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On the bandwagon effect, subsection (4) of the new clause proposed under Amendment 5 in the name of the noble Lord, Lord Bichard, states:

"Guidance produced for the purposes of subsection (3) ... shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice".

The noble Lord may think that he will cut down the number of criminal records checked but, faced with the matter of best practice, individuals running charities, voluntary groups and sports clubs will face ever greater pressure to obtain an enhanced criminal record certificate. It will be argued that this is needed to be on the safe side. Charities have groups of people which depend on CRB checks, so they are not going to say it is not needed; rather they will say that, for access, it is best practice.

We saw lots of examples in the evidence given to us before we completed our report, Unshackling Good Neighbours. It is tragic to see how many people, rightly or wrongly, are put off from volunteering because they do not want to be CRB-checked. In many cases they did not need to be CRB-checked, but the authorities thought they should be in order to be on the safe side. The University of Oxford has advertised for students to help invigilate in its museums. The job requires sitting in a room or corridor and watching the exhibits so that visitors cannot remove or destroy them. But they now have to be CRB-checked. It is hard to see how the job falls within the requirements of a CRB check but, to be on the safe side, that is what the university wants to do.

Last, I turn to the atomisation effect. Social scientists say that our society is becoming atomised, as they call it, and social media mean that we live increasingly isolated lives. The noble Lord, Lord Bichard, in an

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interesting article in the House Magazine this week, talks about how social media provide the opportunity for grooming, and I agree with him absolutely on that. I said in my speech at Second Reading that this is one of the most difficult areas we have to tackle going forward. However, if we are not careful, we will enhance the selfish gene which lies within all of us. People say that they see no reason to help their town, village, street or community. To reverse this trend and encourage people to reconnect and get involved, we need to welcome them, not treat them as criminals.

It is a fact, thank goodness, that a fractional minority of people seeks to prey on children. The overwhelmingly vast majority of our fellow citizens are decent, law-abiding and want to do their best. It is with these people in mind that I urge my noble friend not to accept these amendments.

Lord Peston: Is the noble Lord saying that if we accept these amendments, there would be no net increase in the number of children who would be protected?

Lord Hodgson of Astley Abbotts: I cannot prove a negative, and that is one of the difficulties of arguing either for or against any form of regulation. You cannot prove what will happen. I suspect that there will be no net increase in the risk to children. I suspect that but I cannot prove it, just as the noble Lord cannot prove the contrary.

Lord Addington: My Lords, I rise to speak very briefly. Would my noble friends on the Front Bench explain one point? I dealt with a series of amendments that were quite well received by the government Front Bench-"better than half a loaf" was how I described it. Can they explain to the House the process of giving guidance to individual groups so that they know how the process of getting information from the group works and what guidance they will be given as to what they are supposed to do? A little more information about this might help.

I have come to the conclusion that everyone thinks the world they are talking about is totally unique. Sports bodies think that they are totally unique, as do schools. We now ask representatives from sports governing bodies to go into schools, which is an extension of good practice because when people get involved in a club early, that produces the best coaching, the most enthusiasm and the lowest drop-out rates in a sport. It is good for public health and everything else. Putting representatives of sports governing bodies into schools makes, I hope, for a better and more rounded system. Indeed, we tried something similar under the previous Government. There must be an interchange between these two groups.

I hope that my noble friend will tell me that we are talking to all these groups so that they know what they are doing and are having an effective interchange. If we do that, many of the concerns being expressed here will start to become, shall we say, more realistic. Moreover, there is no perfect system, and that is something we have to take into account. I call upon my noble friend to give us a little more insight into the process that the Government want to initiate because there is a great deal of chasing of shadows and fears being expressed in this area. Some of those fears are

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real and some are not, while some of them are potential fears. We cannot deal with them all, and we never have been able to. It does not matter how many checks you have if you have not caught that one person yet. Can my noble friend give us an idea about the ongoing structure that will be needed for this, because surely that is going to be the best way forward? We are all on the side of the angels, so let us not fight over which angels.

5.30 pm

Lord Rosser: My Lords, under the Bill, it will be possible for people who have not been subject to the barring arrangements to work regularly with children or be in regular contact with children. Such a situation could arise if individuals concerned were being supervised by someone else. Employers in this situation will not be prohibited from requesting CRB checks on individuals who apply for "unregulated posts", but they will not be legally required to do so after the Bill is passed. However, crucially, employers will no longer be able to see the "barred status" of an individual for posts which fall outside regulated activity.

It will be not be possible to ascertain whether the Independent Safeguarding Authority has ever made a judgment that the individual in question should be barred. Instead, it will be left to the organisation or body concerned to seek any information in the Criminal Records Bureau check and make its own judgment, but it will be unable to find out what conclusions the Independent Safeguarding Authority may have come to despite the fact that one would expect it to have some expertise in this area.

The Independent Safeguarding Authority collates and assesses information from a wide range of sources in order to come to a decision on whether an individual should be barred from working in regulated activity. Enhanced CRB checks, on the other hand, disclose only information held by the police and do not take into account the wider pool of evidence. Yet, as has already been said in the debate, roughly 20 per cent of the people on the barred list have never been in contact with the police and the evidence that has led to their being barred has come directly from employers and other sources. Surely, the objective should be to ensure that if one organisation or authority is aware that an individual has a record of abuse of others of whatever age, another authority or organisation engaging that person, either as an employee or a paid volunteer in work with vulnerable people, should not do so in ignorance of that individual's previous record of abuse, including any assessments that have been made.

It has already been said that serious and potentially serious sexual offenders are all too often very good at covering their tracks and their activities. The Government have maintained that adults who have been "barred" by the Independent Safeguarding Authority from regulated work with children should be allowed to work under "supervision" with children. They have, unfortunately, not yet listened to children's charities, voluntary organisations, schools and parents who tell them that however close the supervision it cannot prevent bonds of trust being formed between adult and child that could be exploited outside the supervised context and environment.



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It is all very well wanting to reduce regulation on those who work regularly with children and have close contact with them, but we need to take care that it does not unnecessarily put at risk someone else's safety or, in extreme cases, their life. I do not regard that comment as a cheap shot but as a realistic attempt to address the question of balance and proportion in considering this very serious issue.

The Government say that they are committed to giving organisations more responsibility to determine the appropriateness of checks for different roles. Therefore, surely they should not deny organisations which wish to benefit from the expert judgment of the Independent Safeguarding Authority and the full extent of information held by it from doing so if they consider it appropriate. If the Government are determined to remove obligations to check many thousands of individuals, they must at least allow employers and organisations using the services of adults to work regularly and in close contact with children, in whatever settings, to apply independently not only for enhanced CRB checks but also for the "barred status" of individuals and to recommend this as good practice.

We support the amendments, including that to which the noble Lord, Lord Bichard, has put his name. That amendment addresses the issues to which I and many others have referred in this debate and places an additional requirement on the Government to recommend in guidance the routine checking of non-regulated individuals as best practice, which takes us closer to an appropriate position on ensuring the safety of our children.

Lord Henley: My Lords, as always, I am grateful to the noble Lords, Lord Bichard and Lord Harris, for introducing their amendments. As always, I am grateful, too, to all those who have spoken in this debate, though at times it felt not like a debate on the amendment but more like a Second Reading debate on the general principles. I should remind the House that we are at Third Reading. I make that point because we have gone way beyond day-to-day supervision, which is the subject of the amendment of the noble Lord, Lord Harris, and way beyond children, which is the matter of the substantive amendment. We have got on to such things as vulnerable adults, which is another matter and not relevant to what we are discussing today. I want to discuss the particular amendments, of which there only two, Amendments 4 and 5, and respond to them in due course.

I start with the simpler amendment, from the noble Lord, Lord Harris, because I think that he received very little support for it other than from his Front Bench-I am not even sure that he supported his own amendment, because he pointed out the inadequacies of it. The amendment would require anyone in a school supervising a volunteer who looks after children to monitor communication between that volunteer and the children. It specifies types of communication they must monitor, including sign language. As I think the noble Lord accepts, it is too prescriptive. We have more faith in the common sense and good judgment of managers in schools than seems to be implied by the amendment.

No doubt the noble Lord will make up his own mind about what to do with the amendment. He has

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had very powerful support from his noble friend Lord Rosser, but I am not sure that he has had it from others. Therefore, at this stage, the important thing to do would be to move on and deal with the substantive amendment in this group of two, which is that in the name of the noble Lord, Lord Bichard. If the House wanted to come to a conclusion on these two amendments, I would hope that it would come to a conclusion on that in the name of the noble Lord, Lord Bichard, and not that in the name of the noble Lord, Lord Harris. I make that purely as an introductory point.

The noble Lord, Lord Bichard, seeks four things; first, that enhanced criminal record certificates be available where someone is working regularly and closely with children; secondly, that the Government issue guidance on what "regular and close" means; thirdly, that the guidance will recommend it as best practice to obtain an enhanced certificate; and, fourthly, that those certificates contain information about a person's barred status, which could also be obtained by a direct barred-list check. I shall deal with those four points in that order. I hope that the House will listen to me carefully and remember that it is with those four things that we are dealing and not wider aspects in relation to the CRB and so on.

On that first point, I am happy to confirm that all those people who work regularly and closely with children will remain eligible for enhanced criminal record certificates. People who remain within regulated activity will be eligible for them for that reason alone. People no longer within regulated activity will remain eligible for them, as I have confirmed before and can do so again. In view of those assurances, I hope that the noble Lord will agree that it is not necessary to place that provision in the Bill.

On the second issue, that the Government should produce guidance on what regular and close contact means, we are already meeting the substance of this proposal. Clause 77 already commits the Government to publishing statutory guidance on the meaning of day-to-day supervision. We must be careful to avoid introducing two sets of statutory guidance about similar subjects, which would create confusion and lead to unnecessary additional burdens on businesses and voluntary organisations. Therefore, while we cannot meet the form of the noble Lord's proposal in this area, I believe that we are already meeting the substance.

Thirdly, the amendment states that the Government should recommend that obtaining enhanced criminal record certificates is best practice for those who work closely and regularly with children. Again, here I can offer some reassurance to the noble Lord and others who have spoken. I can confirm that the statutory guidance on supervision, which we are already committed to introducing, will recommend that it is good practice to obtain an enhanced criminal record certificate when employees or volunteers are new or unknown to the organisation or if checks are needed for new posts or staff moves. Where existing employees are concerned, I hope that the House would agree that it is properly a matter for employers and voluntary organisations to judge whether periodic checks are helpful or whether to use the new updating service which helps make these criminal records more portable.



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The final proposal of the noble Lord, Lord Bichard, is that employers should be able to discover whether those of their employees who work, or will be working, regularly and closely with children are barred from working with children, either via an enhanced criminal record certificate or via a direct barred-list check. Barring information will be available in relation to posts within regulated activity and a few compelling exceptions such as those applying to foster or adopt a child, but the Government cannot agree to release barring information in other circumstances.

At this juncture, it might be worth going back to the review of the vetting and barring scheme which we published a little over a year ago. The context of the review was to achieve a better balance between public protection and civil liberties: to achieve a system which is, to use a word which Ministers have much deployed during debates on the Bill in this place and another place, proportionate. The protection of vulnerable groups, including children, is paramount. That is why the review concluded that a central barring scheme should be maintained.

However, there are other important principles which need to be balanced with this, not least the civil liberties of individuals, and that is why these measures are included within the Bill. Those viewpoints have received somewhat less airing-I am grateful that some have-in this House but they are very real and widespread. It is not proportionate for barred people to have their barred status communicated to employers when it is not relevant. It is relevant in the case of a post falling within regulated activity because the person is prohibited from working in that role and the prospective employer must know that. Otherwise, it is not proportionate to pass on that information because bars relate only to regulated activity. Passing on barring information would tell employers that a person is barred from another area of work. However, despite that, many employers will not engage someone if they see the word "barred" even if the bar is not relevant to that role. To introduce this change would be greatly to expand the number of people subject to barred-list checks and it would undermine our efforts to reduce the scope of regulated activity and to make the barring arrangements more proportionate.

However, I can offer the noble Lord some reassurance in this area. While we do not think it right to communicate that someone is barred in these cases, it can be useful to pass on the information which led to the bar. This is more valuable information for an employer. In most cases this will be visible on an enhanced certificate anyway, not just in the four-fifths of bars which follow automatically from a criminal conviction or caution but in many of the one-fifth of bars which derive from other information. As I have said before, we will encourage regulated activity providers to report information to the police where appropriate, as well as to the Independent Safeguarding Authority.

I can offer one further measure. Section 50A of the Safeguarding Vulnerable Groups Act allows the Independent Safeguarding Authority to provide any information to the police, which could include the information which led to a bar. While the existing purposes for which this information can be passed to the police do not include the purposes of disclosing

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information on an enhanced criminal record certificate, Clause 77(3) of the Bill allows the Secretary of State to prescribe new purposes. I can confirm that we will include a new purpose for providing information for disclosure on enhanced criminal record certificates. We will introduce this alongside the new definition of regulated activity. This will allow the ISA or the Disclosure and Barring Service to give to the police information which led to a bar and, if the police judge it relevant to the post applied for, the police may disclose it on an enhanced certificate. This is a better solution than telling an employer that someone is not barred. Indeed, providing the information that led to a bar will be of far more benefit to a prospective employer than simply providing the word "barred", allowing the employer to make an informed choice.

The noble Lord, Lord Bichard, said on Report:

"I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever setting, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice".-[Official Report, 15/2/12; col. 798.]

I have made it clear to the House that we are committed to delivering on both these points. Indeed, I hope noble Lords will agree that I have gone further in undertaking to provide for the police to include the reasons for a barring decision on an enhanced certificate where such information is relevant to the post in question, but only where it is. On that basis, I hope the noble Lord, Lord Bichard, will agree that I have satisfied the points that he raised on Report and will agree not to move his amendment.

5.45 pm

Lord Bichard: I am seeking clarification in order to be helpful. Am I hearing from the Minister that in future the barring authorities will make available to the police the information on which they have made their decision, but not necessarily the decision, and the police can then decide whether that is relevant information to make available to employers who carry out a criminal record check? To be clear, is that what is now being said?

Lord Henley: That is what I want to make clear, but as long as the information is relevant. We do not want irrelevant information passed on because of the damage that could possibly cause to the individual concerned.

Lord Bichard: This dialogue cannot and will not go on for ever but, of course, under the current arrangements, the police make a decision about whether the information they have on convictions is relevant. Therefore the Minister is suggesting that they would make the same decision about information they receive from the barring authorities about individuals. Is that correct?

Lord Henley: My Lords, I will again remind the noble Lord and the House that we are at Third Reading. I shall repeat the words I used. If the police judge it relevant to the post applied for they may disclose it on an enhanced certificate-no more and no less.

Lord Harris of Haringey: I am grateful to noble Lords who have contributed to the debate. I was particularly struck by the contributions of the noble

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Lord, Lord Bichard, the right reverend Prelate the Bishop of Hereford, the noble Baronesses, Lady Walmsley and Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss.

The issue is to protect children. While we, as parents, warn our children against stranger danger, we are talking here about individuals who are not strangers. These are people who have been put into a position where it looks as though they are trusted individuals. That is why these complicated discussions we are having about what checks should be done on individuals who are supervised and the nature of the supervision are extremely important.

Because of the developing thinking that has taken place in your Lordships' House through the Committee stage, Report and now at Third Reading, my amendment was almost a Committee stage probing amendment to try to understand the nature of the guidance the Government are envisaging and what day-to-day supervision would look like. However, we have heard that the Government do not think it will be possible to provide sufficient guidance on day-to-day supervision to give the reassurance we are looking for. That is why the amendment proposed by the noble Lord, Lord Bichard, refers to guidance on,

Quite properly, the issue is whether the relationship between the adult and child is one where the contact will create that position of trust.

The Minister talked about the circumstances in which information that has led to an individual being barred is provided to the police. In my 26 years in local government, to which the Minister referred earlier as being insufficient to have acquired adequate judgment about these things, I chaired on a number of occasions disciplinary panels to decide whether individuals should be dismissed for inappropriate behaviour with children. Those individuals were not reported to the police but would have been put on a barred list. Now I am a trustee of a charity, for which I have been CRB-checked, which has volunteers working with children to put on theatrical productions, and so on. As a trustee or a parent I would be appalled if some of those volunteers could not be checked to see whether they had been barred previously from working with children, whatever the circumstances.

It is a strange way to go about the business that, rather than the simple information on which the authority has decided that an individual should be barred, it should now rely on that information being passed to the police and the chief officer of the police deciding whether it is relevant. It is a very convoluted way to do something when most of your Lordships-I accept not all-believe that there is a more sensible way.

The substantive issue is explored in Amendment 5 and in a moment we will hear what the noble Lord, Lord Bichard, intends to do with that amendment. In the mean time, partly because I have not received the clarification that suggests to me that day-to-day supervision can appropriately be defined in guidance-my amendment could not do so either, I suspect because it is impossible to provide adequate reassurance about day-to-day supervision-I beg leave to withdraw my amendment.



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Amendment 4 withdrawn.

Amendment 5

Tabled by Lord Bichard

5: After Clause 64, insert the following new Clause-

"Voluntary application for relevant information: children

(1) The Secretary of State shall by regulation ensure that any person who permits, or is considering whether to permit, an individual to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, may be permitted to obtain a relevant enhanced criminal record certificate.

(2) In this section "relevant enhanced criminal record certificate" means an enhanced criminal record certificate issued under section 113BA of the Police Act 1997, which includes by virtue of that section, suitability information relating to children.

(3) The Secretary of State shall produce guidance on the interpretation of the terms "regular and close contact with children" under subsection (1) of this section.

(4) Guidance produced for the purposes of subsection (3) of this section shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice.

(5) In table 1 of Schedule 7 to the Safeguarding Vulnerable Groups Act 2006, at end insert-

"20. Person who permits, or is considering whether to permit, B to engage in any form of work, for gain or otherwise, which involves regular and close contact with children, but does not fall within Part 1 of Schedule 4.

Children""

Lord Bichard: I thank the Minister not just for the discussion today but for discussions before today with other Members as well as myself. I thank, too, all those who have participated in this debate, which has on occasions lapsed into criticising the existing arrangements. I agree with those who say that we have too many checks too often and that they deter people from volunteering. There is no question about that, which is why the Government have put forward those proposals. My amendment accepts the Government's fundamental position and, let us be clear, does not produce more bureaucracy or ticking of boxes. It concerns only those adults working regularly and closely with children, not those who just happen to have some contact with children on an irregular basis.

At the end of the day, what matters is that employers who will now make the decision have the information that we have to enable them to make the best possible decision. As someone said, that will not guarantee that children will not continue to be abused, because you cannot guarantee that; but it is very difficult for us to justify a situation in which information is available but not made available to those who will make the decision.

The question therefore comes down to whether or not the undertakings given today are sufficient to enable me not to press the amendment to a Division. I am conscious that in this House a lot of people feel very passionately about this issue and are very concerned about this vote. I agree with the noble Lord, Lord Harris, that the proposal made in the Bill is convoluted; it is not one that I would have thought was the obvious way forward. On the other hand, it ensures that the information that society has available about an individual is available to the person who makes the decision if the police make their own decision that it is relevant. It is difficult for me to pursue the

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amendment purely because we are not giving information that an individual has been barred or not barred from regulated activity. On the basis that the information that led to the barring or not barring is available to the police, who can then make a decision about whether it should be made available to the employer, I shall not press my amendment.

Amendment 5 not moved.

Amendment 6

Moved by Lord Henley

6: After Clause 110, insert the following new Clause-

"Stalking

Offences in relation to stalking

(1) After section 2 of the Protection from Harassment Act 1997 (offence of harassment) insert-

"2A Offence of stalking

(1) A person is guilty of an offence if-

(a) the person pursues a course of conduct in breach of section 1(1), and

(b) the course of conduct amounts to stalking.

(2) For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person's course of conduct amounts to stalking of another person if-

(a) it amounts to harassment of that person,

(b) the acts or omissions involved are ones associated with stalking, and

(c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.

(3) The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking-

(a) following a person,

(b) contacting, or attempting to contact, a person by any means,

(c) publishing any statement or other material-

(i) relating or purporting to relate to a person, or

(ii) purporting to originate from a person,

(d) monitoring the use by a person of the internet, email or any other form of electronic communication,

(e) loitering in any place (whether public or private),

(f) interfering with any property in the possession of a person,

(g) watching or spying on a person.

(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine not exceeding level 5 on the standard scale, or both.

(5) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (4) to 51 weeks is to be read as a reference to six months.

(6) This section is without prejudice to the generality of section 2."

(2) After section 4 of that Act (putting people in fear of violence) insert-

"4A Stalking involving fear of violence

(1) A person ("A") whose course of conduct-

(a) amounts to stalking, and

(b) causes another ("B") to fear, on at least two occasions, that violence will be used against B,

is guilty of an offence if A knows or ought to know that A's course of conduct will cause B so to fear on each of those occasions.



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(2) For the purposes of this section A ought to know that A's course of conduct will cause B to fear that violence will be used against B on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause B so to fear on that occasion.

(3) It is a defence for A to show that-

(a) A's course of conduct was pursued for the purpose of preventing or detecting crime,

(b) A's course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) the pursuit of A's course of conduct was reasonable for the protection of A or another or for the protection of A's or another's property.

(4) A person guilty of an offence under this section is liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or

(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding the statutory maximum, or both.

(5) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (4)(b) to twelve months is to be read as a reference to six months.

(6) If on the trial on indictment of a person charged with an offence under this section the jury find the person not guilty of the offence charged, they may find the person guilty of an offence under section 2 or 2A.

(7) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (6) convicted before it of an offence under section 2 or 2A as a magistrates' court would have on convicting the person of the offence.

(8) This section is without prejudice to the generality of section 4.""

Amendment 7 (to Amendment 6)

Tabled by Baroness Royall of Blaisdon

7: After Clause 110, line 21, at end insert "inter alia"

Baroness Royall of Blaisdon: I shall not move this or the other related amendments, because I am confident that the Minister will ensure that the discussions between the Bill team, Napo and other experts in the coming week will encompass issues wider than those relating to the wording of the new offence under new Section 4A, because I know that the Minister, like his right honourable friend the Prime Minister, will want to ensure that all the commitments that they have made in the last weeks can be adhered to.

Amendment 7 (to Amendment 6) not moved.

Amendments 8 to 12 (to Amendment 6) not moved.

Amendment 6 agreed.

Amendment 13

Moved by Lord Henley

13: Schedule 1, page 125, line 5, at end insert-

"Clinical negligence

(1) Civil legal services provided in relation to the obtaining of one or more expert reports in clinical negligence proceedings.



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(2) In this paragraph-

"clinical negligence proceedings" means proceedings which include a claim for damages in respect of clinical negligence;

"clinical negligence" means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);

"expert report" means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;

"proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in court), whether commenced or contemplated."

Amendment 14 (to Amendment 13) not moved.

Amendment 13 agreed.

Clause 117 : Extent

Amendment 15

Moved by Baroness Stowell of Beeston

15: Clause 117, page 103, line 18, at end insert-

"( ) section 53 and Schedule 3,"

Baroness Stowell of Beeston: In moving Amendment 15, I shall also speak to Amendments 17, 26, 27, 28, 30 and 31. However, I shall not detain your Lordships as these are technical amendments, so unless a noble Lord wishes to raise a point, to which of course I shall be willing to respond, I beg to move.

Amendment 15 agreed.

Amendments 16 to 18

Moved by Baroness Stowell of Beeston

16: Clause 117, page 103, line 25, leave out "(8)(l)" and insert "(8)(ja) and (l)"

17: Clause 117, page 104, line 32, leave out "Schedule 2" and insert "section 53 and Schedules 2 and 3"

18: Clause 117, page 104, line 40, at end insert-

"(ja) the amendments of Schedule 1 to the Criminal Justice and Police Act 2001, and Schedule 5 to the Sexual Offences Act 2003, in Part 10A of Schedule 9,"

Amendments 16 to 18 agreed.

Clause 118 : Commencement

Amendment 19

Moved by Baroness O'Neill of Bengarve

19: Clause 118, page 105, line 4, at end insert-

"( ) No order under subsection (1) appointing a day for section 103 to come into force shall be made until-

(a) the Secretary of State has produced and laid before both Houses of Parliament a response to any recommendations made in the post-legislative scrutiny review of the Freedom of Information Act;

(b) both Houses of Parliament have given legislative effect to any recommendations arising from that review which require legislation to take effect;



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(c) the Secretary of State has laid before both Houses of Parliament any revisions to the code of practice issued under section 45 of the Freedom of Information Act 2000 (issue of code of practice by Secretary of State) made in pursuance of paragraph (da) of subsection (2), or of subsection (2A) of that section of that Act; and

(d) both Houses of Parliament have passed a resolution affirming support for any such revisions to the code of practice."

Baroness O'Neill of Bengarve: My Lords, the amendment addresses a range of issues on which we have had long discussions at Second Reading, in Committee and on Report, on the clauses dealing with proposed extensions of the application of the Freedom of Information Act 2000 to research data sets.

I thank the Minister especially for his agreement at Report to delay implementation of this part of the Bill until the completion of the post-legislative review of the workings of the Freedom of Information Act. Delay alone is not, however, enough, but it may be fruitful if used actively to deal with issues that have been raised in the course of the passage of this Bill. Amendment 19 sets out some conditions for a process for using this delay constructively. I hope that it builds upon the Minister's indication at Report that the delay would be used.

So far amendments proposed to this part of the Bill have mainly met a uniform response that the exemptions in Freedom of Information Act already cover the case. In some instances perhaps they do, but it has not been easy to see that they do. There have been very few detailed explanations of how they do so, and no arguments that they can continue to do so in the world in which we find ourselves. That is a world in which new players, often in the Far East, combine high-quality IT with ambitions to be scientific and technological innovators, yet do not respect others' IP and are protected by jurisdictions that provide no remedies for IP violations. These circumstances mean that arguing that there have been few requests for research data in the past is no adequate guide to the future.

6 pm

I ask the Minister for assurances that the code of practice that will be revised will address the range of problems discussed, and take account of the results of post-legislative scrutiny, the Government's response to that scrutiny and other relevant evidence. In particular, the process needs to take account of some questions that have been raised repeatedly. The first is that of timing, a point raised successively in Committee and at Report by the noble Baroness, Lady Brinton. Will the code clarify the point at which data sets that are either incomplete or have not been checked must be released? This matters for individual researchers and research teams.

Secondly, on costs, I am grateful to the Minister for his clarity at Report about the costs of locating data. He said:

"The Freedom of Information Act, passed by the previous Government, provides that where it would cost more than a certain amount to locate information that has been requested, there is no obligation to provide it".-[Official Report, 15/2/12; col. 837.]



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Will the code of practice to be introduced before implementing this extension of the 2000 Act provide comparable clarity about dealing with certain other costs? How will the IT costs of rendering data reusable-for example, if non-standard software has been used or if data sets are massively large-affect obligations to provide data, and how will the redaction costs of removing personal identifiers from data sets work? In each case, costs can run to very large sums. Will researchers be able to refuse to release data if these costs exceed a set threshold? I believe the matter has remained unclear, both in Committee and at Report.

Thirdly, there is the question of licences for reuse. The Minister said at Report that,

It is hardly surprising that a requirement to use licences yet to be specified has raised fears among UK researchers and among the institutions in which they work, not to mention in those companies that might otherwise wish to fund research in UK universities. What steps will the Minister take to ensure that these licensing requirements do not damage UK research? Is the office of the Information Commissioner equipped to judge specifications in licences that are likely not to be respected in certain jurisdictions? Can the office judge the reliability with which the conditions in the licences are likely to be respected?

I would not want these arguments to be misinterpreted as opposition to data sharing, but there are many models for that in addition to the freedom of information model. Some are already in regular use in a range of scientific communities. Examples include: the conditional, regulated access to data used by the genomics community; the use of so-called data safe havens, for example by the Scottish Health Informatics Programme; and the use of a trustee model for data access, as for example by the UK Biobank. Freedom of information is a model of information sharing that is at one extreme end of a spectrum, since it requires publication to the entire world. That is why it threatens the capacity of institutions to commercialise their research. In the long march from work that first assembles data to the point at which it becomes feasible to file for a patent, others will be entitled to obtain researchers' data and may file prior patents-or patents that prevent researchers from filing for those patents they would otherwise seek.

If we do not see a convincing code before implementation, we shall be committed to policies that will undermine two government initiatives for which I have great respect. The first and more general of these initiatives-which was introduced by the previous Government-is that universities and other publicly funded research institutes are now required and incentivised to commercialise their research. Yet here we see provisions to regulate them in ways from which their commercial competitors will be exempt. The second is the Government's Strategy for UK Life Sciences, published on 5 December last year, which is predicated

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on quite a different approach to data sharing. The right honourable David Willetts, writing in the spring 2012 issue of Science in Parliament spoke of,

in effect, a safe-haven approach. It may be thought that this is quite another matter because we are talking about patient data rather than scientific data, but the life sciences strategy is about using patient data for research, and biomedical research draws not only on patient data but on a range of wider socioeconomic and biological and demographic data.

If we want the life sciences strategy-an admirable strategy-to succeed and to benefit the UK biotech industries, we shall need a code that incorporates robust responses to the results of post-legislative scrutiny of the Freedom of Information Act, which may require further legislation. We shall also need a code that achieves a high degree of clarity about the conditions under which research data must be disclosed to the entire world, and the conditions under which they may not be disclosed. Amendment 19 seeks to set out steps by which these objectives might be achieved. I beg to move.

Lord Oxburgh: My Lords, I have added my name to this amendment. I think it is widely accepted that when the freedom of information legislation was originally conceived, little or no thought was given to the effect that it might have on universities. In the event, this is of less importance today because since that time there have been major changes in the role of universities, but it means that the new legislation should reflect those changes-and frankly, this has not happened. The purpose of this amendment is to ensure that the outcomes of post-legislative scrutiny are taken fully into account before the relevant parts of the Bill come into force. Unless they are, there is a risk of serious damage to our university system. It is damage that will not make tabloid headlines. It will be slow and incremental, but it will be certain.

Under current legislation, universities are regarded as "publicly owned companies" and carry the concomitant Freedom of Information Act disclosure obligations. This is in spite of the fact that they now receive more of their income from private sources than from the Government-a greater proportion, in some cases, than private companies. This comparison is relevant because, following the policies of successive Governments, universities are now expected to behave as private bodies, collaborating and/or competing with private industry in commercialising their research. They are also in competition for students with each other, with overseas universities and with private universities. Under the legislation as it stands, they cannot do any of this on equal terms because details of their plans, costings and research activities may have to be disclosed.

On the matter of university/industry collaboration, the present disclosure arrangements, to which my noble friend Lady O'Neill has referred, are deeply unattractive to business because of the belief, right or wrong, that the confidentiality of collaborative work may depend on discretionary exemptions that can be challenged. Such collaborations are difficult enough to set up in the first place, and uncertainty over the implications of FOI can cause the company simply to walk away.



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One of the first questions that have to be addressed by scrutiny is whether the current definition of a publicly owned company is satisfactory. Another is whether there is a presumption in favour of disclosure of all the information held by such a body, or whether there is a class of competition-relevant information for which the presumption might be non-disclosure. This problem is not addressed by the current system of exemptions. It may be worth pointing out, and this relates to the cost question raised by my noble friend, that there is a recent example of a university incurring massive legal fees of over £250,000 in a case in which it believed that the release of data requested would put its staff at risk from animal rights activists.

Another serious question is whether there should there be any qualification of the right of access to public body information. At present, anyone anywhere in the world can exercise that right. Should the right be restricted to UK citizens and bodies? To offer an example, a British university was conducting a study for Cancer Research UK into the factors that influenced the behaviour of young people smoking tobacco. An FOI request for the data was received from a foreign tobacco company. It is clear that the funders of the research would not have wished the data to be released to the company and, to pick up an earlier point, might well not have funded the work at the university had they regarded this as a possibility.

A final area that requires attention and clarification is the conflict that can arise between the requirements of FOI legislation and obligations under other laws. There are examples of conflicts with the Data Protection Act, the Animals (Scientific Procedures) Act and environmental information regulations. The purpose of our amendment is therefore to ensure that full weight is given to the outcome of the scrutiny and that Parliament has the opportunity to confirm that it is satisfied with the Government's response.

Some of the points that I have made have already been made and submitted in evidence to the scrutiny group by Universities UK and the Russell Group in their submissions to the scrutiny process. I strongly support all the points made by my noble friend in her speech.

Lord Sutherland of Houndwood: My Lords, the speeches that we have heard from two very senior practitioners in relevant fields make a powerful case. I shall not run through their arguments again, nor the ones that I put forward during the previous stage of the Bill. I simply underline the fact that if people of this calibre are expressing concerns and those concerns could be dealt with by using the government procedure of post-legislative scrutiny to inform practice, that is a very reasonable request and I hope that the Minister will feel free to accede to it.

The Earl of Erroll: My Lords, I, too, spoke about this danger at an earlier stage of the Bill, and I think the amendment is sensible. Sometimes there are unintended consequences when we make rules, but in this case, because people have seen that there are almost certainly going to be some adverse consequences for UK research establishments, it is sensible to delay

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implementing this part of the Bill until we have thought about it a little harder and seen some results from other places.

Baroness Brinton: My Lords, I want to add to the comments about the complexities of the data sets, which the noble Baroness, Lady O'Neill, outlined earlier. I am grateful for the Minister's comments about addressing this after post-legislative scrutiny. Does he have any idea when that is likely to conclude and therefore when there might be a review? I thank the noble Lord, Lord McNally, for his agreement to meet me and my noble friend Lady Hamwee outside the legislative process to see whether we can get some clarity on the whole vexed issue of exemptions with the advice to higher education institutions of the Information Commissioner.

6.15 pm

Lord Henley: My Lords, I understand all the concerns that have been expressed by a number of noble Lords in the course of this debate, at earlier stages and in the large number of meetings that I have held with the noble Baroness, Lady O'Neill, and others over the preceding months. We want to address those points.

We understand the worries of the noble Lord, Lord Oxburgh, when he talks of the risk of serious damage to universities resulting from the Freedom of Information Act. I remind him that that Act was passed 10 years or so ago and came into effect some five years ago, and so far that damage has not happened. We understand his concerns, though, and will continue to try to address them, and I will continue to give assurances today, as I have done on earlier occasions.

The amendment-it is always important at Third Reading to discuss the amendment, not wider issues-seeks to delay the commencement of Clause 103 until the concerns of the noble Baroness and others about the reuse of data sets are addressed through the revised code of practice under Section 45 of the Freedom of Information Act, and more generally about the cost of FOI requests and the adequacy of exemptions. The noble Baroness asked me to comment on those last two, but that really ought to wait until we have dealt with that post-legislative scrutiny. The noble Baroness is right to highlight these by way of amendments, but we are agreed that putting them into the Bill is not the appropriate way forward. I hope therefore that she will find the following comments of some use.

I turn first to the Section 45 code of practice, through which we intend to provide guidance about the data-set provisions in the Bill-for example, on licensing conditions. Neither Clause 102 nor Clause 103 will be commenced before the revised code has been put in place. We will consult, as is required under Section 45, the Information Commissioner in drawing up the revised code before it is laid before Parliament.

We must develop guidance that ensures that the application of Clause 102 on data sets is understood and clear in order to ensure that the perceived problems described over recent months are avoided and that clarity is provided. Clearly, the views of experts working

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with data sets will be important in developing that guidance, and those will be taken account of to ensure that we get the guidance right.

I shall say a little more about post-legislative scrutiny of the Act. That assessment, which is under way now, of the operation of the Act is the best way of addressing more general concerns. Given that the Freedom of Information Act applies to a very wide range of bodies, it is important that comprehensive evidence is collated from a wide range of interested parties before deciding what changes might usefully be made. Once again, I can provide some reassurances.

On the timing, I do not anticipate the committee taking so long to publish its recommendations that there is any significant likelihood of Clause 103, or for that matter Clause 102, being commenced first.

However, I must exercise a little caution over subsequent legislation to implement any recommendations. We all understand that secondary legislation is relatively quick to bring forward and revised guidance even quicker. However, I am sure noble Lords understand that enacting primary legislation would necessarily take somewhat longer and could therefore delay the enhancement of the right to data for a considerable time. I am sure the House of Lords will also understand that I cannot pre-empt the outcome of the deliberations of the Justice Select Committee, sitting under Sir Alan Beith, which are being informed in part by evidence submitted by the higher education sector. Therefore, I cannot predict exactly what action the Government will consider it necessary or appropriate to take as a result.

However, I can reassure the noble Baroness, Lady O'Neill, that we do not intend to drag our feet following publication of that post-legislative scrutiny. Whatever actions are deemed appropriate in the light of the Justice Select Committee's recommendations will be taken as quickly as possible. It is important for public authorities and users of the Freedom of Information Act alike that it functions as effectively as is appropriate. Therefore, the Government will consider the evidence collated during post-legislative scrutiny, including that presented by the higher education sector, as they ensure that this is the case.

As I have already indicated several times, we certainly want to maintain, protect and enhance the leading position of the United Kingdom research sector. That is why I hope that, given my assurances about timing and what post-legislative scrutiny will involve, the noble Baroness will withdraw her amendment. I assure her that the review will continue and that we will act on it as quickly as we can once we have the results of the scrutiny.

Baroness O'Neill of Bengarve: My Lords, I thank the Minister for listening to what the process set out in Amendment 19 is. I understand his reluctance to make any commitment under the heading of introducing changes that may be recommended by Sir Alan Beith's committee but that require primary legislation. For that reason, I shall withdraw the amendment.

However, on other matters this has been like sweeping a very long and dusty floor with all the dust still in front of us. We will need to look with great care at the codes of practice. A code of practice is often a fragile

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instrument and these data sets are of very high value. We have to be careful in what we do, lest we wish we had done something else at the end of it. With those assurances, I thank the Minister for his sustained attention to these less than thrilling issues and beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Schedule 1 : Amendments of regimes other than PACE

Amendment 20

Moved by Lord Henley

20: Schedule 1, page 117, line 18, after "held" insert "for the purposes of national security"

Lord Henley: My Lords, in moving Amendment 20, I will speak also to Amendments 21 to 25. On Report, I gave notice to the House that the Government were considering whether it would be helpful to clarify further the scope of the regime for retention and destruction of material under Section 18 of the Counter-Terrorism Act 2008, as substituted by Part 3 of Schedule 1 to the Bill. We have concluded that new Section 18 of the 2008 Act, as currently drafted, is too broad and requires further clarification so that the intended scope of the provisions properly provides that crime scene material is excluded from any destruction regime.

To this end, Amendment 20 provides that new Section 18 applies only to biometric material that is held by a law enforcement authority under the law of England, Wales or Northern Ireland that is not subject to existing statutory restrictions and is held for the purposes of national security. Amendments 21 to 23 and Amendment 25 provide that material taken under a number of other statutory regimes is subject not to the destruction regime in the Counter-Terrorism Act but to the rules in those enactments. Amendment 24 corrects a minor drafting error regarding the relevant section of the Intelligence Services Act 1994 to be included in the list of existing statutory restrictions. I beg to move.

Amendment 20 agreed.

Amendments 21 to 25

Moved by Lord Henley

21: Schedule 1, page 118, line 10, at end insert-

"( ) paragraph 18(2) of Schedule 2 to the Immigration Act 1971;"

22: Schedule 1, page 118, line 12, at end insert "and any corresponding provision in an order under section 113 of that Act"

23: Schedule 1, page 118, line 15, leave out from beginning to end of line 16

24: Schedule 1, page 118, line 18, leave out "1(2)" and insert "2(2)"

25: Schedule 1, page 118, line 18, at end insert-

"( ) paragraphs 20(3) and 20A to 20J of Schedule 8 to the Terrorism Act 2000;

( ) section 56 of the Criminal Justice and Police Act 2001;

( ) paragraph 8 of Schedule 4 to the International Criminal Court Act 2001;



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( ) sections 73, 83, 87, 88 and 89 of the Armed Forces Act 2006 and any provision relating to the retention of material in an order made under section 74, 93 or 323 of that Act;"

Amendments 21 to 25 agreed.

Schedule 8 : Disclosure and Barring Service

Amendments 26 and 27

Moved by Lord Henley

26: Schedule 8, page 171, line 21, at end insert-

"( ) is a person in relation to whom a moratorium period, under a debt relief order made under Part 7A of the Insolvency Act 1986 or Part 7A of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)), applies,"

27: Schedule 8, page 171, line 25, at end insert-

"( ) is the subject of a debt relief restrictions order or an interim debt relief restrictions order under Schedule 4ZB to the Insolvency Act 1986 or Schedule 2ZB to the Insolvency (Northern Ireland) Order 1989,"

Amendments 26 and 27 agreed.

Schedule 9 : Consequential amendments

Amendments 28 and 29

Moved by Lord Henley

28: Schedule 9, page 184, line 10, at end insert-

"41A (1) Section 120A (refusal and cancellation of registration on grounds related to disclosure) is amended as follows.

(2) In subsection (3A) omit paragraphs (b) and (c).

(3) Omit subsections (3B) and (3C).

(4) In subsection (3D)-

(a) for "subsections (3A) to (3C)" substitute "subsection (3A)",

(b) for "those subsections" substitute "that subsection", and

(c) omit the words from ", except" to the end of the subsection."

29: Schedule 9, page 196, line 28, at end insert-

"Part 10AStalkingProtection from Harassment Act 1997

141A (1) The Protection from Harassment Act 1997 is amended as follows.

(2) In section 1(2) (circumstances in which a person ought to know that a course of conduct amounts to harassment) after "this section" insert "or section 2A(2)(c)".

(3) In section 4 (putting people in fear of violence)-

(a) in subsection (5) after "section 2" insert "or 2A", and

(b) in subsection (6) after "section 2" insert "or 2A".

Crime and Disorder Act 1998

141B (1) Section 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated harassment etc.) is amended as follows.

(2) In subsection (1)-

(a) in paragraph (a)-

(i) after "section 2" insert "or 2A", and

(ii) for "offence of harassment" substitute "offences of harassment and stalking", and



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(b) in paragraph (b)-

(i) after "section 4" insert "or 4A", and

(ii) after "violence" insert "by stalking or otherwise".

(3) In subsection (5) for "the basic offence" substitute "either basic offence".

Criminal Justice and Police Act 2001

141C In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (powers of seizure to which section 50 of that Act applies), after paragraph 63, insert-

"Protection from Harassment Act 1997

63A The power of seizure conferred by section 2B(2) of the Protection from Harassment Act 1997 (seizure of material relevant to stalking)."

Sexual Offences Act 2003

141D In Schedule 5 to the Sexual Offences Act 2003 (relevant offences for the purposes of notification and orders)-

(a) in paragraph 56A-

(i) after "section 2" insert "or 2A", and

(ii) for "offence of harassment" substitute "offences of harassment and stalking", and

(b) in paragraph 57-

(i) after "section 4" insert "or 4A", and

(ii) after "violence" insert "by stalking or otherwise".

Criminal Justice Act 2003

141E In Part 1 of Schedule 15 to the Criminal Justice Act 2003 (sentencing of dangerous offenders: specified violent offences), in paragraph 57-

(a) after "section 4" insert "or 4A", and

(b) after "violence" insert "by stalking or otherwise"."

Amendments 28 and 29 agreed.

Schedule 10 : Repeals and revocations

Amendments 30 and 31

Moved by Lord Henley

30: Schedule 10, page 198, line 40, at end insert-

"( ) the Milk (Cessation of Production) Act 1985,"

31: Schedule 10, page 201, line 14, at end insert-

"In section 120A- (a) subsection (3A)(b) and (c), (b) subsections (3B) and (3C), and (c) in subsection (3D), the words from ", except" to the end of the subsection."

Amendments 30 and 31 agreed.

In the Title

Amendment 32

Moved by Lord Henley

32: In the Title, line 11, after first "and" insert "about stalking;"

Amendment 32 agreed.

Motion

Moved by Lord Henley

Baroness Stowell of Beeston: My Lords, I am very grateful to the noble Lord, Lord Ponsonby. I know that he has waited very patiently all afternoon. It may be of assistance to the House for me to remind noble

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Lords that, at Bill do now pass, once the Motion has been moved formally, as it just has, it may be opposed and reasoned or delaying amendments to it may be moved. However, in other circumstances it is not normally debated.

Lord Ponsonby of Shulbrede: My Lords, I wish to raise a new issue, which came to my attention at the end of last week. I was advised by the Public Bill Office that I should take the slightly unusual step of raising this new issue on this Motion. I also informed the Minister's office that I intended to do this.

It is the intention of the Bill to adopt the Scottish model for protections for the DNA database, and therefore to find an equivalent to the Scottish sheriff courts in England and Wales. As currently worded, the Bill requires the hearings to be before a district judge from the magistrates' court. This is too restrictive; all that is necessary is for the application to be made to a magistrates' court. Whether to put the matter before a district judge or a lay bench of magistrates can then be decided locally. This may be a small point but it is one of principle and practicality.

The point of principle is that lay benches have exactly the same powers as district judges. There is only one exception to that, which is in the matter of extradition. Beyond that, it is a point of principle in magistrates' courts in England and Wales that lay benches have exactly the same powers as district judges.

The point of practicality is that limiting applications to district judges will mean unnecessary inconvenience to citizens. There will be delay and there may be extra costs. The reason for that is that district judges tend to sit in large cities and may be less readily available than lay benches.

I realise that this matter is being raised at a very late stage. I have given the noble Lord notice of it and I look forward to his response.

Baroness Hamwee: My Lords, I shall speak for a moment in the hope that my noble friend Lord Dholakia will get here. I know that he has raised this matter with the Government as well. It is welcome to have unusual procedures available to make sure that we get the final product right. Someone is telling me that my noble friend is not here. I merely wanted to record that he has raised the same matter. I am sure he will be grateful to the noble Lord, Lord Ponsonby, for raising it now.

Lord Henley: My Lords, I will respond briefly in light of the remarks of my noble friend. The noble Lord, Lord Ponsonby, gave me notice of this issue and raised the question of which judicial body is appropriate to hear applications, under Clause 3, to extend the retention of DNA for those charged with a serious offence but not convicted.

As the House will be aware, this procedure is modelled closely on the system that has been in place in Scotland since 2006. In Scotland, these applications are heard by sheriffs, who, as the noble Lord will be aware, are full-time judicial officeholders, rather than by justices of the peace. In adopting the protections of the Scottish model, we have merely sought to replicate the position in Scotland. I would like to take this opportunity to

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reassure the noble Lord and other noble Lords-I think that the noble Lord is a lay magistrate-that this is not intended in any way to diminish the valuable work which lay magistrates do every day in dealing with the vast majority of cases before magistrates' courts across England and Wales. However, as we have discussed previously, we expect these applications to be comparatively rare and we judge that, as in Scotland, it makes sense to put them before a professional judge rather than the lay magistracy.

Bill passed and returned to the Commons with amendments.

Legal Aid, Sentencing and Punishment of Offenders Bill

Bill Main page
21st Report from the Constitution Committee
22nd Report from the Joint Committee on Human Rights.

Report (3rd Day)

6.30 pm

Schedule 1 : Civil legal services

Amendment 74

Moved by Lord Bach

74: Schedule 1, page 140, line 8, leave out from "Kingdom" to end of line 39

Lord Bach: My Lords, at 29 minutes to seven of the evening, I move my Amendment 74, and it is a great pleasure to do so.

Immigration law is a very complex area of the law, is highly regulated and immigration practitioners need, of course, to be qualified. The giving of general advice by non-legal professionals-for example, by not-for-profit organisations-is prohibited and, indeed, can be a criminal offence unless it comes within the Immigration Service's Commissioner's scheme. The point of providing legal aid for immigration matters is not to help fat-cat lawyers and it is not necessarily always to help immigrants themselves, although, of course, it ensures that those fleeing persecution and those wishing to be reunited with their loved ones-their wives and children-are able to do so. The main point of providing legal aid for immigration matters is to ensure that this complex, sensitive and highly regulated system functions. A radically deprofessionalised immigration system would collapse quickly under its own weight within a short period.

Last week in the case of Lamichhane, in the lead judgment in the Court of Appeal, Lord Justice Stanley Burnton referred to an observation of Lord Justice Jackson in the Sapkota case. Lord Justice Jackson's name has occasionally been heard in this House and will no doubt be heard again in the next few days. Lord Justice Jackson observed that,



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Lord Justice Stanley Burnton said:

"In my judgment, if anything Lord Justice Jackson understated the problems. I could easily have reached contrary conclusions in this case, and given respectable reasons for doing so. There is an urgent need for a simply-stated and clear codification of statute law on immigration rights, restrictions, administrative procedures and appeals".

Therefore, legal aid is necessary to ensure justice in an overly complex system.

The Administrative Justice and Tribunals Council responded to the consultation put out by the Ministry of Justice with regard to the forerunner of this Bill, citing this very complexity. The council cannot be attacked in the way that lawyers and others have been attacked as simply being concerned to protect its own self-interest. The AJTC also notes the extraordinary complexity of immigration law and takes issue with the assertion that,

As the consultation document acknowledges, these are cases where important issues arise, including the right to family life. The AJTC says:

"It is essential that appellants are properly advised and prepared before facing a highly complex process with potentially life-changing consequences. As with other areas of administrative justice, immigration raises matters of fundamental concern. The issues faced by appellants may be more important to them than anything else. At the same time, the system is flawed and mistakes are often made by initial decision-makers. Legal aid in immigration is a cost-effective means of correcting systemic injustice. ... Removal of legal aid will leave vulnerable people even more prey to unregulated and illegal advisers than they are already".

I submit that this is pretty powerful stuff which any Government should not easily and comfortably reject.

Another point worth making is that the Government envisage a system in which immigration law is not covered but asylum cases are. Can anyone see the possible end result of such a system? Spurious asylum case after spurious asylum case will flood into the immigration and tribunal system. In my experience immigrants do not simply choose to come to the UK in the same way as one makes a consumer choice. Refugees come here for various reasons; for example, to escape tyranny and oppression. They come to this country as it represents a beacon of freedom, tolerance and justice. They miss their homes and their families, whether the latter are in India, Australia, the United States, Nigeria or anywhere else in the world. This House accepts that immigrants to the United Kingdom are not a drain on the United Kingdom, despite what some would have us believe. Every economic study shows the net benefit they bring to our country. Indeed, they and their descendants are now part of the fabric, and a very valued part.

Anyone who watched the television coverage of Her Majesty the Queen's visit to Leicester last week may have seen the same scene that I did, which showed an Asian woman being interviewed while waving a small Union Jack. She was asked why she was waving the Union Jack and had come to see the Queen. She said quite simply, "Because this is my country and she is my Queen". I do not think one could get a better example of the way in which immigration has benefited this country rather than the opposite.



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By making the system less fair and by making it nearly impossible to reunite families and allow people the right to stay, we will probably create a chaotic system. The wrong people will end up staying here for years waiting for their hearings; the right people will end up in limbo, when they might be contributing to our nation's success. Worse still, the impact on women and girls will be severe. They will face an immigration system without receiving any advice or assistance. In the measure's current form there will be no provision for legal aid for trafficked victims to resolve an immigration problem other than to make an asylum application. They will not be able to obtain advice on the implications of being referred to the national referral mechanism. As such, their informed consent for referral would be questionable. Nor will they be able to challenge decisions on whether or not they are victims of trafficking.

Last week, to their credit, the Government pledged that they would sign up to the Council of Europe convention on preventing and combating violence against women and domestic violence. However, this sits slightly askew from the Government's position on this Bill, despite their recognising that without legal aid women are at much greater risk of being trapped in an abusive relationship when their immigration status is dependent on their abuser, or when a woman's insecure immigration status is used as a means of control by an abuser. These matters were brought up by noble Lords on all sides of the House in Committee, but the Government have not responded satisfactorily to the points that were then made.

This policy is the worst of both worlds. It will disadvantage all applicants, force communities in Britain to house desperate people who are unable to work for longer and longer periods as the tribunal system creaks further, and will mean that many people with considerable merit cannot stay and contribute to Britain. If we do not rectify this change now, it will lead to chaos, greater expense and negative consequences for all of us.

I conclude as follows: with immigration advice and representation regulated-and quite rightly regulated because of the scandal of advisers in the past-I ask the Minister, from where are people going to get advice when legal aid is gone? There just will not be the availability of advice, let alone representation. A commonsense forecast would be that people will be forced to revert to second-rate, greedy and corrupt advisers keen to extend for as long as they can the existence of the case, and who will often fleece what money they can out of the client and then leave them high and dry. That is not an appealing scenario, and it is certainly a step backwards from the situation today, which is hardly satisfactory. We ask the Government in the amendment to think again about taking immigration out of scope. I beg to move.

Lord Pannick: My Lords, I support the amendment. I am concerned that in the Minister's letter dated 1 March to all noble Lords he said that the Government were removing legal aid for what he called "routine" immigration matters. I have to say to him that there is nothing routine about many of the cases for which legal aid would be denied.



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Many of these cases have two important characteristics. First, they concern issues of fundamental importance to the individuals concerned, as well as to society. There are few issues as vital to an individual as whether they should be deported from this country, or whether members of their family should be able to join them in this country. The second characteristic is that many of these cases are of extreme legal complexity. The noble Lord, Lord Bach, has already quoted what the Court of Appeal said last week; and those words would be equally true of very many areas of immigration law. Yet legal aid would not be available for appeals to the immigration judge, or on points of law to the Upper Tribunal, the Court of Appeal and the Supreme Court. The UK Border Agency will of course have the benefit of lawyers to argue its case on such appeals.

I understand the need for cuts in public expenditure, but this proposal to remove legal aid in immigration matters is proceeding on the fundamental misapprehension that these cases are somehow routine-they are not.

Lord Clinton-Davis: I will not detain the House for long, but recall only too well the situation posed when I was an MP conducting surgeries on Friday nights. There were many occasions when I had to go to Heathrow to see people who were being deported. They were desperate. They had no alternative. I would not like the situation to be repeated, but I fear that it will be. The Government have to convince this House that desperate people are not to be accommodated at all. That situation is impossible to defend. The proposals being put forward by the Government today are so reckless that they ought to be defeated. It is absurd that ordinary people who are so desperate should have no alternative. That situation should not be encountered at all.

6.45 pm

Lord Newton of Braintree: My Lords, perhaps I may intervene briefly and almost reluctantly, because, having been rather rebellious last week on the Bill, I have been struggling to find good reasons for not being rebellious this week. I have to say that it is very uphill work. Certainly, when I read all the briefing on this debate from various quarters-the Immigration Law Practitioners' Association, which in turn quoted the Administrative Justice and Tribunals Council, to which I shall return in a moment, and a variety of other bodies-the Government's case got thinner and thinner with every word I read. My view has been reinforced by the points made this afternoon.

The mantra is that all this is necessary because we have such a big debt. I have said several times, as the noble Lord, Lord Pannick, said, that I entirely understand the need to tackle the country's financial problems. It does not necessarily follow that this of area of legal aid has to bear an equal share. Certainly, my recollection of the rhetoric of the coalition agreement was that we would tackle the debt problem while seeking to protect the poor, the weak and the vulnerable from the worst effects of the country's difficulties. I am bound to say that I found it very difficult to square that rhetoric with some of the stuff in the Bill.

I shall say something even more uncomfortable to my noble friends on the Front Bench. The conclusion

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to which I am being forced, given some amendments, particularly those on welfare benefits and on this matter, is that-and this is not the first time in history-a department, in this case the Ministry of Justice, has either acquiesced in or been coerced into a settlement that is bordering on inconsistency with the fulfilment of its objectives in terms of the promotion of justice in this country. I find that very sad, particularly when I look at some of the things for which the Government have managed to find money like a rabbit out of a hat on one or two occasions that it might be tendentious for me to quote. There is therefore a tension with the overall position of the coalition on what we are doing here.

I shall refer only briefly to some other matters, because they have all been touched on. I think that the House is well aware from earlier discussions that for a decade I was chair of the Administrative Justice and Tribunals Council and its predecessor, the Council on Tribunals, until I became time-expired. I had nothing to do with the council's comments on this proposal, but it would not surprise anyone to know that I agree with it. Perhaps it is therefore even less surprising that the Government appear to be hell-bent on abolishing that council, because they do not really like anybody who-I am sorry, I should not say that. They are not very happy with people who make comments that they do not welcome. As the AJTC and the judges quoted by the noble Lord, Lord Bach, have said-two or three of whom are senior judges-the whole thing is so impenetrable that they cannot, in effect, understand it and could reach different conclusions on any given case, and that the whole thing needs to be clarified and sorted out. What is the answer to that?

We have heard references to how advice workers can help, but we have also heard-and it is the situation-that under the regime of the Office of the Immigration Services Commissioner, CAB people, for example, are largely prohibited from offering a good range of advice in this field. I think that I have got that right, and it is certainly what the briefing appears to say. Where do we stand on that? Again, if I have correctly read what I have been sent, there is a suggestion that social workers might advise people in certain circumstances. I doubt that they are qualified at the moment. I doubt that they feel qualified. Are they going to be trained as legal advisers in place of lawyers? A lot of further thought is needed before we go down this path. I will listen with interest to the Minister, but at the moment the case has not been made for the proposition that is opposed by the amendment.

Baroness Butler-Sloss: My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,



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That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.

I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum-and a large number of domestic workers will not-they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.

What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.

Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.

Baroness Hamwee: My Lords, like others, I have been aware of the paradox that some senior lawyers have commented on the complexity of immigration law, but that if those extraordinarily senior lawyers had attempted to give advice they would be committing a criminal offence.

I do not want to repeat all the powerful points made in this debate, but an obvious point to me is that so many of the not-for-profit organisations which are not approved to give advice in this field work on something less than a shoestring. We have seen some of them folding not so long ago. Those which are approved are very stretched. They may not survive if legal aid in this area does not remain available. I do not suppose that the financial criteria for being granted legal aid under any part of the scope will be that

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generous-one's means must be very low to qualify. Like the noble and learned Baroness, I very much welcome the announcement that victims of trafficking will be eligible to receive legal aid. I wait to see the detail on that.

I just wanted to make two points. First, not everyone who wants to stay either wants to or can apply for asylum-I recognise that that will remain in scope. Secondly, their very difficulty with immigration status restricts many trafficked victims from seeking help to escape from their traffickers. Their passports will have been taken away. To many of them, that amounts to their identity being taken away. That leaves such control with their traffickers that I find it a difficult notion that they will not be able to get advice under a legal aid scheme.

Lord Borrie: My Lords, if the House was today being given a choice between the amendment proposed by my noble friend Lord Bach, to bring within scope the immigration laws and advice that is needed by so many people to get through the impenetrable weight and mass of immigration law, and simplifying and reducing the impenetrability of immigration law, many of us might go for the second.

I remind your Lordships that many branches of administrative law-or what is nowadays called that-were created by the welfare state, post-Beveridge, after the end of World War II. The idea was that there would be a law which need not be dealt with by the courts but could be dealt with by a mix of lay men and lawyers in administrative tribunals. I recall that the TUC used to say: "No more law, no more lawyers", when dealing with industrial injury and other matters which were to go to tribunals. Of course, we all know that during the past 50 or 60 years the law relating to the welfare state and immigration has increased. It has expanded. Many times during debates on this Bill in the past few weeks, mention has been made of the vast quantity of material contained within the 1,000 pages-plus of the law relating to welfare. Many lawyers know, as many of your Lordships have said this afternoon, that that is the case with immigration law. There is a mass of detail.

If I were given the choice between simplifying that and my noble friend's amendment, I would probably prefer a scheme to start on the major task of simplification. We do not have that choice today. The choice today is how to deal with the present Bill. Whatever we may do as Parliament in due course, today and tomorrow, in the immediate future, there is a real need for people to have proper advice from authorised persons about the detail of immigration law. That can be done only if we agree to the amendment to enable relevant people to come within scope of legal advice and legal aid.

7 pm

Lord Woolf: My Lords, rightly, we have heard a lot about victims so far in this debate and, if this amendment is not accepted, we are going to create another victim-the justice system. Government after Government have struggled to find ways of curtailing the ability of those who seek to justify their presence in this country by

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excluding them through legislation that Parliament has passed in a series of Bills-legislation which has made the law into the state in which it is now and which has already been vividly described.

In those attempts, there is normally strong support in the other place and probably in this House because it is thought that often the legislation has popular appeal. Those who said that the Government were creating a situation which would be difficult, if not impossible, to administer and adjudicate upon were not listened to. So far as I recollect, the only occasion when a Government were forced into reverse was when it was said that the legislation they were proposing sought to prevent access to the courts. The previous Government realised that that accusation, made in various quarters, was justified. To their credit, they realised that, because of the seriousness of the criticism, they had to withdraw, as the legislation would indeed have prevented admission to the courts. Of course, the issue that we are now considering is not quite as dramatic as that but I can tell the House, based on my experience, that the consequence of removing legal aid altogether-I emphasise "altogether" because we are talking about taking it out of scope-could have very serious consequences for the administration of justice.

If you go along to the Strand, where you will find our most senior court apart from the Supreme Court, you will see that much of the time of the Royal Courts of Justice is spent dealing with the problems of immigration law. The Supreme Court, in its short existence, has found that a sizeable proportion of its diet again involves immigration. I urge the House to think about the consequences for the legal system of depriving those who desperately need legal assistance of the ability to get that assistance. Without it, the task of the courts will become even more difficult than it already is, as amply confirmed by the statements from senior courts to which the House has been referred. I urge the Government to think very seriously about this amendment because it is of great importance to the legal system of this country.

Lord Judd: My Lords, the noble and learned Lord has reminded us very powerfully of the damage that can be done to our whole system of the administration of justice. Perhaps I may briefly make two wider points arising from that. One is that the Government are always telling us how they seek to play a constructive and powerful part in the deliberations of the international community in finding the solutions that matter for humanity as a whole. I can think of no more calculated way of undermining the respect in which we are held and the influence that we bring to bear than if there seems to be specific, mean action of the kind proposed. I do not want to exaggerate, as it would be quite wrong and irresponsible to do so, but I sometimes get very vexed. We all recognise the importance of joined-up government and we all recognise that we want to build a stable and secure world, but how does it help if there are increasing numbers of embittered and frustrated people having a bad experience at the hands of our legal administration in this country? How does that help to build international security and stability? I say no more.



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Lord Avebury: My Lords, perhaps I may mention one point which has not been raised so far. I refer to the effect of this provision on the workload of Members of Parliament in another place and of some of your Lordships in this House. Many of us already get letters, e-mails and personal approaches from immigrants asking for advice. Obviously, we are exempt from the provisions that apply to other not-for-profit agencies. Under the rules that determine who is legally able to do so, we cannot say that we are not qualified to give advice, but people will no longer be able to go to, for example, citizens advice bureaux. I know from personal contact with the citizens advice bureau in Southwark that it has one person who is trained to give advice at level 3 on immigration cases and it has very few lower down who are even able to advance advice to their clients on level 1 cases.

Do your Lordships not think that the consequence of the Bill, when enacted, will be that, as people will not be able to get advice elsewhere, they will come in their droves to the doors of Members of Parliament, they will clog up the advice bureaux and they will turn to your Lordships? We will be completely overwhelmed by the volume of cases, as well as being unable to deal with the complex cases to which the noble Lord, Lord Bach, referred in his introduction. We all know that some immigration cases are simple and can be dealt with very easily by a person acting on his own behalf, but that does not apply to the vast majority of cases, as we have heard today. I think that there is enormous merit in the amendment proposed by the noble Lord, Lord Bach, and I certainly hope that my noble and learned friend on the Front Bench will have been thinking carefully about how he is going to reply at the end of this debate.

Lord Boswell of Aynho: My Lords, I have listened with interest to this debate as a lay person who has not been much engaged on the Bill in the past. However, like my noble friend Lord Avebury, I had constituency experience and was always impressed by the complexity of the cases brought to me. I am also impressed by the volume of evidence and comment made, not least because I currently happen to be one of the officers of the All-Party Parliamentary Group on Migration. I am not in any sense taking its brief but I feel that this matter needs very careful and continuing consideration.

I well understand that there have been cases of abuse in the past. These may have involved overt or self-styled professionals, and they may have involved bad practices by others, including third parties, who run the immigration cases. I also well understand the point about the cost that the Minister has already made to us in correspondence. I would go beyond that to comment that we really cannot meet all the objectives which his department needs to meet in order to balance its budget if we make wholesale concessions on every single aspect of concern where pressure is developed.

These are complex cases. My difficulty in saying that we need to keep them within scope is-thinking aloud-in determining how one would find a basis for doing so without, as it were, pre-hearing the merits of the cases and without necessarily being able to predetermine the degree of legal complexity in those cases unless and until they had been examined. I know

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that those are difficulties and I know that the cost is a difficulty, but I say to my noble and learned friend that I do not spend my life rebelling and I do not intend to do so tonight for some of the general reasons that I have given about the need for rigour as we take this Bill through. However, I think that these cases are particularly difficult. If he takes them out of scope now, I think that he will need to keep the whole area under review. In future, he may need to consider at least some residual discretionary fund which can be applied to cases of particular interest or importance or where justice is most engaged. It is on that qualified basis, but in anticipation also of his response, that I may be prepared to tender my vote in his Lobby tonight.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, the amendment moved by the noble Lord, Lord Bach, as indicated by many contributors to this debate, would bring legal aid within scope for all immigration cases. I readily understand why noble Lords have put forward the amendment and I am sure the noble Lord will accept, as I think he indicated in his remarks, that just because we seek to take many immigration cases out of scope does not mean that we do not value the contributions that immigrants have made. I think the noble Lord, Lord Bach, acknowledges that we certainly do.

To make a change to the Bill in a way proposed by this amendment causes us to look at the rationale and the basic structure of what underlines this legislation at a time of limited resources. As my noble friend Lord Boswell has just said, this is a time when difficult decisions have had to be taken and when there has been a need to focus legal aid on those who need it most in the most serious cases. My noble friend said that he hoped we would consider it. It can be taken as read that, in an area as sensitive as this, for the reasons that have been advanced by many of your Lordships in contributions to this debate, this is obviously a matter which has been given serious consideration. I am confident that all who took part in the debate will appreciate that this is not a blanket exclusion of immigration cases. We have made it clear in the immigration sphere that we are retaining legal aid for asylum cases, which we believe is absolutely essential because the issues at stake can, at times, be as serious as life or death. It is important, too, to recognise that we will protect legal aid for immigration detention and where there is domestic violence. We are also keeping legal aid for most immigration judicial review cases, which are very often the most complex cases.

This approach means that under our reforms we will continue to spend £70 million of the current £90 million budget in relation to immigration cases. My noble friend Lord Newton talked about a disproportionate share. I think that our reform, with an expectation that some £70 million out of the current £90 million budget will continue to be spent, is an indication that this has been examined in some detail.

However, the corollary of protecting legal aid, particularly in the key areas to which I have just referred, is that it is necessary to be more far reaching in others. At a time when our fiscal difficulties have been acknowledged by a number of contributors, I do

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not see how it is always possible to justify the extended use of limited resources; for example, for foreign students who may wish to study here but who do not have a connection with the United Kingdom. When difficult choices have to be made sometimes it is very easy to accept the principle that those choices are necessary but it is more difficult when you try to translate them into specific areas.

I shall pick up specific points made by a number of contributors, not least by the noble and learned Baroness, Lady Butler-Sloss, who acknowledged the accession to the convention that was recently confirmed. The noble and learned Baroness knows, because we debated it in Committee, that the Government provide £2 million per annum for support to trafficked victims to help to rebuild their lives and that can include information about legal rights. I think it is known by your Lordships that that £2 million is distributed by the Salvation Army. The convention requires legal counselling, including information about people's rights. There are no immigration applications as such that trafficking victims need to make. They are automatically granted 40 days' leave; then they may be granted 12 months' leave if they are assisting the police, or up to three years' leave if there are compelling circumstances to do so. That is decided on the known facts of the case and they do not need to apply for it.

7.15 pm

As was acknowledged by the noble and learned Baroness and by the noble Lord, Lord Bach, we debated an element of trafficking last week when the Government accepted, in principle, much of what the noble and learned Baroness proposed in her amendment. We have agreed to return at Third Reading with amendments dealing with advice for victims of trafficking and we will certainly consider the points raised in this debate about including immigration advice with that. I think I indicated last week to the noble and learned Baroness that there will be engagement between her and officials in the Ministry of Justice.

In general, we believe that many immigration cases-I think my noble friend Lord Boswell touched on this-are relatively straightforward and individuals should be capable of dealing with their applications without the assistance of a lawyer. The issues raised are often not complex legal ones. I hear what the noble Lord, Lord Bach, said in reference to that. I do not have before me the details of that or whether it might fall into one of the exceptions that would be within scope. Often they are about whether the facts of a particular case meet the Immigration Rules.

We have a tribunals system in this country where appeals are heard and interpreters are provided as necessary. Sharing some of the initial comments of the noble Lord, Lord Borrie, I hope that we have not lost sight of the original point of tribunals which was precisely to allow the resolution of disputes by individuals without the need for complex and expensive legal advice. Indeed, when the noble Lord, Lord Bach, was making his case, I had a similar thought to the one that the noble Lord, Lord Borrie, expressed that perhaps one answer to this would be to simplify the legislation. However, as he rightly points out, that is not on offer

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today and I cannot make any commitment on that. I think that the noble and learned Lord, Lord Woolf, said something very similar. It is something on which we, in Government, would do well to reflect. I am sure that many areas of administrative law-not just immigration-have grown in complexity over the years, as one layer of legislation has been laid on another.

I, too, agree that coming to or staying in the United Kingdom is of vital interest to those concerned, but practical, general advice and guidance can be available to help them. As we have already indicated, the Chancellor of the Exchequer will include details of substantial new funding for the advice sector when he announces the Budget. At a time of austerity, specialist legal advice on top of that is simply not justified. My noble friends Lord Newton and Lord Avebury spoke about the position of the citizens advice bureaux and the stringent regulations that were brought in by the previous Government. It is my understanding that the citizens advice bureaux can give immigration advice to level 1, which is low-level advice and assistance. Similarly, we will work with the Office of the Immigration Services Commissioner with a view to seeing whether we can exempt local authorities from regulation so that they can offer low-level advice and assistance as well.

Lord Newton of Braintree: My Lords, will the Minister acknowledge that part of the reason for introducing the Office of the Immigration Services Commissioner was the poor quality of the advice that people were getting at these tribunals from people who simply did not know what they were doing? The new service was designed to ensure that they would get proper advice, and we should think very carefully before going back to the preceding regime.

Lord Wallace of Tankerness: My Lords, we are not proposing to abandon the regime. As the noble Lord, Lord Bach, pointed out, immigration advice is tightly regulated by the OISC, to which complaints can be made.

Substantial savings are required. The change that we propose will save an estimated £20 million a year out of a total of £90 million spent in this sphere of law. It is important to show a balance; it is not just a case of taking immigration cases out of scope. Cases affecting some of the most vulnerable people will remain in scope. I do not for a moment doubt the motivations behind the amendment. However, I assure noble Lords that the matter has been given careful consideration. My noble friend Lord Boswell asked about complex law being kept under review. He will be aware that the power to add, within scope, that has been proposed for Clause 8 is a safety net that could be used if, in the light of experience, the somewhat apocalyptic scenario described by the noble Lord, Lord Bach, came to pass. Of course, there will be a post-implementation review after five years.

I hope that noble Lords will recognise that in a very difficult area we have sought to strike the right balance in cases that are particularly demanding and that particularly affect asylum seekers, such as cases of domestic violence and where people are being held in detention, and that we are addressing some of the

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most difficult cases in the immigration field. However, we had to draw the line somewhere. It could never be in the right place for all noble Lords. I can only assure them that it was done with some care and thought, and ask the noble Lord to withdraw his amendment.

Lord Bach: My Lords, I am very grateful to all noble Lords who spoke in this important debate, and not least to the Minister, who in his usual reasonable way explained the Government's position. I am afraid that I cannot accept the explanation. To save £20 million in order potentially to set back the system by many years and to cause difficulties for so many people is not a sensible saving of money.

The noble Lord, Lord Newton, talked about other expenditure the Government had found. He was too polite to say what I will say. My example is the £250 million the Government found to make fortnightly bin collections weekly. It is absurd to save £20 million here but spend £250 million there-such an absolutely wrong sense of priorities-that any satirist would have enormous fun writing a story about it. Jonathan Swift should be living at this hour.

I will simply ask the House to recall the comments of two of our most distinguished judges: the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss. Their words a few minutes ago gave the lie to the argument that this was a sensible move by the Government. Almost all other noble Lords who spoke said that the measures were not worth taking and were wrong in themselves. I ask the House to ask the Government to think again. I beg to test the opinion of the House.

7.24 pm

Division on Amendment 74.

Contents 179; Not-Contents 198.

Amendment 74 disagreed.


Division No. 1


CONTENTS

Adonis, L.
Ahmed, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Best, L.
Bilston, L.
Blackstone, B.
Blood, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Butler-Sloss, B.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Clancarty, E.
Clark of Windermere, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corston, B.
Coussins, B.
Davies of Oldham, L.
Davies of Stamford, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Falkland, V.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.


12 Mar 2012 : Column 82

Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hereford, Bp.
Hollins, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Krebs, L.
Layard, L.
Lea of Crondall, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Low of Dalston, L.
McAvoy, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Mandelson, L.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Monks, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Newcastle, Bp.
Newton of Braintree, L.
O'Loan, B.
O'Neill of Clackmannan, L.
Palmer, L.
Pannick, L.
Parekh, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Leigh, L.
Soley, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tonge, B.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Winston, L.
Woolf, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Young of Old Scone, B.

NOT CONTENTS

Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Barker, B.
Bates, L.
Benjamin, B.
Berridge, B.
Bew, L.
Black of Brentwood, L.


12 Mar 2012 : Column 83

Blencathra, L.
Boswell of Aynho, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Broers, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Caithness, E.
Cameron of Dillington, L.
Cathcart, E.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cotter, L.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dundee, E.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Emerton, B.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Fink, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Freeman, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
German, L.
Glasgow, E.
Goodhart, L.
Goodlad, L.
Goschen, V.
Greenway, L.
Hamilton of Epsom, L.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Howe, E.
Howe of Aberavon, L.
Hunt of Wirral, L.
Hussain, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jopling, L.
Kakkar, L.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Luke, L.
Lyell, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Mancroft, L.
Maples, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newlove, B.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer of Childs Hill, L.
Parminter, B.
Patel, L.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rennard, L.
Ribeiro, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Ryder of Wensum, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Spicer, L.
Stedman-Scott, B.
Stephen, L.


12 Mar 2012 : Column 84

Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
Wei, L.
Wilcox, B.
Willis of Knaresborough, L.
Younger of Leckie, V.
7.36 pm

Amendment 74A

Moved by Lord Stevenson of Balmacara

74A: Schedule 1, page 141, line 3, at end insert-

"Debt management and relief or remedy

Civil legal services in relation to any debt management relief or remedy available under Part 5 of the Courts, Tribunals and Enforcement Act 2007."

Lord Stevenson of Balmacara: My Lords, I rise to speak to Amendments 74A and 74B about legal aid for debt, and in so doing I declare an interest as chair of the Consumer Credit Counselling Service. Under the proposals in the Bill, all legal aid for debt issues, including advice, is excluded from the scope of legal aid, except for legal services provided in relation to a bankruptcy order against individuals, under Part IX of the Insolvency Act 1986, where the individual's estate includes their home. The purpose of our amendments is to reverse that proposal. We believe that it starts from the wrong premise, that it will not save money and that we will lose an effective and well used remedy, the debt relief order, which helps the poorest and most indebted in our society.

Debt problems are sadly increasingly common, and unless dealt with promptly and effectively can have a major impact on individuals, families and communities. A recent report from the Legal Services Commission confirms that there are a variety of causes of debt problems, the most common being changing circumstances such as ill health, relationship breakdown and loss of employment. Qualitative interviews, and I confirm this from my own experience, often reveal particularly distressing impacts on parents' relationships with their children and on the wider family. More generally, debt problems have been found to make it difficult for people to carry on living normal lives.

In the same report, the average cost to the public and in lost economic output is estimated at over £1,000 per debt case, with more serious problems involving costs of many times this amount. So we can say with some confidence that debt problems are serious and that they can, and often do, have direct consequences. We therefore reject the premise that debt cases should be removed from the scope of legal aid.

When we debated this issue in Committee, the point was made that all debt problems are underpinned by complex contractual obligations and that, in the majority

12 Mar 2012 : Column 85

of cases, such advice and support take place within a legal framework that will involve issues of liability, consumer credit contracts, creditors' enforcement powers, statutory debt remedies and enforcement processes within the court system and beyond.

As I have mentioned already, there is another dimension to this, which is that most, if not all, of those who contact my charity and other providers of debt advice almost always have other issues, such as illness, employment problems or relationship problems that have either caused the debt problem or contributed to it. It is this compounding effect that makes the withdrawal of legal aid for all debt issues such a simplistic proposal. Therefore, my second point is that debt problems should not be removed from the scope of legal aid because the economic and social consequences far outweigh the savings that are being proposed.

Our third point is expressed in Amendment 74B. We think that the withdrawal of legal aid for debt will in effect lead to the closure of the debt relief order system, which is operated by the Insolvency Service. DROs can be considered only by application via approved intermediaries working for organisations that have to be approved by the Insolvency Service. Approved intermediaries are usually experienced debt advisers, the vast majority of whom are based in citizens advice bureaux around the country, and they are currently funded by legal aid.

In 2011, nearly 29,000 debt relief orders were made, of which 70 per cent were processed by CAB debt advisers in their role as authorised intermediaries. Citizens Advice has made it clear that it will not be able to employ a sufficient number of approved intermediaries if legal aid is withdrawn. If the Bill goes ahead in its present form, it is clear that the DRO system will not survive. More than 20,000 families a year who would otherwise be able to write off their debts will not be able to do so.

It is a classic Catch-22; you can proceed with a DRO only through an authorised intermediary approved by the Insolvency Service. If the legal aid funding is cut, there will be no authorised intermediaries and the DRO scheme will simply wither on the vine. This is not just a cut in the legal aid bill; it is the end of a good and effective debt solution introduced in 2007 and used since then by thousands of families faced with disaster. It simply should not happen. I beg to move.

Baroness Coussins: My Lords, I support Amendments 74A and 74B, to which my name has been added. I declare an interest as president of the Money Advice Trust. In that capacity I have sat in as an observer at the National Debtline and the telephone helpline service that the Money Advice Trust runs, and I have heard first hand some up-to-date examples of the complexity of debt problems. This has brought me to the conclusion that the problem here-which these amendments are designed to resolve-is that when this proposal was framed in the Bill, sufficiently careful attention was not paid to the distinction between legal advice for people with debt management problems and general debt advice.

The Money Advice Trust tries to prevent existing debt problems running out of control, especially when they are tied up with other issues such as mental

12 Mar 2012 : Column 86

health problems or the threat of repossession. While we are talking about complex problems that require the advisers to be quite expert-and certainly sensitive-we are nevertheless talking about first-stage generalist debt advice. This is way beyond the point at which the client needs legal advice.

My understanding is that the Government view debt advice as "not strictly legal work" and feel comfortable about the withdrawal of legal aid because they expect that services such as the Money Advice Trust's debt helpline will provide appropriate advice services instead by phone-the withdrawal of legal aid is neither here nor there. As I understand it, this shift in service responsibility has not even been discussed, formally or informally, with the Money Advice Trust, and it is precisely because the kind of debt advice that the Money Advice Trust provides is different from advice that is "strictly legal" that legal aid needs to be retained.

The Money Advice Trust describes what it provides as "assisted self-help"-preparing budgets, helping clients seek additional benefits, helping them calculate acceptable repayments to creditors, and so on-but this is not legal advice. The Money Advice Trust is not equipped to provide legal advice; for example, it cannot advise clients on their chances of success in court or prepare them for court hearings, or how to get statutory debt relief or challenge collection and enforcement actions. If people needing formal legal advice were to rely on the Money Advice Trust, it simply would not have the capacity or the expertise to help them. The 200,000-odd people who go to that service every year would get much poorer outcomes.

In the long run, the cost of the gap in provision that would be created by the withdrawal of legal aid in these circumstances would end up being far greater, and would therefore frustrate and subvert the Government's perfectly reasonable objective of saving money. People with debt problems need the services of organisations such as the Money Advice Trust but they may also need formal legal advice, and when and if they do, it would be uncivilised to deny them access to legal aid.

I urge the Government to think again carefully about the distinction between legal advice and more generalist debt advice of the sort that this charity provides, and to accept these amendments.

7.45 pm

Lord Clinton-Davis: I will not follow the noble Baroness because she made an unanswerable case. I support her 100 per cent.

I want to talk primarily about unfair dismissal-

Noble Lords: That is the next amendment.

Lord Clinton-Davis: I am sorry.

The Minister of State, Ministry of Justice (Lord McNally): The noble Lord, Lord Clinton-Davis, was always known for his impetuosity.

I pay tribute to the noble Lord, Lord Stevenson, and his ongoing interest in debt matters. However, this amendment would have the effect of broadening the availability of legal aid for debt cases, contrary to our

12 Mar 2012 : Column 87

current proposals, which are to retain legal aid for priority debt cases only, where the individual's home is at immediate risk of possession because of rent or mortgage arrears or involuntary bankruptcy.

It is never an easy decision to restrict the availability of funding but economic reality dictates that we focus scarce resources on the cases that are the highest priority. The Government have taken a principled approach to making spending reductions, prioritising funding for those categories of case that are most serious, such as where life, liberty or immediate loss of home are at stake. The necessary corollary of protecting funding in the most important areas is that we have to make tougher choices in the lower-priority areas.

When making these decisions, we have taken into account the presence of alternative appropriate forms of advice. It is simply not the case that legal advice is the only-or even the best-response to debt problems. Figures show that liability for the debt itself was reported as successfully contested in fewer than 2 per cent of cases in 2009-10, and also reveal that 62 per cent of legal help funding for debt matters was spent not on complex matters of law but on negotiating payment arrangements and advising clients on managing their affairs better.

We recognise that debt problems can be difficult and stressful for the individuals concerned, but we believe that what people often need is practical advice and support, rather than specialist legal advice. This help is quite widely and effectively available from organisations such as Credit Action, the National Debtline, the Consumer Credit Counselling Service and the Insolvency Service inquiry line and website. Local authorities also signpost people to local sources of advice and assistance on debt matters. In addition, the Money Advice Trust, to which the noble Baroness, Lady Coussins, referred, has recently launched "My Money Steps", an online tool for providing advice for people with debt problems. The Consumer Credit Counselling Service also offers a free online "Debt Remedy" service.

Such sources of help are best placed to deal with issues like debt relief orders, which this amendment suggests should be brought back into the scope of legal aid. These orders are relatively informal procedures, used by people who owe limited amounts of money and do not have assets. Indeed, the current legal aid scheme does not pay for their completion.

Given the availability of alternatives, and the pressing choices forced upon us by the economic situation, it does not seem a wise use of scarce resources to continue funding widely available legal advice, much of which replicates advice available elsewhere. We must move away from the assumption that for many problems that are fundamentally non-legal, the only answer is for the state to pay for legal advice.

I understand that this amendment is motivated in part by the noble Lord's concerns about funding for citizens advice bureaux to provide debt advice. As I have said in earlier debates, we share that desire to see what can be done to help to ensure sustainability for the non-profit sector. However, let us not overstate the impact of our changes in legal aid on CABs. Legal aid

12 Mar 2012 : Column 88

funding is intended for specialist advice, not for cross-subsidy of other activities. As a matter of practice, in 2010, 85 per cent of all bureaux funding came from sources other than legal aid and half of all bureaux do not hold a legal aid contract at all. Moreover, it should be borne in mind-I am sure that the Opposition will be glad to know this-that we have already provided £20 million, which has come ahead of reductions in legal aid spend.

It is worth remembering that CABs have not had any cut in legal aid spend and will not until 2013. Of that £20 million, £16.8 million assigned to England is being used for the Advice Services Fund to support not-for-profit providers in delivering essential advice on debt, welfare benefits, employment and housing. Despite the concerns of the sector, the Money Advice Service will continue resourcing the existing free face-to-face debt advice services after 31 March, so that people in need have access to good, free advice. The Financial Services Authority has agreed to fund this provision from April.

I also understand that the Cabinet Office's review is expected to conclude shortly and will provide recommendations on proposals to secure long-term sustainability of the sector. As my noble and learned friend Lord Wallace pointed out, it is only nine days to my right honourable friend the Chancellor's Budget. Therefore, I would ask the House to be patient and to allow us to bring this important work to its conclusion.

It is always easy to make the case for spending but tough times require tough decisions. I hope that even our critics accept that we are making genuine attempts to protect the not-for-profit advice sector, not least by the pressures brought to bear by my noble friend Lord Shipley at earlier stages of this Bill and by other Members of this House who have raised the specific issue of the CABs and the not-for-profit sector. I have given assurances about this and, against that backdrop, I urge the noble Lord to withdraw his amendment.

Lord Stevenson of Balmacara: My Lords, I thank the noble Baroness, Lady Coussins, for her contribution to this debate and for sharing her experience of working directly in this field, which I echo. I recognise many of the points that she made around that. It was also nice to have the unprompted support of the noble Lord, Lord Clinton-Davis. I seem to be having a little run of these things because the previous time I tried to speak about this subject, the noble Lord, Lord Best, came in on housing, which, although again relevant, was not exactly helpful to my support. Never mind, we will battle on.

At last weekend's Lib Dem conference, a Motion was passed calling for:

"The protection of fair and equal access to justice, through ... A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs".

It was unanimously passed but I notice that the Minister did not mention it when he made his remarks a few minutes ago.

A lot of the points that I made, which were picked up by the noble Baroness, Lady Coussins, were about the difference that had to be made between legal

12 Mar 2012 : Column 89

advice and generic advice. It is certainly true that a lot of work is going on in the generic debt advice field but we have been facing problems in terms of legal advice. I notice that in his comments the Minister made more of a case for support of the voluntary sector in this area, which of course we are grateful to have, than about the individuals who we think will be affected by this. For example, if the bailiffs are at the doorstep seeking to seize someone's goods and chattels, I think that everyone in this House would agree that they are reasonably said to be facing serious direct consequences. Yet, under the present proposals, they would neither be eligible for legal aid to contest the original order nor would they be able to access legal aid to challenge the manner in which the order had been carried out. Indeed, we know a lot about that. There are quite serious difficulties within the legal advice sector of debt which have not really been picked up in this debate so far.

It was interesting that the Minister made the point that currently debt relief orders were not being funded to any great extent by legal aid and that, to some extent, legal aid should perhaps not be used at all for this. The key reason why the DRO scheme is successful is its lower cost, which was much trumpeted by the Insolvency Service. That is because the administration fee is £90, of which £80 goes to the Insolvency Service, leaving £10 for those who have to administer it. I have looked carefully at the way in which these forms are created. It would take me a great deal of time to work through these things and I am an accountant. However, specialist support and advice is needed. I think that it is ingenuous of the Minister to say that somehow this will survive. My charity estimates that it costs us about £350 per case to deliver a completed DRO. Where will that money come from? I do not think that we have had any answer to that.

Finally, the way in which the noble Lord went on seems to suggest that he has not read the BIS Select Committee report on debt management, which was published last week. The report states:

"Citizens Advice informed us that the legal aid budget for debt advice in England and Wales is due to fall by 75 per cent from 2013".

The noble Lord admitted that there would be some changes after 2013. The report continues that the,

which is a significant number.

Later in the report, a BIS Minister is reported as recognising that,

The situation facing those in debt in this country-very often not of their own accord and they certainly are not the feckless poor-is really difficult. I do not think that these proposals will help. I should like to seek the opinion of the House.

7.56 pm

Division on Amendment 74A

Contents 151; Not-Contents 194.



12 Mar 2012 : Column 90

Amendment 74A disagreed.


Division No. 2


CONTENTS

Adams of Craigielea, B.
Adonis, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Best, L.
Bilston, L.
Blackstone, B.
Blood, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Clancarty, E.
Clark of Windermere, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corston, B.
Coussins, B.
Davies of Oldham, L.
Davies of Stamford, L.
Donaghy, B.
Drake, B.
Dubs, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hereford, Bp.
Hollins, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Krebs, L.
Layard, L.
Lea of Crondall, L.
Liddell of Coatdyke, B.
Liddle, L.
Lister of Burtersett, B.
Low of Dalston, L.
McAvoy, L.
McDonagh, B.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Monks, L.
Moonie, L.
Morgan, L.
Morris of Handsworth, L.
O'Loan, B.
O'Neill of Clackmannan, L.
Palmer, L.
Parekh, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Radice, L.
Rea, L.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Leigh, L.
Soley, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.


12 Mar 2012 : Column 91

Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Wills, L.
Winston, L.
Young of Norwood Green, L.
Young of Old Scone, B.

NOT CONTENTS

Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Bates, L.
Berridge, B.
Bew, L.
Black of Brentwood, L.
Blencathra, L.
Boswell of Aynho, L.
Bowness, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Butler-Sloss, B.
Caithness, E.
Cameron of Dillington, L.
Cathcart, E.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cotter, L.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dundee, E.
Dykes, L.
Eaton, B.
Eden of Winton, L.
Edmiston, L.
Emerton, B.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Fink, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
German, L.
Goodhart, L.
Goodlad, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jopling, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Luke, L.
Lyell, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Mancroft, L.
Maples, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Newby, L.
Newlove, B.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer of Childs Hill, L.
Parminter, B.
Patel, L.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.


12 Mar 2012 : Column 92

Popat, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rennard, L.
Ribeiro, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Ryder of Wensum, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Sheikh, L.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
Wei, L.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Younger of Leckie, V.
8.08 pm

Amendment 74B not moved.

Amendment 74C

Moved by Lord Bach

74C: Schedule 1, page 141, line 3, at end insert-

"Unfair dismissal

1 (1) Civil legal services provided in respect of employment cases where a person has been unfairly dismissed.

(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages."

Lord Bach: My Lords, the House will remember that we had a robust debate on this issue in Committee and some valuable contributions were made, particularly by the noble Lord, Lord Pannick. I shall refer to some of the points he made in a moment. Legal advice for employment law matters is used by around 15,000 people a year, and at current levels we spend £4 million on it, which works out at around £300 per advised person. This advice deals with issues such as unfair and wrongful dismissal, redundancy, contract disputes, discrimination, strike action, data protection and employee confidentiality, and wage issues such as when people are paid below the minimum wage. It goes without saying that these issues are of considerable importance to the individual and to the state.

Someone who is dismissed and is unable to get fair recompense or their job back becomes a burden on all taxpayers. It is one that most of us are willing to bear. Jobseeker's allowance is a safety net for precisely these kinds of people, but it is one that we should not bear unduly. Legal advice is valuable when attending a tribunal because the other side, that of the employer, is nearly always represented, certainly by a lawyer and

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often by counsel. The inequality of arms between a cleaner who is being paid below the minimum wage and their employer's counsel is substantial. There is an alternative to legal aid, of course-that of damages-based agreements. But those agreements are not yet widely available and they are not available at all for certain classes of case. Worse, they leave the most impecunious sometimes at the mercy of predatory claims managers.

In Committee, the noble Lord, Lord Pannick, outlined four particular concerns. First, he highlighted the importance of employment rights. He contrasted these with environmental pollution rights, which remain in scope. The second was the point about equality of arms and the injustices that flow from that. The third point was the illusory nature of the savings in that through state benefits we will essentially subsidise bad employers, who will not be brought to justice. His fourth point highlighted a perverse consequence of the Bill as it is now drafted. Given that discrimination remains in scope, we are going to see an awful lot of people tacking discrimination claims on to their dismissal claims. The noble Lord may remember that such a problem arose when defamation was not within the scope of legal aid but malicious falsehood was. That led to many legal aid cases being brought under the Trojan horse of malicious falsehood, where the most appropriate tort for that was defamation. That loophole was closed in 1999, but this Bill as drafted intends to reintroduce a number of what we would call perverse incentives, of which this is perhaps the most obvious.

As I have said, employment legal aid costs £4 million a year, but accepting this amendment will not cost £4 million a year. The amendment does not change the Government's ability to set their own budgets-rather, it is a statement of principle that employment law is important and complex, and that victims of abuse need redress and advice on how to seek that redress. EJ Cohen was cited the other day in aid of legal aid; he said:

"The State is not responsible for the outbreak of epidemics, for old age or economic crisis. But the state is responsible for the law. That law again is made for the protection of all citizens, rich and poor alike. It is therefore the duty of the State to make its machinery work alike for the rich and the poor".

Employment law exists to protect citizens-hard-working ones, often-from unfair and unlawful practice by employers. At its best, it evens up the natural imbalance between the rights of employers and those of employees. We did not create those laws out of folly, but because there was abuse after abuse which forced us to act. Many good employers are grateful for the fact that good, fair employment laws exist. However, despite these laws and the access to justice that was promised when legal aid was introduced for employment law, there remain-and the Government have to take this into account-some bad employers out there.

8.15 pm

I hope that noble Lords have had a chance of seeing the citizen's advice bureau's very good briefing, Out of Scope, Out of Mind. It details some cases, one of which is this:

"Steve, a 59 year old man, was suffering from multiple health problems including arthritis of the knee and heart problems. The CAB helped him with various problems, including debt"-



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it will not be able to do that now-

The moral of this tale, so says the CAB, is this:

"Had legal aid advice not been available to help Steve with his employer, he would have been left in limbo, unable to work and with no income, potentially leading to homelessness".

It could lead also to a much greater cost to the state.


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