Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 3 months ago)
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Lord Thomas of Gresford
My Lords, I am glad to follow the noble Lord, Lord Martin, in what he has just said because I am concerned about the relatives of the victims of this terrible disease. We were addressed here in one of the committee rooms in the House by the Greater Manchester Asbestos Victims Support Group. One of the people who came with that group was Mrs Marie Hughes, who comes from my home town of Wrexham in north Wales. Her husband had worked as a youth in the Brymbo steel works, which is close to the town, but had gone into teaching and died of this disease at the age of 57 when he was head teacher. It had afflicted him a great deal later. I am very familiar with the Brymbo steel works, as was, because I worked there briefly during vacations as a young man.
What she told us about the effect of the disease upon her husband was that while attempting to come to terms with his diagnosis and his bleak prognosis he underwent gruelling, unrelenting and debilitating courses of chemotherapy, intensive radiotherapy and invasive surgery in the form of an extrapleural pneumonectomy, which involved the removal of a complete lung, half the pericardium and half the diaphragm in a desperate effort to delay the cancer’s ultimate grasp. He lived in constant pain and it was a vain attempt to improve the quality and extend his life. By the final three months, tumours had also developed on his spine, resulting in paralysis from the chest down, and all this while fighting to breathe. That is the effect of this disease on an individual who suffers it, years after he had been exposed to asbestos. Of course, from diagnosis to death is quite a limited period with mesothelioma: it is only about nine months, leaving behind a widow and a family who have to live with what has happened to their loved one.
I am very much in support of the amendment that the noble Lord, Lord Alton, has moved with such great force, and the supporting speeches, because I have seen the effect on a widow of this terrible disease.
Lord Bach
My Lords, I am proud to have been allowed to put my name, as an opposition Front-Bencher, on this amendment, which has been moved so well by the noble Lord, Lord Alton, and spoken to so well by all the other noble Lords.
Industrial disease and exposure to toxic substances; employers acting negligently, in breach of their duty to employees, and often causing them great harm; and then outlawing and ensuring redress for these violations speak to what I consider the historic mission of the party I belong to and of the trade union movement. I know they are subjects that are of huge interest and concern to many people beyond that.
Health and safety in the workplace is something that we in these Houses of Parliament should be as proud of as we were of banning slavery. Instead, this year the Prime Minister chose for his first speech a comment that hoped that this was the year that killed off the health and safety culture forever. He cited a case where a teacher made children wear safety glasses to play conkers—a myth that the Health and Safety Executive cites as a prime example of the kind of mischief played by some to denigrate health and safety.
Health and safety in the workplace has nothing to do with conkers. Lack of health and safety has led to tens of thousands of avoidable deaths in the workplace. These amendments would ensure that in these cases—they have been described in detail and I am not going to go into that detail—employers pay their full redress and employees who have been harmed get their full restitution.
These are serious cases. There is no compensation culture here. Whereas motor claims increased by 43 per cent between 2007 and 2011 to nearly 800,000—which is why we on this side back my right honourable friend Jack Straw’s campaign—employer liability claims were down by 6.6 per cent to one-tenth of that. No one is faking mesothelioma, or coal lung. This is as far from the problems of undiagnosable whiplash as we can possibly get.
Industrial disease provides the most emotive and powerful examples of how health and safety is something we have had—and still have—to fight for. Despite the fact that we know so much about the clinical aspects and the impact on individuals, communities, and families, asbestosis is still being fought over in the courts. Insurers, sometimes not to their credit, are still fighting liabilities. Why is there this difference between these highly contested, difficult-to-prove cases that we have been debating tonight, for which people have been fighting year after year and, on the other side, clinical negligence? Why is there no sympathy from the Government for what are pretty analogous cases?
Do they not deserve a deeper consideration of the economics of bringing these cases? If the argument is proportionality, of course there are problems with proportionality when you are fighting some of the entrenched vested interests, such as the insurance lobby, and companies for which it is difficult to prove ownership and liability years after the event. We are at risk of abandoning these cases and these victims, not because they cannot bring the cases any more, but because they will not find lawyers to bring them. These are families and widows of workers who were exposed through no fault of their own.
I have in front of me the comments of a lady, Mrs King, whose husband died of mesothelioma. She says, “My husband died of mesothelioma as a consequence of asbestos exposure during the course of his employment. David and I received considerable assistance from the Derbyshire asbestos support group”. She arranged to see her constituency Member of Parliament. She received letters from her Member of Parliament, and wrote to him as well. I have to say that that Member of Parliament showed real concern in those letters about the tragedy that she had undergone. I pay tribute to him for the sympathy which he genuinely showed.
However, the exchange of correspondence, in Mrs King’s view, raised a number of points. The first was that the Member of Parliament seemed to accept that, in certain aspects, we are going to an American-style system. Mrs King’s view is that is not a good thing. That relates to a successful claimant having to pay some of their damages in costs. Secondly, the Member of Parliament, according to Mrs King, said that if a claimant loses the claim he will pay no legal costs at all. She points out that that is wrong: the losing claimant would pay disbursements. Thirdly, the Member of Parliament says it is not about whether claims will be brought, but about what lawyers get paid, and who pays those costs. Mrs King’s comment is that there must surely be genuine borderline cases today that will not be brought tomorrow because lawyers will not take the risk of not being paid.
Fourthly, Mrs King comments that the Member of Parliament says that defendants with a very strong defence pay out because of the costs they may incur if they lose. Mrs King does not understand that. She asks why they would settle in a case where they have a strong defence: if they have a strong defence, they will not lose. Lastly, the MP says that he may be cynical, but lawyers will not bring cases because they will not be paid as much as they are now. Mrs King thinks that that misses the point, the point being that lawyers will not bring cases at all if they run the risk in difficult, but genuine, cases that, if they lose, they will not get paid at all.
The Member of Parliament is in fact the right honourable gentleman the Lord Chancellor. As I say, he showed great sympathy for Mrs King and her predicament, but those were his responses and I suggest, respectfully, to him and to the Minister, that they are out of touch and do not meet the seriousness of the situation that has been described in Committee tonight.
Mrs King finishes by saying, “The chances of people like me or my husband being able to get justice would all change under the Government’s proposals. Even if my case has reasonable chances of success, I will struggle to find a lawyer to take it on unless it is virtually certain to succeed. The lawyers think the risk of losing is too great for the amount they will get paid for taking that risk. They simply will not take the case on”. That is the nub of this particular argument: people who have suffered a great deal will find that they will not be able to have their cases argued because of changes that are made. What I think that everyone who has spoken in this debate so far wants to see from the Government is a bit of flexibility, because these cases really stand out on their own.
Lord McNally
I would have to take advice on that. On that and the point raised by the noble Lord, Lord Avebury, I shall write to the noble Lords, as well as those who have taken part in this debate, to update them on where discussions in DWP have reached.
It is very difficult to overestimate the personal damage suffered by the individuals who have been highlighted. The Government are trying to reform the civil legal system in a way that retains access to justice. It was said that litigants would be responsible for defendants’ costs if they lost; this is not true. QOCS will apply in this kind of case, so that litigants will not be susceptible to defendants’ costs.
It is a difficult area, but our overarching aim is to create an architecture which squeezes inflationary costs out of the civil justice system. Without our reforms, high and disproportionate costs in civil litigation will continue.
Lord Bach
I was not claiming that losing claimants would have to pay winning defendants’ costs—I accept that QOCS would come into consideration; I was saying that a losing claimant would have to pay their own disbursements in those circumstances, which is a different issue. That was the point that I was trying to make.
Lord McNally
I take that point.
I think that I have said all that I am going to say on this. It is a tough case, but it would be just another concession within the range of issues that we have discussed today. The noble Lord, Lord Bach, almost gave the game away in saying, “Well, you’ve made the clinical negligence concession; why can’t you make this concession?” It would then be another, and then another, and then another, and Jackson would disappear.
Lord McNally
My Lords, I do not think that it is analogous. The other actions that the Government are taking address some of the issues that have been raised tonight. We are exploring other initiatives that we can take. I do not think that it is necessary, therefore, to make the exception that is being argued for. It is admittedly being argued for very powerfully, but it is not enough to convince the Government.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 3 months ago)
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Lord Phillips of Sudbury
My Lords, I have my name to this amendment. I confess that I have been impressed by the points made by the noble Baroness, Lady Mallalieu, and the noble and learned Lord, Lord Goldsmith.
It surely is beyond argument that with the cuts in scope to legal aid this Bill will bring about, the need for the citizens advice bureaux and the law centres will be infinitely greater than it already is. If we were to have this discussion in the other place, there would scarcely be an MP who would not automatically come to the aid of the citizens advice bureaux in particular, because they rely on them: they send people from their surgeries to their local citizens advice bureau to get the advice that the MP cannot give.
The numbers of cases dealt with by the CABs in a year are measured not in tens of thousands or hundreds of thousands but in millions. I urge my noble friend to have regard to this simple reality. To put it in scale, I think there are 500 full-time CABs, with something like a further 3,000 CABs sharing premises in libraries and council offices and so on; so 3,500 of them, and probably 60 or 70 law centres now, a declining number; but they are on the front line of citizen advice. They are indispensable in the truest sense of the word.
The fact that so much of what they do is done by voluntary assistance—and very many local solicitors are volunteer CAB workers—only multiplies the value of what they do financially. The £20 million that the Government gave a couple of months ago to tide over the CABs in a funding crunch must be the best value £20 million the Government have spent on anything in the last year. I repeat, the multiplier effect of the voluntary effort put in to CABs makes every pound of support given of much greater value.
I do not think it needs labouring, it is just that I feel so passionately about this. I declare an interest that I was for 20 years legal adviser to the National Association of Citizens Advice Bureaux, and my firm still does work for them. I have seen for myself from the inside and as an occasional volunteer the absolutely essential front-line work that they do. Frankly, to think of this country without the CABs is to contemplate a nightmare. My noble friend the Minister may say, “That is an exaggeration; there is no chance of that”. Well, put us at ease by allowing this amendment. Indeed, take it away and contemplate putting some obligation alongside the discretion.
I also know that Citizens Advice has to plan its finances on a solid future framework. It cannot hope each year that somehow the money will tip up. It needs certainty of supply, as do the independent law centres. We all understand the financial rigours under which the coalition Government are having to work but I cannot urge more strongly the fact that the task of the CABs and the law centres, in the straitened circumstances which will prevail after the cuts in legal aid brought in by this Bill, will be ever more urgent in an ever complicating society.
Lord Bach
My Lords, until now, I have been happy to support every amendment moved by the noble Lord, Lord Thomas of Gresford, but I have to say that on this one I find that I cannot give my support. I agree with the noble Lord, Lord Phillips of Sudbury, that we are incredibly lucky in this jurisdiction to have a not-for-profit sector, as well as those solicitors who still do this work, which provides at very little cost a terrific service for people who otherwise would not get access to justice. They do so largely due to the good works of a lot of Lord Chancellors in the past but not least the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place now but was here earlier, who, in 1995 I believe, made it possible for law centres and CABs to receive legal aid and thus give the kind of advice that changes lives. I agree absolutely with what the noble Lord, Lord Phillips, has said. If that should disappear, it would be one of the scandals of the first few years of this century.
If this amendment is intended somehow as an acceptable substitute for taking whole areas of legal aid, particularly social welfare law, out of scope, it has the potential be dangerous and short-sighted. I do not doubt for one second the good intentions and good faith of those who have put forward this amendment. But why do I say that? It seems to me to play entirely into the hands of a Government. It could be this Government or a future Government. I agree absolutely with my noble and learned friend Lord Goldsmith on this. Most likely the Lord Chancellor would be at liberty to pay whatever grant he wanted or no grant at all because the power is entirely discretionary as the amendment is drafted.
We know that there are a multitude of not-for-profit advice centres. Well over 500 CABs, 60 law centres, and hundreds of small, sometimes specialist, centres deal with the type of issues with which Part 1 is concerned. Some receive legal aid and some do not. I agree with the noble Lord, Lord Shipley, that it is not a perfect system by a long way. Given his background, what he has to say about localism is of huge interest, which I know from being the Minister some time ago. But at least under the present system, the Legal Services Commission grants contracts for legal aid for a length of time and it is not the Lord Chancellor’s job to grant those contracts. It is not perfect by a very long way but the contracts are intended to cover the country. At present, those contracts are one step removed from a politician’s stroke of the pen. In my view, that is an important consideration.
Who will the Lord Chancellor fund? Of course, I am talking about a Lord Chancellor in the future. I am not talking about now. Will it be those he likes? Will it be those that are in his part of the country? The Lord Chancellor may be a Member of Parliament, as he is now. Will it be those who do not often sue the state or do not offend him or the Government? He could turn the tap off at any moment and the organisations would have no way of planning their present and their future. There would be no certainty.
One of the criticisms made by the not-for-profit organisations I certainly remember hearing as a Minister was, “Look, there is not enough continuity. We do not know about the future. How can we plan and become efficient organisations without knowing how long we will get contracts for?”. There may be not be enough continuity in the present system, but necessarily there would be no continuity under the system being mooted in this amendment. Frankly, it is an open invitation to a new Lord Chancellor, under pressure from the Chancellor of the Exchequer—and every Lord Chancellor I have ever heard of or spoken to has been under that pressure from the day he gets into office—just not to make the grants, and that will be it. The not-for-profit sector will collapse. I ask this question: if grants are the solution, where is the money coming from? If the money is there, why take social welfare law out of scope in the first place? Why not provide the rather limited, perhaps too limited, resources for social welfare law that are available at present?
Of course we are open to discussion and further debate about this, but what we want to happen is that those areas of the law—in particular, social welfare law, which it is suggested should be taken out of scope by the Bill—should not be taken out of scope; they should remain in scope. The system does not work badly; in fact, I would go so far as to say that it is working well. There is no need for this. If I was the Minister tonight, I would bite off the arm of the noble Lord, Lord Thomas, and accept this amendment saying, “Yes, I agree”. That is because, as it is presently drafted, I am afraid that it plays much too much into the Government’s hands.
Lord McNally
I will have to promise to write to the noble and learned Lord.
Lord Bach
The Government may not have done that analysis, but the Law Centres Federation and the CABs have. I do not have the precise figure in my head, but law centres would do about 70 per cent less work because of the matters that are taken out of scope. It would not be quite as much, of course, in the case of the CABs, but they would have a much reduced caseload which would make their existence in some cases doubtful. That work has been done by the agencies, but I agree with my noble and learned friend that the department should perhaps confirm those figures or come up with some new ones. The agencies are going to lose work.
Lord McNally
Of course they are going to lose work in the areas that are being taken out of scope. That is self-evident. I make no complaint about it, but we continually have brandished at us reports from organisations with, to put it bluntly, an interest in the issue. It can at least be examined thoroughly. Organisations which have been involved mainly in areas which are being taken out of scope will find that that work is no longer there, which will have an impact on some of them. However, they will still be free to bid for work which is within scope. We can go round that time and again.
Lord Carlile of Berriew
I hesitate to interrupt my noble friend, but we are curtailing the debate and what he has said is very helpful. Can he assure the Committee that, in preparing an amendment, the Government have in mind the importance of the duty solicitor scheme and of there being a process of integrity in the police station, so that suspects do not choose to refuse to answer questions in interview because they are not properly represented? Can he also assure us that the Government will bear in mind the risks of evidence obtained in police stations being rejected by courts because of a failed and unfair procedure in those police stations? Those of us who started practice at the Bar would say to my noble friend that there were long periods in our early practice when we cross-examined police officers about what used to be called “verballing”. I am sure that my noble friend understands the expression. I hope that whatever amendment is introduced will ensure that we do not have to return to the bad old days before the enactment of the Police and Criminal Evidence Act 1984.
Lord Bach
The Committee will be relived to hear that I will not be making the speech that I intended to make. I absolutely agree with what the noble Lord, Lord Carlile, has just said. I, too, started practising in those days. What happened, in effect, was that guilty men got off—that is the truth of the matter—because, after a while and some notorious cases, juries were not inclined to believe on the basis of confessions alone. The Conservative Government of the time deserve enormous credit for passing one of the greatest Acts of Parliament in criminal justice, the Police and Criminal Evidence Act, which has worked pretty well, as the noble Lord, Lord Macdonald, was about to say before he was so rudely interrupted by the Minister.
Lord Macdonald of River Glaven
How did the Minister know what I was going to say? He is quite right. I said this at Second Reading. I agree with everything that has been said. The Minister has given a clear indication that the Government will withdraw the proposal that there should be some future means-testing. In those circumstances, the Government’s response is appropriate. Let us see what the amendment will be and, if necessary, come back on Report if it does not meet our objections. I hope it will.
Lord Bach
Of course I agree with that. The only phrase that worries me slightly is Clause 12(2):
“The Director must make a determination under this section having regard, in particular, to the interests of justice”.
I am not sure what that adds to what happens at present. That is the only point that I wanted to make. I thank the Minister for his attitude towards this clause.
“( ) individuals who are involved in investigations which may lead to a caution or warning,”
Lord Bach
My Lords, this concerns a very simple point, or rather a short one—I am not entirely clear whether it is simple. I would be grateful for the Minister’s response to this.
Clause 14 is headed “Advice and assistance for criminal proceedings”. Subsection (1) refers to regulations providing,
“that prescribed advice and assistance is to be available under this Part to an individual described in subsection (2) if … prescribed conditions are met, and … the Director has determined that the individual qualifies for such advice and assistance”.
That is fine. Subsection (2) sets out in paragraphs (a), (b) and (c) three classes of individuals who will be entitled to this advice and assistance. My amendment would add a fourth class of,
“individuals who are involved in investigations which may lead to a caution or warning”,
as opposed to,
“individuals who are involved in investigations which may lead to criminal proceedings”.
I admit that it is a long time since I practised, but I understand that people who are cautioned are liable to have that caution recorded and for it to be on their record for a period of time. In those circumstances, would it be better for that class of person to be granted advice and assistance, as are the persons covered by paragraphs (a), (b) and (c)? I will not argue with the Government if there is a good reason for not including that class of person. I just want to hear why there is not a fourth class of person covering,
“individuals who are involved in investigations which may lead to a caution or warning”.
I beg to move.
Lord McNally
My Lords, as the noble Lord has said, Amendment 103 would allow the Lord Chancellor to provide specifically for criminal legal aid under Clause 14 to be available for individuals who are involved in investigations that may lead to a caution or warning.
Clause 14 creates a power to make regulations that prescribe what advice and assistance must be made available to individuals in connection with criminal proceedings if prescribed conditions are met and the director has determined that a person qualifies for such advice and assistance in accordance with the regulations. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999. Advice and assistance for criminal proceedings is distinct from criminal legal aid provided under Clause 12 for individuals in custody.
Under the Access to Justice Act 1999, the Legal Services Commission has the discretion to decide what advice and assistance it considers it is appropriate to fund. Under the Bill, this discretion rests with the Lord Chancellor. In making a decision, the Lord Chancellor will take account of any legal obligations including the requirements of Article 6 of the European Convention on Human Rights. Both sets of provisions leave the criteria for making a determination to secondary legislation.
The proposed amendment would allow the Lord Chancellor to make provisions that legal aid may be available for individuals who are involved in investigations that may lead to a caution or warning. We believe that it is unnecessary to add the suggested amendment as provision could already be made under Clause 14(2)(a). If an individual is involved in an investigation that may lead to a caution or warning, that individual must be involved in an investigation that may lead to criminal proceedings. Cautions and warnings are used, where it is appropriate to do so, to divert certain offenders from the criminal justice system as an alternative to instigating criminal proceedings. For an individual in custody at a police station, or other premises, legal aid will be provided under Clause 12. I therefore invite the noble Lord to withdraw the amendment.
Lord Carlile of Berriew
My Lords, I shall start by making a few comments about my professional experience and then look at the broader picture. In recent years, the bulk of the publicly funded work I have done at the Bar has been in very high-cost cases, as they are called—very large fraud cases. I have seen a procession of those cases in which substantial funds have been restrained and not used for the costs of the case. Confiscation proceedings have followed in those cases where there have been convictions. In some cases, they have been long drawn-out. The funds have rarely been confiscated in full.
In one case I can think of, the confiscation proceedings lasted two or three years and, in the end, the defendant was returned £30 million, I believe, because the wrong procedures had been used by the prosecution. In another case from my experience in recent years, a defendant who was later sentenced to nine and a half years’ imprisonment and made the subject of a confiscation order in excess of £130 million remained, throughout the period leading up to and during the trial and for a considerable time after—as far as his family was concerned—living in one of the finest apartments in central London, worth many millions of pounds. Nobody was able to lay a hand on any of it. By the time the confiscation proceedings were over, such a miasma of transactions existed that that substantial property was immune from any confiscation. There are current cases, about which colleagues have told me—and without referring to any of my own current cases—in which a similar picture may emerge. This is an issue on which the Bar Council, of which I am an elected member, as I said in an earlier sitting, has given a great deal of attention. I should say that on this subject at least it might be worth listening to the Bar Council. Senior members of the Bar act for the prosecution and defence in every one of these cases, bar a very few.
The intention of the Bar Council in proposing amendments, believe it or not, was to save legal aid funding and to create a situation in which people’s own money, subject, of course, to proper controls, was used to pay for their own defences. It would create a situation in which a defendant, who at present may be able to relax while public money is expended on abuse of process hearings, dismissal hearings, disclosure hearings, and all kinds of satellite proceedings, costing him nothing, may have to control the spending on his defence. It seems a very sound principle that the defendant who has resources should have some control over the spending on his or her defence.
Furthermore, restraint orders are on the increase, as the General Council of the Bar has pointed out to the Government. In 2009-10 the CPS made 1,549 restraint orders. That had increased to 1,641 by 2010-11. The estimated value of assets under restraint in 2010-11 was as much as £744 million, every penny of it being money available to be spent on criminal defence but not so spent. Any legal advice and representation in those cases is charged to the legal aid fund. These are cases which, on the latest available figures—from 2005—caused the expenditure of more than 50 per cent of Crown Court legal aid, although the cases amounted to only 1 per cent of the cases. The average cost per case for those cases in 2003-04 was £2.6 million, with the average trial lasting 67 working days. These are very big cases, which are being unnecessarily funded from public funds.
A defendant accused of serious fraud may, for example, have £1 million on deposit in a bank account, frozen under a restraint order. An order may be made for the funds to be unfrozen to pay his children’s private school fees. I was involved in a case recently in which exactly that happened. The defendant was unable to fund his own defence but he was able to fund his son’s school fees at one of the best public schools. My noble friend Lord Thomas of Gresford has contrasted the criminal situation with the civil courts. He described the reaction of the noble and learned Baroness, Lady Butler-Sloss, to what he had told her and she certainly represented the civil court position correctly.
The Government’s response to the Bar Council’s proposal, and that of some of your Lordships, has been to argue, at least so far, that the sums restrained need to be preserved in the hope that, at some point further down the line, a confiscation order may be obtained on conviction. In November 2011 several national newspapers ran stories on revelations that at the end of March 2011, the sum of money outstanding in purported confiscation orders was £1.26—wait for it—billion. That made the front page of the Sun. I suggest to my noble friend that the hope that some money might be recovered is no substitute for meeting the up-front costs of the defence via the legal aid bill.
When confiscation orders are made, they are not used to fund legal aid but are channelled to other government departments; they go into the general Exchequer pot. This does not reflect the strain placed on the legal aid budget by high-cost fraud cases. Therefore, this seems to be—if I may be forgiven a vernacular phrase—a complete no-brainer. It is a way of saving the legal aid fund—to use another such phrase—shedloads of money. I say to my noble friend: let us wake up and do it.
Lord Bach
My Lords, I must say, having heard those two speeches, that I would not want to be the Minister tonight. Having heard what was said and having read about this from the Bar Council and the Law Society, which both put in effective papers, I will say at once that I regret that in my time as Minister we did not spot this, because there is no question that we should have acted on it. The noble Lord can make as much fun of me as he likes, but it is no answer to the points that have been made. There are times during the passage of Bills when a Government behave totally irrationally. I speak from experience. There are all kinds of examples—not that many in my case, but some. I know that the noble Lord, Lord McNally—
Lord Carlile of Berriew
Perhaps I could ask the noble Lord not to be so modest.
Baroness O'Cathain
Perhaps I could say to the Minister that all my life I have lived by the statement that a man or woman who does not make a mistake does not make anything.
Lord Bach
That is absolutely right. I am just asking the Minister not to make a mistake on this issue; he should learn from my experience. Perhaps things were not quite as bad as I made out, but we should have spotted this as it shines out. It is not as though very high-cost cases did not come across my desk; my goodness, they did all the time.
The Minister will know that the majority of legal aid is spent on criminal cases. Over the years—although it shifted a bit as we made an effort at least to maintain what was spent on certain types of civil legal aid—the balance has been wrong. Criminal legal aid has taken more than 50 per cent of the budget and civil legal aid has been allowed to decline over a number of years. However, enough is enough as far as that is concerned. I point out to the Minister that the amount of social welfare law that has been taken out of the scope of legal aid equates to around £60 million. I do not need to repeat the figures that were mentioned by both noble Lords who spoke in this debate. The £60 million is dwarfed by the amount that it would be possible for the Government to get if they made wealthy defendants pay their legal fees.
When faced with an obstacle such as this, Governments sometimes become totally irrational and stick to their line, which can be completely hopeless and can sometimes not make sense at all. Common sense loses out completely. “No-brainer” is exactly the right word. The Government are faced with having to find money; there is a lot of heartfelt opposition to the idea that social welfare law, for example, should be taken out of scope; and there is a great deal of doubt about whether doing so will save any money at all—which in my view is the clinching argument. Here is a chance for the Government to take advantage of a sensible step. They have the power to do it and will have our support if they do. I very much hope that the noble Lord will at least consider carefully the very powerful representations made tonight in Committee.
Lord McNally
My Lords, at this late hour this debate is taking on a confessional nature. There has also been a little bit of topsy-turvy. For a time, I was just sitting back while the noble Lord, Lord Bach, and his colleagues were rubbishing the amendments tabled by my noble friend Lord Thomas and his colleagues, and now I am going to defend the activities of the previous Government.
As has been explained, the amendment is intended to allow the restrained assets of those accused of criminal offences to be taken into account when granting legal aid and to allow legal expenses to be paid from a defendant’s restrained assets. Before the next debate, I must check on the noble Lord’s distinguished career in government as I am not sure whether he was responsible for the Proceeds of Crime Act 2002. Was it on his watch?
Lord McNally
Nevertheless, the previous Government passed the Proceeds of Crime Act 2002, which prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. The Committee will be aware that assets recovered from the proceeds of crime are already applied to offset the overall costs to the public purse, although I note the points made by the noble Lord, Lord Carlile, about the success of confiscation orders. The noble Lord, Lord Thomas, will know that when he put this idea to me, it seemed very attractive with a little Robin Hood stuff about it. However, the reason that the previous Government took action through the Proceeds of Crime Act was that in their judgment there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. In 2002, the then Government decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence. Restrained assets in these cases are suspected to be the proceeds of crime. They are not therefore legitimate money, and they should not be used to fund the costs of a person’s defence lawyers. First and foremost, the victims of crime ought to be compensated for their loss.
Baroness Buscombe
My Lords, I was the shadow Minister on the Proceeds of Crime Bill. I have rather a good memory, and I can say that the Minister is absolutely accurate in his comments about why the Government chose not to use the Proceeds of Crime Act as an opportunity for dealing with this issue.
Lord Bach
It is very good to have the noble Baroness, Lady Buscombe, joining the debate, but if that was the best defence that the previous Government could put up for that, it was really not satisfactory. I remind the Minister that that argument has been described as,
“fallacious, and easily remedied by the simple implementation of a cap on defence fees, careful supervision by the court and/or an assessment by the court taxing officers, who are familiar with assessing what constitutes ‘reasonable’ costs in such cases”.
If that was the argument put forward by my Government at that time, I say here and now that it was a fallacious argument and not one that the present Government should fall into the trap of adopting.
Lord McNally
As I said, we are in confessional mood tonight. The Government are currently considering a related proposition under which the value of restrained assets might be taken into consideration in the Crown Court means test. Until that proposition has been considered fully, we believe it premature to suggest an amendment to the Proceeds of Crime Act.
This has been an interesting debate. We have heard what the noble Lord, Lord Bach, said in apology for previous omissions by his own Government. As I say, we are looking at the value of restrained assets in the Crown Court, but at the moment we believe it premature to suggest an amendment to the Proceeds of Crime Act and I therefore ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
The problem is that my noble friend the Minister has not explained why people are allowed recklessly to dissipate criminal assets in civil cases. Why do you have one rule for civil cases, when you can use what are described as criminal assets although they are not necessarily so, and another rule in criminal cases? What is happening at the moment is that defendants are recklessly dissipating legal aid. That is the point and that is why legal aid is so high in criminal cases—it is being recklessly dissipated. My noble friend Lord Carlile explained how it can be done: you can have application after application; you can have little trials within trials; you can have satellite litigation; and the case can run on and on for months.
In the old Stafford Assize Court, which possibly the noble Lord, Lord Bach, has visited—
Lord Thomas of Gresford
Good. I have appeared there on a number of occasions too—not against the noble Lord, Lord Bach, I have to say. There is a plaque on the wall that commemorated what was then the longest jury trial in Britain. It was 23 days and they put a plaque up because it had lasted so long. Now 23 days is peanuts as far as any serious case is concerned. They go on for months and months: application after application; disclosure of this, disclosure of that, and so on; recklessly dissipating legal aid funding that could be available for social welfare law or for all the other things that have been excluded—
Lord Thomas of Gresford
I will read what my noble friend said with great care. For 12 years, this power that he said was in the 1999 Act—introduced by a previous Government but never mind—was never used. My mind immediately flicked back to a case that I once had. I use legal language that lawyers will understand: I once had a case in which a young girl lost the skin from her leg in a motorcycle accident. All the skin was stripped off. Now the Government want her to pay for somebody else. She presumably gets general damages of £30,000. The Government would take a fair portion of that because she had the temerity to apply for whatever it is—legal aid. They then want to keep the extra for somebody else. That seems quite wrong in principle. I am not surprised that it is in the 1999 Act, though with the coalition Government in power I would expect an entirely different approach.
Lord Beecham
The Minister expects us to be grateful for this activation of a pretty redundant provision. I cannot say that we are and clearly the noble Lord, Lord Thomas, is not either. Of course, the noble Lord’s example would no longer apply because civil legal aid would not be available for the personal injury case to which he referred, but it would occur in other cases. In one of these exceptional cases or if, for example, there is a move on clinical negligence, a huge slice of not only general damages but also—as I understand the Minister—special damages accrued to the date of the hearing might be taken. In a clinical negligence claim, that is potentially a very substantial sum. The noble Lord, Lord Thomas, is absolutely right. Successful claimants are being asked here to substantially help underwrite the costs of the system. That is not something that successful claimants should be asked to do.
We will revert to this when we come to Part 2. It seems that the burden has shifted from losing parties, and in particular losing defendants, to successful defendants. The Minister refers to the fact as if it were common knowledge that this would be moved. Maybe I have missed something—and so has the noble Lord, Lord Thomas. Neither of us seems able to recall this proposal being ventilated in debates—not in this House or Committee, or generally as part of this process. I am certainly not happy with this. We may well revert to it on Report. If it activates a provision that was laid down in 1999, it should not be done. As my noble friend will confirm, I was critical from time to time of the previous Government’s policy, particularly in relation to criminal justice and criminal legal aid. Had I known about this aspect, I might have been critical at an earlier date—presumably with no effect, either. This is not something we can let pass.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 4 months ago)
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Lord Clinton-Davis
As a former Member of the other place and as a Member of this House, I am deeply suspicious of secondary legislation. The onus of proof that secondary legislation is absolutely essential must rest on the Government. There are too many instances where people do not vote on the issues which arise because they happen perhaps late at night or in circumstances where it is not regarded as absolutely essential that Members should attend. Whether that is right or wrong does not matter. What is important is that the Government should resist the temptation to indulge in secondary legislation wherever possible.
The onus of proof rests fairly and squarely on the Government. In my view, they have not begun to do that. They disregard entirely the essential nature of that duty. In other words, they are saying that it is not important. I think that it is vital that Parliament conducts itself properly and scrutinises legislation where possible. I do not think that we should resort to secondary legislation, except where it is proven to be absolutely essential.
Lord Bach
My Lords, first, I thank my noble friend Lord Howarth in particular for supporting our Amendment 24. Of the alternatives set out so clearly by the noble Lord, Lord Phillips of Sudbury, Amendment 24 is the preferred amendment. But I want to make it absolutely clear from our Front Bench that our real quarrel is with the Bill as drafted. In the mild words of the noble and learned Baroness, Lady Butler-Sloss, it is astonishing to find Clause 8(2) in modern legislation. It goes without saying that we believe that this is a non-party issue. Right around the Committee, it has been suggested that on this the Government have got it seriously wrong. If I am a little harsher on the Government than noble Lords have been so far, it is because this is an essential and very important part of this Bill. It is crucial that the Government move on it, if not at this stage, then later. I very much hope that on this group, the Minister can help us by implying that the Government are thinking of changing their position.
The Bill represents an attack on a number of crucial areas of civil legal aid. If the Government get their way, the whole edifice of social welfare law will be severely damaged, perhaps to destruction. The restrictions on private family law are poorly thought through and the proposed taking out of scope of clinical negligence, which we are to debate shortly, seems more ridiculous as every day passes.
We all agree—we certainly do—that there must be some cuts to legal aid. But there should not be these cuts, and any cuts should not be so fast or so far. I pose again to the Minister a question to which I have had no response up till now: why on earth is all criminal law seemingly off limits? Is there no waste, nothing that could be rationalised, in that area of law which, I remind the Committee, takes well over 50 per cent of the whole legal aid budget? The answer is apparently not, because the Government have announced that there will be no moves on criminal legal aid until 2015 at the earliest. I pose the question again: why?
The present position, as I understand it, is that a government can, to a limited extent—I shall be frank in saying that I am not sure to what extent—alter by order what is in and out of scope; for example, by amending the funding code as felt appropriate. But what the Bill asks us to accept is a quite new proposition; namely, that the Government should have the power to omit services from Schedule 1 by order. However, there is no suggestion, of course, that they should have the power to add services by order. Again, the question that all noble Lords have been asking the Minister is: why not? Why this imbalance, this tilt, against legal aid? My own view is that the answer is a bit depressing. It is that, to put it mildly, the ministry has a rather small-minded, extraordinarily partial view of legal aid; it does not much like it and would rather be rid of it than defend it. It does not see it as central to access to justice, let alone the rule of law, and is rather looking forward to cutting more. What other impression can one possibly get from the way in which this clause is drafted?
It is often said, particularly in this House, that the real argument against allowing a provision like this is not for now but for a future government who may not be troubled by the same principles as are supposed to exist in all modern governments of whatever complexion. However—and I hope that this does not sound too harsh—my own reason for not allowing this crude power to omit legal aid to the Government is just as much to do with what I fear is the present Government’s careless attitude towards legal aid as with some rogue government in the future.
Right across this Bill, or right across Part 1 at any rate, the cavalier manner in which it is proposed to decimate social welfare law, to remove clinical negligence from scope and to restrict the definition of domestic violence on the one hand and have too wide evidential criteria for it on the other all tend to suggest that, on the importance in our society of the availability of civil legal aid for ordinary citizens to access justice, the Government really do not have the enthusiasm that they should have. I believe that this view is shared by many inside and outside this Committee. How then can it be right to entrust the Government with the new extensive powers that they propose? Legal aid could be further diminished by order, but nothing could be added to it except by primary legislation. Just to state that proposition shows how wrong it is.
No one apart from the noble Lord, Lord Goodhart, has referred to the two important reports that have been published for our benefit. One was from the Delegated Powers and Regulatory Reform Committee, which discussed this issue and came to the following conclusion:
“The Committee has concerns about clause 8(2), and those concerns were not allayed by the explanation in the memorandum that this was merely an updating provision. However, there is precedent for a power of this type to be delegated and subject to affirmative procedure (whether the power is to add or to remove from the Schedule), and on that basis, we do not find it inherently inappropriate. But we draw it to the attention of the House because it is not limited to routine updating and may legitimately be used to make substantial omissions from Schedule 1.”
The Select Committee on the Constitution said this about Clause 8(2):
“Under the Bill the Lord Chancellor will have a power to modify Schedule 1 by omitting further services from the scope of civil legal aid (clause 8(2)). Orders made under clause 8(2) will be subject to the affirmative resolution procedure. This provision should be amended to enable the Lord Chancellor not only to omit services from the scope of civil legal aid but also to add services to the scope of civil legal aid.”
I do not want to quote from the Government’s response to both those committees’ reports. Perhaps the only advantage was that of consistency, because the two paragraphs were the same in each case. If noble Lords look at those paragraphs they do not make a convincing case, or indeed any case at all, against the amendments that have been raised in Committee today.
This is another part of the Bill where the Government must move. I very much hope that the Minister will show signs that the Government have listened to the unanimous view of these committees on this matter today.
Lord McNally
My Lords, I thank all noble Lords who have contributed to this debate, and particularly my noble friend Lord Faulks for introducing it. There is a little bit of the political bruiser in me that always wants to take the noble Lord, Lord Bach, full on, particularly when he is in piety mode. He was part of a Government who carried out six reviews of legal aid in its last five years, brought in real cuts, and had an actual manifesto commitment to cut legal aid.
Lord McNally
As I said at the very beginning, we were faced with circumstances where we had to make hard choices. The noble Lord sticks to the mantra, “Not these cuts, not this place, not now”.
A number of telling points have been made by the contributions today. To clarify a point that my noble friend Lord Faulks asked for, the regulations under Clause 8(2) would be subject to the affirmative procedure in terms of parliamentary scrutiny. However I take full note of the point that the noble and learned Baroness, Lady Butler-Sloss, made, that strong and experienced legal opinion has advised against this one-way street which is built into the Bill. I also take on board—which is why I want to come back to this at the end—the question of primary legislation as against secondary legislation.
I also take note of the advice of the noble Baroness, Lady Mallalieu, about the need for flexibility and future-proofing, which my noble friend Lord Thomas also referred to. The importance, as the noble and learned Lord, Lord Scott, pointed out of the adequacy of the civil justice system, is something that is constantly in our minds in trying to determine our priority, and I take on board the warnings that we have had about the dangers of litigants in person.
The noble Baroness, Lady Kennedy, asked whether the aim was to see legal aid wither on the vine. That is certainly not our intention. Like previous speakers, the noble Baroness argued again the case for having some guard against what she termed the “law of unintended consequences”, although the term “sucking on the sweetie” must be some aspect of Scottish law rather than English law. As a non-lawyer, I would not know. However I agree that “sucking on the sweetie” may well be the test of all legislation.
My noble friend Lord Carlile called for us to keep the door open. He was right to say that all Ministers must be ready to take lobbying; that is not in doubt.
Lord Phillips of Sudbury
My Lords, I am in entire agreement with what has been said by my noble friends Lady Doocey and Lord Newton and the noble Baroness, Lady Lister of Burtersett. I should be very grateful if, in responding on these amendments, my noble friend Lord McNally would tell the Committee whether in respect of later amendments that seek to ensure proper funding for CABs and advice agencies there is going to be a positive answer, because that will have a major effect on my whole approach to this part of the Bill.
It does not need repeating that cutting legal advice in relation to social welfare claimants is, on the face of it, utterly bonkers. First, the people seeking that advice are the most vulnerable in our society. I wonder how many people who are now in this Chamber have ever sought assistance under the Social Security Contributions and Benefits Act 1992 or the Welfare Reform Act and so on. There is a whole forest or jungle of social security law, and I ask anyone in this Committee who thinks that, because it is for the common man it is simple, to have a look at any of the legislation. It is a nightmare. I have given a bit of legal advice in law centres in my time. It was a nightmare when I did it as a young solicitor but it is a treble nightmare now. Someone said recently that the CAB advice manual for social security law ran to a couple of hundred pages, but it now goes well into the thousands.
Lord Phillips of Sudbury
I am most grateful to the noble Lord, Lord Bach. There are 7,500 pages, and the devil of it is that a lot of these statutes interrelate. In many cases, finding a way through this stuff is, believe me, a job for a lawyer and not a job for the harassed citizen. Do not let us be carried away by the telephone helpline. It will help in all sorts of cases but in very many it will not. That is because, first, the complexity will outrun the knowledge of the person on the phone. Of course, the answer is that they should then refer the person to someone else, but I have to tell your Lordships that these advice lines—and I have experience of them too—are very powerful instruments. The second reason is that it is a commonplace that people find it very difficult to explain the facts and so on in relation to these social security measures face to face, let alone down a telephone line.
Therefore, I hope that we will be honest with ourselves and that the excellent civil servants, the excellent Bill team and the excellent Front Bench spokesmen will recognise that this is not territory with which we are familiar. I suggest that we need to be a little humble before we say categorically that the status quo after the Bill comes into force will be sufficient to enable hard-pressed, often bemused and sometimes desperate people to access the benefits that we have legislated for them.
Baroness O'Loan
My Lords, I support Amendment 32, tabled by the noble Baroness, Lady Doocey. It is generally acknowledged that attempts by government to simplify the welfare system are to be welcomed because the systems are complex and difficult. Despite the fact that legal aid has been available for appeals against decisions on entitlement, we have seen a very significant lack of take-up of the benefits to which people are entitled. Under the Government’s proposals, that legal aid will no longer be available. It is accepted by the Legal Services Board that dispute resolution and advice in social welfare law requires legal and technical competence. We know from Scope that 39 per cent of appeals against work capability assessments are upheld. Without legal assistance, people simply will not be able to meet the challenges that will enable them to retain the benefits to which they are entitled.
There will be 3.2 million people affected by the change to DLA alone, and 1.8 million will migrate from incapacity benefit to DSA or jobseeker’s allowance. People in those cases may be ill, seriously stressed, living in profoundly difficult circumstances, illiterate or incapable of dealing with correspondence. They may not recognise the importance of attending various assessments or may lose out simply because of their vulnerability. If a family loses the benefits to which it is entitled and cannot access professional help, inevitably there will be very serious consequences such as more children going hungry, not having enough warm clothes for the winter and not having heat in their homes. Parents will have to make appalling choices.
The consequence may be situations in which individuals go to tribunals in cases in which, had they received legal advice, they would have known that they did not have a valid case. A tribunal costs approximately £293. The cost of legal advice to help people in this situation is of the order of £150 to £200. As noble Lords said, there are serious concerns about the consequential increases in the number of cases going to tribunal. Put simply, there are very good financial reasons to continue to provide the current, low-cost legal help.
Lord Bach
My Lords, client A was a single mother aged 20 with two young children. She had no permanent home and was living with her mother. She had no income other than a crisis loan and suffered from mental health problems. She had been awarded employment and support allowance, but this was suspended when she was admitted to hospital and missed a medical assessment. She was then informed that she was not entitled to employment and support allowance. The Leicester community advice and law service lodged an appeal on her behalf. The DWP agreed to reinstate her claim while the advice and law service explained her medical problems to the department.
Client B was also a single mother. She suffered from bipolar disorder and received employment and support allowance and other benefits. She had debts totalling £2,500, including overpayments of benefits and arrears owed to utility companies. The advice and law service assisted her in making successful claims for disability living allowance and associated benefits, thus increasing her income by more than £100 per week. Her housing benefit had been suspended. The service challenged the decision and housing benefit was reinstated and backdated, thus avoiding an escalation of rent arrears that ultimately would have led to the loss of her home.
Both cases took place in my home city of Leicester, but there will be examples from every city, town, village and hamlet in the country. What do the two stories have in common? First, both clients were helped by the same advice agency. The crucial point is that they were helped using legal aid. Advice was given and lives were changed. If this Bill goes through in its present form, this sort of life-changing advice would probably never have been given. Those two clients who had real legal problems would not have been legally helped.
It does not take much imagination or knowledge of the world to know that events in both cases would have gone downhill fast if advice had not been given. Not just the mothers themselves but, one suspects, their children would have suffered. The state would have had to pick up the pieces at a much later stage when much more damage would have been done. If the Bill goes through, welfare benefit advice will be out of scope, not just at the beginning but at the end, too. The costs of the Leicester law service organisation that took up this case are negligible. We have heard about the small costs of each case of this type. They are tiny compared with the social and real financial costs if there had been no early intervention.
How can the Government be so stupid to think that what they are proposing can do anything but harm? I speak with all the strength that I have in support of the amendment moved so passionately by the noble Baroness, Lady Doocey, who has given a lifetime’s service to disabled people. I agree with other noble Lords who have said that her amendment is central to what we have to debate and decide on in this Bill. Her amendment would return to the scope of legal aid: advice and assistance on eligibility for welfare benefits, applications for welfare benefits, and appeals against the decisions of granting authorities. Although the expertise of the noble Baroness, as has been said around the House, is in helping disabled people, her amendments, as she would be the first to say, cover a much wider group in society than merely those who are disabled; they cover all citizens who find themselves in that position.
The amendment is identical to that tabled in another place in Committee and on Report by my party. The first time—in the Public Bill Committee—the amendment was defeated on Division by the government parties, but on Report the Liberal Democrat Members of the Public Bill Committee tabled an amendment to the same effect. Unfortunately, because of a heavily guillotined timetable, and, I am sad to say, filibustering by those who should have known better, no debate and thus no vote was held. It is possible that had the vote been taken in another place, we might not have this question quite in the form it is in today.
There is rightly great strength of feeling from all sides of the Committee about the removal of advice on welfare benefits. There is a real fear that it will lead quickly to a downgrading in the efficiency of a system that, while not perfect, has worked pretty well over 40 or 50 years, and which, crucially, has been supported by all Governments of whatever complexion and by all major political parties in this country. There is consensus that the state has an obligation to provide this sort of help for the poor, for disabled people and for those who need help—it could be any one of us in certain parts of our lives—because it is both practical and humane.
There is great concern that if the Bill goes through as it stands we will lose that and, as my noble friend said, be diminished as a country in how we conduct ourselves. That is why this issue is so central. It will drive tens of thousands of litigants-in-person to try to deal with complex issues that they might not fully understand or be able to communicate. Thousands of people will be left without a lifeline. Those who have real cases will have to join a queue because tribunals will take so long to reach their cases. Then people might find themselves completely destitute: their homes at threat, relationships breaking down, and their children helpless. There will be that drive downwards that we see so often.
Lord Newton of Braintree
There is something that the noble Lord has not mentioned, which could be an important factor, bearing in mind his reference just now to children left helpless and some of his earlier case studies relating to single-parent families. I cannot remember the figure but there is a huge cost for every child taken into care. I would like the Minister to tell us the cost of each child taken into care as a result of the knock-on effects that could arise from these proposals. It costs tens of thousands of pounds every time, and I do not believe that all that has been taken into account.
Lord Bach
I am grateful to the noble Lord as he is absolutely right about the social and financial costs of abolishing this sort of legal aid. It is impossible to say what they will be, but they will be huge, which I should have thought was fairly obvious.
The outcomes that we have talked about in this debate are not beyond the realms of probability, nor can anyone say that they would be unexpected. It is up to us in this Committee, and in the House perhaps on a future date, to decide whether the outcomes that have been described would cross the basic line of British decency that it is our obligation to defend. As part of that decision-making, we must look at whether these particular cuts are economic in the first place. Would they achieve even the Executive’s highly limited narrow goals of saving money?
The ministry plans to remove entirely funding for welfare benefits from scope. It claims that that will save £25 million a year. That sum normally goes to dealing with 135,000 cases per year. The advice is delivered, not altogether but pretty much through third-sector not-for-profit agencies such as Citizens Advice, law centres and many other advice centres. Advice goes to those seeking reconsiderations of decisions by the DWP and related agencies and to those appealing decisions before the First-tier Tribunals and then the Upper Tribunals. We have heard who receives the advice. Women are disproportionately users of this advice, as are ethnic minorities. As the noble Baroness indicated, 69 per cent—a very high percentage indeed—of those receiving advice are ill or disabled in some way.
As for who gets more complex advice—that relating to grounds for appeal—the published data for First-tier Tribunals show that of the 50,000 or so benefits-related cases heard a year, 90 per cent relate to disability-related benefits. That is hardly a surprise. For all its sins, jobseeker’s allowance is a simple entitlement for which to calculate eligibility. When there is a degree of subjectivity in deciding on the impairment caused by disability, agencies are more likely to make mistakes and thus require decisions to be appealed.
What does the advice funded by legal aid deliver? Colleagues in another place tabled a series of Parliamentary Questions to establish the percentage of people who win their appeals before tribunal with and without advice. The figures provided by the ministry show that in 2009-10 in welfare benefits-related cases, people were 78 per cent more likely to win if they had advice than if they did not have advice. For ESA the figure was even higher. People appealing employment support allowance decisions were more than twice as likely to win with advice than if they did not have advice. I point out what is obvious: those winning appellants are all legitimate claimants. They are not scroungers; they are not feckless—for the main part they have probably suffered some form of disability. They have been denied their rights by an emanation of the state, by the Executive, and they are legitimately challenging that decision.
Lord Thomas of Gresford
Would the Minister agree that the statistics he has just—
Lord Thomas of Gresford
It is just habit. Would the noble Lord agree that his statistics suggest that where there is advice, meritorious claims are brought forward and money and time are not wasted by tribunals in hearing litigants in person?
Lord Bach
I agree absolutely. It seems to follow because the people who practise this kind of law—and we know that they are not particularly well-paid lawyers—are very careful, on the whole, to give advice on the position in law and not necessarily what the claimant wants to hear. It is right that people with hopeless claims do not go forward and those with meritorious claims do go forward—as they should do.
These are legal problems—let us make no mistake about that. The truth is that the welfare benefits field, as we have heard all round the House from great experts, is very complex in many cases and people need help with these matters before they can decide the right thing to do.
Judge Robert Martin, the head of the Social Entitlement Chamber of the First-tier Tribunal, gave evidence to the Justice Committee inquiry some time last year. The 7,500 pages I referred to in an intervention are the reference material that was issued to the tribunals and which is now spread over six volumes. He made that point to the Justice Committee. He was asked by the chair, the right honourable gentleman Sir Alan Beith:
“Will it bring more people into the tribunal because they have not been advised that their case has no chance of success in the tribunal”?,
which I think is the question the noble Lord, Lord Thomas of Gresford, asked me. Judge Robert Martin said:
“Yes, because a general public awareness of tribunals is very low. Very little is put into public education of the law and how to seek redress for grievances. There is this risk that we will see many people who have been drawn to the tribunal believing it is the most appropriate forum to solve things, whereas it may be just a mistaken conception about the tribunal”.
He continued:
“Legal help is so important in that triage function of sifting out cases which can be redressed but not through the tribunal or the court, and assisting those cases where the tribunal or the court can assist to have the case prepared in a way that maximises the chance of success”.
That gives the answer from someone who is, as it were, at the coal face. He went on to say:
“With the removal of legal help, we will have to spend a lot more time explaining simply what the tribunal is about rather than getting to the heart of the matter”.
This Bill is at its worst in this particular part. I argued at Second Reading—and I argue again today—that it is unconstitutional in that it removes access to justice for a large number of citizens, it is immoral because the state should not try to save a fairly small amount of money by targeting the poor and the disabled by removing their legal rights, and it is financially crazy because the savings will be non-existent. As benefits mistakes are not remedied, the problems will grow and the cost to the state will explode.
We are very proud of our legal system in this country and we encourage, quite rightly, foreign citizens to litigate their cases in British courts. They do so because of the extreme fairness and expertise of the British legal system from top to bottom. It is ironic, is it not, that we should be asking foreigners to litigate their serious cases in our courts because of the greatness of our system, while at the same time we seek to reduce some basic rights in law for our own citizens who are the least able to look after themselves?
Lord McNally
My Lords, Amendments 32 and 89 seek to bring welfare benefit matters into the scope of legal aid funding, first, by deleting the exclusion for welfare benefits in Part 2 of Schedule 1 and, secondly, by adding social welfare as an in-scope category in Part 1 of Schedule 1.
The amendments are contrary to our reform programme in which we are focusing our resources on the highest priority cases. Currently legal aid is available for legal advice but not representation in relation to decisions on welfare benefits at the First-tier and Upper Tribunals. While we recognise that many people rely on welfare benefits, these cases are primarily about financial entitlement. In our reforms we have concentrated on the fundamental issues of liberty or safety. Given the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme.
Lord McNally
It still seems barmy to me. Likewise, with regard to the 7,500-page volume mentioned by the noble Lord, Lord Bach, and the noble Baroness, Lady Lister, in 13 years of Labour Government, did nobody think, “What kind of system are we producing that requires that kind of detailed explanation and advice?”? It seems to me that the approach is not reform, as the noble Lord, Lord Phillips, said, but forever putting another layer of wallpaper on an already dirty room. We are about reform and one of the things that we are reforming—again, it would be interesting in wider debates to hear where the Opposition is on this—
Lord Bach
If the Minister’s best point is that the volumes on welfare benefits increased in the years of the Labour Government—as no doubt they did in the years of the Conservative Government before, and have done for 30 or 40 years as the system has got more complicated—that is a pretty poor argument for taking out of scope social welfare law, frankly.
Lord McNally
That is not my best point. The best point is that we are having, supposedly, a national debate about welfare dependency and welfare reform. It may be a bit unsettling that a number of reforms are taking place at the same time, but my understanding is that the welfare reforms before this House are attempting to simplify a much overcomplicated process and that that had the broad support of the Opposition. I do not think we are going to win this argument, some of which we will return to.
Amendment 35 seeks to bring into scope legal aid for advice and assistance for appeals to the First-tier Social Entitlement Chamber in respect of welfare benefits that are payable under social security legislation as a result of disability. The intention of the amendment appears to be for legal help and representation to be provided for welfare benefit appeals in the First-tier Tribunal for those with disabilities. Currently, legal aid is available for legal advice only in relation to decisions on welfare benefits in the First-tier Tribunal. Legally aided representation is not available for tribunal hearings because they are designed, as has been said, to be user-friendly without the need for legal representation. Therefore, we believe that this amendment would increase the cost of legal aid by expanding it into areas where it is not currently available.
We recognise that this amendment is concerned about the impact on those with disabilities who are appealing to the tribunal. While we recognise that those with disabilities may face additional obstacles, the tribunal is a relatively informal venue. The tribunal itself will comprise a medical practitioner and a disability expert as well as a tribunal judge when considering disability living allowance appeals. Given this and the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme. I hope that my noble friend will withdraw her amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord McNally
My Lords, even at this late stage of the night, the mere appearance of the noble and learned Baroness at the Dispatch Box brings a smile to my face. I hope that the noble Lord, Lord Bach, does not feel any jealousy.
Lord McNally
Of course, having listened to a debate dominated by what I acknowledge is a great deal of expertise and experience in this area, I will go away to ponder and think about what has been said, and discuss it with my right honourable friend the Lord Chancellor. At this time of night, like the noble Baroness I think it is better if I put on the record our approach and we can then resume on Wednesday.
Amendments 33, 34, 39, 40, 41, 51, 52, 79B, 80, 80A, 82A, 82B and 82C all concern legal aid for children and young people, or people with dependent children. Others refer to the use of mediation in family cases. While—as I have said—I acknowledge the expertise and experience on display today, and while I understand what motivates these amendments, I ask the House in turn to acknowledge the economic realities behind the difficult decisions that we have been forced to take.
As the House is well aware, the Government’s approach has been to look at every area of law where legal aid is provided, and to consider whether it should continue, and in what form. In developing our proposals, we have considered carefully a number of factors, including: the importance and complexity of the issue; the litigant’s ability to present their own case; the availability of alternative sources of funding; and the availability of other routes to resolution. We have used these factors to prioritise funding so that civil legal services will be available in the highest priority cases; for example, where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or for domestic violence remedies, or where children may be taken into care.
A number of noble Lords have drawn inferences that this is a cruel and uncaring Government; as the noble Lord, Lord Alton, said, a government for the sharp elbowed. Let me just put on record at this stage and remind noble Lords that even after our reforms are in place we will still be spending £120 million of funding per year for private family law, including domestic violence; an extra £10 million per year on mediation; £50 million on categories of social welfare law; £6 million on clinical negligence; and £2 million on education. That is why I sometimes bridle at suggestions that we are destroying the legal aid system. We are trying to manage an overall cut in legal aid that will still leave us with—as I have said before—one of the most generous legal aid systems in the world.
Amendment 33 applies to all civil and family proceedings, and seeks to bring into scope civil legal services for many areas of law that are excluded where the individual has a child who is dependent on them. The intention appears to be that this group of people should receive civil legal services because of the potential impact on their children of the withdrawal of legal aid. The amendment would retain funding across the board for people with dependent children, without regard to the relative priority and alternative methods of resolving disputes, and would lose the bulk of the £170 million of annual savings, as most family law cases involve a respondent or applicant who has dependent children. It would also significantly impact on the £110 million saving in other areas of civil law. We have not sought simply to retain legal aid for any case where the individual has a child. Doing so would mean expending limited funds on a range of cases: some important, some not as important and some where alternative ways of resolving the dispute would be preferable. Therefore, I hope that noble Lords will not press the amendment.
Amendment 79B would bring all civil non-family matters within scope for children, with the exception of work relating to breach of a statutory duty, the making of wills, trust law and business cases. Amendment 82C seeks to bring into scope civil legal services covering welfare benefits, debt, housing and employment for those aged 24 or under or who are represented by a legal guardian. Amendment 82B seeks to bring into scope civil legal services in relation to advice and proceedings where the person is a care leaver under the age of 21 in wide-ranging civil and family areas specified in the amendment. Amendment 79B would mean that nearly all civil cases would be brought into scope if the applicant were a child. It is worth making it absolutely clear that in civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s litigation friend rather than by the child themselves. This accords with the normal rules of civil litigation. The civil justice system as a whole does not generally require children to act on their own behalf.
I turn now to the rest of the amendments in the group. Providing blanket funding for all cases where the child or young person is the applicant would be costly, unnecessary and might create perverse incentives for parents to attempt to bring civil litigation in their children's name purely to secure funding in otherwise out-of-scope areas of law. The Government recognise the importance of funding in a range of cases where children's interests are paramount. This is reflected in the decisions that we have reached. As a result we have protected funding in areas that specifically involve children. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We have also made special provision so that legal aid will be available for children who are made parties to private family proceedings.
There will also be an exceptional funding scheme that will ensure the protection of an individual's rights to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. Each case will be decided on its own facts, but in cases where Article 6 of the European Convention on Human Rights is engaged, the ability of the client to present their own case, the complexity of the issues and the importance of the issues at stake will be relevant factors when a decision is taken on whether to grant exceptional funding. Therefore, where a child brings an action without a litigation friend, this will be an important factor in deciding whether they have the ability to present their case.
Amendments 80 and 80A seek to bring into scope civil legal services for any person who is under 24 and has a disability. They include but do not limit themselves to particular areas of scope that are excluded. Amendment 82A seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 or under and has a disability or lacks mental capacity. We have considered the point that the amendment makes about legal aid for those with disabilities. The equality impact assessment published alongside the Government’s response to consultation sets out our analysis of the potential effects that the reforms may have on people sharing protected characteristics in accordance with the public sector equality duty set out in the Equality Act 2010. We have acted consistently with that duty, one requirement of which is to have due regard to the impact on groups of different ages and those with different needs, such as disabilities. While we have identified the potential for the reforms to have greater impacts on some groups, we believe that those impacts are proportionate and justified by the need to meet our objectives, including the pressing need to make savings from legal aid.
Prisons: Population
Lord Bach Excerpts(12 years, 4 months ago)
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Lord McNally
My Lords, there are about 4,000 women in our prisons at the moment, and anyone who takes a moment to study these matters will say that that is far too large a number. We are taking forward a range of measures to look at how women who have committed crimes outside the prison regime can be treated. I pay tribute here to the landmark Corston report from the previous Administration. We are pursuing most of the recommendations, as did the previous Administration, but, like them, we have found the key recommendation specific to small units too costly to pursue. It is widely said that women need a different kind of treatment and I believe that to be the case. This is a serious problem and one that we are taking seriously in terms of initiatives on drugs, debt and treatment outside. Those are the facts.
Lord Bach
My Lords, when the Government were in their first flush of enthusiasm, they were full of claims as to how much smaller the prison population would be by the time of the next general election. Who was playing the numbers game then? How times have changed. Particularly bearing in mind the increase in crime that is now being reported, what is the current forecast of what the prison population will be at the next election in May 2015? What a contrast all this is with the days of the previous Labour Government, when crime was being reduced by 43 per cent.
Lord McNally
The commitment that we have made is to try to bring in a raft of policies that address specific problems about reoffending which are key to the size of our prison population. I am not going to play a numbers game; indeed, we never have. I look across at some of the heads shaking and nodding opposite, but I personally find this matter far too serious to play a numbers game.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 4 months ago)
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“Pre-commencement impact assessment
(1) The Lord Chancellor must commission an independent review to assess and report on the following areas—
(a) the expected costs and impacts of Part 1 on—(i) children and young people; (ii) people with disabilities, including people with learning, physical, mental and psychological disabilities;(iii) women;(iv) victims of domestic violence;(v) black and ethnic minorities;(vi) government departments;(vii) courts and tribunals, including any changes in time and resources; and(viii) local authorities; and(b) any expected impact of Part 1 on—(i) the incidence of homelessness;(ii) the incidence of ill-health, or suicide;(iii) the commission of criminal or anti-social behaviour; and(iv) the future provision and availability of services including, but not limited to, law centres and citizens advice bureaux.(2) The Lord Chancellor must lay a copy of the final report commissioned under subsection (1) in both Houses of Parliament at the same time as laying a draft commencement order for any other section in this Part.”
Lord Bach
My Lords, in moving Amendment 6 I will speak also to my Amendment 194. In this group there are also two amendments in the name of the noble Lord, Lord Martin of Springburn, namely Amendments 191 and 195. My amendments would require the right honourable and learned gentleman the Lord Chancellor to lay before Parliament a full independent impact assessment of the planned cuts to legal aid before the Bill—or the Act, as it then will be—can commence. Inter alia, we would require him to quantify the impact on groups with what are described as protected characteristics—namely children and young people; people with disabilities, including those with learning, physical, mental and psychological disabilities; women; victims of domestic violence; and black and ethnic minorities. We would also like him to quantify the impact on the public purse, other government departments and courts and tribunals, including any changes in time and resources. We would also like him to quantify the impact on local authorities. Finally, we would like him to quantify the impact on the incidence of the most severe negative outcomes for individuals and society—namely first homelessness; ill health, and perhaps suicide; and criminal or anti-social behaviour—and on the future provision and availability of services, including but not limited to law centres and citizens advice bureaux.
These amendments have been tabled simply because the Government have failed to get to grips with the serious consequences of their proposed legislation. They simply have not quantified the impact of the cuts on the individuals involved, on society or on the public purse. I concede at once that the Government have at least tried to describe what some of the impacts might be. The Government’s impact assessment, which they made in their response to the consultation process, states that their cuts threaten,
“reduced social cohesion … increased criminality … reduced business and economic efficiency … increased … costs for other Departments … [and] increased transfer payments from other Departments”,
particularly in higher benefit payments for people who have spent their savings on legal action.
Those are pretty extraordinary statements. It sounds a bit like the end of the world, does it not? If this legislation results in reduced social cohesion and increased criminality, it will go not only against everything that the Government support—a big society, and, of course, less crime—but against everything that all of us believe in, which is more social cohesion and less criminality. The Government cannot be accused of not being honest. They are honest to a fault if this is what they say will be the consequence of their Bill. However, they can be criticised for putting forward a Bill which in their opinion will have those consequences.
Given that the aim of these cuts is to save money, it would seem prudent for the Government to have calculated how much will be saved, not least because in March 2011—about 10 months ago, after the consultation had ended—the Justice Committee in the other place, following an inquiry into these proposals, was critical of the Government for not assessing the likely impact on spending from the public purse. I wish to quote from two paragraphs of the report. At paragraph 69, on page 32, it states:
“According to the Government’s own figures, the changes it is proposing to the scope of legal aid will result in 500,000 fewer instances of legal help”—
we know that the figure is much closer to 650,000—
“and 45,000 fewer instances of legal representation being funded by legal aid annually. The Government has conceded that it does not know the extent to which these reductions would impact upon people with disabilities and black and minority ethnic people because of information gaps. While it is taking some steps to address those gaps, evidence we have received, and the Government’s own thinking, suggest that these people, as well as other vulnerable groups, rely more on legal aid services than do the less vulnerable, and so there is the potential for them to be disproportionately hit by the changes. If this were to happen it would sit uneasily with the Government’s commitment to protect the most vulnerable in society”.
At paragraph 136, the report comes to the following conclusion:
“It has been put to us that the removal from scope of many areas of social welfare law will lead to significant costs to the public purse as a result of increased burdens on, for example, health and housing services. We are surprised that the Government is proposing to make such changes without assessing their likely impact on spending from the public purse and we call on them to do so before taking a final decision on implementation”.
That was in March 2011. We are now in January 2012, and the Bill has been through the other place and is in Committee in your Lordships' House. Why have the Government not produced such assessments, as the Justice Committee invited them to do? I invite the Minister who will respond to this debate to tell the Committee why they have not done so.
Lord McNally
Coming from a Preston girl, that is a compliment—I think. I will read Hansard. I realise that very interesting points were made, which I will study carefully and draw to the attention of the Lord Chancellor. With that, I ask the noble Lord to withdraw his amendment.
Lord Bach
My Lords, we have had a very full debate, as the Minister reminded us. However, it was very worth while because this is a very important subject that goes to the heart of whether the Government did the work they should have done before bringing in such controversial and fundamental legislation. I start by saying how grateful I am to noble Lords from all sides of the Committee who spoke in the debate. I am very grateful to the noble Lord, Lord Wigley, for backing the amendment, as I am to the noble Baroness, Lady Prashar. I forgot to say earlier, as I was asked to, that she was unable to attend when the amendment was moved because of her appearance at a very well known and important committee. I am very glad to see her in her place now.
I thank noble Lords for making some very important points. I do not wish to embarrass the noble Lord, Lord Carlile, but I will thank him for his contribution if only because it gives me the chance on behalf of the Committee to congratulate him on the honour he received in the New Year Honours List. However, other speeches were just as good, on all sides of the Committee. The one thing they had in common—this is something that the Minister must take back to his department—is that they were all, in one way or another, critical of the way in which the Government approached this part of the Bill.
I will not speak for long; I do not for a moment believe that more than a few noble Lords are in the Chamber to hear me wind up the debate on this amendment. They are here for another reason that I cannot think of. However, it is necessary to make one or two points. Although of course I will not press the amendment, the issue is important and we may well come back to it on Report because it is fundamental to the Bill. If the Bill comes into force with us knowing so little about what its effects and costs are likely to be—whether to the MoJ, other government departments or society as a whole—that is not a satisfactory way of law making. This is not a political point but a common-sense point, and I hope that the debate has been conducted from a common-sense point of view.
The points I want to make are these: everyone around the House, including my party, knows that savings have to be made in the legal aid budget. Of course that is right. We put forward proposals in relation to criminal legal aid in the last few months when we were in government. We said it in our manifesto. Other proposals for savings in legal aid have been put forward in various amendments that we are going to debate in due course in this House. The Law Society has also put forward proposals. The question is not: should there be cuts in legal aid? The question is: where should those cuts be?
For the life of me, I cannot understand why the Government have chosen that part of legal aid—the social welfare law part, the law of everyday life, which is a pretty small part of it, in fact—which in its own way works successfully in helping the most underprivileged in our society get basic legal advice on legal problems that affect their daily lives. It follows that that early advice often sorts out the problem and means that courts and tribunals are not bothered with hopeless cases and that people’s lives can be improved. I cannot for the life of me understand why the Government should have chosen that aspect when they refused to do anything about criminal legal aid, where a number of us think that there is room for substantial savings in some parts of it. It is disappointing that when the Government say that they are not going to implement Part 1 of the Bill until April 2013, they go on to say that they are not even going to look at criminal legal aid again until 2015. That is disappointing. That is my first point.
My second point is that we believe that it is a false argument that the Government have chosen life and liberty as the only places where legal aid should apply today. The point has already been made in this debate that it is difficult to think of a more obvious place where legal aid is appropriate than to solve legal problems that affect people who are, through no fault of their own, poor or disabled or who lack any privileges. That is surely where a legal aid system should bite. To remove legal aid from there is a completely wrong thing to do.
I thank the Minister for his contribution because it is not easy to face the Committee which, on this issue at least, is pretty dead-set against him. He made a point about how weekly reports come out suggesting that the policy is wrong, and he appeared to criticise that. The fact is that there would not be so much criticism if the Government had done the work they should have done before they tried to legislate in this way. All we ask is that in the time between now and Report, he goes back to his department and asks—I do not think he answered this in the debate—why the Government have not done the assessments of costs and social costs so that Parliament has a better idea of what it is being asked to legislate for. The Government have clearly not done the work that should have been done—that is a pretty universal feeling around the Committee. It is not too late for them to start doing it now, and I would encourage them to do so. I beg leave to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 4 months ago)
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Lord McNally
The noble and learned Baroness asks that from a sedentary position. That is the position that the Government have come to. Again, my right honourable and learned friend at the other end of the Corridor will see this exchange. Whether or not this is a matter on which one should go to the wall, I do not know. I am not sure how many consultations went on with the previous Administration.
Lord Bach
I may not have been party to many of them, but I can assure the noble Lord that of course there were consultations with the various bodies representing lawyers of various kinds about payment. They did not always satisfy the lawyers involved, but the important point is that there was genuine consultation on these matters. For the life of me, I cannot see why the Minister cannot accept the amendment.
Lord McNally
The noble Lord knows very well why I cannot accept it, but I hear what has been said. If the noble Lord will withdraw the amendment and the position remains the same at Report, it is best that we return to the matter then. I cannot take it any further now. I also have a slight feeling that this desire to replace “may” wherever “must” appears is not always entirely helpful to good government, but we will see.
Amendments 9 and 10 seek to convert into duties the Lord Chancellor’s powers under Clause 3 to set and monitor quality standards, as well as to accredit organisations against those standards—here we go again. As I shall explain, these amendments are unnecessary. The current provisions in Clause 3 enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be either by the Lord Chancellor or by those authorised by the Lord Chancellor to do so. These powers are similar to those currently given to the Legal Services Commission in relation to the Criminal Defence Service and Community Legal Service.
The Legal Service Commission’s existing quality assurance standard is the specialist quality mark. This standard aims to demonstrate that organisations that hold a contract with the commission are well managed, provide a good level of client care and have systems in place to ensure delivery of good-quality advice. The Legal Services Commission also accepts the Law Society’s Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for its clients. Its successor will have the same job. The standards must be met and accreditation obtained prior to award of contract and throughout the lifetime of a contract. This compares favourably to the privately funded market, where these standards are not mandatory.
This is all done under the existing arrangements and ensures high-quality advice. There is no intention to derogate from the existing model in future under the provisions of this Bill and, accordingly, a duty to establish, maintain and accredit against quality standards is not required when the clear intention is to continue with the arrangements that have served the legal aid market and the quality of service delivered by that market so well under the current framework.
Amendment 11 concerns the Lord Chancellor’s power to make arrangements for the accreditation of legal aid service providers against quality standards under Clause 3. Specifically, the amendment seeks to require the Lord Chancellor to consult with the Bar Council, the Law Society and the Institute of Legal Executives prior to making arrangements for accreditation. This amendment assumes that the Lord Chancellor would seek to introduce a new accreditation scheme to replace the existing quality standards that must be met by a potential legal aid service provider prior to contracting with the Legal Services Commission—namely the LSC’s specialist quality mark and the Law Society’s own Lexcel standard.
In practice, it is highly unlikely that the Lord Chancellor would seek to develop a new standard. Legal aid providers are familiar with the existing standards, and these have worked well since the introduction of contracting to the legal aid sphere. Given their efficacy, and the inherent costs and time required to establish any new standard, there is no obvious need to develop and introduce one.
However, we cannot of course completely rule out the possibility that a new standard might be introduced at some point in the future under the provisions of the Bill. In that eventuality, the Lord Chancellor would, so far as it would be constructive and appropriate, engage with relevant representative bodies in the development and design of any such scheme. There is no need to make this a requirement in the Bill. The regulatory aspect of any such scheme would, in all likelihood, require engagement with the bodies mentioned in the amendment, as well as with the Legal Services Board and others—for example, the Institute of Advanced Legal Studies—to ensure that such a scheme was fit for purpose and had the support of the professions.
Historically, this engagement has always taken place and there is no reason to assume that the situation in the future would be any different. A recent example of this kind of collaborative working is the quality assurance scheme for advocates. The work was initially taken forward by the LSC and the Ministry of Justice, with the input of all relevant stakeholders, and is now being led by the regulators operating as a joint advocacy group. The JAG is made up of the three main regulators of advocates: the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards. This situation did not arise as a consequence of statutory requirement; it simply represents what is required in order to get any new quality standard established with the requisite support from the sector, and this would apply irrespective of the statutory framework under which any such scheme would be introduced.
Amendment 12 concerns the provisions in Clause 3 that enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for accreditation and monitoring of persons providing legal aid services. There are, of course, significant resource implications attached to the running of such schemes. These provisions would allow any accreditation body to meet its costs in carrying out any accreditation and monitoring function, which is entirely appropriate if they are to commit resources to such a function, and this reflects the current statutory provisions under the Access to Justice Act.
The same considerations arise in respect of where the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of that accreditation and the monitoring of the services that they provide. In conclusion, the provisions on charges for monitoring and accreditation are entirely appropriate and reflect the current statutory position.
Amendment 104 would require the Lord Chancellor to consult prescribed individuals and bodies before making regulation for criminal legal services for individuals involved in criminal investigations or proceedings. Clause 14 creates a power to make regulations that prescribe the advice and assistance that must be made available if the director has determined that a person qualifies for advice and assistance. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999 that require the Legal Services Commission to fund such advice and assistance as is considered appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings are distinct from those provided under Clause 12 to individuals arrested and held in custody. The services that we are talking about include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.
Lord Thomas of Gresford
The issue that concerns me in Clause 4 is subsection (3). Under subsection (4):
“The Lord Chancellor may not give directions or guidance about the carrying out of … functions in relation to individual cases”.
That is fair enough, but he must,
“comply with directions given by the Lord Chancellor about the carrying out of”,
his “functions”, and he must,
“have regard to guidance given by the Lord Chancellor about the carrying out of”,
his “functions”.
What does that mean? Does it mean, for example, that the Lord Chancellor can phone the director or call him into his office and say, “Now, look here, you’ve got far too many of these judicial reviews going through in relation to government business. I am not telling you about any particular case, so I am complying with subsection (4). But when it comes to subsection (3), would you please bear in mind that my guidance is that we have got too many of these cases? The judges are complaining. The lists are full.”? What exactly is intended by Clause 4(3)?
Lord Bach
My Lords, we have heard short but very impressive speeches on this very important group. Clause 4 is particularly important and it is absolutely vital that the Government get this right. We want to help them get it right all across the House. I hope that the Minister will have some freedom of manoeuvre on this matter, which is, in the end, a matter of some principle.
Perhaps I may start by commending the Government for bringing the Legal Services Commission inside the Ministry of Justice. When we were in power, we set up the Magee committee to produce a report on whether that would be an appropriate thing to do. It seemed to us at the time, and clearly to this Government, that there were a number of very good reasons why it is not satisfactory for the Legal Services Commission not to be an agency of government. In our view, it is appropriate that it should be and we commend the Government for doing that.
The problem always—it would have been as much a problem for us as it is for the present Government—is with the words “independence” and “perception of independence”. The Minister will know, as all of us know, that many interested people outside this House are very concerned about the drafting of Clause 4 and whether it meets what the Government clearly intend. No one is accusing them of bad faith here. Clause 4(4) shows that they clearly intend that this should be a system that works fairly and well. As the noble Lord, Lord Thomas of Gresford, pointed out, the wording is extraordinarily ambivalent and ambiguous, certainly as regards the relationship between subsections (3) and (4). The Government need to look at it again, and, I would argue, it probably needs to be redrafted.
I do not know whether noble Lords have had the opportunity to see an interesting, short note from Justice on this topic. Mr Roger Smith, who I think is well known to a large number of people who are interested in this issue and who has huge experience in this field, makes a very good point as to why this present drafting is not satisfactory. He says on what I think is an important part of the argument that:
“The provision will be most objectionable where the Director makes a decision to refuse legal aid for judicial review against his own minister. However justified that might be on the individual facts, it would be argued that the Lord Chancellor is being a judge in his own cause. Indeed, it may well be”—
this is the clever point—
“that interest groups are motivated to make exactly that accusation, regardless of the substantive worth of their application, precisely to obtain more publicity for their cause”.
As an example, among many others that could be referred to, he has shown where the Government have to tread extraordinarily carefully to make sure that independence is real and is perceived to be real. I therefore ask the Minister to be sympathetic and to look very carefully indeed at how this clause is currently drafted.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Bach, for the way he has summed up the debate. This clause reflects the Government’s absolute determination to make it clear that the director will be independent. I have to say that when I look at this cluster of amendments and see the names that are attached to them, I am tempted to repeat a phrase that I use occasionally about my own collection of legal advisers: if I had to pay them, I could not afford them. This is a very distinguished group of legal opinion and I make my reply conscious that that weight of opinion has been reflected in the debate.
Clause 4(4) gives clear guidance on the limits of the Lord Chancellor’s powers. However, I take on board the fact that there have been cases in the past of friction between senior civil servants and Ministers, and if Parliament is going to create an important body and function it will need to be perceived very clearly. I take the point made by the noble Lord, Lord Bach, that perception is also important. We have to get this right.
I want to make clear the point made by the noble and learned Lord, Lord Woolf. As I told him earlier, I have in fact signed off a letter to him, but cock-up often triumphs over conspiracy in these matters. As far as I can see, there was no intention to block the meeting he wanted, and somewhere in the postal system—this is not the Government’s standard promise that a letter is in the post—is his letter. I am sure that when he gets it, he will respect me in the morning because it does say that we certainly have no objection to the kind of meeting he seeks.
I am not sure that I would go as far as the noble Lord, Lord Howarth, on the point that the demonstration of independence needs civil servants to figure in television interviews and so on, although I have noted the points he made. It is also worth noting that some suggestions were made about dangers to the director’s independence—here I tread lightly into suggesting a legal form of words—but it would be ultra vires for the Lord Chancellor to interfere in directorial decisions in individual cases, and in that respect he is well protected by Clause 4(4). However, it is true that the Lord Chancellor will decide the criteria by which exceptional cases are granted funding, and these criteria will be published. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying-out of the director’s functions under Part 1 of the Bill, the Lord Chancellor cannot give directions or guidance to the director about the carrying-out of those functions in relation to individual cases.
Lord Bach
My Lords, I am sorely tempted to test the opinion of the House on Clause 4 tonight; I think it would be the better course to take. I am going to resist that sore temptation, but only just, because—here I am supporting what the noble Lord, Lord Pannick, said in his closing remarks—apart from the Minister’s final remarks, his response to the debate was unsatisfactory. His response runs the severe risk—against the Government’s real instincts, I am sure—of being careless of the independence point. That is a fundamental point and, as the Minister himself pointed out, exactly the sort of point that this House is quite good at dealing with in revising legislation that comes from another place. Frankly, the current draft is just not good enough, and this point is so central that at some stage the House will have to take a view on the issue. I very much hope that the Minister will use his powerful persuasive powers to persuade others in the ministry that the clause must be altered for the better.
Lord McNally
I have a full speaking note on Clause 4, but I have heard what the noble Lord has said. I am not sure how persuasive my powers are. I want to read the debate in Hansard; one of the good things about Committee stage in the Lords is that it gives us a chance to hear the voices. I will consider this with my right honourable and learned friend, but I will spare the House my speaking note on Clause 4.
“Legal Aid appeals
(1) Decisions of the Director under this Part shall be reviewable by a first-tier tribunal established under the Tribunals, Courts and Enforcement Act 2007.
(2) The primary functions of the tribunal in respect of subsection (1) are to—
(a) consider applications for review; and(b) conduct and determine reviews,following a decision being made by the Director in respect of eligibility for legal aid under Part 1 of this Act.(3) A decision of the tribunal may be reviewed or appealed in accordance with the Tribunals, Courts and Enforcement Act 2007.”
Lord Bach
This, I hope, is one of the least controversial of our amendments. If enacted, it would ensure that the decisions of the director of legal aid casework were subject to the ordinary standard mechanism within the United Kingdom for challenging decisions of administrative bodies—that is, the tribunal system. We are going to hear a lot about tribunals during the course of the Bill. The Government’s line about tribunals—they have told us this already and will no doubt repeat it—is that the First-tier Tribunals that were set up to be user-friendly are a success, are the right forum for challenging administrative decisions and are an effective forum. So we know that the Government support the system of tribunals.
We have an array of First-tier Tribunals, the name given by the Tribunals, Courts and Enforcement Act 2007 to those bodies where appellants can appeal a decision in the first instance. Each of those tribunals is there to ensure that decisions made by emanations of the state are legally sound. For example, the General Regulatory Chamber of the First-tier Tribunal hears appeals against decisions by the Charity Commission, the Claims Management Regulator, the Office of Fair Trading, the Environment Agency, the Information Commissioner and local authorities. The Social Entitlement Chamber, where we would imagine these cases being heard, hears appeals against decisions by bodies that deal with social welfare and disputes about income support, jobseeker’s allowance, pensions and unemployment support allowance. There are four other chambers but the Committee will be pleased to hear that I do not intend to list all their duties. It should be clear that the established mechanism for challenging decisions by state bodies is the tribunals system, and we believe that in this amendment we are following the logic of the existing system.
Lord Phillips of Sudbury
Is one to read Amendment 18 as meaning that on any appeal from a refusal there will be an oral hearing, or is it possible that the initial appeal could be dealt with on paper? That might be a great deal quicker and cheaper in the first instance. One could then reserve an oral hearing for the really difficult cases.
Lord Bach
My Lords, I hope that I am correct in saying that our intention is that there should be a process whereby written applications can be made, but always with the provision that there can be an oral hearing in certain circumstances. The noble Lord makes a good point. I beg to move.
Lord Thomas of Gresford
My Lords, I wish to speak to Amendment 96 in my name. We take the view that the appeal to the First-tier Tribunal against a refusal of legal aid is a little excessive. However, we take the point that was made by the noble Lord, Lord Bach, a moment ago that the European convention requires that there should be an appeal process. We note that in Clause 11, headed “Determinations”, there is a provision in subsection (5) that regulations,
“must make provision establishing procedures for the review of determinations … and of the withdrawal of such determinations”.
That is fine, but we do not think that the review should be carried out by someone else within that executive agency about which I was talking a moment ago. We believe that an appeal should be made to an independent panel.
Your Lordships will recall that on Second Reading or on the first day of Committee I was involved in a clash over who had the longest involvement in legal aid. I recall that legal aid applications and appeals were very well dealt with by an independent panel of local solicitors within the area. It was all devolved. You did not have to come to London or attend a First-tier Tribunal in whatever building that tribunal sat. The matter was dealt with locally by people who understood the locality and probably knew the solicitor who was appearing before them to make an appeal, and had some idea how far they could trust that individual and how experienced he was.
Lord McNally
As I say so often, I am not a lawyer—thank God.
There was a question about how the independent funding adjudicator system is working. Some 11,560 reviews were received in 2010, of which about 3,500 were subsequently appealed to an independent funding adjudicator at a cost of about £18 per case. The total cost of these appeals was just over £63,000, so it appears to be a very cost-effective scheme. I hope that the noble Lord will withdraw his amendment.
Lord Bach
I will withdraw the amendment, of course, but there is a real issue here which goes to the independence issue that we debated in the previous group. We argue that it is not satisfactory for there to be a system in which the LSC, as it were, comes in house and becomes an agency of government, with the old process of reviewing decisions remaining exactly the same. That is because the adjudicators, independent though they may be, are appointed by the ministry, so again there is the problem of the perception of independence. There must be a system of appeal against a legal aid decision.
I am certainly not in the mood to fall out with noble Lords opposite who believe that there is a better system than that of tribunals. They may be right or wrong, but what we agree on is much more important than what distinguishes us: namely, there must be a genuinely independent appeals procedure. Of course we do not want it to be expensive or long-winded, but there must be one in order that the perception of independence is there. I am afraid that the Government have not yet got the point that the system proposed in the Bill is not satisfactory for those who are refused legal aid and go to the adjudicator who has been appointed by the Ministry and are refused again.
For the perception of independence, it would be so much simpler and easier for there to be either a chamber of the tribunal or another totally independent body that will decide these issues. There are not that many of them each year; it would not cost the state a great deal of money. However, the principle of being able to appeal against a decision made in this case by a civil servant who has been appointed by the Lord Chancellor is very important. I beg leave to withdraw the amendment, but we may come back to this on Report. If we are coming back to the earlier independence issue, we shall have to come back to this one as well.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 4 months ago)
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Lord Hylton
I support the principle laid out in Amendment 78, which is in this group, because appeals will almost always involve points of law. However, I urge the Government to think further about the kind of legal advice that is essential to immigrants and asylum applicants at a much earlier stage in the process. They cannot be expected to know when they leave their country of origin everything that is contained within the 1951 UN Refugee Convention, nor can they be expected to know the highly complex law that we now have in this country, much of which is expressed in statutes which refer to earlier statutes.
Therefore, I ask the Government to think deeply, as the previous Administration began to do when they set up the Solihull pilot project, about providing legal advice to asylum seekers at a very early stage before even they have had their principal interview. That project has been going on for more than one year. I hope that it will very soon be possible to draw practical conclusions from it which can be extended to the whole country.
Legal advice for these people does not necessarily have to be given by fully qualified solicitors or barristers who know or can be expected to look up the whole range of English law; it needs to be given by persons who understand the current content of immigration or asylum law.
Lord Bach
My Lords, I apologise to the Committee for not being present during the first, very important debate. I hope that I informed the principal players in that debate that I would not be here for personal reasons —I had to go to a funeral of a dear friend. I am grateful to the Minister for welcoming me in the manner in which he did. However, when I came and heard my noble friend Lord Beecham making his speech, I wondered why I bothered to come back at all.
Lord Bach
That is what I mean—in case there is any misunderstanding about it. I can see how that could be misinterpreted.
As the noble Lord, Lord Thomas of Gresford, said, with his Amendment 2, to which he spoke along with his later amendments, Amendments 29 and 78, we get down to the nitty-gritty. I want to talk briefly about Amendment 19, which is in my name and that of my noble friend Lord Beecham. It is the first outing of what I think will be a very important issue in this Committee, which is what should happen to scope of legal aid in particular areas of social welfare law.
The noble Lord, Lord Thomas of Gresford, and the others who spoke in favour of his amendment have been too gentle with the Government on this issue. It is absolute nonsense that there could be any question that anyone who gets to the second tier, the Court of Appeal or even, heaven forbid, the Supreme Court, on a point of law—for example, on a welfare benefits issue—should not have legal can not afford their own lawyer to conduct their case, and I very much hope that the Government put it in the Bill in order to take it out. It is inconceivable that John Smith, as it were, could turn up alone at the Supreme Court with his case and be faced with the Supreme Court justices and the very experienced and brilliant counsel representing the other side. I cannot think of any other Government, of any persuasion, ever having thought of doing anything like that. I am quite sure that the Government of whom the noble Lord, Lord Newton, and the noble and learned Lord, Lord Mayhew, were distinguished members would not even have dreamt of suggesting that someone should appear on their own at a case like that without the benefit of legal aid. I very much hope that we do not hear too much more about it.
Some vital case law—on welfare benefits, for example—has been decided at the higher courts as a consequence of the claimants concerned having been properly legally represented. Big social security test cases which reached the higher courts by way of the appeals process include Zalewska, on the lawfulness of the workers’ registration scheme; Hinchy, on the interpretation of the overpayment recovery test; Pedro, on the meaning of “family member in EU law”; and Mallinson, the seminal case on the interpretation of the law on disability living allowance. The idea that cases of that kind, or even those that are less important, should be conducted by a claimant in person is absurd. So I hope that the Government will accept Amendment 2 without cavil. Whether the wording is right is not a matter for tonight, but it is the principle that matters.
We argue in our Amendment 19, which is a probing amendment designed to find out what the Government feel about it, that the law should go wider and that there should be no question of taking out of scope reviews of welfare benefits. The amendment would ensure that individuals seeking to defend their fundamental economic and social rights had the advice that they needed to be able to present their cases and understand the processes that they would be subject to. Our amendment would allow the applicants to get advice before going to a tribunal. The First-tier Tribunals were set up, as we have heard, to consolidate the various tribunals that adjudicate on administrative matters of the state. Admirable work has been done and is being done to try to make First-tier Tribunals as user-friendly as possible—I praise the noble Lord, Lord Newton of Braintree, for having played a big role in this, as well as Lord Justice Carnwath, whom we should congratulate on being elevated to the Supreme Court today.
Lord Phillips of Sudbury
The noble Lord’s mention of Lord Justice Carnwath put me in mind of a fact which none of us has so far mentioned but which I invite him to endorse, which is that the amount of court and tribunal time wasted by having unrepresented appellants has a cost attached to it.
Lord Bach
I agree with the noble Lord and I shall say a little word about that before I sit down.
Admirable work has been done in the First-tier Tribunal to make it as friendly as one can. However, it is impossible—and the Minister has heard this from around the Committee today—to square the circle in that those tribunals still fundamentally are ruling on matters defined and decided through laws, rules and guidance, which is sometimes pretty heavy, that often carry criminal sanctions if violated. It is quite clear when one looks at official statistics on the First-tier Tribunals that the Government are wrong when they say that tribunals can be accessed without advice. You are twice as likely to win an appeal if you have had some basic advice rather than no advice at all. The Minister's team has kindly provided information that allows us to quantify the increase in likelihood of winning an appeal if the appellant has been advised. This is to the First-tier Tribunal. For some types of cases, such as employment support allowance, you are more than twice as likely to win. Given that it allows people to return to work, seeing thousands of cases that would have been won with advice is surely wrong headed.
Lord Thomas of Gresford
Rather than saying that cases would have been won, would the noble Lord not use the expression “gained access to justice and obtained the benefits to which they were entitled”?
Lord Bach
In my legal career and otherwise, I have always given way to better phrases used by Welsh lawyers and certainly by the noble Lord, Lord Thomas of Gresford, and I do on this occasion too. Access to justice is rather important because you cannot win if you do not have access to justice. One of the worries is that the Bill will ensure that there is no access to justice for many who have had it up until now.
The reason for marked disparities is that appealing on welfare benefits inevitably requires, as my noble friend Lady Lister and the noble Lord, Lord Newton of Braintree, have just mentioned, an understanding, whether we like it or not, of complex statutes and rules and guidance that govern how the state evaluates an individual's eligibility for legal aid. Had legal aid not been present in 2009-10, if we apply the success rate for those without advice to those who did receive advice, 51,223 people in total would have lost their appeals. The long-term cost of supporting those people is incalculable. Never mind Second-tier, Court of Appeal and the Supreme Court; to take out of scope advice on a review to the First-tier Tribunal is unfair and wrong.
The effect of people not being able to exercise their rights is again frankly explained in the Government's own impact assessment. The Government say that the changes may lead to:
“Reduced social cohesion … Increased criminality … Reduced business and economic efficiency … Increased costs for other Departments … Increased transfer payments from other Departments, in particular higher benefits payments for people who spent their savings on legal action”.
In welfare benefit cases, it is not enough to have legal aid at the Second-tier Tribunal upwards. In fact, if you do not have it earlier you are unlikely to ever get to the Second-tier Tribunal or above. Advice is needed when seeking to review, for example, DWP decisions before the First-tier Tribunal. It does not have to be expensive or sophisticated legal advice, but it has to be legal advice.
If advice is given at that stage, hopeless cases, as has been said, can be got rid of. First-tier Tribunals would not be so clogged up in the future. The Committee will remember what Judge Martin of the Social Entitlement Chamber said about unrepresented defendants—that at least 10 per cent of time is wasted in explaining what is going on. Proper cases can therefore go ahead quicker. In particular, many legal issues can be sorted out by the advice that is currently given so that the wrong can be put right before the tribunal ever gets involved.
That is what the present system does, although not perfectly. Lots of people do not take advantage of it and sometimes it does not work, but more or less it works pretty well. People get their advice, which frankly does not cost very much money and lawyers certainly do not get rich on it. The truth is that many cases no longer have to go anywhere near a tribunal. It does not encourage courts or tribunals: it actually avoids courts and tribunals. That is why it is slightly ironic that the Lord Chancellor said today in his Guardian article that legal aid’s,
“broad scope means that problems are dragged straight to the courtroom that could often be solved earlier and more simply elsewhere”.
That comment is not his finest: I would go so far as to say that it is rather absurd. The type of legal aid that he seeks to abolish is exactly the type of legal aid that he should be encouraging and reinforcing because it avoids courts and tribunals rather than encouraging them. In fact it often has some sort of mediating effect, and we know that mediation is an important and proper part of the Government's policy in this field.
The Minister has described himself today as a social democrat and someone who has a copy of The Rule of Law by his bed. If he is a person of that sort, he must see the argument that has been put in the Committee tonight.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 4 months ago)
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Lord Bach
My Lords, this amendment, short though it is, is important because it allows the Committee to question the Minister and to have a discussion around public legal education. That subject does not appear much in the Bill and we thought it worth tabling a probing amendment. If the Minister is not able to answer all the questions today, I am sure that he will be kind enough to write to Members of the Committee.
Perhaps I may go down memory lane for a moment or two. When I held the position that the Minister’s colleague, Mr Djanogly, now holds, part of my brief covered public legal education. It was based on the thesis that, of course, it is important for people to be able to access justice, but people will do so only when they know that a civil wrong may be or has been done against them. The truth is probably that many millions of our citizens do not know when they have some claim—perhaps not big or major—because some civil injustice has been done against them. They have no idea how the system works.
We very much want to keep the good things in this system, which means that people with a legal claim can get advice and, it is hoped, sort out the claim in that way. We think that legal aid plays an important role in making that system work. However, when we live under the rule of law in a modern liberal democracy, what do we do when people do not have a clue about their rights and responsibilities in this legal sense?
I was lucky enough to chair a pretty powerful committee of independent outsiders at the department on this issue. From outside the ministry, a committee group was led by the brother-in-law of the noble Lord, Lord Brooke. He is a very distinguished former Lord Justice of Appeal who has done very good work in many fields, as the Minister is confirming. The committee included people such as Professor Hazel Genn; Richard Susskind, the expert on legal IT and associated subjects who has advised Governments of all colours and none; Michael Smith, a very distinguished solicitor; the chairman of the Legal Services Board; and Amanda Finlay, to name just a few. What we talked about and tried to do something about, and what we as a Government were prepared to put money into, was an attempt to make our legal system better understood by ordinary citizens.
Public legal education is not a very attractive phrase, but we know what we mean by it. The question was where we would concentrate the limited resources that were devoted to such a concept. It seemed to me that there was one place where more work ought be done. Some work had been done in schools, which was excellent, but more was needed. Also, sixth-form colleges and colleges of further education were places where probably there was not much teaching or education even in its broadest sense about a citizen's legal rights and obligations. We thought that this was an important part of trying to establish a proper democracy that lives under the rule of law.
I hope that other noble Lords will join in the debate and ask other, perhaps deeper questions. In the Bill the requirement to provide legal education is discretionary rather than mandatory. Our probing amendment argues that it should be mandatory; there should be an obligation on the Lord Chancellor. What mechanisms does the Minister’s right honourable friend intend to use to secure the provision of information about the law? That is an important point. Online facilities, with the exception of YouGov, are fragmented and of varying quality. How does his right honourable friend intend to work with other departments of state and external actors to ensure that citizens are informed of their rights and duties when interacting with the state and other services?
I think that most noble Lords in Committee will agree that this question could be well directed to the Department for Work and Pensions, because I imagine that we will talk quite a lot about mistakes that have been made by that department. However, it applies also to the Department for Education, the National Health Service, private banks and of course local authorities. Our concern is that the Government have rather put on one side this sort of work, either for financial reasons or because they do not believe that it has much place in the Ministry of Justice's responsibilities.
What is the Government's attitude towards the future of public legal education under our system, and to the goal of educating more of our citizens in the ways of knowing what their obligations and rights are, so that they do not walk around blind to the kinds of rights and obligations that they have in a society such as ours? That is the point of the amendment. I need hardly tell the Committee that of course I shall not press it; it is a probing amendment to elicit the Government's views on the issue. I beg to move.
Lord McNally
He will be very annoyed; that is what his father was called. It is one of the problems of being in the House of Lords that you remember their fathers. I am working with Francis Maude on our transparency agenda. On a number of things that have been, and will be, discussed in this Bill, some of my noble friends talk as if the legal profession was set in aspic. I suspect that we are about to see an enormous change in the legal profession. As in any sector where there is change, it is unsettling, but it could also be very enabling. I wonder whether alternative business structures, whereby accessing a lawyer might not be so formidable as calling on the high-street solicitor but a matter of going to somewhere in your local Co-op, might make a difference in terms of access.
Noble Lords underestimate just how willing people are to use the telephone and, increasingly, their e-mails and computers to get information. One has only to see the impact of eBay to appreciate how confidently people use that kind of technology for everyday use. The idea that people will get their advice via telephones and computers is not so far fetched.
The noble Lord, Lord Howarth, asked me what the department was doing. Through Directgov, the public can gain access to a range of information online about the justice system, including legal aid. The introductory page on legal aid on Directgov includes specific information about accessing the community legal advice helpline via the telephone or by completing a web-based online form to book a call back from the helpline in a language and at a time convenient to the caller. Plans are for e-mail advice and community legal advice, and the Legal Services Commission is currently working to enhance the facilities for clients to access advice electronically from the community legal advice helpline via secure e-mail. Initial access to the CLA e-mail advice service will be via the current “contact us, call me back” page on Directgov.
Online general services come in three forms: free web-page services provided by a variety of commercial and not-for-profit organisations such as National Debtline, the Adviceguide from Citizens Advice, and consumer credit counselling services.
I went to the Law Society awards ceremony earlier this year and it was interesting how many of the award-winning companies had online services. Some of them went quite a way down in terms of advice before you pressed the button to start being charged. Again, online services are an interesting development.
These online and digital resources also explain court processes and procedures and how court hearings work, which is particularly important for litigants in person. There are a number of links that demonstrate how comprehensive these resources are. They give advice on, for example, how to avoid repossession, what to do if you get into mortgage arrears and a whole variety of other services.
I am suggesting that part of what the noble Lord, Lord Bach, raised in this amendment, which I welcome because it allowed us to tease out some of these matters, is that a great part of our responsibilities under this section will be carried through by the new technologies. We believe that the public, who in other parts of our life show an amazing capacity to use these new technologies, will find them an important part of understanding and having access to our legal system.
We resist the amendment because we think that this should not be a duty, although it is certainly a direction of travel for the MoJ. We regard the creation of a duty at this stage to be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all-encompassing service. I hope that the noble Lord will accept where our intentions lie and where our direction of travel lies, and at this stage will agree to withdraw his amendment.
Lord Bach
I will withdraw the amendment in due course, although I must say that having had the support that I have had around the House I am sorely tempted to have our first vote on this Bill tonight. But as I think that we are probably the only part of the whole of British society that is working at the moment—they certainly are not at the other end—I will resist that very strong temptation.
I am about to find out what Section 4(2)(a) of the Access to Justice Act 1999 says. I believe that it says that the Government have to provide general information about the law—I will find out in a moment—so the praise with which the present Government have been lauded during the course of this debate for having raised this issue for the first time ever may be a little premature. At the same time, it is good to have it in the Bill, but not good to see it as a “may” rather than a “must”. I shall start by saying to the Minister that we may well come back to this on Report, on the basis of what he said.
Section 4(1) of the Access to Justice Act says, under the heading “Community Legal Service”, that the commission—which means the Legal Services Commission—shall,
“establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs”.
We met those last words earlier today, so I will not mention them again. Subsection (2) goes on:
“The descriptions of services referred to in subsection (1) are … (a) the provision of general information about the law and legal system and the availability of legal services”,
so the Government have done well to put it back into this Bill, but it is a pity that it is voluntary and not mandatory.
I would like the noble Lord to tell us, either tonight or in writing, what is in the budget for this work—what is being spent on it this year and what is planned to be spent on it next year. I hope that the answer is not “Nil”. I rather fear it might be.
Lord McNally
I cannot give precise figures, but I am, as I said, the Minister responsible for digital development within the system and have been witnessing a lot of work going on, concerning how to make websites understandable, accessible and people-friendly. Since we are being swamped with advice, a little bit that has come to me says that, under the Access to Justice Act 1999, the provision of information is part of civil legal aid, but we have decided to take it out of the concept of legal aid because, although it appears in Section 4(2)(a) of the 1999 Act, the Legal Services Commission did not in practice treat it as something that it would normally fund. It was put in the Act, but nothing happened, which is not unknown.
Lord Bach
We spent quite a lot of money on it, and planned to spend more. I think that that is as far as we can take it tonight, but if the noble Lord can supply the figures, if there are any, that would be helpful to the Committee.
I want to thank all noble Lords who have spoken in this fairly short debate. I particularly want to praise the noble Lord, Lord Phillips of Sudbury, for his role in the Citizenship Foundation. As my noble friend Lord Howarth pointed out, it is wrong to congratulate him this week if citizenship is no longer to play the role that it has done in the curriculum. I suspect that the noble Lord, Lord Phillips, will have more to say on that, perhaps even now.
Lord Phillips of Sudbury
My Lords, I would simply like to make clear that the noble Lord, Lord Howarth, was right up to a point: the issue is not decided. There is everything to play for. I say to anybody in this Chamber who thinks that it would be a bad step, please get your pen out and write to Mr Gove.
Lord Bach
As the noble Lord says, there is everything to play for—rather like this Bill, I hope.
At the risk of taking up too much time, I will just quote from the speech of Lucy Scott-Moncrieff, the vice-president of the Law Society this year, who I am sure will be a very distinguished president next year. She has had a great deal to do with the Law Society’s reaction to and comments on this Bill. In a speech to the Northumbria School of Law earlier this month, which I have been lucky enough to see, she said the following, which I think is pertinent:
“But access to the courts is only half the story … the story of those who know that they have a problem, and perhaps know that there is a legal remedy, but have limited opportunity to use the legal system to achieve justice. The other part of the story concerns people who may not realise that their problem has a legal remedy, who have a whole tangle of issues affecting their lives which need to be unpicked to understand what solutions are possible - which may or may not be legal solutions. Very few people who receive legal advice proceed to litigate”.
That point was made before the dinner break. Those are wise words and there is a lot for the Government to gain by making sure people have a better understanding of their legal rights.
I will withdraw the amendment in a moment, but will just say that this is an issue that may be small in terms of the length of amendment, but may be an important issue that we should press the Government on when we come to Report. I seek leave of the Committee to withdraw the amendment.
“( ) The Lord Chancellor must ensure that a person eligible for legal aid advice is able to access it in a range of forms ab initio, including securing the provision of initial face-to-face advice.”
Lord Bach
My Lords, we come on now to an important element of Part 1 of the Bill, which is the mandatory gateway. Although I am sure the Committee knows this very well, I just remind noble Lords that if the relevant area of law is out of scope, there will be no point in ringing up the mandatory gateway, because the client will be told—no doubt very politely—that this is not in scope and that they will have to go elsewhere if they want legal advice. When we talk about the mandatory gateway, it is for the areas of law that remain in scope, such as parts of housing law, very small parts of debt, community care and parts of education. We are talking about a limited field. It is no answer to the areas of law that it is intended to take out of scope.
I start by saying that my experience as a Minister was that the telephone advice centre is a fantastic channel for delivering advice. I am sure that the noble Lord and his colleague the Legal Aid Minister have, as I have, visited telephone advice centres and been impressed. I certainly was in my turn. It can be convenient for those with busy lives, allowing them to access services at their convenience, and it can be—although it is not always—a cheaper way to deliver advice than face to face through a bricks-and-mortar centre. We also have the community legal advice helpline, which is excellent. All of us, I am sure, would be glad to see the work of that organisation continue and expand.
However, there is a “but” here, and it is a big “but”. We on this side of the House do not think that the right way of dealing with the issue of getting advice lies in the Government’s plans to institute a mandatory telephone gateway. We will ask the Government exactly what they intend, but this would seem to mean that anyone seeking to use a service funded through the legal aid and advice scheme would have first to call a hotline that would then direct them to the right service.
Our concerns are these. It is proposed to introduce the mandatory single telephone gateway first for matters of debt, although comparatively few debt matters are left if the Bill goes through in its present form; for special educational needs—that part of education law that the Government have had second thoughts about and that is still now in scope; for discrimination—the only part of employment law that remains; and for community care cases, which, again, the Government quite rightly had second thoughts about. The Government have stated their intention to roll it out to other areas of law as soon as practicable.
It is hard to find much mention of the mandatory gateway in the Bill. You have to look pretty hard, but in Clause 26 the Committee will see that there is mention of various ways in which advice can be given. It is otherwise something that we know about because the Government have spoken a lot about it, but it is not something that appears directly in the Bill. Clause 26(2) is actually the subsection that I am thinking of.
If the Government have stated their intention to roll out this mandatory gateway as I have said, they have failed in our view to answer, particularly in another place, some fairly fundamental questions that need answering before Parliament should sanction such a departure from the present abundance of channels. Perhaps the Minister can illuminate us as to how the Government’s thinking has evolved on this issue, which I am sure they have spent a long time thinking about.
When an individual with learning difficulties, for example, communication and speech problems or mental health problems tries to find help, will they be able to, first, find this new gateway service, secondly, properly access and understand the service and, thirdly, gain full utility from it? Will an individual who may be severely upset or traumatised—a victim of domestic violence, perhaps, or someone who is in extreme debt and feels rather ashamed about it—be willing to speak to a distant person without the comfort of direct, human interaction? Is it really the Government's case that they will all be happy to do that?
How will someone who is utterly impecunious be able to make a lengthy telephone call, in which the caller refers to documents and must wait for interpreters and answer detailed questions, in anything close to an acceptable manner from, say, public telephone boxes, which still exist? For those with English as a foreign language, there may be a particular problem. There might be an interpreter, too; three-way conversations are hardly practicable. It will be difficult to consider documents over the phone. What if the caller is perhaps semiliterate or, in fact, illiterate? They will obviously need personalised help—the kind of help that they get at the moment. What if there is a mass of documents, only one or two of which are particularly relevant? Visually, someone obviously sifts through these papers, as they are using knowledge in a particular form that is relevant, but it could become a nightmare on the telephone.
We think that those fears, which I am sure the Government have thought about, might prove an insurmountable hurdle to a number of those who, quite justifiably and within their rights, need legal advice or help. There are those with communication problems or mental health issues, those with learning difficulties or literacy issues, and those who just cannot express themselves in a particularly articulate way. Those who would be unwilling to use a phone need the immediacy of face-to-face contact and we fear that they may drop out. If the mandatory gateway is the only way through, will they actually get the advice that may solve the problem or get them their rights?
There is an economic argument, too, because if telephone conversations become muddy and too long, with both parties struggling to make themselves understood while sifting through masses of paper and language difficulties, cost-efficiencies look much less likely. We think that there are ways of mitigating these issues, but at the moment there has been no proper debate about this issue. In a way, I am sorry that this debate is taking place in Committee at this time today, but it is still an opportunity for the Government to express their views and for other noble Lords to say whether or not they agree. On how this part of the Bill will actually work, we have little to guide us. We have Clause 26(2), but that gives us little insight into how it will work. I look forward to the debate on this issue in the time available to us.
I end, I hope not too pretentiously, with this comment: when the great writer EM Forster talked about only connecting—“Only connect” was his model for living—he was talking not about connecting two telephone wires but about human interaction. The Government should not discount human interaction when they or lawyers are in the business of giving advice on some of the matters that we have been discussing in this Committee. I beg to move.
Baroness Grey-Thompson
My Lords, I support Amendment 4, which has been comprehensively moved by the noble Lord, Lord Bach. I have a number of concerns about the gateway and how people may access it, specifically disabled people in the wider sense. While it makes a lot of sense to limit the access to the gateway to four areas initially, I feel that this could cause some difficulty for a number of people who may be confused about signposting. We are talking about areas of rights and obligations that are complex and specialised and require a great deal of knowledge of the system.
That leads me straight on to staff training. The Justice Minister in Committee in another place said that,
“legal qualifications will not be a contractual requirement”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 6/9/11; col. 294.]
I seek further assurance that, if this is pursued, appropriate training will be carried out.
While I am supportive in principle of simplifying any system—for disabled people especially, the idea of cutting down on travelling, which can be difficult, is very positive—I immediately start thinking of the number of people who might just find this method too difficult to use. Does the Minister have any thoughts on the number or possibly the percentage of people who may struggle to use the proposed system? Whether they be people with a hearing difficulty who might not have access to the right equipment if they are only recently impaired, people whose impairment may make this type of communication difficult, people with language difficulties or people with learning disabilities, the group could be wide and varied. It is not easy to categorise those people who might find some difficulty with this. Also, that presumes that the individual knows and understands how their individual impairment affects them. What about those who do not, or those who need extra help making the initial phone call?
I have also been thinking about those people who might find it difficult to take down an accurate record of what has been discussed, perhaps even to follow the line of questioning. I would like some more detail about how records are going to be kept and what information will be sent to the individual. If they do not agree with the record of the conversation, how will this be monitored? What is the follow-up?
I would like to understand how the system will be evaluated. Obviously, you need a trial system in operation to iron out as many bugs as possible, even if this is the trial system for wider expansion. I know from my work on the Welfare Reform Bill that the assessment process is critical not just to asking the right questions—that is hard enough—but to getting the correct and useful information from the individual and then being able to tie all that data together to get to an appropriate outcome. I receive a reasonable amount of correspondence about face-to-face assessments, where the visual recognition of response and the nuances of conversation are easier to pick up. That is why I am so concerned about the initial assessment being through a phone call.
The Minister mentioned the use of technology. I am a huge fan of technology, and for lots of disabled people it can be used in an incredibly positive way. I do not think that any of us would be surprised at how many young people are using technology now or at the stories in the media about toddlers who think that every TV screen is a touch screen and can flick through the channels—they are almost born knowing how to use this technology. The reality, though, is that older people and disabled people still struggle with different forms of technology. For me it is not just about the access to technology; that is just the first part. The second part is actually understanding how to signpost people to get to that information, and that is difficult for a large number of people.
Lord Bach
I will certainly withdraw my amendment, and I thank the Minister for his very full reply. Speaking for myself, I have to say that I remain entirely dissatisfied by his speech about this very important part of the Bill. I will be as quick as I possibly can be because of the time.
I thank the noble Baronesses, Lady Grey-Thompson and Lady Prashar, for signing the amendment in the name of my noble friend Lord Beecham and myself and for their excellent speeches, and I thank all other noble Lords who spoke—all of them against the proposal for the mandatory gateway.
A number of important issues came out, which I think the Government really should pay careful attention to. The remark made by the noble Baroness, Lady Grey-Thompson, that legal issues will remain unrecognised is a crucial point. The comment made by the noble Baroness, Lady Prashar, about reducing access to some of the most vulnerable is also crucial.
As far as the freephone service is concerned, I do not know whether the Minister is able to give an answer to the question asked by my noble friend Lord Howarth. We understand that the current cost of the community legal advice helpline is 4p per minute, but I do not know what the intention is for the future. Perhaps the Minister can tell us now or write about that when he has had the chance to ask.
Lord McNally
I will write to the noble Lord to clarify that. If there is a problem of cost, a person will be able to make a short call or send an e-mail asking for a call back. I will have to seek advice on whether the 0845 number is a free number.
Lord Bach
I am not concerned about that tonight, but the position is not clear yet and we need to be clear. The real problem is the mandatory nature of this provision, which is what worries us. It is not the fact that there will be telephone advice. Such advice is excellent. When the Minister gently chides some of his noble friends for taking the argument too far, surely the Government are taking it too far by insisting on a mandatory gateway. Flexibility is everything in something like that.
The Minister almost gave the game away when he said that someone who was unable to make a telephone call would somehow get advice from someone. No, they will not necessarily. Perhaps they will but they may not. Nor will they get legal advice, which they probably need, from anyone. The Government cannot be as vague about it as they currently appear to be.
What worries us is that the present system does not work badly. I wish to refer to two points made in the debate. The noble Baroness, Lady Prashar, said that these not-for-profit organisations and solicitors are embedded in the community. They are part of our way of life. The noble Lord, Lord Shipley, has a great deal of experience and knowledge in this field. He talked about the right advice from the right place. That is the British way of doing this and it is a system that works pretty well. There is flexibility and various ways in which a person can get advice. It is not that a person has a choice between all sorts of ways of getting advice—the best way for them will be obvious. But to restrict it to a mandatory gateway sounds almost too dirigiste for this country. We should be much more flexible, which is much more in our political tradition. What makes it even better is that it works. The great danger is that in their attempt to change everything, the Government will change this for much the worse. Of course, tonight I will withdraw the amendment but the noble Lord knows that we will certainly return to this issue.
Prisons: HM Young Offender Institution Feltham
Lord Bach Excerpts(12 years, 5 months ago)
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Lord McNally
Most certainly, and one policy in place is that if a young offender arrives late and there is no opportunity to complete the full assessment that evening, the young offender is classified as a vulnerable prisoner and is treated with suitable support. In the circumstances, that underlines the duty of care with which we approach this matter.
Lord Bach
My Lords, this is a Question about youth justice and I broaden it slightly. The Minister will know that the Government’s own impact assessment for the legal aid Bill, which is before this House at the moment, states that the proposals in Part 1 of the Bill—that is, the cutting of legal laid for social welfare law—generate a risk of increased criminality. It states:
“This may arise if unresolved civil or family disputes escalate, or if criminal means are used to resolve disputes in future”.
What is the Government’s estimate of the number of young people likely to be affected by these changes—specifically the likely number of young offenders—and how does that fit in with the Government’s policy of reducing youth crime?
Lord McNally
My Lords, we will have a very thorough opportunity to discuss the Legal Aid, Sentencing and Punishment of Offenders Bill. Impact assessments are what they are—assessments. It may be that some of the concerns do not arise; other factors may come into play. Therefore, I do not think it is realistic for me to give an answer to that speculative question.