Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Monday 5th March 2012 Lords Chamber

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

My Lords—

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[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 Beecham]

My Lords, it is a profoundly wise amendment, but nevertheless I beg leave to withdraw it.

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[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.

[Lord McNally]

My Lords, it is always a pleasure to have an intervention from the noble Baroness, Lady Hollis. I hear what she says and of course I defer to the judgment of my noble friend Lord Freud about the Welfare Reform Bill. However, if she had been with us through the passage of this Bill, she would have seen the number of pre-legislative and post-legislative inquiries, independent reports, consultations—it does seem a little bit like overkill.

The noble Baroness, Lady Hayter, has confessed that this is a second go at this issue, previously raised without success in the Welfare Reform Bill. This time around she would require the Lord Chancellor to conduct a review of the combined effects of Part 1 and what is now the Welfare Reform Act on a range of measures relating to advice provision and demand for advice.

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[Lord Bach]

I was not sure whether the Government were minded to adjourn the House now, it being 10 o’clock. Clause 8 has always taken a considerable amount of attention from those inside and outside the legal profession. People are very struck by the fact that it was very much a one-way ticket; namely, that the Lord Chancellor would have the power to take extra matters out from legal aid by regulation but not have the power to put them back in. Many people felt that that was very unsatisfactory.

The solution was to do it the other way around; namely, that he could put things into legal aid but could not take them out by regulation. But we see the virtues of the amendments, which are not quite the same in wording but come to the same thing, in the names of the noble Lord, Lord Thomas, and my noble friend Lord Hart. Although I will move my amendment, I would be more than happy to accept either of their amendments. I very much hope that the Government will be happy to accept one of their amendments. I beg to move.

[Lord McNally]

My Lords, the principles underpinning this Bill include the need to establish very clearly the scope of civil legal aid services. We need to ensure that the funding of the scheme is sustainable in the light of the historic expansion of the scheme and the cost to the taxpayer. We have made difficult choices in order to focus legal aid in our priorities and therefore we will resist amendments that seek to expand the scope of the scheme. However, I accept that a case has been made by my noble friends Lord Thomas and Lord Phillips, and indeed by the noble Lord, Lord Bach. If they do not press their amendments this evening, I give a clear undertaking to the House to bring back our own amendment at Third Reading which I think will meet the concerns that have been expressed. I can reassure noble Lords that the Government accept the amendments in principle in so far as they would provide the Lord Chancellor with a power to add new civil legal services to Part 1 of Schedule 1. I hope that will allow the noble Lord to withdraw his amendment and await the government amendment at Third Reading.

[Lord Hart of Chilton]

My Lords, I accept the undertaking from the Minister.