Justice: Sentencing of Young Offenders

Earl of Listowel Excerpts

Monday 11th June 2012 Lords Chamber

[Lord McNally]

My Lords, the Government hope to publish in the near future a White Paper on the criminal justice system. Having seen some early drafts, I know that we will bring forward some positive proposals on restorative justice, because, as has been said, there is every indication that restorative justice has a significant and beneficial impact on reoffending.

[The Earl of Listowel]

My Lords, I welcome what the Government are doing. However, given that half of children in the juvenile estate have experience of being looked after by their local authority and a quarter of adults have similar experience, and given the particular worry about young people leaving the care of their local authority and moving into bed-and-breakfast accommodation, will the Minister discuss with his colleagues the possibility of a review of services for looked-after children, including children in children’s homes, and care leavers? Will he also discuss with colleagues the example of the Scottish Institute for Residential Child Care, which provides a centre of excellence in a university to train staff in children’s homes, to research looked-after children’s services and to influence policy, which we do not have in this country?

[Lord McNally]

My Lords, as so often, the noble Earl puts forward some very sensible suggestions, which I will follow up. Anyone who has been involved with our criminal justice system must be slightly shamed by the fact that a large number of young people who find their way into it as adults have been in our care as children.

Legal Aid, Sentencing and Punishment of Offenders Bill

Earl of Listowel Excerpts

Wednesday 25th April 2012 Lords Chamber

[Lord Blair of Boughton]

My Lords, I lent my name to the first iteration of the amendment put forward by the noble and learned Baroness, Lady Scotland. I want to speak again for a moment about this. I accept and, as has the noble Lord, Lord Macdonald, I praise the Minister for the movement that the Government have produced. However, in my experience of 35 years of dealing with these kinds of cases, there is something very specific about a certain category of offender, including the offenders of child abuse, domestic violence, stalking and partner rape—namely, their deviousness and the control that they exercise on their victims. Therefore, I strongly support the idea that we should not let down this group of victims by imposing an arbitrary limit on the time in which the evidence can be produced in a way that will provide legal assistance to those victims.

Some of your Lordships will be experienced enough to remember the great Erin Pizzey, who was the first founder of women’s refuges. Her book had the most staggeringly accurate title about the kind of man who would commit these offences. I do not mean to say that there are no women who do this but we are primarily talking about men. The title of that book was Scream Quietly or the Neighbours will Hear. I think that we should say, just one last time, will the Government please look at this time limit again, because this group of offenders works in a completely different way from most other criminals?

[The Earl of Listowel]

My Lords, I wish to speak about the time limit as regards the abused children who come under paragraph 1 of Schedule 1. The noble and learned Baroness referred to these children. I have been approached by the Grandparents’ Association and Grandparents Plus, which have expressed their deep concerns about the time limit. For example, in the case of a mother who is a drug addict, child protection proceedings may be started. The mother may enter prison or disappear from the scene for some time and the grandparents step in to care for the child. The mother may return to the scene but is not be happy with the situation and wants to have her child back. The grandparents would need to apply for a special guardianship order or a residence order.

It would be helpful if the Minister would be prepared to go even further as regards paragraph 11 of Schedule 1 and lift the time limit in order that those grandparents who provide such an important role do not risk having to invest their life’s savings in trying to protect their relationship with the grandchild for whom they are caring.

Legal Aid, Sentencing and Punishment of Offenders Bill

Earl of Listowel Excerpts

Monday 23rd April 2012 Lords Chamber

[Baroness Hamwee]

I shall say a word about one of the items that has been left out of this list: immigration. I am sorry that the noble Baroness has decided, for reasons that I understand, not to include it in the list. We know that immigration matters will not be within exceptional funding, so that route will not be available. Unaccompanied children arriving here may very well initially claim asylum, but a child who makes an asylum claim that fails and fails again on appeal will fall back on an immigration claim. For instance, a child who comes here at, say, the age of 12 and does not succeed on asylum but gets leave to remain will after three years, at the age of 15, be seeking immigration status in circumstances that will have changed dramatically.

I can see that there may be different considerations for a child who comes within a family but there must be cases where the child should be represented separately. We have a spent a lot of time on this and we know that immigration is complex; that social workers are not qualified to deal with it; and that legal advisers need to be specially licensed for it. I know that we are not in a position to change this but it is right to put on record some disappointment. But there is hope that as time goes on the Government will realise that this is something on which particular help is needed.

[The Earl of Listowel]

My Lords, I support the noble Baroness in her amendment. I should like to talk about young people leaving care at the age of 16 or 17 and how this affects them. I was very grateful for the opportunity to meet the Minister this morning and for his reassurance in this area. Following that, I spoke to a personal adviser—when children leave care they are appointed such an adviser to support them during their transition from care—who said, “It is so helpful to be able to go on certain occasions to a professional, a solicitor, to get a letter to get access to welfare and the right housing for these children”.

About one-quarter of children leaving care do so at the age of 16. Therefore, we often have very vulnerable young people who really can benefit from expert advocacy. While I welcome what the Minister has said in terms of reassurance, this matter in particular needs to be looked at. He highlighted the use of the exceptional funding avenue. The personal adviser said that often it is not a question of going to court but of getting in early and getting a good letter to make the local authority or other agencies aware of the legal situation and then things would be done correctly. It would be helpful if the Minister in his response could give an assurance that the exceptional funding avenue is easily accessible in those circumstances. I strongly support my noble friend’s amendment.

[Lord Beecham]

My Lords, the noble Baroness, Lady Hamwee, referred to her regret that immigration is not included in the amendment. In fairness to the noble Baroness, Lady Grey-Thompson, this amendment is in lieu and something has to be different from the original amendment. An invidious choice had to be made and one could regret that any one of the categories was to be omitted but one had to be in order for the amendment to be in order.

I am indebted to JustRights for its briefing, which no doubt many noble Lords will have seen. JustRights is made up of some 18 voluntary sector organisations. When the Minister refers to extra support for citizens advice bureaux—which I think she identified in particular although she may have been referring to the whole sector—of £20 million a year for three years, one should know that Citizens Advice sustained a loss of £80 million. That sum is for everything and not just for children. Such investment has to be seen in that context.

However, as regards these amendments, by my calculation, taking out the immigration cases, the cost of accepting the noble Baroness’s amendment would be of the order of £2.8 million. JustRights estimated about £5 million to £6 million according to the Ministry’s estimates but that included something like £1 million for immigration. I beg the pardon of noble Lords but that figure should be more: the net saving should be about £4 million. It points out that the Local Government Association—I declare an interest as a vice-president of that organisation—estimates that the removal of legal aid for unaccompanied child asylum seekers in immigration cases, which this amendment does not seek to restore, would cost local authorities £10 million. In other words, the cost to one element of the public purse will go substantially to exceed the savings which would accrue from the Government’s package. It is estimated by Youth Access and the Legal Services Research Centre that greater costs will fall on other elements of the public sector, including the welfare system and the National Health Service.

Legal Aid, Sentencing and Punishment of Offenders Bill

Earl of Listowel Excerpts

Tuesday 27th March 2012 Lords Chamber

[The Earl of Listowel]

My Lords, bearing in mind the wish of the House, I imagine, to move to a speedy conclusion in this debate, I shall say one sentence in support of my noble friend Lady Howe on Amendment 5 with regard to children leaving care. The noble Lord, Lord Phillips, just spoke of 18 to 24 year-olds and of his doubt that there is a necessity to protect them in law in this way with regard to legal aid. However, I would draw the House’s attention, and his attention in particular, to the experience of young people in care leaving care. A quarter of young people in care leave their foster carer or children’s home at the age of 16. These children have been traumatised—they would not have been taken into care unless that was the case.

Very few of them can stay with their foster carer or in their children’s home beyond the age of 18, so past that age most of these traumatised young people have to fend for themselves. They get some additional support, but they are pretty much on their own. The average age at which most of our children leave home and have to fend for themselves is 24, so I hope that your Lordships will keep in mind the particular vulnerability of young people leaving care. It is recognised in the Children (Leaving Care) Act, which gives them special consideration until the age of 21 and until the age of 24 if they are in education or training. I hope that the Minister will give that a sympathetic ear.

[Lord Crisp]

My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Cormack, and I would like to speak very briefly following on from his eloquent speech and those of the noble Baroness, Lady Eaton, and others. First, like others, I am appreciative of the concessions that have already been made, but I think that they do not go far enough on clinical negligence. I recognise that it is a relatively small number of children who are left out by the concessions that have already been made.

As a former chief executive of the NHS, I add my simple tribute to Lord Newton of Braintree. He was chair of one of our great hospitals and, like others, I benefited from his wise and useful advice on many occasions.

Like others in your Lordships’ House who are associated with the NHS, I know very well the distress to all concerned that is involved in these clinical negligence cases. It obviously affects the children and their families, but also the staff and the institutions. What is most important here is to make whatever processes that are available as simple and quick as possible.

The Government’s proposal fails on three key points. First, what impact will these changes have on access to redress for this vulnerable group? I do not think from anything we have heard in this and earlier debates that they will improve access in any way but will undoubtedly damage it. Secondly, will it save the Exchequer and the NHS money? It will save the Exchequer money in the sense of saving money on legal aid, but all the evidence I have seen is that it will cost the NHS more through the processes that are being introduced. Thirdly, will it speed up and simplify the process for all concerned? I stress “all concerned”, including the staff of the NHS. I think the comments by the noble Baroness, Lady Eaton, made it clear that it simply will not. For all those reasons, I urge the Minister to reconsider and to accept this amendment, which will bring into scope a relatively small number of children to the benefit of us all.

Legal Aid, Sentencing and Punishment of Offenders Bill

Earl of Listowel Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Pannick]

My Lords, I added my name to the amendment and I did so for a very simple reason: this amendment is truly about access to justice. The concern surrounding the Bill is that legal aid should not be provided only by means that are simply inaccessible to a number of people, as explained comprehensively and persuasively by the noble Baroness, Lady Grey-Thompson.

[The Earl of Listowel]

My Lords, coming late to this debate, I regret that I may have missed some of its complexities, but I ask the Minister for reassurance on one point. I very warmly welcome the publication this week of the Government’s social justice strategy and the proposal for an early intervention foundation. The Secretary of State, Iain Duncan Smith, has recognised for a very long time how important it is to intervene early with families if their children are to have good and successful lives. Therefore, my concern over this issue is whether it is going to provide a further barrier to parents who need vital services. Will they find it difficult to attain those services and get access to the law, and will their children suffer as a result? I understand that children under the age of 18 will have access to a person if they need to speak to someone, but I am worried about disabled parents, parents who are very challenged and perhaps poor parents who, as a result of this change, may not get the support that they need and their children may suffer as a consequence.

--- Later in debate ---

[The Earl of Listowel]

Before the noble Lord sits down, I thank him for clarifying the guidance to those who will take these telephone calls. Will the Minister consider giving these people guidance on the fact that a disabled person may have parental responsibilities, so that if they have children additional thought might be given to a face-to-face meeting? If for some reason this does not work, we harm not only the adult but also the children.

[Lord McNally]

I would certainly consider that. As so often with suggestions from the noble Earl, that is well worth considering. However, to put it to him the other way round, if the person phoning has children the benefit of being able to get advice at a distance by telephone at a time of their choice could also be an advantage.

Legal Aid, Sentencing and Punishment of Offenders Bill

Earl of Listowel Excerpts

Monday 5th March 2012 Lords Chamber

It was interesting earlier today to hear the noble Lord, Lord McNally, refer to the Government procuring services. We are not suggesting that the Government should procure expert witness evidence but that they should facilitate it when it is necessary and desirable. In these circumstances, I hope that the Government will consider their abdication of responsibility for facilitating the provision of expert evidence of the right kind and at a reasonable cost to the taxpayer and the system. Accordingly, I beg to move.

[The Earl of Listowel]

My Lords, I support the noble Lord, Lord Beecham—my name is attached to the amendment—and declare my interest as a trustee of the Michael Sieff Foundation, a child welfare organisation.

I am concerned that the quality of expert witness reports is already variable and that the cuts that Her Majesty’s Government have made in payments to expert witnesses might reinforce that variability. I am particularly concerned that family courts, as they make judgments to remove children from their families, should be as well advised as possible. The noble Lord, Lord Beecham, highlighted the importance of that in the cases that he described.

I begin by thanking the Minister, the noble Lord, Lord McNally, for his encouraging response in a debate on this matter tabled by the noble Lord, Lord Bach, a couple of months ago. There is concern at the way in which the current remuneration for expert witnesses is managed through the Legal Services Commission. The noble Lord, Lord Beecham, referred to that. It was encouraging to hear the noble Lord, Lord McNally, say at that time that consideration was being given to how to meet this concern. It was also good to read later in the Family Justice Review final report that it recommended that the remuneration of expert witnesses should be moved elsewhere. I hope that the Minister may have more encouraging news on this tonight, or perhaps he can write to me.

The Family Justice Review report found that:

“Experts are too often not available in a timely way, and the quality of their work is variable. The Family Justice Service should take responsibility and work with the Department of Health and others as necessary to improve the quality and supply of expert witness services”.

It continued:

“A recent Family Justice Council report examined a sample of expert psychological reports. It identified serious issues with their quality and the qualifications of those carrying them out. Further studies of this type are needed”.

There is a real problem with the consistency and quality of expert reports. Her Majesty’s Government are right to be concerned at the cost of expert witnesses. Judges whom I have spoken to and the Family Justice Review also found that far too many reports were commissioned and that the commissioning of reports and waiting for their completion contributed significantly to the appalling delays that too many children experience as their family cases progress through the courts. I agree absolutely with the Government’s concern.

Judges and magistrates should commission far fewer reports. They often lack confidence in these complex matters. The improved continual professional development of judges and magistrates recommended by the Family Justice Review should help to ameliorate the situation. Reducing the number of reports rather than continuing to make ever deeper cuts in the remuneration of expert witnesses seems likely to provide the best outcomes all round in the medium term. I worry that, if they are not adequately remunerated, the best experts will leave this work, and that would be to the great detriment of children in the courts.

The Family Justice Review recommended something along the lines of this amendment. It stated:

“There is discontent over the way experts are remunerated. The Family Justice Service should review the mechanisms available to remunerate expert witnesses, and should in due course reconsider whether experts could be paid directly”.

The review called for what is in this amendment—a mechanism to monitor and review payments of expert witnesses. It commented on the concern about the cuts in payment of these expert witnesses. It stated:

“It is too early to conclude that the recent 10% reduction in expert witness rates will have an effect on the supply of experts, but the government should monitor this”.

That is very much in the vein of the noble Lord’s amendment.

The noble Lord highlighted that in London there has been an even sharper cut in the remuneration of expert witnesses. Certainly, the expert witnesses whom I have spoken to—and I do not think that they are grinding their own axes—often feel shabbily treated at being paid so little for bringing the benefit of their experience to these important matters. I look forward to the Minister’s response. I hope that he can offer some comfort on this issue.

Public Bodies Bill [HL]

Earl of Listowel Excerpts

Wednesday 23rd November 2011 Lords Chamber

[Baroness Scotland of Asthal]

My Lords, perhaps I may add my voice to all those who have already applauded the Government on their sterling efforts and on seeing good sense. As one of those who perhaps was responsible for gently urging the Government to turn, I think it is only right and proper to add my many congratulations to the Government on taking this important step—not least because, having had the advantage of the help, advice and support of the YJB, I know that Ministers in the Ministry of Justice will quickly come to realise that they could never have made a better decision.

[The Earl of Listowel]

My Lords, I also want briefly to thank the Minister for this announcement and to say how grateful I am to the Government for the careful way that they have listened to the concerns of noble Lords, for the meetings with the Secretary of State and for their attempts to adjust their plans in order to meet those concerns. I am extremely glad to hear this good news today. There is much more work to be done. As the population of children in custody reduces, as it has been, those remaining in custody are more difficult and challenging, so we need the best possible systems and approaches in place to deal with these higher levels of need. Again, I would like to express my thanks to the Minister and the Secretary of State for this decision.

[Baroness Royall of Blaisdon]

My Lords, I too was going to speak about heaven and sinners, as did the noble Lord, Lord Elton. But I would like to put on record that the sinner in this case is not the Minister, who I know will have done a fantastic job in persuading the department of the folly of its ways. The Minister himself is certainly not a sinner; he is more heavenly.

We on these Benches are absolutely delighted that the Government are doing the right thing. It might seem churlish, but I have to say that I wonder why it has taken a whole year for them to reach that decision. It was a whole year of insecurity, not just for the Youth Justice Board but for the youth justice system itself. As we know, the Youth Justice Board does a splendid job. By any standard of measurement it is a success story. As the noble Lord, Lord Ramsbotham, and others have said, following this summer’s disturbances —when there is, properly, great consideration being given to the need to tackle youth crime—the need for this excellent body is even greater. We should heed the wise words of the noble Lord, Lord Ramsbotham, and look at the increased potential of this particular body in the difficult times in which we live.

We should pay tribute to the work of the Youth Justice Board itself, but also to the work and the voice of noble Lords all around this Chamber, led by the noble Lord, Lord Ramsbotham, the noble and learned Lord, Lord Woolf, my noble and learned friend Lady Scotland, my noble friend Lord Warner, the noble Baroness, Lady Linklater, and others, all of whom have played a huge role in persuading the Government that it would have been wrong to abolish this excellent board. Long may it continue in its excellent work, which is to the benefit of the youth of this country, but also to the benefit of each and every citizen of this country.

Legal Aid, Sentencing and Punishment of Offenders Bill

Earl of Listowel Excerpts

Monday 21st November 2011 Lords Chamber

[The Earl of Listowel]

My Lords, I am prompted to speak briefly about the debate tomorrow on the Public Bodies Bill—and the amendments that are coming back from the other place—by what was said by the noble Baronesses, Lady Newlove and Lady Linklater of Butterstone, about the reoffending rate for young offenders, which is put at 71 per cent. Clearly we want to see that figure reduced. I draw noble Lords' attention briefly to the programme of change that the Youth Justice Board has set in motion in this area. Key to the effective rehabilitation of young offenders is the ensuring of good resettlement back into their home areas. The Youth Justice Board has worked with consortia of local authorities to develop programmes of work, accommodation, training and education for young people. It is early days, but one striking fact is that in the recent riots only one child in the programme was involved in criminal activity. I cannot tell noble Lords how many children are involved, but so far four large local authorities in the north-west of England have been pulled into the programme, which is now moving down to Wales. I hope that noble Lords will make time to listen to the debate tomorrow on amendments to the Public Bodies Bill—I apologise, the debate is in fact on Wednesday—because it will be germane to this debate.

I was grateful to the Minister for introducing the Bill in the way he did, and in particular for paying attention to concerns about the welfare of women and children. I am speaking because of concerns that have been raised by many bodies about the impact of the legislation on their welfare. I was grateful to the Minister for making clear that the Bill will not directly affect looked-after children in local authority care. I was also very pleased to hear some things that he said about the Bill's impact on sentencing, and about 17 year-olds. In the past they were treated—quite unacceptably—as adults, but now that situation will be remedied and they will be recognised as children while they are on remand.

I will comment on the rehabilitation revolution. It is perhaps important to bear in mind the success of the previous and current Governments in reducing the numbers of children coming into custody. There has been a 30 per cent reduction in the past three years in the number of children coming into custody. That is a very striking result. There has also been a 51 per cent reduction in the number of under-14s coming into custody in the past four years. Given that we have an exceptionally low age of criminal responsibility, and that such concern has been expressed in this area, it is very good news and one must pay tribute to the previous and current Governments for achieving those results.

Given the success that we have seen in the Youth Justice Board arena with these children in terms of reducing the numbers coming into custody, will the Minister consider again the recommendation made by the noble Baroness, Lady Corston, in her report on women in the criminal justice system? She recommended that there should be a women's justice board that would give appropriate focus to the smaller number of women, with their complex needs, in the criminal justice system. I understand that the decline in that area has not been sustained, and indeed that the numbers may be climbing again.

I return to the Bill and say that I share the concerns expressed in particular by the noble and learned Baroness, Lady Scotland. I will address briefly the important point raised by the Minister in previous debates regarding the disproportionate size of our legal aid system when compared with that of our international peers. Many noble Lords tonight spoke of the rule of law, which is perhaps dearer to us than to many nations. The Minister prompted me to reflect on differing national priorities. In Finland, 40 applicants for a teaching post are rejected for every successful candidate, and it takes five years to qualify as a teacher. In Denmark, a social pedagogy degree—the qualification for working with vulnerable children—is almost as popular as one in law or medicine. In France, the literature suggests that social workers have a high status and are held in high respect by the courts. In this country we are beginning to address the low status of social workers, teachers and others who work with our most vulnerable children. However, we have always prized the law. It has always been a high-status profession.

I sat in with a lawyer doing pro bono work at the Waterloo Legal Advice Service. He was advising a young, pregnant woman about her rights of tenure in her home. I was compelled to admire the clarity of reasoning he applied to the young woman's situation. In our culture it is vital to ensure that the weak have access to the law, because so many of their other advocates are absent or weak. Therefore, I share the deep concerns expressed by the noble and learned Baroness, Lady Scotland of Asthal, and other noble Lords. While I recognise the complexities of the issues that face the Government, I am very worried about how the raising of the threshold of access to justice will hit the most vulnerable.

I share concerns that were raised that many more litigants in person may clog up the courts. I worry that this will add to delays for children both in private and public family law, as the same courts are used for both. For example, has the Minister considered how the Bill may impact on the time it takes for children to go through the adoption process? Is he concerned that it may add to delay? I share the concerns raised about the likely knock-on costs of poor decisions or no decisions being taken, in particular by the family courts.

As I said, I am grateful for the care with which the Minister in his opening remarks addressed anxieties about the impact on children and women. Is he prepared to undertake an impact assessment of the Bill’s consequences for children and its compliance with the United Nations Convention on the Rights of the Child? I look forward to his response.

Community Legal Service (Funding) (Amendment No. 2) Order 2011

Earl of Listowel Excerpts

Wednesday 26th October 2011 Lords Chamber

[Lord Scott of Foscote]

My Lords, I, too, support this Motion and agree with nearly all the remarks made by my noble friend Lady Deech. The statutory instrument is an extremely worrying document, proposing as it does to reduce by 10 per cent the remuneration payable to lawyers for legal services in cases covered by a legal aid certificate. What is the reason for this? The purported reason is set out in the Explanatory Memorandum. Paragraph 7.2 explains that,

“the Government considers that it needs to ensure that it only pays those fees that are absolutely necessary to secure the level of services that are required”.

That is an entirely acceptable proposition but I suggest that it is weasel words.

The reason is not that legal aid should not have been granted in a number of cases or that the remuneration assessed under the present regulations exceeds a reasonable charge for the work done or that the work done was unnecessary. The reason is that assistance is needed from the Ministry of Justice to help reduce the budget deficit. Why that could not have been explained as the reason in the Explanatory Memorandum, I know not. But the reason plainly is simply to assist in reducing the budget deficit.

Are others who do work for the Government as independent contractors, such as barristers or solicitors, to have their remuneration reduced to assist in reducing the budget deficit? I have not heard of such a suggestion. Why are legal aid lawyers being singled out for this attention? The effect of the 10 per cent reduction needs to be thought about. A number of lawyers may decline to accept legally aided work, bearing in mind that they will receive 10 per cent less than the sum which would have been reasonable remuneration under present standards. Why reduce what has been assessed as reasonable remuneration?

A second possible result has already been referred to by my noble friend Lady Deech. The number of litigants in person may increase and their presence in court almost invariably means that the case takes much longer. It often means that there will have to be adjournments. The judge with litigants in person before him, particularly if there is one litigant in person on one side and counsel for a paying party on the other side, is placed in the position of having to appear sometimes like counsel for the litigant in person. The judge thinks of points that the litigant in person has not thought of that might assist their case. The judge puts those points forward and then it appears that he is taking the side of the litigant in person. It is an unedifying spectacle but all judges will have experienced it. I have myself. Those are the possible adverse consequences.

What are the beneficial consequences? There would be a reduction in the legal aid bill, but that would depend on the additional costs occasioned by the number of adjournments that litigants in persons may bring about. The Law Society has circulated some documents suggesting that the notion that costs will be saved by these so-called reformed are misconceived. It may be only pie in the sky but the proof of the pudding will be in the eating and the disadvantages, I suggest, are apparent.

More important than the disadvantages to which I have referred is the effect on the civil justice system, for which I have a great affection. I have worked in it all my working life. It is not an optional extra but a system that behoves every government to supply for the benefit of all its citizens. Without a civil justice system self-help would become the order of the day in the settlement of issues between citizens. The civil justice system is there to settle issues between citizens and the Government. A feature of an acceptable civil justice system is that it must be accessible to all who need to use it. The legal aid scheme enables that to be achieved. Some types of litigation are removed from the benefit of the ability of litigants to conduct their cases under legal aid, but, broadly speaking, the legal aid scheme seeks to ensure that access to the civil justice system is available to all, which is right and proper. As I have said before, it is not an optional extra to be paid for only by those who can afford it.

The need for lawyers in that system is apparent also and those lawyers need to be paid for. The notion that that can be avoided by Government is no more realistic than saying that any other necessary service which it behoves Government to provide should be paid for by those who work in it. Are doctors and nurses supposed to contribute to the cost of the National Health Service? Certainly not. How is it different where legal aid lawyers work in cases where legal aid has been granted? A functioning and healthy civil legal aid system is essential. The implications of this statutory instrument are that the Government do not regard it in quite that light but think that these impositions can be made on the lawyers who work in that system in order to reduce the cost that would otherwise fall on government.

The 10 per cent reduction does not perhaps matter very much for senior barristers who have established a practice. They will have some privately funded work. They will have established good will among solicitors and clients that they can rely on in legally aided work as well. They will survive the 10 per cent reduction. The ones who will be struck by it and who may not survive it are the new entrants to the profession. Those men and women enter the profession with trepidation. It is a profession which provides no security. There is no firm that will pay you a salary that you can fall back on. You stand or fall on your own efforts and rely on the fees that you earn. Almost every entrant to the profession will wonder how long he or she can manage to continue before the financial difficulties become too great. The statutory instrument separates counsel providing advocacy services under the legal aid scheme into senior barristers who have been in practice 10 years or more and juniors who have been in practice less than 10 years. Those who have been in practice for 10 years or more can be expected to have built up some degree of practice and good will. They probably have some privately funded clients. They probably have some good will with solicitors who do legal aid work. They can probably avoid suffering too much from this 10 per cent reduction in their legal aid income. But what about those new entrants with five years’ call or less? They have no security at all. They will have a meagre income. They will be hoping that it builds to something respectable. For many of them it does but for some of them it does not. Practically every barrister who enters the profession does so in the knowledge that he or she may be unable to afford to continue for long enough to establish a practice on which they can reasonably live. They may have to take a bolthole, so to speak, into employment in a solicitors’ firm or in the legal department in some commercial company. The ones who have to take that course, who cannot wait the length of time necessary to build up a practice they can survive on, will be those who have no advantages of family support to help them in their difficult years. This statutory instrument is going to make those first five years much more difficult. Let us imagine somebody on an employment salary, not a very large one, being told that he or she must suffer a 10 per cent reduction for the future. There will be a drift away from the barrister’s profession and into firms and commercial companies, to which I have already referred. It will do a disservice to the civil justice system, which depends on a stream of lawyers coming up through the system and becoming available eventually as potential judges.

I respectfully suggest that this is a bad statutory instrument. If my noble friend Lord Bach puts his Motion to a vote, I shall vote for it.

[The Earl of Listowel]

My Lords, I regret that I, too, must support the Motion of the noble Lord, Lord Bach, because of my concerns about the impact on child welfare. I regret doing so, because I know that the Government take the welfare of children very much to heart, and I thank the Minister for ensuring that domestic violence issues have been kept out of the scope of the order and that tandem representation of children in private law cases will be untouched.

I remind the Minister and other Members of the House of Article 3.1 of the United Nations Convention on the Rights of the Child, which states:

“In all actions concerning children”—

whether undertaken by legislative bodies or other institutions—

“the best interests of the child shall be a primary consideration”.

I should be very interested to hear from the Minister how the best interests of children have been considered in this move by the Government to cut legal aid.

Children need the best experts and lawyers in the immensely complex cases that they are often drawn into. My concern is that those experts will be driven out by the further cut in their finances. Expert witnesses to the family courts—including paediatricians, child and adolescent psychiatrists, educational psychologists, adolescent psychotherapists and independent social workers—are all subject to the 10 per cent cut, having already had their fees seriously cut. For clinicians working in London, the situation is worse, because London-based practitioners are allowed to charge only two thirds of the amount charged by those based outside London. As everyone knows, it is more costly to practise in London.

I am concerned that because of the impact on expert witnesses there will further delays for children in the courts and that poor decisions will be made. If a child is taken into local authority care and the wrong decision is come to, it will stay with that child for the rest of his life and possibly for the rest of his children’s lives. We need to get those decisions right and we need the right expertise.

A further concern of the expert witnesses is that they cannot deal directly with the Legal Services Commission but have to work indirectly through solicitors. Perhaps the Minister could look at that, because it would certainly be an improvement if they could deal directly with the commission.

I look forward to the Minister’s response. I hope that he can give some comfort to your Lordships.

[Lord Marks of Henley-on-Thames]

My Lords, I rise with a heavy heart to speak against this annulment Motion. It is with a heavy heart because, for all my professional life, I have been a devoted supporter of legal aid. I declare an interest as a barrister who over the years has done a great deal of publicly funded work. My first ever motion to a Liberal Democrat conference was on the promotion of legal aid. The Liberal Democrat Lawyers Association, which I chaired for a number of years, drank a toast every year at its annual dinner to the Legal Aid Fund, a toast proposed by a prominent lawyer. It is noteworthy in the context of today’s debate that the toast was changed some 10 years ago to “justice for all”, as an ironic response to cuts in civil legal aid made by the then Labour Government. I chaired a policy group entitled A Right to Justice, which helped to define Liberal Democrat policy on improving the legal aid scheme. My party has always taken as its starting point for discussion on this topic that access to justice is a crucial right and that legal aid funding provides a vital public service. There is no point in having rights enforceable at law if citizens cannot secure those rights in courts of law. I know from many years’ experience of him that that is the position my noble friend the Minister takes as well.

However, while there was much to agree with in all the speeches that have been made so far in favour of the Motion, we live in difficult times. As the noble Lord, Lord Bach, fairly acknowledged, savings must be made. The provisions of the order are estimated to deliver £120 million of the £350 million of savings that the Ministry of Justice is required to make in legal aid over the spending review period from 2011-15. If we do not make those savings, matters can only get worse and later cuts will have to be deeper.

On a personal note, in Greece, my wife's home country, I have seen at first hand the effects of the extreme austerity measures cutting back public expenditure. The cuts could have been much less harsh had the Government there got a grip on the public purse earlier when all the signs of overspending were plain for all to see.

The need to make savings in the legal aid budget was recognised by the Labour Party in Government who made some 30 attempts to limit it, reducing fees in real terms across the piece as they did so, between 2006 and their leaving office. Furthermore, that was before the full extent of the deficit became apparent and the need for deficit reduction and cuts across the board became as clear as it is now. On 18 May 2009, the noble Lord, Lord Pannick, asked whether the Labour Government would maintain the rates of legal aid payments in family law cases. The noble Lord, Lord Bach, replied:

“Family legal aid costs have risen unsustainably from £399 million per year to £582 million per year in the past six years. We need to control these costs in order to protect services for vulnerable clients”.—[Official Report, 18/5/09; col. 1201.]

In the consultation paper sent out by Ministry of Justice in July 2009, for which the noble Lord, Lord Bach, as legal aid Minister, was responsible, its proposals were described as follows:

“Our legal aid system is one of the best funded in the world. We spend around £38 per head on it annually in England and Wales, compared to £4 in Germany and £3 in France. Even countries with a legal system more like ours spend less; for example, both New Zealand and the Republic of Ireland spend around £8 per head”.

I regard the fact that we still spend considerably more than comparable countries on legal aid as a matter for pride. That is still the case but it highlights the degree to which the legal aid budget must bear its share of the economies that have to be made.

The Labour Government's consultation paper continued:

“While we devote considerable resources to legal aid—£2bn annually—”

the figure is now £2.2 billion—

“our resources are limited, and we need to review regularly how legal aid funds are being spent, and whether we are securing value for money for the taxpayer and providing the services that the public need”.

The Government's response to the consultation, published in January 2010 and signed by the noble Lord, Lord Bach, said:

“The Government wants to ensure that we rebalance the legal aid budget as far as possible in favour of civil help for those who need it most. But we also need to ensure that the resources we currently devote to civil legal aid are being targeted appropriately, and that the rules for granting funding are as robust as they need to be to ensure that resources are expended on meritorious cases … The intended effects are to redirect resources onto higher priority areas, and to ensure that funding is only granted to eligible clients”.

The words “rebalance” and “redirect resources” would inevitably have involved real terms reductions in fees. Labour’s 2010 election manifesto said:

“To help protect frontline services, we will find greater savings in legal aid and the courts system”.

When this Government's consultation paper on legal aid was published, the noble Lord, Lord Bach, very fairly said, as he said tonight:

“It would have been hypocritical of Labour to say we would not cut anything. If we had, we would be rightly criticised”.

It is beyond doubt that the reductions in fees embodied in the order, which the noble Lord seeks to annul, do make it more difficult for the already hard-pressed community legal practitioners, mentioned in the Motion, to thrive and will make it more difficult for barristers, junior and senior, who work on publicly funded work. We agree entirely with the noble Lord, Lord Bach, that such practitioners carry out an essential service for those least able to afford it. This order does involve a 10 per cent cut in their fees and in the fees of barristers for publicly funded work across the field of civil and family law, not just social welfare law. It includes—I would suggest rightly—a limit on experts’ fees for the first time. It is going to be more necessary than ever for lawyers to practise as efficiently as they can and the harsh reality is that they will earn less from legal aid work. However, I am far less clear that their core viability is threatened.

We will be debating these issues—and the other issues about the scope of legal aid mentioned by the noble Lord, but not the subject of this order—in full when the Legal Aid, Sentencing and Punishment of Offenders Bill comes to this House shortly. I hope we will also be able to explore during the course of this Parliament other ways in which savings might be made without damaging the quality of the justice system. Progress is being made in exploring the achievement of savings through alternative dispute resolution procedures. I believe there is also room for improvement in the efficiency of the court system to produce savings. In the family field, I look forward with great hope to the final report of the Family Justice Review chaired by David Norgrove.

I would make it clear from these Benches that we have been, and are, heavily involved in discussions with practitioners and others , including many civil and family law practitioners, both barristers and solicitors, who have quite rightly expressed their concerns to us. We will examine closely with Ministers whether, and how far, the Bill achieves fairness and the protection of the vulnerable in the use of extremely limited resources. We would hope and expect that in due course, in a reviving economy, any gaps in provision that emerge will be refilled. However, that there must now be some cuts in fees is inevitable in these straitened circumstances.

In advancing this annulment Motion I suggest that the noble Lord and the Labour Party need to tell us what choices they would have made, or would make now, in cutting the legal aid budget. What were the cuts that he was intending to implement? How would they not have threatened hard-pressed community practitioners? Until those questions are answered fully, I suggest that, however regrettable the need for fee cuts in civil and family proceedings, it would not be sensible to divide the House on this Motion.

Crime: Youth Justice

Earl of Listowel Excerpts

Monday 24th October 2011 Lords Chamber

[Lord McNally]

I have not seen in detail the evidence given by my honourable friend. I suspect that almost in the order of things there are occasional irritations between a central and a local body. Throughout the life of the YJB, there have been various debates about where the onus of responsibility should lie. We believe that by slimming down the central role of the YJB, we can give youth offending teams more responsibility, in keeping with the Government’s localism policy. I will investigate whether the exact exchanges that Mr Blunt was referring to are available on the public record and what they contain, and if I can reveal them to my noble friend, I will.

[The Earl of Listowel]

My Lords, will the Minister thank the Secretary of State for the care with which he has listened to your Lordships’ concern across the House at this change? Does he know of any chief police officers who support the change? Does he understand my concern, as vice-chair of the All-Party Parliamentary Group for Looked After Children and Care Leavers, and as treasurer of the All-Party Parliamentary Group for Children, that this will not only be less safe for the public but will be a step back for those children in the criminal justice system and will mean fewer children going on to make a better life for themselves having had a bad start?

[Lord McNally]

I am well aware that the YJB is a much loved organisation and that a number of organisations have come to its aid. The noble Lord, Lord Warner, has voiced a number of concerns about this. We will return to this when the Public Bodies Bill returns to the House. I do not see that creating a new youth justice division within the MoJ, maintaining continuity and expertise, retaining the expertise of the staff who have worked on the Youth Justice Board, strengthening its focus on youth justice by establishing an advisory board on youth justice, and agreeing that Dame Sue Street, a non-executive director of the MoJ who has experience and knowledge of the youth justice system, should take a direct interest in youth justice matters, is in any way a retreat from the kind of commitments that the noble Lord wishes for.