Mesothelioma Bill [HL]

Baroness Butler-Sloss Excerpts

Wednesday 5th June 2013 Grand Committee

[Lord Walton of Detchant]

My Lords, it is a pleasure to follow the noble Lord, Lord Alton, particularly in the light of the lucid and forceful way in which he has proposed this amendment. I have added my name to the amendment because I believe very strongly that, as he has pointed out, the amount of funding in this country that has been devoted to research into mesothelioma, its causation, its development and its treatment has been miniscule. I join him in paying tribute to the contribution over the years made by the voluntary organisation, the British Lung Foundation, in examining ways in which research into this wretched disease can be conducted. However, the Government’s contribution to this research—for instance, through the Medical Research Council, of which I was once a member—has been minimal. Therefore, I am very much in favour of the principle underlying this amendment.

I used to teach my medical students that while there are plenty of incurable diseases in medicine, there are none that may not have their effects modified by pharmacological, physical or psychological means. Mesothelioma is almost an exception to that rule, although it is clear that in the early stages of the disease certain physical mechanisms can alleviate some of its worst effects. The tragedy of mesothelioma is that the deposits of this cancerous process are laid down in the pleural cavity, between the surface of the lung and the internal surface of the chest wall. Gradually, as those deposits increase, the actual flexibility of the movement of the chest wall—in the muscular contractions which are responsible for our involuntary taking in and expiring of air—is slowly but progressively lessened, so that in the end the patient is almost subject to the feeling of having a straitjacket around their chest that prevents them from respiring. Eventually, it is fatal. Happily, there are mechanisms with drugs, sedatives and many other things that can help to ease the terminal phases. Nevertheless, the end result is tragic and appalling for anyone who has witnessed it.

A colleague of mine who was a consultant neurologist developed mesothelioma—the result, it appears, of being as a youth a keen club cricketer in villages in County Durham. It turned out that the changing room in which he regularly changed before appearing on the cricket field was lined with asbestos. That was eventually thought to have been the source from which he acquired this disease. It is a tragic condition and it deserves close and careful attention.

I also used to teach my medical students that today’s discovery in basic medical science brings tomorrow’s practical development in patient care. As yet, there has been no such basic discovery in the science underlying the causation and development of mesothelioma and, as yet, no drug has been discovered that is capable of reducing that progressive, cancerous deposit and the progressive process of strangulation. That is not to say that there have not been some limited discoveries that have benefited individual patients, but much more is needed.

I know what the Minister will say: that an amendment such as this has no place in a Bill or a statutory instrument because it is, in a sense, permissive. I can understand fully the view that he is going to take in that regard. However, I do not believe that it is beyond the wit of man, and certainly not beyond the wit of the Minister, to achieve some kind of Machiavellian political intervention or manipulation enabling the principles underlying this amendment to be fulfilled in law.

Although I have given my name to Amendment 31, I must say that I disagree with its last phrase. It says that,

“the funds raised through this charge shall be remitted to a competent research institution to fund research to find new treatments for mesothelioma”.

It should say “a competent research-granting organisation”. What could be better than the Government’s own research arm, the National Institute for Health Research, which is chaired by the Government’s Chief Medical Officer, Sally Davies? It could be the perfect example. I hope very much that the Government will find the means to fulfil the principle underlying this crucial amendment in managing to persuade these insurance companies— perhaps “persuasion” is not exactly the right word; it might need something a bit firmer to get the money out of those bodies—to enable the National Institute for Health Research to fund crucial research on this devastating disease. It deserves everything that we can put into it and a great more than we are already doing.

[Baroness Butler-Sloss]

My Lords, I, too, have put my name to Amendment 31. It is with some hesitation that I rise to speak after the two formidable speeches that we have just heard. Having put my name to the amendment, though, I want to say something to support it. It is indeed a modest amendment but it has enormous potential advantages for important research seeking new treatment and a possible cure. We have already heard from the noble Lord, Lord Walton of Detchant, what he thinks could be done and why it needs to be done. Of course, I defer to him.

As one of three judges in the Court of Appeal, I heard a number of these cases, and each story was tragic. Although I was a judge for 35 years, these stories have remained with me. We know that currently there is no cure. We know that currently the treatment is poor compared with that for other forms of cancer. It is crucial and urgent that we have proper research. As the noble Lord, Lord Alton of Liverpool, has said, it is a scandal that this is so poorly supported, when it is a killer but other forms of cancer can be treated and people can live for a long time. Sufferers die two years after the diagnosis—it is like motor neurone disease, and even that, as I understand it, gets more research funding than this does. It is extraordinary that the people who suffer from it are not properly regarded by the state or indeed by insurers. It is high time that the lack of financial support should be remedied with this Bill, at least to some extent.

I very much support the principle of the amendment. Like the noble Lord, Lord Walton of Detchant, I do not entirely support the wording. I do not think that matters because we are not going to vote on it today, and if the Government can come up with better wording and be supportive, that is exactly as it should be. The amount of money that would be raised under the present scheme is a modest £1.5 million. It would be much better if the Government felt able to match it; that would be valuable.

I was entertained by the reference by the noble Lord, Lord Alton of Liverpool, to the Gambling Act, which shows a very useful precedent. It is just possible that if some law were passed in this Bill, we could then to go the insurers on a voluntary basis and say, “If you don’t, it will be backed up by primary legislation”. So we want it there as a spur. If that can be done in gambling, I really do not see why it cannot be done in mesothelioma.

[Lord Wigley]

My Lords, I, too, have added my name to Amendment 31. I thank the noble Lord, Lord Alton, for the diligent commitment that he has shown to these issues, which I know is appreciated by all concerned. He deserves to succeed with this amendment. Following on from what the noble and learned Baroness said a moment ago with regard to the potential leverage that an amendment such as this could carry, it reminded me of the term used in chess that the threat is always more dangerous than the execution. Having this in the armoury, I suspect, would be very useful indeed.

Under the proposed new clause, the scheme administrators would be permitted to charge an additional annual administration fee of some £10,000 from each insurer. One can argue, certainly, that there could be a sliding scale there. That is detail; it is the principle that we are after here. The clause sets out that all funds raised from this fee would be invested into research for treatments for this awful disease. Listening to the noble Lord, Lord Walton, speak from his own experience of the medical world, we see the pressing need for these funds to be made available. They should be available already. They should be coming from the normal course of research funding. But as they are not, we need to do something and there is an opportunity to do so here.

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[Baroness Butler-Sloss]

I hope that the Minister will forgive me for interrupting him again but is he saying that the department cannot raise money for itself, or that the department cannot approve of a levy that is being taken from the insurers? Is the Bill not broader than the department? Can Parliament not put it into the Bill even if the DWP says that it is not part of its remit? The two points are, first, whether you can support a levy even if you cannot raise the money yourselves, and, secondly, why can the Bill not go forward with it while we discuss whether another government department will be helpful? At the end of the day, if a government department is going to say that it will not help to raise money for mesothelioma, what on earth is the public going to think about the coalition?

[Baroness Masham of Ilton]

Is it not about time that we changed the policy, if it is policy, because surely now one wants to work together? Health and social care are trying to work together, so why not work together with pensions and health?

Human Trafficking

Baroness Butler-Sloss Excerpts

Thursday 21st March 2013 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, human trafficking of adults and, especially, children is one of the vilest crimes. I congratulate my noble friend on her tireless efforts in this area. I most definitely welcome the steps being taken by Eurostar to improve prevention via St Pancras and will of course ensure that the UK Border Agency and the UK Border Force continue to work closely with all parties trying to prevent this crime. Indeed, UKBA is committed to developing its practices in support of victims. I can announce to the House today that from 1 April the UKBA team that handles trafficking decisions will be exclusively dedicated to that task and will not combine its work in this area with any other.

[Baroness Butler-Sloss]

My Lords, I declare an interest as co-chairman of the parliamentary group against human trafficking. I am delighted to hear what the Minister has just said about UKBA and its concentration. Is she aware that many children do not go through the NRM but those who do go through are accommodated by local authorities, which do not have parental responsibility for those children under the Children Act 1989. Does she accept that it is very unsatisfactory that these children have no one with parental responsibility in this country other than, potentially, the traffickers themselves?

[Baroness Stowell of Beeston]

The noble and learned Baroness, Lady Butler-Sloss, highlights an important point, which is that we need to ensure that victims of trafficking are referred into what we call the NRM, the national referral mechanism, because it is through that mechanism that they then receive the support and care that they need. She might like to know—I am sure she is already aware of this—that, as part of the Government’s ongoing efforts to improve the way in which we support the victims of this terrible crime, we have commissioned the Refugee Council and the Children’s Society to review our arrangements in this area so we can ensure that best practice in certain local authorities is repeated in all areas. Their report is due to reach us some time later this year.

Children: Child Protection

Baroness Butler-Sloss Excerpts

Thursday 22nd November 2012 Lords Chamber

[Baroness Stowell of Beeston]

I am grateful for the opportunity to make it absolutely clear that the report published yesterday by the Office of the Children’s Commissioner is very important. The Government will consider it carefully and seriously, and will respond later this year. As to the point made by my noble friend about inspections, as the House may or may not be aware, Ofsted carries out inspections of local authorities as regards their provision for child protection. The noble Baroness makes an important point; namely, that inspections have to be rigorous. Certainly, in recent times, the criteria and the way in which Ofsted has carried out these inspections has been tightened. We no longer accept a level of standard that clearly was not adequate to tackle this issue.

[Baroness Butler-Sloss]

I should like to pick up on the point made by my noble friend Lady Howe. What are the Government going to do about what appears to be the culture of the police, certainly in Rotherham and Rochdale, where girls under the age of 16 were treated as bad girls, rather than appreciating that criminal offences were being committed by these men? The girls, being under 16, were victims and were not just acting as prostitutes. It is a very serious matter that the police were not recognising criminal offences.

[Baroness Stowell of Beeston]

That is absolutely right. Forgive me if I did not respond in a way that properly acknowledged that point. If there was any ambiguity in my response, it was because, as I was trying to make clear in my response to another question, there is both child abuse and child sexual exploitation. Child sexual exploitation, to which the noble and learned Baroness referred, until fairly recently has not been properly tackled for all the reasons that she gave. In light of the review and the action plan that the Government produced just over a year ago, much more is going on in the police services to make sure that the police are properly aware and take the action that they must to tackle this serious crime.

Welfare Reform Bill

Baroness Butler-Sloss Excerpts

Tuesday 14th February 2012 Lords Chamber

[Lord Kirkwood of Kirkhope]

My Lords, I would like to intervene briefly in this debate. I think that a household benefit cap is a wholly reprehensible policy device. I am absolutely and implacably opposed to it. However, I know when I am licked and I think that the Government have come a huge way in easing the path of the 67,000 families, although I still have fear and concerns for them. My purpose in intervening is to ask my noble friend to assist me by reassuring me that, with the extra spending envelope, he now has the capability—working closely with local authorities and Jobcentre Plus—to track the destinations of these families over the next few years. Colleagues who have been following debates on social security internationally know that, in America, the changes made in 1996 by President Clinton meant that people fell off the lists in droves and no one could find out where they went. The social security system then spent years trying to pick them up.

The fact is that 67,000 is 1 per cent of the case load; it is not a big number of people. I am reasonably assured now that, with the finances available to local authorities and Jobcentre Plus, it should be possible to get a report. When we get this important report—and I, too, agree that that is an important concession—the House will be able to be confident that none of these families has disappeared. I do not want any of these families to be “disappeared”. I hope that my noble friend can give me that assurance.

I do not want this benefit cap to be anything like an accepted part of the landscape in future. I think that it is a sticking plaster and that an entitlement override is wholly wrong. However, I have enough confidence in my noble friend to know that if we get universal credit up and established and running well, and if he switches his attention—as I hope he will—to housing benefit in the context of a proper housing policy, and I would support him in doing that, we can trade our way out of needing a benefit cap. That is the way forward. I accept, however, that in the short term we are stuck with this. I hate it and will be pursuing it in regulations as aggressively as I can. However, as I said at the beginning, I know when I am licked and I hope that the Government will get on and do this properly.

I hope that the noble Lord, Lord McKenzie, will not press this idea of having an independent body on the benefit cap. I want nothing to do with independent bodies or anything else of any kind that has to do with the household benefit cap. Therefore, if he presses his amendment, he will find me—unusually, perhaps, in this case—in the opposite Lobby.

[Baroness Butler-Sloss]

My Lords, I would like briefly to take up a point made by the right reverend Prelate the Bishop of Ripon and Leeds in relation to kinship carers. I spoke previously on this and I remember that the Minister was sympathetic. I would be very glad to get some reassurance as to where his sympathy lies and how he proposes to endorse it.

[Lord Newton of Braintree]

My Lords, I am intervening only briefly, partly because I do not want to attack the right reverend Prelate, who seemed to be in a much less militant mood than he was on the previous occasion. I will, therefore, not repeat the remarks that I made then, when I made the point that what he was asking for was an increase in the benefit cap. I refrained from saying at that time—and the House ought to bear this in mind when thinking about all of this—that child benefit for the first child is now worth about £1,000 a year tax-free. For every other child it is a bit less than that. Bearing in mind that it is tax-free and that we are talking about a benefit cap of £26,000 net, which is said to equate to £36,000 gross, if you put child benefit on top you are looking at a position in which you would have to be a higher-rate taxpayer in order to hit the benefit cap, in terms of what you would have to earn. People ought to bear that in mind.

My main point is to express some reservations about the amendments tabled by the noble Lord, Lord McKenzie. What do we mean by “local area”? He really needs to answer that. My noble friend Lord Fowler and I—and I have already referred to some of our travails over housing benefit in 1986 to 1988—looked at this question of localisation and regionalisation. It is intractable, because housing costs do not vary on a regional basis or even on a district or city or borough basis; they vary on a street-by-street basis. Is that what the noble Lord has in mind? If so, it would become a complete administrative nightmare. He needs to think very carefully before pressing this particular line, whatever its intellectual attractions.

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I should like to put on record how much I have appreciated the discussions I have had with the Minister on this issue and how much I have appreciated the general progress of the Welfare Reform Bill. We have been very well served by the dialogue that we had. We have also had the promise of a review in 30 months’ time of how the system is operating. I say to the Minister, with an emphasis on the regulations, which will have to be approved by both Houses, so we are not up against the privilege issue again—this is a free-standing chance to get it right—that I do not want us just to look at this in 30 months’ time and see whether we have it right; I want us to use the process and the time that we now have for intensive discussions and consultations in the run-up to the regulations, in the hope that we can produce, as we have done in other cases, a broad consensus or agreement on how to balance the interests of the various parties. That kind of approach, taken outside the Chamber and at slightly more leisure, will be the best way to serve the interests of innocent parties and the paramount interests of children. Frankly, that is where most of us involved with the amendment started—and it is the clear view of the House. In that spirit, I beg to move.

[Baroness Butler-Sloss]

My Lords, I put my name to Motion H2—which is linked to Motion H1—and will speak to it now. The amendment was drafted by the noble and learned Lord, Lord Mackay of Clashfern, who is, as I am sure noble Lords will know, away on a well deserved holiday. He is very sad that he cannot be here today; I am literally standing in for him.

The noble Lord, Lord Boswell, has reminded us of 25 January on Report when there was overwhelming support for the amendment put forward by the noble and learned Lord, Lord Mackay of Clashfern, demonstrated by the very large vote in this House. Of course, that has been reversed by the Commons. This amendment is, quite properly, not a replica of the earlier one. The earlier amendment referred to the payment of fees to the CSA by a single parent claiming maintenance from the other parent for children living generally with her rather than with him. I welcome the Government listening about the cost of the initial charge, and the very substantial reduction of the charge to £20. They are very much to be congratulated on that.

This amendment has a much more limited function and deals with a much more limited situation in which all efforts have been made to obtain payments by the other parent and it is necessary for the single parent to use the CSA statutory mechanism. If money is received from the other parent by that method, there is a collection charge, which provides a deduction to be made from the maintenance received. As the noble Lord, Lord Boswell, has already said, that seems to be a levy of between 7 per cent and 12 per cent of the money collected from the parent with care of the children.

I take on board the points made by the Minister, and what Frank Field said, as well as the help given to single parents by state aid and the fact that a review of this charging regime is promised. However, I make no apology for repeating the quotation made by the noble Lord, Boswell, of the noble and learned Lord, Lord Mackay, who said:

“I do not believe that it is fair to require them to pay charges when they are not responsible for creating the need for the use of the service”.—[Official Report, 25/1/12; col. 1090.]

I would like very briefly to make a few more points. The money is to help in the upkeep of the children and not for the parent. Many highly regarded charities support this limited amendment—time does not permit me to say which they are but there is a considerable number of them. We are looking at parents in the poorest section of society who may receive a very small amount of money from the other parent and upon whom the major financial burden of the care of children rests.

I understand that—unlike the Government’s view—most cases are not very expensive, costing £350 a case if managed through the main computer system and £600 a case if managed off the main computer system. Of course, there are cases that cost significantly more, and sums of up to £25,000 have been mentioned, but I am informed that they are the exception, not the rule. According to the Government’s own impact assessment, the future average cost of processing an application is expected to be about £220.

This amendment, if accepted, would have limited financial impact on the CSA for the majority of applications but would make a significant difference to this deserving group of single parents. I urge the Minister to think again.

[Lord Newton of Braintree]

My Lords, I am intervening—as usual, you might think—for two reasons. First, on the previous occasion I sat down there and declared that I was standing shoulder to shoulder with my noble and learned friend Lord Mackay of Clashfern, which indeed I was, and I was therefore part of the vote that has caused us to be having this debate this evening. I will say something about that in a moment. Secondly, when this got to the Commons, a person who I do not know, described as Mrs McGuire, who I take from the context is a Labour Member of Parliament, read out the list of Conservative former Cabinet Ministers who had voted, including my name, and went on to say:

“I do not think that any of these people were fully paid up members of the liberal tendency”.—[Official Report, Commons, 1/2/12; col. 926.]

If it were not for parliamentary privilege, I would sue her! I just wanted to get that off my chest.

Welfare Reform Bill

Baroness Butler-Sloss Excerpts

Wednesday 25th January 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, if anyone wondered why I moved from my earlier position, they would have guessed that it was to stand shoulder to shoulder with my noble and learned friend Lord Mackay. He and I were in cahoots over the attempts to tackle this problem 20 years ago. We were in cahoots with what was said in Committee on this matter, and I have made it clear that I intend to remain in cahoots with him on this amendment.

I have not been at the meetings, but I have had a number of conversations with Ministers and I give them credit for being willing to talk to me as well. I think that my noble friend in front of me will acknowledge that I have consistently said that if they could satisfy my noble and learned friend, I would not seek to push it, but if they could not satisfy him, I would stick with him. Essentially, I share his views. I do not think that it is fair, right or productive. The letter that presumably went to everybody in the House was mostly convincing. I have no problem with the case for reform or the desire to cut the costs. I have no problem with the desire to encourage people to collaborate voluntarily. What I have a problem with is that I do not think that those general points connect to the conclusion that my noble and learned friend’s amendment is wrong. I shall vote for it if he decides to press it, following what has been said.

It is a simple position. I will not rehearse his arguments or seek to elaborate them. I shall make only one other point which relates to the 13-month review. I am in favour of a review, but the case for reviewing it after experience is stronger on the basis put by my noble and learned friend than on the basis put by my noble friend the Minister. If there is evidence that it is discouraging sensible, voluntary arrangements in the interests of children, we can look at it again then. I do not believe that it will—and this would need to be shown before we changed from the basic, fundamental proposition that it is not right, fair or just for a parent with care to have money deducted on these grounds from the money paid for her children.

[Baroness Butler-Sloss]

My Lords, in the family courts the welfare of children is paramount. It is particularly important to remember that in relation to the amendment that the noble and learned Lord moved, which I very strongly support. I have absolute, practical experience as a family barrister and judge, from long before the CSA came into being and took that work from judges. I have vivid recollections of a certain group of parents, principally fathers but occasionally mothers, who absolutely would not pay. There was no point in even asking them—although I understand why the Minister thinks that they should be asked. They would do everything in their power not to pay. The only way they can be got at now is through the commission. It can only do a better job than the CSA, which profoundly failed at the task it was set.

These parents will not pay, and the idea that a mother in very poor circumstances, left with young children by the father, may find herself having to seek social benefit from the state, which she may not have sought before, when the father may have money while she has nothing that the state does not provide, and may then have to pay a fee to try to get money for the welfare of her children, particularly where she has no money and the father may have some, is profoundly unfair. I respectfully and strongly support the noble and learned Lord, Lord Mackay of Clashfern, and hope that the House will support him, too.

[Lord Cormack]

My Lords, I, too, very much hope that the House will support my noble and learned friend. I hope that those on this side of the House who are inclined to support him will not consider that they are acting as rebels against the Government. This does not knock the central plank out of the Government’s Welfare Reform Bill, which I am proud to support. I listened to what my noble friend Lord Newton said on Monday and wish more noble Lords had heard it. He spoke eloquently in support of the principles of the Bill. His speech was widely and rightly commended. However, here we are dealing with something very different. We are not torpedoing the Bill. We are injecting a little bit of extra fairness into it.

The noble and learned Lord, Lord Morris of Aberavon, spoke as a former constituency Member of Parliament. I was in the other place for 40 years and saw countless women who came to me in great distress, who would have regarded a fee as a deterrent and who considered that this was further evidence that the system was against them. They often came in despair and because they were in true need; but also because the child for whom they were responsible, and for whom the father was responsible, was in need. We are talking here about children, who are not party to whatever dispute might have divided the marriage, relationship or whatever else. Saying to a woman who comes in distress and despair, “Fill in form X and pay your fee”, would be nonsense. What they need is help, contact with human beings—which is why I made my brief intervention on the Minister's speech a while ago—and support.

The noble and learned Baroness, Lady Butler-Sloss, was quite right to say that some people have no intention of owning up to their responsibilities and paying. The Government's general philosophy is one that I hope that most Members of the House can support. We all know that our welfare system is in need of overhaul and reform and it is a courageous act to face up to that. However, this does not mean that everything in the Bill is right, and this clause needs amending in line with what my noble and learned friend said. He is a man of infinite wisdom and great experience, and is held in the highest respect in all quarters of the House and all parts of the country. He is no rebel; he is a man of common sense and compassion and he deserves support.

Welfare Reform Bill

Baroness Butler-Sloss Excerpts

Monday 23rd January 2012 Lords Chamber

[Baroness Hollis of Heigham]

My Lords, I will be very brief, but I cannot resist the effrontery of trying to challenge some of the assumptions made by two people whose views on social security I very much respect, the noble Lords, Lord Fowler and Lord Newton.

The noble Lord, Lord Fowler, said that the social security bill is pushing £200 billion and needs to be contained and cut. He is correct, but the biggest single group driving that increase in costs are of course pensioners. There is an increased number of pensioners, who are living longer, sometimes with poor health. These cuts do not—in my view, rightly—impinge on them at all. We are making other people pay for the demographics that are not their fault.

The second point I would like to address comes from the noble Lord, Lord Newton. He says that there is a big prize in this: universal credit. He is absolutely right. I defer to nobody in my support for universal credit and my support for the Minister on the structure of universal credit. However, that structure is being contaminated by where some of the cuts fall. If we can keep those two things separate in our minds, we can fully support the Minister on his structure, as we do, while trying to protect those who are most vulnerable and affected by where the cuts fall.

At the end of the day, it is about political and moral choices. Noble Lords, including the noble Lord, Lord Hamilton of Epsom, said that we face a deficit and must bring it down—these cuts have to fall. May I gently suggest to him that I rather doubt that any of the cuts have affected him? Not one of them has affected me. Indeed, my council tax is being frozen at a cost of nearly £1 billion a year, which is very nice. Over five years, that equates to the very £5 billion that the noble Lord, Lord Fowler, cited. I get my council tax frozen while disabled children, cancer patients and vulnerable children at risk of homelessness carry my bills for me, even though we in this House have broader shoulders on which to carry the cost. It is about choices and the choice of every Member in this House today. I hope they will make a choice that most of us would regard as the decent one.

[Baroness Butler-Sloss]

My Lords, I say bluntly that I came here uncertain as to which way I should vote on this amendment today. I remain uncertain but I endorse the suggestion that the Minister should explain what will be done for the most vulnerable by way of the transitional provisions. Like others, I strongly support the cap. The amendment goes too far in my view but it has a nugget of enormous importance. Like the noble Baroness, Lady Walmsley, my main reason for being here today is because I support children. The transitional provisions may provide the answer but can the Minister tell us how the most vulnerable people will be protected? I should like to know that because it will have an enormous effect on which way I vote.

[Lord Empey]

My Lords, we have to be honest with ourselves in this House. There is no way that you can reform welfare without affecting one group or another in our community. I cannot think of any means or mechanism whereby you can leave people as they are and change the system at the same time.

There is a fundamental double standard running through some of our debate this afternoon. First, the noble Baroness, Lady Hollis, made the point that the demographics meant that older members of the community were taking up a larger slice of the social security budget. That is true. However, many Members here have said that they do not want to do anything to upset the housing situation because of the inevitable disruption that could arise, with implications for children. Yet we have no compunction—the welfare state has no compunction—in sequestrating the houses of older people to pay for their care. I put it to noble Lords that policy in the 1980s encouraged families to buy their homes. Indeed, we made enormous volumes of public sector properties available to encourage people to buy them. People scrimped and saved in the hope of perhaps passing on a small legacy to their children. They lived their lives, worked hard, saved and purchased a property. What are we saying now? “Oh, I’m sorry chaps. Well done. You did that but now that you’re frail and need to go into care, we will pay for that by taking that property and reducing its value by £550 a week until it is £16,000, and then the state will look after you.” What consistency is there in that?

I do not believe that any current Secretary of State has come into office more prepared, and having done more homework, than Iain Duncan Smith. I saw at first hand a lot of his work with his think tank. He went to the States. He studied carefully and learnt the situation on the ground. I therefore believe that the fundamental drive behind this is based not simply on an ideological rant but on experience and a thoughtful purpose as to how we are to improve our community.

The other thing we have to face up to is that we are not as wealthy as we once were and we have collectively allowed the social security situation to grow out of control. We allowed circumstances whereby people could pay unlimited rents for homes and then we throw our hands up in horror and say that perhaps we cannot afford to keep them in these properties any longer. Whose fault is that? It is the collective fault of parties and Governments over decades.

I support entirely the idea of national insurance, whereby we provide a safety net if we are down on our luck. I have so much of it in my own area, where for generations people have not had the opportunity to work, and I know—we all know—that people abuse the system. However, we should not allow that to make our decision for us. The question is: can any Government advance any proposal that will not upset one particular group or another in the community? I put it to the Minister that it cannot be done. You cannot make changes to welfare without upsetting people.

It is also misleading to gross up the total benefits paid and say that that is the equivalent to a salary of £35,000 a year. I disagree with that.

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[Baroness Meacher]

My Lords, I had not planned to speak in this debate, but the noble Baroness, Lady Grey-Thompson, put her name to this amendment, but has been detained and so cannot be in the Chamber. I think it is important to make the point that there is Cross-Bench support for this amendment.

I want to make one point. The Minister has made a great deal of the importance of fairness between those in and out of work. We know that there are problems in this Bill such as issues of fairness across geographical areas or between different sizes of household. I shall simply focus for a second on the fairness between those in and out of work. One thing that puzzles me is that not only will those who are in work get their average earnings—let us say, of £26,000 a year—they will of course also get child benefit. As I understand it, they will also, if they have three or four children, receive housing and other benefits under universal credit. The cap will not apply to those in work, so there is a discrepancy not only in that child benefit will go to those in work but not to those out of work but because it will be at the same level of net income. This applies to other benefits too.

I certainly do not want the cap to apply to those in work, but one does have to consider this. Presumably the argument for not applying the cap to those in work is that those families are really struggling—the so-called middle earners or middle-income people. It is very tough to live with three or four children on average earnings. Therefore, they need a whole range of benefits. If they need a whole range of benefits, it is very difficult to see how the Government and the Minister justify excluding any reference to all the benefits that those in work will have, and arguing that those out of work should be able to live on a level of income that no one in work would be expected to live on.

If you assumed, as I sometimes get the feeling the Government do, that anyone out of work can get back into work, and you really could find and get a job within a week, or two or three weeks, you could just about justify this. However, so many people who are on benefits are going to continue to be on benefits, and they have a range of disabilities that will not even entitle them to PIP in the future, because things are going to become very tough. The Minister knows the group of people I am most concerned about: people with a range of mental health problems. It is very difficult for those people to get any employer to take them on, yet they are going to be expected to live on a level of income that people in work will not be expected to live on. I would like to hear the Minister’s response on that point.

[Baroness Butler-Sloss]

My Lords, I totally understand why the Government require it to be said that not everyone should get child benefit. There are two groups of those who are not employed and to whom the cap will apply about whom I am particularly concerned. I should declare an interest as the president of the Grandparents’ Association.

A considerable number of grandparents, particularly grandmothers, have been in perfectly good employment over a number of years and then for one reason or another find themselves obliged to take on the care of children, who are sometimes extremely young, in addition to their own teenage children. As well as grandparents, there are also other kinship carers, as they call themselves, who take on the care of other people’s children, usually their nephews and nieces and sometimes their great nephews and great nieces. They give up their jobs. They have to, because they cannot care for these young children, who have in a sense been dumped on them without any prior warning on some occasions. They will give up their jobs for the care of their grandchildren or other kinship children, then find themselves in real difficulties with this cap.

We are not just talking about one or two children—this is my second point. There are families with a considerable number of children, not all of whom are their own. There are single mothers who have gone through a number of different partners by whom they have had a child. They end up sometimes with five different successive partners, and with more than five children. How on earth will that group of families cope if they are unable to have additional child benefit? I can understand their coping perhaps with one or two children but not three, four, five or six. Such families make up a smaller percentage; the figures were given in our previous debate. However, they do exist and they will be in real difficulty. Unless there is some sort of hardship allowance for families who cannot cope on this £26,000 cap without child benefit, I fear that I will go the way I would prefer not to go—against the Government.

[Lord Kirkwood of Kirkhope]

My Lords, this is a very important subject and this is the most important amendment as it seeks to deal with some of the problems that will flow from Clause 94.

I want to make it clear that I am implacably opposed to a household benefit cap in principle. People’s eyes glaze over when I try to explain my main reasons. I tried it in Grand Committee and by the end people looked at me as though I was possessed. However, there is a point that has not been made and it is very important. I am talking to my own side as much as to anyone else. I have spent my entire life fighting for benefit entitlement to be enshrined in law. That is to say, if you meet the eligibility criteria you get the amount due. That has been hard fought for and it is a very important part of our social security set-up.

Clause 94 changes that. It is a ministerial override. The Chancellor of the Exchequer or the Secretary of State for Work and Pensions will decide, arbitrarily in my view, although the Minister says that it is to do with mean or median average income. These are not figures that are easily pinned down in our systems of legal entitlement in social security Acts. A Minister of the Crown now says that he can, by regulation, override who gets child benefit if it is counted in a cap and if they are over the arbitrary limit. That is a change. We are giving powers to Ministers that I do not think it is safe to grant them.

If the Government think that housing benefit is too high in some circumstances, let us reform housing benefit. I would be up for that. We have heard powerful speeches. My noble friend Lord Greaves just made a very powerful speech about the amount of money that is being diverted to landlords. It is £2 billion a year in housing benefit. Anyone sensible would want to take a look at that, but this is looking at it over too short a period and doing it in a technical way that strikes at some of the protections that we have in Parliament. When we set entitlements in the uprating Statement every year, we can be confident that if people meet those entitlements they will get that money. We cannot say that any more because a cap may be applied. Look at the regulations and look at Clause 94; it is very general. This is a very targeted debate, which it should be as it is about child benefit. I say to noble Lords that, in future, child benefit amounts can be attacked in a way that we will not be able to control. Local authorities will have to reduce child benefit entitlements to enforce this cap. That is not something that this House should accept casually.

What I should really like to do with Clause 94 is vote against the whole thing. However, my noble friend Lord German and one or two others took me into a dark room, sat me down and said, “That wouldn’t be sensible because the great British public know the square root of next to nothing at all about the detail of the technicalities”. He has persuaded me that I should mitigate Clause 94, and I am prepared to do that. This amendment is the best form of mitigation because it protects a universal benefit that people earning just shy of £80,000 a year will qualify for until we look at that. The Government say that they are on the case. Those people will get that benefit, while people subject to the housing cap in future may not. I do not see the equity in that situation and it would not be safe for us to run with the clause if unamended. I am grateful to my noble friend Lord German for showing me the error of my ways in getting the mitigation.

I want to say two other things as well. This does not attack universal credit. If I believed that the amendment did that, I would certainly vote against it. Why do I not believe that? The amendment is to Part 5 of the Bill, whereas universal credit is in Part 1. If this is an essential part of universal credit, why is it not in Part 1—in the first 43 clauses? It is not. It is there only because of something called the Treasury claw-back, which we discussed at great length in Grand Committee. I was absolutely persuaded that I would die in a ditch to save universal credit. I pay credit—universal and otherwise—to the Minister for achieving it. As someone said earlier, it is an achievement. It will transform and improve dramatically the way that the welfare and benefits system is rolled out. We will certainly be in a much better place when the economy recovers.

However, the Treasury claw-back is £18 billion over the CSR period. The amendment, give or take the new version of the impact assessment, which I have not yet studied, will save £113 million. My point is simply this: the deal was done by the department in 2010, when it was absolutely reasonable to expect that the green shoots of the economy would start to be seen in 2014. Is there anyone in this House who now believes that that will happen? The circumstances of 2010 are now changed, so we are not lashed to the mast. If you want to give some protection to the people at the lower end of household income distribution, this is the amendment to mitigate that affect.

There is a lot of misunderstanding in this debate about the difference between a poverty indicator before housing costs and a poverty indicator after housing costs. After housing costs, the families that will be hit by this household benefit cap will be as poor as church mice. When you measure the amount of income available to a household and divide it by the number of people in it—these are big households—they will get tiny sums of money. I saw an article in the Guardian today that referred to 62p per family member after the household benefit cap in one case that had been worked out. What are we doing here if we are approaching that kind of thing?

The Government will not be able to control this. The child benefit that will be withdrawn will be withdrawn by local authorities. Once the regulations are passed, we will lose control of what will happen to these households. I contrast that. Colleagues may know that the DCLG is running a very interesting programme on troubled families. The Prime Minister tells us that there are 120,000 troubled families—I am sure there are—just in England. We are spending just shy of £450 million on getting alongside them, getting them back into work and getting their kids into school. That is a much better way of dealing with some of this stuff. Why, on the one hand, are we helping troubled families? People who are hit by the housing benefit cap will very quickly become troubled. Maybe they will get help from this left-handed scheme. Meanwhile, they have to face the reductions that are being made by the right hand of the Government.

I am very worried about this. Child benefit is a universal benefit and a mitigation that is essential to protect the interests of children. It does not affect universal credit. If it did that, I would not vote for it. However, if it is pressed, I will vote for this amendment with enthusiasm.

Pensions Bill [HL]

Baroness Butler-Sloss Excerpts

Tuesday 15th March 2011 Grand Committee

[Baroness Murphy]

My Lords, I added my name to the amendment. First, I declare my total lack of personal interest in the matter. I am not a judge, I am not married to a judge and I have no judges in my family. However, I do count many judges among my friends. I have often been up before judges—in a professional capacity, I hasten to add. As a result, I have developed an enormous admiration for the judiciary of this country. The quality of their decision-making, their willingness to be unpopular and their independence from the subtle and not-so-subtle pressures of the Executive are qualities that we should treasure.

What is proposed in Clause 24 is a short-term crowd pleaser that will have an impact far beyond what is presumed. It is in direct contravention of internationally agreed guidelines on the protection of the independence of the judiciary, as the noble and learned Lord, Lord Mackay of Clashfern, so eloquently outlined.

Let us face it, these proposals could lead to a judicial pay cut in real terms of up to 10 per cent. I realise that there may well be little sympathy around the House for what I am saying, in the light of the fact that many people in the public and private sectors are taking serious pay cuts and we are debating how pensions will be arranged in the future. It is difficult, but this is a very particular case. The Government’s impact assessment acknowledges that the key risks are that the impacts of this measure are as yet unknown—as are the cumulative effects of existing and future policy decisions about judges’ pay and pensions—that the assumed behavioural response that it would make no difference to recruitment might not apply and that the measure may lead to negative impacts on judicial recruitment, retention and performance.

I wish to deviate slightly from this issue. Research carried out in 2008 by Professor Dame Hazel Genn of University College London found that senior practitioners—solicitors and barristers—are deterred from applying for judicial roles, temporarily or permanently, by practical issues relating to judicial working conditions that include not only geographical and jurisdictional deployment of the senior judiciary but their salary, workload, location, support, patterns of working and general flexibility. We know that it is difficult enough to persuade a top commercial QC earning £2 million a year to accept a judicial appointment, but frankly they are not the judges whom I am worried about. I am far more worried about those lawyers, barristers and especially solicitors, many of whom are women or from ethnic minorities, who cannot see the advantages of entering the judiciary now because of the poor working environment and rewards, but who are attracted to the pension arrangements that would allow them to retire after 20 years. I remind noble Lords that this is not a job that you can enter as an apprentice; you must be a mature and experienced person in the first place.

People say that the arrangements are generous, but they are actually nothing like as generous as for those who remain as solicitors or barristers. There is the difficulty that when practitioners are at their highest earning potential, say in their 40s, they are obliged to seek part-time judicial experience if they want to progress up the ladder. Few are persuaded now. What will this sudden drop in take-home pay do to the application level? It is not the money alone; it is the signal of being undervalued by an Executive looking for PR advantage, but these numbers will make precious little difference to this nation’s debt.

At a time when we are beginning to see the fruits of the work of the Judicial Appointments Commission in appointing more women and people from ethnic minorities, under the admirable chairmanship of the noble Baroness, Lady Prashar, it seems particularly insensitive to throw a spanner in the works with this unnecessary piece of legislation. The experience needed for a High Court post means that only 20 per cent of the pool of eligible senior lawyers are women and only 5 per cent are people from a black or other ethnic minority background. However, boosting numbers of women and other groups is not just a matter of time and a growing pool. One big disincentive is the earnings cut when becoming a member of the judiciary. People marry later, and people in their 50s still have significant financial commitments until late on—commitments to children do not go away.

Let us think back to the last time the Executive attempted to cut judicial salaries. It resulted, among other things, in the following judges’ memorandum and the eventual restoration of salaries. It stated:

“It is we think beyond question that the judges are not in the position occupied by Civil Servants. They are appointed to hold particular offices of dignity and exceptional importance. They occupy a vital place in the Constitution of this country ... It has for over two centuries been considered essential that their security and independence should be accounted inviolate ... In this matter, our country has set an example to the world, and we believe that the respect felt by the people for an English Judge has been partly due to his unique position, a feeling which will survive with difficulty if his salary can be reduced or if he were an ordinary salaried servant of the Crown”.

Clause 24 raises serious concerns in my mind about placing the power to alter judicial pay of sitting judges after appointment in the hands of the Executive. This should be a matter of concern among those who take an interest in judicial independence. There has been little notice of or consultation on that, or any serious look at the real impact.

It is also unclear whether the proposal would impact on the maximum contribution into the judicial additional voluntary contribution scheme, which currently has a 15 per cent ceiling on contributions, with resulting loss of pension in old age as well as lost salary during service. I ask about that because it is especially important for young judges who might not have acquired pensions in earlier parts of their career. If the proposed statutory contributions reduced the amount that one could make voluntarily, it might well significantly reduce the pension available under the voluntary scheme. I hope that the Minister can clarify that for me.

When any judge accepts appointment, the basis for that appointment is that, however successful the individual may have been in his or her previous career, he or she may never return to it. Financial security and pension provision are an essential part of the decision whether to accept appointment. That is particularly the case with the 52 masters who are on the lowest salary band of the judiciary. They earn the same as a basic NHS consultant salary or approximately two-thirds of what a family GP earns. They are not generously paid for the level of responsibility that they carry and many will not serve 20 years to maximise their pension.

I echo what the noble and learned Lord, Lord Mackay of Clashfern, said about the internationally accepted constitutional safeguards for judicial independence since at least the Act of Settlement in 1701, with restrictions on post hoc adverse variation of judicial terms of service. Those were incorporated into Latimer House guidelines in 2003 and repeated in the Bangalore principles and implementation measures published by the UN-sponsored Judicial Integrity Group in 2010. Then there is the draft Universal Declaration on the Independence of Justice by the UN, also known as the Singhvi declaration, and the Universal Charter of the Judge, approved by the International Association of Judges on 17 November 1999. I could go on: there were also the Council of Europe recommendations, the Consultative Council of European Judges’ opinion and the Burgh House principles. There are clearly numerous guidelines about maintaining the independence of the judiciary by not varying their terms and conditions of service after appointment.

The present judiciary had a legitimate expectation when accepting offers of appointment that their pension arrangements would not be adversely changed after appointment. It would be wrong and damaging to our international reputation for this country not to respect that principle.

Finally, I pray in aid the report of the noble Lord, Lord Hutton, which was published earlier this week. He states at page 146, paragraph 6.92:

“The protections might also cover the extent to which there might be limitations on adjustments to existing judicial pensions to meet international conventions for protecting judicial remuneration, while also having regard to factors such as increases in the value of pensions from increasing longevity”.

In summary, Clause 24 will affect a modest number of people seriously and adversely and contravenes our international agreements on judicial pensions. We are not saying that people who are appointed in future could not make further contributions, but they would be appointed knowing that that was the case. I strongly support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern.

[Baroness Butler-Sloss]

My Lords, I have wondered whether to speak on this amendment. First, perhaps, I should apologise to the noble and learned Lord, Lord Mackay of Clashfern, and to the Committee for arriving late. I had not appreciated that Amendment 55 was up on the monitor, but I came in as soon as I could.

I must declare an interest, not only as a former senior judge but also as someone whose father was a High Court judge, so I have spent my entire legal life in the shadow of the judiciary. I strongly support not only the noble and learned Lord, Lord Mackay of Clashfern, but particularly the noble Baroness, Lady Murphy, who made points that are really worth taking into account. It is not so much the senior judiciary—there are probably not more than 110 to 120 of them—as the middle-ranking judiciary who ought to be considered. They labour in the fields, with not particularly generous salaries, as the noble Baroness, Lady Murphy, said. I would add to her Queen’s Bench masters the judges of the various tribunals, who are crucial to the administration of justice in the tribunals; the district judges in the magistrates’ courts; and the district judges across the country trying civil and family work. They are a very important part of the judiciary. Many of them accepted a reduction of income. It is not only the top incomes that senior QCs can make that are reduced, as the people taking these middle-ranking posts also earn reasonable incomes. Almost every person who becomes a judge takes a cut in income.

People generally become judges because they feel that they ought to be paying back to society what they have gained by being barristers and solicitors. It is an important part of the judiciary that they are there to serve the public. They are a special group of people in the country. They are significantly independent and they have to remain independent to be able to challenge the Government in the courts. The Administrative Court is a thorn in the flesh of every Government, of whichever political persuasion. I believe that there is a book called “Looking Over Your Shoulder at the Administrative Court”, which trains new civil servants to cope with the slings and arrows of not so much outrageous fortune as the decisions of the Administrative Court.

I think that the public and perhaps noble Lords ought to remember that our judiciary is not only significantly independent but significantly incorruptible. Since I have left being a judge, I have been on parliamentary visits to various countries. In one of the eastern European countries that had been under the control of communism, I was told by one of the Ministers that the corruption of their judges was the most worrying part about their efforts to improve their country to meet the requirements of the European Community. My husband was a judge in Kenya at one time, under the ODA system, and I was told by my friends who were in the law in Kenya about the judges whom they knew to be corrupt. Eighteen were sacked at one time and my particular friend said that that was not all who should have been sacked. Very recently I was at one of the IPU meetings here in this building. I was talking about human rights and two Kenyan lawyers got up and said, “What do we do about the corruption of our judiciary?”. Forgive me for saying this as a former judge—since I no longer sit, I think that I can say it safely—but we are lucky in our judiciary. What the Government are proposing is in effect to break the contracts of the existing judiciary by substituting something else by statute.

I am well aware that everyone in the pensions system is going to suffer and I well understand people asking why the judiciary should be immune from the suffering of the public. So far as the future is concerned, as the noble and learned Lord, Lord Mackay of Clashfern, said, I express no view. It may well be entirely appropriate that the judiciary of the future should be asked to make the contributions that it has not been asked to make in the past; if I may say so, the Government ought just to think of the points that the noble Baroness, Lady Murphy, has made about that. However, breaking the existing contracts of existing judges who have given up their practices as barristers and solicitors to serve the community under a certain arrangement, where you take on that job without making a contribution, is something that the Government ought to think about long and hard. I very much support the amendment.