Clause 1 — Lord Chancellor’s functions
Surrogate Parents (Leave, Pay and Allowance Arrangements)
6:00 pm

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I beg to move, That this House
disagrees with Lords amendment 2.

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Nigel Evans (First Deputy Chairman of Ways and Means; Ribble Valley, Conservative)

With this it will be convenient to discuss the following:

Lords amendments 189 to 191.

Lords amendment 192, Government motion to disagree, and Government amendments (a) to (c) in lieu.

Lords amendment 193.

Lords amendments 194 and 196, and Government motions to disagree.

Lords amendments 217 to 220 and 243.

Lords amendment 168 and Government motion to disagree.

Lords amendment 169 and 240, Government motions to disagree, Government amendments (a) and (b) in lieu, and amendment (i) to Government amendment (a).

Lords amendments 170 to 172, and Government motions to disagree.

Lords amendments 177 to 181, and 206 to 216.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

Lords amendment 2 impinges on the financial privileges of the House. I ask the House to disagree to the amendment and I will ask the Reasons

Committee to ascribe financial privilege as the reason for doing so—and so too with amendments 168, 170 and 171. In addressing the very wide selection that you have just announced, Mr Deputy Speaker, I shall begin by looking at the principles that the Government are adopting on the various amendments and the reform as a whole, and at what principles we are inviting the House to adopt.

The scope of legal aid goes to the heart of our attempts to reform and improve the justice system, because targeting funding where it really counts is fundamental, first to the savings the Government are having to try to make in this area as in any other. There is no doubt that the present level of legal aid provision is on any measure unaffordably expensive. I shall not dwell on this issue but it is bound to recur during our debates. Even after our reforms have been carried, if Parliament eventually approves the Bill and it becomes an Act as we intend, we will still have by far the most costly legal aid system in the world. It is almost twice as expensive as that in any other country per head of population. In no other democratic jurisdiction would it be possible to get up and argue seriously that the taxpayer should spend money on the scale that we do on legal representation and advice.

The changes to the scope of legal aid that we are proposing are also part of a broader shift. We are trying to reduce the amount of unnecessarily adversarial litigation. The very broad provision of legal aid has encouraged people to bring their problems before the courts, but sometimes their basic problem is not a legal one and the best way of resolving the dispute or tackling the problem would be not to take a litigious approach. Such an approach imposes costs and does not always resolve problems. Before I move on from the tricky matter of cost let me say that with legal aid the cost is not just to the public purse and our Department. One has to think of the costs imposed on all the other people who are parties to litigation, such as businesses—small and medium-sized enterprises—and the national health service, as this selection includes clinical negligence claims. Everything we agree to do in relation to clinical negligence comes out of the budget that is otherwise available for public services. The growth of the clinical negligence industry is having an impact on national health services at the present time. There is also a cost to individuals, because for an ordinary citizen of ordinary means to be in the appalling situation of being engaged in litigation when the other party has legal aid is not an experience that most people would enjoy. We should bear all that in mind as the background to what we are doing.

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Glenda Jackson (Hampstead and Kilburn, Labour)

Is the Secretary of State actually arguing that the best way of getting a level playing field is to deny everyone any kind of legal aid? That seems to be the thrust of his argument.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I am not arguing that. I am saying there should be hesitation before the very powerful and quite legitimate lobbies that have descended on the House since we proposed the changes just sweep everybody into believing that ever-wider provision of legal aid is necessary. There are downsides. In addition to the cost

to the public purse, which we cannot ignore because no other democratically elected Government spends this amount of public money on funding litigation and legal advice, if we have a litigious society it imposes costs on all other branches of our life. That is an essential background that we cannot forget as we consider these amendments.

We have applied other tests, but the whole point of having legal aid—and the reason why we are keeping a legal aid system that will still be the most generous in the world even when we have cut it back a bit—is to deal with the needs of justice and those who are vulnerable in society. The other principle that applies is the need to focus taxpayer funding on the most serious and important cases that genuinely require specialist legal advice. Our principled stance is that legal aid should routinely be available in cases where people’s life and liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where their children may be taken into care. It should not routinely be available where other funding is available, where litigants can present their own case, or where the taxpayer is at risk of paying for litigation that any person paying from their own pocket would not finance and participate in. That is the basis on which we look at all the amendments that have come from the other place.

I am grateful to the other place for the time and the detailed debate and scrutiny it has dedicated to the Bill, genuinely improving it in places. I went and listened to parts of the debates myself and I have great faith in the power of the other place to revise a Bill without altering it fundamentally. Wherever possible I have sought to incorporate my noble Friends’ amendments or intentions, and as a result of the scrutiny of both Houses the overall package has moved very significantly from our initial position when we introduced the Bill, and it is all the better for it. Before people press me to agree to more than we are proposing to agree to in this important group of amendments perhaps I should remind the House of the changes we have made since we started this whole process quite a long time ago. They include removing the power to means-test suspects receiving advice and assistance at the police station, adopting the Association of Chief Police Officers’ definition of domestic violence and extending the time limit and range of evidence accepted when it comes to accessing the domestic violence gateway. We agreed to that a long time ago. People got very excited about the ACPO amendment so we gave them that, and then a whole list of fresh demands were immediately made by the Law Society and other groups that have lobbied us. I shall address those issues in a few moments.

Other changes include retaining legal aid for cases involving human trafficking and domestic child abduction—another concession; ensuring that funding covers special educational needs for 16 to 24-year-olds; and putting it beyond doubt that we are retaining legal aid for parents to bring clinical negligence cases in the most serious and complex neurological injury negligence cases for small children, which we always intended to do. Beyond the legislation, we announced at the Budget a further £20 million to go to the not-for-profit sector in each of the next two financial years.

How do the further Lords amendments in the group measure up against the principles I have outlined? I regret that the broad thrust of some of them is still to be

rather free with taxpayers’ money. In our opinion, they certainly go way beyond ensuring that the Bill is focusing funding on high priorities.

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Tony Lloyd (Manchester Central, Labour)

The Secretary of State made great play of the ACPO definition of domestic violence, but if the test is about protecting the vulnerable I must say that the definition is very legalistic. The experience of lots of women—the 230 women who leave home every week because of violence—is not always packaged in the way allowed for in the proposed legislation. Does he accept that many women will fall outside the definition and will not be able to get legal aid?

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

Let me begin with the domestic violence gateway. The ACPO definition is what the Labour Front-Bench team was originally concentrating on. We have to have a definition because we are talking about qualifying for the public funding of legal aid in certain cases. We have moved a lot on domestic violence and we are moving again in response to the Lords’ debate, as I shall explain in a moment. First, though, let me make it clear, because I do not think it has always been clear to people in either House, exactly what we are talking about. It was never in doubt that there would be legal aid for the protection of victims of domestic violence. Domestic violence is an issue that this Government, like any Government, including the previous one, take extremely seriously. As now, it was always intended that legal aid would remain available for victims of domestic violence who were trying, for example, to obtain protective injunctions to defend themselves in such cases. In domestic violence cases there is no means test so even the super-rich can obtain legal aid if they are seeking an injunction for reasons of domestic violence, although I hope that not too many of them will.

We are doing quite a lot of other things. The Home Office is for the first time providing more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence support services, and £900,000 each year to support national domestic violence helplines and a stalking helpline. Our Department is now contributing towards the funding of†independent advisers attached to specialist domestic violence†courts. We are giving a total of £9 million for that purpose up to the end of 2012-13. We are allocating £3 million a year to 65 rape crisis centres and opening new ones. Domestic violence protection orders are being piloted in three police force areas.† We have announced a one-year pilot which will take place from this summer to test out a domestic violence disclosure scheme, known as Clare’s law.

I mention those things so that we can have a debate which, with great respect to their lordships, is not on the same basis as the part of the Lords debate that I listened to—that people did not realise the seriousness of domestic violence as a social issue in our society. We all do. The Bill never challenged that. It is all part of a pattern of services being provided by this Government, through which we think we are strengthening the support for victims of domestic violence.

What we are discussing here is the special provision that we are also making to provide legal aid to people who have been recent victims of domestic violence, so that when they are dealing with their abuser in court on other issues—ownership of the former matrimonial

home, maintenance, access to property—they have access to legal aid. In such cases, particularly the private family law cases and the children’s cases, we are trying to shift away from so much adversarial litigation. Having lawyers on both sides arguing about custody and access to children does not always lighten the tensions or resolve the dispute, as most Members of Parliament are only too well aware from their constituency surgeries, so we are moving towards mediation, which is cheaper. That is why some of the lobbyists do not like it, with the result that in cases where it does not work, they are arguing for legal aid to continue to be available.

We have conceded the case that after a recent episode of domestic violence, the victim on her own may not want to deal, even through mediation, with her abuser. How do we define domestic violence for that purpose? That is an important but secondary purpose, as the case will not be about domestic violence. In such a case, what definition of domestic violence should be used for the person to qualify for legal aid? That is what the argument about the definition in both Houses has been about all the way through.

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Kate Green (Shadow Minister (Equalities); Stretford and Urmston, Labour)

The Lord Chancellor mentioned that it will still be possible to obtain legal aid to get an injunction when there is domestic violence. Will this not be a cost-accumulating measure, as women will first go to get an injunction in order to have evidence to be legally aided for the case of domestic violence?

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

Such women will not get an injunction if it turns out that there is no reasonable ground for giving it and they are not in imminent fear of domestic violence. We will give them legal aid because we think it is important that these issues are tested in cases where legal advice is available. If women do not get the injunction, they will not get the legal aid later.

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Elfyn Llwyd (PC Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs), Shadow PC Spokesperson (Wales); Dwyfor Meirionnydd, Plaid Cymru)

What is being missed here is that the evidential gateway is being closed down. I am not saying that the right hon. and learned Gentleman wants to deprive every person of assistance in a domestic violence situation. I would never allege that; I know him to be a better person than that. What I am saying is that 46% of those who would be eligible will no longer be eligible under these so-called reforms, according to recent reports from Rights of Women and Welsh Women’s Aid. People who would genuinely qualify will no longer qualify, and that is the issue that we are now discussing.

6:15 pm
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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I refute the idea that people will be given an injunction at some hearing in order to enable them to get legal aid, but people might apply. If the evidentiary tests are made too lax, there will be a tendency to fabricate claims or to bring in claims that are old and irrelevant, because it is worth thousands of pounds to the lawyer advising that person if legal aid is granted on that basis.

Far from trying to narrow the scope, let me remind the right hon. Gentleman and others where we have got to and where we are going this evening, by the time we have finished. We have a clear, wide definition trying to catch the variety of circumstances that will evidence recent domestic violence so that the argument that the

victim should not have to face her abuser without having legal representation can be countered. But we do not want to shift the vast majority of private family law cases away from mediation into publicly funded adversarial litigation.

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Helen Jones (Shadow Minister (Communities and Local Government); Warrington North, Labour)

Does the Lord Chancellor not accept that the legalistic approach that he is adopting ignores the reality of domestic violence, which is that many women do not report it, sometimes for years on end, and do not go to court to get injunctions, or if they do, are often persuaded to withdraw the proceedings before they come to a conclusion? It is only when the whole situation explodes and they leave the home that the reality of that domestic violence is noted.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

But women will get legal aid for seeking the injunction. The hon. Lady is falling into what has happened throughout these debates. The definition that we are talking about as the gateway to legal aid for all other private family law cases goes far beyond injunctions.

If I may move on, I will remind hon. Members how far we have gone since we started the Bill—far beyond where the Opposition were first urging us to go—and we will go further in response to the debate in the House of Lords. The first issue is reflected in Lords amendment 192—whether or not we should use the definition used by the Association of Chief Police Officers, which we resisted in this House. The Government’s intent is to have a broad and inclusive definition and one that commands widespread agreement. To cut all the pressure, we are happy to support the spirit of the amendment and we are therefore adopting the ACPO definition. I half suspect that if we had offered that when the Bill was in the House of Commons—it was my mistake that we did not—we would have closed the discussion down in the House because that is what everybody was then pressing for.

In their amendment their lordships in their wisdom add words which are not in the ACPO definition. That rather goes against the arguments that have been put forward for one, single, cross-Government definition of domestic violence. We have therefore tabled further Government amendments in lieu of Lords amendment 192 which would define domestic violence in the same way as the ACPO definition as

“any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.”

We think this should satisfy the concerns that have been expressed in both Houses on this point, so I shall ask the House to agree to this Government amendment in lieu of Lords amendment 192.

Amendments 194 and 196 concern the accepted forms of evidence of domestic violence. I have already said that when litigation is about domestic violence, the victims will always have legal aid. The issue is one of balance. Lords amendment 194, led by the learned Baroness Scotland and supported by a number of her colleagues in the other place, has prompted us to look again at other kinds of objective evidence to ensure that the test is as widely drawn as possible.

I have discussed that with colleagues in the House, and I am grateful to the colleagues with whom I had meetings, particularly to my hon. Friend Mrs Grant, who is in her place, for advice on the subject because she knows far more about family law than I do, as I have never practised in this field, and in particular for making the point that we need to take care that the range of evidence does not force victims to take formal court action where it may not be suitable in individual circumstances. We do not want to force people to go to court who would not otherwise do so.

Therefore, in response to this House and the debate in the other House, we intend to accept as evidence—we will reflect this in regulations—the following matters: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.

We are prepared to accept those matters and ask the House to accept them this evening. They are in addition to those forms of evidence that the Government already accepted in our earlier debates. Those are: that a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party for the protection of the applicant is either in place or has been made in the previous 12 months; that a criminal conviction for a domestic violence offence by the other party against the applicant is still in place; that there are ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; that there is evidence from a multi-agency risk assessment conference of the applicant having been referred as being at risk of domestic violence from the other party and action has been recommended; and that there is a finding of fact by the courts of domestic violence by the other party against the applicant.

For the best part of 12 months we have reviewed this rather narrow point in one piece of litigation, and that is a fairly formidable list of things we are prepared to accept as evidence of domestic violence. If their lordships consult the people who have been sending them all the e-mails for the past few weeks, I am sure that they will be able to add to the list, as will Members of this House, but if we are not careful we will forget what the objective is: we want more of these cases not to be conducted by lawyers, financed by the taxpayer, who are engaged in adversarial litigation about where the children will live, what maintenance should be paid by one party or the other or what share of the matrimonial home should be owned by one party or the other. The Government have responded pretty generously because of our concern about domestic violence and, as I have already indicated, in key areas we have moved beyond where we were. This evening we have to insist that that is where it will end.

I should also point out that, on the time limits, where I do not think any history of domestic violence can be remembered and invoked, it is a question of ensuring that victims of recent or ongoing violence are protected,

drawing a line so that Government regulations do not result in a permanent opening of access to legal aid. We will double the time limit we originally proposed from 12 months to two years, except in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one.

Having moved on all those issues, the Government do not agree that the evidential requirements for those cases should be set out on the face of the Bill; the evidence I have described will instead be set out in regulations. The benefit is that that will allow greater flexibility to amend the scheme if required in the light of experience. If we set it all out in primary legislation, we would find that we had set things in stone for our successors.

Photo of Elfyn Llwyd

Elfyn Llwyd (PC Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs), Shadow PC Spokesperson (Wales); Dwyfor Meirionnydd, Plaid Cymru)

Can the Secretary of State assist us by telling us how the list he read out, which I must say is welcome, differs from Lords amendment 194, because they seem almost identical? Is he saying that, rather than putting them on the face of the Bill, they will be set out in cast-iron regulations?

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I think that I am right in saying that what their lordships tried to do was put one form of definition used by the UK Border Agency on the face of the Bill. That is far too wide, and it is for a different purpose—[ Interruption. ] Well, that is an indication of the sorts of things it will take as evidence; it is not a qualification for anything. We need something that is the basis for making a clear decision on whether or not people are eligible for money, and we have opted for ACPO-plus. The other difference, as I have said, is that we do not think that we should spell it out and draft each of these forms—I of course bind myself by the words I read out earlier, which are what we are committed to. The advantage of regulating along the lines that the Government are committed to is that, if in the light of experience there is some mistake, it is much easier to make a change. It is always a mistake to fix everything in too much detail in primary legislation, because a future Minister or Government might have to try to find the parliamentary time to make the necessary changes to improve it.

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Glenda Jackson (Hampstead and Kilburn, Labour)

I, too, welcome the list that the Lord Chancellor read out with regard to domestic violence. Looking at my constituency, I am concerned about where those women will go to obtain that advice, because we are seeing reductions in the services currently provided by citizens advice bureaux and law centres, for example, as a result of the changes to legal aid. There is a gap between the one who suffers the harm and the obtaining of the advice.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

People can approach their solicitors for advice on family law, as they do now. In an increasing proportion of cases, through the services offered to them, they will be put in touch with the mediation service, with or without the assistance of their lawyers—that is a matter for them—and the case will be mediated rather than both sides being represented in an adversarial manner. That works successfully where it has been introduced and we think it should be extended much further.

Lords amendment 168 seeks to bring the majority of welfare benefits matters into the scope of legal aid funding. Lords amendment 169, along with Lords amendment 240 and amendment (i), tabled by my right

hon. Friend Tom Brake to our amendments in lieu, would have similar effects, so I will discuss them together shortly.

The first point to make about Lords amendment 168 is a financial one. Even bringing advice and assistance into scope for reviews and appeals concerning all welfare benefits, which is the intention behind the amendments, could cost as much as £25 million, and we cannot afford provision in an area of relatively low priority. As I said, we will ask the House to disagree with Lords amendment 168, and we will ask the Reasons Committee to ascribe financial privilege as the reason for doing so. In particular, this is because, in line with the principles I have set out, welfare benefits matters should not generally require specialist legal advice.

Before discussing the other issues, let us consider legal aid for advice on welfare benefits. Every Member sitting in the Chamber is used to giving advice on social security benefits, because we do it all the time, and there are other voluntary bodies that give advice, but we do not get legal aid. I suspect that in an ordinary case, where there is no issue of law and it is a matter of fact, because of the huge complexity of social security regulations, the advice given by MPs and some members of their staff can be superior to that which is available from a large number of general family solicitors, but those solicitors get legal aid. No one else gets legal aid. Legal aid should be for those cases where legal advice and expertise is required, and it should be financed by the taxpayer on legitimate grounds.

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Stephen Timms (Shadow Minister (Work and Pensions); East Ham, Labour)

In cases, of which there are many, where people seek advice from citizens advice bureaux to help them prepare a review or an initial appeal, is it not in everybody’s interests, including the Government’s, that they should be able to get some advice before going forward with their review request?

6:30 pm
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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I value citizens advice bureaux as highly as the right hon. Gentleman, and ever since the Bill was introduced we have said that we will come forward with proposals to improve the support given by the Treasury. As I have said, at the time of the Budget there was an announcement, which was not much noticed at the time, of £20 million a year to be made available for voluntary advice.

For most citizens advice bureaux, legal aid is not the biggest source of their funding, and some do not get any legal aid funding at all. Their advice is very valuable general advice to people with a combination of debt, housing and every other problem; it is not specifically legal advice in most cases. Our Department is not the biggest Department that contributes to such bureaux; the Department for Business, Innovation and Skills has the biggest budget, for debt advice and other forms, and I think that it has ring-fenced its budget and still provides funding.

Most citizens advice bureaux have lost a lot of money because local government funding has been cut quite severely, and the Government are producing money from the Treasury to compensate in part for that, so we—not my Department; the Cabinet Office—are now distributing that £20 million to ensure that such valuable general advice is still available. What we cannot do is

start inventing legal aid scope, or fail to narrow legal aid scope, as a roundabout way of maintaining funding for citizens advice bureaux, many of which do not receive legal aid funding now—giving them funding that is spent on general advice as much as on legal advice. Of course, the more we extend the scope to help the citizens advice bureaux, which are busy lobbying the House, the more we also help professional lawyers, who also qualify for all the legal aid scope that we are happily enlarging.

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Yvonne Fovargue (Opposition Whip (Commons); Makerfield, Labour)

The citizens advice bureaux that are so busy lobbying are actually lobbying on behalf of their clients. Some 77% of the funding being removed from the scope of legal aid is going not from solicitors’ firms, but from citizens advice bureaux and law centres—and from specialist legal advice. The Legal Services Commission will not provide the money, which I remind the Secretary of State is £160 for a legal aid case at the early stage of a welfare and benefits case, but it prevents the case from becoming much more expensive later.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

The hon. Lady’s experience of citizens advice bureaux greatly exceeds my own, but I am pretty certain that fewer than half of such bureaux receive any legal aid funding at all. I have not sought to deny the financial problems of citizens advice bureaux, but we cannot solve them by being so generous in scope with legal aid when the issues involved in most welfare cases are not legal problems. What people require in these difficult times is general advice on a general combination of problems from which they suffer.

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Tom Brake (Carshalton and Wallington, Liberal Democrat)

On points of law, I welcome the concession in relation to upper tribunals and welfare benefits, but can the Justice Secretary confirm that the Government intend to ensure that all cases in which points of law are in contention, whether in the upper or lower tribunals, are funded through legal aid? If that is his intention, what will he put in place, either in the Bill or in some other way, to ensure that it happens?

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

My right hon. Friend anticipates the concession that I was going to explain; it is in the documents before us, and he has spotted it. Legal aid issues are usually, as everybody knows, about the factual basis of the claim or the proper application of this country’s extremely convoluted social security regulations, which I hope the current Government’s reforms, when we eventually get to a universal benefit, will greatly simplify, but most such issues are not legal. We have a tribunal system that was deliberately designed so that ordinary citizens might access it and argue their case, and when we invented all those tribunals, we went out of our way to say, “They are not courts and you don’t require lawyers, as these are places where people will argue,” but, as my right hon. Friend says, sometimes legal issues are raised in them.

The Government, in response to these debates, have tabled an amendment, which is a concession. It is Government amendment (a) in lieu of Lords amendments 169 and 240, and it would make legal aid and assistance available for welfare benefits appeals on a point of law in the upper tribunal, the Court of Appeal and the Supreme Court. It would also include funding for

applications for permission made to the upper tribunal, and it would also make legal representation available for welfare benefits appeals to the Court of Appeal and to the Supreme Court.

Most surprisingly, that Government amendment in lieu was put forward in response to the argument. We did not wish to argue that in such cases, when the whole thing is a point of law, the applicant himself or herself should be expected to represent themselves without legal assistance, so we have tried to define those cases in which legal advice should certainly be available.

My right hon. Friend’s amendment, on the face of it, goes back to the whole of business of whether we should apply legal aid for legal advice in every welfare claim, but the question that concerns him most is, “What about the ones that involve legal issues?”, and I can conceive of cases in the lower tribunals in which what is raised really is a point of law. He wants me to find some equivalent to the upper tribunal, asking, “Is there some situation in which somebody, preferably the tribunal judge, certifies that there is a point of law involved where legal aid should be available?” We do not have such a situation at the moment, and we will have to try to devise one, as there is no system for it: just as we have accepted the argument about legal issues in the upper tribunal, we could of course do so if the same thing arises in the lower.

We will go away and work on the matter. We already have discussions under way with the Department for Work and Pensions, whose help we will also require, to see whether we could have some equivalent—whereby somebody other than the claimant or their lawyer certifies that a point of law is involved—and provide legal aid. I suspect that at this stage of the Bill’s passage through Parliament it is far too late to start introducing primary legislation in the House of Lords, but we have retained for ourselves powers to amend the scoping through regulation, so if we could solve the problem, we could bring something forward through statutory instruments. We are quite open to the argument for ensuring that we have legal representation when there is a legal issue that we cannot expect a lay person ordinarily to argue.

Photo of Elfyn Llwyd

Elfyn Llwyd (PC Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs), Shadow PC Spokesperson (Wales); Dwyfor Meirionnydd, Plaid Cymru)

I follow the right hon. and learned Gentleman’s logic on that, but surely if the point of law is a good one in the upper tribunal and all the way up to the Supreme Court, it is equally good in the first tier, but if the case is unrepresented in the first tier, it is not going to go anywhere else.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I should like to see whether we can devise, with the help of the DWP, my right hon. Friend the Member for Carshalton and Wallington and anybody else, a system whereby we identify in the lower tribunal such issues that involve a legal issue. We think that the number is comparatively small, because it is not the business of lower tribunals normally to find themselves arguing points of law, as they normally argue points of fact and of regulatory interpretation, but we will work on the matter, and if we can devise such a system, we undertake to respond as my right hon. Friend asks me to.

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Simon Hughes (Deputy Leader, Liberal Democrats; Bermondsey and Old Southwark, Liberal Democrat)

The Secretary of State is being very helpful, and my constituents are absolutely not bothered whether this is a primary or secondary legislation matter, as they just want to know that they will have the

support that he talks about. May I, however, clarify two things? Will any such measure apply to a matter of law and to judicial review when there is a proper matter of law—and, in those cases, not just to social security but throughout the tribunals service? When the agency turns down somebody’s application and that person wins their appeal to the tribunal, there absolutely has to be a parity of arms at a further stage of appeal if the state appeals again. The applicant is there not because they want to be there, but because the state or the agency has sent them there.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

On the right hon. Gentleman’s first point, I can assure him that we are continuing legal aid in all cases involving judicial review, so legal aid is available to someone who is trying to have a welfare decision judicially reviewed. That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice. This is not an easy concession to make, because quite a lot of people who seek judicial review are not instantly popular with all sections of society, but we still give them legal aid.

On the other matter involving situations in which the state is busily arguing against a successful appellant that some kind of law is involved, I will add that to the list of things that we are studying with the DWP to try to identify whether, in cases where the state thinks that it is worth arguing about the interpretation of something, the litigant should be able to do so as well.

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Robert Buckland (South Swindon, Conservative)

I am listening to my right hon. and learned Friend’s arguments with great care, but I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand, and they are often best handled by a lawyer. I worry that we are making an artificial distinction, and that if, as he is suggesting, we are to rethink a number of issues raised by Members of the House, we should rethink this one too.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

Of course there can be borderline cases, but, with great respect to my hon. Friend, in the vast majority of cases it is fairly obvious whether one is arguing a point of fact or a point of law. In an ordinary welfare case, the question will be whether someone is fit for work or not fit for work, or living or not living at a particular address. When a point of law arises whereby it is not a question of the complexity of the regulations but of the actual meaning of the regulations, somebody like a tribunal judge will know that instantly and think, “That is quite an interesting point of law that I’ve not had before; this will go to the upper tribunal and I will certify that it would be rather nice to have some guidance.” In the end, we have to leave it to tribunals themselves to decide on the facts. Some may be blurred, but by and large, in the vast majority of cases, they will be reasonably clear.

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Helen Goodman (Shadow Minister (Culture, Media and Sport); Bishop Auckland, Labour)

rose—

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I will give way once more and then I must get on; otherwise I will take up all the time available myself.

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Andrew George (St Ives, Liberal Democrat)

Further to the points made by my right hon. Friend Tom Brake, does the scope of the Secretary of State’s amendment exclude lower-tier tribunals, or can it be interpreted in such a manner that lower-tier tribunal appeals that are brought forward on the basis of evidence relating to a matter of law and then taken to an upper-tier tribunal might be included without the need for further regulations?

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I have obviously failed to make myself completely clear, so I will try again. As it stands, the Government’s amendment in lieu applies only to upper tribunals. The right hon. Member for Carshalton and Wallington and others argue that something similar should be available in lower tribunals and in other cases. I have undertaken to explore whether we can find an alternative method of identifying those limited numbers of cases and getting them certified when they involve a legal principle. As the matter has been raised at this stage of the debate, we have to fall back on saying that we would use our regulation-making powers through a statutory instrument, because we could not possibly draft primary legislation to cover it in the few days that we have left.

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Tim Farron (Westmorland and Lonsdale, Liberal Democrat)

Before the Secretary of State moves on, may I ask him to give us a time scale?

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

The amendment was tabled only at 6 o’clock yesterday evening, so we have moved quite quickly to get to where we are now. I suspect that the relevant officials at the DWP have not yet even been involved in discussing this. I cannot give a time scale, but we will move as rapidly as possible.

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Glenda Jackson (Hampstead and Kilburn, Labour)

The Lord Chancellor referred to a majority of cases. Citizens Advice says that the proportion of appeals that are upheld in work capability assessment cases, for example, rises from 40% to 90% when a legal adviser is involved. I am not saying that it will necessarily be about a point of law, to pick up the point made by Mr Buckland, but there are occasions when a legal mind can clarify the situation. I do not think that the Lord Chancellor understands who are the people who go to appeal. He said that in domestic violence cases, they go to a solicitor. None of my constituents in that situation has a solicitor; they go to the CAB or to a law centre, many of which, in my constituency, are in grave danger of having their ability to provide those services reduced—

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Lindsay Hoyle (Chairman of Ways and Means; Chorley, Labour)

Order. The hon. Lady has had a good go at intervening three times. Could interventions please be shorter, because we have to get in a lot of other speakers who want to make points?

6:45 pm
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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

The cases that the hon. Lady mentions do not depend on a lawyer. When Sir Gerald Kaufman was sitting behind her in the previous debate, he said that in

his experience as an MP, when one discusses the matter with somebody, one gets clarity on what the real point is and how they should present it. A general adviser can help to sort somebody out in going along to argue their case by telling them what is relevant and what is not and giving them some guidance on what they should get evidence of in order to pursue their claim. That is not the same as legal aid. That is why we are producing the money for Citizens Advice and other voluntary bodies to give general advice. It is no good claiming that it is all about legal aid. Some lawyers are better at this than others. Just a friend who is a good advocate can be adequate in marshalling a case that is being argued on appeal about a question of fact as to whether, say, somebody is able to go back to work.

Photo of Helen Goodman

Helen Goodman (Shadow Minister (Culture, Media and Sport); Bishop Auckland, Labour)

rose—

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I give way for the last time.

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Helen Goodman (Shadow Minister (Culture, Media and Sport); Bishop Auckland, Labour)

It would help the House if the Secretary of State could tell us what he means by a point of law. Does he mean that it is a disagreement about the proper interpretation of the rules, or does he accept that it might be about whether the rules have been properly interpreted, which is not a dispute about facts?

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

It would be reckless of me to try off the cuff to make a tight definition of a point of law. It is about a situation where a particular question arises out of the interpretation of a regulation and there is no clear and binding precedent for exactly what the law should be when it comes to applying it to the set of facts involved, and it is then up to the tribunal judge to decide. Following the concessions that I have introduced about upper tribunal and Court of Appeal cases, the judge will certify that a point of law is involved in a case because he thinks that it is one in which the guidance of the upper tribunal or the Court of Appeal is required on what exactly the law will say that it means. That is what is meant by a point of law. We have made considerable concessions. No one is arguing about the vulnerability of groups of people who are arguing about their welfare benefits. The Bill is about how much money the taxpayer pays to how many lawyers. We are trying to concentrate on spending that money on paying lawyers for cases in which a lawyer is required to sort out a welfare benefit dispute. That is the basis on which our amendments were produced.

Let me turn finally, and as briefly as I can, to clinical negligence and legal services for children. That has been debated throughout the passage of the Bill in this House and in another place. We have listened carefully to the concerns that have been raised about the impacts of these reforms on children. I can again assure the House that the provisions in the Bill will safeguard the vast majority of the spend on cases involving children, because we have covered all the most serious cases of clinical negligence—about 96%.

I remind people that the underlying problem in the tricky area of clinical negligence cases is that all the money that we spend on compensation, legal advice, expert witnesses and so on comes out of the budget of the national health service. That now takes up a proportion

of the NHS budget of a kind that I would never have contemplated all those years ago when I was a Health Minister struggling with what I thought were difficult budgets. The more one allows to be taken out of the budget for lawyers and expert witnesses in claims for compensation, the more one cannot ignore the impact that that is having on what is available for patient spend. There is no doubt that this has been a bit of a growth industry in recent years, particularly since the changes to the no win, no fee arrangements about 10 years ago. There has been an increase of 50% or so in the number of claims in the past five or six years. The last annual report of the NHS Litigation Authority estimated that the unfunded liabilities for clinical negligence claims totalled £16.8 billion, which is a cool doubling of the figure since 2006.

The bills paid to the lawyers of criminal negligence claimants more than doubled from £83 million in 2006-07 to £195 million in 2010-11. The damages paid to claimants have gone up somewhat more slowly, but the lawyers’ bills have increased substantially. One reason for that is that the fees paid to and costs incurred by the lawyers and expert witnesses acting for the plaintiffs are about three or four times as much as the Litigation Authority, as the defendant, pays for its lawyers and expert witnesses. The costs and the claims are rising exponentially. Although this is an area that we should approach with care, the clinical negligence industry has been doing well over recent years, and that has been funded entirely by budgets that would otherwise be available for patient care.

Having given that somewhat stark background, I will turn to Lords amendment 171, which seeks to bring all such cases back into the scope of legal aid when a child is a party. In our opinion, that would be unnecessary and wasteful. As I have said, under our plans, the overwhelming majority of the existing support for children will continue. For the record, that includes child protection cases, civil cases concerning the abuse of a child, special educational needs cases, and legal aid for children who are made parties to private family proceedings.

In addition, we have made funding available in the final set of amendments under consideration in this group for cases of clinical negligence involving claims for babies who suffer brain injury at or around the point of birth. I state categorically that as a result of the Government’s Lords amendment 216, any baby who, through clinical negligence, suffers brain damage during childbirth, resulting in†severe disability, will receive legal aid. The amendment provides legal aid for clinical negligence claims for babies who suffer brain injury during pregnancy, at birth or in the immediate post-natal period, leading to a lifetime of care needs.†I also make it clear that if a baby were to be injured in an operation, say at six months, legal aid would be available through the exceptional funding scheme, where necessary, to ensure the protection of the individual’s right to legal aid under the European convention on human rights.

When we introduced the Bill, we believed that we had covered all those cases through the exceptional funding scheme. Doubts were expressed continually in this House and in another place about that, so we now have this set of amendments to put it beyond doubt in the Bill.

By contrast, we cannot support Lords amendment 172, as I have said. That amendment would provide public funding for the remaining minority of medical negligence

claims with child claimants, despite the fact that many of them are relatively simple, do not involve lengthy and detailed investigations of the kind that we are trying to catch in Lords amendment 216, and are suitable for funding through a conditional fee agreement in exactly the same way as for adults. In line with the principles that underpin the Bill, the state should not fund cases that can be provided for by alternative means.

Photo of Bill Esterson

Bill Esterson (Sefton Central, Labour)

The Justice Secretary has moved on from Lords amendment 171. I am concerned about children in care and care leavers, who are among the most vulnerable children in our society and whose life chances are badly affected by their situation. There is a grave risk that children in care and care leavers will be massively over-represented in the relatively small number of people who will be excluded under the Government’s proposals. If that happens, it will seriously affect the life chances of a group of children who are already very vulnerable and who often do not have adults to advocate for them.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

That is an interesting argument. I do not dismiss it, but I do not know of any evidence to support it. However, as I have said, the Bill covers serious cases involving children.

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Sadiq Khan (Shadow Lord Chancellor and Shadow Secretary of State for Justice; Tooting, Labour)

Babies.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

Babies, yes, although exceptional funding rules will apply to other serious cases involving children. Under the European convention on human rights, one must plainly provide someone with access to funding to have a fair resolution of a dispute. We therefore think that we are covering most cases. The amendments that I am suggesting that the House should disagree with cover all kinds of routine cases. They state that simply because a person is under a particular age, they should get legal aid in cases for which an adult would not receive it.

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Helen Goodman (Shadow Minister (Culture, Media and Sport); Bishop Auckland, Labour)

rose —

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

Let me move on, because I am giving way far too much and taking a great deal of time.

Lords amendment 170 sounds like an innocuous measure, but it would open up legal aid to cover the costs of expert reports in all the cases that currently are funded by CFAs or no win, no fee arrangements. It would allow lawyers to apply for legal aid to cover the expert report in any case where a client, of any age, was financially eligible, and to still get their success fee in respect of their other legal costs. That would transfer all the risk in a no win, no fee case from the solicitors and insurers to the legal aid fund and the taxpayer. That would be unfair to the taxpayer and would result in a significant expansion of the legal aid scheme.

I have covered with as much care as I can these particularly sensitive areas—

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I really must not, because I have taken well over an hour, although I have given way countless times.

In my opinion, the Government have taken a consistent and principled approach to reforming the scope of legal aid.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

I do not think that the hon. Gentleman has been in the Chamber for very long during this debate. [Hon. Members: “Yes he has.”] All right; I will give way one last time. I hope that I have deterred anybody else who wants to get me to give way.

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John McDonnell (Hayes and Harlington, Labour)

I would not have sought to intervene if I had not been here from the beginning of the debate. I have been here the whole time.

I want to get clarity on one point in relation to children. The Children’s Society and the Refugee Children’s Consortium estimate that there are about 2,500 under-18s who will not gain support in relation to immigration matters. My borough deals with more unaccompanied child immigrants than any other in the country. When this matter was raised before, the Secretary of State said that those are uncomplicated cases and that such children can receive advice elsewhere. That has been interpreted as meaning that social workers are able to give that advice. However, social workers are not registered in that way under existing legislation, so there is a conflict between the proposals and the existing legislation that needs to be resolved, otherwise local authorities will be in not only financial difficulties but legal difficulties.

Photo of Kenneth Clarke

Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

Immigration cases involving unaccompanied children who turn up at airports and ports are very difficult. The vast majority of them, as far as the legal issues are concerned, are dealt with as asylum cases.

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Kenneth Clarke (The Lord Chancellor and Secretary of State for Justice ; Rushcliffe, Conservative)

No, not all of them, but the vast majority. Once such a case becomes an application for asylum, legal aid is available. I am surprised by the figures that have been given for the cases that do not eventually wind up getting legal aid in that way. The problems posed by such cases, when a child gets off an aeroplane unescorted, go far beyond the legal ones. The Home Office is discussing with local authorities how to improve the response to such children. However, I am not satisfied that that category of children can be given access to legal aid for other claims of a legal kind, which I cannot visualise straight away, that might arise. The vast majority of those cases quickly turn into asylum applications and will therefore get legal aid.

I hope that the House is persuaded that the Government have taken a consistent and principled approach to reforming the scope of legal aid. No one looks to touch this area of the justice system lightly, but change is unavoidable if we are to protect access to justice and ensure that the system is affordable. On domestic violence, children, clinical negligence and welfare benefits we have sought to ensure that scarce resources are targeted where they matter most and where alternative funding or representation is unavailable. It is not easy to get that balance right. In light of the principles that I set out

at the start of my speech, I think that we have got the balance about right with the amendments that we have accepted and those that we oppose.

I believe the Government have been particularly responsive on all the issues. We knew perfectly well that when cutting back on this country’s legal aid expenditure, we ran the risk of damaging our system of justice if we got it wrong. We have made the countless moves that I have listed since we first produced the Bill however many months ago, in response to debate in both Houses. I am grateful to the Commons and the Lords for what they have done, and I hope that I have eventually put forward clearly the Government’s thoughts on the Lords amendments and on our amendments in lieu. I commend our position to the House.

7:00 pm
Photo of Jenny Chapman

Jenny Chapman (Shadow Minister (Justice); Darlington, Labour)

What a shambles. The Government have had more than a year to consider the Bill, and at the very last minute, with only two or three hours to consider this group of Lords amendments, they make an attempt at a concession on domestic violence. We welcome that concession, but I am afraid it does not go nearly far enough. I echo my right hon. Friend the shadow Secretary of State in saying that this wide-ranging group of amendments demonstrates both the scale of opposition to the Bill and the Government’s failure throughout to provide sufficient time for deliberations on it. We have just two hours to consider the Government’s defeats on domestic violence, welfare benefits advice, children with civil justice problems and clinical negligence.

The Opposition will not press Lords amendment 2. Furthermore, given the Government’s amendment to Lords amendment 193, bringing it into line with Lords amendment 192, which was the result of a Division, we are satisfied that the Secretary of State now accepts the otherwise settled cross-governmental definition of domestic violence. That is any incident of threatening behaviour, violence or abuse, whether psychological, physical, sexual, financial or emotional, between individuals who are associated with each other. It is a shame that it has taken him so long to agree to something that is otherwise agreed on across Government, by external campaigners for women’s rights and by many Government Members. [Interruption.] I am glad the Lord Chancellor finds this so amusing.

Despite the Government’s acceptance of a common definition of domestic violence—a very welcome concession—there remain legitimate and pressing concerns that the Government seek to use an evidential gateway that in no way implements the spirit of the agreed definition.

Lords amendments 194 and 196 are the result of Government defeats in another place. They would place in statute forms of evidence that a victim can present to get the help that they need to escape their abuser and protect their children. That list of forms of evidence is already used by other Government agencies. For example, the UK Border Agency uses it for the purpose of proving abuse in immigration cases. It is not just Labour, nor the 84% of Cross Benchers who voted in favour of those amendments, who support the use of that list.

Mumsnet, the women’s institute, Rights of Women, End Violence Against Women and more groups all warned that the Government’s originally proposed list of acceptable evidence would prevent many abused women from asserting their right to live free of violence.

The new list that the Lord Chancellor proposes significantly omits certain domestic violence services. In another place, my noble Friend Baroness Scotland put a case that I imagine helped to persuade him that she was right. It is a pity, however, that he seems unable to accept the list of forms of evidence that she proposed. She said:

“We should look at the average case, such as when a woman has run from her home. She manages to go to her GP”—

many such women do not—

“who sees the injuries and notes them and then sends her to hospital because there are fears that she may have cracked a rib or another bone. She is seen by the medical staff and they verify that the injuries that she complains of are genuine. Her neighbours may have come in to rescue her from an assault. They may not have seen the assault taking place but have noted what was happening and taken her away. Social services may have come along and examined the children, spoken to them and heard what they had to say. All of that might have been used by the police who then came along and arrested the man. He may then acknowledge that he has indeed committed the offences that are alleged against him. Even if all those things had happened, under these provisions the woman would not be entitled to legal aid.”—[Hansard, House of Lords, 18 January 2012; Vol. 734, c. 595.]

I can see why the Lord Chancellor was persuaded by that, but it is a shame that he has not been persuaded to accept what Baroness Scotland went on to recommend. That cannot be right.

It is shambolic to present us with the new list at the very last minute. If the Government’s gateway excludes domestic violence cases from legal aid, it is not fit for purpose. Rights of Women has conducted a survey of abuse victims showing that 46% would have been excluded by the Government’s original list. All of them, however, would be covered by the provisions of Lords amendments 194 and 196. There has not been an opportunity to assess how many would be excluded under the Lord Chancellor’s new list.

The Government claim, in defiance of our Lords amendments, that they do not want to be hamstrung by a list of forms of evidence that may need to change over time. I accept that it might emerge that one of them is prone to abuse, but were that the case, the Government have powers under clause 9(2) to vary or omit acceptable forms of evidence in schedule 1. If the Government provided evidence of abuse of the system and could demonstrate the need to change the list, we would of course not oppose that. I say to Government Members who express concern that one or more forms of evidence on the list might be open to abuse that that is the best route to fixing it.

For now, the list that we have suggested—I say once again that the Government already use it to decide whether individuals have the right to settle in our country—should also be used to decide whether our fellow citizens who suffer abuse should have basic advice and representation. To abandon them to mediation or self-representation in the courts system, with no one to help them deal with their abuser, would be simply cruel. Furthermore, it would go against the long sweep of decades of cross-party harmony on dealing with the horrors of domestic abuse.

According to Home Office figures, the joint governmental strategy to deal with domestic abuse, which was led by my noble Friend Baroness Scotland between 2003 and 2010, cut domestic violence by 64% and saved the state £7.5 billion a year. For the practical, moral and economic reasons that I have mentioned, I urge the Government to think again about domestic violence services that support 125,000 women, only 17,000 of them in refuges. Should they not do so, we will seek to press Lords amendment 146 to a vote, but due to the inexplicably compressed time scales, we will not force a Division on Lords amendment 148. We will seek to address both matters in another place should the vote be lost.

I move on to Lords amendments 168 and 169, on welfare benefits advice. I welcome the Government’s decision to accept the essence of the latter, which would allow funding for advice and representation on appeals to the upper tribunal, the Court of Appeal and the Supreme Court on matters relating to welfare benefits.

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Helen Goodman (Shadow Minister (Culture, Media and Sport); Bishop Auckland, Labour)

I was slightly confused by what my hon. Friend said about the Lords amendments on domestic violence. Is she saying that she will press for a vote on Lords amendment 194 or on Lords amendment 196?

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Jenny Chapman (Shadow Minister (Justice); Darlington, Labour)

On Lords amendment 194.

Campaigners have advocated for nearly two years the funding that I described, and we are delighted that the Government have now seen the light. However, they continue to fail to do so when it comes to reviews and first-tier tribunals, which are the only mechanisms by which fact can be challenged. We seem to be a bit fuzzy about points of law and fact, so I point out that higher courts deal only with points of law.

Before the debates in another place on legal aid funding for advice on welfare benefits, the noble Lord Pannick, QC, wrote to all peers making the case for welfare benefits advice. He made a simple and powerful case for those unlawfully denied disability benefits having access to advice. The case is well understood by Government Members, and I can only imagine that that is how they managed to eke out the concession from the Lord Chancellor at the very last minute.

Before the election, the Prime Minister wrote a powerful piece for The Independent on his experience with the benefits system. He said that

“life for parents of disabled children is complicated enough without having to jump through hundreds of government hoops. After the initial shock of diagnosis you’re plunged into a world of bureaucratic pain. Having your child assessed and getting the help you’re entitled to means answering the same questions over and over again, being buried under snow drifts of forms, spending hours on hold in the phone queue…I am determined to make life simpler for parents.”

Later, he posited a solution in a speech, saying he wanted to help disabled people when they have a problem accessing the benefits system. He said:

“For the sake of these families’ sanity we are looking at the evidence and considering…pulling professionals like doctors, paediatric nurses, physiotherapists and benefits specialists together in one team to act as a one-stop-shop for assessment and advice.”

I have no doubt the Prime Minister wrote openly and honestly, so it is baffling that his Justice Secretary is taking specialist advice away from disabled people and, worse still, from children, who have absolutely no ability to navigate the justice system alone.

We can see the problem and there are obvious solutions, but the Justice Secretary has broken the promises that have been made. Here is another example of those broken promises. Asked by The Guardian what the big society was, the Prime Minister immediately pointed to his local citizens advice bureau, but Citizens Advice, the primary agency that delivers welfare benefits advice, is facing massive cuts because of these changes. Alongside law centres and other neighbourhood advice services, citizens advice bureaux are both value for money and valued by the communities they serve, but now their future is very uncertain.

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Jeremy Corbyn (Islington North, Labour)

My hon. Friend makes a strong case. Is she aware that the funding cuts to law centres, on top of increased demand, mean that many people simply cannot get past the door to get an appointment, even with a voluntary adviser, which might only eventually lead to some kind of legal process? We are denying people justice now, even before the reforms take effect.

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Jenny Chapman (Shadow Minister (Justice); Darlington, Labour)

I am grateful to my hon. Friend for his intervention. I am well aware of that point, because those same people turn up at our surgeries week in, week out in desperation, unable to get the support that they previously would have been able to access. Social welfare legal aid is not an adjunct to the system. Right of redress if a mistake is made is a self-correcting element in the system and an inextricable part of it.

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Julie Hilling (Bolton West, Labour)

Is my hon. Friend as shocked as I am to discover that social welfare law advice in Bolton has gone up 38% and welfare benefits advice has gone up 57%? The doors have had to be closed on any new people for a fortnight because there is such a backlog.

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Jenny Chapman (Shadow Minister (Justice); Darlington, Labour)

That says all we need to say about the state of some of our providers of social welfare advice.

Decisions will not be challenged, and individuals will be denied their fundamental economic and social rights, which will eventually lead to a culture of laziness, poor decision making, corner cutting and inefficiency. We are talking about cases in which individuals have been blatantly wrongly assessed. The Daily Mirror investigative team has in the past couple of weeks quantified the scale of failures of state agencies and contractors such as Atos. Through freedom of information requests, the team discovered that 32 people a week die after being certified fit to work. For example, Atos deemed 36-year-old Martina Delaney from Bolton fit for work and her benefits were cut. Her mother, Elizabeth, said:

“She was so worried about losing her flat and she had to sell the family jewellery to pay for the gas and food and never even told us, it would have broken her heart”.

They found Martina dead in her bed on 12 March.

Citizens Advice told of a warehouse worker whose degenerative lung condition forced him to give up work. A CAB spokesman said:

“His weight had dropped to just seven stone, he had trouble breathing and walking…But in the medical test for Employment and Support Allowance he was awarded zero points and was told that he would be fit to return to work within three months. Before three months was up he died.”

It is to prevent those failures and iniquities that welfare benefits advice is so important. Once internal reviews and first-tier tribunals are exhausted, further appeals can only be on points of law and not on the facts of a case. The Government’s acceptance of higher courts and not tribunals is like saying, “Here’s a penthouse, but we’ve locked the staircase and lifts.” Far too many disabled people will not get the help they need. Even the Prime Minister admirably stated the difficulty of the system despite all the advantages of his education and life experience.

Such advice is all the more necessary as we move to universal credit. The Department for Work and Pensions will have to undertake tens of millions of assessments. As the noble Lord Pannick said, mistakes are inevitable, but when such mistakes are made, it is our duty to ensure that they are put right. It is for that reason that we urge the Government to withdraw their motion to disagree to Lords amendment 168.

I note that Liberal Democrat Members have tabled an amendment that would have the same effect as Lords amendments 168 and 169. They have chosen to table it—let me get this right—as a sub-amendment to one of the Government amendments to the objection to two amendments made in another place. I assure our friends from Hansard that I will provide a transcript of that sentence.

Let me clear that should amendment (i) to Government amendment (a) be pressed to a Division, we will join the Liberal Democrats in the Lobby. However, voting against the Government’s motion to disagree to Lords amendment 169 would have the same effect in full. As hon. Members will know, Standing Orders make it difficult to reach amendments to Government amendments, and the Government’s timetabling of the debate makes it doubly difficult. I urge those Liberal Democrat Members to follow through on their good and just amendment by voting to retain Lords amendment 168. Failure to do so might make some conclude that their intention behind tabling their amendment (i) is simply to showboat in an attempt to gain face a fortnight before elections.

Finally, Lords amendment 171 deals with children and legal aid. This is the most open-and-shut case of all. Last year, 41,000 children used legal aid as the primary applicant in a civil justice matter. The Government propose, for the main part, to retain legal aid for children. They have said repeatedly that 96% of current spending will be retained, but let me quote Ministers on this. The noble Lord McNally said:

“As far as possible, our intention is that, where children are involved, legal aid will still be provided.”—[Hansard, House of Lords, 7 July 2011; Vol. 729, c. 343.]

The Under-Secretary of State for Justice, Mr Djanogly, who has responsibility for legal aid, said:

“Legal aid will remain for children in almost all cases”.

The Secretary of State for Justice said:

“We’re not taking legal aid away from women and children.”

Those are fine words and sentiments with which all hon. Members would agree, but the Ministry of Justice has admitted in a letter to campaigners that the 4% of spending it intends to drop covers 13% of those desperately vulnerable young people. Between 5,000 and 6,000 children a year will not get help in future. Asking children to

navigate, without advice or representation, a civil justice system that can be fiendishly difficult even for adults is quite simply wrong.

Those children—the 13% disenfranchised by the Government—are the most vulnerable. They are, for the main part, looked after, leaving care or seriously estranged from their families. They have no adult to help them understand the system or know what is happening. Quite simply, without advice, those children would be stranded, miserable and alone. All parties accept that the state must retain its role as the final guardian of the well-being of all children, so why abandon so many of the most vulnerable for a tenth of what the Ministry of Justice spends on outside consultants every year? Children do not have the capacity to resolve complex legal problems.

This is a Government whose own “Positive for Youth” paper commits them to providing additional support for vulnerable children and young people; a Government whose Minister for children—the Minister of State, Department for Education, Sarah Teather—said that she would interpret all new laws through the UN convention on the rights of the child, which clearly states that advice for children on legal issues is a must; and a Government whose minority partner’s current youth policy has, as its first point, a commitment to improve young people’s access to legal advice. We will seek to divide the House on the Government’s appalling decision to oppose Lords amendment 171.

7:15 pm
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Bill Esterson (Sefton Central, Labour)

My hon. Friend has made an excellent point about the Government’s claimed support for young people. She could add that they have said that they will speed up the court process for adoption, which has been an absolute disgrace for far too long. This attack on vulnerable young people—in particular, children in care—will set back the cause of those people, who have the weakest life chances of pretty much any group in this society.

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Jenny Chapman (Shadow Minister (Justice); Darlington, Labour)

My hon. Friend speaks with considerable personal experience of this issue, and I take what he has to say extremely seriously.

Finally, were there time, and had today not been so ridiculously compressed, we would have also dealt with Lords amendment 170, tabled by Lord Lloyd of Berwick. It is a just and economically intelligent amendment. It is to the Government’s shame that they have not accepted its minor expense, which would help so many people who have suffered greatly through clinical negligence.

Several hon. Members:

rose —

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Lindsay Hoyle (Chairman of Ways and Means; Chorley, Labour)

Order. A lot of people want to get in and I want to get them all in as quickly as possible, so if Members can try to keep their speeches short, that would be great.

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Helen Grant (Maidstone and The Weald, Conservative)

I declare an interest as a legal aid family lawyer who specialises in domestic violence. I shall speak to amendments that deal with the widening of the evidence gateway for victims of domestic violence and the time limits applied to that gateway. However, at the outset I pay tribute to the Government’s wide strategy of combating the scourge

of domestic violence. During the course of this Bill’s progress, they have clearly demonstrated their commitment to the legal needs of victims of domestic violence and their related family law issues. The Government have my support, but I would have liked them to go a little further on the time limits.

Let me turn first to the evidence gateway. Domestic violence is so often a hidden crime. It is committed behind closed doors, where the victim’s primal need to preserve a relationship or family unit can overwhelm their fear of continued abuse. There are often no witnesses, save for the sad exception of children, and it is one person’s word against another’s if the police arrive on the scene. The vast majority of victims are women. They find help, support and guidance in the face of adversity through their GPs, hospitals, social services and DV support organisations. The Government are absolutely right to ensure that the gateway criteria reflect and accommodate the alternative routes that women—and some men—take to address the pain and suffering that they are experiencing. Evidence, in the form of medical reports and letters from health professionals, social services and refuges, is successfully relied on every day in the courts. Judges use it all the time to justify the making of non-molestation orders and occupation orders, under the Family Law Act 1996. If such evidence is acceptable to the courts in establishing violence, it should surely be acceptable to the Executive agency of the Ministry of Justice in making its funding decisions.

Some who suffer abuse have even heavier armoury to prevent the disclosure and reporting of domestic violence. Be it a matter of duty, shame or honour, there is often huge familial and cultural pressure in black and ethnic minority communities to avoid the police, lawyers and other statutory bodies. Women also often feel compelled to use alternative but unacceptable community mechanisms for dispute resolution, which can often expose them to increased risk of harm and injustice. A widening of the gateway will especially help those women and girls, many of whom also have practical problems in reporting violence owing to language barriers, unawareness of services and fear of deportation.

There is also a need to maintain consistency across Departments in our treatment of domestic violence. Since 2004, in dealing with applications for leave to remain on the grounds of domestic violence, the UK Border Agency has used similar criteria to those advocated today by the Government. Although I appreciate that the list of criteria is now used as indicative guidance rather than compulsory evidence, it should be accepted that during the last eight years it has worked effectively, and without opening the fearsome floodgates to the outside world.

Having given reasons to support the widening of the gateway, let me now deal with one of the principal objections that has been raised against it. During earlier Government consultations, evidence was submitted by the Law Society and other bodies which suggested that a domestic violence gateway for family legal aid could lead to false allegations. However, having worked as a legal aid family lawyer for more than 20 years, I can tell the House that the overwhelming majority of my clients would not have deliberately recruited social services into their affairs, inviting all the risks that go with such involvement, nor would they have left the family to place themselves and their children in a hostel or women’s

refuge, or deliberately inflict injury on themselves or their children and then falsely report the injury to a GP or hospital. Such acts require a high degree of wanton and malicious forethought. Yes, dishonesty exists across every section of society, but we need to weigh up the quantum of potential abuse and balance it against the harm that would persist if we fail to provide essential legal services for the most vulnerable people in society.

On the time limit applied to the criteria, I do not believe that the gateway should remain open in perpetuity, but there are strong reasons for extending it beyond 12 months. Such a limit does not recognise the dynamic of domestic violence or the genuine potential for post-separation violence. Research published by Women’s Aid found that 76% of those who have experienced violence also experience post-separation violence. Also, many non-molestation injunction orders are granted for just six months or a year. It is a sad fact that on expiry a significant number of respondents return and bring to bear a threatening presence, albeit one that is perhaps not sufficient to merit the making of a further injunction order. For many women, especially those who have suffered years of abuse before taking any action, 12 months is simply not sufficient to reach a state of physical, emotional and financial readiness to commence divorce or other legal proceedings. Indeed, a short, 12-month limit could encourage women to take action too early or miss out altogether on the help they need.

In the fullness of time, however, things settle down. Acrimony reduces, people move on, people remarry, children grow up, and old wounds start to heal. We therefore have to question the equity of bleeding the scars of old battles simply to obtain legal aid ad infinitum. All this suggests that at some stage a statutory line has to be drawn under the issues of the past. My personal view is that three years, rather than one, would be more appropriate for the majority of cases, but I of course leave that open for debate.

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Catherine McKinnell (Shadow Minister (Education); Newcastle upon Tyne North, Labour)

I want to echo the case made so powerfully by my hon. Friend Mrs Chapman and to talk about the importance of the Lords amendments in mitigating the impact of the Bill on some of the most vulnerable members of our society—namely, children. The passionate criticism of the Bill by Members in the other place revealed the short-term, short-sighted and potentially damaging aspects of this legislation, which will hit the most disadvantaged the most unfairly. I commend the work of the other place and the amendments that were passed as a result.

My concerns about the impact of the Bill on access to justice for children are shared by many of my constituents, my local citizens advice bureau and not-for-profit children’s and women’s organisations. They are also shared by anyone with an ounce of common sense and compassion. If Lords amendment 171 is rejected, the Bill will remove legal aid for children seeking access to justice for a whole range of problems from debt to clinical negligence. They are individuals who are unfortunate enough to find themselves in need of recourse to the justice system. That is not something that people choose, contrary to the impression given by the Lord Chancellor; they

are going through a most difficult time. For a child or young person, that stress will be compounded by their age and vulnerability.

Those who are likely to be affected by the proposal are vulnerable adults, children in care and those who are just leaving care, without support from parents or family, from whom they might be estranged as a result of abuse or other difficulties. A great many children need help. Last year, 41,000 accessed legal aid as a primary applicant, but the Government have confirmed that 13% of such children—between 5,000 and 6,000 of them—would lose their entitlement if the Lords amendment were not retained. It is unthinkable that children in such a vulnerable state should be expected to navigate the legal system on their own without representation.

How does the Government’s proposal sit with the pledge by the children’s Minister, the Minister of State, Department for Education, Sarah Teather, to ensure that everything the Government did would be seen in the light of the United Nations convention on the rights of the child? That was yet another meaningless Liberal promise that has been trampled on by a Tory-led Government. The exceptional cases scheme is the mechanism proposed by the Government for funding legal aid to children, and somehow, those children will be expected to apply to it directly. It is no safety net, it will be costly to administer and, by the Government’s own admission, it will be unable to cover the 6,000 children who have lost their entitlement. It will be bureaucratic and inefficient.

The Government have calculated the cost of accepting the amendment at between £5 million and £6 million, which is a mere 4% of the cost of providing legal aid to under-18s. What thought has been given to the cost, both human and financial, and the lasting implications of the proposals? Children and young people might not be able to get the help that they need at the most critical point, and they could easily be overwhelmed. In the worst cases, they could face homelessness, permanent exclusion from school or spiralling debt leading to crime. The criminal justice and welfare systems and the NHS will bear the far greater cost of picking up the pieces, and local authorities will bear the cost of the removal of legal aid for unaccompanied child asylum seekers. I urge the Government not to overturn the amendment. Targeting the most vulnerable in this way is simply unjust and a false economy.

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Catherine McKinnell (Shadow Minister (Education); Newcastle upon Tyne North, Labour)

I will not, as the hon. Gentleman has not been here for the whole debate.

In regard to Lords amendment 194, the Government have repeated their intention to continue to provide legal aid for victims of domestic abuse involved in private law family cases. However, as children are necessarily involved, I am naturally concerned that the adults caring for them should have unfettered access to legal aid, so that they can protect themselves and their children. The Government’s U-turn on the definition of domestic abuse is welcome, but it does not deal with the crux of the matter, which is that the evidence required to prove domestic abuse on an assessment for legal aid is unduly restrictive.

Victims will pass through the narrow evidential gateway. Broadly speaking, an order will need to have been made within the past 12 months or still be in place, and the abuser will need to have a criminal conviction or be party to ongoing criminal proceedings for abuse. The evidence will have to have been generated within the past 12 months. On that basis, a letter from a refuge, to which a woman has fled from domestic abuse, stating that she is a victim would not suffice, and neither would a letter by a social worker stating the same thing. Victims who have not previously sought help from the police or lawyers, those who are too scared or proud to do so and those enduring low-level but nevertheless unacceptable abuse are among those who might be denied support.

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Sarah Wollaston (Totnes, Conservative)

Does the hon. Lady not accept that we have heard today that the threshold will now be two years, rather than one?

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Catherine McKinnell (Shadow Minister (Education); Newcastle upon Tyne North, Labour)

Yes, I gladly accept that, but that does not address the underlying concern that the terms are unduly restrictive and will not cover all those who require support and assistance.

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Helen Grant (Maidstone and The Weald, Conservative)

Would the hon. Lady not also accept that we have just heard from the Government that a letter from a general practitioner, a social worker or a refuge will be of assistance? Such letters will also form part of the evidence gateway, in addition to undertakings. Those points have already been made.

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Catherine McKinnell (Shadow Minister (Education); Newcastle upon Tyne North, Labour)

My apologies; I do accept what has been said by those on the Government Front Bench today. I am simply making the point that it does not go far enough to allay the concerns of hon. Members on both sides of the House. We shall see, when the amendments are voted on, whether that gives Members on the Government Benches the reassurance that they describe.

Lords amendment 194 would expand the types of acceptable evidence and harmonise the requirements for other agencies, such as the UK Border Agency, by permitting evidence from hospital doctors, GPs, domestic violence support services and other “well-founded documentary evidence”. It provides a comprehensive list that far better reflects the reality of the forms that violence takes. It also mirrors the list of evidence already accepted by the Government in immigration law cases.

I want to quote the respondent to a survey by Rights of Women who said:

“Legal aid enabled me to resolve legally and permanently the issues around violence and emotional abuse which had been plaguing myself and my son for years. Legal aid made it possible for me to stand up to my ex-partner with the full weight of the law behind me.”

The importance of immediate access to legal aid for victims of violence and their children cannot be underestimated. It represents the difference between remaining in an abusive and life-threatening situation and finding safety. I also want to quote a member of the public who posted a message on Facebook at 7 o’clock this evening:

“I used to be a victim of domestic violence, back in the day when police did nothing and the courts gave out short-term injunctions, which was an insult. But what I do know is that domestic violence happens regardless of class. I got out of my violent marriage and was able to get a prompt divorce because I had legal aid. This Government is causing regression. What makes us proud to be British is being eroded away.”

The Government are targeting the most vulnerable and disadvantaged people with this Bill. That is unfair; it is not economically sound and it will create bigger problems for the future. It is short-sighted and damaging, and I urge the Government to accept the Lords amendments.

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Tom Brake (Carshalton and Wallington, Liberal Democrat)

I rise to make a few brief comments, bearing in mind that more Members seek to speak in the debate.

In relation to domestic violence, the improvements that have been announced this evening are very welcome. I commend the hon. Members for Maidstone and The Weald (Mrs Grant) and for South Swindon (Mr Buckland) for their work on domestic violence. Those on the Opposition Front Bench have been a little churlish in their response to the improvements that the Justice Secretary has set out on undertakings and on accepting police cautions and evidence from women’s refuges. Those are significant improvements, and Members on both sides of the House have argued for their inclusion in the Bill. The improvements are welcome, as is the announcement of the extension to two years, although the hon. Member for Maidstone and The Weald would have preferred it to be three.

I want to focus on the history of the amendment that has been tabled today in my name and those of other colleagues. Members will know that this is not the first time that it has appeared. We were accused this evening by the Opposition of showboating, but I remind them that the amendment appeared in a grouping on 2 November last year. If we are showboating, we have been doing so consistently over a period of time. Unfortunately, we did not reach that amendment during our debate on that grouping. That is why we then supported an amendment tabled by Yvonne Fovargue, which was similar to what we were proposing. Our amendment then reappeared in the House of Lords, where it was tabled by Baroness Doocey and voted through with a majority of just under 40. It has therefore been debated on a number of occasions; it is not new.

The Government are clearly going to negate Lords amendment 240 today. I welcome the concession that has been made in relation to the upper tribunal, and the fact that, on points of law, legal aid clearly will be available in the upper tribunal, the supreme court. I also welcome the Justice Secretary’s clarification that it is the Government’s clear intention that, whether the points of law are for the upper or lower tribunals, these cases should be funded by legal aid. I welcome, too, the Justice Secretary’s saying that there will be discussions with the Department for Work and Pensions and possibly other Departments to try to identify ways of achieving that. There is a technical issue about how to identify easily the cases that involve a point of law. I hope that, when that process of identification takes place, the Government will err on the side of being generous in their interpretation of what counts as a point of law. There will be cases where it is hard to unpick whether a particular case is a complex welfare benefit case that either does or does not involve a point of law.

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Sheila Gilmore (Edinburgh East, Labour)

Does the right hon. Gentleman not think it a problem that even if a modicum of legal aid were available for tribunals dealing with points of law, one of the practical difficulties

would be people’s ability to source the legal advice because the services are not there? On the basis of my experience as a solicitor, I suspect that most solicitors who do not specialise in this area do not have the expertise to give that advice. Closing the door on so much legal aid for social welfare law means that, even if people could get it, there would be nowhere for them to get it from.

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Tom Brake (Carshalton and Wallington, Liberal Democrat)

I thank the hon. Lady for her intervention. She makes a strong point that legal aid lawyers need to be available to provide legal aid advice. I hope that the Government will ensure that that is the case.

I would welcome some clarification about the timetable. My hon. Friend Tim Farron, who is no longer in his place, intervened to ask for clarity about the timetable for reaching a conclusion on identifying lower tribunal cases that involve points of law and on how the certification process would work. I look forward to seeing how that will be resolved. I accept that the Justice Secretary’s proposal will not address all the complex welfare benefit cases to which Citizens Advice has referred. It has confirmed to me that it is working on some cases of general advice that are funded through legal aid. It acknowledges that there are already cases where there is no requirement for the work to be legally aided, or legal aid funded, in order for it to be completed.

Members may have looked at some of the case studies in the briefing from Citizens Advice, “Out of scope, out of mind”. For example, there is the Kelly case where her care needs were set out in detail in a three-page letter to the DWP appeals officer, but it was not immediately clear to me that there was a requirement for legal aid to write that particular letter, as it was suggested there was in the briefing. It acknowledges that there are cases where the issues are more about general advice, so the additional Government funding—the extra £20 million, or the £16.8 million this year, and the £20 million next year and thereafter—is welcome.

Of course I acknowledge that local authorities are cutting funding to their citizens advice bureaux, but I would ask all Members what pressure they are putting on their local authorities, which can make choices. It is clear that some have chosen to continue funding for their CABs, while others have chosen not to. Local authorities have some options on where to make the cuts. If some choose to support their CABs, which I welcome, others are choosing not to, which I regret.

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Simon Hughes (Deputy Leader, Liberal Democrats; Bermondsey and Old Southwark, Liberal Democrat)

I hope I am not pre-empting my right hon. Friend’s argument, but the other thing the Justice Secretary said that was welcome in respect of this part of the Bill was the commitment he gave that judicial review cases would be covered by legal aid. They are exactly the cases that people were most worried that there would be no support for. Here, legal aid is clearly necessary.

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Tom Brake (Carshalton and Wallington, Liberal Democrat)

I thank my right hon. Friend for that intervention and for putting on the record the fact that the Justice Secretary has made that point clear, which is welcome.

Finally, with respect to our Liberal Democrat amendment, I am satisfied with the undertakings that

the Justice Secretary has given to look at points of law relating to lower tribunals, so it is not my intention to press it to the vote.

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Elfyn Llwyd (PC Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs), Shadow PC Spokesperson (Wales); Dwyfor Meirionnydd, Plaid Cymru)

That last comment winded me, because I fully expected the Liberals to vote on their amendment, particularly given the right hon. Gentleman’s performance in Committee—where he said absolutely nothing during the entire Committee stage.

I must say to the Lord Chancellor that I accept and am grateful for how he has moved on the definition of domestic violence, which is most welcome. On the gateway, things have greatly improved, too. Mrs Grant, who is greatly experienced in these matters, has made her speech, so I can curtail what I had intended to say. Suffice it to say that I think three years might be better than the two-year limit, but two years is still an improvement. In any event, this represents a great improvement on where we were just a few weeks ago—certainly a vast improvement on where we were in Committee. I hope that this will be a far fairer regime on domestic violence and on assisting the most needy in society.

As to the welfare benefit cases, the Government have now accepted the relevant amendment. Again, it is an improvement, but there is a lack of logic in saying that a second tier would be covered in respect of points of law for the Court of Appeal and the Supreme Court. Let us just face the fact that the number going to those two courts will be a handful in any year, if even that. The truth is that it would be far better to extend downward to ensure that where a genuine point of law is at stake —I am not sure how exactly we are going to measure it—it is only right that something should be done at the very lowest level. Again, the cases will be few and far between.

Since becoming a Member of Parliament, I have seen 200 or 300 benefit cases of various kinds before the tribunal—gratis, I have to say. It is necessary to put your ducks in a row and prove that the medical officer has been less than honest in assessing the needs of the individual. We heard one glaring example from Catherine McKinnell earlier and I could provide many more. As I have said in this place before, the system is wrong because the people who do the tests are most keen on getting them through in 25 minutes and picking up their cheque—and that is that. I have seen some abominable cases. I remember one case in which a young lad was invalided out of the Air Force, having lost a leg and badly damaged a shoulder. He was alleged to be able to walk 100 metres in the given short space of time. That was absolute nonsense. He went to appeal, and in 10 minutes the tribunal said yes.

There are some cases where points of law are relevant. They are few and far between. The Justice Secretary said this evening that he will look to provide some cover there, and it is particularly important to include any points of law that arise lower down, as it were.

I shall curtail my comments this evening, as others wish to speak, but I think that amendment 171, which deals with young people, remains a matter of grave concern to many Opposition Members. The scope of the amendment is fairly wide. If passed, it would retain

the provision of legal aid for children who are party to a number of specified legal proceedings. According to the organisation JustRights, it would retain legal aid in civil cases for children who need that aid in their own right in order to deal with their problems independently from the needs or support of their parents or carers, if they exist.

Most of the children affected are likely to be teenagers who have little or no contact with their parents. If they are not eligible for legal aid, they will be left to steer through an adult-orientated legal system involving tribunals and court hearings with no specialist support or advice. Most of the children whom the amendment seeks to protect would not be represented by a litigation friend, as most would be bringing cases as a direct result of having no parental support in the first place.

I remind the House that the present Government, like their predecessors, are bound by the United Nations convention on the rights of the child and the Council of Europe guidelines to secure a justice system that is considerate towards children. Last year, 41,000 children gained access to legal aid as the primary applicants. If the Bill is passed unchecked, 6,000 of them—14%—will lose that entitlement. Not only will it be distressing for children to attempt to navigate the legal and quasi-legal systems without support, but it will take longer for cases to be resolved owing to the increase in the number of inexperienced litigants in person.

The Local Government Association has estimated that removing legal aid for unaccompanied child asylum seekers in immigration cases alone will cost local authorities an extra £10 million a year. Given the additional costs that will be incurred by the national health service and the welfare system, we can only surmise that cutting legal aid for the most vulnerable group will do no more than shift costs from one department to another. It is only right for children to be protected by our justice system, and leaving that vulnerable group to travel alone into a quagmire of legal niceties will not be palatable to any civilised society.

The Justice Secretary has moved a long way on several points of contention, and I ask him, even at this eleventh hour, to look again at this one.

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Sarah Wollaston (Totnes, Conservative)

I welcome the significant improvements that have been made in respect of domestic violence, so I shall concentrate on Lords amendment 168.

The Secretary of State says that because welfare appeals often involve arguments about points of fact rather than points of law, welfare appellants should not qualify for legal aid. However, justice is about facts. Many of the people whom we meet in our surgeries have fallen through the gaps in Atos assessments. They may not have ticked the right boxes, but within five minutes it is abundantly clear that the wrong decision has been made. In my experience, the expert and professional advice marshalled by the citizens advice bureaux makes all the difference to whether our constituents receive justice. Cost-shifting might be reasonable, but only if the £20 million per year went far enough to fill the gap that has been created.

Historically, South Hams CAB in my area has received 60% of its funding through legal aid. It was not a question of local authority cuts; the authority had not funded the CAB in the first place. Although some of

that £20 million has gone to my local CAB and will make a significant difference, the CAB has nevertheless had to cut staff, and has lost 45 hours per week of high-quality professional time. Of course we all pay tribute to the volunteers, but it is mostly the detailed and specific marshalling of facts by specialists that determines whether the right decision is made at a tribunal.

I believe that the employment of more decision-makers would make a big difference, but I also believe that the work done by CABs saves us a great deal of money in the long term. I ask the Secretary of State to think again about how much more we can do to fill the gap so that our CABs can maintain the incredibly high-quality professional service that they provide for all our constituents.

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Helen Goodman (Shadow Minister (Culture, Media and Sport); Bishop Auckland, Labour)

Once upon a time the Tory party was the party of liberty, and was particularly energetic in defending the liberties of the individual against the power of the state, but such activity has been completely abandoned this evening, particularly in the Secretary of State’s approach to welfare benefits. It is wholly objectionable for the welfare system to operate without a proper right of redress and recourse unless there is a disagreement about a point of law. That opens the gate to maladministration and low standards, and to a continual lack of proper administration of people’s benefit entitlements.

Not for the first time, the Secretary of State has revealed a perspective that is complacent, out of touch and gender-related. The absence of a woman in the justice team has been highlighted again today. As I have said to the Secretary of State before, I wish that he would telephone the Prime Minister and ask him to replace Mr Djanogly with Mrs Grant, because she would make an excellent Under-Secretary of State. She would do a great job, and above all she would improve the policy. That is what interests us.

I intend to focus on two issues. The first is domestic violence. The hon. Member for Maidstone and The Weald drew attention to the problem of the time limits in the Government’s definition. Taking such a strongly legalistic approach to the evidence base and refusing to accept Lords amendment 194 removes the context of the pattern of domestic abuse. We know that by the time women go to the police they have experienced an average of 35 instances of domestic violence, which is why we want the Bill to provide for a different evidence gateway.

The second issue involves children. I find it incredible that although the Secretary of State expresses concern about child abduction and people seeing their children taken into care and says that in those instances legal aid should be available, when it comes to the needs of the children themselves he is prepared to abandon the 6,000 who will lose their entitlement if the amendment is not retained. It is clear that vulnerable children who are leaving care or estranged from their families may experience significant legal problems involving such complex issues as debt, housing, education, law and benefits. It is impractical to expect young people who already face significant difficulties to bear the additional burden of dealing with the justice system.

It is not clear that what the Government are doing is in accordance with the UN convention on the rights of the child. In another place, Lady Walmsley warned that if children’s access to legal aid is not protected, the Government

“will be taken to the international court. It is as simple as that.” —[Hansard, House of Lords, 16 January 2012; Vol. 734, c. 443.]

I ask Ministers whether they have taken into account the extra costs that will be associated with further appeals to the international courts. We need a proper system that is sensitive to the most needy children in our country.

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Robert Buckland (South Swindon, Conservative)

I rise to deal with several points raised during consideration of this group of amendments. First, I welcome the Government’s sensible concessions in respect of domestic violence. The Secretary of State and his colleagues will know that when these matters were last before this House I expressed concerns about the role of undertakings in proceedings. I was concerned that undertakings would not be part of any process of assessment for legal aid. I am glad that the Government have accepted the concern expressed by me and others on that, and have accepted a range of other sources of evidence, including, most notably, that from women’s refuges and medical reports. I accept the Government’s argument that it would be better to incorporate that list of criteria in regulations, rather than in primary legislation. Experience shows that regulations can be more quickly amended if obvious problems and abuses occur in the system. It would be a tragedy if, through delays in legislative procedure, people in genuine need went without legal aid. For that reason, I am able to support the Government’s approach in the context of domestic violence.

I am also glad to note the Government’s concession on widening the term from one year to two years and that they have made the important point that where someone has an unspent criminal conviction for an offence involving domestic violence, that will automatically trigger the provision of legal aid. For those reasons, I am content with the Government’s position.

I share the concerns expressed by my hon. Friend Dr Wollaston about the position on social welfare. I listened carefully, as I said in an intervention, to what the Secretary of State said about the issue of fact versus law. In my experience, which is in a slightly different context, as a criminal practitioner, I have found that the two very often come together. A person does not come through the door of the citizens advice bureau, the law centre or the local practitioner saying, “I am a problem of fact” or, “I am a problem of law.” They come as individuals with a particular issue that needs untangling by somebody with expertise. That somebody will, I am afraid to say, often be a lawyer. That is a fact and we should not shy away from it. Often a lawyer can quickly, in the provision of advice—I am not talking about representation in the tribunal at this stage—sort out the problem effectively.

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Sheila Gilmore (Edinburgh East, Labour)

I would like the hon. Gentleman to respond to a question I put previously: where are the lawyers who will be able to give this advice going to be?

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Robert Buckland (South Swindon, Conservative)

The hon. Lady is right, in that we already have huge deserts in our legal aid provision. The previous Government ran down the legal aid bill substantially. I am sorry to say that a lot of the arguments about the provision of legal aid that we have heard in this place have been rather synthetic, particularly those put by hon. Members on the Opposition Front Bench. Taking the moral high ground is a particularly dangerous position for the Opposition, given the reduction of legal aid provision over the past 10 to 15 years or more.

I return to the point about the provision of legal aid for social welfare. I remain concerned that, far too often, poor decision making on the part of the Department for Work and Pensions is leading to a rise in the number of appeals. We know that that number is rising exponentially and that it is projected to increase considerably over the next few years. I make no apology for the Government’s wise reforms on welfare benefits, but the fact is that wrong decisions will be made and they will need to be challenged and properly dealt with. That is why I am concerned that, despite the Government’s proper concessions on points of law, we are still not in a place where we need to be. Although we have welcome Cabinet Office funding, which is now year on year—another of my pleas has been listened to—right up to the end of the Parliament, we need to understand whether that will be enough to fill what I see as a gap in provision. I am not making a plea on behalf of particular organisations, although I strongly support the Law Centres Federation and my local Wiltshire law centre; this is a plea on behalf of the people who will rightly have points to raise, which will be mixed points of law and fact.

I know that other hon. Members wish to speak in the debate before the knife falls, but I shall briefly discuss clinical negligence. I have long taken the view that matters of clinical negligence should remain within the scope of legal aid. I accept that there are constraints on Government finances, but this is one of those areas where assistance still needs to be provided for challenges to decisions and errors made by the state or its representatives—I strongly believe that that needs to be an underlying philosophy in rebalancing how we spend our legal aid budget. Clinical negligence falls clearly into that bracket. Neither of the proposed amendments in this area does the job as effectively as I would like, but I am sad to say that nor does the Government’s current amendment. I can see problems in arguments about whether the child will have reached eight weeks after birth and what the date of expected birth would be; there will be arguments about how children and babies will fit into the criteria. If we are saying that they are in the exceptional cases category in any case, the Government’s amendment does not add up to very much. I say that with respect to my colleagues. So there are still questions to be answered on two particular areas about which I have concerns. With those observations, I will allow others to enter the debate.

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Yvonne Fovargue (Opposition Whip (Commons); Makerfield, Labour)

I wish to support Mr Buckland and remind the House that there is a high level of decision-making error. In a recent Westminster Hall debate, we were told that the delay in tribunals is more than one year because of the number of people who—let us remember this—have been unlawfully denied benefit. They have been unlawfully denied their rights. When people go to a tribunal and are represented, they are 78% more likely to win. This is

not just about the representation; it is about the preparation of written statements, for which they can receive legal help. They do not receive any legal help for representation, but legal help is provided for a written statement, which will help them go themselves to the tribunal. May I remind the Secretary of State that these written statements and the representation, in the main, are not provided by lawyers or generalist advisers, and they are certainly not provided by MPs? I find it really insulting to the dedicated and knowledgeable band of specialists with whom I have worked over the years for him to say, “Anyone can do this. Us MPs will do it for them because we can do it better.” That is simply not the case.

I also wish to discuss the fact that many of the cases do not involve legal help. I can assure Government Members that, having been audited many times by the Legal Services Commission, I know that it does not pay its money out willy-nilly—even the £164 that is obtained for a legal aid case. If it felt that something did not fall within the scope of legal help, someone would not get the money for that case—indeed, it would possibly deduct from even more cases. It is really important to get the facts and the right sort of evidence for a tribunal, which is where specialists are important. Unfortunately, although I welcome the second tier being brought back into scope, it cannot look again at any evidence; it can look only at the point of law. So the fact that someone has not presented the right evidence and that the right facts have not been looked at cannot be considered any further.

Early advice saves money. Early advice is so important in all aspects of law in order to keep people out of the courts system, as the Secretary of State said. This measure is like telling somebody who has a chest infection, “When you get to the stage of intensive care, we will deal with you,” when a cheap course of antibiotics could help them in the first place.

The cost of reviews and appeals is 66% of the legal aid budget, or £16.5 million. That amount of money would bring these cases back into scope and it would save the country money that would otherwise go on complicated cases and on people falling on to the state in the long run. Every such case on welfare benefits saves the state £8.80 in other costs; it saves time and it saves money. To take these cases out of scope and simply leave a second-tier tribunal in scope is a false economy. It will not help the people who come to our surgeries and it will not help the people who are looking for advice from a citizens advice bureau, because, as has been said many times, the required number of specialists may not be in place. The cases left in scope will not be viable for many of the advice agencies.

I believe that keeping amendment 168 and providing help in lower-tier tribunals will in the end save money and, more importantly, will save misery for a lot of people who have been unlawfully denied benefits by the state.

Photo of Anna Soubry

Anna Soubry (Broxtowe, Conservative)

I agree with much of what has been said about the Government’s change of heart on the definition of domestic violence. I pay tribute to my hon. Friends the Members for South Swindon (Mr Buckland) and for Maidstone and The Weald (Mrs Grant), and I congratulate the Secretary of State on changing the definition to include the ACPO definition, as was urged upon him by Opposition Members, one of whom is present now and who put her argument in Committee.

I also congratulate the Government on changing the evidence gateway for those who have been affected by domestic violence. We must remember that there was never a proposal to change the legal aid provisions for people who were in need of protection. The proposed changes were about other matters that might flow from such initial proceedings, and the disagreement was not about the principle of getting legal aid, but about the sort of evidence required in order to get it.

I do not often disagree with my hon. Friend the Member for South Swindon, but I think we might disagree about social welfare legal aid. I agree with the Secretary of State: I do not see why a lawyer should always be required to sort out disputes about welfare benefit. I do not disagree with the argument that people might need somebody to represent them, however. As a former criminal barrister who defended far more than I prosecuted, I am familiar with the sort of people who will often end up needing somebody to represent them because, for whatever reason, they do not have the ability to advance their case themselves. There is no argument about that. I do not believe that a lawyer has to do that, however.

I pray in aid the situation in my constituency of Broxtowe. We have a citizens advice bureau but no law centre. My CAB has never received legal aid for any of the work it does. It is an outstanding organisation. It has faced substantial cuts in funding from Nottinghamshire county council, but it has gone out and got extra funds, and it is doing a remarkable job. In my constituency work, there has not been any benefit case that my team has not been able to sort out. I have yet to have such a case where I have said, “I think you need to go and see a specialist lawyer.” Many people do need good representation, however, and my CAB provides it.

I urge the Government to beware of the litigant in person. It is often said that only a fool has himself for a lawyer. Friends and former colleagues at the Bar have told me that there has been a rise in the number of people representing themselves in the civil courts, certainly in Nottingham and on the eastern circuit. The Government must look very carefully at that development. They must not take the simple view that when people represent themselves we will save money. Invariably, such people are a nightmare. [Interruption.] I do not say that in any way disrespectfully to most such people—although some litigants in person genuinely are a nightmare. Most of them need advice and support but feel that they cannot afford legal representation, and the consequence often is that the whole system comes to a grinding halt. Judges find that they have to intervene far more often and cases take longer, and costs therefore rise.

I welcome these proposals, and I will support the Government on them.

Several hon. Members:

rose —

Debate interrupted (Programme Order, this day) .

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83F), That this House disagrees with Lords amendment 2.

Question agreed to.

Lords amendment 2 accordingly disagreed to.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).

Lords amendment 192 disagreed to.

Government amendment (a) to Lords amendment 193, Government amendment (b) to Lords amendment 219, and Government amendment (c) to Lords amendment 220 made in lieu of Lords amendment 192.