Baroness Garden of Frognal: My Lords, the Government will outline high-level thinking on media ownership and plurality in the forthcoming communications Green Paper and have commissioned a report from Ofcom on these matters to be delivered in June 2012. As noble Lords will be aware, the Leveson inquiry will also report on matters related to media plurality and any recommendations will be considered as part of the communications review.
Lord Fowler: My Lords, should we not remember that last July we were only days away from News Corp's bid for BSkyB being waved through? Against that background, would my noble friend not agree that our aim should be to have safeguards that prevent any one organisation owning a disproportionate share of the British media and that final decisions on media mergers and takeovers should be taken independently, not by Ministers?
Baroness Garden of Frognal: My noble friend makes very valid points on this. On his second point, the Secretary of State has indeed questioned whether it is appropriate for politicians to have the final say on plurality issues. In competition cases, Ministers are removed from the decision-making process, and that would also be applied to media plurality. We will be seeking views on that in the Green Paper. On his other point, these topics will be discussed in great depth by the communications Green Paper and by Leveson.
Baroness Jones of Whitchurch: My Lords, given that each day sees the catalogue of News International's misdeeds spreading more widely, and given the dominance of the parent company throughout the UK media, should the Government not now be taking urgent action to strengthen Ofcom's powers to intervene where it has doubts about whether UK broadcasting licence holders are fit and proper persons? It is a matter of urgency now.
Baroness Garden of Frognal: I hear what the noble Baroness says. There is already a requirement on Ofcom to ensure that any person holding a broadcasting
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Baroness O'Neill of Bengarve:My Lords, do the Government have plans for what they might do in the event that Mr James Murdoch or, indeed, News International, decides to dispose of further UK newspaper titles? Would they be content should the new ownership be, for example, Chinese or Qatari adding to our wealth of overseas newspaper owners who do not pay taxes in this country but lead the debate on taxation?
Baroness Garden of Frognal: The noble Baroness raises a very important matter. Of course, there are competing views on this issue, which will be discussed in great depth. I apologise if that is my answer to a number of questions today. We have ongoing investigations and we really cannot pre-empt the decisions on those, but that question will undoubtedly be addressed in much greater detail.
Lord Soley: I agree very strongly with the comments of the noble Lord, Lord Fowler. Does the noble Baroness agree that there would actually be more media diversity now if, instead of closing down the News of the World, News International had taken responsibility and those responsible for the actions there had either resigned or been sacked?
Baroness Garden of Frognal: That might indeed have been the case but we are where we are. The News of the World has closed and of course we now have the new Sun on Sunday, which is a sort of replacement for it. Yes, those actions might have resulted in a different outcome; we cannot know.
Baroness Bonham-Carter of Yarnbury: Does my noble friend the Minister agree that another important and necessary element of media plurality is the types of journalism practised, and that continued investment in investigative and foreign journalism, as practised by my much mourned friend Marie Colvin, is absolutely essential, and that the BBC, recipient of the licence fee, has a major part to play in this area?
Baroness Garden of Frognal: Yes, indeed, and I join my noble friend in paying tribute to reporters, journalists and photographers who put themselves in dangerous and difficult situations in order to relay important news stories to the outside world. It is always a matter of very deep regret when any of them pays the ultimate price. That is an aspect of the media that deserves our admiration and gratitude, and indeed the role of investigative journalism continues to be of vital importance.
Lord Inglewood: Does my noble friend the Minister agree that a useful background paper to this discussion is the document produced by the House of Lords Communications Committee some years ago, The Ownership of the News, under the chairmanship of no less a personage than my noble friend Lord Fowler?
Baroness Garden of Frognal: How could I not agree with my noble friend? Yes, indeed, and of course the Communications Committee continues to produce very well-respected and in-depth reports for your Lordships' consideration.
Viscount Colville of Culross: My Lords, surely the battle is now on for control of access to the digital media. Ofcom took three years to review pay TV, which is dominated by BSkyB. Does the Minister feel that the media regulatory framework is nimble enough to respond to a fast-changing media marketplace?
Baroness Garden of Frognal: The noble Viscount makes a very valid point and we are hoping that it will be nimbler, with the reviews that are under way at the moment. We are not intending to delay any recommendations that come out of the Leveson inquiry, or any recommendations from Ofcom. As the noble Viscount rightly says, it is a very fast-moving world.
Lord Peston: My Lords, will the forthcoming Green Paper take into account the owners of the media that we are talking about, who seem to be largely people who neither live in this country nor pay taxes in this country? In addition, having become totally addicted to the Leveson inquiry myself, does the Minister agree that the biggest danger to freedom of the press in this country is the people who are appointed at senior levels in our newspapers, who seem to have no idea of the difference between truth and falsity?
Baroness Garden of Frognal: The noble Lord's initial point is similar to the one raised by the noble Baroness, Lady O'Neill, about overseas ownership of our media. All I can say is that the Government take these matters very seriously. We are looking very closely at all the practices of the media and we are not intending to let these matters just drift on.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, the Government regularly urge the Chinese authorities to cease the use of the death penalty. Our most recent representations to the Chinese Government were made
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Lord Sheldon: My Lords, the noble Lord has given a very useful reply. It has been estimated that capital punishment in China amounts to 5,000 executions, covering a wide range of crimes including tax evasion and drug trafficking. It has had more executions than all other nations combined. What action should other nations consider?
Lord Howell of Guildford: The noble Lord is right that the number of executions in China is, to us, unpleasant, and we have campaigned constantly against the level. There are some signs of a positive response to our efforts and those of many other countries: China has reduced the number of crimes that carry the death penalty, from 68 to 55; and the supreme court has ordered lower courts to suspend death sentences on a number of occasions. We are urging China to set a timetable for ratifying the International Covenant on Civil and Political Rights. There is some anecdotal evidence-indeed, even visible evidence-that important policy-makers in China are beginning to push forward strong advice that standards in China should move towards those of the rest of the responsible civilised world.
Baroness Anelay of St Johns: My Lords, the courtesy of the House is that no more than one Peer is on their feet at the same time, so perhaps I may be that Peer for the moment. We have just heard from the Labour Benches; might we hear from the Liberal Democrat Benches, and then perhaps from the Cross Benches, before returning to Labour?
Baroness Anelay of St Johns: My Lords, it is the custom that when a Labour person has asked the Question we then give other Benches an opportunity. I know that the noble Lord, Lord Anderson, was not trying to be difficult.
Lord Avebury: My Lords, what can we say to countries that prescribe the death penalty for offences such as adultery or apostasy? My noble friend will have noted the unlawful deportation by Malaysia of the writer Hamza Kashgari to Saudi Arabia, where he faces execution for something that he said on Twitter. Will the
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Lord Howell of Guildford: We most certainly do not accept that apostasy should be criminalised let alone that it should attract the death penalty. We will certainly make appropriate representations both to the country concerned and in the right fora of the UN. Our efforts to restrict the use of the death penalty apply universally, regardless of the crime for which it is imposed. That includes imposing the death penalty only for the most serious offences-if it must be imposed at all-such as murder. Freedom of religious belief, and certainly apostasy, should not in our view in any way attract the death penalty.
Baroness Stern: My Lords, I should like to ask the Minister about the situation in the Commonwealth, and I should declare an interest as I chair the All-Party Group for the Abolition of the Death Penalty. Twenty-one of the 54 Commonwealth countries still retain the death penalty. In view of the disappointing outcome at the Commonwealth Heads of Government meeting in October last year on human rights, can the Minister tell the House what new strategy has been developed to deal with abolition in Commonwealth countries?
Lord Howell of Guildford: Like the noble Baroness, I certainly declare an interest in the Commonwealth. She is quite right. The figures that I have show that 36 of the Commonwealth countries retain the death penalty in statute, but of those, 15 are in effect abolitionists and have not used it in practice. Eleven countries have carried through executions since 2000, and that is not satisfactory. It is certainly one of the values of the Commonwealth system that we are in a position to press very hard on those countries to see whether they will move towards abolition more quickly. My right honourable friend the Foreign and Commonwealth Secretary called for the abolition of the death penalty when he addressed the Commonwealth People's Forum in Perth last October. So the pressure is on, and we will certainly continue. However, I emphasise that the very existence of the Commonwealth enables us to increase that pressure and focus it effectively.
Lord Dubs: My Lords, does the Minister accept that in arguing against the death penalty, in line with our Government's policy, the difficulty is that the countries concerned can then say, "Yes-what about the United States?". What representations do we make to the United States? It represents the weakest point in the argument against the death penalty.
Lord Howell of Guildford: I would not myself put it in the way that the noble Lord has. The United States is one of our priority countries, and we regularly make our views known to the US authorities bilaterally through the European Union and in any other way that we can. We are particularly concerned about individual cases of British nationals facing the death penalty in the USA. It is undeniably a problem, but I do not think that it weakens the argumentation that
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Lord Dykes: Further to the question from the noble Lord, Lord Dubs, does my noble friend agree that the United States is a particular problem because there are well over 4,000 people on death row, many of whom have been there for many years? That must amount to cruel and inhuman punishment. Some of those are mentally retarded people. Will the Government make real efforts to persuade the United States and the federal government to drop capital punishment?
Baroness Symons of Vernham Dean: My Lords, can the Minister tell us what action the Government are taking over the abhorrent policies in some countries to exact the death penalty on young people under the age of 18?
Lord Howell of Guildford: I suspect that the noble Baroness is referring particularly to some of the horrific stories from Iran. We regard those with horror, and we continue to press extremely hard, in line with our general desire to see the abolition of the death penalty worldwide, where those kinds of particularly repulsive and ugly penalties are inflicted.
Lord Anderson of Swansea: My Lords, following the position on the US, when we make our welcome representations to the Chinese authorities, do they in fact say, "Well, how do you deal with the US?". Does it in fact blunt our own representations that the US does have the death penalty in so many states?
Lord Howell of Guildford: I cannot answer precisely having not been personally involved in all these bilateral negotiations, but my impression is that it does not. My impression is that countries either say, "We listen politely to your views"-as, for instance, in the case of Japan-or, "We recognise that we must move forward", in some other cases; or some of them give us a rather dustier answer and say, "These are internal matters for us. Please go away".
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, early identification of literacy difficulties, including dyslexia, relies on the regular monitoring of children's progress. We are investing in specialist dyslexia support for teachers, including initial teacher training, to help identify dyslexic pupils earlier. The new year one phonics screening check to be introduced this June will identify children who have not acquired phonic skills to the expected standard and help flag up those who may have additional needs, including dyslexia, and who would benefit from further support.
Lord Storey: I am grateful to my noble friend for that Answer. As he rightly says, early identification of children with dyslexia is hugely important. However, he will be equally aware that very few primary teachers are qualified to carry out diagnostic testing, so that when referrals take place, they take a long time to sort out. Will he consider including as part of initial primary training a unit of training that is linked to the diagnostic assessment of dyslexia?
Lord Hill of Oareford: I agree with my noble friend about the importance of teacher training in order to address these issues and he is quite right to say that we need to make sure that there are teachers with those skills in primary schools. The new standards we are setting for QTS include an emphasis on the ability to teach a range of special needs not specifically around dyslexia. I understand the particular point he makes, but so far we have opted to take a broader approach and then support teachers with improved materials and networks of either teaching schools or charities. However, I take his point about the importance of making sure that primary schools have the skills that they need.
Baroness Morgan of Ely: Is the Minister aware that, in order to diagnose dyslexia, very often parents are asked to pay privately for that diagnostic testing to take place at a cost of £500? That is way beyond the means of many individual parents. We are therefore creating a two-tier system for those people who are able to afford that diagnostic testing and go privately, because it is not being done in many of our primary schools at the moment.
Lord Hill of Oareford: One of the issues that underlies this is the question of what diagnostic test is appropriate. One point that came out of the Rose review is that it did not recommend a specific diagnostic text because there are differences of opinion about which is the most effective. In terms of the support that is available, that review talked about a tiered approach to identify children with dyslexia and give them the support they need-through the SENCO and then other support that might be possible. I understand the noble Baroness's basic point about funding. The funding that we have put into special needs and central support through local authorities is still in place, but I understand the point that the noble Baroness makes.
Lord Walton of Detchant: My Lords, does the Minister agree that dyslexia is just one of a group of specific learning difficulties which include, for example, dyspraxia, which is loosely defined as very serious clumsiness, and dyscalculia, which is difficulty in calculating? These are often misconstrued by teachers as representing global handicap whereas the individuals in question are often in other respects highly intelligent. What is the availability now of people with adequate qualifications in educational psychology who are likely to help in identifying early the affected individuals so that appropriate remedial measures can be adopted?
Lord Hill of Oareford: I agree with the noble Lord that there is a range of conditions, and he listed some. The basic approach in trying to identify them early and put support in place applies to those as it does to dyslexia. The Government have put funding in place to recruit and train 120 additional educational psychologists, which I think is the number that local authorities recognised that they needed as things stand. I hope that that is part of an answer, but I agree with the noble Lord that it is important that the training talked about by my noble friend Lord Storey and early identification extends to all those specific learning difficulties.
Lord Campbell of Alloway: Is my noble friend aware that this is a very serious problem that arose more than 30 years ago as reported in the Law Reports? It has been raised in this House on more than one occasion over those 30 years and nothing has been done about it by any Government.
Lord Hill of Oareford: I agree with my noble friend that this is an important issue that goes back a long way, but I have to disagree with him that no Governments have ever done anything. Recent figures that I have seen show that the improvement in educational attainment between 2006 and 2011 for children with specific learning difficulties, while much lower than we would like, doubled over that five-year period. Therefore, I do not think it is fair to say that previous Governments have not done anything. It is also fair to say that this Government share the determination of the previous Government to try to do whatever we can to address this issue.
Baroness Hughes of Stretford: My Lords, many local authorities, as the Minister will know, have also taken the initiative and promoted dyslexia specialist primary schools in their areas as a base for teacher training and to disseminate best practice in other schools. But the Government are now forcing hundreds of primary schools to become academies, independent of the local authority and separate from other local schools. Does the Minister really think that that is compatible with the kind of local co-operation that we have all agreed here today is necessary to improve provision for young children with dyslexia and other special educational needs?
Lord Hill of Oareford: I certainly agree with that last point about the need for co-operation. Where I probably take issue with the noble Baroness is around her premise that academies working together in chains are not able to work together and share in a collegiate
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The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach): My Lords, 121 farms in England are affected by the Schmallenberg virus. They indicate the extent of a late summer 2011 infection. All of them are within the at-risk regions for midge incursion during 2011 from continental Europe. We understand the anxiety of farmers as they get into the lambing season. We will continue to monitor and test for disease across the UK to determine the spread of disease during that time. Meanwhile we are working closely with our European neighbours to find out more about the disease.
Lord Gardiner of Kimble: My Lords, while recognising that farmers, vets and Defra are working very closely, are research establishments across the UK fully engaged in finding a remedy? Are all research programmes in the many European countries affected being co-ordinated with our own in the United Kingdom?
Lord Taylor of Holbeach: My Lords, good collaborative networks operate in Europe with our European colleagues. We are working with them and the Commission to develop an investigatory research programme to answer questions as to the disease's origin, transmission and future prognosis. We have strength in depth in vector research at Pirbright and virus characteristics at the Animal Health and Veterinary Laboratory Agency at Weybridge, which will play a key role in this.
Baroness Trumpington: My Lords, sorry, am I competing with somebody else? Forgive my ignorance but I do not know how this virus gets around. Is it through biting the animals, laying eggs or what? Families are involved in the birth of lambs. Are they-particularly the young women of the families-at risk of catching this terrible bug?
Lord Taylor of Holbeach: No, I can reassure my noble friend that the family of viruses from which this infection comes poses no direct threat to human health. As for how the infection occurs, it is midge-transmitted: the midge infects the sheep or cattle. We know now that that occurred in the summer or early autumn of last year. Indeed, we know that the last possible date
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Lord Clark of Windermere: My Lords, I know when to be gallant. In view of the Minister's assurance that there does not appear to be any risk to human health, and in view of experiences over recent decades, will he ask the Food Standards Agency and the Health Protection Agency to monitor the disease particularly closely?
Lord Taylor of Holbeach: I can assure the noble Lord that we have already done that. We have had risk assessments by the European Centre for Disease Prevention and Control and the UK Health Protection Agency, both concluding that there is a very low likelihood of any risk from this disease to human health.
Lord Taylor of Holbeach: That is exactly what is being investigated at the moment. We do not have a blood test at present, but it is clearly going to be very important. This is a very new virus, and we know relatively little about it except the background from which it comes. We have very strong indications as to how it has come here. The work is ongoing, but I assure the noble Baroness that we are working hard to get a blood test.
Lord Knight of Weymouth: My Lords, the spread of this virus is clearly of concern to farmers in this country, and I welcome the update that we have had from the Minister. Does he agree that the department's risk assessment on climate change suggests that this sort of disease, borne by midges, will become more common, and that how it is handled now will set a pattern for the future? On the basis of openness and transparency, will he agree a simple request that the Chief Veterinary Officer urgently provides a briefing to interested Peers so that the House can be updated regularly?
Lord Taylor of Holbeach: I am most happy to do so. I welcomed this Question because I was aware that this matter must be of concern to a number of Peers. This is an opportunity to inform the House on the subject, and I give the assurance that a "Dear colleague" letter goes to all interested Peers on this matter.
The Duke of Montrose: I declare an interest as president of the National Sheep Association. Will all the reported cases be required to have laboratory confirmation of the disease? Are the laboratories able to cope with that, and does the Government's scenario predict a seasonal peak in the next few months?
Lord Taylor of Holbeach: I have already indicated to the House that there is a season for the initial infection and therefore the consequent impact on young lambs and calves. There will be a seasonal pattern. I agree that we may have to deal with similar infections in future, so it is important to have proper precautions in place.
(a) the Social Security Contributions and Benefits Act 1992;
(b) the Jobseekers Act 1995;
(c) the State Pension Credit Act 2002;
(d) the Tax Credits Act 2002;
(e) the Welfare Reform Act 2007;
(f) the Welfare Reform Act 2012; or
(g) any other enactment relating to social security.
Baroness Doocey: This amendment is almost identical in scope to the one moved in the other place by the right honourable Member for Carshalton and Wallington, who is also chair of the Liberal Democrat policy committee on justice. It concerns the proposals in the Bill to remove legal aid for appeals against official decisions-
Baroness Garden of Frognal: I apologise to my noble friend but it is very difficult to hear what she is saying. I invite noble Lords to leave the Chamber quietly and not to walk in front of Members as they speak.
Baroness Doocey: The amendment concerns the proposals in the Bill to remove legal aid for appeals against official decisions about entitlement to welfare benefit. These proposals will seriously inhibit claimants' access to justice, will not deliver the savings that the Government hope for and will create very serious problems for some of the most vulnerable people in our society.
The amendment is more modest in scope than the one that I proposed in Committee. It would retain legal aid only for people with complex welfare benefit issues, to help them to challenge government decisions by appeal to a First-tier Tribunal. It would not retain the provision for legal aid to help with more general tasks such as form-filling, nor would it go beyond what is currently available.
Nearly six out of every 10 cases which currently receive legal aid for welfare benefit issues involve either disabled people or families with seriously ill or disabled children. The Government consider that these cases have a low priority when compared to safety, liberty and homelessness, but some disability benefits provide or protect liberty, particularly in relation to mobility and maintaining independence, which are so important. These benefits are crucial to many disabled people; they provide just enough money for those people to avoid poverty and to make some small contribution to the additional costs resulting from their disability.
The importance of maintaining legal aid for claimants can be judged by the fact that in six out of every 10 successful appeals against employment support allowance decisions, the claimants were originally deemed to have no factors affecting their ability to work. The Government's own equality impact assessment acknowledges that disabled people and individuals with specific disabilities are likely to experience a
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Legal aid for welfare benefits costs about £25 million a year. Limiting advice to reviews and appeals, as proposed in the amendment, would save £8.5 million, which would reduce the total cost to £16.5 million a year, which is less than 1 per cent of the legal aid budget-but, crucially, it would help 100,000 people. If claimants are denied legal aid to appeal against wrong decisions, their situation will get worse, intervention at a later stage will cost much more and there will be a knock-on cost for other public services.
We are also likely to see a much greater backlog of tribunal cases because panels will be faced with clients who are unable to put together a coherent case because of their lack of welfare benefit knowledge. Tribunals were designed to be informal, inexpensive and accessible but for large numbers of people the very thought of attending a tribunal can be very intimidating. How can the Government seriously expect people with no legal knowledge to be able to negotiate the complex nature of welfare benefit law and to have the expertise needed to be able to decipher more than 9,000 pages of advice from the Department for Work and Pensions? These people are going to have major problems mounting an appeal because they will have no idea what to appeal against. As Judge Robert Martin said:
To make matters worse, the Bill is being proposed at a time when the Government are carrying out one of the most substantial reforms of the welfare system in a generation. This will almost certainly result in a huge number of mistakes and a similar increase in the need for appeals.
Surely our overriding duty in this House is to protect those people who are unable to protect themselves. The consequences of wrong decisions for disability benefit claimants can be catastrophic. This amendment would allow some of the most vulnerable people in our society to fight for the benefits to which they are entitled. I commend it to the House, and I beg to move.
Lord Newton of Braintree: My Lords, my name is to the amendment, along with those of the noble Lords, Lord Pannick and Lord Bach. I intervene at this early stage partly for that reason and partly to support many of the points that my noble friend made without reiterating them.
We need to bear in mind that this proposed change to legal aid does not take place in a vacuum. It takes place at a time of great actual or potential turbulence-or at least change-in the benefits system, arising to some small extent in respect of housing from the Localism Act, and to a much greater extent from the Welfare Reform Bill. I do not want anyone to think that I am opposed to the Welfare Reform Bill. I had some reservations about parts of it but, like every other group in the House, I support its basic thrust. However, we ought to be absolutely clear that you
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There are many such changes. There is the housing benefit cap. There is the benefit cap, which is probably less serious in this context because fewer people are supposed to be affected. A huge number of disabled people and carers will be affected. In the area of housing benefit, many tenants will be affected by what is known as the spare-bedroom tax. These are not trivial numbers. The DWP's estimate, given to me by the Minister, of the number of people affected by the housing benefit cap-the bedroom tax, if I may use a tendentious phrase-is 670,000. The number of people potentially affected by changes to the disability and carer allowances in the Welfare Reform Bill is of the same order if the figures I remember being given in Committee are right. Therefore, we are talking about potentially well over a million people.
If I was still an MP, I would be a bit worried. That is an average of around 2,000 people per constituency. They will all have relatives, some of whom will be affected and many others of whom will be upset by what is happening or could happen to their relatives. They will not all have a great grievance but there will enough of them who do. They will be bewildered and in some cases frightened, as we know from the e-mails we all received over the Welfare Reform Bill. They will not know where to turn but they will know that they need advice and help from somewhere. Let us not underestimate the scale of the impact of this change.
My second point, in what I hope will not be too long a speech, is: does it matter? There has been something of a flavour to Ministers' comments that the only things that matter enough in this area to warrant a continuation of legal aid are those that threaten life or liberty-for example, orders under the Mental Health Act-or highly specialised areas such as children's special educational needs and several other children's issues. I pay tribute to the Government for the fact that they have recognised some of those points. However, there has been a slight flavour that welfare rights and welfare benefits generally did not quite rank in this league. There has been a sort of flavour that it is only a bit of money after all, although I do not think that anybody has actually said it. However, no one who has been Secretary of State for Social Security would harbour the illusion that the £10 or £20 a week that people could lose-for example, under the housing benefit cap if they have a spare room and do not move-is a trivial sum. It may not be a great amount to all of us in this House, but there are a lot of people in this country to whom £10 or £20 a week makes a great difference to whether they can heat or whether they can eat. I do not want to exaggerate this matter or get emotional about it, but some people will be frightened at being hit by some aspects of these changes and they will need somewhere to turn to.
I wish to quote a couple of points from the letter that the noble Lord, Lord Pannick, wrote on behalf of all four of us. I stress that the letter was written on behalf of all four of us. I had agreed it; I just was not present to sign it. It states:
"81% of all cases heard in the First Tier Tribunals relating to benefits are for benefits relating to disability ... in 2009/10 an appellant at the First Tier Tribunal that received advice before going to the Tribunal was 78% more likely to win their appeal than an unadvised appellant".
Then there is another point to which I may come back in a moment: namely, that nobody believes that the savings the Government have claimed for these proposals will actually be realised. The CABs, the Law Society and the report produced by King's College all reckon that a lot of theses savings are illusory and that the knock-on effects on other government departments will be substantial but have so far been completely unquantified.
My third main point is about the effect of all this on the places where people can and do turn for both direct and indirect help: namely, the citizens advice bureaux, which are universally admired and supported, and are valued in this House and the other place, and a whole variety of law centres and other big society advisory services throughout the country. The CABs have just published a report which I hope everyone will read. I do not wish to quote the whole of it, just a bit from the introduction and the conclusion. In between there are a lot of case studies. The introduction states:
"Specialist advice has become a core part of the CAB service. Our frontline caseworkers and managers have told us that the impact of the proposed changes to legal aid on specialist services will be devastating. The overwhelming majority say that it will be impossible to provide a specialist service, whilst over half say that it may be impossible to continue providing any advice service at all ... And it's not just the Citizens Advice service that will be affected - law centres, independent advice agencies and some solicitors' firms will find it difficult to continue to operate".
I shall conclude quickly, but I should like to make just one other point. The Government have, in a way, acknowledged that there may be a need to support other advice services, but we still have no real idea how that is to be done. We have had a promise of a one-off £20 million, which is not a lot in this context. A review is going on which has not yet been completed and whose results we do not know. We have no serious commitment from the Government as to what they will do when they have the results. The nearest we have to that is a comment on the King's College study to which I referred, which states:
"We are committed to the not for profit sector and have committed £20m this year to improve the efficiency and effectiveness of advice services, but this does not mean that the Government will meet all demand in the future".
I would not want to back off from supporting the amendment on the basis of a vague promise that something along those lines might be done. It is a classic case where we are entitled to ask another place to take another look, and that is what I hope we will do.
Lord Carlile of Berriew: My Lords, in the background to the undoubted need to cut legal aid for economic reasons, it is undoubtedly fair to take as a starting
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"As with other areas of law, funding for judicial review will continue to be available for benefits cases. Such cases are likely to occur where there are delays in making decisions on applications for benefits, or delays in making payments, or whether there has been suspension of benefits by authorities pending investigation".
None of those examples of judicial review is based on the merits of the case in question; and the problem with judicial review is just that. Where legal aid is available for judicial review in benefits cases, it will not avail a single potential litigant when the decision taken is simply wrong, the evidence has been mis-analysed and misapplied, and the factual decision is unsustainable. That is not what judicial review is for.
Bearing that in mind, I have had to think hard about the balance between wishing to help the Government to fulfil their aims to cut legal aid in a realistic way and those determinations of principle and conscience that some of us have held to for quite a long time. I applaud the measured and economical way in which my noble friend Lady Doocey moved the amendment. She has great experience in dealing with these issues and enormous knowledge of them. Over decades, she and I, and a number of others on these Benches, have attended debate after debate within our party in which the sort of principles that she espoused have been affirmed, reaffirmed and re-reaffirmed.
One of the underlying principles behind those principles is that legal aid advice should be available to protect the most vulnerable, who find themselves at a considerable disadvantage, without equality of arms with the state. As has been said, a very high proportion of people who currently obtain legal aid in relation to welfare benefits suffer from disability. I do not suggest for one moment, because it is not the fact, that all people who suffer from disability are less able to represent themselves. Sometimes, however, that is true, and that, perhaps relatively small, cohort of disabled people are the very most vulnerable in our society. I am seriously troubled that, for what may not be a real economy, we intend to remove legal aid from that group.
I would be perfectly happy-well, perhaps not perfectly, but getting towards reasonably happy-if I were convinced that the new advice services fund, which has apparently been announced as available from early March to support free advice organisations that have been affected by reductions in public spending, would have sufficient resources for a sufficiently long period for those organisations to continue to provide that advice. I know that the noble and learned Lord, Lord Goldsmith, has spoken on this subject in a number of our debates in Committee and on Report.
I hope that this may be one of those debates-perhaps a rare one-in which the Minister will respond to the debate and that, if the Question is put, the House will consider the merits of the debate and be prepared to be flexible in dealing with the arguments put. If the Minister were to tell the House that enough money will be made available on a fairly long-term basis to
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My conclusion is that the money to be made available will not mitigate against the cuts in legal aid and still leave citizens advice bureaux and other advice centres extremely financially vulnerable. At the end of the day, will we make any savings in this context in any event? If people cannot obtain legal aid and have to go through the stress of presenting their own cases, or if they are unable to present their own cases and end up in the hands of mental health services or other local authority services which cost a great deal of money, it is very likely that there will be a negative impact on public finance from the removal of legal aid in this area, despite the continued funding for judicial review.
My present position is to support my noble friend Lady Doocey, particularly having heard the speech of my noble friend Lord Newton, who has great experience in these matters at a very senior level, unless we hear from the Government Front Bench that there is significant movement on this issue.
Lord Howarth of Newport: My Lords, we have heard admirable and powerful speeches. The noble Lord, Lord Newton, said that he was not going to get emotional, but his speech was moving as well as entirely persuasive.
Aside from the constitutional case, the moral and practical cases for keeping welfare benefits within scope of legal aid are overwhelming. We are moving into a period of major change in the social security system. A situation in which errors in the administration of the benefits system are likely to increase and, at the same time, the possibility of redress is to be reduced cannot be one that we can look forward to with any satisfaction or confidence. It is liable to create confusion, misery, damage, alienation and additional cost. There are going to be severe reductions in benefits and at the same time there will be the move towards the introduction and implementation of universal credit, which Ministers have been pleased to tell us represents the greatest transformation in the welfare system since Beveridge. I have seen very varying estimates of the number of people who may be affected by this between 2013 and 2017 but it could, I am told, be up 19 million.
The CPAG handbook, which sets out the regulations and the case law, consists of 1,620 pages and is going to have to be almost entirely rewritten. It will be a period in which there will be immense pressures on people in need and on decision-takers. Those decision-takers will typically be junior officials, and it is no particular criticism of them to anticipate that the error rate in their decision-taking will rise. It always has risen with significant changes in the benefits system. Therefore, the need for advice, assistance and representation is going to be acute. It will be a period
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Very sensitive and very controversial decisions are going to be taken as a new body of case law is developed. Let us consider the situation of disabled children. A child who is categorised as disabled will see their weekly benefit fall from £56 to £27 a week. On the other hand, a child who is categorised as severely disabled will see a modest increase in their benefit from £74 to £76 a week. Depending on which side of that definitional line the child falls, there will be a difference of £49 a week in household income, and that is an enormously important difference. There are going to be numerous households and families who are bitterly disappointed and, indeed, desperate in consequence of decisions that are taken in this regard. The tribunals will make these decisions, but surely it is wrong for parents not to have legal advice to enable them to decide whether they ought to challenge such decisions.
Alternatively, let us take the case of jobseekers. A new rule is to be introduced that if a jobseeker fails "for no good reason" to apply for or accept a particular placement, he or she may be sanctioned by the loss of universal credit for up to three years. That is a draconian sanction. In such a circumstance, the decision-maker and the claimant may have very different views about whether the reason the placement was declined was good or not. Can it be right to deny people three years-worth of benefit and, at the same time, deny them legal advice to enable them to judge whether they should contest that decision? There are other instances that I could give arising out of the prospective changes but I want to be brief.
I think that withdrawing legal aid from people in such situations is excessively harsh; indeed, it is reckless. A better thrust of reform would be to improve the quality of decision-taking. I just point out that the availability of legal aid enables well founded challenges to be made where there may be systemic flaws in the system, and it is for the benefit of the Government and of the administration of the system that people should be able to make these claims.
The amendment moved by the noble Baroness, Lady Doocey, is a good one, I think, but I prefer the amendment that I look forward to my noble friend Lord Bach moving, which would take things rather further. I do not know whether Amendment 101 in the name of the noble Lord, Lord Shipley, will be moved, but I do not support it. It would allow the Ministry of Justice to provide discretionary funding here and there. I think that amendment is unnecessary because, as I understand it, the department already has such discretion, and, secondly, it is insufficient because we simply cannot rely on the use of such discretionary funding to ensure that people have the help that they should have.
Lord Alton of Liverpool: My Lords, I am a signatory to Amendment 12. I am very happy to support the sentiments expressed by the noble Lord, Lord Howarth, and I support what the amendment says about extending this to the Second-tier Tribunals as well as the First-tier Tribunals, which are mentioned in the amendment by the noble Baroness, Lady Doocey. We have known each other longer than either of us would care to recall. I know that this is not some passing fancy on her part. She has had a lifelong devotion to the cause of disabled people. She spoke with great eloquence and conviction in Committee and she has been courageously persistent in our proceedings to raise this matter today. In the long and distant past, I worked for five years with children with special needs. Many of us in the House-the noble Lord, Lord Howarth, is one-have had personal experience of people with disability and know, as one noble Lord said earlier, some of the most vulnerable people in society. Surely how we protect and treat them is a test of how civilised we are as people.
Four out of five cases heard in the First-tier Tribunals relate to people who are disabled. Despite what the noble Lord, Lord Carlile, said, he is right to say that disabled people are as capable as anyone else in dealing with their own affairs, but 78 per cent of those receiving advice before going to a tribunal were more likely to win their appeal than those who did not. Clearly, having professional, legal advice pays off. Who would we take that advice away from; who would we take this professional care and help away from? Disabled people will be left to their own devices. Inevitably, that will lead to more social exclusion and innumerable negative results.
Secondly, we have been told again and again that we have to do these things for economic reasons, but I hope that, when the Minister replies, he will respond to the points made by the noble Lord, Lord Carlile, about the so-called economic savings that might be brought about by these measures. As the noble Lord, Lord Newton, has told us in his remarks, it is highly questionable. There is empirical research-an academic study-by King's College. In its report, United Consequences, it flatly repudiates and rejects the idea that savings will be made. Citizens Advice says that every pound spent on welfare benefits potentially saves the state £8.80. I certainly would want to hear from the Minister that he repudiates those findings before the House reaches a conclusion on these questions; what analysis he has made of those reports; and how, therefore, we can justify doing this on purely economic, austerity measure-based arguments of the kind that we have heard so much about during our proceedings.
The third point, which was touched on by the noble Lord, Lord Newton, and to which others have referred, is about who will pick up the pieces subsequently. Many of us have received a copy of the Citizens Advice report, Out of Scope, Out of Mind-Who Really Loses from Legal Aid Reform. That states:
"However, it is also clear that they would not have achieved these positive outcomes on their own. If they could be empowered to help themselves without specialist advice, casework and support from legal aid, then every CAB would rejoice, but that is not the reality. It will be a massive failure in the justice system if they are abandoned".
It will be a massive failure in the justice system if they are abandoned. That is what we are being asked to vote on today and I hope that the House will support the noble Baroness, Lady Doocey, and the noble Lord, Lord Bach, when we decide on these matters.
Baroness Howe of Idlicote: My Lords, I agree with other speakers that during the passage of the Bill we have heard many heart-warming speeches on the importance and the practical benefits of helping people with a disability. I very much support what the noble Baroness, Lady Doocey, and others said in this debate. The Bill will lead to something like 75,000 children and young people aged under 25-it is the raising of the age level that my amendment addresses-losing access to legal aid each year.
Research by JustRights shows that as many as 80 per cent of these young people, as well as being vulnerable on account of their age, fall into one or more additional categories of vulnerability, such as being a lone parent, a victim of crime, or having a disability or mental health problem. How are these young people expected to cope when they have problems if they cannot obtain legal aid? They will not have families to back them up and give them advice, which other youngsters at least may have.
Amendment 21 has modest aims. It seeks to protect legal aid only for the most vulnerable of these young people, including those with a disability, those who have been in care and those who have been victims of trafficking-which, alas, is a growing trade. It is hard to think of groups of people who are more vulnerable than they. Of course, I wish we could retain legal aid for all young people. Youngsters are rarely equipped with the knowledge, skills and legal capacity to resolve their problems without expert advice. Therefore, it will be important that we do our best for this group. This applies particularly to vulnerable young people who are more prone to experiencing multiple and severe problems and who are therefore far more likely to require specialist legal intervention to prevent their situation escalating and spiralling out of control.
It is vital that all vulnerable groups listed in the amendment are protected. However, I will say a few words about young people with a disability. Amendment 21 would protect young people with a physical or mental health impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. We know that disabled
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JustRights gave me a case study about which I will tell noble Lords. Chantelle was 18 when she came to a law centre for help. She had been born with cerebral palsy and had great difficulty walking. Her parents had to drive her to college. They were worried that they could not afford to buy her a car and that she would be unable to attend university. They had applied for disability living allowance for Chantelle, but that had been refused. The law centre helped Chantelle to appeal, gathering evidence from her school and her hospital specialist and representing her at the benefit tribunal hearing. Chantelle was successful in her appeal and was awarded lower rate care and higher rate mobility for DLA. She swapped her mobility payment for a Motability car and passed her driving test. She now has a place at university and will be able to drive herself there each day. That will make a huge difference to her independence and quality of life, but think also of the extra sum of money it will save the rest of us if she is able to qualify and earn her own living.
What will the consequences be for these young people if they cannot get advice? Research by Youth Access has shown that vulnerable youngsters are significantly more likely than the population as a whole to experience stress, violence and homelessness if they do not manage to get good legal advice at an early stage. It has calculated that each year 750,000 young people aged between 16 and 24 become mentally or physically ill as a result of their unresolved social welfare problems. That is costing the NHS at least £250 million a year, much of which could be avoided if they had received better support.
It cannot make any sense to deny vulnerable young people access to the legal advice they desperately need to resolve their problems and turn their lives around, so I very much hope that everyone will support my amendment, Amendment 21, when we come to it, and the other amendments in this group, all of which make very important points. Above all, I hope the Minister and the Government will have listened and will take action as a result.
Baroness Benjamin: My Lords, I have put my name to Amendment 46, which would maintain legal aid for all children. I thank the other noble Lords on all sides of the House for putting their names to this amendment. I have also put my name to Amendment 21, along with the noble Baroness, Lady Howe, who has spoken eloquently and passionately, as always.
To illustrate the reasons why I have put my name to these amendments, I shall give three stories, which are supported by the Children's Society, that were told by young people about their experiences of attending court. They are about migrant children who had to go through immigration cases.
"I felt very scared, terrified in fact. It was such an official atmosphere, and I felt small and vulnerable. You know that decisions that affect the rest of your life are made in this one morning, and I just felt so scared knowing that".
"I had a solicitor and she had explained what was going to happen before we went, but even that could not have really prepared me. I was lucky because I had a solicitor. I had a barrister at court who was able to argue for me. Without him I don't know how I would have coped".
"The Home Office person made me feel scared and the whole time kept on saying I was lying and that I should return home; this made me feel upset and angry as I knew that I was telling the truth. My barrister was great though and kept on arguing back about my case".
This convinces me that a different approach is needed when it comes to children because children are fundamentally different from adults. They generally have a lesser capacity to make complex decisions that will affect their future and will not always be able to understand the full consequences of their decisions and actions. Equally they do not have the capacity to represent themselves effectively in legal proceedings or to engage in detailed evidence gathering to support their case.
"Children, by virtue of their age and capacity, will not be able to present their case effectively in the majority of proceedings. Failure to afford children effective access to justice in cases engaging their civil rights and obligations will be in violation of Article 6 ECHR. It will also-even in immigration cases that do not benefit from the protections of Article 6-prevent them from being afforded their substantive rights and an effective domestic remedy for breaches of those rights".
However, in reality the Bill will remove legal aid from 6,000 civil justice cases in children's names each year, compared with provision in 2009-10. In a letter to the Times, the top six UK children's charities pleaded with the Government not to abandon these 6,000 children, who will have no other choice but to represent themselves in court, with no one to protect them and manoeuvre them through the legal system. The Government have not explained why legal aid is being kept for 35,000 children a year but is being withdrawn from the equivalent of 6,000 children a year.
by their parents and, most recently, for some clinical negligence cases, legal aid is not to be provided if they are party to legal proceedings generally: for example, in immigration, welfare, housing, education and the majority of clinical negligence cases. Surely in our society it is unacceptable that a child involved in legal proceedings, who will have no financial resources to pay for their legal advice and representation, will be expected to present their own case in an adult legal system as a litigant in person-something many adults would struggle to do effectively.
It is also worth highlighting that legal aid is already restricted to those who cannot pay for legal assistance by any other means and therefore provides a safety net to ensure protection and equality for the vulnerable and disadvantaged. Ending legal aid for whole areas of law will affect the poorest and most vulnerable and marginalised families. Many children are likely to suffer as a knock-on effect of limited access to justice for their parents and carers. This will be particularly important in areas such as housing, welfare, immigration and debt, where children are affected by their parents' lack of financial resources and ability to navigate the legal system, which may be hindered by a number of factors, such as parental disability, language barriers, poverty and mental health issues.
The Justice Minister has stated that there will be a safety net in the form of the exceptional funding scheme. This would come into play; if not, giving legal aid would breach individual rights under the Human Rights Act 1998 or European Union law. However, the Government have not published details of the full scope of the new scheme or how it will function. I would be grateful if the Minister could enlighten us as to how this will work, to put our minds at rest.
The impact assessment states that the Government anticipate that only 5 per cent of excluded cases for education will gain exceptional funding, and no cases for immigration will. The Children's Society has estimated that just over 4,000 cases involving under-18s will be excluded from scope and will not receive exceptional funding. If the Government intend to process significant numbers of cases through the exceptional funding route, new arrangements are urgently needed to ensure that this does not result in a slower or more costly process or, worse still, that these cases will simply not receive legal aid funding. This would be detrimental to children and young people.
The Minister stated very strongly that in civil cases claims brought in the name of a child are usually conducted by their parents acting as the child's litigation friend rather than by the child themselves. He said:
However, here are some very clear illustrations of how that is not always the case. For example, a young person-let us call her B-was sent to the UK when she was 12 years old to stay with her uncle. Almost as soon as she had arrived, the uncle sexually abused her, which continued until she ran away from home when she was still a teenager. During this time she attended school and achieved good GCSE results. After running away, she reported her uncle to the police and he was arrested. He was convicted on several counts of rape and sentenced to five years.
B realised that she had no immigration status only when she tried to apply to university to study a course in social work. She approached several lawyers for advice and some offered to take on her case but she could not afford the thousands of pounds in fees. Eventually, she found a legal aid representative who
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The young woman now works for a charity and mentors young people in difficulty. A representative described her as a very determined and inspirational young woman who has applied to do an access course that will enable her to go to university next year where she intends to study to become a social worker. What a happy ending.
In another case, child G came to the UK with his mother when he was 12 years old. His mother abandoned him and, eventually, after a year, he came into contact with social services and, later, the Children's Society. During that year he was homeless and forced into child labour. The Children's Society referred him to a solicitor who found that he had no grounds for asylum and lodged a human rights application for leave to remain. Within a year, he was granted indefinite leave to remain. His solicitor believes that G's exceptional circumstances mean that it is in his best interest to apply for naturalisation and has applied for legal aid funding to do this. Under the provisions he would not qualify for legal aid.
These stories illustrate the risk of harm to which separated or unaccompanied migrant children are all too often exposed. Although asylum cases will be covered, other immigration matters involving children seeking protection will not. Legal aid cuts are likely to affect 2,500 children in the same situation as B. They will no longer have legal aid to resolve their immigration issues to remain in the UK or to prevent them from being forcibly removed. These cases are likely to involve victims of trafficking, abuse and exploitation. Many may be made further vulnerable to exploitation.
Many children come to the UK at a young age-often due to the illness or death of a parent-and spend their formative years here. Many do not realise until they are older that they have an uncertain immigration status and that vital protection is provided under human rights law. That can ensure that these vulnerable young people are not forced to leave their home in the UK to return to a country that they do not know and where they may have no family or support network left. However, there is more. There will be knock-on costs if children cannot sort out their legal problems fairly. Society and the taxpayer will suffer unpredictable costs that could have been avoided.
A 2011 study by Youth Access, The Outcomes and Impact Of Youth Advice-the Evidence, found evidence of higher costs for the NHS, the criminal justice system, the welfare system and local authorities. The Local Government Association is particularly concerned about additional costs related to care leavers and former unaccompanied minors. The Department for Communities and Local Government has announced that any higher costs to local authorities arising from cuts to legal aid will be charged back to the Ministry of Justice. That was taken from a Written Answer made by the noble Baroness, Lady Hanham, on 1 November 2011. I hope that my noble friend Lady Eaton, when she speaks, will give more details on the costs to the country. Surely it is good governance and
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The increase in the number of litigants in person will put pressure on an already overstretched court system. The removal of legal aid from many family cases will have the effect of removing access to justice for many people. The exception in the proposals-
Baroness Benjamin: I would like to ask my noble friend the Minister the following questions. Why is legal aid being withdrawn for advice in cases covering 6,000 children a year who would qualify under the current rules? Will he explain why legal aid is being kept for 35,000 children a year but is being withdrawn from the equivalent of 6,000 children a year? And how, when and where will professional legal provision, not just advice from social workers or the use of community legal advice helplines, be made to ensure that vulnerable children and young people are not left to suffer even more, though no fault of their own? If my noble friend does not have the answers to my questions now, will he have them before Third Reading? Can he give me an assurance that we will have a meeting to discuss what the Government have in mind to replace the protection that will be given to these children? Also, will he undertake a series of meetings to keep myself and those interested informed? Will he agree to make sure that this is a live issue that is retuned to at Third Reading? Finally, will he give us a timeframe and report back to us on when all this will happen?
We cannot abandon children who are in need. It cannot be morally right for us to neglect any child who cries out to us in need. I urge my noble friend to consider the content of these amendments and to respond favourably.
Lord Low of Dalston: My Lords, I am not sure why we are discussing all these amendments in the same group as they seem to deal with rather different issues. I should like to take the House back to Amendments 11 and 12 which were introduced at the beginning of the debate. I am sorry that I was not able to take part in the Committee stage of the Bill, but I want to give my support to Amendments 11 and 12, which deal with the removal of welfare benefit cases from the scope of legal aid. Amendment 11 deals with advice and assistance for reviews and appeals to the First-tier Tribunal and Amendment 12 deals with advice and assistance at Second-tier Tribunals in the Court of Appeal and the Supreme Court, plus representation. I will do so briefly as we have already heard from a heavyweight team of speakers who between them have deployed all the main arguments in favour of the amendments with as much passion, power and eloquence as one could expect. However, there are one or two additional points that I should like to make.
The proposal to remove legal aid for welfare benefit cases represents a triple whammy for disabled people. I do not wish to be unduly disabled-centric about this. The proposal to withdraw legal aid for challenges to welfare benefit decisions affects benefit claimants and recipients generally, but as the noble Lord, Lord Newton, mentioned when quoting from the letter of my noble friend Lord Pannick, some 81 per cent of all benefit cases heard in the First-tier Tribunal are for benefits related to disability, so your Lordships can see why this matter is of such concern to disabled people.
This represents a triple whammy for the following reasons, and noble Lords will not be surprised to hear that there are three of them. First, disabled people are disproportionately out of work. The gap between disabled and non-disabled people's employment rates has shrunk over the past 10 years or so, but disabled people are still some 60 per cent less likely to be in work than non-disabled people. Secondly, benefits for disabled people are set to be reduced, as the noble Lord, Lord Newton, told us, on a dramatic scale as a result of the Welfare Reform Act. Disability Rights UK puts the figure at at least £3.5 billion. The Joint Committee on Human Rights in its report, published last Thursday on the right of disabled people to independent living, in the context of the UN Convention on the Rights of Persons with Disabilities found that reforms to benefits and services risk leaving disabled people without the support that they need to live independently and that restrictions in local authority eligibility criteria for social care support, the replacement of DLA with personal independence payment, the closure of the independent living fund and changes to housing benefit risk interacting in a particularly harmful way for disabled people. So there is less work, much less benefit support and now no legal aid to challenge the mistakes that are bound to be made in such a colossal re-engineering of the benefits system. There is little wonder that it is described as a triple whammy.
People fear that the cumulative impact of these changes will force them out of their homes and local communities and into residential care. In the Government's legal aid consultation paper, which prefigured this legislation, they stated that legal help for community care should be retained on the ground that,
Surely, that rationale applies with equal force to disability benefits. The Joint Committee concluded that there is a risk of retrogression in respect of the UK's obligations under Article 19 of the UN convention-the article on independent living-as a result of the cumulative impact of spending cuts and reforms. It argued that this risks breach of Article 19. If the Government do not look out, with these provisions on legal aid they also risk breaching Article 13 on access to justice, which requires that:
Disabled people are twice as likely as non-disabled people to live in poverty. Welfare law is incredibly complex, as your Lordships know. Few of us could credibly claim to understand it. There is no hope of people on benefit, who would count as socially excluded
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The views of the Joint Committee on Human Rights and its international obligations should give the Government pause in going down this track of withdrawing legal aid from those in need of taking up welfare benefit cases.
Baroness Lister of Burtersett: I strongly support Amendments 21 and 46, which have been eloquently spoken to, particularly with regard to children in immigration cases. I would refer to the very moving briefing that I quoted in Committee from Refugee Youth. I shall focus my brief remarks now, however, on Amendments 11 and 12.
Based on the powerful speeches from other noble Lords, on my own experience over many years in the Child Poverty Action Group, and on the case made to us by a range of voluntary organisations, I can only concur with Citizens Advice when it says that the Government's approach will leave benefit claimants out to dry when they challenge decisions over correct entitlement. The consequences of wrong decisions, especially for disability benefit claimants, can be devastating.
The Minister said in Committee that his best point was that welfare benefits are being reformed to be simpler. Simplification has long been the holy grail of the social security system, and I hope that we get slightly closer to that holy grail this time. However, we cannot leave benefit claimants out to dry while we wait to find out whether we have succeeded. The noble Lord, Lord Newton, pulled the rug from under the Minister's feet when he pointed out how important legal aid will be during the transition period.
I will not say everything that I planned to say but move straight to Amendment 12, and I ask for the Minister's patience. In Committee, I asked him a question which he did not answer, so on the basis of better luck this time, I shall ask it again. I said:
"Given that an appeal to the Upper Tribunal has to be on a point of law; given the complexities of that law and how much is at stake in terms of the livelihoods of some of the most disadvantaged members of our society; given that, as Justice points out, even if the Supreme Court had agreed to a case because of its complexity and its importance, legal aid would not be available because the Government say that it is not complex or important enough; and given that the savings are so minuscule that the Ministry of Justice does not even normally record them"-
The Minister did not justify it to the Committee-I suspect because he cannot justify it. If he can, will he please try to do so today? Otherwise, I hope that noble Lords will support Amendment 12 as well as Amendment 11.
Baroness Eaton: My Lords, I speak in support of Amendment 46. As noble Lords know, this amendment seeks to protect access to legal advice, and when necessary to legal representation at tribunals and in court for all children under the age of 18. It seeks to maintain the system as it is at present, working reasonably well at low cost and protecting the rights of the most vulnerable children in the land. I strongly support the Government's determination to drive down the deficit and attack waste in public expenditure wherever it is found. However, I also strongly support policies that do not create mountains of red tape and do not push unbudgeted costs on to local authorities.
It is because we must do everything possible to reduce the deficit that I cannot support the proposals to remove legal aid from 6,000 children every year, as would happen if the Bill passed without amendment. That would cause enormous knock-on costs to the public purse that will far outweigh the £6 million to £7 million that the Ministry of Justice believes it can save from its legal aid budget. As a matter of principle and conscience, I cannot support a proposal that will see a child go into the courtroom alone to argue his or her case against a barrister paid for by the taxpayer. This is what will happen in hundreds of cases every year where children find that they must contest decisions about their lives taken by the Home Office, education authorities and social housing providers.
By removing legal aid for welfare benefits advice to children in their own names, the Ministry of Justice believes that it will save £260,000 a year. This is at a time when there has been a complete failure to collect £1.5 billion in fines to be paid by criminals.
There can be no doubt that if a child has suffered harm because of a decision made by a public authority, and if the child is unable to challenge that decision, there will be consequences and damage to that child's life which the rest of society and the taxpayer will ultimately pay for. We will reap what we sow.
We should remember that the ministry's own impact assessments, published in support of the Bill, admitted that it created a risk of "increased criminality" and increased costs to other government departments and local authorities. When the Justice Select Committee in the other place asked the ministry to quantify these unintended costs it received a reply that should give us all pause for thought. The ministry's response to the consultation on the Bill says:
"The lack of a robust evidence base means that we are unable to draw conclusions as to whether wider economic and social costs are likely to result from the programme of reform or to estimate their size",
The Bill asks us to support spending reductions that even its authors cannot say will ever be achieved. The legal aid budget reductions have the extremely unusual distinction of making some of the most hardened supporters of spending cuts feel very uneasy. I put myself in that category. The noble Lord, Lord Tebbit, says he fears the cuts to legal aid for children in medical negligence cases go too far. The chief executive of the TaxPayers' Alliance, Mr Matthew Elliot, says:
I would like to tell noble Lords about some of the detail as it will affect local authorities and children in immigration cases. Last year there were 2,490 immigration cases involving children in their own right. These will mainly be children who are not living with their parents, sometimes after escaping difficult family circumstances, or having been victims of trafficking. On Report in the other place, the Justice Minister said:
"Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support".-[Official Report, Commons, 31/10/11; col. 689.]
"Transferring responsibility to councils in this manner, without consideration of the funding implications and at a time when they are already processing reductions in funding for children's services, will place resources under considerable pressure. This will have a particularly detrimental impact on the most vulnerable children who make up the largest portion of children placed in emergency or short-term care".
The example which the Local Government Association gives of children who will be affected in this way are children who have been trafficked into the UK from other EU states, who cannot claim asylum. It is hard to think of a more desperate or vulnerable group of children. The Department for Communities and Local Government knows very well that there will be extra costs to local authority social services departments if legal aid is withdrawn from these children.
I would like to ask the Minister this evening to inform the House about the precise level of costs that will be borne by local authority social services departments, which they will then claim back from his department via the DCLG in a tangle of expensive, time-consuming and wholly avoidable red tape.
My question to the Minister and noble Lords on all sides is: how is it that we are keeping legal aid for about 35,000 cases every year involving children in their own right, but withdrawing it from 6,000 children with civil justice problems? They will all be very similar children-trusting, scared, brave and deserving of our protection. The Government have gone a long way towards maintaining civil legal aid for most children; they need move only a few steps further to protect legal aid for all of them.
The Lord Bishop of Exeter: My Lords, I speak as the father of a daughter with Down's syndrome, who over the years has had to face complex welfare benefit issues. My own experience has taught me that it is not only the severely disabled for whom welfare support is complex-it can be even more so for those who suffer from a range of disabilities, each of which may in itself be classed as mild. There have been times when my
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My daughter, though, is one of the fortunate ones. She comes from a supportive family, has reasonably articulate parents and a mother who has used both her personal and professional expertise to support advocacy networks and provide advocacy support for others. What of those who do not have such resources available to them? Many of them depend for legal and procedural advice on not-for-profit agencies such as Citizens Advice. Such organisations provide essential help to ensure that disabled people have access to the benefits and support to which they are entitled, but these agencies also need support in the vital work that they do.
What Amendments 11 and 12 seek to achieve is important in providing the safety net that will enable such access and support to continue. If either were to be accepted, it would offer provisions much narrower in scope than those in existing legislation but would ensure that the resources were there for those who face both disability and, additionally, the kind of complex welfare benefits issues that arise from their disability, in order to be able to challenge decisions that adversely affected them through review, supersession or appeal.
As the noble Baroness, Lady Doocey, has pointed out, we are at a time of unprecedented upheaval in the welfare system; I see that day to day for myself. I do not criticise that; in fact I am in favour of much of that change and I understand it. Amid such wholesale change, though, with its attendant impact on the lives of some of the most vulnerable in our society, safeguarding the minimal access to legal aid in these circumstances is more important and necessary, rather than less.
I turn to Amendments 21 and 46, both of which I support. I do not add much to the weight of words that we have already heard in support of them, but I want to return to the Minister's assurance, which has already been quoted, that as far as possible the intention of the Government is that where children are involved, legal aid will still be provided. We have also heard that on the basis of the Legal Services Commission's data for 2009-10, around 6,000 children under 18 will no longer receive legal aid, including cases regarding immigration, welfare and education.
In that context, I return to the assurance offered by the Government that, for cases that would be excluded from the scope of legal aid, there would be a safety net in the form of the exceptional funding scheme. However, that in itself raises a number of questions. How adequately will "exceptional" be defined? Will it be driven by need or by available funding? Will there be rights of appeal? What will its real impact be?
We have heard how the Children's Society estimates that just over 4,000 cases for under-18s will be excluded from scope and not receive exceptional funding, yet, according to the Government's own estimates, ensuring that all children under 18 had access to legal help and, crucially, representation would cost just £10 million-a relatively small cost for a very great gain. However, if legal aid is not to be available in these circumstances, where exactly are alternative sources of funding to come from?
I am very grateful that several people have made reference in this debate to the tremendous work undertaken by the Children's Society and the evidence that it has put forward in support of Amendments 21 and 46. For 120 years, the Children's Society has been deeply concerned to make childhood better for all children through direct action to prevent their feeling excluded, isolated or abandoned. Rather, its aim is a world and society in which all children and young people are respected, valued and heard. If you are a child with a physical or mental disability, a child who has been involved in trafficking, or a child who has been abused or neglected by carers, your experience of childhood is not one of being respected, valued and heard. However, as such a child, you might rightly expect that the law of the land in which you find yourself will ensure that such respect, valuing and listening will be available to you in any legal process, particularly since many of the scenarios to which these amendments refer can be complex and intimidating, even to those for whom resource, support and advice are readily to hand.
Lord Wigley: My Lords, in Committee many speeches stressed the importance of securing accessibility to our justice system for everyone. However, the Bill, as it still stands, would effectively abandon many vulnerable individuals to go it alone without the support that is surely the hallmark of a decent society.
I support Amendment 21, outlined by the noble Baroness, Lady Howe, which would bring civil legal services for vulnerable young people back within the scope of legal aid. These vulnerable young people would include those younger than 25 years of age who are disabled, those who were formerly in care and those who are victims of trafficking. It would retain support for those who have suffered neglect or trauma and for the most disadvantaged. The amendment would also bring private family proceedings back within the scope of legal aid, as well as proceedings relating to Section 140 of Learning and Skills Act, which concerns assessments of learning difficulties-something of importance to me as patron of Mencap Wales.
I also support Amendment 11, moved by the noble Baroness, Lady Doocey, which would retain legal aid for social welfare cases. I thank the noble Baroness for her perseverance in this matter. I hope she will get the support that she deserves. Organisations such as Scope have drawn attention to the fact that the proposed cuts to legal aid will have a disproportionately negative impact on disabled people, since they will find it most difficult to challenge the decisions that affect them. It is frankly perverse to expect individuals with an impairment or disability to be litigants in person or to navigate courts and tribunals without much needed support and expert assistance. These are the people whom the system should pull out all the stops to support. Apart from increasing the timescale of cases and putting further pressure on the already overloaded justice system-there will inevitably be an increase in litigants in person-the reforms will disadvantage those who are already in need of extra care and support. Amendment 11 would retain legal aid for people with
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May I suggest that it is, to say the least, a highly unfortunate coincidence that legal aid should be withdrawn from welfare and benefit cases at the very time when the Government are overhauling the benefit system to introduce universal credit? Denying disabled people the expert advice necessary to help them in challenging inaccurate decisions, which might be made when they are reassessed, is particularly unacceptable. According to the Government's impact assessment, the proposals to remove legal aid from welfare and benefit cases will affect roughly 78,000 disabled people. As the noble Lord, Lord Newton, mentioned a moment ago, current DWP guidance for this area covers 8,690 pages. It is simply unpalatable for people with disabilities to be left to steer their own way in such an intimidating and overwhelming area. I strongly urge the Minister to have regard to the issues that have been discussed today, and to respond positively to the amendments.
Viscount Slim: My Lords, one word has been left out of our discussions-"veteran". I refer to veterans of all ages. I respectfully remind the Minister that there are still disabled veterans from World War 2 and from right the way through until today's campaigns and those that will come. The military covenant lays down that a veteran-man or woman-must be cared for. The right honourable gentleman the Secretary of State for Defence has to make a public report nationally at given times. I see nowhere that legal aid or legal advice is automatically offered or given to a disabled veteran in need. Has the noble Lord's department discussed with the Ministry of Defence how they will handle this and make legal aid and legal advice available to veterans, as required by the military covenant? Is the noble Lord hearing me?
Viscount Slim: Thank you. My question is simply: have there been discussions between the Ministry of Justice and the MoD and a methodology put forward to ensure that free legal aid and advice will be given to disabled veterans where necessary?
Lord Shipley: My Lords, I speak to Amendment 101. As we have heard, this group of amendments relates to two matters: first, ensuring equal access to justice for those who are vulnerable or on low incomes; and, secondly, dealing with the impact of the very fundamental changes made by the Welfare Reform Bill, which will inevitably increase substantially the number of people who need help and who are unable to represent themselves.
Quite separately from these two issues, the cuts already made to CAB budgets and to third-sector advice bodies as a whole have been very high and have caused significant dislocation to their services. The consequence of all this is that, as things stand, there will not be equal access to justice, and yet, for a comparatively small sum in the context of the legal aid bill as a whole, many of the problems could be dealt
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I spoke on this issue in Committee. The danger is that the exclusion of benefits work from legal aid will tie the hands of advisers who are trying to prevent homelessness, for example, for which legal aid may apply, leading to many more unresolved cases filling the courts. The courts will then have more adjourned hearings and will ultimately have to make more possession orders because there is no one to resolve the benefits issue. This will result in higher costs to the taxpayer. The Bill proposes that all benefits work is to be removed from the scope of legal aid except for cases that go to judicial review, yet early intervention to resolve benefits issues often prevents these situations escalating into more serious proceedings, with all the costs involved in that.
Amendment 11, moved by my noble friend Lady Doocey, seeks to retain legal aid help for those facing welfare benefits reviews and appeals at the First-tier Tribunal. It is a relatively low-cost amendment that would address the problem whereby the removal of social welfare advice from the scope of legal aid will have a disproportionate impact on vulnerable people, particularly disabled people.
My Amendment 101 also relates to funding advice and representation, and seeks a solution by giving a power to the Lord Chancellor to add new civil legal services to the scope of the Bill and to make funding available on a permanent basis through the provision of grant in aid, where doing so would reduce knock-on costs or secure equal access to justice.
My primary concern relates to ensuring that there is long-term funding for CABs, law centres and third-sector housing advice centres to help vulnerable clients. Earlier this week, the Chief Secretary to the Treasury said that there would be additional funding in the current spending period and that details would be announced in the Budget. It is essential that advice services are made sustainable in the long term, and I am grateful to the Minister for understanding the financial problems that face the sector and for being willing to seek solutions to the funding issue. We await the outcome, but it should come before we return to the Bill at Third Reading. For those of us who have supported the work of the advice sector and CABs in particular, I hope the Minister will be able in his reply to set our minds at rest regarding securing the necessary resources to finance the sector adequately and maintaining the principle of equal access to justice.
Baroness Grey-Thompson: My Lords, I rise briefly in support of Amendment 11 because I covered the appeal process extensively during our debates on the Welfare Reform Bill. I completely agree with the noble Baroness, Lady Doocey, who is absolutely right to say that the current proposals will represent the most major and life-changing reform to the welfare system. Her amendment offers some protection to ensure that the right people are supported. Both inside and outside
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Lord Goldsmith: My Lords, I raised in Committee the issue of the advice sector and advice agencies, about which the noble Lord, Lord Shipley, has spoken. If one takes stock of where we have got to in this debate, in which there have been many speakers, one sees that everyone from every Bench has said that the Bill will not do and does not provide necessary support in the welfare area. I do not for a moment want to repeat the powerful speeches of the noble Baroness, Lady Doocey, the noble Lord, Lord Newton, or others. The question is not, "Does the Bill need to be amended to deal with welfare benefit in some way?"; the question is, "How should it be amended?".
I therefore want to speak to Amendment 101, which was seductively spoken to by the noble Lord, Lord Shipley, and the exceptional funds that we have been told about and, no doubt, will be told about. The fact in relation to the advice agencies-and I have explained my connection with them-is, as the Minister helpfully told me in a letter that is now in the Library, that the funding given to the not-for-profit sector will be cut by 77 per cent. That represents more than twice-nearly three times-the £20 million that the noble Lord talked about as an addition. The Advice Services Alliance estimates that 800 specialist advisers will be lost from the advice sector as a result. As many noble Lords have said-and from my experience as a lawyer it is true-it is important to bear in mind that the welfare benefit side requires an expertise that most lawyers do not have. It is also another reason why the argument sometimes put forward for the Bill-that it will reduce the fat cats-is completely lost. No cat gets fat on welfare law.
The questions are on whether the vague and hedged promises of some money are sufficient, and whether the amendment of the noble Lord, Lord Shipley, is enough. For three reasons, I respectfully say that it is not. First, it is rather confusing. It divides into two parts. Proposed new subsection (1) mentions the Lord Chancellor having a power, as the noble Lord said. He may make funding available. That is a discretion. As we discussed in Committee, you cannot enforce a discretion; what the Lord Chancellor-or, as I rather mischievously suggested, the Chancellor of the Exchequer-decides to do determines what happens under that subsection. We have a new subsection proposed which states:
and then specifies certain things. There are two problems with that. First, it appears to conflict with the first subsection, which identifies a discretion. Indeed, if you have to identify the hierarchy of the subsections, the first appears to be the most important, because proposed new subsection (2) says that the Lord Chancellor must make permanent arrangements "for such purposes". "Such purposes" is a reference back to proposed new subsection (1), which is discretionary. So my first concern is that that does not impose a duty on anybody.
My second concern is that it is entirely unclear what is the ambit of that duty. Nowhere else in this field do we not specify by some objective criteria and assessment what is needed to meet that requirement. The amendment does not do that at all. It mentions funding bodies and law centres, but does not specify by how much, who is to decide and how it is to be distributed, nor impose any obligation on the Lord Chancellor-let alone the Chancellor of the Exchequer-to make sure that the funding provided is sufficient to meet an identified need. I would be happy to see an identification of that need. That is the way we legislate in this House and in this country: we identify a need; we impose a duty on a Minister to meet that need. We do not leave it entirely to discretion either whether there is a duty at all, as the amendment would, or what is the extent of that duty.
Much though I commend the spirit behind the amendment, for the reasons I have given the House should not be seduced into thinking that it is a safe way to deal with the hardship, injustice and unfairness that so many noble Lords have said that the Bill will otherwise produce.
Baroness Butler-Sloss: My Lords, I invite the House's attention to Amendment 45, which is rather oddly placed in this group and which, I suggest, stands separate. It relates to family proceedings in which, I remind the House, the welfare of children is paramount under Section 1 of the Children Act. I have identified a very limited and specific issue, where the child has suffered or is at risk of suffering significant harm. The purpose of the phrase "significant harm" is that it relates to that part of legislation covering children which deals with care proceedings. There are circumstances where the serious risk to a child does not emerge with the social worker but in private law proceedings.
Under the Bill, all private law cases, other than domestic violence, are expected to go before a mediator to try to settle a very large number of them, as I sincerely hope will happen, but not all cases are susceptible of mediation. Among those not susceptible of mediation are cases where the mediator finds there is a serious risk to the child. That may be because issues have arisen more than 12 months ago, so that legal aid will not be available. Trained mediators may pick up a situation where one of the parents has a major personality problem or suffers from mental health issues. Unless there is a decision by a court, there will almost certainly not be legal aid. The amendment asks that the mediator can alert the appropriate authorities to grant legal aid where the child is at significant risk. Otherwise, there may be no opportunity for legal aid to be granted. The two parents will battle their way, floundering in the Family Court, while the child remains at significant risk until a judge or magistrates are able to pick up the case at a very much later stage. I must warn your Lordships that the courts will be utterly clogged by litigants in person. It will probably be many months before this sort of case is heard by a judge or magistrates as a private law case. It will not have been picked up by social workers at all, and the child will remain at risk.
I have had discussions with the Lord Chancellor about this matter and I know that his people have been
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Lord Cormack: My Lords, I shall not detain your Lordships for long. I do not suppose that a single Member of this House would dissent from the proposition that the hallmark and guarantor of a free society is the rule of law. The theme that has run through this debate in many powerful and some exceptionally moving speeches has been simply that you cannot have the rule of law if access to the law is denied to some of the weakest in our society. That is the theme of this debate and it has come out time and time again. I was deeply moved by the very brave-I use that word deliberately-speech of my noble friend Lord Newton, but others have emphasised the point and added further to it.
If, when the Minister replies, he cannot give us a totally satisfactory answer, I very much hope that he will at least say that he will return to this matter at Third Reading, having had conversations with some of those who have made such valid and pertinent points. I do not include myself among them; I do not begin to compare in expertise with the noble and learned Baroness, Lady Butler-Sloss, or others. I hope that when it comes to Third Reading we shall have a measure that shows that the weakest have not been neglected or denied that access to the law which is their right as much as it is ours.
Lord Judd: My Lords, further to that very important point just made by the noble Lord, Lord Cormack, perhaps I may make one observation on which I hope the Minister will be able to give a convincing reply when he responds to this debate. Government have frequently been caught up in discussions about the legal implications of the UN Convention on the Rights of the Child. Invariably Ministers have, without any equivocation, said that central to the Government's position is the principle that the rights of the child must come first. Can the Minister please explain to the House how the provisions of this proposed legislation further that objective?
Lord Ramsbotham: My Lords, like my noble friend Lord Slim, I have one question to ask the Minister. I know that we discussed impact assessments in our debate on Amendment 6, which was moved and withdrawn by the noble Lord, Lord Bach, but when the Minister responds can he confirm or deny whether those responsible for drafting the Bill and drawing up its impact assessment discussed the impact of this clause with those who were responsible for drawing up the impact assessments on the Welfare Reform Bill and the Health and Social Care Bill?
Lord Neill of Bladen: My Lords, perhaps I may add a word to what the noble Lord, Lord Cormack, said. It seemed to me that he put his finger absolutely on the point. We are faced with a decision on whether the rule of law is being complied with in the proceedings on this amendment. It seems to me-and I have heard it from every speaker-that it is an indefensible provision. It is bound to have a terrible effect on a small group of
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Baroness Shackleton of Belgravia: My Lords, I speak in support of the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, as regards delegating to the mediator whether a person should be eligible for legal aid. I speak from my interest as a practising lawyer in this area. By delegating to the mediator, the lawyer cannot possibly be encouraged to take on work which would otherwise not be fit for purpose and it will simply be too late unless someone responsible can take the case on and protect the child in question.
Lord Phillips of Sudbury: My Lords, there is very little to add in what has been a remarkably unanimous debate-"Sit down", says one voice. It is extraordinary that not a single dissentient voice has been heard in an hour and 48 minutes. I hope that the Minister, who has the unenviable task of summing up this group of amendments, will take on board the passion with which the House has spoken. Nearly everyone has been saying, in one way or another, that for us as a Parliament to legislate benefits for the most needy, the poorest, the least articulate and the most vulnerable and then to deny them the means of accessing those rights is not right. That will undermine a society which is already in tension. We live in difficult times. I put it to my noble friend, who I know would agree with what I have said, and to the Lord Chancellor, that for a Government to cut the lifeline-for that is what it is-of millions of our fellow citizens in getting the modest help that the state has provided for them must be the most bizarre form of saving.
Perhaps I can add a word about the advice centres. Not enough has been said today about the 60-odd law centres and the 100-odd independent legal advice centres. Together with the 200 CABs that have a specialist adviser, they deliver value for money which I suspect you could not find in virtually any other part of our nation state. That is because not only do they do that work for rates of pay that those of us in the private profession would spurn, but they are backed by an army of volunteers. The CAB movement has hundreds of thousands of people who turn out to give generalist advice which, frankly, does not achieve its purpose without the specialist trained advisers at their backs,
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As a signatory to Amendment 101, I hope that, with all the difficulties, my noble friend will make some solid commitments that enable those advice centres to continue doing their phenomenal job-the CABs alone deal with more than 100,000 tribunal cases-because, frankly, if they cannot, I fear for the consequences.
Lord Bach: I rise to give my support, and that of my party, to Amendment 11, moved so brilliantly by the noble Baroness, Lady Doocey, now some time ago. My Amendment 88 is consequential on that amendment and deals with the other side of the coin. For me, Amendment 11 is the most important amendment in the entire Bill, and I shall try to explain shortly why I believe that. I want to speak also to my own Amendment 12, which is not an alternative in any sense to Amendment 11, but refers to the appeals process as opposed to the earlier process. Perhaps I may also briefly say how much we support the other amendments that have been spoken to in this debate, namely Amendments 21, 45 and 46.
We pride ourselves that our legal system is among the best in the world. We encourage rich foreign litigants to try their legal disputes in English courts and say that our system is fair, is not corrupt and has a very high class of judges and advocates. All that is true, but what underpins and guarantees our system is that there is access to justice for everyone. The law is there to help everyone, including the poor, the disabled and the marginalised, and we have a system of helping the poor that is both practical and principled-it is not perfect, but it works. If that system is decimated, as I fear the Bill as it is presently constituted will do, then as many as 650,000 people who have access to justice now will no longer have it. That fact alone should make us pause for thought. It is as serious, stark and uncomfortable, I am afraid, as that.
We all know that citizens with legal problems in the complex fields of welfare benefits, debt, employment and housing-which often involve the organs of the state, as the noble Lord, Lord Carlile, emphasised-can at present obtain expert legal advice, and "advice" is the key word here, so that those problems can be resolved. Legal advice of this kind helps people keep away from the courts and the tribunals; it does not urge them towards the courts. One of the myths that I am afraid has been rather put about by the Government in this Bill is that doing away with legal aid for social
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This is not an expensive type of law. My noble and learned friend Lord Goldsmith made it clear that no cat gets fat on welfare legal aid. Also, it works. If early advice is not available, we all know what the other side of the coin will be; things will get worse; a welfare problem will become a debt problem, then a housing problem; people will become homeless and unemployed; families will break down; and some people will fall into criminality. This should be a no-brainer. The changes will cost so much more than they will save. We have all seen studies that tell us that. Alas, the Government have not seen fit to contradict the statistics. They will not give us any figures-and I doubt that they could-to counter those arguments.
The consequences will not just be that many clients will not get access to justice; there will be a knock-on effect of making it impossible for CABs and law centres to continue to function in the way that they do now. They depend on legal aid money to attract other funds to do other work. If the legal aid money dries up, so may other sources-and then we will be deprived of them in our country.
Amendment 101-rather aptly named, if I may say so-is a brave attempt, but only an attempt, to try to move us away from what we as a House must come to grips with today. We must quite legitimately put pressure on the Government and say to them: "Look, you should not be withdrawing legal aid in this field. Just think again about this". This is the attitude taken by Citizens Advice, for which the House has a huge feeling of respect. In its briefing, it states clearly:
I will say a brief word about Amendment 12 because I will not have another opportunity to speak to it. It follows Amendment 11 and concerns appeals. The matter should be one of common sense. Very few of these cases-involving very little taxpayers' money-get to the upper-tier tribunal, where at the moment there is no representation, only advice and assistance. Although I think that there should be representation, I am not asking for it in Amendment 12 because I do not want to add to existing costs. However, of course representation in the Court of Appeal and the Supreme Court should be granted through legal aid because it is quite ridiculous to suggest that claimants should get to that stage, in
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"Seriously, however, it is not reasonable to demand a citizen even to decide whether he or she has a point of law which can be taken before a tribunal. It is simply unrealistic. One could almost say it is cruel to pretend that we are creating rights for those citizens most in need when they cannot even get advice and representation on points of law at appeals".-[Official Report, 20/12/11; col. 1725.]
I return briefly to Amendment 11. The proposal to take legal aid out of scope is wrong in three ways. First, it is wrong because it picks on those least able to defend themselves, and not on others whose opposition would be much more powerful. Secondly, it verges on the unconstitutional because it directly attacks access to justice for a large number of people. Finally, and this is one of the crucial points, the cost of not providing advice will be outweighed by the cost down the line. That point has been made by many noble Lords on all sides. We have heard that the House has a tradition of protecting the interests of the poor and the powerless in our society. If we decline to do so on this occasion, we will be diminishing our legal system and making our country a less civilised place. I very much hope that the House will support the noble Baroness, Lady Doocey.
Lord McNally: My Lords, if we have a debate about how we help the poor then it is bound to be emotive and emotional. We have had such a debate, and it has been emotive and emotional. If we have a debate about the rule of law, and we had such a debate on Monday, then it will certainly be high minded-although even on Monday I thought that the line was blurred between access to justice as a basic right. a right with a long history in our country, and access to justice funded by the taxpayer, where there have always been limitations and where lines have always had to be drawn. By all means we can have the broad-based debate, and I understand the motives and emotion behind a lot of what we have heard.
The noble Lord, Lord Bach, said that this is the most important amendment in the Bill and he is right. I make no complaint-it is nothing to do with me anyway-but those who grouped these amendments together did so very sensibly, because these amendments, separately and collectively, tear out the heart of the rationale of the Bill. Be under no dubiety about it-that is what this collection of amendments does.
Let me, in making my case, go back to the beginning, as it were. One of the few advantages of being around a long time is that you remember things. I was a junior official in the Labour Party in 1976 when the then Labour Government had to devalue the pound. A great deal of pain and anguish followed as various
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When we came into office we inherited an economy that was out of balance and faced a historically large public deficit. In more prosaic language, that meant that we were all a lot poorer than we thought we were. As a result, across government, we have had to take some very tough decisions on public expenditure. As I have said before, my department had to make cuts of £2 billion out of a total budget of £10 billion. It is easy to say-I have heard it today-that £1 million, £10 million or even £16 million is not so much. Of course, the House has got used to dealing in the rather larger sums of the Welfare Reform Bill. But for a smallish department with a small budget, and with a very restricted number of areas where cuts can be made, that involves taking tough decisions.
The noble Lord, Lord Bach, has indicated that he is going to divide the House. I hope that those who are going to go into the Lobby-many of whom have had to take responsibility for budgets, for making cuts and drawing lines-will not do so simply in the cavalier view that this will send a message to the Government.
This is not a debate about who cares most; it is about whether this House is willing to take the tough decisions that our economic situation requires, or whether it is simply going to push the problem down the corridor for the other place to take those decisions. That is it, because the other place will have to take those decisions whether we do so or not.
I believe that these amendments dismantle the central architecture of the Bill and our reform programme. As a result, as I have said many times, it will come as no surprise to the House that we have had to make these difficult choices about legal aid, as we have done with every aspect of MoJ expenditure. I know that we are debating issues about which noble Lords care deeply; I do not think there is any monopoly on that. There will be noble Lords who will follow me into the Lobby tonight who have just the same-if I may use the words of the noble Lord, Lord Carlile-"determinations of principle and conscience" as those who will not.
I remind noble Lords that the reform programme is specifically aimed at protecting the most vulnerable. The noble Lord, Lord Bach, talked about the social welfare programme being "decimated". We will still be spending an estimated £120 million a year on funding for private family law; £50 million on categories of social welfare law; an extra £10 million a year on mediation; £6 million on clinical negligence; and £2 million on education.
We are keeping legal aid for child parties in family proceedings. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We are keeping legal aid for people with mental health problems or who lack capacity for cases that determine their vital interests, and for advocacy in front of mental health tribunals. Legal aid will be retained for judicial review of welfare benefit decisions, and for claims about welfare benefits relating to contraventions of the Equality Act 2010. We will agree to extend funding to victims of human trafficking and domestic child abduction-something I know that the noble and learned Baroness, Lady Butler-Sloss, is interested in.
Our reforms have been deliberately designed with these cases in mind. Crucially, as I said in the House on Monday, we will amend the Bill to enable the Lord Chancellor to bring areas of law back into the scope of legal aid. When the noble Lord, Lord Phillips, rose, everyone groaned that there was nothing more that could be said. But I congratulate him on being the first to mention what was a very significant concession by the Government, in that what was a ratchet in the Bill is now a regulator. If some of the doom and gloom is proved to be true, the scope is there to respond to those facts.
While we are clear that our reforms are the right ones, we believe that this is an important amendment. As has also been said, the Treasury has announced that additional funding in this spending period will be available for the not-for-profit sector. As noble Lords know, we believe that in many social welfare cases it is not legal advice that people want; it is simply advice. We will support the advice sector to do just that. While we appreciate that many people rely on welfare benefits, these decisions are made in a tribunal, which is a court especially designed to ensure that claimants do not require legal representation. They are also primarily about financial entitlement and do not raise such fundamental issues as cases concerning liberty or safety.
As I have mentioned, the Government are committed to ensuring that not-for-profit advice, as well as other forms of welfare benefit advice, remains to ensure that claimants are clear about what they are entitled to claim and how they can seek redress. However, as those colleagues who have sat in another place and have advised constituents in these areas can testify, legal advice is not required in all these cases. That said, legal aid will be retained for the judicial review of welfare benefit decisions and for claims about welfare benefits relating to a contravention of the Equality Act 2010.
Amendments 21 and 46 concern legal aid for children and vulnerable young people but, as I have already said, it is simply not true to suggest that there will be
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The Bill also has important safeguards for children and adults who lack capacity or require treatment for mental health issues. Paragraph 5 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual: that is, medical treatment including psychological treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, the capacity to enter into sexual relations or the right to family life.
Paragraph 5 of Part 1 of Schedule 1 provides that legal aid may be made available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning the medical treatment of patients or those who lack capacity. Paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the mental health tribunal. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope. The exceptional funding scheme will ensure the protection of an individual's rights to legal aid under the European Convention on Human Rights as well as rights to legal aid that are directly enforceable under European Union law.
On Amendment 46, about children, we are already keeping legal aid for child parties in family proceedings. Therefore, part of this amendment is superfluous. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them. I have already mentioned that the Government recognise the importance of funding in a range of cases where children's interests are key. That is evidenced in how we have proposed to allocate legal aid funding by protecting funding in those areas that specifically involve children.
I am very willing to meet my noble friends and others who have asked to meet me between now and Third Reading, but I cannot make promises or give guarantees. We have retained legal aid for child protection cases and civil cases concerning the abuse of a child, as well as for cases concerning special educational needs assistance. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings. In civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child's "litigation friend" rather than the child themselves. This is a normal part of the rules on civil litigation; the civil justice system as a whole does not generally require children to act on their own behalf.
We have also made it clear that one of the key criteria for the exceptional funding scheme is the ability to represent yourself. This will obviously be relevant where a child is bringing an action without a litigation friend. We must also ensure that we do not create a loophole in the system through which lawyers might encourage parents to attempt to bring civil litigation in their children's name purely to secure funding that is otherwise outside the scope of this area of the law.
Amendment 45 seeks to make legal aid available for private family law cases where, in the course of mediation, the mediator has identified issues pointing to potential child abuse, a point addressed by the noble and learned Baroness, Lady Butler-Sloss. Legal aid will remain available on a means and merits free basis for public family law proceedings where a local authority seeks to take a child into care, at a cost of around £300 million a year. Legal aid would also be available in private family law proceedings where a child was at risk if those proceedings were an alternative to public law proceedings. An example of this would be legal aid for a special guardianship order for grandparents where the local authority had decided that this would be a preferable solution to taking a child into care. We have also expanded our original proposals on providing legal aid for private family cases where domestic violence is present to include evidence of child abuse.
The child-specific evidence here is the fact of a child protection plan as put in place by a local authority, although other types of evidence relevant in domestic violence cases would also apply. This is particularly relevant in respect of Amendment 45, which would use the evidence of a mediator to qualify someone for legal aid. It is of course important that a mediator reports any suspected child abuse to the local authority, and mediators are obliged to do so under their code of conduct. The local authority would then investigate, and if the mediator's suspicions were confirmed, where relevant it would put a child protection plan in place. Alternatively, the authority may start immediate public law proceedings. Either way, legal aid would then be available either for private or public proceedings. Such a system ensures the well-being of the child, which must be the priority, but it would seem slightly strange to pre-empt the results of a local authority investigation by granting legal aid for a private family matter. Of course, if there was an emergency and the local authority for whatever reason was not taking action, legal aid would be available, with the benefit of a financial eligibility limit waiver, for someone to take out a protective injunction. Legal aid would also be available where a subsequent local authority investigation found that the issues were substantiated and a child protection plan put in place. The safeguards in the Bill are sufficient to secure the safety of children, and legal aid where it is needed.
Amendment 101-I see the humour in the number-seeks to include a power in the Bill to fund the not-for -profit sector to do work that is outside the proposed scope of the civil legal aid scheme. I can assure the House that we have been listening to the concerns raised about the sustainability of the not-for-profit sector, and we agree with many of them. As I listened to the noble Lord, Lord Newton, I recalled one of the advantages of a long life. One of the few successful
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The Government value the services provided by the not-for-profit sector. We are committed to ensuring that people continue to have access to good quality free advice in their communities. We have already committed to delivering £16.8 million of extra funding for this sector in this financial year. Today, I am pleased to go further and announce additional funding for this sector within the current spending review that will be announced very shortly in the March Budget. The Cabinet Office review will also conclude shortly and those two initiatives will secure the long-term sustainability of this important sector.
I have deliberately taken the time of the House. The Government do not dismiss the arguments lightly, but for the reasons that I have set out I urge noble Lords not to press their amendments. As I have said before, I believe that the change in Clause 8 that allows some of the doomsday scenarios-if they came to pass-to be brought back into scope, is a major concession. However, I will end as I began. I am not looking at the Labour Party-the Labour Party is there to do what Oppositions do: to oppose-but at the Cross-Benchers, and I ask them whether it is really their responsibility to be so-
Lord McNally: Oh look, they are all waiting. It is the responsibility of Cross-Benchers, who supposedly, I am readily assured, are deciding individually to consider, as I am sure they do, whether their experience of having to take tough decisions in tough times merits filleting this Bill, as this series of amendments would do. What I have said in this speech makes a mockery of the idea that we are decimating-
Lord McNally: No, I will not give way. Noble Lords have had a very good time. I have a right to point out that the attack that we have decimated social welfare law does not stand up. So much has been said in this debate, but it has been a matter of presenting doomsday scenarios and making predictions that may or may not come back. We have made many concessions, which makes this a better Bill, and I thank the House for that, but I hope that the House will not be lulled into taking a decision that will take the tougher responsibilities -the Budget responsibility and the public spending responsibility-down the Corridor. We should have the courage to make those decisions here and now.
Lord Laming: The House will realise that I rarely intervene in matters of this kind. In fact, I would go as far as to say that this is the first time that I have intervened. I hope that the noble Lord the Minister, for whom I have the highest regard, will withdraw any suggestion that if members of the Cross-Bench group go through the Lobby supporting these amendments, they are behaving irresponsibly.
Lord McNally: Cross-Benchers are individuals who make up their own minds. I am entirely right to say that decisions that we have taken in the context of this Bill relate to public expenditure and the need to bring this economy under control. I will also say this, because we have had enough examples in Europe in the past year: if you lose control of your economy you go into another round of public expenditure cuts. Part of the reason why we have been able to have this debate today is the success of the Government in stabilising the economy.
What we have never heard-and I hope that the Cross-Benchers will also put this into their minds when they make their decision-is that members of the party opposite were committed to making a similar round of public expenditure cuts. That is their right in opposition, but they did not have to spell out where or how or when. That is very comfortable in opposition, but I am proud that we in the Government have taken those decisions. I hope that those who are willing to accept that we have taken tough decisions will give us their support in the Lobby tonight.
It is very welcome that the Government are going to make additional funding available for the not-for-profit sector. However, noble Lords should take note that the loss of legal aid will mean that the not-for-profit sector will lose £51 million per year. Of that, the CAB's element would be £20 million a year. I find it difficult to believe that whatever the Government can do to ease that burden it will be anything like adequate in order to make up the shortfall.
I paint a scenario. If, for example, the citizens advice bureaux were to get about half the funding that they are getting at the moment from legal aid, what would they do when people come in, desperate for help and advice? Do they say, "We put your name in a hat", "We have a lottery", or, "Only every second person who comes in can get legal advice."? Frankly, it just will not work.
I am very concerned that my noble friend the Minister has not given me any hope at all on any of these issues. He said that the amendment would dismantle the central architecture of the Bill. I must tell noble Lords that, if that is the case, that is what should happen because the Bill will seriously inhibits claimants' access to justice.
I am very disappointed with the Minister's response. Like the noble Lord, Lord Newton, and I am sure everyone else, I would love the other place to think again about these issues, and I feel that I have absolutely no choice but to test the opinion of the House.
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