(12 years, 2 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
16:09 - Division on Amendment 1 - Ayes: 235 / Noes: 190 - Amendment 1 agreed.
17:38 - Division on Amendment 2. - Ayes: 238 / Noes: 201 - Amendment 2 agreed.
18:32 - Division on Amendment 3 - Ayes: 212 / Noes: 195 - Amendment 3 agreed.
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?
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, I laid out the position at some length on Valentine’s Day. The statement is recorded in Hansard and can be read by the noble Lord. I was at pains to point out that it is not a decision of the Government but a decision of the House of Commons, and the Speaker of the House of Commons taking the advice of his Clerks, which ultimately decides whether or not to engage in financial privilege. The noble Lord asked me whether he would be wasting his time. I could not possibly say whether he would be wasting his time or not, but if the House chooses to amend this Bill in substantial financial ways, as with any other Bill I would have thought, from a clear reading of my statement and looking at the experience of the relationship between the two Houses over many years, that it is likely to engage financial privilege.
Lord Pannick
Lord Pannick
My Lords,
“Access to justice is a fundamental part of a properly functioning democracy”.
That was the opening sentence of an article in the Guardian by the Justice Secretary, Mr Ken Clarke, on 19 December in relation to the Bill which your Lordships are now debating.
Amendment 1, in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton, seeks to ensure that the Bill contains a statement of this uncontroversial and fundamental purpose of legal aid; that is, the promotion of access to justice. The wording of Amendment 1 is based on the existing Section 4(1) of the Access to Justice Act 1999. It is drafted so as to recognise, like that existing provision, that the duty to provide access to services to meet needs is not absolute. It is a duty defined of course by reference to the financial resources which are made available. The amendment does not impose an independent duty which trumps the specific contents of Part 1, which we are about to debate. On the contrary, it expressly states,
“in accordance with this Part”.
So the amendment does not require any further expenditure by the Government; it is entirely without prejudice to the important debates that we will have on the scope of legal aid.
So the only relevant question is whether it is appropriate to include in the Bill a statement of legislative purpose at the outset. Whatever views we take—and different views will be expressed—on the need to cut back on legal aid in tough economic times, surely it is vital for legal aid legislation to continue to recognise the purpose of what will remain, even under the Bill, very substantial public expenditure.
Under the Bill, the duties of the Legal Services Commission will be transferred to the director, working within the department. It is of considerable value that the director, the Justice Secretary and all those who will be associated with legal aid, whether as lawyers, clients or judges, continue to recognise that the purpose of legal aid is the promotion of access to justice. When the economy improves, we can all then reflect on whether the legislation should be amended the better to promote this purpose of access to justice.
This amendment states a principle which is recognised by the Justice Secretary himself. It is in terms which have been included in the legal aid statutes for many years. It does not require any further expenditure. An amendment along these lines was recommended by your Lordships’ Constitution Committee, of which I am a member. It was, if I may respectfully say so, very unclear from the Minister’s response in Committee why the Government were resisting it.
I am very grateful to the Minister and his officials for the patience and courtesy they showed me last week in discussing these issues. I regret that I was unable to persuade the Minister of the merits of this amendment, but I hope that other noble Lords on all sides of the House are persuaded that this amendment would improve the Bill and would do no damage whatever to the Government's desire to reduce public expenditure on legal aid. I beg to move.
Lord Faulks
I support the amendment. When it was debated in Committee, the Minister said that he would reflect on the observations of many noble Lords across the House who had contributed to the debate. It was one of many amendments that were considered by the Minister and he reassured the House on a number of occasions that he was listening.
In case I do not get an opportunity in subsequent debates, perhaps I may say now that I am extremely grateful to the Minister and his officials for their constructive approach to some of the issues and in particular one that concerned me; namely, the lack of legal aid for the victims of obstetric injuries—children with brain damage. The Government have responded and put down an amendment that we will debate in due course. However, that approach has not been reflected in his responses to this amendment. As the noble Lord, Lord Pannick, told the House, the amendment reflects the concerns of the Constitution Committee of your Lordships' House, but it contains an important modification by reference specifically to the availability of resources.
I am sympathetic to much but not everything that is in this Bill. I certainly share the Government’s aim to get rid of the worst excesses of the current litigation system and I understand the need for economies in the legal aid system. Nothing about this amendment conflicts with any of those aims. It will not in fact cost the Government anything. Why then is it important?
I consider that it affects the integrity of the Bill as a whole. If some areas of litigation are to fall outside the scope of legal aid, let us none the less ensure that the Bill retains the principle that is represented by this amendment; a principle that has, as your Lordships have heard, a recent statutory precedent. We are concerned about access to justice, which I hope I am not hopelessly romantic in regarding as a fundamental part of what it means to be British. I am uncomfortable with a Bill that declines to recognise this in the form of the amendment that has been put forward or in some similar wording. If he does not accept the amendment, I look forward to hearing the Minister explaining why he will not do so.
Lord Hart of Chilton
My Lords, my name is on this amendment. I support it for the reasons so admirably given by the noble Lord, Lord Pannick. Like him, I am a member of your Lordships’ Select Committee on the Constitution, which identified the importance of a statement of constitutional principle relating to access to justice.
As the noble Lord, Lord Pannick, has pointed out, the wording of the amendment is closely based on Section 4(1) of the Access to Justice Act 1999. Throughout the nine years that I saw those provisions in operation, budgetary restraint urged by the Treasury was always present because in those days, health and education were regarded as of higher priority. Nevertheless, legal aid was regarded as an essential element to access to justice and that principle constantly focused and concentrated the mind. The amendment seeks to do the same. It recognises budgetary restraint. It does not require a blank cheque much as some would wish it. It is moderate in tone and therefore realistic, but it enshrines an important constitutional principle that will overarch and permeate the whole of Part 1 of the Bill.
The Minister said in Committee and will probably say again that the amendment is unnecessary. That is not so. It is of fundamental importance to all of us and is absolutely essential.
Lord Carlile of Berriew
My Lords, like other noble Lords who have spoken, I remain in support of the principle behind this amendment. We are discussing the question of fairness in the distribution of legal aid and the availability of justice to members of the public. Like the noble Lord, Lord Faulks, I have campaigned in relation to clinical negligence—particularly perinatal negligence. Like him, I am grateful for the very realistic approach taken by Ministers and the clear indication and undertaking to make a concession on that matter.
However, one issue that concerns me greatly is the matters that will be debated under Amendments 8, 9 and 10—the question of scoping in and scoping out. I would be perfectly willing to see this amendment go by had we a commitment from the Government that scoping in would be added to the Bill. Had that commitment been made, I would have seen some evidence of overall fairness in the approach to legal aid being placed clearly in the Bill.
Like the issue we are currently debating, the issue of scoping in has been trailed in debate time and time again over a period of months. Frankly, I am shocked, particularly as a Liberal Democrat, that we have not yet heard from the Secretary of State that he is prepared to accept scoping in—a cost-free act of fairness, far away from attracting any issues of financial privilege. In the absence of such an indication, I feel constrained to support the amendment so ably moved by the noble Lord, Lord Pannick.
The Lord Bishop of Exeter
My Lords, last week I was asked to give a lecture on perspectives on social justice from the Old Testament. We found ourselves deep in the prophet Amos. If your Lordships are looking for some edifying and deeply challenging Lenten reading, I commend this ancient Hebrew text to you. At the heart of Amos is the same concern with access to justice. He constantly attacks a system whereby the rich can buy justice and the poor are denied it. We find him thundering against those who would turn aside the needy at the gates of justice. Access to social justice runs, like lettering through a rock, through not only Amos but the whole of the Old Testament. I suggest that it is also at the heart of any civilised society. I would not expect the Government in general or the Minister to dissent from that principle, but without this amendment or something like it that principle is in danger of being fundamentally undermined and flawed.
Among the many privileges of my life is to be the president of the local Exeter CAB. I know how much CABs and others working with the poorest of the poor fear the consequences of the removal of access to legal aid and justice for those who are very poor. I heard the Minister earlier this afternoon stand at the Dispatch Box and say, “Well, the danger here is that we begin to think about worst-case scenarios”. If I have learnt one thing from my time in this Chamber, it is that one of the functions of the law—and of this House—is to look forward precisely to worst-case scenarios. My fear is that the Bill as it stands is cast around a best-case scenario. In its desire to tackle, properly, abuses within the system and deal with the unnecessary, escalating costs associated with, for example, the no-win no-fee industry, there is a danger that huge swathes of activity hitherto amenable to legal aid are being removed from those who need that access.
As I say, the aim of the law and of a House like this is to foresee worst-case scenarios and see ahead to the elephant traps. Without such an assurance as is contained in this amendment, I fear that such elephant traps could include not only the denial of justice to the poor but, for example, people acting as plaintiffs on their own account in a court of law, inefficiently taking up more time, leading to more appeals and adding to further legal costs. Is there not a danger that those denied access to justice might even begin to take the law into their own hands?
This amendment is a very simple one. It does not undermine the heart of the Bill at all. It ensures that individuals, rich and poor alike, have access to legal services that effectively meet their real needs.
Baroness Mallalieu
At Second Reading, I supported a very similar amendment, and I would like to support this one today. This is the single most important amendment in relation to this Bill. It sets out a clear principle that the Government say that they accept—that nobody should be deprived of access to our legal system because they cannot afford it. The rest of the Bill contains many instances where one doubts whether that principle is being applied. I usually take the view that a statement of principle at the very beginning of a Bill is rather pointless—it is merely words—but in this case it is essential. It indicates that this Government, in this Bill, despite the difficulties that they are facing financially and the difficult decisions that they are having to make, are not abandoning a central pillar of our constitution—that nobody should be denied the right to go to a court of law because they cannot afford it. That is all that I would like to see put into the Bill in that amendment.
Lord Newton of Braintree
I am sorry, but I cannot quite make it. I shall try again later.
Lord Howarth of Newport
My Lords, we shall look forward very much to hearing the noble Lord, Lord Newton, in a moment.
This is major legislation to reform the legal aid system, and the least that the Government can do is to incorporate within this major legislation the affirmation of principle that the amendment in the name of the noble Lord, Lord Pannick, calls for. His formulation is a modest one by comparison to the formulation that the Constitution Committee of your Lordships' House recommended should be incorporated, which would have laid upon the Lord Chancellor an absolute duty to secure effective access to justice. At a time when our society is particularly stressed by the rigours of recession and reductions in spending on public services, as well as by what we on this side of the House take to be a very harsh prospective reduction in benefits, it is particularly important that the Government should do what they can to reassure members of our society that they are committed to justice. The affirmation of principle that is called for in this amendment is for that reason the more necessary. So I hope very much that the Minister, having listened to the powerful arguments deployed on all sides of the House, will concede that this is indeed the right thing to do.
Lord Newton of Braintree
My Lords, I apologise for my slowness. I start by saying that I am so far the only person who has spoken who is not a lawyer or bishop. I would claim with the right reverend Prelate to be a humble seeker after truth. I am not sure what I would claim with the lawyers. But I do know that I am racked with guilt about the noble Lord, Lord Pannick, because on the last occasion that he brought this up I indicated that I was not with him. Indeed, last week when he asked me whether I was going to vote on an amendment and I said that I was going to vote with the Government he wisely ignored my advice and voted against it, which is probably what I should have done anyway. However, I find myself now on Report much more inclined to support the noble Lord, both because of what he said today and because—dare I say to my noble friend on the Front Bench; I have already warned him that I may be a bit troublesome today, but he will have expected that—the more that I look at the provisions, the more I doubt that the Government are committed to the principle reflected in the amendment to which most of us would be committed.
I do not doubt that the coalition Government, whom I strongly support in general terms, including the Prime Minister and the Deputy Prime Minister, are committed to freedom, openness, transparency, justice and fairness. The coalition agreement is littered with the rhetoric of all those things and I think they meant it and still mean it, although I find it difficult to see the connection between some of the proposals in the Bill and those declarations, particularly about freedom and justice. The Minister referred jocularly at Question Time to the Ministry of Justice’s motto being, “We’re the Ministry of Justice, here to help”. Frankly, you might query that when you have looked at the provisions of the Bill. The noble Lord, Lord Pannick, also referred to the Justice Secretary’s broad declarations on this. I could make a lot of rather tendentious points particularly in the area of administrative justice, to which we will come later with an amendment on which my name stands, but there are enough questions in all this to make me wonder much more about supporting this amendment, subject to what my noble friend may say.
Lord Alton of Liverpool
My Lords, it is always a pleasure to follow the noble Lord, Lord Newton of Braintree. The House will know, of course, that he has held high ministerial office, having been a Cabinet Minister and a Secretary of State, but also as a former Leader of the House of Commons he brings distinguished experience to your Lordships’ House. The Minister should reflect on the wisdom of what the noble Lord has just said.
While we all accept that legislation is not like semaphore—it is not just about sending signals—there is grave public anxiety. The right reverend Prelate the Bishop of Exeter expressed the concern of groups such as Citizens Advice about the load that will be placed on their shoulders. The noble Lord, Lord Carlile of Berriew, expressed the concerns of groups such as claimants. He and I were privileged at the very outset of the proceedings of the Bill to meet a lady who is bringing up a brain-damaged child and who told us in no uncertain terms about the problems that would have beset her if she had not had access to justice via legal aid.
It is for that reason that I support my noble friend’s amendment today. As he has rightly said, it will not cost the Exchequer money but it sends a signal and lays down an important principle. It invites us to consider again the purpose of legal aid, which, when Hartley Shawcross introduced it in 1948, was one of the principles of the founding of the welfare state. It also invites us, especially those of us who are not lawyers, to consider the importance of access to justice for many people throughout this country. As the noble Lord, Lord Hart of Chilton, said, it is moderate and realistic. Access to justice is not a service or a product but an intrinsic right for every citizen. Dr EJ Cohn made the case best when he said:
“Just as the modern State tries to protect the poorer classes against the common dangers of life … so it should protect them when legal difficulties arise. Indeed, the case for … protection is stronger than the case for any other form of protection. The State is not responsible for … old age or economic crises. But the State is responsible for the law”.
This is not simply a moral duty but a legal one. As the European Court of Human Rights has held, an overly restrictive legal aid system can be a violation of Article 6 if it means that there is a significant inequality of arms and the individual is unable to mount an effective defence or claim. It is in this light that the first line of the Bill should be construed—namely, in the light of the important moral and legal duty under which the Lord Chancellor would be placed.
The beginning of any piece of legislation will often articulate the principles driving it. This Bill is no different. The noble Baroness, Lady Mallalieu, was right to remind us of that. It is the overriding duty of the Lord Chancellor to provide effective legal assistance to those in need, which should be the backdrop against which all other clauses of the Bill are construed. It is therefore crucial that the first clause should provide clarity as to what that duty is, as well as on its more general nature. As presently construed, Clause 1 lacks any clarity of principle. It does not focus on the needs of the citizen or on the fact that such assistance must be effective. Instead, it presents the Lord Chancellor’s duty as being extremely narrow, focusing simply on enacting the Bill, rather than on ensuring any greater principles.
In contrast, my noble friend’s amendment seeks to remedy that fault by focusing the nature of the Lord Chancellor’s duty on being, first, effective and, secondly, according to one’s needs. The principles of effectiveness and provision according to need go to the heart of what is meant by providing proper legal assistance. It is critical that all assistance provided must be effective—what is the point otherwise? For it to be otherwise would be likely to hinder an individual’s access to the courts as well as likely resulting in a waste of money. As to need, it is important that legal aid goes to those who need it and those people only. Indeed, that is the whole point of the scheme. It is therefore important to state that unequivocally and clearly at the beginning of the Bill. Should the Lord Chancellor wish to demonstrate that he is effecting his duty properly, that duty is then stated in the Bill.
However, it is also important to note that the amendment does not place an undue burden on the Lord Chancellor. Nor does it curtail much of what the Bill strives to achieve. The Minister might be right to worry that the Lord Chancellor would be placed under too heavy a burden—a herculean task that would need a huge amount of both time and resources. However, he need not harbour such concerns unduly. My noble friend’s amendment clearly states that such a duty would be restricted to the provisions in the Bill. The amendment would simply recognise that the duty of a Lord Chancellor is to provide legal assistance, as provided in the later clauses of the Bill, but that he must do so in a manner that is both effective and according to need. This is entirely reasonable. If the Government resist the amendment, alarm bells should ring about their apparent covert intentions, and many suspicions about the potential ramifications of the Bill for access to justice will be confirmed. The amendment might go some way to assuage those misgivings. For those reasons, I am very happy to support my noble friend’s amendment.
Lord Clinton-Davis
The amendment sums up precisely why so many of us entered the law in the first place. I will not take up much time—only a few seconds. Essentially, why the Minister is resisting this amendment is beyond me. It goes to the very heart of why we join the legal profession as solicitors and barristers in the first place. I see him shaking his head but I do not know why. The amendment summarises precisely why we join the legal profession and, for that reason, I support it.
Baroness Butler-Sloss
My Lords, I am sorry that yet another lawyer is speaking, but I want to make a very brief point. In 1215, King John was persuaded to put his name to the Magna Carta, which had a very clear definition of access to justice. We have now, in 2012, nearly reached another centenary of Magna Carta. It would be helpful if current legislation made the definition equally clear. The provision, as it stands in Clause 1, lacks the clarity of the amendment in the name of the noble Lord, Lord Pannick. I cannot understand why, in these straitened times, the Government think that this measure will cost them any more money. It would act as a beacon and a pointer to what should be done in less straitened times when money is available to make this provision. I support the amendment.
Lord Thomas of Gresford
My Lords, I am surprised to hear the noble and learned Baroness, Lady Butler-Sloss, suggest that the Bill should abolish Magna Carta.
Lord Thomas of Gresford
Perhaps that is putting it a little too high. However, ever since Magna Carta, access to justice has been a fundamental constitutional principle, and the Bill has nothing to do with changing that principle. My objection to the amendment is simply that it is completely otiose and unnecessary to have statements of principle that have been with us since 1215 restated in this way. The noble Lord, Lord Pannick, said that he does not intend to trump Part 1 and asked whether a statement of legislative purpose was necessary. The noble Baroness, Lady Mallalieu, said that she was against vague statements of principle at the beginning of a Bill, but seemed to suggest that this Bill was a different case. The Bill is not about abolishing access to justice but about rebalancing it in certain ways.
I have been involved in the legal profession for nearly 50 years and in my experience the greatest change to legal aid occurred when the previous Government abolished it for personal injury cases, and against the principles of maintenance and champerty, about which I have bored your Lordships many times, decided to introduce conditional fee agreements with associated insurance. The Bill follows that line by emphasising the ability of litigants to take what is now a well used way—I accept that—of obtaining access to justice. Nothing in the Bill stops people bringing actions. Legal aid may not be available but the Bill makes it clear that there are other ways of approaching the court.
The success fees introduced in 1999, which have no relation whatever to the risk solicitors run in taking on no-win no-fee cases, have increased, along with the dreadful increase in the size of ATE premiums. When the noble and learned Lord, Lord Irvine of Lairg, who I am pleased to see in his place, introduced the concept in 1999, he was talking about ATE insurance premiums of £100 or £300—I have seen that in Hansard—as opposed to today’s £50,000, £80,000 or £100,000 premiums. The cost of litigation in this country has escalated to a disgraceful level. The Bill increases access to justice by squeezing out of the system unnecessary costs and expense, which have gone to lawyers and insurance companies. We will debate in detail the respective provisions and where we can do better. However, it must be recognised that even at this stage the Government have made significant and substantial concessions to improve various aspects of the Bill. I am sure that they will continue to do so in responding to some of the amendments for which we on these Benches will argue. Therefore, I regard this amendment as a statement not of principle but of unnecessary verbosity that should not enter the statute.
Lord Bach
My Lords, there is very little left for me to say from the opposition Front Bench, except that we are, as we were in Committee, completely in favour of the amendment of the noble Lord, Lord Pannick. It adds considerably to the Bill and is a very important statement of principle that should be there.
I have to say that I was surprised by the speech of the noble Lord, Lord Thomas of Gresford. There was a change in his attitude between Committee and this stage. I remember very well—
Lord Thomas of Gresford
No, that is not the case. As the noble Lord will recall, I opposed this amendment in Committee in very much the same terms.
Lord Bach
Not quite in the same terms. As I understood it, the noble Lord and some others in Committee opposed it on the basis that it did not go far enough, not that it was unnecessary. I recall very well the noble Lord saying:
“I entirely agree. I think that the Government are making a mistake in welfare law and that cutting legal advice and assistance for people at the bottom end of society will cause more problems than it solves; it will not achieve the savings that the Government think it will”.—[Official Report, 20/12/11; col. 1708.]
I should be interested to see whether the noble Lord repeats those comments when we come to a later stage. All that I can say is that it is my feeling—
Lord Thomas of Gresford
The comments were not said in the context of Amendment 1, and we will deal with the other matters when we come to them.
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.
“( ) In exercising the duty under subsection (1), the Lord Chancellor must ensure that victims of domestic violence are able to access civil legal services in accordance with the financial eligibility criteria in section 20 (financial resources).”
Baroness Scotland of Asthal
My Lords, I declare my interest as chair of the All-Party Parliamentary Group on Domestic and Sexual Violence, and as founder and patron of the Corporate Alliance Against Domestic Violence and the Global Foundation for the Elimination of Domestic Violence. I shall speak to my Amendments 2, 41, 43 and 44 in this group, which deal with access to justice for victims of domestic violence. I am joined in these amendments by the noble and learned Baroness, Lady Butler-Sloss, who, as your Lordships will know, is the former president of the Family Division; the noble Lord, Lord Blair, the former Commissioner of the Metropolitan Police; and the right reverend Prelate the Bishop of Leicester, supported as he is by a letter dated 28 February signed by most of the faith groups which have expressed concern about the effect of these proposed provisions. I hope that noble Lords, not least the Minister, will have seen that letter.
Amendment 2 creates a positive duty on the Lord Chancellor to ensure that legal aid is available to domestic violence victims in accordance with their financial eligibility where they are engaged in domestic violence-related cases, such as contact or property disputes. Amendment 41 seeks to preserve the definition of abuse currently used across governmental and other agencies and is the definition adopted by the Association of Chief Police Officers.
Amendment 43 seeks to ensure that the evidential criteria required to prove that domestic violence has occurred protects all victims of domestic violence. It reflects the source of evidence currently accepted by the UK Border Agency. Last but not least, Amendment 44 ensures that no arbitrary time limit operates in relation to any evidence supporting an application for legal services. These are, in essence, the amendments laid before the House in Committee and the Minister is, I am sure, only too familiar with them.
The changes proposed by the Government have generated a great deal of anxiety and concern across the country, which has been irrespective of party and geographical location. As your Lordships know only too well, in the United Kingdom, every week two women die as a result of domestic violence. Victims of domestic violence make up one in four women and one in six men in the United Kingdom. Every week, 230 victims need help to leave their abusive relationships. This Government made a commitment in the spring of last year to end violence against women and to set out a cross-governmental strategy for preventing and responding to violence against women. The Justice Minister in the other place, Jonathan Djanogly, said:
“If domestic violence is involved, the Government believe that legal aid should be provided”.—[Official Report, Commons, 31/10/11; col. 638.]
I hope the Minister, who said in Committee that he would listen carefully to all that was said on this topic, will be able to assure us now that he is in a position to accept our amendments. That would give voice to the commitments made by the coalition Government in the spring of 2011.
Even now I can assure the Minister that I am quite happy to give way and allow him to apply balm to anxious souls across the country who are waiting for this relief. Particularly bearing in mind the result of the last vote, if he wishes to seize this opportunity, I would be only too happy to sit down. However, I do not see him jumping to his feet and therefore I must take it that is he not going to do so. If that is the case, perhaps I may say how disappointed I and a number of others across the country will be. That is because the provisions in this Bill, if accepted along with the 12-month time limit, will cause great damage. We know from a recent survey by Rights of Women that 54.4 per cent of victims today would not get through the evidential gateway being created by the Bill, and a great injustice may thereby be allowed to enter into our system.
I should say straight away that I welcome the Government’s recent acceptance that the definition of domestic violence set out in the Bill must change. The revised version is much closer to the existing definition—tried and tested by the Association of Chief Police Officers over a number of years and by all those who operate within the justice system and who have the burden of dealing with domestic violence cases. We welcome the Government’s change of heart. But I have to tell the Minister that, regrettably, the definition is still too narrow in that it differs from the ACPO definition and from my Amendment 41 because it still excludes “any incident” of domestic violence. That will have a material impact on the ability of a large number of victims to access legal aid. Unless the evidential gateway is widened, the Government’s concession will have little meaning or effect. However, in the light of the concession in relation to the definition, I will focus my remarks on the third and fourth of my amendments.
If the Government’s proposals succeed, it will mean that family legal aid will be allowed only where domestic violence is shown by the existence of an injunction or criminal conviction, if the victim is subject to a MARAC—a multi-agency risk assessment conference—which basically means that they are at risk of grievous bodily harm or death, or where the violence has been found as a fact in the family courts. Further, most of this evidence has to be obtained in the past 12 months. The proposed narrow evidential gateway appears to fly in the face of the Government’s commitment and, indeed, in the face of what I believe to have been a universally agreed understanding about the nature and extent of domestic violence in our country, as well as its impact on victims whether they are men, women or children.
The simple truth is that if the current proposal is brought into force, genuine victims are going to be excluded from obtaining the help and support they desperately need to bring themselves and their children into a place of safety. In its current proposed terms, a police officer’s statement that he or she believes that domestic violence is present will not be enough evidence to gain the victim legal aid. Nor will a medical certificate from a general practitioner or confirmation from social services be enough. Indeed, a victim whose abuser has admitted to domestic violence but has avoided a criminal conviction by agreeing to attend a rehabilitation programme or make an undertaking will not be able to access legal aid. We know that in the case of 99 per cent of those who participated in the Rights of Women survey at least one incident of domestic violence had been reported to the police or the police had attended an incident involving domestic violence, yet only 8.3 per cent of those surveyed would be able to prove that they had ongoing criminal proceedings in the previous 12 months—the test that the Government now wish to apply. There is no suggestion that those women were anything other than genuine victims of domestic violence. A wide range of statutory and voluntary sector professionals and agencies was reported to have been aware of domestic violence but, under current proposals, much of this evidence would not be accepted by the Government.
Baroness Butler-Sloss
My name is on this amendment so perhaps the noble Lord, Lord Thomas of Gresford, will permit me to speak after the noble and learned Baroness. I will speak briefly to underline the points because she made them so well that it is not necessary for me to speak at any length.
I know very well that the Government recognise the seriousness of the impact of domestic violence, which as we all know is a serious scourge in family life. It is worth remembering that it is not only a serious scourge for the victims, because so many of these women and men—and there certainly are some men—have children. It is the children who probably suffer most, not only short term but long term, in their ability to cope with life. Consequently, if the women—it is mainly women—are unable to get to court with the appropriate help, they are not the only ones who suffer, because their children suffer also. I find it difficult to understand why the Minister cannot accept the ACPO definition. There is not much wrong with the Government’s definition but it is not quite as broad as the ACPO one. I have never understood the police to be unduly generous or overenthusiastic in their approach to these issues.
I underline what the noble and learned Baroness said on Amendment 43. If Amendment 43 is not accepted, either by the Minister or this House, a large number of victims will fall through the net. I find it hard to understand why that would be in circumstances where a doctor identifies domestic abuse or a judge or magistrate have found it by, for instance, the perpetrator admitting it and giving an undertaking that he will not do it again, so there is not a court order. I have professional experience of endless cases of domestic violence where it was much easier to get the man—usually the man—to promise not to do it again and to leave the house rather than having a battle over the individual events which he was not prepared to accept. It was absolutely understood in the court that he had done it, yet that will not now be acceptable for receiving legal aid.
There is also no shortage of credible witnesses suggested under new sub-paragraph (k), proposed in Amendment 43,
“from a counsellor, midwife, school or witness”.
That credible, documentary evidence from a responsible person would be acceptable to a court but will not initiate that particular victim getting the help that he or she deserves. I ask the Minister to look again at this absolutely effective group of circumstances in which victims tell their story. It should get to court with the appropriate help.
My last point, briefly, is on the 12 months. Again, as the noble and learned Baroness said, a lot of women take a very long time—some men take even longer—to get to the point of disclosing what happened. Sometimes they get away and do not disclose it until after 12 months. That does not mean that it does not exist or that they are not at risk. To have this arbitrary period of 12 months is, for those who do not get there before then, another real obstruction to the Government’s declared objective to try to stamp out domestic violence. For those reasons, I strongly support the noble and learned Baroness.
Lord Thomas of Gresford
My Lords, Amendment 39 is in the names of my noble friend Lord Macdonald of River Glaven and me. I am very sorry that he is not able to be with us at this particular point because he made a thoughtful and memorable speech in Committee that those who were present will recall. It was based upon his experience. As I recall it, the thrust of his speech was that we need to get up to date on the issues of domestic violence and not deal with them as we did 10 years ago.
I very much welcome Amendment 42 in the name of my noble friend Lord McNally. It has been criticised as being a narrower definition than that in the name of the noble and learned Baroness, Lady Scotland. I do not see it that way. What is omitted is,
“any incident or repeated incidents of threatening behaviour”.
The simpler and more concise words “threatening behaviour” are there instead. Anybody knows that just one incident of threatening behaviour could, for example, land someone in court. The other words that are omitted are,
“and including acts of neglect, maltreatment, exploitation or acts of omission”,
which must surely come within the definition of abuse of an emotional kind.
I turn to our Amendment 39, as opposed to Amendment 43 tabled by the noble and learned Baroness, Lady Scotland. There are certain differences between the two; for example, my noble friend Lord Macdonald and I suggest that domestic violence,
“will be presumed on an application for civil legal services”.
Lord Phillips of Sudbury
I am sure that I am not the only one who wonders about the point eloquently made by the noble and learned Baroness, Lady Butler-Sloss, about informal undertakings given in magistrates’ courts, for example. Can I presume that that is covered in heading (iv) of his Amendment 39?
The Lord Bishop of Exeter
As the noble and learned Baroness, Lady Scotland, indicated, my friend the right reverend Prelate the Bishop of Leicester has his name down to amendments in this group and regrets that he cannot be in his place because of other duties in connection with your Lordships' House. His views have been fully set out, together with those of other leaders of faith communities, in a letter that has been circulated to your Lordships. For that reason, I do not want to repeat everything that has been said there—but for the record, it is worth quoting from the heart of that letter. It says:
“Legal aid is nothing short of essential for many victims of domestic abuse to escape the horrendous circumstances that they face. Without this support they would be unable to secure recourse in relation to fundamental issues such as injunctions, housing or access to children, potentially trapping them in a cycle of mistreatment and fear. It is clear that legal aid frequently allows for the resolution of domestic abuse cases before they escalate, in some cases avoiding serious injuries or even loss of life. We welcome the government’s decision, reflected in the Bill, to protect the provision of legal aid in many cases where domestic abuse is involved. Yet, by deviating from the standard definition of domestic abuse utilised across government departments and police forces, the Bill risks restricting the overall number of cases entitled to support, and consequently causing harm to many individuals and families. Similarly the proposed list of ‘objective evidence of domestic violence’, required in order to qualify for legal aid, appears restrictively narrow”.
At heart, this group of amendments is about the balance of risk. I fully understand that the Government are concerned with the risk of abuse of the legal aid system and the risk that people will make false claims under the guise of domestic violence claims, but there is an opposing risk of harm—indeed, possibly of death—to the victims of domestic violence. Were even one or two people to be harmed or to lose their lives as the result of not being able to access legal aid through there being an inadequate agreed definition and because of a too narrow evidential base, that would be unacceptable. I listened carefully to the noble Lord, Lord Thomas of Gresford. I welcome the amendment that stands in his name, and if push comes to shove I would probably support it, but Amendments 41 and 43 really are to be preferred.
I spoke earlier today about a basic principle in legal drafting being to spot worst-case scenarios well ahead of time. That point comes into play here but there is another important principle in working out the impact and the implications of any fully enacted law: it should defend the weak against the misuse of power by the strong. I am not convinced that, without the kind of definitions and evidential base that these two amendments call for, we would have got that entirely right. I am looking to the Minister to give some very strong comfort in that direction.
Baroness Gould of Potternewton
My Lords, I support my noble friend’s amendments. I shall concentrate my remarks on the particular difficulties and the reality that the Bill creates for women from the BME community, but before I do so I ask the Minister to clarify a point. The Government argue that too many cases of domestic violence are somehow not genuine and that the allegations are based on false claims. I was interested to discover the basis for that interpretation so I asked the Government the following Question:
“To ask Her Majesty's Government how many false claims of domestic violence have been recorded in the past five years; and how they determine that a claim is false”.
The reply that I received from the noble Lord, Lord Henley, read:
“The Home Office does not hold information on numbers of false claims of domestic violence. Investigating domestic violence is an operational matter for individual police forces”.—[Official Report, 9/2/12; col. WA 88.]
Can the Minister indicate what the detailed evidence was behind the claim of false claims of domestic violence? It is clearly not kept in the records.
Government acceptance of the ACPO definition could—I use the word “could” advisedly—be welcomed by BME women. As Southall Black Sisters made clear, and I thank that organisation for its briefing, a restricted definition of domestic violence would have an adverse impact on BME women particularly since many are often subject to immense psychological and emotional abuse, as its work on domestic slavery, immigration difficulties, forced marriage and honour-related violence shows. These cases often reveal patterns of immense financial, sexual and emotional abuse, and there are concerns that an unrealistic, narrow definition of domestic violence would exclude many vulnerable BME women from the crucial protection that they need. If the concept of any incidence of domestic violence is removed from the proposed definition, it seems that those women will find that their concerns are still valid.
It is ironic that for the purpose of making applications to remain in the UK permanently under the domestic violence rule in immigration law, the Government have accepted that a wider range of evidence from a variety of sources is acceptable to show proof of domestic violence. This includes evidence from the medical professions, women’s organisations, refuges, advice centres and so on. However, they seek to restrict the evidential requirements for the purposes of legal aid. Again, this shows inconsistency in how the Government are addressing the problem of domestic violence across all state departments.
It is believed that the restrictive nature of the domestic violence gateway criteria will have a disproportionate effect on black and minority ethnic women. The recent survey by Rights of Women and Welsh Women’s Aid showed that fewer than half the women who reported domestic violence to a specialist agency had the requisite evidence to obtain legal aid under the proposed gateway criteria; and that more than 50 per cent would not have been able to provide the evidence within the 12-month limit if it applied. Experience has shown that at least 75 per cent of BME women who complain of domestic violence and abuse do not have the type of evidence stipulated in the gateway criteria. Where do they go?
The reason why they have extra difficulties is the many internal and external barriers that they face in seeking outside help. Reporting domestic violence is, in itself, an overwhelming task for them. On average, BME women are likely to tolerate domestic violence for 10 years before seeking outside help. In the culture of many minority communities, women are expected to internalise abuse and violence. Removing meaningful legal protection from BME women will push them into community forums such as religious arbitration tribunals, where they will be encouraged to reconcile with abusive partners to uphold religious and family values, with the consequence of continuing violence and abuse. If not amended, the Bill will only make their position worse.
The survey to which I referred earlier also showed that at least 19 per cent of women have no corroborating evidence other than from a women’s refuge. Those working with BME women believe that the figure is much higher for minority ethnic women because of the uniqueness of their position.
The amendments that we are debating today will be of further assistance to BME women since legal aid does not appear to be available in domestic violence cases for those against whom a protection order is sought—that is, the alleged perpetrator. Removing legal aid from perpetrators in these cases will increase the number of women who face questioning in court from the perpetrator of the abuse, rather than from their solicitor. This could involve the perpetrator cross-examining a woman in detail on her account of the physical or sexual violence that she has experienced. Legal aid for court hearings should be available for those against whom a domestic violence injunction is sought to ensure that women are not revictimised in this way. This is especially troubling for many BME women who are subject to intense community and family pressures to remain silent or reconcile, even in the face of violence and abuse. Many are unfamiliar with the legal system, traumatised and often do not feel confident about speaking in public. This proposal will completely disadvantage them in the legal process, since many will not want to face their perpetrators. It will have a profoundly deterrent impact on such women.
Finally, if legal aid is no longer available for immigration cases, it is unclear where people who are unable to pay privately for advice will go, or how the quality of that advice will be ensured. There is no indication of any sources of immigration advice for those who are unable to pay for it privately. Not-for-profit organisations are unlikely to be able to step in as they will not meet the regulatory requirements or be able to secure the necessary funding. Maybe MPs’ surgeries will be the only places remaining to which individuals can go for immigration advice.
Lord Scott of Foscote
My Lords, I am fully supportive of the spirit behind these amendments. I rise simply to query a small point concerning the definition of abuse in Amendments 41 and 42, both of which are to the same effect. Amendment 41 states that,
“‘abuse’ means any incident or repeated incidents of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional”.
When one speaks of domestic violence, I imagine that, like me, most Members of the House have a fair idea in their minds of what is involved, and the speeches that your Lordships have heard this afternoon rather underline that: namely, that some party to a domestic partnership has been battered or threatened with violence in some way. If the only threat is a financial one, is it appropriate to describe it as domestic violence? I accept that financial threats might exacerbate other examples of domestic violence. However, I refer to financial pressure alone—nothing but financial pressure—whereby one of the parties to the domestic partnership is endeavouring to control the expenditure of the other party in one way or another. We have heard a great deal about cuts on a national basis and nations living beyond their income. However, parties to a domestic partnership can live beyond their income as well. One of the parties may seek to curb this, and that could be described as threatening behaviour of a financial character. Is that to be called domestic violence? For my part, I think that including the adjective “financial” as being sufficient by itself to constitute domestic violence rather diminishes the impact of “domestic violence”. I suggest that Amendments 41 and 42 would be better amendments if that adjective were removed from them.
Baroness Howe of Idlicote
My Lords, I support these amendments, as they show that noble Lords across the House recognise the appalling incidence of violence, particularly violence against women. The amendments seek to make clearer the way in which proceedings can be brought, but above all the fact that legal aid must be available to bring these proceedings in the circumstances outlined in the amendments.
I particularly support Amendment 43 in the name of the noble and learned Baronesses, Lady Scotland and Lady Butler-Sloss, both of whom have spoken to it. Above all, we need to realise that one of the reasons that action is not taken in areas where it should be is because the law on matters such as stalking is totally out of date. With the advent of new media, we are beginning to see abhorrent forms of abuse taking place against women, but the requisite law is not in place to deal with these situations. Amendment 43 emphasises who will be damaged by this abuse. Children will suffer in the long term. In many cases women subject to this abuse will not bring a case unless they have back-up and legal aid. The Minister has made good attempts to get the agreement of all parties to his proposal. Nevertheless, it would be very much better if he were to accept Amendments 41 and 43 in the names of the noble and learned Baronesses, Lady Butler-Sloss and Lady Scotland.
Baroness Farrington of Ribbleton
My Lords, I had not intended to speak in this debate but was moved to do so by not only my noble and learned friend Lady Scotland but the reference made by the noble and learned Baroness, Lady Butler-Sloss, to the danger to children. Far too many women struggle to keep children in the family home in the teeth of abuse that can be very severe. The impact on the lives of those children tragically often continues to a stage where they become abusers because they have been kept in a situation where violence is seen by them as the norm.
My second point goes back to the early 1970s. I want to speak about false claims, reconciliation and the 12-month limit. I remember being approached by the wife of a Conservative councillor when we were trying to raise funds for a hostel for women and children who were the victims of domestic violence. This woman said, “You’ve got to keep on fighting. My daughter is the victim of abuse. My husband will oppose you in trying to get provision because he says her husband cannot possibly be abusing her because he is a barrister”. The daughter was a woman who had been forbidden to work, had no money, and was a victim of violence. Fortunately, her mother believed her but her father absolutely refused to do so. His only argument was, “Try for reconciliation so that you can see what a good husband you’ve got”.
I cannot understand the Government’s position in the light of experience being brought forward not only by those who work with women and men who are the victims of domestic violence but the UKBA and ACPO. This really is an amazing refusal to listen to the experience of those who work in this field, day after day. I hope that the Minister will be able to say that he will take this matter away. As the right reverend Prelate said, and as I say—drawing on my memory of that young woman who went back to be even more severely attacked—you cannot draw the line so tightly. This is not an area where you can say, “Twelve months and no more”. You have to have a flexible approach, and I look forward to the Minister saying, in answer to the question of my noble friend Lady Gould, what factual evidence there is that this matter relates to false evidence and false allegations. We can find no justification for that position.
I suggest to the noble and learned Lord, Lord Scott, who asked about financial deprivation, that he contacts some of those who I mentioned. It is not a question of spending money that should not be spent on the household, but of people who are victims to the point where they do not have the bus fare to find somewhere to get advice and help. This is a group of people who do not need to have their rights restricted and they look to us to ensure that they are protected.
Lord Phillips of Sudbury
My Lords, I commend the point made by the noble and learned Lord, Lord Scott of Foscote. It seems to me that the notion of financial abuse in the context of the amendments is rather bizarre. It is interesting that the government amendment contains that word. I thank my noble friend the Minister for having tabled an amendment which goes a very long way to meet the proper concerns of those who have sponsored the amendments. I also commend to my noble friend the point made by my noble friend Lord Thomas of Gresford about the importance of presumption being the consequence of any indication in the categories mentioned in his amendment, because that seems to me to give greater strength and practicality of operation. I merely make those two points in support of the general tenor of this group of amendments.
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.
Baroness Gould of Potternewton
Perhaps I may answer that. I suggest that the Minister reads House of Commons Hansard to see what his colleague actually said.
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
My Lords, I waited with bated breath to hear what the noble Lord said because I hoped that his remarks might give me some comfort. I regret to say that they did not, not least because he has not addressed the issue raised in Committee and in this debate about the other forms of information that are seen to be of use in determining the objectivity needed in the evidential criteria. The Minister also has not explained why he believes that the UKBA definition for the evidential gateway is not sufficient to give the Government the assurance that they need that bona fide allegations of domestic violence will be supported and no other.
I shall reply to the points made by the noble Lord, Lord Thomas of Gresford, about the comments made in Committee by the noble Lord, Lord Macdonald. The noble Lord, Lord Macdonald, made a very powerful speech in Committee with which I wholeheartedly agreed. He said that,
“frequently victims of domestic violence seek support other than from the authorities, for obvious reasons; they seek it from doctors, support organisations, social services and the like. Material from these sources should be acceptable as evidence for the purposes of the legal aid gateway”.—[Official Report, 18/1/12; col. 589.]
Lord Thomas of Gresford
Does the noble and learned Baroness accept that my noble friend Lord Macdonald tabled Amendment 39? Paragraph (b) of that amendment is wider than her definition because it can include matters other than the circumstances that she has set out, which are suitable for immigration matters and can include matters that come to the Lord Chancellor’s notice at a later date that could easily be inserted into these regulations, if appropriate. Does she accept, with that presumption and that wider ambit, that my amendment, which, as the Minister has said, will be the template for these regulations, is a better amendment than her own?
Baroness Scotland of Asthal
I regret that I do not. Let me explain why. The framework included in our amendments is the framework that currently works and is in use by all practitioners. If the Minister wished to add a provision that could add to those criteria, I would be more than happy. As it stands, I hope the noble Lord will accept that our amendment is broader in terms than his and has the degree of specificity that enables victims to have the assurance that that which is currently used as the evidential base can still be used as the evidential base in future.
Lord Thomas of Gresford
It is the specificity of her amendment that I complain about because it puts into the Bill in stone what is required, whereas the amendment tabled by my noble friend Lord Macdonald, given what he said in his speech, which the noble and learned Baroness quoted with approval, is wider in that it leaves open other circumstances to be considered.
Baroness Scotland of Asthal
My Lords, I do not accept that. I accept that it sets in stone the minimum criteria and that additional matters can be added. I am looking at the minimum. I say that because today UKBA uses this definition. It has used it since 2004, and there has been no suggestion in the eight years that it has been applied that it has been improperly used or does not meet the needs of the case. My contention is that if it ain’t broke, why are we seeking to fix it?
Baroness Stowell of Beeston
I think the noble Lord knows what I was about say. We are on Report.
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 Hart of Chilton
“( ) The Lord Chancellor must ensure that the terms on which the designated person holds the post of Director are, as regards the making and termination of the designation and otherwise, such as to ensure the Director’s independence from Ministers of the Crown (subject to any direction or guidance given under subsection (3)) in relation to the carrying out of the Director’s functions under this Part.”
Lord Hart of Chilton
My Lords, this amendment is in my name and those of the noble Lords, Lord Pannick and Lord Faulks, and the noble and learned Lord, Lord Woolf. It arises out of concern expressed by your Lordships’ Constitution Committee, of which the noble Lord, Lord Pannick, and I are members.
The Bill will transfer responsibility for the allocation of legal aid from the Legal Services Commission to the Lord Chancellor’s Department. The allocation of legal aid will be the responsibility of a civil servant within the department who will be designated as the director of legal aid casework. The Minister made it clear in Committee that the intention is that the director should be independent in the performance of his or her functions, save that the director must comply with directions under Clause 4(3)(a) and must have regard to guidance under Clause 4(3)(b). The performance of the function will indeed require independence, given that many of the applications for funding will be in respect of claims, or potential claims, against government departments, including, of course, the Ministry of Justice itself. It is striking, then, that Clause 4 says nothing about independence.
At paragraph 15 of the Constitution Committee’s report we expressed concern as to whether sufficient guarantees of independence are provided in the Bill for the director of legal aid casework, who will have the responsibility within the department. Given the central importance of the functions of the director, it is appropriate to include in Clause 4 a recognition of this principle of independence. This will encourage the Lord Chancellor to focus his mind on this important question and ensure there is no doubt as to the role of the director. The amendment is not prescriptive. It leaves the detail to the Lord Chancellor. It recognises that independence is subject to directions and guidance. But it would, I think, be an improvement to say something about these vital matters on the face of the Bill itself. I beg to move.
Lord Pannick
My Lords, I support what the noble Lord, Lord Hart of Chilton, said, and I should like to add just two points. First, this amendment requires no expenditure of public funds. It is a constitutional amendment designed to ensure that a statement of the vital principle of independence is in the Bill. Independence is of central importance for the reasons that the noble Lord, Lord Hart, gave. Under the Bill we will have someone within the Ministry of Justice, a civil servant, who will perform the sensitive function of deciding when legal aid is allocated, even in relation to claims against government departments, including the justice ministry.
Secondly, I very much welcome Amendment 5, which has been tabled by the Minister. If noble Lords approve it, this amendment will require the director to produce an annual report which will be laid before Parliament. However, welcome as that amendment is, it does not address, far less rectify, the absence of any statement in the Bill about the independence of the director. Amendment 3 would meet the vital need for such a clear statement in the Bill.
Lord Faulks
My Lords, my name is also attached to the amendment, and I have very little to add to what has already been said. I am concerned too with the independence of the director, who will have considerable power over the allocation of what is left of legal aid. Perhaps I may give the House just two examples of where his or her role may be particularly important.
The provision for exceptional funding is still somewhat mysterious with its reference to the European convention and EU law. It is said to cater for quite a number of those cases where legal aid may still be given. How it is used is a matter of considerable importance. In deciding the best way of deploying exceptional funding it is very important that the director should be independent of the sort of influence which is potentially possible from the Lord Chancellor.
Secondly, Clause 4(4) states:
“The Lord Chancellor may not give directions or guidance about the carrying out of those functions in relation to individual cases”.
I am rather more concerned not so much with the individual case as with the type of cases. If the Lord Chancellor should take the view that certain areas of litigation are worrying the Government or should not be pursued, that is not covered by Clause 4(4). Although I am sure that this Lord Chancellor would not seek to exercise any inappropriate influence, it is extremely important that this new creature who will be at the centre of legal aid has independence firmly enshrined in the Bill. I support the amendment.
Baroness Mallalieu
My Lords, I support both this amendment and the amendment that the Government have tabled. For reasons that have already been given, it is crucial that the figure who is the director should not be political in any way and should not, in so far as it is humanly possible, be susceptible to political pressure. That is not only because he will be dealing, as has just been said, with cases that may have political undertones but also because—and I say this as a clinical practitioner—there may very well be a serious crisis in criminal legal aid in the not too distant future which may have repercussions that go far beyond individual cases. It may be necessary that whoever is in the role of the director is prepared to stand up to pressures that might be placed on him in relation to the funds that are available. It is important that he should report, and I welcome that amendment, but that does not go quite far enough. The amendment in the name of my noble friend Lord Hart and others does.
Lord Phillips of Sudbury
My Lords, I concur with everything that has been said. As time goes by the role of the director is liable to get more rather than less sensitive. It seems to me that the law in this country is getting closer and closer to politics more and more often, particularly in relation to the development of judicial review. Public confidence is vital. I do not think that it needs repeating as to why it is so vital, not just in terms of the judiciary but in terms of this very sensitive office. The director will have to make some extraordinarily sensitive and difficult decisions. As we all know, because we have been debating this Bill for some while, some fine judgments will have to be made by whoever is the director.
I also note that the director is to be appointed from among the Civil Service, which strikes a rather odd note. Why should the director not be appointed from anywhere? Why should he or she not be the most appropriate independent-minded person? As the noble Lord, Lord Faulks, said, it is a pity that Clause 4(4) restricts the power of the Lord Chancellor to direct to individual cases rather than to classes of cases. I wish that I had put down an amendment to that.
In all the circumstances—although the publishing of an annual report is extremely beneficial; and my noble friend the Minister may say that because of this and because of that it is superfluous to express on the face of the Bill the need for independence—if ever there were a need for a single simple statement in what is already 200-plus pages of legislation, it is that this person should be absolutely independent of government.
Lord Howarth of Newport
My Lords, I should also like to support the amendment moved by my noble friend Lord Hart of Chilton. I will be interested to hear from the noble and learned Lord the Minister why, in the way the Bill has been formulated, there is a specific insistence that the director of legal aid casework should be a civil servant. There are possibly conflicting connotations in the term “civil servant”. On the one hand we always want to think of civil servants as people who are politically impartial; but on the other hand, it is the responsibility of civil servants to carry forward the political programme of the elected Government of the day. In that latter sense I share the anxiety expressed by other noble Lords that the director of legal aid casework, being a civil servant, may not be as sufficiently independent of government as is desirable and, importantly, may not be seen to be sufficiently independent.
We also take as an important principle of our constitution that the operation of the courts and the administration of justice should be separate from the operation of the Executive. Here, however, we have a proposed new set of arrangements which clearly brings decisions about the allocation of legal aid in-house. We were told in Committee that the director of legal aid casework will be an individual in charge of an executive agency. Perhaps it is the case—I do not know—that the directors of executive agencies are always civil servants, but if they are not, I would like to know why it is felt to be so crucially important that in this instance he should be a civil servant.
My noble friend Lord Hart touched on the possibility of conflict of interest. Very often the Government or one of their agencies will be the defendant in a case. Can it be right that a civil servant will determine who should or should not have access to justice in a case concerning, for example, judicial review, special educational needs, community care or the abuse of position or powers by a public authority? There is at least the risk of the perception that the odds will be stacked against a would-be litigant seeking remedy in the courts where there has been misbehaviour or abuse by a public authority.
In Committee the noble and learned Lord, Lord Woolf, made the case that it would be desirable that the person holding the office of director of legal aid casework should be someone with a legal background who, because of his experience and formation, would have a deep understanding of the way the courts work and of the legal system. He also made the point that it would be undesirable that the director, being a civil servant, should be expected by other senior civil servants working in the Ministry of Justice necessarily, as it were, to conform with their wishes. It is essential that the director of legal aid services should be both seen and heard to stand up for legal aid and those elements of the justice system that legal aid has always been, and I think still is, intended to secure.
I shall revert to a question that I raised with the noble Lord, Lord McNally, in Committee. Will the director of legal aid casework be allowed to have a public voice? If, for example, he comes to the view that directions or guidance issued by the Lord Chancellor or provisions made by the Treasury to support legal aid are inadequate or in some other sense wrong, will he be entitled to speak out publicly on behalf of legal aid, the beneficiaries of legal aid, or the people who should be its beneficiaries? The noble Lord, Lord McNally, told us that a framework document would be produced that will set out the governance and reporting arrangements for the relationship between the Lord Chancellor and the director of legal aid casework, and he assured us that that document would reflect the principle of independence of decision-taking by the director. Can the noble and learned Lord tell us whether the document is now available so that we can have the benefit of it as we consider the extent to which we should endorse the Government’s proposals or amend them?
Lord Clinton-Davis
My Lords, I agree entirely with the points just made by my noble friend. The views of the legal profession—the Bar and the Law Society—ought to be taken into account, and perhaps the noble and learned Lord who is to reply to the debate can comment on that. My understanding is that both have made submissions to the Government about their concern—concern which is profound and goes to the heart of what we are talking about. It is essential that the director’s independence from the Government is ensured and underlined, so there can be no cavilling about this. The issue is vital—always provided, of course, that the caveat entered by the Opposition’s amendment is underlined as well.
The final point I want to make is this. We are not legislating for the immediate future, we are legislating for the long term. If we are wrong, we can always amend it, but the principle that ought to be underlined in this debate is exactly that—that we are debating for the long term.
Baroness Hamwee
My Lords, comments have been made about perception, and perception is important in this context. I wonder whether my noble and learned friend can help me. Reading on from Clause 4, there is the provision in Clause 5 that the Lord Chancellor in giving direction under Clause 4 would require the director,
“to authorise, or not to authorise”,
certain things to happen. I do not know whether a direction “not to authorise” is usual. If it is then so be it, and it may be that the point which I am raising is quite irrelevant. However, it struck me as an interesting provision.
Lord Beecham
My Lords, on this occasion, as in Committee, the House has been treated to the observations of a veritable constellation of legal luminaries, supplemented today by my noble friend Lord Howarth. Indeed, the whole principle of independence was a matter of strong comment not only by the Constitution Committee, as referred to by my noble friend Lord Hart, but by the Joint Committee on Human Rights. Both in Committee and today that concern has manifested itself across a number of speeches that have drawn attention particularly to the difficulties that could arise on the appointment of someone with very wide powers that could conceivably be exercised in an independent spirit. However, as the noble Lord, Lord Phillips, pointed out in Committee and again today, there must be not only actual independence but perceptible independence. That is very much open to question.
On the last occasion the noble Lord, Lord Faulks, drew attention to the difficulties that could arise with the exceptional cases category under Clause 9, and that certainly remains an issue. He rightly said:
“Whether a case falls within the exceptional case category”—
which is to be determined by the director—
“is bound to be somewhat controversial”.—[Official Report, 10/1/12; col. 86.]
It might be thought that that is almost judicial understatement, but it is certainly a highly relevant matter that was not really addressed on the previous occasion by the noble Lord, Lord McNally, who laid great stress, perhaps understandably, on the fact that the director would be independent from interference in individual cases. As others of your Lordships have pointed out, that is not enough. The noble Lord, Lord Phillips, referred then to Clause 4(4) and has reminded us of it today. That gives a wide power of direction to the Minister. Presumably, therefore, whole categories of case might be ruled out of access to legal aid, which cannot conceivably be regarded as satisfactory.
The amendment does not in terms address the character of the director. There must be concern, shared widely and beyond even those who have spoken today, that it would be a civil servant, without necessarily any legal or any other qualification, who was appointed. What criteria might the Government have in mind for a potential appointee to this significant position? Although it is for my noble friend to decide, I would hope that, unless the Minister indicates that the Government wish to think again about this matter, the House might wish to take a view on it.
There are a number of other pieces of legislation in which independence is in the forefront of the argument. I refer, for example, to the health Bill, in which there are issues around certain organisations and bodies where independence is thought to be highly desirable but which the current proposals do not embrace. It is even more important in the context of justice that there should be that independence. Therefore, the Opposition strongly support the amendment moved by my noble friend. We welcome the Government’s amendment. It would be helpful to have a report, but that does not take us very far on the more important issue on which we wait to hear what the noble and learned Lord has to say.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have taken part in this debate, who it is clear wish to see “independence” in the Bill. It is probably not a matter of dispute or conflict between those who have contributed and the Government that individual cases, as set out in Clause 4(4), will be undertaken robustly and without political interference. I certainly share the view expressed by the noble Baroness, Lady Mallalieu, who said that it was important that the director is not political or in any way susceptible to political pressure. I think that Members on all sides of the House would agree with that.
Perhaps it would be of help, and pick up on the question raised by the noble Lord, Lord Howarth, if I took a moment to explain to your Lordships the type of relationship that we anticipate between the Lord Chancellor and the director of legal aid casework. One of the main objectives in abolishing the Legal Services Commission is to ensure that Ministers have greater accountability for legal aid in policy, administration and expenditure. We have no intention of recreating the non-departmental public body status of the current Legal Services Commission. That is one of the purposes of the Bill and it is why we have indicated in Clause 4(1) that the director of legal aid casework would be a civil servant. That is at the structural level, but it is accepted that it is fundamentally important in getting the balance right that an area should be carved out, which is sought by Clause 4(4), in which the Lord Chancellor may not issue the director with guidance or directions: namely, in relation to carrying out the director’s functions in individual cases.
In terms of policy objectives and the prohibition at Clause 4(4), the director’s freedom from political interference in carrying out his functions in individual cases is paramount. It remains the Government’s view that the protection afforded in the Bill and the additional transparency, about which I shall say more in a moment, achieves the right balance between not risking the director’s freedom from political interference in individual cases and not compromising the structural relationship that is sought to be achieved here.
Lord Clinton-Davis
What advice did the Law Society and the Bar Council give to the Government about this particular provision?
Lord Wallace of Tankerness
The noble Lord indicated that in his contribution to the debate. I am seeking to reassure noble Lords that that reassurance is there on the substance. In individual cases it will be unlawful for the Lord Chancellor to interfere in any way. Moreover, a number of features incorporated in the Bill provide for transparency and parliamentary oversight.
Lord Phillips of Sudbury
My noble and learned friend always speaks with great persuasiveness, but I cannot see any point that he has made that makes the amendments that are being debated a problem for him. Amendment 3 makes the independence,
“subject to any direction or guidance given under subsection (3)”,
which covers one of the points that he made. As I say, there seems to be no argument that I can think of that makes the amendment inconsistent with the framework that the Minister has put forward. If that is right, given the universal anxiety about this point about independence, why in heaven's name not put it in the Bill?
Lord Wallace of Tankerness
In fairness to my noble friend, it is a good question, which I have asked myself. The answer, as I have tried to indicate in my earlier elaboration of the structure of the Bill, is that we are not trying to recreate a non-departmental public body. Consideration of whether it would be possible to incorporate the words “independent” or “independence” into Clause 4 as proposed would require us to consider very carefully whether that might inadvertently affect the proposed structure, but in no way does it detract from the heart of this matter. In respect of individual cases, the director of legal aid casework will in no way be subject to the influence or interference of the Lord Chancellor.
We need to try to get that structure right while allowing for the provisions that will be there, as my noble friend picked up and as the noble Lord, Lord Hart, indicated, in the part of the amendment that refers to direction and guidance. If that is combined with the very clear protection given—the freedom from any interference by the Lord Chancellor in individual cases—that gets the structure right without inadvertently affecting the proposed architecture of the Bill.
We seek to supplement this. The new clause that the Government propose in Amendment 5 is intended to provide a statutory requirement for the director to produce an annual report for the preceding financial year, detailing how the director has carried out his or her functions during that time. That would naturally include detail of the director’s interaction with the Lord Chancellor and how the Lord Chancellor’s directions and guidance had been used to guide decision-making over the reporting period. A noble Lord asked whether the director would have a voice. There will clearly be an opportunity for a voice because it will be his or her report that is submitted and subsequently presented to Parliament.
I hope that noble Lords will be reassured that this additional measure will provide further transparency in relation to the director’s functions and help to demonstrate that the prohibition as to interference in individual cases has been and will be adhered to. These are important safeguards to ensure the independence of the director.
Lord Newton of Braintree
I am sorry to interrupt the Minister but I have a number of questions at this stage along with a mounting sense of absurdity and unreality. Am I not right in thinking that in the ordinary course of events any civil servant has to be the servant of the Minister whom he serves? That is my general assumption. Secondly, if this civil servant is not to be in that position, does he not in effect become a non-departmental public body in his own right, as an individual? Thirdly, was it not the position of this Secretary of State on the Public Bodies Bill that these are decisions that he ought to take as Secretary of State? That was the whole purpose. My noble and learned friend, for whom I have huge admiration and who usually does terribly well on sticky wickets, has not kept the ball out of the wicket on this occasion.
Lord Wallace of Tankerness
I do not agree that the person would become a non-departmental public body in his or her own right. My noble friend raises an important point because, as has been indicated on a range of issues, guidance will be given and criteria set. There will be a framework; there will be a responsibility for the Lord Chancellor; but the crucial point—and there is concern across the House on this—is that in individual cases there cannot be that level of interference. We believe that that is secured by the provision in Clause 4(4) that it would be unlawful for the Lord Chancellor to interfere in a way that undermined that freedom of decision-making in individual cases. More than that, other measures in the Bill provide for transparency to show that that is not being in some way undermined.
Lord Howarth of Newport
We accept entirely and welcome that the Lord Chancellor will have no power to direct or even guide the director of legal aid casework, but what about classes of case? Suppose the Lord Chancellor thought that too much legal aid was going to women who are victims of domestic violence, if we succeed in carrying the amendment that was passed earlier today all the way through. Would the Lord Chancellor be able to give guidance to the director that he ought to ease up in providing legal aid in that category of case? We have to be concerned on the broader point that the noble Lord, Lord Phillips of Sudbury, expressed so strongly in Committee and just now.
Lord Wallace of Tankerness
For example, guidance will be given under Clause 9 on exceptional funding, which could relate to classes of cases, but the criteria that are set and are there in regulations will be there by secondary legislation. That can in no way be trumped. Secondary legislation will have to be approved by your Lordships' House by the affirmative procedure. That cannot be undermined or circumvented by guidance. When the regulations are eventually brought forward, we will have an opportunity to look at that. That will be the primary source and it would not be possible for the Lord Chancellor by some other means to undermine what was in the regulations. If you wish to change them, you have to come back to Parliament with further regulations and Parliament would have a further opportunity for debate.
Baroness Butler-Sloss
The Minister may have noticed that I have kept quiet on this amendment until now, but I am genuinely in difficulty in understanding the point made by the noble Lord, Lord Newton, about a civil servant working to a Minister. If, as the Bill requires, the director is a civil servant, is it not his duty to work to a Minister? In which case, how will he run an independent organisation within a government department? I am sorry, I do not understand.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
The noble and learned Baroness puts her finger on it, as she often does. Yes, it is to be a civil servant. I indicated earlier that in such a crucial area of individual cases, that individual will be a civil servant appointed on merit, who will not be subject to ministerial interference. There is common ground that that is quite proper.
As the noble and learned Baroness rightly said, there are other aspects of a civil servant’s work where that relationship with the Minister is different. I hasten to add—I think the House has got the message—that there is no question of interference in the individual cases. I sought to make the point that incorporating the words “independent” or “independence” into the clause could upset the balance that would apply in other parts of the director’s work. I think the House would generally accept that there ought to be that relationship between the Lord Chancellor and the director. We do not wish inadvertently to skewer the whole architecture of this when the Government share what is at the heart of everyone’s perfectly legitimate concerns. We have enough clear provisions in the Bill to secure the independence of the director in making these individual decisions.
I ask noble Lords to reflect on that. We do not wish inadvertently to change the whole structure of the Bill, given that the point of concern is properly addressed by the prohibition on interference, buttressed by the many ways in which Parliament and others will be able to look at the way the powers are exercised. That is transparent. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Hart of Chilton
I thank the Minister for that charming and beguiling presentation of the arguments that he seeks to address. I am afraid that it does not really address the central issue. Everybody agrees that this individual will be independent but the Government appear unable or unwilling expressly to say so. Every noble Lord who spoke in the debate wanted there to be some unequivocal statement in the Bill that this individual will be independent. The beguiling words have not answered that. It is welcome that there will be an annual report and I understand the arguments that have been put forward, but that is not sufficient to answer the central issue that there should be a manifest, unequivocal statement that the individual should be—and be seen to be—independent. I wish to test the opinion of the House.
Lord Hart of Chilton
“( ) In this section “Minister of the Crown” has the meaning given by the Ministers of the Crown Act 1975.”
Lord Beecham
“( ) Before issuing guidance or directions under this section, a copy of the proposed direction or guidance must be laid before, and approved by, each House of Parliament.”
Lord Beecham
My Lords, this is a short and simple amendment. In replying to the last debate, the Minister indicated that guidance and directions would have to be published. That is of course helpful, but what would be more helpful in reinforcing the independence of the director is if the guidance and directions had to be approved by a vote in each House. Given the potentially wide scope of directions and guidance, it seems sensible to provide for such consideration and, indeed, for an affirmative vote. I beg to move.
Lord Wallace of Tankerness
My Lords, if Amendment 4A were accepted, it would mean that directions and guidance issued by the Lord Chancellor would require the approval of this House before being in force. Directions or guidance cannot conflict with secondary legislation made under Part 1—a point I made in the previous debate—and we cannot see any reason for bringing them separately before the House. As I have already said, Clause 4 requires the Lord Chancellor to publish all directions and guidance given to the director. Transparency is achieved through this provision and, as I hope that the House agrees, the director would be required to produce an annual report on the operation of their functions. The report will include an explanation as to how directions and guidance have shaped decisions. I can also assure your Lordships’ House that the Lord Chancellor will, as a matter of good administration, keep guidance and any directions issued under continual review. That emphasises the fact that, if it is to be kept under continual review, having to bring them back every time to be amended would be an unnecessarily burdensome process in the efficient administration of the legal aid scheme. It would not in any way enhance the transparency that we seek to achieve—and on that we have common ground. Accordingly, I urge the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, the House has gone some distance in reinforcing the independence of the director, and I trust that the Government will accept that position. On that perhaps optimistic assumption, I beg leave to withdraw the amendment.
Lord Beecham
“( ) Any guidance or directions issued under this section must be reviewed on a regular basis, being not more than at three year intervals from the time they were issued.”
Lord Beecham
My Lords, this is again a perfectly simple amendment, and the Minister anticipated it in his reply to the previous amendment in indicating that matters will be reviewed. The amendment provides for a more systematic review, perhaps, than the Minister implied. Since his implication was that there may be a number of changes over time, it seems sensible that there should be a consolidation, and a three-year period should be sufficient to allow a view to be taken about progress and the actions of both government and the director under the terms of the legislation. I should have thought that it was a simple enough request. It does not require parliamentary approval in this case but it at least allows for a considered view to be taken after a reasonable period of time. Given that this is a new process, one would have thought that that would be helpful. I hope that the Minister on this occasion might see his way to accepting the amendment. I beg to move.
Lord Wallace of Tankerness
Again, my Lords, the noble Lord, Lord Beecham, has indicated that the purpose of his amendment is that any guidance or directions issued under Clause 4 must be reviewed on a regular basis in an interval of not more than three years from the time that they were issued. As I indicated in respect of the previous amendment, it is not possible for any of the directions or guidance to conflict with the secondary legislation made under this part of the Bill.
We believe that the review provided for by the amendment is unnecessary as a statutory requirement. However, I assure the noble Lord and your Lordships’ House that the Lord Chancellor will, as a matter of good administration, keep guidance and any directions issued under continual review. Protections are afforded to the director through the operation of Clause 4. There is also an opportunity for transparency, which is achieved through the publication of directions and guidance. These are important safeguards and, in the Government’s view, those arrangements are not improved upon or added to by the amendment. As I indicated, in some circumstances there might well be a maximum period of three years, but the amendment poses an additional statutory burden. I have given an assurance that the Lord Chancellor, as a matter of good administration, will keep the guidance and directions under continual review, and I hope that with that reassurance the noble Lord will feel able to withdraw his amendment.
Lord Beecham
My Lords, I am certainly prepared to accept the assurances that the Minister has given. I beg leave to withdraw the amendment.
“Annual report
(1) As soon as reasonably practicable after the end of each financial year, the Director must prepare an annual report for the financial year.
(2) The annual report must state how the Director has carried out the functions of the office in the financial year.
(3) The Director must send a copy of the report to the Lord Chancellor.
(4) The Lord Chancellor must—
(a) lay the copy of the report before Parliament, and(b) arrange for it to be published.(5) In this section “financial year” means—
(a) the period beginning on the day on which section 4 comes into force and ending on the following 31 March, and(b) each successive period of 12 months.”
“Pre-commencement impact assessment
(1) The Lord Chancellor must commission an independent review to assess and report on the following areas—
(a) the expected costs and impacts of Part 1 on—(i) children and young people;(ii) people with disabilities, including people with learning, physical, mental and psychological disabilities;(iii) women;(iv) victims of domestic violence;(v) black and ethnic minorities;(vi) government departments;(vii) courts and tribunals, including any changes in time and resources;(viii) local authorities;(b) any expected impact of Part 1 on—(i) the incidence of homelessness;(ii) the incidence of ill-health, or suicide;(iii) the commission of criminal or anti-social behaviour; and(iv) the future provision and availability of services including, but not limited to, law centres and citizens advice bureaux.(2) The Lord Chancellor must lay a copy of the final report commissioned under subsection (1) in both Houses of Parliament at the same time as laying a draft commencement order for any other section in this Part.”
Lord Bach
My Lords, we come back to a matter that we debated in Committee: the pre-commencement impact assessment proposal. I start by quoting something that has not been said for a few years now; indeed, at the time when it was said, although it may have contained quite a lot of sense, it was widely mocked, but I hope that it will not be today. It is a quotation from the then United States Secretary of Defense, Donald Rumsfeld of blessed memory, of whom many noble Lords will be either great supporters or perhaps the opposite. He said:
“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don’t know we don’t know”.
As far as the Bill is concerned, the Government have been operating as though all that matters are the known knowns. Specifically, they claim that they will save some money by reducing the budget for legal aid. We have been told repeatedly that our legal aid system is the most expensive in the world. Just this very morning, the Lord Chancellor told Radio 4 listeners that what this was really about was clamping down on lawyers’ pay. In the context of this Bill, that is a remarkably inept statement; it just is not what is happening with regard to the Bill. Is it seriously being suggested that the fees that lawyers get for doing social welfare law work need to be clamped down on—the £150 fee per case of helping someone with a legal problem on welfare benefits? We are not talking about fat-cat lawyers in this case and it is about time that the Government stopped claiming that that was what the Bill was about. It is not; it is about clients who receive advice and occasionally representation on matters that affect their everyday lives.
There are also known unknowns, although the Government are less keen to talk about those. The impact assessment, about which the noble Lord, Lord McNally, and I had a brief friendly exchange across the Dispatch Box at Question Time today, states the potential impacts of the Bill:
“reduced social cohesion … increased criminality … reduced business and economic efficiency … increased costs for other Departments … increased transfer payments from other Departments”—
in particular, with regard to that last item, higher benefit payments for people who have spent their savings on legal action. These have been slightly brushed aside, not least by the Minister, when the Government have been asked what the implications of those impacts are. You do not put in an impact assessment things that you do not think are going to happen; you put in things that you think may or will happen. If it is believed that those things will happen as a consequence of the Bill being implemented, then that is a legitimate target for those of us who are unhappy about parts of the Bill.
The Public Accounts Committee in another place asked the Ministry of Justice to invite the National Audit Office to review the impact assessments, expressing great concern that they seemed rather sloppy and unfinished. I believe that more has happened on that in the past few days; a letter has been sent by the very distinguished Permanent Secretary of the Ministry of Justice to the Law Society explaining why Ministers do not feel it necessary or even right for the NAO to look at the impact assessment of the Bill. I would be most grateful if the Minister could tell Parliament what is going on regarding the impact assessment being looked at by the NAO.
I cannot help recalling that some months ago the Justice Committee in another place, following its report, asked the Government to set out in much more detail what their assessments were of the consequences of the Bill coming into force. The Government seem to have refused to respond to that request in the committee’s report, and I ask the Minister to tell us why that was so.
As the House will know, two independent economic analyses, one by Citizens Advice and one more recently by King’s College, have done a considerable amount of work on limited information, particularly in the case of King’s, about the costs and benefits of this legislation, and they quantify some of the knock-on impacts. The Government, without offering any evidence of their own, have repeatedly rejected them out of hand. This morning the Lord Chancellor argued that,
“we’re not taking legal aid from women and children … we’re taking legal aid away from lawyers”.
That is a statement of immense chutzpah by the Lord Chancellor but is not worthy of him or the Government. The reality is that if the Bill becomes law, the Government will start taking legally aided advice away from women, children, the disabled in particular and many other groups of people.
The impact of the Bill will be considerable, and we suggest that it is only rational to plan for its impacts. Unless you do the basic work—work that has been done elsewhere—you cannot possibly hope to plan for what may follow. We know that there will be an impact, perhaps a large one, on other departments, on the lives of vulnerable people and of course on the charitable advice sector, which needs to know where it is year on year and is afraid that, with legal aid disappearing, it too in its turn may disappear.
What we are proposing in the amendment would not stop the Bill going through; this is not an attempt to stop it becoming an Act of Parliament. Before the impact assessment that we are suggesting would be produced, the Bill will have received Royal Assent. However, we believe that it would help in planning by other departments, by the sector and by the ministry, and it would help all of us to understand what the impacts might be and respond collectively to mitigate them. We believe that the amendment is actually of assistance to good government and is plain common sense, and I am delighted that it is supported by noble Lords from the Cross Benches who, if they are in their places, I hope will be able to speak to it. I beg to move.
Baroness Prashar
My Lords, I support this amendment, which was so ably moved by the noble Lord, Lord Bach. He moved it in a very rational and considered manner. Therefore, there is not much that I wish to add, other than to say that the Government justified the cuts to legal aid in Part 1 on two grounds: savings to the public purse and the fact that these changes can be made without seriously damaging access to justice for the most vulnerable. However, we have heard a great deal from a range of organisations which say that the impact on the most vulnerable will be enormous. We do not know what the impact will be on courts, local authorities and a range of other agencies.
As far as can be ascertained, neither premise is based on firm evidence. The MoJ itself acknowledges that it is speculating on the likely effects of its proposals. What about evidence-based policy-making? Therefore, I urge the Government to undertake this comprehensive assessment of the impact of the Bill before it is implemented. Essentially, it is not just common sense but good practice and good planning. As has already been indicated, it will not stop the Bill but it will ensure proper planning and that the Bill is implemented with the knowledge of what the likely impact will be.
Lord Howarth of Newport
My Lords, I wonder whether the Minister could tell us a little more about when the Government anticipate commencement. What is the timescale on which they propose to introduce these changes? Unless I fail to remember, we have not been advised of that. It will take a little time to introduce these changes and we are in a period of economic troubles. An upheaval on this scale—reforms with such far-reaching implications, introduced in the circumstances of the British economy, with the consequential stresses and strains on our society—needs to be handled with delicacy and care. It would be consistent with the principles of good administration, which the noble and learned Lord, Lord Wallace of Tankerness, mentioned in our previous debate, for the Government to pause and consider again what the consequences of their policies may prove to be before they go to the final stage and introduce these changes.
The noble and learned Lord, Lord Wallace of Tankerness, invited us to accept that principles of good administration mean that guidance and direction should be kept continuously under review. I am not entirely persuaded by that. There is often a case for allowing people on the front line—the providers and administrators of public service—to have a period of policy stability and be able to get on with doing their job. However, that assumes that we have come to the point at which it is appropriate to introduce the policy changes. Thereafter, I am rather in favour of allowing officials and civil servants to get on unmolested and do their job, at least for a period.
It is not only a period of intense economic difficulty but one of major policy and administrative upheaval in which the Government contemplate introducing these changes to the system of legal aid. There will of course be reforms to the welfare system. If we look at the categories that my noble friend Lord Bach has specified in proposed new subsection (1)(a) of his amendment, we see a series of categories of people who will be affected by the changes in welfare policy. On children and young people, the House does not need me to emphasise the importance of taking the greatest care to ensure that we do not place them in such a perfect storm of change that they are at risk of unnecessary instability or, one might say, unnecessary trauma.
For people with disabilities, it is not only the reform of the welfare system—the switch from disability living allowance to personal independence payment—and the constraints on their benefits that the Government are introducing that are at issue here, but the reforms to the health service. Surely we all accept that people with learning, physical, mental and psychological disabilities warrant our very particular, prudent and humane care as policy change is introduced. Again, it would be fitting for the Government to pause and review all the circumstances that their policy and other factors are creating in the lives of people with disabilities before they remove the legal aid that enables such people to make their case and challenge administrative decisions.
In these economic circumstances, women are particularly vulnerable in their employment. Again, special care is therefore needed. While the Government are keeping legal aid to support people who may be under immediate threat of eviction from their homes, there are other kinds of housing-related problems for which people are no longer to be supported by legal aid. For example, if they are being harassed by their landlord or their landlord fails to maintain the property in decent condition, they will no longer have the support of the legal aid system to give them redress in those circumstances. Women, children and young people are plainly vulnerable, particularly at a time when there is such a shortage of social housing and rents are soaring in the private sector. Therefore, it is essential that the Government should take stock and review the position before pressing the button to implement their new policy on legal aid.
We have debated the position of victims of domestic violence at length today. I hope that they will at least be brought back into scope.
Coming to the fifth category that my noble friend indentifies in his amendment, we know that black and ethnic minorities are represented disproportionately among the poorest in our society. We know that they often have all too fragile a position in the labour market. Again, I counsel that the Government owe it to them and to society as a whole to take great care where they are concerned.
We then move to a different set of concerns expressed by my noble friend Lord Bach. He rightly raises the question of what the impact of the Ministry of Justice’s policies may be on other government departments. We have had the benefit of seeing the study that was produced by King’s College London, which I am sure the Minister has considered with great care. However, it is a reasonable proposition and anticipation that people who are no longer in a position to maintain their rights in the courts may find themselves becoming dependent on other aspects of state provision, particularly the health service, and particularly in situations of homelessness. I do not know what consideration the Ministry of Justice has shared with the Department of Health or the Department for Communities and Local Government—to name two departments that one can immediately imagine having to pick up the tab for the MoJ’s policies—but I hope that, even if this legislation is enacted, the Government collectively will continue to think about what the totality of this policy’s effects will be. Many of us consider that the very small savings that the Ministry of Justice may achieve in the legal aid budget will be dwarfed by the knock-on expenditure consequences for other government departments. A hard-headed cost analysis should be undertaken by the Government before they implement the policy.
We know that there is a widespread apprehension, certainly extensively in the legal profession, that courts and tribunals may also face additional costs and difficulties in consequence of the removal of legal aid from various categories of would-be litigants, who may feel that they then have no option but to be litigants in person. We have heard many testimonies in Committee, and in the advice and evidence offered to us by organisations seeking to educate us on what the consequences of these policies may be, to the effect that there will be a serious impediment to the courts transacting their business at the speed at which they ought to proceed. That must be a matter of concern. It ought to be a matter of particular concern to the Ministry of Justice because if there are impediments to the courts getting on with their work properly, surely there will be cost implications and other unsatisfactory implications for the department itself. Local authorities, through social services departments, will have to carry a heavy burden. There, again, I am sure that my noble friend is right to include them in his list.
I will say no more about the possible implications for homelessness or ill health, let alone suicide, but I would like to say a word or two about the impact that this policy may have on the commission of criminal or anti-social behaviour. It seems to me that if those who are most disadvantaged in our society and feel themselves most vulnerable are driven to say to themselves that there is no justice for them and no way in which they can secure their proper rights, they may reach a point of despair and may feel justified, or simply driven, to engage in criminal or anti-social behaviour. That is surely something that the Ministry of Justice cannot want.
Finally, my noble friend invites the Government to make an assessment of the impact of their policy on the future provision and availability of services, including but not limited to law centres and citizens advice bureaux. These are charitable organisations. I note that we see authoritative figures coming, I think, from the National Council for Voluntary Organisations but possibly some other well respected body in the charitable sector, which estimate that the reduction in public funding for the charitable sector by the year 2016 at the hands of this Government and through local government underfunding will be of the order of £3.3 billion. Therefore, it is inevitable that charitable provision of legal advice and assistance will be reduced. It is part of the responsibility of the Lord Chancellor and his ministerial colleagues in the Ministry of Justice to think again very carefully about what the situation is, and can reasonably be anticipated to be, before they commence the implementation of the policy. For all these reasons, I am very happy to support the amendment moved by my noble friend Lord Bach.
Lord Goldsmith
My Lords, I support the amendment. The principal reason for supporting the amendment that has been given by noble Lords who have spoken so far is that it would focus attention on what the Bill will do. I support that, particularly if it is being suggested that the Bill is about trying to hit back at lawyers’ fees, although I did not hear that remark myself. The Deputy Leader of the House—I nearly called him noble and learned—will recall that I debated with him in Committee the impact of these changes on law centres, citizens advice bureaux and the advice sector generally—which is the final category referred to in the amendment of the noble Lord, Lord Bach. I refer to the disclosures of interest that I made on that occasion as the chairman of the Access to Justice Foundation. That foundation held its annual general meeting this week, which involved agencies in the advice sector as well as the professional bodies. The key question at that meeting which I wish to underline is: what will these changes mean for the planning that these bodies have to do for the future? For that reason, as well as the reasons that have been advanced by noble Lords, it is important to understand as clearly as one can what the impact of these changes will be.
The noble Lord was good enough to write to me on a specific point. Will he ensure that that letter is placed in the Library before Wednesday’s Report day, when I think we will consider social welfare issues? I want to underline the fact that it is critical for these agencies, which operate on a shoestring and do extremely important work, at least to know what the impact of these changes will be so that they can plan for that, quite apart from the powerful points raised by my noble friend Lord Bach and others about whether the Government really understand what the Bill will do.
Lord Judd
My Lords, frankly, it beggars belief that in an area which involves so much social distress and suffering the Government should rush into this legislation without having considered its impact and consequences. In terms of social irresponsibility, it is difficult to speak too strongly about that. Moreover, such a course of action makes absolute nonsense in terms of public expenditure. If we insist on cuts of this kind in a front line where we hope that things can be put right in time, expenditure on the cases concerned may considerably increase future pressure on the public purse, and more widely because of the contaminating effect of the cases concerned. This is short-sighted, counterproductive government of the worst order.
I have spent a great deal of my life working in the voluntary sector and I know that it is not just the voluntary organisations in the legal sector which will be affected, given that they will have tremendous additional burdens in the aftermath of the introduction of this measure, but that all the other voluntary organisations working in the front line of social action will have to pick up the pieces and the consequences of it. This is happening at the very time that the resources available to such organisations are diminishing and they are becoming frantic about how they will continue their work. This amendment is crucial. I cannot say how strongly I support my noble friend in having put it forward.
Baroness Butler-Sloss
My Lords, I hope that I may add a brief word about law centres and other advice centres. Taking legal aid away from a huge number of areas, particularly private family law, which concerns me, but also social welfare, will result in a great many people wondering what to do. Those are the people who currently go to law centres and other advice centres. I was talking to another Member of this House, who is not present in the Chamber, who told me that she used to work in a law centre as a non-lawyer and that the staff in that law centre spent their time dividing the wheat from the chaff and persuading people that they did not have a chance in court. I hope that the Minister, and particularly the Justice Secretary, understand the impact on courts and tribunals of people who do not have legal advice appearing before the various tribunals and clogging up the works. In 12 months’ or two years’ time there may be no assessment of whether the absence of law centres and other advice centres has exacerbated this problem to an enormous degree. However, I hope that the Government may realise at that stage that they need to provide more help. Good points have been made about areas in which I have experience.
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.