Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Howarth of Newport Excerpts(12 years, 8 months ago)
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Lord Howarth of Newport
My Lords, the noble Lord, Lord McNally, is being a little optimistic. I am sure he willingly accepts that it is the responsibility of this House to scrutinise the Bill in all its aspects, but of course I will not detain the House a moment longer than is strictly necessary.
In our debate just now on the availability of appropriate experts to assist the courts, we heard about the importance of evidence-based judgments. The Government make much play of the importance that they attach to evidence-based policy-making. The amendment offers the Government an opportunity to establish that this policy, contentious as it is, if it is to be continued, should be properly based on evidence. That is why my noble friend Lord Beecham has proposed in the amendment the helpful suggestion that, two years after the commencement of Part 1, the Lord Chancellor must commission an independent review to assess various aspects of its provisions.
The noble Lord, Lord McNally, offered as the principal justification for the Government's policies in the Bill that it is essential that the economy does not run out of control. Of course, we all agree with him on that. He then asked: if economies are not to be made in legal aid, where are they to be made? I would like to offer a handful of illustrative suggestions to the Government as to where they could more acceptably achieve economies. I take three examples at random.
If the Government were to abolish the tax relief at the top rate on pension contributions, they could save £7 billion annually. For the life of me, I cannot see that people who are enjoying that tax relief at the moment need incentivising. There we have an order of magnitude far beyond any economies that the Government hope to achieve through their reforms to the legal aid system.
I hope that it is not entirely unacceptable if I venture to suggest that out of the budget of £9 billion or so for the Olympic Games, there might have been scope to find some economy to protect legal aid for the most vulnerable in our society. Again, if that is an untouchable budget, let me suggest something else. The cost of bonuses paid by the Royal Bank of Scotland, a state-owned bank, to its executives is £785 million. That is at the discretion of the Government. So there are alternatives.
I know that the noble Lord, Lord McNally, is very conscientious in how he seeks to acquit himself of the Ministry of Justice's responsibility to make its contribution to the reduction in the deficit. He says: if not legal aid, where? If it is to be legal aid, then, as my noble friends have repeatedly suggested, why could not the savings have been made to criminal legal aid? The answer that the noble Lord gave to that a little earlier was that already significant savings had been required from the criminal legal aid budget and it was therefore not timely or appropriate that further savings should be sought. My noble friend Lord Bach disagreed with him. He said that he, as a Minister, had foreseen clearly that there was significant further scope to make economies in the criminal legal aid budget. I have to say that it is a great pity, therefore, that the Government have proposed to make a reduction of only 8 per cent in that expenditure head, as opposed to the 53 per cent cut that they propose to make to support for impoverished appellants.
Lord Howarth of Newport
That certainly increases the case that I am rather lamely seeking to put forward. My noble friend is deeply expert in this field. It is, therefore, the more regrettable that the Government have sought to save only 8 per cent on the much larger criminal legal aid budget while taking 53 per cent from the funds provided to support people in poverty seeking to establish their claims for social welfare benefits.
The noble Lord, Lord McNally, said in our earlier debate that there had been difficulties with the equality impact assessment. I think he argued that it was methodologically very difficult to pursue it to the point that we were arguing it should be taken to. However, we know from the evidence of that assessment, unsatisfactory as it was, that the effect of these cuts will be disproportionate on some of the most disadvantaged people—ethnic minorities and disabled people, for example. Although it was found to be intellectually too difficult to complete the investigation initiated in that assessment, it clearly established that the risks of social injury were very great, and I do not think that a more prudent Government would have wanted to go further down that avenue. I was pleased to hear from the Minister that there is going to be a revised equality impact assessment in the light of any amendments that may be made to the Bill and, moreover, that the Government intend that there should be another impact assessment—I think that that is what the noble Lord said—in due course. Therefore, the Government’s thinking is beginning to concur with thinking on this side of the House.
If a post-commencement review is to take place two years after the commencement of Part 1 of the Bill, when enacted, there will by that time have been an opportunity to assess progress that may have been made in other regards to reduce the costs of the legal system and the courts, and that may leave a little more margin to restore legal aid to the levels that I am sure we would all wish to see it at. There are all sorts of ways in which costs in the system could be reduced in principle: the law could be made clearer and procedures could be made simpler. Perhaps lawyers could be paid less, although I do not think that lawyers doing legal aid work ought to be subjected to those kinds of savings. However, we could hope that there would be more pro bono work and that charities would provide more support to people in need. We could hope that the tribunals might indeed become more user-friendly, although I noted that the noble and learned Baroness, Lady Hale, in her Sir Henry Hodge Memorial Lecture earlier this year, discussing the question of whether tribunals could really be user-friendly, as their authors have always hoped they would be, and looking at the system of law they administer and the procedures that they developed in employment law and immigration cases, said that such a concept was, frankly, laughable. We might hope for better decision-making by public agencies so that fewer people have a need to appeal. We might also hope that alternative dispute resolution makes more progress, and that mediation, as the Government hope, will indeed lead to more expeditious and economical ways of resolving disputes.
All those things may develop and there may be progress, but I think it is unlikely in the extreme that we are going to see such appreciable economies or a system made so much more attractive and beneficial to disadvantaged people in those ways that we can reconcile ourselves to the loss of legal aid for welfare benefits claimants. Lord Bingham wrote judiciously in his book, The Rule of Law, that,
“the goal of expeditious and affordable resolution of civil disputes is elusive, and likely to remain so”.
However, if we have the post-commencement review that my noble friend has asked for, we can look at the progress that has been made on all those fronts. As a corollary of having this review, I think that my noble friend Lord Beecham is right to propose that there should be a sunset clause and that Part 1 would need to be positively revived in the light of the evidence that would have become available by then. Therefore, I am very happy to support the amendments proposed by my noble friend.
Lord McNally
My Lords, let me make it absolutely clear from the start that my spirits are lifted when I see the noble Lord, Lord Howarth, rise to his feet. In all seriousness, I believe that he is a very effective parliamentarian. I say that as a compliment. He researches his interventions, his arguments are well marshalled, and it is always a pleasure to respond to him. That is particularly the case this evening, when we have had a glimpse of what might have been: the Howarth Chancellor of the Exchequer Budget. There would be all the savings and cuts and the only thing that would stop Chancellor Howarth getting the country a triple C rating would be the presence of a triple D rating. Nevertheless, it is always a pleasure to respond to him, and that is why I intend to take at least 25 minutes to deal precisely with the points that he has made.
As the noble Lord, Lord Beecham, very frankly, pointed out, Amendment 7A would require a post-commencement impact assessment in the same terms as the pre-commencement impact assessment, which we discussed under Amendment 6. I do not propose to rehearse the same arguments again here, as the real issue of this amendment concerns its relationship with Amendment 161. That amendment would, as has been explained, place a time limit on the effect of the primary legislation, and any revival of its provisions would require the approval of both Houses.
I ask the noble Lord, Lord Beecham, to consider for a moment the legal, contractual and practical implications of the legal aid scheme under this Bill lasting for only three years unless Parliament’s approval were reaffirmed at that point and thereafter annually. That would undermine the approval that Parliament may give by seeking re-approval inside a period shorter than most governmental terms. I do not really think that this proposition for a sunset clause in this Bill is practical. I hope that the noble Lord will reconsider the wisdom of this amendment and withdraw it.
Lord Howarth of Newport
My Lords, I have been encouraged so fulsomely by the Minister that I rise to contribute briefly to this debate and to support my noble friend Lady Hayter of Kentish Town, who moved this amendment. She is right to draw our attention and, more importantly, the Government’s attention to the interaction between these two major pieces of legislation—this legal aid legislation and the welfare reform legislation—because they combine to impact in major ways on the fortunes, perhaps I should rather say the misfortunes, of people who are poor and disadvantaged. The Government have a responsibility to look to see what the combined effect may be, and I think what my noble friend has proposed—an independent review after a year—is entirely reasonable.
I would like to draw attention to paragraph (c) of my noble friend’s amendment. She wants the review to consider,
“the number and any increase in the welfare benefit cases that are made or referred to … parliamentary constituency offices”.
There is no doubt that the case load of Members of Parliament in their constituency offices will increase. People who do not know where to turn for remedy will look around and think that they must at least go to their Member of Parliament to see what he or she can do to help. Members of Parliament will be extremely willing to do what they can, but most of them will certainly not be in a position to give legal advice, and I rather suspect that Members of Parliament who are lawyers will be reluctant to give advice in their capacity as lawyers to constituents who come to them at their constituency offices.
Members of Parliament listen to what their constituents have to say and give them the best practical advice they can. They will take up the case for them or refer them to the Minister or to other appropriate agencies, but there is a very strict limit to what Members of Parliament can do to sort out such problems on behalf of their constituents. I think we need to recognise that, and also that IPSA has pretty drastically squeezed the resources available to Members of Parliament. If the workload of MPs is going to rise, one very relevant consideration is just what resources will be available to MPs to help their constituents. Equally, local authorities face reductions in their funding of some 30 per cent over the spending review period, and so will be less well placed than they would wish to support local people who find themselves in difficulties.
For example, local people with housing problems may have a complaint about their landlord; the landlord is not keeping their accommodation in proper condition. People will no longer have access to legal aid to enable them to sort out these problems. They might turn to the environmental health officer but the environmental health officer may take a very long time before he or she can get around to their case.
The “other prescribed agencies” that my noble friend mentions in her amendment are presumably charitable organisations; we talked about that earlier. The Government’s reduction to local authority funding is having a major knock-on impact on the funding that local authorities are able to provide for charitable bodies in their areas, including law centres and citizens advice bureaux. The effect of the recession is also squeezing the amount of income that is available to those agencies.
My noble friend does well to draw attention to some of these realities and I hope the Government will accept that there are problems here that they ought to review in the kind of way that my noble friend’s amendment proposes.
Baroness Hollis of Heigham
My Lords, I hope noble Lords will forgive me if I come in on an amendment that is rather dear to my heart, after the powerful speech by my noble friend Lady Hayter, because we both worked on the Welfare Reform Bill.
What struck me in that particular debate on the Welfare Reform Bill was that it is surely folly to withdraw legal advice at the time that you are bedding in a new system of welfare benefits, which will probably have greater effect on claimants than anything since the Second World War. I do not know whether I have the Minister’s attention but perhaps I could suggest to him that the one thing you do not do is withdraw legal advice about entitlement and eligibility at the very same time that you are introducing a major, vast set of changes to benefits.
As my noble friend Lady Hayter indicated, in discussions on the Welfare Reform Bill, the Minister, the noble Lord, Lord Freud, who had genuine respect for evidence, agreed to accept three major reviews post-implementation of the Bill: first, what would happen to private sector rented housing; secondly, what would happen to public sector rented housing; and thirdly, what would happen to disabled children. This is in respect of being informed by evidence and seeing what the effect of changes will be.
The Government are taking a leap into the dark on the Welfare Reform Bill and a leap into the dark on withdrawing the ability to seek legal advice at the time claimants are most likely to need it. At the very least, therefore, the Minister should follow in the footsteps of his noble friend Lord Freud and put in the basic safety net of a review to see whether the Government’s expectations will be fulfilled.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Howarth of Newport Excerpts(12 years, 8 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I beg to move that this Report be now received.
Lord Howarth of Newport
My Lords, before the House receives this Report, may we have an assurance from the Leader of the House that we will not be wasting our time as we scrutinise the Bill and offer our advice to the House of Commons by way of amendment? Will he confirm that there is no necessity for Ministers to advise the House of Commons to claim financial privilege in relation to Lords amendments that may have public expenditure implications, which in the case of this Bill would be modest at the most? Will he assure us that this time the Government will not hide behind 17th century resolutions of the House of Commons to prevent the House of Lords in the 21st century from doing its proper job as the revising Chamber of a bicameral Parliament?
Lord Newton of Braintree
I am sorry, but I cannot quite make it. I shall try again later.
Lord Howarth of Newport
My Lords, we shall look forward very much to hearing the noble Lord, Lord Newton, in a moment.
This is major legislation to reform the legal aid system, and the least that the Government can do is to incorporate within this major legislation the affirmation of principle that the amendment in the name of the noble Lord, Lord Pannick, calls for. His formulation is a modest one by comparison to the formulation that the Constitution Committee of your Lordships' House recommended should be incorporated, which would have laid upon the Lord Chancellor an absolute duty to secure effective access to justice. At a time when our society is particularly stressed by the rigours of recession and reductions in spending on public services, as well as by what we on this side of the House take to be a very harsh prospective reduction in benefits, it is particularly important that the Government should do what they can to reassure members of our society that they are committed to justice. The affirmation of principle that is called for in this amendment is for that reason the more necessary. So I hope very much that the Minister, having listened to the powerful arguments deployed on all sides of the House, will concede that this is indeed the right thing to do.
Lord Newton of Braintree
My Lords, I apologise for my slowness. I start by saying that I am so far the only person who has spoken who is not a lawyer or bishop. I would claim with the right reverend Prelate to be a humble seeker after truth. I am not sure what I would claim with the lawyers. But I do know that I am racked with guilt about the noble Lord, Lord Pannick, because on the last occasion that he brought this up I indicated that I was not with him. Indeed, last week when he asked me whether I was going to vote on an amendment and I said that I was going to vote with the Government he wisely ignored my advice and voted against it, which is probably what I should have done anyway. However, I find myself now on Report much more inclined to support the noble Lord, both because of what he said today and because—dare I say to my noble friend on the Front Bench; I have already warned him that I may be a bit troublesome today, but he will have expected that—the more that I look at the provisions, the more I doubt that the Government are committed to the principle reflected in the amendment to which most of us would be committed.
I do not doubt that the coalition Government, whom I strongly support in general terms, including the Prime Minister and the Deputy Prime Minister, are committed to freedom, openness, transparency, justice and fairness. The coalition agreement is littered with the rhetoric of all those things and I think they meant it and still mean it, although I find it difficult to see the connection between some of the proposals in the Bill and those declarations, particularly about freedom and justice. The Minister referred jocularly at Question Time to the Ministry of Justice’s motto being, “We’re the Ministry of Justice, here to help”. Frankly, you might query that when you have looked at the provisions of the Bill. The noble Lord, Lord Pannick, also referred to the Justice Secretary’s broad declarations on this. I could make a lot of rather tendentious points particularly in the area of administrative justice, to which we will come later with an amendment on which my name stands, but there are enough questions in all this to make me wonder much more about supporting this amendment, subject to what my noble friend may say.
Lord Howarth of Newport
My Lords, I should also like to support the amendment moved by my noble friend Lord Hart of Chilton. I will be interested to hear from the noble and learned Lord the Minister why, in the way the Bill has been formulated, there is a specific insistence that the director of legal aid casework should be a civil servant. There are possibly conflicting connotations in the term “civil servant”. On the one hand we always want to think of civil servants as people who are politically impartial; but on the other hand, it is the responsibility of civil servants to carry forward the political programme of the elected Government of the day. In that latter sense I share the anxiety expressed by other noble Lords that the director of legal aid casework, being a civil servant, may not be as sufficiently independent of government as is desirable and, importantly, may not be seen to be sufficiently independent.
We also take as an important principle of our constitution that the operation of the courts and the administration of justice should be separate from the operation of the Executive. Here, however, we have a proposed new set of arrangements which clearly brings decisions about the allocation of legal aid in-house. We were told in Committee that the director of legal aid casework will be an individual in charge of an executive agency. Perhaps it is the case—I do not know—that the directors of executive agencies are always civil servants, but if they are not, I would like to know why it is felt to be so crucially important that in this instance he should be a civil servant.
My noble friend Lord Hart touched on the possibility of conflict of interest. Very often the Government or one of their agencies will be the defendant in a case. Can it be right that a civil servant will determine who should or should not have access to justice in a case concerning, for example, judicial review, special educational needs, community care or the abuse of position or powers by a public authority? There is at least the risk of the perception that the odds will be stacked against a would-be litigant seeking remedy in the courts where there has been misbehaviour or abuse by a public authority.
In Committee the noble and learned Lord, Lord Woolf, made the case that it would be desirable that the person holding the office of director of legal aid casework should be someone with a legal background who, because of his experience and formation, would have a deep understanding of the way the courts work and of the legal system. He also made the point that it would be undesirable that the director, being a civil servant, should be expected by other senior civil servants working in the Ministry of Justice necessarily, as it were, to conform with their wishes. It is essential that the director of legal aid services should be both seen and heard to stand up for legal aid and those elements of the justice system that legal aid has always been, and I think still is, intended to secure.
I shall revert to a question that I raised with the noble Lord, Lord McNally, in Committee. Will the director of legal aid casework be allowed to have a public voice? If, for example, he comes to the view that directions or guidance issued by the Lord Chancellor or provisions made by the Treasury to support legal aid are inadequate or in some other sense wrong, will he be entitled to speak out publicly on behalf of legal aid, the beneficiaries of legal aid, or the people who should be its beneficiaries? The noble Lord, Lord McNally, told us that a framework document would be produced that will set out the governance and reporting arrangements for the relationship between the Lord Chancellor and the director of legal aid casework, and he assured us that that document would reflect the principle of independence of decision-taking by the director. Can the noble and learned Lord tell us whether the document is now available so that we can have the benefit of it as we consider the extent to which we should endorse the Government’s proposals or amend them?
Lord Clinton-Davis
My Lords, I agree entirely with the points just made by my noble friend. The views of the legal profession—the Bar and the Law Society—ought to be taken into account, and perhaps the noble and learned Lord who is to reply to the debate can comment on that. My understanding is that both have made submissions to the Government about their concern—concern which is profound and goes to the heart of what we are talking about. It is essential that the director’s independence from the Government is ensured and underlined, so there can be no cavilling about this. The issue is vital—always provided, of course, that the caveat entered by the Opposition’s amendment is underlined as well.
The final point I want to make is this. We are not legislating for the immediate future, we are legislating for the long term. If we are wrong, we can always amend it, but the principle that ought to be underlined in this debate is exactly that—that we are debating for the long term.
Lord Wallace of Tankerness
I do not agree that the person would become a non-departmental public body in his or her own right. My noble friend raises an important point because, as has been indicated on a range of issues, guidance will be given and criteria set. There will be a framework; there will be a responsibility for the Lord Chancellor; but the crucial point—and there is concern across the House on this—is that in individual cases there cannot be that level of interference. We believe that that is secured by the provision in Clause 4(4) that it would be unlawful for the Lord Chancellor to interfere in a way that undermined that freedom of decision-making in individual cases. More than that, other measures in the Bill provide for transparency to show that that is not being in some way undermined.
Lord Howarth of Newport
We accept entirely and welcome that the Lord Chancellor will have no power to direct or even guide the director of legal aid casework, but what about classes of case? Suppose the Lord Chancellor thought that too much legal aid was going to women who are victims of domestic violence, if we succeed in carrying the amendment that was passed earlier today all the way through. Would the Lord Chancellor be able to give guidance to the director that he ought to ease up in providing legal aid in that category of case? We have to be concerned on the broader point that the noble Lord, Lord Phillips of Sudbury, expressed so strongly in Committee and just now.
Lord Wallace of Tankerness
For example, guidance will be given under Clause 9 on exceptional funding, which could relate to classes of cases, but the criteria that are set and are there in regulations will be there by secondary legislation. That can in no way be trumped. Secondary legislation will have to be approved by your Lordships' House by the affirmative procedure. That cannot be undermined or circumvented by guidance. When the regulations are eventually brought forward, we will have an opportunity to look at that. That will be the primary source and it would not be possible for the Lord Chancellor by some other means to undermine what was in the regulations. If you wish to change them, you have to come back to Parliament with further regulations and Parliament would have a further opportunity for debate.
Baroness Prashar
My Lords, I support this amendment, which was so ably moved by the noble Lord, Lord Bach. He moved it in a very rational and considered manner. Therefore, there is not much that I wish to add, other than to say that the Government justified the cuts to legal aid in Part 1 on two grounds: savings to the public purse and the fact that these changes can be made without seriously damaging access to justice for the most vulnerable. However, we have heard a great deal from a range of organisations which say that the impact on the most vulnerable will be enormous. We do not know what the impact will be on courts, local authorities and a range of other agencies.
As far as can be ascertained, neither premise is based on firm evidence. The MoJ itself acknowledges that it is speculating on the likely effects of its proposals. What about evidence-based policy-making? Therefore, I urge the Government to undertake this comprehensive assessment of the impact of the Bill before it is implemented. Essentially, it is not just common sense but good practice and good planning. As has already been indicated, it will not stop the Bill but it will ensure proper planning and that the Bill is implemented with the knowledge of what the likely impact will be.
Lord Howarth of Newport
My Lords, I wonder whether the Minister could tell us a little more about when the Government anticipate commencement. What is the timescale on which they propose to introduce these changes? Unless I fail to remember, we have not been advised of that. It will take a little time to introduce these changes and we are in a period of economic troubles. An upheaval on this scale—reforms with such far-reaching implications, introduced in the circumstances of the British economy, with the consequential stresses and strains on our society—needs to be handled with delicacy and care. It would be consistent with the principles of good administration, which the noble and learned Lord, Lord Wallace of Tankerness, mentioned in our previous debate, for the Government to pause and consider again what the consequences of their policies may prove to be before they go to the final stage and introduce these changes.
The noble and learned Lord, Lord Wallace of Tankerness, invited us to accept that principles of good administration mean that guidance and direction should be kept continuously under review. I am not entirely persuaded by that. There is often a case for allowing people on the front line—the providers and administrators of public service—to have a period of policy stability and be able to get on with doing their job. However, that assumes that we have come to the point at which it is appropriate to introduce the policy changes. Thereafter, I am rather in favour of allowing officials and civil servants to get on unmolested and do their job, at least for a period.
It is not only a period of intense economic difficulty but one of major policy and administrative upheaval in which the Government contemplate introducing these changes to the system of legal aid. There will of course be reforms to the welfare system. If we look at the categories that my noble friend Lord Bach has specified in proposed new subsection (1)(a) of his amendment, we see a series of categories of people who will be affected by the changes in welfare policy. On children and young people, the House does not need me to emphasise the importance of taking the greatest care to ensure that we do not place them in such a perfect storm of change that they are at risk of unnecessary instability or, one might say, unnecessary trauma.
For people with disabilities, it is not only the reform of the welfare system—the switch from disability living allowance to personal independence payment—and the constraints on their benefits that the Government are introducing that are at issue here, but the reforms to the health service. Surely we all accept that people with learning, physical, mental and psychological disabilities warrant our very particular, prudent and humane care as policy change is introduced. Again, it would be fitting for the Government to pause and review all the circumstances that their policy and other factors are creating in the lives of people with disabilities before they remove the legal aid that enables such people to make their case and challenge administrative decisions.
In these economic circumstances, women are particularly vulnerable in their employment. Again, special care is therefore needed. While the Government are keeping legal aid to support people who may be under immediate threat of eviction from their homes, there are other kinds of housing-related problems for which people are no longer to be supported by legal aid. For example, if they are being harassed by their landlord or their landlord fails to maintain the property in decent condition, they will no longer have the support of the legal aid system to give them redress in those circumstances. Women, children and young people are plainly vulnerable, particularly at a time when there is such a shortage of social housing and rents are soaring in the private sector. Therefore, it is essential that the Government should take stock and review the position before pressing the button to implement their new policy on legal aid.
We have debated the position of victims of domestic violence at length today. I hope that they will at least be brought back into scope.
Coming to the fifth category that my noble friend indentifies in his amendment, we know that black and ethnic minorities are represented disproportionately among the poorest in our society. We know that they often have all too fragile a position in the labour market. Again, I counsel that the Government owe it to them and to society as a whole to take great care where they are concerned.
We then move to a different set of concerns expressed by my noble friend Lord Bach. He rightly raises the question of what the impact of the Ministry of Justice’s policies may be on other government departments. We have had the benefit of seeing the study that was produced by King’s College London, which I am sure the Minister has considered with great care. However, it is a reasonable proposition and anticipation that people who are no longer in a position to maintain their rights in the courts may find themselves becoming dependent on other aspects of state provision, particularly the health service, and particularly in situations of homelessness. I do not know what consideration the Ministry of Justice has shared with the Department of Health or the Department for Communities and Local Government—to name two departments that one can immediately imagine having to pick up the tab for the MoJ’s policies—but I hope that, even if this legislation is enacted, the Government collectively will continue to think about what the totality of this policy’s effects will be. Many of us consider that the very small savings that the Ministry of Justice may achieve in the legal aid budget will be dwarfed by the knock-on expenditure consequences for other government departments. A hard-headed cost analysis should be undertaken by the Government before they implement the policy.
We know that there is a widespread apprehension, certainly extensively in the legal profession, that courts and tribunals may also face additional costs and difficulties in consequence of the removal of legal aid from various categories of would-be litigants, who may feel that they then have no option but to be litigants in person. We have heard many testimonies in Committee, and in the advice and evidence offered to us by organisations seeking to educate us on what the consequences of these policies may be, to the effect that there will be a serious impediment to the courts transacting their business at the speed at which they ought to proceed. That must be a matter of concern. It ought to be a matter of particular concern to the Ministry of Justice because if there are impediments to the courts getting on with their work properly, surely there will be cost implications and other unsatisfactory implications for the department itself. Local authorities, through social services departments, will have to carry a heavy burden. There, again, I am sure that my noble friend is right to include them in his list.
I will say no more about the possible implications for homelessness or ill health, let alone suicide, but I would like to say a word or two about the impact that this policy may have on the commission of criminal or anti-social behaviour. It seems to me that if those who are most disadvantaged in our society and feel themselves most vulnerable are driven to say to themselves that there is no justice for them and no way in which they can secure their proper rights, they may reach a point of despair and may feel justified, or simply driven, to engage in criminal or anti-social behaviour. That is surely something that the Ministry of Justice cannot want.
Finally, my noble friend invites the Government to make an assessment of the impact of their policy on the future provision and availability of services, including but not limited to law centres and citizens advice bureaux. These are charitable organisations. I note that we see authoritative figures coming, I think, from the National Council for Voluntary Organisations but possibly some other well respected body in the charitable sector, which estimate that the reduction in public funding for the charitable sector by the year 2016 at the hands of this Government and through local government underfunding will be of the order of £3.3 billion. Therefore, it is inevitable that charitable provision of legal advice and assistance will be reduced. It is part of the responsibility of the Lord Chancellor and his ministerial colleagues in the Ministry of Justice to think again very carefully about what the situation is, and can reasonably be anticipated to be, before they commence the implementation of the policy. For all these reasons, I am very happy to support the amendment moved by my noble friend Lord Bach.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Howarth of Newport Excerpts(12 years, 9 months ago)
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Lord Faulks
My Lords, both these amendments are concerned to ensure that the court knows all that it needs to know before sentencing. In my experience as a recorder, the court would be acting very negligently indeed if it were to sentence a woman, or even a man, without knowing the effect of that on the dependants. That is the fundamental point usually made in mitigation. It is very much part of the picture that any sentencing tribunal would have to take into account. If for some reason an advocate or the probation service was not giving sufficient information about this, the court would ensure—by adjourning if necessary—that that information was available. Therefore, although I accept the points made about the necessity to take all these facts into account, these amendments are designed to tell the courts what to do. I respectfully submit that the courts know what to do.
Lord Howarth of Newport
My Lords, I fully support the intentions of these amendments. I admired the speech by the noble Lord, Lord Wigley, but seek clarification from him. I have a question about feasibility and practicality. I am not sure whether it is intended that the requirements in these amendments should extend to magistrates’ courts as well as to the other courts. However, if one considers the circumstances in which the magistrates’ courts were operating last summer, following the riots, when they transacted an extraordinary volume of cases, worked under extreme pressure and sat until late at night, I wonder how realistic it is to lay upon those courts the requirements that these amendments would lay. I had misgivings about the magistrates’ courts working in that fashion but I recognise that what they did at that time was seen by the public as entirely appropriate in a situation of exceptional crisis. Perhaps what I am really saying is that there is no substitute for having enough courts that are sufficiently resourced and a probation service that is well enough resourced, and for the courts to do their work as far as possible screened from the pressures of the media and politics. However, that is a rather fanciful state of affairs to desire.
I therefore simply ask the noble Lord, whose purposes I thoroughly endorse, to explain, if he will, how he envisages these requirements actually working in practice when the courts are under severe pressure.
Lord Judd
My Lords, I must apologise for not having been in my place when the noble Lord, Lord Wigley, was moving his amendment; however, as I have put my name to the amendment, I hope that with the leave of the House I might make just two observations.
First, it has been said that it is not appropriate to tell the courts what to do because they know what to do. That is a fine sentiment in some ways, and I pay due respect to the sincere professionals who make the courts system work. The issue is whether the court has enough information in front of it to make a proper decision in view of the circumstances and consequences of what it may decide. The amendments are therefore dealing with a rather different point.
I also want to make this observation: of course, when the court has before it someone who is about to be sentenced, I am sure that there is a punishment to be made; but if we are sensible and rational beings, and the courts are working well, it is also essential right from that moment to be thinking about the rehabilitation of the individual so that they can become a positive citizen. That is why the quality and depth of the probation service’s report is crucial; otherwise, we slip into a sort of factory system of justice whereby there is an automatic response to a case. One has to try all the time to look at the individual and at how the sentence can be tailored to enable that citizen not only to be punished but to start the process of rehabilitation and join society as a responsible citizen.
If we are concerned about future crime, there is nothing more absurd and wasteful than not to take fully into account the implications for the dependants, because we may otherwise find that the court, by not having paid sufficient attention to the needs of the dependants, has inadvertently contributed to the next generation of offenders in that family.
Magna Carta
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Lord McNally
Again, I am delighted by the enthusiasm with which the House is approaching this and I shall feed that idea back to Sir Robert.
Lord Howarth of Newport
Will the Minister confirm that Clause 29 of Magna Carta, which enshrines the right to due process, remains part of the law of England and Wales, but that it is under attack by the Government? Would it not be seemly if the Government were to celebrate the 800th anniversary of Magna Carta by withdrawing Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill, which removes legal aid from people on low incomes who are in dispute about their benefits entitlement or with their employer or with their landlord? If the Government should be less than gracious about this, will it not still be for the Barons to insist on the ancient constitutional principle that:
“To no man will we sell, or deny, or delay right or justice”?
Lord McNally
The noble Lord once again confirms that one should never take that final question.
Legal Aid
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Lord McNally
I thank my noble and learned friend for that helpful question—he is making a habit of helpful interventions. Of course we do, and nobody doubts that. That is why, as I said before, we have provided funds for this transitional period and why my honourable friend Nick Hurd is at this moment making attempts to identify funding that will give the not-for-profit sector a better long-term future. Nobody denies, underestimates or fails to appreciate the benefits of the not-for-profit sector. The key is how it will adjust to the new structure of legal services that we are bringing about by these reforms.
Lord Howarth of Newport
My Lords, is equality before the law not a basic liberal principle? Why has the coalition abrogated it?
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord McNally
Yes. I have been one of the strongest supporters of post-legislative scrutiny, and I am just putting it in place in terms of the Freedom of Information Act. The Justice Committee in another place has just taken from the Ministry of Justice a full assessment of how that Act has been working and will then take evidence. I would have thought it inconceivable that such post-legislative scrutiny would not examine the issues relating to clinical negligence.
Lord Howarth of Newport
I apologise to the Committee that I was not able to be here at the beginning of this debate. In the Minister’s view, does the legislation as drafted provide the flexibility to enable the Lord Chancellor to respond constructively and effectively to such findings as a review might produce at a suitable interval?
Lord McNally
Yes. If it did not, presumably we would bring forward primary legislation to correct it, but that is the parliamentary process.
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.
Lord Howarth of Newport
If this provision is activated, as the Minister told us that the Government intend it should be, would the likely effect be that damages awards were increased by the courts to ensure that claimants got appropriate damages and at the same time, unfortunately, to underwrite the requirement that part of the proceeds of damages should go to boost the funds of the Ministry of Justice?
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Howarth of Newport
I have a number of anxieties about the impact of the Government’s proposals on children in painful and difficult situations. If the Minister can reassure me that my anxieties are misplaced I shall be more than pleased. However, I suspect that they are valid and that a number of amendments in this large group would be helpful.
First, I am concerned about inequality of arms. Wealthy people will be able to go to court armed with their lawyers while people on modest incomes will not. They will therefore appear either as litigants in person or cave in and be defeated because they lack the legal advice and support that would allow their case to be heard on a fair basis. Secondly, legal aid is to be confined to cases of physical or sexual assault. Surely that is too narrow. It will leave unhappy children in inappropriate residential and contact arrangements, split off perhaps from siblings and grandparents. We should surely widen the range of circumstances in which legal aid is available in support of children in those situations.
Thirdly, I think that there will be a perverse incentive. If an allegation of abuse would be a gateway to legal aid, some parents may be tempted to up the ante. In particular, we should be concerned that there may be cases where there has been some violence during the breakdown of the marriage or relationship but there is not a longstanding history of violence and there is no persuasive reason to suppose that there would be patterns of violence in the future; the violence has been generated by the crisis in the failure of the relationship. I do not think that it is in children’s interests that contact arrangements should be determined by such a factor. Of course, it will increase the private law workload of CAFCASS.
Fourthly, there is possibly another perverse incentive if a trigger for legal aid is to be the existence of a formal child protection plan. Some parents may be tempted to allege child maltreatment when other forms of help would be more appropriate and better for the children. Clogging up the child protection system could be disastrous. Again, more private law cases could spin over to the children’s social care workload which is already staggering following the Baby P case and will be under immense pressure with the cuts to come. There will be more formal child protection investigations and more case conferences, often when a more consensual approach would be more in the interests of the child. I fear that there will be increased and prolonged bitterness between parents.
Finally, while the Bill does not propose changes to legal aid for children and parents involved in public law care, clogging up the system with private law cases and litigants in person will have an adverse effect on the speedy resolution of such cases in the courts. That will be harmful, particularly to young children for whom it is very important to have a speedy return to permanent family arrangements, whether with parents, relatives or adopters.
Baroness Eaton
My Lords, I rise to speak to Amendment 34 standing in my name and the names of my noble friends Lord Newton of Braintree and Lord Cormack and the noble and learned Baroness, Lady Butler-Sloss.
The reductions to the provision of legal aid as proposed in the Bill will leave 40,000 children and 69,000 18 to 24 year-olds struggling with serious legal problems relating to employment, education, welfare benefits, homelessness and debt. Children and young people affected by these changes are among the most vulnerable in our society, with 80 per cent, as we have already heard from the noble Baroness, Lady Benjamin, of young people reporting civil legal problems also facing challenges and great disadvantages.
The cost of legal aid for children is small compared with the total amount spent on legal aid. The cost of fully protecting all children up to the age of 18 from the cuts to legal aid would be £10 million, which is the equivalent to the cost of imprisoning just 71 young offenders. For young people aged 18 to 24, the cost is £40 million, less than half the weekly cost of youth unemployment. The cost of not providing appropriate legal advice is far greater. We know that when young people do not get advice their problems increase. There are well researched links between civil legal problems and crime. Many young people who have been arrested have higher levels of housing problems, debt and benefit problems, all of which are key factors influencing reoffending. Fifty-five per cent of 16 to 24 year-olds arrested were experiencing at least one difficult to solve civil justice problem.
There is substantial evidence of an adverse impact of legal problems on young people’s mental and emotional health, with 34 per cent of 18 to 24 year-olds not in employment, education or training reporting stress-related illness as a result, and more than one-third going on to use National Health Service services. Citizens Advice estimates, as we have heard before, that for every £1 saved by the removal of legal aid, the Government will spend £8 dealing with the social, judicial and health issues that will result.
Recent figures from the Ministry of Justice give a breakdown of the types of cases for which children and young people use legal aid to help deal with their problems. The top four legal issues for children and young people are debt, housing and welfare benefits, asylum and immigration. Help with legal representation is most often given for housing, immigration and clinical negligence. Eighty per cent of young people reporting legal problems also face other disadvantages, including sole parenthood, having a mental health issue, being a victim of crime, or exclusion from education, employment and training.
It is disturbing to note that many children and young people in the United Kingdom meet the criteria for vulnerability. Thirty per cent of households headed by a 16 to 24 year-old live in poverty and 36 per cent of people presenting as homeless in the three months January to March 2011 were aged 16 to 24. The latest unemployment figures show that 20.2 per cent of 16 to 24 year-olds are unemployed. In 2010 approximately 225,000 young people aged 16 to 24 lived alone.
These are very serious issues for society. We have to ask why so many young people are in such a vulnerable position. However, for us today the issue is to recognise the needs that these children have and the help that legal aid can give in enabling them to turn their lives around. The Government’s proposals will remove from the scope of legal aid most cases concerning education, including disputes about exclusion, school closure issues, bullying cases, disputes about poor educational standards, disputes about grants and loans, and cases about choice of school. Only education cases involving discrimination and special educational needs will qualify for legal aid support but then only for telephone advice.
These plans will leave 29 per cent of children who are currently represented in their educational needs cases without legal representation in court. Pupils with special educational needs are eight times more likely to be excluded permanently or for a fixed period than other children. There is a strong correlation between exclusion from schooling and falling foul of the criminal justice system. Removing legal aid support that enables children to challenge exclusion may have more children turning to crime, which would lead to future youth justice costs for the Government.
I fully appreciate the Government’s desire to reduce the UK deficit, but in order for any savings to contribute to this reduction, the reforms must not generate consequential costs or the shunting of costs to other government departments. The Justice Select Committee in another place reported that the magnitude of these knock-on costs had not been estimated. I sincerely hope that, on the basis that these proposed savings of £270 million from the legal aid budget will not achieve the aim of reducing costs, the Minister will consider seriously the effect of proposed savings on the vulnerable children involved and the additional cost to the public purse of implementing the changes unamended.
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.
Lord Howarth of Newport
As this issue came up in an earlier debate, will the Minister explain to the Committee how it is that his policies that he acknowledges will have an impact on disabled people are not discriminatory and therefore legally offensive?
Lord McNally
They are not legally offensive. We have been honest right from the first day I answered questions. I go back again to this, which is something that the noble Lord in his many, many interventions never acknowledges. If you are making cuts in such an area that is directed at the poorer sections of society, of course, you will affect the poorer sections of society. But what will also affect the poorer sections of society is if you lose control of the economy and are forced to bring in further draconian cuts over which you have no control. We will return, as we have done, through six or seven parallel debates with the same briefings and research from the same organisations. We have a fundamental difference of opinion on how to tackle these problems. I am not even sure that the noble Lord is quite on message at least with the latest pronouncements from his Front Bench in the other place about what we are facing in these matters. I suspect that we will have further discussions on this.
The Bill contains important safeguards for children and adults who lack capacity and who require treatment for mental health issues. Paragraph 5 of Part 1 of Schedule 1 provides that legal aid may be made available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning medical treatment of patients or those who lack capacity. Furthermore, paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the mental health tribunal. Paragraph 4 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual: medical treatment, including psychological treatment; life; liberty; physical safety; the capacity to marry or enter into civil partnerships; the capacity to enter into sexual relations; or the right to family life. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for an onward appeal to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope.
As I have already mentioned, there will also be an exceptional funding scheme that will ensure the protection of an individual’s right 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.
Amendment 34 applies to all civil and family proceedings. It seeks to bring into scope civil legal services for many areas of law that are excluded for any child party or child represented by legal guardian. I will address the amendment on the basis that the term “legal guardian” means the child’s guardian of the type appointed by CAFCASS. We are already retaining legal aid for child parties in family proceedings which we have prioritised. This part of the amendment is therefore unnecessary. Otherwise the amendment retains funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them.
As I said, the Government recognise the importance of funding in a range of cases where children’s interests are paramount. That is reflected in the final decisions we have reached. As a result, we have protected funding in areas that specifically involve children. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Howarth of Newport
My Lords, should not the governing principle be that every single one of our citizens, regardless of their income or personal resources, should have available to them legal advice and representation should they find themselves in a situation of dispute and where they have a reasonable case to pursue through legal channels? Is that not a fundamental liberal principle? The noble and learned Lord, Lord Scott of Foscote, articulated it very finely and much better than I can, but this has to be our benchmark.
Of course, I recognise that this group of amendments is designed to salvage what can be salvaged and to limit damage. However, we ought to differentiate quite carefully between the purport of the amendments in this group, because they are not all saying the same thing. I support Amendment 24, tabled by my Front Bench, because the effect of it would be that no further areas could be taken out of scope other than by new primary legislation. The way that Parliament deals with secondary legislation does not provide adequate opportunity for debate about very important and contentious matters. Therefore, it would be a proper safeguard that there could be no further attrition of legal aid—we would not take any additional areas out of scope—without Parliament thinking deeply about it, taking care about it and being fully aware of what it is doing.
On the other hand, Amendment 24 would allow areas to be brought back into or added to the scope of legal aid by order. That is acceptable because you are not taking away people’s legal rights, you are enhancing them, and there must be a presumption in favour of that as a matter of principle and that Parliament would therefore not be required to give such proposals the same intensive scrutiny as it ought to give to proposals to take areas out of scope. I agree with my noble friend Lady Mallalieu that there may very well be instances where Parliament would wish to act fast to bring an area back into scope. Therefore, Amendment 24 is preferable within the group.
Perhaps the Minister will again defend the Government’s breach of liberal principle in taking whole areas out of scope of legal aid with the argument that it is imperative to save public expenditure. I noticed that the Lord Chancellor, in that very interesting article he wrote in the Guardian just before Christmas, said that:
“Legal aid in England and Wales costs vastly more than other common law variants—twice as much per head as New Zealand’s system for example”.
However, I understand that the cost of civil legal aid in New Zealand is not significantly higher per head. It is of the same order as it is in England and Wales, and it is in fact in the criminal legal aid area that the New Zealand system is so much more economical—they spend less per head on criminal legal aid but not on civil legal aid. However, although the Government justify what they are doing by reference to the comparison with New Zealand, they have not chosen to seek economies in criminal legal aid, but in civil legal aid. The Government need to examine these figures and, I hope, explain their economic rationale rather more fully than they have so far.
I am sure the Minister has had the opportunity to see the study entitled Unintended Consequences: the Cost of the Government’s Legal Aid Reforms by Dr Cookson of King’s College, London, in which he examines the possible knock-on effects—the higher spending that may be incurred for other government departments and indeed for the Ministry of Justice—as a result of the polices in this Bill. The Minister has been extremely helpful to the Committee in writing to us very fully to explain why the Government have adopted the policies that this Bill would enact. If the Minister would be kind enough to write to us with a detailed refutation of the arguments that Dr Cookson, a distinguished academic, has put forward in criticism of the Government’s case that it will be making a net saving to public expenditure, I am sure that that would be very helpful.
I am very far from saying that the sky should be the limit in terms of what we spend on legal aid. I would entirely agree that where there is waste, it should be taken out. However, the assault should be on waste, not on scope. If the principle is that every citizen should have equal access to the law, then it is not proper for the Government to say, “But if the conflict or dispute that might be litigated is in one particular field, then the citizen is not to have access to the law for a dispute of that kind”. It is fine to do all you can strenuously to reduce unnecessary costs, but do not breach the fundamental principle.
I would finally say that while it seems to be almost common ground around the House that it is necessary to reduce the legal aid bill, with respect, it is an absurd proposition to say that we cannot afford what we are spending. I repeat: we do not need to spend every penny of it, because there may well be waste in the system and it may be possible to reform it to make it more economic while maintaining access to justice. However, to say that a total of £2.2 billion spent on legal aid, which is only 1 per cent of the social security budget, is something that as a country we cannot afford—a country that prides itself on being a liberal society, and on the rule of law—seems to me to be wrong. This is a moral and a political choice, not a matter of economic exigency.
Lord Phillips of Sudbury
My Lords, I would very briefly reassert the fundamentalism of access to the law. Equality before the law is one of our basic claims. If in fact it does not exist, it damages not only the law and the rule of law but democracy itself.
This group of amendments is interesting. Amendment 22, moved by the noble Lord, Lord Faulks, which leads the group, simply removes subsection (2) of Clause 8, which will mean that any change in the scope of legal aid would have to be by primary legislation. Our amendment, spoken to by my noble friend Lord Thomas of Gresford and to which my name is added, seeks to even things up by saying that not only can the Government omit or change by deletion the scope of legal aid, but can add to it. The third position is that of the noble Lords, Lord Bach and Lord Beecham, who in their amendment reverse the tables, saying that you cannot remove from scope but you can add to it.
I must confess that I would, if the world were a perfect place, prefer the first amendment, Amendment 22, which would require all changes in scope to be by primary legislation. However, living on a pragmatic globe, I suspect that the best we may do is at least to have equality as between diminution of scope and addition to it. Hence Amendment 25, which incidentally is mirrored by Amendment 23, spoken to by the noble and learned Baroness, Lady Butler-Sloss.
I would just add this point, which has not been sufficiently clarified or emphasised. Whether something is in or out of scope is not, in my book, most significantly a question of finance. If we are the most legislated democracy on earth—do not forget that we pass about 14,000 pages of new statute law a year—it behoves us, in this Parliament above every parliament, to ensure that what we do has fairness of application in the real world. Above all, I put it to my noble friend Lord McNally that there has been a unanimity of view from those who have contributed to this debate that, as things stand, the exclusions from scope are going to cut so deep that the consequences will be social and political unless they are reversed speedily. For that reason alone, if I were sitting in the seat of my noble friend, I would want to be able to add back speedily. I promise him that if this Bill goes through as drafted, scandals will arise, which the Government will want to rectify swiftly. Therefore, I hope that the Government will move on this.
Lord Newton of Braintree
My Lords, I rise in the hope of commanding your Lordships’ attention for two reasons. First, my name is on one of the amendments in this group in the name of my noble friend Lady Eaton. Secondly, since I was unable to be here last week, I want the Front Bench to know that I am back. I have listened with care to the speeches that have been made, and obviously I express my support in particular for the arguments on children’s clinical negligence which were raised by my noble friend Lady Eaton. I also want to say to my noble friends that when they come across an amendment with the names Newton and Tebbit on it, they are in trouble. I am sorry that my noble friend is evidently not able to be here today. We are friends but no one who knows us both will think that we always come from the same perspective. Here, we are united.
I need not repeat the points that have been made in debate, not least the very important points made by a number of my noble friends, including my noble friends Lord Faulks and Lord Carlile and—not to minimise any other speeches—the very constructive remarks just made by the noble Baroness, Lady Mallalieu. I share the view that this is one of those areas where it is highly likely not only that the game is not worth the candle but that the costs to other departments will be greater than any savings to the Ministry of Justice. That simply cannot be a sensible way to approach the problem of the deficit as a whole.
Without rehearsing all these arguments again, I hope that I am right in detecting in the air today a move away from what my noble friend Lord Carlile memorably described at an earlier stage as “irritated intransigence” from the other end of the building, and that we will get a constructive approach. We have certainly heard a lot of constructive speeches; I think that they deserve—if I may say so to my noble friends on the Front Bench—a constructive response. Leaving aside the Newton-Tebbit point, if I were them and looked at the totality of the names on the amendments in this group, I would decide, if I may coin a phrase, that concession was the better part of valour.
Lord Howarth of Newport
My Lords, the noble Lord, Lord Carlile, was right to draw attention to the unwillingness of members of the medical profession to admit fault. I have a son who was brain-damaged at birth. The evening after he was born, I spoke to the consultant gynaecologist, a very famous individual, who reassured me that that there was no reason to suppose that anything had gone wrong. But when the diagnosis of cerebral palsy was made, and my wife and I decided that we ought to pursue the possibility of a clinical negligence claim, we found—I am not sure that it is really surprising, though it is very shocking—that the file had gone missing, and it took a considerable time to obtain it. We know that clinical negligence claims take a very long time to pursue. Part of the reason for that is the intransigence of the system—it is very human; it is very understandable—and we have to be realistic about that.
In the interests of being realistic, I should like to pick up a point made by the noble Lord, Lord Phillips of Sudbury, à propos his Amendment 30A, in which he favours the appointment by the NHS Litigation Authority of a single expert witness who would produce a report. We can see the attractions of this in the interests of economy, but if there is mistrust between the claimant and defendant, as there so very often unfortunately is, I wonder how much confidence claimants will have in such reports commissioned by the defendant, the NHS Litigation Authority. That is particularly so if the expert witness appointed by the NHSLA finds that there was no negligence, which may indeed be correct, but can we expect the claimant to accept that that is so?
We all agree that it is unthinkable that legal remedy should not be available for victims of clinical negligence, but I believe, as do others far more authoritative than I, that this is a field in which legal aid must be retained. For example, if you are looking to solve part of the problem by disbursement-only ATE policies, it appears that they are simply not commercially viable. I am advised that, based on an ATE insurer’s real figures, for the average cover of £2,000 needed for preliminary investigations—which does not include the high investigation costs of cases such as catastrophic birth injuries—the premium would need to be of the order of £11,000. So it simply will not work. The noble and learned Lord, Lord Lloyd of Berwick, was right to put it to us that this, at minimum, is an area in which legal aid must be preserved.
If the Government’s proposal to remove ATE recoverability were to be accepted, there would be an increase in the number of unscreened cases, because ATE insurers are pretty risk averse and pretty sceptical. For very good business reasons they do not want to see unviable cases going through. They are therefore part of the mechanism, part of the system, that enables the bad cases, the weak cases, to be screened out. I understand the NHSLA shares that view.
Finally, I will quote to the Committee, if I may, a paragraph from a paper by the NHS Litigation Authority, which is impressive. Its view ought to carry weight with the Committee. It says:
“Ironically, whilst a so-called perceived ‘compensation culture’ (which does not actually exist currently when it comes to healthcare) is said to be one of the drivers for reform, the proposed changes will do more to promote the unsavoury aspects of a ‘compensation culture’ than deter them. For example relinquishing the degree of quality control afforded by the legal aid system for clinical negligence will throw the market open completely to non-specialist and less scrupulous solicitors and claims farmers. There would in all likelihood be an increase in this type of activity.”
That is powerful evidence that I am sure the Government have considered, but that the Committee also ought to consider.
Lord Phillips of Sudbury
The noble Lord made a perfectly reasonable criticism of one aspect of this amendment. First, he commended the NHSLA, but does he not accept that the amendment says,
“a list maintained by the NHSLA and AVMA”,
which is an independent body that exists to see fair play done?
Lord Howarth of Newport
I am second to none in my admiration, indeed my gratitude, for AVMA, which helped me and my family at a very difficult stage of our lives. I am deeply appreciative of them. If the list of expert witnesses was to be maintained both by the NHSLA and by AVMA, rationally speaking that is a list that should command confidence. None the less, in the emotionally fraught circumstances of a dispute, particularly where a baby has been damaged at birth or where some other catastrophic injury has taken place, it is asking a lot to expect people to trust witnesses and reports that are to be commissioned—the noble Lord’s amendment would require that—by the NHSLA.
Lord Thomas of Gresford
My Lords, I hope the Government do not think that this debate is special pleading, as the noble Baroness, Lady Mallalieu, feared. There are a number of reasons for that. First, clinical negligence—at the moment, exceptionally in personal injury cases—already attracts legal aid. It is currently within scope. Secondly, there are considerable difficulties in proving clinical negligence. When a car accident happens, almost anyone, given proper evidence, can determine who is responsible. Clinical negligence is a very different field. It is very difficult to prove causation. If you can prove causation—that the condition of the claimant has been caused by the clinician concerned—you then have a further hurdle to surmount: whether that clinician has exercised the proper standards of care as known at the time.
I vividly remember a case in which I was involved where it was established that the arachnoiditis was caused by an injection into the spinal cord by a clinician. Arachnoiditis affects the limbs of a person and causes considerable paralysis. We could establish causation, but by the standards of the time it could not be shown that the injection was negligent.
The third matter that I draw to the Committee’s attention was referred to by the noble Baroness, Lady Finlay—that there is currently quality control in the provision of legal aid in clinical negligence cases. There are panels provided by the Law Society or Action for Victims of Medical Accidents, and it is only to solicitors who are on those panels that legal aid certificates will be granted. That ensures that there is a proper approach to the issues that arise in clinical negligence cases, and a proper conduct of those cases. For all those reasons, this is not special pleading; clinical negligence deserves consideration quite separately from all the other matters that we are raising under the first schedule.
I would like the Government to consider at what level legal aid can be granted. The noble Lord, Lord Faulks, and my noble friend Lord Carlile referred to the possibility that legal aid should be granted in serious cases that have an impact upon the lives of people. For example, if a case is worth only £4,500, which has been referred to, that may not be one in which public money should be involved—certainly not to the extent of £95,000. However, if, as so often happens, the lives of people and members of their families are altered for good, surely a humane society should provide legal aid to cover the cost of litigation in those circumstances?
Baroness Howe of Idlicote
My Lords, let us face it, the next group of amendments covers almost exactly the same area as this one. I shall reserve what I was going to say until we reach my amendment in that group. However, in view of the comments made by my noble friend Lord Wigley about running all these Bills together simultaneously, I wanted to point out that—believe it or not—in the Moses Room this afternoon, going on in parallel with what was going on in this Chamber there was a Motion about jobseeker’s allowance. Aspects of the Welfare Reform Bill and the legal aid Bill are interwoven in an appallingly complex way.
We have just heard from the noble Lord, Lord Phillips, a very clear case as to why the whole exercise is going to be costly. I agree with the sympathetic point he was making for the Government: any change made to these forms of welfare help is almost by definition bound to involve extra cost and extra complexity, because it is yet another layer added to the thousands of pages that have to be understood by the professional expert. Then, one appears to be busily taking away, or making it much less easy to access, the professional help we have had in the past. There is also the point made that the CABs, which have been so marvellous in the past, are going to be shorter and shorter of money. The whole thing is becoming really worrying and I hope that the Government will reflect on this.
Lord Howarth of Newport
My Lords, like my noble friend Lady Lister, I often feel that after the noble Lord, Lord Newton of Braintree, has spoken, there is not very much to add. However, all noble Lords who have subsequently spoken have indeed made very valuable additional contributions. I would like to say a few words because this is a debate of absolutely central importance in our consideration of the Bill. We should all be extremely grateful to the noble Baroness, Lady Doocey, for moving as she did the amendment that she and colleagues have tabled. She raised an interesting and important point—among many others. Since such a high proportion of those who receive legal aid to support them in welfare benefits cases are disabled people, this policy may be in effect discriminatory against disabled people. That in itself is something that we ought to reflect upon. I hope that when the Minister replies he will be able to tell us whether or not this is the case, and if he thinks it is not the case, how he explains that.
The noble Baroness also reminded us of the high success rate of appeals and of appeals made by disabled people. Of course, the proportion of successful appeals is higher when people have been advised, when people appear personally in court, and when they are accompanied. If the Government are going to take away legal aid from welfare benefits cases, it raises the question of whether they want people who are entitled to receive benefits to do so. I believe that they do. I cannot believe that the Liberal Democrats and the Conservative Party do not want people who are genuinely and properly entitled to receive welfare benefits to do so. However, the reality is that if they take away legal aid in support of those cases, they are ineluctably going to prevent very significant numbers of people who should receive those benefits from doing so. I ask them fairly and squarely this question, and again I would like the Minister to respond specifically to this point: do they want all these people to receive benefits, and if they do, how do they suppose that they are going to receive those benefits?
Ministers at the Ministry of Justice have been pretty blunt hitherto in saying that they consider welfare benefits cases to be of lower importance than other categories of case which will continue to be in scope of legal aid. I would like to know—and again I ask the Minister to tell us in his reply—exactly why the Government believe that welfare benefits cases are less important than other categories of cases that they have determined should remain eligible for legal aid. I think that for people in poverty, welfare benefits are extremely important, and those people would be interested to know the Government’s explanation of their policy, just as we would be.
Of course, there are going to be growing numbers of these people. This is partly because of the recession, which is increasing unemployment and the hazards of life, and making much, much more difficult the personal, domestic, and financial circumstances of very many people. There is also going to be an increased number of people who wish to appeal against decisions that they should not receive welfare benefits, on account of the transition to the new incapacity benefit, employment support allowance, personal independence payments, and the whole panoply of welfare reform upon which the Government have embarked. This is undoubtedly going to lead to confusion, to administrative complexity, and to a higher error rate on the part of staff whose job it is to determine eligibility for welfare benefits. We are going to see an increasing number of appeals that people will very properly want to be able to make. The Government therefore need to have very good reasons indeed for why they are going to make it harder for people to pursue these appeals successfully. After all, they are expecting, by their own admission, to make savings to the public purse of only some £25 million net—a trivial saving, absolutely trivial, in the context of overall public spending.
What is going to happen to these people who do not get legal aid? They will try to go to other sources of advice, but the charities which might advise them are not going to be in a position to do so, as they have been telling us. The citizens advice bureaux in particular have been warning us very earnestly that they will not be in a position to provide the advice that they have been able to provide with the support of legal aid and local authority funding—neither of those, in large part, are going to be available. Would-be appellants—claimants—may then be driven to other kinds of private adviser. I dread to think what sort of advice they may receive from those sources. We are very aware in the immigration field that some extremely dodgy and dubious people offer advice who are frankly exploitative of people when they are in very great difficulties.
We will see an increase in self-representation: people will go to the tribunals to try and make their own case. The notion, to which the Government are so attached, that the tribunal system is a user-friendly, accessible, informal alternative to the court system, is a pipe dream. Of course it is highly desirable that there be more informal, more economical, more user-friendly systems of justice available. Again and again, attempts have been made to achieve that but, again and again, the system becomes less informal, more complex and more arduous to navigate, and people need expert help to find their way through. It is unrealistic of the Government to suggest that the tribunals system is somehow going to be there and that it will be all right for people to represent themselves.
The consequences of a policy that will result in people not being able to make their appeals in order to obtain the benefits that they should be able to obtain will include increased unemployment, particularly among disabled people, because if they do not have the tailored support that they ought to have, their chances of securing employment, with the odds already stacked against them because of their disabilities and in this very difficult labour market, will be further reduced. We will find more people in debt and suffering ill health, because poverty will mean that people will not be able to afford a proper diet or heating and will have to cope with anxiety about their poverty. We will see more cases of poor physical and mental health. All these predicaments will produce costs to other government departments. I fear that we will also see a greater resort to criminality as people despair and feel that there is no longer a just system available to them. I do not think that there will be savings to the public purse; there will be additional costs to the public purse. Above all there will be a great cost for all of us to pay in national shame.
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
I am only one and a half pages into my reply. I do not mind. Carry on.
Lord Howarth of Newport
Can the Minister explain why poverty is a less fundamental issue than liberty or safety?
Lord McNally
I am going to go on to this. I must say to the noble Lord that it would help if I can get further than just past page one. I will deal exactly with the issue that he has raised. As the noble Baronesses, Lady Mallalieu and Lady Howe, indicated, we will have a series of debates on a number of specific individuals who will be affected by reforms.
A number of noble Lords have cited their own experiences, either professional or personal, so I shall in part answer the question asked by the noble Lord, Lord Howarth, by giving a personal experience of my own. In 1976 I sat in the Cabinet Room in Downing Street with the Chancellor of the Exchequer and the Prime Minister—Denis Healey and James Callaghan—and during the course of a two or three hour meeting the pound fell from 1.95 to 1.45 against the dollar. By the time it hit 1.45 we had sent for the Governor of the Bank of England and decided to call in the IMF. Like many events, it has left a political scar, which is this: if you lose control of your own economy, all the concern for the poor and the disabled and the disadvantaged is as nothing because you cannot help them if you are not in control of your own economy.
Many of the debates that we have heard in the past few days, including this one—and probably the one tomorrow—have addressed the kind of issues that we have heard today. As I look around the House, I know that on all Benches there are people who have devoted their lives to the betterment of the citizens of this country. No one party has a monopoly on that. However, it is right to say that we have had to take hard decisions in difficult circumstances. I hear that £1 million is within the margin of error and that £20 million is trivial, but in a department like mine those are the figures that we are having to face and deal with. Therefore, although I understand some of the—
Lord Howarth of Newport
I am sure we all accept that it is imperative that the Government do not lose control of the economy, as the Minister puts it, but it is a question of how you gain control of the economy. Why do this Government prefer to deprive people of legal aid in their appeals for welfare benefits in order to save £25 million—they think, but very good reasons have been put by noble Lords all round the House as to why that saving would be illusory—while being prepared to spend much larger sums on freezing council tax, which will largely benefit more affluent people, or on weekly refuse collections? It is a question of priorities.
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Lord McNally
No, I recognise a red rag when I see one. I will think about the point that the noble Lord made. I commend him for merging two groupings and ask him to withdraw the amendment.
Lord Howarth of Newport
Before my noble friend withdraws his amendment, perhaps I can ask the Minister a question. I am sure that the Committee is grateful to him for the full explanation that he has given in response to the amendments. He has assured the Committee that it is unimaginable that the Lord Chancellor would not consult regularly with bodies representative of those who provide legal services and he has insisted on the importance of due monitoring and accreditation—all processes no doubt designed to uphold standards. Can he give some account of how all those processes that he has said that the Government will undertake assort with something else of which the Lord Chancellor has made much? He said in his article in the Guardian on 20 December:
“This year we've begun deregulation of the legal sector, a change comparable in its possible impact to the Big Bang in the City in the 1980s”.
That suggests that there will be some very different procedures and that the relationship between the Ministry of Justice and the legal profession could become very different indeed.
In the context of the ministry's zealous desire to deliver substantial savings in public spending and its desire to break open some of the traditional structures and ways of carrying on, I wonder how the consultation, monitoring and continuing assurance of standards are to be reconciled with the exciting and radical new approaches that the ministry is developing.
Lord McNally
If I may say so, that is an extremely helpful intervention. One reason why my right honourable friend is reluctant to have these things battened down is that, as I have said from this Dispatch Box, the provision of legal services and the structures of the legal profession will be changed not by any radical zeal from the Ministry of Justice but by market forces and changes that are happening in our society. Much of what we have been talking about since the dinner break has concerned the machinery to be put in place, which very much replicates machinery already there but anticipates a more fluid situation in the legal profession.
That is why specifying named organisations and people could be dangerous. What must be clear is that the Lord Chancellor has those responsibilities, including the overriding one of protecting justice. I also invite the House to have some common sense: any Lord Chancellor or Secretary of State for Justice who tried to ignore or ride roughshod over the various bodies involved would soon come to grief.
I agree with the comment of the noble Lord, Lord Bach: successive Ministers will find that you can consult but you do not always agree. I am sure that there was not total agreement when the previous Government imposed cuts in various fees for parts of the legal profession. That is the nature of things. Any sensible Lord Chancellor would involve and consult those bodies. That makes the amendments unnecessary.
Lord Howarth of Newport
When the Minister replies, will he assist the House by telling us what will be the manifestations of the independence of the director of legal aid casework? For example, will the director produce an annual report to be laid before Parliament or in some other way made accessible to the public? Will he be free to make public comments, publish articles or take part in discussions on the radio or television? How will we know that he is independent? What will be the safeguards against him being dismissed by the Lord Chancellor for reasons of political convenience? We all remember the unhappy circumstances in the mid-1990s when the Home Secretary of the day dismissed the director-general of the Prison Service. This relationship may not be analogous; on the other hand, it would be helpful to be reassured that it could not be analogous.
Baroness Butler-Sloss
My Lords, there is a very real difficulty about the whole of Clause 4 because there is nothing in it that suggests that there is any degree of independence in the director, other than in subsection (4). I respectfully agree with all noble Lords who have spoken so far about the absolute necessity of having the word “independence” in a clause of this sort. Without it, the clause does not show that the director would be independent on general issues as opposed to specific cases.
Lord Howarth of Newport
Will the annual report say what the directions are? How are the legitimately interested public to know what directions the Lord Chancellor will give the director? Will the Minister tell us how they are to be known and what ground they would cover? What would be the subject matter of the directions?
Lord McNally
I think that we will have to await the document, but I will take advice on it. As far as I understand, the directions and guidance on the director’s functions will be published by the Ministry of Justice.
Lord Beecham
My Lords, like the noble Lord, Lord Thomas, I was unaware of collaborative law until I read the briefing from Resolution, but I congratulate the organisation and the noble Lord on bringing these amendments to the Committee today. In the run-up to the Bill, the Government laid great emphasis on the need to find alternative methods of resolving disputes, and particularly on mediation. Mediation can undoubtedly play a role but it is not a straightforward matter. As I said on Second Reading, particularly where there is no equilibrium between the parties—or, to use the other phrase which has been bandied around your Lordships' House for some time, no equality of arms between the parties—mediation is not particularly suitable.
Certainly, those of us who have practised family law have often found in these cases that one party or the other—usually the husband—plays a dominant role in the relationship, particularly when it comes to litigation. All too often in my experience the other party—usually the wife—gives way. Mediation is not an adjudication and it is not a question of reaching an agreement between equals. Even if it were more balanced, it is interesting that the Government’s own projection was that out of 230,000 family cases only an additional 10,000 would be referred for mediation once the system changed as the Bill envisages. In any event, it was clearly not going to extend very much further than it does at the moment.
As the noble Lord has indicated, this proposal is of an entirely different character. In particular, there will be legal advice available—there will be somebody with the parties—and that should redress the balance that is so often missing in mediation and should lead to agreement. In fact, this was something that the previous Government had encouraged. Certainly there was the intention—I am not sure if it was realised—for legal aid to be made available for this on the basis of modest fixed fees being paid to the lawyers involved. As the noble Lord has pointed out, there was no incentive for those lawyers to prolong the case or see that it went further.
I understand from the briefing from Resolution that there has been some discussion—or at least correspondence—with the ministry, which seemed to warm to the idea and indicated that while it was recognised that Schedule 1 to the Bill only refers to family mediation,
“we think that should we wish in future to fund, for example, collaborative law, this could still be achieved. This might, for example, be through the issuing of guidance about what we wish to cover under the term ‘mediation’”.
It is not mediation, as Resolution itself points out, it is something distinct and different and, I suspect from the perspective of many of us, rather better and more useful than mediation.
The amendment deals only with family law. In principle, this process could be taken further—for example to things like employment or perhaps even debt cases, where a less elaborate process than the full litigation which is currently available but which will no longer be available to be supported by legal aid can give way to a process analogous to that which the noble Lord has outlined in the case of family law. There is great potential in this, and it is a better way of reducing the burden on the courts and the costs of public—or indeed private—funding than mediation in many cases.
I hope that the Minister will acknowledge that there is merit, both in the principle and in the amendment that the noble Lord has moved. Perhaps he will consider whether that same principle might be extended to other areas which it is the Government’s intention to remove from scope—not all areas, obviously, but there may well be some—even if it is not possible to identify those at the moment because there would have to be further consultation, and to perhaps bring back an amendment that would allow for additions to what might be brought within the framework of collaborative law, in the same way as subsequent amendments will allow for the addition as opposed to the deletion of items from scope. In that way, we would have a more flexible system that was able to adapt to changing circumstances and a changing ethos within the legal profession and advice services, and build on what appears to be a very successful initiative.
I hope that the Government will agree to take this back and look at it in principle from a supportive standpoint, and that we can end up with something very much along the lines of the noble Lord’s amendment, possibly with the additional factors to which I have referred.
Lord Howarth of Newport
My Lords, I understand that the Government are increasing funding for mediation by two-thirds, which is something that the Lord Chancellor has made considerable play of. But are the Government not at risk of putting rather too many eggs into this basket, particularly with the removal of legal aid, which is normally available in family dispute cases? Those on low incomes will be more or less forced into mediation. But you cannot force people to go to mediation. It will not work and, as my noble friend Lord Beecham has said, there is the danger of considerable inequality of power between the two parties whose dispute is being mediated.
I join other noble Lords in asking the Minister to look positively at the suggestion in the amendment tabled by the noble Lord, Lord Thomas of Gresford. It may be useful to provide some funding for collaborative law. It may well be that the legislation should reflect the positive view that the Government take of the availability of this means of resolving disputes in a variety of circumstances.
Lord Phillips of Sudbury
My Lords, my name is on this amendment. As persuasively put by my noble friend Lord Thomas of Gresford, it seems to be an unarguable proposition. The only fiddling point I would make about calling it “collaborative law” is that it is not the law that is collaborative but the process. It might be better to call it “collaborative resolution”, but that is a detail. I hope very much that my noble friend will feel that this is an advance.
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Lord Faulks
My Lords, most Members of this House would approve of the idea of having good-quality expert evidence in cases. In the area in which I practise there have been considerable strides forward in that regard. Although the noble Lord, Lord Beecham, speaks of hired guns and undesirable practices, it should be known that much has improved in this area, not least thanks to the major contribution of the noble and learned Lord, Lord Woolf, the CPR, the exchange of experts’ reports, experts’ meetings and a sensible control of the questions that are asked, so I would not like the House to get the impression that the world is a jungle where experts are concerned. Litigation is much more orderly than it was and the noble and learned Lord, Lord Morris, is quite correct that good experts often produce settlement and good results.
While I certainly applaud the sense the amendment, which is to encourage good-quality experts, the reason why they are sometimes not available is not simply because of money. There are difficulties simply in finding the right experts for the right cases because they have other commitments. Let us take paediatric neurology, for example, an area that is particularly important in clinical negligence cases. Very few are available, and they are very often not available for many months. In other words, there are factors that are not easily within the reach of any form of legislative provision. While approving the general spirit of the amendment, I would countenance some wariness in enshrining this in any legislative form.
Lord Howarth of Newport
My Lords, as everyone who has spoken has said, it would self-evidently be a false economy and prejudicial to justice if the Government were not willing to spend the money that they genuinely need to spend in ensuring that the expert evidence required is available to the courts. I ask my noble friend Lord Beecham, who moved the amendment, and the Minister—if, as he surely must, he agrees with the thrust of the amendment at least—what their views are on the appropriate methodology under the amendment. Does my noble friend consider that there should be some sort of standing body independent of the Ministry of Justice that would have the task of keeping this issue under continuous review and to report from time to time? I would have thought that it would be a continuing necessity for the Lord Chancellor to have the benefit of such advice so that he can be sure that the taxpayer is not being asked to spend more than is genuinely necessary under this head, but equally to be sure that sufficient resources are being provided. How does my noble friend or the Minister envisage that this function should be carried out? Perhaps they could say something about the practicalities of ensuring that that takes place, as that would be helpful.
Lord Walton of Detchant
My Lords, I had not intended to speak on this issue, except to give brief support to the amendment that has been tabled by the noble Lord, Lord Beecham, which he expounded so very clearly. My own personal experience of giving expert witness in neurological cases over many years, not for a long time but many years ago, has led me to give warm support to this proposal. It is fair to say that we heard comments a moment ago about expert witnesses in the field of paediatric neurology. This is an extremely difficult and sensitive area, particularly in cases of alleged child abuse when views have been taken by different experts on very good scientific evidence who have come to totally opposing opinions about the nature of the problem.
On the other hand, looking back on personal experiences, I have to say that the mechanism that I was familiar with many years ago has not been explored sufficiently. When I was involved in giving expert evidence in cases of head injury in miners, I remember receiving letters jointly signed by the then National Coal Board and the National Union of Mineworkers, saying that they would accept my report as being binding on both parties. That kind of agreement in advance of court hearings in cases of alleged negligence or industrial injury could be used very much more readily.
Lord Pannick
My Lords, I, too, support the amendment. The case for the Bill depends on two factual premises. The first is that the Bill will save large amounts of public money. The second is that it will not cause the damage to access to justice for vulnerable groups that is feared by critics because there will be other means of providing advice and information. Each premise is highly contentious and each depends on assertion rather than evidence. Therefore I find it very surprising that the Government conducted no serious analysis of the facts relating to the impact of the Bill on these two vital matters before bringing the legislation before Parliament. Since the work was not carried out before the Bill was presented, surely it is vital that an independent assessment is carried out before it is implemented and brought into effect.
As I understand it, there will in any event be a substantial period of time between Royal Assent for this Bill and the bringing into effect of its main provisions. The amendment will not in any way commit the Government to accept the contents of the independent report. The report will be information that will be before the House and the other place when a commencement order is brought forward, so I, too, support this amendment. I very much hope that the Minister will be able to give a more positive response to the concerns that have been expressed on this amendment, and will be expressed in relation to other amendments that we will be debating today, than he felt able to do on the first day in Committee on this Bill.
Lord Howarth of Newport
My Lords, my noble friend Lord Bach is quite right to table an amendment requiring that the Government make an impact assessment before the commencement of this legislation. The Lord Chancellor wrote an article in the Guardian on 20 December in which he said:
“Access to justice is a fundamental part of a properly functioning democracy … Those most in need must be helped where they face serious injustice”.
Those are fine professions of principle, but I do not think that Guardian readers should assume that all will therefore necessarily be well.
It is true that it is difficult to assess the impact of removing welfare cases from the scope of legal aid. The Government’s own impact assessment stated:
“Any significant change in case outcomes may be associated with social and economic costs if this leads to wider economic and social issues arising (for example, relating to health, housing, employment or offending). There may then be associated costs to the Ministry of Justice, other government departments or public bodies or to society as a whole”.
That somewhat tortuous prose perhaps betrays the embarrassment of the authors of that document. It acknowledges that there are indeed risks of the kind that we fear. However, it goes on to claim that there is not enough evidence to quantify or further examine those costs for any area of legal aid and therefore the implication is that the attempt should be abandoned.
I cannot accept that. It seems to me that where you have very real risks to the well-being of individuals and families as well as to access to justice, every effort should be made to continue to identify the hazards and the potential costs of the policy of taking welfare out of scope. If, indeed, it proves impossible to measure with any reasonable exactitude, and at the same time common sense tells us that the dangers of the policy are great, then surely the proper conclusion is to abandon the policy. Since I do not think that the Minister is going to tell the Committee at the end of this debate that he is going to abandon the policy, I think we must support this amendment.
My noble friend’s amendment prescribes the approach that should be taken by those who are making the impact assessment. He itemises categories of vulnerable people. He is right to focus our concern on particular groups of people so that it should be possible for the Government and the wider public to understand what the impact of this policy would be on particularly vulnerable groups at moments in their lives of exceptional vulnerability.
I have two concerns about my noble friend’s amendment. The categories that he has selected are not sufficiently comprehensive. Women, for example, are specified, very rightly, but what about men who find themselves dealing with bad employers, bad landlords or bad benefits decision-makers? Indeed, is there not a risk that my noble friend’s amendment might be discriminatory in this regard? Who does my noble friend mean by “young people”? We know that 22 per cent of 18 to 25 year-olds are facing terrible difficulties as they cannot find jobs in this economy. In contrast to the much more fortunate situation of the baby boomers—most of us—this generation has to seek work that, for many, is simply not there. If they flag in their search for work, they are liable to fall foul of the JSA regulations. If they do that, they may come to the view that there is not justice in this society. There are no jobs for them, no benefits for them, and no legal aid to ensure that they have redress where they may have a legitimate legal case. If that happens, they may lose respect for our society and its institutions. My noble friend is right to anticipate that the policy may indeed increase the risks of crime and anti-social behaviour.
My other concern about my noble friend’s amendment is that these categories overlap. I think we are all familiar with the remarks of the tribunal judge Robert Martin, the president of the Social Entitlement Chamber, who said in response to the Government’s consultation:
“The principal flaw in the Government’s approach is the reliance on thematic categories of law as proxies for determining who is in need. These categories only have a loose association with real lives and real problems”.
Disability, discrimination, unemployment, debt, relationship breakdown and ill health chase each other around and tangle with each other. In picking on particular categories of case where legal aid will cease to be in scope, the Government are attempting—unrealistically and dangerously—to unbundle the reality of people’s lives. My noble friend, constrained by the structure of the Government’s own legislation and policy, is driven in his amendment to do the same.
I think it was the noble Lord, Lord Newton, who said in an earlier debate that actually what is needed is a combined impact assessment. It is estimated that not less than 135,000 people will be affected by the withdrawal of welfare cases from the scope of legal aid, more than half of them disabled people. We need a really searching analysis to try to discover what the impact of the totality of these policies will be on the totality of their lives. However, the Government do not want to do that. The Green Paper stated:
“We consider that these issues”—
these are financial issues for people in poverty—
“are of lower objective importance … than, for example, fundamental issues concerning safety or liberty”.
Ministers are at risk of finding themselves in a philosophical quagmire if they attempt to specify what is of “lower objective importance”, but I do not really mind about that. Common sense and common sympathy tell us that extreme poverty means inability to provide basic needs, malnutrition and prejudice to physical and mental health. Is that not fundamental?
Whatever the objective justification, I believe that the policies are reckless, especially given the huge incidence of erroneous benefits assessments and of successful appeals against those assessments. For example, in the case of appeals against a refusal to award DLA, I understand that the success rate for people who are accompanied and supported at their hearing is 60 per cent. The error rate in benefits assessments is well nigh certain to rise with the transition to universal credit, employment and support allowance and personal independence payments. Especially the policies are reckless at a time of economic blizzard, when the Government’s response to the economic blizzard is draconian cuts, some four-fifths of which fall on the poor.
I cannot but feel that Ministry of Justice policymakers live in another world. The Green Paper told us, with an apparently straight face, that,
“the accessible, inquisitorial, and user-friendly nature of the tribunal means that appellants can generally present their case without assistance”.
We are reminded by Justice for All, a campaigning consortium of a large number of immensely respected voluntary organisations in our country, that the DWP issued 8,690 pages of advice to its decision-makers in 2009. It is not only the regulations that have to be understood but the case law.