Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Clarke of Nottingham Excerpts

Tuesday 17th April 2012 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I beg to move, That this House disagrees with Lords amendment 2.

[Mr Deputy Speaker (Mr Nigel Evans)]

With this it will be convenient to discuss the following:

Lords amendments 189 to 191.

Lords amendment 192, Government motion to disagree, and Government amendments (a) to (c) in lieu.

Lords amendment 193.

Lords amendments 194 and 196, and Government motions to disagree.

Lords amendments 217 to 220 and 243.

Lords amendment 168 and Government motion to disagree.

Lords amendment 169 and 240, Government motions to disagree, Government amendments (a) and (b) in lieu, and amendment (i) to Government amendment (a).

Lords amendments 170 to 172, and Government motions to disagree.

Lords amendments 177 to 181, and 206 to 216.

[Mr Clarke]

Lords amendment 2 impinges on the financial privileges of the House. I ask the House to disagree to the amendment and I will ask the Reasons Committee to ascribe financial privilege as the reason for doing so—and so too with amendments 168, 170 and 171. In addressing the very wide selection that you have just announced, Mr Deputy Speaker, I shall begin by looking at the principles that the Government are adopting on the various amendments and the reform as a whole, and at what principles we are inviting the House to adopt.

The scope of legal aid goes to the heart of our attempts to reform and improve the justice system, because targeting funding where it really counts is fundamental, first to the savings the Government are having to try to make in this area as in any other. There is no doubt that the present level of legal aid provision is on any measure unaffordably expensive. I shall not dwell on this issue but it is bound to recur during our debates. Even after our reforms have been carried, if Parliament eventually approves the Bill and it becomes an Act as we intend, we will still have by far the most costly legal aid system in the world. It is almost twice as expensive as that in any other country per head of population. In no other democratic jurisdiction would it be possible to get up and argue seriously that the taxpayer should spend money on the scale that we do on legal representation and advice.

The changes to the scope of legal aid that we are proposing are also part of a broader shift. We are trying to reduce the amount of unnecessarily adversarial litigation. The very broad provision of legal aid has encouraged people to bring their problems before the courts, but sometimes their basic problem is not a legal one and the best way of resolving the dispute or tackling the problem would be not to take a litigious approach. Such an approach imposes costs and does not always resolve problems. Before I move on from the tricky matter of cost let me say that with legal aid the cost is not just to the public purse and our Department. One has to think of the costs imposed on all the other people who are parties to litigation, such as businesses—small and medium-sized enterprises—and the national health service, as this selection includes clinical negligence claims. Everything we agree to do in relation to clinical negligence comes out of the budget that is otherwise available for public services. The growth of the clinical negligence industry is having an impact on national health services at the present time. There is also a cost to individuals, because for an ordinary citizen of ordinary means to be in the appalling situation of being engaged in litigation when the other party has legal aid is not an experience that most people would enjoy. We should bear all that in mind as the background to what we are doing.

[Glenda Jackson (Hampstead and Kilburn) (Lab)]

Is the Secretary of State actually arguing that the best way of getting a level playing field is to deny everyone any kind of legal aid? That seems to be the thrust of his argument.

[Mr Clarke]

I am not arguing that. I am saying there should be hesitation before the very powerful and quite legitimate lobbies that have descended on the House since we proposed the changes just sweep everybody into believing that ever-wider provision of legal aid is necessary. There are downsides. In addition to the cost to the public purse, which we cannot ignore because no other democratically elected Government spends this amount of public money on funding litigation and legal advice, if we have a litigious society it imposes costs on all other branches of our life. That is an essential background that we cannot forget as we consider these amendments.

We have applied other tests, but the whole point of having legal aid—and the reason why we are keeping a legal aid system that will still be the most generous in the world even when we have cut it back a bit—is to deal with the needs of justice and those who are vulnerable in society. The other principle that applies is the need to focus taxpayer funding on the most serious and important cases that genuinely require specialist legal advice. Our principled stance is that legal aid should routinely be available in cases where people’s life and liberty are at stake, where they are at risk of serious physical harm or immediate loss of their home, or where their children may be taken into care. It should not routinely be available where other funding is available, where litigants can present their own case, or where the taxpayer is at risk of paying for litigation that any person paying from their own pocket would not finance and participate in. That is the basis on which we look at all the amendments that have come from the other place.

I am grateful to the other place for the time and the detailed debate and scrutiny it has dedicated to the Bill, genuinely improving it in places. I went and listened to parts of the debates myself and I have great faith in the power of the other place to revise a Bill without altering it fundamentally. Wherever possible I have sought to incorporate my noble Friends’ amendments or intentions, and as a result of the scrutiny of both Houses the overall package has moved very significantly from our initial position when we introduced the Bill, and it is all the better for it. Before people press me to agree to more than we are proposing to agree to in this important group of amendments perhaps I should remind the House of the changes we have made since we started this whole process quite a long time ago. They include removing the power to means-test suspects receiving advice and assistance at the police station, adopting the Association of Chief Police Officers’ definition of domestic violence and extending the time limit and range of evidence accepted when it comes to accessing the domestic violence gateway. We agreed to that a long time ago. People got very excited about the ACPO amendment so we gave them that, and then a whole list of fresh demands were immediately made by the Law Society and other groups that have lobbied us. I shall address those issues in a few moments.

Other changes include retaining legal aid for cases involving human trafficking and domestic child abduction—another concession; ensuring that funding covers special educational needs for 16 to 24-year-olds; and putting it beyond doubt that we are retaining legal aid for parents to bring clinical negligence cases in the most serious and complex neurological injury negligence cases for small children, which we always intended to do. Beyond the legislation, we announced at the Budget a further £20 million to go to the not-for-profit sector in each of the next two financial years.

How do the further Lords amendments in the group measure up against the principles I have outlined? I regret that the broad thrust of some of them is still to be rather free with taxpayers’ money. In our opinion, they certainly go way beyond ensuring that the Bill is focusing funding on high priorities.

[Tony Lloyd (Manchester Central) (Lab)]

The Secretary of State made great play of the ACPO definition of domestic violence, but if the test is about protecting the vulnerable I must say that the definition is very legalistic. The experience of lots of women—the 230 women who leave home every week because of violence—is not always packaged in the way allowed for in the proposed legislation. Does he accept that many women will fall outside the definition and will not be able to get legal aid?

[Mr Clarke]

Let me begin with the domestic violence gateway. The ACPO definition is what the Labour Front-Bench team was originally concentrating on. We have to have a definition because we are talking about qualifying for the public funding of legal aid in certain cases. We have moved a lot on domestic violence and we are moving again in response to the Lords’ debate, as I shall explain in a moment. First, though, let me make it clear, because I do not think it has always been clear to people in either House, exactly what we are talking about. It was never in doubt that there would be legal aid for the protection of victims of domestic violence. Domestic violence is an issue that this Government, like any Government, including the previous one, take extremely seriously. As now, it was always intended that legal aid would remain available for victims of domestic violence who were trying, for example, to obtain protective injunctions to defend themselves in such cases. In domestic violence cases there is no means test so even the super-rich can obtain legal aid if they are seeking an injunction for reasons of domestic violence, although I hope that not too many of them will.



We are doing quite a lot of other things. The Home Office is for the first time providing more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence support services, and £900,000 each year to support national domestic violence helplines and a stalking helpline. Our Department is now contributing towards the funding of independent advisers attached to specialist domestic violence courts. We are giving a total of £9 million for that purpose up to the end of 2012-13. We are allocating £3 million a year to 65 rape crisis centres and opening new ones. Domestic violence protection orders are being piloted in three police force areas.  We have announced a one-year pilot which will take place from this summer to test out a domestic violence disclosure scheme, known as Clare’s law.

I mention those things so that we can have a debate which, with great respect to their lordships, is not on the same basis as the part of the Lords debate that I listened to—that people did not realise the seriousness of domestic violence as a social issue in our society. We all do. The Bill never challenged that. It is all part of a pattern of services being provided by this Government, through which we think we are strengthening the support for victims of domestic violence.

What we are discussing here is the special provision that we are also making to provide legal aid to people who have been recent victims of domestic violence, so that when they are dealing with their abuser in court on other issues—ownership of the former matrimonial home, maintenance, access to property—they have access to legal aid. In such cases, particularly the private family law cases and the children’s cases, we are trying to shift away from so much adversarial litigation. Having lawyers on both sides arguing about custody and access to children does not always lighten the tensions or resolve the dispute, as most Members of Parliament are only too well aware from their constituency surgeries, so we are moving towards mediation, which is cheaper. That is why some of the lobbyists do not like it, with the result that in cases where it does not work, they are arguing for legal aid to continue to be available.

We have conceded the case that after a recent episode of domestic violence, the victim on her own may not want to deal, even through mediation, with her abuser. How do we define domestic violence for that purpose? That is an important but secondary purpose, as the case will not be about domestic violence. In such a case, what definition of domestic violence should be used for the person to qualify for legal aid? That is what the argument about the definition in both Houses has been about all the way through.

[Kate Green (Stretford and Urmston) (Lab)]

The Lord Chancellor mentioned that it will still be possible to obtain legal aid to get an injunction when there is domestic violence. Will this not be a cost-accumulating measure, as women will first go to get an injunction in order to have evidence to be legally aided for the case of domestic violence?

[Mr Clarke]

Such women will not get an injunction if it turns out that there is no reasonable ground for giving it and they are not in imminent fear of domestic violence. We will give them legal aid because we think it is important that these issues are tested in cases where legal advice is available. If women do not get the injunction, they will not get the legal aid later.

[Mr Llwyd]

What is being missed here is that the evidential gateway is being closed down. I am not saying that the right hon. and learned Gentleman wants to deprive every person of assistance in a domestic violence situation. I would never allege that; I know him to be a better person than that. What I am saying is that 46% of those who would be eligible will no longer be eligible under these so-called reforms, according to recent reports from Rights of Women and Welsh Women’s Aid. People who would genuinely qualify will no longer qualify, and that is the issue that we are now discussing.

[Mr Clarke]

I refute the idea that people will be given an injunction at some hearing in order to enable them to get legal aid, but people might apply. If the evidentiary tests are made too lax, there will be a tendency to fabricate claims or to bring in claims that are old and irrelevant, because it is worth thousands of pounds to the lawyer advising that person if legal aid is granted on that basis.

Far from trying to narrow the scope, let me remind the right hon. Gentleman and others where we have got to and where we are going this evening, by the time we have finished. We have a clear, wide definition trying to catch the variety of circumstances that will evidence recent domestic violence so that the argument that the victim should not have to face her abuser without having legal representation can be countered. But we do not want to shift the vast majority of private family law cases away from mediation into publicly funded adversarial litigation.

[Helen Jones (Warrington North) (Lab)]

Does the Lord Chancellor not accept that the legalistic approach that he is adopting ignores the reality of domestic violence, which is that many women do not report it, sometimes for years on end, and do not go to court to get injunctions, or if they do, are often persuaded to withdraw the proceedings before they come to a conclusion? It is only when the whole situation explodes and they leave the home that the reality of that domestic violence is noted.

[Mr Clarke]

But women will get legal aid for seeking the injunction. The hon. Lady is falling into what has happened throughout these debates. The definition that we are talking about as the gateway to legal aid for all other private family law cases goes far beyond injunctions.

If I may move on, I will remind hon. Members how far we have gone since we started the Bill—far beyond where the Opposition were first urging us to go—and we will go further in response to the debate in the House of Lords. The first issue is reflected in Lords amendment 192—whether or not we should use the definition used by the Association of Chief Police Officers, which we resisted in this House. The Government’s intent is to have a broad and inclusive definition and one that commands widespread agreement. To cut all the pressure, we are happy to support the spirit of the amendment and we are therefore adopting the ACPO definition. I half suspect that if we had offered that when the Bill was in the House of Commons—it was my mistake that we did not—we would have closed the discussion down in the House because that is what everybody was then pressing for.

In their amendment their lordships in their wisdom add words which are not in the ACPO definition. That rather goes against the arguments that have been put forward for one, single, cross-Government definition of domestic violence. We have therefore tabled further Government amendments in lieu of Lords amendment 192 which would define domestic violence in the same way as the ACPO definition as

“any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.”

We think this should satisfy the concerns that have been expressed in both Houses on this point, so I shall ask the House to agree to this Government amendment in lieu of Lords amendment 192.

Amendments 194 and 196 concern the accepted forms of evidence of domestic violence. I have already said that when litigation is about domestic violence, the victims will always have legal aid. The issue is one of balance. Lords amendment 194, led by the learned Baroness Scotland and supported by a number of her colleagues in the other place, has prompted us to look again at other kinds of objective evidence to ensure that the test is as widely drawn as possible.

I have discussed that with colleagues in the House, and I am grateful to the colleagues with whom I had meetings, particularly to my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), who is in her place, for advice on the subject because she knows far more about family law than I do, as I have never practised in this field, and in particular for making the point that we need to take care that the range of evidence does not force victims to take formal court action where it may not be suitable in individual circumstances. We do not want to force people to go to court who would not otherwise do so.

Therefore, in response to this House and the debate in the other House, we intend to accept as evidence—we will reflect this in regulations—the following matters: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.

We are prepared to accept those matters and ask the House to accept them this evening. They are in addition to those forms of evidence that the Government already accepted in our earlier debates. Those are: that a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party for the protection of the applicant is either in place or has been made in the previous 12 months; that a criminal conviction for a domestic violence offence by the other party against the applicant is still in place; that there are ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; that there is evidence from a multi-agency risk assessment conference of the applicant having been referred as being at risk of domestic violence from the other party and action has been recommended; and that there is a finding of fact by the courts of domestic violence by the other party against the applicant.

For the best part of 12 months we have reviewed this rather narrow point in one piece of litigation, and that is a fairly formidable list of things we are prepared to accept as evidence of domestic violence. If their lordships consult the people who have been sending them all the e-mails for the past few weeks, I am sure that they will be able to add to the list, as will Members of this House, but if we are not careful we will forget what the objective is: we want more of these cases not to be conducted by lawyers, financed by the taxpayer, who are engaged in adversarial litigation about where the children will live, what maintenance should be paid by one party or the other or what share of the matrimonial home should be owned by one party or the other. The Government have responded pretty generously because of our concern about domestic violence and, as I have already indicated, in key areas we have moved beyond where we were. This evening we have to insist that that is where it will end.

I should also point out that, on the time limits, where I do not think any history of domestic violence can be remembered and invoked, it is a question of ensuring that victims of recent or ongoing violence are protected, drawing a line so that Government regulations do not result in a permanent opening of access to legal aid. We will double the time limit we originally proposed from 12 months to two years, except in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one.

Having moved on all those issues, the Government do not agree that the evidential requirements for those cases should be set out on the face of the Bill; the evidence I have described will instead be set out in regulations. The benefit is that that will allow greater flexibility to amend the scheme if required in the light of experience. If we set it all out in primary legislation, we would find that we had set things in stone for our successors.

[Mr Llwyd]

Can the Secretary of State assist us by telling us how the list he read out, which I must say is welcome, differs from Lords amendment 194, because they seem almost identical? Is he saying that, rather than putting them on the face of the Bill, they will be set out in cast-iron regulations?

[Mr Clarke]

I think that I am right in saying that what their lordships tried to do was put one form of definition used by the UK Border Agency on the face of the Bill. That is far too wide, and it is for a different purpose—[Interruption.] Well, that is an indication of the sorts of things it will take as evidence; it is not a qualification for anything. We need something that is the basis for making a clear decision on whether or not people are eligible for money, and we have opted for ACPO-plus. The other difference, as I have said, is that we do not think that we should spell it out and draft each of these forms—I of course bind myself by the words I read out earlier, which are what we are committed to. The advantage of regulating along the lines that the Government are committed to is that, if in the light of experience there is some mistake, it is much easier to make a change. It is always a mistake to fix everything in too much detail in primary legislation, because a future Minister or Government might have to try to find the parliamentary time to make the necessary changes to improve it.

[Glenda Jackson]

I, too, welcome the list that the Lord Chancellor read out with regard to domestic violence. Looking at my constituency, I am concerned about where those women will go to obtain that advice, because we are seeing reductions in the services currently provided by citizens advice bureaux and law centres, for example, as a result of the changes to legal aid. There is a gap between the one who suffers the harm and the obtaining of the advice.

[Mr Clarke]

People can approach their solicitors for advice on family law, as they do now. In an increasing proportion of cases, through the services offered to them, they will be put in touch with the mediation service, with or without the assistance of their lawyers—that is a matter for them—and the case will be mediated rather than both sides being represented in an adversarial manner. That works successfully where it has been introduced and we think it should be extended much further.

Lords amendment 168 seeks to bring the majority of welfare benefits matters into the scope of legal aid funding. Lords amendment 169, along with Lords amendment 240 and amendment (i), tabled by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) to our amendments in lieu, would have similar effects, so I will discuss them together shortly.

The first point to make about Lords amendment 168 is a financial one. Even bringing advice and assistance into scope for reviews and appeals concerning all welfare benefits, which is the intention behind the amendments, could cost as much as £25 million, and we cannot afford provision in an area of relatively low priority. As I said, we will ask the House to disagree with Lords amendment 168, and we will ask the Reasons Committee to ascribe financial privilege as the reason for doing so. In particular, this is because, in line with the principles I have set out, welfare benefits matters should not generally require specialist legal advice.

Before discussing the other issues, let us consider legal aid for advice on welfare benefits. Every Member sitting in the Chamber is used to giving advice on social security benefits, because we do it all the time, and there are other voluntary bodies that give advice, but we do not get legal aid. I suspect that in an ordinary case, where there is no issue of law and it is a matter of fact, because of the huge complexity of social security regulations, the advice given by MPs and some members of their staff can be superior to that which is available from a large number of general family solicitors, but those solicitors get legal aid. No one else gets legal aid. Legal aid should be for those cases where legal advice and expertise are required, and it should be financed by the taxpayer on legitimate grounds.

[Stephen Timms (East Ham) (Lab)]

In cases, of which there are many, where people seek advice from citizens advice bureaux to help them prepare a review or an initial appeal, is it not in everybody’s interests, including the Government’s, that they should be able to get some advice before going forward with their review request?

[Mr Clarke]

I value citizens advice bureaux as highly as the right hon. Gentleman, and ever since the Bill was introduced we have said that we will come forward with proposals to improve the support given by the Treasury. As I have said, at the time of the Budget there was an announcement, which was not much noticed at the time, of £20 million a year to be made available for voluntary advice.

For most citizens advice bureaux, legal aid is not the biggest source of their funding, and some do not get any legal aid funding at all. Their advice is very valuable general advice to people with a combination of debt, housing and every other problem; it is not specifically legal advice in most cases. Our Department is not the biggest Department that contributes to such bureaux; the Department for Business, Innovation and Skills has the biggest budget, for debt advice and other forms, and I think that it has ring-fenced its budget and still provides funding.

Most citizens advice bureaux have lost a lot of money because local government funding has been cut quite severely, and the Government are producing money from the Treasury to compensate in part for that, so we—not my Department; the Cabinet Office—are now distributing that £20 million to ensure that such valuable general advice is still available. What we cannot do is start inventing legal aid scope, or fail to narrow legal aid scope, as a roundabout way of maintaining funding for citizens advice bureaux, many of which do not receive legal aid funding now—giving them funding that is spent on general advice as much as on legal advice. Of course, the more we extend the scope to help the citizens advice bureaux, which are busy lobbying the House, the more we also help professional lawyers, who also qualify for all the legal aid scope that we are happily enlarging.

[Yvonne Fovargue]

The citizens advice bureaux that are so busy lobbying are actually lobbying on behalf of their clients. Some 77% of the funding being removed from the scope of legal aid is going not from solicitors’ firms, but from citizens advice bureaux and law centres—and from specialist legal advice. The Legal Services Commission will not provide the money, which I remind the Secretary of State is £160 for a legal aid case at the early stage of a welfare and benefits case, but it prevents the case from becoming much more expensive later.

[Mr Clarke]

The hon. Lady’s experience of citizens advice bureaux greatly exceeds my own, but I am pretty certain that fewer than half of such bureaux receive any legal aid funding at all. I have not sought to deny the financial problems of citizens advice bureaux, but we cannot solve them by being so generous in scope with legal aid when the issues involved in most welfare cases are not legal problems. What people require in these difficult times is general advice on a general combination of problems from which they suffer.

[Tom Brake (Carshalton and Wallington) (LD)]

On points of law, I welcome the concession in relation to upper tribunals and welfare benefits, but can the Justice Secretary confirm that the Government intend to ensure that all cases in which points of law are in contention, whether in the upper or lower tribunals, are funded through legal aid? If that is his intention, what will he put in place, either in the Bill or in some other way, to ensure that it happens?

[Mr Clarke]

My right hon. Friend anticipates the concession that I was going to explain; it is in the documents before us, and he has spotted it. Legal aid issues are usually, as everybody knows, about the factual basis of the claim or the proper application of this country’s extremely convoluted social security regulations, which I hope the current Government’s reforms, when we eventually get to a universal benefit, will greatly simplify, but most such issues are not legal. We have a tribunal system that was deliberately designed so that ordinary citizens might access it and argue their case, and when we invented all those tribunals, we went out of our way to say, “They are not courts and you don’t require lawyers, as these are places where people will argue,” but, as my right hon. Friend says, sometimes legal issues are raised in them.

The Government, in response to these debates, have tabled an amendment, which is a concession. It is Government amendment (a) in lieu of Lords amendments 169 and 240, and it would make legal aid and assistance available for welfare benefits appeals on a point of law in the upper tribunal, the Court of Appeal and the Supreme Court. It would also include funding for applications for permission made to the upper tribunal, and it would also make legal representation available for welfare benefits appeals to the Court of Appeal and to the Supreme Court.

Most surprisingly, that Government amendment in lieu was put forward in response to the argument. We did not wish to argue that in such cases, when the whole thing is a point of law, the applicant himself or herself should be expected to represent themselves without legal assistance, so we have tried to define those cases in which legal advice should certainly be available.

My right hon. Friend’s amendment, on the face of it, goes back to the whole of business of whether we should apply legal aid for legal advice in every welfare claim, but the question that concerns him most is, “What about the ones that involve legal issues?”, and I can conceive of cases in the lower tribunals in which what is raised really is a point of law. He wants me to find some equivalent to the upper tribunal, asking, “Is there some situation in which somebody, preferably the tribunal judge, certifies that there is a point of law involved where legal aid should be available?” We do not have such a situation at the moment, and we will have to try to devise one, as there is no system for it: just as we have accepted the argument about legal issues in the upper tribunal, we could of course do so if the same thing arises in the lower.

We will go away and work on the matter. We already have discussions under way with the Department for Work and Pensions, whose help we will also require, to see whether we could have some equivalent—whereby somebody other than the claimant or their lawyer certifies that a point of law is involved—and provide legal aid. I suspect that at this stage of the Bill’s passage through Parliament it is far too late to start introducing primary legislation in the House of Lords, but we have retained for ourselves powers to amend the scoping through regulation, so if we could solve the problem, we could bring something forward through statutory instruments. We are quite open to the argument for ensuring that we have legal representation when there is a legal issue that we cannot expect a lay person ordinarily to argue.

[Mr Llwyd]

I follow the right hon. and learned Gentleman’s logic on that, but surely if the point of law is a good one in the upper tribunal and all the way up to the Supreme Court, it is equally good in the first tier, but if the case is unrepresented in the first tier, it is not going to go anywhere else.

[Mr Clarke]

I should like to see whether we can devise, with the help of the DWP, my right hon. Friend the Member for Carshalton and Wallington and anybody else, a system whereby we identify in the lower tribunal such issues that involve a legal issue. We think that the number is comparatively small, because it is not the business of lower tribunals normally to find themselves arguing points of law, as they normally argue points of fact and of regulatory interpretation, but we will work on the matter, and if we can devise such a system, we undertake to respond as my right hon. Friend asks me to.

[Simon Hughes]

The Secretary of State is being very helpful, and my constituents are absolutely not bothered whether this is a primary or secondary legislation matter, as they just want to know that they will have the support that he talks about. May I, however, clarify two things? Will any such measure apply to a matter of law and to judicial review when there is a proper matter of law—and, in those cases, not just to social security but throughout the tribunals service? When the agency turns down somebody’s application and that person wins their appeal to the tribunal, there absolutely has to be a parity of arms at a further stage of appeal if the state appeals again. The applicant is there not because they want to be there, but because the state or the agency has sent them there.

[Mr Clarke]

On the right hon. Gentleman’s first point, I can assure him that we are continuing legal aid in all cases involving judicial review, so legal aid is available to someone who is trying to have a welfare decision judicially reviewed. That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice. This is not an easy concession to make, because quite a lot of people who seek judicial review are not instantly popular with all sections of society, but we still give them legal aid.

On the other matter involving situations in which the state is busily arguing against a successful appellant that some kind of law is involved, I will add that to the list of things that we are studying with the DWP to try to identify whether, in cases where the state thinks that it is worth arguing about the interpretation of something, the litigant should be able to do so as well.

[Mr Robert Buckland (South Swindon) (Con)]

I am listening to my right hon. and learned Friend’s arguments with great care, but I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand, and they are often best handled by a lawyer. I worry that we are making an artificial distinction, and that if, as he is suggesting, we are to rethink a number of issues raised by Members of the House, we should rethink this one too.

[Mr Clarke]

Of course there can be borderline cases, but, with great respect to my hon. Friend, in the vast majority of cases it is fairly obvious whether one is arguing a point of fact or a point of law. In an ordinary welfare case, the question will be whether someone is fit for work or not fit for work, or living or not living at a particular address. When a point of law arises whereby it is not a question of the complexity of the regulations but of the actual meaning of the regulations, somebody like a tribunal judge will know that instantly and think, “That is quite an interesting point of law that I’ve not had before; this will go to the upper tribunal and I will certify that it would be rather nice to have some guidance.” In the end, we have to leave it to tribunals themselves to decide on the facts. Some may be blurred, but by and large, in the vast majority of cases, they will be reasonably clear.

[Andrew George (St Ives) (LD)]

rose—

--- Later in debate ---

[Mr Clarke]

I will give way once more and then I must get on; otherwise I will take up all the time available myself.

[Andrew George]

Further to the points made by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake), does the scope of the Secretary of State’s amendment exclude lower-tier tribunals, or can it be interpreted in such a manner that lower-tier tribunal appeals that are brought forward on the basis of evidence relating to a matter of law and then taken to an upper-tier tribunal might be included without the need for further regulations?

[Mr Clarke]

I have obviously failed to make myself completely clear, so I will try again. As it stands, the Government’s amendment in lieu applies only to upper tribunals. The right hon. Member for Carshalton and Wallington and others argue that something similar should be available in lower tribunals and in other cases. I have undertaken to explore whether we can find an alternative method of identifying those limited numbers of cases and getting them certified when they involve a legal principle. As the matter has been raised at this stage of the debate, we have to fall back on saying that we would use our regulation-making powers through a statutory instrument, because we could not possibly draft primary legislation to cover it in the few days that we have left.

[Tim Farron (Westmorland and Lonsdale) (LD)]

Before the Secretary of State moves on, may I ask him to give us a time scale?

[Mr Clarke]

The amendment was tabled only at 6 o’clock yesterday evening, so we have moved quite quickly to get to where we are now. I suspect that the relevant officials at the DWP have not yet even been involved in discussing this. I cannot give a time scale, but we will move as rapidly as possible.

[Glenda Jackson]

The Lord Chancellor referred to a majority of cases. Citizens Advice says that the proportion of appeals that are upheld in work capability assessment cases, for example, rises from 40% to 90% when a legal adviser is involved. I am not saying that it will necessarily be about a point of law, to pick up the point made by the hon. Member for South Swindon (Mr Buckland), but there are occasions when a legal mind can clarify the situation. I do not think that the Lord Chancellor understands who the people are who go to appeal. He said that in domestic violence cases, they go to a solicitor. None of my constituents in that situation has a solicitor; they go to the CAB or to a law centre, many of which, in my constituency, are in grave danger of having their ability to provide those services reduced—

--- Later in debate ---

[Mr Clarke]

The cases that the hon. Lady mentions do not depend on a lawyer. When the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) was sitting behind her in the previous debate, he said that in his experience as an MP, when one discusses the matter with somebody, one gets clarity on what the real point is and how they should present it. A general adviser can help to sort somebody out in going along to argue their case by telling them what is relevant and what is not and giving them some guidance on what they should get evidence of in order to pursue their claim. That is not the same as legal aid. That is why we are producing the money for Citizens Advice and other voluntary bodies to give general advice. It is no good claiming that it is all about legal aid. Some lawyers are better at this than others. Just a friend who is a good advocate can be adequate in marshalling a case that is being argued on appeal about a question of fact as to whether, say, somebody is able to go back to work.

[Helen Goodman]

rose—

[Mr Clarke]

I give way for the last time.

[Helen Goodman]

It would help the House if the Secretary of State could tell us what he means by a point of law. Does he mean that it is a disagreement about the proper interpretation of the rules, or does he accept that it might be about whether the rules have been properly interpreted, which is not a dispute about facts?

[Mr Clarke]

It would be reckless of me to try off the cuff to make a tight definition of a point of law. It is about a situation where a particular question arises out of the interpretation of a regulation and there is no clear and binding precedent for exactly what the law should be when it comes to applying it to the set of facts involved, and it is then up to the tribunal judge to decide. Following the concessions that I have introduced about upper tribunal and Court of Appeal cases, the judge will certify that a point of law is involved in a case because he thinks that it is one in which the guidance of the upper tribunal or the Court of Appeal is required on what exactly the law will say that it means. That is what is meant by a point of law. We have made considerable concessions. No one is arguing about the vulnerability of groups of people who are arguing about their welfare benefits. The Bill is about how much money the taxpayer pays to how many lawyers. We are trying to concentrate on spending that money on paying lawyers for cases in which a lawyer is required to sort out a welfare benefit dispute. That is the basis on which our amendments were produced.

Let me turn finally, and as briefly as I can, to clinical negligence and legal services for children. That has been debated throughout the passage of the Bill in this House and in another place. We have listened carefully to the concerns that have been raised about the impacts of these reforms on children. I can again assure the House that the provisions in the Bill will safeguard the vast majority of the spend on cases involving children, because we have covered all the most serious cases of clinical negligence—about 96%.

I remind people that the underlying problem in the tricky area of clinical negligence cases is that all the money that we spend on compensation, legal advice, expert witnesses and so on comes out of the budget of the national health service. That now takes up a proportion of the NHS budget of a kind that I would never have contemplated all those years ago when I was a Health Minister struggling with what I thought were difficult budgets. The more one allows to be taken out of the budget for lawyers and expert witnesses in claims for compensation, the more one cannot ignore the impact that that is having on what is available for patient spend. There is no doubt that this has been a bit of a growth industry in recent years, particularly since the changes to the no win, no fee arrangements about 10 years ago. There has been an increase of 50% or so in the number of claims in the past five or six years. The last annual report of the NHS Litigation Authority estimated that the unfunded liabilities for clinical negligence claims totalled £16.8 billion, which is a cool doubling of the figure since 2006.

The bills paid to the lawyers of criminal negligence claimants more than doubled from £83 million in 2006-07 to £195 million in 2010-11. The damages paid to claimants have gone up somewhat more slowly, but the lawyers’ bills have increased substantially. One reason for that is that the fees paid to and costs incurred by the lawyers and expert witnesses acting for the plaintiffs are about three or four times as much as the Litigation Authority, as the defendant, pays for its lawyers and expert witnesses. The costs and the claims are rising exponentially. Although this is an area that we should approach with care, the clinical negligence industry has been doing well over recent years, and that has been funded entirely by budgets that would otherwise be available for patient care.

Having given that somewhat stark background, I will turn to Lords amendment 171, which seeks to bring all such cases back into the scope of legal aid when a child is a party. In our opinion, that would be unnecessary and wasteful. As I have said, under our plans, the overwhelming majority of the existing support for children will continue. For the record, that includes child protection cases, civil cases concerning the abuse of a child, special educational needs cases, and legal aid for children who are made parties to private family proceedings.

In addition, we have made funding available in the final set of amendments under consideration in this group for cases of clinical negligence involving claims for babies who suffer brain injury at or around the point of birth. I state categorically that as a result of the Government’s Lords amendment 216, any baby who, through clinical negligence, suffers brain damage during childbirth, resulting in severe disability, will receive legal aid. The amendment provides legal aid for clinical negligence claims for babies who suffer brain injury during pregnancy, at birth or in the immediate post-natal period, leading to a lifetime of care needs. I also make it clear that if a baby were to be injured in an operation, say at six months, legal aid would be available through the exceptional funding scheme, where necessary, to ensure the protection of the individual’s right to legal aid under the European convention on human rights.

When we introduced the Bill, we believed that we had covered all those cases through the exceptional funding scheme. Doubts were expressed continually in this House and in another place about that, so we now have this set of amendments to put it beyond doubt in the Bill.

By contrast, we cannot support Lords amendment 172, as I have said. That amendment would provide public funding for the remaining minority of medical negligence claims with child claimants, despite the fact that many of them are relatively simple, do not involve lengthy and detailed investigations of the kind that we are trying to catch in Lords amendment 216, and are suitable for funding through a conditional fee agreement in exactly the same way as for adults. In line with the principles that underpin the Bill, the state should not fund cases that can be provided for by alternative means.

[Bill Esterson (Sefton Central) (Lab)]

The Justice Secretary has moved on from Lords amendment 171. I am concerned about children in care and care leavers, who are among the most vulnerable children in our society and whose life chances are badly affected by their situation. There is a grave risk that children in care and care leavers will be massively over-represented in the relatively small number of people who will be excluded under the Government’s proposals. If that happens, it will seriously affect the life chances of a group of children who are already very vulnerable and who often do not have adults to advocate for them.

[Mr Clarke]

That is an interesting argument. I do not dismiss it, but I do not know of any evidence to support it. However, as I have said, the Bill covers serious cases involving children.

[Sadiq Khan]

Babies.

[Mr Clarke]

Babies, yes, although exceptional funding rules will apply to other serious cases involving children. Under the European convention on human rights, one must plainly provide someone with access to funding to have a fair resolution of a dispute. We therefore think that we are covering most cases. The amendments that I am suggesting that the House should disagree with cover all kinds of routine cases. They state that simply because a person is under a particular age, they should get legal aid in cases for which an adult would not receive it.

[Helen Goodman]

rose—

[John McDonnell (Hayes and Harlington) (Lab)]

rose—

[Mr Clarke]

Let me move on, because I am giving way far too much and taking a great deal of time.

Lords amendment 170 sounds like an innocuous measure, but it would open up legal aid to cover the costs of expert reports in all the cases that currently are funded by CFAs or no win, no fee arrangements. It would allow lawyers to apply for legal aid to cover the expert report in any case where a client, of any age, was financially eligible, and to still get their success fee in respect of their other legal costs. That would transfer all the risk in a no win, no fee case from the solicitors and insurers to the legal aid fund and the taxpayer. That would be unfair to the taxpayer and would result in a significant expansion of the legal aid scheme.

I have covered with as much care as I can these particularly sensitive areas—

[John McDonnell]

Will the Secretary of State give way?

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[Mr Clarke]

I really must not, because I have taken well over an hour, although I have given way countless times.

In my opinion, the Government have taken a consistent and principled approach to reforming the scope of legal aid.

[John McDonnell]

I just want to clarify one point.

[Mr Clarke]

I do not think that the hon. Gentleman has been in the Chamber for very long during this debate. [Hon. Members: “Yes he has.”] All right; I will give way one last time. I hope that I have deterred anybody else who wants to get me to give way.

[John McDonnell]

I would not have sought to intervene if I had not been here from the beginning of the debate. I have been here the whole time.

I want to get clarity on one point in relation to children. The Children’s Society and the Refugee Children’s Consortium estimate that there are about 2,500 under-18s who will not gain support in relation to immigration matters. My borough deals with more unaccompanied child immigrants than any other in the country. When this matter was raised before, the Secretary of State said that those are uncomplicated cases and that such children can receive advice elsewhere. That has been interpreted as meaning that social workers are able to give that advice. However, social workers are not registered in that way under existing legislation, so there is a conflict between the proposals and the existing legislation that needs to be resolved; otherwise local authorities will be in not only financial difficulties but legal difficulties.

[Mr Clarke]

Immigration cases involving unaccompanied children who turn up at airports and ports are very difficult. The vast majority of them, as far as the legal issues are concerned, are dealt with as asylum cases.

[John McDonnell]

Not all, though.

[Mr Clarke]

No, not all of them, but the vast majority. Once such a case becomes an application for asylum, legal aid is available. I am surprised by the figures that have been given for the cases that do not eventually wind up getting legal aid in that way. The problems posed by such cases, when a child gets off an aeroplane unescorted, go far beyond the legal ones. The Home Office is discussing with local authorities how to improve the response to such children. However, I am not satisfied that that category of children can be given access to legal aid for other claims of a legal kind, which I cannot visualise straight away, that might arise. The vast majority of those cases quickly turn into asylum applications and will therefore get legal aid.

I hope that the House is persuaded that the Government have taken a consistent and principled approach to reforming the scope of legal aid. No one looks to touch this area of the justice system lightly, but change is unavoidable if we are to protect access to justice and ensure that the system is affordable. On domestic violence, children, clinical negligence and welfare benefits we have sought to ensure that scarce resources are targeted where they matter most and where alternative funding or representation are unavailable. It is not easy to get that balance right. In the light of the principles that I set out at the start of my speech, I think that we have got the balance about right with the amendments that we have accepted and those that we oppose.

I believe the Government have been particularly responsive on all the issues. We knew perfectly well that when cutting back on this country’s legal aid expenditure, we ran the risk of damaging our system of justice if we got it wrong. We have made the countless moves that I have listed since we first produced the Bill however many months ago, in response to debate in both Houses. I am grateful to the Commons and the Lords for what they have done, and I hope that I have eventually put forward clearly the Government’s thoughts on the Lords amendments and on our amendments in lieu. I commend our position to the House.