Motion A

Moved by Lord McNally

That this House do not insist on its Amendment 1 to which the Commons have disagreed for their Reason 1A.

1A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

My Lords, today the House has the opportunity to consider the Commons reasons in response to the amendments passed by this House during its consideration of this Bill. We have engaged in complex, informed and sometimes passionate debate on a wide range of issues that are of fundamental importance. In so doing, this House has exercised its rights and responsibility as a revising and advisory Chamber. I would hope that, in turn, the Government and the House of Commons have responded attentively and constructively to the opinions of this House. In addition, my ministerial colleagues and I have had numerous meetings with individual Peers and interest groups. We have listened, and we have amended.

Before I deal with the details of Motion A, I would like to remind the House of some of the steps that we have taken to respond to its concerns and to make this a better Bill. From the start, our guiding principles have been to decide what kinds of case need public funding and what alternative routes are suitable for others. It is not all about cost savings, although they are clearly a vital factor; it is also about what kind of justice system we want for the future.

Successive Governments have concluded that the provision of legal aid in the current structure is too broadly drawn, and it encourages court-based litigation and the engagement of professional lawyers as a first, rather than a last, resort. With that in mind, the test that the Government have applied to amendments in both Houses is whether they strengthen or weaken the principles behind the Bill-what I have described many times as its central architecture. We have accepted amendments where they truly improve the Bill. The House has done much valuable work in correcting omissions and ensuring that the most serious cases continue to receive public funding, and I am grateful for the commitment that this House has put into the Bill.

As I have said, the Government have listened and have moved in important areas. We have accepted the arguments put forward by, among others, the noble and learned Baroness, Lady Scotland, and adopted the definition of domestic violence used by ACPO. We have widened the forms of evidence of domestic violence that will be acceptable to secure legal aid funding in private law cases, and doubled the time limit within which such evidence may be presented. We have removed the power to means-test suspects in police custody, and retained legal aid funding for cases involving human trafficking and domestic child abduction.

We have agreed that legal advice and assistance should be made available to welfare benefit appellants whose cases are heard by the Upper Tribunal, the Court of Appeal or the Supreme Court on points of law. We have committed to doing further work to see how we might provide funding for those appearing before the First-tier Tribunal whose case also turns on a point of law, and have retained legal aid for babies who are victims of clinical negligence. We have introduced further measures to put beyond doubt the extent of independence from Ministers enjoyed by the director of legal aid casework.

Many concerns have been listened to and many amendments made, but we have not been able to satisfy every demand. We have now reached the stage where the Government ask both Houses to disagree with amendments that, in our opinion, would undermine the rationale and principles underlying the Bill. The Government cannot accept amendments that use scarce resources on lower priority needs where other funding is available, where conflicts could be resolved by other means or where people can reasonably make provisions themselves. The Government have demonstrated their commitment to the not-for-profit sector, which does such invaluable work, by providing £20 million a year for the next two years, in addition to the £16.8 million we have allocated for this year. However, in a time of austerity, we must make responsible choices about spending public money. We must be rigorous in our decisions about allocating resources. We cannot rely on unrealistic thinking about alternative methods for achieving savings.

We have rehearsed the arguments at great length and in great depth. We are about to reflect on the House of Commons' opinion of your Lordships' amendments, and I will be asking the House to agree with the reasons of the House of Commons. I hope that this House will give good weight to that opinion. As I have said, we have listened and responded to the opinions of this House, which now has a responsibility to listen to the clear and settled view of the House of Commons.

If the noble Lord will allow me, he is saying that great attention has been given to the various issues that have been raised, for example by the noble Lord, Lord Alton. Is it not the case, however, that on some of these issues there was initially no debate in the Commons at all because it was programmed, and that when the matter returned from this House to the other place the Lords amendments were also programmed-that is, guillotined-and the debate was not brought to a conclusion in the usual way?

My Lords, the debates came to a conclusion in the usual way. I must say that for a parliamentarian of the noble Lord's experience, who must have carried through quite a few Bills himself on timetables and the rest-

When I was in the other place, we had a very sensible system. If the matter was being filibustered or was urgent, we had a half-day debate followed by a vote on whether there should be a guillotine. In total contrast, when I was carrying through legislation we certainly did not have the system of programming from which we are now suffering.

I will leave it to the Opposition to explain fully the introductions that they made to timetabling,

Will my noble friend give way?

No. Well, I will take one more from him. Carry on.

I am most grateful for that flattering giving way. I point out to my noble friend that it was indeed a Labour Government who brought in automatic timetabling, but before the coalition Government were elected Sir George Young and others gave an assurance that any Conservative Government-or presumably any Government led by Conservatives-would not have timetabling. We still have it.

This is an interesting side issue. Anybody who has read the debate in the other place will see that the amendments passed in this House were thoroughly discussed.

My Lords-

The House is not doing itself much service by this, but do go on.

My Lords, on the issue of parliamentary procedure, is the noble Lord really happy that the first four amendments from this place that the Commons considered had only 26 minutes allocated to them? The House of Commons was allowed fewer than five hours to debate the 11 issues on which this House defeated the Government and offered its very earnestly considered advice.

The Motion before the House is that we should deal with amendments that have come back from the House of Commons. If noble Lords wish to have a debate about process and procedure in the House of Commons they can table questions and debate the issues. This is not the time for that; this is a time to deal with the amendments that we have before us.

My Lords, before leaving that point, it was the Minister who raised the question of procedure and who said that these matters had been thoroughly dealt with in another place. The fact remains that the issue of mesothelioma, which was quite properly raised by the Minister's noble friend Lord Higgins, was not debated on Second Reading, in Committee or on Report at all in another place. Had it not been for the amendment that your Lordships passed, it would not have been debated at all in another place. To give it only one hour at that stage and for it again to be timetabled is indicative of the need to reform not this place but, in light of what we heard earlier, the other place.

The four interventions, interestingly, have all come from ex-Members of the other place.

Motion A and Amendment 1 in the name of the noble Lord, Lord Pannick, described by him on Report as a purpose clause, reflect that which features in the Access to Justice Act 1999. Amendment 1 would place a duty on the Lord Chancellor to secure within the resources made available and in accordance with Part 1 of the Bill that individuals have access to legal services that effectively meet their needs.

Despite what was said in the House of Commons by the shadow Justice Secretary, the basis for the Government's opposition to this amendment has been clearly explained in this House. While I am grateful to the noble Lord for this new amendment, I am afraid that it has not addressed the issues with the original Amendment 1, and the Government oppose the new amendment on the same substantive grounds that we opposed the original construction. In addition to those issues which I will turn to in a moment, Amendment 1B would remove the duty in Clause 1(1) for the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of the Bill.

On Report I spoke at length about the technical issues with incorporating provisions of the Access to Justice Bill, where only excluded services are specified, to this Bill, where included services are specified. The Bill before us today, if enacted, will represent Parliament's clear intention as to which services are to be capable of being made available to people by way of publicly funded legal aid services, and therefore to meet their needs in that regard. Any benefit of such a provision akin to that in Section 4(1) of the Access to Justice Act is simply not present in the context of this Bill. Further, both amendments conflate access to justice as a constitutional principle with the provision of legal aid. Access to justice means access to the courts, and does not mean access to a publicly funded lawyer whenever one is sought.

A further duty to provide unspecified legal services must also, in part, serve to muddy the waters and create uncertainty in respect of the services which might be funded under the Bill. It was said by the noble Lord when moving his original amendment that, as a result of the qualifications in it, the amendment,

"does not impose an independent duty which trumps the specific contents of Part 1", and that it,

"does not require any further expenditure by the Government".-[Hansard, 5/3/12; col. 1559.]

I am afraid that we cannot agree with this analysis. By virtue of introducing a new duty on the Lord Chancellor, a potential cause of action must be created where such a duty is said to have not been met. Therefore by definition, the Lord Chancellor must be at risk of being compelled to provide additional, and as yet unidentified services, to meet that duty, or the duty would be a redundant one. This risk is heightened by the fact that both amendments refer to legal services, which are far broader than the legally aided services that the Bill is intended to provide. I acknowledge that this is the first time for the House to hear that observation. Such a scenario would entirely frustrate the Government's intention of bringing certainty and clarity to the range of services that can be funded under legal aid. The amendment also has the potential to create a great deal of unhelpful and unnecessary litigation as the boundaries of that duty are tested in the administrative court.

The Bill's purpose is clear, as are the Lord Chancellor's duties under it. Therefore, I ask that this House does not insist on its Amendment 1. The Commons has decided against it and in my opinion the amendment in lieu from the noble Lord, Lord Pannick, will elicit the same response. Therefore, I urge the noble Lord to withdraw his Motion.

Motion A1 (as an amendment to Motion A)

Moved by Lord Pannick

At end insert "but do propose Amendment 1B as an amendment in lieu"

1B Page 1, line 5, leave out subsection (1) and insert-

"(1) The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part."

My Lords, as your Lordships have heard, the amendment that noble Lords approved on Report by a majority of 45 votes would state the purpose of legal aid: to promote access to legal services within the financial resources that are made available by the Lord Chancellor and subject to the other provisions in Part 1 of the Bill. The amendment had its origins in a recommendation from your Lordships' Constitution Committee, of which I am a member, and was tabled by noble Lords from all sides of the House-the noble and learned Lord, Lord Woolf, the noble Lord, Lord Hart of Chilton, who is also a member of the Constitution Committee, the noble Lord, Lord Faulks, from the government Benches and, of course, me.

The amendment echoes the wording of Section 4 of the Access to Justice Act 1999, which is the current statutory provision. It is similar to the statutory provisions that have been found in earlier legislation from 1949 onwards. The other place disagreed with this amendment after a debate that was restricted to 27 minutes-a point made by the noble Lord, Lord Higgins, a few moments ago. Those 27 minutes to which the other place was restricted concerned not just this amendment but two others approved in this House after Divisions and to which we will come. They concern the very important subjects of the independence of the director of legal aid and the mandatory telephone gateway, which we will discuss later this afternoon. All those subjects had to be dealt with in 27 minutes-hardly the thorough consideration that the Minister suggested in his opening remarks.

The Minister in the other place, Mr Jonathan Djanogly, and the Minister today have made four main points. The first, which was emphasised in the other place but has not been mentioned today, is that financial privilege was applied to the amendment. Your Lordships will know that financial privilege in the other place does not prevent your Lordships asking the other place to think again about an amendment. Financial privilege simply requires that the amendment be varied in this House from the original amendment. That is why the amendment now before this House is not exactly the same as that which was approved on Report.

I do not want to make this a debate about financial privilege but I hope I may be excused for saying that I know that many noble Lords were as surprised as I was that financial privilege was applied to Amendment 1. The original amendment made it very clear that access to legal services would come within the resources made available by the Lord Chancellor and in accordance with the rest of Part 1, and therefore that amendment had no financial implications whatever.

Your Lordships may also be interested to note that when I made these points to the authorities in the other place and I asked for a brief explanation of the reason for financial privilege being attached to this amendment, because neither I nor the others responsible for tabling this amendment could understand the point, I was told that no reasons are given for the decision on financial privilege. Again, I doubt that I am the only noble Lord who finds it very regrettable that this House should be told that financial privilege controversially applies to an amendment but noble Lords are not told why that is so.

However, that is a side-show. In any event, the amendment now before your Lordships responds to financial privilege, and it does so by making it clear beyond any possible doubt that the question of what financial resources to make available is a matter for the discretion of the Lord Chancellor and the Lord Chancellor alone. That is what the amendment says beyond any question. It also makes it clear that its terms and effect are subject to the provisions of this part-in other words, subject to the restrictions in the Bill on what topics are within the scope of legal aid.

Can the noble Lord explain what this amendment therefore adds to the provisions in the Bill? That is what puzzles me.

I was coming to that. If the noble Lord will have a little patience, that was the second point made in the other place. My first point, which I just want to complete, is that, with great respect, I do not accept that this amendment has any financial implications whatever.

The second point made by the Minister in the other place was that made just now by the noble Lord, Lord Thomas of Gresford. What is the point of this amendment? The view taken by noble Lords on Report was that now that legal aid is to be confined by this Bill, it is absolutely vital that we retain in the legislation a statement of principle that the purpose of legal aid is to promote access to justice within the available financial resources. That is important for this reason. The Government are proposing to limit legal aid by reason of current financial constraints and Parliament is accepting that. However, we all hope and expect that the economy will improve and, when it does, Clause 9(2) gives the Lord Chancellor a power to modify the substantive provisions of Part 1 to bring matters back within scope. When the economy improves, the case for relaxing the temporary limitations on legal aid should be considered by reference to principle, and the principle is that stated-I hope uncontroversially-in this amendment, which is to Clause 1 of the Bill. It is vital that this principle is not forgotten by reason of the temporary financial constraints under which we are all operating, and I can think of no better way of preserving the principle than setting it out at the beginning of the Bill. I happily give way to the noble Lord.

But is not the effect of putting this at the beginning of the Bill precisely what the Minister said-that is, it leaves it open to lawyers to bring applications for judicial review and to ask judges to determine whether the financial situation has so improved that the provisions for legal aid should be extended? Is this not just making more work for lawyers?

The noble Lord, Lord Thomas of Gresford, again jumps the gun. This is the third point that was made in the other place, which I was coming to and will now address-

I hope I am not jumping the gun, but I do not understand from what the noble Lord has said so far why the principle of maintaining the rule of law, a duty which is imposed on the Lord Chancellor, and a duty to secure access to justice under the Human Rights Act do not themselves adequately state the general principles within which this Bill needs to be looked at.

The answer to the noble Lord, Lord Lester of Herne Hill, is that we are dealing with a Bill that specifically relates to legal aid. It is surely appropriate to include in a Bill relating to legal aid the purpose of legal aid-and to say so in uncontroversial terms. Nothing is more likely to lead to legal uncertainty-the concern that the noble Lord, Lord Thomas of Gresford, has-than that these matters should be left somehow to be implied, in the context of legal aid, by reference to the Human Rights Act. That would seem to me most unsatisfactory.

I turn to the third point: uncertainty. It was a point that the Minister emphasised this afternoon-uncertainty and, as he put it, the spectre of litigation. I find it difficult to understand this concern, given that the amendment makes it clear beyond doubt, in the plainest of language, that it is entirely a matter for the Lord Chancellor how much money to provide for legal aid purposes. The amendment makes it clear beyond doubt that this provision is subject to the detailed provisions in the Bill which specify what subjects are within scope.

In any event, this concern about litigation is a particularly unpersuasive argument in the present context. As I mentioned, the substance of this amendment has been part of legal aid legislation for many years. If lawyers were going to make mischief by reference to this type of wording, noble Lords will recognise that they would have done so by now.

Finally, the fourth point that has been mentioned by the Minister this afternoon is that the other place is, of course, the elected Chamber and that we should defer to its judgment. For my part, I recognise that there is, of course, force in this argument. Noble Lords will wish to reflect carefully on this amendment, as on all the other amendments before the House this afternoon, before asking the other place to think again.

I suggest to noble Lords, however, that this is an occasion-on this amendment certainly-when it is appropriate to ask the other place to think again. The amendment now before noble Lords addresses the concerns expressed by the Minister, Mr Djanogly, in the other place. There is simply no substance to the Government's opposition to this amendment. It raises an issue of principle of considerable importance and it involves no financial cost whatever to the Government. I beg to move.

The noble Lord, Lord Pannick, for the avoidance of any doubt whatsoever, has made it clear beyond peradventure in the drafting of this amendment in lieu that what he and the House have sought to achieve contains no threat to the Government's public expenditure plans. The wording makes it clear that,

"subject to the resources which the Lord Chancellor decides, in his discretion, to make available", the Lord Chancellor shall exercise his powers to secure that individuals have access to legal services.

For the sake of a completely illusory financial requirement, the Government propose to impair a constitutional principle of the first importance which goes back not just to 1949, as the noble Lord, Lord Pannick, reminded us, but to 1215. That is the principle of equality before the law. It should not be in doubt that it is the duty of the Lord Chancellor to secure equality before the law. We all recognise that there are constraints in the present very difficult circumstances of the economy, and that we face an imperfect situation. But it must be right to legislate in principle to ensure that, in normal times at the very least-I would contend at all times-it is a paramount duty of the Lord Chancellor to secure equality before the law for all our citizens. It is no use the law declaring high principles of which citizens cannot avail themselves in practice if financial constraints and the lack of support through legal aid mean that they are not able to substantiate their rights in the courts.

I praise the noble Lord, Lord Pannick, for persisting in this cause. I very much hope that the House will want to support him once again in inviting the other place to think again.

My Lords, I support what the noble Lord, Lord Pannick, has put before us. Doing my very best, I have found it very difficult to find any reason why this amendment should not be accepted. Attempting to rely upon what was said in the other place just does not wash. If the other place had understood the purpose of the previous amendment, I do not accept that it could have treated it in the way that it did. I do not need to go into detail about that matter because the noble Lord, Lord Pannick, has, with his usual clarity, set out the position perfectly obviously. The situation is as he indicated.

In Bills of this nature, it is frequently the practice to assist those who will subsequently have to apply the legislation-or, if I may say so with feeling, interpret the legislation-set out the purpose of the legislation. The Bill makes that purpose clear in so far as there was any doubt about it. There cannot be said to be any financial commitment involved. I am at a loss to understand how the Lord Chancellor, having the responsibilities that he has for the administration of justice under the Constitutional Reform Act 2005, can use that as an excuse for, without justification, trying to impede the proper consideration of this amendment. It reflects no credit to the way in which that office is now being handled for the Lord Chancellor to take that position. Every word that the noble Lord, Lord Pannick, has said with regard to the four points that were taken is of substance. I hope that, even now, the Lord Chancellor will consider whether it is consistent with his responsibilities to take the position that was adopted by the other place after very brief consideration.

I remind the Lord Chancellor of the oath that he takes when he takes office, which is laid down in the Constitutional Reform Act. I ask him to consider whether the position that he has now taken is consistent with that oath. Section 17 of the Act requires him to,

"swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law ... and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible."

The purpose of the amendment is to give the Lord Chancellor scope to do just that.

I would have thought that the proper course was to welcome the amendment, having regard to changes in the situation that can take place in the future. Again and again, in the course of consideration of this Bill, it has been said on behalf of the Government that they are following the course that they are taking because of the financial situation in this country. That argument demands the greatest respect, but as the noble Lord, Lord Pannick, has indicated, this amendment does not interfere with the Lord Chancellor doing precisely that. It is said that it may lead to increased litigation. If that litigation were to take place, as far as I can foresee, it would have to be by way of judicial review and it is well known that judicial review has built-in protections to avoid the litigation process being misused. The requirement of leave would mean that proceedings which are initiated without cause would have a very short life indeed. The Government of the day would be entitled to get the assistance of the courts, which they would receive, to ensure that there was no misuse of those proceedings in these circumstances. I suggest that, if full consideration had been given to this amendment, it would not originally have been objected to or objected to now.

Given the noble and learned Lord's huge experience in these issues, would he kindly tell the House whether he considers that this amendment does not place any Lord Chancellor in any jeopardy in respect of judicial review? If that is the case-that is what I understood the noble Lord, Lord Pannick, to say-does that not make the provision toothless?

No one can anticipate what might happen with regard to the conduct of a particular Lord Chancellor in the future. However, in regard to the fears that have been expressed, there would be no possibility of those being treated as appropriate cases for an application for judicial review on the facts that could be reasonably expected to occur.

On the purpose of the legislation, I would adopt what was said by the shadow Minister in the other place: that the amendment states a purpose because the provision is a statement of legislative purpose. As to having a statement of legislative purpose, in legislation of this nature it is done frequently, not for the purpose of providing an enforceable duty but so that it is known what the legislation as a whole is intended to do.

My Lords, the noble Lord who moved the amendment as well as the noble Lord, Lord Howarth, and the noble and learned Lord, Lord Woolf, have referred to the purpose of the amendment as the avoidance of doubt. I hope that in his reply the noble Lord will explain to the House exactly what is the doubt which the amendment is designed to remove and which, presumably, the Bill will otherwise create. If he can answer that question to my satisfaction then I might vote with him. Until that question is answered, I would be inclined to vote with the Government.

I regret that I have to disagree with the noble and learned Lord, Lord Woolf-I very rarely do. However, there is a statement of principle in Clause 1: it is that the Lord Chancellor must secure that legal aid is made available in accordance with this part. That is a very simple, short statement which would cause no judge any difficulty whatever in interpreting the provisions of the Bill. I said in Committee that the amendment then proposed was meaningless and added nothing to the Bill. I say precisely the same of the amendment as redrafted.

The amendment adds nothing, except this. I could be a very devious lawyer, and I might have a case for which I thought some funding was needed. So I might apply to the director of legal aid for special funding, knowing well that the case for which I am requesting funding is outside the legal aid scheme. The director of legal aid might say, "There is nothing special about this; I am refusing it". I might then make an application by way of judicial review to the court, and I would get legal aid for that: judicial review carries legal aid. So I would get my money by making an application to the court for judicial review to say, "Look at this provision which the noble Lord, Lord Pannick, argues for: it is broad; it is wide; the circumstances of the country have improved; it is only reasonable that the director of legal aid should now grant me the funding that I need, or that the category of law with which I am now concerned should be brought within scope". That is just one case. Other cases could then be brought forward in the same way.

Will the noble Lord explain how the risk to which he has just referred would be any greater than that which already exists in the words of Clause 1(1)-that the Lord Chancellor must secure that legal aid is made available in accordance with this part?

It says in terms that it must be in accordance with this part. As the Minister has explained, the Bill as drafted says what is in scope. The Access to Justice Act 1999 set out what was not in scope.

I am no expert in administrative law. However, my recollection is that that requires leave of the judge. If it is as spurious a case as the noble Lord has suggested, I would have thought that it would be likely to be rejected and that very little legal aid, if any, would be involved.

Why should one run that risk? Why should one have applications for judicial review being made based on the amendment as currently drafted? This adds nothing to the Bill. All it does is open an avenue for satellite litigation which should not be permitted.

My Lords, it would be a great disappointment to your Lordships' House if you were to find that there was unanimity on these Benches. I am not going to disappoint your Lordships: there is not.

I agree entirely with the noble Lord, Lord Pannick-particularly in relation to the second and third parts of his speech-and also with the noble and learned Lord, Lord Woolf. In answer to my noble friend Lord Thomas of Gresford, I would say that Clause 1(1) contains absolutely no statement of principle whatever, whereas Amendment 1B does contain a statement of principle, albeit within the financial limits set by the Bill.

What I really wanted to do is say a few words about financial privilege. I suspect that there will be other noble Lords who were once Members of another place who, like me, have sat on the Reasons Committee. It is the Reasons Committee that drafts the reasons why the Commons do disagree with your Lordships' House. It sits in a room just behind the Speaker's Chair. That room is known as the Reasons Room. Behind that Alice-in-Wonderland title lies an Alice-in-Wonderland process. In the Reasons Room, the Reasons Committee-which does not produce a Hansard record, or certainly did not do so in my time-produces reasons that, by and large, are presented on a piece of paper and nodded through. That seems to me to be what has happened here. The reason that is given is that,

"it would alter the financial arrangements made by the Commons".

That is a statement of predictive certainty. What we have heard from my noble friend the Minister suggests that there might be a possibility at some stage in the future that some kind of judicial review action might, not would, have some effect on, not alter, the financial arrangements made by the Commons.

I echo the words of the noble and learned Baroness, Lady Butler-Sloss, about the process of judicial review. Every judicial review application goes in the first instance, on an entirely paper procedure, before a judge of the administrative court. As it happens, most applications-about 80 to 90 per cent-are refused on the papers and there is practically no expenditure upon them at all. I cannot see any circumstances in which it is more likely that judicial review proceedings would continue as a result of including this amendment in the Bill as compared with the Bill as it stands. As my noble friend Lord Thomas said, the Bill as it stands contains the potential for applications being made for judicial review against the exceptionality provisions and against a ruling that legal aid should not be given. What is proposed here hardly increases that risk.

My Lords-

I will give way in a moment; I shall just finish the sentence.

If the other place has got its reasons wrong then surely we are entitled to question those reasons in this House, and if the burden of the debate justifies it, to ask the other place to reconsider, on the basis that it has got its reasons wrong. I will give way to my noble friend now-but he does not want me to. I am glad that I have answered his question. I have nothing further to add.

My Lords, I rise in support of the noble Lord, Lord Pannick. I am concerned about the reasons given in the Marshalled List, and perhaps the Minister can help the House. What are the financial implications if this amendment were accepted? The reason given is:

"Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient".

If that is the sole basis for rejecting the amendment-or if there is any other reason, any other sinister matter, that the Minister is concerned about-perhaps he will tell us.

The noble Lord, Lord Pannick, has told the House that there are no financial implications to his amendment. The amendment states that the Lord Chancellor shall exercise his powers under this provision in order to ensure that individuals have access to legal services, and that it is entirely within his discretion,

"and subject to the provisions of this Part".

This is a very carefully drafted amendment. It secures the Government's financial position. The ultimate discretion is the Lord Chancellor's, and I find it very difficult to foresee, in reality, any other financial implication.

My Lords, I have supported the noble Lord, Lord Pannick, throughout the process of this Bill. I do so again and I will not take up time to enlarge on anything that has been said thus far in support of the amendment. I simply risk causing the Minister convulsions by drawing his attention to the clock and indicating that we are well on our way to doubling the amount of time that the Commons took to dispatch four of your Lordships' amendments. It also had the temerity to adopt a programme Motion that caused Sir Gerald Kaufman to stop in mid-track when he was saying:

"It is out of order in this House of Commons to accuse anyone of hypocrisy, so I-".-[Hansard, Commons, 17/4/12; col. 208.]

We shall never know what he was about to say, but it shows how well we attend to amendments in this House and how poorly they do so in the Commons.

My Lords, the whole exercise of this House examining the reasons given for rejecting an amendment from this place turns on the supposition in the first instance that the other place has in a mature, reasonable and well informed way applied itself to all the relevant issues. I therefore take very much to heart the submissions made by way of preliminary argument by the Minister. It is his case that the other place has done exactly that: namely, that it has looked in a fair, reasonable and mature way and has comprehensively dealt with those issues. I think that his argument is utterly fallacious in that respect.

Before using a word such as that, does the noble Lord not agree that there is a constitutional convention that-

It is exactly on the question of constitutional convention that I seek to address this House now. The Minister's case, in so far as it refers to the Government having carefully considered the situation, is amply made out. I am sure that battalions or squadrons of legal eagles have been burning the midnight oil looking carefully at every word, comma and expression in these matters. I have no doubt that that has been done thoroughly and comprehensively.

However, has the other place thoroughly and comprehensively considered this matter? There has been a double guillotine. First, there was a guillotine in dealing with the issue because it could not be raised at Second Reading, in Committee or on Report. There was a second guillotine in the meagre ration of time-27 minutes-allowed for this amendment and two or three others. You would not hang a dog on such a procedure.

Therefore, on that basis, I make no apology for raising what I consider to be a fundamental constitutional point. We are dealing with the rejection by the House of Commons of a matter on which the time taken presupposes that its consideration could not have been mature and comprehensive. In addition, we have the reason given on financial privilege. I am as sure as I am that financial privilege cannot apply to this case because the very thing that it avoids doing is increasing the burden on the public purse. If I am right-as I understand it, that has been the rule since the end of the 17th century-it is not a financial privilege matter. Therefore, we have two constitutional issues. One is the lack of time and it being ridiculously limited in the other place. The second is the reason advanced; the very basis for refusing it cannot be sustained in argument.

Perhaps I may also challenge in a respectable, and I hope friendly, way the noble Lord's contention that those of us who have had experience-in my case, it was a very long time ago-as Members in the other place are in some way tainted and disqualified from making contributions in this House on this matter. Is he saying that we should be silent? If this House is anything at all, it is a first-class reviewing Chamber. Is he saying that, as a reviewing Chamber, this House should not comment on such matters? If it does not comment on such matters, it does not deserve to be a reviewing Chamber or a court of Parliament at all.

My Lords, I will be very brief. I supported the predecessor of this amendment as it went through the various stages in your Lordships' House. I did so because, for the reasons that have already been given, I thought it was an important statement of principle that ought to govern the way in which we considered the Bill and ought to be part of the Bill. I remain of that view.

It seems that the real reason for the objection to this amendment is the fear of judicial review, or the rather vaguely described "satellite litigation". I understand why government lawyers, who are not always right about everything, may consider that there is a risk of judicial review in all sorts of situations: because of the ingenuity of lawyers and perhaps the flexibility of the Human Rights Act. However, given the way in which it is currently framed, it seems absolutely hopeless to think that there could be judicial review in these circumstances. The amendment as formulated makes it entirely clear. We are all familiar with provisions with no such discretion or reference to the Lord Chancellor or the Secretary of State, in which case courts have sometimes said that it is an absolute duty. However, with this proviso it is almost as though the Government have had the benefit of the noble Lord, Lord Pannick, advising them on how to make the matter proof from judicial review.

My Lords, I went to the other place to hear our amendments debated. As I am not a former Member of the other place, perhaps my noble friend will take it from me that its consideration of some of our amendments was cursory-and that is putting it quite generously. I admit to being very disappointed that, on such an important Bill as this, the other place allowed so little time for consideration of these amendments that one cannot say that they scrutinised the amendments with the seriousness with which we try to scrutinise.

Having said all that, I am still mystified by this amendment. I agree with my noble friend Lord Faulks, and consequently with my noble friend-well, he is a friend but he is not a friend-Lord Pannick. It seems clear-indeed it was part of the case made by the noble Lord, Lord Pannick-that there is no prospect of judicial review, and he has designed this amendment to cut out that prospect. However, to the extent to which he has been successful-and I think he has been-it makes the clause ineffectual. It has absolutely no practical effect. I am afraid that it is admirable in sentiment but ineffectual in purpose and therefore should not be in the Bill.

My Lords, my noble friend Lord Hart inadvertently stole my opening line about the time we have spent debating this amendment. I could also point out that we will take little less time to vote on this amendment than the other place took to discuss, and allegedly debate, all four of the amendments about which we have heard.

The noble Lord, Lord Thomas, has entertained the House by conjuring up a vision of an army of devious lawyers mining the rich seams of the potential availability of legal aid for the purpose of pursuing claims for judicial review. Others of your Lordships have rather demolished the thrust of that argument, which in any case might be thought to be somewhat fanciful, especially in the light of the quite appropriate reference made by the noble Lord, Lord Faulks, to the fact that the amendment incorporates specific reference to the discretion of the Lord Chancellor. With respect to the noble Lord, Lord Thomas, there really is no substance in his objection to the amendment as it has been moved.

In relying once again on financial privilege-when it could have been waived and substantive arguments put in the form of a Motion asking this House to reconsider the amendment-the Government seem to be succumbing once again to the temptation of relying on this way out of a difficulty. They are becoming addicted to the use of financial privilege as a reason to reject amendments from your Lordships' House, and that cannot be a satisfactory basis for dealing with significant matters of this kind. Therein lies the strength of an argument about financial privilege when, in dealing after a fashion with the amendment in the House of Commons, the Minister, Mr Djanogly, made one of his principle objections: that the Government,

"are concerned that the amendment replicates what is already in place".-[Hansard, Commons, 17/4/12; col. 201.]

If it replicates what is already in place, how can it conceivably add to the Government's expenditure? It is a ludicrous proposition in an attempt to have it both ways.

For that matter, those who argue that judicial review is something to be avoided seem to have forgotten that when we were discussing the position of the director of legal aid casework-the DOLAC amendment; we will come later to a welcome acceptance of an amendment in that respect-it was argued that judicial review would be available to those who sought to make a case for legal aid in exceptional circumstances. At that point, it was to come to the rescue of people who were being denied legal aid and was something to be embraced. Today, however, for the purposes of this amendment it is an issue that could be deployed against the amendment of the noble Lord, Lord Pannick.

There is no question that the purpose of this amendment is clear. It is declaratory, but it is important to be declaratory about important principles, and for that reason the Opposition wholly support the amendment.

My Lords, I will explain briefly why I do not agree with the amendment. I quite agree with those who have said that it is inconceivable that it will give rise to effective judicial review because it imposes no legally enforceable duty and it is therefore inconceivable that anyone could threaten the Government by way of judicial review. However, my problem with it is that it imposes no legal duty and then does nothing else.

The amendment begins:

"The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services-".

Pausing there, it is of course already the Lord Chancellor's duty to do so under the Human Rights Act, as I pointed out in a brief question to my noble friend and colleague Lord Pannick. Under that Act, the Lord Chancellor has to act in a way that is compatible with Article 6 of the convention, which secures a right of access to justice. Existing law and Section 3 of the Human Rights Act require that all legislation, including this Bill, must be read and given effect in so far as it is possible to do so compatibly with the Human Rights Act. That first part of the amendment is already fully taken care of by that Act. In so far as the rule of law is in play, it is also taken care of by the Constitutional Reform Act.

The amendment goes on:

"that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part".

That completely swallows up any suggestion that this is some new, important principle. I am afraid it is written in water and I do not approve of putting anything in the statute that is simply an unenforceable duty written in water.

My Lords, we have had a very interesting debate on this. I hope when the noble and learned Lord, Lord Woolf, has time to read his own remarks, which contain some fairly harsh strictures about the Lord Chancellor, he will reflect that the question of financial privilege is not a matter for the Government or for the Lord Chancellor. As the clerk of the Commons explains, an amendment that infringes privilege would be the only reason that would be given. That is because giving other reasons suggests either that the Commons has not noticed the financial implications or that it somehow attaches no importance to its financial primacy.

We had a debate very like this one when we discussed the Welfare Reform Bill. I do not have figures at my fingertips-perhaps we can give the noble Lord, Lord Hennessy, the task of looking at the record of respective Administrations in using financial privilege-but when we last discussed the matter it was made clear that this is a matter for the Commons. As the Companion states:

"Criticism of proceedings in the House of Commons or of Commons Speaker's rulings is out of order, but criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons".

I think noble Lords have exercised that procedure today.

My Lords, the Minister said that financial privilege is not a matter for the Government but for the House of Commons. We understand-we are very familiar with the convention-that when the House of Commons rejects a Lords' amendment it may state reasons of financial privilege and give no further explanation. However, that does not explain or justify why the Minister, Mr Djanogly, in opening the debate on the Lords' Amendment 1 last Tuesday, began his speech by drawing to the attention of the other place that:

"Lords amendments 1 and 24 impinge on the financial privilege of this House. I ask the House to disagree to them and will ask the Reasons Committee to ascribe financial privilege as the reason for doing so".-[Hansard, Commons, 17/4/12; col. 200.]

That was his argument, essentially because he could not think of a better one. It is very unusual for the Government to rely blatantly on financial privilege during the debate.

We have to contend with a new situation. We are not criticising the constitutional arrangements, the conventions or the manner of the relationship between the two Houses, but we are saying that the Government should not hide behind this formula, this antique convention, but should deal fairly and squarely with the merits of the argument.

The noble Lord, Lord Howarth, has wandered-I shall come to some of his comments later-into interesting fields. The financial privilege of the House of Commons may be antique, but as an old House of Commons man I am rather attached to financial privilege. Kings have lost their heads and revolutions have taken place to protect financial privilege and I do not airily sweep it away as an antique remnant of a bygone age. It is an important part of the relationship between the two Houses.

Can the Minister explain how financial privilege applies in this case? Of course the Bill concerns public expenditure, and in that sense financial privilege applies, as it does to virtually every item of legislation, but how do the Government contrive to justify making it the basis of their argument to Members in another place? They asked them to reject the amendment on the grounds of financial privilege as if it were at risk of incurring unaffordable increases in public expenditure, which is simply not the case.

My Lords, we can go round in circles. The qualification of financial privilege is a matter for the Clerks of the House of Commons. Former Mr Speaker Martin, when we last discussed this matter at the time of the Welfare Reform Bill, made very clear where the line is drawn.

I might not have had as long and continuous a place in the House of Commons as my noble friend but I have been around this place for the past 40 years, and one of the reasons why I teased some former Members of Parliament is that for the past 40 years, under various Administrations, I have heard these debates about the paucity of the way in which the House of Commons discussed a matter and the brutality with which the guillotine was used. That may well be one day-perhaps soon-the reason for a proper parliamentary reform Bill that takes in both Lords and Commons, but it is not an excuse for assuming that somehow, on this particular Bill and this particular issue, the Government are using chicanery or arguments that are not well understood in the relationship between these two Houses.

I also point out to the House that the one thing I have not done, and certainly did not do in my remarks at Report stage, Third Reading or today, is to hide behind financial privilege. I do not think that the Pannick amendment stands up to scrutiny and I was grateful for the contribution of a number of my noble friends in that. Part 1 of the Bill, the Lord Chancellor's functions, states:

"The Lord Chancellor must secure that legal aid is made available in accordance with this Part."

This seems to me a very clear statement of intent. The difference between the Act being replaced and this Bill is that the Act being replaced is an open-ended Act. It does not restrict where legal aid would apply. The whole point of the Bill-what makes it different from the previous Act-is that it limits, specifies and draws attention to where legal aid will apply and what will be out of scope. That is the danger of the Pannick amendment-that in its general good will to all men approach, it leaves the idea that things may be added. Indeed, both the noble Lord, Lord Howarth, and to a certain extent the noble Lord, Lord Pannick, said that when better days are here this whole circumstance may change. It may change, but not under a vaguely-worded Part 1 of the Bill. We have, in the course of the Bill, accepted an amendment from my noble friends that removed the ratchet and left a regulator in terms of what can be put back into the Bill, but that will be a matter for reflection and discussion in the future.

What worries me is that all the learned Lords who have spoken may be absolutely right, and if they are right we will all live happily ever after. But if they are wrong it is a future Lord Chancellor and the taxpayer who will have to pick up the consequences. Therefore, I think at this stage in the passage of the Bill, the Lord Chancellor of the day and the Government of the day see dangers in what, if it is anything, is either meaningless or has a meaning that has implications for the future; and if it does have implications for the future, in a Bill structured in this way, I think we are right to resist it.

I hope noble Lords will agree that the Lord Chancellor of the day and the Government of the day could and should have a sense of responsibility and care for the central architecture of the Bill, which we keep on talking about. The Bill is not open-ended but specific and the Pannick amendment is not something that should show on the face of the Bill. I hope that noble Lords reflecting on this, and the fact that it has been well considered and well debated and that I have not tried to hide behind financial privilege in addressing your Lordships either previously or today, will support the Government and the Commons in their amendment.

I am grateful to all noble Lords who have spoken in this full debate. I am grateful to the Minister for his consideration of the amendment and for meeting me last week to discuss the issues raised. The other place rejected the amendment and the Minister invites the House to reject the amendment because of a concern or belief that it would impose further obligations on the Government. In this House, a number of noble Lords objected to the amendment on the precisely opposite ground that it would impose no obligations on the Government. Perhaps I may briefly reply to both those concerns.

First, on the concern that the amendment would impose further obligations and would somehow undermine the architecture of the Bill, to use the Minister's words, with great respect I have enormous difficulty in understanding those concerns. I could understand the concern if the amendment had any adverse financial consequences, but it plainly does not. It says,

"subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part".

I am very grateful to the noble Lords, Lord Faulks, Lord Carlile of Berriew and Lord Phillips of Sudbury, for their views, which I share, that it is impossible to understand how in the real world this amendment could result in litigation that had any prospect of getting off the ground-certainly any more so than the original Clause 1. So the only possible objection to the amendment is that it does not impose further obligations on the Government and that it does nothing. That was the point made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Lester of Herne Hill, and was a concern expressed by the noble Lord, Lord Phillips of Sudbury. I say to those noble Lords and to the House, with great respect, that that is to misunderstand the purpose of an objects clause. The purpose of the amendment is to ensure that the Bill recognises that we are cutting back on legal aid, most regrettably, because of current financial stringency, but that the principle of securing that individuals have access to legal services that effectively meet their needs, which has been part of our law since 1949, has not been forgotten. It is still the purpose of legal aid and, when the economy improves, that is the principle by which Ministers and Parliament should assess-

I hate to stop the noble Lord's flow, but he has just put his finger on it. This is not an interim, pro tem measure, waiting for a return to the 1949 Act. Although, as I mentioned in my opening remarks, financial considerations of course have played a part, the main intention of the Bill is to restructure, reshape and re-point the direction of legal aid away from the open-ended nature of the 1949 Act and successive Acts and put it into a closed system. It is that closed system that the noble Lord's amendment, with great skill aforethought, plans to undermine. That is why we are resisting it.

I entirely accept the Minister's point that the Bill seeks to identify those subjects for which legal aid should be made available. But the Minister will recognise that, in the anxious debates that we have had through the progress of the Bill, we have considered a number of sensitive topics in respect of which the Minister's argument has been that we would like to provide legal aid for this subject but, regrettably, we cannot do so because we do not have the money under the current financial stringency. The House has listened to that debate and accepted, with a heavy heart, that in relation to many of the subjects in respect of which legal aid has previously been made available it will regrettably no longer be made available. Having accepted that the Government must have their way for financial reasons on many of those very difficult areas, I believe that it is absolutely vital that we retain in this Bill a statement of the principle of why legal aid is made available so that when the economy improves-

My Lords-

I have given way to the noble Lord before. I anticipate that the House is anxious to move on. The House has heard the debate in relation to this matter. I say to the House that that part of the 27 minutes which the other place devoted-I am not giving way-

My Lords-

The House wants to move on. That part of the 27 minutes which the other place devoted to consideration of this amendment shows that the purpose and effect of this amendment were not understood. I think that we should ask the other place to think again on this important matter, and I wish to test the opinion of the House.

Division on Motion A1

Contents 248; Not-Contents 233.

Motion A1 agreed.

Motion B

Moved by Lord McNally

That this House do not insist on its Amendments 2, 194 and 196 to which the Commons have disagreed for their Reasons 2A, 194A and 196A, do not insist on its Amendment 192 and do agree with the Commons in their Amendments 193A, 219A and 220A.

2A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

193A Line 2, after "means" insert "any incident of"

219A Line 2, after "means" insert "any incident of"

220A Line 25, after "means" insert "any incident of"

194A Because it is appropriate for provision about forms of evidence of domestic violence to be made by regulations.

196A Because it is not appropriate to prevent a time limit being imposed in respect of evidence supporting an application for civil legal aid under paragraph 10 or 11 of Part 1 of Schedule 1.

My Lords, Motion B contains amendments in relation to domestic violence. As I have previously made clear, the Government take domestic violence extremely seriously. We fund a range of programmes to help deal with and prevent this crime, many of which-I am happy to acknowledge-were put in place by the previous Administration. As the noble and learned Baroness, Lady Scotland, has previously made clear, there is nothing between the Government and the Opposition in principle here.

This was reflected in our initial proposals. First, legal aid to obtain a protective injunction against domestic violence should remain exactly as it is at present, so that those who need legal aid to protect themselves can get it regardless of their means. Secondly, while we have removed most of private family law from the scope of legal aid in favour of funding mediation and less adversarial proceedings, an important exception should be made for victims of domestic violence. This was because such victims could be intimidated during court proceedings about, for example, child contact or maintenance issues. Again, it is fair to say that these principles were welcomed.

There has been considerable debate in both this House and the House of Commons over how to decide who qualifies as a victim of domestic violence for the purpose of legal aid for private law family proceedings. Therefore, there has been much scrutiny of the definition of domestic violence used in the Bill, the types of evidence that would prove that someone was a victim and the length of time for which these should be valid. The contributions across the House have been informed, sometimes passionate and extremely helpful. The Government have listened and moved on several key points.

As set out in government Amendments 193A, 219A and 220A, we have accepted the ACPO definition of domestic violence in full. The Bill now defines domestic violence as,

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

This has been universally welcomed. We have also undertaken to widen the list of evidence, which will be reflected in regulations, to include: 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, and 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.

These are in addition to those forms of evidence already accepted by the Government which 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 past 12 months; a criminal conviction for a domestic violence offence by the other party against the applicant; ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; 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 recommended; and a finding of fact by the court of domestic violence by the other party against the applicant.

On time limits, we intend to double the previously announced time limit from 12 months to two years, save in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one. We think that some sort of time limit will still be needed-we are in the business of reducing rather than encouraging litigation-but we think that two years will make sure that those who need help get it.

I know that the noble and learned Baroness, Lady Scotland, continues to have concerns and has tabled amendments in lieu of her original amendments which ask for our list of evidence to be exactly the same as the list of evidence used by the UK Border Agency in assessing domestic violence immigration applications. I know from my conversations with her that she is worried about consistency and about genuine victims missing out. I have enormous respect for the noble and learned Baroness but I really do think that her fears are now misplaced, given how far we have moved.

On consistency with the border agency, we need to understand that the decisions being made are different, as is the context in which they are made. When the border agency takes a decision on whether domestic violence has occurred, it is a decision on the case itself. This would be analogous with a court looking at an application for a domestic violence protection order and a judge deciding whether domestic violence had occurred, not with a legal aid decision about a private family law case.

We are talking here about a secondary issue-in this case, legal aid-that arises indirectly from a person being a victim of domestic violence, not a decision that directly relates to someone's protection, such as in an immigration context or an injunction application. What is needed for a grant of legal aid is a set of clear rules, not the kind of case-by-case nuance that is needed to decide whether someone requires immediate direct protection.

Other government departments have to grapple with similar issues when it comes to these secondary issues. They do not use the border agency list but take a judgment on what works in their particular context. One example is the rules for jobseeker's allowance for victims of domestic violence, over which individual local authorities have discretion.

I should also point out that the noble and learned Baroness has never objected to a very important addition that we have made to the border agency list-namely, "a finding of fact" by a court that domestic violence is a relevant feature. This partly highlights the different context that we are dealing with; such a finding of fact is much less likely to arise in an immigration context, but it also provides a very important safeguard in these cases. By definition in this context, if you are seeking legal aid, it is because there is the prospect of family proceedings. If you cannot show any of the evidence of domestic violence that we have asked for but the court decides, perhaps on the basis of police call-outs or other types of testimony, that domestic violence is a feature in the case, then legal aid will be available. This is also relevant when thinking about the time limits. Where a case relates to older incidents of domestic violence but a court considers that the matter is still relevant and it makes a finding of fact, legal aid will be triggered.

When I spoke last week with the noble and learned Baroness, she suggested that we would be missing a large number of victims with our time limit because of how long victims take to come forward. She mentioned that the average time for a victim coming forward was five and a half years. However, it does not follow, as she suggested, that a two-year time limit for evidence cuts out nearly two-thirds of people as a result, because the crucial point is that the evidence will be generated when people come forward-that is, when they seek an injunction, turn to their GP or decide to go to a refuge. It is when the evidence arises, not when the abuse occurs, that indicates the start of the time limit.

I stress again how far the Government have moved on this issue. We now have a system which will genuinely and generally ensure that victims of abuse get legal aid in these private family cases. We have accepted the ACPO definition of domestic violence-indeed, we have gone beyond that. We have significantly expanded the range of acceptable evidence and doubled the time limit. There is one in-built safety mechanism in the form of "finding of fact" hearings, and of course there is a second safety mechanism in the form of exceptional funding, for the more unusual cases. So I think we have now got this right. I want to pay tribute to those across the House, not least to the noble and learned Baroness, Lady Scotland-I know her well and I know her deep concern on this issue.

For the sake of completeness, I should add that we cannot accept that the evidential requirements should be in the Bill. Legislation of course needs to be precisely drafted, and because of the level of detail required, the evidential requirements are much better left to regulations, subject to the affirmative procedure, rather than primary legislation.

Sometimes at this Dispatch Box one has to make the government case with a heavy heart. I have looked at this from where we started, where we have moved to, and what we now cover in this very important area. I am proud of what the Government have done in carrying on the broader work against this evil crime, but I am also proud of what we have now finished with in terms of a package to help in this particular case. I hope the House will give us its support. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by Baroness Scotland of Asthal

Leave out from "House" to end and insert "do not insist on its Amendments 192 and 194 and do agree with the Commons in their Amendments 193A, 219A and 220A, and do not insist on its Amendments 2 and 196 but do propose Amendments 2B and 196B as amendments in lieu"

2B Page 121, line 31, at end insert-

"Domestic violence

(1) For the purposes of this paragraph, evidence that abuse has occurred may consist of one or more of the following (without limitation)-

(a) a relevant court conviction or police caution;

(b) a relevant court order (including without notice, ex parte, interim or final orders), icluding a non-molestation undertaking or order, occupation order, forced marriage protection order or other protective injunction;

(c) evidence of a relevant criminal proceedings for an offence concerning domestic violence or police report confirming attandance at an incident resulting from domestic violence;

(d) evidence that a victim has been referred to a multi-agency risk assessment conference, as a high risk victim of domestic violence, and a plan has been put in place to protect that victim form violence by the other party;

(e) a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim;

(f) a letter from the General Medical Council registered general practitioner or other medical professional confirming that he or she has examined the applicant and is satisfied that the applicant had injuries or a condition consistent with those of a victim of domestic violence;

(g) an undertaking given to a court by the alleged perpetrator of the abuse that he or she will not approach the applicant in respect of allegations of domestic violence;

(h) a letter from a social services department confirming its involvement in providing services to the applicant in respect of allegations of domestic violence;

(i) a letter of support or a report from a domestic violence support organisation; or

(j) other well-founded evidence of abuse that is either-

(i) certified by a court; or

(ii) of atype prescribed in regulations.

(2) For the avoidance of doubt, no evidence shall be deemed inadmissible on the basis of expiration where the general limitation period under the civil standard has not elapsed."

196B* Page 121, line 47, at end insert-

"(2) For the avoidance of doubt, no evidence supporting an application for civil legal services under this paragraph shall be deemed inadmissible on the basis of expiration where the general limitation period under the civil standard has not elapsed."

My Lords, I move the amendment standing in my name not in any way to cause anxiety or concern to the Minister, or with any lack of appreciation for how far the Government have moved. I say straightaway that I welcome the moves that have been made in the right direction. However, I hope the Minister will forgive me when I say that I regret that such a move was not done immediately and that we have had to wait so long. I hope the noble Lord will not find me ungracious when I say that I would invite him to move a little further. The amendments that have been proposed by the Government widen the evidential gateway provided by the Bill as it stood before: my amendments take it just a little further.

Domestic violence applications are of great importance, not just because they relate to a large proportion of women, but also, as the noble Lord knows, because they affect men and many children. Up to 950,000 children are affected by domestic violence every year. My amendments specifically permit well founded evidence of abuse certified by a court and/or prescribed in regulations to be used in support of an application for legal aid relating to matters that touch on domestic violence. In addition, my amendments provide that no evidence shall be deemed inadmissible on the basis of the expiration while the general limitation period under the civil standard has not elapsed; in effect, moving limitation from the two years provided in the Government's proposed regulations to six, which I think causes greater consistency.

Your Lordships will know that, in my Amendment 196B, I also seek to extend that more generous time limit to applications made in relation to children's cases. The House has heard from me, at Second Reading, in Committee and on Report, about the importance of these issues to victims of domestic violence and their children. These amendments are, I respectfully say, vital. They are vital to all victims who may be affected by domestic violence. It is the reality of the domestic violence victim's life that has to be properly acknowledged. Although I thank the Minister for moving both in scope on the definition and on the definition itself, it is clear from what he said in moving his Motion that the Government do not entirely understand the issues in relation to domestic violence as I had hoped that they would.

The evidential test is there to provide assurance that there is cogent information on which to base the assertions of domestic violence made by an applicant. The evidential gateway is just that: an evidential test to support the definition. The Government seek, on the basis of the amount of money that they have available, to narrow that gateway in a way that denies the reality of many victims' lives. I would love to be able to say that my fear in relation to these amendments is misplaced. The reason I know that, tragically, it is not, is that I have had the privilege of working in this field since 1977. We know, through experience and the empirical data that we have, the consequence of a narrower gateway because there has been one in the past and we know that lives have been lost.

In many cases, women-I say "women" because 89 per cent of repeat victims are women-will not get the support they need. I will give one example, which has been given to us by St Anthony's Centre for Church and Industry in Manchester. It relates to a case where a woman had entered into a marriage which was violent and traumatic. She wanted to start divorce and financial proceedings. She did not go to a refuge. She left her home and went to live at her parents' house. While there, she was not able to work because she used to work for her husband in his business, so she lost her job; she was his bookkeeper. The husband remained in the joint home. He moved his mistress into that home and refused to engage in the divorce proceedings at all for a considerable amount of time. The wife could do very little about it. Eventually, because he would not negotiate and because she had no money and he had a great deal, she went and obtained legal aid to assist her to go back into the house and, if not to go back into the house, to get her just desserts in terms of financial relief. The husband had engaged some very expensive solicitors. She did not have any money to do so. That woman, today, would get legal aid. If your Lordships were to agree with the amendments and pass them in accordance with the Government's proposal, she would not.

There are other cases. For example, a woman left her husband because of his violence and did not go back. She did not apply for any financial relief or anything at all. She simply wanted safety for herself and her children. Eight years later-way outside the two-year time limit-her husband came to apply for contact with those children. She had not gone to the police. She had not gone to her doctor. She had not gone to a refuge, because she had gone to her mother's house. Neither had she sought to enter into litigation. But she did not have any money. At the moment, she is able to get legal aid; if these provisions are passed, she will not. I know that the noble Lord would want to provide help and assistance for those sorts of cases, but the current provisions will not do that which the Government purport to want.

I wish that I could simply say to the House that we have moved far enough, but it is now a matter of whether the House and the Government will choose to assist those who are in dire need. It is not a matter of us not knowing what the impact will be. On a number of occasions, the noble Lord has said that we are in a financially difficult position and that we cannot do all that we would like to do but that we have to narrow the gateway. I could understand narrowing the gateway if it were to relate to those who make unmeritorious claims, who do not need the help and support of legal aid and indeed whose lives will not be adversely affected or put at risk. If that were the case, I could see that the Government would have a choice. However, post-separation violence occurs in 50 per cent of the cases that we deal with. These are not cases, as the noble Lord seeks to say, where those involved could go for an injunction. In many of these cases the violence occurred a long time ago but the risk of violence to the victim and often to the victim's children is still there.

We have a choice to make. In my humble submission, that choice should be one that we make in favour of women, children and victims of domestic violence whatever their gender who will have no other viable means of support. I say very clearly to the noble Lord that we on this side of the House have made a choice: our choice is to support victims and their children. I would love the Government to be able to say amen to that, not just in terms of desire but in reality. While many women do not have the support that they need, we cannot close our eyes.

I would like to remind the House of the Women's Aid snapshot survey that was done on 16 June last year. It showed that on just one day 224 women were turned away from refuge services: 163 because there were no spaces for them; 13 because they had no recourse to public funds; and 48 for other reasons such as complex needs. That demonstrates that even allowing accessing refuge services as evidence of eligibility for legal aid will exclude many women who are simply unable to access such services and yet are experiencing violence. We have to remember that if a woman has a male child who is over the age of 11, she will not have access to a refuge because such children are excluded, often because of their gender. Statistics from Women's Aid show that the number of women and children supported annually by all domestic and sexual violence services-both refuge-based and non-refuge-based-is 124,895: so 17,615 women are in refuges annually and 107,280 are in other services such as outreach and drop-in. Looking at the list to which the Minister has referred in his remarks, if only those who are actually admitted to a refuge are able to seek and obtain support, what about the 107,000 women who seek outreach and drop-in support?

The noble Lord knows that these amendments are widely supported by the Women's Institute, Rights of Women, Mumsnet and many other agencies, including the faith communities. I ask the noble Lord to think very carefully as to whether the Government cannot in good conscience widen the evidential gateway and the time limit to enable those with bona fide claims to be better supported. I accept that even the list and the proposals that I make will still exclude many bona fide cases. This causes me a great deal of pain and concern, but I have taken into account fully what the noble Lord has said about the restrictions that must now be put on the legal aid budget. I have accepted them. I cannot accept that the minimum standard that we have outlined in my amendment-to give succour to those in need-cannot be afforded by us as a country. If we cannot afford to protect women, children and men who are in this position we are a very poor country indeed. I beg to move.

The noble Baroness-she is learned as well, is she not?

I am indeed learned-very learned.

I have never doubted that. It is just that I keep getting nudged when I call someone learned and someone whispers in my ear that they are not.

Noble Lords are learned if they are in the Supreme Court or have been a Law Officer. Others, regrettably, may be learned in fact but are not learned in name.

It also includes former heads of a division.

That helps me a great deal. I shall never refer to the noble Lord, Lord Bach, as learned again.

The noble Lord has never done that.

My Lords, I have stated as clearly as I can why the Government and the Commons have put forward their reasons. The emotional span of this debate is sometimes extended to question whether we are in favour of victims and their children. The answer is that yes, we are in favour of them. As I said in my opening remarks, this debate is about how and whether and within which ambit we provide legal aid in private law cases. It is difficult to go beyond that into individual cases, which have been cited in debate at every stage. In many of these cases, the suspicion is that they would qualify either by application for an injunction or by a finding of fact by the court. The latter is extremely important in the additional list that we have put forward to qualify people for legal aid.

As I said in my opening remarks, when addressing an issue such as this one, and within the constraints under which the Government are operating, lines have to be drawn. It is legitimate for the Opposition to argue that that line has been drawn in the wrong place or that a time limit has been put in the wrong place. In the end, however, Governments have to make decisions-and we have made decisions. As I said, I hope that the House will look at the decisions we have made and see that we have listened and acted in a way that puts us on the side of victims and their children and that, in practice, those who face the problem of domestic violence and who want to obtain legal aid for decisions in private family law cases will find that the concessions we have made and the rules and the guidelines we have laid down will give the women and children-I accept that there may be others, but mainly women and children-who are affected by this scourge access to legal aid. I therefore ask the House to support Motion B.

I am disappointed that the Minister takes that view. As he will know from our previous debates, our assessment is that as a result of the changes that the Government are proposing, 54.4 per cent of victims currently obtaining legal aid and assistance for family proceedings will not be able to obtain such help and assistance in future. Although I absolutely accept that the Government intend, or wish, to be supportive, these provisions demonstrate the reverse-that they will not be supportive. I therefore wish to test the opinion of the House.

Division on Motion B1

Contents 239; Not-Contents 236.

Motion B1 agreed.

Motion C

Moved by Lord McNally

That this House do not insist on its Amendments 3 and 4 and do agree with the Commons in their Amendments 4A and 4B.

4A Page 3, line 22, leave out subsection (4) and insert-

"( ) But the Lord Chancellor-

(a) must not give a direction or guidance about the carrying out of those functions in relation to an individual case, and

(b) must ensure that the Director acts independently of the Lord Chancellor when applying a direction or guidance under subsection (3) in relation to an individual case."

4B Page 3, line 24, leave out "about the carrying out of those functions" and insert "under this section"

My Lords, we now turn to Motion C and to Amendments 3 and 4, tabled by the noble and learned Lord, Lord Pannick. The noble Lord is not learned, is he?

No.

The noble Lord's amendments concern the independence of the director of legal aid casework. I am confident that we all share the sentiment that the Lord Chancellor should have no involvement in a decision about legal aid funding in an individual case. However, I share the view of the House of Commons that this amendment has undesirable and unforeseen consequences and that it is possible to provide the assurance and protection required without adopting the amendment.

The primary concern with these amendments is that they would have the effect of preventing the director being appointed as a civil servant. It is our strong view that the director will enjoy full independence from the Lord Chancellor yet can be appointed as a civil servant. For the avoidance of doubt, we are abolishing the Legal Services Commission and creating a new executive agency to provide Ministers with greater policy control and improved accountability for legal aid. Giving full independence to the director would run entirely contrary to this intention.

Clause 4 already provides protection in subsection (4) with a statutory bar on the Lord Chancellor's involvement in making funding decisions in individual cases. The Bill also imposes a duty on the Lord Chancellor to publish any guidance and directions issued to the director, thereby providing transparency. Noble Lords will recall from Report stage that we amended the Bill to offer greater transparency by requiring the director to produce an annual report for the preceding financial year on the exercise of their functions during that period. This report will be laid before Parliament and published.

As I alluded to at the outset, we share the noble Lord's view with regard to the protection being sought, which is why the Government's amendment in lieu was offered in the House of Commons. This amendment places a specific duty on the Lord Chancellor to ensure that the director acts independently of the Lord Chancellor when applying directions and guidance given under Clause 4(3) in relation to an individual case. I hope the House shares my view that this new provision provides the assurances sought, incorporating as it does the concept of independence in the Bill while striking the right balance in respect of the administrative arrangements that we are seeking under the new framework. I beg to move.

My Lords, together with the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Hart of Chilton and Lord Faulks, I tabled the amendment on the independence of the director that was approved in this House. I thank the Minister and the Government for listening on this important subject and for including in the Bill, as the Minister explained, a reference to the independence of the director, which will give great comfort to all those who will be involved in the administration of this legislation.

Although these are matters of constitutional principle, they can be addressed by compromise, I am happy to say. I very much hope that the Government will be able to adopt a similarly conciliatory approach to the amendments that your Lordships' House approved earlier this afternoon. I thank the Minister.

My Lords, tempting though it is to regard the notion of an entirely independent civil servant as somewhat oxymoronic, I echo the remarks of the noble Lord, Lord Pannick, and welcome the fact that the Government have moved sufficiently to meet the considerations that were advanced on Report. We are glad to be able to conclude these matters, and look forward very much to seeing precisely how the system works in practice.

Motion C agreed.

Motion D

Moved by Baroness Northover

That this House do not insist on its Amendment 24 to which the Commons have disagreed for their Reason 24A.

24A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

My Lords, noble Lords gave great attention to this issue in earlier stages. I hope that the discussions that have resulted, both within and outside the Chamber, have helped to reassure them.

I begin by saying that the Government have always agreed that telephone legal aid advice will not be suitable for everyone. That is why there will be exceptions to having to use the gateway to apply for legal aid-for example, for emergency cases. Those who are eligible for legal aid will be assessed on a case-by-case basis to identify whether they are suitable for telephone advice.

A key consideration in assessing suitability for receiving advice over the telephone will be whether a caller is able to give instructions and act on advice over the telephone. Trained and skilled assessors will assess this suitability, and a range of reasonable adjustments and service adaptations will also be available to assist callers in their contact with the gateway.

The gateway, based on the existing highly successful Community Legal Advice helpline, will be a two-stage process-not just, as some have called it, a "call centre" service. It may help noble Lords if I briefly set out how the process will work in practice.

Stage one: when applying for legal aid in one of the areas of law subject to the gateway, trained and skilled telephone operator service staff will engage with the caller to identify their problem and eligibility for legal aid, giving the caller the time needed to explain their problem. Organisations such as the Samaritans have contributed to training for current operator service staff. These staff will not provide legal advice, but will route clients to sources of help. If the problem is in an area of law subject to the gateway, the client will be transferred to a legally trained specialist for telephone advice.

In the second stage, as now, under the current community legal advice helpline contract, where an eligible caller is transferred to a specialist, legally trained telephone adviser, that adviser will speak to the caller to assess their needs, including their suitability for telephone advice. Where it is clear, having regard in particular to whether a caller is able to give instructions and act on advice over the telephone, that face-to-face advice is needed, the client will be referred to a face-to-face provider. I ask noble Lords to note that both the telephone operators and specialist telephone providers will have ongoing training, including awareness of different vulnerable callers, such as those with mental health issues and learning difficulties.

The Government have engaged and will continue to engage with stakeholders, including equality groups, to identify any additional reasonable adjustments for callers with specific needs. For those with little or no spoken English, a free three-way translation service in 170 languages can assist engagement with the gateway. Few face-to-face providers could offer this extensive range of languages. A third party, including a family member or advocate, can contact the gateway to speak for a person or help them explain their problem. To minimise costs, all potential callers can contact the gateway by mobile phone text or the internet to ask for a call back, and all callers can ask for a call back, too.

The use of new technologies such as Skype and webcam-wider than for just the British Sign Language service-are being investigated to enhance the service further. There will also be a service enabling an individual to contact the gateway by secure e-mail. The Government will raise awareness of the gateway to users, including the services and support it offers and we will also be monitoring its operation from day one of implementation and engaging with those using it to ensure that needs are indeed met. As we have also stressed, there will be a review of its implementation and operation, and the report of that review will be published. This will happen within two years of the implementation of the gateway and before any decision about any possible extension of the gateway to other areas of law is taken.

The Government are confident that a mandatory gateway can facilitate efficient and prompt access to legal advice, including advice for those vulnerable people in need of it. The effect of Amendment 24 and, in particular, the amendment of the noble Baroness, Lady Grey-Thompson, Amendment 24B in lieu, would be to impact severely on the provision of any legally aided advice services by telephone, including the existing community legal advice helpline, the existing criminal defence service direct telephone scheme as well as the proposed mandatory gateway for certain areas of civil legal aid. These amendments are unnecessary and disproportionate to the concerns of the noble Baroness, which previously have centred on the mandatory gateway and vulnerable people.

Amendment 24B would require every eligible client to receive face-to-face advice, regardless of their particular circumstances or personal preference. This would result in a very inflexible system that would invariably introduce a delay in clients receiving advice as not only would they have to locate a suitable provider, they would also need to contact them to make an appointment to see them. No longer, for example, would a client be able to make contact with and discuss their problem at a time and place convenient to them.

Noble Lords have already acknowledged the effectiveness of telephone advice itself. On 20 December, the noble Lord, Lord Bach, described the community legal advice helpline as excellent and he was sure that noble Lords would be glad to see their work continue and expand. However, such a requirement would invariably mean the end of any telephone advice as it would be highly unlikely that any individual who has explained their problem to a face-to-face advice provider would then choose to switch to a different telephone advice provider at a later stage.

Not only would this amendment have the potential to eliminate all the savings from the gateway, it could add about £4 million to the legal aid bill for criminal cases and additional cost to civil legal aid for additional face-to-face advice-advice which is currently successfully provided by telephone. The specific duties contained in Amendment 24B are also unnecessary. I can assure the noble Baroness that the Government have complied with the public sector equality duty under Section 149 of the Equality Act 2010 and we have published an equality impact assessment-at the time of the consultation on the legal aid reforms and at the time of the Government's response-which includes consideration of the mandatory gateway policy. The public sector equality duty is a continuing one and we will continue to comply with it.

As noble Lords know, under the public sector equality duty it is necessary to have due regard to the need to eliminate discrimination, harassment, victimisation and other conduct that is prohibited by or under the Equality Act 2010, advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. The relevant protected characteristics for these purposes are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These types of discrimination are all defined in the Equality Act 2010 and we are complying, of course, with that. For these reasons, I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by Baroness Grey-Thompson

At end insert "but do propose Amendment 24B as an amendment in lieu"

24B* Page 21, line 7, at end insert-

"( ) Notwithstanding subsection (1), the Lord Chancellor's duty to a person eligible for legal aid advice under section 1(1) must include-

(a) a duty to secure the provision of initial face-to-face advice; and

(b) a duty to secure the provision of legal aid advice in a range of forms, taking account of the needs of the person eligible for such advice ("the client"), including-

(i) the client's vulnerability;

(ii) the client's capacity to represent himself or herself and communicate his or her case, including any written documentation;

(iii) the client's health (including mental health) issues;

(iv) the impact and consequences on the client, or his or her family, of failing to receive advice and assistance under this Part;

(v) the age of the client; or

(vi) that it is otherwise in the interests of justice."

My Lords, I thank the Minister and his team for meeting with me earlier today and also for the letter I received this morning which laid out, with much greater clarity, issues previously discussed. I believe the telephone gateway will be positive for many people, and perhaps would go so far as to say that, for some, it could be better. I welcome the details of the exclusions that have been given: where there is an emergency; where the client has previously been assessed by the mandatory gateway as requiring advice face to face; where the client has accessed face-to-face advice within the past 12 months and is seeking further help to resolve linked problems from the same face-to-face provider; where the client is in detention; and where the client is a child, defined as being under 18. Some of the reassurances that have been given are positive, but these are really around those with much less complex cases.

In previous debates I have spoken much about the cost to the system and to individuals. and I initially welcomed the call-back system that has been proposed. However, on reflection, I cannot imagine an individual with a complex need or a vulnerable adult requesting this call back on the promise of a return call-there is just too much at stake.

I still have some areas of concern. The first is the continuing use of the word "mandatory". I know that this is an operational matter; not only does it sound inflexible, it is. There are still many unanswered questions around the number of staff who will be employed, both in the first line and specialist operators, and also the cost. It is to be welcomed they will be trained in listening, but the areas of law they will need to understand will be extensive and complicated.

The Minister has provided more information on this, and while those who work in the call centre will not be under any time constraint to get through the call, there will be a significant amount of pressure on them not only to guide the client in the right way, but to ensure that the client has understood what they are being told. How will this be measured? Will it be on customer satisfaction, or will the number of cases that progress or do not progress be used in some way?

The Minister in his letter-and I believe this is telling-twice mentions the fact that the key test will be whether the individual is able to give instructions and act on the advice given over the telephone. I am extremely concerned that vulnerable people, with complex problems, will drop out of the system, even if they make it to the first phone call. Just finding the telephone gateway may be a challenge for some. The same can be said of the online form on the DirectGov website. They may not be able to do it themselves, nor find appropriate third-party support to offer help.

I know that the Government are committed to reviewing these operations, and to make adjustments if they are not working correctly, but we could be 24 or 36 months into a new system before the figures are gathered and we understand who has been able to access the right support. It is all well and good that a client who makes it through the first call may be directly transferred to a specialist adviser, I take this to mean within the initial phone call-but I am still unclear about the route through for someone who will be advised to go to a face-to-face meeting. The current system relies on the individual being given three local centres and then making the necessary arrangements, but surely the proposed system should be better than the current one. How will this take-up rate be monitored to ensure that clients have taken the steps they are entitled to, and what are the costs attached to them?

My last amendment was rejected under financial arrangements, because there is a cost to it, but what is the cost of setting up this mandatory telephone gateway and, if vulnerable people are not able to access legal aid, what are the potential costs that could be shifted to other areas such as local authorities or the NHS? I believe a little more flexibility is required to ensure that the most vulnerable are able to access the support they are entitled to. I beg to move.

My Lords, I listened carefully to what the Minister said and I am afraid that I am not satisfied that the arrangements she explained are anything like adequate to deal with the more difficult cases that will be presented to those on the telephone lines. Indeed, the problem is that they will not be presented at all. As one who spent a large part of his early days in the law trying to help ordinary people with their so-called ordinary problems, I know that there is much greater difficulty in getting instructions from inarticulate, anxious or unconfident people than well intentioned, middle-class people can believe.

It is simply unrealistic to say that when vulnerable people come on the phone there will be sympathetic people to direct them here, there or somewhere else because they will never get on the phone. The reason is that today the law is so complicated that the kind of people I am thinking about will never get to the point of understanding, in articulate terms or with any clarity, what their problem is. The only chance of them getting to that point will be if they get before a sympathetic person, in a sympathetic context, who has the skill-and it takes skill-to coax out of them just what is the problem. Everyone sitting in this place may say, "Well, for Pete's sake, they all go to school and have got technology that can do this and do that", but at least 10 per cent of our fellow citizens are not in that category-they are the most needy people-and a system which fails the most needy 10 per cent is simply unacceptable.

I do not mind how many reviews we have about this, this system will not work for those people. I know it. I worked with the Samaritans for years, and every Samaritan knows that for every one person who comes on the telephone there are many more who never even get that far.

I am afraid to say that I shall be in opposition to the Government's response to Amendment 24, the beauty of which was that it was the Lord Chancellor's duty to deal with people's needs by a range of forms. Such a system would be much more flexible. Indeed, the Minister, quite rightly, said that the need for every person to have face-to-face advice, as is required by subsection (a) of the proposed new clause in Amendment 24B, is too inflexible. However, by the same token, her argument that every case will be dealt with by telephone is too monopolistic and will not work for a very important slice of the population.

I ask all noble Lords to think of someone they know who does not have the confidence to speak up, the analytical ability to know quite what their problem is and certainly does not have the confidence to use this facility, well intentioned though it is. I hope the Minister will reflect on what I have said and, if she doubts me, talk to others who know more than I. Perhaps she will say in summing up what is now the position with the CABs and law centres. At least they have the facility for people to go in and meet other members of the public who work voluntarily for the CAB and have time. It can often take half an hour to find out what the problem is. Is the funding of CABs and law centres now assured so that they can do that?

My Lords, I agree with what the noble Lord has said. I can remember that many years ago, when I undertook my surgery in my constituency, people came there who were all too often inadequate, vulnerable and inarticulate. I do not know how they could have possibly represented their case on the telephone; they were afraid of the telephone. All I wish to say in my brief remarks is that I have first-hand knowledge of what the noble Lord has said and that what is now being proposed will affect such people. The majority of people who sought aid and assistance that they would otherwise not have received were incapable of representing their perfectly justified remarks.

My Lords, Amendment 24B improves on the original amendment rejected by another place in that it specifies the criteria that should be taken into account when determining the client's needs.

The proposed telephone gateway would simply not be a suitable means for many people to access legal advice. Among the groups which the amendment seeks to protect are those whose disabilities and frailties would prevent them from being able to convey their case across the telephone; those whose first language is not English; and those whose cases are so sensitive that they would be hindered in discussing the details over the phone. That could include clients who have experienced abuse, rape and those with HIV/AIDS conditions.

The Government's proposals have no regard to the individual circumstances of individual cases. People's dignity should not be compromised in order to make what are likely to amount to modest savings. Cases should not be unnecessarily prolonged by operators with little or no legal training. The Government should surely listen to the many voices that oppose these proposals and reform this risky scheme.

My Lords, I, too, have grave doubts as to whether a telephone helpline of the kind we are talking about can be regarded as fit for purpose if the purpose is to disentangle the client's case with empathy and give appropriate advice on it. The matter is made worse if use of the telephone gateway is to be made mandatory. There may be a place for a telephone gateway-it can have a role in filtering cases, as the Minister said-but it is surely entirely inappropriate that it is made the sole route to discriminating and informed advice.

This is not a matter of speculation for we have been here before and we know what we are talking about. I am talking about the experience that we had with the student loans company when it took over the administration of the disabled students' allowance. This was administered by a service staffed by the kind of people who will, presumably, be staffing the telephone gateway. They proved to have little understanding of or empathy with the kind of problems disabled students have and for which they were seeking the support provided by the disabled students' allowance. In fact they were inclined to make light of them and even suggest that the students were somehow swinging the lead or making unmeritorious excuses for financial support from the state.

Those applying for disabled students' allowance have much in common with the kind of vulnerable people we are talking about needing help with welfare benefits cases. I would not wish to place my confidence in a service of this kind as the mandatory gateway to legal advice and I do not think the House should either.

My Lords, it is rather disappointing to have to speak on this subject again. One hoped that the other place might take note of our amendment and carry it through. However, the noble Baroness, Lady Grey-Thompson, has in her usual clear and well expressed way explained that our concern is not with telephone services per se. That is not the point at all. All of us here know the value of telephone services. I saw it at first hand as a Minister and I am delighted that the noble Baroness quoted me in her opening remarks. I hope that that excellent work continues and expands-of course I do.

However, the point is that in a limited range of cases, whether classified by the type of person, such as those with communication problems, or by the type of case, such as very complex cases or cases that require searching through reams of papers to identify the nature of the real issue-a point that was made very powerfully by the noble Lord, Lord Phillips of Sudbury-it is counterproductive to expect someone to go through a telephone gateway. In those cases there should be a provision for face-to-face advice from the outset. That is hardly an unreasonable request. Indeed, it is common sense.

I am not the first and I will not be the last to remind the House that today is St George's day. Perhaps in rather a laboured way, I make the point that there is an English tradition of pragmatism, flexibility, seeing what actually works in the real world rather than what I fear is behind the Government's stance: too much inflexibility, a kind of didacticism and, as I have described before using a French expression, a rather dirigiste approach towards this issue. It is an issue that cries out for flexibility and trying various ways to make sure that people who need this help can get it. The noble Baroness made her case very powerfully indeed and other speakers have supported her. I very much hope that we can ask the other House to think again on this.

I end by reminding the House of powerful words spoken by the deputy leader of the Liberal Democrat party in the other place just last Tuesday. He had listened carefully and he said this:

"I was grateful for the Minister's reassurance, but I have to say that I am not persuaded. Like any MP with a constituency containing people from many different races and backgrounds, with many different first languages, and with all the disabilities that any mixed community has, I simply do not believe that a telephone route into deciding eligibility for legal aid is right for everybody. It may be right for many people, and I understand that it will be a good service, but if we ask constituents such as mine whether they have always been satisfied with the council response line-whether under Labour now, or with us running it, as previously-the answer is always no. That does not change, irrespective of who is running the show. I understand the Government's position and I hear what they say about a review, although I add a request for the review to be regional as well as general, but I believe that the Lords who pressed for amendment 24 have a well-made case. I shall support the Lords in respect of amendment 24".-[Hansard, Commons, 17/4/2012; cols. 206-07.]

I do not always, or even often, agree with the right honourable Gentleman who I have just quoted at some length, but on this I do agree and I very much hope that the House will too.

My Lords, I thank noble Lords for their attention to this very important area and I especially thank the noble Baroness, Lady Grey-Thompson, for her kind words to my noble friend about his engagement with her concerns. I have a note that I need to correct the figure given for the costs of the noble Baroness's amendment. The costs are likely to be in excess of £20 million per annum for both civil and criminal legal aid-I need to clarify that.

In reaction to what the noble Baroness, Lady Grey-Thompson, said, I point out that stage one is where people come in and it is decided whether they need to go through the telephone system. Stage two is the detailed case assessment of suitability.

To my noble friend Lord Phillips I point out that the kind of cases to which he points may well be those that are then directed towards face-to-face advice. It is extremely important to bear in mind the flexibility that is built into this system and to contrast that with the lack of flexibility of insisting that the advice is face to face. This system means that when people are taken into the telephone system their cases can be assessed to see whether they are suitable for phone advice or face-to-face advice.

I did not explain myself adequately. I was trying to get across the point that people will not get as far as a telephone. That is the problem. Once they are there, I absolutely think that what my noble friend has explained to the House is fine. However, I am talking about the people who, for the reasons I tried to explain, will not have the confidence or the competence to say what their problem is over the phone because it is often so damn difficult to do so.

I understand what my noble friend means about getting to that point. I ask him to ask himself how they would get to face-to-face advice. There they are with a major problem. They may very well end up in a CAB, in which case the CAB may assist them in phoning the telephone gateway and may indicate in its call that this is a suitable candidate for face-to-face advice. My noble friend needs to go back a bit and ask how the person who is in such circumstances will access any advice and then see how this may route them through to the kind of suitable, appropriate and flexible advice that I hope I have laid out.

However, where someone is incapable of expressing themselves-I remember having to listen to such a person for more than an hour-would they not be excluded from what is being proposed?

Let us assume that that person has come to you as a constituency Member of Parliament-I think that is the kind of case the noble Lord is talking about. Again, the Member of Parliament could phone the helpline and say that, for the reasons given by the noble Lord, in this case the person is likely to need face-to-face advice. If someone else, such as a family member, were to phone up, it would become apparent that the person in question could not do this. For those reasons it becomes apparent that this person is going to need face-to-face advice.

As I said in my introductory remarks, there are clearly cases where, for all sorts of reasons-and noble Lords have experience of these kinds of cases-that person will not be best helped by the telephone. In other cases that might be exactly what a person prefers: the distance of telephone rather than face-to-face advice. They might not be able to get to wherever the face-to-face advice is, or they might find that Skype is what they want to use.

The other point to bear in mind is the provision of language translation. Some 170 languages can be provided on the phone line, and very few CABs or constituency advice surgeries have that kind of provision; so there are certain advantages to that provision that might be of help to other cases. The important thing to remember in all this is the equality duty-the diversity of people and their situations and our obligation to address those needs. Those needs will need to be met in different ways, and that is built into how the system operates. The very fact that the Samaritans have been involved in training the operators is an indication of how seriously we consider the responsibility towards people with those diverse needs. Of course, the Samaritans operate a phone system for their own advice line.

I assure the noble Lord that there will be no restriction on the length of time that a person can speak to a caller. If that is the problem-that it is a matter of time-it will not kick in here.

My noble friend Lord Phillips asked about the Budget, which announced £40 million and £20 million in each of the remaining years of the spending review. I think he sought assurance of provision for the CABs.

I have emphasised how operator service staff and specialist telephone advisers will be trained to be aware of the needs of callers, especially those with mental health and learning impairment problems. There will be reasonable adjustments and adaptations available to assist callers, including provision for a third party such as a family member to call on an individual's behalf. As long as a person authorises someone to call on their behalf, the third party could equally be a member of a CAB or other support or advice service. If the caller is assessed as unsuitable for telephone advice, they will still have access to face-to-face assistance and be referred directly to that provider. That is an improvement over the current situation, in which they might be given three phone numbers of advisers whom they then have to contact. Again, they have to use the telephone to set up these appointments, whereas with this they could be referred directly to that provider and will not have to find the face-to-face provider themselves from those phone numbers, and those providers will have to make contact back to the person.

Noble Lords might bear in mind how flexible the system is within the new arrangements. In December, the noble Lord, Lord Bach, referred to the satisfaction rates with both the existing community legal advice helpline operator service and the specialist telephone advice service; 96 per cent of respondents found the operator service helpful, and the 2010 survey of clients advised by telephone showed that 90 per cent of respondents found the advice provided helpful. That is a very encouraging response.

As I emphasised, and as we will continue to emphasise, we will keep this under review so that we can make sure that it is working as effectively as possible. As my noble friend Lord McNally assured the House, I assure noble Lords that the telephone gateway will apply initially to only a limited number of areas of law and will be monitored from day one. Noble Lords have picked up on the review, but I assure them that we will keep a watching brief over this from the very beginning to make sure that it is working well. The engagement with stakeholders that has already taken place and the need to make sure that everyone's needs are addressed is a reflection of that. I can give that further assurance.

I hope that noble Lords will support the Government in this area.

I am sorry to interrupt my noble friend again, but can she tell the House that the review will be undertaken by an independent experienced reviewer?

My noble friend assures me that we will review how this is working and publish the findings. I am sure that noble Lords will scrutinise that with the greatest of care. I reiterate that the operation of the system will be monitored from the very beginning. Therefore, noble Lords do not need simply to wait for the review at the end of two years to make sure that this is working in the way that we trust will assist people, as opposed to raising the concerns that noble Lords have expressed. I hope that the noble Baroness will be able to withdraw her amendment.

I thank noble Lords who have taken part in this afternoon's debate, in particular the noble Lord, Lord Phillips of Sudbury. Not for the first time, I wish that I had trained in the law rather than doing a politics degree. I accept that my wording could be slightly better but, as the noble Lord, Lord Wigley, said, it has been improved since the last time I moved the amendment.

It seems that we are stuck in two slightly inflexible viewpoints. I wholeheartedly agree with the noble Lord, Lord Low, when he says that there is a place for a gateway. However, I also believe that there is a place for something else to help the most vulnerable. One idiosyncrasy of this system is that an individual could go into a citizens advice bureau and ask for help but be told to ring a phone number and be sent away. In an ideal situation, that person would be able to stay in the citizens advice bureau and make the call from there, and could even have that third party support. If they are sent away, they may take that to mean that they are not eligible or that they do not understand some of the issues.

I thank the noble Baroness, Lady Northover, for her comments. It is probably not the right time to debate this, but now that we have a system that can be accessed on the internet through www.directgov.com or by Skype and through phone calls-there is information coming back and forth-I wonder whether there are not almost too many options for people. Perhaps a gateway and the potential for a face-to-face interview might be the simplest way to do it.

I go back to the point made by the noble Lord, Lord Phillips of Sudbury. I am sure that everyone in your Lordships' House knows one, two, or maybe more people who would struggle to make that first contact and might drop out of the system, finding it too much to cope with, and would therefore not be able to access the help that they need. So as much as there has been some positive movement today and some very positive comments, I am not reassured that the most vulnerable would be supported through this system. Very reluctantly, I wish to test the opinion of the House.

Division on Motion D1.

Contents 231; Not-Contents 243.

Motion D1 disagreed.