before we even consider docking damages to prevent these claimants coming forwards.
Lord Thomas of Gresford
Does the Minister not support my argument that it is better that there should be no success fees at all, rather than that success fees should be claimed against the insurers, which is what this amendment amounts to—in other words, a continuation of the current system? Does the Minister not agree that in these cases, which are easy to prove once you establish the insurer, success fees are really irrelevant?
Lord Bach
I am grateful to the noble Lord again for calling me the Minister—it is a couple of years, I think, since that was the case. I take his point though; it is a serious point. I am not convinced that lawyers who take up these cases, if this Bill in its present form becomes law, will not take success fees. In fact, I am pretty certain that they will. I cannot see why they would not. It may be a shame, but in the reality of the legal world, if they are entitled to take success fees, they will do so.
Lord Faulks
Does the noble Lord have any basis for saying that other than simply speculating?
Lord Bach
I certainly do not have the experience of the noble Lord in this area of the law, but with the greatest respect I ask whether his view is not as speculative as mine. We just do not know, but I would have thought that the history of legal proceedings of this kind is that where success fees are available they will be sought. Maybe not always up to 25 per cent, but they will be sought.
Lord Thomas of Gresford
Surely it would be for the Lord Chancellor to amend the regulations that he has to make to prevent success fees being charged in these circumstances.
Lord Bach
That may be what the noble Lord, Lord Thomas of Gresford, would suggest to the Lord Chancellor that he should do, but is there any indication that that is what will be done? Will regulations be put before Parliament that say it is forbidden to take a success fee in a case of this kind? If so, will not the Lord Chancellor run into exactly the same sort of problems that critics of this amendment raise here against the noble Lord, Lord Alton, and me? Will that not be the position?
Lord Thomas of Gresford
Not if there is an abuse, as the noble Lord suggests. If claimants’ solicitors in cases which are not difficult to prove start charging success fees, which the Lord Chancellor or public opinion decide is simply not acceptable, then the Lord Chancellor will have the power to stop it.
Lord Bach
It may not be difficult to prove, and I understand what noble Lords say about that. But there is a history, I have to say, of insurance companies taking an extremely long time to agree to settle cases of this kind. For whatever reasons—and I do not want to go though them tonight in this House—it may be that a case will take quite a considerable period of time, even if, at the end, liability is not denied. I want to stop soon and allow the Minister to respond.
Lord Higgins
Does the noble Lord agree that the crucial thing we have to decide this evening is whether we should send the amendment back to the Commons? I find that I now understand the issues put forward by the noble Lord, Lord Alton, much better than I did at earlier stages of our parliamentary proceedings. Given all the representations that we have received, that is probably true at the other end of the building as well. Therefore, there may be a strong case on those grounds for their reconsidering it. The argument is otherwise very simple, which is that they did not conclude the debate on this amendment in the previous exchanges in the House of Commons. Therefore, if we send it back, it will give them an opportunity to do that. Indeed, if the Minister sought the leave of the House at the end of the debate in the other place, he could actually reply to the debate, which he was prevented from doing by his own guillotine.
Lord Bach
I am very grateful to the noble Lord—I think the whole House will be grateful to him—for shutting me up. That is the first thing that he succeeded in doing, but he also made the point that this is about whether this House believes that the other place should have a closer look at this. What worries me slightly is that, as I understand the programme Motion in the other place, there may be only one hour in the programme for all the matters that they have to consider; but I am not sure that I understand the procedures of this House, let alone those of the other place.
The noble Lord has persuaded me to sit down now. I think that was his intention. I look forward to hearing what the Minister has to say in response to the points that have been made. Surely the other place should take up this matter again—it is of such huge importance.
Lord McNally
I think it was the line, “I want to stop soon” that provoked my noble friend Lord Higgins to get to his feet.
Again, this has been a very useful debate, with two parallel arguments. I go back to my opening remarks: nobody underestimates the horror of mesothelioma and the importance of getting speedy redress for sufferers. Parallel to that, however, are the attempts that we are trying to bring forward to bring some order to the costs of litigation. It simply is not true that the Jackson reforms are intended just to catch dodgy whiplash claims. There was a general feeling that the amendments to CFAs which the previous Administration introduced brought in an overall inflation of costs in our legal system. We all pay for that inflation.
I hear what the noble Lord, Lord Wills, said, but the truth is that the present system which the sufferers have to use is slow and expensive. I repeat that the intention of this Government is to move as speedily as possible to get to where we can through agreement with the industry, to get litigation out of the way. It is true, as has been said by a number of noble Lords, that there was callous treatment of sufferers. There was slow movement in addressing the issue, but that accusation does not lie at this Government’s door. We have moved very quickly in our attempts to get agreement with the industry.
Lord Bach
As far as that is concerned, the setting up of a body in order to get a move on with this was mentioned in a White Paper from the previous Government two years ago. We have seen absolutely nothing after two years to suggest that that body will be set up soon. Indeed, every comment made by the insurance industry as a whole has been opposed to any organisation that would stand in, as it were, when they cannot find who is responsible for these diseases being caused.
Lord McNally
As I made clear in my opening remarks, my noble friend Lord Freud hopes to be able to make a Statement on this by the summer. The House, the insurance industry and sufferers from this disease should understand that we mean business on this. We are addressing this with a real sense of urgency. Whatever happens regarding this amendment, given the plight of sufferers from this disease, they deserve fairness and speed in settlement for the many reasons that have been put forward.
The noble Lord, Lord Howarth, said that there is no virtue in dogmatic consistency and he even had the strong support of my noble friend Lord Carlile in that. Certainly, there is no virtue in dogmatic consistency, but we need to consider the integrity of the legal system as a whole and fairness between different claimants. There are two parallel debates. There are the necessary Jackson reforms of legal costs, which will apply across the board, and the need to move with speed to get a system that deals with the problems of mesothelioma victims as quickly as possible. We can only make our impact assessments.
My noble friend Lord Carlile asked whether we thought that the Jackson reforms will prevent sufferers’ access to justice. We do not believe that. We would not have brought this forward if we had thought it. The point was made about success fees. I repeat that they are not compulsory. As my noble friend Lord Faulks has pointed out, there may be some proper, healthy competition among lawyers that will address the question of success fees.
It is not the responsibility of somebody suffering from a terminal illness to watch the clock as far as costs are concerned. It is the responsibility of government. The Jackson reforms take that responsibility away from claimants. Not just in this particular case but in the broad there was no responsibility on litigants or their lawyers to watch costs. That was the weakness of the whole system. The Jackson reforms put some emphasis back on to the responsibility to watch costs—not on somebody suffering from a terminal illness but through the reforms that we are putting through across the board in this area. For a claimant who does not have to pay a success fee, the 10 per cent uplift could mean more compensation than he or she would otherwise have got. I make no firm claim on that. It is not a question of being callous towards the sufferers. On the contrary, the Government are taking very speedy action to try to get in place an agreement which I am sure we all agree should have been in place many years before.
Sadly, this is not a problem that will go away. That is one of the reasons why I believe that we need a sense of urgency in our approach to this. Although we are now fully aware of the dangers of asbestos, this insidious disease can strike 20, 30 or 40 years after exposure. Therefore, there is a need not for a complicated, expensive, lawyer-based system of compensation, but for a system that will address the needs of sufferers. I am sorry that I cannot help more in relation to making it an exception. Horrific as the disease is, it is not an exception to the way in which the justice system should work. We should have a system in which lawyers get a proper return for the job that they do and in which those deserving compensation receive proper compensation. It is not a case of grabbing 25 per cent of that compensation. Competition and even some morality might drive that out of the system. Even bigger than that is the prize that the Government are seeking: a system that is not lawyer-based but one that is based on need, clearly agreed with the industry. As I have assured the House, we hope to make a Statement by the summer and we hope to have a system in place that brings speed and fairness to the sufferers of this disease. I ask the House to reject the amendment and to support the House of Commons resolution.
Lord Alton of Liverpool
My Lords, I am grateful to all noble Lords who have participated in this debate and in the earlier debates. The Minister has, with his usual courtesy, dealt with the arguments that have been put forward today. I reiterate my thanks to him for the time that he has spent with me, with Mr Paul Goggins last week and with the noble Lord, Lord Freud. He has said a number of things this evening on which the House should reflect, one of which was about the new scheme that it is hoped will be brought in in future and which will be a lot less reliant on lawyers. If we can achieve that, I think that there will be consensus in your Lordships’ House that it will be a very significant and purposeful step forward and it is certainly one that I will wholeheartedly support. The noble Lord, Lord McNally, has told us that that announcement will be made in the summer. However, it will require primary legislation, which is not before us, so there will be at least another 18 months from the time of the announcement before anything is on the statute book.
In the course of this evening’s proceedings, there has been dispute between different lawyers and different Members of your Lordships’ House about the practical effects of the law as now drafted on victims of mesothelioma. Pending the announcement in the summer and the new legislation that might come, I beg your Lordships not to play Russian roulette with the lives of people who have a terminal illness. I beg you not to be drawn into either side’s arguments about how this might work out and not to take chances but to preserve, as the noble Lord, Lord McNally, said the amendment would do, the status quo and keep things as they are at the moment until such time as we have something better to put in its place.
Success fees have been mentioned a great deal during the proceedings. The noble Lord, Lord Faulks, said that many lawyers would not want them, the noble Lord, Lord Thomas, said that they should not take them, and the Minister said that they would not be compulsory. However, the Bill provides for lawyers to take, if they wish, up to 25 per cent in compensation. They can take that as their payment, not for the base fee—they will get that anyway—but in addition to the base fee if they are successful in pursuing a case.
I agree with what the noble Lord, Lord Thomas, said earlier that it would be better if such a system were entirely swept away, but it has not been. If we are to wait for regulation, how do we know whether those regulations will be put forward by the Government or whether they will be successful? I do not think that we should do this on a wing and a prayer.
The noble Lord, Lord Avebury, thanked me for my persistence but, 40 years ago, in 1972, the noble Lord issued a pamphlet championing people who were suffering from mesothelioma. Thirty thousand people have died from the disease over the years. As the noble Lord, Lord McNally, has just intimated, probably the same sort of number will die before this is all over.
We are often accused of being preoccupied with fringe issues, but in a week or so, we shall have Workers’ Memorial Day. Surely, this evening, it would be fitting for us to recognise the sacrifice that workers have made in the service of their companies and this country in many heavy industries. This does not affect just those who have worked in heavy industries as even those who washed the clothes of people working in those industries have contracted this awful disease. Surely this is something on which we can raise our voices tonight, knowing that there are Members in another place who wish to pursue this further in the House of Commons and who were denied the opportunity to do so at earlier stages. Many of the issues that we have been debating this evening, which are new, should have been debated in Committee in another place much earlier on. We have been reassured that there are no financial questions. This is not about austerity; it is not about fraud; it is not about ambulance chasing; and it is not about a compensation culture. However, it is about elementary justice. I hope that your Lordships will agree with my Motion. I wish to test the opinion of the House.
Lord McNally
That this House do not insist on its Amendment 32 to which the Commons have disagreed for their Reason 32A.
Lord McNally
My Lords, Motion F contains Amendment 32, which seeks an exemption from Clauses 43, 45 and 46 for industrial disease claims. The Government cannot accept this very broad exemption to the provisions in Part 2, and the House of Commons has agreed with our position.
The suggested exemption is very wide and would cover all manner of conditions, including relatively minor problems that may be better resolved outside the courtroom. I take the point that there are all types of industrial disease claims with special factors. Where these exist, we can take specific actions, as I outlined earlier when speaking about mesothelioma, but industrial disease is potentially a very wide category, and I am not persuaded that it would be fair to treat the class of industrial disease claims differently from other types of personal injury claim. This may be of little comfort to individual victims of industrial disease, but we need to consider the integrity of the legal system as a whole and fairness between different claimants.
For all the sympathy that we have for sufferers of any industrial disease and the desire of all of us to make the legal process easier, particularly for those facing terminal illness, I cannot see that a system based on exceptions would be fair to other claimants. I fear that we would be failing in the wider duty of fairness in legal proceedings, which, as I mentioned in the earlier debate, is the key element behind the Jackson reforms. I urge the noble Lord not to insist on his amendment. I beg to move.
Motion F1 (as an amendment to Motion F)
Lord Wigley
Leave out from “House” to end and insert “do insist on its Amendment 32”.
Lord Wigley
My Lords, the House of Commons has rejected this amendment on the spurious grounds that it is inappropriate. That is a matter of opinion and judgment, no more and no less. Amendment 32 would exempt industrial disease claims from these changes. I supported the amendment that has just been passed by the House that relates specifically to exempting cases of respiratory disease from these changes. Amendment 32 goes wider to cover all diseases, conditions and illnesses that arise from a breach of duty owed by an employer to an employee, some of which may be much more complex than cases of mesothelioma, as we heard a moment ago. In the debate in the House of Commons, the argument was put that there should have been no specific amendment for one condition, such as mesothelioma, but a general approach. By passing this amendment, we give the House of Commons an opportunity to consider having that general approach.
I wish to draw to your Lordships’ attention to the meagre hour allowed in the Commons for debating Amendments 31 and 32. The Minister, Mr Djanogly, concentrated overwhelmingly, almost exclusively in fact, on Amendment 31. He said:
“the amendments are unnecessary. The legal climate in which mesothelioma cases can be brought has wholly changed in recent years”.—[Official Report, Commons, 17/4/12; col. 264.]
The whole tenor of the debate was in the context of mesothelioma, which we dealt with in our debate on the previous amendment. Of the 20 MPs who spoke, 15 spoke specifically about mesothelioma and 15 supported Amendment 32 when it came to a vote. The case against Amendment 32 was just not made in the Commons. We are supposed to respond to what the Commons has told us. It had not debated it at earlier stages, and it did not debate Amendment 32 in the hour that it had on 17 April.
At earlier stages during the passage of the Bill, the case has been made on the basis of road traffic claims and the savings that could be made in that context. Industrial disease cases are wholly different from road traffic accident claims; and, as many organisations, including the Association of Personal Injury Lawyers, have advised me, in road traffic accident claims liability is far simpler to prove than in industrial disease cases. That is why we need to have support for those cases, whatever the condition arising from industrial disease, not just mesothelioma. There is a range of other diseases. In the earlier debate, the Minister referred to further thought being given to mesothelioma by the Government and the DWP later this year. Presumably, on the basis of the argument that he put a moment ago, that further thought will also be given to the more complex cases that arise from other backgrounds in the industrial context. It is important to have the Minister’s response on the record on that.
We have been through these arguments many times, and I am not going to take up the time of the House in reiterating them. I beg to move.
Lord Bach
My Lords, I can be very brief on behalf of the Official Opposition. The Motion that was passed last time in this House was in my name, and it follows that we support the Motion in the name of the noble Lord, Lord Wigley, today. He has summed up the case extremely well, and in our view this amendment should be supported. It is quite wrong that any part of the damages awarded in industrial diseases should be taken from the successful claimant. In principle, it is wrong. Therefore we support the amendment.
Lord Phillips of Sudbury
My Lords, I can be very brief. There is a belief on this side that Amendment 32 would drive a coach and horses through the Jackson amendments, and we are broadly in support of the need to amend and reform conditional fee agreements and the like. I also draw the House’s attention to the fact that the wording of this amendment is extraordinarily wide. It will not apply just to cases of damages for industrial disease, as the heading would indicate; it will relate to any proceedings that include a claim for damages for a disease, condition or illness. That could be a minority part of the claim, and the rest, piggybacking on it, would also be outside the broad changes to these conditional fee agreements that have, in my view and in the view of the Government, had extremely unpropitious consequences for litigation generally, some of which we heard in discussion on the previous amendment. I am afraid that I oppose this amendment.
Lord McNally
My Lords, I am grateful for my noble friend’s support. We should move quickly to a decision on the matter. This is a very wide amendment. It ducks the issue that the Government have made central to this Bill and which I made in our debate on mesothelioma. Singling out a sector for special treatment is unfair across the board. We are looking in that case for non-legal solutions to the problems of the victims. The Government have taken action on a number of areas of specific industrial diseases and will continue to do so.
As I said at the beginning of my remarks, we will not undermine what most people saw in the system that is now in place: a very inflationary form of financing litigation where neither the claimant nor the lawyer has any need to concern themselves about cost. That is why Jackson was set up and why he came up with the solution that he has. As in previous cases, the idea that the 25 per cent is compulsory is not necessary. I should like to see much more competition and willingness to take these cases. Noble Lords have seen that it is easy to take very hard cases and then to say, “Well, we can’t go along with this”. If you do that, you dismantle the Jackson reforms. I believe that the debates in both Houses over the full period of this Bill have been mainly supportive of the central architecture of the Jackson reforms. I hope that when they vote on this amendment, noble Lords will see its flaws and will support what the Commons has proposed.
Lord Wigley
My Lords, I have listened carefully to what the Minister has said in this short debate, but the fact remains that if one considers the debates that took place at Second Reading, in Committee and on Report in the House of Commons, these issues have not been handled in depth and in detail. We have not seen the figures on how financial savings will arise in detail from the changes that are being made. If there are complexities in law with regard to many of the cases for compensation for injury or disease in a place of work, surely without financial support people will not be able to get the compensation to which they are entitled. If they are entitled to compensation, it is downright unacceptable that up to 25 per cent can be skimmed off.
Time after time the Minister has said that there is no compulsion to take up to 25 per cent. There may not be compulsion but it is available, and the Government have chosen to make it available. To my mind, and I believe to the minds of many noble Lords, that is unacceptable. The House of Commons needs to get its act in order and to apply itself in detail to these questions in a way that did not happen on 17 April when about one-third, at most, of an hour was allotted to the content of this amendment. For those reasons, I wish to test the will of the House.
Lord McNally
That this House do not insist on its Amendment 168 to which the Commons have disagreed for their Reason 168A, do not insist on its Amendments 169 and 240 and do agree with the Commons in their Amendments 240A and 240B.
Lord McNally
My Lords, the amendments in Motion G would bring the majority of welfare benefit matters back into scope. Before I get into the detail of this Motion, I want to remind the House that these amendments have been considered by the House of Commons. That House has disagreed with Amendment 168, ascribing financial privilege as the reason for doing so, and in place of Amendments 169 and 240 has accepted the Government’s amendments in lieu. Despite this, the noble Lord, Lord Bach, has tabled an amendment to Amendment 168 that would bring into scope advice and assistance for all welfare benefit appeals in the First-tier Tribunal. It is my opinion that this amendment will elicit the same response from the House of Commons.
As in our earlier debate, the fact that the amendment infringes privilege is the only reason that is given. I do not object to the amendment; as the Clerk of the House of Commons recently put it after a privilege reason, “That does not exclude a second try by the Lords”. However, as was said by the Joint Committee on Conventions, of which I was a member:
“If the Commons have disagreed to Lords Amendments on grounds of financial privilege, it is contrary to convention for the Lords to send back Amendments in lieu which clearly invite the same response”.
I put it to the House that the amendments tabled by the noble Lord, Lord Bach, will invite the same response—in fact more enthusiastically, in that they are wider.
As I have said many times, the Government consider that, in most cases, appellants can and do present their welfare benefit appeals in the First-tier Tribunal in plain language and without legal assistance. The tribunals system has been designed precisely so that they can do this. Indeed, a report by the president of the Social Entitlement Chamber of the First-tier Tribunal has pointed out that Department for Work and Pensions decisions are most commonly overturned because the tribunal elicits additional factual information from the appellant, usually in the form of oral evidence provided by the appellant. This suggests that legal arguments are not the most common reason for a welfare benefit decision being overturned in the tribunal. Furthermore, in his 2008-09 report, the president stated:
“The availability of this additional information suggests that there should be more direct engagement with the appellant”.
We have committed to ensuring that not-for-profit advice remains widely available and we have supported this view, as I reported earlier, with further funding, making available £16.8 million for advice service funding, which is already helping 300 front-line advice organisations. In addition, £20 million of funding will be made available in each of the financial years 2013-14 and 2014-15.
Perhaps I could draw the attention of the House to the government amendments, which, as I have said, I think are a genuine response by the Government to points that were made, not least from my own Benches. We have listened very carefully to the arguments raised here and in the House of Commons about retaining legal advice and some representation for onward appeals on a point of law in relation to a welfare benefit matter. At this point, I pay particular tribute to the noble Baroness, Lady Hollis, who has engaged in a constructive discussion on this topic with my noble friend Lord Freud. Her contribution has undoubtedly helped us to produce a sensible and workable solution.
We accept that legal aid may be justified in these cases and we offered government amendments in lieu in the House of Commons. These government amendments will make legal advice and assistance available for welfare benefit appeals on a point of law in the Upper Tribunal, including applications to the Upper Tribunal for permission to appeal. In addition, the amendments would bring into scope advice, assistance and representation for welfare benefit appeals in the Court of Appeal and the Supreme Court, including applications to these courts for permission to appeal. It is worth noting that the right to appeal to the Upper Tribunal in relation to a welfare benefit matter is a right to appeal on a point of law arising from a decision made by the First-tier Tribunal.
The House of Commons also recognises that there may be cases—although the Government think that there will be very few—where appeals relating to welfare benefits in the First-tier Tribunal will be on points of law. The Government have listened to arguments on this and have undertaken to look into this issue and investigate whether we can devise a workable system whereby advice and assistance can be made available for certain welfare benefit cases in the First-tier Tribunal.
We believe that the government amendments in lieu address the specific concerns in this House and seek to prioritise funding on cases where legal advice and assistance is most needed. I beg to move.
Lord Bach
My Lords, this House dislikes the Bill. I am referring not only to the 11 defeats and two draws that the Government sustained on Report or the defeats today but to a wider feeling that Part 1 in particular is mean-minded, picks on the poor, disabled and vulnerable and is not worthy of this country’s traditions and its legal system. This view is held virtually throughout the House. There were more than 50 speakers on Second Reading, but it is difficult to recall anyone who spoke up for Part 1.
I believe that many Conservatives are offended by the way in which the Government have picked on the poor and the vulnerable. It is against their traditions and they are unconvinced that there are any savings to be made by decimating social welfare law, particularly as the Government have consistently refused to give figures, in spite of committees asking them to do so.
I also believe that the Liberal Democrat Benches are offended by the taking out of scope debt, employment, immigration and, if the Government have their way, welfare benefit cases. If they had been in opposition now, I venture to suggest that they would have opposed Part 1 of the Bill with all their might, yet somehow, with some brave exceptions, which I will not name, they have been cajoled into voting for exactly the things with which they disagree most. The Minister is a liberal and humane man and I occasionally feel sorry for him, too. He has been obliged to put forward, particularly in relation to Part 1, nonsense after nonsense in support of his arguments.
Of course we welcome the Government’s amendment concerning upper court appeals. It was always ridiculous that claimants at an Upper-tier Tribunal—the Court of Appeal or the Supreme Court—should not automatically get legal aid to argue their case, which, as the Minister has just reminded us, can be only on a point of law. The Government knew all along that it was ridiculous and the Minister, to his great credit, never tried to argue seriously against it. We were always going to get this concession at some stage. I do not want to be difficult about the concession; we are grateful for it and for any part that the Minister may have had in getting it.
However, the position is still deeply unsatisfactory with regard to First-tier Tribunal appeals. Last Tuesday, in the other place, an extraordinarily unconvincing pantomime took place between the right honourable and learned gentleman the Lord Chancellor and the honourable Member Mr Tom Brake. I should explain to any noble Lords who do not know who Tom Brake is that he is the Commons equivalent of the noble Lord, Lord Thomas of Gresford. That is meant as a compliment to him.
The Lord Chancellor hinted tantalisingly—using expressions such as “if we can solve the problems”, “if we can find” and so on—that an arrangement might be reached whereby a lower-tier judge could certify a point of law and give legal aid to a claimant. I do not think it unfair to describe that arrangement as vague, unthought-out, superficial, strictly back-of-an-envelope stuff and, as we know, arranged very much at the last minute. Amazingly, however, it resulted in the said honourable Mr Brake immediately withdrawing an amendment that he and others had moved—not unlike my amendment today, as it happens. I am afraid that no one was fooled by this last-minute arranged minuet of an agreement. In a boxing match, it was a clear fixed fight, with Mr Brake going down to a knockout by arrangement in the second round.
Lord Thomas of Gresford
That is absolute rubbish. I say now—I would say it in a speech later—that it is not worthy of the noble Lord, Lord Bach, to attack Tom Brake in that way when he is not here to answer for himself. I am proud to be an associate of Tom Brake, who leads on legal matters in the House of Commons from the Back Benches, as I do here. He very bravely put forward that amendment and achieved a great success in getting the concession that he did, which I will develop at a later stage.
Lord Bach
If that was the concession that was sought, it was very poor fare indeed. The reasons why the deal is so unsatisfactory are numerous. Let me be brief about them. First, it is utterly impractical. What happens in real life is that, following an adverse review by the DWP, a claimant will decide whether to appeal to the lower tribunal. At present the claimant will be able to see a specialist adviser who will tell him whether there is a case or not. This prevents hopeless cases from clogging up the First-tier Tribunal but ensures that good cases go ahead to the First-tier Tribunal, which is a tribunal of fact and law.
None of this will happen under the proposed arrangement. How can a judge decide whether a case has a real point of law until it comes before him or her? Without sensible legal advice, it may never come before the First-tier Tribunal. This will mean that in practice many good cases, when mistakes have been made, are never taken up and may well mean that rubbish, hopeless cases clog up our already overburdened tribunals.
Secondly, this distinction between pure law and pure fact is a chimera. It is a nonsense at this stage. The First-tier Tribunal is not just a tribunal of law in the way that the second-tier tribunal is. It deals with the whole position and makes decisions on fact and law as they apply. Indeed, no one made that clearer than the Conservative Member of Parliament Mr Robert Buckland, who said in an intervention:
“I am listening to my right hon. and learned Friend’s arguments with great care, but I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand, and they are often best handled by a lawyer. I worry that we are making an artificial distinction”.—[Official Report, Commons, 17/04/12; col. 227.]
Later, in his speech, he said:
“A person does not come through the door of the citizens advice bureau, the law centre or the local practitioner saying, ‘I am a problem of fact’ or, ‘I am a problem of law.’ They come as individuals with a particular issue that needs untangling by somebody with expertise. That somebody will, I am afraid to say, often be a lawyer. That is a fact and we should not shy away from it. Often a lawyer can quickly, in the provision of advice—I am not talking about representation in the tribunal at this stage—”
I should say that nor are we, in the course of this amendment—
“sort out the problem effectively”.—[Official Report, Commons 17/4/12; col. 248.]
He could not have put the case better for the amendment and against the very vague arrangement that was mentioned in the other place last Tuesday.
Let us look at a real-life impact of the measure that the Government propose. According to official figures last year, 173,880 people appealed a benefits decision in the First-tier Tribunals. Of those, 161,400 related to disability benefits—that is, 80 per cent—including incapacity benefit, employment support allowance, and DLA or industrial injuries disablement benefit. About 60 per cent of all appellants who received advice from a front-line agency won their case but only 39 per cent of those who did not receive advice won their case. That is clear evidence of what can be called the advice premium.
In short, meritorious claimants are more likely to win their case if they have been advised in advance. Overall, 45 per cent of those before the tribunals won their case. I hope that that puts paid to any notion that the majority of appeals lack merit or involve chancers having a go. Clearly there is a substantial need for a mechanism to correct errors. We all know that the department makes errors all the time—and that will happen as long as life goes on.
I regret that I must note that 45 per cent represents a marked increase over the previous year, in which 38 per cent won their cases, itself the culmination of years of improvement. So last year represents a sudden and significant degradation in the quality of decision-making in state agencies, which is quite the opposite to the claims made by the Government that the DWP is working to make the system more effective. The worst degradation in decision-making was for employment support allowance, on which overall half the appellants won their case. To put that in numbers terms, more than 40,000 disabled people a year have their employment support allowance reinstated after a First-tier Tribunal ruling that overturns erroneous decisions from the DWP. Again, there are marked disparities in the percentage of appellants who succeed, based on whether they receive advice or not, with some 70 per cent of advised ESA appellants winning and only 43 per cent of unadvised appellants winning. We are talking about advice, not representation. The conclusion is that advice really matters.
We argue—and I hope that the House is with us—that the present system works all right. It is true that tribunals are already overburdened, but we are now in an age of austerity and we have coming up the road radical welfare benefit reform about to commence. There will be mistake after mistake made by the authorities, so how can this be the right time to take away or remove our fellow citizens’ rights to have wrong decisions corrected—decisions that for some actually make the difference between a decent life and one wrecked by poverty and insecurity?
If our amendment were passed, it would cost the Government at most £15 million. All commentators agree that the Government’s proposals will cost the state much more in the end because, if people do not get that expert early advice, their lives go wrong. The problems that they have can be dealt with, and have been dealt with for years, by not-for-profit organisations such as law centres and CABs, in which advice on social welfare law and the law for everyday life is given for free under legal aid. If that advice is no longer available, those problems get worse and multiply and in the end the state has to pay out much more in picking up the pieces.
We do not believe that, for £15 million, which is what the Government claim would be saved by changing this system—that is, by not allowing advice at the early stage—that can possibly be sensible. This Government have, for example, found £250 million in order that we might all have weekly bin collections, but they cannot afford £15 million per year in order that people can get advice. A system that was set up by a Conservative Government, under the noble and learned Lord, Lord Mackay of Clashfern, and supported by previous Conservative Governments, as well as by the Liberal Democrats over the years, and by us, is to be completely overthrown in order, in fact, not to save any money at all.
Our amendment would allow early advice to see whether a case was one that was suitable for First-tier Tribunal or not. That is all that we are asking the House to agree to tonight. This is basically the same amendment that the noble Baroness, Lady Doocey, moved on Report, but because there is financial privilege we have lessened it. It is not for the review period—the review to the DWP. It comes into play only when there is consideration of whether to go to the First-tier Tribunal. I beg to move.
Lord Thomas of Gresford
My Lords, I am very pleased to welcome the government amendment in lieu, which follows very closely the amendments that the Liberal Democrats put down, both in Committee and on Report, for ensuring that there is proper legal support for appeals on a point of law to the Upper Tribunal, the Court of Appeal or the Supreme Court. The Government are to be congratulated on taking that step.
The lacuna in the amendment that I moved in Committee and on Report was that legal points might arise at First-tier Tribunal hearings. It was to that end that my colleague Mr Tom Brake put down an amendment in order to clarify that, or to try to obtain a concession from the Government in relation to that, when the matter came before the Commons. A number of points have been made about it. About 80 per cent of cases, maybe more, before the First-tier Tribunal are decided on the facts: whether a person has sustained a particular injury, whether that injury disables him from doing a particular job or whatever. It covers a wide range of possibilities, but it is usually a factual issue.
However, from time to time a point of law arises. Now, there is no difficulty whatever in identifying what a point of law is. The best illustration that I can make is the famous case of Donoghue and Stevenson—the snail in the ginger beer bottle. For the purposes of coming to a conclusion on the law of negligence and how it should develop, the House of Lords, in considering that case from Scotland in the 1930s, assumed that the claimant’s facts were true; namely, that there was a snail in the ginger beer bottle that the claimant drank. Accordingly, all the argument was based upon that assumed fact. As a result, the law was clarified and developed, and is the foundation of the law of negligence to this day. When the case was remitted to the Scottish court to determine the facts, it was discovered that it was impossible to prove that there was a snail in the ginger beer bottle at all. Consequently the claim was, I think, settled, or it may have failed, but that is the distinction. A point of law is when you have a difficulty in coming to a conclusion, even if the claimant’s facts are true.
The First-tier Tribunal will frequently be faced with mixed facts and law. That is to say, it will have to determine what the facts are and, in that light, consider whether there is any legal problem in the statutory provisions—any point of law—which has to be decided as well before the claimant gets his compensation, allowance or benefit, or whatever it may happen to be. So there is no problem. Every day, in every court and tribunal, points of law are being disclosed, discovered, analysed and dealt with. Indeed, you cannot appeal from the First-tier Tribunal to the Upper Tribunal unless there is a point of law that the First-tier Tribunal identifies. Similarly, in going from the Upper Tribunal to the Court of Appeal or the Supreme Court, there has to be a point of law, so there is no problem—as there appeared to be among certain minds in the other place—as to what a point of law is.
The problem that one has to face is: can an unrepresented applicant determine himself whether there is a point of law? There are two answers to that. First, any tribunal with a legally qualified chairman will perceive that there is a point of law involved in coming to a conclusion on the case, so it is in the hands of the chairman of the tribunal to determine whether a point of law arises. If it is unexpected, he can stop the case there, adjourn it and give legal aid for the case to be argued properly by a lawyer who is familiar with the statutory provisions. There is then equality on both sides. However, there is another approach. In the criminal context, if I am prosecuting and the defendant is representing himself when appearing in court, and if I as the prosecutor—the qualified lawyer—realise that a point of law arises which the unrepresented defendant has not realised, it is my professional duty to tell that defendant in a criminal case, “Look, there is a point of law in your case, which you should mention to the judge. Let’s have a discussion about it”. It is my job to bring it out.
I suggest to the Government that when it comes to tribunals, anybody representing the state—the Government or a government department—in a tribunal should be under a duty, which regulation should point out, to inform an unrepresented applicant if that state representative appreciates that a point of law arises. This is so that before they even get before the tribunal, the state representative will have told the litigant or applicant in person, “Look, my friend, you have a point of law in this case, which you must mention to the tribunal judge. If you don’t do it, I will”. That is the tradition of the legal system, and it must apply even when the state is represented not by lawyers but by representatives of the department in question. I urge upon my noble friend that he takes that on board and ensures that there is such a duty, as there is elsewhere, for lawyers to point out to the unrepresented applicant that there is a point that he should take.
I am very pleased that points of law will be properly dealt with under the government amendment. I hope that the moves that the Lord Chancellor makes to ensure that, where a point of law arises in a First-tier Tribunal, a case is either by agreement put forward for legal aid or the tribunal chairman will stop the proceedings and adjourn them until the point can be properly argued. In my view, that is the way in which all the fears that have been expressed on the position of the unrepresented applicant will be dealt with.
Lord Low of Dalston
My Lords, I supported the amendment tabled by the noble Baroness, Lady Doocey, on Report, so I have no hesitation in supporting the more limited amendment moved so fully by the noble Lord, Lord Bach, this evening. I hope that the House will ask the Commons to think further on this matter. I will say something about the substance in a minute, but I am glad that the noble Lord, Lord McNally, has emphasised the question of financial privilege because I want to say another word about that, if the House can bear it.
I come at this from a slightly different angle. There has been a change in the composition of the House of Lords in the past 10 years. I am not referring to the reduction in the number of hereditaries but to one that has been rather less remarked; namely, the appointment of so-called people’s Peers by the Appointments Commission. I am not greatly enamoured of the term “people’s Peers” but, for once, it may perhaps point to a reality that is worth observing—the links that those Peers, not being just the great and the good and the beneficiaries of political patronage, have with the diversity of civil society, which is something that the Appointments Commission has been keen to foster. They have been appointed for the distinctive contribution that they make and their ability to devote sufficient time to the work of the House. That last is an expressed criterion of appointment. I would not want to make too much of this, and I certainly do not wish to disparage other Peers, but the so-called people’s Peers have been specifically appointed on merit for the time, perspective and expertise that they can bring to the work of the House, including that of scrutinising legislation, and for their ability to reach and give a voice to parts of society that are not always reached.
That is part of what makes the Lords more accessible in some ways than the Commons. It is this House and not the other place that has been widely seen as speaking for the vulnerable and dispossessed in our consideration of the Welfare Reform Bill and this Bill. The House has done itself a deal of good. This may not be election but it adds a measure of legitimacy, or at least detracts somewhat from the air of illegitimacy, which is said to attend this House. We all know that the Commons has primacy in matters of supply, but I am sure that I speak for my colleagues when I say that this blanket resort to the claim of financial privilege as a ground for the summary negation of weeks of the very work we were appointed to this House to perform sits very ill indeed with the job description on which we were appointed to this place. It seems to me that it is the Commons’ heavy-handed use of the claim of financial privilege and not the existence of the House of Lords that deserves to be likened to what is going on in Syria or an affront to democracy.
The noble Lord, Lord Martin, whom we all greatly respect, and the noble Lord, Lord McNally, whom we also respect, say that the assertion of privilege is a completely objective matter decided on impartially by the Speaker and his advisers and has nothing to do with the Government. The Speaker may be the conduit through which these claims are asserted but, with the greatest respect, as the noble Lord, Lord Howarth, has indicated, if you believe that the Government have nothing to do with it, you will believe anything.
Scholars differ about the extent of financial privilege but Dr Jeff King, a senior lecturer in law at University College London, said:
“The Lords has the clear right not to accept the Commons assertion of privilege without a protest”.
Lord Martin of Springburn
May I interrupt the noble Lord? It is very kind of him to mention me. I support everything that he says. However, on privilege, all the Speaker does is to remind the House that it is dealing with amendments that have come from the other place that involve privilege. If the other place wishes to accept those amendments, that is recorded in the Journal of the House. That is all the Speaker does. I make the point because when this last came up, there was an implication that the Speaker was perhaps pushed by the government Whips. I just make the point that the Speaker does not often listen to the Whips. In fact, the Speaker meeting the Whips is usually like a penance during Lent. I agree with everything that the noble Lord, Lord Low, has said. The reasons given are not a matter for the Speaker. They are agreed in the reasons room after decisions have been made. The reason can be to do with finance, but on other occasions other reasons are given. I hope I have not been too long-winded in interrupting the noble Lord’s flow.
Lord Low of Dalston
I am very grateful to the noble Lord. We are in a happy state of accord. He agrees with everything that I say and I agree with everything that he has said. I do not wish to suggest that the Speaker in the other place acts in any way other than objectively. I do not think that the Speaker brings any kind of subjective judgment to bear on these matters; he just rules on these cases. However, it stretches credulity to suggest that forces other than the Speaker—to whit, the Government—may not have a role in raising the matters about which the Speaker has to remind the House. That is all that I meant to say.
I am nearly at the end of this point but I shall go back to the beginning of the quote from Jeff King of University College London. He said:
“The Lords has the clear right not to accept the Commons assertion of privilege without a protest. At risk is the Lords’ future scrutiny of legislation on … the whole of social policy. At the least one hopes the Lords will respond that they do not consent to the Commons’ use of financial privilege on this bill constituting a precedent”.
He was referring to the Welfare Reform Bill on that occasion. As a non-party-political Peer, appointed by the Appointments Commission—if not with a particular mandate, at least on a particular set of understandings—I protest at the blanket use of financial privilege by the Commons to summarily defeat amendments passed in your Lordships’ House. We should not consent to its constituting a precedent, either.
In coming to the substance, I can be fairly brief. The noble Lord, Lord Bach, has set out the case very fully and I do not want to reiterate unduly what he said. However, I underline that this amendment is of enormous significance. The Government’s proposed exclusion from legal aid of the area of welfare benefits is colossal. According to their own impact assessment, removing welfare benefit cases from the scope of legal aid will deny at least 78,000 disabled people specialist legal advice on complex welfare benefit problems. Citizens Advice has estimated that it will amount to 49 per cent of its current legal aid caseload.
Disabled people are particularly disproportionately affected by the removal of welfare benefits from the scope of legal aid. As the noble Lord, Lord Bach, said, 81 per cent of benefits cases heard in the First-tier Tribunal relate to disability benefits. As we know, the Government are undertaking a dramatic overhaul of the welfare benefits system. This will see millions of claimants reassessed and moved on to different benefits. For example, plans to replace disability living allowance with the personal independence payment will affect more than 2 million people. At a time of such unprecedented upheaval in the welfare system, access to legal advice is going to be essential, as inaccurate decisions will be inevitable. Indeed, even after three years of discredited Atos Healthcare assessments of people seeking to transfer from incapacity benefit to employment and support allowance, the success rate of appeals is actually going up. As we have heard, it was 45 per cent at the last count. As the noble Lord, Lord Bach, said, legal advice makes all the difference; it is not just marginal. According to the MoJ’s own figures, you are 78 per cent more likely to win your case if you have had legal advice. Of those appealing against their assessment for ESA, 70 per cent of those who are advised win compared with only 43 per cent of those who are not advised.
The Government are in danger of getting themselves into the position where they are criticised for kicking a man down and then depriving him of the means of getting up again. I think we should give the Commons another chance to avoid that charge.
Baroness Doocey
My Lords, I speak in support of Amendment 168B. I share the view of the noble Lord, Lord Bach, that the Government’s concessions are not an adequate substitute for the loss of legal aid.
The Government have acknowledged the fundamental principle that civil liberties are nothing if you cannot enforce them. If you do not have the money or the knowledge to defend your rights then, sadly, these rights become meaningless. That is where the legal aid system is so important, particularly for the many disabled people who depend on welfare benefits in order to survive.
The Government seem to support this principle in theory but not in practice. The Secretary of State’s statement that such legal aid should be available only on a “point of law” offers little in the way of practical help for disabled people appealing against incorrect welfare benefit decisions, the majority of which are then overturned on appeal. The difficulty is that it is completely unrealistic to assume that people with no legal knowledge whatever will be able to understand what a point of law is. I believe that many people will not even bring an appeal because they will not have the knowledge or the confidence to do so without legal advice.
The Government’s belief that their advice services fund is an adequate substitute for legal aid is groundless because it will not mitigate the cuts in legal aid. The fund was hugely oversubscribed, and in this financial year less than a third of the money has been allocated to organisations delivering advice on welfare benefits.
The Government have announced a further £20 million of funding for the next two years, and that is of course most welcome. However, this is likely to be spent plugging the gaps in generalist advice services caused by cuts to other funding sources, leaving specialist welfare benefits advice unfunded. Once legal aid cuts are introduced, the advice sector will lose at least £100 million a year, so the £20 million fund will make only a very small dent in this shortfall.
The inadequacy of the funding is exacerbated by the rising demand for services that most charities are facing. A recent survey carried out by Justice for All found that nearly 90 per cent of advice charities had more people coming to them for help in the last year, yet over 80 per cent of the same charities also predicted that, despite this increase in demand, they will be able to help many fewer people next year.
Discretionary funding is no alternative to retaining legal aid because it imposes no duty on the Government to fund specialist services and will guarantee nothing for advice agencies. Unless welfare benefit advice is retained within the scope of legal aid, it will limit access to justice and the right of people to enforce their freedoms.
The Department for Work and Pensions already reimburses the Ministry of Justice for the cost of running the tribunals, which was necessary after the huge increase in appeals caused by the introduction of employment and support allowance. It is unclear to me why this approach cannot be extended to cover the cost of independent advice to improve the effectiveness of these same tribunals.
We must do everything possible to protect the most vulnerable people in our society. I therefore urge the House to continue to press the Government to give more concrete assurances that disabled people will be able to access legal aid advice when appealing welfare benefit decisions.
Lord Howarth of Newport
On 17 April, the Lord Chancellor said to the House of Commons:
“There is no doubt that the present level of legal aid provision is on any measure unaffordably expensive ... Even after our reforms have been carried … we will still have by far the most costly legal aid system in the world. It is almost twice as expensive as that in any other country per head of population”.—[Official Report, Commons, 17/4/12; col. 217.]
The amendments that the other place addressed on 17 April concerned civil legal aid, and I would be grateful if the Minister would advise us as to which common law jurisdictions in other countries actually spend twice per head of population on civil legal aid that we do. I recognise that our expenditure on criminal legal aid is very high by international standards, but the Government have not chosen to reform criminal legal aid. We are dealing here with the reform of civil legal aid. I wonder whether what we are being asked to accept is based on a false premise. I very much doubt that it is correct that our expenditure on civil legal aid is so enormously out of line as the Lord Chancellor suggested. I am very willing to be corrected.
At all events, my noble friend Lord Bach ventured an estimate that the cost of the amendment that we are debating now might be some £15 million. Again, I ask the Minister whether he believes that, in the context of public expenditure of the order of £100 billion per year, the expenditure of £15 million to provide legal aid to support welfare benefit claimants in cases where there is real reason to doubt whether the assessment or the adjudication that has been made of their case is appropriate is unaffordable or disproportionate.
The Lord Chancellor last week in the House of Commons put the figure at £25 million, so £15 million or £25 million in relation to social security expenditure of £100 billion does not seem inordinately expensive. Yet, he said:
“we cannot afford provision in an area of relatively low priority”.—[Official Report, Commons, 17/4/12; col. 224.]
Is it appropriate to describe such an area of expenditure as a relatively low priority? We are dealing with cases of people in poverty. There would be no question of their being eligible for welfare benefits unless they were on low incomes. The risk for them, if they are not awarded benefit, is that they will be cast into abject poverty. For them, this is not a matter of relatively low priority, and nor should it be for us.
The ration that the Legal Services Commission offers of £160 in legal aid to support advice and assistance in welfare benefits cases at an early stage is by no means extravagant—indeed, it represents very good value for money—and may make all the difference to people who may be awarded legal aid or benefits from organisations funded by legal aid as to whether they can lead decent and proper lives, reconstruct their situations, support their families and live other than in poverty.
Lord Wigley
My Lords, I am glad to have the opportunity to support the amendment of the noble Lord, Lord Bach, and the comments of the noble Baroness, Lady Doocey, and the noble Lord, Lord Low, particularly in the context of disability. I speak having sat through the Welfare Reform Bill, as a number of us did for many months during the winter, and having seen the complexity that was just referred to a minute ago by the noble Lord, Lord Howarth. When the regulations under this legislation come forward and people’s well-being—the basics of their lives—may be at stake, they may need the ability to follow appeals to wherever they go.
I want to ask the Minister about the new provisions set out by the Government in Amendments 240A and 240B. They are welcome in that they preserve legal aid for welfare benefits advice for onward appeals to the Upper Tribunal, the Court of Appeal and the Supreme Court. As mentioned earlier, such appeals rest on points of law that are highly complex and which lay people can hardly be expected to cope with alone. Now that the Government have started to recognise the problems inherent in points of law in appeals, why do they not see fit to roll out the same provisions for other areas of law where points of law would arise? Surely such provisions should not be limited just to welfare benefits appeals. Now that the Government have the power to change this Bill by order, especially in respect of the scope of legal aid, I would welcome the Minister’s assurance that they will look again at retaining legal aid for advice on points of law in other complex areas of law, for example immigration appeals. Important principles arise from the changes being made and I would be very glad to have some indication from the Minister about where this might be taking us.
Lord Martin of Springburn
My Lords, the noble Lord has made many very interesting points but, at the end, he said that it would be good if the House of Commons had another chance to look at this matter. If the amendment were carried, the other place would have a chance to look at this. I heard the Minister’s comments about financial privilege, but I do not share his point of view that if we put back the amendment we are being unfair to the House of Commons or to the traditions of this House.
I think of the situations that I had to face in my former constituency where there was a great deal of poverty. I heard many academics say that it was terrible that in the east end of Glasgow and in parts of the north end of Glasgow the life expectancy of people was such that you had a better chance of survival if you lived in Calcutta. It is all very well for an academic to say that, but people in areas of great poverty in my former constituency did not always get the benefits to which they were entitled. But if they go to the first line of appeal, it will be most unfair if they do not get legal aid. In the city of Glasgow, many lawyers recognise that people who have little or no income need the help of lawyers to articulate their cases.
We should not forget that when an appeal is made, often a recipient cannot speak up for themselves—perhaps because they are stroke victims—and cannot communicate, and therefore the carer has to worry about the benefits that they are losing. The carer has a 24-hour job. When someone says they are a carer it rolls off the tongue, but that carer can be up at three in the morning or may be denied the opportunity of a social life. They have to worry about going along to a tribunal on behalf of someone whom they love dearly and whom they are caring for seven days a week and it is a great relief to many of those people if they can get legal aid which will help them so much.
It used to be the case—I know it was a while ago—that if a working man or woman had to get the help of a solicitor, they had to go into the city centre but then lawyers realised that help was needed in the peripheral areas. Many legal companies operate in what used to be shops. They rent shops and now they are in the heart of very poor communities. It would be most unfortunate if people who need help, particularly carers, do not get assistance from those who are legally qualified and able to articulate a case for them.
Lord McNally
My Lords, when the Government launched their consultative Green Paper on this legislation nearly two years ago and I made one of my first ministerial responses from this Dispatch Box, I made it clear that I was aware that we were making some tough and difficult decisions about legal aid. We have heard many times in many debates over the past 18 months that X, Y, or Z is attacking, undermining, or damaging the most vulnerable in our society. I have listened to those debates, but I remain convinced that what would have damaged the most vulnerable in our society more would have been if we had not taken the tough economic decisions necessary to put our economy right. It is no use noble Lords opposite shaking their heads. We were a lot poorer than we thought we were and every government department has had to make tough decisions. My own has had to take cuts of 23 per cent across the board over this spending review. That has meant tough decisions not only in terms of legal aid, but in staff numbers and in other aspects of the Ministry of Justice’s work.
We have never ducked the fact that we have made some hard decisions in this matter. Neither have we ducked the fact that our approach to cutting the legal aid budget meant taking the bulk of social welfare law out of scope. We had taken the decision to focus on civil legal aid. The term “relatively low priority” refers to our view that in terms of criminal legal aid we are talking about people’s liberty and reputation. It is an important part of our system that people should have legal aid in this area.
Lord Howarth of Newport
Is the Minister therefore confident that there is no waste in the criminal legal aid budget and that there are no rackets there? Is he confident that this is an area that did not need the Government’s attention and that since the Treasury obliged his department to find savings of 23 per cent it really needed to focus its effort on the civil legal aid budget?
Lord McNally
On the contrary. I am sure that the noble Lord, Lord Bach, is ready to leap to his feet to draw attention to the fact that we have carried through the savings in criminal legal aid that the previous Administration put in train.
Lord Bach
Yes, I am pleased that the Government have done that, but that figure is included in the 8 per cent that they have taken off criminal legal aid. They have taken 29 per cent off family legal aid, as well as 53 per cent off social welfare law. Why that distinction? Why take 8 per cent from a large amount on criminal legal aid, 29 per cent on family law but 53 per cent of a pretty small budget on social welfare law? That is deliberate, is it not?
Lord McNally
Of course it is deliberate. One of the things about that rather long opening speech is that it is the same speech that the noble Lord has been making for 18 months. I appreciate that he disagrees with our judgment on social welfare law, but we have never made any bones about the fact that that is where we took a tough decision. On criminal legal aid, I am quite sure that we will return to it, but the judgment we made was that since the previous Administration had made a series of quite significant cuts in criminal legal aid, we would allow them to bed in before returning to that matter. The fact is that the decisions have been tough, and we stand by the fact that tough decisions were required in the economic circumstances that we found ourselves in and also because successive Administrations have said that the legal aid system was in need of reform.
I do not know whether we have got the specific answers to the question asked by the noble Lord, Lord Howarth, about the balance in other common law countries. I have never used comparisons with continental legal things; I have always made the point that as far as Britain is concerned the comparison is with common law countries. Many months ago, on my return from the Commonwealth Law Conference in Sydney, I mentioned that the one message I brought back from Commonwealth countries with legal aid systems was their amazement at the generosity of the British system.
We are in a process in which we have had to take tough decisions. Some of the contributions today by the noble Lords, Lord Low and Lord Martin, and the noble Baroness, Lady Doocey, almost made the case that the only practical help is legal advice. That is not something we accept. We think that in these cases there are other forms of advice that are just as valuable.
On the point made by the noble Lord, Lord Martin, that I had said that we cannot give offence to the House of Commons, I think that if he checks Hansard he will find that I have never been against this House giving offence to the House of Commons. Indeed, I quoted the Companion earlier:
“Criticism of proceedings in the House of Commons or of Commons Speaker’s rulings is out of order”.
However, the Companion goes on to state that,
“criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons”.
Lord Martin of Springburn
I think that the Minister suggested that for this House to send the amendment back again was against the conventions of this House.
Lord McNally
It is not. I quoted from the Cunningham committee which held that opinion. There was a point when it was against the conventions of the House.
Lord Martin of Springburn
That is an opinion of a committee; it is not a convention of this House. The opinion of a committee is just that: an opinion.
Lord McNally
Nobody is suggesting that if this House wants to send the amendment back, it is not entitled to do so. I heard what the noble Lord, Lord Low, said about the importance of people’s Peers. He may know that it is my long-standing opinion that having a party-political label does not somehow lower one’s capacity to take views on legislation. Indeed, for many hours in this House the only people taking a detailed view of legislation are those on the party political Benches. I admit and acknowledge that recent appointments have brought valuable experience to this House.
Although my membership of the other place was brief, I remain at heart a House of Commons man in terms of where—
Lord Low of Dalston
With respect, in my remarks I said that I had no intention of disparaging other Peers. More than once I have gone on record as saying that the contribution of Peers appointed from political parties is indispensable to the effective working of this House. I am certainly not one of those who would like to see the House of Lords a politician-free zone.
Lord McNally
The point is that it is still an appointed House and is an advisory and revisory Chamber. As such, where this House decides to draw stumps on a particular issue is a matter for its judgment. Although financial primacy may occasionally irritate this House, again, as a House of Commons man and as I said earlier, this is not something recently drawn up by the coalition agreement or even by the 1911 Act. It is 300 years of our much-valued history during which kings have lost their heads and their throne in the primacy of the House of Commons on financial matters. Much as I should like to flatter the House on this matter, I still believe that it is important.
I understand the desire to see more legal advice in these cases. As I said in my opening remarks, we believe that in most cases individuals will be able to appeal to the First-tier Tribunal without formal legal assistance. I quoted the president of the tribunal in highlighting that in many cases eliciting additional information from the appellant was the most useful exercise that the tribunal carried out.
I also think that we are not being idle while welfare benefit reforms are being brought forward. A number of proposals currently are being considered across government that should make it easier for people to receive the right provision of entitlement in areas such as welfare, benefits and education. The most notable of these is the universal credit which will help to reduce the scope of error significantly as it makes the whole benefit system simpler and easier to understand. We are working closely with DWP as part of its wider welfare reform programme to improve the quality and effectiveness of its initial decision-making.
As I have said, we have gone into this matter fully and it is not something that we have ducked. From the very beginning, from the first consultation paper, we took a decision that social welfare would be taken out of scope. I know how passionately the noble Lord, Lord Bach, feels about this matter. If he was in my position, it is not the road he would have taken to fulfil his party’s commitment to cut legal aid. That is the nature of things. This is the judgment of the Government.
We are not looking at complex points of law in other areas at the moment. As the noble Lord, Lord Wigley, said, the problem is that if you make a concession somebody immediately stands up and says, “Why not look at it in other areas?”. We can build on what the Lord Chancellor promised about talks with the DWP. The noble Lord, Lord Thomas, in explaining what he was proposing, illustrated why we have been careful in putting this matter forward. We will look at it carefully and I will draw to the attention of my right honourable friend the Lord Chancellor the specific proposals he made in his speech.
As I have said before, we have had a very thorough debate on this. It has certainly been very thoroughly debated in this place over the past year. I believe that it would be better now if the House were to accept the Commons amendments and the noble Lord were to withdraw his.
Lord Bach
I am very grateful to all noble Lords who have spoken in this debate. We have had the expertise of the noble Baroness, Lady Doocey, and the noble Lord, Lord Low, both of whom are experts on the disabled and the problems that they face. I am also very grateful to my noble friend Lord Howarth and the noble Lord, Lord Martin of Springburn, for their very knowledgeable contributions on this matter, and not least to the Minister for what he has had to say.
This is one of the central and most important debates of this whole Bill. It goes to the very heart of what the Government are seeking to do, which is effectively to ask whether social welfare law will survive in our jurisdiction. We currently have a system of social welfare law that we can be proud of. It is not perfect; it makes mistakes and it probably does not have enough money spent on it but it is not a bad system, where not-for-profit organisations around the country—CABs, law centres, other advice centres and some Law Society solicitors—do wonderful work at very low rates, giving advice to the most vulnerable, the disabled and the poorest in our country.
The issue is whether claimants will continue to get the advice that they have been entitled to in the past—because there has been a consensus of the political classes of all the parties that that is the proper way for a mature legal system to behave—which helps them decide whether or not they have a case when they are dealing with the state. Without that advice, how will these people get to the tribunal in the first place? The Minister quoted the president of the Social Entitlement Chamber of the First-tier Tribunal. Is that the same president who has publicly said that he is appalled at the prospect of more and more claimants coming before his tribunals who have not had the benefit of any legal advice?
Lord McNally
That this House do not insist on its Amendments 170 and 172 to which the Commons have disagreed for their Reasons 170A and 172A.
Lord McNally
My Lords, the Motion contains amendments dealing with clinical negligence. We have debated the issue of clinical negligence at length, and I am grateful for the intensity and conviction of those who have spoken in support and those who have challenged the Government during the passage of this Bill. Before I go into the detail of this Motion, I remind noble Lords that we listened to their concerns and brought forward an amendment at Third Reading in this House which specifically addresses their concerns. This amendment puts beyond doubt that legal aid will remain available for babies who suffer brain injury at birth leading to a lifetime of care needs. This was in recognition that there are often difficulties in obtaining funding for these cases through conditional fee agreements due to the extent and expense of the investigations required.
Our amendment brings into scope claims where medical negligence causes a brain injury as a result of which the child is severely disabled. It is intended that this will cover cases of medical negligence where the child is at its most vulnerable, during its time in the womb, during the delivery, and immediately afterwards. The House of Commons raised concern that there might be arguments about whether a particular child falls within the scope of this amendment. We believe that the amendment is clear in this regard. It provides for funding where the negligence occurs in the period of time beginning with the point of the mother’s pregnancy until eight weeks after birth. In recognition of the fact that premature babies are particularly vulnerable, the government amendment also provides that where a baby is born prematurely, the eight-week period will be taken to start from the point at which the mother would otherwise have begun her 37th week of pregnancy.
We have also provided that where the negligence occurs beyond the eight-week point, a safety net will remain in the form of the exceptional funding scheme, in those cases where the failure to fund would amount to a breach of the individual’s rights under the ECHR. Contrary to the concern expressed in the other House it is right that all other cases should first seek a conditional fee agreement, and where one is not available—for example, due to high disbursement costs—then exceptional funding may be available, taking into account factors such as the complexity of the case and the capacity of the litigant or litigation friend to present their case. The Government’s amendment covers the vast majority of clinical negligence children’s cases currently funded through legal aid.
My noble friend Lord Cormack has tabled an amendment in lieu of his Lords Amendment 172, which seeks to bring into scope other children’s cases involving clinical negligence that occurred when the child was below the age of 16, rather than 18. We believe that this amendment would still bring into scope a whole range of less serious cases which do not involve lengthy and detailed investigations or multiple expert reports, which are caught by government Amendment 216, and which are more suited for funding through a CFA in exactly the same way as for adults. We believe this to be the case whether the child is 18 or 16. The Commons has decided against Lords Amendment 172, and it is my opinion that my noble friend’s amendment in lieu will elicit the same response. I urge my noble friend to withdraw his Motion.
On Amendment 170, the Government have already made special provision for expert reports in clinical negligence reports to the Jackson provisions in Part 2. This will mean that no one is required to pay up front for expert reports in clinical negligence cases. Providing for all expert reports would be more costly than the current legal aid arrangements. As I have said previously, at present solicitors have to choose whether to use legal aid or a CFA to fund the case. Only 18 per cent of cases where the funding method is known use legal aid. The amendment would open up legal aid for all of those cases which are currently funded by way of CFA. Lawyers would be able to claim their success fee while using legal aid to fund expert fees, and the legal aid fund would carry all of the solicitor’s or insurer’s risk. This could result in a significant expansion of the legal aid scheme and significant costs. We do not consider this a fair outcome for the taxpayer, who should not be required to pay where cases are already taken forward and paid for by alternative means. I beg to move.
Motion H1 (as an amendment to Motion H)
Lord Cormack
At end insert “but do propose Amendment 172B as an amendment in lieu”.
Lord Cormack
My Lords, I will not detain your Lordships long. This is a simple, precise amendment. It does not cover the ground of Amendment 170, but it does repeat, almost exactly, the amendment which your Lordships’ House approved just before we rose for the Easter Recess. When I moved the amendment at that stage, I made it quite plain that I felt that it was very wrong to single out a specific group of children who had suffered as a result of clinical negligence, and to leave the others. I have heard, of course, what my noble friend has said, and I do not for a moment question his personal commitment to these issues. But we have not had any adequate response in the very brief debate in the House of Commons, and my noble friend merely repeated this evening the amendment that the Government introduced at an earlier stage, which of course we welcome, but which creates an anomaly and an unfairness.
When we debated this last time, my noble friend Lady Eaton—who signed the earlier amendment along with the late Lord Newton of Braintree—made a very moving speech in which she talked about a child who had not suffered from brain damage, but who had been paralysed. She talked about the needs of a child who would grow up to be able to walk, in spite of the brain damage, and a child that would remain paralysed for the rest of his life. It was a movingly made speech, which illustrated what this amendment is all about.
I have heard what my noble friend has said about other means of getting support. I would just repeat a point that I made in my last speech: the National Health Service—of which we are all proud, and which we have spent many months discussing in your Lordships’ House during the course of this parliamentary Session—is an agency of the state. If anyone suffers as a result of the negligence of an agency of the state, then the state should, automatically and properly, provide a means of redress. This amendment does not go so far as that, because it concerns itself wholly and exclusively with children. I believe that, in all fairness, it is an amendment that even at this late hour should commend itself once again to your Lordships’ House. I believe that it would be appropriate for us to ask the other place to think again. It did not think very much about this one, and it really should. In his brief intervention this afternoon, my noble friend Lord Higgins referred to the inadequacy of time given in another place to your Lordships’ considered amendments. As we look to the future of your Lordships’ House, we ought to consider, in the imbalance between the two Houses, whether it might not be appropriate to do a little more insisting, if what we have deliberated on is so summarily dismissed.
Given the present conventions, and the relationship between the two Houses as they exist, I do not believe that one should go on and on playing a game of ping-pong. However, in this instance we have every right to say to another place, “Please think about this. Think about the children who suffer as a result of clinical negligence. This is your opportunity to redress an imbalance”, because welcome as it is, and I repeat that it is welcome, what the Government have done does not go far enough. Let us send this back. Let the other place think, and because there are no large sums of public money involved in this—indeed it could be argued that we are probably in the long term saving public money—let them in their charity look to those who are most deserving of that charity. I beg to move.
Baroness Finlay of Llandaff
My Lords, I very strongly support the amendment. There is a very strong reason for looking at children separately from adults. Indeed the age of 16, as outlined in this amendment, makes sense because in the General Medical Council guidance 16 is the age at which a child can be assumed to have capacity to consent. When treating a child who is actively withholding consent to treatment and who is aged between 16 and 18, the doctor should and must think again. Those under 16, however, go into treatment at the consent of their parent or guardian, not of themselves. If they are then subject to error, whether that is unfortunate or negligent or almost wilfully neglectful, they have done so not with their own informed consent but with that of others.
The amendment that the Government have brought forward, which relates to neonates and birth-related trauma, is, I suggest, fraught with difficulties over the problem of premature babies and accurate estimation of the date on which they would had been born. Even in the very best of hands, estimates of their expected date of delivery have to have a plus or minus of four days around them. That would impose an eight-day error. I fear that there will be endless arguments. Should there be a small, very premature baby in a neonatal unit, and should somebody inadvertently inject the wrong drug or should their ventilator inadvertently be set incorrectly—switched off from oxygen levels, or whatever—I fear that there will be arguments around whether the expected date of delivery was really the one that had been written on the notes. Was it actually two days forward from that or two days back, depending on the date of the error?
This amendment avoids that kind of deeply traumatic argument and recognises the fact that a child undergoing treatment has not given their informed consent to it. That treatment has been at the consent of others acting on that child’s behalf. They must therefore be treated differently from adults because they are vulnerable on two counts: first, their age, and, secondly, because there was of course something wrong in the first place for them to be entrusted to the care of the service which then failed them.
Lord Higgins
My Lords, perhaps I may intervene for a moment to ask my noble friend a rather simple-minded question. The Reason given by the Commons set out in 170A states:
“Because it would alter the financial arrangements made by the Commons”.
Can my noble friend briefly tell us exactly what these financial arrangements are, to the extent that they affect the state of the economy in terms of public expenditure and so on?
Lord Thomas of Gresford
My Lords, there is something ironic in the desire of the noble Lord, Lord Cormack, to maintain legal aid for children as a child might be very much better off pursuing a claim by means of a conditional fee agreement as things stand at the moment. I shall explain.
My noble friend Lord McNally has on two separate occasions during the Bill’s passage outlined fully the Government’s intention to introduce a supplementary legal aid scheme, which was part of the Access to Justice Act 1999, passed by the party opposite, whereby there would be an automatic 25 per cent deduction from the damages recovered by a claimant who is legally aided. As things stand, if a child succeeds under legal aid in obtaining damages, 25 per cent of those damages will be taken by the state under the proposed supplementary legal aid scheme, which will be used to fund other applicants for legal aid automatically. Under a conditional fee agreement, the solicitor who acts on behalf of the child claimant will be entitled to recover his fees, if he can establish the case, from the other side. But when it comes to the success fee, under these proposals, it will be recoverable from the damages of the child and limited to 25 per cent of those damages.
A success fee cannot exceed 100 per cent of the lawyer’s normal fees that he recovers from the other side, so it may never come anywhere near the 25 per cent of the damages that the child recovers. Under a conditional fee agreement, the success fee is related to the amount of the fees, not the amount of the damages. There is not a 25 per cent deduction from the child’s damages automatically. That is just a cap to prevent a success fee from going to an extreme amount. Consequently, it may be that the legally aided child, who will have an automatic 25 per cent reduction of his damages, will be in a worse position than one under a conditional fee agreement. I do not think that that point has properly sunk in. It is for that reason that I look to the Government, perhaps not tonight but at some time if regulations come forward for the supplementary legal aid scheme, to exempt children from the 25 per cent reduction proposed under that scheme. As things stand, 25 per cent will be taken off. For those reasons, I do not think that the amendment proposed by the noble Lord, Lord Cormack, assists the children that he wishes to help.
Lord Beecham
If I understand the noble Lord, Lord Thomas, correctly—he is obviously more conversant with the Access to Justice Act 1999 than I am—provision is contained within that Act for regulations to be made—
Lord Beecham
I was about to say precisely that. It was never implemented so it is open to the Government to lay regulations that would require that 25 per cent deduction. It is equally open to them to do what their predecessors did and not lay such regulations or make that deduction. I am entirely at one with the noble Lord in saying that that deduction should not be made, but that is the situation at the moment.
With respect to the noble Lord, I do not think that his argument takes us very far at all. The Opposition support the amendment proposed by the noble Lord, Lord Cormack, despite the fact that it appears to contain a grammatical error. It refers to,
“clinical services which took place at a time when the individual was child”.
There is an indefinite article missing somewhere. However, that is a trivial point. The substantive point is one that was made effectively by the noble Baroness, Lady Eaton, when we debated this on Report. In the debate on the amendment that was discussed on that occasion, she talked of the figures involved in legal aid expenditure for children. She pointed out that legal aid for clinical negligence claims involving children cost the Legal Aid Fund some £4.6 million, of which £3 million was spent on precisely the cases of neonatal injury to which the Minister referred and to which the Government have responded by restoring them within scope. Therefore, as the noble Baroness pointed out, the net saving would amount to £1.6 million for the Legal Aid Fund.
It is time to dispose of some of the shibboleths about tough decisions and the like. Apparently it is not a particularly tough decision for the Department for Communities and Local Government to spend £250 million on weekly bin collections. It seems to me and to the noble Baroness, Lady Eaton, and presumably the noble Lord, Lord Cormack, a very tough decision to deny legal aid at a cost of £1.6 million to children under the age of 16 who suffer clinical negligence other than through the limited but welcome concession that the Government have made in respect of the injuries to which we have referred.
I also remind your Lordships of the view of the National Health Service Litigation Authority, which I quoted last time and will quote again. It stated:
“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements … in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.
That view was about clinical negligence claims at large. Therefore, one might think that those concerns would surely apply to claims for children under the age of 16.
This does not remotely impinge on the huge problems that the Minister constantly reminds us of in relation to deficit reduction and the like. It is an almost trivial sum of money. By no conceivable stretch of the imagination could it be justified by financial privilege, which is the cover under which the Government approach this amendment. Let us be clear about financial privilege because it has been bandied around today and on previous occasions. Of course the Commons has the right to assert financial privilege, which is an objective process as far as the Clerks and the Speaker are concerned. However, it does not stop there. The Commons can waive financial privilege. If the Government wished for financial privilege to be waived, it would pass almost without opposition and frequently does. It is often waived. The Government choose not to waive it in connection with this and the other matters to which we have referred. It is a fig leaf behind which Ministers hide. I hesitate to convey an image of Ministers brandishing fig leaves; that would be an unwelcome variation on a theme. However, it is a pretty feeble and diminutive fig leaf for any Minister to hide behind. It is not an adequate defence for what they are doing.
I repeat: the figures show that the potential savings are minimal. Undoubtedly, justice will not be accessible for too many young people except in an expensive form potentially through a conditional fee agreement—even allowing for how the noble Lord, Lord Thomas, described it. I very much hope that the House will build on the Government’s welcome concession with this small additional financial burden and extend justice to those who need it.
Lord McNally
My Lords, the noble Lord, Lord Higgins, quoted the Reason, which states that the amendment,
“would alter the financial arrangements made by the Commons”,
and goes on to state that,
“the Commons do not offer any further Reason”.
As an old parliamentarian, he knows that if an amendment infringes privilege, that is the only reason that will be given. Obviously, when taken against the national economic crisis that we are dealing with, these various precise sums will always be able to be argued away as almost too trivial to worry about.
Perhaps I may relate to the House some other thoughts that have also motivated our approach in trying to reform legal aid in this area. Clinical negligence claimant lawyers’ bills, which the National Health Service Litigation Authority has to pay, have more than doubled from £83 million in 2006-07 to £195 million in 2010-11. As part of this, CFA success fees to claimant lawyers have more than doubled in the past four years from £28 million to £66 million, and the NHSLA pays out an estimated £33 million in claimant insurance premiums. However, damages paid to claimants have risen more slowly—from £579.4 million to £863.4 million over the same period—and the NHSLA has controlled its own defence legal costs much more carefully, rising only 26 per cent during the same period.
One motivation behind our approach in this whole area has been the impact that the system brought in by the previous Government in 2000 has had on the National Health Service, with an extraordinary rise in payments to lawyers. We are trying to address that. In doing so, early on we listened carefully to concerns about the specific issues faced by the most vulnerable children at the most vulnerable point in their lives, and we brought forward amendments to deal with that. Of course, in these areas there will always be disputes about where you draw the line and what happens to those on the other side of that line. However, in bringing forward our amendments our intention was to meet that initial lobbying, and we responded to it most positively. However, that was immediately followed by further lobbying that this should cover all children, but we do not believe that that is necessary.
The amendment purposely captures clinical negligence before, during and shortly after birth. We believe that that is a proportionate means of meeting the policy objective of targeting legal aid on the most serious and complex cases that would otherwise struggle to obtain a CFA. The eight-week period is an appropriate period of time at which to draw the line, because most of the serious and complex clinical negligence cases involving neurological injuries to infants are likely to arise from treatment or care administered during this period, when the infant can be considered to be most vulnerable. We have drawn the post-birth line at this point because of that. We also recognise that some children will be born prematurely and will need fairly intensive medical supervision in the first weeks of life. Any cases in which negligence occurs beyond this point will need to be considered under exceptional funding on a case-by-case basis. It is difficult—
Lord Faulks
I am very grateful to my noble friend for giving way. I wonder whether he can help the House on one point. Originally, before the welcome concession by the Government concerning babies damaged at or about the time of birth, the response was that exceptional funding might be available to meet those claims. Now that those claims are to be within the scope of legal aid, does it follow that more exceptional funding might be available to deal with the hard cases that may arise with children who are outside the scope of the eight-week period?
Lord McNally
I do not think that exceptional funding has ever been a specific amount of money and that therefore the amendment releases more of the exceptional funding pot to others. The exceptional funding is there to meet cases that fulfil the requirements for exceptional funding. I will not follow my noble friend because he leads me down a dangerous road. The exceptional funding is and will be there on the merits of the case. That is why we have confidence that the combination of the amendments that we have made, the CFAs, which, as was pointed out, some 82 per cent are already using, and a robust exceptional funding scheme will meet the needs in the cases that are covered by the amendment that we are opposing. Again, I ask the noble Lord to withdraw his amendment and to support the Commons.
Lord Cormack
My Lords, I felt very sad as I listened to a Minister, for whom I have both affection and respect, fail to answer this brief debate.
I am grateful to all those who have taken part. It has been brief, but that does not mean that the issue is unimportant. I apologise, incidentally, to the noble Lord, Lord Beecham, for the missing indefinite article, but we are talking about a definite proposition. That definite proposition is this: we often talk about rights and responsibilities, and certain people have particular rights and to them we have particular responsibilities. We are talking about children—those under the age of 16: children who are damaged as a result of clinical negligence within the National Health Service that the country provides for them and in which they and their parents place their trust. To limit the help, in a very small timeframe, to those who suffer brain damage is frankly not the hallmark of a civilised health service or a civilised society.
I know not whether the figure of £1.6 million given by the noble Lord, Lord Beecham, is right, but it is certainly around that figure. Indeed, the state would be the beneficiary in the long term. It would certainly be the beneficiary in the moral sense. We should concern ourselves about that. Of course the Government have problems. Of course they have great responsibilities for the economy. We are not, however, talking this evening about something that can in any way damage the financial strategy. What it can do is damage our reputation. I wish to test the opinion of the House.
Baroness Northover
That this House do not insist on its Amendment 171 to which the Commons have disagreed for their Reason 171A.
Baroness Northover
Motion J concerns legal aid for children. When the Government undertook their comprehensive review of legal aid, we looked at the principles of each type of case funded by the scheme and considered, first, the importance of the issue; secondly, the litigant’s ability to present their own case, including and especially any vulnerability; thirdly, the availability of alternative sources of funding; and, fourthly, the availability of other routes to resolution. We have used those principles to prioritise funding so that civil legal services will be available in the highest-priority cases—for example, as my noble friend Lord McNally said earlier, 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 where children may be taken into care.
The application of these principles led us to protect the vast majority of funding in cases involving children. These include family cases where a child is at risk of abuse; child care and supervision cases; civil claims concerning the abuse of a child; special educational needs cases; clinical negligence claims concerning brain-damaged babies; cases concerning the inherent jurisdiction of the High Court in respect of children; cases concerning the unlawful removal of children from the UK; cases concerning EU and international agreements on children; and legal aid for children who are made parties to private family proceedings. That is why 96 per cent of the current spend on cases involving child claimants will continue. Because we have adopted the approach that I have outlined, we do not accept Amendment 171, which seeks to bring all cases back into the scope of legal aid where a child is a party. On current plans, the overwhelming majority of current support will continue, as I said.
The noble Baroness, Lady Grey-Thompson, has tabled Amendment 171B, which is almost identical to Amendment 171, with the exception of immigration and consumer law cases, on which the House of Commons has offered a clear view. In our opinion, Amendment 171B will elicit the same response in the House of Commons. However, I will set out again the measures that are in place that will guard against the risk of children falling through the net.
As noble Lords know, we have committed to providing additional resources for citizens advice bureaux and similar groups that provide the general practical advice that can often prove more productive than drawn-out adversarial legal action. As I mentioned earlier today, we will be making a further £20 million available to the sector in each of the next two financial years. It is therefore not the case that there will be no or substantially reduced funding for cases involving children and young people.
Some in past debates have suggested that children might be left to fend for themselves in courts of law. Let me address that very clearly. It is already a requirement of the rules of civil litigation that a child must have a litigation friend to conduct a case on their behalf, usually a parent unless the court specifically orders otherwise. It will be only in exceptional circumstances that the court will make an order permitting the child to conduct proceedings on their own behalf. Any step taken before a child has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child’s parent, or other person caring for the child, for example, to act as the child’s litigation friend in proceedings where the child is a party.
In other scenarios—for example, tribunals that are addressed in the amendment tabled by the noble Baroness—where a child may be bringing an action without a litigation friend, this will of course be a relevant factor in deciding whether they have the ability to present their own case and whether exceptional funding for representation is required in order to avoid a breach of Article 6 of the ECHR. This means that the existing Civil Procedure Rules, combined with our exceptional funding system, will provide crucial safeguards against children being left to navigate court and tribunal hearings on their own. We believe that these measures, taken together, are sufficient to guard against the risk of children falling through the net where they do not fall into the vast majority of cases that are still covered by legal aid. I beg to move.
Motion J1 (as an amendment to Motion J)
Baroness Grey-Thompson
At end insert “but do propose Amendment 171B as an amendment in lieu”.
Baroness Grey-Thompson
My Lords, this amendment is in my name at this stage. However, it received support from the late Lord Newton of Braintree and the noble Baronesses, Lady Eaton and Lady Benjamin, throughout the passage of the Bill.
This amendment is narrower than the one that was previously carried by your Lordships’ House. I was extremely disappointed that, due to the financial arrangements in the other place, I had to remove the areas of consumer law and immigration, as the latter alone accounts for around a third of the cases affecting children. This Motion makes legal aid available for children in cases where a boy or girl is a victim of medical negligence or malpractice, in all cases of private family law, education, housing and social welfare and for criminal injury appeals only after they are financially means-tested and found to qualify. This Motion would give legal aid to about 3,000 extra children a year who are not explicitly covered by the Bill. It would cost the Government about £3.2 million a year and could be easily affordable. When you consider that the Legal Services Commission is sitting on £500 million-worth of confiscation orders that it has not yet collected against supercriminals, there are other ways to save money rather than targeting children.
At present, legal aid helps around 40,000 children every year who have civil justice legal problems in their own right. If the Bill is left as it stands, legal aid will not be available for thousands of children under the age of 18 who would qualify if the current rules remained in place. It is estimated that between 5,000 and 6,000 children could be affected. The Government have not explained the rationale of why some children are being treated differently from other children who have problems under the same categories of law.
On our 40th day of debate in your Lordships’ House I asked why 220 of last year’s cases on education would qualify but 110 children would not receive access to legal aid. I still have not had an answer to that question. We have been told that individual children may qualify under an exceptional cases fund, and more information has been provided, but I still fear that children will fall through the net.
It is probably slightly unfair of me to quote the Minister when he was questioned about exceptional cases on the previous Motion, but he said that it is hard to quantify the amounts. For me, the merits of the case are not enough without knowing some of those figures. It could mean that more is spent than we are saving by doing this.
Why do I feel so strongly about this? It is because children are children; they are not adults. Children do not have the capacity to represent themselves or to interpret the thousands of pages of laws and regulations that affect them. The question of children’s capacity to represent themselves is explicitly recognised and provided for in international law.
I remind your Lordships’ House that the Children’s Commissioner for England, Dr Maggie Atkinson, wrote to the Lord Chancellor to warn that denying children a voice in legal proceedings would be in breach of the European Convention. She wrote:
“Children, by virtue of their age and capacity will not be able to present their case effectively in the majority of proceedings … Children’s need for legal aid in civil cases where they are a party should not be viewed as ‘exceptional’”.
In virtually all these cases a child will be taking action against the state, and we do not yet know how the state will begin to act if it cannot be challenged. It is therefore wrong that the state has discretion on whether it will grant legal aid to a child who is challenging it. Such systems are not synonymous with accountable and democratic systems. I ask noble Lords once again to support this Motion. This issue is so important that we should ask the other place to reconsider the case of these children. I beg to move.
Baroness Hamwee
I shall say a word about one of the items that has been left out of this list: immigration. I am sorry that the noble Baroness has decided, for reasons that I understand, not to include it in the list. We know that immigration matters will not be within exceptional funding, so that route will not be available. Unaccompanied children arriving here may very well initially claim asylum, but a child who makes an asylum claim that fails and fails again on appeal will fall back on an immigration claim. For instance, a child who comes here at, say, the age of 12 and does not succeed on asylum but gets leave to remain will after three years, at the age of 15, be seeking immigration status in circumstances that will have changed dramatically.
I can see that there may be different considerations for a child who comes within a family but there must be cases where the child should be represented separately. We have a spent a lot of time on this and we know that immigration is complex; that social workers are not qualified to deal with it; and that legal advisers need to be specially licensed for it. I know that we are not in a position to change this but it is right to put on record some disappointment. But there is hope that as time goes on the Government will realise that this is something on which particular help is needed.
The Earl of Listowel
My Lords, I support the noble Baroness in her amendment. I should like to talk about young people leaving care at the age of 16 or 17 and how this affects them. I was very grateful for the opportunity to meet the Minister this morning and for his reassurance in this area. Following that, I spoke to a personal adviser—when children leave care they are appointed such an adviser to support them during their transition from care—who said, “It is so helpful to be able to go on certain occasions to a professional, a solicitor, to get a letter to get access to welfare and the right housing for these children”.
About one-quarter of children leaving care do so at the age of 16. Therefore, we often have very vulnerable young people who really can benefit from expert advocacy. While I welcome what the Minister has said in terms of reassurance, this matter in particular needs to be looked at. He highlighted the use of the exceptional funding avenue. The personal adviser said that often it is not a question of going to court but of getting in early and getting a good letter to make the local authority or other agencies aware of the legal situation and then things would be done correctly. It would be helpful if the Minister in his response could give an assurance that the exceptional funding avenue is easily accessible in those circumstances. I strongly support my noble friend’s amendment.
Lord Beecham
My Lords, the noble Baroness, Lady Hamwee, referred to her regret that immigration is not included in the amendment. In fairness to the noble Baroness, Lady Grey-Thompson, this amendment is in lieu and something has to be different from the original amendment. An invidious choice had to be made and one could regret that any one of the categories was to be omitted but one had to be in order for the amendment to be in order.
I am indebted to JustRights for its briefing, which no doubt many noble Lords will have seen. JustRights is made up of some 18 voluntary sector organisations. When the Minister refers to extra support for citizens advice bureaux—which I think she identified in particular although she may have been referring to the whole sector—of £20 million a year for three years, one should know that Citizens Advice sustained a loss of £80 million. That sum is for everything and not just for children. Such investment has to be seen in that context.
However, as regards these amendments, by my calculation, taking out the immigration cases, the cost of accepting the noble Baroness’s amendment would be of the order of £2.8 million. JustRights estimated about £5 million to £6 million according to the Ministry’s estimates but that included something like £1 million for immigration. I beg the pardon of noble Lords but that figure should be more: the net saving should be about £4 million. It points out that the Local Government Association—I declare an interest as a vice-president of that organisation—estimates that the removal of legal aid for unaccompanied child asylum seekers in immigration cases, which this amendment does not seek to restore, would cost local authorities £10 million. In other words, the cost to one element of the public purse will go substantially to exceed the savings which would accrue from the Government’s package. It is estimated by Youth Access and the Legal Services Research Centre that greater costs will fall on other elements of the public sector, including the welfare system and the National Health Service.
Baroness Northover
My Lords, I thank noble Lords for their very important contributions to this debate.
At the beginning of this discussion, I set out in some detail the reasons behind the Government’s position on legal aid for children, and that legal aid should apply to the highest priority cases, which has been at the heart of our reform proposals. I produced a long list of where funding is being retained for children as a result of the application of this principle. The fact that 96 per cent of current spend on cases involving child claimants will continue reflects the importance that the Government have placed on that.
Lord Phillips of Sudbury
My Lords, I regret to interrupt my noble friend at this time of night, but she mentioned the figure of 96 per cent remaining in scope. The figure of 13 per cent taken out of scope was just mentioned. I wonder where the reconciliation is between those two figures, because it is significant.
Baroness Northover
It is very straightforward. As I have just said, 96 per cent of current spend on cases is included, and in terms of numbers of cases 13 per cent are outside. So 4 per cent of spend is outside, which represents 13 per cent of the number of cases.
The noble Baroness, Lady Grey-Thompson, flagged up great concern about children in this situation and referred to the Children’s Commissioner saying that if this happened, it would breach the ECHR. Indeed, we agree. I hope my introductory remarks reassured her that this is not in breach, because if there was a failure to provide funding in such a situation that it was a breach, that would be covered either within that 96 per cent that I have just mentioned or through the exceptional fund. Any child qualifying for that kind of protection would qualify, under the European Convention on Human Rights, for that exceptional funding. I hope that that reassures her. The Children’s Commissioner may say that it would be abuse of children’s rights if that were not to be the case but we are saying that that is covered because of that protection.
My noble friend Lady Hamwee flagged up the area of immigration, and here the child’s interests are generally represented by the parent or guardian. In most cases where a child is unaccompanied, the issue is usually an asylum claim and legal aid is of course remaining for these cases. My noble friend asked what would happen if the case was not accepted as an asylum claim. In these cases unaccompanied children would have a social worker assigned to them, whose role would include helping the child access the same advice and support as a child permanently settled in the UK. They could also, for example, offer assistance in filling in forms, explaining terms and giving them emotional support. As my noble and learned friend Lord Wallace of Tankerness outlined previously, the Home Office will be working with the Office of the Immigration Services Commissioner on how best to ensure that local authorities can assist children in their care with immigration applications if necessary. This could, for example, mean exempting local authorities from Office of the Immigration Services—
Baroness Lister of Burtersett
I am sorry to interrupt the noble Baroness but we have gone over this a number of times. I remember the late Lord Newton questioning this issue of using social workers. Social workers are not trained for this kind of work and, as I understand, it would be totally wrong for them to provide legal advice for children in their care. It could create real problems of conflicts of interest.
Baroness Northover
The noble Baroness may be right about social workers providing legal advice but I am talking about the kind of support that a social worker can give to a child in that situation. Often it is not a matter of specific legal advice but of assisting that child and steering them through the necessary procedures. There has been a running theme through a lot of this discussion that it is not necessarily legal advice that is required; it may be another form of support, which is where, for example, the CAB may be able to assist. Noble Lords have a lot of experience of organisations such as these assisting people and we should not forget that. We are looking at how best to ensure that local authorities can assist children in their care in the kind of cases that my noble friend has flagged up.
The noble Earl, Lord Listowel, asked about care leavers. I am glad that he was reassured by what my noble friend could tell him. I reiterate that the exceptional funding scheme will ensure the protection of the 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. The scheme will of course encompass children leaving care, where they meet the relevant legal tests. In considering whether exceptional funding should be granted on this basis in an individual case engaging Article 6 of the ECHR, the director will consider the ability of the client to present their own case, the complexity of the issues, the importance of the issues at stake and all other relevant circumstances.
Local authorities also have a range of duties to care leavers which will not be affected by the provisions of the Bill. It is late at night but I also recognise the huge commitment in this area of the noble Earl. If he would like further discussions we are happy to do that. I hope that I have addressed the concerns of most noble Lords and would like to remind them that 96 per cent of the current funding remains in place and that the principles of need and vulnerability, which underpinned the reasons for covering the areas that we have, remain the most important ones.
I hope that the noble Baroness, Lady Grey-Thompson, will be reassured that children who are in need will be protected and that we will not see the concerns that she has flagged up come to fruition. On that basis, I hope the noble Baroness will withdraw her Motion.
Baroness Grey-Thompson
I thank the noble Baroness, Lady Northover, for her response and all other noble Lords who have contributed this evening.
In my opening speech I did not mention clinical negligence because the issue had been eloquently argued in the previous Motion by the noble Lord, Lord Cormack, and the noble Baroness, Lady Finlay.
The noble Earl, Lord Listowel, raised the important issue of children in care and children leaving care. However, this will raise more issues about where the costs will move to. The hope that local authorities will pick up the pieces concerning this group of children in care or leaving care is naive. Local authorities are already under huge amounts of pressure, and pushing the costs—and potentially greater costs—on them will not help the children who we want to see receive this help.
I am also deeply uncomfortable about the role of the litigation friend and the ability of children to access an appropriate person who is able to help them through very difficult times.
I am afraid that I am still not convinced by the arguments on exceptional funding. When we debated the percentages of cases, we learnt that 13 per cent of children’s cases will be out of scope. However, information provided by JustRights shows that, contrary to misleading government claims, the 5,000 to 6,000 children covered by this amendment will not be protected by the exceptional funding scheme. The Ministry of Justice has confirmed to JustRights that its figures on the number of children affected already account for those who would receive exceptional funding. If children were automatically entitled to legal aid, the Government would avoid the cost of administering children’s applications to the scheme, as well as possible delays that would be detrimental to children’s welfare.
I am conscious of the late hour. This issue has been extensively debated in many sessions, but we should ask the other place to think again about the thousands of children who will be seriously and negatively affected if the amendment does not go through. I beg to move.