Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Earl of Listowel and Lord Marks of Henley-on-Thames

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, Amendments 5 and 13 in this group are in my name and those of my noble friend Lord Beith, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. Our amendments would incorporate in the Bill a requirement that the Government provide necessary assistance for parties or potential parties to online proceedings, both claimants and defendants, who need help navigating them.

At Second Reading, the Minister promised:

“All our online services will be accompanied by appropriate and robust safeguards to protect and support users and to ensure that access to justice is maintained. In pursuing this approach, we recognise that there will be people who will need help accessing a new digital system”.—[Official Report, 14/5/19; col. 1506.]


He promised that the Government would put in place a comprehensive programme of support, which he described as “assisted digital”, which would include help for court users by telephone, online or by other electronic means or face to face. I pointed out in that debate that the Briggs review had stressed the importance of ensuring that access to justice was not compromised by the introduction of Online Procedure Rules. The Briggs report described the success of the online court as “critically dependent” on providing digital assistance for those who could not cope with computerised procedures.

The Constitution Committee, under the section of its report headed “Access to Justice”, argued eloquently that, with 5.3 million adults in the UK who could be characterised as “internet non-users” and with 29% of people over 65 having “zero digital skills”, not including those with limited digital skills or limited access to computers or broadband, the Bill makes no provision to safeguard access to justice in the way promised by the Minister at Second Reading. The committee recommended that,

“the Bill places a duty on the Lord Chancellor to ensure that adequate provision is made to enable access to online proceedings for those with limited digital means, digital literacy, or general literacy”.

We agree. At Second Reading, not only the noble and learned Lord, Lord Judge, but the noble and learned Lords, Lord Thomas and Lord Mackay of Clashfern, and the noble Lord, Lord Faulks, called for a statutory commitment to digital assistance.

Once again in this group of amendments, I reject the assurance that it is safe to rely on an extra statutory statement of intention by the Government. That is especially true on a matter of such importance to the success of this reform in terms both of access to justice and of the rule of law. This commitment could and should be clearly expressed in the Bill in a way that would make it much more difficult for future Governments to resile from it. I make no apology for putting forward a similar point in relation to designated assistance to that which I made in relation to filing documents on paper.

Our amendments are comprehensive but flexible. Amendment 5 would introduce the general duty to provide assistance to a party or potential party to proceedings under Online Procedure Rules in accordance with the detailed provisions set out in Amendment 13. That amendment would give the Government flexibility on who should provide assistance and how. Designated assistance could be provided either directly through HM Courts & Tribunals Service, under contract with outside organisations, or through the voluntary sector. It would be for the Minister to determine what assistance could be provided by telephone, what by electronic means and what in person or by other reasonable means.

Our amendments are concerned with outcomes rather than structure; different providers might provide assistance in different but complimentary ways. However, in determining what assistance must be provided, and by what means, the appropriate Minister is to be subject to an overriding requirement that he or she should consider that assistance sufficient to enable the party receiving it to have a reasonable understanding of the nature of the proceedings, of the procedure under the Online Procedure Rules, and of how to access that procedure. The assistance will have to cover the completion of online forms—easy for lawyers and officials, perhaps, but often a nightmare for lay litigants. It will also have to cover the kinds of evidence that may be necessary to support or establish a claim or defence. Designated assistance should also be available about the requirements and meaning of the Online Procedure Rules. The requirement for assistance on the kinds of evidence required to establish a litigant’s case is particularly important and will save parties, and ultimately the courts, considerable time and trouble. Far too often, proceedings fail or are delayed because litigants in person are unaware of the kinds of evidence they are likely to need to establish their cases. Assistance with this aspect at an early stage of online proceedings may do much to help reduce costs, delays and frustration.

Those who may say that this is a step too far in favour of the courts service providing legal advice are missing the point of these reforms. The days are over when the court office tells litigants to go and seek the advice of a solicitor on generic issues such as this, for precisely the reasons expressed by the noble and learned Lord, Lord Thomas, in relation to hiring expensive lawyers. If online proceedings are to work well and improve rather than stifle access to justice, they have to be targeted on enabling litigants without lawyers to use the courts successfully. Perhaps at this stage I should declare the same interest as the noble Lord, Lord Pannick, in relation to my being a lawyer in offline courts. That is the point of these reforms. It will be achieved only if parties are provided with the kind of help our amendments would require.

An important further point is that for litigants whose first language is not English and who have no familiarity with English, interpretation or translation should be available to enable them to understand proceedings in a language familiar to them. Far too often, the need for lawyers arises even in relatively simple cases where intelligent and capable litigants whose command of English is limited are obliged to instruct lawyers simply because they receive no help in understanding proceedings in their own languages. I beg to move.

[The Earl of Listowel]

My Lords, I support this amendment. I am a patron of the charity Best Beginnings, which has produced an application that can be downloaded from the NHS store for mothers around the births of their children. We are finding that it is tremendously effective in reaching black and minority-ethnic mothers in particular, and mothers on the lowest incomes. This has been developed with all the royal colleges, and it has taken time, money and a real strong effort from the charity over many years to develop such a good product that reaches out particularly to families for whom English is not the first language. One of the key selling points of this app is the videos attached to it. Mothers will see people like themselves talking about what it was like to experience depression or how to breastfeed and communicate with your infant. They can identify with those parents.

There is a tremendous opportunity here to make something which is really effective and helps litigants in person and people whose first language is not English to understand how to approach these matters. The noble Lord’s amendments are very important to ensure that there is a commitment up front to producing the best possible means for families and others to engage with the digital technology available and to get the best outcomes for them and their families.

Of course, with a product such as this—I am not pushing this one specifically—there are back-end analytics through which one can tell in an anonymous way exactly how often it is used and who uses it, so there would be plenty of feedback on how well it is working. I hope that the Minister can give a reassuring answer to the noble Lord.

Criminal Justice and Courts Bill

Debate between Earl of Listowel and Lord Marks of Henley-on-Thames

Wednesday 22nd October 2014 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I have two amendments in this group—Amendments 117A and 117B. I should have said at the outset today that the amendments in my name are all supported by my noble friends Lady Linklater, Lady Harris and Lord Carlile, who has just spoken. My noble friends would have added their names to the amendments had Monday not been such a busy day.

My first amendment is to the same effect as Amendment 109 in the names of the noble Lords, Lord Ramsbotham and Lord Beecham, and would prevent girls and younger boys—that is, those under 15—being held in secure colleges. The proposal for the first secure college at Glen Parva, just east of Leicester, is, as my noble friend made clear, a pathfinder proposal. It is intended to be experimental. I suggest that it cannot be right to experiment in this way with the lives of girls and young boys in custody. Widespread and deeply felt concerns are unanimously expressed in the many specialist briefings we have received, notably from the Standing Committee for Youth Justice, the Howard League for Penal Reform, the Children’s Rights Alliance for England and the British Medical Association, to whose impending report the noble Baroness, Lady Finlay, referred earlier. All oppose holding girls and younger boys in the same institutions as older boys.

The numbers alone are extremely telling. As we all are now aware, there are only 1,100 offenders in custody in the secure estate. We have made it clear many times how far we regard this as a great achievement of this Government in the field of youth justice—a point which the noble Earl, Lord Listowel, made earlier today. However, only about 45 of those young offenders are girls and, although the relevant numbers may vary, I think that fewer than 40 are under 15.

In the consultation paper on the proposed secure college rules, the Government have made it clear that they propose that there should be a rule to ensure separate accommodation for girls and boys. As my noble friend Lord Carlile just mentioned, the Government have also made it clear that the plans for Glen Parva disclose an intention that girls and younger boys should be housed in separate blocks, segregated from the main body of the secure college by a fence. However, they will share with the older boys the main education and health block at the site.

At the meeting the other day which my noble friend the Minister helpfully held with Peers to discuss secure colleges, a point was made that officials had seen co-education working well within the secure estate—boys and girls working together on, I think, decoration. That may be. However, the risks posed of occasional but very serious incidents occurring in such circumstances are severe. Furthermore, I do not believe that the Government have taken fully into account the inevitable feelings of intimidation and isolation likely to be felt by a small number of girls in an institution containing a large number of older boys. They will be a tiny minority at best, and the same goes for vulnerable younger boys. Nor should one forget that a large proportion of the girls have been victims of sexual abuse by older men. It is entirely wrong, I suggest, to force through this mixed education experiment. I believe that the experiment itself is unacceptable in this regard.

Places are available in secure children’s homes for this very small group of children. My noble friend and the noble Lord, Lord Beecham, speaking for the Opposition, were in rare accord in that both spoke well of secure children’s homes and of their future. The Government assure us that they intend to keep open secure children’s homes. They are small and provide a nurturing environment. Many provide a highly successful educational content. During the Recess I visited Clayfields House, a secure children’s home in Nottinghamshire. That home has secured a remarkable success with children in avoiding reconviction upon release. At Clayfields they provide not only education, achieving truly remarkable exam results in very short periods of time, but also effective vocational training, arranged by a local private sector employer, in motor mechanics and construction trades. It is a facility shared by the secure children’s home with local schools and others.

I fully appreciate that secure children’s homes are expensive, but we are talking here about housing a very small number of children in an appropriate environment. We are talking about turning around the lives of a group of extremely damaged children. If we do not spend now the resources necessary to ensure that they are held in suitable surroundings and given the opportunities afforded by a period of personal attention and tightly focused education, helping them towards gaining employment later, then we face the far greater financial burden of considerable extra expenditure in the future as they spend their lives in and out of the criminal justice system and dependent on the public purse for social services and welfare benefits.

My second amendment in this group is similar in terms to one that I tabled in Committee, which was kindly mentioned with approval by the noble Lord, Lord Ramsbotham. This amendment sets out the principles that should underlie the foundation of any secure educational establishment. I say again that we are completely in support of the Government’s intention to introduce more and better education for young offenders in custody. The present educational services in Feltham and other young offender institutions are inadequate and ineffective. The lack of education and training for the world of work is one reason for the appallingly high reoffending rates for young people. However, we should not lose sight of the fact that young offenders who are in custody are, for the most part, deeply troubled young people. Very often, their contact with the education system prior to their being sentenced has been limited at best.

The evidence convinces me that the best way in which to provide education for young offenders and improve their chances of rehabilitation is to provide establishments that are small enough to guarantee individual attention from staff; are easy to visit for their families; are designed to assist rather than impede continuity of supervision following release; and offer education and other facilities that are sufficiently focused and supportive to ensure that the different needs of individual offenders with different problems, and who are sentenced and due to be released at different times, can be suitably met.

In this regard, I have added to my Committee stage amendment the need to ensure adequate mental and physical healthcare facilities for young offenders. The need for such extra attention to these issues has been highlighted by the BMA briefing on its impending report on these issues, and my noble friend Lord Carlile has spoken about that. The BMA points out, tellingly, that the state takes over responsibility for these offenders precisely at the point when their needs are most acute. The BMA’s support for the principles of these amendments is only one area of support among many. I again ask the Government to reconsider their proposals, to look at the principles advocated by all those who have done years of research upon this subject, to think again about the Glen Parva proposal and to reject the idea that girls and younger males under 15 should be held in detention in that institution.

[The Earl of Listowel]

My Lords, it seems wiser not to keep girls in this proposed new pathfinder institution, in part because, as I said in Committee, some of them will be pregnant, giving birth or just have given birth. If they are to be housed there in those conditions, the utmost consideration needs to be given to their needs because, as a society, we are becoming increasingly aware that the attachment that a mother makes to an infant is vital to that child’s later life. Indeed, I am sure that it is often because their mothers were in poverty, alcoholic and unable to form a bond with their child that these young women have followed this course in life. Whatever health provision is offered at the institution to these girls—these mothers—their perinatal needs should be considered.

My noble friend makes an extremely important point about access to psychotherapy for staff members. So often that can be seen as a luxury but, given the relationships that members of staff make with these troubled children, such access is the absolute key in getting the best behaviour from them and avoiding the use of force. If staff can build a good relationship with these troubled young people, force will not be necessary and can be avoided. Staff need expert support in thinking about these children and the relationships they form with them. I therefore thoroughly endorse my noble friend’s point.

Finally, the Children’s Commissioner has produced important reports about the sexual exploitation of girls by gangs. Thought needs to be given to the implication for girls who are placed in establishments where large numbers of gang members may be around. I am thinking of the case of a 14 year-old girl who was raped by a gang member, became pregnant and was very concerned to keep her anonymity. It should be possible to keep girls’ anonymity so that a gang member cannot pass information back to another gang member and say, “The girl you knew is now pregnant”, and so on. That can be a difficult scenario.

Criminal Justice and Courts Bill

Debate between Earl of Listowel and Lord Marks of Henley-on-Thames

Wednesday 22nd October 2014 Lords Chamber

[The Earl of Listowel (CB)]

The amendment stands in my name and in that of the noble Lord, Lord Carlile of Berriew. I am afraid that it is a little technical, and I may have to speak for seven or eight minutes. I apologise for that, and I will try to be as quick as possible at this hour.

Amendment 122A proposes a solution to the problems that we face concerning anonymity for children in court proceedings. It creates a default anonymity into adulthood, and allows the court to remove this where it considers necessary. I welcome the amendments that the Government have tabled in this group, but I feel that they do not go quite far enough, and I hope to persuade your Lordships, and the Minister, that perhaps he might like to look at this area again before Third Reading and table something to meet some of the concerns that I, along with the noble Lord, Lord Carlile, are about to raise.

Since the Children and Young Persons Act was passed in 1933, children in court have been entitled to remain anonymous, whether they are defendants, victims or witnesses, and Sections 39 and 49 of that Act impose different reporting restrictions, depending on whether a case is in the youth court or a different court. These prevent information being published that could lead to the identification of a child. However, whether those restrictions must be respected after a child turns 18, when proceedings have been concluded before then, is a complex question, which seems to have caused great confusion.

So far as I am aware, media organisations have generally respected reporting restrictions even after a child has reached 18, where the proceedings had concluded before then. So children who had historically been involved in court proceedings have not been named in practice, even after they have reached adulthood, whether they were victims, witnesses or defendants.

However, in a recent judgment, Lord Justice Leveson interpreted a Section 39 order to expire once a child reaches 18, as there is nothing specifically stating that anonymity should extend into adulthood. The same analysis would apply to Section 49. The case, which is being appealed, has serious consequences. First, the implication of the judgment is that criminal courts have no power to provide child victims, witnesses or defendants with anonymity into adulthood. As Lord Justice Leveson himself pointed out, this leaves child victims and witnesses with less protection than vulnerable adult victims and witnesses, who can be granted anonymity. Secondly, because the judgment has drawn attention to the law, it is likely that we will see children who were historically involved in court proceedings being identified by the media after they reach 18.

The question that Parliament now has to answer is what to do about this state of affairs. In Committee we debated one solution to the problem, and amendments were tabled that would have set it in statute that Section 39 orders and protection under section 49 would last for a child’s whole life, subject to applications to the contrary. The Government said that there were technical flaws with the amendments, and promised to return to the issue on Report. Last week the Minister, the noble Lord, Lord Faulks, duly tabled Amendment 139, which sets out an alternative. It would create an entirely new order, which could provide child victims and witnesses with anonymity into adulthood—but only if they can show that failure to do so would diminish the child’s evidence or co-operation in the case. Defendants cannot be the subject of the new order at all.

There are two serious problems with the Government’s amendment. First, it introduces a high test, which victims and witnesses must pass if they are to access this anonymity; that is, the test of diminished evidence and co-operation. Sections 39 and 49 of the Children and Young Persons Act do not require a child to meet any kind of test to be granted anonymity. As I have said, prior to the Leveson judgment, Sections 39 and 49 seem generally to have been respected by media organisations after a child turned 18. Why should it now be necessary for victims and witnesses to meet this test, before being granted anonymity? I feel it is unhelpful. Coming forward as a victim or a witness takes real courage, particularly as a child. Making anonymity harder to access is unlikely to encourage anyone to come forward.

My second concern with the Government’s proposal is the distinction that it makes between victims, witnesses and child defendants, and the fact that it excludes children who are defendants from the new anonymity orders. Their amendment would leave criminal courts with no means to provide a child defendant with protection after they turn 18. The only way for a child defendant to remain anonymous after the age of 18 would be for a civil injunction to be sought. This is unsatisfactory.

I see that the rest of my briefing paper has now disappeared from my iPad, so I shall refresh it and hope that the briefing will return. I may have to ask the noble Lord, Lord Carlile, to take my place for a moment. I have it back now; there is a little lacuna in it, but I do have some more of it here. I apologise for the break, my Lords.

The Government have made clear that they consider reducing reoffending a priority, particularly among children. This is a laudable aim, which I am sure that we all fully support. I believe that achieving that aim will be hindered by refusing anonymity to child defendants as soon as they turn 18. My Amendment 122A puts forward an alternative solution to the problem— one that seeks to overcome the difficulties with the Government’s proposals. Like the government amendment, my amendment introduces a new order that would provide all children in court proceedings with anonymity into adulthood, unless an application were made to vary it. It therefore reverses the burden.

My amendment would be available to child victims, witnesses and defendants, and does not contain the high-threshold test included in the government amendment. Like the government amendment, my amendment would still require the court, when making an order, to consider,

“the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”.

It cannot therefore be said to constitute an undue interference with open justice or press freedom.

We should not underestimate the impact of this matter on child victims, witnesses and defendants, or on the operation of the youth justice system itself. I very much hope that, for the reasons that I have outlined, the Government will agree that my proposed solution is a more productive way forward, and accept my amendment.

I now turn briefly to government amendments 140 and 141, which also relate to anonymity for children in court. I welcome the principle of ensuring that reporting restrictions cover social media, which I understand is the intention of those two amendments. I note that Amendment 140 would prevent Section 39 of the Children and Young Persons Act applying to proceedings in criminal courts. Can the Government explain why this provision is necessary? I imagine that they intend to bring Section 45 of the Youth Justice and Criminal Evidence Act 1999 into force to replace Section 39. Can the Minister confirm whether that is the case, and if so, give us an indication of when they plan to bring Section 45 into force? If I am speaking too quickly, I am very happy to repeat anything that I have just said.

The government amendments do not mention Section 49 of the Children and Young Persons Act 1933, so far as I can see. Section 49 provides default anonymity for proceedings in the youth court. I am anxious that this is preserved. Will the Government reassure us that they have no plans to alter the default anonymity in the youth court and clarify whether their amendments extend Section 49 so that it explicitly covers social media?

To go back briefly over what I have said, I am concerned that when a person who has committed a crime in his childhood turns 18 and perhaps goes into higher education or university or starts a career, he may find that the facts of his past emerge, which may cause great impediment to achieving success in his career and seriously hinder his rehabilitation. I would appreciate reassurance that the Government have considered that point. I look forward to hearing the Government’s position on these matters. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in this group I will speak only to Amendment 122AA standing in my name. This amendment deals with preserving the anonymity of children who are subject to a criminal investigation but who have not yet been charged with any offence. The lack of anonymity for such children is an anomaly in the law as they are protected from being named once they are charged, as the noble Earl, Lord Listowel, has just explained.

This anomaly was to be addressed by Section 44 of the Youth Justice and Criminal Evidence Act 1999, which would apply to reporting in respect of persons under 18 after a criminal investigation into an alleged offence has begun. However, that section has not been brought into force. My amendment would amend the section to add its application to sound and television broadcasts or public electronic communications networks and would bring it into force on the passing of the Bill.

The undesirability of the present position was graphically illustrated when the Sun published the name of the boy later to be accused of murdering the Leeds schoolteacher Ann Maguire before he was charged. It is, of course, now illegal to name him as he is a party to court proceedings. It is obvious that if a child is named pre-charge, that undermines any anonymity later afforded by court proceedings.

In Committee, my noble friend the Minister said that,

“in the light of the significant changes to press self-regulation recently introduced by the Government … Both the industry and the Government agree that independent self-regulation is the way forward. … We should therefore give this new approach a chance to succeed”.—[Official Report, 23/7/14; col. 1198.]

I regret that I do not share my noble friend’s optimism as to the present effectiveness of self-regulation. Furthermore, even if press self-regulation may work for newspapers in future, it has no effect on preventing pre-charge publication in the social media.

This is, of course, a probing amendment. It has been agreed that Section 44 will not in fact be brought into force unless it is debated by both Houses and subject to affirmative resolution. Nevertheless, I would ask my noble friend to make clear in this debate whether he agrees that pre-charge anonymity ought to be guaranteed—and, if so, will he please say how he proposes that it should be achieved?

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

Debate between Earl of Listowel and Lord Marks of Henley-on-Thames

Wednesday 26th October 2011 Lords Chamber

[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.