Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Woolf]

My Lords, may I say a few words in support of this proposal? Expert evidence is an area in which the courts have had considerable difficulties in the past. However, following on from what the noble Lord, Lord Faulks, said, it is right to acknowledge that great progress has been made over recent years in the way in which expert evidence is used in the courts, but the amount of knowledge that is available for expert reports in connection with litigation is limited. I suggest no more than that a review of the sort suggested in the amendment is well needed.

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

My Lords, I am most grateful to all noble Lords who have contributed to the debate. It has gone slightly wider in the use of experts than the narrow interpretation given in the amendment, and in some respects has read into the amendment things that are not there, but I shall try to deal with the points raised and noble Lords may then understand better what I am saying.

On the point made by the noble Baroness, Lady Kennedy, we are not withdrawing funds for experts. Where the case has public funding under legal aid and funding for expert opinion is appropriate, funding will be made available. The Government are working with the Legal Services Commission to develop and put in place a robust client and provider strategy that both reflects the demands and requirements of the new legal aid market and obtains the maximum value from the ongoing structure developed in the legal aid market.

In the Government’s response to the legal aid reform consultation, we confirmed that we would not be considering contracting with or paying experts directly in the short term because of the administrative costs to the LSC. However, when we have had time to consider the family justice review final report, which came out just before Christmas, we will look at this matter again. At the moment, there is no plan for the LSC to take this on from the solicitors to whom the noble Lord, Lord Beecham, referred.

Amendment 5 seeks to impose a duty on the Lord Chancellor to review the accessibility and quality of expert witness advice for the purposes of civil proceedings, as well as a duty to maintain or improve such accessibility and quality following the commencement of Part 1 of the Bill. This is an entirely unworkable amendment, in our opinion. By definition, expert witnesses are highly qualified and experienced professional individuals in their normally very technical fields. As professionals, they will be subject to the standards required by their respective professional membership bodies. It is not within the Lord Chancellor’s gift, nor should it be, to determine the quality provided by any given expert witness. Principally, this would be inappropriate; the Lord Chancellor cannot be expected to be in a position to determine the quality of the expert evidence or advice given, not least because the requisite expertise would not be held to reach a credible determination.

The costs of establishing a mechanism to assess credibly the quality of expert witnesses would also be prohibitive. Even if resources were unlimited, we have severe doubts as to the viability of such a mechanism. Disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate and even litigation.

[Lord Campbell of Alloway]

In trying to follow this, I must say that surely the question of the quality of the expert evidence is not fundamental. The fundamental question, is it not, is whether they need expert evidence. Who decides that? Is it an independent person or is it the legal aid authorities? Could I ask for an answer, if it is relevant?

[Lord McNally]

I refer to quality because the amendment itself does so, but the application for legal aid will go to the new director, who will consider both the question of legal aid and whether there is justification for having expert witnesses, as I said before.

As I said, disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate, even litigation, and the notion of a single objective standard that could be applied without reviewing evidence or advice given on a case-by-case basis, bearing in mind the myriad scenarios—in which, for example, a psychologist might be giving evidence or advice—does not hold water. Equally, we find the notion of accessibility somewhat difficult in the context of expert evidence. By definition, these individuals are experts in their fields and therefore few in number, and their engagement in any given proceeding is, outside the major urban conurbations, unlikely to be geographically convenient—a point made by the noble and learned Lord. Under the current framework, experts are quite naturally drawn from far and wide and it is not within the Lord Chancellor’s gift, nor should it be, to try to control or influence the geographical distribution of experts in England and Wales.

The noble Lord, Lord Beecham, referred to the matter of lower rates being applied in London. The fact is that expert provision reacts to normal economic considerations of supply and demand. It follows, of course, that in areas of higher supply there is greater competition, and it should be open to the Government to pay slightly lower rates to reflect that position.

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[Baroness Kennedy of The Shaws]

I am sorry to interrupt. On the issue of the assumption that experts will cluster in London rather than elsewhere, the experience, particularly in the medical field, is that—after, for example, the “sudden infant death” debacle and miscarriages of justice, and due to the feeling that there has been considerable criticism of paediatricians or pathologists over matters involving children—there is now real reluctance among people to be experts. It is not that there is a plethora of experts around; in fact, the opposite is the case. It is very hard to get medical people to come forward as experts in the courts because they do not want to have that kind of exposure. They also find that they are not paid enough money to make doing so worth cutting into their professional time. There is a misunderstanding about the availability of experts, particularly in the medical field.

My point about domestic violence is that in family cases, where on the whole there will not be legal aid, if someone is claiming that they have been a victim of domestic violence then they will be able to claim legal aid, but often there will be an argument over whether indeed there has been domestic violence. It is experts who often can resolve that. Will there be legal aid available to help to resolve the issue of domestic violence in order to enable access to legal aid?

[Lord McNally]

I do not think that I can give that assurance. The more that this goes on, the more that one can see why the Government are reluctant to accept an amendment that would impose a kind of impossibilism on the Lord Chancellor. We are working our way carefully with the LSC to a system that we think reflects the position. I hear what the noble Baroness is saying about the availability of expert witnesses. This is not the conclusion to which my right honourable and learned friend the Lord Chancellor has come; he thinks that this structure will provide the necessary experts. The more that we hear these examples given, the more I believe that the idea that legal aid or public funds can fund the whole range of expertise that the noble Baroness was suggesting is dangerous and one that I cannot possibly support from the Dispatch Box. I think that we will see some of the worst-case scenarios but we have confidence that the system we are setting up will carry on some of the procedures and reforms set in place by the previous Administration, and that it reflects an effective way of using public money. Therefore, accordingly, I ask the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I am grateful to noble Lords who have spoken in this debate. Several noble and learned Lords have been very sympathetic to the amendment; I am particularly grateful to my noble friend Lady Kennedy and the noble and learned Lords, Lord Morris and Lord Woolf. I am also grateful to the noble Lord, Lord Walton, whom it was my pleasure to instruct from time to time as an expert witness over many years, paying his very moderate and modest fees for his expert services.

I find the Minister’s response disappointing, to put it mildly. In answer to my noble friend Lord Howarth, I should say that a body to advise the Lord Chancellor in the exercise of the functions proposed by the amendment would be the right approach. However, the real issue here is accessibility, which depends on there being sufficient witnesses who are ready and willing to give evidence to assist parties and the courts. There is a clear concern about that, which is magnified by the issue of fees. The Minister rather airily dismissed the question of the availability of witnesses but did not address the point that I raised about the National Health Service finding difficulties with the proposed arrangements. My noble friend Lord Bach has handed me a letter which he has just received from the chief executive of the Central and North West London NHS Foundation Trust. The chief executive says that she writes,

“on a matter of some concern regarding the fees paid to expert witnesses … I have been approached by clinicians in my Trust who undertake expert witness work … I am informed that the fees payable for such work have recently been reduced to a rate (of £90 per hour) which is causing some concern in my … service. As the NHS, we are required to pay consultant medical staff at the national rate and these are not compatible with the rates set by the Legal Services Commission. Our staff are highly expert and it would be a great loss to the family courts if we were unable to release them for such expert witness work in the future”.

That is clear evidence of the kind of problem that we will see and which will presumably grow over time.

The noble Lord raised the issue of London having more people, and so on. However, a London expert giving evidence somewhere else, as many of them will have to do, will presumably be paid at the London rate, whereas an expert in a provincial city will presumably be paid at a lower rate. It seems incongruous to me.

I hope that the Government will look again at this and perhaps answer—if not on this occasion, then in writing—a question which was put by, I think, the noble Lord, Lord Clinton-Davis. What discussions have taken place with the consortium to which I referred, and were there any positive responses? In particular, if a third meeting was promised, why did it not take place? At this stage, however, I will not press the amendment, but beg leave to withdraw it.

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[Lord McNally]

My Lords, I am most grateful for all the contributions to what has been an extremely full debate—one that yet again has taken on some of the elements of a Second Reading debate, partly because of the structure of the amendment.

I have to say that we were one hour and 40 minutes into today’s deliberations before anyone—it was the noble Baroness, Lady Howarth—kindly mentioned that the debate and the Bill are set against the background of the economic situation we faced when we came into office. In the Ministry of Justice, a relatively small department, there was a commitment to find savings of £2 billion during this spending round. I say to the Benches around the House that there are no soft options.

I have not yet had a chance to read in full today’s speech by the Leader of the Opposition in which he is apparently asking the Labour Party to face up to the fact that cuts are inevitable. However, I have been following some of the advice he has received over the past week or so about facing that reality, some of which came even from Members of this House. I also think that some of the comments about the kind of social tsunami that we are going to face if the Bill is passed need a reality check: that after we have cut £350 million off the budget of our legal aid scheme—and I have not heard anyone challenge this—it will remain among the most generous in the world. The idea that somehow this is the end of civilisation as we know it does not stand up. We have been asked on a number of occasions to go back to first principles. We came into office with a commitment to make cuts in a department where there are really only four areas of expenditure: courts services, probation, prisons and legal aid. We set about trying to reshape the legal aid scheme in a way that addressed what we saw as the most fundamental issues of access to justice.

[Lord Clinton-Davis]

But if the Government are wrong about saving £350 million, and if the cost of providing services equivalent to legal aid mounts irrevocably, what does the Minister say about that? If the Government have miscalculated, is that not a grave offence?

[Lord McNally]

Fortunately, I know that the noble Lord has himself stood at this Dispatch Box, and I am sure that then he heard alarm bells going off in his head when anybody asked him questions with “if … if … if” in them. It is wise not to try to speculate. Of course things may happen beyond our control. The Government have made a judgment on these matters. We are asking the House to support that judgment, and we will find in the course of time whether that judgment is right.

The Bill is beginning to suffer from what I might call report fatigue, in that almost weekly a report comes out, usually sponsored by very interested parties, which is then quoted around the House. I would be the last to deny the right of groups to commission reports and to use their findings, but it is not necessary for those to be treated as holy writ. They are studies; we receive them, read them and take notice of them.

[Baroness Farrington of Ribbleton]

My Lords, I ask the Minister for the Government to produce their report. It is no good the Government dismissing or implying self-interest among those who are producing independent reports. I ask the Minister for the Government's evidence on which they base their judgment. Like him, I accept that all sorts of things come out of the blue. I want to know how the Government reached their conclusion. Where is the evidence? Please share it.

[Lord McNally]

I suggest that the noble Baroness reads our impact assessment, which has been quoted. Our critics cannot have it both ways. At one moment, they are banging the Dispatch Box and saying that the impact assessment reveals this, that and the other terrible finding, and then they say that we have not done any research. The noble Baroness has been in both national and local government. Many people in local government of all parties are having to take tough, difficult decisions. In a time of austerity there are no soft options. We have of course had cross-departmental discussions about the measures. It is almost impossible to assess with any accuracy the various impacts on one department or another of various measures—which involve, at maximum, £350 million in a relatively small department.

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[Noble Lords]

Oh!

[Lord McNally]

One has to face up to these things but it is always a case of cuts being made somewhere else. We have tried to restructure legal aid in a way that reflects the economic reality that we face. My right honourable friend the Lord Chancellor has said very frankly that in his opinion we have become a society that reaches too easily for lawyers at taxpayers’ expense, and he is trying to roll back that tendency in this restructuring. We have also said that, as part of the restructuring, we want to look at alternative dispute resolution.

We understand the concerns that have been expressed about the not-for-profit or voluntary sector and the advice sector, and we have responded to them. I am not suggesting that this is a new announcement for the noble Lord, Lord Beecham, but we have found £20 million this year, despite the fact that the legal aid cuts do not impact on CABs at the moment as the cuts have not yet come into being. Under my honourable friend Nick Hurd in another place, we are also having a comprehensive look at the funding of that sector. Therefore, as I said, it is easy to put forward the case that has been made, but I and other Ministers were faced with a difficult decision regarding what we had to spend in the budget and how we could spend it.

Amendment 6 calls for a pre-commencement impact assessment of Part 1 of the Bill and for a copy of the report to be presented to both Houses of Parliament. The proposed review would look at the expected costs and impacts of Part 1 on a number of groups, including children and young people, women, black and ethnic minorities, and people with disabilities. It would also quantify impacts on the courts, tribunals, local authorities and government departments. Amendment 194 would bring the proposed new clause into force on the same day as the Act was passed.

Amendment 195 would require the Lord Chancellor, prior to commencement, to commission an independent review of the expected cost and impact on time and resources for judges and the courts of any increase in the number of litigants in person arising from the provisions in Parts 1 and 2 of the Bill. Amendment 191 would make the date on which the provisions of the Bill came into force subject to the provisions in Amendment 195.

Noble Lords will be aware that an established process, introduced by the previous Government, is already in place for the post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government’s internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check of new laws after three to five years. As set out in Cabinet Office guidance, these reviews normally take place three to five years after Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee and the Select Committee will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee’s findings should it choose to conduct a review of the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan.

As noble Lords will be aware, the Government are also, under Section 149 of the Equality Act 2010, subject to an ongoing public sector equality duty to have due regard to the effect of their policies on the groups protected by equality legislation. To that end, we have already produced detailed equality impact assessments—both at the point of consultation and alongside the introduction of the Bill—which set out the likely impact of our proposals on groups sharing protected characteristics. We will of course continue to act in accordance with our public sector equality duty.

In their amendment, noble Lords ask that the cost to other government departments is factored into this review of Part 1 of the Bill. We have given careful consideration to this issue as part of the policy development and clearance process throughout Whitehall. Extensive discussions between policy officials in different departments were held as part of that, and knock-on or downstream costs were factored into those discussions. Ultimately, costs to other government departments will be driven by behavioural responses to the reforms, and these cannot be predicted with any degree of accuracy.

As I have already said, the noble Lord, Lord Bach, referred to our risk assessment. From the very beginning, I have never hidden the facts in answering questions at this Dispatch Box. If you are dealing with cuts in almost any aspect of government—for example, as chairman of housing in a local authority—but especially if you have a budget specifically aimed at the more vulnerable in society, then I do not resile from the fact that the cuts will impact on the most vulnerable in society. However, the test is then how to protect the most vulnerable. One has to ask: “Have we done enough? Have we focused our scant resources enough?”. In part, that is what these debates will be about.

[Lord Elystan-Morgan]

The noble Lord has said very helpfully that downstream costs affecting other departments were factored into the consideration. Therefore, is the £350 million in fact a gross figure from which a factor of X has to be deducted, although at this stage we do not know and are not in a position to know what X might be?

[Lord McNally]

No. The commitment is to the expenditure from my department, and factored in are discussions with other departments which leave us confident that the kind of disproportionate impact which has been suggested will not occur. However, one knows how fluid these matters are when discussing government budgets. For example, how do last summer’s riots feed into the demand for prison places or indeed the demand for legal aid? There are variables and unknowns in these matters, but we have put forward our objective of cutting the legal aid bill by £350 million in a way that we hope is focused and takes account of some of the issues that have been raised. For example, domestic violence is in scope. We will have debates later about definitions of domestic violence, but to suggest that domestic violence is being taken out of scope is plainly not fair.

[Baroness Scotland of Asthal]

My Lords, I make it plain to the Minister and reassure him that no one is trying to be unfair in relation to domestic violence. The noble Lord will know that the impediments that have been put in the way of someone getting legal aid for domestic violence are quite acute. They have to have had an injunction within the previous 12 months, and there either has to be a person imprisoned within 12 months or the victim has to come at the top of the scale—that is, by being at threat of death or grievous bodily harm. That is an undue hurdle to overcome.

Secondly, we know that in many private law cases there are elements of domestic violence that are not proceeded with because the parties have lawyers and come to a settlement. The noble Lord wishes to use mediation. However, the King's College figures show that the additional mediation services that we would need would cost £46 million to £48 million; the Government's figures show that we have £10 million in the budget. Therefore, it is for these reasons that we ask for the evidence for the savings that will be made, because it does not appear to be there now.

[Lord McNally]

We will discuss this point at a further stage of the Bill. I compare that intervention by the noble and learned Baroness with her earlier one which was more broad-brush in its general condemnation. We will discuss the other areas when we come to them.

I will speak also about the issue of litigants in person, on which Amendment 195 focuses. I heard what was said, in particular by a number of noble and learned Lords—I do not think that the noble Lord, Lord Phillips, qualifies as learned.

[Lord Phillips of Sudbury]

I must rise to that jibe; I am an experienced Lord.

[Lord McNally]

Even after 15 years I am never sure who is gallant, who is learned and who is—like the noble Lord, Lord Phillips—just experienced.

Unrepresented litigants have always been a feature of our legal system. Judges make efforts to assist them by explaining relevant procedures and what is expected. We accept that the reforms are likely to lead to an increase in the number of litigants in person. We conducted a full review of the available literature on litigants in person, which was published alongside the consultation response. The review found that the evidence available on litigants in person tended to suggest a mixed impact on the length of proceedings where litigants in person were involved. It is also important to point out that there will be significantly increased numbers not going to court at all. We estimate that there will be 10,000 additional mediation cases as a result of our decision to prioritise this area. This will offset the additional burdens on the courts from dealing with litigants in person.

We took into account this issue in the impact assessment and the equality impact assessment, published at the time of consultation. One assumption we made in calculating costs and savings was the increase in unrepresented litigants. We are now considering how best to provide the support and training needed to those who assist unrepresented litigants, as well as to the litigants themselves. This will include looking to simplify the forms of guidance available to those using the courts in person and to improve the information we offer to members of the public through the new online content of the Directgov website. The ministry is considering the Civil Justice Council’s recent report and is liaising with the council on how best to take forward its recommendations for dealing with litigants in person.

The current system of post-legislative scrutiny achieves the right balance and value in effective scrutiny for both Parliament and the Government. Therefore, I urge the noble Lord to withdraw his amendment. We have had a very good debate. It had some elements of Second Reading and took just under three hours of the second day of Committee. I hope that noble Lords will believe me when I say that we are listening and that we will have further thorough, specific debates. However, the amendment takes us too far back to first principles on a Bill that has gone through the other place and has had its Second Reading in this place.

[Baroness Farrington of Ribbleton]

My Lords, will the Minister give an assurance to the House that he will read this debate carefully and, where there are unanswered questions about costs that could occur, including costs to other departments, or any other questions to do with the validity of the Government’s assumptions and of the background knowledge that he assures us that the Government have, they will be answered in writing before Report to all noble Lords who have taken part today?

[Lord McNally]

No, my Lords. I will read the debate and consider these matters, but frankly some of the issues raised were so speculative that no responsible Minister would respond in that way. I assure the noble Baroness with all honesty that I will bring the facts before the House and will deal with the Bill with all the responsibility that I can. However, she is too old a hand—

[Noble Lords]

Experienced.

[Baroness Farrington of Ribbleton]

The noble Lord has lost none of his Blackpool charm.

[Lord McNally]

Coming from a Preston girl, that is a compliment—I think. I will read Hansard. I realise that very interesting points were made, which I will study carefully and draw to the attention of the Lord Chancellor. With that, I ask the noble Lord to withdraw his amendment.

[Lord Bach]

My Lords, we have had a very full debate, as the Minister reminded us. However, it was very worth while because this is a very important subject that goes to the heart of whether the Government did the work they should have done before bringing in such controversial and fundamental legislation. I start by saying how grateful I am to noble Lords from all sides of the Committee who spoke in the debate. I am very grateful to the noble Lord, Lord Wigley, for backing the amendment, as I am to the noble Baroness, Lady Prashar. I forgot to say earlier, as I was asked to, that she was unable to attend when the amendment was moved because of her appearance at a very well known and important committee. I am very glad to see her in her place now.

I thank noble Lords for making some very important points. I do not wish to embarrass the noble Lord, Lord Carlile, but I will thank him for his contribution if only because it gives me the chance on behalf of the Committee to congratulate him on the honour he received in the New Year Honours List. However, other speeches were just as good, on all sides of the Committee. The one thing they had in common—this is something that the Minister must take back to his department—is that they were all, in one way or another, critical of the way in which the Government approached this part of the Bill.

I will not speak for long; I do not for a moment believe that more than a few noble Lords are in the Chamber to hear me wind up the debate on this amendment. They are here for another reason that I cannot think of. However, it is necessary to make one or two points. Although of course I will not press the amendment, the issue is important and we may well come back to it on Report because it is fundamental to the Bill. If the Bill comes into force with us knowing so little about what its effects and costs are likely to be—whether to the MoJ, other government departments or society as a whole—that is not a satisfactory way of law making. This is not a political point but a common-sense point, and I hope that the debate has been conducted from a common-sense point of view.

The points I want to make are these: everyone around the House, including my party, knows that savings have to be made in the legal aid budget. Of course that is right. We put forward proposals in relation to criminal legal aid in the last few months when we were in government. We said it in our manifesto. Other proposals for savings in legal aid have been put forward in various amendments that we are going to debate in due course in this House. The Law Society has also put forward proposals. The question is not: should there be cuts in legal aid? The question is: where should those cuts be?

For the life of me, I cannot understand why the Government have chosen that part of legal aid—the social welfare law part, the law of everyday life, which is a pretty small part of it, in fact—which in its own way works successfully in helping the most underprivileged in our society get basic legal advice on legal problems that affect their daily lives. It follows that that early advice often sorts out the problem and means that courts and tribunals are not bothered with hopeless cases and that people’s lives can be improved. I cannot for the life of me understand why the Government should have chosen that aspect when they refused to do anything about criminal legal aid, where a number of us think that there is room for substantial savings in some parts of it. It is disappointing that when the Government say that they are not going to implement Part 1 of the Bill until April 2013, they go on to say that they are not even going to look at criminal legal aid again until 2015. That is disappointing. That is my first point.

My second point is that we believe that it is a false argument that the Government have chosen life and liberty as the only places where legal aid should apply today. The point has already been made in this debate that it is difficult to think of a more obvious place where legal aid is appropriate than to solve legal problems that affect people who are, through no fault of their own, poor or disabled or who lack any privileges. That is surely where a legal aid system should bite. To remove legal aid from there is a completely wrong thing to do.

I thank the Minister for his contribution because it is not easy to face the Committee which, on this issue at least, is pretty dead-set against him. He made a point about how weekly reports come out suggesting that the policy is wrong, and he appeared to criticise that. The fact is that there would not be so much criticism if the Government had done the work they should have done before they tried to legislate in this way. All we ask is that in the time between now and Report, he goes back to his department and asks—I do not think he answered this in the debate—why the Government have not done the assessments of costs and social costs so that Parliament has a better idea of what it is being asked to legislate for. The Government have clearly not done the work that should have been done—that is a pretty universal feeling around the Committee. It is not too late for them to start doing it now, and I would encourage them to do so. I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Tuesday 10th January 2012 Lords Chamber

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

My Lords, Amendment 7 seeks to require a novel situation whereby specific arrangements that the Lord Chancellor may make under Clause 2(2)(c) would have to be included in an order subject to the affirmative resolution procedure. I believe that it will be beneficial to expand on the purpose of the provisions in question before addressing the amendment itself.

The specific provision is designed to provide the Lord Chancellor with the powers to create a body to provide or facilitate the provision of services. In practice, this provision is included in the Bill to allow the Lord Chancellor to continue to provide services through the Public Defender Service. The PDS is a body established under the auspices of the Legal Services Commission that directly employs lawyers to provide legally aided criminal defence services, alongside solicitors’ firms in private practice that are contracted with by the LSC. This dual model tends to be used in areas where there have historically been issues with the level of availability of supply. The PDS must necessarily be distinct from the Lord Chancellor, given its role of defending individuals accused by the state of committing criminal offences.

Let me turn now to the proposed amendment. It appears to me a very novel suggestion that the legislative processes of these Houses would be used to consider arrangements that are not intended as legislative instruments but would nevertheless become so were the amendment to be adopted. The specific arrangements envisaged under this proposal—the continued provision of the Public Defender Service—do not and should not require parliamentary scrutiny. There is no question of protecting independence. Lawyers employed by the PDS are subject to the same professional obligations and ethical codes as those in private practice, regulated as they are by the Solicitors Regulation Authority. In addition to this, PDS lawyers are also subject to a PDS code of conduct, which is designed to help ensure independence. It is the Government’s intention that all current arrangements should continue under the new framework, including the PDS code of conduct.

This is explicitly dealt with in Clause 28, which provides for a code of conduct to be observed by civil servants and employees of a body established and maintained by the Lord Chancellor, the latter dealing with those individuals employed as part of the PDS. The PDS has operated unencumbered by interference since it was first deployed in 2001, and there is no basis for assuming that its continued operation should be in any way different under the revised framework before the Committee. I stress that this power will be used in law to re-establish the PDS under the new framework. However, in practice nothing will change: the PDS will operate in exactly the same manner and in the same locations, and it is not appropriate to use parliamentary time to endorse what is already in existence. Given those assurances, I hope that the noble Lord will withdraw his amendment. There is no need to put powers in the Bill to create the LSC’s replacement. This is a departmental administrative arrangement and the legal aid agency will be an executive agency of the MoJ.

[Lord Beecham]

My Lords, I am tempted to apologise to the Minister for not having the telepathic powers that would have enabled me to understand what the clause is about. It does not specifically refer to the Public Defender Service. Of course I accept the noble Lord’s explanation but it would be helpful if the Government were to amend the clause before we get to Report to make it clear that it is the Public Defender Service that is referred to. On the face of it, it could be any kind of arrangement that is being made, so, if I may say respectfully, it would be helpful for that course to be taken.

[Lord McNally]

If it would be helpful, I will write to the noble Lord to clarify and I will consult with colleagues on the point that he makes.

[Lord Beecham]

In the circumstances, I beg leave to withdraw the amendment.

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[Lord Beecham]

My Lords, the noble Lord may say that this amendment relates only to the Public Defender Service, in which case I suspect that my speech will be rather shorter than it might otherwise have been. The amendment refers to Clause 2(4), which refers to,

“arrangements for the purposes of this Part”—

not just this clause—

“that provide for a court, tribunal or other person to assess remuneration payable by the Lord Chancellor, the court, tribunal or other person … in accordance with the arrangements”.

The previous subsection provides that the Lord Chancellor may make such provision for remuneration by regulations. I apprehend that this will not refer to the Public Defender Service. If that is the case, I will proceed to outline the position that we wish to take.

On the assumption that this amendment is of general application, which appears to be the position, the amendment would require the Lord Chancellor to consult the Bar Council and the Law Society, which is the present position under the Access to Justice Act. In addition, it is suggested that consultation should take place with the Institute of Legal Executives, which is now a recognised and substantial body of contributors to the legal system, and with organisations that represent the legal advice movement—law centres and the like. These have, with cross-party support since their inception, played a growing and important role, again supplying legal aid and advice.

As we heard in the context of the debate on today’s first amendment—on expert witnesses—there is a potential issue about remuneration, which is linked to the possibility of maintaining an adequate supply of lawyers in this case, and to providing choice for consumers. Therefore, the amendment would make it necessary for consultation to take place, whereas the Government’s view is that it is not necessary to have that in legislation. They have indicated that they will continue to consult the Bar Council and the Law Society. We would say that consultation needs to be wider and that it needs to be statutory, rather than simply rely on the good will of the Government of the day. Consequently, any regulations that then come forward would also require approval.

Amendment 9 would make it a requirement—rather than, as matters presently stand, discretionary—for the Lord Chancellor to set and monitor standards of service in legal services. That seems a sensible provision, which would reinforce the need to ensure that there is access to advice that meets a standard. At present, under the legal aid scheme, certain quality standards have to be passed by practitioners and that should remain the case. Amendment 10 effectively reinforces that provision, again making it necessary for the Lord Chancellor or other persons to set and monitor standards of service under the Bill.

Amendment 11 refers to the need to consult the relevant organisations—the Law Society, the Bar Council and the Institute of Legal Executives—in devising and maintaining a system of accreditation for the purpose of providing legal services.

There is a question raised by Amendment 12, which as it stands would remove Clauses 3(4) and (5), which provide for the Lord Chancellor to charge for accreditation. This is designed to elicit a response from the Minister as to what the Government’s intentions are in this respect. It may be that charging for accreditation would act as a deterrent in certain areas, particularly perhaps in the voluntary sector and for law centres that would seek accreditation.

Amendment 104 again requires the Lord Chancellor to carry out consultation before making regulations in relation to criminal proceedings. He should consult with the Lord Chief Justice, the Director of Public Prosecutions and, again, the three legal bodies. There is a concern that the current pattern of reductions in support for organisations will impact on market sustainability, to use a phrase of the chief executive of the Legal Services Commission. People consider there is a danger that organisations will not survive, particularly in the voluntary sector. That is something on which the Government need to reflect when they are making regulations to secure the delivery of advice and support services.

The Access to Justice Act provides:

“When making any remuneration order the [Lord Chancellor] shall have regard to— … (a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies, … (b) the cost to public funds, and … (c) the need to secure value for money”.

That measure has commanded cross-party support for well over a decade. The thrust of these amendments is to ensure that that remains the case and to involve those who will be engaged in providing that legal advice and assistance in the regulations that the Lord Chancellor will be required to make regarding remuneration, the supply side of the service, as it were, and maintaining the quality of the service. I hope the Minister accepts that these amendments are designed to reinforce and support the system which the Bill seeks to create. I beg to move.

[Lord McNally]

My Lords, I note that the noble Lord spoke not only to Amendment 8 but to Amendments 9, 10, 11, 12 and 104. I hope that that was intentional. I am happy to reply to both groups. According to my batting order they were supposed to be spoken to separately. However, the noble Lord spoke to them so well that I am happy to reply to both groups. If anybody wants to speak to the group beginning with Amendment 9, I will sit down while they do so; otherwise, I will reply to both groups at the same time. I commend the noble Lord, Lord Beecham, on his splendid—

[Lord Beecham]

Inadvertence.

[Lord McNally]

Perhaps he would like to move the next four groups formally as well.

Amendment 8 seeks to achieve two things. First, it provides for the inclusion of provisions akin to those in Sections 25(2) and (3) of the Access to Justice Act in relation to the matters the Lord Chancellor must take into account when setting remuneration rates for barristers and solicitors in regulations under Clause 2(3), specifically,

“the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies”.

I realise that a number of the amendments that the Opposition have put forward have harked backed to the Access to Justice Act.

The second effect of the amendment would be to create a statutory requirement to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors. I recognise that the Delegated Powers and Regulatory Reform Committee drew the attention of the House to Clause 2(3) in light of the lack of a provision in the Bill equivalent to Sections 25(2) and (3) of the Access to Justice Act 1999. However, in our view Amendment 8 is unnecessary. In respect of factors the Lord Chancellor must take into account when making regulations setting rates of remuneration for barristers and solicitors, the matter specified in the amendment is naturally a matter that falls to be taken into account, along with other relevant considerations, when deciding how to set those remuneration rates, and it is therefore unnecessary to include a reference to them on the face of the Bill. It is also unhelpful specifically to list these factors when there will be a range of other factors that, in the particular circumstances prevailing at the time, also properly fall to be considered but may appear excluded, or be given a lesser status, by the proposed provision. I am sure that noble Lords will agree that, when making regulations setting remuneration rates, the Lord Chancellor should properly have regard to all the relevant considerations and give them appropriate weight and that the Bill should not imply otherwise.

In respect of the proposed duty to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors, we also consider this to be unnecessary. We will continue to engage the Bar Council, the Law Society and other representative bodies on remuneration matters wherever it is appropriate and constructive to do so. The absence of a statutory duty does not preclude this. With that assurance, I hope that the noble Lord will withdraw the amendment.

[Lord Carlile of Berriew]

If there are circumstances in which it would be inappropriate to consult the Law Society and the Bar Council about payments to be made to their members from public funds, will the noble Lord please explain to us what those circumstances are?

[Lord McNally]

No, my Lords. I go back to what I have said. Neither I nor my noble friend the Lord Chancellor wants to allow the Opposition to sprinkle the Bill with “must” in this respect. We need to apply common sense to this matter. I would be as hard put as him to find a reason why one would not consult such bodies—indeed, I would add the Institute of Legal Executives to the list. Common sense dictates that a Lord Chancellor would want to do this. I will give way but I add, to help the noble Lord with his next shaft, that that seems to me the sensible thing to do.

[Lord Carlile of Berriew]

I am very grateful to my noble friend and I apologise for interrupting him again but this is intended to be a shaft of light and not a bolt of lightning. Can he think of any circumstances in which a failure to consult ILEX, the Bar Council or the Law Society about their respective members’ pay would not be judicially reviewable? Surely, it is right that a failure to consult would provide a certain judicial review against the Government.

[Lord McNally]

One of the joys of this job is answering questions on the law posed by learned QCs. I honestly do not know whether that situation would be judicially reviewable. However, we do not think that it is necessary to include “must”. We have made it very clear that a sensible Lord Chancellor would consult these bodies and perhaps if some future—

[Baroness Butler-Sloss]

I am very grateful to the Minister but, speaking as another lawyer, the problem with “may” is that something may not take place. That is the point that the noble Lord, Lord Carlile, is making. If the Lord Chancellor has to do something, it is straightforward. However, if he may do something, he does not have to do it. The words used by the Minister may not actually meet the point.

[Lord McNally]

But if he “may” and he does not do it, again from my layman’s view and from what I gather my noble friend Lord Carlile was saying, that “may” would be tested by judicial review.

[Baroness Butler-Sloss]

How is that acceptable?

[Lord McNally]

The noble and learned Baroness asks that from a sedentary position. That is the position that the Government have come to. Again, my right honourable and learned friend at the other end of the Corridor will see this exchange. Whether or not this is a matter on which one should go to the wall, I do not know. I am not sure how many consultations went on with the previous Administration.

[Lord Bach]

I may not have been party to many of them, but I can assure the noble Lord that of course there were consultations with the various bodies representing lawyers of various kinds about payment. They did not always satisfy the lawyers involved, but the important point is that there was genuine consultation on these matters. For the life of me, I cannot see why the Minister cannot accept the amendment.

[Lord McNally]

The noble Lord knows very well why I cannot accept it, but I hear what has been said. If the noble Lord will withdraw the amendment and the position remains the same at Report, it is best that we return to the matter then. I cannot take it any further now. I also have a slight feeling that this desire to replace “may” wherever “must” appears is not always entirely helpful to good government, but we will see.

Amendments 9 and 10 seek to convert into duties the Lord Chancellor’s powers under Clause 3 to set and monitor quality standards, as well as to accredit organisations against those standards—here we go again. As I shall explain, these amendments are unnecessary. The current provisions in Clause 3 enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be either by the Lord Chancellor or by those authorised by the Lord Chancellor to do so. These powers are similar to those currently given to the Legal Services Commission in relation to the Criminal Defence Service and Community Legal Service.

The Legal Service Commission’s existing quality assurance standard is the specialist quality mark. This standard aims to demonstrate that organisations that hold a contract with the commission are well managed, provide a good level of client care and have systems in place to ensure delivery of good-quality advice. The Legal Services Commission also accepts the Law Society’s Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for its clients. Its successor will have the same job. The standards must be met and accreditation obtained prior to award of contract and throughout the lifetime of a contract. This compares favourably to the privately funded market, where these standards are not mandatory.

This is all done under the existing arrangements and ensures high-quality advice. There is no intention to derogate from the existing model in future under the provisions of this Bill and, accordingly, a duty to establish, maintain and accredit against quality standards is not required when the clear intention is to continue with the arrangements that have served the legal aid market and the quality of service delivered by that market so well under the current framework.

Amendment 11 concerns the Lord Chancellor’s power to make arrangements for the accreditation of legal aid service providers against quality standards under Clause 3. Specifically, the amendment seeks to require the Lord Chancellor to consult with the Bar Council, the Law Society and the Institute of Legal Executives prior to making arrangements for accreditation. This amendment assumes that the Lord Chancellor would seek to introduce a new accreditation scheme to replace the existing quality standards that must be met by a potential legal aid service provider prior to contracting with the Legal Services Commission—namely the LSC’s specialist quality mark and the Law Society’s own Lexcel standard.

In practice, it is highly unlikely that the Lord Chancellor would seek to develop a new standard. Legal aid providers are familiar with the existing standards, and these have worked well since the introduction of contracting to the legal aid sphere. Given their efficacy, and the inherent costs and time required to establish any new standard, there is no obvious need to develop and introduce one.

However, we cannot of course completely rule out the possibility that a new standard might be introduced at some point in the future under the provisions of the Bill. In that eventuality, the Lord Chancellor would, so far as it would be constructive and appropriate, engage with relevant representative bodies in the development and design of any such scheme. There is no need to make this a requirement in the Bill. The regulatory aspect of any such scheme would, in all likelihood, require engagement with the bodies mentioned in the amendment, as well as with the Legal Services Board and others—for example, the Institute of Advanced Legal Studies—to ensure that such a scheme was fit for purpose and had the support of the professions.

Historically, this engagement has always taken place and there is no reason to assume that the situation in the future would be any different. A recent example of this kind of collaborative working is the quality assurance scheme for advocates. The work was initially taken forward by the LSC and the Ministry of Justice, with the input of all relevant stakeholders, and is now being led by the regulators operating as a joint advocacy group. The JAG is made up of the three main regulators of advocates: the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards. This situation did not arise as a consequence of statutory requirement; it simply represents what is required in order to get any new quality standard established with the requisite support from the sector, and this would apply irrespective of the statutory framework under which any such scheme would be introduced.

Amendment 12 concerns the provisions in Clause 3 that enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for accreditation and monitoring of persons providing legal aid services. There are, of course, significant resource implications attached to the running of such schemes. These provisions would allow any accreditation body to meet its costs in carrying out any accreditation and monitoring function, which is entirely appropriate if they are to commit resources to such a function, and this reflects the current statutory provisions under the Access to Justice Act.

The same considerations arise in respect of where the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of that accreditation and the monitoring of the services that they provide. In conclusion, the provisions on charges for monitoring and accreditation are entirely appropriate and reflect the current statutory position.

Amendment 104 would require the Lord Chancellor to consult prescribed individuals and bodies before making regulation for criminal legal services for individuals involved in criminal investigations or proceedings. Clause 14 creates a power to make regulations that prescribe the advice and assistance that must be made available if the director has determined that a person qualifies for advice and assistance. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999 that require the Legal Services Commission to fund such advice and assistance as is considered appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings are distinct from those provided under Clause 12 to individuals arrested and held in custody. The services that we are talking about include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.

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[Lord Carlile of Berriew]

Go on.

[Lord McNally]

No, I recognise a red rag when I see one. I will think about the point that the noble Lord made. I commend him for merging two groupings and ask him to withdraw the amendment.

[Lord Howarth of Newport]

Before my noble friend withdraws his amendment, perhaps I can ask the Minister a question. I am sure that the Committee is grateful to him for the full explanation that he has given in response to the amendments. He has assured the Committee that it is unimaginable that the Lord Chancellor would not consult regularly with bodies representative of those who provide legal services and he has insisted on the importance of due monitoring and accreditation—all processes no doubt designed to uphold standards. Can he give some account of how all those processes that he has said that the Government will undertake assort with something else of which the Lord Chancellor has made much? He said in his article in the Guardian on 20 December:

“This year we've begun deregulation of the legal sector, a change comparable in its possible impact to the Big Bang in the City in the 1980s”.

That suggests that there will be some very different procedures and that the relationship between the Ministry of Justice and the legal profession could become very different indeed.

In the context of the ministry's zealous desire to deliver substantial savings in public spending and its desire to break open some of the traditional structures and ways of carrying on, I wonder how the consultation, monitoring and continuing assurance of standards are to be reconciled with the exciting and radical new approaches that the ministry is developing.

[Lord McNally]

If I may say so, that is an extremely helpful intervention. One reason why my right honourable friend is reluctant to have these things battened down is that, as I have said from this Dispatch Box, the provision of legal services and the structures of the legal profession will be changed not by any radical zeal from the Ministry of Justice but by market forces and changes that are happening in our society. Much of what we have been talking about since the dinner break has concerned the machinery to be put in place, which very much replicates machinery already there but anticipates a more fluid situation in the legal profession.

That is why specifying named organisations and people could be dangerous. What must be clear is that the Lord Chancellor has those responsibilities, including the overriding one of protecting justice. I also invite the House to have some common sense: any Lord Chancellor or Secretary of State for Justice who tried to ignore or ride roughshod over the various bodies involved would soon come to grief.

I agree with the comment of the noble Lord, Lord Bach: successive Ministers will find that you can consult but you do not always agree. I am sure that there was not total agreement when the previous Government imposed cuts in various fees for parts of the legal profession. That is the nature of things. Any sensible Lord Chancellor would involve and consult those bodies. That makes the amendments unnecessary.

[Lord Beecham]

I am glad to have given the Minister the opportunity to buy one group of amendments and get another free. I am sorry that he has not accepted the offer. He twice used the pregnant phrase that this does not “preclude” consultation. If I may say so, that is a very negative way of looking at the responsibilities of the Lord Chancellor and a rather worrying phrase. It is not a question of not precluding; the Bill should lay down what is expected of the Lord Chancellor and what he should do.

The Minister has repeatedly objected to the substitution of “must” for “may” in my amendments. The word “must” is in Clause 1, which states:

“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.

In some ways, this is a mirror image of another debate that I am involved in, with other Members of your Lordships' House, on the health Bill. Many of us, including some on the government Benches, have been trying to secure that the Secretary of State for Health has the duty to provide health services. That aspiration is one which, in respect of legal services and legal aid as defined in the Bill, is embodied in the government's wording.

Given that, it is not enough for the Minister to say that the LSC has those powers now. After all, the LSC effectively disappears. The Lord Chancellor becomes the authoritative body for the provision of legal services. It seems to me sensible and in fact desirable to protect the Lord Chancellor from succumbing to the temptation not to consult properly or to do things in perhaps a rather rushed or narrow way either of his own volition or at the behest of the Treasury or other organs of government, looking, for example, to make savings very quickly and perhaps very radically. I dare say that that may not be the intention of the present Lord Chancellor but it would be better to protect him from the possibility of judicial review, to which the noble Lord, Lord Carlile, referred, in the first place by providing a clear responsibility.

I was rather worried by the Minister’s reference to market forces. This is, I suppose, a reference to the sort of Tesco law that we are beginning to see happening. It rather worries me that, particularly in relation to Amendment 104, which deals with the criminal justice aspect, market forces might be deemed to be fit and proper effectively to run the legal aid service, whereas in the particularly important area of public policy and justice there is no requirement to consult such responsible bodies and persons as the Lord Chief Justice, the Director of Public Prosecutions and the three legal professions. I do not think it is good enough just to say that any Lord Chancellor would do this. One would hope that that would be the case but I am not sanguine enough to accept that it is proper in dealing with these matters to leave it to the potential good will of a future Lord Chancellor.

I would hope that the Minister would recognise that there ought to be a duty here. It is something that, in the absence of any movement before Report, we will have to come back to, as we might with regard to some of the other aspects to which he referred—in particular, the issue of charging for accreditation. I can see some case for making charges but I can also see a strong case in the realm of the voluntary sector for a different scheme. I give way to the noble Lord.

--- Later in debate ---

[Lord Bach]

My Lords, we have heard short but very impressive speeches on this very important group. Clause 4 is particularly important and it is absolutely vital that the Government get this right. We want to help them get it right all across the House. I hope that the Minister will have some freedom of manoeuvre on this matter, which is, in the end, a matter of some principle.

Perhaps I may start by commending the Government for bringing the Legal Services Commission inside the Ministry of Justice. When we were in power, we set up the Magee committee to produce a report on whether that would be an appropriate thing to do. It seemed to us at the time, and clearly to this Government, that there were a number of very good reasons why it is not satisfactory for the Legal Services Commission not to be an agency of government. In our view, it is appropriate that it should be and we commend the Government for doing that.

The problem always—it would have been as much a problem for us as it is for the present Government—is with the words “independence” and “perception of independence”. The Minister will know, as all of us know, that many interested people outside this House are very concerned about the drafting of Clause 4 and whether it meets what the Government clearly intend. No one is accusing them of bad faith here. Clause 4(4) shows that they clearly intend that this should be a system that works fairly and well. As the noble Lord, Lord Thomas of Gresford, pointed out, the wording is extraordinarily ambivalent and ambiguous, certainly as regards the relationship between subsections (3) and (4). The Government need to look at it again, and, I would argue, it probably needs to be redrafted.

I do not know whether noble Lords have had the opportunity to see an interesting, short note from Justice on this topic. Mr Roger Smith, who I think is well known to a large number of people who are interested in this issue and who has huge experience in this field, makes a very good point as to why this present drafting is not satisfactory. He says on what I think is an important part of the argument that:

“The provision will be most objectionable where the Director makes a decision to refuse legal aid for judicial review against his own minister. However justified that might be on the individual facts, it would be argued that the Lord Chancellor is being a judge in his own cause. Indeed, it may well be”—

this is the clever point—

“that interest groups are motivated to make exactly that accusation, regardless of the substantive worth of their application, precisely to obtain more publicity for their cause”.

As an example, among many others that could be referred to, he has shown where the Government have to tread extraordinarily carefully to make sure that independence is real and is perceived to be real. I therefore ask the Minister to be sympathetic and to look very carefully indeed at how this clause is currently drafted.

[Lord McNally]

My Lords, I am grateful to the noble Lord, Lord Bach, for the way he has summed up the debate. This clause reflects the Government’s absolute determination to make it clear that the director will be independent. I have to say that when I look at this cluster of amendments and see the names that are attached to them, I am tempted to repeat a phrase that I use occasionally about my own collection of legal advisers: if I had to pay them, I could not afford them. This is a very distinguished group of legal opinion and I make my reply conscious that that weight of opinion has been reflected in the debate.

Clause 4(4) gives clear guidance on the limits of the Lord Chancellor’s powers. However, I take on board the fact that there have been cases in the past of friction between senior civil servants and Ministers, and if Parliament is going to create an important body and function it will need to be perceived very clearly. I take the point made by the noble Lord, Lord Bach, that perception is also important. We have to get this right.

I want to make clear the point made by the noble and learned Lord, Lord Woolf. As I told him earlier, I have in fact signed off a letter to him, but cock-up often triumphs over conspiracy in these matters. As far as I can see, there was no intention to block the meeting he wanted, and somewhere in the postal system—this is not the Government’s standard promise that a letter is in the post—is his letter. I am sure that when he gets it, he will respect me in the morning because it does say that we certainly have no objection to the kind of meeting he seeks.

I am not sure that I would go as far as the noble Lord, Lord Howarth, on the point that the demonstration of independence needs civil servants to figure in television interviews and so on, although I have noted the points he made. It is also worth noting that some suggestions were made about dangers to the director’s independence—here I tread lightly into suggesting a legal form of words—but it would be ultra vires for the Lord Chancellor to interfere in directorial decisions in individual cases, and in that respect he is well protected by Clause 4(4). However, it is true that the Lord Chancellor will decide the criteria by which exceptional cases are granted funding, and these criteria will be published. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying-out of the director’s functions under Part 1 of the Bill, the Lord Chancellor cannot give directions or guidance to the director about the carrying-out of those functions in relation to individual cases.

--- Later in debate ---

[Lord Howarth of Newport]

Will the annual report say what the directions are? How are the legitimately interested public to know what directions the Lord Chancellor will give the director? Will the Minister tell us how they are to be known and what ground they would cover? What would be the subject matter of the directions?

[Lord McNally]

I think that we will have to await the document, but I will take advice on it. As far as I understand, the directions and guidance on the director’s functions will be published by the Ministry of Justice.

[Lord Williamson of Horton]

It is covered by the Bill, in subsection (5). The directions have to be published. Whether they should be in the Bill at all is another matter; but if they are in the Bill, they have to be published.

[Lord McNally]

I am also told that the director’s terms and conditions will govern the circumstances in which they could be dismissed. Some of the concerns that have been raised are either in the Bill or will be covered by guidance or in published directions and terms of reference from the department.

I go back to the point made by the noble Lord, Lord Bach. Clause 4 is not an attempt to create some stooge of either the Ministry of Justice or the Lord Chancellor of the day; it is to have somebody who will command public confidence and respect. I am not in a position to take note, here in a Committee stage, of the points that have been made; I will, as I said earlier, draw the Lord Chancellor’s attention to the views of the contributors to this debate. It would probably be of help both in looking forward and in winding up this debate if I were to set out the position as we see it now.

Amendment 13 seeks to introduce into the Bill a specification for the role of the director, in particular requiring that the person designated as director has such qualifications and experience in securing access to legal services for individuals as the Lord Chancellor considers appropriate. The amendment also seeks to have the concept of independence, and specifically the independence of the director when carrying out functions under Part 1, incorporated into the terms and conditions of the director’s employment. Amendment 17 provides a definition of “Minister of the Crown” to reflect the reference to the same in Amendment 13.

These are unnecessary amendments. Relevant experience and qualifications are, of course, factors that are taken into account in any appointment, and the recruitment of the director is no different. We can see no persuasive reasons why it should be necessary to include these considerations in primary legislation. The Committee should also note that the framework document which will govern the relationship between the Ministry of Justice and the new executive agency will also reflect the principle of independence of decision-making. The incorporation of this principle into the terms and conditions of the director would add nothing as the effect is already secured through the existing provisions.

Clause 4(2) requires the Lord Chancellor to,

“make arrangements for the provision to the Director by civil servants or other persons (or both) of such assistance as the Lord Chancellor considers appropriate”.

This means that the director will also be assisted by those with relevant experience and qualifications in discharging the director’s functions under Part 1 of the Bill, providing the necessary expertise alongside the director’s own. This support is essential as, in practical terms, it is not the case that the director will personally make all decisions on eligibility. That would be unworkable given the volume of applications made for legal aid.

Clause 5 sets out the director’s powers of delegation and, of course, this anticipates the delegation of decision-making on an individual application. As such, the need to ensure the requisite knowledge, skills, experience and qualifications for those making decisions applies to all and the proposed amendment does not further this imperative.

On the limb of Amendment 13, which seeks to have the concept of independence incorporated into the director’s terms and conditions, this is also an unnecessary amendment. The existing provisions of Clause 4 provide statutory protection to the director against ministerial or other political interference. In particular, while the Lord Chancellor can issue directions and guidance to the director about the carrying out of the director’s functions under Part 1, the Lord Chancellor is specifically prevented under Clause 4(4) from issuing directions or guidance about the carrying out of the director’s functions in relation to individual cases.

It is important to note that the prohibition in Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5. This is an important safeguard.

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble friend’s flow, but surely for him to argue, as he just has, that all is well on the independence front because Clause 4(4) states that the Lord Chancellor cannot direct the director of legal aid casework in individual cases is small comfort given that it leaves intact Clause 4(3), which enables the Lord Chancellor to give directions, which the director must comply with, on anything to do with the director’s functions except in an individual case. A whole wide sea of discretion is given to the Lord Chancellor by that provision, which goes to the heart of the independence of the director.

[Lord McNally]

The noble Lord is repeating the thrust of a number of contributions that I have heard today. My response indicates the Government’s position at the moment. Again, along with this response will be the comments that he and other noble Lords have made. Let us see where we go from there. It is an important safeguard to ensure the director’s independence in carrying out his or her functions in relation to individual cases, which in the Government’s view is not improved or added to by the amendment.

Amendment 14 seeks to amend Clause 4(2) by removing reference to other persons who may be provided to the director under arrangements to assist in the discharge of functions under Part 1. Again, this is an unnecessary amendment. To the extent that independent persons are envisaged under the new scheme, the current drafting of Clause 4(2) does nothing to prevent such individuals being engaged. The amendment also may have unintended consequences that could serve to undermine the efficient operation of the new scheme. Were this amendment to be accepted, it would limit the range of those individuals who could be engaged to assist the director to either civil servants or independent persons. It may of course be that the director will in future only ever need the assistance of civil servants and independent persons to discharge their functions. However, we cannot be sure with any certainty that this would be the case in all eventualities in the future.

The current formulation of “or other persons” provides the requisite flexibility to meet any future scenario, including the provision of independent persons. Accordingly, Amendment 14 merely limits the pool of people that might be available to assist the director, with potentially problematic unintended consequences for the operation of the scheme.

Amendment 15 to Clause 4 is intended to alter the provisions in relation to the independence of the director of legal aid casework. As I hope to explain, we believe the amendment, again, is unnecessary. I will briefly set out for the benefit of noble Lords the role and key functions of the director and why I believe that independence is important and why it is already enshrined in the Bill. Under Clause 4, the Lord Chancellor is obliged to appoint a civil servant as a statutory officeholder who will be responsible for making funding decisions in individual cases, including funding decisions in relation to exceptional funding applications under the Bill.

The statutory officeholder is to be known as the director of legal aid casework. The Lord Chancellor is also obliged to provide civil servants or other persons, or both, to assist the director in carrying out their functions. The director must make determinations in legal aid cases in accordance with the provisions of Part 1 of the Bill.

Under the new arrangements, Clause 4 is potentially the most important. It ensures that the director has independence in carrying out functions and is free from any political interference in making decisions in relation to individual cases. This independence is enshrined by the specific provisions within this clause, specifically subsection (4), which the amendment would delete. Subsection (4) prohibits the Lord Chancellor from giving guidance or directions in relation to the carrying out of the director’s functions in relation to individual cases.

There are provisions within Clause 4 that oblige the director to comply with directions given by the Lord Chancellor about the carrying out of the director’s functions, and to have regard to guidance issued by the Lord Chancellor about the carrying out of those functions, but crucially such guidance and directions cannot relate to the carrying out of the director’s functions in relation to individual cases. This protection of the director against interference when carrying out their functions in relation to individual cases is an important safeguard.

I would like to assure noble Lords that the protection of this independence is a fundamental tenet of the new arrangements, which provide the necessary safeguards that are required to make the new arrangements work. It should be noted that the director is a separate office from the Lord Chancellor created by statute. As I have said, under Clause 4(4), the Lord Chancellor cannot give directions or guidance to the director about the carrying out of the director’s functions in relation to individual cases. That is a very explicit assurance about independence. The protection offered by Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5 of the Bill. I believe that the Bill already establishes a proper role for the director, free from any political interference in relation to the carrying out of his functions in relation to individual cases.

I now turn to Amendment 16, which seeks to amend Clause 4(4) by specifying a category of case in relation to which the Lord Chancellor cannot issue guidance or directions. As I have said already, Clause 4(4) provides the director of casework with statutory protection against interference in individual cases; to seek to specify classes of case in a clause that bars interference in any individual cases cannot in my view add anything to the existing provisions. The Government’s policy has been consistently that proceedings where the litigant is seeking to hold the state to account by judicial review are important and should generally be retained within the scope of civil legal aid. This is expressly covered in paragraph 17 of Part 1 of Schedule 1 to the Bill. As with other areas within the scope of civil legal aid, in a judicial review case that is within the scope of civil legal aid, the director’s functions under Part 1 of the Bill are to decide whether in each particular case the individual qualifies for funding.

--- Later in debate ---

[Lord Thomas of Gresford]

I wish to add further concerns, having heard the Minister’s reply. I understand that the director would have to follow directions and guidance given on matters of merits and eligibility. Standards would have to be set as to what has to be satisfied, and eligibility in relation to finance is something that the Lord Chancellor would be concerned with. But I have some concerns about the emphasis on individual cases as opposed to a category of cases.

We sought in Amendment 16 to take one category of case—namely, cases against the Government or government agencies, or whatever. The Lord Chancellor ought not to be able to interfere in any category of case that is within the scope of Part 1 of the Bill. He should not be able to say that there are too many of these cases and we have to cut down, and the wording leaves that open.

Another matter that concerns me is exactly what is intended. The Minister used once the expression “an executive agency”. What is that? Is it a body within the Ministry of Justice or is it to be set up separately? Is it to be staffed only by civil servants or is it to be able to recruit its own people to it? What is the relationship of the executive agency headed by the director to the Ministry of Justice? We are very familiar with the concept of the Director of Public Prosecutions and the sometimes rather fraught relationship between the DPP and the Attorney-General, who is responsible for the director’s decisions in a parliamentary sense but not necessarily able to give him directions or control him in any way. So the independence of the DPP is a very interesting model which I would have thought the director of legal aid casework ought to follow. That means having an executive agency recruiting its own people and a constructive tension between the director and the Lord Chancellor, or whoever the Minister of Justice happens to be at the time. I would like to probe the concept a little further at this stage. What is this executive agency? How will it be staffed? What is the relationship between its director and the Minister of Justice? It may be that I am posing these questions at the wrong stage in this debate. If my noble friend is not able to answer these questions at the moment, I am sure he will explain them to me at a later stage.

[Lord McNally]

I can do no more than suggest that the noble Lord reads the Bill, because it sets out the structure for carrying out this function within an agency which is within the Ministry of Justice and staffed by civil servants appointed on the criteria which have stood us in good stead for the past 130 years. Again, as with the other contributions to this debate, I will take those matters back and see whether there are areas that can be better clarified to give my noble friend the assurances that he requires.

[Lord Pannick]

My Lords, I am grateful to the Minister for the constructive approach that he has taken to the important issues raised by this debate. I would ask him to reflect with the Lord Chancellor on the central points which have been made by noble Lords on all sides of this Committee, and to whom I am very grateful. A civil servant—the director—is going to have the crucial task of determining who has effective access to justice. The director is going to do that, often in contexts where the Government are the potential defendants. It is then striking, as many noble Lords have pointed out, that Clause 4 says nothing express about ensuring the independence of the director. This is a particular concern, as noble Lords have emphasised, in the light of the uncertainty as to the limits of Clause 4(3).

Clause 4(4), as the noble Lord, Lord Thomas of Gresford, has emphasised, is not sufficient protection because it does not prevent directions from the Lord Chancellor to the director about categories of cases, or indeed as to the general approach to be adopted by the director. As I understood it, the Minister's response to this was that the Government's position today—although the Minister emphasised that that may change—is that they are as keen on independence as everybody else. If I understood him correctly, he said that independence is a fundamental tenet of this arrangement. The position of the Minister and the Government today is that Clause 4 is designed to achieve that objective and therefore these amendments are unnecessary.

The noble Lord will appreciate, and I hope that he will communicate this to the Lord Chancellor, that around this Committee the view is taken that, with great respect, that is not good enough because noble Lords prefer an express statement of the basic constitutional principle on which we are all agreed as to independence. Noble Lords prefer the drafting of Clause 4 to contain clear limits on the powers, in this context, of the Lord Chancellor and clear safeguards of the independence of the director. I hope that the Minister will be able to ask his officials to look again at the wording of Clause 4 so as to achieve these objectives, otherwise we will undoubtedly be returning to this matter on Report. For the time being, I beg leave to withdraw this amendment.

--- Later in debate ---

[Lord Bach]

My Lords, I am sorely tempted to test the opinion of the House on Clause 4 tonight; I think it would be the better course to take. I am going to resist that sore temptation, but only just, because—here I am supporting what the noble Lord, Lord Pannick, said in his closing remarks—apart from the Minister’s final remarks, his response to the debate was unsatisfactory. His response runs the severe risk—against the Government’s real instincts, I am sure—of being careless of the independence point. That is a fundamental point and, as the Minister himself pointed out, exactly the sort of point that this House is quite good at dealing with in revising legislation that comes from another place. Frankly, the current draft is just not good enough, and this point is so central that at some stage the House will have to take a view on the issue. I very much hope that the Minister will use his powerful persuasive powers to persuade others in the ministry that the clause must be altered for the better.

[Lord McNally]

I have a full speaking note on Clause 4, but I have heard what the noble Lord has said. I am not sure how persuasive my powers are. I want to read the debate in Hansard; one of the good things about Committee stage in the Lords is that it gives us a chance to hear the voices. I will consider this with my right honourable and learned friend, but I will spare the House my speaking note on Clause 4.

Clause 4 agreed.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, having inherited a number of returns from my noble friend Lord Thomas of Gresford when we were both barristers outside London many years ago, I share the memory of the effectiveness of those committees, including the gloss placed on it by the noble and learned Lord, Lord Woolf.

I would like to point out a parallel that exists today. Those of us who from time to time undertake very high-cost criminal cases have to apply for permission to the Legal Services Commission to do certain aspects of preparation. If the commission refuses permission, for example to obtain an expert witness’s report or to make photocopies of original documents—believe it or not, it can descend to that—there is a committee made up of practising lawyers who determine whether that permission should be granted, and it works very well. If the committee decides against the applicant, he or she has the opportunity to apply for permission to apply for judicial review. That involves a paper process, initially before a judge. If permission is refused, it is open to the applicant to have an application heard before the full court, but it is far from universal that that is done.

We therefore have in the existing provisions for very high-cost cases something very similar to that described by my noble friend Lord Thomas of Gresford. I suggest to the Minister that this would be a practical way of dealing with this appeal problem that would cover the concerns of the noble Lord, Lord Bach, those who have signed his amendment and those of us who have signed my noble friend’s amendment.

[Lord McNally]

My Lords, the intention of the amendment is to establish a tribunal to review determinations made by the director about whether an individual qualifies for legal aid. This is very closely related to Amendment 96, which would make it a requirement for all reviews concerning determinations by the director under Clauses 8 and 9 to be referred to an independent panel.

The amendment is unnecessary. The Bill already establishes the director in a way that maintains and protects the director’s independence of decision-making in individual cases. The director is created by statute. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying out of the director’s functions under Part 1, the Lord Chancellor cannot give directions or guidance to the director about carrying out those functions in relation to individual cases. There is already provision in the Bill for review of the director’s decisions and appeals against them. This means that there is no need for an amendment to create a separate tribunal.

Clause 11(5) provides that regulations must make provision for procedures for the review of the determinations of the director under Clauses 8 and 9 as to whether a person qualifies for civil legal aid and for the withdrawal of such determinations. There is also power in Clause 11(6) to make provision for appeals to a court, tribunal or other person against the making or withdrawal of a determination in relation to civil legal aid. The Government intend to continue with the Legal Services Commission’s existing appeal and review procedures for cases determined under Clause 8—that is, those within the general scope of the civil legal aid scheme—including the use of independent funding adjudicators. Those procedures are well established and understood, and the intention is that they will include provision for internal review of decisions by the director.

Additionally, where a client is dissatisfied with the conclusions of a review on merits grounds concerning a decision on legal representation in civil and family proceedings in scope under the Bill, the client will be able to appeal to an independent funding adjudicator. As at present, there would be no appeal against refusal on means grounds, although a client can ask for their means to be reassessed.

In reflecting the current review arrangements, there will also under Clause 9 be a right of internal review for exceptional case determinations, although independent funding adjudicators will have no role in the review of exceptional funding decisions. This is because of the particular nature of the assessment at the heart of such cases, which will focus on an interpretation of the relevant obligations under the European Convention on Human Rights to provide legal aid. Exceptional case determinations, along with all other decisions by the director, would be subject to judicial review.

This is more than adequate provision to ensure that scrutiny can be applied to the decisions of the director where an individual believes that there are grounds for review. There is also provision for making regulations about the review of and appeals against the director’s determination on criminal legal aid. I refer noble Lords to Clause 14(9)—

[Lord Carlile of Berriew]

I apologise for interrupting my noble friend, but he referred in passing to Clause 11(6). Can he explain to the Committee the difference between subsection (5), which requires provision establishing procedures for the review of determinations, and subsection (6), which provides that regulations may make provisions for appeals to a court? Why the difference between “must” and “may” in those two subsections?

[Lord McNally]

Which was the first one to which the noble Lord referred?

[Lord Carlile of Berriew]

Clause 11(5) says “must”, whereas Clause 11(6) says “may”—perhaps echoing a point made by the noble and learned Baroness, Lady Butler-Sloss, earlier.

[Lord McNally]

I will have to take advice on that, but I thank the noble Lord for drawing it to my attention. I sometimes wonder whether mays and musts are not spread through a Bill according to whether parliamentary counsel gets bored with the use of “must” and decides to put “may”, but I am sure there are far more legal reasons why those choices are made.

As I was saying, there is more than adequate provision to ensure that scrutiny can be applied to the decision of the director where an individual believes that there are grounds for review. There is also provision for making regulations about the review of and appeals against the director's determination on criminal legal aid.

Amendments 97 and 98 would change Clause 11(6), which concerns determinations of whether funding should be granted for any of the matters included in Schedule 1 or any excluded cases under Clause 9. These amendments would require regulations under Clause 11 to make provision for appeals to a court or tribunal against determinations made by the director under Clauses 8 and 9 and against the withdrawal of such determinations.

I have described the intention and effect of Clauses 11(5) and (6), as well as the intention to continue with the existing, effective processes and procedures currently used by the LSC in the new model, and I do not propose to cover the same ground here, although I take the point made by the noble Lord, Lord Carlile. However, requiring provision to be made for appeals to a court or tribunal against all determinations by the director would be expensive, resource intensive and likely to lead to delay in the hearing of appeals.

Clause 14 creates a power to make regulations that prescribe what advice and assistance must be made available if the director has determined that a person qualifies for advice and assistance. That largely reflects the provisions in Section 13 of the Access to Justice Act 1999, which requires the Legal Services Commission to fund such advice and assistance as it considers appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings is distinct from that provided under Clause 12 to individuals arrested and held in custody. The services we are talking about here would include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.

Although Clause 14 and Section 13 of the Access to Justice Act are framed differently, their overall effect is essentially the same. Clause 14 is intended to replace Section 13(1)(b) of the Access to Justice Act. The Bill confers a power to make regulations under Clause 14 for consistency with Section 13(1)(b) of the Access to Justice Act. That section provides that the Legal Services Commission's duty to provide advice and assistance to the individuals mentioned there arises only in prescribed circumstances, and “prescribed” means prescribed in regulations made by the Lord Chancellor.

The combined effect of Amendments 105 to 107 would require regulations made by the Lord Chancellor under Clause 14(1) to provide for appeals, but not reviews, to a court or tribunal in relation to the aspects of determination on legal aid set out in Clauses 14(9)(a) and (b).

Amendment 107 would preclude regulations allowing for appeals to any other person. The Government judge it more appropriate to allow the Lord Chancellor to make regulations, if he considers it appropriate, than to require him to do so. We will retain the existing arrangements whereby advice and assistance for criminal proceedings provided under Clause 14 are subject to a “sufficient benefit” test. In practice, this would be conducted on behalf of the Director of Legal Aid Casework by the litigator, who would provide the legal aid services. The LSC criminal contract provides that advice and assistance may only be provided on legal issues concerning English or Welsh law,

“and where there is sufficient benefit to the Client, having regard to the circumstances of the matter, including the personal circumstances of the Client, to justify work or further work being carried out”.

There is currently no appeal to a court or tribunal in relation to the sufficient benefit test. However, there is a right, set out in the LSC contract, for the person refused legal aid to apply to an independent funding adjudicator for a review of the decision not to grant legal aid. There are no plans to introduce appeals provisions immediately, although subsection (9) would allow for the introduction of provisions for reviews and appeals in the future if it were considered appropriate.

Procedures for review and appeal might, in any event, not be necessary or proportionate in establishing whether all criteria specified in regulations under subsection (5)(b) were met. For example, if a criterion was that the provider had to hold a contract to provide such services, then an appeal would not be necessary to establish whether a provider held a contract. The Government therefore believe that a duty to secure such arrangements is unnecessary and heavy-handed. In such circumstances, a right of appeal to a body other than a court might be more appropriate. The Government believe it is appropriate to have the flexibility to make regulations that could provide for either a review or an appeal, or a combination of both, and that a review or appeal might be made to a body other than a court or tribunal.

The noble Lords, Lord Bach and Lord Thomas, raised points concerning Article 6. It is intended that any arrangements made will comply with the ECHR.

On the rather interesting background to previous systems, it was the previous Administration that brought to an end what sounded like a nice little earner for the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Thomas and Lord Carlile.

[Lord Carlile of Berriew]

It was free.

[Lord McNally]

Free? Oh my goodness. I withdraw that remark.

[Lord Phillips of Sudbury]

My Lords, this cannot pass. It must be in Hansard that on this occasion, rare though it is, lawyers acted pro bono.

[Lord McNally]

As I say so often, I am not a lawyer—thank God.

There was a question about how the independent funding adjudicator system is working. Some 11,560 reviews were received in 2010, of which about 3,500 were subsequently appealed to an independent funding adjudicator at a cost of about £18 per case. The total cost of these appeals was just over £63,000, so it appears to be a very cost-effective scheme. I hope that the noble Lord will withdraw his amendment.

[Lord Bach]

I will withdraw the amendment, of course, but there is a real issue here which goes to the independence issue that we debated in the previous group. We argue that it is not satisfactory for there to be a system in which the LSC, as it were, comes in house and becomes an agency of government, with the old process of reviewing decisions remaining exactly the same. That is because the adjudicators, independent though they may be, are appointed by the ministry, so again there is the problem of the perception of independence. There must be a system of appeal against a legal aid decision.

I am certainly not in the mood to fall out with noble Lords opposite who believe that there is a better system than that of tribunals. They may be right or wrong, but what we agree on is much more important than what distinguishes us: namely, there must be a genuinely independent appeals procedure. Of course we do not want it to be expensive or long-winded, but there must be one in order that the perception of independence is there. I am afraid that the Government have not yet got the point that the system proposed in the Bill is not satisfactory for those who are refused legal aid and go to the adjudicator who has been appointed by the Ministry and are refused again.

For the perception of independence, it would be so much simpler and easier for there to be either a chamber of the tribunal or another totally independent body that will decide these issues. There are not that many of them each year; it would not cost the state a great deal of money. However, the principle of being able to appeal against a decision made in this case by a civil servant who has been appointed by the Lord Chancellor is very important. I beg leave to withdraw the amendment, but we may come back to this on Report. If we are coming back to the earlier independence issue, we shall have to come back to this one as well.

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, my name is on this amendment. As persuasively put by my noble friend Lord Thomas of Gresford, it seems to be an unarguable proposition. The only fiddling point I would make about calling it “collaborative law” is that it is not the law that is collaborative but the process. It might be better to call it “collaborative resolution”, but that is a detail. I hope very much that my noble friend will feel that this is an advance.

[Lord McNally]

My Lords, we are approaching the witching hour, as the opposition Whip moves stealthily to consult the government Whip. I do not want to give any clues as to whether this is going-home time, but if it is I am very grateful to my noble friend for ending our evening on a matter on which there is some hope of collaboration. I do not want to raise his expectations too much, but I agree with the noble Lord, Lord Beecham, that this concept, which is new to many of us, seems to have great potential. Again quoting from the noble Lord, it appears to be adaptable and flexible. It now has the not inconsiderable badge of approval from the noble and learned Baroness, Lady Butler-Sloss, as an admirable scheme run by an admirable organisation. Like book reviews, I am sure that Resolution will have that as a strap-line.

How does this fit in with what the Government are trying to do? In response to the points made by the noble Lords, Lord Beecham and Lord Howarth, I should say that we have never seen mediation as a cure-all. The Lord Chancellor has made it very clear that he wants to wean us away from almost automatic litigation at the taxpayers’ expense, which is one of the attractions of mediation. The collaborative law concept certainly has its attractions.

As the noble Lord, Lord Beecham, pointed out when he quoted from Resolution, the MoJ has said that the Bill as it stands does not exclude the possibility of funding collaborative law in the future. Clause 7 refers to funding,

“mediation and other forms of dispute resolution”.

The amendments are accordingly unnecessary in so far as they set out to make it possible, as opposed to requiring, for funding to be made available for collaborative law. However, given the reduction in the budget that we need to make and the additional costs of involving two lawyers, as would be required for collaborative law when compared with mediation, we cannot commit to the additional resources required to fund collaborative law at this stage. We would not, however, rule it out at some time in the future.

I should like to make one other point. The Government understand that some mediation cases are complex and need additional legal support. We will be providing further legal advice in such family cases where an agreement reached through mediation needs to be turned into a court order, with an independent fee set at this level of service at £200. This is in addition to the £150 fee for legal advice accompanying mediation as originally proposed, and taken together this means that there will be considerable scope for publicly funded legal advice to accompany mediation, especially in more complex cases.

As I have said, I cannot take out the chequebook this evening so far as collaborative law is concerned, but I assure my noble friend that by putting this on the agenda, as it were, there is no doubt that it will play a part in future. Again, as the noble Lord, Lord Beecham, has said and as I have said a number of times from this Dispatch Box, legal services are on the move and I can very well see that the concept of collaborative law or collaborative resolution, if my noble friend Lord Phillips has his way, may well play a part in the future. At this time of night, however, I ask my noble friend to withdraw his amendment.

[Lord Beecham]

My Lords, perhaps the Minister might suggest an experiment with collaborative resolution. If the Prime Minister and the Deputy Prime Minister underwent the process, it might help the noble Lord to get the resources needed to extend the principle more widely.

[Lord McNally]

That is a merry jest with which to end the evening.

[Lord Thomas of Gresford]

My Lords, I have to confess that I am disappointed with my noble friend’s response and I shall certainly return to this issue on Report. The Government have to appreciate that they are taking family law out of scope, which means that there are going to be couples who are at each other’s throats. There are various ways in which they can resolve their problems. They can say, “He hit me on one occasion. It is domestic abuse, so I want legal aid”. All the fears that have been expressed by the Government of people pushing domestic abuse up the agenda in order to get legal aid and thus making it more difficult to settle will become prevalent.

Here is a system where, on a fixed fee, issues of finance, housing and children can be settled, which is exactly what we as solicitors used to do. We would pick up the phone and talk to the opposing solicitor in order to sort things out without having to go to court. If you do not have a system like this to resolve issues, inevitably it is going to cost more. As I say, there will not necessarily be made-up allegations of abuse, but the little disputes that have occurred in a marriage may perhaps be tarted up just enough to make it possible for legal aid to be involved. You are then into an expensive system. I will therefore return to the matter on Report and I shall continue to advocate this very excellent system. I am pleased to see that the noble and learned Baroness, Lady Butler-Sloss, is involved. So far as I am concerned, the process has been given the seal of approval. For the moment, however, I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Tuesday 20th December 2011 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Beecham, for his words. We are very pleased to see the noble Lord, Lord Bach, with us. He very courteously explained to me the personal reasons why he could not be with us earlier, but it is good to see him in his place now.

The debate has taken on some of the aspects of a Second Reading debate and it is none the worse for that. The first amendment allows for such wide-ranging points to be made. I shall not try to reply to them all at this point, as we are at the very start of Committee stage. My noble and learned friend Lord Wallace and I will return to many of the issues, like medical negligence and social welfare, as the Committee stage runs forward.

I accept the point made by the noble Lord, Lord Beecham, that the official Opposition are not arguing for retaining the status quo. He and the spokesman for the Labour Party in the other place have made it clear that, if they had been in office, faced with the economic situation with which we are faced, they too would have been making cuts. The debate is about where those cuts should be made and with what impact. It is fair for him to look at the impact assessment, and the fact that it lends some ammunition to him is an assurance that it is a very fair impact assessment. The very first question I answered from this Dispatch Box about the Bill related to the fact that if you make budget cuts to a section of government expenditure that is focused mainly on the needy, it is the needy who will find the impact of those cuts. That is true of housing, social welfare, and so on, and that is the reality of a Government who have to cut back on expenditure.

I make no complaint at all about the contributions from lawyers in the debate. If we were debating a fundamental issue about medicine, I would hope that the noble Lord, Lord Winston, and other expert medics in the place would contribute; and if we were talking about defence, I would hope that our generals would contribute. I do not think that there is anything wrong with the fact that a large number of the contributors have come from the legal profession. The daunting thing for me, as a non-lawyer, is the array of talent that is on display from the legal profession. I always remind my colleagues down the corridor that, whenever I stand at this Dispatch Box, I am very conscious that somewhere in the listening audience there are about three former Lord Chancellors and half a dozen former Solicitor-Generals or Attorney-Generals. I have never quite got to grips with the number of QCs that we have in the House of Lords, but there is a goodly number. We have good legal expertise and this debate is, and the Committee stage will be, all the better for it.

It is certainly not my intention to approach this—I am trying to find that barb from my noble friend—with something like tetchy impatience. In fact, over the past few months, I have been watching my noble friend Lord Howe at the Dispatch Box. He will be my model for this Committee stage—a kind of concerned bedside manner.

However, in talking about Committee stage when I was on the Benches opposite, I was on record as saying that if the House divides in Committee, almost invariably one will have to resist. I genuinely want to use Committee stage to listen. I cannot make blanket promises and I certainly, at this stage, cannot start giving a list of concessions. The position of the Government is that the Bill has been delivered from the other place in pristine condition and ready for adoption but, as our system works, we listen to the advisory—

[Lord Beecham]

I am not so sure about adoption being that much more difficult these days.

[Lord McNally]

We will listen and we will ponder. I hope that that will be the spirit in which we conduct the debates. It is certainly not, as the noble Lord, Lord Alton, suggested, an attempt to turn the clock back. Even when this exercise is finished, no one could dispute that we will have one of the most generous legal aid schemes in the world. My right honourable friend the Lord Chancellor, in his article in the Guardian, which has been quoted a number of times, says:

“Access to justice is a fundamental part of a properly functioning democracy”.

He goes on to make the point that the noble Lord, Lord Howarth, and a number of others made: “Without legal aid, and”—I emphasise this—

“the dedicated lawyers who deliver it, our system of justice would quite simply collapse”.

That is the starting point.

[Lord Alton of Liverpool]

The noble Lord, Lord McNally, has just cited the idea that we have the most generous legal aid system anywhere in the world, which he said no one would dispute. During the debate, noble Lords have heard from the noble Lord, Lord Beecham, myself and others about what Lord Justice Jackson has said about any further cuts in legal aid. He certainly disputes it, as do surely many others.

[Lord McNally]

There is absolutely no logic in what the noble Lord has said, with the utmost possible respect—I think that is what you say to each other when you are insulting one another. Lord Justice Jackson may well have a perfectly reasonable opinion that legal aid should not be cut, but it does not follow that, if it is cut, it will not remain the most generous system in the world. There is a non sequitur in what was said. Lord Justice Jackson says that he does not want the present system cut, which is fair enough but, if the system is cut, it will remain the most generous legal aid system in the world.

[Lord Phillips of Sudbury]

Does my noble friend at least accept that we legislate vastly more than any free democracy in the western world? We have between 200 per cent and 400 per cent more statute law than any free state that I have yet discovered.

[Lord McNally]

I have no idea whatever whether that figure is correct. I am not even going to promise to write to my noble friend about that. Yes, I think both members of the coalition came into government determined to legislate less and I am sure that, if and when power changes, any new Government will come into power wanting to legislate less. However, you get into a department and find that it has two or three Bills that it has just been waiting to get on to the statute book, or some campaigning organisation, probably chaired by my noble friend Lord Phillips, has a ready-made Bill to get on to the statute book as soon as possible.

First, perhaps I can deal with the calumny from the noble Baroness, Lady Mallalieu. I am not a Home Office Minister; I am a Ministry of Justice Minister. We benefit from that subtle division of responsibilities carried out by the previous Administration, which has so benefited government. Just as my noble friend Lord Carlile emphasises the liberalism of his approach, I make no apologies for approaching these matters as a social democrat. I look at these issues through those eyes, including that raised by the noble Lord, Lord Ramsbotham. It is extremely important that in reforming our justice system, we keep rehabilitation in the forefront. It is important to make clear that we will have a vigorous system to prosecute justice and punish offenders. However, if we carry on casually allowing the upward rise of our prison population into six figures, it will be a self-defeating process. Unless we attack the rehabilitation of offenders to stop the horrendous reoffending rates, as the noble Lord, Lord Ramsbotham, has often championed, we will be doomed to be spending increasingly more on punishment in a justice system with no real help to society at large.

This has been a philosophical debate. The noble Lord, Lord Howarth, set the tone in a speech which, as my noble friend Lord Thomas of Gresford pointed out, was wonderful in its rhetoric but brought us to why there was not universal support for the Pannick amendment. It suggested that the Government might have to take some account of the resources available. The noble Lord, Lord Howarth, went back to Magna Carta, quoting Lord Bingham and others. I have beside my bed a copy of his The Rule of Law, which is a guide for any lay innocent Justice Minister. We have to accept the fact that Governments and departments have to meet budgets and that they cannot find blank cheques and never have been able to.

I went to see the noble Lord, Lord Hutchinson of Lullington, who, sadly, can no longer attend the House and has taken leave of absence. Jeremy Hutchinson is now 96, but was one of the group of lawyers who helped to bring in the 1949 Act. He said rather wistfully, “We thought that we were bringing in a National Health Service for law”. In a way, I can understand that that is a noble aspiration. However, as successive Governments have shown, it is one that must be constrained by the economic realities of the day. Therefore, we are having to make choices—and sometimes hard choices. Perhaps I may again quote my right honourable friend’s article in the Guardian:

“The logic is simple: to determine carefully which types of cases most urgently merit scarce resources, to encourage people to use non-adversarial solutions to their problems where appropriate, and to speed up and simplify court processes where they are not”.

That is the philosophy of the Bill and it is what we are attempting to do. It is unfair when people use language suggesting that we are taking an axe to a whole system of justice. I know from my contact with the Lord Chancellor that that is not his intention.

The noble Lord, Lord Hylton, asked me about our approach to non-adversarial solutions. As the Lord Chancellor indicated in the Guardian article, we are looking to increase funding for family mediation. The Government are committed to increasing it by £10 million, which would fund an extra 10,000 cases.

I hear the speeches from my own Benches and am always interested when someone like my noble friend Lord Carlile makes an intervention followed by praise for courage from around the House. I draw his attention to the line in George Bernard Shaw’s “Saint Joan”:

“Woe unto me when all men praise me!”.

Actually, I am a little bit old fashioned. I believe that the real courage is in standing up and saying, “I support the Government. I think that this is a very good Bill and I intend to vote for them tonight”.

[Lord Lester of Herne Hill]

I am sorry to interrupt and I am grateful to the Minister for giving way. I want to help the Minister, I really do. I do not yet understand whether he really disagrees with the principle stated in the amendment tabled by the noble Lord, Lord Pannick. The principle stated would replace what is in Clause 1 with what seems to me a platitude but a very important one. I do not hear the Minister say that he thinks it is not the right principle.

I suggest that this needs to be thought about right now because we had the same situation in connection with the Public Bodies Bill. In Committee on that Bill, the noble Lord, Lord Pannick, and I did a rather bold and perhaps unthinkable thing and I stood on my head about it. The noble Lord made the House divide on my amendment to write a principle at the front of that Bill. We did that at the beginning in Committee, and getting the principle in had a beneficial effect. I am not suggesting that that might be necessary now, but it would help those of us who are loyal to the Government to know whether there is a real disagreement with the statement of principle in the amendment of the noble Lord, Lord Pannick.

[Lord McNally]

If my noble friend had a fault—and, my God, that is a dangerous thing even to suggest—it is his impetuosity. I was just coming to the nub of the Pannick amendment, but thought that after a long debate it was reasonable to try to pick up at least some of the points made by noble Lords.

The amendment seeks to place a statutory duty on the Lord Chancellor to secure access within the resources made available and in accordance with the provision in Part 1: the legal services that effectively meet the needs of individuals. We accept that this proposed amendment is very similar to the duty placed on the Legal Services Commission by Section 4(1) of the Access to Justice Act 1999. We 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 this Bill, we believe that Amendment 1 is unnecessary. It is central to our proposal for reform that the reforms establish an affordable system while ensuring that no one is denied their fundamental right of access to justice. Legal aid will be a key element in ensuring access to justice in some cases, but in many cases justice can and should be afforded without the assistance of a lawyer funded by the taxpayer. Fundamental rights to access to justice are the subject of international protections such as the European Convention on Human Rights and certain enforceable EU rights, and are protected by this Bill in relation to legal aid through the areas retained in scope in Schedule 1 and through the exceptional funding provision in Clause 9.

The exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. These rights are of fundamental importance, and the Government consider that the Bill adequately protects them. However, we do not consider that any more extensive right to taxpayer assistance by way of legal aid to access to the courts should be established. In light of the way the Bill protects fundamental rights of access to justice, to the extent that the amendment seeks to introduce requirements over and above what is required by, for example, Article 6 of the European Convention on Human Rights, it is not desirable or necessary. To the extent that it would require no more than, for example, Article 6, it is also unnecessary. Clause 1 states that the Lord Chancellor must secure that legal aid is made available in accordance with Part 1 of the Bill. The Lord Chancellor has powers under Clause 2 to make arrangements to meet that duty.

Considerations about the demand for civil legal aid services have not been ignored. Under Clause 10 the Lord Chancellor will make regulations setting out criteria that the director of legal aid casework will be required to consider when making decisions. When settling the criteria, the Lord Chancellor must consider the extent to which the criteria should reflect certain factors. These include the availability of resources to provide the services and the appropriateness of applying such resources to provide the services, having regard to present and likely future demands for civil legal aid services.

In addition, the Lord Chancellor will 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 will have specific duties under the Constitutional Reform Act 2005. We have also been clear in our response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and to put in place a procurement strategy that will reflect the demands and requirements of the new legal aid market.

Having read that out, I appreciate that a large number of noble Lords will want to read Hansard, see what it says and see how it matches. It would be madness for any Minister faced with an amendment tabled by the noble Lords who tabled this amendment simply to dismiss it. I will certainly draw the attention of the Lord Chancellor to the debate.

[Lord Clinton-Davis]

So far the Minister has not mentioned the conversations that he and the Government have had with the Bar Council, the Law Society and other bodies concerned with this aspect of law. They have been critical of the Government's approach, have they not? In what way?

[Lord McNally]

At one stage I accused Peter Lodder, chairman of the Bar Council, of stalking me, so often did I see him. Of course the Bar Council, the Law Society and various other bodies, including committees of this House, will give an opinion on legislation. We are certainly in conversation on these matters. The noble Lord shakes his head, but when he was a Minister he did not say, “Come in, vested interests, tell me what you want and I will do it”. He listened to them, and where they could convince him he made changes. I assure noble Lords that my honourable and right honourable friends the Ministers in the other place and I have made ourselves constantly available to a wide range of bodies, including professional organisations, and we will continue to do so during the passage of the Bill. No organisation has a rubber stamp on the matter, but we will listen.

In philosophy and in content, this has been an extremely useful debate that I will draw to the attention of the Lord Chancellor. When it comes to the crunch, we face a division between the principled approach of the noble Lord, Lord Howarth, that access to justice means that we must pay the legal aid bill, whatever it is.

[Lord Howarth of Newport]

I referred to expenditure that was genuinely necessary to ensure that all our citizens have equal access to justice. I certainly did not endorse any inefficiencies or extravagances in the legal aid system that there might be at the moment.

[Lord McNally]

The point is that that is genuinely what we, too, are trying to do. It is a matter of judgment. In the next month or six weeks, as we take the Bill through the House, we will test those judgments in detail. I hope that in the light of my response, the noble Lord, Lord Pannick, will withdraw his amendment.

[Lord Lester of Herne Hill]

The Minister referred to Article 6 of the convention being the standard. We should bear in mind, as he said, that among the 47 states we have one of the best systems, yet by using Article 6 we are adopting a standard well below common law and anything that we in this country have enjoyed since 1949. Will he reflect on that?

[Lord McNally]

As I said, I reflect on almost anything that my friend says, and it is now in Hansard as well.

[Lord Pannick]

My Lords, this has been a lengthy debate that has touched on a large number of very important issues. In responding, perhaps I may briefly take the attention of the Committee back to what we are debating: the terms of Amendment 1. With all due respect to the Minister, I simply cannot understand his objection to the amendment. It is not a matter of legal complexity, it is not a matter of legal expertise, and it is certainly not a matter of philosophy. Surely the amendment identifies in terms that I hope are clear and uncontroversial the aims of the legal aid system in our society. It recognises that the provision of legal aid must be within available resources, so it does not cut across the Minister's understandable desire to save money. There is no question of the amendment requiring a “blank cheque”, which was his phrase in answering criticisms of the Bill. Surely a statement of constitutional principle such as this is absolutely vital at the start of a Bill of this nature.

I suggest to noble Lords that the Government's refusal, through the Minister, to recognise a simple, and I hope uncontroversial, statement of principle in Clause 1 is deeply troubling in what it tells the Committee and the world outside the House about the Government's approach to legal aid and to the more detailed provisions that we will come to debate in Committee.

--- Later in debate ---

[Lord McNally]

I thank the noble Lord, Lord Bach, for that summing up. I was well aware of his own deep concern about social welfare law and I am not surprised by the passion with which he deployed his arguments. I was interested that he talked about advice. Quite often as this Bill goes through we will move between what is advice, what is legal advice and what is taxpayer legally paid advice. It may be that some of the areas of concern are addressed by other means.

On the point made by the noble Lord, Lord Thomas of Gresford, about tribunals, I am advised that upper-tier tribunals are under a duty in accordance with the overriding objective to make sure that cases are dealt with fairly and justly. That includes,

“avoiding unnecessary formality and seeking flexibility in proceedings”,

and,

“ensuring, so far as practicable, that the parties are able to participate fully”.

I am also advised that legal aid is not available now under the current system for representation at the Upper Tribunal or on welfare benefit cases, so we are not operating from a basis on which legal aid is as generally available now, as some of the speeches might have indicated.

[Baroness Lister of Burtersett]

I might be wrong, but is it not true that legal aid is available for advice for people who attend those tribunals?

[Lord McNally]

The noble Baroness is an expert. She wrote a precursor to 1,620 pages of advice, so I will accept that. We will have plenty of opportunities for correction if either of us is wrong.

When I started as a Minister I started counting the number of times the noble Lord, Lord Newton, and I disagreed, but I have now stopped counting. Nevertheless, my love for him remains totally undiminished and I know of his own concern and expertise in this area. He mentioned the danger of a pincer movement, but a number of proposals that are currently being considered across government should make it easier for people to receive the right provision or entitlement in areas such as welfare, benefits and education. The most notable of these is the universal credit, which will help to reduce the scope of error significantly, as it makes the whole benefits system simpler and easier to understand. The Ministry of Justice is working closely with the Department for Work and Pensions as part of its wider welfare reform programme to improve the quality and effectiveness of initial decision-making in social security applications, considerations within the DWP and the system of subsequent appeals to tribunal. That is another aspect.

A number of people have asked about the impact of particular reforms. It has not always been acknowledged that other government actions might be improving the situation in some of these areas. It is always difficult to give the full impact of any particular measure. As the Lord Chancellor points out in his oft-quoted Guardian article—I did not know there were so many Guardian readers in the House—part of the aim is, to a certain extent, to change attitudes and approaches so that we do not become overly reliant on legalistic solutions. There might well be changes, both beneficial and less beneficial, in the outcomes of some of the things that are going on.

I accept the point made by the noble Baroness, Lady Lister, the noble Lord, Lord Phillips, and others that appearing before a tribunal is daunting for the lay man. The noble Baroness, Lady Lister, asked me a specific question about the cost of legal aid appeals to the Upper Tribunal on welfare benefit matters. I am advised that at the moment we spend approximately £1 million a year on legal aid for advice and representation on welfare benefit appeals to the Upper Tribunal and higher courts. I will come back to Amendment 2.

Amendment 19 deals with Clause 7, which defines what “legal services” and “civil legal services” mean for the purposes of Part 1. Clause 7 provides an overarching definition, but the specific levels of service—for example, legal help and legal representation—that will be available in any particular case will be set out in regulations made under Clause 10. This approach is based closely on the current model, where Section 4(2) of the Access to Justice Act 1999 describes the types of services that can in principle be funded, and the Legal Services Commission’s funding code criteria set out the precise levels of service that are available in any particular case.

The definition of service in Clause 7 is wide enough to cover the things that one would expect, such as advice from a high street solicitor about a case that a person wishes to bring. I can perhaps assure noble Lords that legal advice and assistance in relation to tribunals is a service that is already encompassed in the description of legal proceedings in Clause 7(1). Indeed, “legal proceedings” is defined in Clause 41 as meaning,

“proceedings before a court or tribunal”.

We rely on this for the provision of services, including advocacy, in, for example, mental health tribunals as set out in paragraph 5 of Part 1 of Schedule 1 or in paragraph 9 of Part 3 of Schedule 1. The definition of legal services in Clause 7 is therefore wide enough to include legal help and indeed advocacy in proceedings before a court or tribunal, and this amendment is unnecessary.

Amendments 2, 29 and 78 all broadly concern appeals to the Upper Tribunal and appellate courts on a point of law. Amendment 2 seeks to make legal aid available in relation to,

“appeals on any point of law in the fields of welfare benefits, employment, debt, housing, immigration, education, and asylum”,

where an individual is in dispute with the state. Amendment 29 seeks to make legal aid, including advocacy, available in social security appeals before the Upper Tribunal and appellate courts. Amendment 78 would add a new paragraph to Schedule 1 and seeks to include appeals on a point of law,

“from the Immigration and Asylum Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court”,

within the scope of legal aid.

The categories of law in question include ones such as welfare benefits where tribunals are used. Legally aided representation is not available for most tribunal hearings because tribunals are designed to be user-friendly, without the need for legal representation. Indeed, legal aid is not currently available for legal representation in point-of-law appeals on welfare benefits. Amendments 2 and 29 seek to extend legal aid even beyond its current boundaries by providing legal representation for these Upper Tribunal appeals.

The Government have considered whether funding remains justified for all appeals, regardless of the area of law in which they arise. In the Government’s view, it does not. Under the present scheme, funding is not provided for cases that are not considered a priority for the scheme, such as defamation or business cases, even where these take place in the High Court, the Court of Appeal or the Supreme Court. We consider that the ability of the client to represent their arguments and the importance and complexity of the issues will vary from case to case. The fact that a case is to be heard in a higher court or tribunal does not automatically mean that it will be particularly complex; nor will the forum in which a case is heard outweigh other considerations that determine our priorities for funding.

The noble Lord, Lord Hylton, referred to immigration. Since consultation, we have taken on board some of the concerns raised, including those raised during the passage of the Bill in another place on domestic violence and immigration cases. On the introduction of the Bill, we included in Part 1 of Schedule 1 funding for advice in asylum support cases concerning the provision of accommodation. However, our fundamental position has not changed. It is our view that most immigration cases do not require a lawyer. I should make it clear, however—because some of the points made by noble Lord, Lord Hylton, refer to asylum cases—that asylum cases will remain within scope. I can assure noble Lords that funding is being retained, including for advocacy, for a range of tribunal appeals. These include appeals to the First-tier Tribunal under the Mental Health Act 1983 and appeals to the Upper Tribunal in special educational needs cases. Here, we have focused our limited resources on the highest priority cases.

On the question of appeals to the Supreme Court, we will continue to fund appeals to the High Court, the Court of Appeal and the Supreme Court where the area of law to which the appeal relates remains in scope. Again, this will allow for our limited resources to be focused on areas of higher relative priority.

Amendment 2 appears to suggest the requirement of an equality of arms with the state in such cases. The principle of equality of arms is clearly important but is susceptible to misunderstanding. This amendment implies that justice can be done only in a particular case where both parties in proceedings have identical representation. This is not a view supported by the law, or by the experience of many litigants who currently appear before tribunals without the benefit of legally aided representation.

The important question is whether an imbalance in representation gives rise to an obvious unfairness in the proceedings. The case law on Article 6 of the ECHR sets out the circumstances in which legal aid will be required to guard against an obvious unfairness in proceedings. In determining this question, it is necessary to consider all the circumstances of the case, including the nature of the rights at stake, the complexity of the law, the capacity of the individual to represent themselves and whether there are alternative means of securing access to justice. In many cases, for example before tribunals, the procedure is relatively straightforward and there are sufficient safeguards in place to ensure that the absence of legal representation on one side does not lead to an unjust outcome.

Clause 9 provides for an exceptional funding scheme that will continue to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as the rights to legal aid that are directly enforceable under European Union law. I must emphasise that the threshold here is very high—as the name suggests, they will have to be exceptional cases. However, in cases in which Article 6 of the ECHR is engaged, the exceptional funding scheme will provide an important safety net for those in which an egregr—

[Lord Eatwell]

Egregious.

[Lord McNally]

Thank you, Cambridge. This is the value of the House of Lords—there is always an expert around to help you. Queens’ College, Cambridge, comes to my aid.

[Lord Prescott]

The noble Lord would not have made that mistake if he had not been reading it out.

[Lord McNally]

This is another moment in history. I have been heckled for mispronunciation by the noble Lord, Lord Prescott. I stand corrected. The exceptional funding scheme will provide an important safety net for cases in which an egregious inequality of arms would lead to an obvious and unlawful unfairness in proceedings.

We have had to make difficult choices about legal aid. Our reforms to the scope of the scheme are designed to refocus civil legal aid on the most serious cases in which legal advice and representation is justified. In social welfare law, education and immigration, we are reducing the availability of legal aid; but it will remain for cases with the highest priority, and we will continue to spend £50 million on social welfare law.

As I said in the other debate, I realise that noble Lords will want to study some of the things that I read out at speed while referring and cross-referring to parts of the Bill. I think my noble friend indicated that he will withdraw his amendment, and I hope he will, although I am making no promises of massive change. One of the crunch parts of this Bill as it passes through the House will be whether we rightly judged which areas we are withdrawing from the scope of legal aid. The Lord Chancellor and my colleagues in government are confident that we have made the right decisions, hard as they have been in some cases; so, as I say, I hope that the noble Lord will, at this stage, withdraw his amendment.

[Lord Thomas of Gresford]

My Lords, I thought I detected in the last few sentences the possibility of some movement in this area, but despite that the final sentence was a killer. I am very disappointed with my noble friend’s response to what I considered to be an overwhelming case. If you cannot get legal aid for the Second-tier Tribunal, the Court of Appeal and above, as of right, we really are in a very parlous position. I assure my noble friend that I shall press him on these matters in the future. I thank all noble Lords for their participation in this debate and say to your Lordships that the state in Amendment 2 is widely defined to include local authorities, government organisations and so on. That is quite well understood when we deal with the concept of equality of arms.

While I listened to my noble friend’s summing up, I was reminded of the one person I know quite well who appeared as a litigant in person in the Divisional Court and won—my noble friend Lady Walmsley. The authority concerned went to appeal, where she was represented by a leading counsel, who is now a High Court judge, and by my son, who is a Queen’s Counsel in his own right, and lost. Fortunately her costs were all paid by the authority concerned. It takes an exceptional person to be able to take a case before a judge as a litigant in person and argue it through. The Government have underestimated just how exceptional that person has to be. For the moment, and subject to what I shall say at a later date, I beg leave to withdraw this amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I support the amendment and congratulate the Government on their imaginative development in relation to this matter, but I too accept that it should be mandatory rather than discretionary. As the noble Lord, Lord Howarth of Newport, mentioned, there is the problem of the unrepresented defendant—the bane of every judge’s life, particularly, if I may say so, that of the circuit judge. Often one found in a perhaps not uncomplicated situation two unrepresented defendants. One would have to spell out to them with bullet points essentially what the civil law is. One would then have to explain that if the claimant could on a balance of probability establish the case, he or she would succeed. If not, the other side, the defendant, would triumph.

However, it is not really the unrepresented defendant, complicated though the situation is, that this matter deals with, but the person who has not made a claim at all and will possibly never make a claim. I think it must have been around 10 years ago that I saw a memorandum from the Law Society. It had conducted a comprehensive survey across the country and found that around 30 per cent of straightforward industrial claims which had every prospect of success were, for some reason or another, never pursued. That is the essential community that this piece of legislation is aimed at. Therefore I commend the Government on their imagination, but to my mind there is no earthly reason why it should not be mandatory rather than discretionary.

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

My Lords, it is warming to find a clause in the Bill that has such general approval. Amendment 3 seeks to amend Clause 1(3) to make the power of the Lord Chancellor in relation to the provision of information a duty. This amendment is not appropriate. The duties of the Lord Chancellor under this Bill relate to the provision of legal aid for those who qualify for it in accordance with Part 1. In contract, this subsection is aimed in particular at enabling the Lord Chancellor to direct those ineligible for legal aid to other sources of advice. In the future this may include the provision of referral to paid-for advice through a telephone helpline service. The Government have decided not to implement the proposal at this stage, but intend to run a pilot scheme. The intention is that any individual who is seeking legally aided services but is ineligible for legal aid advice could be signposted to other sources of advice that may be able to assist them in their problem. However, to create a duty in this regard would be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all encompassing service. In a sense, the debate has covered demands for that much broader service, but I still maintain that we cannot make this a bounden duty on the Lord Chancellor. However, it takes us in a direction that is interesting so far as this debate is concerned and, indeed, in the way our legal services are being developed.

Some of the issues raised by the noble Lord, Lord Bach, and my noble friend Lord Phillips go far beyond the responsibilities of the Ministry of Justice and of the Bill about the rights and responsibilities of the citizen in our society. However, I accept that it is sensible to address the need for a better understanding of how the justice system works and allow the citizen a more fully understood access to it.

--- Later in debate ---

[Lord McNally]

He will be very annoyed; that is what his father was called. It is one of the problems of being in the House of Lords that you remember their fathers. I am working with Francis Maude on our transparency agenda. On a number of things that have been, and will be, discussed in this Bill, some of my noble friends talk as if the legal profession was set in aspic. I suspect that we are about to see an enormous change in the legal profession. As in any sector where there is change, it is unsettling, but it could also be very enabling. I wonder whether alternative business structures, whereby accessing a lawyer might not be so formidable as calling on the high-street solicitor but a matter of going to somewhere in your local Co-op, might make a difference in terms of access.

Noble Lords underestimate just how willing people are to use the telephone and, increasingly, their e-mails and computers to get information. One has only to see the impact of eBay to appreciate how confidently people use that kind of technology for everyday use. The idea that people will get their advice via telephones and computers is not so far fetched.

The noble Lord, Lord Howarth, asked me what the department was doing. Through Directgov, the public can gain access to a range of information online about the justice system, including legal aid. The introductory page on legal aid on Directgov includes specific information about accessing the community legal advice helpline via the telephone or by completing a web-based online form to book a call back from the helpline in a language and at a time convenient to the caller. Plans are for e-mail advice and community legal advice, and the Legal Services Commission is currently working to enhance the facilities for clients to access advice electronically from the community legal advice helpline via secure e-mail. Initial access to the CLA e-mail advice service will be via the current “contact us, call me back” page on Directgov.

Online general services come in three forms: free web-page services provided by a variety of commercial and not-for-profit organisations such as National Debtline, the Adviceguide from Citizens Advice, and consumer credit counselling services.

I went to the Law Society awards ceremony earlier this year and it was interesting how many of the award-winning companies had online services. Some of them went quite a way down in terms of advice before you pressed the button to start being charged. Again, online services are an interesting development.

These online and digital resources also explain court processes and procedures and how court hearings work, which is particularly important for litigants in person. There are a number of links that demonstrate how comprehensive these resources are. They give advice on, for example, how to avoid repossession, what to do if you get into mortgage arrears and a whole variety of other services.

I am suggesting that part of what the noble Lord, Lord Bach, raised in this amendment, which I welcome because it allowed us to tease out some of these matters, is that a great part of our responsibilities under this section will be carried through by the new technologies. We believe that the public, who in other parts of our life show an amazing capacity to use these new technologies, will find them an important part of understanding and having access to our legal system.

We resist the amendment because we think that this should not be a duty, although it is certainly a direction of travel for the MoJ. We regard the creation of a duty at this stage to be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all-encompassing service. I hope that the noble Lord will accept where our intentions lie and where our direction of travel lies, and at this stage will agree to withdraw his amendment.

[Lord Bach]

I will withdraw the amendment in due course, although I must say that having had the support that I have had around the House I am sorely tempted to have our first vote on this Bill tonight. But as I think that we are probably the only part of the whole of British society that is working at the moment—they certainly are not at the other end—I will resist that very strong temptation.

I am about to find out what Section 4(2)(a) of the Access to Justice Act 1999 says. I believe that it says that the Government have to provide general information about the law—I will find out in a moment—so the praise with which the present Government have been lauded during the course of this debate for having raised this issue for the first time ever may be a little premature. At the same time, it is good to have it in the Bill, but not good to see it as a “may” rather than a “must”. I shall start by saying to the Minister that we may well come back to this on Report, on the basis of what he said.

Section 4(1) of the Access to Justice Act says, under the heading “Community Legal Service”, that the commission—which means the Legal Services Commission—shall,

“establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs”.

We met those last words earlier today, so I will not mention them again. Subsection (2) goes on:

“The descriptions of services referred to in subsection (1) are … (a) the provision of general information about the law and legal system and the availability of legal services”,

so the Government have done well to put it back into this Bill, but it is a pity that it is voluntary and not mandatory.

I would like the noble Lord to tell us, either tonight or in writing, what is in the budget for this work—what is being spent on it this year and what is planned to be spent on it next year. I hope that the answer is not “Nil”. I rather fear it might be.

[Lord McNally]

I cannot give precise figures, but I am, as I said, the Minister responsible for digital development within the system and have been witnessing a lot of work going on, concerning how to make websites understandable, accessible and people-friendly. Since we are being swamped with advice, a little bit that has come to me says that, under the Access to Justice Act 1999, the provision of information is part of civil legal aid, but we have decided to take it out of the concept of legal aid because, although it appears in Section 4(2)(a) of the 1999 Act, the Legal Services Commission did not in practice treat it as something that it would normally fund. It was put in the Act, but nothing happened, which is not unknown.

[Lord Bach]

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

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

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, I want to make one point and one point only but I hope to do so forcibly. If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted. It is a small but significant group, and it would be an irony if the most needy people in our society were the very ones who were, in effect, cut off from access to legal help when they most needed it.

I say this from a considerable amount of personal experience working for the Samaritans and for one of the London law centres, and from my life as a young solicitor in a general practice and, indeed, as the director of the first national legal telephone helpline. I emphasise to the Minister that the problem really is not at all obvious. It is a commonplace that the younger generation today is phenomenally computer literate and so on, but there is still a small group of people who are totally lacking in self-confidence and in an ability to analyse their own problems, and they are fearful of being made fools of on a telephone. I could go on describing this group. I quite accept that for the majority of people what is currently proposed is fine but, as my noble friend Lord Shipley and others have said, we must, whatever else we do, have a second route into legal help which does not cut off that most needy group.

[Lord McNally]

I thank noble Lords for their comments. A number of points have been raised. The helpline is an 0845 number. However, callers can text or call to request a call back at minimum cost, and the call back will be entirely free. There is also an online form which can be sent to the helpline at no cost. The helpline is a confidential service and the legal advice given will be protected by legal professional privilege.

I hear what my noble friend Lord Phillips says, although it is ironic that one of the experiences that he quotes is that of the Samaritans, whose service is based on the telephone. I hear that there will be this needy section of society but I suggest that the range of services mentioned by my noble friend Lord Shipley will capture these people. There are also health visitors and local councillors. If there are such people in our society and if they are disabled in this way in the broader sense of that word, they will get advice. I really think that it is taking the argument too far to say that there must be a system that can identify the individual who is so afraid of the modern world that he will not engage. No system on earth can cover that.

I am not being flippant about what we are addressing now but, when we were involved with broadcasting issues, noble Lords would make a great fuss about some mythical pensioner, who lived in the West Riding, had a nine-inch Bush television and would ask whether she would be able to get the television stations when we switched to 625 lines from 405. We can always take things to the extreme, but the people who were mentioned by my noble friend Lord Phillips and others are those who will be given other sources of advice to enable them to go through the gateway.

I will deal with the issues raised by the noble Baroness, Lady Grey-Thompson. She asked how records will be kept. Recordings and case records will be retained for six years after the contract with the provider has expired. If a caller calls on more than one occasion, the operator will hold on to the information held. She asked whether an advocate can ring on behalf of a client. All clients will be assessed on a case-by-case basis and a caller identified as being unable to give instructions, or to act on advice given, will be referred to a face-to-face advice service and there will be provision for a third party to call a gateway on a client’s behalf.

We have taken on board the issues of people with learning difficulties or mental health issues. Where a client who lacks capacity contacts the specialist telephone advice service, or the adviser believes that they may lack capacity, the advice provider will need to follow relevant professional standards. However, the specialist advice service will be able to discuss the details of the case with an authorised third party.

The noble Lord, Lord Shipley, raised the question of whether the operating service may not correctly diagnose a problem. Only where the operator service is fully satisfied that it has correctly diagnosed that a case is out of scope will they make a decision. If there is any doubt, they will refer the matter to a legally trained specialist. The noble Lord, Lord Bach, asked how people will know how to ring the helpline. We will be developing a communication strategy between now and 2013 when it will come online. That was also a question asked by the noble Baroness, Lady Grey-Thompson. That information about the line will be appropriate and specifically targeted to routes that individuals currently use to find out information.

Both the noble Lord, Lord Howarth, and the noble Baroness, Lady Grey-Thompson, asked whether helpline operators will be legally qualified. The answer is no, because they do not offer callers legal advice. They are fully trained to identify key words from a client’s description of a problem to ensure an accurate diagnosis. That means that the client can then be passed on to the appropriate legally trained adviser who is able to give advice on the relevant point of law.

The noble Lord, Lord Shipley, and the noble Baroness, Lady Grey-Thompson, asked about qualifications. Gateway operators are fully trained. Telephone advice specialists are required to have the same level of qualification as their face-to-face equivalents.

I am well aware from the debate that noble Lords have concerns about the mandatory single gateway and the Government are seeking to give assurances about those concerns. Amendment 4 relates to Clause 1 and would affect the introduction of the mandatory single gateway as set out in the Government’s consultation response on legal aid reform. It is essential that the Government should seek to provide legal aid services in a cost-effective manner that meets the needs of their clients. However, this amendment seeks to fetter the Government’s flexibility to do so by placing the specific duty on the Lord Chancellor under Clause 1 that for those people eligible for legal aid, those legal aid services must be available in a range of forms and that this must include face-to-face advice. This would preclude the possibility of providing, subject to exceptions, legal aid services in certain areas of law only through specialist telephone advice services. This amendment would also conflict with the provisions in Clause 26(1) and (2), which provide that the Lord Chancellor’s duty at Clause 1 does not, where an individual qualifies for legal aid, include a duty to secure that services are made available by the means selected by the individual. The Lord Chancellor may discharge that duty by arranging for services to be provided by telephone or by other electronic means.

The Government explained in their consultation response their intention to implement a mandatory single gateway, based on the community legal advice helpline, initially in a restricted number of areas of law. Clients in these areas would generally be required to apply for legal aid over the telephone or other electronic means, and would then, if they qualify for legal aid, be offered legal aid advice only over the telephone or other electronic means. The areas of law concerned are debt, in so far it remains in scope; community care; discrimination—in other words, claims relating to a contravention of the Equality Act 2010—and special educational needs. There would be an exception to using the mandatory single gateway to the four areas of law covered by the gateway. These would be emergency cases; instances where the client had previously been assessed by the mandatory single gateway as requiring advice face-to-face within the last 12 months and is seeking further help to resolve link problems from the same face-to-face provider; and clients who are in detention, including prison, a detention centre or a secure hospital, and children, defined as those under the age of 18.

In the legal aid consultation response, we also explained that where clients access the community legal advice helplines through the mandatory single gateway in those four areas of law, we expect that those who qualify for legal aid would normally be transferred to the community legal advice specialist telephone adviser. However, both gateway call operators and specialist advisers will assess the specific needs of all callers on a case-by-case basis. This assessment will be based on the personal circumstances of the client and the nature of the issue about which they are seeking legal assistance. Generally speaking, the key consideration is whether the individual client or someone on their behalf will be able to give instructions and act on the advice given. But where it becomes clear that legal representation will be necessary, clients will be given the option to see a face-to-face provider.

Where it is determined that face-to-face advice will be more appropriate for the caller, they will, where possible, be given a choice of face-to-face advice provider either from a list of suitable advice providers or a specific suitable provider known to the client. The Government do not believe that there will be any significant delay to an individual receiving the help they need or any increased bureaucracy caused by the introduction of a gateway. In some cases—for example, where a client does not know which provider will be able to help—we believe that telephone advice is likely to be quicker even where a referral is to a face-to-face provider. The Government believe that the diagnostic and routing service offered by the gateway will be of value to many.

Amendments 114 and 116 would require that where legal aid services are provided by telephone or other electronic means, those services should be provided solely by a not-for-profit sector. I recognise and value the important role that not-for-profit organisations play in delivering advice at the local level. I also recognise the concerns of many noble Lords about not-for-profit organisations and the future provision of advice services. However, seeking to create a type of monopoly for not-for-profit organisations is not the way to address this.

As noble Lords will be aware, it would not be possible for the Government to commit to awarding contracts for telephone services solely to a specific sector, as any services commissioned by public bodies are subject to EU procurement rules. However, not-for-profit and charitable organisations can and already do bid for contracts to provide specialist telephone advice under the existing community legal advice helpline. At present, six of the 15 contracts for specialist telephone advice through the helpline are held by not-for-profit or charitable organisations. Future contracts will continue to provide opportunities for such organisations to bid to deliver specialist telephone advice services through the helpline and the telephone gateway. Of course, such organisations are also able to bid for the telephone operator contract for the helpline. The amendments would also mean that the criminal legal aid telephone advice service, CDS Direct, could be provided only by the not-for-profit sector. Not-for-profit organisations do not currently provide telephone criminal legal aid advice and I am not aware that they wish, or are currently equipped, to do so.

Related to general concerns about the future provision of face-to-face advice services is the decision to limit the initial scope of the telephone gateway to four areas of law, which will have a more limited impact when compared with the original proposal set out in the consultation paper. The Government are confident that implementing the telephone gateway in limited areas of law will enable better monitoring of the impact on clients and providers in order to inform future decisions about any further expansion of the gateway.

On future civil legal aid advice provision more generally, the Government are committed to ensuring that people continue to have access to good-quality, free advice in their communities. This is why the Government have launched the advice services fund and a review of free advice services. They have set aside £20 million—I say to the noble Lord, Lord Beecham, that it is the same £20 million; I am not announcing yet another £20 million—to support the not-for-profit sector in the short term. The fund will provide immediate support to not-for-profit advice service providers in England to deliver essential debt, welfare benefit, employment and housing advice services. The details of the fund were announced on 21 November by my honourable friend Nick Hurd MP, the Minister for Civil Society.

--- Later in debate ---

[Lord McNally]

I will write to the noble Lord to clarify that. If there is a problem of cost, a person will be able to make a short call or send an e-mail asking for a call back. I will have to seek advice on whether the 0845 number is a free number.

[Lord Bach]

I am not concerned about that tonight, but the position is not clear yet and we need to be clear. The real problem is the mandatory nature of this provision, which is what worries us. It is not the fact that there will be telephone advice. Such advice is excellent. When the Minister gently chides some of his noble friends for taking the argument too far, surely the Government are taking it too far by insisting on a mandatory gateway. Flexibility is everything in something like that.

The Minister almost gave the game away when he said that someone who was unable to make a telephone call would somehow get advice from someone. No, they will not necessarily. Perhaps they will but they may not. Nor will they get legal advice, which they probably need, from anyone. The Government cannot be as vague about it as they currently appear to be.

What worries us is that the present system does not work badly. I wish to refer to two points made in the debate. The noble Baroness, Lady Prashar, said that these not-for-profit organisations and solicitors are embedded in the community. They are part of our way of life. The noble Lord, Lord Shipley, has a great deal of experience and knowledge in this field. He talked about the right advice from the right place. That is the British way of doing this and it is a system that works pretty well. There is flexibility and various ways in which a person can get advice. It is not that a person has a choice between all sorts of ways of getting advice—the best way for them will be obvious. But to restrict it to a mandatory gateway sounds almost too dirigiste for this country. We should be much more flexible, which is much more in our political tradition. What makes it even better is that it works. The great danger is that in their attempt to change everything, the Government will change this for much the worse. Of course, tonight I will withdraw the amendment but the noble Lord knows that we will certainly return to this issue.

Political Party Funding

Lord McNally Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Tyler]

To ask Her Majesty’s Government when they will respond to the report of the Committee on Standards in Public Life on party funding.

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

My Lords, the Government are grateful to the committee for its report and will consider its recommendations before providing a formal response. The Deputy Prime Minister set out the Government’s proposed approach to party funding reform in his Written Ministerial Statement of 23 November.

[Lord Tyler]

Can my noble friend give us an assurance that unlike under the previous Administration, the most reluctant and recalcitrant participants in this process will not be allowed to delay everything, and will not be given a complete veto on progress? In particular, may I suggest that we should start with immediate action to stop the arms race in expenditure, both at the constituency level—targeting constituencies as well as national constituencies—and before, as well as during, campaigns? This could achieve some cross-party agreement, and of course would be very popular with the long-suffering public.

[Lord McNally]

My Lords, I welcome those suggestions from my noble friend, which I will pass on to the Deputy Prime Minister. In his Statement that I referred to, he said:

“The Government believe that the case cannot be made for greater state funding of political parties at a time when budgets are being squeezed and economic recovery remains the highest priority. But there is a case for looking carefully at whether existing levels of support could be used more effectively”.—[Official Report, Commons, 23/11/11; col. 25WS.]

I would have thought that some of the suggestions that my noble friend made could be brought into that general consultation with all political parties.

[Lord Maclennan of Rogart]

My Lords, will my noble friend indicate whether the advice that has been given will be followed in time to influence elections that are going to be pending quite soon? In particular, having borne in mind that the Government have been speedy in altering the structure of constituencies, will they also take into account the importance of fair dos in spending to affect these forthcoming elections?

[Lord McNally]

My Lords, even this report recommends that nothing that it suggests should come in before 2015, but the Deputy Prime Minister has indicated that all political parties are welcome to have broad discussions with him, and these matters could form part of those discussions.

[Lord Grocott]

My Lords, I feel a little light-headed because I think I may agree with the noble Lord, Lord Tyler. Obviously, to make elections fairer it is not just a question of where competing candidates and parties raise their money from, it is also how much they spend. This has long been acknowledged at the level of constituency party campaigning. Surely, whatever else we may disagree on, none of us would want elections to take the form, in terms of expenditure, that is the case in the United States, where the most obscene levels of expenditure are required even to begin to get off the ground. Can the Government focus their attention on looking at the ways in which total expenditure can be minimised, particularly at a national level? At least we could make some progress on that, even if the other side of the equation is more difficult.

[Lord McNally]

My Lords, not only do I feel light-headed, I think I am going to swoon away: I think I agree with the noble Lord, Lord Grocott. Yes, I fully agree with him. As the Deputy Prime Minister has rightly said, this is obviously not the time to try the fundamental reforms that this report, and indeed the Hayden Phillips report before it, recommended. However, there is an opportunity to engage in discussions to see if we can do things within current frameworks to address some of the issues he raised. That would be a very fruitful use of time in this Parliament.

[Lord Tebbit]

My Lords, while I too agree with a good deal of what has been said, does my noble friend not agree that it would be very dangerous if we were to set maximum levels of expenditure for the parties which were convenient for a party which could attract less than 10 per cent of the electorate, as opposed to major parties which attract somewhere around 40 per cent of the electorate? Perhaps it was a little dangerous for my right honourable friend the Prime Minister to leave this matter in the care of his deputy, who does not seem quite to be on song with the rest of the Government.

[Lord McNally]

For a party that has pretty consistently polled over 20 per cent of the vote in recent general elections, there is certainly no self-interest about the 10 per cent figure. Indeed, we should all wait for the next election, which as we all know, usefully, is in 2015. Four years is a long time in politics.

[Baroness Hayter of Kentish Town]

Given that we are all in agreement, maybe I should say that I agree with Nick.

Given that the Liberal Democrat manifesto promised to get big money out of politics by capping donations at £10,000, would not the best way of ending the big donor culture perhaps be for the Minister’s party to return Michael Brown’s money—money that was not his to give and should never have been accepted?

--- Later in debate ---

[Lord McNally]

That was a good growl of approval. It is not for me, as a member of the party of Lloyd George, to lecture anybody on party political funding. However, I have been pressing for party political funding reform all my political life, and I can assure the noble Baroness that this affects all parties. The problem about this culture of forcing our parties to raise big money from big donors, as I have said many times from those Benches and I say now from this Bench, is that the regime is corrupting of our political system, and the sooner we can get rid of it the better.

Justice: Pre-trial Publicity

Lord McNally Excerpts

Wednesday 14th December 2011 Lords Chamber

[Baroness Quin]

To ask Her Majesty’s Government whether they are considering legislation to strengthen measures against pre-trial publicity which may prejudice a fair trial or undermine the principle of the presumption of innocence.

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

My Lords, there are no current plans to legislate. The Government referred the subject to the Law Commission in the summer and we will study with interest its conclusions in due course.

[Baroness Quin]

My Lords, this Question was prompted by the case of Mr Jefferies in particular. He recently gave evidence to the Leveson inquiry and described how, although innocent of any crime, he was vilified in the press to such an extent that he was in fear of his life. Any of us as citizens could imagine ourselves being caught in such circumstances simply by being linked through coincidence or circumstance to a crime. Although I welcome the fact that the Attorney-General has shown himself willing to prosecute in such cases, will the Government none the less look at amending, for example, the Contempt of Court Act so that action can be taken at an earlier stage rather than when havoc has already been wrought on innocent victims’ lives?

[Noble Lords]

Hear, hear!

[Lord McNally]

My Lords, I think that the response to the noble Baroness’s question reflects concern in all parts of the House about this matter. There are a number of problems with the operation of the contempt laws which are set out in detail in the Law Commission’s Eleventh Programme. Since 1981, when the Contempt of Court Act was enacted, the world of publishing has evolved considerably in terms of technology and the structure of the media, and the internet is now a significant influence in this area. That is why we have referred the matter to the Law Commission. In no sense should this be taken as our kicking it into the long grass or as the Attorney-General not appreciating the real public concern about these matters.

[Lord Thomas of Gresford]

My Lords, some in the press take a gamble with pre-trial publicity that the suspect will be charged and convicted, after which there will, of course, be no proceedings. In the McCann and Jefferies cases, they then became completely contrite and settled the claims without any question. Should they not lose a day’s edition as a result of circumstances as bad as that? Can we not have measures that will really bite on the press when it goes astray?

[Lord McNally]

My Lords, my noble friend’s idea is an interesting one. I understand—just a thought—that an editor has not been sent to prison for contempt since 1948. The Attorney-General, who has been alive to this matter, said in a lecture at City University on 1 December that, in his opinion, the press has been pushing at the boundaries and in a sense has subtly been seeking guidance on what is acceptable. I hope that the Attorney-General’s action has given it suitable guidance that we take this matter very seriously.

[Lord Morris of Aberavon]

My Lords, while I am confident that the Attorney-General will keep a watchful eye on this issue and commence proceedings, as he has indicated, where necessary—as I had to do two or three times—I also wonder whether standards have deteriorated. Have there been discussions—should there be discussions—with the press generally to try to avoid prejudice long before contempt proceedings have to be contemplated?

[Lord McNally]

My Lords, I agree with the noble and learned former Attorney-General. At the City University lecture to which I referred, the Attorney-General said that it appeared to him that,

“the press had lost any sense of internal constraint and felt able, indeed entitled, to print what they wished, shielded by the right of ‘freedom of expression’ without any of the concomitant responsibilities”.

We are indeed making it clear to newspapers that the law exists in this area. As he has already demonstrated, the Attorney-General is willing to follow the example of his predecessor and take action under that law.

[Lord Cormack]

My Lords, it is not only the press which is to blame here; the police made no secret of the fact that they had arrested Mr Jefferies on suspicion of murder. Should there not be a prohibition on the police announcing that sort of arrest until someone is actually charged with an offence?

[Lord McNally]

Again, that is very sensible. One of the things that has come out of recent revelations is a perhaps unhealthy linkage between the press and the police in high-profile cases. The police themselves should be very concerned to observe all proprieties when dealing with such serious matters.

[Lord Pannick]

Will the Minister bear in mind that the Contempt of Court Act 1981 liberalised the law precisely because the previous law restricted newspapers from publicising matters of public interest, in particular scandals such as the thalidomide affair?

[Lord McNally]

My Lords, we are aware of that, and we are very concerned to make sure that we get the balance right. However, where the press’s desire to sensationalise actually jeopardises a case, either by prejudicing the case against an innocent man or, almost as bad, so prejudicing a case that someone who is guilty has to be released, it cannot be in the interests of justice.

[Lord Richard]

My Lords, the noble Lord has told us what the Government intend to do and I think that they are wise to involve the Law Commission in this matter. However, he will know, as we all do, that Parliament’s record in implementing the Law Commission’s reports is not exactly very good—it is not a speedy process. Will the noble Lord note, certainly from the mood of the House this afternoon, that if the Law Commission reports on this, the feeling would be that it is not a report that can hang around for two, three or four years before Parliament looks at it? The matter will need some urgency once they have had a look at it.

[Lord McNally]

I thank the noble Lord for his comments. I am the Minister responsible for liaison with the Law Commission. One of the things I said to Mr Justice Munby, the retiring head of the Law Commission, is that during my stewardship I would hope that we could remedy some of the faults that he indicated and that, certainly on this point, we would approach any Law Commission report with a due sense of urgency.

[Baroness O'Neill of Bengarve]

Does the Minister agree that one of the problems is that the media have confused their right of freedom of expression, which in the European convention contains many legitimate restrictions, with the rights of self-expression which we may accord to individuals without damage to others?

[Lord McNally]

I agree, but also the law is very clear. I tend to agree with the Attorney-General that the media have been pushing the envelope of the law to an extreme. That is why he is taking action.

Prisons: HM Young Offender Institution Feltham

Lord McNally Excerpts

Monday 5th December 2011 Lords Chamber

[Lord Ramsbotham]

To ask Her Majesty’s Government what action they are taking to prevent prisoner escort vans delivering young offenders to Her Majesty’s Young Offender Institution Feltham after the contracted time of 7.30 pm.

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

My Lords, the safe delivery of vulnerable young people is a priority, and we scrutinise contract reasons for any late arrivals. We monitor the contractors’ performance continuously and are working closely with them to address any concerns regarding late arrivals to Her Majesty’s Prison Feltham.

[Lord Ramsbotham]

My Lords, I thank the Minister for that reply. This is not a new problem, although this present contractor started work only at the end of August. Over 10 years ago, when I went into the same problem, I discovered the reason was that, in order to save money, the contractor was using the drivers as court orderlies, and therefore they could not start delivering prisoners until after the courts had closed. This is actually a foul and was leading to considerable trouble. Can the Minister tell the House whether this practice is still going on and, if so, whether steps will be taken to stop it?

[Lord McNally]

My Lords, I am not aware that that practice is still going on. However, I shall investigate the matter and write to the noble Lord. It is true that some late arrivals are due to the fact that courts can sit until eight o’clock and travel time often depends on the traffic. Between the end of a case and departure from the court, post-court reports have to be prepared at the sentencing court by the YOT concerned and this can also cause some delay. However, with regard to the point that the noble Lord raises, I shall simply have to investigate.

[Baroness Sharples]

Can my noble friend tell us the name of the contractor?

[Lord McNally]

I can indeed. Serco and Wincanton are the contractors.

[Lord Dholakia]

My Lords, the criminal justice system treats young offenders differently from adult offenders, yet the latest available figures show that there have been just over 2,800 cases where young offenders have had to share transport with adult offenders. Will the Minister ensure that this practice is stopped now that the new contracts are being awarded, and should that not form part of the contractual obligation with the firms being awarded these contracts?

[Lord McNally]

My Lords, we have to accept the certain realism that occasionally there will be dual use of vehicles. However, that is not something that we want and, indeed, as part of the new contract the contractors are bringing in specially designed hybrid vehicles with sliding partitions to separate prisoners of different age groups and different sexes. This will, we hope, allow the contractors to maximise the use of the vehicle fleet and to reduce costs.

[Lord Boswell of Aynho]

Given my own experience as a constituency MP for a different young offenders institution, will the noble Lord accept that this is by no means a local problem? It seems to have been going on for a very long time. Will he look in particular at the human side of this, because often these are young people, many of whom have just been sentenced for the first time? Will he recognise that if they arrive late, the hour is bound to be late; they are probably extremely tired; they might not have been fed and they might even be frightened? Is it not important that we address this?

[Lord McNally]

Most certainly, and one policy in place is that if a young offender arrives late and there is no opportunity to complete the full assessment that evening, the young offender is classified as a vulnerable prisoner and is treated with suitable support. In the circumstances, that underlines the duty of care with which we approach this matter.

[Lord Bach]

My Lords, this is a Question about youth justice and I broaden it slightly. The Minister will know that the Government’s own impact assessment for the legal aid Bill, which is before this House at the moment, states that the proposals in Part 1 of the Bill—that is, the cutting of legal laid for social welfare law—generate a risk of increased criminality. It states:

“This may arise if unresolved civil or family disputes escalate, or if criminal means are used to resolve disputes in future”.

What is the Government’s estimate of the number of young people likely to be affected by these changes—specifically the likely number of young offenders—and how does that fit in with the Government’s policy of reducing youth crime?

[Lord McNally]

My Lords, we will have a very thorough opportunity to discuss the Legal Aid, Sentencing and Punishment of Offenders Bill. Impact assessments are what they are—assessments. It may be that some of the concerns do not arise; other factors may come into play. Therefore, I do not think it is realistic for me to give an answer to that speculative question.

Community Justice Centre: North Liverpool

Lord McNally Excerpts

Wednesday 30th November 2011 Lords Chamber

[Lord Storey]

To ask Her Majesty’s Government to what extent the North Liverpool Community Justice Centre has met its intended objectives, what plans they have for this centre, and what improvements they would envisage to this model if it were to be further replicated.

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

My Lords, we are evaluating the impact of the centre on reoffending, and on the efficiency of court processes and use of resources. The result will be published by the Ministry of Justice. The centre is continuing to operate and we continue to share its learning across the criminal justice system and court estate.

[Lord Storey]

I am grateful for my noble friend’s reply. He will know that there is little real hard evidence of this pioneering community court’s work, particularly its involvement in the community itself. What criteria will be used and will those criteria involve the community court itself?

[Lord McNally]

My Lords, the inquiry is looking at the impact on reoffending and the efficiency of process. Its findings are not yet available for release because that work is not yet completed, but I would find it inconceivable that the court itself and those who work in it had not fed into that inquiry.

[The Lord Bishop of Liverpool]

My Lords, could the Minister could tell the House whether the Ministry of Justice has done an assessment of areas of deprivation in other cities where a community justice centre would be appropriate?

[Lord McNally]

No, my Lords, we will look at the impact of this centre before we would contemplate doing this in any other cities, but I take the point made by the right reverend Prelate the Lord Bishop of Liverpool that this is operating in an area of very high deprivation, which I hope will be part of the assessment which the inquiry is making, taking note that it is in a particular area.

[Lord Bach]

My Lords, in answering a question by the right reverend Prelate on 21 June, the Minister told the House that the evaluation that the Ministry of Justice, I think, is doing internally, would be completed later in the summer. We have had very clement weather for the last few months, but no one could say that it was still summer. Has the evaluation been completed yet? If it has not, when will it be completed, and will the results be published?

[Lord McNally]

My Lords, it is always dangerous to give even vague dates, like “summer”, in making commitments. The study is still going on. I am confident of the integrity of the research, which is being carried out by Ministry of Justice analysts under the Government social research code. The research will be published by the Ministry of Justice. I think the safest commitment I could make now would be “as soon as possible”

[Lord Alton of Liverpool]

My Lords, before that research is published, will the noble Lord be wary of comparing oranges with apples? What this North Liverpool Community Justice Centre does is very different from other existing systems elsewhere in the country. This is a pioneering scheme. It was introduced on the advice of my noble and learned friend, Lord Woolf, and was opened by the noble and learned Baroness, Lady Scotland. Will the noble Lord ensure that their advice is taken into account and that a genuinely independent assessment is made, and that it will be not be abandoned simply for cost-cutting reasons, which may appear prudent at the time, but in the long term might not save anything at all?

[Lord McNally]

I hear the “hear, hears”, but of course cost does have to come into all these things. I do genuinely believe that this is being looked at. It is a freestanding experiment, as the noble Lord said, based upon the Red Hook Community Justice Center in New York. The truth is that we are looking at various experiments across the piece, some of which were started by the previous Administration, to find out about the effective administration of justice. I can promise that we are looking for legislative time for a justice reform Bill and that we are also looking at justice delivery in the north-west. The inquiry that the noble Lord, Lord Storey, asked about will be seen as a freestanding contribution without prejudice to the decisions that we have to make in that area.

[Lord Greaves]

My Lords, this is a unique and very innovative scheme. Can my noble friend, who has given quite positive answers so far, tell us whether the valuation is basically a statistical evaluation based upon reoffending rates, the cost per case and so on, or will the evaluation also involve discussions and interviews with offenders who have gone through the system and hopefully benefited from it, and with other people living in the community who have been affected by it?

[Lord McNally]

I would hope that it is the kind of more holistic inquiry that my noble friend suggests. That is what we are trying to do, obviously within budgetary constraints. We are examining various ideas and experiments in the United Kingdom, the United States and around the world, to see how best practice and best efficiency can be achieved. That is what we hope will be the outcome of this inquiry and future development of policy.

[Baroness Scotland of Asthal]

My Lords, I wonder whether the noble Lord will be able to tell us whether the learning from the North Liverpool Community Justice Centre that was spread to places like Salford has been and is going to be continued.

--- Later in debate ---

[Lord McNally]

As I understand it, it is continued. As I said in my opening remarks, it is spread across the estate and will continue to do so. I had better not say that it will continue as long as the centre is open, because then you will think of something dubious about that, but it will continue to be spread across the estate.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Wednesday 30th November 2011 Lords Chamber

Moved By

[Lord McNally]

That it be an instruction to the Committee of the Whole House to which the Legal Aid, Sentencing and Punishment of Offenders Bill has been committed that they consider the bill in the following order:

Clauses 1 to 8, Schedule 1, Clauses 9 to 23, Schedule 2, Clauses 24 to 30, Schedule 3, Clauses 31 to 37, Schedule 4, Clause 38, Schedule 5, Clause 39, Schedule 6, Clauses 40 to 59, Schedules 7 and 8, Clauses 60 to 64, Schedule 9, Clauses 65 to 82, Schedule 10, Clause 83, Schedule 11, Clauses 84 to 98, Schedule 12, Clauses 99 to 102, Schedule 13, Clause 103, Schedule 14, Clauses 104 to 111, Schedule 15, Clauses 112 to 114, Schedules 16 and 17, Clause 115, Schedule 18, Clause 116, Schedule 19, Clauses 117 to 121, Schedule 20, Clauses 122 to 124, Schedule 21, Clauses 125 to 128, Schedule 22, Clause 129, Schedule 23, Clauses 130 to 137.

Motion agreed.

Business of the House

Lord McNally Excerpts

Thursday 24th November 2011 Lords Chamber

[Lord McNally]

That the debates on the Motions in the names of Lord Sugar and Baroness Pitkeathley set down for today shall each be limited to 2½ hours.

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

My Lords, I beg to move the Motion standing in the name of my noble friend Lord Strathclyde on the Order Paper.

[Lord Barnett]

While the noble Lord is on his feet, I wonder if he could reply to a business question. On 8 November the Leader of the House, the noble Lord, Lord Strathclyde, promised a debate on Europe. When will it take place?

[Lord McNally]

I am reliably advised that the debate is included in the forthcoming business and will be held on 1 December.

[Lord Cormack]

My Lords, will the debate be held on the Floor of the House or in the Moses Room? Most of us feel that it should be on the former.

[Lord McNally]

By agreement with the usual channels, it will be held in the Moses Room.

Motion agreed.