House of Lords
Banking: Quantitative Easing
(11 years, 9 months ago)
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Lord Barnett
To ask Her Majesty’s Government whether they agree with Sir Mervyn King, the Governor of the Bank of England, that quantitative easing should be increased by £25 billion, as stated at the most recent meeting of the Monetary Policy Committee.
Lord Newby
My Lords, the Bank of England Act 1998 gives powers of operational responsibility for monetary policy to the independent Monetary Policy Committee of the Bank of England. It is for the MPC to make decisions on monetary policy, including the scale of quantitative easing, based on its own judgment and the balance of risks to inflation in the medium term.
Lord Barnett
My Lords, under Section 19 of that Act the Chancellor has power by order to stop the committee doing that just that. Can I assume that as he did not say he did, he does not oppose the idea of there being more QE? On the other hand, we have a new remit for the new Governor of the Bank of England. The Chancellor said:
“the Monetary Policy Committee may need to use unconventional monetary instruments to support the economy”.—[Official Report, 20/3/13; col. 935.]
Does that not mean that there will have to be a change to the Bank of England Act? Without it, how can there be such a change?
Lord Newby
My Lords, to deal with that last point I will say that we do not need a change in the Bank of England Act because its basic provisions—namely, of inflation-targeting, and this year, as in previous years, we have a 2% inflation target—remain in place. The Chancellor has suggested, in changing the remit, that it would be appropriate for the MPC to deploy new explicit forward guidance, including intermediate thresholds, in order to influence expectations and meet its objectives more effectively.
Lord Lawson of Blaby
My Lords, on the subject of the Bank of England’s remit, I warmly welcome the fact that the Government have firmly decided not to move away from the inflation target to a nominal GDP target, and have given very good reasons why that would be a disastrous course. Will the Minister take this opportunity to make it clear that neither the Government nor the Bank of England are pursuing a policy of exchange rate depreciation?
Lord Peston
May I break the habit of a lifetime by saying how much I agree with the opening remarks of the noble Lord, Lord Lawson? In all the years we have known each other, I think that is a one-off. As far as I recall, the Minister did not take part in the deliberations on the 1998 Act. He is indicating that he did. Then he must remember that the noble Lord, Lord Barnett, and I spent a large part of our time trying to move the Monetary Policy Committee’s remit in exactly the direction in which the Government are moving it; and claim to be moving it, let me add—the relevant words are there in the speech of the Chancellor and that of the noble Lord, Lord Deighton. They have updated it. My knowledge of the English language is not that large, but I think that “update” means change. How have they produced this most remarkable sleight of hand? The noble Lord, Lord Barnett, and I were told regularly that we could not change the remit because amendments were not acceptable to the Government. How has the Chancellor produced an extraordinary sleight of hand and changed the remit without bringing it before Parliament?
Lord Newby
I do not think that there is any sleight of hand. Since 1998, the Bank of England has introduced a number of innovative measures within the remit and the terms of the Bank of England Act. Quantitative easing, which, in 1998, many of us could hardly spell, far less understand, has happened on a big scale and finance for lending has been introduced. These innovative things have been introduced under the terms of the Bank of England Act. The remit change reflected in this year’s statement by the Chancellor accepts that there have been a lot of changes since 1998 and suggests that the Bank should look at introducing further innovative operations.
Baroness Kramer
My Lords, the Minister will be aware of a recent speech by Spencer Dale, the chief economist of the Bank of England, which identifies the constraint on growth, not on the demand side but far more on the supply side, because the banks are not back to normal lending, so does he see monetary activism as a mechanism to return to normal lending or are we relying much more on actions such as the business bank? Is that where the Government’s emphasis should be placed?
Lord Newby
My Lords, we need to pursue more than one course at the same time. The Green Investment Bank and the new business bank are one way forward; further innovation by the MPC is another. We need the full range of tools at our disposal to promote growth.
Lord Eatwell
My Lords, given that interest rates have been at record lows for three years and that liquidity is high, with no notable impact on the overall rate of growth, will the Minister tell us exactly what the mechanism is by which this greater monetary activism will stimulate growth?
Lord Newby
My Lords, the Bank can do a number of things. However, on the change in the remit, the idea of having intermediate thresholds, which the Fed and other banks around the world have adopted, is to give longer-term certainty about the path of interest rates, which, we hope, will stimulate business confidence.
Lord Forsyth of Drumlean
Did my noble friend see the report in the Financial Times on Monday that the Japanese company, Fujitsu, was going to invest £800 million in Britain, but that all that money will go to reducing the deficit on its pension fund? How much longer will we see artificial deficits being created because gilt yields are used to calculate the liabilities of pension funds, and these liabilities are being exaggerated by the effects of quantitative easing? When are the Government going to do something about this?
Lord Newby
My Lords, there is obviously a tension in respect of interest rates in that some people benefit from low interest rates and some people lose from low interest rates. It is the Government’s view that low interest rates are in the interests of the economy in promoting growth in a very difficult economic environment.
Lord Hughes of Woodside
My Lords, given that the Minister was in purdah the last time I raised this issue, can he now say what the possibility is of banks being allowed to levy negative interest on savings accounts? Who will be in charge of this, as the new Governor of the Bank of England has said that he was within days of doing this in Canada? Who is going to protect savings?
Lord Newby
My Lords, I do not think that anybody in the Bank of England and the MPC at the moment is suggesting that we move to negative interest rates.
Energy: Biofuels
(11 years, 9 months ago)
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Baroness Worthington
To ask Her Majesty’s Government what discussions they have had with stakeholders in the liquid biofuels industry about targets for increasing the proportion of biofuels in road transport fuel.
Earl Attlee
My Lords, the Government meet regularly with stakeholders in the biofuels industry, at both ministerial and senior official level. The subject of increasing the level of the UK’s biofuels supply mandate is often discussed. Since it was introduced in 2008, the mandate has been increased each year and will rise again from 4.5% to 4.75% this April.
Baroness Worthington
My Lords, the British biofuels industry employs 3,500 people, helps to boost farm productivity, reduces imports of animal feed and has incredibly high sustainability standards. We need biofuels to contribute towards our legally binding renewables targets; yet, as of next week, the size of the market for biofuels in the UK will be frozen. Will the noble Earl undertake to meet representatives of the industry to discuss a more sensible way forward so that the industry can continue to grow and deliver investment and jobs, which is what we need?
Earl Attlee
My Lords, I can assure the noble Baroness that ministerial meetings will continue. I am not sure that it would be helpful for me to have meetings because I do not think that I can add anything to the work that my honourable friend Norman Baker undertakes. However, it may be helpful if I explain the problem to the House. The noble Baroness and I desire the same end state: the reduction of carbon emissions. The problem, however, is that if we increase the level of obligation at the moment, there may be undesirable, indirect land-use change problems right around the world, and that could increase the level of carbon emissions. It certainly would not reduce them to the extent that we would like. We have the same objectives as the noble Baroness—I assure her of that—and we still have the ability to get to where we want to in 2020, but we have to be mindful of indirect land-use change problems.
Lord Palmer
My Lords, does the noble Earl not agree that this exciting new biofuels industry is greatly hampered by the fact that four different government departments are involved in it? I declare an interest as the president of the British Association of Biofuels and Oils.
Earl Attlee
My Lords, I accept that several government departments are involved; however, officials do talk to each other. The Secretary of State, Ed Davey, was representing the UK in Europe, trying to find a solution to the ILUC problems.
Lord Bradshaw
Having given a modest reply to the first part of the Question and a slightly different reply to the second part, can the Minister please assure the House that the Government really take the biofuels industry seriously? For example, is he aware of plans to import through Milford Haven large quantities of biomass that is derived not from food crops but waste products from elsewhere? Is it not time that we see some of these strategies come to fruition, rather than the present process, which seems to shilly-shally about in minor adjustment here and there?
Earl Attlee
My Lords, we take the biofuels industry seriously; it is an important industry. However, we must have regard to the fact that we are regulated by EU and World Trade Organisation free-trade rules, and we therefore cannot put in measures specifically designed to protect the UK biofuels industry.
Lord Kennedy of Southwark
My Lords, what does the noble Earl’s department intend to do to support small companies that make biofuels from locally sourced used cooking oil?
Earl Attlee
My Lords, I know that the noble Lord is a great supporter of the used cooking oil biofuel industry, and it is important. In a previous exchange, he raised the dual obligation to avoid the problem of large-scale ethanol imports disrupting the market for used cooking oil for the biodiesel market. I have raised this matter with my right honourable friend the Secretary of State but I go back to the point that I made to the noble Lord, Lord Bradshaw: we have to be careful to avoid setting regulations that favour UK industry, because we will rapidly come unstuck if we do so.
The Duke of Montrose
My Lords, what proportion of current demand under the renewable transport fuel obligation is met domestically and what part has to be imported? Is the domestic industry capable of producing economically against, say, the like of Brazilian ethanol?
Earl Attlee
My Lords, I do not have the figures to hand but I can write to my noble friend with any details that I have—and I am sure that I have some. The current trading period will end shortly and the figures will then be analysed. When we have those figures, we will have a better understanding of how the UK biofuels market works. However, we have to wait until the end of the trading period.
Lord Soley
One thing troubles me. The Minister will know—this refers back to his first Answer—that not all biofuels require extensive land use, algae being an obvious example. However, there are also land-use biofuels, such as in the desert and less arable areas which are wide open for development. Frankly, the British biofuels industry would like to be at the forefront of that, and I wonder whether we should be doing much more about it. Does he agree?
Earl Attlee
I agree with much of what the noble Lord says. There are what are termed “advanced biofuels”, which do not have a land-take impact—certainly not in terms of taking land out of agricultural use or requiring a reduction in rainforest. Moreover, they do not have an impact on food production. Consideration is being given to greater incentives for the production of advanced biofuels.
Earl Cathcart
My Lords, will increasing the use of biofuels increase or decrease the price at the pumps?
Earl Attlee
My Lords, my noble friend asks an important question. The obligation system increases the price of fuel at the pump. It is, in effect, a hidden subsidy, and it works in a very similar way to the renewables obligation for electric power.
Lord Berkeley
Is the noble Earl aware that the addition of biofuels to diesel does quite a lot of damage to engines which stand idle for a long time, such as those of boats and agricultural vehicles? Does he have a solution to this or is the answer to buy non-biofuel diesel for certain uses, such as those I have mentioned?
Earl Attlee
My Lords, the noble Lord and I discussed this during consideration of the renewable transport fuel obligation order in Grand Committee. I admitted that there are some handling problems in keeping biofuels in tanks for a long time, as the fuel needs to be circulated. I am confident that the appropriate publications, magazines and so on will alert users to the need to circulate the fuel, but the noble Lord makes an important point.
Homelessness: Rough Sleepers
Lord Roberts of Llandudno
To ask Her Majesty’s Government what arrangements are in place with the Government of Poland to ensure the continuation of reconnection and rehabilitation programmes for destitute Polish rough sleepers in the United Kingdom.
Lord Roberts of Llandudno
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare an interest as president of the Friends of Barka UK, a renowned homeless charity.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, the Government have not made a specific arrangement with the Government of Poland. The Polish embassy in London works closely with homeless charities such as Thames Reach, The Passage and Barka, as well as the Greater London Authority and Westminster council. Reconnecting rough sleepers to their home countries is the best way to tackle destitution. The embassy is able to assist by quickly providing travel documentation and advice to its citizens.
Lord Roberts of Llandudno
My Lords, I thank the Minister for that Answer but is she aware that Barka, which deals mainly with destitute and homeless eastern European citizens, has, to date, already been able to rehabilitate 2,822 citizens from eastern Europe? That is largely thanks to funding from certain London boroughs, but now, with the economic crisis, much of that funding is being withdrawn. That means that those who previously could have been helped will still be on the streets of London. Can we not somehow find a way to resolve this problem and help these people go where they want to go—to their own homes?
Baroness Hanham
My Lords, the noble Lord is correct that four London authorities that have been supporting Barka financially are now unable to do so. I agree with my noble friend that one of the important aspects regarding destitute immigrants is that they should be reconnected and helped to get back home. There are ways of doing that. The Polish embassy is helpful in providing documentation and Westminster City Council and the Greater London Authority have the means to do it. It is absolutely right that anybody who is here and not in a position to look after themselves would probably be better at home, and it is helpful for us to help to get them there.
Lord McKenzie of Luton
My Lords, on the basis of government figures, rough sleeping in England has risen by 23% since 2010 and some 25% in London. The Mayor of London, supported by the coalition Government, committed to end rough sleeping by 2012. Are there any conversations or interviews planned with the mayor to find out where it is all going wrong?
Baroness Hanham
My Lords, I am not sure about it going wrong. It is correct that more people are sleeping rough. There are a number of reasons for that, some of which are that at least half the rough sleepers in London are not UK nationals, so they have to be helped in the way in which I described. The Government already give the Mayor for London money to support No Second Night Out, which means that people are getting help immediately, so they are not sleeping out, particularly on these very cold nights.
Baroness Gardner of Parkes
As the Poles have a marvellous reputation for being hard working, I am surprised that this issue is related particularly to Polish people. Does the Minister agree that a good many shelters are provided for the homeless in London, even in central London? I have been involved with some myself through charity. Does the Minister think that one of the big problems with a lot of homeless sleepers is their additional problems, and that it is not just about being short of money? Some have drug or alcohol problems, or some illness. Does she not think it important that these things should be available to people so that they can be dealt with in rehabilitation, even here, before they go back to their own countries?
Baroness Hanham
Yes, my noble friend raises an interesting point because a number of people who sleep rough have additional problems, such as mental health or alcohol problems. It is very important that when they are being helped to reconnect, those services are reconnected as well. There are organisations that do that, and if UK nationals are involved we ensure that they receive the services that they need.
Lord Peston
My Lords, I apologise to noble Lords for intervening twice in the same Question Time, which is not my wont, but I am very intrigued by the Question. Will the Minister say whether her department actually collects data on the nationality of rough sleepers? Secondly, are Poles disproportionately represented in that database? Thirdly, is she aware that if she were looking for a good Keynesian expansionary policy to get the economy going, collecting useless data is one of the best things I can think of?
Baroness Hanham
My Lords, useless data are useless; helpful data are helpful. Yes, we actually do collect figures about homelessness, which are important data. Otherwise, we would not know how many people there are or where they come from. We cannot start reconnecting people if we do not have the data to know where they should go or whether they need additional help. We do know the hotspots across the country for rough sleeping, and I am sure that the noble Lord would agree that that is a good use of information.
Baroness Hussein-Ece
My Lords, young people leaving care are still sadly overrepresented among rough sleepers. I saw two young boys the other day in the freezing cold slumped in a shop corner in the Holloway Road in Islington, looking totally destitute. Will the Minister tell us what is being done to try to tackle this problem, which has been going on for so many years?
Baroness Hanham
My Lords, the noble Baroness will know that for children under or between 14 and 18 there are very fast services to make sure that they are not left on the street. Centrepoint, Depaul UK and St Basils are particularly good at finding them, so anyone within that age group should not be on the street for more than a very short time. We know that there are problems for slightly older people—those between 18 and 25—who make up one in 10 of rough sleepers. Again my noble friend is correct: some of those, at least, are people who have left care. It is one of the important aspects with care now that we make sure that they do have a future and somewhere to go and do not end up on the streets of London.
Afghanistan: Interpreters
(11 years, 9 months ago)
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Baroness Coussins
To ask Her Majesty’s Government whether, in the light of recent reports of Taliban threats against Afghan interpreters who have worked with British forces, they will extend the targeted assistance scheme to enable these interpreters and their families to resettle in the United Kingdom on the same basis as Iraqi interpreters.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, we take any reports of threats towards our staff very seriously. We have in place a policy for investigating and dealing with intimidation of our locally engaged civilians, with specific measures aimed at reducing the risks they face from Taliban threats. We are looking carefully at how to make appropriate provision to support LECs as we end our combat mission. I expect to update the House on our formal policy later in the year.
Baroness Coussins
My Lords, I appreciate that Answer. However, can the Minister explain why the Government felt able to offer Iraqi interpreters exceptional indefinite leave to enter the UK outside of the Immigration Rules but cannot do the same now for their Afghan equivalents? They have risked their lives doing a professional job for us and in many cases now live in hiding in fear of their lives. Why are our NATO allies, including the US, Canada, New Zealand, Australia and Germany, all able to offer resettlement packages to their Afghan interpreters but we seem reluctant to do the decent thing by ours?
Lord Astor of Hever
My Lords, we are looking very carefully at how we are going to make appropriate provision for LECs, incorporating the lessons that we learnt from Iraq. We will not abandon these people. We are conducting a review of our policy towards locally engaged civilians in Afghanistan as the scale of our presence there decreases. As I said, I expect to provide an update to the House on our formal policy later this year. As to our NATO allies, we are working very closely with them on this issue, especially the Danes. Not all NATO allies have made announcements on LECs. Among those who have, there is a wide range of schemes, including some which are similar to the intimidation policy that we are already implementing.
Lord Avebury
My Lords, how many of our interpreters have already been assassinated and how many have received death threats from the Taliban? Does my noble friend not think that there should be a moral obligation on all NATO allies to adopt a common policy in this respect to protect those who have been our faithful servants throughout our tenure of office in Afghanistan?
Lord Astor of Hever
My Lords, 24 LECs have been killed while working for UK forces and 122 have been injured since 2006. As I said, we are in close contact with our NATO allies about how to take this matter forward.
Lord West of Spithead
My Lords, the Minister must, I am sure, believe that this is weasel wording and not good enough. How we behave towards these people is a question of trust and honour and this really is not good enough. It gives a very bad message for any of our forces in future operations about whether people should help them. We have to move forward rather faster and more certainly on this issue.
Lord Astor of Hever
As I said, my Lords, we will not abandon these people. It is a very complex subject. I have met a number of these people, as I am sure a number of other noble Lords have, in Afghanistan, and this relates not only to interpreters but also to people with other skills. Not all of them want to come to this country. Afghans are a proud people and some want to stay and use their language skills to help their country. If possible, we want to help them to do that. The Afghans will not thank us for removing some of their most able people.
Lord Stirrup
My Lords, good interpreters are crucial in a wide range of the operations that the UK Government seek to undertake. Does the Minister agree that we will find it increasingly hard to obtain the services of such interpreters if we are perceived to be discarding them when they are no longer needed? Doing the right thing too slowly can foster that perception. The Government’s current approach risks not only being unjust but actually being harmful to our future capabilities.
Lord Astor of Hever
My Lords, the noble and gallant Lord makes a good point. As I said earlier, we will not abandon these people. The National Security Council met earlier this month to consider the issue and civil servants have been sent away to consider how best to deal with it. However, we will not abandon these people.
Lord Dobbs
My Lords, some 10 years after the invasion of Iraq we have been unable to deliver either stability or democracy. How confident is the Minister that in 10 years’ time we will not have the same sorry story to tell about Afghanistan?
Lord Astor of Hever
My Lords, I have been out to Afghanistan several times, as have other noble Lords, and each time the situation is a lot better than it was before. So we do have a good story to tell. I am very optimistic about the future of Afghanistan.
Lord Rosser
My Lords, under the last Government a settlement programme was agreed for Iraqi staff and their dependants. At the end of last year, the shadow Home Secretary called on the Government to offer a settlement scheme for Afghan interpreters who had helped and worked alongside British troops, in some cases suffering injury and now facing threats from the Taliban as our troops pull out. If someone now fears for his own and his family’s safety as a result of working with our soldiers and helping to fight for Britain’s long-term security, we should be prepared to act. Why is there any hesitation on the part of the Government when these are people who have surely been through the hardest citizenship test one could envisage?
Lord Astor of Hever
My Lords, there is no hesitation. We take our responsibility for all members of staff very seriously and have put in place measures to reduce the risks they face. Precautions are taken during recruitment and staff are fully briefed of any risks involved in their work before taking up employment. As I said, the Government are looking into this matter, and I hope to report back to the House later this year.
Joint Committee on Parliamentary Privilege
(11 years, 9 months ago)
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Lord Hill of Oareford
That the orders of appointment of the committee appointed to join with the committee of the Commons as the Joint Committee on Parliamentary Privilege shall remain in force and effect in the next session, notwithstanding the prorogation of Parliament; and that the committee should report by 28 June 2013.
Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) Order 2013
(11 years, 9 months ago)
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Lord Astor of Hever
That the draft order laid before the House on 14 February be approved.
Relevant documents: 20th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 25 March.
Renewable Heat Incentive Scheme (Amendment) Regulations 2013
Lord Gardiner of Kimble
That the draft order and regulations laid before the House on 4 March be approved.
Relevant documents: 22nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 25 March.
Companies Act 2006 (Amendment of Part 18) Regulations 2013
Viscount Younger of Leckie
That the draft regulations laid before the House on 6 March be approved.
Relevant documents: 22nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 25 March.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013
(11 years, 9 months ago)
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12:38 - Division on Lord Bach’s amendment to the Motion - Ayes: 166 / Noes: 161 - Lord Bach’s amendment to the Motion agreed.
Lord McNally
That the draft regulations laid before the House on 4 February be approved.
Relevant documents: 20th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in moving the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013, I shall speak also to the draft Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013. The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 amend the Civil Legal Aid (Merits Criteria) Regulations 2013, which I brought before the House on 3 December. These amendment regulations fulfil a commitment I made in response to concerns about the effect the regulations, as originally drafted, would have on the availability of legal aid for judicial review.
Regulation 53(b) of the Civil Legal Aid (Merits Criteria) Regulations 2013 provided that the director of legal aid casework had to be satisfied that all administrative appeals and other alternative procedures which are available to challenge the act, omission or other matters had been exhausted before legal representation could be granted for such public law claims. This was drafted as a test without exceptions, and we suggested that the director would need to consider whether such an alternative route was, in fact, realistically available. The policy intention underpinning Regulation 53(b) is that if there is, for example, a welfare appeal that can overturn the decision, generally that would have to be followed instead of a judicial review of the DWP being sought.
The noble Lord, Lord Pannick, and others expressed concerns over the differences in approach between Regulations 53(b) and 39(d). Regulation 39(d), which covers pre-proceedings alternatives, only requires that such alternatives are pursued when it is “reasonable” to do so. I therefore undertook to bring forward amending regulations to introduce a discretion in Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would be effective in providing the remedy that the individual requires. These regulations fulfil that undertaking.
The amendment does not specifically include the word “reasonable”. Although reasonableness is used in other areas of the regulations, we consider that it is too wide a concept to use in this provision. Instead, we have tried to reflect the circumstances in which it would not be reasonable to require the alternatives to be pursued, and to base the criterion on those specific circumstances—that is, where the alternatives would not be effective in providing the remedy that the individual requires, in the view of the director. That includes where alternative court or tribunal proceedings cannot deliver the whole remedy the individual requires or cannot deliver it quickly. I consider that that this meets the concerns raised previously.
I turn now to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013. Before I explain the four changes that this order makes to Schedule 1 to the LASPO Act, I wish to address the regret Motion tabled by the noble Lord, Lord Bach. The regret Motion relates to the concession which would have made legal aid available in relation to a review by the First-tier Tribunal, where it had identified an error in law in its own decision on a welfare benefit appeal. This was voted down by the House on 3 December last year and, as I made clear before the House voted, and again on 8 January this year, the Government have no intention to bring forward another order on this point. That remains the case.
I turn now to the order itself. First, it modifies Part 1 of Schedule 1 to the LASPO Act 2012 and makes legal aid available for advice and assistance for appeals on a point of law relating to council tax reduction schemes in the High Court, as well as advice, assistance and representation in relation to such appeals in the Court of Appeal and Supreme Court. The council tax reduction scheme will replace council tax benefit, which is being abolished in April as part of the welfare reforms. This provision therefore ensures that equivalent civil legal services are available for onward appeals relating to council tax reduction schemes as are available in relation to council tax benefit. To be clear, this part of the order does not change the scope of legal aid but is a technical change that maintains the position under the LASPO Act 2012.
Secondly, the order amends the definition of domestic violence in the Act. This will bring the definition into line with the updated cross-government definition of domestic violence which comes into force on 31 March. It adds the words “controlling, coercive … behaviour” and “pattern of incidents” to the existing definition. The definition of domestic violence in the Act applies to private family law and immigration cases under paragraphs 12, 28 and 29 of Part 1 of Schedule 1 to the Act, which provide for legal aid for victims of domestic violence in such cases. I hope that this will be welcomed across the House.
Thirdly, the order brings into scope certain applications to meet our international obligations under the 2007 Hague convention, which we expect will come into force in April 2013. The convention concerns the international recovery of child support and other forms of family maintenance. It sets out certain requirements for the provision of legal aid in relation to the recognition, enforcement or establishment of a decision in relation to maintenance. These are reciprocal arrangements for signatory countries.
The convention is broadly equivalent to the EU’s maintenance regulations for which services are already made available under Schedule 1 to the LASPO Act. In fact, most countries that have signed the convention will already be covered by the EU maintenance regulations, with a few exceptions such as Norway.
Finally, the order before us addresses a technical issue in relation to legal aid for judicial review. In our consultation response on legal aid reforms, we confirmed that legal aid would be available for judicial review subject to a few, very specific exclusions. That remains our position. This is reflected in paragraph 19 of Part 1 of Schedule 1 to the LASPO Act, which puts within scope legal aid for judicial review in almost any area bar the exclusions debated and agreed by Parliament.
However, an arguable effect of how the LASPO Act is drafted is that judicial review may be in scope for any area of law listed in Schedule 1 despite the exclusions in paragraph 19. Therefore, this order simply makes a technical amendment to ensure that judicial review is governed exclusively through paragraph 19, and the specific exclusions have the effect intended. I beg to move.
Amendment to the Motion
Lord Bach
To move, as an amendment to the above Motion, at end to insert, “but this House regrets that Her Majesty’s Government have responded to the opinion of this House, as expressed in a vote on 3 December 2012 on a fatal motion in respect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012 on inadequate provision for legal aid in first tier tribunal cases, by bringing forward this order which excludes even that limited provision.”
Lord Bach
My Lords, I hope to move this regret Motion in an entirely non-partisan manner, because this matter in my view affects the whole House and its reputation and it is not meant in any sense as an attack on the Minister, who has been on the side of the good within the department in trying to make sure that this ghastly Act of Parliament was modified.
Some noble Lords may remember the background to this state of affairs and others will not, so I hope that the House will forgive me if I set out as briefly as I can what has happened and why I believe that, in this case, the Government have behaved in a manner that has offended both against the constitutional arrangements that bind our country together and, importantly, against a small group of our fellow citizens who have been deprived of a legal right that they were promised by the Government.
The story begins on 17 April last year, when, in another place at the ping-pong stage, the then Lord Chancellor made an important concession to ensure that the LASPO Bill got through. An amendment had been put forward there to allow legal aid for welfare benefit reviews and hearings, supporting an amendment already agreed in this House and moved by the noble Baroness, Lady Doocey. To prevent that amendment succeeding, the Lord Chancellor made it clear that Her Majesty’s Government would compromise and allow legal aid for legal advice at First-tier Tribunals in cases where a point of law arose. He wanted time to ask his department about the best way of implementing the pledge. He was given that time, in due course the Bill became law, and we waited for the pledge to be implemented.
A Written Ministerial Statement appeared on 18 September last year. Surprisingly, this Statement did not announce how the major concession, which had been pledged by the Lord Chancellor, had been put into effect. Instead, in its place, a new—I would say minor—concession was announced that would affect many fewer people but would arise in a limited number of cases before the First-tier Tribunal. These were called errors of law cases, and according to a parliamentary Written Answer given to me by the Minister on 23 November last year, there were 692 errors of law cases in the year 2011-12, and 173 between April and June 2012. Of course, not every case would involve legal aid being granted, but—this is important in my submission—some would. If no one was to benefit, why would the Government have put forward this minor concession at all?
As the Minister just told us, on 3 December last year, the Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2012, which included the minor concession, was debated in your Lordships’ House. I tabled an amendment that declined to support the regulation because, first, it did not fulfil the Government’s undertaking in the Commons on 17 April and, secondly, it would mean that claimants would not receive legal help on a point of law. The debate followed. It was crystal clear that all those who spoke in favour wanted the Government to withdraw the regulation and come back with something a little more generous. They were definitely not arguing for there to be no concession of any kind, which would have been an absurd position for them to have taken. We were saying to the Government, “Keep your word, and if you can’t do that, come back with something a bit more generous”. My amendment was supported by speeches from around the House, including those of the noble and learned Lords, Lord Woolf and Lord Goldsmith, and the noble Lord, Lord Pannick; and, from the Liberal Democrat Benches, those of the noble Lord, Lord Phillips of Sudbury, the noble Baroness, Lady Doocey, and other noble Lords. In the event, the Government refused to do what was asked, and the regulation was defeated, by 2,001 votes to 191.
Lord Bach
My Lords, I apologise—it is nearly the end of term. I meant 201 votes to 191. I was about to say, that in the somewhat heightened minutes before the vote was held, which were a good deal more heightened than they are at present, the Minister warned—or, to use another expression, threatened—that a vote against the regulation would not necessarily result in a better offer. He did so in such a way, if I may say so, that some noble Lords may even have been swayed to vote for my amendment and against the regulation.
The Government did not decide there and then not to come back with a further regulation. Indeed, on 18 December, 15 days after our debate and just before the Christmas Recess, the Minister’s Secretary of State—now the Lord Chancellor—the right honourable Chris Grayling, was asked in the Commons at Justice Questions about this very point. My honourable friend Andrew Slaughter MP said:
“The proposals finally brought forward were so inadequate that two weeks ago their lordships voted them down and told him to come up with something better. Now we hear that the Secretary of State, in a fit of pique, intends to do nothing at all. Why is he breaking a promise to Parliament and to some of the most destitute and vulnerable people in the country?”.
The Lord Chancellor replied:
“As the hon. Gentleman will be aware, we have promised to consider the decision by the Lords. I was a little surprised to see the rather unusual step taken in the other place of voting down a statutory instrument that was granting a concession, but we will of course review the issue and decide how to proceed”.—[Official Report, Commons, 18/12/12; col. 694.]
In the new year, on 8 January in this House, the Minister, in reply to an Oral Question, said that the Government would not be putting forward another regulation.
As so often in this House, the noble Lord, Lord Pannick, who cannot be in his place today, put the killer question that, in my view, the Minister cannot answer. He asked:
“Given that the House rejected as inadequate the limited concession on legal aid in First-tier Tribunals, is it not truly perverse for the Government to respond by withdrawing even that?”.—[Official Report, 8/1/13; col. 13.]
Why is the Government’s behaviour so perverse? Why am I arguing that their line, not to put forward another regulation, is so wrong? It is for two reasons. The first is the constitutional offence that has been caused to Parliament. The Executive are supposed to be subject to Parliament. Parliament’s wish that a more generous concession was required was clearly expressed on 3 December; it cannot be more clearly expressed than by a vote of a House of Parliament. The House voted for this.
The Government could have brought back their minor concession if they had wanted to. For them to refuse to bring back anything else is—I choose my words with some care—treating Parliament with contempt. It is saying to Parliament, “We are the masters, not you. We don’t care what you say, we will do what we want”. I liken it to the behaviour of a spoilt child who cannot get his way. The conduct is more that of a playground bully than a mature, grown-up, confident, democratic Government. What has happened here is dishonourable, and my amendment rejects this behaviour.
The second reason, which is perhaps as serious, is that two groups of people who were led to believe that they might get legal aid for advice for First-tier Tribunals—those with a point of law and those in error-of-law cases—have had their legitimate expectations removed by Her Majesty’s Government without any consultation. Why? For the first group, the Government would cite the cost and say that they could not afford the major concession offered by the right honourable Kenneth Clarke in April last year, but what is the reason for this second group? It is not a big group, but it undoubtedly includes some people. Is cost the reason? We have never been told the cost of this minor concession. Or is it—I am afraid to say—just plain spite? That is unattractive in an individual and just not acceptable in a Government. This meanness of spirit is and should be offensive to this House and to the wider world.
I feel strongly that the civil legal aid cuts that will come in on 1 April, in a few days’ time, will demean the reputation of our legal system. I feel even more strongly that in this limited case—I do not want to claim more for it than actually exists—the behaviour of the Government towards Parliament, towards this House in particular and towards its citizens is unacceptable. I beg to move.
Lord Phillips of Sudbury
My Lords, the speech we have heard from noble Lord, Lord Bach, is very sobering, and although he put it forth in no spirit of partisanship, some of the language was, if I may say so, overcoloured. I do not think that to accuse the Government of spite is reasonable, but I accept that for us apparently to deprive those covered by the Motion, who have suffered at the hands of a First-tier Tribunal where there has been an error of law in the decision, seems, to accept the noble Lord’s word, perverse.
I used to have an office overlooking the Old Bailey, and I never forget the motto over the portal of the Old Bailey. It reads:
“Defend the children of the poor & and punish the wrongdoer”.
If ever there is a category of cases where the children of the poor are likely to be engaged, it is this one: welfare law cases.
I shall listen very carefully to what my noble friend has to say in response to the case put forward by the noble Lord, Lord Bach. My mind is not finally made up, but I must be frank with my noble friend. This seems an extraordinary error of both judgment and justice. We boast endlessly in this country about our justice system, on the whole with reason. I cannot begin to get my head around denying people who have suffered a reverse in the welfare tribunals legal advice on a point of law. I hope that my noble friend will have a compelling argument to bring forth. In particular, it would be very helpful for the House to know just what the cost is, or would be likely to be, if the provision were withdrawn. I very much hope that if the Minister cannot give a satisfactory riposte, the Government will think again, even at this late stage. Sometimes numerically small issues mark a culture, a society, a Government, and this seems to me to be laden with that significance.
Lord Beecham
My Lords, this debate consists of two parts. The first is the regret Motion tabled by my noble friend Lord Bach, which deals with a particular decision. I do not want to say any more about that other than that I entirely support the magisterial rebuke that he administers not to the Minister, who of course does not have a free hand in these matters, but to the Government at large for denying a modest concession to about 300 people, the cost of which, to refer to the question asked by the noble Lord, Lord Phillips, must be minimal, in what can only be described as a governmental fit of pique.
Having said that, I turn to the second more general issue that is encompassed in the broader merits regulations and the position of welfare law claimaints in general, who are significantly affected by the changes that are now under way. Hitherto, about 30,000 people have benefited from welfare legal aid and advice, usually, although not exclusively, provided by voluntary organisations, notably the citizens advice bureaux. I place on record my gratitude to the bureaux for furnishing the information that I am about to relate, in part at least, to the House. The situation now is that instead of 30,000 people getting that advice, 3,200 will receive advice and support in respect of Upper Tribunal matters only. There will be no assistance in their case at the first tribunal. There are two aspects to this, a supply side and a demand side, and I shall begin, rather perversely, with the second, which is the demand side.
We are dealing nationally with a group of significantly disadvantaged people. I am informed by the bureaux that some 68% of current welfare legal aid users have a disability. In addition, there will be many with literacy and other problems and vulnerabilities; indeed, they are a significantly high proportion of those who seek advice. They seek advice about their entitlement, but also about the processes that are, to put it mildly, complex. I can illustrate that with one of a number of cases the bureaux have briefed me and my noble friend on. I shall pick the shortest so as not to delay your Lordships any further than necessary.
In one case, a Welsh bureau advised a 57 year-old woman with multiple disabilities who received employment and support allowance and council tax benefit. She made a claim, did not seek advice when completing it and as a result underestimated her needs, in particular her mental health issues. Here, again, I underline the point about the degree of vulnerability of some of these claimants. She attended a medical assessment and was judged to have scored no points. She appealed that, attended a First-tier Tribunal in 2012 and was awarded nine points, but was not awarded any help with the mental health conditions, despite a letter from a GP saying she had a long-term mental health condition and despite the fact that the letter said she was suicidal some months before that decision. The bureau then advised her on looking for options for appealing the decision to the Upper-tier Tribunal. She would have had no help at all from the bureau in the present circumstances if the bureau’s capacity to give it was limited, as it is likely to be.
In effect, legal aid and advice is now limited to the second stage, the onward appeals tribunal. This is not consistent with the intention Parliament originally expressed in respect of first-tier cases where at least basic advice and support on a number of procedural issues, such as a request for a statement of reasons from a first tribunal, seeking leave to appeal from the first tribunal and other aspects—lodging documents and so on—should be covered. Unless these stages are included within regulations, it is unlikely that anybody seeking to appeal, assuming they know of their rights to appeal, would be able to progress from the first tier to the second tier unassisted. That is the second stage.
I now turn to the supply side. There is a growing crisis in the sector. There is no doubt about that. Citizens advice bureaux and other organisations are suffering significant reductions in funding from national and local government, the latter of course having been awarded a further 2% cut in government grant in the recent Budget, so things are not going to get any better for some time in that context. The problem now is that bureaux are disposing of staff. My bureau in Newcastle has had to rid itself of the equivalent of three and a half full-time legal advisers, the bureau in Gateshead is closing, and this pattern is being repeated all over the country. It has to be said that some bureaux continue to provide pretty much a full service, but increasingly the pressure is resulting in a substantial decline in the capacity of the organisations to meet the demand, which is likely to rise, not least with the Welfare Reform Act changes that are about to strike hundreds of thousands, if not millions, of people.
The process now is that the contracts to provide this service for the only part that is to be covered by legal aid, the Upper Tribunal, are being let in a very curious system. I did not know about this until a couple of days ago. Apparently there are to be only four areas in which these contracts will be granted for the whole country. I am not sure whether Scotland is included, but certainly England and Wales are divided into four areas under which a contract will be let. A tendering process will commence and it is intended to be completed in October.
What is to happen in the mean time, between April and October, given the pressure on the budgets of the CAB and other advice agencies, remains to be seen, but there must be a significant worry that there will be difficulties in dealing even with appeals to the Upper Tribunal pending the allocation of contracts. Certainly there is a good deal of concern in the sector about that, because in the mean time several hundred welfare law contracts, which are not currently distributed on the basis of just four contracts for the whole country, will come to an end. So there is a really significant problem immediately on the supply side.
The four areas—it is clear that Scotland is not included—are the north, the Midlands and the east, the south-west and Wales, and London and the south-east. These are huge geographic areas. The CAB says that the contracts will require that:
“The applicant must be able to provide face to face services from locations and access points across the whole area, as well as delivering remote advice”—
that says it all, really—
“and interacting with the civil legal aid (CLA) helpline; no subcontracting is submitted and the applicant must be a single individual”.
A very strange market is going to develop in which only four organisations will be involved. One imagines that organisations such as Group 4 and Atos, which have covered themselves in glory in recent years, will be rushing forward to supply this important and sensitive service.
The contracts themselves are very limited. For London and the northern procurement areas, only 1,035 cases are assumed to be included in the contract. The other two areas have 600 and 90 each. That is minimal in the face of the likely demand. It certainly does not take us beyond the current 3,200 people who get legal aid and advice for the Upper Tribunal. There is no flexibility in that. If you have only that small number of cases you will have only two or three specialist advisers covering areas as vast as those that I have described. Remoteness is indeed going to be evident. How on earth can two or three people sensibly look to face-to-face contact with appellants over an area as wide as that? Yet that is what the contracts are heading towards.
Will the Government look again at support for the advice sector, and the contract in particular, first, to ensure that services are maintained on the present basis between 1 April and the date on which the new contract comes in? That will be difficult because people will be looking for alternative employment. If the contracts are going to involve only 12 people nationally, people who are currently engaged locally on this kind of work are going to be looking for other work. I hope that the Government will provide some temporary support at least for the continuation of that service. Secondly, will they look again at this ridiculous pattern of four huge areas served by a handful of people? I cannot believe that the Government seriously think that this is the way to support people of the kind that the CAB describes, which I related to the House, who desperately need personal contact if they are to have their cases heard.
Of course, we are not voting on the regulations as such. I believe that the Minister will be sympathetic to the issues I have raised. I hope he will take this back to the department and that we can have some changes: first, some reconsideration, preferably with proper discussion with the sector about how it might work; and, secondly, a review of whether the contracts should go ahead on the present basis. I certainly hope that the Government will have second thoughts about this matter.
Lord McNally
My Lords, I thank the contributors to this debate. I have listened carefully to the points they have made. Perhaps I could turn first to the important issue raised by the noble Lord, Lord Bach, on how Parliament does its business and the consequences of its decisions. I would simply remind your Lordships—and the noble Lord had the honesty to do so—of what I said before the House voted on 3 December:
“My Lords, we are almost on the verge of another financial Statement by the Chancellor. I have made it clear that the noble Lord must not lure the House into an idea that following him into the Division Lobby will produce a better offer because it will not”.—[Official Report, 3/12/12; col. 490.]
I do not know how a Minister could be clearer in asking the House to consider that before voting.
Another point is that what my right honourable friend the then Lord Chancellor promised was to use his best endeavours to look for a concession. He came back with a concession which made its way into the final Act passed by Parliament. If the Opposition Front Bench ever returned to this side of the House, they would be as reluctant as we are to have reopened debate on the final settlements in any legislation by the use of fatal Motions. I believe that that would prolong the issue and put pressure on every Opposition to say, “The matter is not closed. You could pass a fatal Motion and that will get us a better offer”. I do not think that is the way that government can operate. The offer was made in good faith after exploring the consequences of the other options. As I say, it would set a precedent for keeping debates running and keeping up pressures which, quite frankly, Oppositions would eventually find difficult to handle. The pressure groups, which quite legitimately keep the pressure on us, would say, “Well, it is not closed now because you could pass a fatal Motion”. That is the point.
It is always flattering to suggest that, secretly, I do not agree with the decision, but I actually do and in part because of my capacity as a business manager in this House. I believe that we gave the House a clear understanding of the consequences. The House took its decision, and that is how the Act is now set.
Turning to the running programme of criticisms from the noble Lord, Lord Bach, again I make no complaint about them. I have said previously that it has been a very strong parliamentary performance, which is absolutely right for someone in the Opposition involved in these areas. I would say, though, that in 2010 we were faced with the situation in which there were going to be considerable cuts in government expenditure. The Ministry of Justice was faced with a budget settlement that had been cut by 23% and, as I have said, it is a department that spends money only on prisons, probation, court services and legal aid.
Lord Howarth of Newport
Will the Minister confirm that the Government have just announced that they are going to spend somewhere between £100 million and £200 million on the modification of the Olympic stadium for the benefit of West Ham United Football Club? Why are the Government so open-handed in their funding of access to sport but so cruelly restrictive in their funding of access to justice? What scale of values does that represent? Should equality before the law not be a non-negotiable and irreducible value?
Lord McNally
That is the point that I was going to make. The noble Lord is extremely good at self-righteous debating points; I almost admire him for that. The fact is, though, that he has been in departments and he knows that they accept budget targets and have to look through their own expenditure.
Lord Howarth of Newport
My criticism was of the Government, and the Minister speaks on behalf of the Government.
Lord McNally
The noble Lord knows how Governments work, and spending reviews are carried out by individual government departments. He was responsible for the arts budget, fortunately in happier days with regard to spending. Individual government departments have to take hard decisions. It is an old scheme in government to say, “Oh well, of course defence spends this much more”. You have to make the decisions, and we had to make decisions about the scope of legal aid.
We tried from the beginning to ensure that there was a logic to what we were doing, in that—I have just been handed a little guide to it—we prioritised civil legal services so that they would be available in the highest-priority cases: where people’s life or liberty was at stake, where they were at risk of serious physical harm or the immediate loss of their home, or where children may be taken into care. That has undoubtedly meant cuts elsewhere, which the noble Lord, Lord Beecham, outlined, although the dividing line between legal advice and advice sometimes gets blurred.
I should also make the point that the universal credit is not a big bang; it will be phased in over a number of years. Of course we will keep a very close eye on how these things develop and the impact that they have.
I make this point again to the advice services: I know that CAB and others have been formidable lobbyists, and again I make no complaint about that, but the advice service is no more spared from the cuts that have affected this area than my own department is or than local authorities are. We live in hard times as far as these bodies are concerned, and we are trying to give money to the advice sector to help it reorganise and adapt to new circumstances. We will continue to do so, but we cannot immunise it from those impacts.
One of the oldest members of my flock, my noble friend Lord Hutchinson of Lullington—Jeremy Hutchinson QC—sadly no longer attends the House for what I think is the entirely bogus reason that he is 96, but he is as sharp as a tack. He was involved with the Bar in the setting up of legal aid in 1948 and told me, “We really thought that we were creating a National Health Service for the law”. That was an extremely noble aspiration. However, I have also found, particularly since 2010, that given the financial circumstances that we inherited, not just this Government but the previous Government had been looking at whether some parameters had to be set on the provision of taxpayer-funded legal aid. I hope that in taking these measures forward we can engage in attempts to get some kind of cross-party consensus on society’s commitment to legal aid.
In a discussion that the noble Lord, Lord Bach, and I had at University College recently, I said that if he were here in 2015, and he asked Chancellor Balls, or whoever, for £500 million to restore the legal aid cuts, I did not think that he would get a very promising answer as the same economic constraints and realities would still apply. However, there is an interesting debate to be had about the future of legal aid and our national commitment to it. Thus far, we have made hard decisions but I want to make sure that as far as possible we are not left with rough justice.
On the point made by my noble friend Lord Phillips, we will keep the matter under review. I have asked all the various sectors of the MoJ that deal with these matters to keep monitoring the measure’s impacts and effects from day one. I know that noble Lords on all Benches will want to see how this works out. However, I believe that we have done the best we can in difficult circumstances.
Lord Phillips of Sudbury
Before my noble friend sits down, will he answer the question that I think was put by the noble Lord, Lord Bach, and certainly by myself: namely, what broadly is the cost of allowing advice to be given to those few hundred people who want to appeal on a point of law against a tribunal decision on welfare law?
Lord McNally
I think a rough estimate is that it is probably less than £1 million. It was a very small concession, but it was not me who withdrew it.
Baroness Whitaker
Before the noble Lord sits down, I am not sure that he quite dealt with the point made by the noble Lord, Lord Phillips, about a culture change. Does he not agree that these regulations mark a complete reversal of our prior ideas about access to justice and equality before the law?
Lord McNally
No, that is why I want to invite a discussion. The term “access to justice” is bandied around very freely. I do not want to provoke him but I see the menacing figure of the noble Lord, Lord Richard, just behind the noble Baroness. He would probably agree that access to justice and access to taxpayer-funded legal aid have never been the same thing and we must not get them confused. Every Government have had to limit this provision. Oh, my God, I see that the noble Lord wishes to speak. As I say, they are not the same thing, but I want this Government and successive Governments to keep the concept of access to justice very much to the forefront of their commitments to the citizen. However, that may be done by adapting the system in a whole manner of ways: for example, in the way that advice is given. The noble Lord, Lord Beecham, was rather dismissive of remote advice, but I think that the use of new technologies will give better access to justice. However, having provoked the noble Lord, Lord Richard, I will give way to him.
Lord Richard
I am flattered that the noble Lord should find me menacing. Does he not see that there is a clear distinction between access to justice and access to legal aid? Does he not see that in certain circumstances certain people who are denied legal aid are denied access to justice? That follows as night follows day. If someone cannot afford to go to the courts in order to get justice, that is denying them justice.
Lord McNally
Access to justice may also be by other forms of advice. Not all advice is legal advice.
Lord Richard
When a tribunal is involved, it is not a question of advice but of having to go to a tribunal to get a decision. That is where the justice comes from—the decision of the tribunal, not the advice that one is given before one gets there. Surely the noble Lord sees that distinction.
Lord McNally
Built into the system are corrections to the tribunal. The noble Lord will know that the tribunal system was initially conceived as a relatively lawyer-free zone where people could make their case. The other part of our reforms of justice is, in a whole range of measures, to offer different forms of mediation and arbitration that reduce what was becoming an over-lawyered system, including in tribunals.
Lord Phillips of Sudbury
I am sorry to intervene again on my noble friend, but it is not fair to say that the tribunals introduced a lawyer-free zone. The point of this debate is that it is in respect of issues of law in relation to tribunals that advice is plainly needed from lawyers. That is ineluctable.
Lord Bach
My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—
Lord McNally
Will the noble Lord give way to allow me to make one point? I know that he wants to make a political point.
Lord McNally
Well, all right, he wants to make a point. I was at a call centre on aid the other day. I listened to one call in which a lady said, “I know that they are bringing this legal aid to an end”. That is what worries me. I know that criticisms have to be strongly put but we must not make people think that we are ending legal aid. At the end of this process, we will be spending £1.7 billion on legal aid. We will still have a substantial amount of taxpayers’ money going into welfare legal aid. By all means attack the decisions but do not leave people with the idea that legal aid is not available, because it is.
Lord Bach
I am grateful to the Minister, and I am grateful for what he said earlier. There is £1.7 billion left, of which approximately £1.2 billion is spent on criminal legal aid, which leaves for civil legal aid—including public family law and asylum law, which remain in scope—precisely £500 million. Social welfare law was always a small part of the legal aid budget. It is now going to be a tiny part of it. That is my criticism of the measure. It is bad for the high reputation of our legal system.
For the moment, that battle has been lost, but only for the time being. I do not share the Minister’s pessimism that no future Government, perhaps even a Liberal Democrat Government, will bring back some sort of proper legal aid in social welfare law. That may well happen. I know that this House, in its heart of hearts, regrets what is happening on 1 April. However, my amendment to the Motion does not seek to turn back that clock but to point out a particular act of what I consider to be meanness by the Government towards that very small group of people that the noble Lord, Lord Phillips of Sudbury, mentioned. It is also, if I may say so, an insult to Parliament.
The Minister is absolutely right about fatal Motions. They should be used sparingly. But when such a Motion is passed by a House of Parliament, as was the case on 3 December last year, it is incumbent on a democratic Government to take some notice of it rather than just dismiss it. I pray in aid the last time it happened in this House on 28 March 2007, almost exactly six years ago, when the Labour Government’s gambling order was defeated in this House. How did the Government respond? They responded effectively by changing their policy as a consequence of that decision. I do not ask the Government to change their policy. I just ask them not to take—
Lord McNally
I am sorry to intervene and I do not want to prolong the debate. However, as the noble Lord knows, I was intimately involved in the passing of that fatal Motion, which stopped the super-casino going to Manchester. The outcome of that Motion was that the Government did not bring back their proposal. That is exactly what has happened again.
Lord McNally
Oh yes; it is four-square. The House took a decision and the decision stood. That was the case with the decision made on legal aid.
Lord Bach
I do not think that the Minister can really get away with that. The Government changed their policy as a consequence of the House of Lords vote. On this occasion, the Government have said, “We don’t like what the House of Lords have said. Therefore, we’ll do quite the opposite of what they wanted to happen”. However, let us not retreat into history; let us talk about today.
If my amendment is agreed, the regulations presented by the noble Lord will go through, of course, and the Act will come into force on 1 April in any event. However, if the House agrees to the amendment, it will show that it has some distaste for the way in which the Government have behaved in this instance. In my view, the Government have not behaved well here and the House should, in its gentle way by a Motion of Regret, just say that.
Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013
(11 years, 9 months ago)
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Lord McNally
That the draft regulations laid before the House on 4 February be approved.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in moving that these regulations be approved, I shall respond, first, to the Motion in the name of the noble Baroness, Lady Grey-Thompson.
I am confident that the legal aid scheme under LASPO meets the access needs of disabled people. However, I understand that the introduction of the mandatory gateway continues to raise concerns in this area, and therefore I shall address them.
The Government believe that it is unnecessary for regulations to include specific reference to provision for access for disabled people in relation to the mandatory gateway. We have made a public commitment that reasonable adjustments and adaptations to ensure access to legal aid services—legal help—for vulnerable people, including disabled people, will be in place for the gateway.
The gateway is based on the existing community legal advice helpline, which already successfully uses a number of reasonable adjustments and adaptations for all clients. The gateway service will continue to operate these, and the requirement for reasonable adjustments is also specifically included in the contracts of those who will provide the service. Reasonable adjustments will include a third party being able to speak on a person’s behalf, British Sign Language via webcam, and call-back services to minimise call costs for callers.
My officials have met a number of equality organisations to discuss appropriate reasonable adjustments and further enhancements. They have also put in place a system to monitor the take-up of reasonable adjustments and adaptations, and to monitor the disability profile of gateway clients. Regarding the definition of “exempted person”, as debated and agreed during the passage of LASPO, there are three exemptions to using the gateway for accessing legal help, set out in regulation 20 of the procedure regulations. In summary, these are: a child under 18 years of age; a person who has been deprived of their liberty; or a person assessed by the gateway in the previous 12 months as qualifying for gateway work to be provided by face-to-face advice and who is seeking further advice on a linked matter. It should also be remembered that the gateway provides legal help only, not legal representation. So I do not consider that the definition is drawn too narrowly.
I am aware that others feel that a further exemption for vulnerable people would provide additional protection. I do not believe that that is necessary. The term “vulnerable people” covers a wide range of individuals with particular needs or issues. While some of those to whom the term might be applied may not be able to use the telephone or the other methods permitted to give instructions and receive advice, others will. The Government’s view is that the best way to test suitability for telephone or online advice is through an assessment of each individual’s needs and abilities, not through a blanket exemption for the extremely broad group defined as vulnerable people. The Government are confident that the gateway call operators and specialist telephone advice providers will be sufficiently experienced and trained to support vulnerable people. We plan to review the implementation and operation of the gateway in the initial three areas of law, to ensure that the exemptions, adjustments and support available properly protect those with disabilities and vulnerable people more broadly. We will publish a report of the review within two years of implementation. I hope that that meets the concerns of the noble Baroness, Lady Grey-Thompson.
I turn now to the Motion tabled by the noble and learned Baroness, Lady Scotland. At the outset I must refute the suggestion in the Motion, and in some of the comments made, that as a result of our reforms domestic violence victims will be at greater risk of injury or death. This has been suggested at various points during this debate and the passage of the Bill, and it is entirely untrue. Let me be clear: legal aid will continue to be available to help victims to obtain the full range of court protection against domestic violence in exactly the same way as now. There is no evidential requirement for legal aid for these remedies. Those who need legal aid to protect themselves will be able to get it.
The issue, therefore, that is legitimately up for discussion is whether we have made the right provisions for victims of domestic violence. In particular, it is whether we have set the right evidential criteria for someone to show that they are a victim of domestic violence so that they can qualify for legal aid for their private family law issue. I am clear that we have. We have moved a great distance in this area since the LASPO Bill first came into Parliament. We listened to the concerns of this House in particular, and the regulations before us today reflect the position that was agreed in both Houses before the Act gained Royal Assent, and in certain respects, it goes even further.
Of the forms of evidence listed in the regulations, a finding of fact is particularly important. A finding of fact made in proceedings in the UK that the applicant has been the victim of domestic violence, no matter how long ago it occurred, that gave rise to a risk of harm to the applicant, is acceptable as long as the finding was made within the 24 months before the application for legal aid was made. Our position on the evidence requirement was agreed by Parliament as reasonable during the passage of the Act and I remain of the view that it is both sensible and comprehensive. There has been a specific concern that GPs and others may charge for producing the evidence and that people may not be able to afford such charges. It is perhaps worth highlighting the fact that legal aid was never designed to deal with the costs of actually acquiring legal aid, whether this be the cost of a telephone call or evidence. I do not think it unreasonable to continue that policy here. Many of the forms of evidence, such as protective injunctions, will not attract a charge at all. We expect any charges that are applied to be modest. I cannot pretend that we have absolute control over charges—we do not. However, we have included in the regulations provisions for other health professionals to provide evidence to help mitigate against possible charges by GPs.
We have produced guidance and a template letter following discussion with the relevant professional bodies to make acquiring the evidence as simple and straightforward as possible for both applicants and those providing the evidence. We will continue to liaise with relevant bodies about the impact of our reforms to ensure that, where necessary, changes are made.
I also highlight the fact that we have now also changed the definition of domestic violence in the Act to reflect the amended across-Government definition that will come into force at the end of the month. This followed the clearly expressed view in Parliament that the definition should reflect that adopted across Government to ensure clarity of meaning. I am sure that the House welcomes this change. I would also like to reassure noble Lords that the Government will be closely monitoring the way in which the system is working from day one of the implementation and the way in which the evidence requirements are working. If concerns are raised we will take steps to address them.
I hope that that meets the concerns of the noble and learned Baroness, Lady Scotland, and others, as they have expressed unease with the Government’s approach. We are continuing to listen on these matters. I beg to move.
Civil Legal Aid (Procedure) Regulations 2012
(11 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
14:15 - Division on Baroness Grey-Thompson’s Motion. - Ayes: 163 / Noes: 148 - Motion agreed.
Baroness Grey-Thompson
That this House regrets that the Civil Legal Aid (Procedure) Regulations 2012 (SI 2012/3098) fail to deliver sufficiently wide access to legal aid services for disabled persons; and that the category of “exempted person” is defined too narrowly.
Baroness Grey-Thompson
My Lords, I spoke extensively on the telephone gateway during the passage of the legal aid Bill. I feel a sense of disappointment in tabling this regret Motion as I am left with many concerns about access and operation.
The mandatory telephone gateway will require those seeking legal aid to call a telephone operator service and then be assessed over the telephone to decide whether they can receive advice under the legal aid scheme. It is a great shame and a missed opportunity that the regulations were not open to consultation. However, I thank the Minister for his offer yesterday to visit a gateway operator and to see the system in action. I shall take him up on his kind offer. I also thank him for his willingness to meet and discuss this issue and for the opportunity to speak with his advisers, who clarified a number of points.
For many people the telephone service is welcome and can be a valuable part of the whole picture. For those in scope, those with simple cases and those who find it easy to use the phone it is hard to see any issue. However, because of the massive changes in legal aid, I still have a number of concerns about whether people will even get as far as the operator service; whether the operator service will prove competent to handle complex legal questions around scope and eligibility; and whether face-to-face services will realistically be available to those who are entitled to them.
The Legal Services Research Centre, the independent research division of the Legal Services Commission, found that telephone advice takes on average 14 minutes longer than face-to-face advice and provides a smaller proportion of tangible outcomes. In 2011 it was open to debate whether the economies offered by the lower overhead costs of telephone provision would be sufficient to offset the cost generated by higher advice times. I would like reassurance that the companies which will be undertaking these services will have the appropriate number of staff to deal with the inquiries.
The Ministry of Justice cumulative impact assessment of 21 June 2011, page 24, paragraph 1.7, stated that the overall proposals have the potential to impact a greater proportion of women, black, Asian, minority ethnic people and ill or disabled people. In my opinion, nothing has really changed.
In the three areas that have been selected for telephone gateway—special educational needs, discrimination and debt, although it is perhaps best to describe it as home repossession—the Government have picked some very challenging areas to test out. In certainly the first two groups, SEN and discrimination, cases are often extremely complex and there may be many wider issues at play as well, such as benefit appeals, which may muddy the waters. I am sure the Minister will offer his reassurance that in the case of SEN the Children and Families Bill will sort out many of the existing problems. However, in Wales the education system is different. It has its own tribunal service and so two systems will need to be understood. The cases with which I am being presented by parents show that it is not a simple matter. It is emotive, and local knowledge is essential.
In the area of discrimination, often many disabled people do not even realise that they are being discriminated against because, at a low level, it is such a regular occurrence that it is accepted, wrongly, as the norm. It might be only when other issues are being dealt with that a person could realise that they were also experiencing discrimination. With the telephone gateway this may be missed. Discrimination will not disappear, it will be just be hidden.
I know this because I experience discrimination at least every week of my life. I am talked down to, patted on the head, treated differently and refused access to goods and services that many take for granted. I am in a better position than many and possess the skills to cope with it and the ability to deal with it. Many disabled people are not.
Hate crime figures against disabled people are at their highest level in 10 years of reporting. A joint study by Her Majesty’s Inspectorate of Constabulary, the Crown Prosecution Service and the National Probation Service published last week argues that there is underreporting of offences. However, it acknowledges that there is no clear and uncomplicated definition of what constitutes disability hate crime. There is a lack of awareness and inconsistent reporting standards.
The report goes on to say that CPS lawyers display a lack of clarity in identifying and analysing offences. I know that this is slightly at a tangent but, if the CPS lawyers are struggling, how is a newly trained, non-lawyer telephone operator going to cope when there are other issues to deal with as well? It is a huge amount of pressure on those individuals operating the system on the front line.
There are also a number of idiosyncrasies in the proposed system. If someone arrives at citizens advice looking for help—which is a very sensible place to go because citizens advice will have some legal aid capacity—even though the adviser is there, the receptionist would have to direct the person to the telephone gateway. They might use the telephone at the citizens advice office but then the receptionist would have to call the CLA to make an appointment for the client with a person sitting in an office 10 feet away. Does this not seem a little odd and strange?
The Law Society provided a useful example as it applies to mortgage repossession cases. It is not uncommon for a lawyer under the duty scheme to see someone at a court and for the hearing to be adjourned for negotiations to take place between the lender and the borrower. Very often a new hearing date will be set for two to four weeks hence. At present, the adviser will take on the work as a new case under a legal aid contract, undertake those negotiations and hopefully return to court with an agreed position at the adjourned hearing. If the position is not agreed, the adviser will be there to explain the negotiations and the stumbling blocks to the district judge.
From next week, the adviser will not be permitted to do this. Instead the case must go through the mandatory telephone gateway. This will involve duplication of work as the telephone adviser will have to go through all the information that the duty lawyer already has. It is possible that the telephone adviser may sign off the case as needing face-to-face advice and refer it straight back to the duty lawyer, but this is by no means certain. The client may well have to post papers to the telephone adviser as well as dealing with legal aid means forms by post. Once those formalities have been disposed of, the telephone adviser will then have to conduct the negotiations, having lost several days. It may or may not prove possible to conclude negotiations before the adjourned hearing but it is less likely than if the duty lawyer took on the case. The client will then return to court, again, hopefully, with an agreed position. However, if the position is not agreed, the case will have to be picked up once again by a duty adviser, who will then have to duplicate the work done by the telephone adviser to find out what happened in the negotiations. I am not a lawyer, but this seems to be more complicated rather than less.
This scenario has been confirmed by the Ministry of Justice as being possible. People with complex issues could find themselves being directed to a face-to-face for one part of their problem, a phone gateway for another one, then passed to the second tier, which could then direct them back for a face-to-face—and if you want benefit advice as well, good luck to you. Can the Minister clarify that the best way for a person to find out if they are exempt from the gateway, if they do not have access to the internet or may struggle to follow the guidelines issued by some of the charities, is to call the gateway, the one thing they know they have problems with?
Yesterday, the Minister and his team provided some reassurance over the provision of British sign language interpreters or potential webcam interviews. Perhaps the use of technology could be explored to allow more face-to-face contact. It certainly would be useful to have clarity about the number of webcam interviews it is possible to conduct and how people will be informed that it is possible, especially if they do not have direct access to the internet. Perhaps the Minister will offer a reassurance that these services will genuinely be open to those who need them.
On the issue of third parties, I was disappointed that this was not covered in the regulations; however, it is in guidance. Proving the identity of a third party and whether they have an unconflicted relationship will not be easy and I have many unresolved difficulties with this area in particular. Face-to-face interviews would be able to pick up on the nuances of the relationship.
If finally, after going through all these hurdles, someone is granted a face-to-face interview, can the Minister offer reassurance that travelling distances will be reasonable; that services such as British sign language interpreters will be provided if necessary; and that the centres will be accessible. We have seen in work capability assessments that a number of disabled people have been sent to interviews where they cannot even get into the building, park within a reasonable distance or even use the toilets. I cannot imagine anything worse than beating down all these barriers to get to a face-to-face interview and then find that it is not accessible.
The monthly data that will be collected are vital to improving the system but a more in-depth analysis is essential. On closer thought, comparing it to the per capita rate of disabled people in the population is a little crude. Currently data on disability, if held, are held only if the client wishes them to be supplied and included on the form. It is very difficult to compare what is happening now to what will happen in the future.
Last year, the Royal Mail launched a report, which I worked on, showing that 4 million disabled people had never used the internet. That is a worrying figure. Even if it is dropping, it highlights a major concern that I have about how people are going to be signposted to some of these areas.
Trust is important in building up the success of this service. At a time when the welfare system is going through big changes, signposting has to be effective. Many people are worried about explaining themselves on the phone. The same group might be reluctant to send off their paperwork, regardless of the free postage. Indeed, what if they do not even have the paperwork that is required? How does the operator know that the person has understood what they are being asked to provide? I have spoken to a number of solicitors working in this area and they all say that many people do not present in a coherent manner. Measuring the length of a phone call is one way to assess the service, but would it not be easier to look someone in the face? While the previous system might not have been perfect, it was straightforward and people knew what they had to do. The rules for the new system are more complex. Operators might ask some or all of the right questions, but so much is being left to the judgment of the individual operator.
I want to talk about exceptional funding only briefly because it is very complicated. Can the Minister provide a reassurance that the operator will inform people of when they have the right to apply for exceptional funding? Equally important, will they be told that they have the right to have their information checked or to be able to speak to a supervisor if they are turned down for access to legal aid in the first phone call? The Ministry of Justice is expecting around 6,000 people to apply for exceptional funding, and I would be interested to know what analysis has been made on the current thinking behind this.
I realise that I have asked a lot of questions but, ultimately, I believe that the current definition is too narrow. I would like to ask the Minister to amend the definition of those exempt to include disabled and vulnerable people. We could be in danger of not providing people with the help they need. These are some of the most vulnerable people in society and they will not even get to the first phone call. Instead of making the system easier, we could just be pushing the costs somewhere else and making the lives of disabled people infinitely harder. I beg to move.
Baroness Scotland of Asthal
My Lords, I rise to speak to my Motion, which regrets that,
“the Civil Legal Aid (Procedure) Regulations 2012 … fail to deliver on Her Majesty’s Government’s expressed promise to provide adequate legal aid provision for victims of domestic violence; that significant numbers of victims will not be able to satisfy the evidential criteria, contrary to Her Majesty’s Government’s expressed intent, resulting in a diminution of access to justice; and that, as a result, domestic violence victims will be exposed to an increased risk of injury and death”.
I should say straightaway how much I regret the necessity for this regret Motion. I thank all those who battled so hard on all sides of the House to make the regulations and, indeed, the Act more palatable in relation to the victims of domestic violence, and I would particularly like to remember Lord Newton of Braintree. He was not with us when we debated the amendment on the Tuesday before this matter went back to the Commons. Had he been in the House, the tied vote of 231 to 231 would, I hazard to say, have gone the other way.
I accept entirely that the regulations pursuant to the Act purport to implement that which was decided during the debates, but we need to be very clear indeed that Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 is now to be the gateway through which the victims of domestic violence must pass if they wish to receive legal aid, but it is a very narrow and treacherous gate. It will exclude many victims who have hitherto benefited from the legal support and assistance necessary to free themselves and often their children from the worst excesses of domestic violence.
Lord Beecham
My Lords, I am pleased to join my noble and learned friend Lady Scotland and the noble Baroness, Lady Grey-Thompson, in expressing concern and regret at the situation which potentially confronts so many people in both the categories to which these Motions refer. The Motion of the noble Baroness, Lady Grey-Thompson, refers specifically to,
“legal aid services for disabled persons”,
and goes on to state that,
“the category of ‘exempted person’ is defined too narrowly”.
I am sure she will agree that, hugely important though the needs of disabled people are, other people without a disability as such will also potentially lose out under the new processes. I refer in particular to the concerns that she expressed about the gateway as opposed face-to-face advice. That will be a serious matter.
By sheer coincidence, looking at a news programme this morning, I saw a report of a benefit claimant—I think he was from Barnsley; it was somewhere in Yorkshire at any rate—who has been sanctioned for not applying for a job, but the basis of that was that he had not applied online. Apparently, it is necessary in that area to apply online. The claimant has never used a computer; he does not know how to use a computer; he was not, incidentally, given any advice about how to use a computer by the jobcentre; and he was sanctioned. That is a different context, but it underlines that, despite the fact that many of us are up to a point familiar with modern technology—I do not profess any particular expertise myself in this area—many other people are simply not used to it. That is particularly true of those with perhaps less of an educational background and less experience of, for example, conducting financial transactions in that way. More generally, they might be limited in their vocabulary or not speak English as a first language, as the noble Baroness pointed out, or in other ways find it either impossible or difficult to access advice online.
The noble Baroness made a valid point as well about third-party representation. It will be interesting to hear the Minister’s views on how secure and effective that is likely to be as there are clearly concerns about whether a third party can effectively represent someone remotely. The Minister rather casually dismissed the question of remoteness in our previous debate. The noble Lord shows his dissent. Well, perhaps I am being unkind to him and I withdraw that. However, he did seem rather to play down the potential problems of physical remoteness from the source of advice. Those of us who professionally or otherwise have engaged with people over the years in our various capacities—as lawyers, as people in the voluntary sector or as elected politicians—will know that face-to-face contact is very important and by no means everyone has access to that kind of remote-access technology.
There is another question about remote access that I want to put to the Minister. At the moment the system is that an applicant will make a telephone call and the person at the other end of the line will offer to call back. That seems to be an unnecessary complication. First, the call-back method is not always easy or reliable as there may well be problems in returning a call. Secondly, the initial cost will fall on the applicant. Will the Minister undertake to look at making this a freephone service rather than a system where one has to pay and then, one hopes, receive a call back?
I am concerned that serious problems in relation to the gateway and the whole area of access will be experienced over the next few months. I am sure that the Government will be monitoring this, but it would be good to know a timetable within which they will look at how the system is working and how they propose to do that, whether nationally or on a regional basis.
In relation to my noble and learned friend’s important Motion on domestic violence, I begin by referring to an interesting observation made by the president of the Family Division, Sir James Munby, giving evidence to a Public Bill Committee in the Commons on 5 March. Addressing the issues of legal aid in family law, he said:
“Coming back to the specific question that we are concerned with today, everybody who is involved in the family justice system is necessarily very concerned about what will happen in four weeks’ time, when legal aid effectively withdraws from private law proceedings. We are, I am afraid, unprepared for that. When I say ‘we’, I am not talking about the judges; I am talking about the entire family justice system. We are prepared for the changes to public law that are being phased in over the next 12 months, but we are desperately unprepared for what is going to hit us in four weeks’ time”.—[Official Report, Commons, Children and Families Bill Committee, 5/3/13; col. 31.]
That is a remarkable statement by the president of the Family Division, and it would be interesting to know what response the Government make to it.
It seems that, potentially, chaos will strike in this very important and sensitive area of law, not in four weeks’ time but next week. Judging by the experience of some other government changes to our legal system—for example, the issuing of proceedings out of a single county court, which happened last year—we can expect considerable difficulties. That has been a most unhappy episode, which is still not totally resolved. Of course, this now becomes an area not simply of ordinary court proceedings, but very sensitive, difficult and often urgent matters that affect people’s lives very closely—the lives of vulnerable people, in particular women, and of course children. I therefore hope that the Government will pay some attention to the very important strictures and concerns of the president of the Family Division, Sir James Munby.
There are a couple of other issues on which it would be interesting to hear the Government’s present views. Reference was made by the Minister to the cost of obtaining evidence from GPs. It is thought that this might amount to some £50 or £60. The Government may well be looking at alternative forms of evidence that might be suitable, but as I said, this process starts in a week’s time. It would be interesting to learn how far the Government have got in producing a suitable procedure for people to follow. This is a significant issue because almost by definition many of those who may want to seek legal advice and take legal proceedings —now without the benefit of legal aid unless they can prove in the context of domestic violence that they are exempt—will find it very difficult to find £50 or £60 to pay their GP. I understand that the Government are in discussion about this with the BMA, which is apparently unhappy, as a matter of principle, about the expectation that family doctors, and perhaps other doctors, should be producing reports at all for this purpose, while the Royal College of General Practitioners has taken a more constructive attitude. Can the Minister update us on where we are in that context? I can understand the situation where a GP is perhaps a family doctor to both parties and therefore might be in a position of some conflict, but in general it ought to be almost axiomatic that a doctor would be prepared to give evidence—no doubt brief evidence—which might assist a woman, or man for that matter, who is claiming that he or she has suffered domestic violence.
The other aspect is that the whole rationale of the Government’s approach to family law is that mediation is a better answer; it is less formal and less expensive. I have said before, and I repeat, that in my experience as a practising solicitor who did some family law work, it is all very well to talk about mediation where there is a rough equilibrium in the position of the parties in terms of their psychological strength or financial resources. It is rather different in many cases where one party is so much stronger than the other. Therefore, mediation is not necessarily the best or only way. In any case, it has always been available. The other aspect is that it would appear that only 5% of family law cases are contested. In other words, matters are being resolved without ending up in court. The support of qualified legal advisers is essential to secure those outcomes in general in terms of family law. But in particular it is important that people should be adequately represented where domestic violence is part of the scene. As my noble and learned friend pointed out, the conditions under which such victims would be able to be categorised as exempt and obtain legal advice are, on the face of it, certainly too narrow. At the very least I hope that the Government will undertake to review how things are going, sooner rather than later, because, as my noble and learned friend pointed out, we are talking potentially not only about serious injury but about death—about people, mostly women, being killed as a result of domestic violence.
Obviously the Government do not want that to happen. Of course they do not. However, there is a danger that it may happen if the Government do not respond quickly and effectively to any issues that arise in regard to obtaining access to proper advice and representation in these highly sensitive areas. In those circumstances, if the noble Baroness and my noble and learned friend intend to test the opinion of the House, from the opposition Front Bench I will certainly be calling on colleagues to support them.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, when the noble and learned Baroness, Lady Scotland, sat down, having made her usual very powerful indictment, there was a growl of approval because across the House there is an abhorrence of domestic violence and a desire to help the vulnerable, particularly the disabled. However, I ask the House not to take that sympathy into an assumption that all this is being put at risk by a callous and uncaring Government. As I pointed out before, the legal aid bill will still be running at something like £1.7 billion when all this is over, and criminal legal aid is now at just over £1 billion. However, I will not start quibbling over figures with the noble Lord, Lord Bach, as he demonstrated his command of figures earlier in his speech.
I contest, and worry about the impression that will be given because of strong campaigning, that legal aid is somehow removed from these areas. I will try to deal with the points that were made by the noble and learned Baroness Lady Scotland and the noble Baroness, Lady Grey-Thompson. I will also address the points made by the noble Lord, Lord Beecham, which were made with his usual quiet courtesy. The point that I made about remoteness, which is a cold, hostile kind of word, is that we underestimate what new technologies can do to help with access to justice. That is the point I was making. On the point he made about mediation, I certainly am not overclaiming for it. Mediation is certainly not a cure-all. However, I thought that he threw in one very interesting statistic: only 5% of family law cases are contested. That is worth keeping in mind.
On the points made by the new president of the Family Division, I have been in this job long enough to give due deference to the separation of powers and the opinions of the judiciary. Of course, he is right to be very concerned, but I am not sure that the term “desperately unprepared” is fair. I know the amount of effort that has gone in, in my department, to make sure that these changes can be introduced as effectively as possible and that the help we want to give is given to the people who need it.
I will deal first with the points made by the noble and learned Baroness, Lady Scotland. Perhaps I should clarify, for the benefit of readers of Hansard, that perhaps my opening remarks should not have been made and we should have gone straight to the noble Baroness, Lady Grey-Thompson. So my reply came at the beginning of the debate. My plea is that I have been in the House for only 15 years and am still getting used to some of its more arcane procedures. Although my reply was all-encompassing, it probably did not address some of the specific issues that were addressed by the noble Baroness, and by the noble and learned Baroness. Therefore, I will do that now.
Because the noble and learned Baroness, Lady Scotland, deploys such ferocious talents in making a case against what the Government are doing, I worry that she will lead vulnerable women affected by domestic violence into the fear that somehow legal aid will not be available. I am sure that that is not her intention, but it could happen. I will point out that in the regulations that have been published there are 10 separate, distinct qualifications for legal aid. I will not trouble the House by reading them all. They are very precise, and it is simply not true to say that women who are subject to domestic violence will not be able to get legal aid. They will be covered by a wide range of qualifications for entry through the gateway. We should let the system start.
In answer to the point made by the noble Lord, Lord Beecham, and others, we will monitor the impact from day one.
Baroness Corston
My Lords, is the Minister suggesting that my noble and learned friend Lady Scotland is either scaremongering or not telling the truth?
Lord McNally
The noble Baroness is putting words into my mouth. When you start talking about death and saying that people will die because of this, it raises the temperature. The noble and learned Baroness is entitled to make her point—and I certainly would not like her to prosecute me. However, there is a case for the defence and I will try to make it. Part of the case is that the regulations we have set down have 10 specific areas that will qualify women for help in domestic violence cases.
In making her case, some of the figures that the noble and learned Baroness gave went beyond the issue of providing legal aid in family law cases to the much wider problem, which we all acknowledge, of domestic violence and violence against women in our society. It is unfair to use the figures and statistics for domestic violence in general to imply that in the specific and narrow area of legal aid in family law cases there is not a wide range of provisions. I refer the House to the Civil Legal Aid (Procedure) Regulations 2012. For the benefit of the House, perhaps I can write to the noble and learned Baroness and put a copy in the Library, setting out the various qualifications for access to legal aid in domestic violence cases that there will be under our reforms.
Both the noble and learned Baroness, Lady Scotland, and the noble Lord, Lord Beecham, raised the question of a possible £60 charge. We have been in negotiation with the professional organisations. As was rightly said, the BMA has raised questions. However, we are asking applicants to provide a simple, standard template letter from a doctor or a nurse—not a medical report—and we see no reason why the charge for a letter from a GP should be more than a simple administration fee. We have arranged for communications to go out from the Royal College of General Practitioners, emphasising that GPs should respond as rapidly as they can and be as sensitive as possible to the needs of applicants. I invite the BMA to give similar guidance as part of its contribution to dealing with these issues.
The case cited by the noble and learned Baroness, Lady Scotland, was certainly harrowing. It is impossible for me at the Dispatch Box to deal with this kind of case. From what she described, I would be surprised if, even under our reforms, there would not be access to legal aid, including a protective injunction that could be applied for in the circumstances that she described. On the question of evidence requirements, we will keep them under review and would welcome evidence of how they are operating.
The noble and learned Baroness raised the issue of simultaneous orders, and whether one could apply for separate orders at the same time. It is possible to combine such proceedings. However, the funding may not be available for the entirety of the proceedings. Funding is available for non-molestation order applications, but in order to receive funding for a matter falling within paragraphs 12 or 13 of Part 1 of Schedule 1 to the Act, the applicant would need domestic violence evidence. I gather from the briefing that I asked for that the noble and learned Baroness may be right: there may have to be two trips. Certainly we will look at whether that will add costs and time to the process.
Are we putting training in place? The Department of Health has worked with the Royal College of GPs to develop an innovative e-learning course on violence against women and children. The course was launched in Liverpool in October 2011. It consists of four modules that aim to help clinicians provide an appropriate healthcare response to domestic violence. There is a similar training for police to spot evidence and act on it.
On the point about cross-examination, judges have certain powers to address the situation, including special measures if necessary: for example, by intervening to prevent inappropriate questioning or by having questions relayed to the witness rather than put directly. The noble and learned Baroness asked about access, and whether there would be an identifiable person co-ordinating complaints of domestic violence in each area. The answer is yes. The guidance provides for links to be provided to the relevant multiagency risk assessment conference, which will be chaired by someone who will take direct responsibility in that area.
The noble and learned Baroness, Lady Scotland, mentioned the problem of women’s refuges being full. It is right that, at the moment, that cannot be used as evidence, but I should like to take that back as part of the early review. She also made the specific request about equivalence in cross-undertakings. There is no provision that cross-undertakings must be of equivalence. However, the cross-undertaking must be given under Section 46 of the Family Law Act 1996. Where it is a general form of cross-undertaking, which is not made under Section 46, but, for example, to aid the smooth running of proceedings, it would not count as a cross-undertaking, but there would have to be equivalence in the cross-undertaking. I hope that that makes it clear.
Lord Beecham
My suggestion was that a freephone system might be adopted. Have the Government considered that; if so, will they consider it again?
Lord McNally
The noble Lord is quite right: the number will not be a freephone number. I will inquire whether that was considered. The point is that it is minimalist. Just to put it on the record, you can use the 0845 3454345 number and immediately ask for a call-back, so it is not that big a hurdle.
I have taken a lot of the time of the House. I have tried to answer some important questions. I hope that, in doing so, I have conveyed that we are dealing with issues of shared concern about protecting the most vulnerable in our society.
Throughout both these debates today, we were faced with making tough financial decisions, but I believe we have made them in a way that targets resources at the most vulnerable in the way that would be most effective. I would regret it if the Motions were pressed. I will note the opinion of the House, but I go back to the growl of approval that greeted the noble and learned Baroness, Lady Scotland. It is an approval that I share: we have got to make sure that in our approach to legal aid and the broader issues that encompass both, our aim must be to give priority to attacks on the broader causes of domestic violence and to ensure that there is legal aid available in family law. I believe that if noble Lords look at the way that women will qualify for legal aid, it will be very difficult to say that those provisions are not there.
On aid for issues of disability, I hope I have clarified some of the concerns of the noble Baroness, Lady Grey-Thompson. I hope she will go to Hinckley and see the gateway in progress. I can assure all sides of the House that as far as I am concerned, monitoring will start on day one to see what the impact of these changes will be. In that respect, I hope the noble Baroness and the noble and learned Baroness will not press their Motions.
Baroness Grey-Thompson
My Lords, I thank the Minister for his introduction and his response, which were, perhaps, wrapped up together. I thank the organisations that provided me with some amazing case studies and the individuals who have been in touch and explained the immense difficulties that they are currently facing.
In thinking about bringing this Regret Motion, I was fortunate to speak to my noble friend Lady Campbell, who is in her place, who shared some of her experiences of the Disability Rights Commission. It operates a telephone advice line and has perhaps some of the most highly trained people in disability and equity, and they experience difficulties in understanding people with speech difficulties, perhaps because they have cerebral palsy, or with multiple impairments, who speak in a different way. She was able to outline some of their difficulties in being able to clarify their issues. A number of solicitors I spoke to said that people do not present their problems in an easy-to-understand manner. Mind, the charity, which has been part of this discussion, said that it is exceptionally worried that many people with fluctuating capacity could be excluded. A number of organisations have communicated their fear about people being able to access the telephone gateway.
I am a huge fan of technology. It is amazing, it is great if you can afford it, and it is even better if you know how to use it. Young people seem to be born with an ability to make it work, but that is not the case for perhaps many of us. If I look around your Lordships’ Chamber, we have, if I can say it, some of the most privileged people and the brightest, and those with access to the best education, knowledge and experience, but I wonder how many of us use technology. Think about it if you are a disabled person, if you are alone, isolated, going through great difficulty and with immense problems that you are trying to explain to someone else. We have a very long road to enable disabled people and old people to access some of this.
I am very passionate about special educational needs because I went through it. I fought to get into mainstream school before there was a system in place. My father used a single line in the report by the noble Baroness, Lady Warnock. He threatened to sue the Secretary of State for Wales over my right to be educated in a mainstream environment. He was educated and financially privileged. I look round at many of the people who will be fighting for the same thing for their children, and picking up a phone and trying to explain their children’s complex needs does not make any sense to me whatever. I know the noble Lord, Lord Freud, and the Minister have both said, in relation to disabled people, that the Government want to help and support those with the greatest need. I do not believe that that is the case.
The Minister also talked about reasonable adjustments. That is all very well, but it does not measure those who do not or cannot make the first phone call. The fact that the phone number is not free will make it exceptionally difficult for a number of people who do not have credit on their phones and who just cannot even contemplate picking up the phone. I am afraid that I am completely unconvinced by the idea of the third party and the Minister’s faith in that working. I find trying to explain complex needs to somebody who will then explain them to somebody on the phone very frustrating and disappointing.
I still believe that the exemption group is too narrow and that disabled people will increasingly be hidden away. In 2013, disabled people will start becoming invisible as they did in the 1960s and the 1970s when I was young. That is a cost I do not think is worth paying. I wish to test the opinion of the House.
Civil Legal Aid (Procedure) Regulations 2012
14:31 - Division on Baroness Scotland of Asthal’s Motion. - Ayes: 156 / Noes: 140 - Motion agreed.
Baroness Scotland of Asthal
That this House regrets that the Civil Legal Aid (Procedure) Regulations 2012 (SI 2012/3098) fail to deliver on Her Majesty’s Government’s expressed promise to provide adequate legal aid provision for victims of domestic violence; that significant numbers of victims will not be able to satisfy the evidential criteria, contrary to Her Majesty’s Government’s expressed intent, resulting in a diminution of access to justice; and that, as a result, domestic violence victims will be exposed to an increased risk of injury and death.
Baroness Scotland of Asthal
My Lords, first, I thank the noble Lord, Lord McNally, for the concessions that he has most generously made in agreeing to look at a number of the issues that have been brought to his attention, and to review these regulations and their operation—and I quote him—“from day one”. I also thank him for the enormous compliment he pays me when he refers to my “ferocious talent” as an advocate and the “growl of approval” that follows my every utterance in this House. However, if there is limited approval for the few words that I utter from time to time, I hope it is because the House finds the evidence upon which I base my contentions sound and meritorious and not because there are inherent flaws. Every advocate, no matter how skilful, can work only with the material they are given. One cannot make a commanding case built on straw.
It is right that we look at the evidence we have referred to. I ask the noble Lord to look again at the comment made by the president of the Family Division that the family courts are “desperately unprepared” for the consequences of these regulations. The reason for this is that for many years the family courts have relied on the skill and assistance of the legal representatives who appear before them, whose job in family as opposed to other work is to work collaboratively to try to bring a resolution to some very difficult family problems. That is why only 5% of the cases that come before the courts are contested; all the other cases are properly, skilfully and painfully mediated in a collaborative and responsive way. The fact that legal aid is to be withdrawn from family cases is why Lord Justice Munby is so concerned. He echoes what is felt by all those who are privileged to work in this area.
I also specifically thank the noble Lord for his acknowledgement that the cost in relation to these proceedings may be increased if they are not held together. I particularly want to thank him for that. But if the Government believe that these regulations will save money, I, for one, believe that they will be found to be mistaken. The cost in terms of lives will be great, but so will the cost to the legal justice system. I am being told by magistrates that if perpetrators are going to be able to cross-examine their victims in court, the special procedures that we currently have will be inadequate to protect them. Just yesterday, a magistrate in Kent told me that that day they had a case involving domestic violence in which the woman was reluctant to be cross-examined by the perpetrator. They are having difficulties now. Therefore, although I understand the Government’s position, I still bitterly regret it. On that basis, I ask to test the opinion of the House.