Legal Aid, Sentencing and Punishment of Offenders Bill

Monday 23rd April 2012 Lords Chamber

Commons Reasons and Amendments

15:22

Motion A

Moved by

[Lord McNally]

That this House do not insist on its Amendment 1 to which the Commons have disagreed for their Reason 1A.

1A 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.

[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]

Will my noble friend give way?

[Lord McNally]

No. Well, I will take one more from him. Carry on.

[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.

15:30

[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 Howarth of Newport]

My Lords—

[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)

Moved by

[Lord Pannick]

At end insert “but do propose Amendment 1B as an amendment in lieu”

1B Page 1, line 5, leave out subsection (1) and insert—

“(1) The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services 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.”

[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?

15:45

[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.

16:00

[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 Thomas of Gresford]

My Lords—

[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.

16:15

[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.

16:30

[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 Lester of Herne Hill]

My Lords—

[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 McNally]

My Lords—

[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.

16:41

Division 1

Ayes: 248

---

Labour: 171
Crossbench: 57
Independent: 6
Bishops: 5
Ulster Unionist Party: 2
Plaid Cymru: 1

Noes: 233

---

Conservative: 142
Liberal Democrat: 65
Crossbench: 16
Ulster Unionist Party: 2
Democratic Unionist Party: 1
Bishops: 1
Independent: 1

16:56

Motion B

Moved by

[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.

2A 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.

193A Line 2, after “means” insert “any incident of”

219A Line 2, after “means” insert “any incident of”

220A Line 25, after “means” insert “any incident of”

194A Because it is appropriate for provision about forms of evidence of domestic violence to be made by regulations.

196A Because it is not appropriate to prevent a time limit being imposed in respect of evidence supporting an application for civil legal aid under paragraph 10 or 11 of Part 1 of Schedule 1.

[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)

Moved by

[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”

2B Page 121, line 31, at end insert—

“Domestic violence

(1) For the purposes of this paragraph, evidence that abuse has occurred may consist of one or more of the following (without limitation)—

(a) a relevant court conviction or police caution;

(b) a relevant court order (including without notice, ex parte, interim or final orders), icluding a non-molestation undertaking or order, occupation order, forced marriage protection order or other protective injunction;

(c) evidence of a relevant criminal proceedings for an offence concerning domestic violence or police report confirming attandance at an incident resulting from domestic violence;

(d) evidence that a victim has been referred to a multi-agency risk assessment conference, as a high risk victim of domestic violence, and a plan has been put in place to protect that victim form violence by the other party;

(e) a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim;

(f) a letter from the General Medical Council registered general practitioner or other medical professional confirming that he or she has examined the applicant and is satisfied that the applicant had injuries or a condition consistent with those of a victim of domestic violence;

(g) an undertaking given to a court by the alleged perpetrator of the abuse that he or she will not approach the applicant in respect of allegations of domestic violence;

(h) a letter from a social services department confirming its involvement in providing services to the applicant in respect of allegations of domestic violence;

(i) a letter of support or a report from a domestic violence support organisation; or

(j) other well-founded evidence of abuse that is either—

(i) certified by a court; or

(ii) of atype prescribed in regulations.

(2) For the avoidance of doubt, no evidence shall be deemed inadmissible on the basis of expiration where the general limitation period under the civil standard has not elapsed.”

196B* Page 121, line 47, at end insert—

“(2) For the avoidance of doubt, no evidence supporting an application for civil legal services under this paragraph shall be deemed inadmissible on the basis of expiration where the general limitation period under the civil standard has not elapsed.”

[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.

17:15

I wish that I could simply say to the House that we have moved far enough, but it is now a matter of whether the House and the Government will choose to assist those who are in dire need. It is not a matter of us not knowing what the impact will be. On a number of occasions, the noble Lord has said that we are in a financially difficult position and that we cannot do all that we would like to do but that we have to narrow the gateway. I could understand narrowing the gateway if it were to relate to those who make unmeritorious claims, who do not need the help and support of legal aid and indeed whose lives will not be adversely affected or put at risk. If that were the case, I could see that the Government would have a choice. However, post-separation violence occurs in 50 per cent of the cases that we deal with. These are not cases, as the noble Lord seeks to say, where those involved could go for an injunction. In many of these cases the violence occurred a long time ago but the risk of violence to the victim and often to the victim’s children is still there.

We have a choice to make. In my humble submission, that choice should be one that we make in favour of women, children and victims of domestic violence whatever their gender who will have no other viable means of support. I say very clearly to the noble Lord that we on this side of the House have made a choice: our choice is to support victims and their children. I would love the Government to be able to say amen to that, not just in terms of desire but in reality. While many women do not have the support that they need, we cannot close our eyes.

I would like to remind the House of the Women’s Aid snapshot survey that was done on 16 June last year. It showed that on just one day 224 women were turned away from refuge services: 163 because there were no spaces for them; 13 because they had no recourse to public funds; and 48 for other reasons such as complex needs. That demonstrates that even allowing accessing refuge services as evidence of eligibility for legal aid will exclude many women who are simply unable to access such services and yet are experiencing violence. We have to remember that if a woman has a male child who is over the age of 11, she will not have access to a refuge because such children are excluded, often because of their gender. Statistics from Women’s Aid show that the number of women and children supported annually by all domestic and sexual violence services—both refuge-based and non-refuge-based—is 124,895: so 17,615 women are in refuges annually and 107,280 are in other services such as outreach and drop-in. Looking at the list to which the Minister has referred in his remarks, if only those who are actually admitted to a refuge are able to seek and obtain support, what about the 107,000 women who seek outreach and drop-in support?

The noble Lord knows that these amendments are widely supported by the Women’s Institute, Rights of Women, Mumsnet and many other agencies, including the faith communities. I ask the noble Lord to think very carefully as to whether the Government cannot in good conscience widen the evidential gateway and the time limit to enable those with bona fide claims to be better supported. I accept that even the list and the proposals that I make will still exclude many bona fide cases. This causes me a great deal of pain and concern, but I have taken into account fully what the noble Lord has said about the restrictions that must now be put on the legal aid budget. I have accepted them. I cannot accept that the minimum standard that we have outlined in my amendment—to give succour to those in need—cannot be afforded by us as a country. If we cannot afford to protect women, children and men who are in this position we are a very poor country indeed. I beg to move.

[Lord McNally]

The noble Baroness—she is learned as well, is she not?

[Baroness Scotland of Asthal]

I am indeed learned—very learned.

[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 Bach]

It also includes former heads of a division.

[Lord McNally]

That helps me a great deal. I shall never refer to the noble Lord, Lord Bach, as learned again.

[Lord Bach]

The noble Lord has never done that.

[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.

17:26

Division 2

Ayes: 239

---

Labour: 177
Crossbench: 44
Bishops: 6
Independent: 5
Democratic Unionist Party: 1
Plaid Cymru: 1

Noes: 236

---

Conservative: 146
Liberal Democrat: 69
Crossbench: 15
Ulster Unionist Party: 2

17:43

Motion C

Moved by

[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.

4A Page 3, line 22, leave out subsection (4) and insert—

“( ) But the Lord Chancellor—

(a) must not give a direction or guidance about the carrying out of those functions in relation to an individual case, and

(b) must ensure that the Director acts independently of the Lord Chancellor when applying a direction or guidance under subsection (3) in relation to an individual case.”

4B Page 3, line 24, leave out “about the carrying out of those functions” and insert “under this section”

[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 Pannick]

No.

[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.

17:45

As I alluded to at the outset, we share the noble Lord’s view with regard to the protection being sought, which is why the Government’s amendment in lieu was offered in the House of Commons. This amendment places a specific duty on the Lord Chancellor to ensure that the director acts independently of the Lord Chancellor when applying directions and guidance given under Clause 4(3) in relation to an individual case. I hope the House shares my view that this new provision provides the assurances sought, incorporating as it does the concept of independence in the Bill while striking the right balance in respect of the administrative arrangements that we are seeking under the new framework. I beg to move.

[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.

Motion C agreed.

Motion D

Moved by

[Baroness Northover]

That this House do not insist on its Amendment 24 to which the Commons have disagreed for their Reason 24A.

24A 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.

[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)

Moved by

[Baroness Grey-Thompson]

At end insert “but do propose Amendment 24B as an amendment in lieu”

24B* Page 21, line 7, at end insert—

“( ) Notwithstanding subsection (1), the Lord Chancellor’s duty to a person eligible for legal aid advice under section 1(1) must include—

(a) a duty to secure the provision of initial face-to-face advice; and

(b) a duty to secure the provision of legal aid advice in a range of forms, taking account of the needs of the person eligible for such advice (“the client”), including—

(i) the client’s vulnerability;

(ii) the client’s capacity to represent himself or herself and communicate his or her case, including any written documentation;

(iii) the client’s health (including mental health) issues;

(iv) the impact and consequences on the client, or his or her family, of failing to receive advice and assistance under this Part;

(v) the age of the client; or

(vi) that it is otherwise in the interests of justice.”

[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.

18:00

[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.

18:15

[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.

18:28

Division 3

Ayes: 231

---

Labour: 173
Crossbench: 37
Independent: 5
Bishops: 4
Ulster Unionist Party: 2
Democratic Unionist Party: 1
Liberal Democrat: 1
Plaid Cymru: 1

Noes: 243

---

Conservative: 148
Liberal Democrat: 75
Crossbench: 14
Bishops: 1
Ulster Unionist Party: 1

18:41

Motion D agreed.

Motion E

Moved by

[Lord McNally]

That this House do not insist on its Amendment 31 to which the Commons have disagreed for their Reason 31A.

31A Because it is not appropriate to make an exception from clauses 43, 45 and 46 for proceedings which include a claim for damages for respiratory disease or illness arising from industrial exposure to harmful substances.

[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.

18:45

In an earlier debate I spoke of recent legal changes that have significantly lowered the bar for mesothelioma claims. These cases are always tragic but they are mainly straightforward and relatively low risk. The costs should not be as high as they can be under the current regime. Legal costs need to be controlled in these cases, as in others. These reforms have been carefully put together as a balanced package. Having considered the interests of claimants against the interests of defendants, we are implementing a number of additional measures. These include a 10 per cent increase in damages for non-pecuniary loss and, in personal injury cases, a cap on the success fee of 25 per cent of damages, excluding future care and loss. Let me emphasise that that is a maximum cap. No lawyer is required to take any success fee from a claimant, and many lawyers will wish to maximise the damages that victims can receive. We are also introducing qualified one-way costs-shifting so that “after the event” insurance is no longer necessary in respect of the other side’s costs.

These measures are intended to work alongside the abolition of recoverability to ensure that all sides have an interest in keeping costs down and resolving more claims more quickly. Because speed is the other crucial element in mesothelioma cases, it is imperative that fair compensation is paid as quickly as possible. Under the current regime, however, standard cases can take as long as two years or more to be resolved. That is often longer than the sufferer survives. The Government have their part to play in speeding up this process and we are engaged with stakeholders and government colleagues in relation to it. However, to exempt mesothelioma cases wholly from our reforms would be to retain the status quo, undermining the package of reforms and allowing cases to drag on.

I should highlight that the reforms under Part 2 are not taking place in isolation. Last week I met with the Minister for Welfare Reform, my noble friend Lord Freud, to discuss the work that he is actively undertaking with stakeholders. I am glad to confirm that real progress has been made and that the Department for Work and Pensions hopes to make an announcement before the House rises for the summer on a programme for settling these disputes, a programme that will be speedier and avoid unnecessary litigation.

The Government are not ignorant of or indifferent to the plight of mesothelioma sufferers. These are important cases which need to be dealt with as quickly as possible—that is a matter of humanity. Of course, greater speed generally also means reduced costs, which benefits everyone. As I say, we are actively working with the DWP to ensure that victims can access the help that they need. I urge noble Lords to consider the whole picture, not just the element of reform which we have in front of us today. The work that we are doing on civil litigation costs is closely related to the work that we are undertaking on helping mesothelioma victims who are unable to trace their insurers. To undermine one reform may be to endanger another, which is a scenario that we should avoid. I urge noble Lords not to insist on Amendment 31 and to support Motion E. I beg to move.

Motion E1 (as an amendment to Motion E)

Moved by

[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.

19:00

[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.

19:15

What is important about these cases is that, as a result of a series of Acts of Parliament and decisions of the courts, they are no longer difficult to prove. With respect, they are not like some of the more complex clinical negligence cases where there are great differences of opinion over causation or diagnosis. It really is not complicated to prove these cases; nor should it be.

Therefore, the question is this: will lawyers take the cases? If they will, there will not be the terrible denial of justice to which the noble Lord refers. In my view, they will take the cases. They will be properly rewarded financially for doing so and they will have the satisfaction of representing those who deserve compensation. Therefore, while having every sympathy for the sufferers and great admiration for the campaign that has been launched on their behalf, we need to stand back and say what this amendment is about. It is about whether lawyers will be paid more money and whether the fact that they will be paid less money will prevent these cases taking place. I do not believe that it will.

[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.

19:30

[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.

19:46

Division 4

Ayes: 214

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Labour: 164
Crossbench: 30
Independent: 4
Bishops: 4
Conservative: 3
Liberal Democrat: 2
Democratic Unionist Party: 1
Ulster Unionist Party: 1
Plaid Cymru: 1

Noes: 205

---

Conservative: 135
Liberal Democrat: 63
Crossbench: 6

20:00

Motion F

Moved by

[Lord McNally]

That this House do not insist on its Amendment 32 to which the Commons have disagreed for their Reason 32A.

32A Because it is not appropriate to make an exception from clauses 43, 45 and 46 for proceedings which include a claim for damages for a disease, condition or illness resulting from a breach of duty owed by an employer to an employee.

[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)

Moved by

[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.

20:11

Division 5

Ayes: 174

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Labour: 149
Crossbench: 16
Independent: 3
Bishops: 1
Democratic Unionist Party: 1
Ulster Unionist Party: 1
Plaid Cymru: 1

Noes: 220

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Conservative: 135
Liberal Democrat: 70
Crossbench: 11
Ulster Unionist Party: 1

20:25

Motion G

Moved by

[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.

168A 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.

240A Page 119, line 2, at end insert—

“Appeals relating to welfare benefits

6A (3) Civil legal services provided in relation to an appeal on a point of law to the Upper Tribunal, the Court of Appeal or the Supreme Court relating to a benefit, allowance, payment, credit or pension under—

(a) a social security enactment,

(b) the Vaccine Damage Payments Act 1979, or

(c) Part 4 of the Child Maintenance and Other Payments Act 2008.

Exclusions

(4) Sub-paragraph (1) is subject to—

(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs 1 and 15 of that Part, and

(b) the exclusion in Part 3 of this Schedule.

Definitions

(5) In this paragraph “social security enactment” means—

(a) the Social Security Contributions and Benefits Act 1992,

(b) the Jobseekers Act 1995,

(c) the State Pension Credit Act 2002,

(d) the Tax Credits Act 2002,

(e) the Welfare Reform Act 2007,

(f) the Welfare Reform Act 2012, or

(g) any other enactment relating to social security.”

240B Page 137, line 30, at end insert—

“(a) a social security enactment,

(b) the Vaccine Damage Payments Act 1979, or

(c) Part 4 of the Child Maintenance and Other Payments Act 2008.

(2) In this paragraph “social security enactment” means—”

[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.

20:30

Motion G1 (as an amendment to Motion G)

Moved by

[Lord Bach]

After “168A” insert “but do propose Amendment 168B as an amendment in lieu”

168B Page 115, line 5, at end insert—

“Social welfare law (No. 2)

(1) Civil legal services for an appeal to a first-tier tribunal, in respect of a social welfare decision relating to a benefit, allowance, payment, credit or pension under—

(a) the Social Security Contributions and Benefits Act 1992;

(b) the Jobseekers Act 1995;

(c) the State Pension Credit Act 2002;

(d) the Tax Credits Act 2002;

(e) the Welfare Reform Act 2007;

(f) the Welfare Reform Act 2012;

(g) the Vaccine Damage Payments Act 1979;

(h) Part 4 of the Child Maintenance and Other Payments Act 2008; and

(i) any other enactment relating to social security.

(2) For the purposes of sub-paragraph (1), civil legal services includes independent advice and assistance.”

[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 it was so brave, why did he not put his amendment to the vote? That would be the question that I would ask.

[Lord Thomas of Gresford]

We got the concession that we were seeking.

[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.

20:45

[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”.

21:00

[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.

21:15

The Lord Chancellor also made the point that the welfare benefits tribunals are accessible and have been designed as tribunals in which it is realistic and practical for ordinary people to argue their case. Well, I have heard it suggested by people who are extensively experienced and closely familiar with the work of the tribunals that that is not a valid assertion: that the employment, immigrations and other tribunals that are relevant to this particular amendment are places in which complex legal issues are transacted, where it is not at all a simple or realistic thing for people who have not been advised to make their way and make their case.

Attention has already been drawn by my noble friend to the fact that universal credit is to be brought in. I understand that the transition to universal credit will not be completed for several years, and could take as long as until 2017. This is an enormous legal and regulatory set of changes. With the best will in the world, and I do not doubt that the administrators and adjudicators of the social security system have the best will in the world—why should I doubt that?—it will be difficult for them to cope with the scale and complexity of these changes. My noble friend was quite right to anticipate that there will be a high error rate in the interpretation of the new law, not just in matters of fact. Error rates will start at the lower levels of the system. Unless those legal complexities are picked up, recognised and properly dealt with at the lower levels, there is no virtue in allowing legal aid at the higher levels because the cases will get screened out before they ever reach the higher levels. I am worried that the concession that the Government offered in the other place last week may be less real than it may have seemed in the eyes of government supporters there.

For all these reasons it is very rash and irresponsible to withdraw legal aid in this area, particularly at this time. The Government simply cannot know the extent of the damage that may be done by the withdrawal of legal aid and the removal of this area of benefits from its scope. I hope very much that they will agree with us now, and if they do not I hope that this House will ask the other place to think again on this peculiarly important issue.

[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?

21:30

[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?

21:45

Access to advice is going to be more essential in the years to come than in the past because of the reforms that have been made to the welfare and benefits system. The CAB, a most respected organisation and one which the Prime Minister himself frequently praises as an example of how British life should carry on, has produced a briefing for noble Lords for tonight’s session. I will quote from a couple of places. It states:

“It appears to us that the policy intent of this legislation as regards much social welfare law, is that legal aid funded specialist advice should be collapsed into non-legal aid funded generalist advice thus obliterating the distinction. We do not agree with this approach, as in our experience those without specialist welfare benefits knowledge struggle to put together coherent review requests or appeals with no input at all from independent specialist welfare rights advisers”.

It goes on to say that,

“we do not recognise the scenarios presented by Government that the Tribunal is ‘user friendly’ and suited to those with the lowest literacy levels, serious disabilities, experiencing financial hardship or other vulnerabilities, progressing their own case without any professional advice. It is often only through advice on the appeals procedure, that many cases will ever get to considering points of law before the tribunal”.

The CAB finishes its briefing to all noble Lords with this sentence:

“We therefore support Lord Bach’s proposed amendment which would establish such clarity on the face of the Bill”.

All this amendment does is to ask that the present system—as far as giving early legal advice to those who seek it because they have problems in the field of social welfare law and, in particular, welfare benefits—should continue, and that such advice should not be taken from these people. The Government’s proposals are immoral because they have chosen to pick a fight with the poorest. I argue that it is unconstitutional because it is an attack on those people’s access to justice. Where else can they get justice if they cannot get it through legal aid advice? The worst crime of all is that it is financially absurd. The small sum that the ministry might save by not giving legal aid for this advice will be overwhelmed by the sum that the state will have to pay out when things go wrong—when families break down, people lose their jobs and debts get worse.

This is a very important point. For the Lord Chancellor to describe it as relatively low priority only goes to show that although we have been debating these matters for months, he and some of his ministerial colleagues—although not the noble Lord, Lord McNally—just do not get it. They do not get the value of this particular part of our legal system. In the end, the question is what sort of a country do we want to live in? Do we want to live in a country where the most hard-pressed, the poorest, the most vulnerable and the disabled are actually helped by the legal system when the time is appropriate—when they need help it is there, and we provide it through pretty cheap legal aid—or do we want to live in a country where that just does not happen? We are in danger of moving backwards in this field, where the poorest and the most vulnerable—who this House has always been concerned to do its best for—will suffer. I ask the House, with all the passion that I have, to support the amendment in my name.

21:48

Division 6

Ayes: 159

---

Labour: 132
Crossbench: 19
Independent: 3
Liberal Democrat: 2
Bishops: 1
Plaid Cymru: 1

Noes: 197

---

Conservative: 123
Liberal Democrat: 64
Crossbench: 5
Democratic Unionist Party: 1
Ulster Unionist Party: 1

21:59

Motion G agreed.

Motion H

Moved by

[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.

170A 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.

172A 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.

[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)

Moved by

[Lord Cormack]

At end insert “but do propose Amendment 172B as an amendment in lieu”.

172B* Page 115, line 5, at end insert—

“Children and clinical negligence

(1) Civil legal services provided in relation to clinical negligence in the course of the provision of clinical services which took place at a time when the individual was child.

(2) In this paragraph—

“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);

“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;

“child” means a person under the age of 16.”

[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?

22:15

[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 Thomas of Gresford]

It was never implemented.

[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.

22:33

Division 7

Ayes: 125

---

Labour: 94
Crossbench: 19
Conservative: 3
Independent: 3
Bishops: 2
Democratic Unionist Party: 1
Plaid Cymru: 1

Noes: 168

---

Conservative: 107
Liberal Democrat: 58
Ulster Unionist Party: 1
Crossbench: 1

22:44

Motion H agreed.

Motion J

Moved by

[Baroness Northover]

That this House do not insist on its Amendment 171 to which the Commons have disagreed for their Reason 171A.

171A 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.

[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)

Moved by

[Baroness Grey-Thompson]

At end insert “but do propose Amendment 171B as an amendment in lieu”.

171B* Page 115, line 5, at end insert—

“Children under 18

Civil legal services in relation to advice and proceedings where a child is, or proposes to be, the applicant or respondent in proceedings, or where the child is represented by a legal guardian, including—

(a) private family law;

(b) any benefit, allowance, payment, credit or pension under—

(i) the Social Security Contributions and Benefits Act 1992,

(ii) the Jobseekers Act 1995,

(iii) the State Pension Credit Act 2002,

(iv) the Tax Credits Act 2002,

(v) the Welfare Reform Act 2007,

(vi) the Welfare Reform Act 2012, or

(vii) any other enactment relating to social security;

(c) all areas of education law not otherwise covered in this Schedule;

(d) all areas of housing law not otherwise covered in this Schedule;

(e) all areas of debt-related disputes not otherwise covered in this Schedule;

(f) all areas of clinical negligence law not otherwise covered in this Schedule;

(g) appeals to the Criminal Injuries Compensation Authority;

(h) a review or an appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007;

(i) an appeal to the Supreme Court.”

[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.

23:00

I will give a brief indication of the kind of cases that will no longer be covered: 280 debt cases; 90 employment cases; 430 housing cases; 1,330 welfare benefit cases; 90 cases involving the police; 110 cases involving education; an unknown number in respect of clinical negligence, because of course there has now been this government concession; 300 personal injury cases; and 165 other cases. This is a wide spread of cases, individually costing relatively modest amounts if the Government were to accept this amendment.

As it stands, 13 per cent of children’s cases will now be out of scope. The exceptional funding scheme will not be sufficient to protect the children covered by this amendment. Again, for a very small sum of money, a substantial number of children, who are among the most vulnerable, will be deprived of legal advice and assistance. Your Lordships will note that this briefing comes from an organisation not of lawyers in private practice but from precisely the sector to which the Government look to support people in difficulty in this and other areas.

It is simply unacceptable to withdraw this level of support from these vulnerable young people. I hope that even at this late stage the Government will reconsider. If not, we will certainly support the noble Baroness should she decide to test the opinion of the House.

[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.

23:12

Division 8

Ayes: 100

---

Labour: 81
Crossbench: 13
Bishops: 2
Independent: 2
Plaid Cymru: 1

Noes: 154

---

Conservative: 99
Liberal Democrat: 50
Crossbench: 2
Democratic Unionist Party: 1
Ulster Unionist Party: 1

23:19

Motion J agreed.

House adjourned at 11.23 pm.