When it was first proposed by the noble Baroness, Lady Finlay, in Grand Committee, I was profoundly struck by the power of her argument about the particular vulnerability of children in this very enclosed situation and the impact on their health and development at their immature stage. It is obvious. I have heard no dissent in the House today about why passive smoking by children in cars is a very bad thing and ideally should not happen. I will not rehearse those arguments, which have been very well made again today by Members across the House.

However, I want to focus briefly on concerns that have been expressed about the amendment and the arguments against it. There have been three main arguments. One is the basic libertarian argument that people should be free to do what they like in their cars because they are private spaces and should not be fettered. But when we are considering freedoms, as we have done in our history, there is always a balance. Freedom for some is often at the expense of freedom for other people. The balance we are considering here is between the freedom for adults to smoke in cars when they like and the freedom for children not to breathe in that smoke in a situation from which they, by definition, as several noble Lords pointed out, cannot escape.

When responding to the noble Baroness, Lady Howarth, the noble Lord, Lord Cormack, for whom I have great respect, as he knows, said that there is a difference between smoking, which is a legal activity, and other things that we have prohibited in the home in relation to children. But the things that we were talking about then, such as neglect of children and the beating of children, have not always been illegal in the home. They were made illegal because they are particularly harmful to the well-being of children. We take it for granted now that such things are illegal but they were not always. We invaded that private space because of the need to protect children. The same argument applies. Because of the degree of damage that we know smoking in cars causes, we should apply the same argument here.

Lord Cormack: I have been thinking a lot during this debate. Is not the answer to make it obligatory for all new cars to have a smoke alarm fitted?

Baroness Hughes of Stretford: That particular measure would not deal with the issue of prohibition, so I cannot see how it would necessarily help. The alarm

29 Jan 2014 : Column 1248

may go off, but if it is still legal for adults to smoke with children in the car, there would be no consequence to its going off. There are precedents, because this is a child protection issue, for our proceeding along this route.

The second argument was: if cars, why not private homes? There have been contributions today that have made it clear, citing research by the British Lung Foundation and other bodies, that there are real and qualitatively different levels of risk to children from the smoke in a confined space, from which they cannot escape, compared to that in homes. Yes, children will be harmed in some homes where space is limited. That is undoubtedly true. But the potential for children to escape those spaces is clearly there in a home situation. They can go outside as well. In a car, the toxicity levels and the fact that the child is trapped make that a distinctly different situation, of which we should take account with this amendment.

The third argument has concerned the difficulty of enforcement.

Lord Forsyth of Drumlean: I know that people want to make progress, but just on this point about private space—where the noble Baroness is making the distinction between a motorcar where the children cannot escape and, say, a room in a small flat where there are smokers—what about a baby in a carry-cot? They cannot move to another room.

6 pm

Baroness Hughes of Stretford: No, that is true. I know that the noble Lord is very exercised by these issues, and I respect his point of view. A baby of itself could not move to another room. However—we have these arguments in many ways—the fact that we cannot remove the harm to all children in all situations presented by passive smoking is not an argument in itself for not taking the action that we could take to reduce the harm to the majority of children in the most dangerous situations. That is the argument in support of this amendment.

The third argument we heard was about enforcement. Again, we had some helpful contributions which I was going to make myself, but I shall just mention them. This is primarily not about enforcement, and we have precedence here with the ban on using mobile phones in cars, the mandatory use of seat belts and the ban on smoking in public places. All of those were hotly contested before legislation came in. I particularly remember the ban on smoking in public places because I was involved in it. That measure not only established smoke-free common areas for people but, equally importantly—and it is true of the other two measures—precipitated the biggest reduction in smoking we have seen: a significant and beneficial change in behaviour on a massive scale. That is the issue here, as the noble Baroness, Lady Tyler, pointed out. I have no doubt that this would precipitate a very significant change in behaviour in relation to smoking in cars with children. Particularly when we see so much public support for the measure, I think that we could anticipate that.

I say again that Amendment 57BB is enabling. It would entail further discussion about the practicalities and the detail of the regulation. We fully accept the

29 Jan 2014 : Column 1249

need for that and welcome it. However, it is an important measure for children and I hope that the House will support it.

Earl Howe: My Lords, this has been a fascinating and very helpful debate and I am very pleased with the support that I have heard for the government amendments on standardised packaging. I would like, if I may, to commend noble Lords for their continued work in supporting tobacco control. We all want to drive down rates of smoking in this country and, in particular, to stop young people from taking up smoking in the first place. Let me address the points on standardised packaging first.

The noble Baroness, Lady Finlay, the noble Lord, Lord Faulkner, and my noble friends Lady Tyler and Lord McColl tabled a revised amendment following discussion in Grand Committee, and I see that they reflected the comments that I made in redrafting it. I particularly welcome their support for the Government’s amendments and can reassure them that our amendments would achieve all of the things that they seek to do.

My noble friend Lord Naseby raised a number of legal issues. I would like to reassure him that we have given very careful consideration to the legal situation. We believe that the government amendment gives us sufficient room to proceed with the regulations, should we choose to do so, and introduce standardised packaging, if that is what is decided. He queried the fact that the amendment is drafted in such a way that the devolved Administrations and Assemblies have to give consent, but it is the Secretary of State and not Parliament who gives consent in England. We do of course want Parliament to have a say, which is why we have introduced Amendment 63B to make the regulations subject to the affirmative procedure.

The noble Lord, Lord Stoddart—whose robust state of health I very much welcome—indicated that there has been no proper consultation on standardised packaging. In fact, in 2012 the Government ran a full public consultation and received almost 2,500 substantive responses and well over half a million postcard and petition responses. The consultation asked 15 specific questions and invited comments on the consultation stage impact assessment, which was also published. So it was a very thorough exercise.

The noble Lord, Lord Stoddart, suggested that this was the thin end of the wedge, if I can put it that way, and might herald similar measures in relation to junk food. I think we need to remember that tobacco is a uniquely harmful consumer good. Tobacco kills one in two long-term smokers. There is no safe level of smoking. That is why we have a range of specific legislation and an international treaty around tobacco control.

My noble friend Lord Naseby referred to illicit tobacco. We received a wide range of responses to the question in the consultation on illicit tobacco. They are summarised in the consultation report. In 2000, around 21% of the UK cigarette market was illicit. The latest estimate from HMRC, for 2012-13, is that this has dropped to around 9%. It is too high, I concede, but we are heading in a positive direction.

29 Jan 2014 : Column 1250

The noble Baroness, Lady Howarth, asked about the timetable for the regulations. I emphasise here that I do not want to pre-empt any decision that the Government may make on whether to proceed with standardised tobacco packaging, and I know that the noble Baroness understands that; but equally for that reason, it would be premature to set out a detailed timetable. What I can confirm is that the regulations would be subject to the affirmative procedure to ensure an appropriate opportunity for parliamentary scrutiny in both Houses. She may like to be aware that before being laid in Parliament, any draft regulation that seeks to regulate tobacco packaging would need to be notified to the European Commission and member states. There is a process that goes with that, which would mean that we would not be able to lay regulations instantly after taking a positive decision. I am happy, however, to reiterate the Government’s commitment to make a decision quickly when we receive Sir Cyril Chantler’s independent report. Tabling these amendments is, I hope, evidence of our commitment to act without delay if we decide to go ahead. But the Government, as I am sure she appreciates, must rightly consider the wider issues raised by this policy, and I can assure her that we will do so.

I can understand the intention of the noble Lord, Lord Hunt, in tabling both of his amendments, Amendments 57BA and 61, which seek to compel Ministers to introduce standardised packaging. However, I am sure that he will not be surprised to hear me say that we cannot accept provisions that tie our hands in this way. One of the amendments imposes an arbitrary timetable for government action, and both pre-empt Ministers’ proper and careful decision-making, involving consideration of all the relevant issues. Litigation by the tobacco industry is always a risk when introducing tobacco control legislation. Indeed, the World Health Organisation says that one of the six main forms of tobacco industry interference in public health is the intimidation of Governments with litigation or the threat of litigation. Government must have time and space to give proper consideration to the wider issues raised by standardised packaging of tobacco, and demonstrate that it has done so. Doing so will also reduce the risk of successful litigation. I do appreciate the desire to go faster but we must follow the proper decision-making process to enable us to arrive at the right policy decision. It is right that we should wait for Sir Cyril’s report. Once we do, I say again, we will make a decision quickly.

The noble Lord, Lord Hunt, asked me to put on the record that we will definitely introduce the regulations should the case be made and should we be persuaded of the case that Sir Cyril presents. I hope that I have been clear about that. I will repeat the comments made by my honourable friend the Minister for Public Health when she announced the review:

“The Government will introduce standardised tobacco packaging if, following the review and consideration of the wider issues raised by this policy, we are satisfied that there are sufficient grounds to proceed, including public health benefit”.—[Official Report, 28/11/13; col. WS96.]

I thank the noble Lord, Lord Faulkner, the noble Baroness, Lady Finlay, and my noble friends Lady Tyler and Lord McColl for having made clear their

29 Jan 2014 : Column 1251

intention not to press their amendment on standardised packaging. I hope that the noble Baroness, Lady Hughes, and the noble Lord, Lord Hunt, will do the same with theirs.

I turn to smoking in cars. Since we considered the issue at the previous stage of the Bill, I have met a number of noble Lords who support the idea of legislating to stop smoking in cars with children present. I have also listened very carefully to the debate as it has proceeded this afternoon. One thing is clear from those meetings and the debate—we all want to eradicate smoking in cars carrying children. None of us wants to see children continuing to be exposed to harmful second-hand smoke, whether in the home or the family car. However, although we agree on the destination, I have to acknowledge that there are differing views on the most effective route. As your Lordships will know, the Government believe that encouraging positive and lasting behaviour change by making smokers aware of the significant health risks of second-hand smoke will be more effective than resorting to the use of legislation—which is of course a blunt instrument—to tackle the problem. I believe very clearly that we should consider resorting to the use of legislation only if our work to promote positive changes in behaviour is shown not to have had the desired effect.

When we debated this issue in Grand Committee, a good deal of time was spent considering the practicalities of enforcing an offence of smoking in cars carrying children. I do not propose to rehearse those arguments in detail again today. Nevertheless, I want to encourage your Lordships to reflect on just how difficult it would be to enforce such a provision. My noble friend Lord Cormack referred to this. In my view, there would be substantial challenges in enforcing any such legislation, particularly with respect to vehicles travelling at speed. Currently, local authorities enforce smoke-free legislation, but they do not have the powers or the means to require moving vehicles to pull over. We would need therefore to set up a complex and probably resource-intensive enforcement regime, which would need to involve the police. These remaining questions of how to achieve effective enforcement undermine the credibility of the measures that have been proposed. If it were known that there was little chance of enforcement action, I have to ask whether individuals would comply with the law.

Lord Hunt of Kings Heath: I am most grateful to the noble Earl. Would he accept that my amendment has been drafted in a way that allows your Lordships to vote on the principle but then allows for work to be done, hopefully cross-party, and for the Government to bring in regulations, during which some of these matters could be talked out thoroughly?

Earl Howe: I have noted the way the noble Lord’s amendment has been drafted. However, we need to be very careful before accepting it, for the reasons that I am explaining now. One of the points made about enforcement was that we could make a useful comparison with seat-belt legislation. I understand why that comparison has been made but it needs to be borne in mind that we are not comparing like with like. Seat-belt

29 Jan 2014 : Column 1252

legislation is a road safety measure which is properly enforced by the police; smoking in cars is a public health matter and the police have no public health role or functions. That is part of the reason that the issue is so complex. Before launching into the kind of amendment that the noble Lord, Lord Hunt, invites us to accept, we need to take stock of these questions. There is no point in putting something on the statute book if it is impractical to implement.

Baroness Masham of Ilton: Can I just ask the noble Earl whether the police have a duty in respect of alcohol abuse and violence in the streets?

Earl Howe: My Lords, the police obviously have public order responsibilities, which they can enforce—but not public health responsibilities, which is rather a different issue.

Lord Faulkner of Worcester: With the growing number of jurisdictions now adopting measures of the sort that are proposed in the amendment, will the Minister at least give an assurance that the department will look at the experience in countries where smoking in cars when children are present has been banned and look particularly at the way in which it is being enforced there, and by whom?

6.15 pm

Earl Howe: I am coming in a minute to talk about consultation, which is one of the questions that my noble friend Lord Ribeiro asked, and I hope I can at least utter some words of comfort to the noble Lord, Lord Faulkner, as regards his question.

I will focus for a moment on why the Government prefer to achieve behaviour change without recourse to imposing the law. We believe that our approach is making a distinct impact, both in terms of raising awareness and, more importantly, changing behaviour. There is a very simple point to be made here, which was made by my noble friend Lady Tyler. I cannot believe that any parent would want, knowingly, to expose their child or children to harm. I am convinced that smoking in family cars and the home is much more likely to be due to a simple lack of understanding among smokers about how damaging to health second-hand smoke can be. Our social marketing campaigns remind us that more than 80% of cigarette smoke is invisible. Our campaigns have used the strap-line:

“If you could see what’s really there you wouldn’t smoke”.

That is why we are focusing our efforts on raising awareness of the harm caused and on encouraging smokers to modify their smoking behaviour.

The noble Baroness, Lady Masham, referred to pregnant women and whether we would regulate to protect them. I understand of course how vulnerable the child is when still in the womb, and the noble Baroness rightly raised the issue of how harmful second-hand smoke can be, especially for people with respiratory conditions such as asthma.

Baroness Hughes of Stretford: Does the Minister not agree that the impact of the legislation prohibiting smoking in public places, to protect the public and

29 Jan 2014 : Column 1253

people working in common areas, had a much greater and more immediate impact than all the public awareness work that was done before then?

Earl Howe: I am the first to say that legislation passed by the previous Administration has had a marked and profound effect and has been widely welcomed. However, we are now dealing with something that we know can be influenced by public marketing campaigns. I shall mention how effective those have been in a moment.

With regard to pregnant women, there is a need to encourage everybody to be aware of the risks to health from second-hand smoke. We are achieving high levels of awareness as well as changing attitudes and behaviours. Almost three-quarters of those surveyed said that our campaigns had made them realise that smoking out of an open door or window was not enough to protect children from second-hand smoke. More than a third of those who saw the adverts reported that they had taken action to reduce their children’s exposure to second-hand smoke after seeing them. Those results emerged from the evaluation of last year’s campaign and the campaign that we ran in 2012.

I have to say that I am slightly surprised to hear how strongly the Opposition feel about creating legislation to end smoking in cars, because that is at odds with the position that they took on this issue when in government. The 2010 tobacco control strategy included commitments on smoking in cars that align entirely with my Government’s current approach. That strategy said:

“By increasing the level of awareness of the harms of secondhand smoke, particularly to children, we will encourage people to voluntarily make their homes and private cars completely smokefree”.

That is the stance that the party opposite took when in government and, to pay a little tribute to them, we have followed their lead. Your Lordships will recognise that there is a long way to go. Achieving behaviour change in public health takes time but we are heading in the right direction and the key is maintaining the momentum we are generating.

That is why I am pleased to announce that the Government will run another smoke-free homes and cars campaign this year, as explained in my letter to noble Lords earlier this week. We are finalising the details with colleagues in Public Health England, but our intention is that the campaign will take place in the spring. In addition to a mix of TV and digital advertising, we will work with local and commercial partners to spread the message through their networks. The campaign will be designed to maximise the potential of social media in making our messages clear and accessible to as many people as possible. I hope that that serves to reassure your Lordships that the Government are working hard to make progress in this important area. Our approach is to change smoking behaviour in both the home and family car.

In addition to the campaign activity, we will look at what more we might do to speed up the pace of change. Some local authorities are taking forward excellent work with their local communities to promote not only smoke-free homes and cars but also smoke-free environments such as playgrounds. Working with Public Health England, we will encourage more of this good practice to denormalise smoking, particularly in settings

29 Jan 2014 : Column 1254

where children are present. I have asked Public Health England to look at what more we can do to spread this good practice.

This year’s smoke-free homes and cars campaign will be the Government’s third successive one, as I mentioned. At its conclusion, we will undertake a complete analysis of the progress that we have made through the campaigns. At that point the Government will give careful consideration to whether our action has had a meaningful impact in reducing smoking in cars carrying children. If health Ministers are not satisfied with the progress made, we will give serious consideration to what more can be done. I can tell my noble friend Lord Ribeiro that we will, if need be, conduct a public consultation so that we can understand how others feel about this issue, and to enable us to consider further the practicality and likely effectiveness of other measures to tackle smoking in cars carrying children, including legislative measures. I do not rule out legislation if our current course does not deliver the desired effect.

The Government take this matter extremely seriously, particularly the issue of reducing the uptake of smoking by young people. We have tabled the amendment today on standardised packaging. We intend to make proxy purchasing of tobacco an offence and prohibit the sale of electronic cigarettes to people under 18. If the Government are not satisfied with progress after this year’s smoke-free homes and cars campaign, we will give serious consideration to what more could be done, including a public consultation. I hope that that indicates our seriousness of purpose.

On the amendments that have been tabled by the Opposition I repeat what I said in Grand Committee. If we cannot credibly enforce the law, the law loses credibility. I appreciate the strength of feeling on this matter. I can assure noble Lords that we will continue to work with all interested parties to protect children from second-hand smoke. I hope that in the light of the assurances that I have given that the noble Lord will not press his amendment on that topic.

Amendment 57BA (to Amendment 57B) not moved.

Amendment 57B agreed.

Amendment 57BB

Moved by Lord Hunt of Kings Heath

57BB: Before Clause 80, insert the following new Clause—

“Protection of Children’s health: offence of smoking in a private vehicle

The Secretary of State may bring forward regulations making it an offence for any person who drives a private vehicle to fail to prevent smoking in the vehicle when a child or children are present.”

Lord Hunt of Kings Heath: My Lords, I beg to move.

6.24 pm

Division on Amendment 57BB

Contents 222; Not-Contents 197.

Amendment 57BB agreed.

29 Jan 2014 : Column 1255

Division No.  1

CONTENTS

Aberdare, L.

Adams of Craigielea, B.

Addington, L.

Adebowale, L.

Ahmed, L.

Alli, L.

Alton of Liverpool, L.

Andrews, B.

Armstrong of Hill Top, B.

Avebury, L.

Bach, L.

Bakewell of Hardington Mandeville, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Benjamin, B.

Best, L.

Blackstone, B.

Borrie, L.

Bragg, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Ladyton, L.

Campbell-Savours, L.

Carlile of Berriew, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clement-Jones, L.

Clinton-Davis, L.

Collins of Highbury, L.

Corston, B.

Cotter, L.

Coussins, B.

Craigavon, V.

Crawley, B.

Cunningham of Felling, L.

Davies of Abersoch, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Desai, L.

Donaghy, B.

Drake, B.

Dubs, L.

Eatwell, L.

Elder, L.

Evans of Temple Guiting, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Filkin, L.

Finlay of Llandaff, B.

Foster of Bishop Auckland, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Glasgow, E.

Goldsmith, L.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Grender, B.

Grenfell, L.

Grey-Thompson, B.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haughey, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollins, B.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Hughes of Stretford, B.

Hughes of Woodside, L.

Humphreys, B.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

Jay of Ewelme, L.

Jay of Paddington, B.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Jones, L.

Jordan, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kerr of Kinlochard, L.

Kestenbaum, L.

Kilclooney, L.

King of Bow, B.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkhill, L.

Kirkwood of Kirkhope, L.

Knight of Weymouth, L.

Lea of Crondall, L.

Liddell of Coatdyke, B.

Liddle, L.

Linklater of Butterstone, B.

Lipsey, L.

Lister of Burtersett, B.

McAvoy, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Mandelson, L.

Manzoor, B.

Mar, C.

Martin of Springburn, L.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Monks, L.

Montgomery of Alamein, V.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Morris of Yardley, B.

Myners, L.

29 Jan 2014 : Column 1256

Northbourne, L.

Nye, B.

Oakeshott of Seagrove Bay, L.

Paddick, L.

Patel of Bradford, L.

Pendry, L.

Phillips of Worth Matravers, L.

Pitkeathley, B.

Plant of Highfield, L.

Prosser, B.

Puttnam, L.

Quin, B.

Ramsay of Cartvale, B.

Redesdale, L.

Rendell of Babergh, B.

Richard, L.

Roberts of Llandudno, L.

Robertson of Port Ellen, L.

Rodgers of Quarry Bank, L.

Rogan, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

St Albans, Bp.

Sawyer, L.

Scotland of Asthal, B.

Scott of Foscote, L.

Sharp of Guildford, B.

Sherlock, B.

Shipley, L.

Shutt of Greetland, L.

Simon, V.

Smith of Basildon, B.

Smith of Clifton, L.

Smith of Finsbury, L.

Snape, L.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stone of Blackheath, L.

Strasburger, L.

Taverne, L.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Taylor of Warwick, L.

Temple-Morris, L.

Thomas of Winchester, B.

Thornton, B.

Tomlinson, L.

Tonge, B.

Touhig, L.

Trees, L.

Triesman, L.

Truscott, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Tyler of Enfield, B.

Uddin, B.

Wall of New Barnet, B.

Walmsley, B.

Walton of Detchant, L.

Warner, L.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wilkins, B.

Williams of Baglan, L.

Williams of Crosby, B.

Williams of Elvel, L.

Wills, L.

Winston, L.

Wood of Anfield, L.

Young of Old Scone, B.

NOT CONTENTS

Ahmad of Wimbledon, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Astor of Hever, L.

Attlee, E.

Balfe, L.

Bates, L.

Berridge, B.

Bew, L.

Black of Brentwood, L.

Blencathra, L.

Boothroyd, B.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Bradshaw, L.

Bridgeman, V.

Brougham and Vaux, L.

Browning, B.

Buscombe, B.

Butler-Sloss, B.

Caithness, E.

Carrington of Fulham, L.

Cathcart, E.

Chidgey, L.

Colville of Culross, V.

Colwyn, L.

Condon, L.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Craig of Radley, L.

Crathorne, L.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Dear, L.

Deighton, L.

Denham, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles, V.

Elton, L.

Falkner of Margravine, B.

Faulks, L.

Fink, L.

Flather, B.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Geddes, L.

Glenarthur, L.

Glentoran, L.

Gold, L.

Goldie, B.

Golding, B.

Goodlad, L.

Goschen, V.

Green of Hurstpierpoint, L.

Greenway, L.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Heyhoe Flint, B.

Higgins, L.

29 Jan 2014 : Column 1257

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Home, E.

Hooper, B.

Horam, L.

Howard of Lympne, L.

Howe of Aberavon, L.

Howe, E.

Howell of Guildford, L.

Howie of Troon, L.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Kalms, L.

King of Bridgwater, L.

Kirkham, L.

Knight of Collingtree, B.

Laming, L.

Lane-Fox of Soho, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Leigh of Hurley, L.

Lester of Herne Hill, L.

Lexden, L.

Lindsay, E.

Liverpool, E.

Livingston of Parkhead, L.

Lothian, M.

Luce, L.

Luke, L.

Lyell, L.

Lytton, E.

McColl of Dulwich, L.

McNally, L.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Mancroft, L.

Marlesford, L.

Mayhew of Twysden, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Northbrook, L.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Palmer of Childs Hill, L.

Palmer, L.

Palumbo, L.

Pannick, L.

Patel, L.

Patten, L.

Pearson of Rannoch, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Purvis of Tweed, L.

Ramsbotham, L.

Randerson, B.

Rawlings, B.

Risby, L.

Roper, L.

Rowe-Beddoe, L.

Ryder of Wensum, L.

Sanderson of Bowden, L.

Sandwich, E.

Sassoon, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shrewsbury, E.

Skelmersdale, L.

Skidelsky, L.

Slim, V.

Spicer, L.

Stedman-Scott, B.

Stevens of Kirkwhelpington, L.

Stewartby, L.

Stoddart of Swindon, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Sutherland of Houndwood, L.

Suttie, B.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Thomas of Swynnerton, L.

Trefgarne, L.

Trimble, L.

Tyler, L.

Ullswater, V.

Verjee, L.

Verma, B.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walpole, L.

Warnock, B.

Warsi, B.

Wasserman, L.

Wei, L.

Whitby, L.

Wilcox, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Younger of Leckie, V.

6.37 pm

Amendment 57BC

Moved by Baroness Jones of Whitchurch

57BC: Before Clause 80, insert the following new Clause—

“Welfare of children: housing benefit

(1) The Housing Benefit (Amendment) Regulations 2006 are amended as follows.

29 Jan 2014 : Column 1258

(2) In regulation B13 (determination of maximum rent (social sector)), inserted by regulation 5 of the Housing Benefit (Amendment) Regulations 2012—

(a) in paragraph (5), at beginning insert “Subject to paragraph (5A)”; and

(b) after paragraph (5) insert—

“(5A) The relevant authority shall make a determination that the restriction to one bedroom under paragraph (5) does not apply if it is in the interests of the welfare of a child or the children living in the dwelling to make such a determination.””

Baroness Jones of Whitchurch (Lab): My Lords, the amendment is about the impact of the bedroom tax on children. I refer noble Lords to my housing association interests recorded in the register.

This simple amendment would allow local authorities to put the welfare of the child first when assessing the appropriate occupancy level in a home. Many aspects of the bedroom tax are unfair and unjust, and we have raised them repeatedly in this House. This amendment picks on one simple theme which has quite rightly dominated our consideration of the Bill so far: that the interests and the welfare of the child should always come first. This issue has united us around the Chamber, and I hope that noble Lords will support the continuation of this principle, reflected in this amendment.

We already know that the bedroom tax hits families hard. The chief executive of the National Housing Federation has described the policy as,

“an unfair, ill-planned disaster that is hurting our poorest families”.

It has resulted in an estimated 150,000 families with children being hit so far, forced out of their homes or pushed deeper into poverty and debt. We know from consistent research that children who are forced to move home, away from settled communities and their schooling, suffer health problems and have poorer educational outcomes. Meanwhile, families who stay put suffer an average loss of income of £14 a week, with much higher losses for many, impacting on their ability to feed and clothe their children.

The bedroom tax also has a disproportionate impact on disabled adults and children. Housing association studies have shown that a significant proportion of those affected are either disabled themselves or care for someone who is disabled. Many of them live in homes with adaptations, making it difficult and expensive to move. Others use their spare room for bulky medical equipment or facilities for visiting carers.

There are other adverse welfare implications of the bedroom tax. Recently, there was publicity for the very sad case of the Hollow family, whose 11 year-old son, Caleb, died in a car crash. After a year, the family were told that they had to move to a smaller property, causing added distress to Caleb’s siblings, who were still grieving for their lost brother and who now face the further disruption of a house move or a slide into poverty.

There is also the ongoing issue of the impact on foster carers. When we debated it in Committee, we welcomed the Government’s concession to allow one additional room in their home as long as they had registered as a foster carer or fostered a child within the previous 12 months. However, the reforms still apply to foster carers who have two or three bedrooms for fostered children. Foster carers could be deterred

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from providing foster care for more than one child at a time, so that more children would be more likely to be separated from their siblings. Given that there is already a shortage of foster carers in the UK, these reforms are likely to mean fewer new recruits coming forward and children’s well-being suffering as a result.

The application of these policies has seen local authorities and housing associations being put in an impossible position, trying to minimise the impact of badly designed policies on local people. As we know, there is often a mismatch in accommodation so that there are simply not enough smaller units even if tenants wish to move.

Meanwhile, under this Government, housing completions are at their lowest peacetime level since the 1920s. Local authorities find themselves trapped trying to implement an unworkable policy with little flexibility. Quite often, their only solution for tenants who are unable to downsize is to move them into the private rented sector, with all the additional housing benefit costs and the poorer standards that this entails.

The Government’s main response so far to the increasing number of tales of poverty and distress has been to set up the discretionary fund to support the most vulnerable families. However, alarmingly, the Local Government Association has reported a dramatic increase in the number of people requesting emergency financial help, with 81% of councils experiencing a sharp increase in the number of applications to the discretionary housing payments scheme, most of which are being made to stop people losing their homes. This demand is so great that councils report it is outstripping the money made available by the DWP, forcing them to make cuts to services in other areas. Anyway, these funds are, by their very nature, temporary, require regular reapplications and provide no ongoing stability for the families concerned. The Government have also issued guidance to local authorities on the application of the rules concerning children’s disability but again they have no obligation in law and the Minister will know that children’s charities remain concerned about the provisions and continue to challenge them.

We believe that our amendment gives local authorities the flexibility they need, based on their local knowledge and their local circumstances, to operate the bedroom tax rules to put the welfare and the interests of the child first. We believe that this would be welcomed by all those trying to implement this unwieldy and unjust policy. It would allow them to make an informed judgment of the options available to individual families in their local area to avoid some of the perverse outcomes that arise from the rules and to guarantee that the interests of the child are safeguarded. We believe that this is a simple but important amendment, in keeping with the spirit of the remainder of the Bill, and I urge noble Lords to support it.

Baroness Meacher (CB): My Lords I support Amendment 57BC, tabled by the noble Baroness, Lady Jones of Whitchurch, to which I have added my name. She eloquently set out the case for the amendment and I will not repeat her comprehensive and cogent arguments. I have no doubt that the Government will regard the amendment as too wide-ranging. It provides for a

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determination setting aside the bedroom tax, potentially for a very large number of families. For a considerable number of families a move into new and smaller accommodation will be contrary to the interests and the welfare of the child. At the lower level of harms—if one can call them lower level—a house move may involve the children having to change school at the same time as they move home. Other children will move away from a grandparent or somebody else who looks after them when their parents are working. These sorts of changes could have very serious consequences for very sensitive children—not necessarily just disabled ones. At its most serious, a move may deprive a family of the basic space they need in order to continue managing a severely disabled child, or indeed an adult, in the family and therefore keeping the family intact. I want to focus on this to avoid duplication.

We know that families with a disabled child have been disproportionately disadvantaged by the bedroom tax, although the Government accept and have made changes to ensure that a disabled child should at least have a room of their own. That was certainly progress. The Minister always tells us that the discretionary housing payment is the answer to all possible problems. It will no doubt help many families with a short-term problem, if they are able to move into smaller accommodation—that is a big if—without serious consequences for a child or for the family as a whole, but where there is a short delay before the move can take place. I guess that would work pretty well. I accept that discretionary housing payments can be a helpful safety net for some people in the short term. That is how I think I see it working.

6.45 pm

However, to illustrate a point, let us take the case of Mary Jane—not her real name—who is blind and unable to walk or talk. Mary Jane’s mother has what might be described as a spare room. It is not a spare bedroom and not actually a spare room at all. It is a vital sensory haven for her very severely, multiply disabled daughter. The room contains a ball pool: a plastic space full of balls of different textures and sizes in which her daughter can sit and have a little bit of pleasure in life—not very much but a little. The room is also a storage space for Mary Jane’s wheelchairs and other aids that enable her to be moved round the house because, of course, her mother cannot lift her.

This family cannot reasonably move into smaller accommodation. One can never envisage a time when they could. If they were forced to do so, how long would it be before Mary Jane was being admitted to residential care, at considerable cost to the taxpayer? Instead, this mother has been asked to find an extra £570 bedroom tax per year for her essential space. I emphasise “essential”. We are not talking about a luxury here. That is the point of my remarks. For a small number of families extra space is not a luxury. Yes, Mary Jane’s mother has now been awarded a discretionary housing payment that should cover the shortfall, apparently, for the start of the year. However, what is that to this mother who has the most enormous stresses to start with and now wonders whether she is going to be able to stay in her home with a little bit of

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extra space? She will have to claim these payments—as I understand it but I think the Minister has questioned this—or may have to claim them over and again with no certainty about whether or when she might be turned down. These payments are discretionary and will continue to be so. This is for very good reasons for many families but for these families it is a disaster.

First, does the Minister believe that it is right to cause that degree of uncertainty and inevitable stress for a committed carer who is, in fact, saving the taxpayer very large amounts of money every year? This one claimant already says that she has had to cut back on absolutely everything, including food. Presumably that was before she got this discretionary payment but then she is thinking, “My God, when this comes to an end, what will we do then?”.

Secondly, if the Minister is not willing to amend the bedroom tax and turns away this amendment, has he calculated the costs and benefits of these provisions for families with a disabled child, taking account of the inevitable number of children who will over time be placed in residential care? What will be the balance of costs and benefits? Is there not an argument—rather a strong one I suggest—to do something about this?

Finally, will the Minister agree to take this matter away and come back at Third Reading with a proposal to protect some families at least? I understand that the Government are not very happy about a wide discretion or a dismissal of the bedroom tax but it feels very concerning to leave it as it is. These are three serious questions and I hope the Minister will answer them today.

Lord Storey: My Lords, obviously we should be supporting any family in the situation described by the noble Baronesses, Lady Jones and Lady Meacher. The noble Baroness, Lady Meacher, rightly pointed to the support that can be received from the discretionary housing subsidy. What I do not understand is why, for example, in my local council in Liverpool, last year £337,000 of government discretionary housing payments were left unspent and returned. The sad thing is that, in every year since 2001-02, a large sum of money has been returned.

I do not understand why the Local Government Association is telling the noble Baroness, Lady Jones, that demand is outstripping provision when currently, after six months, Labour councils have spent only 29% of the allowance. In 2012-13, in England as a whole 37% of discretionary housing subsidy was left unspent. Should we not encourage those councils to use that money to do the same things that both noble Baronesses have suggested? If there is money available, it must be used for that. It is a disgrace, when children are in difficult situations—whether they need support because of physical handicap or whether they are in appalling conditions and need that support—to leave 37% of that money unspent across the whole of England.

Baroness Lister of Burtersett (Lab): My Lords, as of August 2013, there were more than 235,000 children—nearly a quarter of a million children—living in households whose benefits have been cut because of the bedroom tax. We do not know how many children have had to move, disrupting their schooling—a point

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that has already been made—their friendships and the social networks which enable their parents to get by with childcare and other things. When I asked the Minister earlier today about the implications of this for the Government’s child poverty strategy, I did not get a direct answer. Inevitably, these families are being pushed further into poverty; there are no two ways about it.

There have been a number of reports in newspapers about the struggles that many families face trying to get by. I will not read all of them but simply read from the initial comments from the UN special rapporteur on adequate housing, who put the case very well. She said:

“The right to housing is not about a roof anywhere, at any cost, without any social ties. It is not about reshuffling people according to a snapshot of the number of bedrooms at a given night. It is about enabling environments for people to maintain their family and community bonds, their local schools, work places and health services allowing them to exercise all other rights, like education, work, food or health”.

She continued:

“Of the many testimonies I have heard, let me say that I have been deeply touched by persons with physical and mental disabilities who have felt targeted instead of protected; of the grandmothers who are carers of their children and grandchildren but are now feeling they are forced to move away from their life-long homes due to a spare bedroom or to run the risk of facing arrears; of the single parents who will not have space for their children when they come to visit; of the many people who are increasingly having to choose between food and paying the penalty. Those who are impacted by this policy were not necessarily the most vulnerable a few months ago, but they were on the margins, facing fragility and housing stress, with little extra income to respond to this situation and already barely coping with their expenses”.

The amendment will not solve the problem, but it will go some way to alleviate the problems that those families face. Families are really struggling as a result of this measure, and I hope that we can support the amendment to do something for some of those very vulnerable children.

Lord Martin of Springburn (CB): My Lords, briefly, I agree with everything that has been said. There is often criticism in my native city of Glasgow that the housing estates are too big, but those of us who know those housing estates know that there are excellent communities within them. In fact, those of us who have lived in big cities think of them not as a big city but as a collection of villages and communities. Many of the housing estates that I know of and are excellent were built just after the war, when the soldiers came home from the forces. The families were regarded as big. I came from a family of five living in a tenement, and in those days that was a small family—there were families of eight or nine.

Noble Lords are right to say that there can be a big impact on children if they have to move away from the communities that they enjoy. Most of us have happy memories of the childhood communities we lived in and the support of the extended families who were there. We could end up taking young children out of their school, as has already been stated, and away from their community facilities into a strange area.

I go back to where I was raised in the city of Glasgow. If a family is in an underoccupied house, that can mean that the house has a garden and a back and front door, which is regarded as significant for a

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family. To go to the proper size of house that the Government suggest could mean that they are forced to take a tenement flat. It has a big impact on a young person to go from a house with a garden to a tenement flat.

When I have spoken to the Minister, he has been very courteous to me and told me that he will give me a reply on this matter, but he has always mentioned the waiting lists and how long they are. The implication is that, if you have a long waiting list, you will fill the vacant accommodation. That is not necessarily the case. Anyone who has been a constituency MP or a councillor will know that people will come to you to say, “I’ve been on the waiting list for 10 or 12 years”, but when you say, “I can get you a house tomorrow”, they say, “Oh, but I’m not taking a house in this area or that area; I want this particular area”. Those who are on the waiting list exercise a great element of choice.

I personally have no housing problem either in London or in Glasgow, but I dare say that, legally, there would be nothing to stop me going to the local housing association in Westminster and saying, “I want to put my name on the waiting list”. By the same token, I could do that in Glasgow. Being on a waiting list does not mean that the person on the list is in need. I do not think that the waiting list is necessarily the best measure to use when saying that we can solve the problems caused by people being forced out of their so-called underoccupied houses.

Baroness Hollis of Heigham (Lab): My Lords, briefly, I think that the Minister has a choice when he responds to the amendment, which was so effectively moved by my noble friend. He can say either that children of a certain group—disabled children, children in poverty or whatever—are exempt from the application of the bedroom tax to the tenancy, or he can say, on the contrary, we will leave it to local authorities to exercise their discretion, so that the response you get is a lottery based on where you live, and you have all the problems associated with what is effectively means testing.

The advantage of the first path is that you can perfectly easily have ways of ensuring that certain families with children do not come into the category of the bedroom tax as such. You could say that children on disability living allowance, for example, would simply be exempt, but discretionary housing payments apply to other people, which may include disabled people and so on. If that is the way which the Minister wishes to go, that would be the clean and clear way to do it.

7 pm

If the alternative is to rely on discretionary housing payments, as the Minister keeps doing, then two or three things follow from that. First, that depends on the initiative of the family to go in for, effectively, a local means-testing regime. What we know at the moment, and the Minister will know this as well as anybody in this House, is that what happens with a means-testing regime is that more than a third of pensioners, for example, who are eligible for means-tested

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benefits do not apply and therefore do not get them. We know that many families who are entitled to council tax benefit—again, it is something like 40%—do not apply and do not get it. He is dependent on the ability of that family to touch resources to which that family may have no access. That money therefore does not get drawn upon and, as a result, that family goes short and hungry.

Secondly, if you are relying effectively on the means-testing principle, you are relying on the insecurity of the local authority. I can tell the Minister why that money is not being spent. Something like 18 or so months ago, my own local authority, Norwich, ran out of its discretionary housing payment money by November. The Minister is very fond of quoting at me on the Floor of this Chamber—he has now done so twice—what has happened in Norwich. After November, other families in distress who needed the support could not access any more money because it had gone.

As a result, local authorities across the country are trying to calibrate need, knowing that demand fluctuates in the course of the year, particularly after Christmas when the energy bills go up and the debts begin to fall in. That is why so many local authorities are being extremely cautious and careful about how they spend that discretionary money. It is not that they wish to withhold it, but they are terrified of being in a situation where so many of them have been in the past.

I know that the Minister has fought for additional moneys. Every time that he fights for additional moneys, at the end of the day it will not make a penny of savings on this whole damned policy. It is a lousy policy. By the time he has got to £180 million, taking into account arrears, voids, administrative costs, eviction costs and the costs of those who go into the private rented sector, which increases their HB, he will find that there will be no savings left but he will have put hundreds of thousands of families—two-thirds of them disabled and about a third to a quarter of them with children—through the stress and insecurity which the noble Lord, Lord Martin, has just described to us from the Cross Benches.

The Minister has a choice. He can either go back and change the housing benefit regulations following this amendment, so that children are taken out of their application, or he can rely on his principle of means testing, knowing that it has failed repeatedly. We have a Pensions Bill at the moment which is taking means testing out of the system because we know of its inadequacy. The Minister is now importing that back into the relief of children in poverty, which he does not need to do. I hope very much that he will listen today to the powerful speeches made on behalf of children because his policy is a cul-de-sac. It is a dead end and the sooner that it is abandoned, frankly, the better.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con): My Lords, as one would expect, this has been an interesting debate with some impassioned and important contributions, which I welcome. Let me start by reminding the House of the fiscal environment that led to this measure’s introduction. In the final year of the previous Government, borrowing had risen to £150 billion. In

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cash terms, over the previous 10 years, expenditure on housing benefit had nearly doubled to £24 billion. Left unreformed, annual expenditure on housing benefit would have exceeded £26 billion per year by the end of this Parliament. Nearly four years on, the range of economic indicators are showing that our policies are working and have led to the number of workless households, the number of lone-parent workless households and the number of children in workless households all being the lowest since comparable records began in 1996.

I will not spend a huge amount of time responding to the policy issues raised because we have already spent a lot of time in this House dealing with the policy as a whole. I want to deal with the issues raised by the nature and form of this particular amendment.

The Housing Benefit (Amendment) Regulations 2006 are secondary legislation, which contain detailed provisions that set out how local authorities should administer housing benefit. It is very unusual to seek to amend secondary legislation through primary legislation in this way. The amendment itself is imprecise and ambiguous, unlike the rest of Regulation B13. For example, under proposed new paragraph (5A) it is unclear what “restriction to one bedroom” or the concept of,

“in the interests of the welfare of a child”,

means in this context. Because of this, the amendment may have unintended consequences that go far beyond those desired by the noble Baroness.

The effect of the amendment is potentially to allow local authorities to determine that the removal of the spare room subsidy does not apply where the household contains children, as it is not in the interests of their welfare. So this amendment is likely to add around £160 million a year to the housing benefit bill, reducing the savings from the policy to around £330 million a year. It would extend only to the social sector and so reintroduce the inequity in treatment between housing benefit claimants that we have sought to remove with the implementation of this change. Applying the spirit of the amendment to the local housing allowance to re-establish fairness is likely to more than double the cost of making this amendment to around £460 million a year. This amendment does not deliver the intended outcome. If accepted, we do not intend to amend it and it will be sent to the other place in its current defective state.

It may be helpful if I remind noble Lords that we have already taken account of the interests and welfare of children in developing this policy. In March, we amended the regulations to allow an additional bedroom for foster and kinship carers. We have also made £5 million of discretionary housing payment funding available specifically for foster carers who require further additional rooms to allow them to foster two or more children, including groups of siblings. The discretionary housing payment data for the first six months indicate that foster carers are applying for and receiving payments, as intended. In March, we also issued guidance to local authorities indicating that they should allow an additional bedroom for disabled children who would ordinarily be expected to share a room but are unable to do so because of their disability. This was put into a

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regulatory framework in October. We have provided £180 million of discretionary housing payment funding for this year, and £165 million for next year, to enable local authorities to support the most vulnerable families affected by the reforms. This funding is already meeting the need that the noble Baroness seeks to address through this amendment.

Perhaps I might pick up on two of the vital points raised by the noble Baroness, Lady Meacher, on the costs and benefits for children who go into residential care as a result of the removal of the spare room subsidy. We have not looked at this specifically. The independent evaluation of the policy will look at the effects on families. We are not currently aware of any evidence to support the assumption that this would be an outcome of the policy.

Picking up the example that the noble Baroness raised about Mary Jane and focusing on the uncertainty that that family had with that poor girl, I am aware that some local authorities, following the introduction of the policy, have understandably taken a very cautious approach to awarding discretionary housing payments, as they assess the level of need in their area. I have instructed my officials to amend the guidance to local authorities to encourage them to make longer-term awards where the circumstances are unlikely to change. The revised guidance is being prepared and will be shared with the local authority associations in draft before being issued for the start of the financial year.

At this stage, we have not seen anything to suggest that this policy is having a detrimental impact on the welfare of children living in affected households. We are closely monitoring the effects of the policy and have commissioned an independent two-year evaluation which—among other things—will look at the effects on families. The interim findings are due to be published in spring this year.

I hope I have been clear. I have already reflected on the noble Baronesses’ amendment. I cannot undertake to reflect further between now and Third Reading. If the noble Baroness wishes to test the opinion of the House, she should do so now.

Baroness Jones of Whitchurch: My Lords, I very much thank all noble Lords who have spoken. I also thank the Minister. I welcome him to this Bill for, I think, the first time. Some of us are long veterans of this Bill. We have been debating it since last June. Our focus has, perhaps, been very different from the values and priorities that the Minister has been enunciating this evening. We have been very much focused on the child welfare issues and have seen those as a priority in the progress of the Bill. We have reached quite a lot of cross-party and cross-Chamber consensus on all of that.

Once again the Minister put great emphasis on the discretionary housing payment scheme. The fact is, in ways that were never foreseen when the original bedroom tax was introduced, it has already had to be increased and increased. This very much demonstrates that the policy, as originally planned and thought out, was not working and is still not working. It is making the evaluation of the costs very difficult. Indeed, the savings that were originally envisaged are now not being met. The whole policy is being turned on its head.

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In all the calculations that I have heard the Minister cite, he does not take into account some of the extra costs. Noble Lords around the Chamber have given us examples, including the whole issue of managing evictions, debt, arrears, the extra costs to local authorities of going back to people to try to collect those debts and arrears, and the more ill defined, but nevertheless very much present, extra social problems that arise from some of these issues.

I am very pleased to hear that there will be an evaluation but, in the mean time, we are trying to deal with some of the problems that exist now. I say to the noble Lord, Lord Storey, who said that some of the discretionary fund was not always being used, that, for that very reason, the discretionary fund is not always the answer to those families. It is quite traumatic to go through that means-testing process. There is also an administrative on-cost for the local authorities that are trying to administer it. This is a murky area. It is not surprising that money in and money out are not always working effectively with the administration of that scheme.

Meanwhile, we have to respect the fact that the Tory-led Local Government Association is saying that there is a problem here and that other budgets are having to be raided to cope with the surge of applications. It is not me who is saying that; it is the Local Government Association. The chair of the Local Government Association’s finance panel says:

“This will have a significant impact on local government budgets, which are already stretched to breaking point by the deepest cuts in the public sector”.

Again, those are not my words; they come from the chair of the LGA finance committee.

7.15 pm

However, this is not about the funds. It is about child welfare and about localism—a word that this Government do not seem to use very much any more. It is also about trust. Our amendment would trust local authorities to manage their housing stock and the vulnerable families within them most effectively. The noble Lord, Lord Martin, began to illustrate that. The housing stock and the experience of people living in Glasgow are very different from that of people living in the Welsh valleys, London and other urban areas. It is very difficult for local authorities to operate a blanket scheme when the housing stock, the availability of alternative stock and so on are so different. We are trying to build in extra flexibility to enable local authorities to respond to the real needs of the families and children in their locality.

At the moment, those local authorities are trying to manage the sometimes perverse impact of that national policy on their local families. For example, they have to move families whose homes have been adapted to smaller homes, which in turn will need to be adapted all over again; or push families into the more expensive private rented sector as those smaller properties are not available, leaving behind sometimes larger properties that nobody wants to live in, which then remain empty. These are perverse events that were not foreseen but are now happening on the ground.

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Ultimately, it comes back to what is in the best interests of the child. I know, from my experience as a trustee of Shelter for many years, that enforced moves and disruption can have a devastating effect on children’s health and their schooling, particularly if they are suffering from other complex problems. We have talked a little about disability, but it is not just about disability. There can be complex family problems, personal problems, things to do with special educational needs and services that they need in the locality. We have debated these on other occasions. There could be all sorts of other local services that they rely on to get by. We are in danger of cutting off those people with those problems by expecting them to move unnecessarily.

We have united across the House throughout the Bill on the need to put children’s welfare first. This is a very simple amendment that follows that logic through. It would enable local authorities to ensure that they too abide by that principle in implementing the rules of the bedroom tax. If the Minister did not like our drafting, it was open to him to come back with an alternative, but he has made it clear that he is not prepared to do so. On that basis, I have not been convinced by the Minister on this issue. I therefore wish to test the opinion of the House on this amendment.

7.18 pm

Division on Amendment 57BC

Contents 154; Not-Contents 185.

Amendment 57BC disagreed.

Division No.  2

CONTENTS

Adams of Craigielea, B.

Adonis, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Blackstone, B.

Borrie, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Ladyton, L.

Butler-Sloss, B.

Campbell-Savours, L.

Clancarty, E.

Clark of Windermere, L.

Clinton-Davis, L.

Collins of Highbury, L.

Corston, B.

Coussins, B.

Crawley, B.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Desai, L.

Donaghy, B.

Drake, B.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Filkin, L.

Finlay of Llandaff, B.

Foster of Bishop Auckland, L.

Freyberg, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Golding, B.

Goldsmith, L.

Gordon of Strathblane, L.

Goudie, B.

Grantchester, L.

Grenfell, L.

Grey-Thompson, B.

Grocott, L.

Hanworth, V.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

Jones of Moulsecoomb, B.

29 Jan 2014 : Column 1269

Jones of Whitchurch, B.

Jones, L.

Jordan, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

King of Bow, B.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkhill, L.

Knight of Weymouth, L.

Lane-Fox of Soho, B.

Lea of Crondall, L.

Liddell of Coatdyke, B.

Liddle, L.

Lister of Burtersett, B.

McAvoy, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Mar, C.

Martin of Springburn, L.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Monks, L.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Morris of Yardley, B.

Nye, B.

O'Neill of Clackmannan, L.

Palmer, L.

Pannick, L.

Patel of Bradford, L.

Pitkeathley, B.

Prosser, B.

Puttnam, L.

Quin, B.

Ramsay of Cartvale, B.

Ramsbotham, L.

Rendell of Babergh, B.

Robertson of Port Ellen, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sandwich, E.

Sawyer, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stone of Blackheath, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tonge, B.

Touhig, L.

Tunnicliffe, L. [Teller]

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Walton of Detchant, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wilkins, B.

Wills, L.

Worthington, B.

Young of Old Scone, B.

NOT CONTENTS

Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Bakewell of Hardington Mandeville, B.

Bates, L.

Berridge, B.

Bew, L.

Black of Brentwood, L.

Blencathra, L.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Bridgeman, V.

Brinton, B.

Brougham and Vaux, L.

Brown of Eaton-under-Heywood, L.

Buscombe, B.

Caithness, E.

Carlile of Berriew, L.

Carrington of Fulham, L.

Chidgey, L.

Clement-Jones, L.

Colville of Culross, V.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Craigavon, V.

Crathorne, L.

Crickhowell, L.

De Mauley, L.

Deighton, L.

Denham, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Eaton, B.

Eccles, V.

Elton, L.

Faulks, L.

Fink, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

German, L.

Glenarthur, L.

Glentoran, L.

Gold, L.

Goldie, B.

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Goodlad, L.

Goschen, V.

Green of Hurstpierpoint, L.

Greenway, L.

Griffiths of Fforestfach, L.

Hamwee, B.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Home, E.

Horam, L.

Howard of Lympne, L.

Howe of Aberavon, L.

Howe, E.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Kalms, L.

Kilclooney, L.

King of Bridgwater, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Leigh of Hurley, L.

Lester of Herne Hill, L.

Lexden, L.

Lindsay, E.

Liverpool, E.

Lothian, M.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Mancroft, L.

Manzoor, B.

Mayhew of Twysden, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Northbrook, L.

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Paddick, L.

Palmer of Childs Hill, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Ribeiro, L.

Risby, L.

Roberts of Llandudno, L.

Rogan, L.

Roper, L.

Sanderson of Bowden, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Stephen, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strasburger, L.

Suttie, B.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Thomas of Gresford, L.

Trefgarne, L.

Trimble, L.

Tyler of Enfield, B.

Tyler, L.

Ullswater, V.

Verma, B.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Wei, L.

Whitby, L.

Wilcox, B.

Williams of Crosby, B.

Williams of Trafford, B.

Younger of Leckie, V.

7.29 pm

Consideration on Report adjourned until not before 8.29 pm.

Criminal Legal Aid (General) (Amendment) Regulations 2013

7.29 pm

Relevant Document: 7th Report from the Joint Committee on Human Rights.

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Motion to Regret

Moved by Lord Pannick

That this House regrets that the Criminal Legal Aid (General) (Amendment) Regulations 2013 restrict the availability of legal aid, advice and assistance in prison law cases (SI 2013/2790).

Lord Pannick (CB): My Lords, another week, another set of legal aid regulations to regret. These regulations will severely limit the availability of legal aid advice and assistance in prison law. I shall mention four examples of issues for which legal aid advice and assistance will no longer be available by reason of these regulations. The first is Parole Board proceedings for indeterminate sentence prisoners—ISPs—where the Secretary of State refers the case before the expiry of the minimum term for advice on a move for the prisoner to open conditions, and also where an ISP is removed from open conditions and the Minister seeks advice from the Parole Board on a return to an open prison. This will no longer be covered. The Parole Board itself said in its written evidence to an inquiry on this subject by the Joint Committee on Human Rights that because most prisoners require a period in open conditions before the Parole Board can be satisfied that they are safe to release:

“There is in consequence, a great deal at stake for prisoners at these reviews”.

The need for high standards to be applied at such hearings, in the interests of the prisoner and in the public interest, is obvious, and because of the impossibility of prisoners representing themselves effectively at such hearings and problems such as how to manage a prisoner cross-examining a professional witness giving evidence about the prisoner’s conduct in prison, the Parole Board told the Joint Committee in its written evidence that it believed the proposal to remove legal aid,

“is very likely to impede our attempts to deal with cases fairly, promptly and effectively”.

It is very surprising that the Secretary of State should have proceeded with the changes despite the concerns expressed by the Parole Board.

The second example of decisions which will be excluded from legal aid is decisions to place or keep a prisoner in Category A—that is, prisoners assessed to be a high security risk—which of course affects prison conditions. A third excluded category is the allocation of places in mother and baby units. Vulnerable women will be denied access to legal advice on whether they should be separated from their babies. A fourth example is decisions on removal from association—that is, segregation decisions. One could give many more examples.

What are the justifications offered by the Secretary of State for denying legal advice and assistance in such important matters, even if all other eligibility criteria are satisfied? The main answer given by Mr Grayling, the Secretary of State for Justice, in his oral evidence to the House of Commons Justice Select Committee on 3 July 2013 is that the difference between him and his critics was “ideological”—his word. Indeed, he used that word three times in as many minutes in

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response to questions on this matter. The report of the evidence is published as HC 91. Mr Grayling told the Justice Committee:

“I do not believe that prisoners in jail should have the right to access legal aid to debate which prison they are put in”.

He went on to say that they should not have the right to legal aid to raise other questions about their treatment, with limited exceptions.

This is to reverse 35 years of progress in the approach adopted by the legal system to the treatment of prisoners. The modern era of prison law began in 1978 when the Court of Appeal required fair disciplinary proceedings for those alleged to be involved in the Hull prison riots. Since that decision, our courts have repeatedly made it clear that administrative decisions in prison must comply with basic standards of legality, procedural fairness and rationality.

The application of legal standards to decision-making within prisons has immeasurably improved the quality of those decisions and ensured greater transparency and accountability. No one, with the possible exception of the Secretary of State for Justice, could doubt the public benefits in enabling prisoners to hold prison authorities to basic standards of legality and fairness or the indispensable contribution which has been made in this respect by legal aid. That a Secretary of State, and indeed a Secretary of State for Justice, should now, for so-called ideological reasons, wish to reverse such developments is very much a matter for regret.

Mr Grayling’s second point is that legal aid is not needed because the internal prison complaints system and the Prisons and Probation Ombudsman will provide redress where appropriate. Without legal assistance a prisoner is simply not going to be able to make his or her points effectively and speedily by reference to the applicable legal requirements. Unhappily, many prisoners lack basic skills of literacy or suffer from other problems which impede their ability to present an effective grievance. Her Majesty’s Chief Inspector of Prisons, Mr Nick Hardwick CBE, echoed these concerns in his evidence to the Joint Committee on Human Rights, as recorded in paragraph 174 of the Committee’s seventh report.

As the Law Society has pointed out in its helpful briefing on this Motion, at present many complaints are simply, effectively and speedily resolved by a solicitor’s letter setting out the legal position to the person taking the decision. The Prisons and Probation Ombudsman can only make recommendations and provides a much slower method of seeking redress than a solicitor’s letter. The ombudsman, Mr Nigel Newcomen CBE, told the Joint Committee on Human Rights that he was concerned about the Government’s proposals, in particular because his office was unable to cope with the expected increase in workload.

These regulations will not even save public money. The cost of maintaining legal aid in ISP cases before the Parole Board, for example, is minimal, and the cost of ISPs remaining unjustifiably in closed conditions when they could safely be allowed to move to open conditions is high. The Howard League for Penal Reform has pointed out that the Ministry of Justice has put the cost of dealing with each complaint to the

29 Jan 2014 : Column 1273

ombudsman at £830, which is more than three times the £220 fixed fee for a solicitor doing this work under the legal aid arrangements.

In the Supreme Court last April, in the case of Osborn v the Parole Board, reported in volume 3 of the 2013 Weekly Law Reports page 1020, paragraph 72, Lord Reed stated for the court that,

“procedures which involve an immediate cost but contribute to better decision-making are in reality less costly than they may appear”.

I suggest that the Minister conveys the suggestion to the Secretary of State for Justice that the words of wisdom of Lord Reed should be displayed on Mr Grayling’s desk in very large letters.

These regulations will do enormous damage to the rule of law in prisons and there is no justification for them. I beg to move.

Baroness Kennedy of The Shaws (Lab): My Lords, I echo everything that has been said by the noble Lord, Lord Pannick. I, too, regret that the Government are taking this course and regret profoundly what was said by the Secretary of State for Justice, Mr Grayling, in describing the differences between those who supported the maintenance of legal aid and those who were agin it. It is as though it is not enough to go to prison and lose your liberty, and experience the deprivations that we know imprisonment means, so we are looking for other ways to punish.

I will speak specifically about women. As we in this House all know, women in prison are very largely those who have experienced abuse or domestic violence. They are often in prison because of serious social problems, they have mental health problems, and often have problems of addiction. The panoply of problems that they have do not make them people who will be well able to represent themselves in trying to get their rights in prison.

I will mention the issue of mother and baby units. In the past I have been involved in such cases, where a woman seeks to prepare for an application to have her baby remain with her, and has to secure supportive evidence, expert reports, and so on. It is impossible for a woman to do that without the help of a solicitor. Representations have to be made in relation to any refusal to offer a woman a place in a mother and baby unit, and I can assure noble Lords that that is sometimes done—and not done—for the best of reasons.

Women sometimes make applications for temporary release when something disastrous is happening at home with other children; they seek a temporary licence so that they can spend time at home. Many female prisoners are their children’s primary carer. We know that 55% of women in prison have a child under 16 and wish to make use of that release on temporary licence when they have emergencies at home. I know from experience that the application of the release on temporary licence policy is frequently misapplied by prisons, and women who are eligible are incorrectly refused. Legal help is vital to them for making their application, making representations, drawing on supportive evidence, and so on, but it is no longer available.

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Disabled prisoners often have real problems about the suitability of their accommodation or other services they need, and need legal help to acquire them. Mentally ill prisoners do not get legal help to deal with many of the attendant matters that go along with convincing the authorities of the seriousness of their problems, whether that is on the depressive scale or as regards behaviours that clearly show disturbance, but which often bring them into dispute with the authorities in the prison. There are often arguments about the capacity of such women. They present with difficult and challenging behaviour which is often met with a strong disciplinary response from the prison so that they are awarded extra days as punishments, when in fact mental health is the problem. As extended prisoners, women often have the date of release set further and further away because of their behaviour, but that behaviour is due to their mental ill health.

In those sorts of cases you need to have the representation of someone who is legally qualified to help take the appropriate course and find the appropriate expertise to support applications. The Government’s response is that prisoners should use the internal complaints procedures—the noble Lord, Lord Pannick, described the inadequacy of that. The process of appealing to the ombudsman is often slow and does not give the remedy that is sought. Add to all that the poor educational attainment of most women in prison and the situation is hopeless.

Before this debate a Member of this House said to me, “Are you speaking in the legal aid debate?”, to which I replied, “Yes”. He said, “You know it’s hopeless”. My response to that was that it may be hopeless, but I hope that by having this debate some members of the Government will feel shame. I am speaking of the most vulnerable today. I hope that a feeling of shame will enter into discussions among the Government and between the coalition partners about the impact of this on the lives of some of the most fragile people in our society.

7.45 pm

Lord Lester of Herne Hill (LD): My Lords, like the noble Baroness, Lady Kennedy of The Shaws, I am a member of the Joint Committee on Human Rights, and both of us took part in the evidence session with the right honourable Lord Chancellor and Secretary of State for Justice. That was just at the moment when the noble Lord, Lord Faulks, who has the misfortune to have to reply to this debate, was no longer able to be with us because he had been told that he was about to become a Minister. Therefore tonight we will have an excellent example of the poacher who has now turned gamekeeper, as it were, for Her Majesty’s Government. I will make one point that I put to Mr Grayling, which I do not think he answered in a very satisfactory way.

If the Government stick to their regulations, as they will, the consequence will be that more cases will go to Strasbourg for want of effective domestic remedies in this country. That is not something we should want; it is much better that effective remedies are provided in this country. Why do I say that? I have the cases of Sidney Golder and Reuben Silver in mind. Sidney Golder, many years ago, was a prisoner who thought

29 Jan 2014 : Column 1275

that he had been defamed by a member of the Prison Service, and he wanted to go to a solicitor to see whether he could sue for libel. The Home Office said, “Sorry—you can’t go to a solicitor while you’re a prisoner”, so Mr Golder had to go to Strasbourg. The Strasbourg court said, years and years ago, “There must be an effective domestic remedy. Access to justice is a fundamental right, and prisoners are entitled to that right”. Therefore Golder led to reform of the prison rules, or was meant to do so. I was working in the Home Office with Roy Jenkins on the subject, and I am sorry to say that Home Office officials did not do as they were instructed, so that led to the case of Mr Silver.

Reuben Silver was an Orthodox Jew, and he wanted to know whether the food he was receiving in prison was kosher. He wrote a letter to the editor of the Jewish Chronicle marked “not for publication”. It was stopped on the ground that you must not write to the press. He also wrote to the Chief Rabbi, but was prevented from sending that letter on the ground that he had not known the Chief Rabbi before he became a prisoner, under the rule that said that you had to know the person beforehand. Therefore Mr Silver was one of my seven prisoner clients who went to the Strasbourg court complaining of the absence of a domestic remedy. The Strasbourg court had no difficulty in finding that the prison ombudsman could not provide and had not provided an effective remedy, and the same would be true today.

Those cases are not just routine internal disciplinary matters. I lost another case called Boyle and Rice in which they complained about being moved from one place to another and not having artwork, and so on. That is the kind of case which Mr Grayling is perfectly right to say should be dealt with by the ombudsman system. However, there are other, grosser, cases where that is not so. When I put this to Mr Grayling in evidence his reply was, “Well, I’m sure that in that sort of case you can find barristers who do no-win, no-fee cases”. That is no answer; for a prisoner to have to find such a barrister and to negotiate with the clerk and all the rest of it is patently absurd. One overwhelming reason to regret what has happened is that it will lead inevitably to more cases going to Strasbourg, which is not in the interests of anybody.

Lord Hope of Craighead (CB): My Lords, I suppose that one should be grateful for small mercies and welcome what is provided for in Regulation 4(2) and (3): advice and assistance for issues relating to the release by the Secretary of State or for consideration for release by the Parole Board, and for proceedings that involve the determination of a criminal charge. However, they are very small mercies: these provisions were, of course, unavoidable. They are essential to protect against the risk of challenge by prisoners whose basic rights under Articles 5 and 6 of the convention were being infringed.

The point is this: there are very real grounds for concern as to what is being left out, a list of which is set out in paragraph 7.6 of the Explanatory Memorandum. For reasons of time, I will not go over the details, but one is bound to ask how robust the

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system of complaints is on which there is so much emphasis and to draw attention—as the noble Lord, Lord Pannick, has done—to the effect of the absence of legal advice, which always focuses the issue more directly and saves money by directing attention to where the problem really lies.

The other major gap is that to which the noble Baroness, Lady Kennedy, has drawn attention; namely, the position of the vulnerable, of whom there are so many, both male and female, in prisons and in young offender institutions too—for example, those with language or learning difficulties. I am struck by one of the provisions in paragraph 9.2 of the Explanatory Memorandum, which tells us that a note has been issued for distribution to prisoners to explain the changes to the system—but what provision is being made for those who cannot read or who do not speak English? Can we really be confident that steps are being taken to deal with their needs and give them the advice they need?

At the heart of this is something else, which, I suggest, is profoundly worrying: the increasing tendency to treat prisoners as some kind of an underclass. They are to be regarded as having surrendered their right, when they go into custody, to be treated like everyone else, except to the extent necessary to serve their sentence. We are all familiar with the debate about prisoner voting; but the effect of denying them the vote is really quite trivial when compared with what these changes will mean for many who are in a position that puts them at such an obvious disadvantage when compared with everyone else, having been locked up by the state.

Paragraph 7.4 of the memorandum states that the amendments aim to target limited public resources at the cases that really justify it. So far so good; but then there are the words,

“to ensure that the public can have confidence in the scheme”.

Those really are weasel words. What is the basis for that claim? Who are the public? What do they know about the effect of all these provisions on prison law? What about the prisoners, their wives, parents or children? What about the many organisations and individuals who really do care about the mistreatment of prisoners or their rehabilitation?

Some years ago Justice Breyer of the US Supreme Court observed in a lecture in London that it is not the job of judges to be popular. That is why we have judges who are not elected. If you want to be popular, you have to win votes: you must appeal to the majority. Of course, one way of doing that is to devalue the rights of the minority. When it comes to the use of resources, there is a temptation: they can be diminished or left to one side because the majority can be relied upon not to care about them and not to object. That is all about winning the confidence of the majority, which is what this sentence really refers to. It is not difficult to imagine what, in the wrong hands, this may eventually lead to. The line of thinking, therefore—the political philosophy that seems to underlie these proposals—is perhaps even more worrying than all the details which, in themselves, are so troubling.

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I join others in expressing my thanks to the noble Lord, Lord Pannick, for bringing this Motion before the House.

Baroness Butler-Sloss (CB): My Lords, I, too, regret very much these legal aid regulations in relation to prisons. The amount concerned is apparently about £4 million. The cost of each lawyer to give advice or representation is a fixed fee of £220. As the noble Lord, Lord Pannick—who, in my view, has done the House a great favour by bringing this issue before noble Lords—has already said, that is achieved very often by a letter that resolves the problem.

I received a very interesting and useful e-mail from a committee member of the Young Legal Aid Lawyers, which is a group of students, lawyers and barristers committed to practising areas of law traditionally funded by legal aid, which includes prison law. They raised three points that I want to make to the House, which identify three vulnerable groups. They have been referred to already, so I hope that the House will forgive me for referring to them again.

One group of young people—they are children—have advocates from Barnardo’s, which is a step forward. As far as I know, however, they are not lawyers and do not provide that specialised help which, for instance, is needed in the resettlement of young people who come out of secure accommodation or youth prison. Those young lawyers are of course experts in dealing with these problems.

The second group is mothers and babies. The issue of mothers and babies has been raised already, but let me take a different point. As a former family judge, it is the baby that I worry about. There is no one to speak for the baby; he or she is removed from the mother, with all the emotional harm that is done to a baby in those circumstances, even if that mother and baby are reunited at a later stage. In that instance, a lawyer can help to organise it so that the mother and baby remain together.

The third group that has already been referred to is that of vulnerable adults. I will make two points. First, in our prisons there is a very high percentage of people with mental health problems. Some have single mental health problems; many have multiple problems. There is also no shortage of people without education and with learning disabilities. How on earth are they to cope with putting forward whatever is the issue that needs to be put forward if they do not have someone to help them? I doubt very much whether the internal arrangements or even the ombudsman will meet the specialised help which, for a very minor cost to the public, these lawyers can give. If, as the noble Lord, Lord Pannick, suggests, it is ideological, the money does not matter; but I suspect that for the rest of the Government money matters very much. It is not very much money and it saves a great deal. Therefore I urge not just the Lord Chancellor and the Secretary of State for Justice, but the Government generally, to rethink the balance of saving money and the damage caused by taking away this facility and the lack of appropriate legal advice and representation that to me, as a former judge, is a denial of access to justice.

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Lord Brown of Eaton-under-Heywood (CB): My Lords, I, too, rise to support this Motion and also, in part, to atone for my own part as Treasury Counsel 30 years or more ago, when I did all that I could to obstruct the recognition of prisoners’ rights—sometimes successfully in the short term, although generally not in the longer term. Preparing for the debate tonight has involved me in a wander down memory lane. In 1981, in a case called Payne against the then chairman of the Parole Board, Lord Harris of Greenwich, I succeeded in persuading the Court of Appeal under Lord Denning that it was quite unnecessary to give prisoners any reasons whatever as to why their parole applications had been refused. In 1984, in a case called King, I persuaded the Court of Appeal that prison governors’ disciplinary proceedings were wholly immune from judicial review, lest their authority be undermined.

8 pm

I now look back on these forensic triumphs of yesteryear with some astonishment—and, indeed, each of them proved to be short lived. Nor, indeed, were all my attempts to obstruct and restrict prisoners’ rights successful. Anonymous reference has already been made this evening to the famous case of Raymond v Honey in 1982, in which I failed to persuade the House of Lords that prison governors were entitled to prevent a prisoner applying to the courts to commit them to prison for contempt. In 1983, in the Tarrant case—another case that features in the Joint Committee’s report—I failed to persuade the Divisional Court that prisoners should never have the right to legal representation before boards of visitors. Indeed, in a case that has already been mentioned this evening by the noble Lord, Lord Lester—Silver v the United Kingdom—which was aptly named, considering it followed on from the case of Golder v United Kingdom, I failed to persuade the Strasbourg court that the prison authorities were entitled to read every letter that a prisoner sent out, even those sent to his solicitors. Enough of reminiscences—but I hope that they at least indicate that I have some experience and understanding of the importance of prison law in prisoners’ lives.

Others in the debate have focused—and, no doubt, will continue to focus—on a number of detailed objections to the regulations, and have pointed to particular situations where the withdrawal of legal aid will be especially harmful and problematic. However, I wish to make a single, substantial point, which to my mind is a point of overarching importance and which has already been touched on by others. By these regulations, legal aid will cease to be available for a number of cases which otherwise would have passed all the relevant merits and qualifying tests and would have been funded. That must be so, because otherwise there can be no point in the regulations.

It follows that these cases are no longer to be funded for the very reason that those who wish to bring them are prisoners. It is no answer to say that there are other complaints procedures available to them in prison. To the extent that these are, indeed, sufficient, a legal challenge would in any event be impermissible because judicial review is always regarded as a remedy of last resort. So it is by virtue only of

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their status as prisoners—an unpopular group and thus perhaps regarded as a soft and popular target for cuts—that prisoners will have fewer rights to funding and so less access to justice than the population at large. And yet—it is this that I regard as the key point which makes the point one of overarching importance, as I have called it—prisoners, as members of a closed community uniquely subject to the exercise of highly coercive powers, far from having fewer rights of recourse to independent courts than most of us, should, rather, have at the very least equal access to justice.

Just yesterday, the Independent newspaper contained an article headed:

“Medomsley young offenders centre: over 140 alleged victims of abuse have come forward”.

The article detailed all these cases of alleged sexual or physical abuse from the late 1960s to the mid-1980s. I have no wish to comment on the allegations, or, indeed, to consider how the regulations in question here could bite in that situation. However, the article highlights—if, indeed, highlighting is required—just how vulnerable prisoners are, particularly young prisoners, and therefore how essential it is that they should have full and proper access to justice rather than be discriminated against as prisoners under the legal aid scheme. These are mischievous and misguided regulations, and the noble Lord, Lord Pannick, is right to regret them.

Lord Carlile of Berriew (LD): My Lords, given the current clamour for repentance in some quarters, it is a real pleasure to follow a sinner who hath repented. The noble and learned Lord, Lord Brown, makes an extremely powerful point in reminding us that these are cases in which the merits test has been passed. Therefore, the Government are deliberately excluding from access to litigation people who have been advised that they have merit in their case. That is a matter of real concern.

I, too, applaud the noble Lord, Lord Pannick, for moving this Motion of Regret—the third Motion of Regret, or similar, in a run of these legal aid regulations. This fact, in my view, should cause Ministers and the Government Front Bench real concern. There is more or less united opposition to these regulations among the informed. I would have thought that that evidence was as good as one could wish for.

I also want to pick up a point on mental health made by the noble and learned Baroness, with all her experience of the judiciary. It is often a matter of pure chance whether a child or adult with a serious multiple mental health history ends up in prison or in hospital. It may depend on where they were standing when a florid episode took place, whether there was a sympathetic or an unsympathetic police officer present or whether or not their family was there to protect them. It is purely because of a small event that one person may now be in a hospital, with all the care that a hospital provides, and the capacity to obtain legal aid for important litigation that may establish the course of the rest of their lives, and another may be in prison, where, apparently, they are to be deprived of access to that litigation. That seems to me profoundly unjust.

The third and final point I will mention—trying not to take up too much of your Lordships’ time this evening—relates to children and young people and the

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work of the Howard League for Penal Reform, of which I was president but am no longer. On 13 December last, the Joint Committee on Human Rights stated that it was “disappointed” that the Government had pursued the removal of matters from legal aid relating to young people and, in particular, resettlement cases. The committee said:

“The issues concerning young people may involve matters of housing law, social care law and public law of such complexity that they require access to legal advice and assistance in order to investigate and formulate their case”.

There are, of course, some very good lawyers in this House, but there is not a lawyer in this House who would not be challenged by some of these cases. The Howard League has a legal team that has helped literally hundreds of children make fresh starts and secure long-term support on statutory funding. The result has often been to allow them to be released safely, having served the shortest appropriate time in prison. They have often been able to move on not just to lives which are free of crime but to lives which are positive in a much broader sense.

In turn, this has led not only to justice on their part but has saved the taxpayer a huge amount of money. It is extremely expensive keeping young people locked up. Therefore, I say to my noble friend the Minister that I doubt very much that any robust cost-benefit analysis has been done on removing legal aid from children in custody rather than allowing them the legal aid which the expert legal team at the Howard League—and, of course, elsewhere—has utilised to bring benefit to those children’s lives.

Lord Goldsmith (Lab): My Lords, it is a privilege to follow the statements that have been made by so many of your Lordships universally condemning these regulations and identifying the specifics of why they are wrong in principle and wrong in fact.

I have not been someone who has objected to any legal aid cut. I have been concerned about some but, as a member of a Government who themselves had to look at legal aid issues, that was not the concern. However, what particularly concerns me about these regulations is the point that the noble Lord, Lord Pannick, made early in his contribution when he referred to the reasons given by the Secretary of State, the Lord Chancellor, for making this change—said to be ideological.

While there may be that ideology so far as the Lord Chancellor is concerned, noble and learned Lords have already made it plain why it is legally wrong: because prisoners have rights. Therefore, if the justification is that, ideologically, they should not have rights, he is saying that they should be in the same position as the people in the black holes of Guantanamo.

I am still shocked by the piece that the Lord Chancellor wrote in the Daily Mail on 11 September 2013, in which he described judicial review, not once but twice, as,

“a promotional tool for countless Left-wing campaigners”.

That is completely untrue, of course. I do not think that the Daily Mail would be regarded as a left-wing campaigner, yet it used judicial review to challenge the Leveson inquiry. Much as I admire it, I do not think

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that the Countryside Alliance, when it brought a judicial review against hunting, would have regarded itself as a left-wing campaigner.

It is deeply worrying that that is the ideology that underlies these changes. It would be deeply worrying if it came from anybody, but coming from a Lord Chancellor—a Secretary of State for Justice—it is a matter of the gravest regret, which is why I am very happy to support the noble Lord, Lord Pannick. It is wrong for these reasons. It is wrong because legal aid is about justice, not about ideology. It should be about ensuring that people can vindicate their rights where properly those rights deserve to be vindicated. Therefore, the Lord Chancellor—the Secretary of State—is ideologically unsound and also legally wrong.

This measure is, I regret to say, shabby, and a political and populist move which does no credit at all to a Government. Equally, it does no good, as noble and learned Lords and noble Lords have pointed out, in terms of cutting the budget. I very much hope that the noble Lord—and I, for one, welcome him to his place on the ministerial Bench—will do his best to make sure that that point is driven home within the Ministry of Justice and that the Secretary of State recognises eventually that this sort of move, which he regards as ideological, is in fact utterly to be regretted.

Baroness Stern (CB): My Lords, my memory of the gradual application of the rule of law in prisons also goes back a long way—as far back as that of my repentant noble and learned friend, whom I have the great honour to be sitting next to and of whom my opinion has warmed considerably as the years have gone by.

I recollect the days when prisoners were found guilty of disciplinary offences and sentenced to lose many days of remission without being heard or allowed to defend themselves. I remember a riot at Wormwood Scrubs prison in which 54 prisoners and 11 prison officers were injured. It was hushed up. The full facts emerged after two and a half years and no one was ever held to account. I am sure that there would be no support in 2014 for the rule of law not being maintained in prisons. The arrival of lawfulness improved immeasurably the working conditions of staff, the treatment of prisoners and the safety of the environment in which they both lived. My noble and learned friend Lord Woolf was right to say in his report on the Strangeways riot in 1991 that,

“the system of justice which has put a person in prison cannot end at the prison doors”.

Therefore, within this context, since this is a Motion of Regret, I regret very much that the framework of lawfulness in which prisons operate is to be reduced. I understand the argument about cost, but these measures will certainly save no money at all, and they will shrink one of the elements that keep prisons fairly safe and fairly manageable—that is, the provision of access to a remedy when a decision seems arbitrary and unjust.

Perhaps I may mention one specific situation so that it may be on the record. I refer to prisoners who are held in extreme conditions, such as in the case quoted by the Chief Inspector of Prisons when he gave evidence to the Joint Committee on Human

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Rights. It concerned a woman with severe mental health problems in Bronzefield prison who was held for five years in conditions that amounted, in his view, to cruel, inhuman and degrading treatment. In future, such a woman seems very unlikely to be able to get legal aid to challenge her conditions and her placement. Women who have their babies taken away have already been mentioned, and I endorse the comments of the noble Baroness, Lady Kennedy.

I end by endorsing the remarks of the noble Lord, Lord Carlile, about the excellent work done by the Howard League and the Prisoners’ Advice Service. Neither of those specialist legal aid prison law firms will be able to continue under these arrangements, and that, too, is a matter for profound regret.

8.15 pm

Lord Ramsbotham (CB): My Lords, I, too, congratulate my noble friend Lord Pannick on bringing his regret Motion before this House. I do not dissent in any way from what he said. He has outlined why this House should regret the restrictions being imposed on legal aid, advice and assistance in prison law cases with his usual clarity and skill. I want to focus instead on the Government’s justification for those restrictions, which I believe to be deeply flawed. I have to admit to serious alarm when I saw that the justification was the internal prisons complaints system, about which, when I was Chief Inspector of Prisons, I had frequent cause to complain. I was equally alarmed when I saw that the tough Mr Grayling had said in his evidence to the Joint Committee on Human Rights:

“I struggle personally to believe that it is sensible to have a system where we have prisoners able to access the courts, and access public funds, to argue that they should be detained in a different prison”,

to which the Joint Committee responded:

“What is strikingly strange about the Lord Chancellor’s comments about where legal aid will be allowed is that he has … ignored where common-law standards of fairness apply”.

It also said:

“We have not seen any evidence to suggest that legal aid is being abused to enable prisoners to complain about what prison they are put in”—

in other words, both drawing attention to his ignorance of the facts and suggesting that he was on a collision course with Winston Churchill’s conviction that the way in which it treats its crime and criminals is the true test of the civilisation of any country. Ideology appears to dictate his policy-making, rather than reality.

Mr Justice May, when recommending the reformation of the Inspectorate of Prisons after a break of 102 years, following widespread unease about the efficacy of the self-regulation that had been introduced by the first Prison Commissioner in 1877, recommended that the chief inspector be given statutory responsibility for the inspection of efficiency, propriety and the investigation of grievances. In the event, the investigation of grievances was denied. However, when the first prisons ombudsman was appointed in 1994 following similar unease about the internal prisons complaints system, he was not given statutory responsibility for the investigation of grievances—something for which he and his successors have fought, unsuccessfully, ever since, and a fight which I warmly support.

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I was therefore interested to note that in his evidence to the Joint Committee, far from having the confidence in the complaints system held by the Lord Chancellor, my successor as chief inspector, Nick Hardwick, confirmed that,

“prisoner confidence in a complaints system was crucial to the safety of a prison”.

He added that,

“two-thirds of people who have had a complaint dealt with through the existing system do not think it has been dealt with fairly”,

and that,

“about one in 10 say they have been prevented in some way from accessing the complaints system”.

So much for advice and assistance that is equal to that being denied.

Like my noble and learned friends Lord Brown and Lady Butler-Sloss, and the noble Lord, Lord Carlile, if there is one group of prisoners about whom I am particularly concerned in all this, it is young offenders. For a whole variety of reasons, including immaturity and lack of trust, they tend not to use the complaints system. When I was inspecting, what worried me was that prison staff tended to interpret this lack of use of the formal complaint system as meaning that all was well when the opposite was true.

My final word to the Minister is that, in reflecting on all that has been said by noble Lords in regretting the proposed restrictions, he and the Secretary of State should reflect that this is not a stand-alone measure. Their restrictions come on top of a whole host of other cuts and deliberately tough sanctions against prisoners, and are resulting in mounting unrest. Prisoners are deprived of their liberty for a period by the courts following conviction for an offence but, in the civilised society about which Winston Churchill spoke, they are not deprived of justice. My noble and learned friend Lord Woolf observed that justice was a crucial ingredient of safety in a prison, which confirms that there is no place for ideologically imposed injustice in a civilised prison system.

Baroness Scotland of Asthal (Lab): My Lords, I, too, bitterly regret the need for this debate. I say to the noble Lord, Lord Faulks, that I feel enormous sympathy for him and bitterly regret that he will have the arduous burden of responding on behalf of the Government. To turn our minds back only a few years, if we had asked any lawyer worth their salt whether it would be likely that any Government, of whatever political complexion, would bring forward regulations such as these, I think that such a suggestion would have been met with incredulity.

I totally endorse what has been said by every Member of the House who has spoken already, particularly the comments made in relation to children, women and the vulnerable. I emphasise the comments made recently by the noble Lord, Lord Ramsbotham, about the need to remember the backcloth against which these additional cuts must now be seen.

I shall take a moment to concentrate on the plight of women. Noble Lords will know that legal aid in family matters has been removed almost in its entirety, except in cases of domestic violence. Even there we are hearing reports from solicitors all over the country

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that access to legal aid for those women and individuals who are victims has been severely constrained. Some solicitors say that the drop has been 96% in some areas and 94% in others, and that there has been a real diminution right across the board. We know that women in our prisons are overrepresented in terms of vulnerability. Certainly it was my experience when I was Minister of State with responsibility for the criminal justice system. I was told in 2004 by the governor of Holloway prison—I have no reason to believe that this has changed—that 89% of women in prison had a history of domestic violence or sexual abuse prior to having offended. We have a highly vulnerable group whose rights already are constrained outside the prison estate and are having them further constrained within it. Two-thirds of children in youth offending institutions come from those same domestic violence homes. We all know that those who graduated from the youth justice estate are overrepresented in the male estate. We are dealing with the most vulnerable in our community.

I add my voice to those who have expressed a degree of shock that the Secretary of State for Justice feels able to phrase these issues in terms of ideology. I commend the Damascene-like conversion of the erstwhile Treasury devil for his change of mind and invite the noble Lord, Lord Faulks, to ask the Lord Chancellor to see the noble and learned Lord, Lord Brown, as an exemplar of what can be done when one really wishes to change, and to say that, from the Lord Chancellor and the Secretary of State for Justice, all of us expect more. I cannot but agree with the noble and learned Lord, Lord Brown, when he says that these provisions are mischievous and misguided.

Lord Bach (Lab): My Lords, yet again this House appears united against the Government’s proposals for legal aid. Thanks are owed not just by those of us in the House but those outside, too, to the noble Lord, Lord Pannick, for moving his regret Motion and doing so in so powerful a way. Those who followed him must rank as one of the most impressive lists of dramatis personae of legal luminaries it would be possible to bring together, and we have not heard from my noble friend Lord Beecham yet.

I want to make a couple of fairly short points. At paragraph 161 on page 50 of the JCHR report, there is reference to reforms to the system of prison law that were carried out in July 2010. They were really the work of the previous Government. Indeed, they were from a time when I was privileged to be the Minister with responsibility for legal aid. What we did then was to make comparatively minor changes that we believed were appropriate. We implemented them and, dare I say, they appeared to work fairly satisfactorily. But now, yet again, our successors go much, much too far and take so much out of scope that the balance shifts. Instead of having a system that maintains the essential proposition that prisoners should have reasonable and proportionate access to legal advice and representation, we are now faced with a sort of brave new world where any legal rights prisoners enjoy are granted out of sufferance—the very bare minimum.

The approach is not what is fair and consistent with our legal traditions but rather, “What can we as the Government, the state, get away with?”. There is almost

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a pride in not taking a balanced view based on judgment and legal reputation. In one of his examples, the noble Lord, Lord Pannick, spoke about categorisation. The Ministry of Justice has decided to remove funding for pre-tariff reviews. He explained much better than I can the value of pre-tariff reviews for prisoners.

Recently, I spoke to a recently retired Parole Board member and a retired High Court judge who told me that not only are these reviews immensely significant in the course of a prisoner’s life but that there are huge advantages for the Parole Board and, thus, presumably for society, in having the best possible information about a prisoner so that the right judgment can be made. Such information is gained by the Parole Board having had the advice and representation before it that has been given to the prisoner. Can anything be more ridiculous than the decision to take pre-tariff reviews out of scope? As the JCHR report so rightly said:

“Categorisation engages common law rights to liberty, as it can affect the likelihood of a prisoner being released. There are also clear cost implications of a prisoner remaining in too high a category, which may mean that the Lord Chancellor’s cost-saving rationale may not be satisfied. We recommend that the Government look again at these proposals, and give full consideration to the potential for increased costs, which may affect the justification for its policy”.

Two newly appointed Ministers in the Ministry of Justice were on that JCHR, at least for a large part of its hearing into this matter, and we hope that both those Ministers will follow that paragraph and talk to their Secretary of State in those terms.

8.30 pm

The Government’s excessive zeal—their going over the top, if I may put it that way—on legal aid is already having harmful consequences. For example, the removal of legal aid from social welfare law is leading to the closure of advice centres. Only today, a round robin e-mail talked about the imminent closure of three law centres in London and one in a major city in the north of England, on top of what has already happened. That e-mail was headed “Glum”.

Is this really what the Government intended when they forced the Legal Aid, Sentencing and Punishment of Offenders Act through Parliament? If it was, it does them no credit. They are gradually destroying a civilised system of access to justice—one that was far from perfect but which worked in practice and was, frankly, not very expensive. In its place is emerging a world where the poorest and those without any power, including of course prisoners under this particular regulation, have nowhere to go to get the legal advice that they deserve and need. It is fast becoming a record to be ashamed of.

The Earl of Sandwich (CB): My Lords, I am extremely honoured to be in this learned company and I will try not to take too much time because everything has been said.

We have been here before. I spoke in the debate of the noble Baroness, Lady Deech, as did many other noble Lords. On that occasion, I mentioned the work of the CAB. But today, like others, I am much more concerned about the effect of these regulations on young people in difficulty, including asylum seekers in detention, unaccompanied minors and even young

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people released from prison and wishing to make a new life. These young people would normally benefit from professional legal advice at a critical stage in their lives when they are separated from their families or being made homeless at the moment of leaving prison. Specialised agencies such as the Howard League mentioned by the noble Lord, Lord Carlile, have given hundreds of people not just hope but essential practical advice on restarting their lives. This kind of work, as the noble Lord, Lord Ramsbotham, said, characterises fairness in our society. It is not charity.

I notice that the Minister has been a member of the Select Committee looking at mental capacity, so he will be more aware than most of the special problems of the mentally ill already mentioned. Many of those people are in prison through no fault of their own. I said in the legal aid debate that those with mental health problems were especially vulnerable. There were no exceptions for children nor for prisoners accepted to have a disability. A detained child unable to identify legal issues will not have the financial resources, let alone the intellectual resources, to pay for lawyers or even to frame their complaint to the prison authority, as is suggested. That is a serious point that the Minister has to answer. It would be a serious personal crisis for young people.

A case of a 12 year-old boy was mentioned to me by the Howard League. He was an unaccompanied minor who had been detained in a secure children’s home. He had behaved well, earned himself early release and had sought help with resettlement. The lawyer concerned approached social services but only then discovered through an interpreter that he had been wrongly detained in the first place and had to appeal against his sentence. None of this will happen if cases are not referred in the future and legal aid is unavailable.

Last September, there were 1,789 immigration detainees spread across the UK in removal centres and short-term holding facilities simply waiting to be removed. Many are moved from place to place and I doubt if the Minister or anyone else can keep count of how many of them are young people. I heard from a Member of Parliament last week that one young detainee, originally from his constituency, had been moved eight times. Mental health problems loom large in these situations because no one knows when they can leave or even when they can receive a hearing. Detainees depend heavily on outside advice. This may be a subject for the Immigration Bill next month, but it is surely highly relevant to the present regulations. Is it fair to exact cuts that will impinge on young people in these conditions and restrict their lives even more than at present?

It is true that the Joint Committee on Human Rights accepted that it was legitimate for the Government to introduce a residence test, as the Minister may mention, and to restrict the scope of prison law funding. But it strongly recommended that there should be more and broader exemptions from these proposals to make it less likely that they will lead to breaches of the fundamental right of effective access to justice.

What is especially unfortunate, as the noble Lord, Lord Pannick, mentioned, is that young people in prison had been receiving much better attention over a long period. For example, the Minister will know that

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in 2002 there was a court ruling that the welfare and child protection duties in the Children Act apply to children in prison just as they do to children in the community.

The amount and percentage of cuts has already been discussed. They are surely disproportionate. I shall lastly mention one piece of evidence given to the Select Committee last July. I was surprised to read that the Justice Secretary had changed his mind about equal shares in legal aid work. He told the committee he had been persuaded that competition among legal providers was more essential than advice shared equally. He said:

“That is something that the market has said to me: ‘Actually, the principle of choice is one that we regard as more important’”,

than equal shares. If the market is speaking in this way, many young people and their families are going to suffer from these regulations.

Baroness Hamwee (LD): My Lords, the noble Earl mentioned the debate in this House last July. I looked back at that and reminded myself that the title of the Motion of the noble Baroness, Lady Deech, was “Effect of Cuts in Legal Aid Funding on the Justice System of England and Wales”. I think that that was a very well chosen title because the effect of the cuts is not just on individuals but on our system of justice.

I was not going to talk about whether this was a matter of ideology on the part of the Justice Secretary. I had a look at the transcript and am not sure that that was quite the exchange about ideological differences, but I am tempted to wonder whether that was an admission or a boast.

I want to say very clearly—though noble and learned Lords, and noble Lords who are not technically learned, have put it much better than I can—that for those who are convicted and sentenced by the courts, the punishment is imprisonment. The punishment should not extend to the loss of rights, whether convention rights or at common law.

A number of threads seem to run through the Government’s approach. The first is a reference to and reliance on judicial review. I do not need to comment on the paradox in that given the policy regarding judicial review. I was not aware of the Daily Mail article quoted by the noble and learned Lord, Lord Goldsmith. I do not think that I need to spend any time on saying how undesirable it is to rely on judicial review. But I will mention the skill that is needed, at what I shall describe as first instance, to ensure that the right points are raised and dealt with in order that there is a basis for an application for judicial review. I think that that is not a job for someone who is not trained.

Another theme which I picked up from the JCHR report is that the Justice Secretary thinks that the number of cases affected will be very small. If that is so, I do not understand why the Government do not give in gracefully. We know about the cost pressures on the MoJ. We know that the Government want to focus public resources on cases with sufficient priority to justify the use of public money and to get value for money for the taxpayer. But I know that I am not alone in this Chamber in setting justice high in my priorities as a taxpayer.

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What seems to be a common theme in the responses to the Government from those who work in the sector is a mention of the “see-saw impact”—that is, cuts here meaning costs there. Concerns around mother and baby units and the cost of keeping a baby in care is one example, undermining the principles of rehabilitation and the costs associated with all that. We will all have seen and read particular cases. I shall mention one which I found very compelling—the story of a 17 year-old who was given a 36-month custodial sentence. He was studying for his A-levels at the time. With the work of solicitors, who engaged in both detailed representations and liaison with a clutch of agencies, he was granted release on temporary licence to attend college part-time and then home detention curfew, and so he lost only one year of education, not the further years which were in prospect.

Of course, there is also the cost of the loss of expertise among solicitors. I have seen, and heard about tonight, a large number of points relating to costs rather than savings. We really have not got any better, have we, at joining up and reading across budgets? I have actually been defeated—my level of energy depleted—in trying to understand the savings projected as against the knock-on costs. I hope that when the Minister—who has everyone’s sympathy in this—replies he will be able to unpack this for the House.

The third theme I picked up was the emphasis on the non-judicial complaints system. I do not see this as an either/or. There should be a good complaints system. That should then alleviate to some extent the necessity for lawyers to be involved. There should be an effective system that inspires confidence. However, there are limits to the system that we have—to the powers, to the remit, which does not extend to making recommendations to external agencies or investigating them. These concerns seem rightly to have been stressed.

We have heard, although not tonight, about ambulance chasing—if that is the right term—by some solicitors in prison, soliciting work and planting the idea in prisoners’ minds that they have real claims. However, that should not mean that proper advice, assistance and representation is not available.

I do not suppose that the MoJ has found much which it regarded as supportive or constructive in the responses to the proposed changes. The House has managed to cover quite a lot of ground, and I will end by citing a point made by the Council of Her Majesty’s Circuit Judges, which noted, according to the Howard League, that:

“The practice of prison law is so unique; its impact on the most vulnerable within society so profound; and the potential savings suggested by these reforms so limited at best, and so obscure in any event, prison law should be removed altogether from the scope of the legal aid reforms”.

8.45 pm

Lord Beecham (Lab): My Lords, it is once again necessary for me to thank the noble Lord, Lord Pannick, for putting down a Motion of Regret about a set of regulations on legal aid. I also express my gratitude to all noble Lords who have spoken so powerfully tonight about the regulations and the potential damage that they will do.

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I begin by citing three examples of successful cases for which legal aid was, but will no longer be, available. I am indebted to the Howard League for supplying the relevant information. The first was a mother and baby case of the kind referred to by the noble Lord, Lord Pannick, the noble Baroness, Lady Kennedy, and the noble and learned Baroness, Lady Butler-Sloss. A Spanish mother, who spoke no English, was informed after sentence that her baby would be removed and placed into care because it was not known whether she would be allowed to remain with the child when she returned to Spain. Her lawyers ascertained that she would, and the decision was reversed.

In the second case, a prisoner with severe learning disabilities could not do offending behaviour courses. Experts in the prison recommended he be transferred to hospital for treatment, but nothing happened until his lawyer commissioned an independent report and persuaded the authorities to transfer him to hospital. Such a sentence case will now be out of scope.

In the third case, a 17 year-old suffering from ADHD and learning difficulties underwent psychiatric therapy in a secure training centre, but the local authority refused to respond to a request for a needs assessment under Section 17 of the Children Act until legal intervention by the Howard League. Resettlement cases of this kind will also be out of scope. I remind your Lordships that the cost of keeping such an offender in custody could be as much as £200,000 a year.

Those are but a few sample cases. The regulations which are the subject of this regret Motion are merely the latest example of this Government’s repeated assaults on the legal aid system and access to justice, pushed through by a Lord Chancellor indifferent to their effects and unheeding of the warnings from the judiciary, practitioners, and charities and voluntary organisations. Time after time the criticisms of bodies such as the Justice Select Committee, the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights are brushed aside. Impact analyses are vestigial in many cases, and imperfect in most.

Such is clearly the case with the proposals we are debating tonight. Not only are the measures deeply flawed but the process is tainted. Paragraph after paragraph of the Joint Committee on Human Rights report highlights these systemic failures. After their initial consultation, the Government abandoned proposals to exclude two areas from legal aid, namely where the Parole Board considers whether to order release and in relation to the calculation of sentence when the release date is in dispute. That is welcome, but as paragraph 154 of the report sets out, two new matters were excluded from legal aid—contrary to the express intention set out in the consultation that legal aid would continue to be available—namely, the areas of sentence planning and pre-tariff reviews. There was no subsequent consultation on these changes.

At paragraph 163, the committee dismissed the Lord Chancellor’s assertion that legal aid was being abused by prisoners complaining about what prison they were confined in, or about prison conditions, saying, damningly and accurately,

“legal aid is already unavailable for such claims”.

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At paragraph 168, it pointed up the hollowness of the Government’s claim that judicial review would be available given the restrictions being imposed on the number of cases firms might bring and the limitations of the exceptional funding regime. At paragraph 169, it asked the Government to consider the combined effect of the residence test and the exceptional funding criteria and invited them to explain,

“how access to justice rights will be maintained where both policies are in operation”.

What is the Government’s response to that very significant question?

The Government airily dismissed the concerns on internal prison complaints but, as we have heard, the Chief Inspector of Prisons is quoted at paragraph 174 as finding the response “disappointing”. He emphasised the problems of prisoners with disabilities, especially mental health problems, and, as the noble Lord, Lord Ramsbotham, pointed out, warned that prisoner confidence in the complaints system was crucial to prison safety. As recent events have demonstrated, prison safety is a real concern. Similarly, at paragraph 174, the Prisons and Probation Ombudsman voiced concerns, especially about his lack of statutory independence that the Lord Chancellor has promised to rectify. I must ask the Minister when the legislation, urgently pressed for by the committee at paragraph 177, will be enacted.

At paragraph 181 the committee identified the need for public funding,

“to prevent infringements of prisoners’ right of access to court arising in practice”.

From paragraphs 182 to 188, it identified serious issues for prisoners with mental health problems, the vast majority exemplified by the chief inspector’s remarks in the case mentioned by the noble Baroness, Lady Stern, about segregation, in particular of women prisoners. In parenthesis, when I asked a question about women prisoners being held in segregation the reply that I received from the Ministry of Justice was that it was too costly to obtain the details of the numbers and length of time such women had been so confined. To his credit, the noble Lord, Lord McNally, agreed that the answer was ridiculous and procured the relevant information.

At paragraph 188, the Joint Committee noted that since 2010 the majority of treatment cases were mental health cases and it was not satisfied that these prisoners would be able to use the complaints procedure effectively. It recommended that the LAA retain the ability to grant funding for these cases where the implications for access to justice are clear. Noble Lords will not need reminding that the majority of prisoners suffer from mental health disorders: 70% of one or more mental health disorders for adults, 90% for young offenders. Again, what is the Government’s response to the case of prisoners suffering from these disorders? In relation to mother and baby cases, of which there are mercifully few, the committee called for an exemption in cases where legal representation would be desirable. Will the Government not accede to this request?

The concerns are echoed in relation to young offenders, as mentioned by the noble Lord, Lord Carlile, where, as the committee pointed out at paragraph 205, such

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matters, including in particular resettlement cases, are being removed even before the Government respond to their consultation paper,

Transforming Youth Custody

. Trenchantly at paragraph 206 the committee disagreed that advocacy services and internal complaints systems would be effective and asserted that:

“This could leave young people vulnerable and deny them their rights”.

This would be not least in key areas such as,

“housing law, social care law and public law”.

Moreover, it dismissed the young offender’s right to judicial review, which was raised by the Government, since a young offender would require a litigation friend to pursue the action; it cannot be brought by a minor on his own initiative. It urged the retention of young offender cases within scope, specifically resettlement cases. Finally, at paragraphs 213 and 218, as referred to by my noble friend Lord Bach, it recommended reconsideration of the position in relation to Parole Board hearings and categorisation cases. This is a formidable catalogue of concerns about, and in many cases outright opposition to, what the Government are doing.

Once again, the Minister will shortly stand at the Dispatch Box, like Horatius on the bridge, with no troops behind him. There is not a single voice that has been raised in this Chamber tonight in support of the Government’s position. It would be unfair to suggest that the Minister, who was a member of the JCHR and presumably agreed with its report, has changed his mind now that he has taken if not the Queen’s shilling, then at least the Lord Chancellor’s shilling, if only because he is not being paid a shilling or indeed anything else for the job that he has undertaken. But I hope that he can prevail upon the Government to think again, and quickly, about the direction and extent of travel reflected in these regulations.

I commend to him in particular the response of the Bingham Centre for the Rule of Law to these issues. The centre does not,

“share the Government’s view that treatment cases will never be of sufficient priority to justify the use of public funds, or that sentencing matters such as categorisation and segregation are considered incapable of warranting legal aid”.

Importantly, it dismisses the so-called “adequate alternatives” to which the Government refer—for example, the complaints system and the ombudsman—as “first ports of call”, in the MoJ’s phrase, for four substantial reasons.

First, as per the noble and learned Lord, Lord Brown, whom I welcome back to the side of the angels after his digression over the issues of miscarriages of justice and compensation, the courts require alternative remedies to be exhausted before seeking judicial review, so legal aid would not be the first port of call. Secondly, under the regulations, the non-judicial remedies would be the only point of call. Thirdly,

“the rule of law requires the possibility, at least as a last resort, of recourse to independent courts”,

and, fourthly,

“rule-of-law imperative is particularly compelling in settings—of which prisons are a paradigm example—in which individuals are subject to the exercise of highly coercive public law powers”.

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The centre concluded by affirming that,

“judicial review has exerted a profound and positive influence upon the prison system in recent decades … the nature of any state’s prison system … is a key barometer of the rule of law”.

Tellingly, it adds:

“It is inevitable that the proposals, if implemented, would substantially undermine the valuable role played by courts in this area. If one of public law’s core functions is to safeguard vulnerable individuals against misuses of state authority, then it is hard to think of a more fundamental assault upon the capacity of public law to perform such a role”—

and all the more so when the custodial services are contracted out to oligopolies such as G4S and Serco.

What answer does the Minister have to this critique? Does he agree with the words uttered by Winston Churchill—who has already been quoted here tonight—as Home Secretary in 1910, when he said:

“A calm and dispassionate recognition of the rights … even of convicted criminals against the State … tireless efforts towards the discovery of curative and regenerating processes … are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it”?—[Official Report, Commons, 20/7/1910; col. 1354.]

Is the Minister, and are the Government, willing to disavow Churchill’s characteristically eloquent formulation of principle for the sake of a possible, but actually unlikely, saving of £4 million a year?

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, I hope that I can rise to the challenge of the “calm and dispassionate” response to which the noble Lord referred in his closing remarks. This has been a wide-ranging debate, involving very distinguished speakers with great knowledge and awareness of many of the issues which these regulations raise. I hope that the House will forgive me if, in the course of this dinner-hour debate, I do not respond to all the many criticisms that have been made but try to focus on the effect of the regulations and on why the Government have seen fit to bring them into effect.

I will begin by saying something about the wider context of the instrument. It is worth noting that spending on criminal legal aid for prison law in England and Wales has increased markedly in recent years, from around £1 million in 2001-02 to around £22 million in 2012-13.

Legal aid is a vital part of our justice system. However, limited public resources need to be targeted at those who need them most. With departments across government being asked to reduce their expenditure, legal aid cannot be immune. The legal aid scheme is paid for by the taxpayer, and we have to demonstrate to the public and hard-working families that we have scrutinised every aspect of legal aid spending to ensure that it can be justified. Unless the legal aid scheme is targeted at the people and cases where funding is most needed, it will not command public confidence. It was with this aim in mind that the Government proposed a number of changes to legal aid in England and Wales in April 2013. Following public consultation and careful consideration of the responses, the decision was taken to restrict the scope of criminal legal aid for prison law, among other reforms.

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9 pm

The suggestion has been made that the Government did not respond at all or modify their view. With respect, that is not quite right. As a result of the consultation the Government agreed that they would fund all cases that involved the determination of a criminal charge for the purposes of Article 6, cases that required legal representation as a result of the successful application of the Tarrant criteria—the Tarrant case referred to by the noble and learned Lord, Lord Brown—all proceedings before the Parole Board where the Parole Board has the power to direct release, and all sentence calculation matters where the date of release is disputed.

The change to the scope of this legal aid aims to focus limited public resources on cases that are of sufficient priority to justify the use of public money. Criminal legal aid for prison law continues to be available for disciplinary hearings that determine a criminal charge and for ones before a governor where the Tarrant criteria are fulfilled—that is, where the governor has exercised discretion to permit legal representation following consideration of a number of criteria. Criminal legal aid remains available when the Parole Board has the power to direct the individual’s release. It also remains for cases regarding an individual’s sentence where the calculation by the Secretary of State of the date on which the individual is entitled to be released, or eligible for consideration by the Parole Board for a direction to be released, is disputed.

Criminal legal aid advice and assistance is no longer available for any other prison law matter. This includes all matters related to an individual’s treatment in a prison, young offender institution or secure training centre—including, but not limited to, prison conditions, treatment by staff, and communications and visits. Most sentencing matters have also been removed from scope, including, but not limited to, categorisation, resettlement, sentence planning and licence conditions. Further disciplinary cases before a governor where the Tarrant criteria are not engaged are also no longer within scope. Nor are Parole Board matters where the board does not have the power to direct release.

The Government consider that these issues removed from scope do not require the input of a lawyer. They can be, and indeed are, adequately resolved through the alternative means of redress already in place. These alternative means of redress, including the internal complaints system, the prison discipline procedures and the probation complaints systems, should be the first port of call for issues removed from scope. The internal prison complaint procedures, set out in Prison Service Instruction 02/2012, are robust and effective. The system is accessible to all, with measures in place for young offenders and for those with mental health issues and/or learning difficulties—and there has been much reference to those prisoners.

For example, prisons are required to make sure that information is available in formats that all prisoners can understand. In particular, this means that prisoners who cannot read English because of a learning disability or because their first language is not English or who have difficulty reading or writing for any other reason will have information given to them in another format.

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Advocacy services are available for young offenders to help them navigate the complaints system and any other processes. If the complaints procedure does not resolve the issue, prisoners can also refer the matter to the Prisons and Probation Ombudsman or the Independent Monitoring Board. Furthermore—and I accept what noble Lords have said that it is very much a last resort and subject to means and merits—civil legal aid may be available for judicial review.

The changes in this instrument came into effect on 2 December 2013. Ahead of this date, the Ministry of Justice produced a series of communications for prisoners, staff and governors about the changes. These included information about how prisoners should seek to resolve issues that were no longer in the scope of criminal legal aid. The communications to staff and governors also reiterated the need for establishments to comply with the relevant Prison Service instructions, including the need to make reasonable adjustments for prisoners with protected characteristics, including those with mental health issues and/or learning disabilities. The Youth Justice Board—shortly to be chaired by my predecessor, my noble friend Lord McNally—has also written to all secure training centres, and Ministry of Justice officials have liaised with the Department for Education with the aim of ensuring that secure children’s homes receive the same message.

The National Offender Management Service will formally approach Her Majesty’s Inspectorate of Prisons to include a complaints thematic inspection towards the end of 2014 or the beginning of 2015, or early in its 2015-16 programme of work, to allow time for the changes to criminal legal aid for prison law and any impact on the complaints system to take effect. This will test the complaints system after the changes to criminal legal aid have taken effect and will give an independent view on their impact. NOMS will continue to monitor the number of complaints submitted centrally to assess the impact on services. The effectiveness of the complaints process will continue to be assessed on an ongoing basis.

There was a great deal of reference during the debate to mother and baby units. All treatment issues will no longer be in the scope of criminal legal aid for prison law, and that includes help for mothers in relation to places in mother and baby units. The Government believe that that does not create a risk of unfairness and that alternative means of redress, including the prison complaints system, are effective. No mother and baby unit cases have in fact been funded by criminal legal aid since July 2010. The significance of that date is that, since that time, providers have had to gain prior approval from the Legal Aid Agency, setting out the merits of the case before starting work.

PSI 54/2011 sets out the procedures for mother and baby units and includes a requirement on governors to ensure that all women who are pregnant or who have a child below the age of 18 months have the opportunity to apply for a place on the unit. Women must be provided with a booklet about mother and baby units. That information must be available on each residential unit, in the prison library and in reception centres, first-night centres and induction units. The governors and directors of all women’s prisons must also appoint

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a named mother and baby unit liaison officer or deputy who will be responsible for assisting the woman in completing her application.

The decision to admit a mother and her child is taken by the governor on the recommendation of an admission board chaired by an independent chair who is a certified social worker, so there is independence there. The board takes into account the best interests of the child, the necessity to maintain good order and discipline within the unit and the health and safety of other babies and mothers in the unit. Any mother who is refused a place can appeal against the decision of the admissions board by using the internal complaints system, which does not require a lawyer.

Concern was expressed about the issue of categorisation. Of the areas removed from the scope of criminal legal aid, there are about 6,000 legally aided categorisation cases per year, based on the 2012-13 data. If prisoners were to be held in a higher security category than necessary as a result of that change, there would be an additional cost burden. However, we consider that the alternative means of redress, such as the prisoner complaints system, are sufficient to deal with those matters satisfactorily. In fact, being in a higher category does not of itself prevent release. If, contrary to our view, as a result of the change to criminal legal aid, prisoners were held in a higher category than necessary, there would be an additional cost burden, although we cannot quantify the number of cases. Although the average cost per prison place increases as a result of increases in the prisoner security classification, it will have only a marginal impact on overall costs, as there is an oversupply of high security places and an undersupply of lower security places.

The issue of Parole Board hearings was raised. As many noble Lords will be aware, a Parole Board hearing is invariably inquisitorial, and we do not accept that it requires a legal representative to ensure fairness for the prisoner. I appreciate that the Parole Board has expressed anxiety about some prisoners not being represented, and of course any Parole Board would probably prefer to have a prisoner represented by a lawyer rather than to deal with them directly, but the Government have great faith in the highly skilled members of the Parole Board and their inability to elicit and assess relevant information and do not consider that the additional costs are justifiable.

While dealing with particular costs, reference was made to the standard fee of £220. That is the lower standard fee for advice and assistance; the higher standard fee is about £600 for more complex cases. The average cost of Parole Board representation is, I am told, around £2,000. As noble Lords will appreciate, where release date and the sentence term is concerned, there will be representation before the Parole Board.