Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Monday 5th March 2012 Lords Chamber

Moved by

[Lord McNally]

That the Report be now received.

[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?

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[Lord Bach]

Indeed—I fully concede that; but I have to say that I do not concede the point that I am about to make, which is that if the noble Lord were in opposition and a Bill such as this was brought in by a Government whose party was not his party, he would oppose the Bill with all the great force and passion that he could and support the amendment 100 per cent.

Some noble Lords in Committee thought that the amendment did not go far enough and did not follow the words of the Constitution Committee. This is a very modest amendment that could have gone further. We think that it catches the right note, does not try to go further than it should and is very much in the context of Part 1. If it is the position of some noble Lords that the amendment does not go far enough, that is surely an argument in the context of this debate to vote for the amendment, because its position is closer to their position than if they were against it. If the view is that the Bill should reflect the Constitution Committee’s opinion and nothing else, this is certainly the amendment to vote for.

There is nothing wrong at all with this statement of principle occurring at the start of a major Bill that if passed in its present form will transform the legal aid system, particularly as it affects the very poorest, who rely on civil justice in order to get their rights. It is therefore important that we set off in the right way. The right reverend Prelate the Bishop of Exeter—if I may say so, with respect—caught the mood absolutely correctly when he talked about the function of the law, which is to look at worst-case scenarios. He is absolutely right; the Bill does not do that. It takes a very rosy view of what will happen when, for example, there is no legal aid for social welfare law. What will happen then? I know that we will debate that in the days ahead, but it is a matter that we should consider in relation to the amendment.

I have gone on for longer than I had intended. We support the amendment completely and we very much hope that the House will, too.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, let me begin with the comments of the right reverend Prelate the Bishop of Exeter. The worst-case scenario for me would be if this Government lost control of the economy and were forced by circumstances to come back with even more draconian cuts in public expenditure than those that we were forced to make when we came into office, and which the Labour Government in their last months were also planning. That is the reality, a reality that has been faced by every department of government. If we had not taken those tough decisions, we could indeed be facing that worst-case scenario in which control of the economy was lost and even more draconian cuts were asked of our citizens.

I recall saying that I would reflect on what was said in Committee. I have done so, and so has my right honourable friend the Secretary of State. I must say that the more I have reflected on it, the less convinced I have been by the amendment proposed by the noble Lord, Lord Pannick. Many speeches—although I do not accuse the noble Lord, Lord Hart, of this—have wandered very far in the direction of seeing access to justice as a concept of legal aid blank cheques signed by the taxpayer. I know that the noble Lord, Lord Pannick, will say, “Ah, but look at my amendment. See the limitations that I recognise”. Once you have said that there are limits to expenditure, some of the high-flown phrases used by the noble Lord, Lord Clinton-Davis, or the noble Baroness, Lady Mallalieu, have to be run up against that hard decision. You are drawing lines. You are not giving everyone access to justice financed by the taxpayer. We are trying today to see, as my noble friend Lord Thomas said, whether the amendment adds anything to our debate.

Amendment 1 relates to the supply of and demand for legal services. I accept that its purpose is very similar to the purpose for community legal services in Section 4(1) of the Access to Justice Act 1999. I also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1.

However, against the backdrop of the Bill, we believe that Amendment 1 is unnecessary and inappropriate in the context of Part 1. The provision in the Access to Justice Act relates to how civil legal aid operates on an exclusionary basis. By that I mean that it specifies what services cannot be funded under civil legal aid and leaves open the question of services that might be funded. In that context, a provision such as that in Section 4(1) of that Act, which provides a basis for determining which services might be funded, is a useful and appropriate addition where those services are undefined.

However, in the context of the Bill, the amendment is not appropriate. The provisions of Part 1 that relate to the general scope of civil legal aid are drafted on an inclusionary basis, where the services capable of being funded under civil legal aid are detailed explicitly in Schedule 1. As such, there is no question as to what services might be funded; they are in the Bill for all to see. Consequently, the amendment based on Section 4(1) of the Access to Justice Act is not appropriate.

That tension—some would say contradiction—is underlined by the amendment itself, the intention of which is to make the provision subject to the wider provisions of Part 1, which of course includes Schedule 1 and its description of the range of services to be funded under civil legal aid. We therefore believe that the amendment is not appropriate in the context of the Bill.

Outside those technical and definitional issues, the debate has raised questions about whether there should be a duty on the Lord Chancellor to secure access to justice. I shall briefly explain why we think that that is also unnecessary in the context of the Bill. The noble Lord, Lord Pannick, quoted the Guardian article of my right honourable friend. I repeat again that the Government consider that the rule of law and access to justice are a fundamental part of a properly functioning democracy and an important element in our constitutional balance.

It is true that the legal aid reforms are aimed in part at achieving savings. In our view, the current legal aid system is unaffordable, has expanded far beyond its original scope and is not sustainable in its present form—as I think was recognised by the Labour Party when it referred to cuts in legal aid in its election manifesto. However, the reforms are also aimed at encouraging people to use non-adversarial solutions to resolve their problems where appropriate and to speed up and simplify court processes where not. As such, we consider that our reforms should strengthen the rule of law by making the justice system more effective.

The Government believe that financial assistance from the state in accessing the courts is justified in certain areas, and that is why we have retained categories of cases within the scope of civil legal aid. I noticed that the noble Lord said that there was no social welfare spending on legal aid but that is simply not true, as he knows. We have also made provision for legal aid to be granted in the limited circumstances justifying exceptional funding under Clause 9. The exceptional funding scheme will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights, as well as rights to legal aid that are directly enforceable under European Union law.

The Government do not dispute that it is a principle of law that every citizen has an unimpeded right of access to a court. However, they do not accept the proposition that there is a constitutional right to legal aid in all circumstances and at all times. Once that is conceded, the debate is about how and where we draw the line. The Government consider that the common law right, as mentioned by my noble friend Lord Thomas, of unimpeded access to a court of law means having the assistance of the court to assert legal rights and obtain remedies to which one is entitled, having the right to challenge a decision in the courts if one wishes to do so, and not being prevented from issuing court proceedings because of an inability to pay the court fee.

The noble Lord, Lord Alton, and others seemed to be moving very close to arguing for a legal aid scheme at the point of need—a kind of National Health Service for the legal profession. I think I have mentioned before that I talked to Jeremy Hutchison—Lord Hutchison—who is on leave of absence from this House and is now in his 90s. He was one of the lawyers who made up the legal aid scheme. He said, “Our ambition was a National Health Service for the legal system”. However, the truth is that successive Governments have backed far away from that ambitious concept. Although I know that the noble Lord, Lord Bach, would have made savings in other parts of legal aid, even the Opposition have said that there would be limits to legal aid. The noble Lord, Lord Clinton-Davis, said that he was brought into the legal profession by the idea of access to justice. However, even when he came into the legal profession, and every day that he was in the legal profession, the kind of access to justice that he was referring to was never available. Access to justice with legal aid has always been restricted. We have always had to draw lines and we always will, as he well knows.

[Lord Clinton-Davis]

Of course. The whole legal aid system is based on that; you have to conform with certain priorities. However, I repeat that the basic principle that brought many of us into the profession in the first place was fairness and justice, and that is being denied.

[Lord McNally]

It is not being denied; it is still there. However, in very difficult economic circumstances, we are making tough judgments and drawing lines, as successive Governments have had to do about where legal aid applies and where it does not.

[Lord Bach]

How can it be justice to deprive legal aid from the poorest people in society who need advice on social welfare law? How can that be just?

[Lord McNally]

The noble Lord will probably continue for the next five days to make his debating points, but we are not depriving them and he well knows it. As the Bill proceeds we will make further comments about help on advice.

The Government also consider that case law does not establish that in order to have access to a court, it is a necessary precondition that an individual has received legal advice. A common law right that requires access to legal advice and beyond that to state-funded legal advice and assistance, would also go beyond the approach laid down by the European Court of Human Rights in its case law on Article 6 of the ECHR.

The Government considered very carefully from first principles which cases should continue to attract publicly funded legal advice and representation in the light of the financial constraints that I have mentioned. As reflected in the Bill, the Government reached the view that exceptional funding under Clause 9 of the Bill should be limited to ensuring the protection of an individual’s rights to legal aid under the ECHR as well as those rights to legal aid that are directly enforceable under EU law.

In addition to this the Lord Chancellor would be required in carrying out his functions to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor has some specific duties under the Constitutional Reform Act 2005.

We have also been clear in the response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and put in place a procurement strategy that reflects the demands and requirements of the new legal aid market.

In light of the practical barriers in operating this amendment and the fact that the more principle-based concerns are addressed in the Bill, I would urge the noble Lord to withdraw the amendment. Many speeches today have gone far beyond what legal aid means in the scope of legal aid under successive Governments. The Bill is honest about what we can do and, as such, it deserves the support of this House.

[Lord Campbell of Alloway]

Perhaps I may ask my noble friend a question, as I am rather confused. To implement this question as put surely you need to have an elastic available resource—you need something that from time to time meets the circumstances. Is that not right? If you look at Clauses 2 and 4, you will see that they are all involved. It is all a question of legal aid and legal resources. I am not trying to be difficult but I just do not quite understand how it will be paid for.

[Lord McNally]

As we continue to point out, it is being paid for by taxpayers via my right honourable friend the Chancellor of the Exchequer. However, my noble friend does put a point. This amendment creates a warm glow. It is a general declaration which the noble Lord assures us will not really affect the workings of the Bill. I am telling him that the Bill, in its structure, covers all the important commitments that he seeks without misleading the public or Parliament about the very real constraints that we and previous Governments have had to put on the limits of legal aid.

[Lord Pannick]

My Lords, I am grateful to all noble Lords who spoke in this important debate. I am also grateful to the Minister for his thoughtful response. However, I am as puzzled now as I was when moving the amendment as to why the Government are resisting it. I am puzzled in particular because the Minister very helpfully repeated what was stated by the Justice Secretary in his Guardian article: namely, that the Government are committed to access to justice as,

“a fundamental part of a properly functioning democracy”.

Therefore, nothing is in dispute on this subject between the Minister and those of us who spoke in favour of the amendment. There is no issue of principle.

The Minister spoke about the need for the Government to take tough economic decisions. Many noble Lords will be very sympathetic to him on that. We will debate very contentious issues as we go through Report. However, I say to noble Lords that the point has no relevance to this amendment, which expressly inserts,

“within the resources made available and in accordance with this Part”.

This is not a partisan amendment. The case for it—and indeed the case against it—does not depend on the views that noble Lords may have on the merits or otherwise of the Government’s proposals on the scope of legal aid.

I will make two further points. The Minister made the point that there is no constitutional right of access to legal aid in all circumstances. Of course, he is right. Access to legal aid has always been subject to conditions, criteria and limitations. We will come on to debate whether there should be further restrictions, conditions, criteria and limitations. However, a provision in the terms that I propose has always been part of legal aid legislation, even though it has never in absolute terms provided legal aid in all circumstances.

[Lord McNally]

Would the noble Lord not concede that the difference between this Bill and previous Bills is that previous Bills have been open-ended, so the kind of commitment that he talked about was reasonable, whereas Schedule 1 to this Bill specifies what we will do? He wants to insert a warm glow in the Bill, but putting warm glows into Bills is not good.

[Lord Pannick]

The Minister may disagree, but I take the view that because the Government now wish to specify areas where legal aid will continue to be available, it is all the more important that the statement of constitutional principle about access to justice continues to be part of the legislation, subject to available resources and the provisions of this part.

The noble Lord, Lord Thomas of Gresford, said that the statement of purpose was unnecessary since access to justice was not being abolished. He also suggested that the amendment contained unnecessary verbosity—a surprising allegation about an amendment that is 23 words long. I take the view that when Parliament redefines the scope of legal aid, and does so in provisions that will inevitably be controversial, it is vital that it should restate its recognition of this important constitutional principle. I hope that noble Lords on all sides of the House will feel able to support the amendment, which does no violence whatever to the Government's general objectives in relation to the Bill. I wish to test the opinion of the House.

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[Lord McNally]

My Lords, in a way, this mirrors the previous debate, in that we are discussing how under the Bill we intend to deal with private family legal aid and its relation to domestic violence. A number of speeches have ranged wider than that; certainly, remarks made outside the House in the press, on the radio and elsewhere suggest that somehow the Government are turning their back on the subject of domestic violence.

Let me make it clear from the start that the Government are absolutely committed to supporting action against domestic violence and supporting the victims of domestic violence, whether through legal aid funding or other means. I do not think it serves the interests of those suffering from domestic violence to suggest otherwise. Our record is good. We have provided more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence and support services, and are providing £900,000 to support national domestic violence helplines and stalking helplines.

The Ministry of Justice contributes towards the funding of independent advisers attached to specialist domestic violence courts—a total of more than £9 million up to the end of 2012-13. In addition, the victim and witness general fund will provide a total of nearly £15.5 million in grant funding over the next three years to voluntary sector organisations that support the most seriously affected and vulnerable and persistently targeted victims of crime. Of that, nearly £4.7 million will be used to fund 44 court-based independent domestic violence advisers across England and Wales over the next three years. We will also allocate £3 million a year for the next three years to 65 rape crisis centres, and are working with the voluntary sector to develop the first phase of new rape support centres where there are gaps in provision.

Domestic violence protection orders are being piloted in three police force areas. They are designed to give immediate protection to victims by banning a perpetrator from returning to the house and giving the victim the breathing space they need to consider their next steps. Just today, we announced a one-year pilot which will take place from this summer to test domestic violence disclosure schemes, known as Clare’s law. The pilot will test a process for enabling the police to disclose to the public information about violent offending by a new or existing partner where that may help to protect them from further violent offending.

So the claim that we are turning our back on the problem of domestic violence is simply not true. Thankfully, there has been a real change in attitudes in this country towards domestic violence over the past 30 years. Of course, the party opposite can take its share of the credit for that progress. We still have some way to go—some would say a long way to go. The Government will continue to give priority to this issue but on the basis of the facts, not fantasy. For example, I make it absolutely clear that we are retaining legal aid for the purpose of seeking an order or injunction to prevent domestic violence, exactly as at present, although that was not the gist of the letter referred to by the right reverend Prelate the Bishop of Exeter. This means keeping the power to waive the upper financial eligibility limits and a relaxed merits test, so that those who need help can get it. Defining domestic violence or what evidence is needed to show domestic violence to qualify for legal aid simply does not arise in these cases. Legal aid is, and will remain, available in these cases on the non-means-tested basis that applies at present. These are the cases which are about protecting someone’s safety, about not revealing where someone lives and about ensuring that the abuser is excluded from the family home—the cases that we all agree need prioritising.

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[Lord McNally]

The forms of evidence that will be accepted for this purpose are not set out in the Bill. Instead, our intention is that they will be set out in regulations under Clause 10. We believe that it is appropriate to set out these detailed provisions in secondary, rather than primary, legislation, which can be amended to respond to particular issues which may arise in the practical operation of the scheme.

[Baroness Butler-Sloss]

I am very interested in what the Minister is saying, but perhaps I might ask him to explain whether the points in Amendment 43 will be covered in regulations. If they are, then this amendment is not necessary, but if the intention is not to cover all of those, then the amendment would remain necessary.

[Lord McNally]

If I go on, all will become clear.

We indicated the intended forms of evidence in consultation and listened to views expressed in response. As a result, we widened the range of forms of evidence to include evidence from a multi-agency risk assessment conference, a finding of fact by the courts and the fact of a child protection plan being in place. This last point is particularly important because we moved from an intention just to protect adult victims of domestic abuse to include victims of child abuse by this means.

The allegation that we heard again today was that the Government’s criteria will still miss a great number of genuine victims, and various pieces of evidence were adduced to support this. However, the evidence referred to domestic violence victims as a whole—highlighting their difficulties in dealing with the civil or criminal justice systems, for example. We are dealing with a subset of that group: those who seek private family law legal aid. They will have slightly different characteristics from domestic violence victims as a whole. By definition, they will be engaged in the civil justice system. A significant number—there were nearly 10,000 in 2009-10—will seek civil legal aid for a protective order or injunction at the same time as they seek it for their private family law matter. They will all meet the evidential criteria.

We know that in total there were 70,000 legal aid family cases in 2009-10. I will compare that figure to the prevalence of the types of evidence that we are requesting. Around 24,100 domestic violence orders were made in 2010—the great majority with the benefit of civil legal aid. Around 74,000 domestic violence crimes were prosecuted in 2009-10, and there were 53,000 domestic violence convictions. Around 43,000 victims of domestic violence were referred to multi-agency risk assessment conferences in the 12 months to June 2010. In future there will also be those with ongoing criminal proceedings for domestic violence, and those in whose cases a finding of fact in the courts has occurred. Clearly the figures will overlap. However, what this points to is that a significant proportion of the 70,000 private family law cases that we currently fund will continue to be funded. We think that the proportion will be around one-quarter, which matches our rough estimate of the prevalence of domestic violence.

With this in mind, the Government consider that we have got the balance on evidence requirements about right. The forms of evidence we intend to accept will meet a high standard of objectivity. However, I have heard what has been said during the debate, and of course respect the wisdom and experience of those relaying their views to me. We are therefore prepared to go further and accept undertakings as evidence. We are satisfied that undertakings are sufficiently objective and fit with what we consider the right approach. We remain of the view that these forms of evidence are better left to regulations rather than placed into primary legislation. They are points of admittedly important detail, but ones that may be subject to change as the scheme settles in.

I hope that my noble friend Lord Thomas will be reassured by what I said and will not press his amendment, so that we can deal in regulations with the matters covered by it. I also hope that, now she has seen how far we have gone on that matter, the noble and learned Baroness, Lady Scotland, will be persuaded to withdraw her amendment.

As I said, it was extremely useful in the debate to put on record the Government’s determination to combat domestic violence with the entire panoply of services and funding at our disposal. Here we are dealing with a subset of those affected by the issue—a fact that not all speeches today covered. We have tried in our amendments and in the concessions that we made to re-emphasise that we understand the importance of the issue and are determined to make sure that we get the balance right. I hope that neither my noble friend nor the noble and learned Baroness will press their amendment, on the understanding and assurances that I gave of using my noble friend’s amendment as the template for what we will do in regulations.

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[Baroness Scotland of Asthal]

I thank the noble Baroness, although, of course, it is always a delight to do battle with the noble Lord across the Dispatch Box.

I shall deal with the second issue raised by the noble Lord. He referred to the noble Lord, Lord Macdonald, and spoke about what has happened in the past 10 years. I shall remind him of what the noble Lord, Lord Macdonald, said. He said:

“I have a major problem with an approach that risks rolling back decades of progress in our understanding of a crime that is an absolute scourge, not least in the way that it condemns so many of the children who live with it to disordered and chaotic later lives of their own. Talking of cost, that brings its own very high cost, which all of us have to pay”.—[Official Report, 18/1/12; col. 591.]

Therefore, I absolutely agree with what the noble and learned Baroness, Lady Butler-Sloss, said about the impact on children. It affects 750,000 children in our country every year, and that is a price too high to pay. We can save money, and we can also save lives. The system that we implemented, which was agreed to by all parts of the House, saved £6 for every £1 we spent, and we saved £7.5 billion a year, so what we propose in these amendments will save lives and costs. There is no reason why we should be retrogressive and go back to where we were before 1997 when the previous Government came in. I do not believe that that is really what the coalition wants. I would like to believe that it, like us, believes that we have come a long way in supporting victims, and we do not want to go back. That is why I will be seeking the opinion of the House.

[Lord McNally]

I did not want to interrupt the noble and learned Baroness’s peroration, but for the assistance of the House, if a Division is called, if Amendment 2 is carried, we do not accept that Amendments 41, 43 and 44 are consequential. However, we will not divide the House when they come up. I assume that the noble Lord, Lord Thomas, will not move Amendment 39. We wait with great anticipation. I will be moving the government amendments in the usual way. You lot have had a lot more experience at doing this than me. I hope that is of help to the House.

[Baroness Scotland of Asthal]

I thank the noble Lord for that helpful indication. I agree with him. I would argue that my amendments are consequential, but I am very grateful for his gracious indication that he will not press that point.

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[Lord Ramsbotham]

My Lords, I put my name to the amendment for one simple reason: it drew attention to impact assessments, which are a very important part of legislation. I have mentioned in connection with other legislation that has come before the House that impact assessments in general are not well done. What has been said from around the House during this debate proves the point that in this Bill it does not appear that the impact assessments on all these aspects have been carried out sufficiently well to satisfy Members of the House that we are launching in a direction in which we ought to go.

[Lord McNally]

My Lords, where am I to begin? It is probably best to begin with the unknown unknowns. Government can paralyse itself with inquiries and reports. Sometimes Ministers have to take decisions. As I said at the very beginning of the debate today, we had to take decisions against the background of a bleak economic situation. The brutal fact is that we were a whole lot poorer than we thought we were in 2008. That is the brutal fact and it means that bringing our public finances back into balance has required hard decisions. My department, with a £10 billion spend, has a commitment to cuts of £2 billion—not just to legal aid but to real people doing good jobs in the public service.

Sometimes when I listen to debates in this House, I think that there is no concept of the truth and consequences of what is happening. If not legal aid, where, who and what should be cut? We as a Government are willing to take responsibilities and will be tested by the outcome of our views. I am not sure that any inquiry would produce things that would settle all the arguments raised in the debate. We published a consultation paper more than a year ago, at the beginning of this process. We listened to the arguments put forward by a variety of bodies. The provisions on social welfare are not just a money-saving exercise. My right honourable friend was this morning referring more to the Jackson reforms in terms of expenditure on legal fees, and most people would agree that certain inflationary processes were caused by the reforms that the previous Government made.

We are trying to make a number of decisions. Perhaps I may say again—I think I have said this before in reply to the noble Lord, Lord Judd—that when the noble Lord, Lord Howarth, talks menacingly about people being driven to anti-social behaviour and criminality, I emphasise that people have a choice. I come from a background where people in real deprivation chose not to break the law. That should always be kept in mind, and no justification should bypass that.

As to the NAO, the Permanent Under-Secretary gave evidence to the Public Accounts Committee, in which he maintained that the MoJ had met government standards. Her Majesty’s Treasury has confirmed that carrying out the kind of study that was being proposed would be an extension of the NAO rule.

The noble Lord, Lord Howarth, asked when the Bill would come into effect. I will write if I am wrong, but I think that it is April 2013—in about a year’s time.

The amendment and the related Amendment 160 are unnecessary. As noble Lords will be aware, the Government already conduct impact assessments against a recognised standard that is determined by the Department for Business, Innovation and Skills and deployed consistently across all government departments. The scope of the impact assessments required under the BIS standard is, I acknowledge, narrower than that proposed in the amendment. However, setting aside the amendment’s references to groups with protected characteristics, to which I shall return in a moment, the impact assessments produced to date already touch on many of the areas that the amendment covers. However, the impact assessments necessarily quantify only costs and benefits where there is evidence that allows such quantification. Where quantification is not possible, the impact assessments consider the risk of given impacts materialising. Recognising that there are potential risks associated with making changes does not mean that such risks will be realised.

I have been disappointed with the way that the product of the analytical rigour that features in the published impact assessments, in considering every feasible risk, has been used in debate to paint a disingenuous doomsday scenario. The noble Lord, Lord Bach, claims that there is a theoretical risk of, for example, reduced social cohesion or criminality. However, that does not mean that the changes will automatically lead to such outcomes in the way that some have sought to present the assessment. Impact assessments allow policymakers to identify risks as a matter of good practice so that all possible eventualities are considered. Identification does not guarantee that such a risk will become a reality.

Turning now to equalities, the amendment also seeks a pre-commencement impact assessment on specified groups sharing characteristics that are protected under the Equality Act 2010. Public authorities are already under a public sector duty to have due regard to the impact of their policies on those protected groups. I have already invited noble Lords—and I do so again—to consider the equality impact assessment published alongside the Government’s response. This considers the potential impacts of the reforms on legal aid clients by race, gender, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief, and sexual orientation. This is more comprehensive than what is required by the amendment, and the equality impact assessment is open about the nature and extent of those potential impacts.

The existing statutory framework has due regard to equalities impacts. The fact that the ministry has had due regard to, and has published, its assessment of potential impacts suggests to me that what the amendment seeks in respect of equalities consideration is ill conceived. In respect of the assessment of wider social impacts sought by the amendment, it may well be that there are those in this House who have powers of foresight beyond mine, because this is almost certainly what would be required were any government department to be able meaningfully to deliver what these aspects of the amendment require.

Taking an emotive example, I ask this House carefully to consider if it is realistic, or even possible, to predict the expected impact of these reforms, or indeed any government policy, on something as complex as suicide. We have absolutely no reason to believe that there would be any relationship between these changes and the incidence of suicide. However, it would in any event be analytically impossible to predict such a relationship in a reliable way. The same tension exists regarding other impacts listed in the amendment that would undoubtedly have a multitude of complex causational factors. Ultimately, it is possible to identify only the risk of an impact, and the Government have been as comprehensive as possible in their assessment of those risks.

In respect of the types of advice organisations specified in the amendment, the equality impact assessment considers impacts on the not-for-profit sector, as well as solicitors and barristers. Of course, such analysis can describe only what the financial impacts are likely to be; the question of continued service provision will be dependent on a range of factors such as other funding streams, possible reorganisation of business structures, and diversification or contraction of services based on expertise. None of these can be either predicted or generalised across hundreds of offices.

Put simply, the amendment cannot achieve what it sets out to do. We are of course committed to assessing the true impact of the Bill, once it has materialised, as part of an established process of post-implementation review of legislation. The Ministry is working hard to improve its evidence base on legal aid clients and providers to get maximum benefit from the review process. In short, much of what the amendment seeks has already been addressed in the material published to date, and we are confident that we have measured that for which evidence is available. On the remaining aspects, it is possible only to identify risk, and we have done that in accordance with the Government’s accepted standards.

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[Lord Bach]

My Lords, I thank the noble Lord for his reply and what assurances he was able to give—not satisfactory from our point of view, but he gave what assurances he could, particularly about another impact assessment later. I thank in particular the noble Lords, Lord Ramsbotham and Lord Pannick, and the noble Baroness, Lady Prashar, for their support for the amendment and all noble Lords who spoke during this important and interesting debate. Important issues have been raised both here and in Committee, and the House obviously believes that. I am delighted to have so much general support around the House for the amendment, although the Minister insisted that it was unnecessary and misguided.

Of course we accept that difficult decisions have to be taken by the Government. The Government think that they will save about £61 million a year, a rough figure, by abolishing legal aid for social welfare law. Our problem—I think it should be one for the House—is: how much are they actually going to save by what they intend to do about the scope of legal aid? We believe—reports suggest that we are right—that other departments will have to pick up the pieces of those cases that would otherwise have been solved or sorted but which will not be because people will not have anywhere to go to get the advice that they get now. The system that works pretty well—not perfectly, but pretty well—will have gone. We believe that the cost to the Government, whichever Government, will be much higher than any savings that the ministry will make. That is why we wanted to know more detail and hoped that the department could help us with more detail about what it believes the costs will be.

We believe that the cost to society will be very high indeed. It will not help the Government's deficit cuts plan; it may actually add to it in the end. I know that that is not what the Government intend, but we believe that that may be the consequence, which is why I have raised this issue again this evening.

I hope that the Government listened to the 5,000-odd responses to the consultation. As I understand it, 90 per cent of them were opposed to what the Government intended to do, so they may have listened, but not very carefully, I fear.

I end by saying that the cuts that the Government have decided to make cut 53 per cent of the social welfare law budget, 27 per cent of the family law budget and 8 per cent of the criminal legal aid budget. Those figures were given by the Government in a Parliamentary Answer in another place last week. They are staggering. Why has the criminal legal aid budget, which is already much the largest, been allowed to escape almost scot-free?

[Lord McNally]

My Lords, as the noble Lord knows well, shortly before leaving office, he introduced cuts to criminal legal aid which we agreed should be absorbed by that sector before any further examination of the criminal legal aid side. Criminal legal aid has not been free from cuts, but those cuts were his.

[Lord Bach]

They were, and they were opposed by the noble Lord, his party and other parties when we made them, but so be it. They were opposed during the general election campaign. I know; I was the Minister at the time. I can tell the noble Lord that, if we had been re-elected, which we were not, we would have looked further on the basis of the White Paper we produced in March 2010 for further cuts. They would have been controversial cuts, I do not dispute that. I very much hope that they would have had the support of the noble Lord if he had been in opposition at the time; somehow I doubt it.

There is much scope to have cut more from criminal legal aid. Still, 49 per cent of criminal legal aid is spent on 1 per cent of cases. The Government are taking 53 per cent away from social welfare law, which is not well resourced anyway; 27 per cent from family law; and 8 per cent from criminal law. We say that the Government are right to look for savings; they have just chosen completely the wrong savings. It is not too late for them to change their mind.

Do I ask the House for its opinion on my amendment? I have thought long and hard about whether I should do so this evening but, in all the circumstances, I beg leave to withdraw the amendment tonight.