I do not want to dig up unhappy memories of those 50 years and their consequences in the Province, but I suggest that we have to learn from that experience. If the Minister is unable to accept the amendment or to use the power conferred by Section 26(2) of the Northern Ireland Act, I would ask her to indicate what possible measure she proposes instead to guarantee the right to free speech as well as the right to a good reputation across the Irish Sea.

Lord Pannick (CB): My Lords, I have added my name to this amendment. I agree entirely with everything that has been said by the noble Lords, Lord Lexden and Lord Lester of Herne Hill. There may, of course, be some justification for the reluctance of Northern Ireland politicians to bring the law of libel into the 21st century; there may possibly be something unique about free speech and reputation in Northern Ireland that demands the retention of laws that purport to address communications but were developed before the internet, blogs and tweets and, in many cases, before the invention of radio and television—but I doubt it. No credible explanation has been provided as to why Northern Ireland law should remain in the dark ages. I very much doubt whether the Minister will be able to offer any substantive reason why changes in the law thought necessary across the House in relation to England and Wales are not equally necessary in Northern Ireland. In those circumstances, I am unimpressed by the argument that Parliament should do nothing because this is a devolved area. The Northern Ireland Executive and Assembly have had ample time to act and have done nothing.

In libel trials, counsel habitually refer to the biblical statement that a good name smells sweeter than the finest ointment. I have to say that I detect an unpleasant odour in the law of Northern Ireland, and I very much hope that the Minister will be able to tell the House that she is going to do something about it.

25 Feb 2014 : Column 868

Lord Black of Brentwood (Con): My Lords, I must declare an interest in this subject as the executive director of the Telegraph Media Group and draw attention to my other media interests in the register.

I have been involved in this issue throughout the process, since it first became apparent that there was a real problem in the debate that my noble friend led on this last summer, at the launch of the Private Member’s Bill by Mike Nesbitt in Belfast in September and in Committee on this Bill. Throughout that time, some powerful arguments have been put forward in favour of change, both here in Parliament and by civil society organisations in Northern Ireland, the media and academia among them. There have been strong arguments about the impact on jobs, to which my noble friend referred and about the impact on ordinary people who, in the phraseology of the mortgage adverts, could find their home at risk for something that they have simply written on Twitter or Facebook. There is the damage that could be done to the creative economy in Northern Ireland and to academic freedoms in higher education as well as the real dangers of media plurality.

We have heard many other arguments advanced today by my noble friend Lord Lester about the difficulties that the judiciary will face, and my noble friend Lord Lexden made reference to the difficulties that litigants will face, and those seeking to protect their reputation. So there have been many powerful arguments that in my view, given the gravity of the situation, should be met with equally strong ones as to why the new Defamation Act should not apply in Northern Ireland, particularly as this issue impacts on the most fundamental human right—free speech. If there are arguments, we should hear them today, but all we have had is a deafening silence: silence from the Northern Ireland Executive and silence from the political establishment in Westminster, which I fear simply wants to shy away from the issue on the basis, as the noble Lord, Lord Pannick, says, that this is a devolved matter. In Committee, my noble friend the Minister majored on this point, comparing the situation in Northern Ireland with that in Scotland, missing the fundamental point that there is a different libel law in Scotland. That has nothing to do with devolution, but is to do with development of the common law that dates back many centuries. False comparisons such as that will not do. Deafening silences will not do, because freedom of speech for an important part of our United Kingdom is at stake.

5.45 pm

Everyone respects the devolution settlement contained in the Northern Ireland Act 1998, and we all respect the logic of the Sewel convention, although it is, as the noble Lord, Lord Lester, said, just that—a convention, not a tablet of stone. Under the Northern Ireland Act, one of the excepted matters—those issues of extreme importance to the United Kingdom—is the constitution. This issue is at heart a constitutional matter because it impacts on the integrity of our legal system, on free speech—which is a fundamental constitutional right—on media plurality and on the ability of citizens to achieve redress of grievance. All those are undermined by the inexplicable actions of the Northern Ireland Executive.

25 Feb 2014 : Column 869

Unless we recognise that point—that this is not a matter of legal arcana but an issue fundamentally about the integrity of policy and long-established freedoms—I fear where it will end. Already Northern Ireland is becoming an anarchic force in UK-wide media policy. It is opting out of defamation laws which in many ways will punish ordinary people and is clinging to an oppressive, outdated regime. It has, as we have heard, given no reasons for doing so. It has already opted out of the royal charter on press self-regulation, yet no reasons have been given. I can think of many reasons the Northern Ireland Executive might want to opt out of it, but no reason has been given by them.

A pattern of behaviour is appearing of a pick-and-choose approach to fundamental constitutional issues. I ask my noble friend the Minister what would happen if, when next we look at the issue of data protection, the Northern Ireland Executive decide not to adopt vital changes that have been made to that regime but instead legislate in a way which would undermine investigative journalism, on which democracy in Northern Ireland depends. Would the Government intervene at that point? What would happen if the Northern Ireland Executive decided to introduce a system of statutory press controls that would be wholly inimical to free speech? Would the Government intervene then?

I could continue with a list of these hypotheticals, but I think I have made the point that, by appeasing the Northern Ireland Executive on such a vital policy matter, the Government are sliding down a slippery slope that will help destroy Northern Ireland’s creative economy, destroy jobs and grievously undermine free speech. This issue is too important for the Government and, with respect, the Labour Party simply to say it is a devolved matter. If we maintain that approach, that will come back to haunt us in ways which we cannot imagine. The most regrettable thing of the lot is that it is the people of Northern Ireland who will pay the price.

Lord Browne of Belmont (DUP): My Lords, defamation, in common with other civil-law matters, is a devolved area, so the law in Northern Ireland is indeed a matter for the Northern Ireland Assembly. As the Minister stated in Committee, it is essential that we all respect the devolution process—and part of that process is that you have different laws in different parts of the country.

Devolution in Northern Ireland permits the devolved legislature and Executive to develop policies that differ from those in the rest of the United Kingdom. Therefore it is only right and proper that the Northern Ireland Executive should have the opportunity to consult on whether or not the Defamation Act 2013 should apply to Northern Ireland. Indeed, the Minister of Finance and Personnel, Mr Simon Hamilton MLA, has already asked the Northern Ireland Law Commission to assess the Defamation Act 2013. The Northern Ireland Law Commission is an independent body and will undertake a complete public consultation on the issue so that the people of Northern Ireland will have an opportunity to contribute to the discussion. I am sure that noble Lords who have contributed to this debate will make a robust submission to the Law Commission.

25 Feb 2014 : Column 870

As we have heard, currently Mr Michael Nesbitt MLA has said that he is to introduce a Private Member’s Bill. To date he has launched a consultation on the issue but as yet no detailed analysis of the responses he has received has been published. I understand that he is willing to pass these responses on to the Northern Ireland Law Commission. The law commission is a fully independent body and is not subject to the direction or control of the Assembly or Government. The Northern Ireland Finance Minister has made it abundantly clear that, as with any other law commission report, all recommendations will have to be thoroughly assessed with a view to making final policy recommendations.

It is only right and proper that the Northern Ireland Executive and Assembly be allowed time to receive this report and I trust that they will act in a responsible manner after receiving its findings.

Lord Carswell (CB): My Lords, the Defamation Act 2013 was wholly admirable legislation which righted and rebalanced the law of libel and slander in a thoroughly excellent way. It needed to be done and had been required for some time and I applaud the efforts of those who supported its enactment and who pioneered the hard work required to get it into legislation.

I cannot understand, and I can think of no sensible or acceptable reason, why the Northern Ireland Executive and Assembly have failed to adopt the Act and put it into effect. However, I have listened with great interest to what has been said today by the eloquent speakers who have supported the amendment and I have read what was said in Committee, when I was not able to be present, and I find myself in complete agreement with practically everything that has been said today about the desirability of Northern Ireland introducing the provisions of the Defamation Act.

I appreciate the kind sympathy that the noble Lord, Lord Lester of Herne Hill, has extended to the Northern Ireland judiciary, of which I was privileged to be part, although not in the litigation to which he referred in such affecting terms. I think it was after I had been translated to become a member of the Appellate Committee of your Lordships’ House and therefore I cannot speak about the rights or wrongs of that case or of any other particular litigation.

Notwithstanding all that I have said, I have concerns and reservations and I owe it to the House and to those noble Lords supporting the amendment to say why. This is a reserved matter, as the noble Lord, Lord Browne of Belmont, has reminded the House, and it is therefore devolved unless taken back by the sovereign Parliament. I accept—there is no doubt about it—that, in principle, this Parliament, as a sovereign Parliament, is entitled to override any part of the legislation and to enact this if it sees fit, if it thinks that it is a proper case to do so.

My concern is whether it is right, sensible or wise to intervene in this way with a reserved matter, however important or desirable it is that the amendment should be put into effect. Where are the limits to lie for the House taking such a step? Is it not dangerous precedence for us to do that, even with something as important and fundamental as this? I accept all that has been said about the importance of free speech and the

25 Feb 2014 : Column 871

subject matter of the amendment, but is it wise? Would it create danger; would it start a process? If we do this in relation to this Bill, where will it finish if other people try to press Members of either House to introduce similar legislation amending Northern Ireland law in reserved matters on less fundamental subjects?

I do not find it easy to answer such questions. I am concerned that, if we go down that road, it is difficult to see where it will take us. I would very much like to see the Northern Ireland Executive and Assembly adopting this without delay. It is time it was done briskly and expeditiously, but whether we should do it is another matter. It is with very real regret that I find it difficult to support the amendment, however important and desirable the result would be.

Viscount Colville of Culross (CB): My Lords, I declare an interest as a producer at the BBC. I support this amendment and add my concerns to those of other noble Lords at the refusal of the Northern Ireland Executive to implement the Defamation Act 2013. I was sorry not to have been able to attend Committee but I read, with regret, the Hansard report of the Minister’s speech, in which she said she could do little beyond offering some encouragement for this to go forward.

The failure to implement the Act is having a deleterious effect on free speech in Northern Ireland. Even before the Defamation Act 2013 was implemented in England and Wales, Northern Ireland was particularly blighted as a place where free speech could flourish. The conservative nature of the libel judiciary in Northern Ireland means that a judge has to decide that a jury would be perverse to decide a libel case in favour of one party or the other. This sets the bar very high for the prompt resolution of disputes and allows a plaintiff to say that matters must go before a jury. As a result, trials are lengthy and expensive, whereas, in England and Wales, the judge can, at an early stage, determine the questions of fact about whether a statement is defamatory on a simple balance of probabilities test, which considerably shortens the process.

The disadvantages facing authors in Northern Ireland have been fully exploited by both politicians and putative plaintiffs. The BBC is one of the few organisations big enough to defy the threats of those who want to chill free speech and stop investigative journalism. My indefatigable and courageous colleagues who work on Northern Ireland’s investigative programme “Spotlight” find themselves under attack in a way that is hard to believe in the rest of the UK.

I cite two recent cases. In October 2012 “Spotlight” broadcast a programme called “Belize Oil” which investigated the business affairs of Susan Morrice, a Belfast-born businesswoman, now based in Denver. She raised money for an oil exploratory company called International Natural Energy. Astonishingly, the company struck oil in Belize and made millions of dollars. However, the class B shareholders—many from Northern Ireland—who were not professional investors, did not receive a penny in dividends. They sued Ms Morrice, who was found guilty in a Caribbean court of having siphoned off thousands of pounds of company money for her personal use.

25 Feb 2014 : Column 872

As the programme was being prepared for transmission, the journalists involved were bombarded with daily, sometimes hourly, threats of defamation. After transmission, a libel writ was issued against the programme. Tens of thousands of pounds of licence payers’ money was spent as BBC journalists and lawyers prepared the defence case, only for Ms Morrice to drop the case. This is the woman who has Northern Ireland’s gas and oil exploration rights.

6 pm

Likewise, in July last year “Spotlight” transmitted a programme looking at the history of a housing maintenance company, Red Sky, which lost its contract with the Northern Ireland Housing Executive. The company had been accused of poor workmanship and charging for work that it had not done. Prior to a meeting of the housing executive to reconsider the ending of the company’s contract, a DUP member of the executive, Jenny Palmer, told BBC’s “Spotlight” that the DUP Social Development Minister Nelson McCausland’s special adviser had put pressure on her to change her vote at a key housing executive board meeting and to vote in favour of extending the firm’s contract.

“Spotlight” made public part of an e-mail from the leader of the DUP, the First Minister, Peter Robinson, which was sent to the BBC prior to transmission. The e-mail warned the BBC that if it went ahead and broadcast the criticisms levelled against him in the programme, he would instruct a lawyer to begin libel action against the BBC. The programme was transmitted and included criticisms of him, but he did not follow up on that threat. Yet again, thousands of pounds of licence payers’ money was spent to defend the threat of that libel action. All the people I have spoken to felt sure that the public interest defence in Clause 4 of the Defamation Act would have been a great foil against those threats. Newspapers in Northern Ireland publish some brave reporting, but they do not have the power and the money to be able to defend themselves against those threats in the same way as the BBC.

It is not just the big media organisations which suffer the chilling effect on free speech from the libel laws of Northern Ireland. I have spoken to lawyers who read books for small publishers in the country to advise on possible libel risk. They tell me that, in Northern Ireland, the threat of libel is so great that they raise many more points of libel risk than they would when advising on publication in the rest of the United Kingdom.

As noble Lords have pointed out, there is no substantial political opposition in Northern Ireland, so in no other part of the United Kingdom is it so important that the media scrutinise the actions of politicians, yet this is the very place where they find it so hard to do so. I say to the Minister: now is the time to ensure that the major provisions of the Defamation Act are implemented in Northern Ireland, in the interests of transparency and democratic accountability.

Lord Hope of Craighead (CB): My Lords, I hesitated as to whether or not to intervene, as my experience of devolution is in regard to matters relating to Scotland,

25 Feb 2014 : Column 873

but I have also had experience in the UK Supreme Court of devolution matters relating to Wales. I think it is right that I add a word of caution in support of what the noble and learned Lord, Lord Carswell, said. The amendment seems to me to raise a constitutional issue not quite in the terms suggested by the noble Lord opposite. The issue is really how one balances the structure of the devolved legislature’s powers between what is reserved and what is devolved.

In Scotland, the language is different. As noble Lords will know, the position is that matters open to any legislation are called reserved matters. In Scottish parlance, what we have been talking about here is a devolved matter, which would be a matter for the Scottish Parliament. It is well established by convention that it is not open for Westminster to enter into legislation relating to devolved matters unless there is a Sewel convention which permits that. It is arranged with the Scottish Parliament and a Motion is passed through the Scottish Parliament that approves of the measure that this House or the other place seeks to pass. That is well established and happens quite frequently. It helps one get over the difficulties of demarcation, if there be any.

I am certain that north of the border—I am talking about Scotland, on this side of the Irish Sea—to use the word alarm would be to put it rather softly. It would be regarded as quite offensive for Westminster now, having devolved matters, to tell the Scottish Parliament how it should deal with an issue such as this. I make absolutely no comment on the nature of defamation law in Northern Ireland; that is not the issue. The question is whether it is really properly open to this House to engage with the matter, given the nature of the devolution arrangement which both Houses have approved and which is in legislation. As was suggested, there are other mechanisms for bringing about reform of the law. It may be extremely frustrating that it would take so long, but the law commissions exist to take these matters on board. Unpalatable though it may be, I would respectfully suggest that the advice of the noble and learned Lord, Lord Carswell, is absolutely sound. It would be most unwise of this House to disregard it.

Lord Lester of Herne Hill: Before the noble and learned Lord sits down, I wonder whether I could just ask this question. Given that the European convention limits the powers of the devolved institutions in Scotland and Northern Ireland and given that it expressly empowers the Secretary of State to require action if inaction would lead to a breach, would it not therefore be the case that it is within the competence of the Executive in London, and if necessary the Parliament in London, to secure compliance with the convention rights to free speech and a good reputation?

Lord Hope of Craighead: The noble Lord is quite right that the powers of the Executive are controlled by convention rights. The legislative competence of the Parliament is controlled in the same way and it is open to a court to pronounce an affirmative order requiring a member of the Executive to do something. There are mechanisms, and these would be put into place through the existing devolved system. This is

25 Feb 2014 : Column 874

something that could be arranged, but that is quite different from what is being suggested here, which is, without that background and without that attempt being made, to simply legislate from this House. I underline the caution which is being properly urged on the House by the noble and learned Lord.

Lord Bew: My Lords, I rise to support a central point made by the noble Lords, Lord Lester and Lord Black, concerning the way in which the current arrangements contain the possibility of great unfairness and difficulty for the Northern Ireland judiciary. I am a supporter of the Defamation Act 2013 and, as noble Lords have said, I served on the Select Committee of both Houses. Put aside for a minute the wisdom or otherwise of that Act—and I do believe it is a wise Act—the problem for the Northern Ireland judiciary is that it is now stuck with the interpretation of an antiquated law, while the rest of the United Kingdom, in particular the media, will be operating fundamentally according to a rhythm set by the Defamation Act 2013.

I want to make a further point concerning the issue of forum shopping, or, as it applies in the Defamation Act, libel tourism. The Northern Ireland judiciary in recent cases—I am thinking particularly of the ruling by Mr Justice Deeny in the Sean Quinn case on 10 January 2012—has clearly set itself against what we might call forum shopping. Mr Justice Deeny argued that that key, very important bankruptcy case was not suitable for Belfast on the grounds that Mr Sean Quinn had had his being and his residence in the Republic of Ireland for the previous 32 years. That is a clear indication of the broad thinking of the Northern Ireland judiciary on this question of forum shopping. In the case of the libel law, it is the issue we used to know as libel tourism, which the Act is designed to deal with. So we know to some degree where the thinking of the Northern Ireland judiciary is on this question.

There is a sense within European law in general that forum shopping is not something to be encouraged, and yet Northern Ireland is stuck with legislation—our old libel law—which actually encourages forum shopping. I am just trying to bring home to the House that the point made by the noble Lords, Lord Lester and Lord Black, is actually a profound one. The judiciary of Northern Ireland is being placed in an extremely difficult position by the current arrangements. I understand the point made by the noble Lord, Lord Browne. I have already been approached by the Law Commission and I assure him that I will give as full evidence as I possibly can to it.

Lord King of Bridgwater (Con): My Lords, I hesitate to intervene in something on which such distinguished legal brains have been brought to bear but, briefly, as a layman in these matters, I am very impressed by the arguments made by the noble Lord, Lord Lexden, and the power of the argument about the desirability of uniformity in the application of defamation laws. The noble Lord, Lord Browne, said that the advantage of devolution is that we can all make different laws. However, as a good unionist he will know that it is very desirable that as a union we stick together as

25 Feb 2014 : Column 875

closely as we can and do not make a principle of establishing every different law that we can between the different parts of the United Kingdom.

As a loyal member of the United Kingdom, I think it is desirable that the Executive of Northern Ireland should look at these matters as it seems that they are likely on some occasions to significantly disadvantage some of their own supporters, who might find themselves caught up in some very unfortunate implications. Although there is the devolved power, that power should be exercised also with respect to the position of other parts of the United Kingdom, which may find from the illustrations given by the noble Lords, Lord Black and Lord Bew, that these are difficult matters.

I hesitate to deviate from the noble Lord, Lord Lester, as he and I have a bit of history as well in some areas, as anybody will know who remembers the broadcasting ban or the amazing events when the chief constable decided to deprive female constables of the right to carry arms. The noble Lord, Lord Lester, was active during my time in that area.

At the end of the day, I am not quite clear from the exchanges that have taken place whether this is just genuine inertia or whether there is a fundamental objection within the Executive to doing this, thinking it totally undesirable in Northern Ireland, and exactly what the background to this is. However, I am prepared to accept that it is the determination of the Executive to address this, although they are moving very slowly. That is the most preferable way to go in terms of what the noble and learned Lord, Lord Carswell, said, and not to get caught by being unnecessarily accused of trying to undermine the devolution proposal. The message should go out very clearly from this House that we think this is highly desirable and almost essential to do. We look to the Executive to do it as speedily as they can and bring this matter into line, without imposing it in the amendment as proposed.

Lord Trimble: My Lords, the great advantage of this debate is that it has enabled a wide range of people across the House to express their views on the desirability of extending the modern defamation law to Northern Ireland. I very much hope that the Northern Ireland Executive will pay attention to the views that have been expressed here. There has been no argument presented in favour of retaining the old, outdated laws. I have not heard any and, from what has been said, I gather that nothing has been said by the Northern Ireland Executive to explain what is going on. The noble Lord, Lord Browne, referred to the decision inviting the Northern Ireland Law Commission to look at the matter. I hope that will happen quickly and that it indicates that action is being taken, rather than something being done just to fend off criticism. I hope that something happens there.

I must also attach significant weight to the hesitation and reservations that have been mentioned. The noble and learned Lord, Lord Hope, referred to what might happen in Scotland if this was to happen. That brought back to mind what happened in Northern Ireland in, I think, 1923, when on a certain measure London was indicating that it was likely to override the decisions

25 Feb 2014 : Column 876

being taken by the then Northern Ireland Ministers. I think it was suggested that they might seek to withhold Royal Assent from legislation that was going through Stormont, and the then Northern Ireland Prime Minister made a very robust response to that. It was of such a nature that the proposal disappeared and there was then no attempt to interfere with the exercise of devolved powers.

6.15 pm

What also comes to mind in dealing with the question of the power of this Parliament to legislate on devolved matters, whether for Wales, Northern Ireland or Scotland, is that that power did exist with regard to the old Stormont under the Government of Ireland Act. I remember an article—do not ask me for chapter and verse on this—written maybe in the late 1950s or early 1960s by Francis Newark, professor of law at Queen’s University, in which he referred to this power to legislate, which was an expression of the sovereignty of this Parliament, as being a provision to be brought out only in an emergency.

That was before we had our Troubles and I rather suspect that looking at these provisions now one would see them as being applicable not just in an emergency but in other circumstances as well. The noble and learned Lord, Lord Carswell, was quite right to point out that this is something that needs consideration. It is my impression that this amendment has been put down in order to produce this debate in the hope that what is said will have an effect. However, the message should be taken back to the Northern Ireland Executive that if they are not going to act on this in a responsible way that maintains a broad measure of parity on matters—because the matters stretch across the whole of the country there is a need for parity—they are exposing themselves to the prospect of something happening.

I notice particularly the provision that the noble Lord, Lord Lester, referred to under Section 26 whereby the Secretary of State can require things to be done in order to secure adherence to the conventions. I urge the Minister to take back to the Secretary of State for Northern Ireland that there is quite strong feeling on this matter in this House and that she should seriously contemplate that power and how it might be used, even if only as leverage.

Lord Empey: My Lords, nobody could doubt that this debate has been very wide-ranging. The contributions from our noble and learned colleagues and others have made us realise that the matters we are discussing are of very great significance.

There are a number of easy solutions. Obviously, the Executive can act at a far greater pace than they are at the moment. However, there has been a change in the past few months with the change in Finance Ministers at Stormont. Mr Hamilton’s predecessor was very dismissive of any actions being taken in this matter; Mr Hamilton has asked the Law Commission to intervene. The Private Member’s Bill that Mr Nesbitt has before him has had his consultation and he has undertaken to share that consultation with the Law Commission. I believe he met it last week and reassured it that that would still be the case.

25 Feb 2014 : Column 877

However, there has been a change in the pace at which this consultation is going. Originally we thought it would be brief and to the point because this issue has been consulted on time after time. However, I am now hearing stories that there is going to be a scoping study and then there will be a consultation by the Law Commission on top of the consultation that has already taken place in the Private Member’s Bill, on top of the consultation on the 2013 Bill. By my very rudimentary calculations, that would take the issue outside of the current Assembly’s mandate, which ends in 2016. What could be an easy solution could in fact simply kick the can down the road.

There is no question that those of us who have had the privilege of being in Stormont know that the issues raised by the noble and learned Lords, Lord Carswell and Lord Hope of Craighead, are important. By any stretch of the imagination, the easiest solution is for Stormont to deal with this itself. However, the noble Lord, Lord Lexden, and his colleagues point to the wider obligations of the United Kingdom Government and the issue of free speech and human rights. Of course, human rights have an international obligation, which is excluded from the devolution settlement and reserved to Westminster.

Pressure and sentiments have been expressed on all sides of this House. I hope that in their winding-up statements both the Government and the Opposition will encourage an early resolution to this, rather than simply going on and on with consultations for years. The truth is, and the noble Viscount, Lord Colville, made this point, that there are a few schoolyard bullies back in Belfast who regularly threaten people who speak their minds.

We have not mentioned today the other issue of academic publication, which is vital. Having had some responsibility for that, I know that there are many good researchers. We encourage research; indeed, we want to find even more money to put into research, only to find that the researchers could be prevented from actually publishing their findings. No one wants us to be in that place.

There is a simple solution to this, and I hope that the pressure from all sides in this House will direct us towards the solution, which is for the Northern Island Executive to encourage the Assembly to pass a legislative consent Motion. Alternatively, if that opportunity has now passed, the Assembly has the Private Member’s Bill in front of it; it could take over that Bill and introduce it very quickly. That is the course of action that I hope it will follow.

Lord Alderdice: My Lords, I had not intended to speak in this debate, but when I heard the speech of the noble Lord, Lord Browne, and the reservations of the noble and learned Lords, Lord Carswell and Lord Hope of Craighead, I felt that it was important to address the question of devolution and what the devolution doctrine means. It does not seem to be admissible of an entirely legal constitutional interpretation. It does not seem to be a matter of saying, “We’re devolved; we don’t have to give any kind of explanation to anyone for what we do. We can simply make arbitrary decisions”. It was not ever intended for that purpose. It was intended in general terms, and in particular in

25 Feb 2014 : Column 878

Northern Ireland, to ensure that decisions were made on a cross-community basis that ensured that the governance of Northern Ireland took into account the particular circumstances of Northern Ireland and its particular needs—domestically, within the United Kingdom, in relation to the Republic of Ireland and in relation to its relatively remote status. There are many areas where devolved government appropriately makes different decisions because, in terms of education, healthcare, transport or agriculture, the situation is different economically, practically, culturally, socially or whatever.

In certain circumstances, the notions adumbrated by the noble and learned Lords, Lord Carswell and Lord Hope, are completely correct, and their cautions in those circumstances would be well taken. The purpose of devolution is to enable that kind of differentiation. However, no reason has been given by the Northern Ireland Executive for this delay and for holding back. The noble Lord, Lord Browne, very appropriately supported his party in its decision on this matter, but even he did not give any good reasons why he should not fall in with the operation of the new Defamation Act in the rest of the United Kingdom. Nor, as far as I am aware, has there been any public debate at home in Northern Ireland, any indication that an agreement has been reached or any reasons adduced why we should not move forward—on the contrary, there has simply been an arbitrary decision that we are not going to go ahead on this. Then—and the noble Lord, Lord Browne, presented this in a very positive way—we will have this local consultation. That is fine if it is to ensure that there is real local difference, but it is not fine if the consultation kicks the issue into the long grass, and there is a suspicion that that is what it is all about.

On top of this, there are those circumstances where one can appropriately seal off Northern Ireland, as it were, to deal with particular issues. Animal health might be one. However, this issue cannot be dealt with in an isolated fashion. The whole point is that publication, whether digitally or in hard copy, cannot be isolated within Northern Ireland, and it puts everyone at risk if one tries to do that inappropriately.

I therefore want to emphasise that, although I appreciate the reasonable cautions, it does not seem to me that devolution is meant to enable the local devolved Executive to make arbitrary decisions without explanation or clarity, or decisions that are simply inappropriate to the circumstances. Then the question comes of how we deal with this. Do we deal with it by simply slamming something through this evening in your Lordships’ House and leaving somebody else to pick up the pieces—political or legal? I think not, but my noble friend Lord Trimble has pointed in the right direction. That is to say, whatever the limited remaining powers and opportunities of the Secretary of State for Northern Ireland, one of the opportunities she has is to take the messages from this Palace to the Stormont Administration and say to them, “Do you realise how strongly people in the rest of the United Kingdom feel about this? They are not terribly accepting of the notion that you are going to take a whole lot of time to deal with this. If you want to take a little time to tweak it or for your own particular reasons, that may

25 Feb 2014 : Column 879

well be acceptable”. However, I would be assured and reassured by the Minister, not if she were to say that she was going to accept this—because I am sure that she is not going to be in a position to do that—but if she were able to say to us that the Secretary of State, her right honourable friend, will take seriously what has been said in your Lordships’ House tonight, convey that to the Northern Ireland Executive at the most senior levels, and ensure that the matter is taken seriously and expeditiously.

Lord McAvoy: My Lords, this has been a wide-ranging debate with speeches of quality. It further justifies the existence of this place, where such a measured debate can be held. The noble Lord, Lord Lexden, cited journalists as one of the main reasons why he was bringing this forward. I could think of many other occupations that have inspired more sympathy and understanding than journalists, but I take the point that he made. On a totally irrelevant point—and it is a good job that there is not a Lord Speaker to rule me out of order—I noticed that the noble Lord, Lord Lexden, invariably sits in a seat below the coat of arms of a former stadholder of Holland, better known as William III. I am sure it is entirely coincidental, but it many ways it is quite appropriate.

This is the second lengthy discussion we have had on this issue and I am sure I will be shot down in flames with my intervention, but there we are. I will repeat the point I made in Committee—that the extension of the Defamation Act is a devolved matter. I know that the noble Lord, Lord Alderdice, made a powerful point about the nature and state of devolution as a principle, and it is a principle. Nevertheless, I place on record immediately that the Labour Opposition favour the introduction of the Act as quickly as possible and will seek assurances from the Minister as to how she intends to pursue that matter.

It is clear that the extension of the Defamation Act 2013 to Northern Ireland stands firmly in the competence of the Stormont Assembly. It is through the Assembly’s passing of a legislative consent Motion, not an Act of Parliament, that the Defamation Act 2013 will come into force in Northern Ireland. The noble Lord, Lord Lester of Herne Hill, said, if I am picking him up right—and, as a former forklift truck driver in a factory, I hesitate to cross legal swords with him—that devolution was a flawed principle. As a lay person, I do not understand the concept of attacking it on that basis. A free Parliament passed that law; a free Parliament passed devolution and a free Parliament has a right to make mistakes and will make mistakes, as the noble Lord, Lord King, knows well. The principle of devolution was passed by a free Parliament, and we in the Opposition recognise that and are very reluctant to get involved in laying down the law to a devolved Assembly. The noble and learned Lord, Lord Hope of Craighead, quite rightly mentioned the reaction in Scotland if London—in parentheses, England—tried to “dictate” to the Scottish Parliament on a devolved issue. We can have legal debates and highly principled debates here but, if we do not understand the nature of the political impact of the things that we try to do, that would be a flawed approach.

25 Feb 2014 : Column 880

6.30 pm

I state again clearly that we would push to see the Defamation Act 2013 extended to Northern Ireland. Those wishing to see the extension of the Act should be heartened and encouraged by the level of debate here because, quite rightly, no one has attacked the principle of the Defamation Act being applied to Northern Ireland. There will always be different laws in different parts of the United Kingdom, which is surely its strength, and devolution is part of that.

Certainly the Executive who or Assembly that completely ignored the reasoned, well made points made here in favour of pursuing this would be very foolish. It is absolutely right that the noble Lord, Lord Browne of Belmont, reminded us of devolution. It was useful to have that reminder, because it shows that local reaction to dictation from London is seen as dictation from England. The noble and learned Lord, Lord Carswell, also indicated the need for caution in going about these things. It is very important that that was local opinion being brought to bear on this debate.

Reference has been made, as it should be, to Mr Mike Nesbitt’s Private Member’s Bill. There are accusations that the consultation is being deliberately delayed. The message should go out from here: “We want to see you get on with it”. The consultation garnered over 200 responses—a large number—of which around 90% were positive. It was also mentioned that the current Northern Ireland Finance Minister, Mr Simon Hamilton, has also asked the Northern Ireland Law Commission to examine the issues surrounding defamation law within Northern Ireland. While some have expressed concerns over the timetabling, surely that shows that clear and active consideration is now being given to the extension of the 2013 Act.

Several noble Lords, including the noble Lord, Lord Bew, gave illustrations of why the introduction of the law in Northern Ireland would be good. The noble Lord, Lord Empey, confirmed that as well. If we have an influence—and I believe we do—it is that your Lordships’ House is a House of Lords that tries to influence opinion within the United Kingdom. The Assembly that and Executive who ignored that would be a very brave one, because discussion here does reflect public opinion in Northern Ireland. That also builds on the reference that the noble Lord, Lord Kilclooney, made to growing dissatisfaction and disillusionment with the Assembly. The message is clear: listen to the people and act in their interests.

Baroness Randerson: My Lords, I know that the concerns expressed so eloquently by my noble friends Lord Lester and Lord Lexden are shared widely across the House. That has been obvious from the debate today. There can be no doubt, either in Westminster or in Stormont, about the strength of concern felt by many noble Lords about the failure so far to reform the law on defamation.

Many organisations and individuals have also highlighted concerns about the possible effects of there being differences in the law between Northern Ireland and England and Wales. For example, the noble Lord, Lord Bew, referred to the problems for the judiciary in trying to deal with an out-of-date law and the noble

25 Feb 2014 : Column 881

Lord, Lord Black, and other noble Lords referred to the impact on the media. As we have heard, there has been an active campaign in Northern Ireland involving civil society organisations, academics, the media and some political parties. It is not quite true, as the noble Lord, Lord Pannick, implied, that nothing has happened since the Defamation Act was passed here. Things have moved on in Northern Ireland. There have been responses; they just have not been very fast or gone very far. It is not true to say that nothing has happened, because the campaign has certainly had an impact. The noble Lord, Lord Browne, outlined that there is action now in the Assembly, both by Mike Nesbitt and with reference to the Law Commission. Some scepticism has been expressed about whether this will lead to a result or whether it is just a delaying tactic by the Executive. I will not speculate on that, but I put it to noble Lords that the Law Commission is a well-respected, expert institution and if there were any intention to use the commission to avoid the issue, it seems to me that that would be likely to backfire. We have also heard about the consultation and the Private Member’s Bill brought forward by the leader of the Ulster Unionist Party, Mike Nesbitt. Undoubtedly his consultation produced some valuable responses and information. These are real changes and developments that have happened in Northern Ireland since the Defamation Act was passed here.

As I have said on previous occasions, the Government believe that the Defamation Act makes some very important improvements to the law that was previously in place. It introduces a tougher serious harm test to discourage trivial claims and a single publication rule so that a publisher cannot be repeatedly sued about the same material. It addresses libel tourism and prevents claims being brought in the English courts where the parties have little connection to this country. It provides simpler and clearer defences to those accused of defamation—for example, the creation of new statutory defences of honest opinion and truth and a new statutory defence for publications on matters of public interest. The Act also takes specific action to help encourage robust scientific and academic debate. It is important that those improvements and advantages are emphasised time and again as that is the way in which the Executive in Northern Ireland will be encouraged to develop their own legislation on this and to adopt the Defamation Act for themselves.

The noble Lord, Lord Lexden, asked some specific questions. It seems a very long time ago now but it is important that I respond to them. In response to his first question on whether the Government will secure a public explanation from the Executive of their inaction, I repeat that this is a devolved issue and it is important that we respect that devolution. However, that does not mean that the UK Government have not asked the question and would not appreciate an explanation.

Lord Lexden: Assuming that the question has been asked, should the House draw the inference and the conclusion that no answer has been given to the Government—no answer to the people of Northern Ireland, no answer to those in this House who have raised the question, and no answer to the Government either?

25 Feb 2014 : Column 882


Baroness Randerson: It has been said several times this afternoon—more times than I can count—that the Northern Ireland Executive have not given any explanation. Of course, the most important group to which the explanation is owed is the people of Northern Ireland.

The second question asked by the noble Lord was whether we would establish what the Executive intend to do. I repeat that it is for the Assembly and not the Government to hold the Executive to account, and it is for the Assembly to seek an explanation. That goes along with my comment that the people of Northern Ireland are those to whom the Executive should be explaining themselves in the first instance.

In response to the third question put by the noble Lord, Lord Lexden, we have of course set out to the Executive what we see as the benefits of the Act and we will continue to discuss the issue. When my noble friend Lord McNally was Minister for Justice, he wrote to the Executive commending the Act, and I am absolutely sure that the Executive will in due course become aware of our debate this afternoon.

Therefore, the Government have been active in encouraging the Executive to consider the need for change. Prior to the introduction of the Defamation Bill before Parliament, there was contact at official level to establish whether the Executive wished to seek the approval of the Assembly to a legislative consent Motion. Following completion of the Bill’s passage, as I said, my noble friend Lord McNally wrote commending it to the Executive.

Lord Lester of Herne Hill: My noble friend has emphasised the importance of the Law Commission in Northern Ireland. Can she correct my misunderstanding, if that is what it is? My understanding is that the Northern Ireland Law Commission consists of a part-time commissioner and a chief executive, and that is it. Am I wrong about that?

Baroness Randerson: I am not aware of the exact size of the Law Commission. However, I am aware that the Law Commission’s reputation is not affected by any issue regarding its size, in that it is clearly a body with a good reputation. If the commission is as small as my noble friend indicates, that might explain why it will take it some time to consider this issue. However, I am not able to give a precise answer to his question.

I wish to remind noble Lords that the civil law of defamation is of course a devolved matter, and under the Sewel convention decisions on whether legislation in transferred areas should apply to Northern Ireland usually fall to the devolved Administration. A number of noble Lords have set out why they believe the Government should consider breaching the Sewel convention. I urge them to consider the wider ramifications of doing so for our relations with all the devolved legislatures in the United Kingdom. I welcome the words of the noble and learned Lords, Lord Carswell and Lord Hope, in this regard. It is important that we respect devolution. It is not just in respect of Scotland that we should be wary of breaching the Sewel convention; I believe that it would be destabilising in Northern Ireland if we were to pick and choose which bits of

25 Feb 2014 : Column 883

devolution we decided to observe. My noble friend Lord Lester has eloquently explained the weaknesses of our non-federal system of devolution, but I urge noble Lords who are of the mind that we should breach the Sewel convention to look at this from the viewpoint of the nations of the UK. We should be considering what it looks like from Scotland, Wales and Northern Ireland if we pick and choose which aspects of devolution we observe.

6.45 pm

I turn now to the comments of the noble Lord, Lord Black, who asserted that this was a constitutional issue and hence not devolved. I fear that the problem cannot be defined out of existence in this way: the issue is clearly a devolved one, as part of the civil law. The fact that it raises significant rights issues does not change that. We recognise the concerns involved, but we cannot abandon the principle of devolution just because we deplore the decisions of the devolved Administration concerned. I will return to that in my response. I say also to the noble Lord, Lord Black, that the Data Protection Act is a reserved matter and not devolved, so the Assembly can only legislate with our consent. We carefully consider the content of Assembly Bills in the reserved field.

My noble friend Lord Lester raised issues connected with human rights, namely the power in Section 26 of the Northern Ireland Act 1998. I urge noble Lords not to assume that the previous law breached the European Convention on Human Rights. It might not have been good law, but it did not necessarily fail on the human rights test. I believe that the new Act will be very beneficial; but that does not mean that the previous legal framework necessarily was in breach of international standards on freedom of expression. Even if that were the case, the Secretary of State does not have any general power in the Northern Ireland Act 1998 to make the Assembly or the Executive do something on human rights grounds. Under Section 26(2), she may order a Northern Ireland Minister to do something to implement international obligations. However, if noble Lords refer to Section 98 of the same Act they will see that “international obligations” means,

“any international obligations of the United Kingdom other than obligations to observe and implement Community Law or the Convention rights”.

I turn now to other points made in the debate. As we have heard this evening, there is considerable activity in Stormont and some reason to be optimistic about the chances of legislative change. To the noble Lord, Lord King, I say that the issue we face is to decide at the start what is to be devolved and then make sure we adhere to that decision; otherwise, we are picking and choosing and chopping and changing. It may or may not be appropriate to have devolved the issue of defamation, but it is devolved and we need to observe that now. The reason why I say that it might or might not be appropriate is that, as the noble Lord, Lord Alderdice, has pointed out, we cannot seal Northern Ireland off on this issue. When one analyses the devolution settlements, it is often the case that aspects have been devolved which clearly involve an interaction with neighbouring countries. However, once it has been decided, we have to observe that.

25 Feb 2014 : Column 884

Devolution is sometimes frustrating, as the noble Lord, Lord McAvoy, said. The noble Lord, Lord Alderdice, noted earlier this afternoon that social change comes slowly in Northern Ireland. It is important to bear in mind that although change sometimes comes slowly, it does come in the end. Devolution means that there are different laws in different parts of the country. We must respect that, but that does not mean that we are not entitled to make our views known. I believe that the Government have made their views very clear on this issue. Noble Lords have certainly made their views known today, and I hope that they have been heard by the Northern Ireland Executive.

I can tell the noble Lord, Lord Trimble, that the Secretary of State takes a close interest in our debates on this Bill. I have absolutely no doubt that she will convey the content of our debate and the views expressed today to Members of the Northern Ireland Executive. I know that she is in very frequent contact with both the First Minister and the Deputy First Minister and that she will wish to pass on the views expressed here today.

Lord Kilclooney: Very briefly, I agree with everything that the noble Baroness has said about caution in dealing with the devolved Assembly. She has mentioned the Deputy First Minister, but what has been ignored in this debate is that he is in fact a Sinn Fein Deputy First Minister. Sinn Fein is the second largest party in the Assembly and has absolutely no time or respect for the House of Lords. To think that it is paying any attention to what is being said in this House would be misleading.

Baroness Randerson: However, as was pointed out earlier this afternoon, Sinn Fein has a considerable interest in promoting free speech in Northern Ireland. I believe that my noble friend Lord Lester referred to the noble Lord, Lord Pannick, in that regard, as the two of them had worked together in relation to the broadcasting of Sinn Fein. It has an interest in the issue, but that probably goes beyond our debate.

I welcome the continued efforts made by the noble Lords, Lord Lester and Lord Lexden, on this issue. I am pleased that we have been able to continue our debate on this matter but regret to say that the Government are unable to support the amendment. I therefore urge the noble Lord to withdraw it.

Lord Lexden: My Lords, this has been a tremendous debate and I am deeply grateful to all those who have taken part in it with such vigour and authority. I reassure the noble Lord, Lord McAvoy, that it is purely a matter of coincidence that I so readily sit under the arms of the House of Orange. I must say at once that the views of certain members, particularly of the monarch of the House of Orange in the 17th century, played no part whatever in the views that I have formed.

The noble and learned Lord, Lord Carswell, in his particularly powerful speech spoke for us all when he urged the Executive to adopt the Defamation Act, and to do it quickly. Our debate was also enriched by his cautionary words, and those of the noble and learned Lord, Lord Hope, on the Sewel convention. Clearly

25 Feb 2014 : Column 885

that needs to be borne carefully in mind. As my great friend, the noble Lord, Lord Empey, said, the Government must be mindful of their wider obligations. That is the note on which we need to end.

My final question is this: if the Northern Ireland Executive fail to pursue this matter properly, what further action will the Government take? That is the note on which we should end. I have constituted myself into a kind of watching brief on this matter and I shall seek opportunities, by one means or another, to raise this fundamentally important issue from time to time in the House. I hope that we shall be able to note progress: it is extremely important that we keep a watching brief on it. On that note, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by Lord Trimble

4: After Clause 25, insert the following new Clause—

“Election of the First Minister

(1) The Northern Ireland Act 1998 is amended as follows.

(2) Omit sections 16A (appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election, 16B (vacancies in the office of First Minister or deputy First Minister) and 16C (sections 16A and 16B: supplementary).

(3) Before section 17 (Ministerial offices) insert—

“A17 First Minister and deputy First Minister

(1) Each Assembly shall, within a period of six weeks beginning with its first meeting, elect from among its members the First Minister and deputy First Minister.

(2) Each candidate for either office must stand for election jointly with a candidate for the other office.

(3) Two candidates standing jointly shall not be elected to the two offices without the support of a majority of the members voting in the election, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.

(4) The First Minister and deputy First Minister—

(a) shall not take up office until each of them has affirmed the terms of the pledge of office; and

(b) subject to the provisions of this Part, shall hold office until the conclusion of the next election for First Minister and deputy First Minister.

(5) The holder of the office of First Minister or deputy First Minister may by notice in writing to the Presiding Officer designate a Northern Ireland Minister to exercise the functions of that office—

(a) during any absence or incapacity of the holder; or

(b) during any vacancy in that office arising otherwise than under subsection (7)(a);

but a person shall not have power to act by virtue of paragraph (a) for a continuous period exceeding six weeks.

(6) The First Minister or the deputy First Minister—

(a) may at any time resign by notice in writing to the Presiding Officer; and

(b) shall cease to hold office if he or she ceases to be a member of the Assembly otherwise than by virtue of a dissolution.

(7) If either the First Minister or the deputy First Minister ceases to hold office at any time, whether by resignation or otherwise, the other—

(a) shall also cease to hold office at that time; but

(b) may continue to exercise the functions of his or her office until the election required by subsection (8).

25 Feb 2014 : Column 886

(8) Where the offices of the First Minister and the deputy First Minister become vacant at any time an election shall be held under this section to fill the vacancies within a period of six weeks beginning with that time.

(9) Standing orders may make provision with respect to the holding of elections under this section.

(10) In this Act “the pledge of office” means the pledge of office which, together with the code of conduct to which it refers, is set out in Annex A to Strand One of the Belfast Agreement (the text of which Annex is reproduced in Schedule 4).””

Lord Trimble: My Lords, we have reached the final straight and I shall try to get round the track as quickly as possible, and not delay those who are coming to debate other matters later.

I tabled Amendment 4 for the Committee, but unfortunately when it sat I was out of the country and unable to express my views on that occasion. However, I am delighted to see that the noble Lord, Lord Empey, made an excellent exposition of the issues involved, so I will not go back into that history. I want to focus more on what might be coming up in the future. Before moving on to that, it is important to remind noble Lords of the position as it was under the Belfast agreement—the Good Friday agreement—and as it was changed later, not as part of the St Andrews agreement but in some other way.

The key thing for noble Lords to bear in mind about the provisions in the Good Friday agreement is that there was a provision for the joint election of First Minister and Deputy First Minister, which means that a ticket had to be formed. There had to be an agreement on who would stand. A six-week period for this to happen was provided, but because it was a joint ticket and there were six weeks in which to do it, there was the opportunity for the largest party on the nationalist side and the largest party on the unionist side to interact; they had to come to an agreement. There were opportunities for views to be expressed about who might be the nominees.

In 2006 we had provisions that swept that away and provided for a mechanistic provision whereby the various provisions rather obscurely expressed in the legislation would apply, and it would be possible to identify immediately who should be First Minister and Deputy First Minister. This was to be done within a matter of days; I think that a week was provided for it. It was to go through automatically. I will not discuss what the motivations for that might have been.

I will look at the future and pick up the very important point made by the noble Lord, Lord Kilclooney, that because of the way in which the Administration has carried on there is widespread dissatisfaction and disillusionment, and, in my interpretation of what he said, that is likely to have an impact when we next have an Assembly election. Participation rates in Assembly elections have been dropping. They will continue to drop. The drop will be felt most among people who feel dissatisfied about inaction. There are those who are feeling sore because they believed in the Democratic Unionist Party when it attacked the agreement and who then felt disgruntled after it decided that it was going to implement the Belfast agreement with merely cosmetic changes, as well as the significant change in identifying the First Minister and Deputy First Minister.

25 Feb 2014 : Column 887

This opens up a very serious possibility, which I think that we need to be on guard against. It is possible that, as a result of declining participation, especially by working-class unionists, we will find that the unionist vote drops to a point where Sinn Fein becomes the largest party. The DUP will do what it has done before, running a campaign that says, “Vote for us, or else you will get a Sinn Fein First Minister”. It has done that several times—so often that it is not likely to carry much weight anymore. People can see that they were given this argument and then saw the results from the elections, which showed that the argument had no substance to it. So I am afraid that “Wolf” has been cried too often on this.

7 pm

I am very concerned that we could find a situation where, because of the fall-off, particularly in working-class unionist votes, a Sinn Fein First Minister is automatically catapulted into office in a matter of days, with no opportunity for people to stop and think or consider where they have got to. Then you will find that working-class unionists who did not vote will express themselves in other ways. People talked earlier about things that might destabilise Northern Ireland—well, look at this. The possibility is there. That is what I want to draw to the attention of the Minister and the House. Because of the structures put in place in 2006, there is a very real danger looming.

One will do what one can to avoid it, by pointing out that in Assembly elections it is important for people to vote down the ticket and express their preferences as they wish, but nevertheless to vote for a wide range of candidates so as to minimise the impact that there might be of this. It would be better still if people could be persuaded to vote—but I am afraid that persuading people to vote is not all that easy in some circumstances. We have all encountered that. That is particularly the case if, as is likely, the Northern Ireland Executive continue to deal with issues with the same degree of expedition with which they have dealt with the Defamation Act. I hope that tomorrow our Select Committee on the Inquiries Act will sign off a report that will draw attention to another extremely dilatory procedure by the Northern Ireland Executive and Assembly whereby they have wasted two years on what they said was a hugely important matter, and wasted them on going through completely unnecessary procedures. But that is just giving a little taster of something to look at when that report is published.

That is the sum of what I wanted to say this evening. I have said it as quickly as I can and I shall listen with interest to whatever the Minister might say.

Lord Empey: My Lords, I made the point in Committee that this was an imposed process, without consultation. It offended every point that has been made in this House this afternoon in respect of respecting the settlement and tore up a key part of the settlement that was voted on by a referendum. It was literally a backstairs deal, in the worst tradition of backstairs deals, so let us not give it any credibility that it is some kind of dramatic move forward. It has created a sectarian headcount format for elections even though

25 Feb 2014 : Column 888

there is no difference in the powers that can be exercised by the First and Deputy First Minister. They both have the same powers and there is no hierarchy in that regard.

I would say to the Minister that, when she stands up to defend the devolution settlement, she will understand that it rings a bit hollow to some of us when it was the Government who broke that settlement and did so without consulting those who made the settlement—and, it must be said, the noble Lords, Lord Trimble and Lord Alderdice, and others who were there at the time to make the deal. There is a Scottish saying—the noble Lord, Lord McAvoy, will know this—“Eaten bread is soon forgotten”. Had it not been for people like the noble Lords, Lord Trimble and Lord Alderdice, and others, there would be no Assembly for these people to sit in. A lot of people take it very badly that a deal that was done—a referendum that was passed—was swept aside in some kind of backstairs deal without even the courtesy of a phone call to say, “This is the line we are proposing to take”. Some of us learnt about it when we saw the draft of the 2006 St Andrews agreement Act. That is why, when I hear people defending the principle of devolution, it rings a bit hollow for some of us who have been around these things for some time.

I have, however, made my point. I support the noble Lord, Lord Trimble, in his amendment. It is that sort of thing that has been undermining. The potential for a six-week negotiation was the reason that Sinn Fein went to Tony Blair to get the thing changed; it was afraid that, if it put forward a particular candidate, that person would be negotiated out. It wanted certainty that whoever it was would go in. That coincided with the political changes that meant that, on the unionist side at that stage, it was much more convenient not to have to put your name on a ticket with a Member of Sinn Fein to get elected as First and Deputy First Minister respectively. It just happened to suit people at that time.

There is no noble principle involved in the 2006 amendment. It was, by any stretch of the imagination, a dirty deal.

Lord Kilclooney: My Lords, I do not want to be preaching more caution or to be more alarmist, but I find myself in total agreement with the analysis by the noble Lords, Lord Trimble and Lord Empey, of the situation within the Northern Ireland Assembly and the appointment of the First Minister and Deputy First Minister, and the way in which this could be received by the community at large in Northern Ireland.

With the possible decline of unionist—I use the word with a small “u”—interest in the future of the Northern Ireland Assembly and with the possible lower turnout by unionist voters, under the new system that was introduced in St Andrews we could have a Sinn Fein First Minister in Northern Ireland for the first time. Can your Lordships imagine the reaction of what has been termed earlier in this debate the loyalist working class who had not bothered to vote and then find a former battalion commander of the IRA as their First Minister? I fear it would bring about the total collapse of the Northern Ireland Assembly.

25 Feb 2014 : Column 889

Lord Browne of Belmont: My Lords, this is an issue that the noble Lords, Lord Trimble and Lord Empey, have returned to on several occasions in the past, and I am sure that they will keep doing so in the future. However, as I pointed out in Committee, no other ministerial appointments, with the exception at present of the Justice Ministry, require cross-community support. It seems inappropriate that this requirement should be applied to the appointment of the First Minister and Deputy First Minister.

In Northern Ireland we are currently experiencing the longest period of stable government in a generation. What is detailed in the amendment simply moves us backwards and returns us to the position that existed in Northern Ireland pre-St Andrews. When we look back at Northern Ireland under the devolved institutions prior to the St Andrews talks and compare it with the stable Province we now have as a result of an extended period of devolved government since 2007, we see a remarkably different country.

As noble Lords will be aware, and as I mentioned in Committee, there is a legal requirement placed upon the Northern Ireland Assembly to provide a report on how the Assembly structures can be improved. My party, the Democratic Unionist Party, would be reluctant to pre-empt the work ongoing in the Assembly to review its functions and those of all the political institutions by supporting amendments such as this. It is my firm belief that it is inappropriate to simply unpick some parts of the relevant legislation. This amendment would simply divert attention from the important issues and challenges that Northern Ireland and its politicians face every single day. If changes are to be made we must look at the totality of the system of devolved government.

Lord Alderdice: I am encouraged by some of the things the noble Lord has said. I would be encouraged even more if he was able to give an undertaking that his party will also adhere to its commitment to this way of forming the First Minister and Deputy First Minister portfolios whatever the outcome of the Assembly elections in 2016. It would be a real reassurance not only to this House but to others if he was able to give an undertaking that his and his party’s commitment to this way of working is not only for when they have the First Minister but for whichever party has the First Minister.

Lord Browne of Belmont: I am not in a position to speak for the Executive or for my party in the Assembly. However, I am sure that they would wish to progress in a way that they believe will serve the people of Northern Ireland best.

I oppose the amendment and I hope that we will be able to proceed with the elections in Northern Ireland. Unlike the Ulster Unionists, I am not pessimistic about the outcome; I am very optimistic.

Lord Bew: My Lords, I support the amendment. It is not the least of the distinctions of the noble Lord, Lord Trimble, that he is a former First Minister of Northern Ireland. He is not the only former First Minister of Northern Ireland in this House, but he is the only one who can say that he was supported by a

25 Feb 2014 : Column 890

majority of both communities in the process of election. We have lost something in the structures of the Assembly and the way it operates simply by the absence of that process and that type of affirmation for the First Ministership.

However, I do not want to dwell on the past. A number of points have been raised today about the future and possible destabilising trends—some of which might or might not eventuate—and it is important that we do not sleepwalk into this possible crisis with the Executive and the institutions. The noble Lord, Lord Alderdice, asked a profound question, and one way of considering the implications of the question is that some of the parties, at least, to the current arrangements may no longer have precisely the same investment in those arrangements that they once had. If possible, there should be a dialogue or discussion in the Assembly with a view always to maintaining the stability of Northern Ireland, because there is a possibility, for the reasons mentioned by the noble Lords, Lord Kilclooney and Lord Trimble, that we are sleepwalking into a crisis with these institutions. The noble Lord, Lord Browne, is right: these institutions have delivered a form of stability for some years now, but that does not mean that they will continue to do so. I would like reassurance that the Government are keeping the matter under review and are not sleepwalking.

Lord Maginnis of Drumglass (Non-Afl): My Lords, first, I apologise for intervening at this late stage and for not having been here, as one might have expected, at the beginning of the debate. I was detailed to find out some information about a serious event that took place in 2006. I have only just received the information that the person who was suspected of the Regent’s Park bombing many years ago was arrested by the Metropolitan Police some time past and was able to pull out of his pocket a letter dated 2006 which said that he would no longer be deemed a terrorist. Over the past few months, a court case, held virtually in secret, has revealed that 187 terrorists were given that letter in 2006, saying that, although they were terrorists, they would no longer be deemed to be so. How can we vote with any assuredness on this Bill when we discover belatedly that, subsequent to the St Andrews agreement, this sort of behind-backs, underhand deal was carried out by the Government at that time?

7.15 pm

Baroness Smith of Basildon: My Lords, this debate has been interesting, as was the one in Committee, although that was without the wisdom of the noble Lord, Lord Trimble; I say his name carefully. We have benefited enormously from the experience of noble Lords here this evening: this is the value of debates in your Lordships’ House on this issue.

Clearly, we all want to ensure that governance in Northern Ireland is based on a strong cross-community partnership. I readily accept that there is no system for electing the First and Deputy First Ministers that we all would consider perfect. Indeed, the current system may not be perfect. Let us not forget where Northern Ireland had been during the four and a half years leading up to 2006. It was a major step forward to have the institutions up and running again after being

25 Feb 2014 : Column 891

suspended for that time. That was the purpose of the St Andrews agreement, the ongoing discussions which came from it and the legislation subsequently passed by your Lordships’ House and the other place. For three and a half of those four and a half years I was a Minister in Northern Ireland, and it was a difficult, tense time, as noble Lords here tonight will know better than I. When I flew out to Belfast on my first day, I was told I should expect to be a Minister for about six months. When I left three and a half years later, the Assembly was still not restored. It was a very serious and difficult time.

Since the St Andrews agreement changed the arrangements, we have had the longest period of stable government in Northern Ireland in a generation. That is not to be underestimated or dismissed lightly. Many positives proceeded from that agreement. I understand why this amendment has been brought forward and the reasons for it, but it takes apart one part of the agreement that was agreed in your Lordships’ House and the other place through legislation. We have heard very eloquently from the noble Lord, Lord Trimble, why the popular 1998 agreement for electing First Ministers and Deputy First Ministers required the direct involvement of the Assembly. He and others welcomed that very clear demonstration of cross-community support. If we were to return to the pre-St Andrews system at this stage, it would have to be done by cross- community consensus and agreement, and I really do not think that we have achieved that at present. I understand the reason for tabling the amendment, but at the moment we do not have the agreement and cross-community support necessary to achieve it. We have to understand the reasons why that came about.

In this debate and others that we have had today, wider issues have been raised by several noble Lords, including the noble Lords, Lord Bew and Lord Trimble, about the disengagement of local people in Northern Ireland. We have talked about it in terms of the Assembly, but there is also the wider political context. That is not peculiar to Northern Ireland, but I understand the concerns about it relating to Northern Ireland. I think that the noble Lord, Lord Bew, referred to it as a destabilising trend. All sides of your Lordships’ House want confidence in the system and the Assembly. We want the stability of the Assembly to be entrenched and enhanced. That will not be done just by the institutions or the apparatus of democracy; it is far deeper than that. Perhaps there may be an opportunity for further discussion in your Lordships’ House—I do not think that tonight is the time—to address those issues to bring the entrenched stability that I think we all want.

We do not support the amendment at this time, while understanding the reasons why it has been proposed.

Baroness Randerson: My Lords, I want to preface my response by referring specifically to comments made by the noble Lord, Lord Maginnis. Noble Lords have been in the Chamber this afternoon and may not be aware that I have issued a Written Statement that deals with that issue. I do not feel that it is appropriate to try to tackle it in this Chamber at this time, because it is not part of this debate.

25 Feb 2014 : Column 892

I turn to the amendment. The noble Lord, Lord Trimble, will be aware that the Government opposed amendments on this issue both in Committee in the other place and in Committee in this House. Despite the eloquence of the noble Lord, Lord Empey, we retained our opposition here. Again, we will maintain that position to this amendment on this occasion.

I recognise the noble Lord’s views on the matter, and he clearly has a close personal interest in the issue. However, as the noble Baroness, Lady Smith, highlighted in Committee and again just now, the St Andrews agreement, which led to this mechanism, ultimately led to the re-establishment of devolved government in Northern Ireland. It would be, to say the least, an unhelpful step if we were to start to unpick certain aspects of it.

I acknowledge the noble Lord’s views on whether the revised method for electing the First and Deputy First Ministers at Stormont was discussed at St Andrews. It is certainly the case that the noble Lord, Lord Empey, made that point in Committee. However, the revised method was enacted through the legislation which followed the St Andrews agreement in 2006. That legislation was endorsed and passed through this House. Whatever the merits of the amendment in the abstract, it would command limited support in Northern Ireland. Very probably, it would get virtually no cross-community support. It would provoke serious opposition and potential instability.

The current Northern Ireland settlement is imperfect, but it is what we have. I welcome the support of the noble Baroness, Lady Smith, and her party on this issue. Her words echo my thoughts.

The noble Lord, Lord Bew, made some very important points. In response, I would say that the Government are acutely aware of the tensions and difficulties in Northern Ireland and within the Executive. That is one reason why we do not want to destabilise the settlement either by changing or attempting to change the mechanism for selecting the First Minister and Deputy First Minister or by involving ourselves in the devolution settlement on issues that are devolved. It is important that we do not disturb the situation. That does not mean that we are sleepwalking, or allowing Northern Ireland to sleepwalk, into any unravelling of the current situation. I agree strongly with the views of the noble Baroness. With every month that passes, the institutions of Northern Ireland become more firmly established in the country and as part of the politics, and it becomes less likely that they will hit the sort of problems that occurred soon after devolution was established.

As I highlighted in Committee, reopening old debates of this nature is liable to create a distraction that would shift the focus of Northern Ireland politics away from the pressing challenges that Northern Ireland faces—issues such as community division and economic renewal. I hope the noble Lord would agree that those issues should take precedence at this time and, in doing so, will be willing to withdraw his amendment.

Lord Trimble: I thank noble Lords who have taken part in this little debate, which has gone on longer than I had hoped. As the noble Lord, Lord Browne of Belmont, said, these are issues that I have dealt with

25 Feb 2014 : Column 893

before. I remember certainly the first time I dealt with them in 2006. I divided the House, and I was very happy to have the support of the noble Lord, Lord Browne of Belmont, in doing so. He has changed his position somewhat since then. I merely mention this from the point of view of spreading news on the matter.

I note the statement of the noble Baroness, Lady Smith of Basildon, who said that if one was to make a change, the change would require cross-community support. She is right. That is how the agreement was made. The agreement was made based on a broad support —a “sufficient consensus” as we called it—and the majority of unionists and the majority of nationalists supported it in the talks. If you are going to make a change to it—although no express provision has been made as to how changes should take place—then the noble Baroness is quite right to say that the changes would be legitimate if they were made by the same procedure by which the agreement was made in the first place.

That is not what happened in 2006. I was finding it somewhat difficult to follow what the Minister was saying at some points, but I think it is absolutely clear that the change to the identification of First and Deputy First Ministers was not actually in what is called the St Andrews agreement. It came into the legislation to implement it, but it only popped up at the last minute without any coherent explanation of where it came from, and with no indication that there was the sort of cross-community support that ought to have been sought for it. People say going back would be a bad thing to do. The Minister says that going back would have limited support in Northern Ireland. The original agreement had a referendum, and it was supported by an overwhelming majority; that referendum is ignored. It has been said many times in this debate that we should not upset the devolution settlement. The devolution settlement was upset, peremptorily. That is undeniable. Consequently this is something to which we will return, until we get things sorted out on this. We have at present a bad system which may have bad consequences; I hear what the Minister says about not sleepwalking and I hope that that is the case. We shall see. Let us make sure that we do what we can to ensure that there is no sleepwalking. I think I can guarantee the Minister and the Northern Ireland Office that we will return to this aspect of this issue, to try and ensure that people are on top of this. We have a rotten system which may turn round to bite us. This is not the time to press the matter further. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Social Welfare Law

Question for Short Debate

7.30 pm

Asked by Lord Low of Dalston

To ask Her Majesty’s Government what is their response to Tackling the Advice Deficit, the report of the Low Commission on the future of advice and legal support on social welfare law in England and Wales.

25 Feb 2014 : Column 894

Lord Low of Dalston (CB): My Lords, I am very pleased to have this opportunity of introducing the report of the commission, which I was honoured to be asked to chair, on the future of advice and legal support on social welfare law in England and Wales. I am grateful to all those who have put their names down to speak—it is quality more than quantity tonight. I am particularly honoured that the right reverend Prelate the Bishop of Peterborough should have chosen to make his maiden speech in this debate and I am sure that we are all looking forward to what he has to say with eager anticipation. I am also looking forward to hearing what the Minister has to say with eager anticipation. I must place on record my appreciation of the contribution of my fellow commissioners and our hard-working secretary and researcher, Richard Gutch and Sara Ogilvie, for this was truly a team effort and we had a brilliant team.

As part of the Government’s austerity measures, there have been significant reductions, estimated by the Government to save £89 million a year, in the scope of legal aid for issues of social welfare law. These are for things such as benefit debt, employment, immigration, education and many aspects of housing. This is compounded by reductions in local government funding for advice and legal support, which are likely to amount to at least a further £40 million by 2015. Some local authorities are cutting virtually all not-for-profit provision in response to the cuts in funding from central government approaching 40% by 2016.

Services are closing or retrenching on a significant scale, yet the demand for advice and legal support has never been greater and can only grow further as the Government’s welfare reforms are rolled out. I could tell your Lordships harrowing tales of the serious consequences for the advice sector, and therefore for individuals needing support, of the almost complete removal from scope of welfare benefits advice. However, partly because of time and the need for brutal summary, I prefer to concentrate in a more dispassionate way on what we are suggesting to address the problem. I do not think that anyone doubts that the austerity measures, however necessary, have left us with a real problem.

We were under pressure to recommend simple reinstatement of the cuts from two quarters: from lawyers, of course, who thought that our recommendations focused too much on the front end of the legal journey and insufficiently recognised the importance of legal interventions for resolving social welfare problems; and from those who resist any change in patterns of funding for public services, such as the introduction of the market. However, in a situation where we have to accept that there will be less money for legal help and representation, we were anxious to develop a fresh approach which, through measures to reduce the need for advice and legal support in the first place, developing more cost-effective approaches to service provision and drawing on a wider range of funding sources than hitherto, ensured that people could still meet a lot of their needs through a greater emphasis on information and advice, while ensuring that there is at least some money available for legal help and representation.

Rather than recommending simple reinstatement, we preferred to think in terms of a continuum of provision including public legal education, informal

25 Feb 2014 : Column 895

and formal information and general advice—often provided by local authorities—specialist advice, legal help and legal representation. We took the view that it was important to tackle the whole of this continuum in an integrated fashion and that legal aid should be seen as just one part of it, not in isolation as a stand-alone funding mechanism. We do not underestimate the importance of legal interventions for solving people’s problems. Sometimes it takes a lawyer to bring a recalcitrant defendant to the table. However, with cuts of the order of £100 million a year in legal aid, it seemed clear to us that the advice end of the spectrum was going to need to take more of the strain. The more we can do at the beginning of the process, we reckoned, the less we may need to do at the end. However, we are absolutely clear that there needs to be provision for legal help and representation at the legal end of the spectrum.

Of course, the advice sector is not beyond improvement. There is a general perception that it is too fragmented and could benefit from rationalisation from closer working together and a greater spirit of collaboration. We would also like to see the national umbrella bodies, such as Citizens Advice and AdviceUK, working more closely together and sharing their resources and experience more widely. AdviceUK told us about a system in Portsmouth based on what it calls “systems thinking”. It moved from a system that involved waiting for two hours, seeing a volunteer for 20 minutes then making an appointment to see a specialist—altogether potentially involving 13 steps before seeing an adviser who would help you—to a system that dispensed with triage or rationing, put specialist staff in the front line, with expertise in one area but able to pull in others as necessary rather than simply referring on, enabling you to see someone within 20 minutes. It has shown that approaches such as this can achieve savings of at least 30% and sometimes, as in its work in Nottingham, as much as 95%. Although it may seem like a Rolls-Royce service it can end up costing less in the long run.

Our report contains 100 recommendations but the six most important are: first, that public legal education should be given higher priority, both in school alongside financial literacy and in education for life, so that people know their rights and where to go for help. Secondly, though there are certainly factors making for increased demand in the welfare reforms and other austerity measures, we are convinced there are also ways of reducing the need for advice and legal support in the first place. For example, the DWP could be incentivised to get more decisions right first time by being required to pay costs on upheld appeals. Thirdly, we suggest ways in which courts and tribunals could be made to work more efficiently. Fourthly, the next UK and Welsh Governments should develop national strategies for advice and legal support, preferably with all-party support and there should be a Minister with responsibility for advice and legal support within the MoJ with a cross-departmental brief for leading the development of the strategy. Fifthly, local authorities or groups of local authorities should coproduce or commission local advice and legal support plans with the local not-for-profit sector and commercial advice agencies. Sixthly, we estimate that a further £100 million

25 Feb 2014 : Column 896

a year is required to ensure a basic level of provision of information, advice and legal support on social welfare law.

We are calling on the next UK Government to provide half of this by establishing a 10-year—to enable long-term planning—national advice and legal support fund for England and Wales of £50 million a year to be administered by the Big Lottery Fund. We aim to spread the load so that no part of government is asked to bear too great a burden. We therefore propose that the fund should be financed by the MoJ, the Cabinet Office and the DWP, as the main creator of the need for advice and legal support. Ninety per cent of the fund should be used to fund local provision in line with local plans, with 10% for national initiatives. The Big Lottery Fund should allocate the 90% share of the national fund to local authority areas, based on indicators of need using joint strategic needs assessments and health and well-being strategies. We have also identified other national and local statutory, voluntary and commercial sources of funding that we believe could contribute an additional £50 million a year to match the national fund.

Greater use needs to be made of new technology for the section of the population that is increasingly digitally literate. This will free up resources to enable more face-to-face, in-depth and intensive support to be targeted at those most in need. In addition to the current range of specialist lines, there should be a one-stop national helpline providing a comprehensive advice service to the general public and able to act as a safety net for those who have nowhere else to go.

Although I said that we were not arguing for a simple restoration of the cuts, that does not mean that we would not like to see any of them reversed. We would like to see funding reinstated for housing cases, for instance, so that people can get help before they reach crisis point and face imminent eviction. The scheme for the funding of exceptional cases under Section 10 of the LASPO Act needs to be reviewed, because as things stand it is just not working. This was intended to act as a safety net for funding cases that would now be out of scope of legal aid but where either human rights or EU law required the provision of legal aid. During the passage of the LASPO Act, it was estimated that there would be between 5,000 and 7,000 of these cases a year, but a Parliamentary Answer on 11 February this year stated that the total number of applications so far was only 1,030, of which only 31 had been granted.

In summary, our strategy is to suggest ways of reducing preventable demand, simplifying the system and enabling it to work better, putting more weight on the advice end of the spectrum and suggesting ways in which it could work more efficiently. We believe that by investing in a wider range of information and advice, with some legal help and representation, many of the undesirable consequences of the LASPO Act can be avoided and we will actually end up saving money. I hope very much that the Minister will find not only that there are things in our report with which he can agree but that it makes a useful contribution to the stabilisation and rehabilitation of our system of advice and legal support on social welfare law.

25 Feb 2014 : Column 897

7.41 pm

Lord Bach (Lab): My Lords, I congratulate the noble Lord, Lord Low, on securing this important debate. As he said, he has attracted an impressive list of speakers, not least the right reverend Prelate the Bishop of Peterborough, whose maiden speech we are looking forward to hearing. I hope very much that the Minister can respond to the debate in a positive way.

In my view, the Low commission report is the first positive, the first piece of good news and the first chink of light, if I may call it that, that we have seen for some time in this field. Considerable congratulations are owed to the noble Lord himself and to his fellow commissioners on producing this excellent report and on perhaps cheering us all up a little bit. I hope that the House will forgive me if I pick out one of the noble Lord’s fellow commissioners. Steve Hynes, director of the Legal Action Group, played an important part in setting up the commission, and the leading role he has played in the field of social welfare law over many years has, in my opinion, been outstanding.

It is important to have some good news because for years now the position has looked bleak and depressing, getting worse month after month. The truth is that social welfare law has been decimated over the past four years. That is because the Government seem to have decided as a matter of policy that access to legal advice for some people—often the poor, often the disabled, often the acutely vulnerable—in order to deal with those areas of law that affect everyday life, such as housing, debt, welfare benefits, employment and immigration, is not even a necessity, let alone a priority. This government policy is seen most obviously in LASPO itself and its implementation since 1 April last year.

However, the decision to downgrade this part of our legal system was taken well before 1 April 2013. How else can the following information set out in paragraphs 1.10 and 1.11 of the report be explained? I quote:

“Eligibility levels and the number of cases in social welfare law then increased between 2007 and 2010. This was due to three factors—the recession, which meant more people were potentially eligible for legal aid; a decision by the government to bring more people into scope; and an increase in the budget to allow more civil law cases to be paid for by the legal aid scheme.

When Labour left office in 2010, social welfare law legal help cases had peaked at 485,664 for the year 2009/10. However, by last year, 2012/13, the numbers of social welfare law cases had fallen to 293,319, due to decisions made by the coalition government to reduce expenditure on civil legal aid”.

That is a drop of nearly 200,000 cases annually—around 40% of cases—and all before LASPO ever came into force.

Another example is public legal education, mentioned in the report and by the noble Lord, Lord Low, in his speech today. Following the general election, not only was the outstanding committee that had advised the Ministry of Justice on this vital subject summarily disposed of, but the budget for work on public legal education over the next number of years was suddenly no longer. Now, 11 months after LASPO came into force, the position is much worse and gets worse with every announcement of a closure of a not-for-profit

25 Feb 2014 : Column 898

provider, or of redundancies and closures having to be made by big players in this field, such as the CAB and Shelter.

A lot of income from very modest legal aid payments is resulting in a sharp decline in the number of providers of these crucial services. Many fewer people are receiving legal help than deserve to. We know, as the noble Lord has said, that a pathetic, miniscule number of exceptional cases have been allowed through, even though the Government—perhaps laughingly—claim the scheme is working effectively.

This week’s news sums it up. On Friday, RAD Deaf Law Centre, with offices in London and Newport, is closing its doors. Its chief executive has said:

“Funding cuts have had a profound effect on RAD”.

Have we really, as a country or as a society, come to this: that the law centre that helps deaf people in our country has to close because the Government have abolished the meagre legal aid that went to provide important funding so it could do its vital work?

Last Friday, a newspaper reported that the Government are thinking of charging people making appeals against DWP decisions to social security tribunals. Is this a serious proposition, I ask the Minister? How much in charges do the Government think they will get from these appellants? Will it be more than 1% or 10% of the administrative cost involved in setting up these charges, or is it—this is what it seems like to me—just a rather crude attempt to stop people appealing at all, bearing in mind that in recent months 58% of those who wanted to overturn DWP-sanctioned decisions in tribunals have been successful?

The position is grim indeed, and that is why the report is so timely and so welcome. The report does not call for a return to the system that has been wiped away; it looks forward and recommends a number of modest, practical measures that will make it possible once again for everyone to obtain the legal advice that they need, when they need it. The report argues convincingly that, by modest expenditure, by spending a bit of money, the state will save money as all the evidence shows that early intervention in the sorting out of legal problems saves costs, both in human and financial terms in the long term.

The report starts with the premise that access to justice for all has to be the starting point for any proper legal system. It challenges the political parties in this country to disagree. Surely, none of the political parties does. With a general election looming, that is why this report is so timely. It asks us in the political parties to take this issue seriously and develop policies accordingly. That is why we should all be grateful to the noble Lord, Lord Low, and his fellow commissioners. We must not let this opportunity go to waste. We would not be forgiven easily if we did.

7.50 pm

Lord Thomas of Gresford (LD): My Lords, I, too, congratulate the noble Lord, Lord Low, both on securing this debate but, more importantly, on the outstanding report that he and his commissioners have produced.

Many of us in this House, not least the noble Lord, Lord Bach, who has been at the forefront of the argument, warned the Government about the deficit

25 Feb 2014 : Column 899

that would arise through the cuts arising out of LASPO. In the debate instituted by the noble Lord, Lord Boateng, in December 2011, I asked,

“where is the funding for the specialist advisers of the CAB”,

and advice centres,

“going to come from when those legal aid contracts disappear?”.—[

Official Report

, 8/12/11; col. 909.]

The noble Lord, Lord Low, and his commissioners have been ingenious in their recommendations in seeking out funding streams from a number of sources. I fully support the concept outlined in the report that there should be a national strategy for advice and legal support in England, and hope that the current Welsh Labour Government will develop a similar strategy in Wales, although their general lack of vision does not make me too optimistic.

Noble Lords will also recall that we on these Benches warned the Government that their cutbacks in the LASPO Bill would result in advice deserts. My noble friend Lord Marks of Henley-on-Thames, who spoke in the debate of the noble Baroness, Lady Deech, warned that,

“the present proposals risk creating advice and representation deserts where no appropriate legal advice or representation is available. This the Government have recognised, but the proposals also risk creating specialism deserts. The danger of advice deserts could be addressed by increasing the number of providers in more sparsely populated areas. The specialism issue is more difficult”.—[

Official Report

, 11/7/13; col. 453.]

In that context I will draw your Lordships’ attention to Wales. I am impressed that a member of the commission was Mr Bob Chapman, a member of the committee of the Administrative Justice and Tribunals Council in Wales and chair of the trustee board of the Swansea Neath Port Talbot Citizens Advice Bureau. It is clear from reading the report that Welsh issues have not been overlooked.

The report points out that the Independent Advice Providers Forum has collected evidence that £4.1 million-worth of cuts in Wales kicked in from April 2013, £2.4 million of which were from the loss of legal aid contracts, and the rest from reductions in Welsh government, local authority, European and other funding from corporate and charitable sources. In its place the Advice Services Transition Fund intends to put just over £1 million back into advice services in Wales. I fear that even that dire conclusion may be too optimistic.

On this very day, Powys County Council is meeting to consider its budget. It will be considering the recommendation of its cabinet to cut funding to citizens advice bureaux throughout the county. At first the cabinet said that it would be cut entirely, but last week it compromised. The proposal that is being debated today is to cut funding for the CAB by half in the current year and reduce it to zero in the following year. The chairman of the trustees of the Powys CAB, Chris Mann, says of this:

“Without core funding from the County Council, Powys CAB will lose all other sources of grants. These pay specialist and professional advisers on debt, welfare benefits, employment and housing and allow our volunteers to assist clients on a range of pressing social issues”.

The other sources of grants to which Mr Mann refers are contracts worth some £336,000 for the provision of essential services to the residents of Powys. Without

25 Feb 2014 : Column 900

core funding from the council, the highly skilled paid staff will lose their jobs, and the volunteers, who are so vital to the CAB, will be unable to continue.

The recent history is that in 2013 Powys CAB dealt with 21,000 advice issues, assisted more than 6,000 clients and secured £2.2 million in welfare benefit income for its clients. As Mr Mann points out, this money does not disappear into the air but is spent locally and supports the local community. It is true that the council has a small welfare rights unit but it cannot possibly cope with the work level if the CAB has to close. This is a large area of Wales, where poverty and rural deprivation are endemic. It is precisely the sort of area of desert that we foresaw when we were discussing the LASPO Bill. That is only one example, but it is significant in this context that, according to the CAB, £71 million—43.8% of its funding as a whole in 2012-13—came from local government. In the current year, it expects the percentage to increase to 46.2% from local government, as funding from legal aid drops from £21 million to just £6.5 million. This is a tragedy that is going to happen in vast areas of the country.

Perhaps the most impressive aspect of the commission’s report is that it does not seek to wind the clock back to the pre-LASPO position but recognises realities. Suggested funders include the Money Advice Service, the Department for Work and Pensions, the NHS, local government, trusts and foundations, as well as the legal profession through pro bono and dormant funds. I agree with the noble Lord, Lord Bach, that all political parties, in fashioning their manifestos for a future Parliament, should take all the commission’s recommendations on board.

Finally, I very much look forward to the contribution of the right reverend Prelate the Bishop of Peterborough. He spent eight years as Archdeacon of Chester, so I can greet him almost as a neighbour, even though he was on the wrong side of the border. I also welcome him as a graduate of Peterhouse in Cambridge to join our hardcore Petrean group in the House of Lords, with the noble and learned Lord, Lord Lloyd of Berwick, and others. I am sure that he will add lustre to our deliberations.

7.57 pm

Lord Woolf (CB): My Lords, I thank the noble Lord, Lord Low, for arranging this debate and I join in the chorus of congratulations to the noble Lord and his fellow commissioners on their excellent report. I am not surprised that the report should be excellent; I use that word in referring to it because, having regard to the commission’s membership, about which comment has already been made, I expected no less.

The person whom I wish to single out is Amanda Finlay. Not only was she vice-chairman of the commission, she was a most valued member of the team which worked on my report on access to justice in 1998. I hope your Lordships will forgive me if I make a comment or two about the relevance of my report in the context of the report by the noble Lord, Lord Low, because there are similarities. His report covers some of the same ground, although my report was primarily concerned with the procedures in courts that were making it difficult for the majority of litigants to

25 Feb 2014 : Column 901

obtain the access to justice to which they were entitled if they were going to be engaged in litigation. The Low commission’s concerns, as we have heard, were much wider. It was concerned with courts and tribunals, but I think that was a minority part of its report.

The Low commission’s main concern, as we have heard from the noble Lord, Lord Low, is the stressed position of those who need assistance in obtaining the help that they are entitled to under the welfare provisions of the law. As we have heard, it is a section of the community in the greatest need of help, and the state is under a fundamental and basic obligation to ensure that, so far as possible, its needs are met. As we have heard, the people in this group have been doubly disadvantaged: first, because of the pressures that have made them resort to the state to provide them with the means of meeting their basic needs; and, secondly, because their ability to receive the assistance that is necessary to ensure that they obtain the benefits to which they are entitled in law has been substantially reduced because of the cuts in legal aid and the reduction in funding that has occurred due to the need for austerity.

However, I agree with the noble Lord, Lord Bach, that when one looks at the contents of the report as a whole, although it reveals an extremely worrying situation, there are signs of good news. Those signs confirm what I believe to be the case—that if we take a broad, holistic view of the situation, there are ways in which the effect of the deficit in assistance, which is inevitable in view of the cuts that have been made, can be mitigated by appropriate action. The noble Lord, Lord Low, has referred to the type of action that is required. Of course, we have heard the clamour in the media over food banks. That has vividly demonstrated that the conferring of rights on members of the public is of little value if those rights are not complied with in a way that enables them to receive the benefits to which the law entitles them.

I hope that I can claim that, to an extent, the problems in the courts to which I have referred were mitigated by the steps taken in consequence of my report. They included a change in culture on the part of the judiciary and the legal profession over the past few years, which has meant that the needs of the less fortunate members of the community are taken care of in a way that was not always so obvious in the past.

I suggest that the Low commission’s report gives the Government an opportunity to secure a substantial improvement in the situation regarding welfare benefits. Even in these days of austerity, they should be able to take advantage of that opportunity in a way that will benefit the section of the public to which I have been referring. If that is to be done, it is essential that we take advantage of all the new methods of communication that now exist. Those methods enable an amazing amount of information to be provided, which could be very helpful to those who seek the benefits to which they are entitled.

In different areas of the country there have been experiments that have demonstrated beyond doubt what can be achieved. They are set out in the Low commission’s report and are prominent in the 100 recommendations the commission makes. The core of the majority of those recommendations is that they

25 Feb 2014 : Column 902

are designed to meet the need for advice. I have no doubt that the national advice helpline that the commission recommends would be of value, as is the kiosk that exists in Cambridge, which was used by 65,000 people in 12 months. Those sorts of initiatives have got to be extended. I hope that, in setting out these various trials, the report will help the Government with what surely must be the objective of any Government—namely, to do what they can to ease the problems of those members of the community most in need of assistance.

The commission also stresses the importance of education. Increasing the use of education will not change the situation overnight, but in the long term that must be very important as well. I suggest that the position is extremely urgent; no delay should be allowed to occur. The report deserves, and should receive, an immediate and strong endorsement by those in charge today. The present Government cannot hide behind the fact that there is going to be an election in a few months’ time. Action can start to be taken now and plans can be made. That applies to the Opposition as well as to the Government. I look forward to the responses from both the opposition spokesman and the Minister to what we are hearing this evening. Like other noble Lords, I, too, very much look forward to the maiden speech of the right reverend Prelate the Bishop of Peterborough.

8.07 pm

The Lord Bishop of Peterborough: My Lords, as I make this maiden speech I am delighted to have the opportunity to thank the many Members and staff of your Lordships’ House who have made me so very welcome here. I am also most grateful to the noble Lord, Lord Low, for initiating this debate, and for producing with his colleagues this excellent, wide-ranging and challenging report.

I suppose it to be inevitable that cuts in government spending, however necessary they may be, will always hit the poorest most. It is therefore all the more important to give attention to ways of helping the most vulnerable to claim and receive the support to which they are entitled and the professional advice they may need. This report does that: I welcome it most warmly and hope that Her Majesty’s Government can do so too.

Three particular themes of the report resonate with me. The vision of equal access to justice, with the recommendation of a national strategy for advice and legal support agreed by all parties, is most welcome and would make a real difference. The vision of holistic systems thinking, with its direct addressing of poor and disconnected services, such as those described in the Nottingham study, makes complete sense. The emphasis on local provision, including from the voluntary sector, but requiring better training and co-ordination, is absolutely right. Those three themes, if implemented, would lead to better governance, fairer access and a less divided society.

I regularly meet some of the most needy members of the community. The diocese which I serve includes the lovely and relatively prosperous counties of Northamptonshire and Rutland. It also includes most of the rapidly growing city of Peterborough and other

25 Feb 2014 : Column 903

urban centres which are home to many vulnerable people and groups whose lives can so easily break down without the help and advice of the sort described in the Low commission’s report. The migrant communities of Northampton and Peterborough include many—especially older women—whose English is poor and not up to technical explanations or form-filling. The rural poor, not all of whom have access to dependable broadband or the skills to use technology—even if they had easy access to libraries, which they do not—frequently miss out.

I am privileged to be a trustee of the Farming Community Network, formerly the Farm Crisis Network, and am well aware of how difficult it is for some struggling farmers to access advice through the statutory channels. Our towns in the diocese I serve, including Corby, Kettering, Northampton, Wellingborough and the City of Peterborough, have their fair share of poor, white, excluded communities, many of whose inhabitants would benefit from supportive advice and advocacy. I spend time visiting our prisons, and am excited by the activities of charities which help prisoners to find housing or work when they are released. However, I am only too conscious that for many their functional illiteracy and innumeracy, and their all too common psychiatric disorders and behavioural problems, place them at a huge disadvantage in trying to become contributing members of society. I also visit and take an interest in psychiatric hospitals where I meet both in-patients and out-patients who need help and advice to cope with the pressures of life. At Peterborough Cathedral we have regular meetings for Armed Forces veterans suffering from post-traumatic stress disorder; again good people do their best to support them, but the necessary legal and other professional advice seems to be in short supply. All these people and groups need to know that they are valued, that society cares for them and wants to help them and that our affluent country has time and resources for them.

I notice that one of the bodies listed as having made a submission to the Low commission is the Peterborough citizens advice bureau. My chaplain is a trustee of that charity, and I follow its important work with some interest. Thanks to the collaborative partnership-working instigated by Peterborough City Council its funding has not been as badly affected in recent years as some other CABs. However, I notice the very significant increase in the number of cases it has had to deal with. Unique client numbers have risen from 7,190 in the year ending March 2012 to 8,744 for the first nine months of the current year, with an estimate of 12,000 for the full year. If this is typical of other CABs across the country we can see something of the growing need, brought about, according to Peterborough CAB, by a combination of the recession and welfare reform.

I am still very new to the customs and conventions of your Lordships’ House. Please bear with me as I learn from my mistakes. I take it that it is acceptable here for us, not least Bishops, to do God. One of the tests of a civilized society is of course the way in which it supports its weakest and most vulnerable members. I would go further than simply stating an ethical principle, however important. The bottom line for me is the calling of all who think of ourselves as children

25 Feb 2014 : Column 904

of God to develop in ourselves, and demonstrate in our words and actions. His especial love for the poor and needy.

8.14 pm

Baroness Grey-Thompson (CB): My Lords, I welcome the debate tonight. It is a privilege to speak after the right reverend Prelate the Bishop of Peterborough. I congratulate him on his fine maiden speech; he has chosen an interesting debate to start his career here. As these things work out, it is perhaps perfect timing. Over the weekend I started a hashtag, which was very complimentary on social media, entitled “Bishops”. I am not sure if I am the first to do this, but I will be adding to it happily later tonight after his fine maiden speech. I warmly welcome the right reverend Prelate to your Lordships’ House and look forward to his many future contributions.

After spending a significant amount of time working on the Welfare Reform Bill and because of the consequences of that, the Legal Aid, Sentencing and Punishment of Offenders Bill, I am grateful for what my noble friend Lord Low has done in this area and congratulate him on his commission’s work. On 21 January 2014 the New Law Journal stated that the Low Commission shines,

“much-needed light on the impact of the LASPO cuts on those largely poor and vulnerable people who up until nine months ago had legal aid as some kind of safety net”.

I do not think that anyone would have said that the system was perfect, but for disabled people it offered considerable help and support. That safety net is disappearing.

My noble friend’s work has not just shone a light on the system within which we are now operating, but has shown how real people are affected by legislation. I accept that when we are debating Bills it is hard to know how every person will be affected, but we are now starting to see it. My noble friend has provided some realistic and sensible proposals. He has not looked back to what some might call the halcyon days of legal aid, but importantly has looked forward. I hope that the Minister will look favourably at the suggestions that have been made. The Law Centres Network is just one organisation that has called for the recommendations to be implemented.

In the past two years we have seen what I believe are some of the biggest changes to the welfare system since its inception. Disabled people have been repeatedly affected by the changes, and not just in one area but in several. They are complex changes at that. I remember the noble Lord, Lord Freud, explaining to me during the Welfare Reform Bill that the new system around universal credit would be simpler, but it is by no means simple. While I have been disappointed that in this area there has been a continued failure to conduct a cumulative impact assessment, I understand why there has not been one. It would have made uncomfortable reading about how some of the most vulnerable people in our society are being treated. I accept that we are in tough economic times and agree that there was a need for looking at doing things in a different way.

One of the consequences of LASPO on disabled people, which has been raised with me by Unity Law, is that it has shifted the costs of civil litigation in

25 Feb 2014 : Column 905

respect of personal injury cases to the defendant company and done away with recoverable insurance premiums for claimants as a result. Because Equality Act cases do not include a claim for personal injury, but rather compensation for injury to feelings, and a request for reasonable adjustments, these cases are not cost-shifted and the insurance premium is needed to protect disabled people against the costs of losing.

I have met Chris Fry from Unity Law several times. He believes that if cost shifting applied to Equality Act discrimination claims, the legal aid budget would stretch further, because there would be no liability to third-party costs in failed cases. I realise that I am talking to many lawyers, and not for the first time do I regret studying only politics at university and not law. At this stage I will not go into further detail, but there are some really positive things that we can do in this area to mitigate some of the challenges that we are facing.

We are where we are, but the legislation has fundamentally changed how disabled people are able to access justice. Access to advice is important. As Citizens Advice describes it:

“Impartial advice is a fundamental ingredient to a healthy democracy”.

I know that Citizens Advice has offered me invaluable advice, but it has also worked with a significant number of people who have approached me for help and support. In the past year or so the largest number of e-mails that I have received have been from members of the public on this issue. The vast majority have been from disabled people asking for help in steering their way through the complicated system; I do not know whether this is perhaps because I am disabled or because I talk in this area. They are just not sure where else they can turn. Changes have occurred at local levels to advice services and those changes are not the same in every area. The number of people asking for help within this incredibly pressurised system is worryingly rising. One of the most recent cases to come to me has been from a deaf man who has repeatedly received letters directing him to a phone number. Obviously that is just not possible.

During our time debating LASPO, I spoke several times on the telephone gateway and repeatedly said that, while signposting people to a phone number may work for some, it would not work for all. I have also been contacted by someone with autism, who even more worryingly has said that he has absolutely no one around him to help him make this essential phone call, and he did not know where to turn. I was his last resort. He has tried to write letters, but received no response. He told me that he went to his local advice centre and was informed that the waiting list for an appointment was several weeks. Cases are being pushed to services that were previously stretched but are now more so.

In the area of appeals and tribunals, there is much work to be done to ensure that we have better decision-making in the first place. That sounds terribly easy, but I know that it is not. Reading through some of the social media streams this week, I hope that there will not be a regime for charging individuals for benefits appeals. I wonder whether the Minister would like

25 Feb 2014 : Column 906

to comment on this. If this were to be the case, it could be seen as yet another way of penalising disabled people.

The support that disabled people get is crucial. Within my noble friend’s report, I very much liked the proposals to embed information in GP surgeries or the places where people are every single day. I thought that was simple but brilliant. Educating young people as to their rights is something that should be on the curriculum right away, along with good sports provision—but that is another matter. The idea of a phone number and simple website is also an excellent idea to act as a triage. We perhaps still need to do more to ensure that disabled people have adequate access to the internet, but that is an aside. Whatever we do, I believe that we have a duty to provide adequate guidance, assistance and support to everyone, and I commend the work of my noble friend.

8.21 pm

Lord Hope of Craighead (CB): My Lords, it is a very real pleasure to follow the noble Baroness and her very thoughtful speech and to follow the right reverend Prelate. I join with the noble Baroness in congratulating him on his maiden speech. My impression in listening to both of them is that they contribute real value to this debate because they have experienced at first hand the problems that we are talking about. Some of us who are lawyers, such as myself, do not have that privilege, although of course we encounter many of those who are in trouble. But it is the real value of their contribution that needs to be studied very carefully, based on their own first-hand experience of the problems that we are talking about.

As for the report of my noble friend Lord Low, I express deep admiration for what he and his commission have achieved. I confess that I read the report with a mixture of despair and relief, rather like the noble and learned Lord, Lord Woolf, who talked about a mixture of feeling worried and encouraged. The element of despair comes from the appreciation that the report brings of the state in which we now find ourselves. Step by step, we have got into a position of real difficulty, in which so many gaps exist right across the system where legal advice and support are not available. It would be wrong to say that we have sleepwalked into this problem, because so many people have been advising Governments, particularly this one, time and again, that cutting back so much on legal aid, for reasons that we all understand, would add to and create this problem.

The relief and encouragement comes partly from the way in which the commissioners have gone about their work and the integrated approach that they urge the Government to adopt, and also from the various signs throughout the report of what is going on elsewhere in other sectors. The point that I wish to draw to the Minister’s attention is the need in this integrated approach to support what others are doing to fill the gaps.

Let me give one particular example based on my own experience in dealing with students in two of the Scottish universities. I know that the report deals with the position in England and Wales, but Scotland is not all that different; the problems are very similar. One

25 Feb 2014 : Column 907

thing that has been growing, both in Scottish universities and certainly in the universities in England and Wales as well, is an appreciation by students of the gaps that emerge and the part that they can play in filling them by providing legal advice where it is needed. There are two particular projects that I know about, one of which was started in 2003 by the University of Strathclyde Law Clinic, which is the largest of these institutions in Scotland, with 195 student advisers, and more recently the Aberdeen Law Project, which started in 2009 and has much the same ambitions, conducting much the same kind of work.

These projects are guided by lawyers within the academic community. They are also funded, to a very substantial degree, by law firms. It is a pro bono exercise. DLA Piper provides funds for the Strathclyde clinic; Pinsent Masons provides funds for the Aberdeen Law Project. This is greatly welcome, for, while the universities themselves would like to provide financial support, it is very difficult for them to do that, given the pressures on their own funding.

There are ways in which the Government can encourage these projects, one of which was demonstrated by the noble and learned Baroness, Lady Scotland of Asthal, when she was in government. She encouraged and participated in an annual awards scheme to student organisations of this kind. It so happened that Strathclyde won the competition in one of the years I was chancellor. She was there, she encouraged what they were doing, and she gave the feeling that the Government were behind what was being done by these student bodies. That is valuable encouragement. It helps those who are thinking of providing funding to feel they are doing something which is in the broad public interest as well as in the interest of the students themselves.

The other aspect of the problem is the work done by the courts. The noble and learned Lord, Lord Woolf, made major strides in simplifying the way in which the courts go about their work. One point, which I particularly emphasise, is the way in which he educated us all in the need for case management, a phrase that I did not encounter in the early days but is now on everybody’s lips, and it works all the way down through the system. It is a means of simplifying issues, working with the litigants in person to be sure that as little time as possible is wasted and people identify the issues as soon as they can.

There is the emphasis in paragraph 5.27 on the need for independent advice. I thought that was a valuable point, partly because I have been serving on a Select Committee on personal service companies, a rather complicated tax matter. Part of the evidence that we have been hearing comes from people who have been trying to use an advice system that the HMRC provides for people who think they are in difficulties. The HMRC says that the advice system is completely independent and that nothing will be communicated to the tax inspectors. People do not believe it, and it is underused. There is, therefore, something to be said for the point drawn attention to in that paragraph—for the Government appreciating that there are independent advisers who need to be supported, as well as government-based advice systems.

25 Feb 2014 : Column 908

The other point worth stressing, as others have done, is the way in which modern technology can be brought to bear to encourage people to seek advice. Younger people than I have apps attached to their iPhones which have access to all sorts of things. I have just acquired an iPhone, and I have been discovering its wonders. Surely there are things the Government could do to increase the accessibility of advice—of knowledge of how systems should be made to work in people’s interests and of the complex system of social benefits. There are avenues to which this report draws attention which are well worth pursuing and should not cost a great deal if proper advice is obtained.

I endorse the point made by the noble Lord, Lord Bach—that there is an opportunity, because of the timing of this report. As he said, we should not let the opportunity go. I would warmly endorse that and all the recommendations made in this excellent report.

8.29 pm

Baroness Howe of Idlicote (CB): My Lords, I join other noble Lords in congratulating the right reverend Prelate the Bishop of Peterborough on his excellent and moving maiden speech.

Like all noble Lords who have spoken so far, I welcome this comprehensive and insightful report which the commission led by my noble friend Lord Low has published. It could not have had a better or more insightful chairman.

Reductions in legal aid and other funding for advice and legal support are having a serious impact on the ability of poor and vulnerable people to access justice. It is this theme on which I wish to concentrate in my contribution to this debate today. The Low commission report highlights the plight of a number of members of the public hit by the loss of legal aid to assist them. They face the kind of everyday legal problems which loss of a job, disability or other crises can throw at them. Examples given in the report include a young couple who were unable to get their landlord to undertake essential repairs; a person in debt who started suffering from severe anxiety and depression and is in danger of losing their house and job; and a disabled person who lost their benefits after being wrongly assessed as fit for work.

In the Government’s latest equality impact assessment, published after the changes to legal aid were introduced last year, a disturbing picture is painted of how these changes will impact on people who are protected by equalities legislation. Around 19% of the general population can be classified as disabled, but 54% of the people who sought advice under the legal aid scheme for benefit problems were classed as disabled. All but a small number of benefit appeal cases were cut from the scope of legal aid. This will mean many of thousands of disabled people going without the legal help they need. In housing cases no longer covered by legal aid, 61% of the clients are women. Organisations opposed to the changes in legal aid, such as the housing charity Shelter, point out that higher numbers of women seek housing advice as they are often left on their own to provide for children or have been forced to move from the family home because of violence or other abuse. Disabled people are also much more

25 Feb 2014 : Column 909

likely to face problems with disrepair due to poor housing conditions. Disrepair cases are often small in value and therefore not suitable for no-win no-fee arrangements. However, if they go unresolved, this can have severe consequences for family health.

Black, Asian and minority ethnic communities are more likely to face all of the social welfare problems with which the Low commission report deals. Some 86% of immigration problems previously covered by legal aid involve people from BAME communities. Often they face problems such as proving their status to claim state benefits such as their pension after a lifetime of working legally in the UK—an issue which will be publicised by a report soon to be published by the Legal Action Group. As the former vice-chairman of the Equal Opportunities Commission, the discriminatory impact of the changes to legal aid on people protected by equalities legislation is of particular concern to me.

Aside from these concerns over equality, there are practical considerations. When people get into difficulty in their daily lives, they need to be able to get the right information and advice as early as possible. If this information and advice is no longer available, they could become unemployed, homeless and/or in debt. Then not only will they suffer distress but the state will incur increased costs. Where legal support—whether in the form of legal help or legal representation—is also not available, the number of people who will then try to represent themselves will increase and the courts and tribunals will have to adapt to deal with this increase in unadvised and unrepresented litigants.

Likewise, when systems that are supposed to support people fail to function effectively, those individuals require extensive help, often including specialist and legal skills, to have their needs met. In its paper, Towards a Business Case for Legal Aid, Citizens Advice argues that the state has to pick up the cost of homelessness, poor health and the other consequences of people not receiving early advice on civil justice problems. It estimates that £1 of expenditure on legal aid saves the state around £6 in other spending.

I am sure that all my fellow Peers are heartened by the recent evidence of some upturn in the economy. However, if the experience of previous recessions is correct, it will be some time before the advice needs of the sort of people I have referred to will reduce. Many advice agencies are reporting an increase in demand for services while they are being forced to cut back due to cuts in legal aid and other public spending. For example, in April 2013 Shelter reported a 40% increase in the number of callers to its advice line seeking help with housing-related problems. I also note that, in a recent report, the Cabinet Office accepts that,

“there seems to be a pattern of rising demand”,

for advice,

“during difficult economic circumstances”.

This is hardly surprising.

It is for this reason—the increasing demand for advice and, above all else, the need to assist the sort of people facing the difficult circumstances I am describing—that I urge the Government to look seriously at implementing the recommendations of this excellent report. Everyone, regardless of their sex, ethnic

25 Feb 2014 : Column 910

background or disability should have the right to equality before the law. There are some excellent suggestions in this report which will certainly help, but I am deeply concerned that the reduction in the availability of legal aid, as well as other advice services, is putting the fundamental principle of a democratic society at risk.

8.37 pm

Lord Gold (Con): My Lords, I am most grateful to be allowed to say a few words, even though I am not on the speakers list. May I first—

Lord Phillips of Sudbury (LD): My Lords—

Lord Ahmad of Wimbledon (Con): The noble Lord, Lord Gold, has given notice.

Lord Phillips of Sudbury: So have I.

Lord Ahmad of Wimbledon: I have not received that.

Lord Phillips of Sudbury: I gave my details in at 12 o’clock today.

Lord Ahmad of Wimbledon: If the noble Lord could take his seat. If both noble Lords intervene for just two minutes we should be able to fit both in. I was certainly not informed that the noble Lord, Lord Phillips, intended to speak.

Lord Phillips of Sudbury: I gave it in at 10 o’clock.

Lord Gold: I will be as quick as I can be. I commend the noble Lord, Lord Low, and his team for producing such a thoughtful report. I also congratulate the right reverend Prelate the Bishop of Peterborough on an excellent maiden speech.

Although I accept, of course, that LASPO has reduced the scope for legal aid, it is not a new problem that there is a gap between what legal aid will support and the needs of those who have claims or grievances. One has to draw the line somewhere and there will always be deserving cases that cannot attract funding. The reality, as we all know, is that there is a finite fund of money available. The report identifies a number of ways in which this problem might be addressed, including recommendations for further government funding. The Minister will, no doubt, tell us what government support there might be for the Low funding proposals, including the Government’s view on taxing pay-day lenders. However, at a time when the Government are still looking to cut expenditure, I am not optimistic that further funding will be available. I would therefore like to propose that much more might be done by the private sector on a voluntary basis.

Now that I am no longer part of a large legal firm, I feel better able to offer others assistance. Paragraph 8.19 of the report rather delicately suggests that law firms might consider offering some funding support. I would suggest another course, similar to that suggested by the noble and learned Lord, Lord Hope. Solicitors’ firms which undertake litigation work have been concerned

25 Feb 2014 : Column 911

for some time that, in training their young solicitor advocates, they have not been able to find sufficient cases where they can develop their skills. I know that all large firms encourage their solicitors to undertake pro bono work and a great number of legal advice centres are part-manned by young solicitors wanting to put something back into society. That could easily be extended to provide much assistance in both advisory work and, where necessary, through court advocacy, by tapping into what I think would be a willing resource. Many sets of chambers would welcome such an initiative and I am sure that the Bar and Law Society will support that.

I know that the Low report suggests that it is unrealistic to consider that pro bono help could replace publicly funded legal help, particularly as the laws and regulations can be complex. However, it is the lawyer’s stock in trade to run with something new and complex, and I have no doubt that there are sufficiently talented young lawyers around willing to help that those requiring assistance may well find themselves better represented than they might otherwise have been.

8.40 pm

Lord Phillips of Sudbury: My Lords, I join others in congratulating the right reverend Prelate on his maiden speech, which, if I may say so, was wonderfully down-to-earth. I encourage him to go on doing God if he can relate the good Lord so closely to what I suspect most of us feel.

I congratulate the Legal Action Group on instigating the Low commission. I should declare an interest as one of the founders and first chair. Above all, of course, I identify myself with the congratulations to the noble Lord, Lord Low. It is a formidable piece of work in a relatively short space of time. I wish the commission as much success in pushing forward the 100 recommendations as in putting them together.

I shall concentrate on the first of the six overarching recommendations in the report. I refer to public legal education which, the report states, should be given higher priority both in school and in education for life. I fear that I shall be a bit tetchy as we have so many fine words emanating from this place and so many fine pieces of legislation hitting the statute book. Indeed, we are inundating the people of this country with laws with almost the same effect as the floods in the Somerset Levels. The truth is that so much of what we do with the best intentions ends up unimplemented, misunderstood or not understood at all. The provision of education in schools is declining and not improving. Citizenship education is not part of the inspected curriculum. It is part of the curriculum overall but it is not inspected by Ofsted. Citizenship does not have to be taught at all by academies and free schools—roughly half of schools. The number of teachers training to teach citizenship is declining rapidly, as is the number of pupils taking citizenship. That is down to 2% for GCSE citizenship and only 8% for the half GCSE. The situation could not be worse.

Section 1 of the Legal Services Act 2007 states that there should be a regulatory objective of,

“increasing public understanding of the citizen’s legal rights and duties”.

25 Feb 2014 : Column 912

That is honoured in the breach. The citizens of this country are falling further and further behind what we legislate in their name and, often, for them as individuals. We kid ourselves unless we own up to that and put as much energy and enthusiasm into implementation of the excellent ideas behind the report as we have put into this debate.

There is so much to do to give, in particular, the poorest and least capable any sense of what is available for them by way of the law. I entirely agree with the comments made about the crucial, essential need for advice on where it is most needed. We are hypocrites if we do not ensure that. Again, I commend the noble Lord, Lord Low, and his excellent commission and hope that this is a beginning, not an end, a determination, not an elegant manifesto.

8.45 pm

Lord Beecham (Lab): My Lords, I join previous speakers in congratulating the right reverend Prelate on a notable maiden speech and in expressing profound gratitude to the noble Lord, Lord Low, and his colleagues, for their comprehensive and lucid analysis of the problems of accessing advice and legal support in this critical area of social welfare law, and for the constructive proposals contained in the report.

The landscape the report describes is changing as a result of changes in the financial and, I would argue, political climate. Where once a thriving network of advice services, citizens advice bureaux, law centres, voluntary organisations and professionals was able to support people in times of great difficulty, we are now seeing virtual advice deserts—to use the phrase deployed by the noble Lord, Lord Thomas—within which an occasional oasis can be found, struggling with soaring demand and diminishing resources. As the report demonstrates, and as we have heard today, a number of law centres have closed, with more to come, while the survivors operate with reduced staffing. CABs, serving more than 2 million clients nationally, face shrinking budgets, while the impact of reductions in legal aid and advice increases pressure on them.

Many Members of your Lordships’ House have a long and active relationship with the voluntary sector, especially the advice sector. As a solicitor, I undertook legal aid work. I did pro bono advice sessions with the Newcastle CAB. I helped found the Wallsend CAB in 1973. I initiated the Newcastle Welfare Rights Service as chairman of social services in 1974, and as council leader supported the creation of the Newcastle Law Centre in 1978. The situation of that law centre, the only one between Kirklees and the Scottish border, is dire. From a staff of 14, with five qualified lawyers, it is now down to one solicitor and one adviser, with three staff. It does not undertake legal aid work.

The Newcastle CAB faces similar difficulties. It no longer has any legal aid funding. Its brilliant chief executive, Shona Alexander, has set out in the starkest terms the current position that she, her staff and volunteers, and, most importantly, her clients, now face. Staffing has fallen from 26 to 19, none legally qualified, and 11 of them on contracts expiring in March next year. Funding for a debt adviser by a local charity is ceasing and a full-time adviser and part-time administrator will be made redundant. The bureau’s

25 Feb 2014 : Column 913

opening hours have been reduced and demand is such that the bureau closes its doors after half an hour because it cannot accommodate in its waiting room the many people who wish to attend drop-in sessions. The average time taken to advise each client has increased by 50% or more because of the triple whammy of legal aid disappearing, welfare changes and cuts in public services. There is now no funding for interpreters or medical reports, and recently there has been difficulty with deaf clients, with interpreters charging the bureau £70 for an interview. Shona Alexander says:

“Just about every private law firm in Newcastle is referring clients to us because of legal aid cuts”,

and increasing numbers of clients need crisis intervention, especially because of benefit sanctions. She states that, ironically,

“every Government department website or letter refers clients to their local CAB”,

but of course, without providing any direct funding.

As if all this were not enough, there is the difficulty, mentioned in the report, of clients obtaining telephone advice from government departments at premium rates. The Newcastle bureau can deal with only 38% of incoming calls, while clients, some of them specifically referred to the bureau for the purpose by government departments, seek to use the CAB’s own phone lines.

Finally, Shona Alexander refers to two areas of high demand: welfare rights and employment. On the former, hundreds of clients seek advice, for while the city’s service is fully stretched, the CAB caters for non-city residents from the surrounding area as well. The part-time specialist worker is fully booked dealing with complex cases and coaching staff and volunteers with more routine work. In employment, the CAB relies totally on pro bono work from local solicitors, the very source referred to by the noble Lord, Lord Gold. However, there are,

“serious cases of discrimination, health and safety issues and other illegal work practices which are now going unchallenged”.

None of this catalogue of difficulty is unique to Newcastle, as the report makes clear, which is why there is such widespread interest in, and support for, many of the commission’s proposals, as evidenced by this debate. I hope that the Government will respond positively to the constructive proposals in the report. Like others, I was particularly attracted to the idea of public legal education that the commission seeks to promote. Will the Government revive the programme initiated by the previous Government, which, as my noble friend Lord Bach reminded us, they abandoned some four years ago? Will they review urgently the areas of welfare law now excluded from legal aid, particularly those highlighted by the commission in its report—again, this was stressed by the noble Lord, Lord Low, tonight—in relation to housing disrepair, harassment and eviction and disbursements for benefits advice? Will they fund the advice required for applications for exceptional funding and revisit the imposition of fees for employment tribunal applications? For that matter, will they disavow any intention of charging claimants fees to access decision-making and appeals processes, as was mentioned by my noble friend Lord Bach and the noble Baroness, Lady Grey-Thompson?

25 Feb 2014 : Column 914

I hope that the Government will endorse the suggestion of local and national advice plans, adopt the proposals to ensure quality of provision and support moves to share services across the sector and promote pro bono services, recognising that the latter must be seen as supplementing and not replacing properly staffed provision. Will they also look again carefully at the online and telephone gateway services, as others have mentioned, not least in respect of cost?

The report makes relatively modest demands for additional resources but I am slightly apprehensive about the call for local government to fund an extra £50 million. As the noble Lord, Lord Thomas, pointed out, councils already contribute 46% of the funding to CABs—some £73 million nationally. Many, including most of the areas where demand for advice and assistance in welfare matters is most acute, are facing unprecedented cuts in funding for mainline services, including statutory services. Requiring additional expenditure would constitute a “new burden”, which, under the Government’s own new burdens doctrine, should be funded by government and not by further cuts to existing provision.

However, I have a suggestion to make. Many people, alas, have suffered terribly from the recent floods. I hope that that damage will be made good by insurance; according to the industry, the cost will apparently be some billions of pounds. Most of us pay insurance premiums. Funding the commission’s proposals in this report would represent a mere fraction of the cost of repairing that flood damage. Could we not, as a society, treat the emergency situations that so often overwhelm our vulnerable fellow citizens—including many disabled people, as the noble Baroness, Lady Grey-Thompson, pointed out—in the realm of social welfare law as something that we could collectively insure via a modest hypothecated surcharge on our insurance premiums? I invite the Government to consider and cost that suggestion, which may be a better way of helping to make good some of the resource that has been lost in the past year or two.

I spoke earlier about my early involvement with this topic of advice and legal aid. By chance, I recently came across a scrapbook that my father kept of my early years in local politics. It included a letter of mine about legal aid published in the Times in 1971. The Timeswas the beneficiary of my epistolary contributions as, at that point, I had not taken up reading the Guardian. The letter concluded:

“Is it too late to hope that some of Lord Hailsham’s undoubted energy will be applied to broadening, rather than restricting, the scope of legal aid?”.

This was at a time when Lord Hailsham was mooting changes to the availability of legal aid. I ask tonight: it is too late to hope that the Minister’s undoubted energy, ability and empathy will be applied in restoring the accessibility of advice and legal support for social welfare law, which is a potential life-saver for so many of our fellow citizens?

8.53 pm

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, I begin by congratulating the noble Lord, Lord Low, on securing this debate and restating my belief, and the Government’s belief, in publicly funded legal services as an integral part of the justice system. All speakers have made valuable contributions

25 Feb 2014 : Column 915

to this debate but I am sure that noble Lords will forgive me if I single out the right reverend Prelate the Bishop of Peterborough for his excellent maiden speech. It is clear from his description of the wide variety of people and situations which he encounters in his diocese that he will be able to bring many valuable insights into our debates. I am very glad to welcome him.