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To a certain extent the same has to be said for the amendment so comprehensively moved by the noble and learned Lord, Lord Lloyd. His suggestion relies on Lord Justice Jackson, but only to a certain extent, because Lord Justice Jackson is very clear that there should be no reduction in the scope for clinical negligence. He was not suggesting a halfway house. Again, a halfway house would be better than nothing, but it certainly cannot be said that Lord Justice Jackson would be content with that.
In moving his amendment, the noble and learned Lord also seemed to suggest that the extension of legal aid for the purpose of obtaining medical reports covered the obtaining of legal advice. It does not appear to do so. Without the advice one wonders how far the matter could be taken. He also claimed that the effect of his amendment would be to save the Government money-I think he said £18 million against a cost of £6 million-on the basis that legal aid would be available for expert evidence. By that logic, presumably if legal aid were fully available, even more money would be saved by the Government, which is, of course, essentially the position of the NHSLA. So we come back to the position where it makes economic and financial sense, as well as moral and social sense, to make sure that legal aid for clinical negligence is back in scope, full stop, particularly, if the noble and learned Lord's financial arguments are correct, as there would not be a net cost to the Exchequer.
In any event, these are serious issues. The notion that legal aid is to be denied to any vulnerable group of people is one which has to be weighed extremely carefully. There would, I think, be complete public support for the retention of legal aid for clinical negligence, not least because, as some in the profession and the NHSLA itself have indicated, it is a kind of discipline. It is an additional incentive for the better management of care and for greater attention to be paid to the risks that occur, bearing in mind the point that the noble Lord, Lord Thomas, rightly made that the state of medical knowledge changes and what is eventually learnt to be good practice is not necessarily immediately obvious at an earlier stage.
If ever there was a case in which the pressure of the potential litigation should serve the public good, it might be thought to be in these cases. As we have already heard, a reasonably high percentage of the population suffer to some degree from negligence and it would be wrong in that context to dismantle the machinery which affords them access to justice. I would hope-and others have also expressed this hope-that the noble and learned Lord, in replying
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The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I join the noble Lord, Lord Beecham, in congratulating those who have taken part in what has been a very serious debate. The Committee has benefited from experience: the experience of those who have practised law in this sphere; the personal experience of my noble friend Lady Eaton and the noble Lord, Lord Howarth of Newport; and the experience of those who had formerly been Members in another place-my noble friend Lord Carlile of Berriew and the noble Lord, Lord Wigley, have had to deal with issues such as this in the course of their constituency work.
A number of your Lordships asked that Ministers would listen. In a debate of this profundity it is only appropriate that we should reflect on the many contributions that have been made, contributions which carry forward a number of the concerns that were expressed at Second Reading. As well as compensation, clinical negligence also raises the point which was reflected on by the noble Lord, Lord Clinton-Davis: the importance of standards for those who provide medical treatment. Related to that, the Department of Health is currently consulting on our duty of candour proposals, with the intention of implementing these through contractual changes. These proposals will make sure that providers of NHS care are more open with patients about harmful adverse effects. We would expect the duty of candour to apply to NHS patients treated, typically, in hospitals, where at least moderate harm results. The proposals specify that,
We would expect that claimants' solicitors could use a duty of candour when investigating potential claims. This might act as a lever to identify when NHS providers are non-compliant. Providers could also use these requests as an indicator for a potential claim being made, prompting early action to resolve the matter before claims are made. Overall, we believe this should facilitate access to justice and help speed up settlements. There is a general acceptance that the way in which the NHS handles claims has improved significantly over recent years, but, as I have indicated, it is important that we continue to ensure that we have the highest standards and the best practice in dealing with incidents such as these when they occur.
The amendments which have been spoken to have as their common theme the extension, in one way or another, of legal aid in cases involving clinical negligence. We recognise that many of these cases raise serious
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My noble friend Lord Faulks also indicated that the Government had sought to engage constructively to address these issues, although he expressed very serious concerns and reservations about the different proposals that have been brought forward to try to address them. I will try to deal with these in the course of my reply. He indicated, for example, some scepticism as to whether the conditional fee agreement could replace legal aid. Figures from the NHS Litigation Authority show that in 2010-11 approximately 82 per cent of clinical negligence cases where the funding method was known were funded by means other than legal aid, such as conditional fee agreements, "before the event" insurance, legal expenses insurance and private funding. We considered the fact that there are viable alternatives to legal aid in this area when coming to the view that legal aid would not be justified in these cases and that-as has been a frequent refrain in these debates-limited funding should be targeted in other areas.
Given the way in which the debate was opened by the noble and learned Lord, Lord Lloyd of Berwick, it is probably appropriate if at the end I return to some of the specific and important points he made. Amendment 30A would enable the claimant to seek advice from an independent medical expert on the merits of their clinical negligence claim. It also provides for the appointment by the NHSLA of a single expert medical witness from a list maintained by the NHSLA and the AvMA. The noble Lord, Lord Howarth of Newport, expressed some concern that we have not always been able to coalesce around a single expert. My noble friend Lord Phillips spoke to this. The amendment itself would not establish the list from which an independent medical expert can be drawn; nor would it compel the NHSLA to participate in formulating a list. It would simply extend legal aid to cover the instructing of an expert on such a list, were it to be created.
In the example that he gave, my noble friend Lord Phillips referred to damages of around £4,500 or £5,000 and costs of £90,000. If ever there was a case for reform generally, I think he made it. We have certainly conducted a public consultation this year on how lower-value cases, such as the one he referred to, should be dealt with more efficiently in the county courts. Officials in the Ministry of Justice are working closely with the NHSLA in considering whether a
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The other issue that is perhaps related to this was raised by the noble Baroness, Lady Finlay, the noble Lord, Lord Howarth, and my noble friend Lord Thomas. They expressed concerns about whether the abolition of legal aid might drive down the quality of the solicitors and firms that deal with these very sensitive cases. We are certainly aware of concerns that the removal of legal aid will lead to a drop in the quality of work done on clinical negligence cases because the contractual controls imposed under legal aid rules will no longer be there. It is important to remind the Committee that legal aid funds only 18 per cent of these claims. Therefore, there is already extensive expertise in this area in the CFA sector. Indeed, many of these are the same firms, which conduct cases under the CFA or legal aid as suits them best.
An important issue has been raised by several of those who have contributed to the debate about the commissioning of reports, particularly joint expert reports. The Government are very sympathetic to how this can be improved. We are working closely with the NHSLA and other stakeholders to discuss how joint expert reports can be commissioned wherever it is possible. This would involve the NHSLA commissioning and sharing expert reports on liability at an early stage. The point about these being shared with claimants at an early stage was made by a number of your Lordships. This could in turn help to encourage the early notification of claims.
I certainly consider that the key concern in both of the amendments to which I have referred is the absence of expert reports, making it difficult to establish whether a clinical negligence claim has merit. We recognise these concerns and those about how claims will be financed in the absence of legal aid.
My noble friend Lord Faulks described the Government's response but one of the other things that we have done relates to after-the-event insurance. This is usually taken out by claimants in conjunction with a conditional fee agreement and covers a party against liabilities that they will incur if a case is lost. This insurance includes protection against any liability to the other party under an adverse costs order and provides for an up-front payment of the claimant's own disbursements, such as medical expert fees. At present, where a claimant wins, their ATE insurance premiums are recoverable from the losing party and, in practice, are not paid up-front by the claimant. Under our reforms generally, recoverability of the ATE insurance premium is being abolished. However, the Government are retaining recoverability of ATE insurance premiums in respect of expert reports in clinical negligence cases. I know that this is an area to which we will return. The noble and learned Lord, Lord Lloyd, probably thinks that it is a less effective and efficient way of dealing with this.
Lord Wallace of Tankerness: My Lords, the point that we are making is that while the ATE insurance premium is being abolished generally, in the event of a CFA being agreed in a case of clinical negligence, the Government are retaining the recoverability of ATE insurance premiums. These are very rarely paid up-front. I understand that it is almost an insurance of insurance. If the claimant loses, the premium will not be recoverable from the claimant. It is often the case, too, that if it has been recovered from the other side, there is an increase at that time to take account of those cases in which the insurers will not get their premium.
Lord Phillips of Sudbury: I need to answer that; I do not think that is right. The position of a poor claimant is that they cannot afford to put themselves in hock for the premium. It is all very well saying that they can pay it later, but if they lose they have to pay it.
Lord Wallace of Tankerness: My Lords, I think the position is that if they lose they do not pay it. That is what we are retaining in cases of clinical negligence. In short, poor people will not have to pay up-front for the necessary expert reports in clinical negligence cases.
Lord Thomas of Gresford: The problem is that you cannot get a conditional fee agreement unless you have a case, and you cannot get insurance unless you can show that there is a case. In clinical negligence, you do not have a case unless you have the medical reports. That is the problem. The Government's solution, as put forward in Clause 45, does not solve the problem at all.
Lord Wallace of Tankerness: My Lords, we certainly believe that going down this road will mean that poor people do not have to pay up-front for their necessary expert reports. Indeed, that is why we draw a distinction between our reforms as they affect clinical negligence and the reforms that affect claims for damages in other areas.
We are working closely with the NHSLA and other stakeholders to discuss how the commissioning of these reports can be improved so that joint expert reports can be commissioned wherever possible. That would involve the NHSLA commissioning and sharing expert reports on liability with claimants at an early stage. There is a lot of agreement that that is what we should be doing-trying to get it at such an early stage. That, in turn, will help to encourage the early notification of claims.
My noble friend Lord Faulks and the noble Lord, Lord Wigley, expressed some concern about whether there would be a market for ATE insurance if it was not recoverable in other areas. We certainly recognise that these concerns about the funding of medical expert reports have been expressed, but the reality is that claimants usually take out ATE insurance. We expect the ATE market to adapt to the new arrangements. As my noble friend Lord Faulks accepted-although
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Furthermore, we wish to reassure the Committee that we will be introducing qualified one-way cost shifting, which will be available in personal injury claims and, therefore, will by definition apply in clinical negligence claims. Qualified one-way costs shifting will mean that, in the majority of cases where damages for clinical negligence are sought, the claimant is not at risk of having to pay a winning defendant's costs. We have therefore protected the claimant's interests to ensure that they are not denied access to justice for fear of having to pay the defendant's costs if they were to lose.
One of the main areas of concern in respect of expert reports is those cases concerning babies who suffer obstetric brain injury. This has been reflected in a number of contributions. While we consider that in most clinical negligence cases funding will be available through a combination of conditional fee agreements and ATE insurance, we have always recognised that there may be obstetric injury cases with high disbursement costs, which are currently funded by legal aid but for which it may be difficult to secure conditional fee agreements.
My noble friend Lord Faulks expressed concern as to whether the provisions in Clause 9 with regard to these exceptional payments, which we will debate later, would be fit for purpose and meet the task which we wish them to achieve. It is because of this that we have sought to make funding available. The safety net would be in the form of an exceptional funding scheme, which will ensure the protection of an individual's rights 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. In considering whether exceptional funding should be granted in cases engaging Article 6 of the European Convention on Human Rights, the director will take into account general jurisprudence set out by the European Court of Human Rights on Article 6. The jurisprudence takes into account the following relevant factors: the ability of the client to present his or her own case; the complexity of the matter; the importance of the issues at stake; and all other relevant circumstances. It is important to put this into context. Our impact assessment estimates that we will continue to spend £6 million of the £16 million we currently spend on clinical negligence cases on exceptional funding cases. We estimate that the vast majority of this £6 million-
Lord Faulks: I am very grateful to the Minister for giving way. Can he help the House as to whether it is the Government's position that a cohort of cases such as brain damage cases, which are exceptional to the family but do not raise exceptional points of law, would nevertheless be regarded, if there was no legal representation, as a violation of Article 6?
Lord Wallace of Tankerness: My Lords, it would not be appropriate to second guess, as it were, what the director of legal aid casework might decide on any individual case. Suffice to say that the purpose of having Clause 9 in the Bill is to take account of cases where the client would find considerable difficulty in presenting their own case and where there is, indeed, a complexity-these are not necessarily cumulative-in the important issues at stake. The fact that we estimate that some £6 million would be spent in dealing with these complex and lengthy cases is indicative of the fact that we do take-
Lord Carlile of Berriew: I apologise for interrupting my noble and learned friend again but does he regard it as satisfactory that cases falling within what my noble friend Lord Faulks described as a cohort should be determined not on a merits-based approach but on an administrative law approach? If an aggrieved party wished to challenge a decision of the director of civil legal aid, and what the Minister is saying applies, it will have to be necessary for the aggrieved person to show that the director of civil legal aid was Wednesbury unreasonable, which has only the remotest connection with the merits of the case. Is this really the system that the Government wish to inflict on people whose babies have suffered devastating perinatal injuries?
Lord Wallace of Tankerness: We do not wish to inflict the scenario which my noble friend indicates. The scale at which we believe the exceptional funding will be used is indicative of our expectation that exceptional funding will be available to assist these very profound cases. No one is disputing the seriousness of this. However, the amount of money that is being made available is not insignificant by any stretch of the imagination-£6 million out of the £16 million that is sought to be saved overall-which indicates that this measure is not just incidental but tries to address very directly the proper and sensitive concerns that have been raised.
Lord Thomas of Gresford: My noble and learned friend referred to Clause 9 and to exceptional cases. He will be aware that a specific category of special exceptional cases is delineated in that clause: namely,
where there is a "wider public interest determination". Are the Government prepared to consider whether in this very sensitive type of case there could be a subsection inserted into Clause 9 which deals with the very difficult issue of clinical negligence instead of leaving it under the broad wording of subsection (2)?
Lord Wallace of Tankerness: I thought that I was going to be diverted down the tracks of coroners' inquests. However, I take the point which my noble friend makes. We believe that the relevant provision already covers the matter. He draws a comparison between measures within the same clause. We will have an opportunity to return to that matter when we come to Clause 9. It is only right that I should consider the point, which I am sure was made with helpful intent.
The question of relative costs has been raised and one or two noble Lords have pointed to the reservations made by the NHSLA. It is fair to point out that as regards the King's College research which has been referred to, the Department of Health has confirmed that in the context of the reforms as a whole, which include all the Jackson reforms, the costs to the NHS are expected to reduce substantially and not to increase. It is important to look at the matter in the context of the overall impact of our reforms: namely, that the costs will decrease.
The noble and learned Lord, Lord Lloyd, has sought to contrast what he believes will be the cost of his amendment with the costs he believes will be incurred under Clause 45(2). He will be able to reply shortly. He quoted my honourable friend the Minister, Mr Djanogly. I think that the noble and learned Lord recognised that Clause 45(2) is a clear attempt to address the concerns which are shared not just by him and me but by the Committee as a whole. His view is that it would be more expensive to go down this route than to adopt his amendment. One of the differences between our proposal in Clause 45 and the use of legal aid for clinical negligence is that it would be restricted to those who are otherwise eligible for legal aid where the ATE power of recoverability will provide access to justice to everyone.
I think that the noble and learned Lord acknowledged my next point when he gave his figures. We do not readily recognise his figures. We feel that the costs of the ATE market as adjusted would not give rise to the costs which he indicated. I noted all his figures very carefully, but I probably was not quite keeping up with them. He said that he did not expect me to comment on the detail of his figures today but asked me to provide an answer. That is the least one can do, given the amount of work that the noble and learned Lord has clearly put into this. As I say, we do not readily recognise the case that he put forward. However, we must undoubtedly reflect on the issue. It would not necessarily make sense to embark on something which led to considerably greater cost when the overall object of the reforms is to reduce cost. I hope that with the assurance I gave at the beginning that we will reflect seriously on all the important issues that have been raised, the noble and learned Lord will withdraw the amendment.
Lord Lloyd of Berwick: My Lords, as was to be expected, the debate has gone far wider than the limited purpose of my amendment because this is the first opportunity that we have had to consider clinical negligence as a whole, and there are other amendments in this group.
So far as my amendment is concerned, everyone has accepted that expert reports are the key to the problem. The question then is: what is the best way to fund expert reports? I am especially grateful in that connection for the support of the noble Lord, Lord Faulks, given all his experience in this field. My impression was that his view is the same as mine and, indeed, that of Sir Rupert Jackson, whereby Clause 45 is not the way ahead. That is the purpose of my amendment. I am also especially grateful to the noble Baroness, Lady Mallalieu, for saying that the amendment is only
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Of course I will not press the amendment because I cannot do so until I know the Government's answer to the figures that I have put forward. However, if those figures turn out to be correct, as I believe they will be, then Clause 45 is not the way ahead and it is far better from the point of view of saving money for the taxpayer to adopt the limited degree of legal aid required for expert reports. I look forward to the answer to the figures I put forward and, in the mean time, beg leave to withdraw the amendment.
(a) the Social Security Contributions and Benefits Act 1992,
(b) the Jobseekers Act 1995,
(c) the State Pension Credit Act 2002,
(d) the Tax Credits Act 2002,
(e) the Welfare Reform Act 2007,
(f) the Welfare Reform Act 2011, or
(g) any other enactment relating to social security."
Baroness Doocey: My Lords, I should like also to speak to Amendments 35 and 89. These amendments relate to the ability of claimants, the majority of whom are disabled, to appeal against decisions on their entitlement to welfare benefits. The intention behind these amendments is to protect some of the most vulnerable people in our society. The Bill as it stands would remove social welfare cases from the scope of legal aid, which would have an adverse and disproportionate impact on disabled people in particular, and would leave them unable effectively to challenge decisions when they are let down by the system.
Legal aid is currently available to assist individuals with a range of welfare benefit issues, from navigating complex benefit administration to reviewing and appealing against official decisions. When appealing against such decisions, advice is available to clients before appeal and tribunal, but legal aid does not cover legal representation-and there is no suggestion that it should. A number of noble Lords have already made the point that the welfare benefits system is complex, and more than half the welfare benefit assistance that is funded through legal aid relates to disabled people. However, despite the best efforts of all involved in a claimant's initial application, mistakes are frequently made, and these are well documented.
The need for such legal aid is best demonstrated by the fact that nearly 40 per cent of all appeals against work capability assessment decisions are upheld. In
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To give just one example, the complexity of the extensive legal precedents determining the criteria for being classed as virtually unable to walk make professional legal advice vital for anyone even thinking of appealing against a welfare benefit decision. We all recognise the need to make economies but the Government's own impact assessment puts the spending on legal aid for welfare benefits at just £25 million, compared to a total legal aid budget of £2 billion. This is a relatively minor saving but it would have a major effect on large numbers of vulnerable people who need help with appealing when mistakes have been made about their entitlement to benefits. I also argue that failure to provide timely legal advice to assist disabled people who are put on the wrong benefit is a false economy that will almost certainly result in additional demands being placed on services such as the NHS, rather than delivering the savings that the Government are hoping for.
To make matters worse, the Bill is being considered at the same time that the Government are undertaking a dramatic overhaul of the welfare benefits system. With a reform on this scale, there will be a new and unfamiliar set of complexities to navigate through for both claimants and officials. During the transition, there is bound to be an increase in the number of inaccurate benefit decisions made and a consequent need for legal advice to challenge these.
I share the Government's desire to reduce the number of appeals against decisions, but this reduction must not happen because the loss of legal aid prevents disabled people from challenging decisions. I therefore commend these amendments to the Committee as a means of securing justice for some of the most vulnerable people in our society whose needs are constantly overlooked. I beg to move.
Lord Wigley: My Lords, I strongly support the amendments so ably moved and spoken to by the noble Baroness, Lady Doocey. I recall her impressive speech on these matters at Second Reading. Some of us sat through 17 sessions of the Welfare Reform Bill in Committee and, in session after session, we came across the potential loss of important and valuable benefits on which many vulnerable disabled people depend.
Some of the changes will not be easily understood, and some will be seen as depriving this cohort of people of essential resources that would at least compensate for their disability or enable them to live with it. When they lose or are in danger of losing such benefits there will clearly be a strong feeling that they
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I put it to noble Lords that to introduce these two pieces of legislation simultaneously-tonight we are dealing with the legal aid Bill; tomorrow we are back to the Welfare Reform Bill on Report; and on Wednesday we are back to legal aid-given the combined effect that they may have for disabled people, is absolutely wrong. There should at the very least be a facility for those who may be deprived of benefits which are so important to them to challenge that in law during the opening period of the implementation of the Welfare Reform Bill. If, in due course, when things settle down, there is a need to change things, all well and good, but I remind noble Lords that the degree of benefit fraud in the context of disability is minimal. Therefore, it is a question of depriving people of resources to which they have been entitled, the loss of which will make a significant difference to their lives.
The Government should seriously look again at the cost implied by the amendment and the implications of the legislation to find a way in which disabled people and other vulnerable people affected by the Bill can at least have the basic right to challenge it in court.
Lord Newton of Braintree: My Lords, I intervene briefly not to support every last dot and comma of the amendment-not least because I have not heard what the Minister has to say about cost, which we cannot completely ignore-but to indicate my general sympathy with the concerns that have been expressed by the noble Baroness and echoed by the noble Lord, Lord Wigley. I indicated earlier my concern about the Bill extending to the social security area for a number of reasons. First, the Welfare Reform Bill, whatever its merits-I am a strong supporter of it as a whole-creates a certain amount of turbulence, to put it mildly, for a lot of people, including many disabled people and carers. They have great concerns, which may well lead them to want to challenge some decisions. They ought to be able to do so.
Secondly, there is an interrelation here with the concerns expressed about the absence of sufficiently effective proposals to come anywhere near replacing the availability of legal aid, or at least legal advice, in such cases. We know from a debate in the House only shortly before Christmas that citizens advice bureaux are feeling acute pressure in their ability to maintain, let alone enhance, their level of service. This may have come up earlier, before I was able to be present, but we know that law centres are also feeling acute pressure from expected losses of money from the legal aid changes. From the point of view of claimants in the social security field, as one or two people have said-including me on previous occasions-there is a double or triple whammy here: you do not get help from one quarter; you are steered to another quarter; but that quarter itself is being starved of resources and unlikely to be able to help you.
I make no apology for repeating things I have said on previous occasions: there is an absence of apparent-I choose my words reasonably carefully-joined-up
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I doubt whether they even know what will be the net effect on the Ministry of Justice. It is well known to anyone who knows anything about tribunals that the less help and advice that people have in social security tribunals and related matters, leading them to represent themselves, the more time will be taken at the tribunal trying to sort out what are the issues. Cases will get taken to tribunals which would not have been had people been well advised beforehand. There will be costs to the Tribunals Service in the Ministry of Justice that I am not sure are allowed for in the costing that the Ministry of Justice has ascribed to the savings on legal aid. We need more convincing answers on this than we have so far had. I do not want to see the amendment pressed to a vote tonight, but I hope that Ministers have their ears open on this one and will look carefully at the reality, as opposed to the optimistic forecasts of the original estimates of savings in this field.
I support the amendments proposed powerfully by the noble Baroness, Lady Doocey. I shall focus on Amendment 32 but say just a few words on Amendment 35. Although I would not want to confine advice and assistance for social security claims before tribunals to disabled people, if it was to be confined to a single group, there is a strong case for that being the group, because of the high proportion of those who are affected who have additional needs over and above legal needs which affect their ability to exercise their legal rights.
That is brought out very well in the briefings we have received from Citizens Advice and Scope's report, Legal Aid in Welfare: the Tool We Can't Afford to Lose. I also received a case study from Charnwood CAB, which is local to my university. I will not read it out because it is rather long and complex, but someone came for help because of the interaction between decisions on disability living allowance and income support. Then they ran out of time in appealing and were going to get in a real mess. It was only with the help of the citizens advice bureau that they were able to lodge an appeal. The CAB pointed out that that cost the taxpayer no more than £167 excluding VAT-since October, it would have cost £150.
That exemplifies the more general point of Amendment 32, which would put social security law back into scope. As the noble Baroness said, like it or not, social security law is complex and will remain so however successful universal credit is.
The Government's suggestion that people can turn to Jobcentre Plus or the benefits advice line for help with such cases has been described as incongruous by the president of the First-tier Tribunal, his honour Judge Martin. It is utterly incongruous when one considers that it is their mistakes that have so often given rise to the need for legal advice in the first place.
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The president of the First-tier Tribunal also pointed out that the emphasis on the user-friendliness of the tribunal system misses the point, because the tribunal has no role to play in assisting claimants to decide whether to bring their appeal or to help them prepare their case. The experience of CABs and other agencies and research by the LSE shows that often the role played is to stop cases getting to the appeal tribunal, so, in a sense, saving the Government money, because the advisers know whether there is a case worth pursuing or not.
As the noble Lord, Lord Newton, said, the other suggestion is that people can turn to CABs, law centres and so forth. However, as the noble Lord said, these are under immense pressure. Not only that but sometimes people ask how what is happening now compares with what was happening in the 1980s, when we had social security reform and cuts. At the time, I was working at the Child Poverty Action Group. One thing that is making things much harder now is that in the 1980s local authorities were expanding welfare rights advice services, and they were able to help people to deal with the turbulence of social security reform and the changes being made. Now, local authorities throughout the country are cutting back on welfare rights advice services, and this is happening when law centres, like CABs, are under pressure. Therefore, that is not the answer either.
As has already been said, removing legal aid for help with social security law would be damaging to some of the most vulnerable people in society at the best of times, but doing so when we are facing the most radical change in social security law in 60 years, as the Government themselves bill it, could be seen as bordering on the vindictive.
I want to turn to a rather limited but important aspect of this issue. On our first day in Committee, the Minister and I had an exchange about whether legal aid was available for cases coming before the Upper Tribunal and the higher courts. I am sure that, like me, the Minister went away and did his homework. My homework confirmed that I was right: legal aid is available for advice before one gets to the Upper Tribunal. However, I was only partially right because in some cases it can also be available for representation. I sought advice from Roger Smith of Justice, who is a former colleague of mine, and this is what he said:
"Legal help is, of course, currently available for advice. The position on representation is a bit more complicated. Legal aid for representation is not available as routine for social security cases in the Upper Tribunal but has been available for further appeals to the courts. Legal aid for court representation will be withdrawn under the Bill.
Legal aid is available for certain specified appeals to the Upper Tribunal, basically where legal aid was available prior to the establishment of the Upper Tribunal but this does not include social security".
"The Access to Justice Act allows funding in exceptional circumstances where proceedings are otherwise out of scope ...
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Roger Smith also drew my attention to a very useful article in the CPAG's Welfare Rights Bulletin by the group's solicitor, Sarah Clarke. She points out that legal aid for social security matters at higher courts is being withdrawn despite the fact that the Ministry of Justice puts no savings on this at all. In fact, at our first sitting, the Minister said that this would save £1 million. In public expenditure terms, £1 million is so well within the margin of error that it hardly counts as public spending; it can simply be written off. The article is helpful. It says:
"In the future, social security claimants who find themselves faced with an incorrect Upper Tribunal decision, or who win their case at the Upper Tribunal but find themselves on the receiving end of an appeal by the DWP, HMRC or a local authority, could be facing the courts and the costs risks attached on their own or not at all. It also means that the big social security test cases which reached the higher courts by way of the appeals process, such as Zalewska on the lawfulness of the Workers' Registration Scheme, Hinchy on the interpretation of the overpayment recovery test, Pedro, on the meaning of 'family member in EU law', and Mallinson, the seminal case on the interpretation of the law on disability living allowance, will not be funded in future.
In view of the complexity of the relevant law and procedure, the importance of what is at stake for the applicant and others, and the fact that many social security claimants are vulnerable and may be disabled or may not have English as a first language, and therefore are particularly disadvantaged in presenting their cases, it seems possible that, particularly in cases before the higher courts, a lack of legal aid could breach the rights of claimants under Article 6 of the European Convention on Human Rights".
Given that an appeal to the Upper Tribunal has to be on a point of law; given the complexities of that law and how much is at stake in terms of the livelihoods of some of the most disadvantaged members of our society; given that, as Justice points out, even if the Supreme Court had agreed to a case because of its complexity and its importance, legal aid would not be available because the Government say that it is not complex or important enough; and given that the savings are so minuscule that the Ministry of Justice does not even normally record them, can the Minister explain to the Committee why the Government are withdrawing legal aid from this small yet important category of cases, and can he please justify this to the Committee?
Lord Phillips of Sudbury: My Lords, I am in entire agreement with what has been said by my noble friends Lady Doocey and Lord Newton and the noble Baroness, Lady Lister of Burtersett. I should be very grateful if, in responding on these amendments, my noble friend Lord McNally would tell the Committee whether in respect of later amendments that seek to ensure proper funding for CABs and advice agencies there is going to be a positive answer, because that will have a major effect on my whole approach to this part of the Bill.
It does not need repeating that cutting legal advice in relation to social welfare claimants is, on the face of it, utterly bonkers. First, the people seeking that advice
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Lord Phillips of Sudbury: I am most grateful to the noble Lord, Lord Bach. There are 7,500 pages, and the devil of it is that a lot of these statutes interrelate. In many cases, finding a way through this stuff is, believe me, a job for a lawyer and not a job for the harassed citizen. Do not let us be carried away by the telephone helpline. It will help in all sorts of cases but in very many it will not. That is because, first, the complexity will outrun the knowledge of the person on the phone. Of course, the answer is that they should then refer the person to someone else, but I have to tell your Lordships that these advice lines-and I have experience of them too-are very powerful instruments. The second reason is that it is a commonplace that people find it very difficult to explain the facts and so on in relation to these social security measures face to face, let alone down a telephone line.
Therefore, I hope that we will be honest with ourselves and that the excellent civil servants, the excellent Bill team and the excellent Front Bench spokesmen will recognise that this is not territory with which we are familiar. I suggest that we need to be a little humble before we say categorically that the status quo after the Bill comes into force will be sufficient to enable hard-pressed, often bemused and sometimes desperate people to access the benefits that we have legislated for them.
Baroness Howe of Idlicote: My Lords, let us face it, the next group of amendments covers almost exactly the same area as this one. I shall reserve what I was going to say until we reach my amendment in that group. However, in view of the comments made by my noble friend Lord Wigley about running all these Bills together simultaneously, I wanted to point out that-believe it or not-in the Moses Room this afternoon, going on in parallel with what was going on in this Chamber there was a Motion about jobseeker's allowance. Aspects of the Welfare Reform Bill and the legal aid Bill are interwoven in an appallingly complex way.
We have just heard from the noble Lord, Lord Phillips, a very clear case as to why the whole exercise is going to be costly. I agree with the sympathetic point he was making for the Government: any change made to these forms of welfare help is almost by definition bound to involve extra cost and extra complexity, because it is yet another layer added to the thousands of pages that have to be understood by the professional
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Lord Howarth of Newport: My Lords, like my noble friend Lady Lister, I often feel that after the noble Lord, Lord Newton of Braintree, has spoken, there is not very much to add. However, all noble Lords who have subsequently spoken have indeed made very valuable additional contributions. I would like to say a few words because this is a debate of absolutely central importance in our consideration of the Bill. We should all be extremely grateful to the noble Baroness, Lady Doocey, for moving as she did the amendment that she and colleagues have tabled. She raised an interesting and important point-among many others. Since such a high proportion of those who receive legal aid to support them in welfare benefits cases are disabled people, this policy may be in effect discriminatory against disabled people. That in itself is something that we ought to reflect upon. I hope that when the Minister replies he will be able to tell us whether or not this is the case, and if he thinks it is not the case, how he explains that.
The noble Baroness also reminded us of the high success rate of appeals and of appeals made by disabled people. Of course, the proportion of successful appeals is higher when people have been advised, when people appear personally in court, and when they are accompanied. If the Government are going to take away legal aid from welfare benefits cases, it raises the question of whether they want people who are entitled to receive benefits to do so. I believe that they do. I cannot believe that the Liberal Democrats and the Conservative Party do not want people who are genuinely and properly entitled to receive welfare benefits to do so. However, the reality is that if they take away legal aid in support of those cases, they are ineluctably going to prevent very significant numbers of people who should receive those benefits from doing so. I ask them fairly and squarely this question, and again I would like the Minister to respond specifically to this point: do they want all these people to receive benefits, and if they do, how do they suppose that they are going to receive those benefits?
Ministers at the Ministry of Justice have been pretty blunt hitherto in saying that they consider welfare benefits cases to be of lower importance than other categories of case which will continue to be in scope of legal aid. I would like to know-and again I ask the Minister to tell us in his reply-exactly why the Government believe that welfare benefits cases are less important than other categories of cases that they have determined should remain eligible for legal aid. I think that for people in poverty, welfare benefits are extremely important, and those people would be interested to know the Government's explanation of their policy, just as we would be.
Of course, there are going to be growing numbers of these people. This is partly because of the recession, which is increasing unemployment and the hazards of
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What is going to happen to these people who do not get legal aid? They will try to go to other sources of advice, but the charities which might advise them are not going to be in a position to do so, as they have been telling us. The citizens advice bureaux in particular have been warning us very earnestly that they will not be in a position to provide the advice that they have been able to provide with the support of legal aid and local authority funding-neither of those, in large part, are going to be available. Would-be appellants-claimants-may then be driven to other kinds of private adviser. I dread to think what sort of advice they may receive from those sources. We are very aware in the immigration field that some extremely dodgy and dubious people offer advice who are frankly exploitative of people when they are in very great difficulties.
We will see an increase in self-representation: people will go to the tribunals to try and make their own case. The notion, to which the Government are so attached, that the tribunal system is a user-friendly, accessible, informal alternative to the court system, is a pipe dream. Of course it is highly desirable that there be more informal, more economical, more user-friendly systems of justice available. Again and again, attempts have been made to achieve that but, again and again, the system becomes less informal, more complex and more arduous to navigate, and people need expert help to find their way through. It is unrealistic of the Government to suggest that the tribunals system is somehow going to be there and that it will be all right for people to represent themselves.
The consequences of a policy that will result in people not being able to make their appeals in order to obtain the benefits that they should be able to obtain will include increased unemployment, particularly among disabled people, because if they do not have the tailored support that they ought to have, their chances of securing employment, with the odds already stacked against them because of their disabilities and in this very difficult labour market, will be further reduced. We will find more people in debt and suffering ill health, because poverty will mean that people will not be able to afford a proper diet or heating and will have
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Lord Alton of Liverpool: My Lords, as my noble friend Lady Howe rightly said a few moments ago, other amendments later in our proceedings will return to the general question of legal aid. I will reserve some of my remarks for that later group of amendments, as my noble friend indicated that she, too, would do. However, I would be sorry to see the amendment proceed without as many voices as possible being raised around your Lordships' House in support of what the noble Baroness, Lady Doocey, said today. As the noble Lord, Lord Howarth, intimated, this is of central concern. The noble Baroness was right about this at Second Reading and she was right to bring this amendment before the House today. I hope that the Government will reflect on the arguments that were laid before us.
At Second Reading I mentioned that an organisation of which I am a patron, the National Association of Child Contact Centres, had written to me expressing concern about the number of volunteers who are withdrawing from voluntary service because of the pressures that we are placing on them. That, in tandem with the reduction of resources being made available to Citizens Advice and other voluntary organisations because local authorities have to cut back on their funding, should cause all of us to stop and ask the kind of questions that the noble Lord, Lord Newton, properly put to us earlier. I am sure that the Minister shares many of these concerns. He would not want to see-any more than any noble Lord would want to see-people with spina bifida, autism, cerebral palsy or any number of physical or mental disabilities placed in a position where they cannot get proper or adequate representation or advice in order to pursue their cases. I hope that he will be able to tell us whether he has had direct discussions with organisations such as Leonard Cheshire Disability and Scope; and I hope that before coming to a final conclusion on these issues he certainly will.
My noble friend Lord Wigley was right to remind us at the outset of the increase in the number of complex questions that are now being placed before people who are dealing with disabilities. During my time as a constituency Member of Parliament I, like my noble friend-although we had very different constituencies; one in rural Wales and one in the heart of the city of Liverpool-was confronted again and again, just as the noble Lord, Lord Phillips, was when he worked as a volunteer in legal aid centres or on telephone lines, with complex and difficult questions. The noble Lord, Lord Bach, reminded us that these days the advice runs to more than 7,000 pages in a handbook. It is impossible to deal with these questions
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I was struck by a leading article in a Sunday newspaper that commented on the anachronistic nature of your Lordships' House. It went on to say, thank God for these anachronisms because last week in debates on the Welfare Reform Bill it was the anachronistic House of Lords that stood up for the voiceless and powerless people for whom no one else would speak. I suspect that your Lordships will have to perform the same role again.
Baroness O'Loan: My Lords, I support Amendment 32, tabled by the noble Baroness, Lady Doocey. It is generally acknowledged that attempts by government to simplify the welfare system are to be welcomed because the systems are complex and difficult. Despite the fact that legal aid has been available for appeals against decisions on entitlement, we have seen a very significant lack of take-up of the benefits to which people are entitled. Under the Government's proposals, that legal aid will no longer be available. It is accepted by the Legal Services Board that dispute resolution and advice in social welfare law requires legal and technical competence. We know from Scope that 39 per cent of appeals against work capability assessments are upheld. Without legal assistance, people simply will not be able to meet the challenges that will enable them to retain the benefits to which they are entitled.
There will be 3.2 million people affected by the change to DLA alone, and 1.8 million will migrate from incapacity benefit to DSA or jobseeker's allowance. People in those cases may be ill, seriously stressed, living in profoundly difficult circumstances, illiterate or incapable of dealing with correspondence. They may not recognise the importance of attending various assessments or may lose out simply because of their vulnerability. If a family loses the benefits to which it is entitled and cannot access professional help, inevitably there will be very serious consequences such as more children going hungry, not having enough warm clothes for the winter and not having heat in their homes. Parents will have to make appalling choices.
The consequence may be situations in which individuals go to tribunals in cases in which, had they received legal advice, they would have known that they did not have a valid case. A tribunal costs approximately £293. The cost of legal advice to help people in this situation is of the order of £150 to £200. As noble Lords said, there are serious concerns about the consequential increases in the number of cases going to tribunal. Put simply, there are very good financial reasons to continue to provide the current, low-cost legal help.
Lord Bach: My Lords, client A was a single mother aged 20 with two young children. She had no permanent home and was living with her mother. She had no income other than a crisis loan and suffered from mental health problems. She had been awarded employment and support allowance, but this was suspended when she was admitted to hospital and missed a medical assessment. She was then informed that she was not entitled to employment and support allowance. The Leicester community advice and law
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Client B was also a single mother. She suffered from bipolar disorder and received employment and support allowance and other benefits. She had debts totalling £2,500, including overpayments of benefits and arrears owed to utility companies. The advice and law service assisted her in making successful claims for disability living allowance and associated benefits, thus increasing her income by more than £100 per week. Her housing benefit had been suspended. The service challenged the decision and housing benefit was reinstated and backdated, thus avoiding an escalation of rent arrears that ultimately would have led to the loss of her home.
Both cases took place in my home city of Leicester, but there will be examples from every city, town, village and hamlet in the country. What do the two stories have in common? First, both clients were helped by the same advice agency. The crucial point is that they were helped using legal aid. Advice was given and lives were changed. If this Bill goes through in its present form, this sort of life-changing advice would probably never have been given. Those two clients who had real legal problems would not have been legally helped.
It does not take much imagination or knowledge of the world to know that events in both cases would have gone downhill fast if advice had not been given. Not just the mothers themselves but, one suspects, their children would have suffered. The state would have had to pick up the pieces at a much later stage when much more damage would have been done. If the Bill goes through, welfare benefit advice will be out of scope, not just at the beginning but at the end, too. The costs of the Leicester law service organisation that took up this case are negligible. We have heard about the small costs of each case of this type. They are tiny compared with the social and real financial costs if there had been no early intervention.
How can the Government be so stupid to think that what they are proposing can do anything but harm? I speak with all the strength that I have in support of the amendment moved so passionately by the noble Baroness, Lady Doocey, who has given a lifetime's service to disabled people. I agree with other noble Lords who have said that her amendment is central to what we have to debate and decide on in this Bill. Her amendment would return to the scope of legal aid: advice and assistance on eligibility for welfare benefits, applications for welfare benefits, and appeals against the decisions of granting authorities. Although the expertise of the noble Baroness, as has been said around the House, is in helping disabled people, her amendments, as she would be the first to say, cover a much wider group in society than merely those who are disabled; they cover all citizens who find themselves in that position.
The amendment is identical to that tabled in another place in Committee and on Report by my party. The first time-in the Public Bill Committee-the amendment was defeated on Division by the government parties, but on Report the Liberal Democrat Members of the Public Bill Committee tabled an amendment to the
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There is rightly great strength of feeling from all sides of the Committee about the removal of advice on welfare benefits. There is a real fear that it will lead quickly to a downgrading in the efficiency of a system that, while not perfect, has worked pretty well over 40 or 50 years, and which, crucially, has been supported by all Governments of whatever complexion and by all major political parties in this country. There is consensus that the state has an obligation to provide this sort of help for the poor, for disabled people and for those who need help-it could be any one of us in certain parts of our lives-because it is both practical and humane.
There is great concern that if the Bill goes through as it stands we will lose that and, as my noble friend said, be diminished as a country in how we conduct ourselves. That is why this issue is so central. It will drive tens of thousands of litigants-in-person to try to deal with complex issues that they might not fully understand or be able to communicate. Thousands of people will be left without a lifeline. Those who have real cases will have to join a queue because tribunals will take so long to reach their cases. Then people might find themselves completely destitute: their homes at threat, relationships breaking down, and their children helpless. There will be that drive downwards that we see so often.
Lord Newton of Braintree: There is something that the noble Lord has not mentioned, which could be an important factor, bearing in mind his reference just now to children left helpless and some of his earlier case studies relating to single-parent families. I cannot remember the figure but there is a huge cost for every child taken into care. I would like the Minister to tell us the cost of each child taken into care as a result of the knock-on effects that could arise from these proposals. It costs tens of thousands of pounds every time, and I do not believe that all that has been taken into account.
Lord Bach: I am grateful to the noble Lord as he is absolutely right about the social and financial costs of abolishing this sort of legal aid. It is impossible to say what they will be, but they will be huge, which I should have thought was fairly obvious.
The outcomes that we have talked about in this debate are not beyond the realms of probability, nor can anyone say that they would be unexpected. It is up to us in this Committee, and in the House perhaps on a future date, to decide whether the outcomes that have been described would cross the basic line of British decency that it is our obligation to defend. As part of that decision-making, we must look at whether these particular cuts are economic in the first place. Would they achieve even the Executive's highly limited narrow goals of saving money?
The ministry plans to remove entirely funding for welfare benefits from scope. It claims that that will save £25 million a year. That sum normally goes to dealing with 135,000 cases per year. The advice is delivered, not altogether but pretty much through third-sector not-for-profit agencies such as Citizens Advice, law centres and many other advice centres. Advice goes to those seeking reconsiderations of decisions by the DWP and related agencies and to those appealing decisions before the First-tier Tribunals and then the Upper Tribunals. We have heard who receives the advice. Women are disproportionately users of this advice, as are ethnic minorities. As the noble Baroness indicated, 69 per cent-a very high percentage indeed-of those receiving advice are ill or disabled in some way.
As for who gets more complex advice-that relating to grounds for appeal-the published data for First-tier Tribunals show that of the 50,000 or so benefits-related cases heard a year, 90 per cent relate to disability-related benefits. That is hardly a surprise. For all its sins, jobseeker's allowance is a simple entitlement for which to calculate eligibility. When there is a degree of subjectivity in deciding on the impairment caused by disability, agencies are more likely to make mistakes and thus require decisions to be appealed.
What does the advice funded by legal aid deliver? Colleagues in another place tabled a series of Parliamentary Questions to establish the percentage of people who win their appeals before tribunal with and without advice. The figures provided by the ministry show that in 2009-10 in welfare benefits-related cases, people were 78 per cent more likely to win if they had advice than if they did not have advice. For ESA the figure was even higher. People appealing employment support allowance decisions were more than twice as likely to win with advice than if they did not have advice. I point out what is obvious: those winning appellants are all legitimate claimants. They are not scroungers; they are not feckless-for the main part they have probably suffered some form of disability. They have been denied their rights by an emanation of the state, by the Executive, and they are legitimately challenging that decision.
Lord Thomas of Gresford: It is just habit. Would the noble Lord agree that his statistics suggest that where there is advice, meritorious claims are brought forward and money and time are not wasted by tribunals in hearing litigants in person?
Lord Bach: I agree absolutely. It seems to follow because the people who practise this kind of law-and we know that they are not particularly well-paid lawyers-are very careful, on the whole, to give advice on the position in law and not necessarily what the claimant wants to hear. It is right that people with hopeless claims do not go forward and those with meritorious claims do go forward-as they should do.
These are legal problems-let us make no mistake about that. The truth is that the welfare benefits field, as we have heard all round the House from great experts, is very complex in many cases and people need help with these matters before they can decide the right thing to do.
Judge Robert Martin, the head of the Social Entitlement Chamber of the First-tier Tribunal, gave evidence to the Justice Committee inquiry some time last year. The 7,500 pages I referred to in an intervention are the reference material that was issued to the tribunals and which is now spread over six volumes. He made that point to the Justice Committee. He was asked by the chair, the right honourable gentleman Sir Alan Beith:
"Yes, because a general public awareness of tribunals is very low. Very little is put into public education of the law and how to seek redress for grievances. There is this risk that we will see many people who have been drawn to the tribunal believing it is the most appropriate forum to solve things, whereas it may be just a mistaken conception about the tribunal".
"Legal help is so important in that triage function of sifting out cases which can be redressed but not through the tribunal or the court, and assisting those cases where the tribunal or the court can assist to have the case prepared in a way that maximises the chance of success".
This Bill is at its worst in this particular part. I argued at Second Reading-and I argue again today-that it is unconstitutional in that it removes access to justice for a large number of citizens, it is immoral because the state should not try to save a fairly small amount of money by targeting the poor and the disabled by removing their legal rights, and it is financially crazy because the savings will be non-existent. As benefits mistakes are not remedied, the problems will grow and the cost to the state will explode.
We are very proud of our legal system in this country and we encourage, quite rightly, foreign citizens to litigate their cases in British courts. They do so because of the extreme fairness and expertise of the British legal system from top to bottom. It is ironic, is it not, that we should be asking foreigners to litigate their serious cases in our courts because of the greatness of our system, while at the same time we seek to reduce some basic rights in law for our own citizens who are the least able to look after themselves?
Lord McNally: My Lords, Amendments 32 and 89 seek to bring welfare benefit matters into the scope of legal aid funding, first, by deleting the exclusion for welfare benefits in Part 2 of Schedule 1 and, secondly, by adding social welfare as an in-scope category in Part 1 of Schedule 1.
The amendments are contrary to our reform programme in which we are focusing our resources on the highest priority cases. Currently legal aid is available for legal advice but not representation in relation to decisions on welfare benefits at the First-tier and Upper Tribunals. While we recognise that many people rely on welfare benefits, these cases are primarily about financial entitlement. In our reforms we have concentrated on the fundamental issues of liberty or safety. Given the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme.
Lord McNally: I am going to go on to this. I must say to the noble Lord that it would help if I can get further than just past page one. I will deal exactly with the issue that he has raised. As the noble Baronesses, Lady Mallalieu and Lady Howe, indicated, we will have a series of debates on a number of specific individuals who will be affected by reforms.
A number of noble Lords have cited their own experiences, either professional or personal, so I shall in part answer the question asked by the noble Lord, Lord Howarth, by giving a personal experience of my own. In 1976 I sat in the Cabinet Room in Downing Street with the Chancellor of the Exchequer and the Prime Minister-Denis Healey and James Callaghan-and during the course of a two or three hour meeting the pound fell from 1.95 to 1.45 against the dollar. By the time it hit 1.45 we had sent for the Governor of the Bank of England and decided to call in the IMF. Like many events, it has left a political scar, which is this: if you lose control of your own economy, all the concern for the poor and the disabled and the disadvantaged is as nothing because you cannot help them if you are not in control of your own economy.
Many of the debates that we have heard in the past few days, including this one-and probably the one tomorrow-have addressed the kind of issues that we have heard today. As I look around the House, I know that on all Benches there are people who have devoted their lives to the betterment of the citizens of this country. No one party has a monopoly on that. However, it is right to say that we have had to take hard decisions in difficult circumstances. I hear that £1 million is within the margin of error and that £20 million is trivial, but in a department like mine those are the figures that we are having to face and deal with. Therefore, although I understand some of the-
Lord Howarth of Newport: I am sure we all accept that it is imperative that the Government do not lose control of the economy, as the Minister puts it, but it is a question of how you gain control of the economy. Why do this Government prefer to deprive people of legal aid in their appeals for welfare benefits in order
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Lord McNally: Politics is always a question of priorities. We keep on having this Second Reading debate. If we want a bit of knockabout, it has taken the Shadow Chancellor and the Leader of the Opposition 18 months into this Government to accept the cuts that the Government are imposing. We can have a knockabout if you want. We started this debate some months ago and what we are talking about is a department that is making its contribution to a roughly 20 per cent cut in public expenditure. That kind of adjustment was necessary-and I think has been successful-to retain the confidence in our economy which others have lost, and which has allowed us to borrow at lower interest rates and keep that readjustment within manageable terms.
Of course, as each department brings its proposals forward, tough choices are made. I am sure there are people in local government who are having to make tough choices, and when they make those tough choices people will extrapolate the consequences of those tough choices-but let us not pretend that there are alternatives to those tough choices. It is also interesting. I am not sure where we are on this. I could not intervene because my noble and learned friend Lord Wallace was in charge of that.
During the medical debate, the noble Lord, Lord Phillips, stood up and with a perfectly straight face, and supposedly making an argument on his side, cited a case where £90,000 was spent-£45,000 on legal fees and £45,000 on advice-to produce £4,500 of compensation for the person offended. It did not seem to occur to the noble Lord, Lord Phillips, but it did to me as a poor, innocent, non-legal layman, that there is something wrong with a system that absorbs £90,000-
Lord Beecham: That was hardly a representative example of cases. In most cases-although necessarily costs in clinical negligence cases are higher than the average-they are nothing like that proportion.
Lord McNally: I never even suggested that. However, I am suggesting that we are talking about processes where the response of the Opposition, and sometimes my noble friends, seems to be yet more lawyers, yet more litigation-
Lord Phillips of Sudbury: I thank my noble friend for giving way, but I must just reply. First, the whole point of my alarming case was to show how desperately needed reform was. Secondly, it was to support the amendment because were aid available to get expert reports right at the beginning, you would know at the outset whether the case was a runner and some of these crazy expenses would be knocked out.
Lord McNally: It still seems barmy to me. Likewise, with regard to the 7,500-page volume mentioned by the noble Lord, Lord Bach, and the noble Baroness, Lady Lister, in 13 years of Labour Government, did nobody think, "What kind of system are we producing that requires that kind of detailed explanation and advice?"? It seems to me that the approach is not reform, as the noble Lord, Lord Phillips, said, but forever putting another layer of wallpaper on an already dirty room. We are about reform and one of the things that we are reforming-again, it would be interesting in wider debates to hear where the Opposition is on this-
Lord Bach: If the Minister's best point is that the volumes on welfare benefits increased in the years of the Labour Government-as no doubt they did in the years of the Conservative Government before, and have done for 30 or 40 years as the system has got more complicated-that is a pretty poor argument for taking out of scope social welfare law, frankly.
Lord McNally: That is not my best point. The best point is that we are having, supposedly, a national debate about welfare dependency and welfare reform. It may be a bit unsettling that a number of reforms are taking place at the same time, but my understanding is that the welfare reforms before this House are attempting to simplify a much overcomplicated process and that that had the broad support of the Opposition. I do not think we are going to win this argument, some of which we will return to.
Amendment 35 seeks to bring into scope legal aid for advice and assistance for appeals to the First-tier Social Entitlement Chamber in respect of welfare benefits that are payable under social security legislation as a result of disability. The intention of the amendment appears to be for legal help and representation to be provided for welfare benefit appeals in the First-tier Tribunal for those with disabilities. Currently, legal aid is available for legal advice only in relation to decisions on welfare benefits in the First-tier Tribunal. Legally aided representation is not available for tribunal hearings because they are designed, as has been said, to be user-friendly without the need for legal representation. Therefore, we believe that this amendment would increase the cost of legal aid by expanding it into areas where it is not currently available.
We recognise that this amendment is concerned about the impact on those with disabilities who are appealing to the tribunal. While we recognise that those with disabilities may face additional obstacles, the tribunal is a relatively informal venue. The tribunal itself will comprise a medical practitioner and a disability expert as well as a tribunal judge when considering disability living allowance appeals. Given this and the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme. I hope that my noble friend will withdraw her amendment.
I have listened very carefully to what the Minister has said and I cannot pretend I am not disappointed by the response. There is no doubt that we need to get
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I will give you one example. Somebody that I have known for 30 years has incredibly complex problems with her back following an accident. She had worked all her life, and was forced to claim benefit. She is so badly damaged, having had multiple operations, that she is incapable of standing for more than three minutes at a time. She spends the majority of her life lying down to take the pressure off her back, and is on incredible amounts of medication. Initially she was assessed as having no problems whatever, and that she could work. While she is a highly articulate person, she is terrified of authority, and so without being pushed by a number of us, and having recourse to legal aid, because she had no money at all, she could never have appealed that decision, which was clearly absolutely wrong.
I therefore really worry about what is going to happen if this goes through. I really hope that the Minister will reflect again and consider bringing back some hope at Report stage. Meanwhile, I beg leave to withdraw my amendment.
Lord Bowness: My Lords, I am a member-together with the noble Lord, Lord Dubs, and the noble Baroness, Lady Hilton of Eggardon, and colleagues from another place-of the Parliamentary Assembly of the Organisation for Security and Co-operation in Europe, the OSCE. The question tonight is about the OSCE and not the Parliamentary Assembly, although there is a connection to which I will return.
Noble Lords here tonight will know the history of the OSCE, but for the record, and to emphasise the breadth of its membership and activities, I will briefly outline its structure and history. Its origins go back to the early 1970s and the East-West détente, and the formation of the Conference on Security and Co-operation in Europe, which became the Organisation for Security and Co-operation in Europe in 1994. In the Helsinki Final Act of 1975 the participants agreed commitments in three security dimensions-political
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There are 56 member states, from Vancouver to Vladivostok, including the largest and the very smallest nations: the USA and Canada in North America, through all Europe to the Caucasus, and into Eurasia, Russia and Kazakhstan. Even the Holy See is a member. The highest decision-making body is the Meeting of Heads of Government, or summits. These are infrequent, the last being in Astana. The Ministerial Council meets once a year unless there is a summit. The last was in Vilnius, last December, at the conclusion of the Lithuanian chairmanship, that role having being taken up at the beginning of this year by Ireland.
The Permanent Council, attended by our Permanent Representative, discusses and decides upon current developments in the area. It meets weekly in Vienna, as does the Forum for Security Co-operation, the chairmanship of which rotates among the member states on a four-monthly basis.
The Vienna Document requires states to share information on their military forces, equipment and defence planning, and provides for inspections and evaluation visits. The Office for Democratic Institutions and Human Rights is involved in the implementation of OSCE commitments to democracy, rule of law and human rights, and plays a particular role in the monitoring of elections. The High Commissioner on National Minorities addresses the problems of ethnic tensions in member states, and works with the states to improve legislation related to such issues. The Representative on Freedom of the Media acts as a watchdog to promote compliance with OSCE values on freedom of the media.
The OSCE is also involved in areas of vital interest to the United Kingdom and its European Union partners. A list of its operations and missions is a roll call of actual or potential trouble spots: Bosnia, Kosovo, Montenegro, Macedonia, Serbia, Moldova, Ukraine, Belarus, Armenia, Azerbaijan, Turkmenistan, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. It is involved in all these vital areas. Important work is done on the ground in activities essential to any state governed by rule of law and democracy, and to all the states in the region, such as control of the spread of illegal arms and border control.
In 2010 the local office in Kosovo, which I visited in November last year, was involved in the following activities: monitoring community rights; property rights, including resolution of problems arising from returning refugees; human rights; rule of law issues; development of the police service; anti-trafficking training; good governance and support for the Kosovo assembly; support for the electoral process; assisting the media regulator; promoting police and public partnerships, and many other initiatives.
The organisation has relations with other international and regional organisations and with Asian and Mediterranean partners for co-operation. The organisation and the Parliamentary Assembly have already been involved in monitoring elections in Tunisia, in which the noble Baroness, Lady Hilton, took part.
A Conflict Prevention Centre works on problems which include Moldova and Transnistria, and Armenia, Azerbaijan and the Nagorno-Karabakh problem. The Office of the Co-ordinator of OSCE Economic and Environmental Activities works on the problems of hazardous waste, energy security and sustainable development in places where-particularly in Soviet times-there appears to have been rather less concern for the environment and the damage caused by industrial process.
I believe that there is a considerable lack of knowledge about OSCE and what it does, not just in the wider world but, with great respect, also in Parliament itself. I therefore pose some questions to Her Majesty's Government. Do the Government consider the OSCE to still be a relevant organisation? Do they believe that an organisation based on consensus can work, when the position of Russia on issues such as Georgia makes resolution almost impossible? Do we co-ordinate our efforts in OSCE with our European Union partners? Surely it is a forum where the elusive CFSP could begin to work. Apart from our budgetary contribution, how far are we prepared to go in funding secondees to assist in the work of OSCE? A 2010 report showed that we provided 48 people. How many are financed now by additional finance beyond our budget?
Why is it that we hear so little from Her Majesty's Government about OSCE, about our position in that organisation and the policies that we seek to promote in it? Since May 2010 there has, as far as I can see, been only one Written Statement following a ministerial meeting. No separate Statement was issued after the Astana summit. The 18th ministerial meeting in December in Vilnius did not even merit a Statement, written or otherwise, to either House of Parliament. The most we have is a blog on the FCO site by my right honourable friend Mr David Lidington, and I thank him for it-any information is welcome-but is a blog, however good, an appropriate way to inform Parliament?
If Her Majesty's Government are convinced of the importance and relevance of the OSCE, surely Statements, written or otherwise, should be made to Parliament after every summit and every ministerial meeting, formal or informal; and from time to time Parliament should be brought up to date with the proceedings of the Permanent Council and the Forum for Security Co-operation. With weekly meetings of both in Vienna, it is difficult to believe that there is nothing in the course of a year which merits some report to Parliament.
This is where I square the circle with membership of the Parliamentary Assembly. As a member of the Parliamentary Assembly, I would find it much easier to fulfil the role of the Parliamentary Assembly, which includes, though not exclusively, assessing the implementation of OSCE objectives, discussing subjects addressed at the OSCE Ministerial Councils and summits, contributing to the development of OSCE and its institutional structures and relations, and co-operation between the existing institutions of the organisation.
The Parliamentary Assembly has problems about the way in which its business is transacted and the use of the time available, but that is for the Parliamentary Assembly to resolve. Without the information, there is no point in putting the time to better use. I believe that Her Majesty's Government could help these objectives to be better fulfilled if Parliament and the public were better informed about OSCE activities. I look forward to hearing the Minister's response.
Lord Dubs: My Lords, I congratulate the noble Lord, Lord Bowness, on initiating this debate. I know that it is normal to congratulate those who have initiated a debate, but in this case he really has broken important new ground. I very much agree with the thrust of what he said, although I find it hard to distinguish between the work of the OSCE as a whole and the work of the Parliamentary Assembly. I prefer to see them as part and parcel of a wider issue.
I have been on the Parliamentary Assembly since the previous election and I have attended two meetings in Vienna and Belgrade. In the next month or two, there will be another meeting in Vienna. In my discussions with colleagues, there is little awareness of the work of the OSCE. It might almost not exist. The first time I told people that I was off to the OSCE in Vienna or wherever it was, most people asked, "What is that?". Even Members of this House and the Commons asked that and I had to explain. There is something the matter with an organisation, which involves a lot of good work, effort and money on the part of its member Governments, if its work is so little known and regarded.
At the first meeting in Vienna about a year ago, I was quite astonished. The OSCE local office in Belarus had just been closed by the regime and we were looking forward to hearing the OSCE official who had been in charge of Belarus. He was due to give us a report on the situation prior to his expulsion, but he did not turn up and we were unable to discover why. In terms of his own ability, there was certainly no reason for him not to come to the meeting, but something in the OSCE bureaucracy stopped him.
I very much appreciate a lot of the good work that has been done by the OSCE, to which the noble Lord, Lord Bowness, referred in some detail and which I shall not repeat. The local offices do good work. Clearly, election monitoring is very important and involves a lot of the organisation's time and energy. The OSCE produces regular bulletins and reports on the situation in many countries about which there are concerns that are invaluable for keeping members of the Parliamentary Assembly informed of what is going on.
I was also appointed to a group of four parliamentarians who looked at the situation in Moldova. We had one visit to Moldova and to the Transdniestrian part of Moldova, which was a useful approach. We are going to continue with that and do some follow-up work. Having said that, I am still aware that one has to explain very hard to people what we are doing and why we are doing it.
In terms of the effectiveness of the organisation, the OSCE operates from three centres-Vienna, Copenhagen and Warsaw-which seems a little excessive
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Surely we need proper accountability by the OSCE to the Parliamentary Assembly. I cannot understand how it can work unless there is such accountability. After all, we and the Commons are here in order for the Government to be accountable to Parliament. I cannot see why we have a Parliamentary Assembly that does not have a similar form of accountability. After all, it happens in the European Parliament. Even the Council of Europe seems to have more accountability than there appears to be in the OSCE.
My key point is that every organisation needs to have within itself the ability to assess on an ongoing basis its efficiency and effectiveness. We do not do it as well as we might at Westminster but we certainly do it. I should like to feel that the OSCE had some form of mechanism that did the same thing, otherwise we have no sense that the money is being spent in the best possible way or that the work is being done as efficiently as possible. We should look at the outcomes to see whether our priorities are right. It is a general proposition that organisations should assess their efficiency and effectiveness, but it certainly applies to the OSCE.
I should say that I have enjoyed my attendance at the Parliamentary Assembly and learning about the OSCE. Despite my criticisms, it does a lot of good work. I should like to know more about it. It is an odd comment to make that I have learnt more about the OSCE from the speech made by the noble Lord, Lord Bowness, than I did in many days of attending Parliamentary Assembly meetings, looking at my e-mails and so on. There is something the matter. Noble Lords might say that that is my fault, but I do not believe that it is. I believe that something is amiss when we have to have a debate such as this to learn about an organisation on whose Parliamentary Assembly I serve.
As I said, I believe that the OSCE does good work. It has the supreme advantage that it includes the United States and Canada, which the Council of Europe does not. We get a broad spectrum of countries that can bring their experience and strength to bear on the many difficult issues in some countries, such as breaches of human rights, problems with elections and so on. I congratulate the OSCE on its good work but I would like to see better scrutiny and more accountability.
Baroness Stern: My Lords, I join the noble Lord, Lord Dubs, in expressing very warm thanks to the noble Lord, Lord Bowness, for securing this short
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My knowledge of the OSCE in no ways matches the noble Lord's but it goes back a long way. I first became involved nearly two decades ago through the Office for Democratic Institutions and Human Rights, or ODIHR for short-an acronym I shall continue to use, although it does not sound as enthusiastic as it might. It is the OSCE's work in relation to democracy, human rights and the rule of law about which I want to make a few remarks this evening.
In the mid-1990s, that office was headed by a very distinguished British public servant, Audrey Glover, who was a former legal adviser to the Foreign Office and a most eminent contributor to human rights and the rule of human law. This was the time when the newly independent countries of the former Soviet Union were beginning to reform their legal systems and prison systems. ODIHR was in the forefront of that work and did a great deal of good.
Over the years, the work of ODIHR has developed in line with the changing times. Now, as the noble Lord, Lord Bowness, pointed out, much of it is concerned with how far elections are free and fair. For example, last Thursday, 12 January, an OSCE report was released on the state Duma elections held in Russia in December. That report noted that although the elections were technically well administered, the election administration was not independent. The count was characterised by frequent procedural violations; there were instances of apparent manipulation, including several serious instances of ballot box-stuffing; and there was undue interference by state authorities at different levels. Therefore, the election was slanted in favour of the ruling party. I am sure the Minister would agree that having an independent report like this in the public domain is invaluable and that probably only the OSCE could produce it.
A fair and impartial legal system is the bedrock of a state run according the rule of law. For some former Soviet countries, it has been a hard struggle, a struggle that is still going on, to achieve that. I am sure the Minister would also agree that a conference held in Ukraine last month about strengthening the independence of Ukraine's judiciary, where specific and pragmatic suggestions for change were made, was important not just for Ukraine but for the rest of us in Europe.
Next week, ODIHR is organising a visit to Croatia for officials from the Ministry of the Interior and the security services training school in Tajikistan to learn about the methods of teaching on human rights and countering terrorism used by the Police Academy of Croatia. I imagine that we can all see the advantages of such a programme, and once again the OSCE is the organisation best placed to arrange it. However, in case this sounds a little theoretical, I want to bring in a little personal experience.
A year ago, I attended a number of events organised by the OSCE office in Dushanbe, Tajikistan, to coincide with UN Human Rights Day. I much appreciated the efforts of our excellent and hard-working embassy there to arrange my participation and to support the events. One of the events was a very big meeting to
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On my second visit, which was this year, the OSCE office allowed me to attend a meeting of the non-governmental organisations they worked with and supported in the law enforcement and justice sector. These organisations tried among other things to provide legal representation to arrested people, to raise concerns about ill-treatment and to visit prisons-not easy or very safe work. The support from the OSCE was enormously important to them and made it possible to do that work, otherwise it would not have been done.
Why is this important and why should the UK support it perhaps a little more energetically than it does at present? The promotion of human rights, democracy and the rule of law is in the interests of all of us, and the work of the intergovernmental organisations that support it has made a huge difference to the shaping of the post-Soviet world. The OSCE brings to that reshaping two important factors: first, it has a broader remit than the Council of Europe; and, secondly, it brings together security and human rights. That conjunction is vital if we really want a more secure world.
The OSCE calls its human rights work the human dimension, and the human dimension is indispensable for real security. Additionally, its work is very important in countries that are not in the Council of Europe: the countries of central Asia, for instance. For them, the OSCE provides a forum where they can interact with European colleagues on an equal footing through regional and international events, allowing them access to expertise and best practices that they would not otherwise encounter.
What is Government's policy on seconding British expertise to the OSCE and in particular to ODIHR, where people from the United Kingdom made such a contribution in the past? Are we still enthusiastic about seconding people? Do we encourage groups to come here to see good practice: for example, in dealing with violence against women, where we have some of the best services and approaches in the world which those involved would be most willing to share, or in detention monitoring and security sector reform? Does the FCO offer UK expertise to ODIHR when it is looking for help with training, such as in human rights and the rule of law? How far do the Government see the OSCE's work in human rights, democratisation, the protection of minorities and resolving conflict as a valuable part of the achievement of UK ambitions in these areas? If indeed the Government value that work, could they perhaps develop ways of showing that enthusiasm a little more than they do currently?
Lord Patten: My Lords, it is reasonable and fair from time to time to point a finger at any organisation. Rather like the small child who had the unfortunate experience of watching Lord Randolph Churchill canvassing and pointed his finger and said, "Mama, Mama, what is that man for?", it is quite fair to point a finger at an organisation from time to time and say, "What is that organisation for?". There will be more of that later on in my speech.
It is also very important to judge the OSCE against the things to come in 2012; 2012 may see more dangerous moments than have been seen at any time since the end of the Cold War, the events of 9/11 included. The litany is long and scary: Iran, North Korea, India-Pakistan and the side-winds of withdrawal from Afghanistan, Syria and the flashpoints around Mediterranean. Add to that not just that Russia at the end of December fired a salvo of two Bulava-30 intercontinental missiles from the White Sea to hit its targets on the Kamchatka peninsula, nearly 5,000 miles away, at exactly the same time as China formally confirmed for the first time in a statement from its Ministry of National Defence that it had also successfully fired from a submarine some Julong-2 ballistic missiles in the face of the imminent Taiwanese elections, and the atmosphere for 2012 can be seen to be pretty turbulent, to put it delicately, at a high level.
All these issues arise in the middle of severe economic difficulties in Europe and the US that affect our capabilities in everything from conflict prevention and resolution to hardcore defence. The West must not fail in economic regeneration, for the old USSR failed as its old economic system failed and lost as a result military and economic power, which are simply inseparable.
Yet the new economic reality demands difficult but necessary cuts in capabilities of all sorts. We see this with the United States. I do not know the current view of the United States Government on the OSCE, but President Obama issued new strategic guidance on 5 January this year, coincidentally just after those Russian and Chinese missiles started flying. His announcement demonstrated that, just as we in the UK once faced up to the need to withdraw from east of Suez, so the US is now pulling back a bit, for reasons that I fully understand, from west of Suez. It is quite clear and quite deliberate. This is not only in the face of the difficulties of funding the most capable armed forces that the world has ever seen-the Pentagon being much larger than that of the next 10 countries combined-but, I sense, because President Obama sees himself as a Pacific president and not as a European president. Unfortunately-and I think this applies right across the political spectrum in the United States-the US also sees most European countries as not even, when the going was good, fulfilling their defence responsibilities to the extent of, let us say, spending 2 per cent of GDP per annum, with the honourable exceptions of France and of the United Kingdom. Not only that but the forces that they do have left are not deployable. My right honourable friend Philip Hammond was right to say earlier this month in the US:
Less diplomatically, I would say that most NATO countries are getting a free ride. It is because of that and because of American disillusion that we see, Dover beach-like, the slow, almost unnoticed, withdrawal of once very detailed and intense American involvement in Europe. Their attention is going elsewhere. I do not see this as declinist in any way; I simply see it as realistic and reasonable on the part of the United States. We must set the OSCE against this background. I do so declaring my interests as recorded, but also I have nothing in the way of foreign affairs expertise to declare-no membership of even the smallest think tank.
How should we see the OSCE? It is itself a creature of the Cold War, as my noble friend Lord Bowness said in his splendid introductory speech, but now boasts 56 members, ranging geographically in a pretty contorted way from the US all the way through to those "-stans" in central Asia. None of the countries at either end of this geographical arc is exactly European, although the core of the membership most certainly is. No longer is the OSCE a Cold War forum for better East/West understandings as it once was. It now has-and I have done my research-three self-styled dimensions: politico-military, economic and environmental, and human.
Conflict resolution, for example, is part of its remit, and I applaud that. It does excellent work. However, it is interesting watching the delightfully titled-and I do not make this up-"chairperson in office" at the head of the OSCE. That is what he is called. The rest of his title is Irish DPM, Eamon Gilmore. When presenting his 2012 priorities last week in Vienna on 12 January, he ranged over an extraordinarily lengthy and sprawling shopping list, from protecting freedoms of expression in the digital age to money-laundering and back again. It is very hard to get one's hands and arms around these concepts as always necessarily being integrated. Discussion of money-laundering must be very interesting indeed, and I imagine sometimes quite amusing, when Governments of member countries like Belarus or Montenegro are brought to account.
The big question in asking what the OSCE is for is whether we would today invent such a geographically extraordinary, democratically diverse and sometimes very unfocused organisation that is largely unknown to most politicians and opinion-formers, let alone to the general public. We would almost certainly not invent it in its present form, despite the good work that has been done, which I do recognise; it has, for example, brought Russia to the bar of world opinion over the Georgian situation, tried to help resolve the Nagorno-Karabakh conflict, and all the rest.
Am I going to say that it should be abolished? Again, probably not, at least not at the moment, on the grounds that it is there; that it brings together all sorts of good countries, indifferent countries, bad countries, and some very bad countries indeed from Europe and central Asia, in the spirit of jaw-jaw being better than anything else; and that it tries to encourage the setting of better standards and freedoms, even if these are much more honoured in the breach in the case of Belarus and a number of the aforementioned "-stans".
Does it need reform, and does it need more focus? Surely the answer is that someone has to get a grip on this organisation, reform it and give it some focus so that one can point one's finger at it. I will then readily understand what this organisation is for. To get greater credibility, even though it is a consensus-driven organisation, it might have to face up to suspending some of its freedom-repressing members until they decide to reform themselves rather than benefit from the cloak of respectability that is thrown around their shoulders from simply having OSCE membership bestowed upon them. It is politically very poorly led. No one is getting a grip on it or giving it a political lead.
I end on this point. In March this year, NATO, which is in high-profile difficulty, as many of your Lordships will know, hopes to begin to try to resolve at the forthcoming Chicago summit of NATO countries some of the difficulties that are facing it. OSCE's difficulties are of a much lower profile. As a number of other distinguished speakers have already said, it has such a low profile that most people do not know that it exists. However, it too needs the treatment of such a summit, or of some similar mechanism, urgently to resolve what it is really for. I do not know the answer to that at the beginning of 2012.
Lord Liddle: My Lords, once again the noble Lord, Lord Bowness, has done the House a service in raising this Question for Short Debate about the future of the OSCE. We would all like to thank him and my noble friend Lord Dubs for the work that they do on its parliamentary assembly.
As my noble friend Lord Dubs said, many people, including many parliamentarians, have probably never heard of the OSCE and there is always a temptation-I think that the noble Lord, Lord Patten, is going in that direction-to see the organisation as some kind of redundant hangover from the Cold War, an organisation that has outlived its time, a fossilized relic of the past. You can think of all the phrases. On this side of the House we would certainly agree with him that the Government should be asking the OSCE to justify itself. There should be more information in this House and in the other place about the activities of the OSCE and the value that it is creating. However, from listening to the noble Lord, Lord Bowness, my noble friend Lord Dubs and the noble Baroness, Lady Stern, it is clear to me at least that it would be wrong and misguided to rush to the judgment that the OSCE should go. We say that because it is a multilateral organisation-we are committed supporters of multilateralism-working in one of the most difficult and troubled areas of the world. The Deputy Prime Minister does not get many tributes these days, but he deserves a generous tribute for his decision to attend and speak at the OSCE's summit in Kazakhstan just over a year ago.
We live in a dangerous world where, if anything, the trends are against multilateralism and commitment to multilateral organisations. Emerging powers such as China put much more emphasis on their own sovereignty, not on working together in multilateral organisations.
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We know that that lofty ambition has not been fulfilled. Vladimir Putin has redefined democracy in Russia as something he calls "sovereign democracy" and we do not know quite what that means. There has been a war in Georgia between two OSCE members and there are many other troubles throughout the region.
I agree with the noble Baroness, Lady Stern, that we can be critical of the OSCE's work and say that it is inadequate, but it is doing something to deal with human rights abuses, democratic flaws and the absence of the rule of law in some of the most difficult areas possible. Of course the responses are inadequate. If you have an organisation where 56 participating members have to agree and one of them is the mighty Russia, it is going to be difficult to get things done. However, the role that the OSCE plays in the areas of election monitoring, human rights and media freedom is a valuable one. It is a bit better than a case of "stick with nurse for fear of something worse". There is a real role for this organisation.
From this side of the House, we would like to know what the Government think about the possibilities of making the OSCE more effective. My noble friend Lord Dubs asked some relevant questions about the relationship between the organisation and the assembly that is supposed to monitor it. He asked what steps have been taken to review its efficiency and effectiveness. The noble Lord, Lord Bowness, asked whether we support it, whether the Government are prepared to back it with resources-I am thinking of staff secondments in particular-and whether we are prepared to use our diplomatic efforts to build alliances within it. For instance, do we work in it within an EU framework as we now do in many international organisations?
The OSCE could be more effective in partnership with the European Union. My noble friend Lady Crawley gave me the latest edition of the magazine that we get from Azerbaijan, which referred to my noble friend Lady Ashton's visit there quite recently when she talked about the EU working with the OSCE Minsk Group in trying to resolve the Nagorno-Karabakh conflict. We have leverage over the EU as well as being members of the OSCE. How are we working to try to make those interventions more effective? The EU has real leverage that it can bring to bear in terms of its budgets, its trade access and of course visas.
The work of the OSCE is more relevant in the Balkans where there is enlargement fatigue regarding the EU. If we think that we are not going to be able to get enlargement in the next decade or so, we need to continue to support the OSCE. More than that, we
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Lord Wallace of Saltaire: My Lords, if the world were straightforward, and all states were democratic, I am sure that we could have a number of effective, well organised and well respected international organisations.
In thanking the noble Lord, Lord Bowness, for initiating this debate, I should say that I was reminded how far back we all go. Some of us will remember the Helsinki Declaration and the Final Act of 1975, and the extent to which that set of criteria-particularly the human rights dimension-was part of the way in which democratic states gained leverage over socialist states. Dissidents within those states felt empowered because they were able to quote at their rulers the standards which they had signed up to. I remember in particular some extremely brave former dissidents in Prague, whom I got to know in the early 1990s, who told me how they used to quote these things at length at the secret policemen who were inspecting and searching their apartments when they were holding meetings there. I also remember, as a former think-tanker and, at one point, the secretary of the British-Soviet Round Table, the extent to which the fact that the Soviet elite wanted to be thought of as civilised Europeans gave us some degree of leverage over their behaviour.
After that, when the CSCE became the OSCE in the early 1990s, there was a brief period of tremendous optimism that it would become a core organisation for a post-socialist Europe. Those hopes were disappointed, but nevertheless I would argue, and Her Majesty's Government would argue, that it remains a useful organisation-even though it so often operates in the margins of international relations-with the constructive ambiguity of providing modest leverage to improve the behaviour of states which are perhaps less democratic and less concerned about the rule of law than many of us would like.
I should declare an interest. I spent some time working with my former employer, the London School of Economics, in a series of training courses for Kazakh officials before they took over the OSCE chairmanship. It was a useful exercise, partly because we saw a large number of Kazakh officials who were interested in the role of the OSCE and how it affected Kazakhstan's role in the world. Therefore, this is all part of a process at the margins, in which we begin to inform each other about our different domestic standards.
However, the nature of the organisation, which, as noble Lords have remarked, is based on consensus, is that all progress is slow and major change is rare and hard earned. I would suggest to the noble Lord, Lord Patten, that, if there are good arguments for remaining an inclusive organisation, which I would suggest there
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Noble Lords have mentioned that there are three dimensions. There is the security dimension, on which a Written Ministerial Statement was laid in both Houses on 25 November 2011, advising of the British decision to take legal and proportionate countermeasures against Russia in response to Russia's suspension, in 2007, of participation in the Treaty on Conventional Armed Forces in Europe verification arrangements. On the second dimension, which is the economic and environmental dimension, most of the work is quiet and expert, and a matter of missions coming and going, but, as noble Lords have suggested, it is nevertheless useful work. Much of our debate so far has been about the third dimension, the human dimension in all its complexity, including in particular the work of ODIHR in inspecting elections.
I am informed that the OSCE is much better known among the public and Parliaments of those member states east of Vienna. It is not as well known in Britain, partly because we need the OSCE less. I inquired about this and am happy to remind noble Lords that there was indeed an OSCE mission to observe the British general election. That is quite right; there had to be. There was an OSCE mission to observe the previous US presidential election, which I understand did not manage to agree the quality of its report. The OSCE mission to oversee the Duma elections will be repeated to oversee the Russian presidential elections. I imagine that a number of us will look forward avidly to that report when it comes.
Some noble Lords asked for much greater efficiency and effectiveness in the organisation. Of course, we would all like that. However, when one is moving with a number of very reluctant member states-I have spent a lot of time since 1989, as well as before, arguing with senior Russian officials-one can only move slowly. One also needs to be careful to preserve the autonomy of the secretariat. The United Nations itself is not a perfect or efficient-or often effective-organisation. Nevertheless, it is a useful organisation. We all recognise the limits within which we have to operate.
The noble Lord, Lord Bowness, asked a range of questions, which I will try to follow. On his question about whether the OSCE has joint EU operations within it, I am informed that it was one of the first bodies to which the EU applied joint action post-Maastricht. The United Kingdom supports that. However, nearly half the membership is now drawn from the membership of the EU, and one has to say that on a number of sensitive issues there is not entire consensus within the EU. The relations that some EU members have with Russia, for example, are very different from those that the UK would wish to have. The amount of pressure that is put on Russia in view of its role in some of the frozen conflicts with which the OSCE is
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Therefore, we have a mixed record on frozen conflicts. The Minsk Group, the group that deals with Georgia and the various consultations that deal with the Moldova-Transnistria conflicts have not made as much progress as we would have wished. Progress in the Balkans has been rather better. I remind noble Lords that the largest of all the OSCE field missions is the mission in Kosovo, which continues to work. Progress in the Balkans has been a great deal more encouraging.
The noble Lord, Lord Bowness, asked how far we are prepared to go in funding secondees. We currently fund three civilians in OSCE field presences but have no further plans at the moment to finance additional secondees. The 2010 report suggested that we were funding some 48 national secondees. I can confirm that, as of the beginning of last year, we were indeed funding 48 UK national secondees and contracted staff, of whom three are funded by the UK Government through the FCO budget and the others through the common budget.
The question of how much the Government should report to the two Houses on the OSCE is one that we take on board. Perhaps there should be more Statements to Parliament. That is something that we will take back and consider. With hindsight, we recognise that noble Lords might have welcomed a Written Ministerial Statement about the Astana summit in December 2010, where the British delegation was led by the Deputy Prime Minister, and the Vilnius Ministerial Council in December 2011.
Perhaps there is an argument for greater visibility but much of the useful work of the OSCE is done partly because an enormous amount of political capital is not made out of it. We regret that there is on occasion a degree of rivalry between the Parliamentary Assembly and the OSCE's secretariat as such and we would very much like to see the Parliamentary Assembly and the OSCE secretariat working more closely together. We encourage members of the OSCE Parliamentary Assembly to bring what they have learnt back into the British debate. I recall that on one occasion the noble Lord, Lord Judd, did his work on Chechnya through the Council of Europe Assembly and brought that back very actively into the British Parliament.
I think that the OSCE operates from four centres, not only from three. I think that there is also an office in The Hague. I will check that and will write to the noble Lord, but that is one of the necessary ways in which international organisations have to operate. The EU, after all, has offices scattered through the majority of member countries. However, I agree strongly with the noble Baroness, Lady Stern, that only the OSCE could have provided the quality of report that it did on the Duma elections. This is not in any sense a perfect organisation but it provides useful work. It works by consensus, which is both its strength but also its weakness as it means that decision-making is ponderous when each participating state has an effective veto on most substantive action.
This Government believe that if the organisation did not exist there would be a significant gap in the family of international organisations, particularly in respect of wider European security issues. We will therefore support fully our Irish colleagues throughout this year in their chairmanship in office in our own right and, as appropriate, in concert with a large number of like-minded partners which we have within the organisation. The nature of the OSCE all but excludes earth-shattering new developments and agreements. Nevertheless, it plays a valuable role in European security in promoting the values which we and many of our partners share.
(a) private family law;
(b) any benefit, allowance, payment, credit or pension under-
(i) the Social Security Contributions and Benefits Act 1992,
(ii) the Jobseekers Act 1995,
(iii) the State Pension Credit Act 2002,
(iv) the Tax Credits Act 2002,
(v) the Welfare Reform Act 2007,
(vi) the Welfare Reform Act 2011, or
(vii) any other enactment relating to social security;
(c) all areas of employment law not otherwise covered in this Schedule;
(d) all areas of housing law not otherwise covered in this Schedule;
(e) all areas of debt-related disputes not otherwise covered in this Schedule;
(f) all areas of immigration and asylum law not otherwise covered in this Schedule;
(g) all areas of clinical negligence law not otherwise covered in this Schedule;
(h) consumer law;
(i) all areas of consumer law not otherwise covered in this Schedule;
(j) appeals to the Criminal Injuries Compensation Authority;
(k) reviews or appeals under sections 11 or 13 of the Tribunals, Courts and Enforcement Act 2007; or
(l) appeals to the Supreme Court."
Baroness O'Loan: My Lords, I have put my name to the amendment, which seeks to restore families with dependent children to the list of those eligible for legal
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We in this country have to make many decisions about how we spend our money. In November last year, the Government affirmed their commitment to spend £200 million on an airstrip in the south Atlantic, for St Helena island, which has 4,000 inhabitants. As we contemplate our reasons for doing that and observe similar expenditure, we should ask ourselves: what would be the consequences of removing access to legal aid from the poorest and most marginalised families in our country? The Minister spoke earlier today of the hard choices faced by government. They are infinitely harder for those upon whom these choices and legislative changes will fall.
Some 650,000 of the poorest people will be deprived of the access that they currently have through solicitors, CAB law centres and other advice centres that are estimated to provide services at a cost of between £150 and £200 per case. Justice for All, a coalition of some 4,000 organisations, has estimated that approximately 140,000 children will be affected by the proposed measures as legal aid is withdrawn from the adults who care for them, and that at least 6,000 children will be deprived of legal aid altogether. It is also estimated that 57 per cent of those who will no longer be able to access specialist advice on welfare benefits are disabled-about 78,000 people. Where those disabled people are part of families with dependent children, or where dependent children are living in a family, they will encounter even more marginalisation as a result of the consequential difficulties of access to specialist advice.
We know from the recent Save the Children report that 45 per cent of parents living in severe poverty are considering cutting back on food to pay energy bills. Many families with very low incomes, lacking job stability because of the area in which they live, facing deprivation on a scale of which most of us have little experience and living in overcrowded accommodation, nevertheless provide a stable and strong base from which to launch their children into the world as active, contributing members of society. When they face legal challenges, they should be supported, because it is the right thing to do and also because if we do not, they may find themselves unable to maintain their family lives and will inevitably become a cost to the state.
I want to say a word about private family law. Great concern has been expressed about the fact that private family law cases have been excluded from legal aid provision. Not all cases of family breakdown are susceptible to mediation or even to the type of collaborative law project discussed earlier. There will inevitably be cases where legal aid and advice is required by families. Concerns have been raised about cases in which a child is unlawfully removed from one part of the United Kingdom to another, and about cases in which a spouse has suffered prolonged violence during a relationship or has other problems, such as extreme poverty, illiteracy or even as simple a thing as no one to mind the children. That person may not have the capacity personally to challenge the other in the courts to try to recover the child. If it has to be done before the courts, under the proposed arrangements, it could result in two spouses both personally conducting their cases in court-surely a recipe for all sorts of failure in the delivery of access to justice.
Legal aid is not being withdrawn for international child abduction cases. The effect of moving a child from Barnstaple to Belfast may be as difficult as moving a child from Barnstaple to Brittany. In such cases, the safety of the child may be at risk. There is the risk of psychological and emotional damage because of their inability to contact the second parent, or the risk that the parent who looks after the child ensures that the child has a distorted and damaged view of the action of the other parent.
To make a blanket provision excluding all private family law cases is neither proportionate nor necessary. The ultimate result will inevitably be a significantly enhanced burden on the individuals concerned and further involvement of the various statutory agencies, which carries its own cost.
We discussed benefits just before the dinner break. I therefore do not intend to say any more, other than that benefits are not something extra to a family's income, they are the family's income. They are that which enables the family to function, and there are good financial reasons to continue to provide the current low-cost legal assistance which has been available to date.
In cases of employment, as with civil litigation, access to legal aid permits a screening of cases, which facilitates the handling of such cases in a reasonably effective manner. The removal of access to pre-tribunal advice will have consequences similar to those which are being predicted consequential to the removal of legal aid for civil litigation. People will bring actions before tribunals without advice and, because of their lack of knowledge of tribunal procedures and employment law, there will undoubtedly be delays, additional adjournments and a necessity for the tribunal chair to ensure that litigants have equality of access in the absence of appropriate representation, particularly where the respondent is legally represented, as is the case in most employment tribunal applications. The cost of providing this service will inevitably rise.
There is a significant risk that the removal of legal advice in such cases could result in an awareness that employees have much reduced opportunities to assert their legal rights, with a consequent lowering of general
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Although housing advice is being retained for those at imminent risk of homelessness, there will nevertheless be situations in which people have serious housing benefit problems or other housing-related issues. One example given by Justice for All involves a woman who had previously attempted suicide and her 11 year-old daughter. They were living together and both were receiving psychiatric help following the suicide attempt. They were subjected to a campaign of harassment by newly arrived neighbours. There was verbal abuse, poison-pen letters, and endless complaints about the puppy which they had happily owned but which had to go because of complaints about noise. Shelter, using legal aid, was able to get them rehoused. People in this situation have been known to feel, as this lady did previously, that their only escape lies in suicide. What would this woman have done had she not been able to go to Shelter for help?
Many people in this country are living on the minimum wage, which amounts to less than £200 a week, or on benefits such as jobseeker's allowance, where the weekly benefit is £53.50 for a person under 25 or £67.50 for a person over 25. I ask noble Lords whether they could live on even £67.50 a week, after housing benefit of course. People in this situation live from day to day and from week to week. Planning ahead is not really possible. Meeting the costs of sudden illness or a reduction in working hours, which is happening to many people across the country, is a burden too far. Pay-day loans and other debt solutions are an unwarranted and disliked solution in such circumstances. They simply tie the borrower into the debt spiral, often with massive rates of interest, and the borrowers know this but they have nowhere else to go.
Debt causes stress and illness, and it leads to conflict and tension in families. People who find themselves in intractable difficulties despite their wish to work need help, such as that offered by money advice agencies, to access benefits to which they are entitled, to make a manageable agreement to repay their debts and ultimately to avoid losing their homes. If such advice and help is not available in the early stages, the consequences are almost inevitable. The cost to the public purse of the splitting up of the family is equally predictable in terms of sickness, housing costs, welfare benefits and access to medical services.
I want to say a brief word about immigration, which I have also included in the amendment. Trafficked persons and children would have no access to legal aid under the Government's proposals. Refugees would not have access to advice about cases involving bringing members of their family to safety, and there would be no legal aid for many immigration judicial review cases, thereby reducing the accountability of the UK Border Agency.
Clinical negligence we have discussed at length, and I shall say no more other than that the King's College, London, report is fairly persuasive that the ultimate
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There are compelling reasons to provide legal aid and advice for those families who would qualify in these circumstances. Acknowledging these issues, the Government have announced £20 million of funding to support people affected by the cuts. However, this is limited to the current financial year. There will be no capacity for sustainability in this measure. CAB research, which has not been challenged, has shown that for every £1 of legal aid advice and expenditure, the state potentially saves £8.80.
It is very clear that the attempts to remove access to justice from the most marginalised and deprived of our families will cause immense damage. Families with dependent children face not only the challenge of trying to make money stretch and to remain healthy, but also the challenge of producing the citizens of the future. If those children grow up knowing that their parents have no access to justice, how can they believe that this society cares for its weak and its vulnerable? How many families will splinter under the combined weight of lost jobs, lost expectations, reduced benefits, rising interest rates, and our failure to provide them the access to justice which will enable them to be, in the Government's words,
Baroness Benjamin: My Lords, I have put my name to Amendment 33, which seeks to retain legal aid in cases where a child will be affected by the outcome of a case brought by a parent or guardian. Many children are affected by civil law problems and family cases involving their parents or guardians, even though they themselves are not the applicant or claimant. The Government have said that,
However, this is not in fact the case under the proposals in the Bill. I know that the Government recognise the importance of legal aid funding in a range of cases where children's interests are paramount, which is good news. There are, however, still areas that cause grave concerns to many charities and organisations across all parts of society, and which unfairly affect children. They are: housing; welfare; immigration; domestic violence; clinical negligence; criminal injury compensation; and education. This will probably be due to their parents' lack of financial resources and ability to navigate the legal system. Their parents may also be hindered by disability, language barriers, poverty, and mental health issues. These are no good reasons for children to be penalised.
Almost 150,000 children under 18 will lose the civil law and family law protection provided by legal aid. They are currently helped by legal advice or representation in court to deal with problems that are no fault of their own. Children are the named party in 6,000 cases per year that will no longer qualify for legal aid, and are financially affected by more than 140,000 cases per year involving their parents. The amendment would ensure that where dependent children will be affected
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For welfare benefit advice, currently 135,000 advice sessions per year are funded by legal aid. Under the Bill's proposal, however, legal aid's support for benefit advice is being abolished. In tribunal appeals where the applicant has legal advice, 55 per cent of all Department for Work and Pensions decisions to cut benefit are found to be wrong and are overturned. About 36,000 children are affected each year who come from the lowest income families, for whom losing the benefits they are entitled to will make a significant difference to their lives. As I have often said, childhood lasts a lifetime and the adversities children go through when they are young will in most cases stay with them for ever and affect their adult lives.
The NotSeen and Not Heard report, commissioned by Just Rights and the Law Society and published in September last year, found that 140,000 under-18 year-olds every year are likely to be affected as dependents by the withdrawal of legal funding for cases. That figure is made up of 68,000 children a year involved in family contact and finance disputes; more than 36,000 in cases where legal aid has been removed from welfare benefit cases involving their parents; and around 40,000 children affected by their parents' housing, debt, consumer, immigration and clinical negligence cases, which currently are all supported by legal aid.
The children and young people who will be affected by these changes are some of the most vulnerable in England and Wales. Eighty per cent of young people reporting civil legal problems also face other challenges and disadvantages. These children and young people will be left to navigate the legal system and face the courts alone. This cannot be right and proper. We cannot let them down in this way because we know that when young people do not get advice, their problems escalate. Recent research showed links between civil legal problems and crime. Young people who had recently been arrested had higher levels of housing, debt and benefit problems-key factors associated with reoffending-and 55 per cent of 16 to 24 year-olds who had been recently arrested reported experiencing at least one difficult-to-solve civil justice problem.
This statement is not upheld by the proposal in the Bill, and we cannot justify this. We have to show fairness and compassion to all our children and young people, especially the disadvantaged, if we are to have social equality.
The Government say that their legal aid changes aim to save money, yet the costs of civil legal aid for children, mainly in advice, are small compared with the potential savings, and the cost of not providing advice is far greater. Research from Citizens Advice found that for every £1 of legal aid expenditure on benefits advice, the state potentially saved £8.80. Reducing family legal aid provision will lead to more people
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"Legal aid is already limited to those who cannot pay for legal assistance by any other means and thus provides a safety net to ensure protection and equality for the vulnerable and disadvantaged ... This includes children who will suffer as a knock on effect of limited access to justice for their parents or carers, whose decisions will impact on them".
We must not turn our backs on the most vulnerable in our society-those without a voice and those who will most certainly be fundamentally affected. The proposals laid out in the Bill will do just that if the right safeguards are not put in place to protect children's well-being. I hope that the Government will secure protection for this highly vulnerable group by ensuring that when children are involved, legal aid will continue to be provided. Finally, I leave my noble friend the Minister with this thought. Research shows that children in Britain are considered to be some of the most unhappy in the world. I plead with the Minister: let us not compound this. Please accept this amendment.
Lord Howarth of Newport: I have a number of anxieties about the impact of the Government's proposals on children in painful and difficult situations. If the Minister can reassure me that my anxieties are misplaced I shall be more than pleased. However, I suspect that they are valid and that a number of amendments in this large group would be helpful.
First, I am concerned about inequality of arms. Wealthy people will be able to go to court armed with their lawyers while people on modest incomes will not. They will therefore appear either as litigants in person or cave in and be defeated because they lack the legal advice and support that would allow their case to be heard on a fair basis. Secondly, legal aid is to be confined to cases of physical or sexual assault. Surely that is too narrow. It will leave unhappy children in inappropriate residential and contact arrangements, split off perhaps from siblings and grandparents. We should surely widen the range of circumstances in which legal aid is available in support of children in those situations.
Thirdly, I think that there will be a perverse incentive. If an allegation of abuse would be a gateway to legal aid, some parents may be tempted to up the ante. In particular, we should be concerned that there may be cases where there has been some violence during the breakdown of the marriage or relationship but there is
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Fourthly, there is possibly another perverse incentive if a trigger for legal aid is to be the existence of a formal child protection plan. Some parents may be tempted to allege child maltreatment when other forms of help would be more appropriate and better for the children. Clogging up the child protection system could be disastrous. Again, more private law cases could spin over to the children's social care workload which is already staggering following the Baby P case and will be under immense pressure with the cuts to come. There will be more formal child protection investigations and more case conferences, often when a more consensual approach would be more in the interests of the child. I fear that there will be increased and prolonged bitterness between parents.
Finally, while the Bill does not propose changes to legal aid for children and parents involved in public law care, clogging up the system with private law cases and litigants in person will have an adverse effect on the speedy resolution of such cases in the courts. That will be harmful, particularly to young children for whom it is very important to have a speedy return to permanent family arrangements, whether with parents, relatives or adopters.
Baroness Eaton: My Lords, I rise to speak to Amendment 34 standing in my name and the names of my noble friends Lord Newton of Braintree and Lord Cormack and the noble and learned Baroness, Lady Butler-Sloss.
The reductions to the provision of legal aid as proposed in the Bill will leave 40,000 children and 69,000 18 to 24 year-olds struggling with serious legal problems relating to employment, education, welfare benefits, homelessness and debt. Children and young people affected by these changes are among the most vulnerable in our society, with 80 per cent, as we have already heard from the noble Baroness, Lady Benjamin, of young people reporting civil legal problems also facing challenges and great disadvantages.
The cost of legal aid for children is small compared with the total amount spent on legal aid. The cost of fully protecting all children up to the age of 18 from the cuts to legal aid would be £10 million, which is the equivalent to the cost of imprisoning just 71 young offenders. For young people aged 18 to 24, the cost is £40 million, less than half the weekly cost of youth unemployment. The cost of not providing appropriate legal advice is far greater. We know that when young people do not get advice their problems increase. There are well researched links between civil legal problems and crime. Many young people who have been arrested have higher levels of housing problems, debt and benefit problems, all of which are key factors influencing reoffending. Fifty-five per cent of 16 to 24 year-olds arrested were experiencing at least one difficult to solve civil justice problem.
There is substantial evidence of an adverse impact of legal problems on young people's mental and emotional health, with 34 per cent of 18 to 24 year-olds not in employment, education or training reporting stress-related illness as a result, and more than one-third going on to use National Health Service services. Citizens Advice estimates, as we have heard before, that for every £1 saved by the removal of legal aid, the Government will spend £8 dealing with the social, judicial and health issues that will result.
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