Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(12 years, 6 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
The noble Lord, Lord Clinton-Davis, was always known for his impetuosity.
I pay tribute to the noble Lord, Lord Stevenson, and his ongoing interest in debt matters. However, this amendment would have the effect of broadening the availability of legal aid for debt cases, contrary to our current proposals, which are to retain legal aid for priority debt cases only, where the individual’s home is at immediate risk of possession because of rent or mortgage arrears or involuntary bankruptcy.
It is never an easy decision to restrict the availability of funding but economic reality dictates that we focus scarce resources on the cases that are the highest priority. The Government have taken a principled approach to making spending reductions, prioritising funding for those categories of case that are most serious, such as where life, liberty or immediate loss of home are at stake. The necessary corollary of protecting funding in the most important areas is that we have to make tougher choices in the lower-priority areas.
When making these decisions, we have taken into account the presence of alternative appropriate forms of advice. It is simply not the case that legal advice is the only—or even the best—response to debt problems. Figures show that liability for the debt itself was reported as successfully contested in fewer than 2 per cent of cases in 2009-10, and also reveal that 62 per cent of legal help funding for debt matters was spent not on complex matters of law but on negotiating payment arrangements and advising clients on managing their affairs better.
We recognise that debt problems can be difficult and stressful for the individuals concerned, but we believe that what people often need is practical advice and support, rather than specialist legal advice. This help is quite widely and effectively available from organisations such as Credit Action, the National Debtline, the Consumer Credit Counselling Service and the Insolvency Service inquiry line and website. Local authorities also signpost people to local sources of advice and assistance on debt matters. In addition, the Money Advice Trust, to which the noble Baroness, Lady Coussins, referred, has recently launched “My Money Steps”, an online tool for providing advice for people with debt problems. The Consumer Credit Counselling Service also offers a free online “Debt Remedy” service.
Such sources of help are best placed to deal with issues like debt relief orders, which this amendment suggests should be brought back into the scope of legal aid. These orders are relatively informal procedures, used by people who owe limited amounts of money and do not have assets. Indeed, the current legal aid scheme does not pay for their completion.
Given the availability of alternatives, and the pressing choices forced upon us by the economic situation, it does not seem a wise use of scarce resources to continue funding widely available legal advice, much of which replicates advice available elsewhere. We must move away from the assumption that for many problems that are fundamentally non-legal, the only answer is for the state to pay for legal advice.
I understand that this amendment is motivated in part by the noble Lord’s concerns about funding for citizens advice bureaux to provide debt advice. As I have said in earlier debates, we share that desire to see what can be done to help to ensure sustainability for the non-profit sector. However, let us not overstate the impact of our changes in legal aid on CABs. Legal aid funding is intended for specialist advice, not for cross-subsidy of other activities. As a matter of practice, in 2010, 85 per cent of all bureaux funding came from sources other than legal aid and half of all bureaux do not hold a legal aid contract at all. Moreover, it should be borne in mind—I am sure that the Opposition will be glad to know this—that we have already provided £20 million, which has come ahead of reductions in legal aid spend.
It is worth remembering that CABs have not had any cut in legal aid spend and will not until 2013. Of that £20 million, £16.8 million assigned to England is being used for the Advice Services Fund to support not-for-profit providers in delivering essential advice on debt, welfare benefits, employment and housing. Despite the concerns of the sector, the Money Advice Service will continue resourcing the existing free face-to-face debt advice services after 31 March, so that people in need have access to good, free advice. The Financial Services Authority has agreed to fund this provision from April.
I also understand that the Cabinet Office’s review is expected to conclude shortly and will provide recommendations on proposals to secure long-term sustainability of the sector. As my noble and learned friend Lord Wallace pointed out, it is only nine days to my right honourable friend the Chancellor’s Budget. Therefore, I would ask the House to be patient and to allow us to bring this important work to its conclusion.
It is always easy to make the case for spending but tough times require tough decisions. I hope that even our critics accept that we are making genuine attempts to protect the not-for-profit advice sector, not least by the pressures brought to bear by my noble friend Lord Shipley at earlier stages of this Bill and by other Members of this House who have raised the specific issue of the CABs and the not-for-profit sector. I have given assurances about this and, against that backdrop, I urge the noble Lord to withdraw his amendment.
Lord Stevenson of Balmacara
My Lords, I thank the noble Baroness, Lady Coussins, for her contribution to this debate and for sharing her experience of working directly in this field, which I echo. I recognise many of the points that she made around that. It was also nice to have the unprompted support of the noble Lord, Lord Clinton-Davis. I seem to be having a little run of these things because the previous time I tried to speak about this subject, the noble Lord, Lord Best, came in on housing, which, although again relevant, was not exactly helpful to my support. Never mind, we will battle on.
At last weekend’s Lib Dem conference, a Motion was passed calling for:
“The protection of fair and equal access to justice, through … A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.
It was unanimously passed but I notice that the Minister did not mention it when he made his remarks a few minutes ago.
A lot of the points that I made, which were picked up by the noble Baroness, Lady Coussins, were about the difference that had to be made between legal advice and generic advice. It is certainly true that a lot of work is going on in the generic debt advice field but we have been facing problems in terms of legal advice. I notice that in his comments the Minister made more of a case for support of the voluntary sector in this area, which of course we are grateful to have, than about the individuals who we think will be affected by this. For example, if the bailiffs are at the doorstep seeking to seize someone’s goods and chattels, I think that everyone in this House would agree that they are reasonably said to be facing serious direct consequences. Yet, under the present proposals, they would neither be eligible for legal aid to contest the original order nor would they be able to access legal aid to challenge the manner in which the order had been carried out. Indeed, we know a lot about that. There are quite serious difficulties within the legal advice sector of debt which have not really been picked up in this debate so far.
It was interesting that the Minister made the point that currently debt relief orders were not being funded to any great extent by legal aid and that, to some extent, legal aid should perhaps not be used at all for this. The key reason why the DRO scheme is successful is its lower cost, which was much trumpeted by the Insolvency Service. That is because the administration fee is £90, of which £80 goes to the Insolvency Service, leaving £10 for those who have to administer it. I have looked carefully at the way in which these forms are created. It would take me a great deal of time to work through these things and I am an accountant. However, specialist support and advice is needed. I think that it is ingenuous of the Minister to say that somehow this will survive. My charity estimates that it costs us about £350 per case to deliver a completed DRO. Where will that money come from? I do not think that we have had any answer to that.
Finally, the way in which the noble Lord went on seems to suggest that he has not read the BIS Select Committee report on debt management, which was published last week. The report states:
“Citizens Advice informed us that the legal aid budget for debt advice in England and Wales is due to fall by 75 per cent from 2013”.
The noble Lord admitted that there would be some changes after 2013. The report continues that the,
“figures, from the Justice Department, suggest that the number of people currently helped with debt problems will fall by 105,000”,
which is a significant number.
Later in the report, a BIS Minister is reported as recognising that,
“the cuts to legal aid could be a problem. Clearly for particularly some Citizens Advice Bureaux and other advice agencies, it may well have quite a big impact … I am afraid these are not easy times. There are cuts being made”.
The situation facing those in debt in this country—very often not of their own accord and they certainly are not the feckless poor—is really difficult. I do not think that these proposals will help. I should like to seek the opinion of the House.
Lord McNally
On the point that the noble Baroness has just made, I for one would certainly not be worried if the provision increased trade union membership. That seemed to me to answer the question of whether certain kinds of advice should be made because people take the precaution of joining a trade union rather than expecting the taxpayer to pay for their advice. As I explained in Committee, we have thought very carefully about which areas should be removed from scope. We also considered whether there were procedures that would allow people to resolve their problems without legal assistance, such as tribunals or alternative dispute resolution, and we have looked carefully at whether all the matters currently funded through the legal aid scheme are strictly legal work.
Employment tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation. The rules of the employment tribunal place a duty on the tribunal and its chairmen to deal with cases justly and fairly, including, so far as possible, ensuring that parties are on an equal footing. While we recognise that clients find advice useful in the preparation of their case, we have had to prioritise funding on cases that involve fundamental issues such as liberty or safety, and proceedings in which litigants are generally unlikely to be able to represent themselves effectively. We do not accept that the employment tribunal cannot be accessed or that justice cannot be obtained without access to legal aid for advice—a point made by my noble friend Lord Faulks.
I should also mention that the Government are looking at referring all employment cases to the Advisory, Conciliation and Arbitration Service, ACAS, before the employment tribunal to try to resolve problems early on. Indeed, ACAS itself offers advice through a free helpline and help is usually available from trade unions. The noble Baroness, Lady Turner, made that point. BIS is still considering with ACAS the route forward on this issue. My honourable friend Jonathan Djanogly is in discussions with BIS and ACAS to take this forward. ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. As noble Lords will be aware, we propose that legal aid should continue to be available for claims relating to a contravention of the Equality Act 2010 in employment cases that are currently within the scope of the legal aid scheme.
As with other things, we do not believe that the changes will have the impact that noble Lords opposite have suggested. The answer to many employment and other issues is economic recovery, which will provide the jobs. That is why those issues continue to be our priority. I hope that the noble Lord will withdraw his amendment.
Lord Bach
My Lords, once again I thank noble Lords who have spoken with a lot of knowledge in this debate. It is a bit rich for the Minister to say that all these people should join trade unions. It is not easy for many employees these days to join trade unions, particularly those who work for private companies. I am not saying that it is impossible, but it is not easy. To throw that line as an excuse for taking away from those who are not members of trade unions their ordinary legal rights seems extraordinarily superficial.
The Minister talked about not strictly legal work. I would have thought that a claim for unfair dismissal was almost certainly a legal issue that has to be decided by a tribunal. It may be that the noble Lord, Lord Faulks, acted for the employer only in cases that were legal. I cannot think why the employer would employ a barrister as good as the noble Lord, Lord Faulks, must undoubtedly have been even then—the noble Lord tells me that it was not much, and of course I believe him completely—and bothered to pay him at all if these were not legal matters. Unfair dismissal is a legal matter, as are other matters that come before the employment tribunal, so let us please not use the excuse in this case that these somehow are not legal matters. They clearly are, and they mean a huge amount to the lives of the individuals concerned.
Lord Bach
The noble Lord is absolutely right; that is the thinking behind it. The same Government who say that this is not legal advice will of course have lawyers there to represent their interests at industrial tribunals. That will continue whether this legislation goes through or not, so let us have no more of that.
We have already heard mention of the unanimous resolution that was passed, I think only yesterday, at the Liberal Democrat party conference in Gateshead to support legal aid. I shall read three parts of that quite long resolution. First:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.
Secondly:
“The continued provision of legal aid”—
yes, legal aid—
“for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
That seems to me like an employment tribunal. Lastly:
“The implementation of the party’s policy on Access to Justice debated at Conference in 2011”.
Of course, the leadership of a party does not always take complete note of what the conference passes, even if it passes it unanimously. Yet it might have been better if the Government, who obviously did not agree with what was said in that unanimous resolution, had had the courage to say so during the course of whatever debate took place. It is very depressing.
Lord McNally
I actually spoke in favour of that resolution because, as we have been debating for some months now, ever since legal aid was started, people in successive Governments have had to draw lines and make difficult and tough decisions. As this point has often been made, the noble Lord has gone to some extreme extent to suggest that we are cancelling legal aid in any particular sector. As we then find out, whether it be with immigration, where we are retaining £70 million in legal aid, or welfare, where we are spending £50 million, that suggestion just does not add up. It is hyperbole and the facts are a long way apart. I had no difficulty in accepting that resolution because it shows that my party continues to give high priority to this issue but a high priority based in the reality of the economic situation that we face.
Lord Bach
I am much obliged to the Minister. He supported, then:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”,
did he? He supported, to repeat:
“The continued provision of legal aid, for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
I admire him very much for being able to support those provisions and then argue today what I would argue is the precise opposite. If there is an example of a serious case in which legal aid is available now—for advice in many cases, and sometimes for representation—but will not be available if this Bill goes through in this form, that is it.
Lord Beecham
My Lords, like the noble Lord, Lord Best, I have the benefit of having received a briefing from Shelter, which in my case was sent with a covering letter from a solicitor of a very highly reputed firm. He says:
“I can readily attest to the importance of being able to advise clients upon their welfare benefits problems within the context of housing possession proceedings. It is very often the benefits problems that have resulted in the possession proceedings being issued in the first place”.
He goes on to say that it is far more cost-effective if the legal representative is able to help resolve the problems,
“whilst assisting in defending the possession proceedings themselves”.
Shelter is heavily involved in dealing with cases of housing benefit and support for mortgage interest where problems arise. Sometimes there are issues of delay but frequently errors are made in adjudicating on the amount of benefit or mortgage interest support that is to be made available. As the briefing says, unless that underlying problem is resolved, there is no hope of somebody whose home is threatened with repossession ever meeting the rental or mortgage payments and clearing any arrears. Significantly, Shelter deals with thousands of cases in which tenants have not received the housing benefit to which they are entitled and who would have been evicted but for its intervention. It is a complex world and it is not surprising that mistakes occur. I am not being unnecessarily critical of those who have to deal with a very large case load of benefits. Nevertheless, there is clearly a significant number of cases where the wrong decision is made and this can lead to very significant hardship.
Apparently, ministry officials have said that the mixed-case rule will allow for matters out of scope to be brought back into scope if it was otherwise impractical to run the case. However, Shelter points out that the rule excludes the kind of help that it is particularly capable of deploying, which is the most useful sort in resolving some of these cases—that is, dealing with the housing benefits department through letters and calls to sort out an incorrectly paid claim or one which has not been paid at all. Nor, apparently, does the mixed-case rule allow for backdating or appeals. That would lead to precisely one of the elements to which the noble Lord, Lord Best, referred, which is more adjourned hearings with a waste of tribunal and court time and, ultimately, probably more possession orders.
It is worth mentioning an interesting case cited by Shelter of a client to whom it had given advice as the latter had received a notice from his local authority seeking possession. It transpired that the Shelter adviser found that the possession claim was due to rent arrears caused by the same local authority failing to assess housing benefit properly. It dealt with a revision of the housing benefit decision and got six months of backdated housing benefit. The arrears were cleared and the notice was withdrawn. However, without Shelter’s assistance provided under the legal aid scheme, that simply would not have happened.
The briefing goes on to deal with a number of matters that were discussed in Committee. A series of points made by the noble Lord are rebutted in the briefing. In particular, the noble Lord indicated that while many people rely on benefits, they are primarily about financial entitlement and they have a lower importance than the liberty or safety of the person. He has used this phrase a number of times as we have debated the Bill. It is obviously true but it does not take us very far in dealing with the very difficult problems that people have to face short of losing their liberty or safety. Losing their home must be one of the more traumatic experiences that anyone has to suffer. Shelter points out that unless advisers can look at the underlying problems that cause the arrears, they will simply be unable to stop people losing their homes. It is not, therefore, simply a question of people going to someone to resolve a problem on the basis of advice. There is more to it than that.
Equally, the Minister, as an example, said that factual advice was available for Jobcentre Plus. As the noble Lord reminded us, housing benefit is likely to move towards Jobcentre Plus or, at any rate, the DWP. He referred also to the benefits inquiry line and the tribunal itself. However, Shelter points out:
“There is little or no overlap between the legal advice funded by legal aid and the sort of factual advice on entitlement offered by Jobcentre Plus”.
It is not equipped to deal with the complexities that Shelter has become used to dealing with. The tribunal, which is there to adjudicate between the parties, is not there to represent or assist one party against the other.
Finally, the Minister observed:
“Legal aid will be available to help tenants engage with landlords to try and resolve the actual or threatened possession issue wherever possible, including … delaying the possession matter until the benefit matter is resolved”.—[Official Report, 18/1/12; col. 697.]
However, that assumes that landlords are willing to wait. That is not Shelter’s experience. It is clear that,
“landlords will not agree to delay the possession matter unless they are assured that”
the tenant,
“will be actively assisted in resolving the benefits problem”.
That is an assumption that may be difficult to satisfy a private landlord about. There are sometimes, by necessity, delays and difficulties in resolving those issues, particularly without legal aid and advice being available.
The amendment is, as the noble Lord, Lord Best, said, confined to one issue. Other issues will be covered by legal aid—notably serious disrepair. Several other housing issues might have been brought forward by way of amendment, but it is clear that the Government will not accept them. I join the noble Lord in urging the Minister to look more sympathetically at this issue, given the serious consequences that can ensue and that could have an impact on other elements of public expenditure. If a family is evicted, one may find that the costs of rehousing fall on the public purse—perhaps even the costs of taking children into care and so on. That is less likely to happen when the landlord is the local authority, but it might well arise in the private sector. The economics are not therefore as straightforward as even the noble Lord would suggest. I hope that there will be a sympathetic response—if not tonight, then before and at Third Reading.
Lord McNally
My Lords, I listened with care to the views of the noble Lord, Lord Best, on matters concerning housing. However, our existing proposals make sensible provisions to keep people in their homes. Notably, they already preserve legal aid for advice and assistance for those facing immediate risk of losing their dwelling, whether the cause is housing-related or a consequence of welfare and debt issues.
Crucially, legal aid will be available when repossession action is contemplated, for example where a person is threatened with repossession action. Our plans do not mean that a case must reach court before legal aid is available. Therefore, for example, legal aid would be available on reaching agreement with a landlord to delay threatened possession action pending the resolution of a welfare benefits issue. In addition, in cases where possession proceedings have already started, legal aid could be used to argue for an adjournment if, for example, the individual is likely to be in a position to make the necessary payments if the benefits dispute is resolved in their favour.
Some argue that we need to fund welfare advice earlier to prevent problems escalating, but, crucially, what people often need is general advice on, for example, benefits, debt or housing, not specialist legal advice. That is one reason why we were pleased to announce that additional funding will be made available in the Budget for citizens advice bureaux on a sustainable footing. We recognise that many people rely on benefits, and my department is working with the DWP as part of the wider welfare reform programme to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and a system of subsequent tribunal appeals.
In addition, the Bill ensures that legal aid will continue to be available in judicial review about welfare benefit decisions and benefit matters which relate to the Equalities Act 2010. Noble Lords may not agree with the choices we are making, but I hope that they recognise that our proposals represent a genuine attempt to ensure that people can get access to legal advice on the most serious issues.
To cover one or two points raised, the noble Lord, Lord Howarth, asked about when a benefit appeal is lost and people are facing homelessness. Where the client loses their benefit appeal and subsequently faces action for rent or mortgage arrears that place the home at risk, legal aid will be available, including, for example, to negotiate with mortgage lenders, but it will not be available for welfare benefit matters. Where the benefit dispute is ongoing at the point where repossession action is taken, legal aid will be available in relation to the action. Legal aid could be used to argue for adjournment of possession, as I said.
On the point made by the noble Lords, Lord Beecham and Lord Best, and others, that changes will mean more serious cases resulting in homelessness, we recognise that early advice can be helpful in a range of contexts. However, as I said, people need general advice. Where a debt or welfare benefit problem places individuals at risk of immediate risk of loss of their home due to, for example, rent arrears, legal aid will be available.
The noble Lords, Lord Howarth and Lord Beecham, both referred to the research by Citizens Advice, which has certainly not been short of resources for its lobbying activities. I note what Citizens Advice states in Towards a Business Case for Legal Aid. Although we have read that research with interest, it did not contrast the outcomes of legal aid recipients with those who did not receive legal aid, so our view is that the evidence is not sufficiently robust to allow the conclusions drawn about the impact of advice. That said, we recognise that early advice can be helpful in a range of contexts. However, what people often need is general advice. We propose focusing our limited legal aid resources on those cases which need it most: disabled people in dispute with local authorities about care needs; people detained under mental health legislation; or parents who are facing the removal of their children by social services.
We do not believe that we have got it very far wrong on housing, and I hope that the noble Lord will withdraw his amendment.
Lord Howarth of Newport
Will the noble Lord be kind enough to write to us with a detailed refutation of the specific figures that Citizens Advice has put forward in all good faith and on the basis of careful research? That is important and a lot of people would be interested.
Lord McNally
I will consider that matter, but quite honestly, during the passage not just of this Bill but of every Bill, lobbying organisations produce reports—as the noble Lord says, in all good faith. To answer every one might overburden a relatively small department working on a small budget. I will consider that request.
Lord McNally
“Terrorism prevention and investigation measures etc39A (1) Civil legal services provided to an individual in relation to a TPIM notice relating to the individual.
(2) Civil legal services provided to an individual in relation to control order proceedings relating to the individual.
Exclusions(3) Sub-paragraphs (1) and (2) are subject to the exclusions in Parts 2 and 3 of this Schedule.
Definitions(4) In this paragraph—
“control order proceedings” means proceedings described in paragraph 3(1)(a) to (e) of Schedule 8 to the Terrorism Prevention and Investigation Measures Act 2011 (“the 2011 Act”);
“TPIM notice” means a notice under section 2(1) of the 2011 Act.”
Lord McNally
My Lords, with this amendment we intend to extend the scope of civil legal aid in Schedule 1 to include civil legal services provided in relation to terrorism prevention and investigation measures. The Terrorism Prevention and Investigation Measures Act 2011 replaced the old control order regime with TPIMs. TPIM notices impose measures on an individual for purposes connected with protecting members of the public from the risk of terrorism. The current legal aid scheme provides for civil legal services to be available in relation to control orders and TPIMs, and we intend to make similar provisions in the new scheme. This is consistent with our commitment to fund legal services where restrictions are placed on a person’s liberty. I beg to move.
Lord Beecham
Without prejudice to one’s views about the change from control orders to TPIMs, I can give an unqualified welcome to the Government’s amendments. I congratulate the Minister on ensuring that legal aid is available in these cases.
Lord McNally
“(a) the exclusions in Parts 2 and 3 of this Schedule, except to the extent that regulations under this paragraph provide otherwise, and(b) any other prescribed exclusions.”
Lord McNally
My Lords, this is a technical amendment to the drafting of paragraph 40 in Part 1 of Schedule 1. I have written to Peers on this matter, but I am willing to go into further detail if noble Lords wish. However, I assure them that this is a technical amendment. I beg to move.
Lord McNally
Lord McNally
Lord McNally
My Lords, Amendments 86 and 87 are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998. Again, I have written to noble Lords explaining the rationale behind the amendments and again give them the assurance that these are technical amendments. If noble Lords want a longer explanation, I am willing to provide it, but I hope that they will accept them as technical amendments. I beg to move.
Lord Beecham
My Lords, I hesitate to ask for a longer explanation, but perhaps a slightly longer explanation would help me. Others of your Lordships may have grasped the full implications of the amendment; I fear that I have not quite. It is not clear to me whether as a result of the amendments any claims brought under Section 7 of the Human Rights Act remain outside scope or are brought within scope. I confess that I do not recall having seen the relevant part of the noble Lord’s letter. Section 7 of the Human Rights Act seems to cover an extraordinary range of really quite serious issues. It would be unfortunate if they were to be excluded from scope, but perhaps that is not the intention of the amendment. If the Minister would be so kind as to elucidate, he need not feel that he has to do so at length this evening but could write me a short note.
Lord McNally
No, I fully appreciate the noble Lord’s position. We are aware that the current wording in paragraph 12 could be read as preventing funding for claims which involve a breach of convention rights, even where the client is not seeking damages under the Human Rights Act 1998 for that breach. The amendments are intended to make it clear that paragraph 12 of Part 2 excludes only a claim for damages for a breach of convention rights which is brought in reliance on Section 7 of the Human Rights Act 1998.
As I have said previously, the Government’s view is that damages claims are generally of a lower priority for funding than other claims; for example, claims concerning domestic violence or homelessness. Therefore, the Bill allows funding only for damages claims in certain areas. These include in relation to a contravention of the Equality Act 2010 or a previous discrimination enactment, or if they satisfy paragraphs 3, 19, 20, or 34 of Part 1 of Schedule 1. These paragraphs allow funding respectively for: claims concerning abuse of a child or vulnerable adult; abuse of position or power by a public authority; significant breach of convention rights by a public authority, and claims concerning allegations of a sexual offence.
The exclusion in paragraph 12 of Part 2 of Schedule 1 is lifted for the purposes of paragraphs 3, 19, 20 and 34, so that claims under these paragraphs can include a claim for damages made in reliance on Section 7 of the Human Rights Act 1998. The Government have also tabled an amendment to make it clear that where a claim for damages is made in the context of a judicial review under paragraph 17 of Part 1 of Schedule 1, the grant of legal aid would cover the work associated with the damages aspect of the claim. This includes a claim for damages for a breach of convention rights brought in reliance on Section 7 of the Human Rights Act 1998. Therefore, paragraph 12 of Part 2 has been lifted also for the purposes of judicial review proceedings.
I again assure noble Lords that these are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998, but I appreciate that the noble Lord might want to read at leisure what I have just said, as will I. If there are still areas of confusion, I will be glad to engage with the noble Lord on them.
Baroness Hamwee
I, too, shall read the Minister’s reply with interest. Is he satisfied that there would not be other types of claim, apart from judicial review, with which a damages claim might be almost inseparably linked as part of the same proceedings? I do not expect him to answer that immediately.
Lord McNally
I think that we can all reflect. I will respond to my noble friend after such reflection.
Lord McNally
Lord Beecham
My Lords, when we considered this issue in Committee, I pointed out that the scheme for criminal injuries compensation—it has changed in terms of the tariff that is now being applied, but that is an irrelevance for the purposes of tonight’s discussion—ran to 55 pages and the guidance to 113 pages and that it seemed there were issues on which advice, if not representation, might clearly be helpful and necessary for claimants. For example, I referred to the fact that the compensation authority could take into account a failure to report an incident in proper time to co-operate with an inquiry, about which there may well have been difficulties for an applicant, and that the existence of a criminal record may also affect the size of a compensation claim.
Moreover, as I recall, the cash in question is fairly limited—a figure of £4 million comes to mind—and, although it is the noble Lord who is replying tonight, the noble and learned Lord who replied then said that he wanted to reflect on the matter and seemed to be sympathetic. I do not know whether the buck has been passed because the noble and learned Lord is unable to translate sympathy into action or whether he is giving his noble friend an opportunity to win plaudits all round the House by following through on not a promise but at least an indication that there might be some movement.
I wait to hear what the Minister has to say about this and I hope that those good intentions will be borne out. If a decision has not yet been reached, perhaps the noble Lord will undertake to bring the matter back on Third Reading for a final determination. I beg to move.
Lord McNally
My Lords, Amendment 90 would have the effect of making legal aid available for services to support some compensation claims to the Criminal Injuries Compensation Authority. Proper support and help for victims of crime is a fundamental part of the Government’s vision of the justice system. However, as with the rest of our proposals on legal aid, the challenge before us is to reconcile the savings required as a consequence of our economic situation with the protection of those facing the most urgent and pressing problems. The logic across our reforms is that claims that are essentially financial in nature are of a lower priority than those concerning life, liberty or safety. On the basis that CICA claims are, by definition, primarily about money, the Bill seeks to remove them from scope by including a general exclusion in paragraph 16 of Part 2 of Schedule 1.
My noble and learned friend Lord Wallace indicated in Committee that we would consider the points made by the noble Lord, Lord Beecham. We have done so carefully but, giving his arguments due weight, I remain unpersuaded that Criminal Injuries Compensation Authority claims should be retained within the scope of legal aid. We recognise that victims of crime will have been involved in a traumatic event. However, the process for making a CICA application is relatively straightforward and there is guidance and support available from CICA to enable victims to make their applications. On the website there is an easy-to-use online form that takes no longer than half an hour to fill out. The section of the guidance about applying for compensation is comprehensive and straightforward. Noble Lords may find it helpful to know that CICA also operates a free telephone helpline to assist people in filling out the form, which is open five days a week. It also offers assistance to those who have difficulty reading or writing.
Lord McNally
(a) those services include the types of advocacy listed in this Part of this Schedule, except to the extent that Part 1 of this Schedule provides otherwise;(b) those services include other types of advocacy to the extent that Part 1 of this Schedule so provides.”
Lord McNally
My Lords, again, this is a technical amendment, of which I sent noble Lords details. It is a minor technical amendment, and the full explanation is contained in my letter. If any noble Lord who has read my letter or read the amendment wants further clarification, I am very happy to give it. However, I assure them that it is a technical amendment to the opening text of Part 3 of Schedule 1, which deals with advocacy. I beg to move.
Lord McNally
Lord Bach
I can be fairly brief here, as the Minister made an important concession in Committee by saying that there would be no means test on advice for individuals in custody. I was grateful for his concession, as was the Committee. However, I am still concerned—and I referred to this in passing in Committee—by the expression to be found in Clause 12(2):
“The Director must make a determination under this section having regard, in particular, to the interests of justice”.
I do not know what that phrase, which we debated a few minutes ago in a different context, means in the context of Clause 12. The really important part of the clause is the first sentence, which states:
“Initial advice and initial assistance are to be available under this Part to an individual who is arrested and held in custody at a police station or other premises”.
After that most of this clause is, to coin a phrase, otiose. It does not really matter; what matters is that there is the right to initial advice and initial assistance. What do the words “the interests of justice” add to the debate? In my view, they add absolutely nothing but they put me rather on edge. Do they mean that there may be some cases where the director thinks it is not in the interests of justice for there to be advice and assistance for someone in custody?
The Minister wrote us all a reassuring letter a few weeks ago. I am afraid that I do not have my copy in front of me as I address the House tonight, but I think it basically said, “Don’t worry about it. It doesn’t actually mean anything in this context”. I put down my amendment so that the Minister can explain why the phrase “the interests of justice” has to appear in this clause at all. Perhaps it is necessary for all the rest of the clause to be there, with regard to what the regulations may include and what initial advice and initial assistance mean. However, that phrase rather concerns me, lest some future director were to decide that “the interests of justice” meant that it was not necessary for advice and assistance to be given.
Without any doubt it is the view of the House—and, I suspect, that of many outside—that the change that the Police and Criminal Evidence Act effected, so that there was advice and assistance for those in custody, has been nothing but a good thing. It has meant that guilty men and women cannot get off their responsibilities because they can blame something on some alleged false admission. It also means that those who are innocent and have been arrested have the protection of some initial advice and assistance, so perhaps the Minister will explain to us why that phrase needs to stay in this clause at all. I beg to move.
Lord McNally
My Lords, I will try to help the noble Lord. I do not think there is anything sinister in this, and I hope that once I have finished speaking he will be happy to withdraw his amendment and leave my two amendments to go through. Perhaps I should start by saying that the scope of provision under Clause 12 is intended to reflect the existing provision in the Access to Justice Act 1999. The Government have no plans—I repeat, no plans—to change the existing provision of advice and assistance to those held in police custody. I indicated in Committee, after an extremely persuasive speech by my noble friend Lord Macdonald, that the Government intended to table an amendment to Clause 12 to remove the power to introduce means-testing for initial advice and assistance—
Lord McNally
I think that it lasted under 30 seconds, and what I was trying to draw to the attention of the House for future reference is that interventions do not have to be for 17, 20 or 25 minutes to convince me. It is to encourage the others that I make the point. As I say, the Government intended to table an amendment to Clause 12—
Lord Beecham
Would the Minister acknowledge that it does not necessarily follow that he has to speak for 17 or 25 minutes to convince us either, especially at this time of night?
Lord McNally
I take the point entirely. I will try again to say that Amendment 103 fulfils the commitment that I made. Government Amendment 104 also clarifies that initial assistance might include assistance in the form of advocacy. It ensures that the current position under the Access to Justice Act 1999 is carried forward in this respect in the Bill.
However, Amendment 102 would make police station advice and assistance automatically available to all. It would mean that the director would not be required to determine whether an individual qualified for police station advice, while having regard to the interests of justice. As such, the amendment is unnecessary. Determinations under Clause 12 are for the director to make. However, in practice, as is currently the case, solicitors apply what is known as a “sufficient benefit” test, which is deemed to be satisfied in circumstances in which a client has a right to legal advice at the police station and has requested such advice in accordance with Section 58 of the Police and Criminal Evidence Act. On subsequent attendances in the same investigation, the solicitor must ensure that the sufficient benefit test is satisfied before continuing with the matter.
Article 6 of the ECHR requires legal aid in criminal cases only where the interests of justice require it. The provisions of the Bill are based on the starting point that advice and assistance at the police station should be made available only where the interests of justice require it. Therefore, it is appropriate to allow the director to determine whether an individual qualifies for initial advice and assistance. However, our present view is that it will generally be in the interests of justice for those held in custody at the police station to receive advice and assistance in some form, whether over the telephone or in person. There are no plans to change the current system that operates in practice for police station advice. It is currently intended that initial advice and assistance should continue to be available to all those to whom it is available at the moment.
I should add that the Delegated Powers Committee recommended that regulations under Clause 12(9) should be subject to the affirmative procedure. We have accepted the committee’s recommendation and have tabled Amendment 109, which we will move when we reach Clause 40, to make the regulations under Clause 12(9) subject to the affirmative procedure. Given what I have said, I hope that the noble Lord will withdraw his amendment.
I make one further clarification on this. Subsection (2) requires the director to have regard to the interests of justice when making a determination under Clause 12. As I have said, solicitors currently apply the sufficient benefit test. However, it is interesting that the Access to Justice Act, which we are reimplementing, does not make express reference to the interests of justice, although it is implied. We are covering something that ties in to the ECHR commitment and reinforces what is in the original Act. I do not think there is anything sinister in what the noble Lord is probing. With those assurances, I hope he will withdraw his amendment.
Lord McNally
My Lords, I think it would worry me as well. I will reflect on what the noble Lord has said and write to him on the specific point that seems to be worrying him.
Lord McNally
Lord Bach
My Lords, we give our total support to the amendment moved by the noble Lord, Lord Thomas of Gresford. The principle behind it was set out clearly in Committee. That principle remains. It has not been answered satisfactorily. The Government are rightly looking for ways of saving legal aid funds. This is an area of criminal legal aid where considerable savings could be made. The Government should take advantage of this amendment and make sure something like it happens very soon.
Lord McNally
I cannot remember whether the noble Lord was a Minister in the department responsible in 2002, because it was the then Government who decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence.
Lord McNally
Yes, but there is some kind of responsibility for past acts. It is all right for the noble Lord to get to the Dispatch Box and say what a wonderful idea this is, which he has been doing throughout the Bill as regards £20 million here, £18 million there and £4 million there. He now of course wants to change something that the previous Government did.
Lord Bach
Again, I have déjà vu. I think I ate enough sackcloth and ashes, or whatever the expression is, on the previous occasion about what my role may or may not have been towards the end of the previous Government. We do not need to go through that again, unless the noble Lord insists. I should like to know why he does not accept the amendment.
Lord McNally
Excellent; that was good for the record. Amendment 105A would amend the Proceeds of Crime Act 2002 to allow courts to release restrained assets to fund legal expenses in criminal proceedings. POCA currently prevents restrained funds from being released to a defendant for legal expenses in relation to the offences to which the restraint order relates.
The Government recognise that there is a public perception that rich people are being given free legal aid because their assets are restrained. There are good policy reasons behind the current regime, but I can assure noble Lords that my department is currently working with the Home Office and the Attorney-General’s Office to explore options that might allow the Government to recover legal aid costs wherever possible.
My noble friend—and this I welcome—has stimulated activity and cross-departmental examination of this issue in a constructive way. I cannot accept the amendment tonight, and I am not likely to within the context of the Bill. However, he can claim credit for stimulating active working with my department, the Home Office and the Attorney-General’s Office, and we will see where this initiative takes us. In the mean time, I hope that my noble friend will withdraw his amendment.
Lord McNally
Lord McNally
My Lords, it takes a certain amount of, as the noble Lord, Lord Beecham, said, chutzpah—although I do not know whether that word is allowed in Hansard—to ask the House at any time to accept a grouping of 14 government amendments, but I can absolutely assure the House that I have written to noble Lords and that these are technical amendments. I recommend them to the House. I beg to move.
Lord McNally
Lord McNally
Yet again the Opposition, with a completely straight face, agree with my noble friend, although, as the noble Lord himself pointed out, we are making use of a provision in the Access to Justice Act 1999 which was brought in by the previous Government. He is now against it, as he was against the previous one. It seems that things are only good ideas when the Opposition are in government.
Lord Beecham
My noble friend will confirm that from time to time I, in particular, was extremely critical of some of the actions taken by the previous Government in the field of justice. I am not bound by a 1999 Act at all.
Lord McNally
Is another noble Lord going to have a go? Is there to be more sackcloth and ashes?
Lord Bach
Not at all. It is late at night, so I think we can forgive the Minister what he considers to be his bit of fun. However, Governments do make mistakes from time to time and people do change their minds. Even the noble Lord—never mind his party—has been known to change his mind on a few occasions.
Lord McNally
Very good. On the specific issue at hand, we hope to bring in the scheme with the rest of the Bill in 2013 and it will be subject to the affirmative order, so my noble friend will have other opportunities to discuss this matter. As he has now acknowledged, the Explanatory Notes to the Bill make it clear that we intend to use the power in subsection (3) to establish a supplementary legal aid scheme. The scheme will apply to damages cases where the successful party has been legally aided.
As we also said in our response to the consultation on legal aid reform, under the regulations that we will make, 25 per cent of certain damages successfully claimed by legally aided parties will be recovered by the Legal Aid Fund. The relevant damages are all those other than damages for future care and loss. I had better stop there and say that I have just had a message that the procedure will be negative, not affirmative.
Lord Thomas of Gresford
It is negative in the Bill. My amendment would make it affirmative.
Lord Thomas of Gresford
That was a quick decision, if I may respectfully say so.
Lord McNally
The noble Lord did say that we were allowed to change our mind.
The power at subsection (3) is not new. Section 10(2)(c) of the Access to Justice Act 1999 explicitly allows for regulations to provide that a legally aided person can make a payment exceeding the cost of the services received. When we consulted on the legal aid reforms, we specifically consulted on introducing such a supplementary legal aid scheme.
As well as creating an additional source of funding for civil legal aid, the supplementary legal aid scheme will address the interrelationship between legal aid and the proposed reforms to the costs of civil litigation put forward by Lord Justice Jackson, which are reflected in Part 2 of the Bill. We want to ensure that as far possible the recovery level of damages by the supplementary legal aid scheme complements the Jackson reforms so that conditional fee agreements are no less attractive than legal aid. The recovery level of 25 per cent of all damages, other than those for future care and loss, is therefore based on the success fee cap for a conditional fee agreement in a personal injury case.
Under the Jackson proposals, there will also be an increase of 10 per cent in non-pecuniary general damages, such as damages for pain and suffering and loss of amenity in tort cases. This will help claimants to pay their conditional fee agreement success fee or a 25 per cent portion of the relevant damages, if legally aided.
There has been a suggestion that it is unfair for successful claimants to be asked to help to underwrite the cost of the legal aid scheme in the way proposed. We do not see it as unfair. A claimant who wishes to proceed in a civil action with the aid of public funding is asking the taxpayer to take a risk on his or her behalf. Where that risk bears fruit in the form of what may be a very substantial sum of money, it is perfectly reasonable for a share of that to go back into the public pot so that the continued taking of such risks can more easily be sustained.
In sum, the power to make a supplementary legal aid scheme has now been sought by successive Governments. It has previously been approved by Parliament. Financial constraints are now such that we believe that it would be wrong not to exercise it in the way that we have clearly proposed and consulted on. Omitting to do so would also be out of step with the wider reforms to civil litigation that we are making. In light of my explanation, I hope that the noble Lord will agree to withdraw the amendment.
I now turn to Amendment 130, which would make any regulations made under Clause 22 subject to the affirmative resolution procedure, necessitating a debate and approval of a resolution by both Houses before the regulations could be made. We believe that this amendment is specifically related to Clause 22(3), although it goes much wider. As I have explained, we intend to use the power in Clause 22(3) to make regulations to establish a supplementary legal aid scheme. We believe that this amendment is aimed at ensuring that the details of the supplementary legal aid scheme are subject to the affirmative resolution procedure. An equivalent regulation-making power is contained at Section 10(2)(c) of the Access to Justice Act 1999. That power is subject to the negative resolution procedure. Our starting point is therefore, why should that change?
I am aware that there has been some suggestion that the Government have not been sufficiently clear about their intentions with regard to the use to which they intend to put the power in Clause 22(3). Nothing could be further from the truth. The proposal to introduce a supplementary legal aid scheme was clearly stated in the,
“Summary of the legal aid reform programme”,
contained in Reform of Legal Aid in England and Wales: The Government Response. That paper also contained a five-page annex explaining the proposal in the light of the response to the preceding consultation.
Paragraph 168 of the Explanatory Notes to the Bill also made our intended use of the Clause 22(3) power perfectly clear. Both Houses have now had an opportunity to debate the clause in the light of explanations that we have given. Clause 22(3) was specifically debated both in Committee in the other place and in Committee in your Lordships’ House. We believe that all that, combined with the negative resolution procedure in respect of the regulations, allows adequate public and parliamentary scrutiny in relation to the supplementary legal aid scheme.
The Delegated Powers Committee of the House considered the delegated powers of this Bill and did not comment on the application of the negative resolution procedure in relation to Clause 22(3). The Government’s memorandum to the committee explicitly highlighted our intended use of Clause 22(3). This amendment is therefore unnecessary.
I should also point out that the amendment goes much wider than just Clause 22(3) and would require the affirmative resolution procedure for any regulations under Clause 22. That would be undesirable and disproportionate. The powers under Clause 22 are those that will be used to set out the detailed rules regarding payment of contributions and case costs in respect of both criminal and civil legal aid. The negative resolution procedure is clearly the most appropriate for the type of highly detailed and technical provisions envisaged here, which will require variation from time to time. In those circumstances, I invite my noble friend to withdraw his amendment. I regret the confusion in my note reading halfway through that explanation.
Lord Thomas of Gresford
I think it was Champerty rather than maintenance where a third party takes a chunk of the damages that a litigant obtains in court. It is curious how far we have come to defeat these very ancient principles of English law. You can see the Magna Carta barons around the Chamber looking down on us; you can see them trembling as they listen to my noble friend putting forward this proposition. It is true that it was in the Access to Justice Act, but I do not believe that it was ever brought into force. It is also true that it was mentioned in the consultation document, which I read. In a document of some 150 pages, it covered one-third of a page; one paragraph related to it. It certainly was not highlighted either in the House of Commons or in this House that there should be such a deduction from the damages that are obtained by a legally aided person. I regret that.
A supplementary legal aid scheme could have been an alternative to support for conditional fee agreements—an argument that was made a long time ago—and it is true that a supplementary legal aid scheme has been adopted successfully in Hong Kong for people who do not qualify for legal aid. However, to have it in addition to the other provisions of the Bill is regrettable. For the moment—well, for all time—I beg leave to withdraw the amendment.
Lord McNally
Lord McNally
Lord McNally
“(6A) Regulations may provide that an individual is to be treated, for the purposes of subsection (1) or regulations under subsection (3) or (5), as having or not having financial resources of a prescribed description (but such regulations have effect subject to subsection (4)).
(6B) Regulations under subsection (6A) may, in particular, provide that the individual is to be treated as having prescribed financial resources of a person of a prescribed description.”
Lord McNally
My Lords, for the last time I make a solemn promise to the House that I covered the amendment in a letter that is lodged in the Library of the House, and that it is a technical amendment. I beg to move.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(12 years, 7 months ago)
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Viscount Slim
My Lords, one word has been left out of our discussions—“veteran”. I refer to veterans of all ages. I respectfully remind the Minister that there are still disabled veterans from World War 2 and from right the way through until today’s campaigns and those that will come. The military covenant lays down that a veteran—man or woman—must be cared for. The right honourable gentleman the Secretary of State for Defence has to make a public report nationally at given times. I see nowhere that legal aid or legal advice is automatically offered or given to a disabled veteran in need. Has the noble Lord’s department discussed with the Ministry of Defence how they will handle this and make legal aid and legal advice available to veterans, as required by the military covenant? Is the noble Lord hearing me?
Viscount Slim
Thank you. My question is simply: have there been discussions between the Ministry of Justice and the MoD and a methodology put forward to ensure that free legal aid and advice will be given to disabled veterans where necessary?
Lord Bach
I rise to give my support, and that of my party, to Amendment 11, moved so brilliantly by the noble Baroness, Lady Doocey, now some time ago. My Amendment 88 is consequential on that amendment and deals with the other side of the coin. For me, Amendment 11 is the most important amendment in the entire Bill, and I shall try to explain shortly why I believe that. I want to speak also to my own Amendment 12, which is not an alternative in any sense to Amendment 11, but refers to the appeals process as opposed to the earlier process. Perhaps I may also briefly say how much we support the other amendments that have been spoken to in this debate, namely Amendments 21, 45 and 46.
We pride ourselves that our legal system is among the best in the world. We encourage rich foreign litigants to try their legal disputes in English courts and say that our system is fair, is not corrupt and has a very high class of judges and advocates. All that is true, but what underpins and guarantees our system is that there is access to justice for everyone. The law is there to help everyone, including the poor, the disabled and the marginalised, and we have a system of helping the poor that is both practical and principled—it is not perfect, but it works. If that system is decimated, as I fear the Bill as it is presently constituted will do, then as many as 650,000 people who have access to justice now will no longer have it. That fact alone should make us pause for thought. It is as serious, stark and uncomfortable, I am afraid, as that.
We all know that citizens with legal problems in the complex fields of welfare benefits, debt, employment and housing—which often involve the organs of the state, as the noble Lord, Lord Carlile, emphasised—can at present obtain expert legal advice, and “advice” is the key word here, so that those problems can be resolved. Legal advice of this kind helps people keep away from the courts and the tribunals; it does not urge them towards the courts. One of the myths that I am afraid has been rather put about by the Government in this Bill is that doing away with legal aid for social welfare law will reduce the number of cases going to the courts. However, the exact opposite is true. It is the availability of early advice that keeps the numbers down for our tribunals and courts. The people who use these services are not those whom the Daily Mail might choose to call scroungers or the work-shy; these are ordinary people who lead good lives and come up against the complexity of the modern state. They may have served in the Armed Forces; they may have been in all sorts of professions; they may not have led particularly successful professional lives. However, they are our fellow citizens, and if a system of law is to have any justice at all, it must look after them as much as it looks after us. The noble Lord, Lord Cormack, made this point a few minutes ago.
This is not an expensive type of law. My noble and learned friend Lord Goldsmith made it clear that no cat gets fat on welfare legal aid. Also, it works. If early advice is not available, we all know what the other side of the coin will be; things will get worse; a welfare problem will become a debt problem, then a housing problem; people will become homeless and unemployed; families will break down; and some people will fall into criminality. This should be a no-brainer. The changes will cost so much more than they will save. We have all seen studies that tell us that. Alas, the Government have not seen fit to contradict the statistics. They will not give us any figures—and I doubt that they could—to counter those arguments.
The consequences will not just be that many clients will not get access to justice; there will be a knock-on effect of making it impossible for CABs and law centres to continue to function in the way that they do now. They depend on legal aid money to attract other funds to do other work. If the legal aid money dries up, so may other sources—and then we will be deprived of them in our country.
Amendment 101—rather aptly named, if I may say so—is a brave attempt, but only an attempt, to try to move us away from what we as a House must come to grips with today. We must quite legitimately put pressure on the Government and say to them: “Look, you should not be withdrawing legal aid in this field. Just think again about this”. This is the attitude taken by Citizens Advice, for which the House has a huge feeling of respect. In its briefing, it states clearly:
“We therefore strongly support Baroness Doocey’s amendment that legal aid for casework advice on review and appeals should be retained within scope”.
It could not be clearer.
I will say a brief word about Amendment 12 because I will not have another opportunity to speak to it. It follows Amendment 11 and concerns appeals. The matter should be one of common sense. Very few of these cases—involving very little taxpayers’ money—get to the upper-tier tribunal, where at the moment there is no representation, only advice and assistance. Although I think that there should be representation, I am not asking for it in Amendment 12 because I do not want to add to existing costs. However, of course representation in the Court of Appeal and the Supreme Court should be granted through legal aid because it is quite ridiculous to suggest that claimants should get to that stage, in matters that are about law only, and have to argue their case. It would be impossible and would not help the court in any way. It is common sense that we should ask the Government to say that those matters should be legally aided. That is what Amendment 12 is about. It is quite separate from Amendment 11, which is about advice at a much earlier stage.
I have a quotation from the noble Lord, Lord Phillips of Sudbury. On the matter that Clause 12 deals with, he said:
“Seriously, however, it is not reasonable to demand a citizen even to decide whether he or she has a point of law which can be taken before a tribunal. It is simply unrealistic. One could almost say it is cruel to pretend that we are creating rights for those citizens most in need when they cannot even get advice and representation on points of law at appeals”.—[Official Report, 20/12/11; col. 1725.]
Precisely; that is exactly the point, and I hope that the House will support Amendment 12.
I return briefly to Amendment 11. The proposal to take legal aid out of scope is wrong in three ways. First, it is wrong because it picks on those least able to defend themselves, and not on others whose opposition would be much more powerful. Secondly, it verges on the unconstitutional because it directly attacks access to justice for a large number of people. Finally, and this is one of the crucial points, the cost of not providing advice will be outweighed by the cost down the line. That point has been made by many noble Lords on all sides. We have heard that the House has a tradition of protecting the interests of the poor and the powerless in our society. If we decline to do so on this occasion, we will be diminishing our legal system and making our country a less civilised place. I very much hope that the House will support the noble Baroness, Lady Doocey.
Lord McNally
My Lords, if we have a debate about how we help the poor then it is bound to be emotive and emotional. We have had such a debate, and it has been emotive and emotional. If we have a debate about the rule of law, and we had such a debate on Monday, then it will certainly be high minded—although even on Monday I thought that the line was blurred between access to justice as a basic right. a right with a long history in our country, and access to justice funded by the taxpayer, where there have always been limitations and where lines have always had to be drawn. By all means we can have the broad-based debate, and I understand the motives and emotion behind a lot of what we have heard.
The noble Lord, Lord Bach, said that this is the most important amendment in the Bill and he is right. I make no complaint—it is nothing to do with me anyway—but those who grouped these amendments together did so very sensibly, because these amendments, separately and collectively, tear out the heart of the rationale of the Bill. Be under no dubiety about it—that is what this collection of amendments does.
Let me, in making my case, go back to the beginning, as it were. One of the few advantages of being around a long time is that you remember things. I was a junior official in the Labour Party in 1976 when the then Labour Government had to devalue the pound. A great deal of pain and anguish followed as various departments had to undertake cuts. I was actually in Downing Street—in the Cabinet Room, with the Prime Minister and the Chancellor of the Exchequer—when the pound went from $1.95 to $1.47 in a single afternoon, and we sent for the Governor of the Bank of England and then for the IMF. Painful cuts followed. I can see sitting round this Chamber people who had ministerial responsibility or senior Civil Service responsibility. They know that even the most high-minded and principled Government sometimes have to face difficult decisions and make difficult choices and cannot simply rely on the emotion of the moment.
When we came into office we inherited an economy that was out of balance and faced a historically large public deficit. In more prosaic language, that meant that we were all a lot poorer than we thought we were. As a result, across government, we have had to take some very tough decisions on public expenditure. As I have said before, my department had to make cuts of £2 billion out of a total budget of £10 billion. It is easy to say—I have heard it today—that £1 million, £10 million or even £16 million is not so much. Of course, the House has got used to dealing in the rather larger sums of the Welfare Reform Bill. But for a smallish department with a small budget, and with a very restricted number of areas where cuts can be made, that involves taking tough decisions.
The noble Lord, Lord Bach, has indicated that he is going to divide the House. I hope that those who are going to go into the Lobby—many of whom have had to take responsibility for budgets, for making cuts and drawing lines—will not do so simply in the cavalier view that this will send a message to the Government.
Lord McNally
And I have heard a lot. The House has to move on. We want to get through Schedule 1.
This is not a debate about who cares most; it is about whether this House is willing to take the tough decisions that our economic situation requires, or whether it is simply going to push the problem down the corridor for the other place to take those decisions. That is it, because the other place will have to take those decisions whether we do so or not.
I believe that these amendments dismantle the central architecture of the Bill and our reform programme. As a result, as I have said many times, it will come as no surprise to the House that we have had to make these difficult choices about legal aid, as we have done with every aspect of MoJ expenditure. I know that we are debating issues about which noble Lords care deeply; I do not think there is any monopoly on that. There will be noble Lords who will follow me into the Lobby tonight who have just the same—if I may use the words of the noble Lord, Lord Carlile—“determinations of principle and conscience” as those who will not.
I remind noble Lords that the reform programme is specifically aimed at protecting the most vulnerable. The noble Lord, Lord Bach, talked about the social welfare programme being “decimated”. We will still be spending an estimated £120 million a year on funding for private family law; £50 million on categories of social welfare law; an extra £10 million a year on mediation; £6 million on clinical negligence; and £2 million on education.
We are keeping legal aid for child parties in family proceedings. 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 are keeping legal aid for people with mental health problems or who lack capacity for cases that determine their vital interests, and for advocacy in front of mental health tribunals. Legal aid will be retained for judicial review of welfare benefit decisions, and for claims about welfare benefits relating to contraventions of the Equality Act 2010. We will agree to extend funding to victims of human trafficking and domestic child abduction—something I know that the noble and learned Baroness, Lady Butler-Sloss, is interested in.
Our reforms have been deliberately designed with these cases in mind. Crucially, as I said in the House on Monday, we will amend the Bill to enable the Lord Chancellor to bring areas of law back into the scope of legal aid. When the noble Lord, Lord Phillips, rose, everyone groaned that there was nothing more that could be said. But I congratulate him on being the first to mention what was a very significant concession by the Government, in that what was a ratchet in the Bill is now a regulator. If some of the doom and gloom is proved to be true, the scope is there to respond to those facts.
While we are clear that our reforms are the right ones, we believe that this is an important amendment. As has also been said, the Treasury has announced that additional funding in this spending period will be available for the not-for-profit sector. As noble Lords know, we believe that in many social welfare cases it is not legal advice that people want; it is simply advice. We will support the advice sector to do just that. While we appreciate that many people rely on welfare benefits, these decisions are made in a tribunal, which is a court especially designed to ensure that claimants do not require legal representation. They are also primarily about financial entitlement and do not raise such fundamental issues as cases concerning liberty or safety.
As I have mentioned, the Government are committed to ensuring that not-for-profit advice, as well as other forms of welfare benefit advice, remains to ensure that claimants are clear about what they are entitled to claim and how they can seek redress. However, as those colleagues who have sat in another place and have advised constituents in these areas can testify, legal advice is not required in all these cases. That said, legal aid will be retained for the judicial review of welfare benefit decisions and for claims about welfare benefits relating to a contravention of the Equality Act 2010.
Amendments 21 and 46 concern legal aid for children and vulnerable young people but, as I have already said, it is simply not true to suggest that there will be no funding for cases involving children and young people. These amendments seek to bring into scope certain civil legal services for any person aged 24 or under who has a disability, is a former care leaver or a victim of trafficking, or has other vulnerabilities as prescribed in regulation. I should at this point tell the House that the Government intend to table an amendment at Third Reading on legal aid for victims of trafficking and claims for compensation.
The Bill also has important safeguards for children and adults who lack capacity or require treatment for mental health issues. Paragraph 5 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: that is, medical treatment including psychological treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, the capacity to enter into sexual relations or the right to family life.
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 the medical treatment of patients or those who lack capacity. 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. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope. 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.
On Amendment 46, about children, we are already keeping legal aid for child parties in family proceedings. Therefore, part of this amendment is superfluous. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them. I have already mentioned that the Government recognise the importance of funding in a range of cases where children’s interests are key. That is evidenced in how we have proposed to allocate legal aid funding by protecting funding in those areas that specifically involve children.
I am very willing to meet my noble friends and others who have asked to meet me between now and Third Reading, but I cannot make promises or give guarantees. We have retained legal aid for child protection cases and civil cases concerning the abuse of a child, as well as for cases concerning special educational needs assistance. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings. 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 the child themselves. This is a normal part of the rules on civil litigation; the civil justice system as a whole does not generally require children to act on their own behalf.
We have also made it clear that one of the key criteria for the exceptional funding scheme is the ability to represent yourself. This will obviously be relevant where a child is bringing an action without a litigation friend. We must also ensure that we do not create a loophole in the system through which lawyers might encourage parents to attempt to bring civil litigation in their children’s name purely to secure funding that is otherwise outside the scope of this area of the law.
Amendment 45 seeks to make legal aid available for private family law cases where, in the course of mediation, the mediator has identified issues pointing to potential child abuse, a point addressed by the noble and learned Baroness, Lady Butler-Sloss. Legal aid will remain available on a means and merits free basis for public family law proceedings where a local authority seeks to take a child into care, at a cost of around £300 million a year. Legal aid would also be available in private family law proceedings where a child was at risk if those proceedings were an alternative to public law proceedings. An example of this would be legal aid for a special guardianship order for grandparents where the local authority had decided that this would be a preferable solution to taking a child into care. We have also expanded our original proposals on providing legal aid for private family cases where domestic violence is present to include evidence of child abuse.
The child-specific evidence here is the fact of a child protection plan as put in place by a local authority, although other types of evidence relevant in domestic violence cases would also apply. This is particularly relevant in respect of Amendment 45, which would use the evidence of a mediator to qualify someone for legal aid. It is of course important that a mediator reports any suspected child abuse to the local authority, and mediators are obliged to do so under their code of conduct. The local authority would then investigate, and if the mediator’s suspicions were confirmed, where relevant it would put a child protection plan in place. Alternatively, the authority may start immediate public law proceedings. Either way, legal aid would then be available either for private or public proceedings. Such a system ensures the well-being of the child, which must be the priority, but it would seem slightly strange to pre-empt the results of a local authority investigation by granting legal aid for a private family matter. Of course, if there was an emergency and the local authority for whatever reason was not taking action, legal aid would be available, with the benefit of a financial eligibility limit waiver, for someone to take out a protective injunction. Legal aid would also be available where a subsequent local authority investigation found that the issues were substantiated and a child protection plan put in place. The safeguards in the Bill are sufficient to secure the safety of children, and legal aid where it is needed.
Amendment 101—I see the humour in the number—seeks to include a power in the Bill to fund the not-for -profit sector to do work that is outside the proposed scope of the civil legal aid scheme. I can assure the House that we have been listening to the concerns raised about the sustainability of the not-for-profit sector, and we agree with many of them. As I listened to the noble Lord, Lord Newton, I recalled one of the advantages of a long life. One of the few successful things I did when I was in the House of Commons was something that I think cost the then Tory Minister, Gerard Vaughan, his job. He tried to cut CAB funding. I do not know whether the noble Lord, Lord Newton, was a member of the Government who sought to cut CAB funding at the time, but it just goes to show that what goes around, comes around. The Ministry of Justice already has the power to provide grants to not-for-profit organisations. For example, we are already funding the Money Advice Trust, a not-for-profit sector organisation that is responsible for running National Debtline.
Lord McNally
Oh look, they are all waiting. It is the responsibility of Cross-Benchers, who supposedly, I am readily assured, are deciding individually to consider, as I am sure they do, whether their experience of having to take tough decisions in tough times merits filleting this Bill, as this series of amendments would do. What I have said in this speech makes a mockery of the idea that we are decimating—
Lord McNally
No, I will not give way. Noble Lords have had a very good time. I have a right to point out that the attack that we have decimated social welfare law does not stand up. So much has been said in this debate, but it has been a matter of presenting doomsday scenarios and making predictions that may or may not come back. We have made many concessions, which makes this a better Bill, and I thank the House for that, but I hope that the House will not be lulled into taking a decision that will take the tougher responsibilities —the Budget responsibility and the public spending responsibility—down the Corridor. We should have the courage to make those decisions here and now.
Lord Laming
The House will realise that I rarely intervene in matters of this kind. In fact, I would go as far as to say that this is the first time that I have intervened. I hope that the noble Lord the Minister, for whom I have the highest regard, will withdraw any suggestion that if members of the Cross-Bench group go through the Lobby supporting these amendments, they are behaving irresponsibly.
Lord McNally
Cross-Benchers are individuals who make up their own minds. I am entirely right to say that decisions that we have taken in the context of this Bill relate to public expenditure and the need to bring this economy under control. I will also say this, because we have had enough examples in Europe in the past year: if you lose control of your economy you go into another round of public expenditure cuts. Part of the reason why we have been able to have this debate today is the success of the Government in stabilising the economy.
What we have never heard—and I hope that the Cross-Benchers will also put this into their minds when they make their decision—is that members of the party opposite were committed to making a similar round of public expenditure cuts. That is their right in opposition, but they did not have to spell out where or how or when. That is very comfortable in opposition, but I am proud that we in the Government have taken those decisions. I hope that those who are willing to accept that we have taken tough decisions will give us their support in the Lobby tonight.
Insurance: Payment Protection Insurance
Lord McNally Excerpts(12 years, 7 months ago)
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Lord Kennedy of Southwark
To ask Her Majesty’s Government what action they are taking to ensure consumers are getting good value for money from companies that are marketing services helping people make payment protection insurance mis-selling claims.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government require claims management companies to follow conduct rules focusing on protecting the consumer. The Ministry of Justice’s Claims Management Regulation Unit will take action against companies which fail to comply.
Lord Kennedy of Southwark
Does the noble Lord agree that the mis-selling of payment protection insurance was a scandal? Does he agree that making a claim is relatively straightforward, that you do not need to use a claims management company, and that losing 30 per cent of your compensation in fees and charges is not very good value for money? Would he agree to meet me and consumers’ representatives to discuss how consumers can keep more of their money?
Lord McNally
My Lords, I would be very happy to have such a meeting, and I congratulate the noble Lord on his campaign in this area. It is an area where consumers have not been best served and where they are not aware that there are many simpler ways of reclaiming this money than paying exorbitant fees to claims management companies. I hope that as a department we are on the case but I would gladly meet the noble Lord and colleagues to discuss it further.
Baroness Kramer
My Lords, is the Minister aware of an issue raised by the Building Societies Association—that these claims companies are pursuing claims supposedly on behalf of individuals but against lenders where the product in question was never sold? By the time a lender and the ombudsman have spent money proving no sale, future borrowers are out of pocket because of the cost created. Can something be done to stem this growing practice?
Lord McNally
My noble friend is right to draw attention to another example of abuse. Where such abuses are brought to our attention, we remove companies from the list of those which are able to offer these services. Again, I emphasise that regulations and protection for the consumer are in place. We possibly need greater awareness among consumers of their rights, and I shall certainly take that back.
Baroness Sherlock
My Lords, I declare an interest as a director of the Financial Ombudsman Service. My best guess is that the banks have provisioned about £9 billion for PPI. If about 80 per cent of cases going to the ombudsman come through claims management companies, then at least £2 billion is going to CMCs rather than going back to customers. Given that, will the Minister give the House an undertaking that his department will act to require CMCs to declare their fees up front and to tell customers that they are not required to use them as they could make a claim themselves for free?
Lord McNally
My Lords, those are exactly the regulations that pertain to these companies. However, because of the pressure of sales, there is no doubt that people are being misled in that way. We shall need to take further action because, as the noble Baroness rightly says, one does not need a pocket calculator to realise that these companies operate in an area where they can make a lot of money, which should quite properly go into consumers’ pockets.
Lord Campbell of Alloway
My Lords, why is the Minister of Justice concerned with this? If there is concern, why is not the Lord Chancellor asked to deal with this? What is the difference between the one and the other now that we do not have the old-style Lord Chancellor or Minister of Justice?
Lord McNally
I was halfway to agreeing with the noble Lord because one of the first things I asked was: why is the Ministry of Justice regulating claims management companies? I was told—I am looking at the noble Lord, Lord Borrie, although I do not think he was in post at the time—that the Office of Fair Trading was reluctant to take on this responsibility. The noble Lord nods his head. I still wonder whether there would not be a better home for this matter, but while we have it, noble Lords should know that our motto is “We are from the Ministry of Justice; we are here to help”. We certainly intend to ensure that, while we have a responsibility to regulate this industry, we will regulate it with all due diligence.
Lord Hughes of Woodside
My Lords, is the Minister aware that there appears to be a scam on the go? I have had about 12 phone calls, in which I have always been addressed by name, saying that they will help me to get money back under the payment protection scheme. Is the Minister saying that this is a vicious and misleading practice by companies or that we are in danger of a scam? If so, should not the public be warned one way or another?
Lord McNally
I would take the name of the company and report it to the Ministry of Justice. Cold-calling in person is banned; high-pressure telephone calling is banned; and unsolicited text messaging is banned. I am sure that noble Lords to whom this has happened for the first time have already realised that this is an industry where a lot of consumers’ money is at stake because of the success in making the banks take responsibility for this mis-selling. As the noble Baroness said, there is something like £8 billion or £9 billion that could be returned to consumers and, to put it no higher, there are some very dodgy practices at work with people trying to get their hands on that money. I can assure noble Lords that the Ministry of Justice will accept its responsibility in this area. We are talking to the Financial Ombudsman Service as well and we shall pursue this matter in the best interests of consumers.
Lord Flight
My Lords, would it not be appropriate for the head of the Financial Services Authority to warn consumers on this front? The whole point of having a financial regulator is to protect the public and, in the past, the head of the FSA regularly gave warnings to the public.
Lord McNally
My Lords, the responsibility for this is with the Financial Ombudsman Service. The financial ombudsman has identified this and put out warnings. Both the Financial Ombudsman Service and the MoJ on their websites give clear directions to consumers about how they can make claims in this area without using these companies and at no cost to themselves.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(12 years, 7 months ago)
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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.
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.
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.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(12 years, 7 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 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 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.
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.
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.
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.
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.
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.
Legal Aid: Social Welfare Law
Lord McNally Excerpts(12 years, 7 months ago)
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Lord Campbell-Savours
To ask Her Majesty’s Government what arrangements they are making to ensure that there are adequate numbers of police to deal with any consequences for social cohesion and criminality of the withdrawal of civil legal aid for social welfare law cases.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it is incumbent on government to consider all eventualities when conducting risk assessments. Recognising risks does not mean that they will materialise. We are confident that the police will continue to have the resources and the numbers to carry out their responsibilities.
Lord Campbell-Savours
My Lords: Toxteth, July 1981; Brixton, September 1985; Tottenham, August 2011—have they not all got one thing in common? They all followed severe cuts in family welfare support systems for the most impoverished in society. Have the Government really thought through the consequences of their actions in denying people justice and making people angry?
Lord McNally
I do not believe that the Government are denying people justice. As to the exact correlation to which the noble Lord refers, there will always be studies on these matters, and I am not going to predict whether we have seen the last of social disturbances—it would be very foolish to do so. His Question is about whether there are adequate numbers of police, and in my Answer I have explained that we will continue to have the resources and the number to carry out our responsibilities.
Baroness Hamwee
My Lords, the social welfare law is widely acknowledged to be too difficult for even the most eminent lawyers. Is there not an important argument for ensuring adequate funding for citizens advice bureaux, law centres and so on to deal with social welfare legal issues in the splendid way that we know they have been able to in the past?
Lord McNally
My noble friend brings attention to a matter that has been raised a number of times during the Legal Aid, Sentencing and Punishment of Offenders Bill. She will be well aware that my noble friend the Lord Chancellor has made it clear that he believes that CABs and law centres play an important role. We have already made interim arrangements for funding and, as those who attend the LASPO Committee will know, we are in discussions with the Treasury and other departments, including the Cabinet Office, to see if such funding can be put on a more permanent basis.
Lord Bach
My Lords, the Government’s impact assessment for the LASPO Bill accepts that legal aid cuts will lead to “reduced social cohesion” and “increased criminality”. Can the Minister remind the House how many Bills go forward when it is thought that their implementation will lead to “reduced social cohesion” and “increased criminality”, and why do the Government think that this measure will lead to “increased criminality”?
Lord McNally
My Lords, one problem with treating Parliament as a group of grown-ups is that such exercises will be open to abuse. The Government have never said that this would happen. What the civil servants did, quite properly, in their impact assessment was put forward a range of possibilities. Throughout the Bill—and I presume now that we are moving to Report he will continue on his merry way—the noble Lord has been looking at worst-case scenarios, saying that worst-case scenarios are inevitable and therefore, “Woe is me”. That is not what the impact assessment is about. It is about trying to take an intelligent and rational view, but, as I have said before, a view that these are not inevitable. This impact assessment is not an almanac; it is a look at a range of options that could happen. As such, it was a reasonable way of approaching the task ahead.
Lord McNally
He is certainly my friend. I will leave the nobility to the opinion of the House.
Baroness McIntosh of Hudnall
My Lords, going back to the question of the risk assessment, does the Minister agree that the purpose of a risk assessment is indeed to look at the worst-case scenario under a number of headings, and to propose what should be done in mitigation should such a scenario eventuate? Can he say what measures the Government have in place should those worst-case scenarios eventuate? There is no point in writing them down if there is not at least some risk that they will.
Lord McNally
That is why we have to take a holistic view of these matters. Much of what is being talked about here will be impacted by the reform and simplification of the welfare system that is being carried out, as well as a whole range of other measures, many of which we will be discussing in the next few hours, that will prevent the worst-case scenario from coming to pass.
Lord Avebury
My Lords, has my noble friend read The Spirit Level, which demonstrates that there is a close correlation between levels of serious criminality and inequalities in society? If so, will the Government put into practice the recommendations of the Equality Trust to secure greater equality in society and thereby diminish not only levels of criminality but many other social evils that follow from high levels of inequality?
Lord McNally
My Lords, the Government get a wide range of advice, and The Spirit Level does make a strong case for the linkage between inequalities, poverty and criminality. Nevertheless, as I have said quite often from the Dispatch Box, poverty and criminality are not inevitable—people do have a choice. The range of measures that the Government are taking is aimed at dealing with some of the unfairnesses in our society and giving people a proper and rational choice in how they lead their lives.
Lord Prescott
My Lords, does the Minister accept that the massive cuts in police resources and manpower are to be replaced by privatised security companies that will do the work of constables but with private personnel? Does he accept that this is more than an operational matter to be discussed with ACPO—that it requires discussion with this House and, indeed, with the community? Does he agree that the elections to be held in November for police and crime commissioners were specifically intended to serve as the voice of the community? The Government are rushing forward this decision before November and denying the people a say in this fundamental change in our police forces.
Lord McNally
No, my Lords: the police forces can look at outsourcing various parts of the service but they cannot outsource the fundamental responsibility of the police, which will remain a public service. I note that the noble Lord, Lord Blair, said in today’s Guardian that police need to modernise their budgets and reduce unit costs. I am sure that the police commissioner for Hull will have that high in his or her priorities when he or she is elected.
Crime: Reoffending
Lord McNally Excerpts(12 years, 7 months ago)
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Baroness Bonham-Carter of Yarnbury
To ask Her Majesty’s Government whether a reduction of reoffending is one of their key priorities.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government have made it clear since first taking office that we are committed to breaking the cycle of crime and reducing reoffending. We set out our proposals on how we will achieve that in the sentencing and rehabilitation Green Paper, Breaking the Cycle, and in subsequent government proposals and initiatives.
Baroness Bonham-Carter of Yarnbury
I thank my noble friend for that Answer and declare an interest as I am involved with the Rehabilitation for Addicted Prisoners Trust. Given that we know that treating drug and alcohol dependence is one of the most effective ways of reducing reoffending, what is my noble friend’s department doing to ensure that spending on drug recovery programmes will remain at the levels we have seen in recent years once responsibility for this funding moves to the Department of Health in the form of Public Health England, and that that will not result in a decreased emphasis on these vital programmes?
Lord McNally
My noble friend raises a problem that always emerges: if you go for localism, do you lose the central control on an issue? She is quite right that spending, or the commissioning of drug treatment services in the new public health system, will move to local authorities. However, the public health grant will be ring-fenced and the public health outcomes framework will include specific indicators on the completion of drug treatment and reoffending to make sure that my noble friend’s fear, that somehow there will be no spending on drugs programmes if left at the local level, will be averted. It is always a risk that localism will make its own decisions, but I hope that the priorities in funding and the checks on how it is spent will mean that her fears are unfounded.
Lord Mackenzie of Framwellgate
My Lords, I preface my question by inviting the Minister to join me in paying tribute to the life of PC David Rathband, who paid the ultimate penalty for preventing crime. Does he agree that the best way to prevent reoffending is through creating a fear of being caught, and that that is achieved by the presence of police officers on the street? Will this be achieved by reducing budgets to such an extent that the number of front-line police officers will be reduced?
Lord McNally
My Lords, I probably experienced the same feelings as every Member of this House, and indeed every member of the public, when I heard the news this morning about PC Rathband’s death. It is an immense tragedy that reminds us of the risks taken by everyone who dons a police uniform in our service—and some pay the ultimate price. I gladly share the noble Lord’s sentiment.
Of course the fear of being caught is one factor that deters crime. That is why we continue to give full support to our police services. The rehabilitation revolution attempts to address another problem: that of persistent reoffending. We are considering whether measures can be put in place to break the cycle. Evidence from various initiatives and pilot projects suggests that we can.
Baroness Howe of Idlicote
My Lords, on the theme of reducing reoffending, does the Minister agree that for women who have committed petty offences, the use of community sentences, combined with other forms of support, is more likely to be successful and is far less expensive than short prison sentences—not least because often children are involved who need to be taken into care and home-supported as well? If the Minister agrees, and with the Corston report already five years old, what steps are the Government taking to promote and adopt this approach urgently as a crucial part of their penal policy?
Lord McNally
My Lords, I fully support what the noble Baroness said about the treatment of women offenders. I have said before at the Dispatch Box that we have far too many women in our prisons. We will shortly launch a consultation on community sentencing. We are also, as the original Question suggested, moving a lot of this treatment to local authorities, with the funding and encouragement to take a holistic approach. As the noble Baroness rightly said, it is better that drug and alcohol dependency and other factors should be treated holistically.
Baroness Trumpington
Will the Minister very briefly tell me whether he agrees that the lack of reading and writing abilities among prisoners makes it difficult for them to get jobs when they leave prison? Will he therefore encourage more educational facilities in prison?
Lord McNally
I assure the noble Baroness that that is high on our list of priorities and that we intend to do so.
Lord Bach
My Lords, I think the House will be very pleased with the Minister’s comments in response to the Question today. I will ask him about Project Daedalus, which he will know about. It is an excellent scheme aimed at helping inmates at Feltham young offender institution not to reoffend after their release. It was set up under the previous Government and has the great support of the present Mayor of London, who said that it looked as though there had been a “substantial reduction in reoffending”. In these circumstances, why have the Government decided that this excellent scheme will not continue after May this year?
Lord McNally
It is true that the Mayor of London made claims for the success of the scheme. He was a little too broad-brush in his claims, but the scheme was successful. We are piloting a number of projects and trying to draw lessons from them that we will roll into future projects. Not all pilots can be kept going permanently. We try to learn from them and develop them into national policy.
Health: Mesothelioma
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Lord Alton of Liverpool
To ask Her Majesty’s Government what has been the cost to the Exchequer of mesothelioma cases heard in British courts in the past five years.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, based on the data available to us, it appears that the vast majority of mesothelioma claims against the state settle rather than proceed to the courts. While we do not collect centrally data relating to costs in individual categories of cases, there is no evidence to indicate that these cases differ markedly from other personal injury cases, either in cost to the Exchequer or in the costs of bringing them.
Lord Alton of Liverpool
I am grateful to the Minister. Will he demolish two myths? The first is that these cases are legally aided, which they are not, and, secondly, that they are part of a compensation culture, which they are not—given that there have been 30,000 deaths from mesothelioma. Would it be possible in any circumstances to fake such a disease? Instead of confiscating, as the Government intend to do, some 25 per cent of the modest compensation awarded to a terminally ill victim, why not consider other ways, such as fixing success fees—as has been done for industrial disease claims—without using asbestos victims as a rod to discipline solicitors or to aid and support the insurance industry?
Lord McNally
My Lords, the noble Lord uses strong words. Of course I do not believe that victims of this dreadful disease are in any way part of a compensation culture. He is quite right to say that legal aid for these kinds of cases was removed by the previous Administration in 2000. However, his strictures on what we are trying to do on this are too harsh. First of all, there is no compulsion on solicitors to charge any success fee, let alone 25 per cent, which is the maximum they can charge. The reforms that we are proposing upgrade the costs awarded by 10 per cent and protect a large amount of that compensation for future care. It is therefore not fair to term our reforms in the way that the noble Lord described, but I am pleased to make the clarifications that he asked for.
Lord Bach
My Lords, will the Minister confirm that the Government’s civil justice proposals mean that mesothelioma sufferers may have to pay 25 per cent of their general damages, plus their special damages for past loss, which, because of the length of these cases, can be very significant? Given that these sufferers may die in a short period of time, why will the Government not back the principle that hard-working people who have done nothing wrong should receive their full damages and not a penny less?
Lord McNally
The noble Lord keeps on picking these cases to support. The fact is that the previous Government removed legal aid from these cases, as was pointed out—not many cheers for that. As to the package that we have put together, as I said before there is no compulsion on solicitors to demand a 25 per cent success fee from these people. Solicitors still get their full fee; we are talking about the maximum success fee that they can get. We are putting in place a system that deals with a real abuse in the costs of these cases that crept in after the reforms that the noble Lord’s party introduced in 1999. We are simply returning to the system as originally brought in by the previous Government. We think that that worked well and will work well again.
Lord Avebury
My Lords, it is clear from their response to the Jackson committee report on civil litigation that the Government’s main objective is to save money. Does my noble friend acknowledge that in the case of mesothelioma sufferers, they do that by deterring people from making genuine claims? Does he also accept the estimate in the London Economics report on the fiscal impact of the Jackson proposals in the area of employers’ liability that the net loss to the Exchequer of the proposals is £70.2 million a year? If not, can he place a note in the Library of the figures that the Government would substitute for those in the Jackson committee report?
Lord McNally
My Lords, we are in no way deterring people from making claims for this terrible disease. We fully acknowledge that a large number of people have been diagnosed as sufferers. Even more tragically, the estimate is that many more will be diagnosed over the next 30 years. That is the terrible nature of this affliction. We have been trying to lower the bar to litigation. As I said, most cases, certainly against government bodies, are settled before they get to court. The Department for Work and Pensions has undertaken various initiatives to make it easier for claimants to trace their employer's insurers. Discussions are being held with stakeholders to determine what more can be done for sufferers. The High Court is introducing a fast-track procedure so that these cases can be dealt with more easily.
I understand why noble Lords are campaigning on this, but I do not think that the charge that we are trying to victimise the sufferers in some way really sticks.
The Lord Bishop of Liverpool
My Lords, is the Minister aware of the landmark judgment won in the Supreme Court recently by the president of the Liverpool Law Society about compensation for this disease? Is he further aware that Mr Jones commented afterwards that, had it lost the case, his firm would face bankruptcy? Will not the Minister reconsider the policy in the light of that experience?
Lord McNally
My Lords, the Supreme Court has removed some of the hurdles for sufferers of respiratory diseases in bringing claims, and that is all to the good. We are also progressing with the primary legislation brought forward under the Compensation Act 2006. As I said, Senior Master Whitaker, who oversees these cases in the High Court, has helped to introduce a fast-track procedure, which has been incorporated into a practice direction, ensuring that claims are dealt with as quickly as possible. These are terrible cases. It is right that noble Lords and others, such as the Daily Mirror, campaign for sufferers, but I reject the claim that we are in any way penalising or victimising them by what we propose.
Lord McFall of Alcluith
My Lords, as one who represented many hundreds of mesothelioma sufferers from local shipyards in Scotland, I give the noble Lord some examples of what happened there. Given that court cases were taking two years and the average life of sufferers was 18 months, the Lord President was approached and he decided to designate a judge to look at those cases in particular, thereby cutting down the waiting time in courts. Also, the Scottish Parliament passed the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, which took away the iniquitous choice of either sufferers claiming while they were living or their relatives waiting until they died before making a claim. By adopting these two measures, the Government could, at a stroke, save themselves money, save court time and produce a more humane way of treating the sufferers of this terrible disease.
Lord McNally
I fully appreciate the noble Lord’s concern arising from his experience as a Member in the other place. One thing that we have been trying to do—the previous Administration also initiated this—is to speed up these cases. As I mentioned before, perhaps taking the lead from the Scottish example, Senior Master Whitaker oversees these cases in the High Court and brings his expertise to the whole matter. However, perhaps I may give one example of misinformation. The Daily Mirror suggested that up-front insurance of £2,300 would have to be paid. The reforms that we are bringing in remove that burden on sufferers. Therefore, I think that a proper, balanced look at our reforms would make some of the accusations made today seem very unfair indeed.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord McNally
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 8, Schedule 1, Clauses 9 to 23, Schedule 2, Clauses 24 to 30, Schedule 3, Clauses 31 to 37, Schedule 4, Clause 38, Schedule 5, Clause 39, Schedule 6, Clauses 40 to 59, Schedules 7 and 8, Clauses 60 to 65, Schedule 9, Clauses 66 to 83, Schedule 10, Clause 84, Schedule 11, Clauses 85 to 99, Schedule 12, Clauses 100 to 104, Schedule 13, Clause 105, Schedule 14, Clauses 106 to 114, Schedule 15, Clause 115, Schedules 16 and 17, Clauses 116 and 117, Schedules 18 and 19, Clause 118, Schedule 20, Clause 119, Schedule 21, Clauses 120 to 124, Schedule 22, Clauses 125 to 127, Schedule 23, Clauses 128 to 133, Schedule 24, Clause 134, Schedule 25, Clause 135, Schedule 26, Clauses 136 to 143.
Business of the House
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Lord McNally
That the debate on the Motion in the name of Baroness Verma set down for Thursday 1 March shall be limited to five hours.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I beg to move the Motion standing in the name of my noble friend on the Order Paper.
Lord Barnett
My Lords, before we turn to the instruments, which I am sure are very important, perhaps I could ask the noble Lord about an Urgent Question that I raised some weeks ago on car park access for Members of the House. I was promised then that there would be a review on 7 February. I gather that the committee met on that day but we still have not seen exactly what happened. Can the Minister tell us why it is being kept secret?
Lord McNally
My Lords, I think that the term “secret” is rather emotive. As I understand it, the Chairman of Committees, who is a paragon of open government, held a meeting and the minutes will be published in the usual way.
Lord Grocott
My Lords, perhaps I can raise an issue with the Deputy Leader. I have put down a Written Question on this but this is the first opportunity I have had to put an Oral Question to him about the Business of the House.
For a fortnight, we shall be in the rather bizarre situation of having our bicameral Houses of Parliament effectively sitting as a unicameral system as there are separate recess dates for the Commons and the Lords. I find that inexplicable, partly on the grounds that we are at the stage of business when a lot of ping-pong takes place, which is inevitably delayed because of this, and partly because there are occasions when we cannot get Royal Assent to Bills because the two Houses are not sitting. There is also a cost involved and a lot of inconvenience to people who have not been able to arrange the normal cross-party and cross-House meetings during this period. Can the Deputy Leader give us an explanation for what, on the face of it, seems to me to be a rather bizarre decision to have made?
Lord McNally
The noble Lord is right that it is usually good to synchronise the dates. However, I am informed that they were announced last October and that there were no objections in either House. As the noble Lord put down a Written Question, I am sure that a considered Written Answer from a higher grade than mine will give him the explanation.
Lord Campbell-Savours
Was the director of facilities not consulted before the decision was taken? Surely he works to a budget and should know—and should have been asked—whether this was an efficient use of resources.
Lord McNally
I have an explanation here. The Lord Chairman has already made it clear that no extra costs are involved; the two Houses can sit independently. Clearly, the matter will be best dealt with by hearing the Answer to the Written Question of the noble Lord, Lord Grocott, rather than by lobbing a verbal question at me on a Thursday morning.