The Minister of State, Home Office (Lord Henley): My Lords, the Government will launch a number of consultations in the forthcoming months on key proposals in the alcohol strategy. This includes consultations on the level to be set for a minimum unit price for alcohol and a proposed ban on multibuy discounts in supermarkets and off-licences. Following the outcomes of those consultations, the Government will consider the necessary legislation to take those proposals forward.
Baroness Hayter of Kentish Town: In thanking the Minister for that reply and welcoming both the strategy and the commitment to a minimum unit price for alcohol, I ask the Government to undertake to continue to resist the blandishments of the drinks industry and to make every effort to move forward quickly with introducing the minimum alcohol price.
Lord Henley: My Lords, I cannot give any commitment about when and how we will do that. Obviously, primary legislation will be necessary to bring forward a minimum unit price. However, I can make it clear that the Prime Minister has given his own personal commitment that we will bring in a minimum unit price. That is why we are consulting on what the proposed and proper level should be.
Baroness Gardner of Parkes: My Lords, can the Minister tell me what the situation is? It is reported in the press that a minimum unit price might be illegal under European Commission rules as being anti-competitive. Does he have any views on that? What procedures would we have to follow to deal with that? We are very concerned on health grounds and support the idea.
Lord Henley: My Lords, I am not going to give my views on the legality. That would obviously be a matter for the European Court of Justice to decide in due course. I understand that the level at which we set the minimum unit price would be relevant. That is a factor that we will take into account in the consultation.
Baroness Massey of Darwen: My Lords, does the noble Lord agree that just to convey the message of sensible drinking is not enough to raise awareness? What are needed are very clear messages. How will those clear messages be targeted at the general public?
Lord Henley: My Lords, minimum unit pricing is just one part of the whole strategy announced by my right honourable friend the Home Secretary in her Statement late last Friday. Unfortunately, I was not able to repeat the Statement in this House because the House was not sitting. There will be other parts of the strategy, and the noble Baroness is right to talk about education and getting the message across. That is something that we will have to consider very carefully. We will consider not just direct education in schools but all other forms of education as part of that process.
Baroness Finlay of Llandaff: Do the Government plan to consult on legislative controls for alcohol home delivery services, particularly at night to a party which has run out of alcohol and during the day to those who are already inebriated? I understand that these services do not fall under the current licensing controls.
Lord Henley: My understanding is that any sale of alcohol falls under the control of the licensing laws. I appreciate that it is very difficult to deal with these matters, particularly when it comes to home deliveries of pizzas or whatever the noble Baroness is referring to. Again, that is something that we will have to consider if there is evidence of abuse because, as the noble Baroness is right to point out, it is illegal to sell alcohol to those who are inebriated.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, we have plenty of time for this Question, and the fourth Question is on the same subject. I think that we should hear from my noble friend Lord Taverne first.
Lord Taverne: My Lords, I warmly congratulate the Government on abandoning their previous preference for banning below cost sales of alcohol and on adopting a policy that was strongly recommended by the previous Chief Medical Officer, by Sir Ian Gilmore, who is a great expert on this, and by a very convincing study of drinking in Newcastle, which is not known for its abstinence. I suggest to the Minister that this is only a first step, because a higher price could be even more effective. Does he not agree that it is rather sad that the
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Lord Henley: My Lords, I shall not comment on my noble friend's last remark. However, when my right honourable friend announced the strategy on Friday, other than objecting to the date of the announcement, I did not notice much that the party opposite objected to in the Statement. As regards my noble friend's other points, I know Newcastle and have seen some of the problems that city centres such as that in Newcastle can face on Friday and Saturday nights as a result of excessive drinking. That is what we are trying to target. As I said, minimum pricing per unit of alcohol is just one part of it but I commend to the House other parts of the strategy, which will be available in the Printed Paper Office.
The Lord Bishop of Ripon and Leeds: My Lords, given that those aged under 18 make up as much as a third of alcohol-related A&E attendances in some areas, does not more need to be done to inform schoolchildren of the dangers of alcohol abuse? Will the Minister consult colleagues in the Department for Education, including the noble Lord sitting next to him, to ensure that there is an improvement in the information given to schools?
Lord Henley: My Lords, I assure the right reverend Prelate that my noble friend from the Department for Education heard that. However, he is right to draw attention to the problems of underage drinking and particularly to the prevalence of underage drinkers ending up in A&E departments. In my own part of the world in west Cumberland, I have seen some very good work being done by schools in Workington, which, sadly, has the highest rate of admissions to A&E in the country. However, as a result of the work being done there, I hope that in a few years' time we will see those rates fall, and fall considerably.
Lord Henley: My Lords, that is not part of what we are proposing at the moment but we will no doubt consider it when the legislation comes forward. I look forward to discussing the amendment that the noble Lord will put forward on that occasion.
Lord Flight: My Lords, perhaps I may counsel that describing something as bad and telling adolescents that they should not do it is about the best way of encouraging them to do it. That needs to be borne in mind when providing guidance.
Lord Henley: My Lords, that argument can be put forward but I am not sure that it is necessarily always the case. I still think that we have a duty to offer
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The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): The legislation governing the establishment or expansion of grammar schools has not changed. The Education and Inspections Act 2006 and the Academies Act 2010 effectively mean that there can be no new grammar schools and we have not proposed any changes to that legislation. Any school can seek to expand by opening another site, as has been the case since 1944, but to do so it must be a continuance of the original school.
Baroness Walmsley: I thank my noble friend for restating government policy. However, I do not see how that stacks up with the potential for doubling the number of school places for which selection operates in certain areas. As we know, under the School Standards and Framework Act 1998, no new grammar schools can open, so can my noble friend tell me the criterion for a new school and why the planned satellite grammar school in Sevenoaks can claim not to be a new school but part of Tonbridge Grammar School many miles away? If the new school is given the go-ahead, what will that do to the catchment area of the original school? Could we see a school stretching right across the county as it extends its catchment area by opening a whole chain of satellite schools?
Lord Hill of Oareford: As I said, my Lords, the fundamental position on opening a satellite school has not changed. There is a process in place if people want to come forward with a proposal to open or expand a satellite school, they can apply to the local authority, and to the Secretary of State in the case of an academy. Those proposals would be looked at on a case-by-case basis. The bar on new provision is absolute and clear, and it is not the case that the Government are seeking to shift that position either by the front or the back door.
Lord Hunt of Kings Heath: My Lords, in the circumstances described by the noble Baroness, it would appear that simply by calling a new school in essence a satellite extension, from what the noble Lord has said, it looks like it might be permitted. Is it not a fact that the Government's policies are leading to much more selective education? How will we ensure fair admissions to our schools?
Lord Hill of Oareford: My Lords, it is absolutely not the case that this Government's policies are leading to more selection. It is not happening everywhere. There was a big increase in the number of selective places between 1997 and 2011 when the number went up by 35,000 within the existing framework. Wherever it would have been possible for the Government to have sought to increase selection-for example, through new free schools or through the academy conversion programme-we have been absolutely clear in the Academies Act that we have taken the opposite view and have not permitted or encouraged the expansion of selection within the maintained system. We have said-this is the point about the admissions code-that all schools, whether maintained, non-selective or selective, should have the ability, in response to parental demand, to increase their published admissions number. That is the only change that has been made.
Lord Jones of Birmingham: Does the Minister agree that there is increased selection? It has happened under all Governments for at least a quarter of a century. It is now selection on the basis of money-whether you can afford a house in a certain area with a good school, or whether you can afford to send your kids to a public school. Governments of all parties have pursued a policy of selection by money, as opposed to what it should be-selection on ability.
Lord Hill of Oareford: My Lords, I hope that I have already made clear the Government's views on selection by ability. The noble Lord is right that one of our big challenges is to make sure that we do not continue to have the consequences that he outlined. That is one reason for our drive and focus on raising standards in the maintained sector. We will try to make sure that more good places are offered to children where money is not an issue.
One reason why we removed the limit on the ability of a good and popular school to expand was to make it possible for more children to go to the school. One reason that we want free schools is to increase choice in the system. Many of those schools are being set up in areas of the greatest deprivation. I agree with the noble Lord that overall we should make sure that, rather than talking about selection for a small number of people-which is a historic argument that we have had in this country for a very long time-our emphasis should be on trying to raise standards for the greatest number of children, of all abilities, and on doing what we can to narrow the gap between rich and poor.
Lord Hill of Oareford: The statutory processes around selective schools that we discussed have not changed at all. Proposals are put forward, and there are consultations, representations and so on. That has not changed.
Lord Hill of Oareford: It is nice to hear the contrary view put by my noble friend. Clearly, for the people who benefited, a grammar school education acted as an extremely powerful rocket booster for their opportunities in life. However, there were large numbers of children for whom that was not the case. The Government are trying to focus on raising standards for all children, recognising that children of differing abilities need a good education-whether it is a core academic education or a core technical and vocational education-and that we need a range of schools that will meet those needs.
Lord Lea of Crondall: My Lords, is the Minister aware that the point put so succinctly by the noble Lord, Lord Jones of Birmingham-I never expected to be saying this-is very widely shared in this House?
Lord Hill of Oareford: My Lords, I am now more aware than I was a moment ago. My answer is the same. I recognise that there is that perception-and that in some cases it is more than a perception, it is true. However, that is something that all of us want to get away from.
Lord Wallace of Saltaire: My Lords, the Government are committed to doing all that they can to maximise registration, including among 18 to 25 year-olds, and are looking to modernise the system to make it as easy and convenient as possible for people to register to vote. We have commissioned research to explore the registration of groups whom we know are underregistered -which certainly includes those between 18 and 25. We are also closely studying the experience in Northern Ireland, where promising work is being done to get young people registered.
Lord Roberts of Llandudno: My Lords, I thank the Minister for that reply. He knows as well as I do that if people are not encouraged to take part in the democratic process through the ballot box, there are other ways that have horrendous consequences. What plans have the Government for the coming year and elections to encourage people to register to vote? I declare an
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Lord Wallace of Saltaire: My Lords, there are two problems with registration for 18 to 25 year-olds. One is the question of how far they are motivated to register. The other is simply how good the Government are at catching these people and making sure that they fill in forms. I am informed that the number of young men registered with a doctor is remarkably low. This is the biggest single hole in our registration. The percentage of 18 to 25 year-olds registered to vote is around 56 per cent. The percentage of people over 25 who are registered is well over 90 per cent.
Lord Wills: My Lords, the Minister will recall the debate that was held in your Lordships' House at the beginning of January about electoral registration, where there was widespread concern from all sides of the House about the Government's approach to individual registration and how it will cause a decline in electoral registration, including among young people. There was also concern that that decline in registration would benefit only one political party-the Conservative Party. In the light of that, the Minister will recall that there was widespread support from all sides of the House, including from the Conservative Benches, for a cross-party approach to addressing these problems. The Minister then undertook to go away and discuss with his colleagues such a cross-party approach. Can he update the House on how he has got on with his discussions, three months later?
Lord Wallace of Saltaire: That is a very good question. I have discussed that with colleagues, and we are continuing to discuss it, and I thank the noble Lord for maintaining the pressure on it. We have a real problem with how to get 18 to 25 year-olds caught up within the general system of interaction with government agencies. They move around much more frequently; they move between home and university; and they tend not to get caught up by a number of the ways in which government interacts with people.
Lord Tomlinson: May I suggest to the noble Lord, in the most helpful of ways, that he send a copy of the draft Bill on House of Lords reform to every 18 to 24 year-old and see how many are thus motivated by the democratic impulse of the Deputy Prime Minister to come out and vote?
Lord Wallace of Saltaire: My Lords, only this morning I was told by one Member of your Lordships' House who spends time going out to schools that when talking with school students, one gets a very strong commitment to House of Lords reform. I recall that the Labour Party's last manifesto committed it to House of Lords reform. I am sure that the noble Lord, Lord Tomlinson, and others will maintain that strong
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Baroness Massey of Darwen: My Lords, is the Minister aware that, in a debate among young people in this House last year, there was a very strong vote against House of Lords reform? However, that is not my question. My question is: what progress is being made on the institution of citizenship education in schools as a compulsory subject?
Lord Wallace of Saltaire: My Lords, successive Governments have struggled for some time with the whole issue of citizenship education in schools, and as the noble Baroness knows well, schools have struggled with how well PSHE as a whole is taught. I have asked about citizenship education and students tell me that they have had a bit on the European Union and a bit on Parliament in between the instruction on how they should behave in relations with the opposite sex. We all know that citizenship education remains a problem. It is a problem with which the Department for Education and others are grappling, but I encourage the noble Baroness to keep pushing.
Lord Addington: My Lords, it seems, as my noble friend will undoubtedly be aware, that the young are interested in single issues in politics. Would it not be a good idea to encourage those single-issue groups to inform the young of just how important it is to get involved in the political process in order to get anything done, and that voting is part of that?
Lord Wallace of Saltaire: My Lords, the localism agenda-and, indeed, reviving local democracy-is clearly one very important part of getting young people re-involved in democratic politics, because it is easier to understand how they interact with local politics. I have to say to all Members of the House that the way in which we handle the issue of constitutional reform over the next year will send a signal to young people about how responsible we are, at Westminster, in reacting to constitutional reform issues.
Baroness Farrington of Ribbleton: My Lords, the Minister seemed to indicate earlier in reply to my noble friend's question that it has taken until now, three months later, to discuss within the department or the Government the issue that my noble friend raised. How much longer do we have to wait for it to become an all-party, cross-party discussion that might lead to the sort of positive results that the Minister seems to want?
Lord Wallace of Saltaire: I welcome the noble Baroness's commitment to cross-party approaches to all aspects of political and constitutional reform. On the question of motivating people under the age of 25 to be involved in politics, we very much need an all-party approach, and that is one of the areas in which we all need to take a rather more responsible attitude than the circus of Westminster sometimes provides.
The Minister of State, Home Office (Lord Henley): My Lords, as I said in my earlier Answer, the Government will launch a consultation on the level to be set for a minimum unit price for alcohol. The Government will consider a range of issues in detail as part of this consultation.
Lord Renton of Mount Harry: My Lords, I thank my noble friend the Minister. Perhaps I might add to the points made very usefully in answers to the earlier Question tabled by the noble Baroness, Lady Hayter. I understand well the need to combat binge drinking, but does the Minister agree that the minimum unit price proposals are very hard to understand or measure? For example, I read in the Guardian last Thursday that one unit is 10 millilitres of pure alcohol and that is equivalent to half a glass of wine. There are big glasses, large glasses and small glasses, and that does not tell us nearly enough. Does the Minister accept that more explanation is needed of this public intervention that is so very important?
Lord Henley: My Lords, I am sorry if my noble friend finds these matters hard to understand and measure. That is one of the reasons why we are mounting this consultation. It depends what my noble friend drinks, but he might be aware that it is possible to buy a can of lager in a supermarket for as little as 20 pence, or a 2 litre bottle of cider for as little as £1.69. We think that those sorts of prices, charged particularly in the off-trade, are encouraging drinking that can lead to very severe anti-social behaviour. That is why we think it is important to look at the possibilities of a minimum unit price and consult on the appropriate level.
Lord Snape: My Lords, does the Minister agree that the main beneficiary of the Government's proposals for unit pricing will be the drinks retailers? Does he agree that the issue of excessive drinking involves all social classes in the United Kingdom? Could he perhaps tell the House how doubling the price of White Lightning in supermarkets would affect the activities of organisations such as the Bullingdon Club?
Lord Henley: My Lords, I accept that it is possible that a minimum unit price could lead to extra profits for the retail industry, particularly for the supermarkets, but I am sure that they will find other ways to compete.
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Lord McColl of Dulwich: Does my noble friend agree that the Government are to be congratulated on their strong stance on the obesity epidemic, declaring that the answer was to eat fewer calories and drink less alcohol? Will they go further and declare openly that although alcohol is a very pleasant poison to drink, it is nevertheless a poison?
Lord Henley: My Lords, we do not want to stop people drinking alcohol in a perfectly legitimate manner. I accept my noble friend's medical advice that it is a poison, but it is one that we have grown accustomed to over the years. What we want to avoid is excessive consumption of the sort that leads to disorderly scenes in some of our town centres, which I referred to in my answers to the earlier Question.
Lord Elystan-Morgan: My Lords, does the Minister recollect that in replying to the first Question, he very sensibly said that the price of alcohol was only one weapon in the armoury of the Government in seeking to tackle alcohol abuse? Is it the case, as I believe it is, that for the last 100 years or so it has been a criminal offence on licensed premises for drink to be sold to or for a person who is already inebriated? If that is the current law, has it not fallen into desuetude? Will the Government concentrate on that? It could be a very potent weapon.
Lord Henley: The noble Lord understands the law very well. He is absolutely correct in that. These are matters for enforcement and we think that they should be taken up by the police and, subsequently, the licensing authorities. It is possible to remove the licence from an individual or a pub if it sells alcohol to someone who is obviously inebriated.
Lord Haskel: My Lords, have the Government considered achieving the minimum price by raising the tax rather than the price? If you raise the tax, we all benefit. If you raise the price, it is a windfall for the drinks industry.
Lord Henley: My Lords, I have to be very careful about what I say about changes to the taxation regime. It is slightly more complicated than that in that you would have to even out the tax rates on different forms of alcohol, which vary a great deal. That is one of the reasons why sometimes you find the two-litre bottle of cider that I mentioned earlier being so much cheaper than equivalent forms of alcohol. At this stage, we are looking at minimum pricing but no doubt it would be possible to look at other matters as well.
Lord Henley: My Lords, certainly the consequences of the changes made under the previous regime were not exactly what we were led to believe would be the consequences. It did not lead to the European-style drinking culture-the cafe culture-that the then Prime Minister thought that it would lead to. That is why we made a number of changes to the licensing regime, which, again, is part of our overall strategy on alcohol.
Lord West of Spithead: My Lords, we all know the dangers of excessive use of alcohol, which is a terrible thing. However, in the interest of balance of all these questions, does the Minister agree that sensible consumption of alcohol, or "poison" as it was called, can be very enjoyable and has been an integral part of western civilisation for millennia?
Lord Henley: My Lords, I absolutely agree with the noble Lord in those remarks. He will remember from his naval experience-I do not know how far he goes back-that originally a tot of rum was provided to all serving naval officers and ratings. That was removed because of the increasing complexity of ships and the technology on board, and the thought that it might not be a sensible thing for them to continue to drink. But, quite rightly, the Navy did not go dry in the style of the United States Navy. The noble Lord is right to make the point that there is a sensible balance to be drawn on this matter.
Clauses 1 to 9, Schedule 1, Clauses 10 to 24, Schedule 2, Clauses 25 to 31, Schedule 3, Clauses 32 to 38, Schedule 4, Clause 39, Schedule 5, Clause 40, Schedule 6, Clauses 41 to 63, Schedules 7 and 8, Clauses 64 to 69, Schedule 9, Clauses 70 to 90, Schedule 10, Clause 91, Schedule 11, Clauses 92 to 106, Schedule 12, Clauses 107 to 111, Schedule 13, Clause 112, Schedule 14, Clauses 113 to 121, Schedule 15, Clause 122, Schedules 16 and 17, Clause 123, Schedules 18 and 19, Clauses 124 to 126, Schedule 20, Clause 127, Schedule 21, Clause 128, Schedule 22, Clauses 129 to 133, Schedule 23, Clauses 134 to 136, Schedule 24, Clauses 137 to 142, Schedule 25, Clause 143, Schedule 26, Clause 144, Schedule 27, Clauses 145 to 155.
Baroness Trumpington: My Lords, I apologise. Perhaps I may ask the noble Lord, Lord McNally, whether the removal of the boards which have recently been erected in Parliament Square will have to wait until the Bill
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Lord McNally: My Lords, I am not sure of the answer to that question. I know that I have just moved a formal Motion. In case the noble Baroness thinks that she will have to wait until about 11 o'clock to get an answer, I should say that all the Motions between this one and the Report stage of the Parliament Square (Management) Bill are formal. Perhaps she will let me move this formal Motion, and we can then move on very quickly to Parliament Square, when she might want to intervene again.
(a) add services to Part 1 of Schedule 1, or
(b) vary or omit services described in that Part,"
The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government have tabled government Amendments 1, 6, 7, 8, 13, 14 and 18 following the commitment I gave on Report. The Government have listened to the reasoned arguments
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Amendment 1 to Clause 9(2) would give the Lord Chancellor the power to omit, but in addition the power to add or vary the services in Part 1 of Schedule 1. He would be able to do so by modifying Parts 1, 2, 3 and 4 of Schedule 1. The power to vary a service allows us to amend the existing services within the schedule where they need to be altered, but without the need to omit a service and then add a new service. For example, if the Immigration (European Economic Area) Regulations 2006 were amended in the future, any such amendment might not mean that services need to be added to the schedule, but it might be necessary to vary the provisions in paragraph 31 of Part 1 in order to reflect any such changes to those regulations.
The provisions of Amendment 1 mean that the power in Clause 9(2) would be similar to that which exists in Section 6(7) of the Access to Justice Act 1999. We consider that this is the correct and sensible approach to take. The powers in Clause 9(2) would be exercisable by the Lord Chancellor when making an order. Clauses 41(6) and 41(7)(a) mean that such an order would be subject to the affirmative procedure and so subject to debate in and approval by each House of Parliament.
Amendment 2, tabled by the noble Lord, Lord Bach, would allow services to be added but not to be omitted. As I have said, the government amendment provides for balance to the existing Clause 9. Amendment 2 seeks to go further and actually removes the ability to omit. I firmly believe that that power to omit is necessary and gives the Bill a welcome flexibility. An example of where this may be necessary is where the governing legislation behind an area of law is repealed or otherwise altered and we need to alter civil legal aid provision accordingly. Another example would be where particular court proceedings are moved to a tribunal. It may cease to be appropriate to provide funding for advocacy for those proceedings, so an amendment to Part 3 of Schedule 1 would be needed.
As a result of Amendment 1, we no longer consider that we need certain powers in Schedule 1 to make secondary legislation. The purpose of this is not to reduce the categories in which legal aid will be available but are more technical in nature. To ensure that this is clear, let me explain in detail the powers which will be removed. First, Amendments 6 and 7 relate to paragraph 4(1)(k) of Part 1 of Schedule 1, which concerns the care, supervision and protection of children and provides for further orders or procedures to be prescribed for the purposes of this paragraph. In the light of the power to add services proposed by Amendment 1, we consider that the power at paragraph 4(1)(k) of Part 1 of Schedule 1 is no longer necessary.
under a number of listed enactments. Heading (n) of that definition allows other enactments to be prescribed for the purposes of that definition. With the power to add services under Clause 9, this is no longer necessary.
Thirdly, Amendment 13 relates to paragraph 15(1)(g) of Part 1 of Schedule 1, which concerns the protection of children. Paragraph 15 refers to civil legal services where a person is seeking in a private law family case to protect a child from abuse by applying for any of the list of orders or procedures set out in paragraph 1, and paragraph 1(g) provides for further orders or procedures to be added by being prescribed for this paragraph. Again, this is now unnecessary.
As a result of these amendments, we have made consequential amendments to paragraph 21 of Part 1 of Schedule 1, which concerns judicial review, and Part 3 of Schedule 1. Amendment 18 makes consequential changes by removing paragraph 23 from Part 3 of Schedule 1. Paragraph 23 of Part 3 ensures that advocacy is available in relation to prescribed legal proceedings relating to orders and procedures that might have been prescribed under the powers in Part 1 of Schedule 1 which, as I have explained, we no longer consider necessary. There is, therefore, no need for paragraph 23 of Part 3. As a result, the reference to paragraph 23 of Part 3 in paragraph 21(10)(b), which defines judicial review, is removed by Amendment 14.
Lord Thomas of Gresford: My Lords, I am grateful to my noble friend for the amendment. He knows that we on these Benches raised this issue before Second Reading. It is necessary to have flexibility brought into the Bill for two reasons: first, because economic conditions may improve and it may be possible to revert to a more generous legal aid scheme; and, secondly, because those of us with experience of litigants in person know they can clog up the courts and that, consequently, it may be necessary for urgent amendments to Schedule 1 to introduce legal aid to enable people to be legally represented. It is not fully appreciated by the public that legal representation shortens cases and leads to justice, rather than litigants in person trying to fight their own cause.
Lord Bach: I thank the Minister for the concession that the Government have made today. The clause as it stands before we pass the Government's amendments should never have been in that form when the Bill was published and was always crying out for amendment. Indeed, members of my party in the Commons did their best to ensure that that happened. I am grateful to the noble Lord, Lord Thomas, and other noble Lords for persuading the Government that the clause needed changing. I shall not, of course, press my amendment; I will not move it.
I know the Minister and all other noble Lords will agree that the House seems somewhat empty today because our noble friend Lord Newton of Braintree is not with us in our deliberations. He took an active
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Baroness Butler-Sloss: My Lords, as a Cross-Bencher, I add to what the noble Lord, Lord Bach, has just said about the death of a man who was a great friend to many of us. Lord Newton was an adornment to this House, who stood, as the noble Lord, Lord Bach, has already said, for his conscience rather than for what his party, or any party, might wish. It is easy for me as a Cross-Bencher to examine my conscience, and I am well aware it is not so easy for members of political parties. He will be enormously missed. His name is on a number of today's amendments, and I hope that noble Lords will forgive me for saying something about this before I move to Amendment 1.
I congratulate the Government. I do not do it terribly often but am going to do it three times today. This amendment, as the noble Lords, Lord Thomas of Gresford and Lord Bach, have said, is overdue. It is splendid that the Government have recognised the importance of having the ability to increase legal aid. I also very much support the fact that they are putting in "vary or omit". All of us who have had anything to do with legislation know that from time to time it becomes redundant and has to be got rid of or needs a tweak here and there, and therefore needs a variation. I support this amendment as it is.
However, if the Minister will forgive me, I will make one or two points about what has happened as a result of this Bill so far as family cases are concerned. The noble Lord, Lord Thomas of Gresford, has already mentioned this but I will add to it. I strongly urge the Government to review the impact of the legal aid changes no later than a year from now, to see what happens to the family courts in the light of the removal of nearly all private law cases from legal aid. I am not sure the Government really quite accept what a number of us have been saying, to the Ministers in this House and the other place, about the impact on the courts. There will be longer lists. I know the Ministry of Justice is already aware that the lists in the courts are too long, and they will be increased substantially.
There will be longer hearings. As the noble Lord, Lord Thomas of Gresford, said-entirely accurately-without lawyers to keep a case under control, two litigants in person will spend an absolute age. The sort of case that takes a day, or possibly a day and a half to two, will take not less than a week. I have a vivid recollection of one litigant in person who took a week to give evidence and cross-examine. Every time I asked him to hurry up, it added another hour or two to the case. I am afraid I sat scribbling nonsense, because nothing he said was of any value to the conduct of the case.
It is going to be very difficult for district judges and magistrates to manage people totally caught up in the emotions of a failed relationship and fighting over
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It will have an impact in children's cases. One example in child protection issues is the fact that drink or drug abuse is sometimes detected only during the hearing of a private law case. It is crucial that the person who is drinking or taking drugs to excess is tested to see what should be done as to whether that parent is fit to have care of the child, or even to see the child. The Minister will be aware that in the Norgrove report that point was made about the very thin line between the private law cases and those that tip over into child protection issues. On Report, we discussed whether the mediator would identify cases where there might be abuse. There is a hard core of 5 per cent of cases that cannot be settled between the parties-and, of course, that 5 per cent of cases will carry on regardless and may not ever come to the attention of the mediator.
On the matter raised by the noble and learned Baroness, we are committed to undertaking a post-implementation review of the specific policies set out in the Bill. As she acknowledged, we have just replaced a ratchet by a regulator, which should also help in seeing whether some of her predictions come true, and how we react to that.
1 (1) Civil legal services in relation to advice and proceedings where a child is, or proposes to be, the applicant or respondent in proceedings, or where the child is represented by a legal guardian, including-
(a) private family law;
(b) any benefit, allowance, payment, credit or pension under-
(i) the Social Security Contributions and Benefits Act 1992,
(ii) the Jobseekers Act 1995,
(iii) the State Pension Credit Act 2002,
(iv) the Tax Credits Act 2002,
(v) the Welfare Reform Act 2007,
(vi) the Welfare Reform Act 2011, or
(vii) any other enactment relating to social security;
(c) all areas of education law not otherwise covered in this Schedule;
(d) all areas of housing law not otherwise covered in this Schedule;
(e) all areas of debt-related disputes not otherwise covered in this Schedule;
(f) all areas of immigration and asylum law not otherwise covered in this Schedule;
(g) all areas of clinical negligence law not otherwise covered in this Schedule;
(h) all areas of consumer law not otherwise covered in this Schedule;
(i) appeals to the Criminal Injuries Compensation Authority;
(j) civil legal services relating to a review or appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007; and
(k) civil legal services relating to an appeal to the Supreme Court."
Baroness Grey-Thompson: My Lords, I speak to the amendment in my name and in those of the noble Baronesses, Lady Eaton and Lady Benjamin. I am also very proud to say that the name of the noble Lord, Lord Newton of Braintree, was included on this amendment, and I know that I speak for all those in this Chamber when I say that he will be greatly missed.
This amendment would make legal aid available for children in all current cases, including when they are victims of medical negligence. At present, legal aid helps just over 40,000 children every year who have civil justice legal problems in their own right. If the Bill is left as it stands, legal aid for around 35,000 children every year will continue, but legal aid will not be available for around 6,000 children under 18 who would qualify if the current rules remained in place. The Government have so far not explained why those 6,000 children will be treated differently from other children who have problems under the same categories of law.
This is now the 40th day of debate in your Lordships' House and in the other place. I do not believe that the Government have been able to explain the criteria that will decide, for example, why 220 children will continue to receive legal aid support in cases about their education but 110 will not. This is from among the numbers remaining after the Government conceded last June that legal aid would be kept for cases involving children with special educational needs-numbers obtainable only through a freedom of information request by the Children's Society.
When put on the spot about which children will lose legal aid, the Government say that they will be able to apply to be treated as exceptional cases under Clause 10. I do not believe that there should be any confusion or delay as to whether a child under 18 is entitled to legal advice and representation in British civil justice. Children are not adults-they do not have the capacity to represent themselves or to interpret the thousands of pages of laws and regulations that affect them.
The question of a child's capacity to represent themselves is explicitly recognised and provided for in international law. The Children's Commissioner for England, Dr Maggie Atkinson, wrote to the Lord
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"Children, by virtue of their age and capacity, will not be able to present their case effectively in the majority of proceedings ... Children's need for legal aid in civil cases where they are a party should not be viewed as 'exceptional'".
I am very concerned that, in many of these cases, children have been put in the position of taking action against a local authority. It is a question of a child versus the state, and the state in this Bill is denying children the capacity to challenge it. Camila Batmanghelidjh of Kids Company told us about a child who came to her charity in desperate need of help, and how the charity's lawyer was able to use legal aid to challenge the local authority to accept its responsibilities. Camila said:
"She was under 18, but not recognised as vulnerable by the local authority despite being chronically abused at home. In the end the judge agreed with us and forced Lambeth to take her into care, when they were leaving her on the streets. I think the point we want to bring is how local authorities are not doing their job properly, and legal aid is the only way they can be held accountable".
"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.]
So a social worker is expected to help in a case that might well bring them against their own employer, the local authority. If we do not support this amendment, we will be asking a child to go into the courtroom alone to argue his or her case against a barrister paid for by the taxpayer. It will be unjust and unfair, and I believe that it will also be a false economy.
The Ministry of Justice believes that it can save £6 million or £7 million from its legal aid budget by denying legal aid to these 6,000 children, but the knock-on cost to the public purse could far outweigh that sum. As we have heard throughout the debates on this Bill, the Government have given no estimate of the knock-on cost that will arise because legal problems are not sorted out early, even though they accept that there will be wider costs to society and to the taxpayer. The Ministry of Justice response to the consultation on the Bill said:
"The lack of a robust evidence base means 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 ... It is not possible to quantify accurately these wider costs".
To deny children, the most vulnerable in our society, the ability to access legal aid without any understanding of what the wider consequences would be is not something we should accept. I beg to move.
Lord Cormack: My Lords, I will speak briefly to the amendment which stands in my name and that of my noble friend Lady Eaton and the noble Lord, Lord Crisp. Before doing so, I would like to add my tribute to those that have already been made to the late
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When I came into your Lordships' House, we immediately became allies on a number of issues, not least those which concern us this afternoon. Lord Newton was tenacious and determined, and nobody in this House will ever forget the courage of that man, standing with his oxygen machine either by the Throne or at the Bar of the House, then leaving the machine to come and speak-most recently from near the Cross Benches-on subjects which concerned him. His name was on both the amendments that I am talking about, so in tribute to him I want to say a few words about Amendment 4. In doing so, I in no way dissent from what the noble Baroness, Lady Grey-Thompson, has said but my amendment is more narrowly focused. I had an opportunity, along with colleagues from all parties, to discuss some of these issues with my noble friend Lord McNally last week. I thank him for the care and concern that he displayed when we discussed these extremely sensitive and important issues. What I said to him then in private I say now in this Chamber: I do not for a moment question his commitment or his concern, and I know that he is as anxious to do right as we all are. However, he is a member of the Executive.
The Government have decided to make a number of cuts in all departments. One understands why, and I am not going to cheapen this speech or this House today by trying to score points about the deficit. I say to my noble friend that of course the Government have to cut, but that does not mean that they have to cut in every department when in some departments, as in his, the sums are relatively small. Those small sums, though, can make such a difference to a great many extremely vulnerable people.
My amendment concentrates on the subject of clinical negligence and children. I stress one point in particular: those who are damaged by an agency of the state have a right to expect the assistance of the state, and the National Health Service is precisely that. If, in the care of the NHS, someone is damaged through clinical negligence then there should be an automatic right of redress. That is more particularly the case when we come to children, and that is what the amendment focuses on.
We had a debate a fortnight ago about those who had suffered brain damage from clinical negligence. They were to be treated differently from those who had been damaged physically in other ways. That is wrong. One should not discriminate in that manner between those who suffer physical damage, which may be with them for the whole of the rest of their lives, and those who suffer brain damage. I am not suggesting for a
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It is wrong that we in this House should be passing any legislation without pointing that out and asking another place to think again, unless of course my noble friend can accept the amendment today, which would give us all great pleasure. If he cannot, although I hope very much that he will, then this amendment should be pressed to a vote in the event of the noble Baroness's amendment not being approved. It may well be-I certainly shall not oppose it-but, if it is not, I will then wish to press my amendment unless my noble friend has accepted its form and substance. If this House has any truly lasting point and purpose, and I believe as strongly as any Member of it that it has, then we have a duty to say, "You haven't got this quite right. You have got to rethink".
I suppose that I cannot be too greedy and expect the same sort of majority that we achieved yesterday, but I hope that if it is necessary to put this amendment to the vote then it will carry. Here, we are concerned with those least able to help themselves. This really is a case of, "Suffer the little children", and I very much hope that your Lordships' House will ask the Government to insert an amendment along these lines in the Bill before it finally becomes law.
Baroness Howe of Idlicote: My Lords, I, too, should like to add to the laments that we all feel at the death of Lord Newton. On both sides of the Chamber, we all picture him standing stalwart, despite his obvious disability and discomfort-determined, as always, to give a fair view of the legislation.
I thank the noble Lord, Lord McNally, for the concessions that he made, particularly his government amendment regarding the victims of trafficking. It is most welcome. I also thank him as I was one of those at the meeting-of all parties and none-at which we all put our views to him. However, there remains a need to provide greater protection for vulnerable children and young people. My Third Reading amendment, Amendment 5, is very similar-almost identical-to that of my noble friend Lady Grey-Thompson. The difference is mainly that it raises the upper age from 18 to 24 for this very vulnerable group. It would protect only the most vulnerable people-around 12,000 out of 69,000 18 to 24 year-olds who will lose access to legal aid, specifically those with a disability and those who have been in care.
It is hard to think of groups of people who are more vulnerable than those covered by this amendment. Generally, young people are rarely equipped with the knowledge, skills and legal capacity to resolve their problems without expert advice. This particularly applies to these vulnerable young people, who are far more prone to experiencing multiple and severe problems and are therefore far more likely to require this specialist legal intervention to prevent their situation escalating and spiralling out of control. How are these young people expected to cope when they have problems if they cannot obtain legal aid?
The House will not need reminding, particularly in this economic climate, that the country is experiencing record levels of youth unemployment, rising youth homelessness and increasing levels of adolescent mental health problems. These young people need special help to get them through to a more fulfilled adult life at less cost to the community. It cannot make any sense to deny them this access to the legal advice that they desperately need to help them resolve their problems and turn their lives around.
The Government have said in their new cross-departmental youth policy that they believe in providing additional and early help to disadvantaged and vulnerable young people, including those in care and those with disabilities. Our amendment would help the Government to meet this commitment. It would protect young people who have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, according to the definition of disability that is used in the Equality Act 2010. Many of this group's problems are in the area of social welfare law, being to do with housing, debt and welfare benefits. The considerable changes that many of your Lordships in this Chamber debated during the passage of the Welfare Reform Bill will undoubtedly mean that more young people with disabilities will face social welfare problems and will need that help to understand and gain from the new benefits regime. It simply cannot be right to leave disabled young people without the support they need to enforce payment of their entitlements.
As I have said, the amendment would also protect care leavers under the age of 25. This group is also highly vulnerable. Care leavers are far more likely to end up unemployed, homeless or in prison-alas, this will happen to too many of them-and to experience high levels of common social welfare problems. They will need good legal advice to avoid poor outcomes. The amendment would cost around £4 million, a figure far lower than the cost of not providing access to legal aid for these young people.
Research by Youth Access shows that legal advice which is targeted at vulnerable groups is particularly cost-effective and that this group is more likely to experience stress, violence and homelessness if they do not manage to get good legal advice at an early stage. 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 that cost could be avoided if those young people received better and earlier support. Research by JustRights shows that any savings made through denying young people civil legal aid are likely to be outweighed by increased costs in the criminal legal aid budget alone. The Local Government Association has said that it has concerns about the extra costs for local authorities arising from the withdrawal of legal aid from care leavers.
This amendment not only makes economic sense but is the right and fair thing to do if we are serious about protecting these most vulnerable members of society. I very much hope that, when the time comes, everyone, including the Minister, will support it.
Lord Thomas of Gresford: My Lords, when I first looked at the Bill, I was pleased to see how much vulnerable adults and children are protected by the provisions of Schedule 1. One has only to look at the paragraph headings to see the protection that is given: for example, "Care, supervision and protection of children", "Special educational needs", "Abuse of a child or vulnerable adult", "Working with children and vulnerable adults". All these groups will remain within the scope of legal aid. Further headings comprise: "Mental health and mental capacity", "Facilities for disabled persons", "Inherent jurisdiction of High Court in relation to children and vulnerable adults", "Unlawful removal of children from the United Kingdom", "Family homes and domestic violence", "Victims of domestic violence and family matters", "Mediation in family disputes", "Protection of children and family matters", "Children who are parties to family proceedings" and "EU and international agreements concerning children". Over and over again the emphasis is placed on keeping the needs of children and vulnerable adults within the scope of legal aid. I look forward to hearing from my noble friend what proportion those headings represent of all the cases involving children. Those children's and vulnerable adults' issues will continue to be within the scope of legal aid.
There is one aspect of Amendment 3 with which I entirely agree-I spoke about this in Committee and on Report-which is that legal aid should be maintained for a review or appeal on social welfare issues and for,
I listened with a great deal of sympathy to the exposition of Amendment 4 by the noble Lord, Lord Cormack, but he should bear in mind that conditional fee agreements with one-way costing, which is the new way in which conditional fee agreements are to be entered into, will be available for people who are not covered by legal aid, and the new changes will be much more acceptable. For example, there will be protection against the defendant's costs for a losing claimant-a losing child or adult. They will not have to pay those costs. We have discussed those issues at length. The noble Lord should also bear in mind that the Government have announced that if you are legally aided and you obtain damages in a personal injury case, 25 per cent of those damages will be taken for the supplementary legal aid scheme to fund other people who are deserving of legal aid. Therefore, entitlement to legal aid will not mean that a person gets their damages in full. It is probably better in many of these cases to have a conditional fee agreement as it has been refashioned than it is to receive legal aid. I am sure that that is the way in which the legal profession will go.
Baroness Eaton: My Lords, I speak in support of the children's amendments moved and spoken to by the noble Baroness, Lady Grey-Thompson, and my noble friend Lord Cormack. I should like to add my thoughts on Lord Newton, who kindly supported the amendment. I know that we will all miss his integrity and compassion
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The Bill as it stands draws a distinction between, on the one hand, any child who suffers brain damage as a result of medical negligence before the age of nine weeks, and, on the other, any child suffering injury of any other kind caused by medical negligence-including a child who suffers from brain damage when they are nine weeks and one day old. Let me tell noble Lords about a Plymouth boy who suffered brain damage at the age of one when doctors at the Frenchay Hospital in Bristol failed to follow up a suspected aneurysm. Months later, he suffered a devastating bleed in his brain, which would have been avoided if the correct procedure had been followed. The boy will require care for the rest of his life; he cannot talk and will never be able to work. A settlement with North Bristol NHS Trust at the High Court in November 2011 will help to provide care for the rest of the boy's life. He is now 10. The case could not have been started without legal aid, which would not be available if the Bill were to pass unamended.
I simply do not see how children who have been injured in these often heartbreaking circumstances can be divided into two groups in this way. We would allow legal aid for a baby suffering brain damage at birth, but deny legal aid to a baby suffering brain damage in hospital at the age of one. Or we would prevent a child who has been paralysed from seeking help. Just imagine two babies at two weeks old in the same hospital. One is brain damaged and the parents can seek support on their behalf, while the other is paralysed and the parents cannot get legal aid.
Are we really saying that a brain-damaged child who can walk needs more care and support than a child who has to be carried to the bathroom and turned in bed during the night? The severe difficulties facing the child's parents will be exactly the same in both cases. They will be desperate for help. They will want to know whether they have a legal case and, first and foremost, they will be giving their child the day-to-day care and love that all parents must, whatever the difficulties.
Are we really going to ask half of those parents to appeal to the director of legal aid casework to see whether their child qualifies for legal aid as an exceptional case-as if that would be a satisfactory way to organise legal aid for children even from the Government's point of view? I ask noble Lords to consider the expense, bureaucracy and delay that will result from such an approach.
I have highlighted medical negligence but, as a former leader of a local authority, I could go through each subject heading and make a similar case. The simple truth is that children are defined as minors in law because they cannot represent themselves and
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All of us in this House understand that in a healthy democracy, it must be possible to challenge the state, particularly where children are concerned. We also understand that there are lots of terrible cases where children's voices have not been heard, which is why we need to ensure that they can take independent legal advice that is accessible directly, not via a social worker or any other arm of government.
I support the amendments because I believe that they will save an enormous amount of trouble and wasteful expenditure for the Government, whom I support. I want to help the Government to pull back from what would be a regrettable and avoidable mistake, and they will save a great deal of anxiety for parents who are already coping with more than anyone should have to bear.
Lord Avebury: My Lords, I would have been inclined to support the amendment if I had not been here to listen to the debate and heard what my noble friend had to say, which appears basically to contradict the argument just made by the noble Baroness, Lady Eaton. She was saying that in the case of the infant who died at Frenchay Hospital, the case could not have been brought if legal aid had not been available; but my noble friend said that it was preferable, in terms of the amount that the litigant would receive, to conduct a case of this sort through the conditional fee arrangements which are now available. The litigant would have ended up with more money than would have been available to the child under the arrangements that prevailed at the time of that terrible accident.
I should like to hear from my noble friend when he winds up whether it is a general principle that can be accepted on all sides of the House that people who were formerly legally aided would have done worse than those who are now to be conducting their cases under the CFA. Saying that we do not need an arrangement of the sort put forward by the noble Lord, Lord Cormack, is a very powerful argument.
I also thought that perhaps the noble Lord had failed to notice that in all these cases involving children there is a litigation friend, who has to be approved by the court. Therefore, his comment that we are looking at people who are least able to help themselves may not be altogether valid. The parent or a suitable adult always appears on the child's behalf and the child does not have to go into the court without that support. Therefore, although children may be apparently less able to conduct litigation, they do not have to deal with these matters in the court; litigation friends appear on their behalf.
Lord Cormack: I am well aware of that but the point that I was seeking to make in a very brief speech was that those who are damaged by an agency of the state deserve the help of the state automatically if they are seeking redress.
Lord Avebury: I am not sure that that proposition is right. I do not think that my noble friend had borne in mind the possibility that the child would do better financially under the CFA. That is a very important consideration. In fact, in my mind it is the determining consideration in how I approach this amendment. If the argument of my noble friend Lord Thomas of Gresford is correct, it is conclusive that we should not support the amendment but that we should allow cases to go forward under the CFA, under which people will be better compensated than they would have been.
Baroness Massey of Darwen: My Lords, I have put my name to an amendment in this group-that in the names of the noble Baroness, Lady Howe, and others. I simply make one appeal to the Government concerning their commitment to protect vulnerable children and young people.
I declare an interest as the chair of the All-Party Parliamentary Group for Children. Over the past year our theme has been vulnerable children. We have heard about the problems that such children and their families have in dealing with complex systems such as education, health and the law, and we have heard many passionate and committed speeches about these young people today. In my experience, this House has never been party-political on issues regarding children; it has always considered the well-being of children to be above party politics. That spirit has been shown today on the Benches opposite, and long may it continue.
The Minister for Children, Sarah Teather, for whom I have the greatest respect, made a commitment in 2010 to assess legislation against the needs of children, as enshrined in the United Nations Convention on the Rights of the Child, and I find it ironic that we are now considering legislation that will potentially damage vulnerable children and their families. The Government, in their report Positive for Youth-I shall not go into that but the commitment is there-made commitments to protect disadvantaged and vulnerable children, and the Liberal Democrat youth policy Free to be Young makes commitments to improve young people's access to legal advice. I think we should all remember those commitments today. I trust that the Government will recognise that intervention at an early age, particularly for the vulnerable, is not only humane; it also benefits well-being and is cost effective. I hope that the Government will look again at the commitments to vulnerable children and young people.
The Lord Bishop of Ripon and Leeds: My Lords, as the first speaker from these Benches in this debate, I add my gratitude for all the work of Lord Newton of Braintree. It seems strange to be sitting here without his advice from behind me, as the noble Lord, Lord Bach, said earlier in the debate. He had immense care
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The amendments would go a long way to providing security of legal aid for some of our most vulnerable children, at minimal cost. We seem now to have reached a point where legal aid will be provided for many children. I have listened carefully to what has been said by the noble Lords, Lord Thomas of Gresford and Lord Avebury. It seems to be almost accidental whether a particular child will come under the provisions of the Bill. The amendment moved by the noble Baroness, Lady Grey-Thompson, gives us the opportunity to treat all children in difficulties equally, with particular concern for education and sanctuary issues.
We all recognise the importance of education for all, so we must be concerned that Black Caribbean pupils, for example, according to the children's commissioner, are four times more likely than others to be excluded permanently from school. Those children will often be vulnerable, frightened and very unsure about their future. They need the structure of the legal system to provide them with support at that point in their lives. Equally, we continue to affirm that we have an immigration system that deliberately provides sanctuary for children who have been victims of abuse of whatever kind. They may have been trafficked into this country-and I, too, welcome the Government's changes on that issue. However, many will not have been trafficked; trafficking is extremely difficult to define. Nevertheless, they may have suffered sexual exploitation, domestic slavery or abuse. They may have been brought into this country as domestic slaves and will often have been abused. Some will be the subject of custody cases, which may lead to abuse or separation from a parent. Others would be in danger of abuse if they returned to a country where exploitation would continue.
Justice demands proper legal representation and the amendments provide a way of securing that at minimal cost. They would demonstrate our concern for the most vulnerable young people in our society. They are absolutely in accord with the Government's aims and purposes, and I hope, therefore, that they will accept them
Lord Wigley: My Lords, I rise to support the amendment moved by the noble Baroness, Lady Grey-Thompson, and apologise for missing her opening remarks. However, before briefly addressing the amendment, I would like to associate myself with the words in remembrance of Lord Newton. In another place I worked very closely with him, as Tony Newton, when I was vice-chair of the parliamentary All-Party Disablement Group. Even when he could not meet us in all our demands, he was always very positive and looked for ways to come at least some of the way towards us. He will be a great loss for all of us in this House as well as for the many thousands outside the House for whom he worked so hard.
I also thank the noble Lord, Lord McNally, for some of the concessions that he has been able to make at other times-particularly for those with learning difficulties-which I was unable to acknowledge earlier.
On this specific amendment, all of us who have had reason to work on behalf of disabled children will be aware of the need to ensure that they get fair play within the system. If there is any danger of them losing out and not being able to go to appeal on benefits then there need to be safeguards in legislation.
Many of us served for weeks on end on the Welfare Reform Bill. We hoped that some amendments would strengthen it and make it more easily understood. In reality, the amendments failed. There will be challenges to the interpretation of the legislation that will need to go to the courts. Unless provisions such as those in the amendment are included in the Bill, people will miss out. Therefore, even if some aspects-to which the noble Lord, Lord Thomas, referred-are already covered elsewhere, others are not. Therefore, let us give another place a chance by agreeing the amendment. If there is then a need to pare it back, all well and good-but at this point, unless we agree the amendment we will lose everything.
Lord Phillips of Sudbury: My Lords, I was the constituent of Lord Newton of Braintree-Tony Newton-for nearly 20 years, and he was a close friend for the rest of his life. If I need a little courage in order not to follow the Whip today on at least one of the amendments in this group, I will get it from his memory. He was an extraordinary man of both first-class intellect and a really big heart. I do not know anybody who managed to marry intellect and heart in quite the effective way that he did.
I have practised law for more than 50 years. The memories that stick with me most are of trying to help-and often to help young people under 18 and their worried parents get fairness from a barbarically complicated legal system. I understand the extraordinary difficulty faced by my noble friend Lord McNally-and by the Government. They have the hugely difficult and unwelcome task of cutting back and saving on public expenditure. However, we are faced here with a balance between £6 million to £8 million, and justice for the particularly vulnerable and needy group of our fellow citizens who are under 18.
Looking down the list of issues that Amendment 3 covers, it is almost impossible not to believe that they are all essential elements of justice in the 21st century. The noble Baroness, Lady Grey-Thompson, made the point that the downstream costs of not addressing these sorts of issues with at least timely advice are likely to exceed any up-front savings. The King's Fund report made that clear.
On balance, I am persuaded by my noble friend Lord Thomas of Gresford that I need not support Amendment 4. In the same way, I will be able to compromise on Amendment 5, even with the shadow of Tony standing over me. To extend the age limit to 24 would have a dramatic effect. Those in the 18 to 24 age group are more likely than the younger group to be able to look after themselves when it comes to advice and a limited amount of representation.
Finally, I wish that the noble and learned Lord, Lord Howe, was in his place. Those of us who have been practitioners in the law will remember the happy days ushered in by the Conservative Government of
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The Earl of Listowel: My Lords, bearing in mind the wish of the House, I imagine, to move to a speedy conclusion in this debate, I shall say one sentence in support of my noble friend Lady Howe on Amendment 5 with regard to children leaving care. The noble Lord, Lord Phillips, just spoke of 18 to 24 year-olds and of his doubt that there is a necessity to protect them in law in this way with regard to legal aid. However, I would draw the House's attention, and his attention in particular, to the experience of young people in care leaving care. A quarter of young people in care leave their foster carer or children's home at the age of 16. These children have been traumatised-they would not have been taken into care unless that was the case.
Very few of them can stay with their foster carer or in their children's home beyond the age of 18, so past that age most of these traumatised young people have to fend for themselves. They get some additional support, but they are pretty much on their own. The average age at which most of our children leave home and have to fend for themselves is 24, so I hope that your Lordships will keep in mind the particular vulnerability of young people leaving care. It is recognised in the Children (Leaving Care) Act, which gives them special consideration until the age of 21 and until the age of 24 if they are in education or training. I hope that the Minister will give that a sympathetic ear.
Lord Crisp: My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Cormack, and I would like to speak very briefly following on from his eloquent speech and those of the noble Baroness, Lady Eaton, and others. First, like others, I am appreciative of the concessions that have already been made, but I think that they do not go far enough on clinical negligence. I recognise that it is a relatively small number of children who are left out by the concessions that have already been made.
As a former chief executive of the NHS, I add my simple tribute to Lord Newton of Braintree. He was chair of one of our great hospitals and, like others, I benefited from his wise and useful advice on many occasions.
Like others in your Lordships' House who are associated with the NHS, I know very well the distress to all concerned that is involved in these clinical negligence cases. It obviously affects the children and their families, but also the staff and the institutions. What is most important here is to make whatever processes that are available as simple and quick as possible.
The Government's proposal fails on three key points. First, what impact will these changes have on access to redress for this vulnerable group? I do not think from
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Lord Faulks: My Lords, I speak as a practitioner in clinical negligence. Doctors who work in the NHS might be slightly surprised to find themselves described as "agents of the state", but I take the point that the noble Lord makes that they should be accountable. Of course, they are accountable, and they can still be sued under the CFA system. The difference between the children in cases that are still outside scope unless this amendment is allowed and the children who will be within scope because of the concession made by the Government is, as I understand it, because of an assessment of the complexity of the cases. The Government have taken the view that because brain-damage cases require an enormous amount of investigation, there is a real risk that no one will take them on a CFA basis, whereas these children cases are, by and large-and I admit that the lines are not always hard and fast-less complex than that. I would respectfully suggest that although these are hard choices, it is a reasonable choice for the Government to have made in the circumstances.
I conclude by saying that I, too, received a great deal of assistance from the late Lord Newton as a new arrival in your Lordships' House. I know that he would regard these brief observations of mine as-as he would describe it-very loyal, and I fear he would not have regarded that as a compliment.
Baroness Benjamin: My Lords, I support Amendments 3 and 5. I also pay tribute to Lord Newton. In the short time I knew him, he always showed integrity, dignity, compassion and a smiling face right till the end. He was a true gentleman. I also thank my noble friend Lord McNally for meeting with me, and for showing compassion and making it clear that children and vulnerable young people will continue to be covered by legal aid-and I believe him.
It therefore makes no sense for the 3 per cent of children and young people covered by these amendments to have to apply for legal aid from a fund that is called "legal aid for exceptional cases"-by definition, there will not be any exceptional cases as all children and young people are covered. Neither does it make sense to be applying for funds through a social worker or a local authority when the person or organisation being challenged may well be the young person's own social worker or local authority. Even an adult would have difficulty with that process.
Therefore, the House has two options before it today, which are about the system and not the scope of legal aid. Option one is what Amendments 3 and 5 are
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Option two is the new system proposed by the LASPO Bill, in which a child will need to ask their social worker, who is not legally qualified, to make the time to apply for funding from the Ministry of Justice. However, no details have been given as to how long this will take, what legal training will be given to the social worker, how much the new system will cost, what happens if a social worker has not yet been allocated to the child or young person or how they will even find out how to do this.
I believe that the new system being proposed will be bureaucratic, expensive and time-consuming, and could lead to many miscarriages of justice. Even my noble friend the Minister says in his letter that this system will be challenged and end up in expensive cases of judicial review-meaning more money for the highest- paid lawyers, paid for by the taxpayer. This is not common sense.
I ask the Government to think again, to bridge that narrow gap, and include not just the 97 per cent already accounted for in the Bill, as my noble friend Lord Thomas highlighted, but all children, including that last 3 per cent of vulnerable children, who may be living independently from their parents, living in care or escaping difficult family circumstances. As I always say, childhood lasts a lifetime and these early experiences will have a fundamental effect on their lives. For the sake of these children, I ask the House to support Amendments 3 and 5, which would establish an independent process understood by all.
Baroness Masham of Ilton: My Lords, in supporting these amendments I give an example concerning Amendment 4. Recently, I had a letter about a tragic case. A baby had a boil on his behind. When his mother took him to have his polio vaccine, she queried the fact that he had a boil with the nurse. The nurse queried it with the doctor who said, "Go ahead and give him the vaccine". The baby developed polio through the urine in his nappy. Now, years later, the boy is paralysed but the family have had no help and are still trying. Many cases need to be sorted out early to save years of anguish.
Lord Bach: From the opposition Front Bench I can be extremely brief, as I should be because this is Third Reading. These are very important amendments which the House will have to decide on shortly. JustRights has done some number-crunching on the issue of children. It points out that, while 95 per cent of funding may be protected, only 74 per cent of children are protected likewise. Therefore, the 6,000 mentioned by the noble Baroness who moved Amendment 3 will be left to navigate the legal system alone. These children will have no adult to help them-no litigation friend, in parlance.
It is absurd to think that in social welfare law cases, a conditional fee agreement is any substitute whatever for basic legal aid for getting legal advice for the kind
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Lord McNally: My Lords, in debates like this, I am always a little worried that noble Lords not in the Chamber when the Division Bells ring will come along and say, "What is this about?". They may be told, "Oh, we are voting on legal aid for children". Let us be clear, these amendments and this debate are not about whether we provide legal aid for children and vulnerable people; nor is it about not being willing to help those least able to help themselves; and nor is it about denying help to the most vulnerable in our society.
As my noble friend Lord Thomas of Gresford pointed out, the core principle of our reforms is to ensure that civil legal services will continue to be available in the highest priority cases; for example, where a person's life or liberty is at stake or where children may be taken into care. The application of this principle has led us to protect the vast majority of funding and cases involving children. They include child protection cases, civil cases concerning the abuse of a child, special educational needs cases and cases involving children who are made parties to private family proceedings. Noble Lords will also recall that we have moved to make funding available for clinical negligence cases concerning brain-damaged infants. It is simply not true therefore to suggest that there will be no funding or very substantially reduced funding for the cases involving children and young people.
In addition, as indicated earlier, we have moved the amendment ratchet to "regulator" which will enable us to test whether some of the more dramatic warnings that have been issued about our reforms can be looked at. We are committed to undertake a post-implementation review of the specific policies set out in Bill. We believe that these safeguards are sufficient to ensure that children do not fall through the net. Our approach will mean that 97 per cent of current spend on cases involving child claimants will continue, and that is the overwhelming majority of current support. Spending reductions are never welcome, but I hope these figures put it beyond doubt that we have made a genuine endeavour to ensure that children are protected, even as we push on with the wider objective of our reforms, which is to focus scarce resources on the most serious cases, to contribute to savings and to reform the system.
I do challenge the assumption that the remaining 3 per cent will automatically require specialist legal advice rather than non-legal advice which can avoid
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Perhaps I may take up a point made by my noble friends Lady Eaton and Lady Benjamin. They both took exception to the word "exceptional". The word is merely the label used to describe the test under Clause 10 and is not intended to have any special legal meaning. It simply signifies that these cases fall outside the normal scope of civil legal aid. There is no expectation that children or any other applicants would be required to fill in excluded case application forms. These will be completed by a solicitor, as they are now under the existing scheme, and our intention is that payments may be made towards the costs incurred in making a successful application. We propose that the application process for excluding certificated work will be broadly similar to the existing process for in-scope cases. A number of noble Lords have made the point by saying, "It's all very difficult and complicated", but unless you are going to make a blanket payment, you draw lines and make conditions. There is a certain element of bureaucracy, if that is the right word, but I do not believe that this is a new and complicated programme. It can be used easily and, as I have said, the word "exceptional" is used simply to designate those matters which are out of scope.
Secondly, we have been focusing on delivering additional resources for citizens advice bureaux and similar, which provide the general, practical advice that can often prove better than the drawn-out, adversarial experience of legal action. As noble Lords know, the Chancellor announced last week that we will be making a further £20 million-and this time it is £20 million of new money-available for each of the next two financial years. This comes on top of the £100 million voluntary sector transition fund.
Lord McNally: Citizens advice bureaux operate in a country that is 10 per cent poorer than the last Government gave the country to understand. It is absurd to pretend that citizens advice bureaux or any other sector-local government and national government -should not face this reality.
In civil cases, it is already a requirement of the rules of civil litigation that a child or other protected party who lacks capacity must have a litigation friend to conduct a case on their behalf. In the case of a child, this is usually a parent unless the court specifically orders otherwise. It will only be in exceptional circumstances that the court will make an order permitting the child or protected party to conduct proceedings on their own behalf. Any step taken before a child or protected party has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child's parent or other person caring for the child, for example, to act as the child's litigation friend in proceedings where the child is a party. We believe that this provides a clear
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We recognise that Amendment 5 also covers the 18 to 24 year-old category. As I said earlier, we have provided for those who are most vulnerable. However, we have also been clear that, in what is a complex area, there must be flexibility. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas of scope which would normally be out of scope, where necessary, to ensure the protection of the individual's right to legal aid under ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person's ability to represent themselves, the complexity of the proceedings, the importance of the issues at stake and all other relevant circumstances. An individual's age as well as their capacity will be a key consideration in determining a person's ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children and vulnerable young people who would otherwise be unable to present their case.
Amendment 3, in particular, seeks to bring all cases back into the scope of legal aid where a child is a party, but the Bill already provides for child parties to be within scope of legal aid in family proceedings. The amendment is therefore in part unnecessary and seeks to replicate what is already in scope. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to the relative priority or alternative methods of resolving them. The majority of children will already fall within the scope of legal aid as provided for by the Bill. However, there are additional safeguards to provide further protection through exceptional funding powers and, should it prove necessary, the power to add to civil legal services.
The Archbishop of York: The Minister has not yet answered the question which I think the noble Lord, Lord Thomas, raised-and had I had the chance, I would have raised the same question-on Amendment 3, in relation to proposed new paragraph 1(1)(k), which specifies:
I have not seen that provision in the Bill as drafted, but it is quite important. What will happen to it? I agree with the Minister about the other provisions, but I do not think that he has answered the question on that one.
Lord McNally: It is always a pleasure to see the most reverend Primate the Archbishop of York in his place. I shall give him a definitive answer as I sum up and come to my peroration, as there are a number of other matters that I wish to cover.
Amendment 4 seeks to bring into scope children for all clinical negligence cases. I have already set out my arguments on how we have protected children in the Bill. On clinical negligence, in particular, we recognised the concerns that serious and complex cases involving brain-damaged babies may not be able to secure a conditional fee agreement, and we therefore brought
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The amendments we have made will allow funding for cases where the negligence occurs in a period of time beginning with the point of the mother's pregnancy until eight weeks after birth. This does not mean that the symptoms have to become apparent during this period. They could become apparent beyond this period and still be in scope providing that the relevant negligent act or omission took place during that period. We also moved to include an additional safeguard in respect of babies who are born prematurely. We recognised that these children are particularly vulnerable in the post-natal period and have therefore provided that where a baby is born before the 37th week of pregnancy, the period of eight weeks will not run from birth but will be taken to start from the first day of what would have been the 37th week of pregnancy. I hope noble Lords will recognise that the Government have listened and acted to introduce back into scope the most serious clinical negligence cases involving children.
Amendment 5 seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 years old or under and has a disability, is a former care leaver or is a vulnerable person as specified by regulations. We have provided for those who are most vulnerable, as I have said, under Amendment 3, which covers those under the age of 18. However, we have also been clear that there must be flexibility in this complex area. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas that would normally be out of scope, where necessary, to ensure the protection of an individual's rights to legal aid under the ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person's ability to represent themselves, the complexity of proceedings, the importance of the issues at stake and all other relevant circumstances. An individual's age as well as their capacity will be key considerations in determining a person's ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children or vulnerable young people who would otherwise be unable to present their case.
Lord McNally: The most reverend Primate the Archbishop of York may be disappointed to know that he may have been absent to defeat us on that point at an earlier stage. As the noble Lord, Lord Bach, has indicated, the Government will look at these matters between now and consideration in the other place.
The only outstanding point that I wanted to cover was that made by the noble Lords, Lord Thomas and Lord Avebury, about the balance between CFAs and legal aid in injury cases. Although I am not a lawyer, I would say that, on balance, CFAs are the most
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It is always difficult to draw lines and easy to say that the lines have been drawn in the wrong place. As I said in opening, the amount of coverage for young people in this area is completely different from what was suggested in some speeches today. We believe that between the coverage of scope that we put into this Bill, the workings of exceptional funding and the availability of wider advice, there will not be the kind of consequences that have been suggested. I also make it clear that we do not think that Amendments 3, 4 and 5 are consequential, so if noble Lords do press them, we would want to test the opinion of the House on each. However, I hope that the noble Baroness will agree to withdraw her amendment.
Baroness Grey-Thompson: My Lords, I thank the Minister for his comments and consideration. The House appreciates that he has perhaps been given little or no room for manoeuvre. I would also like to thank all Members who have tried to ensure that children's interests are safeguarded in this Bill. Most of all, I thank Members on the government Benches who have understood the problems with this legislation right from the start and have been prepared to raise them. We all understand that this is a very difficult thing to do. However, because of the very nature of the legislation and its impact on those unable in law to represent themselves, we need to ask the other place to take another look. Therefore, I wish to test the opinion of the House.
Lord Cormack: My Lords, the House has just approved an amendment which I felt included my own. I am reluctant to ask the House to vote again but, since my noble friend said that Amendment 4 is not consequential, I have something of a dilemma. It is my view that what the House has decided embraces what my amendment contains. However, since my noble friend is shaking his head vigorously, I must, with great reluctance, therefore test the opinion of the House.
(a) has a disability under section 6 of the Equality Act 2010;
(b) is a former relevant child (care leaver) by reference to the Children (Leaving Care) Act 2000;
(c) is a vulnerable person as specified by regulations; or
(d) otherwise falls within the categories of vulnerable young people which the Secretary of State may prescribe in regulations.
(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 Howe of Idlicote: My Lords, I, too, wish to test the opinion of the House. We are talking about a small group who, as my noble friend Lord Listowel put it so well, are highly likely to come from very deprived, disrupted backgrounds and are clearly in need of help. Over and above the success of the previous amendment-I am delighted with the result-I want to test the opinion of the House, and I hope that noble Lords will support my small amendment.
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, this is an important government amendment on an issue that has been the subject of considerable debate in your Lordships' House and, indeed, in the other place, on legal aid for cases of domestic child abduction. We have always been clear that legal aid should be available to both prevent and remedy international child abduction and, as indicated on Report, we have been listening sympathetically to the powerful arguments about legal aid for domestic child abduction. We agree that the unusual nature of these cases, including the terrible impact on those involved, means that legal aid is justified to find a child who has been unlawfully removed within the United Kingdom.
We think that our amendment, which has been worked up in the light of discussion with the noble and learned Baroness, Lady Butler-Sloss, achieves this. One point that the noble and learned Baroness has asked the Government to put on the record, which I am happy to do, concerns what we mean by unlawful
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I should add for the sake of completeness that our amendments also add recovery orders under Section 34 of the Family Law Act 1986 to a list of remedies for which civil legal aid is available in international child abduction cases as well. We can see the potential relevance of such an order where a child has been removed from the parent with residence but not yet from the United Kingdom, so the final international removal might still be prevented. Another small technical amendment relates to what are described as Section 27 applications. Legal aid will be made available for the narrow associated issue of registering an order made in one part of the United Kingdom in another part of the United Kingdom if it has a different legal jurisdiction. I beg to move.
Baroness Butler-Sloss: My Lords, I should like to congratulate the Government and also to express my very deep gratitude to the Ministers in this House and in the other House for achieving a very sensible solution. I am also particularly grateful to the government lawyers who have done an enormous amount of work both for me and for those behind me, and who took the trouble to deal directly with the former chairman of the Family Law Bar Association and the chairman of the ILPA in relation to a later amendment. I really am very grateful.
However, I have a wish list-I might refer to it when the first government amendment that was accepted today enables a little more money to be provided-for two groups of left-behind parents. They are generally fathers, but sometimes they are mothers. The first situation concerns preventing a threatened abduction in a family where both parents are still living together because neither parent has yet applied for a court order. The left-behind parent may be warned by another member of the family that the mother, generally, will take off with the child and that the father will never see the child again. That would require a prohibited steps order. I understand the thinking of the Government on why they will not deal with the matter now. However, I would like them to put it on the waiting list because it needs to be done at some stage.
The second is where the mother-it is generally the mother, but sometimes the father-removes a child in a situation where there is not yet a residence or other order. That internal parental abduction case is not covered, either. I would like to put both those matters on the wish list and I hope that one of these days the Government will be sympathetic to them. However, the work that has been done, and the recognition by the Government that this should be dealt with, is splendid news, and we are all extremely grateful.
Lord Beecham: My Lords, it is only a few weeks since the noble Lord, Lord McNally, described Lord Newton as a national treasure except when he voted
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I turn to the amendments in this group and join the noble and learned Baroness, Lady Butler-Sloss, in acknowledging that the Government have made significant improvements to the Bill and in congratulating the noble and learned Lord on doing that. I also congratulate the noble and learned Baroness on initiating these very welcome changes. I endorse what she said about further developments. Now, of course, the Government have the capacity to bring them about without primary legislation. The Opposition look forward to that in due course and certainly support the amendments in this group.
Lord Wallace of Tankerness: My Lords, I start by associating myself with the comments made by the noble Lord, Lord Beecham, about Lord Newton. I first encountered him in 1983 when I was a newly elected Member of Parliament and he was the Social Security Minister. I had a particular constituency issue and he could not have been more helpful or understanding. That was my experience of him as a Minister throughout my time in the other place.
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