Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013

Debate between Lord Phillips of Sudbury and Lord Bach

Wednesday 27th March 2013 Lords Chamber

[Lord Phillips of Sudbury]

I am sorry to intervene again on my noble friend, but it is not fair to say that the tribunals introduced a lawyer-free zone. The point of this debate is that it is in respect of issues of law in relation to tribunals that advice is plainly needed from lawyers. That is ineluctable.

[Lord Bach]

My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012

Debate between Lord Phillips of Sudbury and Lord Bach

Monday 3rd December 2012 Lords Chamber

[Lord Bach]

There is a framework Act of Parliament, passed by Parliament, which I have never sought to go behind. These orders add flesh to those bones. This is a very important order. In any event, the Government would have to have some kind of order on these matters. On this occasion, the Government have, in effect, not kept with the intention that they certainly had in the House of Commons. By announcing what they did in the Commons, they managed not to lose a vote and to get the Bill through. As a consequence, it is a serious matter.

[Lord Phillips of Sudbury]

I am grateful to the noble Lord, Lord Bach—I almost said “my noble friend”, which he is. My noble friend Lord McNally has not commented on the noble Lord’s fundamental assertion on which, for me, the strength of the case rests; namely, that the former Lord Chancellor made a clear undertaking which is now not being kept. Would it not be helpful to the House for the noble Lord, Lord Bach, to ask my noble friend Lord McNally for his comment on that?

[Lord Bach]

That would be a fair question to the noble Lord, Lord McNally, who has had every opportunity to answer it and has chosen not to.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Bach

Monday 23rd April 2012 Lords Chamber

[Lord Bach]

My Lords, I can be very brief on behalf of the Official Opposition. The Motion that was passed last time in this House was in my name, and it follows that we support the Motion in the name of the noble Lord, Lord Wigley, today. He has summed up the case extremely well, and in our view this amendment should be supported. It is quite wrong that any part of the damages awarded in industrial diseases should be taken from the successful claimant. In principle, it is wrong. Therefore we support the amendment.

[Lord Phillips of Sudbury]

My Lords, I can be very brief. There is a belief on this side that Amendment 32 would drive a coach and horses through the Jackson amendments, and we are broadly in support of the need to amend and reform conditional fee agreements and the like. I also draw the House’s attention to the fact that the wording of this amendment is extraordinarily wide. It will not apply just to cases of damages for industrial disease, as the heading would indicate; it will relate to any proceedings that include a claim for damages for a disease, condition or illness. That could be a minority part of the claim, and the rest, piggybacking on it, would also be outside the broad changes to these conditional fee agreements that have, in my view and in the view of the Government, had extremely unpropitious consequences for litigation generally, some of which we heard in discussion on the previous amendment. I am afraid that I oppose this amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Bach

Tuesday 20th March 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, briefly, I support every word of the introduction by the noble Lord, Lord Pannick, of this amendment. On behalf of the Solicitors Pro Bono Group, which is sometimes called LawWorks, of which I am founder and president, I wholeheartedly applaud this amendment to Section 194, which can only be beneficial to pro bono.

[Lord Bach]

My Lords, we congratulate the noble Lord, Lord Pannick, from these Benches. I thank him very much for his well deserved tribute to my noble and learned friend Lord Goldsmith. I have to say that I felt a slight tremor of envy when I saw this amendment on the Marshalled List. I have tried throughout the Bill to put forward an amendment that might have the name of the noble Lord, Lord McNally, attached to it, but have failed miserably. The noble Lord, Lord Pannick, makes one attempt and it succeeds.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Bach

Monday 12th March 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I am supported in this amendment by the noble and learned Lord, Lord Woolf, and my noble friend Lord Faulks, who is a QC. Both noble Lords apologise for not being in the Chamber at this hour.

The general point of the amendment is to allow the Government at some future time, but I would hope earlier rather than later, to institute an independent review of clinical negligence claims, given that within the legal profession they are generally accepted as being uniquely difficult, complex, expensive and long-winded. Very briefly, the fulcrum of any decision in these cases revolves around medical experts’ reports, often not one, two or three, but a series of such reports depending on the seriousness of the injuries or defects. They are extremely complex when one comes to try to assess the course that an injury may take over the rest of a person’s life. There are huge problems of what lawyers call causation. There are particular problems in relation to the very young and the very old, who are disproportionately affected by cases of clinical negligence, and those who are mentally impaired, whether prior to the alleged negligence or as a result of it. There are particular complexities around the funding and expenses related to clinical negligence claims and around insurance, particularly what is called “after the event” insurance. I should declare that I was a non-executive director of a company providing such insurance for a number of years. There are problems in relation to the cost of the medical reports, which can be extraordinarily high, and of the insurance itself. One has after the event policies known as qualified one-way cost-shifting insurance. In fact, there is no aspect of these wretched claims that is straightforward and simple. I suppose that that is why one sees the sort of extraordinary cases of which I gave an example in Committee, given to me by the Welsh NHS legal department, where the award of damages was £4,500. The cost of the insurance, of the medical reports and of the lawyers came, believe it or not, to £98,000. That may not be typical, but this is an area of notorious expense, complexity and long-windedness.

The noble Lord, Lord Faulks, who is an expert practitioner in this field, dropped me a note earlier in the day in which he said:

“Clinical negligence has always been an area of particular complexity calling for both experience and expertise, in that it involves the evaluation of expert evidence … When legal aid was removed from personal injuries generally”—

that was, I think, 10 or more years ago; it might even have been in the Access to Justice Act 1999—

“it remained for clinical negligence—in recognition of its especial challenges”.

That is absolutely the point.

I shall not repeat the short account that I gave in Committee of the various attempts made in this country and in Wales to grapple effectively with the problems of clinical negligence claims. If anybody is interested, that was in relation to Amendment 99A, which was debated on 24 January at col. 1016 of Hansard. As long ago as 2003, there was a report by the Chief Medical Officer for England, called Making Amends, which related specifically to the slowness, complexity and cost of these claims. That does not seem to have been actioned. Similarly, Wales has had two pieces of legislation directed specifically at this area, the outcome of which is the Speedy Resolution Scheme. Wales is still in the process of evaluating that. One has to conclude that, because of the difficulties of getting to grips with the various aspects of this type of litigation, it is a sore that runs, unhealed, year to year. That is why we have proposed this power—we propose a power and not a duty. Out of deference to what the noble Lord, Lord McNally, said in Committee, we have made it an option for any future Administration.

I shall quickly deal with a couple of arguments against the amendment which were produced last time. One argument was that there is already a post-legislative scrutiny regime which is the subject of Cabinet Office guidance. There is also a post-implementation review plan. The trouble with this is that it is very general and entirely discretionary. With a Bill of this scale and breadth—there are 270 pages of primary legislation with probably as much again to come in secondary legislation—we are into a massive reform right across the face of legal aid and it is expecting too much to think that there will be a review of this particularly difficult area of litigation in order to arrive at the best conclusion for all concerned.

This issue affects not only the people who claim to have been clinically damaged but the National Health Service itself, which currently spends a great deal of time, effort, energy and funds in dealing with it. That is why we feel that the present informal Cabinet Office guidance does not go far enough. We want something that is nearer the Charities Act 2006 which provided for specific post-legislative review, which is now going on.

That is the bones of what I want to say. The Government have nothing to lose and everything to gain in agreeing to this amendment. It will lead to better justice in a field where the present injustice is felt keenly. People who are unluckily damaged in the course of medical treatment feel further damaged by the byzantine system we are currently left with. The amendment, which has been redrafted since the Committee stage, takes note of the points made by the noble Lord, Lord Beecham, from the Labour Benches. We hope, therefore, that Amendment 101A will introduce a provision that can do nothing but good for an area of litigation that desperately needs reform. I beg to move.

[Lord Bach]

My Lords, we are grateful that the noble Lord, Lord Phillips of Sudbury, and his co-signatories have taken note of what my noble friend said last time. We support the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Bach

Tuesday 24th January 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I have my name to this amendment. I confess that I have been impressed by the points made by the noble Baroness, Lady Mallalieu, and the noble and learned Lord, Lord Goldsmith.

It surely is beyond argument that with the cuts in scope to legal aid this Bill will bring about, the need for the citizens advice bureaux and the law centres will be infinitely greater than it already is. If we were to have this discussion in the other place, there would scarcely be an MP who would not automatically come to the aid of the citizens advice bureaux in particular, because they rely on them: they send people from their surgeries to their local citizens advice bureau to get the advice that the MP cannot give.

The numbers of cases dealt with by the CABs in a year are measured not in tens of thousands or hundreds of thousands but in millions. I urge my noble friend to have regard to this simple reality. To put it in scale, I think there are 500 full-time CABs, with something like a further 3,000 CABs sharing premises in libraries and council offices and so on; so 3,500 of them, and probably 60 or 70 law centres now, a declining number; but they are on the front line of citizen advice. They are indispensable in the truest sense of the word.

The fact that so much of what they do is done by voluntary assistance—and very many local solicitors are volunteer CAB workers—only multiplies the value of what they do financially. The £20 million that the Government gave a couple of months ago to tide over the CABs in a funding crunch must be the best value £20 million the Government have spent on anything in the last year. I repeat, the multiplier effect of the voluntary effort put in to CABs makes every pound of support given of much greater value.

I do not think it needs labouring, it is just that I feel so passionately about this. I declare an interest that I was for 20 years legal adviser to the National Association of Citizens Advice Bureaux, and my firm still does work for them. I have seen for myself from the inside and as an occasional volunteer the absolutely essential front-line work that they do. Frankly, to think of this country without the CABs is to contemplate a nightmare. My noble friend the Minister may say, “That is an exaggeration; there is no chance of that”. Well, put us at ease by allowing this amendment. Indeed, take it away and contemplate putting some obligation alongside the discretion.

I also know that Citizens Advice has to plan its finances on a solid future framework. It cannot hope each year that somehow the money will tip up. It needs certainty of supply, as do the independent law centres. We all understand the financial rigours under which the coalition Government are having to work but I cannot urge more strongly the fact that the task of the CABs and the law centres, in the straitened circumstances which will prevail after the cuts in legal aid brought in by this Bill, will be ever more urgent in an ever complicating society.

[Lord Bach]

My Lords, until now, I have been happy to support every amendment moved by the noble Lord, Lord Thomas of Gresford, but I have to say that on this one I find that I cannot give my support. I agree with the noble Lord, Lord Phillips of Sudbury, that we are incredibly lucky in this jurisdiction to have a not-for-profit sector, as well as those solicitors who still do this work, which provides at very little cost a terrific service for people who otherwise would not get access to justice. They do so largely due to the good works of a lot of Lord Chancellors in the past but not least the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place now but was here earlier, who, in 1995 I believe, made it possible for law centres and CABs to receive legal aid and thus give the kind of advice that changes lives. I agree absolutely with what the noble Lord, Lord Phillips, has said. If that should disappear, it would be one of the scandals of the first few years of this century.

If this amendment is intended somehow as an acceptable substitute for taking whole areas of legal aid, particularly social welfare law, out of scope, it has the potential be dangerous and short-sighted. I do not doubt for one second the good intentions and good faith of those who have put forward this amendment. But why do I say that? It seems to me to play entirely into the hands of a Government. It could be this Government or a future Government. I agree absolutely with my noble and learned friend Lord Goldsmith on this. Most likely the Lord Chancellor would be at liberty to pay whatever grant he wanted or no grant at all because the power is entirely discretionary as the amendment is drafted.

We know that there are a multitude of not-for-profit advice centres. Well over 500 CABs, 60 law centres, and hundreds of small, sometimes specialist, centres deal with the type of issues with which Part 1 is concerned. Some receive legal aid and some do not. I agree with the noble Lord, Lord Shipley, that it is not a perfect system by a long way. Given his background, what he has to say about localism is of huge interest, which I know from being the Minister some time ago. But at least under the present system, the Legal Services Commission grants contracts for legal aid for a length of time and it is not the Lord Chancellor’s job to grant those contracts. It is not perfect by a very long way but the contracts are intended to cover the country. At present, those contracts are one step removed from a politician’s stroke of the pen. In my view, that is an important consideration.

Who will the Lord Chancellor fund? Of course, I am talking about a Lord Chancellor in the future. I am not talking about now. Will it be those he likes? Will it be those that are in his part of the country? The Lord Chancellor may be a Member of Parliament, as he is now. Will it be those who do not often sue the state or do not offend him or the Government? He could turn the tap off at any moment and the organisations would have no way of planning their present and their future. There would be no certainty.

One of the criticisms made by the not-for-profit organisations I certainly remember hearing as a Minister was, “Look, there is not enough continuity. We do not know about the future. How can we plan and become efficient organisations without knowing how long we will get contracts for?”. There may be not be enough continuity in the present system, but necessarily there would be no continuity under the system being mooted in this amendment. Frankly, it is an open invitation to a new Lord Chancellor, under pressure from the Chancellor of the Exchequer—and every Lord Chancellor I have ever heard of or spoken to has been under that pressure from the day he gets into office—just not to make the grants, and that will be it. The not-for-profit sector will collapse. I ask this question: if grants are the solution, where is the money coming from? If the money is there, why take social welfare law out of scope in the first place? Why not provide the rather limited, perhaps too limited, resources for social welfare law that are available at present?

Of course we are open to discussion and further debate about this, but what we want to happen is that those areas of the law—in particular, social welfare law, which it is suggested should be taken out of scope by the Bill—should not be taken out of scope; they should remain in scope. The system does not work badly; in fact, I would go so far as to say that it is working well. There is no need for this. If I was the Minister tonight, I would bite off the arm of the noble Lord, Lord Thomas, and accept this amendment saying, “Yes, I agree”. That is because, as it is presently drafted, I am afraid that it plays much too much into the Government’s hands.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Bach

Wednesday 18th January 2012 Lords Chamber

[Lord Bach]

My Lords, the Committee should be grateful to the noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, for moving and speaking to their various amendments in this group. From this side of the Committee, we unreservedly support the series of amendments that make up this group. They are important amendments.

I have two things to say to start with. Apart from supporting the amendments, which is the first thing I have to say, the second is to say how much we support the Government in having kept judicial review in scope in general terms as part of legal aid. It plays an important role. However, they seem to intend to be too restrictive on immigration matters. The position of the Official Opposition on legal aid for immigration matters is clear; we believe that immigration law should remain within the scope of legal aid. It is an important, if qualified, check on poor decision-making by the UK Border Agency and other agencies, and it ensures that immigrants, many of whom are vulnerable, disorientated and scared, are able to assert their rights by accessing what may be a confusing new judicial system. Moreover, it keeps the machinery of justice working efficiently as well.

We regret that the Government have carved out immigration law from the scope of legal aid and judicial review, which are important areas, save, of course, where their advisers—and here I have no doubt that it was experienced and leading counsel—told them that it would be in breach of their convention obligations. Asylum cases remain pretty much in scope, although not entirely, as the noble Lord, Lord Thomas of Gresford, has just pointed out. Judicial review was an area that we thought likely to be uncontentious. The Government themselves have said, as we have said, that judicial review is the safeguard against mad or bad decision-taking. The test is not an easy test to meet, if you are an applicant, as the noble Lord, Lord Carlile, showed very clearly a few minutes ago when he referred to the Wednesbury test.

It is worth reminding the Committee what the three limbs of that test are: that the public authority, in making the decision, took into account factors that ought not to have been taken into account; that it failed to take into account factors that ought to have been taken into account; or that the decision was so unreasonable that no reasonable authority would ever impose it. In other words, as stated in another leading case, it must be,

“so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.

Just to state those words shows what a high hurdle has to be reached for someone to succeed in a judicial review against the state.

Of course, such worrying decisions are occasionally taken by government or emanations of government. It happens, and the fact that there is a remedy in our law is a huge advantage to our law and very much respected around the world, but surely the answer for those who have suffered in that way is not to punish them for the bad decision-making that has been made by the state. There have of course been problems with judicial reviews being used as a weapon by some people—letter before action, in particular. However, as has been stated, the tests are very rigorous and do not permit vexatious or tendentious proceedings. They effectively act to safeguard the public purse, and we have heard no arguments at all to suggest that there has somehow been a failure of the system in the areas that are being taken out of scope of judicial review. It is really incumbent on the Government to show that there has been a failure of the system before taking these cases out of scope.

The Minister in another place, the honourable Mr Djanogly, stated in response to a query by my honourable friend Mr Michael Connarty as to how many cases there were that showed the failure of the system:

“We do have figures, but I do not happen to have them with me. I will write to the hon. Gentleman with figures”.—[Official Report, Commons, 31/10/11; col. 650.]

In his response in writing, however, he said:

“We do not keep these specific figures”.

I raise that not to make some petty point but only to invite the Minister—who, if I may say so, I am delighted to see in his place as it seems a long time ago, perhaps about a year, since we last faced each other across the Dispatch Box; crossed swords is perhaps putting it too highly—to please go back and double-check whether there are any of those figures.

[Lord Phillips of Sudbury]

I cannot resist asking the noble Lord whether he would also class as a failure of the system the fact that more and more legal aid practitioners in immigration and asylum have withdrawn from the scheme altogether, because they tend to be concentrated in city centres and the current rates of remuneration for this work are such that they are simply not sustainable? As I say, I could not resist adding that to his catalogue.

[Lord Bach]

I cannot blame the noble Lord for asking an-ex Legal Aid Minister that question. In immigration law over the last 20 years or so—this has been hinted at already in contributions, and no one really can gainsay it—it was spotted that there were those who practised immigration law who did not do their profession any credit. Perhaps I might put it as cautiously as that; it is probably a good deal worse, frankly. The previous Government, with general support, therefore took steps, as the noble Lord, Lord Thomas of Gresford, reminded us, to make sure that the industry, as it were, became regulated. Thank goodness for that, but the rewards to be gained from doing legal aid work properly in this field are not very great. I have to concede that.

Will the Minister please double-check in the Ministry of Justice, which I know is not his department, whether any figures can be employed for the Government’s case for taking these parts of judicial review out of scope? As the noble Lord, Lord Thomas of Gresford, pointed out with some force, there was no consultation on this point, nor was there any comment in the Government's response to consultation—presumably because it was never referred to in the first place. We believe that judicial review is an important safeguard. Obviously the Government believe that too. That is why we support these amendments, because we want to know why the Government intend to take this part of judicial review out of scope.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Bach

Monday 16th January 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I am in entire agreement with what has been said by my noble friends Lady Doocey and Lord Newton and the noble Baroness, Lady Lister of Burtersett. I should be very grateful if, in responding on these amendments, my noble friend Lord McNally would tell the Committee whether in respect of later amendments that seek to ensure proper funding for CABs and advice agencies there is going to be a positive answer, because that will have a major effect on my whole approach to this part of the Bill.

It does not need repeating that cutting legal advice in relation to social welfare claimants is, on the face of it, utterly bonkers. First, the people seeking that advice are the most vulnerable in our society. I wonder how many people who are now in this Chamber have ever sought assistance under the Social Security Contributions and Benefits Act 1992 or the Welfare Reform Act and so on. There is a whole forest or jungle of social security law, and I ask anyone in this Committee who thinks that, because it is for the common man it is simple, to have a look at any of the legislation. It is a nightmare. I have given a bit of legal advice in law centres in my time. It was a nightmare when I did it as a young solicitor but it is a treble nightmare now. Someone said recently that the CAB advice manual for social security law ran to a couple of hundred pages, but it now goes well into the thousands.

[Lord Bach]

My Lords, it is 7,500 pages, so I am advised.

[Lord Phillips of Sudbury]

I am most grateful to the noble Lord, Lord Bach. There are 7,500 pages, and the devil of it is that a lot of these statutes interrelate. In many cases, finding a way through this stuff is, believe me, a job for a lawyer and not a job for the harassed citizen. Do not let us be carried away by the telephone helpline. It will help in all sorts of cases but in very many it will not. That is because, first, the complexity will outrun the knowledge of the person on the phone. Of course, the answer is that they should then refer the person to someone else, but I have to tell your Lordships that these advice lines—and I have experience of them too—are very powerful instruments. The second reason is that it is a commonplace that people find it very difficult to explain the facts and so on in relation to these social security measures face to face, let alone down a telephone line.

Therefore, I hope that we will be honest with ourselves and that the excellent civil servants, the excellent Bill team and the excellent Front Bench spokesmen will recognise that this is not territory with which we are familiar. I suggest that we need to be a little humble before we say categorically that the status quo after the Bill comes into force will be sufficient to enable hard-pressed, often bemused and sometimes desperate people to access the benefits that we have legislated for them.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Bach

Tuesday 10th January 2012 Lords Chamber

[Lord Phillips of Sudbury]

Is one to read Amendment 18 as meaning that on any appeal from a refusal there will be an oral hearing, or is it possible that the initial appeal could be dealt with on paper? That might be a great deal quicker and cheaper in the first instance. One could then reserve an oral hearing for the really difficult cases.

[Lord Bach]

My Lords, I hope that I am correct in saying that our intention is that there should be a process whereby written applications can be made, but always with the provision that there can be an oral hearing in certain circumstances. The noble Lord makes a good point. I beg to move.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Bach

Tuesday 20th December 2011 Lords Chamber

[Lord Bach]

We spent quite a lot of money on it, and planned to spend more. I think that that is as far as we can take it tonight, but if the noble Lord can supply the figures, if there are any, that would be helpful to the Committee.

I want to thank all noble Lords who have spoken in this fairly short debate. I particularly want to praise the noble Lord, Lord Phillips of Sudbury, for his role in the Citizenship Foundation. As my noble friend Lord Howarth pointed out, it is wrong to congratulate him this week if citizenship is no longer to play the role that it has done in the curriculum. I suspect that the noble Lord, Lord Phillips, will have more to say on that, perhaps even now.

[Lord Phillips of Sudbury]

My Lords, I would simply like to make clear that the noble Lord, Lord Howarth, was right up to a point: the issue is not decided. There is everything to play for. I say to anybody in this Chamber who thinks that it would be a bad step, please get your pen out and write to Mr Gove.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Bach

Tuesday 20th December 2011 Lords Chamber

[Lord Bach]

That is what I mean—in case there is any misunderstanding about it. I can see how that could be misinterpreted.

As the noble Lord, Lord Thomas of Gresford, said, with his Amendment 2, to which he spoke along with his later amendments, Amendments 29 and 78, we get down to the nitty-gritty. I want to talk briefly about Amendment 19, which is in my name and that of my noble friend Lord Beecham. It is the first outing of what I think will be a very important issue in this Committee, which is what should happen to scope of legal aid in particular areas of social welfare law.

The noble Lord, Lord Thomas of Gresford, and the others who spoke in favour of his amendment have been too gentle with the Government on this issue. It is absolute nonsense that there could be any question that anyone who gets to the second tier, the Court of Appeal or even, heaven forbid, the Supreme Court, on a point of law—for example, on a welfare benefits issue—should not have legal can not afford their own lawyer to conduct their case, and I very much hope that the Government put it in the Bill in order to take it out. It is inconceivable that John Smith, as it were, could turn up alone at the Supreme Court with his case and be faced with the Supreme Court justices and the very experienced and brilliant counsel representing the other side. I cannot think of any other Government, of any persuasion, ever having thought of doing anything like that. I am quite sure that the Government of whom the noble Lord, Lord Newton, and the noble and learned Lord, Lord Mayhew, were distinguished members would not even have dreamt of suggesting that someone should appear on their own at a case like that without the benefit of legal aid. I very much hope that we do not hear too much more about it.

Some vital case law—on welfare benefits, for example—has been decided at the higher courts as a consequence of the claimants concerned having been properly legally represented. Big social security test cases which reached the higher courts by way of the appeals process include Zalewska, on the lawfulness of the workers’ registration scheme; Hinchy, on the interpretation of the overpayment recovery test; Pedro, on the meaning of “family member in EU law”; and Mallinson, the seminal case on the interpretation of the law on disability living allowance. The idea that cases of that kind, or even those that are less important, should be conducted by a claimant in person is absurd. So I hope that the Government will accept Amendment 2 without cavil. Whether the wording is right is not a matter for tonight, but it is the principle that matters.

We argue in our Amendment 19, which is a probing amendment designed to find out what the Government feel about it, that the law should go wider and that there should be no question of taking out of scope reviews of welfare benefits. The amendment would ensure that individuals seeking to defend their fundamental economic and social rights had the advice that they needed to be able to present their cases and understand the processes that they would be subject to. Our amendment would allow the applicants to get advice before going to a tribunal. The First-tier Tribunals were set up, as we have heard, to consolidate the various tribunals that adjudicate on administrative matters of the state. Admirable work has been done and is being done to try to make First-tier Tribunals as user-friendly as possible—I praise the noble Lord, Lord Newton of Braintree, for having played a big role in this, as well as Lord Justice Carnwath, whom we should congratulate on being elevated to the Supreme Court today.

[Lord Phillips of Sudbury]

The noble Lord’s mention of Lord Justice Carnwath put me in mind of a fact which none of us has so far mentioned but which I invite him to endorse, which is that the amount of court and tribunal time wasted by having unrepresented appellants has a cost attached to it.

[Lord Bach]

I agree with the noble Lord and I shall say a little word about that before I sit down.

Admirable work has been done in the First-tier Tribunal to make it as friendly as one can. However, it is impossible—and the Minister has heard this from around the Committee today—to square the circle in that those tribunals still fundamentally are ruling on matters defined and decided through laws, rules and guidance, which is sometimes pretty heavy, that often carry criminal sanctions if violated. It is quite clear when one looks at official statistics on the First-tier Tribunals that the Government are wrong when they say that tribunals can be accessed without advice. You are twice as likely to win an appeal if you have had some basic advice rather than no advice at all. The Minister's team has kindly provided information that allows us to quantify the increase in likelihood of winning an appeal if the appellant has been advised. This is to the First-tier Tribunal. For some types of cases, such as employment support allowance, you are more than twice as likely to win. Given that it allows people to return to work, seeing thousands of cases that would have been won with advice is surely wrong headed.