Motion to Approve

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013 – in the House of Lords at 11:38 am on 27th March 2013.

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Moved by Lord McNally

That the draft regulations laid before the House on 4 February be approved.

Relevant documents: 20th Report from the Joint Committee on Statutory Instruments.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords 11:39 am, 27th March 2013

My Lords, in moving the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013, I shall speak also to the draft Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013. The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 amend the Civil Legal Aid (Merits Criteria) Regulations 2013, which I brought before the House on 3 December. These amendment regulations fulfil a commitment I made in response to concerns about the effect the regulations, as originally drafted, would have on the availability of legal aid for judicial review.

Regulation 53(b) of the Civil Legal Aid (Merits Criteria) Regulations 2013 provided that the director of legal aid casework had to be satisfied that all administrative appeals and other alternative procedures which are available to challenge the act, omission or other matters had been exhausted before legal representation could be granted for such public law claims. This was drafted as a test without exceptions, and we suggested that the director would need to consider whether such an alternative route was, in fact, realistically available. The policy intention underpinning Regulation 53(b) is that if there is, for example, a welfare appeal that can overturn the decision, generally that would have to be followed instead of a judicial review of the DWP being sought.

The noble Lord, Lord Pannick, and others expressed concerns over the differences in approach between Regulations 53(b) and 39(d). Regulation 39(d), which covers pre-proceedings alternatives, only requires that such alternatives are pursued when it is “reasonable” to do so. I therefore undertook to bring forward amending regulations to introduce a discretion in Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would be effective in providing the remedy that the individual requires. These regulations fulfil that undertaking.

The amendment does not specifically include the word “reasonable”. Although reasonableness is used in other areas of the regulations, we consider that it is too wide a concept to use in this provision. Instead, we have tried to reflect the circumstances in which it would not be reasonable to require the alternatives to be pursued, and to base the criterion on those specific circumstances—that is, where the alternatives would not be effective in providing the remedy that the individual requires, in the view of the director. That includes where alternative court or tribunal proceedings cannot deliver the whole remedy the individual requires or cannot deliver it quickly. I consider that that this meets the concerns raised previously.

I turn now to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013. Before I explain the four changes that this order makes to Schedule 1 to the LASPO Act, I wish to address the regret Motion tabled by the noble Lord, Lord Bach. The regret Motion relates to the concession which would have made legal aid available in relation to a review by the First-tier Tribunal, where it had identified an error in law in its own decision on a welfare benefit appeal. This was voted down by the House on 3 December last year and, as I made clear before the House voted, and again on 8 January this year, the Government have no intention to bring forward another order on this point. That remains the case.

I turn now to the order itself. First, it modifies Part 1 of Schedule 1 to the LASPO Act 2012 and makes legal aid available for advice and assistance for appeals on a point of law relating to council tax reduction schemes in the High Court, as well as advice, assistance and representation in relation to such appeals in the Court of Appeal and Supreme Court. The council tax reduction scheme will replace council tax benefit, which is being abolished in April as part of the welfare reforms. This provision therefore ensures that equivalent civil legal services are available for onward appeals relating to council tax reduction schemes as are available in relation to council tax benefit. To be clear, this part of the order does not change the scope of legal aid but is a technical change that maintains the position under the LASPO Act 2012.

Secondly, the order amends the definition of domestic violence in the Act. This will bring the definition into line with the updated cross-government definition of domestic violence which comes into force on 31 March. It adds the words “controlling, coercive … behaviour” and “pattern of incidents” to the existing definition. The definition of domestic violence in the Act applies to private family law and immigration cases under paragraphs 12, 28 and 29 of Part 1 of Schedule 1 to the Act, which provide for legal aid for victims of domestic violence in such cases. I hope that this will be welcomed across the House.

Thirdly, the order brings into scope certain applications to meet our international obligations under the 2007 Hague convention, which we expect will come into force in April 2013. The convention concerns the international recovery of child support and other forms of family maintenance. It sets out certain requirements for the provision of legal aid in relation to the recognition, enforcement or establishment of a decision in relation to maintenance. These are reciprocal arrangements for signatory countries.

The convention is broadly equivalent to the EU’s maintenance regulations for which services are already made available under Schedule 1 to the LASPO Act. In fact, most countries that have signed the convention will already be covered by the EU maintenance regulations, with a few exceptions such as Norway.

Finally, the order before us addresses a technical issue in relation to legal aid for judicial review. In our consultation response on legal aid reforms, we confirmed that legal aid would be available for judicial review subject to a few, very specific exclusions. That remains our position. This is reflected in paragraph 19 of Part 1 of Schedule 1 to the LASPO Act, which puts within scope legal aid for judicial review in almost any area bar the exclusions debated and agreed by Parliament.

However, an arguable effect of how the LASPO Act is drafted is that judicial review may be in scope for any area of law listed in Schedule 1 despite the exclusions in paragraph 19. Therefore, this order simply makes a technical amendment to ensure that judicial review is governed exclusively through paragraph 19, and the specific exclusions have the effect intended. I beg to move.

Amendment to the Motion

Moved by Lord Bach

To move, as an amendment to the above Motion, at end to insert, “but this House regrets that Her Majesty’s Government have responded to the opinion of this House, as expressed in a vote on 3 December 2012 on a fatal motion in respect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012 on inadequate provision for legal aid in first tier tribunal cases, by bringing forward this order which excludes even that limited provision.”

Photo of Lord Bach Lord Bach Labour

My Lords, I hope to move this regret Motion in an entirely non-partisan manner, because this matter in my view affects the whole House and its reputation and it is not meant in any sense as an attack on the Minister, who has been on the side of the good within the department in trying to make sure that this ghastly Act of Parliament was modified.

Some noble Lords may remember the background to this state of affairs and others will not, so I hope that the House will forgive me if I set out as briefly as I can what has happened and why I believe that, in this case, the Government have behaved in a manner that has offended both against the constitutional arrangements that bind our country together and, importantly, against a small group of our fellow citizens who have been deprived of a legal right that they were promised by the Government.

The story begins on 17 April last year, when, in another place at the ping-pong stage, the then Lord Chancellor made an important concession to ensure that the LASPO Bill got through. An amendment had been put forward there to allow legal aid for welfare benefit reviews and hearings, supporting an amendment already agreed in this House and moved by the noble Baroness, Lady Doocey. To prevent that amendment succeeding, the Lord Chancellor made it clear that Her Majesty’s Government would compromise and allow legal aid for legal advice at First-tier Tribunals in cases where a point of law arose. He wanted time to ask his department about the best way of implementing the pledge. He was given that time, in due course the Bill became law, and we waited for the pledge to be implemented.

A Written Ministerial Statement appeared on 18 September last year. Surprisingly, this Statement did not announce how the major concession, which had been pledged by the Lord Chancellor, had been put into effect. Instead, in its place, a new—I would say minor—concession was announced that would affect many fewer people but would arise in a limited number of cases before the First-tier Tribunal. These were called errors of law cases, and according to a parliamentary Written Answer given to me by the Minister on 23 November last year, there were 692 errors of law cases in the year 2011-12, and 173 between April and June 2012. Of course, not every case would involve legal aid being granted, but—this is important in my submission—some would. If no one was to benefit, why would the Government have put forward this minor concession at all?

As the Minister just told us, on 3 December last year, the Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2012, which included the minor concession, was debated in your Lordships’ House. I tabled an amendment that declined to support the regulation because, first, it did not fulfil the Government’s undertaking in the Commons on 17 April and, secondly, it would mean that claimants would not receive legal help on a point of law. The debate followed. It was crystal clear that all those who spoke in favour wanted the Government to withdraw the regulation and come back with something a little more generous. They were definitely not arguing for there to be no concession of any kind, which would have been an absurd position for them to have taken. We were saying to the Government, “Keep your word, and if you can’t do that, come back with something a bit more generous”. My amendment was supported by speeches from around the House, including those of the noble and learned Lords, Lord Woolf and Lord Goldsmith, and the noble Lord, Lord Pannick; and, from the Liberal Democrat Benches, those of the noble Lord, Lord Phillips of Sudbury, the noble Baroness, Lady Doocey, and other noble Lords. In the event, the Government refused to do what was asked, and the regulation was defeated, by 2,001 votes to 191.

Noble Lords:


Photo of Lord Bach Lord Bach Labour

My Lords, I apologise—it is nearly the end of term. I meant 201 votes to 191. I was about to say, that in the somewhat heightened minutes before the vote was held, which were a good deal more heightened than they are at present, the Minister warned—or, to use another expression, threatened—that a vote against the regulation would not necessarily result in a better offer. He did so in such a way, if I may say so, that some noble Lords may even have been swayed to vote for my amendment and against the regulation.

The Government did not decide there and then not to come back with a further regulation. Indeed, on 18 December, 15 days after our debate and just before the Christmas Recess, the Minister’s Secretary of State—now the Lord Chancellor—the right honourable Chris Grayling, was asked in the Commons at Justice Questions about this very point. My honourable friend Andrew Slaughter MP said:

“The proposals finally brought forward were so inadequate that two weeks ago their lordships voted them down and told him to come up with something better. Now we hear that the Secretary of State, in a fit of pique, intends to do nothing at all. Why is he breaking a promise to Parliament and to some of the most destitute and vulnerable people in the country?”.

The Lord Chancellor replied:

“As the hon. Gentleman will be aware, we have promised to consider the decision by the Lords. I was a little surprised to see the rather unusual step taken in the other place of voting down a statutory instrument that was granting a concession, but we will of course review the issue and decide how to proceed”.—[Hansard, Commons, 18/12/12; col. 694.]

In the new year, on 8 January in this House, the Minister, in reply to an Oral Question, said that the Government would not be putting forward another regulation.

As so often in this House, the noble Lord, Lord Pannick, who cannot be in his place today, put the killer question that, in my view, the Minister cannot answer. He asked:

“Given that the House rejected as inadequate the limited concession on legal aid in First-tier Tribunals, is it not truly perverse for the Government to respond by withdrawing even that?”.—[Hansard, 8/1/13; col. 13.]

Why is the Government’s behaviour so perverse? Why am I arguing that their line, not to put forward another regulation, is so wrong? It is for two reasons. The first is the constitutional offence that has been caused to Parliament. The Executive are supposed to be subject to Parliament. Parliament’s wish that a more generous concession was required was clearly expressed on 3 December; it cannot be more clearly expressed than by a vote of a House of Parliament. The House voted for this.

The Government could have brought back their minor concession if they had wanted to. For them to refuse to bring back anything else is—I choose my words with some care—treating Parliament with contempt. It is saying to Parliament, “We are the masters, not you. We don’t care what you say, we will do what we want”. I liken it to the behaviour of a spoilt child who cannot get his way. The conduct is more that of a playground bully than a mature, grown-up, confident, democratic Government. What has happened here is dishonourable, and my amendment rejects this behaviour.

The second reason, which is perhaps as serious, is that two groups of people who were led to believe that they might get legal aid for advice for First-tier Tribunals—those with a point of law and those in error-of-law cases—have had their legitimate expectations removed by Her Majesty’s Government without any consultation. Why? For the first group, the Government would cite the cost and say that they could not afford the major concession offered by the right honourable Kenneth Clarke in April last year, but what is the reason for this second group? It is not a big group, but it undoubtedly includes some people. Is cost the reason? We have never been told the cost of this minor concession. Or is it—I am afraid to say—just plain spite? That is unattractive in an individual and just not acceptable in a Government. This meanness of spirit is and should be offensive to this House and to the wider world.

I feel strongly that the civil legal aid cuts that will come in on 1 April, in a few days’ time, will demean the reputation of our legal system. I feel even more strongly that in this limited case—I do not want to claim more for it than actually exists—the behaviour of the Government towards Parliament, towards this House in particular and towards its citizens is unacceptable. I beg to move.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 12:00 pm, 27th March 2013

My Lords, the speech we have heard from noble Lord, Lord Bach, is very sobering, and although he put it forth in no spirit of partisanship, some of the language was, if I may say so, overcoloured. I do not think that to accuse the Government of spite is reasonable, but I accept that for us apparently to deprive those covered by the Motion, who have suffered at the hands of a First-tier Tribunal where there has been an error of law in the decision, seems, to accept the noble Lord’s word, perverse.

I used to have an office overlooking the Old Bailey, and I never forget the motto over the portal of the Old Bailey. It reads:

“Defend the children of the poor & and punish the wrongdoer”.

If ever there is a category of cases where the children of the poor are likely to be engaged, it is this one: welfare law cases.

I shall listen very carefully to what my noble friend has to say in response to the case put forward by the noble Lord, Lord Bach. My mind is not finally made up, but I must be frank with my noble friend. This seems an extraordinary error of both judgment and justice. We boast endlessly in this country about our justice system, on the whole with reason. I cannot begin to get my head around denying people who have suffered a reverse in the welfare tribunals legal advice on a point of law. I hope that my noble friend will have a compelling argument to bring forth. In particular, it would be very helpful for the House to know just what the cost is, or would be likely to be, if the provision were withdrawn. I very much hope that if the Minister cannot give a satisfactory riposte, the Government will think again, even at this late stage. Sometimes numerically small issues mark a culture, a society, a Government, and this seems to me to be laden with that significance.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Justice)

My Lords, this debate consists of two parts. The first is the regret Motion tabled by my noble friend Lord Bach, which deals with a particular decision. I do not want to say any more about that other than that I entirely support the magisterial rebuke that he administers not to the Minister, who of course does not have a free hand in these matters, but to the Government at large for denying a modest concession to about 300 people, the cost of which, to refer to the question asked by the noble Lord, Lord Phillips, must be minimal, in what can only be described as a governmental fit of pique.

Having said that, I turn to the second more general issue that is encompassed in the broader merits regulations and the position of welfare law claimaints in general, who are significantly affected by the changes that are now under way. Hitherto, about 30,000 people have benefited from welfare legal aid and advice, usually, although not exclusively, provided by voluntary organisations, notably the citizens advice bureaux. I place on record my gratitude to the bureaux for furnishing the information that I am about to relate, in part at least, to the House. The situation now is that instead of 30,000 people getting that advice, 3,200 will receive advice and support in respect of Upper Tribunal matters only. There will be no assistance in their case at the first tribunal. There are two aspects to this, a supply side and a demand side, and I shall begin, rather perversely, with the second, which is the demand side.

We are dealing nationally with a group of significantly disadvantaged people. I am informed by the bureaux that some 68% of current welfare legal aid users have a disability. In addition, there will be many with literacy and other problems and vulnerabilities; indeed, they are a significantly high proportion of those who seek advice. They seek advice about their entitlement, but also about the processes that are, to put it mildly, complex. I can illustrate that with one of a number of cases the bureaux have briefed me and my noble friend on. I shall pick the shortest so as not to delay your Lordships any further than necessary.

In one case, a Welsh bureau advised a 57 year-old woman with multiple disabilities who received employment and support allowance and council tax benefit. She made a claim, did not seek advice when completing it and as a result underestimated her needs, in particular her mental health issues. Here, again, I underline the point about the degree of vulnerability of some of these claimants. She attended a medical assessment and was judged to have scored no points. She appealed that, attended a First-tier Tribunal in 2012 and was awarded nine points, but was not awarded any help with the mental health conditions, despite a letter from a GP saying she had a long-term mental health condition and despite the fact that the letter said she was suicidal some months before that decision. The bureau then advised her on looking for options for appealing the decision to the Upper-tier Tribunal. She would have had no help at all from the bureau in the present circumstances if the bureau’s capacity to give it was limited, as it is likely to be.

In effect, legal aid and advice is now limited to the second stage, the onward appeals tribunal. This is not consistent with the intention Parliament originally expressed in respect of first-tier cases where at least basic advice and support on a number of procedural issues, such as a request for a statement of reasons from a first tribunal, seeking leave to appeal from the first tribunal and other aspects—lodging documents and so on—should be covered. Unless these stages are included within regulations, it is unlikely that anybody seeking to appeal, assuming they know of their rights to appeal, would be able to progress from the first tier to the second tier unassisted. That is the second stage.

I now turn to the supply side. There is a growing crisis in the sector. There is no doubt about that. Citizens advice bureaux and other organisations are suffering significant reductions in funding from national and local government, the latter of course having been awarded a further 2% cut in government grant in the recent Budget, so things are not going to get any better for some time in that context. The problem now is that bureaux are disposing of staff. My bureau in Newcastle has had to rid itself of the equivalent of three and a half full-time legal advisers, the bureau in Gateshead is closing, and this pattern is being repeated all over the country. It has to be said that some bureaux continue to provide pretty much a full service, but increasingly the pressure is resulting in a substantial decline in the capacity of the organisations to meet the demand, which is likely to rise, not least with the Welfare Reform Act changes that are about to strike hundreds of thousands, if not millions, of people.

The process now is that the contracts to provide this service for the only part that is to be covered by legal aid, the Upper Tribunal, are being let in a very curious system. I did not know about this until a couple of days ago. Apparently there are to be only four areas in which these contracts will be granted for the whole country. I am not sure whether Scotland is included, but certainly England and Wales are divided into four areas under which a contract will be let. A tendering process will commence and it is intended to be completed in October.

What is to happen in the mean time, between April and October, given the pressure on the budgets of the CAB and other advice agencies, remains to be seen, but there must be a significant worry that there will be difficulties in dealing even with appeals to the Upper Tribunal pending the allocation of contracts. Certainly there is a good deal of concern in the sector about that, because in the mean time several hundred welfare law contracts, which are not currently distributed on the basis of just four contracts for the whole country, will come to an end. So there is a really significant problem immediately on the supply side.

The four areas—it is clear that Scotland is not included—are the north, the Midlands and the east, the south-west and Wales, and London and the south-east. These are huge geographic areas. The CAB says that the contracts will require that:

“The applicant must be able to provide face to face services from locations and access points across the whole area, as well as delivering remote advice”— that says it all, really—

“and interacting with the civil legal aid (CLA) helpline; no subcontracting is submitted and the applicant must be a single individual”.

A very strange market is going to develop in which only four organisations will be involved. One imagines that organisations such as Group 4 and Atos, which have covered themselves in glory in recent years, will be rushing forward to supply this important and sensitive service.

The contracts themselves are very limited. For London and the northern procurement areas, only 1,035 cases are assumed to be included in the contract. The other two areas have 600 and 90 each. That is minimal in the face of the likely demand. It certainly does not take us beyond the current 3,200 people who get legal aid and advice for the Upper Tribunal. There is no flexibility in that. If you have only that small number of cases you will have only two or three specialist advisers covering areas as vast as those that I have described. Remoteness is indeed going to be evident. How on earth can two or three people sensibly look to face-to-face contact with appellants over an area as wide as that? Yet that is what the contracts are heading towards.

Will the Government look again at support for the advice sector, and the contract in particular, first, to ensure that services are maintained on the present basis between 1 April and the date on which the new contract comes in? That will be difficult because people will be looking for alternative employment. If the contracts are going to involve only 12 people nationally, people who are currently engaged locally on this kind of work are going to be looking for other work. I hope that the Government will provide some temporary support at least for the continuation of that service. Secondly, will they look again at this ridiculous pattern of four huge areas served by a handful of people? I cannot believe that the Government seriously think that this is the way to support people of the kind that the CAB describes, which I related to the House, who desperately need personal contact if they are to have their cases heard.

Of course, we are not voting on the regulations as such. I believe that the Minister will be sympathetic to the issues I have raised. I hope he will take this back to the department and that we can have some changes: first, some reconsideration, preferably with proper discussion with the sector about how it might work; and, secondly, a review of whether the contracts should go ahead on the present basis. I certainly hope that the Government will have second thoughts about this matter.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords 12:15 pm, 27th March 2013

My Lords, I thank the contributors to this debate. I have listened carefully to the points they have made. Perhaps I could turn first to the important issue raised by the noble Lord, Lord Bach, on how Parliament does its business and the consequences of its decisions. I would simply remind your Lordships—and the noble Lord had the honesty to do so—of what I said before the House voted on 3 December:

“My Lords, we are almost on the verge of another financial Statement by the Chancellor. I have made it clear that the noble Lord must not lure the House into an idea that following him into the Division Lobby will produce a better offer because it will not”.—[Hansard, 3/12/12; col. 490.]

I do not know how a Minister could be clearer in asking the House to consider that before voting.

Another point is that what my right honourable friend the then Lord Chancellor promised was to use his best endeavours to look for a concession. He came back with a concession which made its way into the final Act passed by Parliament. If the Opposition Front Bench ever returned to this side of the House, they would be as reluctant as we are to have reopened debate on the final settlements in any legislation by the use of fatal Motions. I believe that that would prolong the issue and put pressure on every Opposition to say, “The matter is not closed. You could pass a fatal Motion and that will get us a better offer”. I do not think that is the way that government can operate. The offer was made in good faith after exploring the consequences of the other options. As I say, it would set a precedent for keeping debates running and keeping up pressures which, quite frankly, Oppositions would eventually find difficult to handle. The pressure groups, which quite legitimately keep the pressure on us, would say, “Well, it is not closed now because you could pass a fatal Motion”. That is the point.

It is always flattering to suggest that, secretly, I do not agree with the decision, but I actually do and in part because of my capacity as a business manager in this House. I believe that we gave the House a clear understanding of the consequences. The House took its decision, and that is how the Act is now set.

Turning to the running programme of criticisms from the noble Lord, Lord Bach, again I make no complaint about them. I have said previously that it has been a very strong parliamentary performance, which is absolutely right for someone in the Opposition involved in these areas. I would say, though, that in 2010 we were faced with the situation in which there were going to be considerable cuts in government expenditure. The Ministry of Justice was faced with a budget settlement that had been cut by 23% and, as I have said, it is a department that spends money only on prisons, probation, court services and legal aid.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

Will the Minister confirm that the Government have just announced that they are going to spend somewhere between £100 million and £200 million on the modification of the Olympic stadium for the benefit of West Ham United Football Club? Why are the Government so open-handed in their funding of access to sport but so cruelly restrictive in their funding of access to justice? What scale of values does that represent? Should equality before the law not be a non-negotiable and irreducible value?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

That is the point that I was going to make. The noble Lord is extremely good at self-righteous debating points; I almost admire him for that. The fact is, though, that he has been in departments and he knows that they accept budget targets and have to look through their own expenditure.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My criticism was of the Government, and the Minister speaks on behalf of the Government.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

The noble Lord knows how Governments work, and spending reviews are carried out by individual government departments. He was responsible for the arts budget, fortunately in happier days with regard to spending. Individual government departments have to take hard decisions. It is an old scheme in government to say, “Oh well, of course defence spends this much more”. You have to make the decisions, and we had to make decisions about the scope of legal aid.

We tried from the beginning to ensure that there was a logic to what we were doing, in that—I have just been handed a little guide to it—we prioritised civil legal services so that they would be available in the highest-priority cases: where people’s life or liberty was at stake, where they were at risk of serious physical harm or the immediate loss of their home, or where children may be taken care. That has undoubtedly meant cuts elsewhere, which the noble Lord, Lord Beecham, outlined, although the dividing line between legal advice and advice sometimes gets blurred.

I should also make the point that the universal credit is not a big bang; it will be phased in over a number of years. Of course we will keep a very close eye on how these things develop and the impact that they have.

I make this point again to the advice services: I know that CAB and others have been formidable lobbyists, and again I make no complaint about that, but the advice service is no more spared from the cuts that have affected this area than my own department is or than local authorities are. We live in hard times as far as these bodies are concerned, and we are trying to give money to the advice sector to help them reorganise and adapt to new circumstances. We will continue to do so, but we cannot immunise them from those impacts.

One of the oldest members of my flock, my noble friend Lord Hutchinson of LullingtonJeremy Hutchinson QC—sadly no longer attends the House for what I think is the entirely bogus reason that he is 96, but he is as sharp as a tack. He was involved with the Bar in the setting up of legal aid in 1948 and told me, “We really thought that we were creating a National Health Service for the law”. That was an extremely noble aspiration. However, I have also found, particularly since 2010, that given the financial circumstances that we inherited, not just this Government but the previous Government had been looking at whether some parameters had to be set on the provision of taxpayer-funded legal aid. I hope that in taking these measures forward we can engage in attempts to get some kind of cross-party consensus on society’s commitment to legal aid.

In a discussion that the noble Lord, Lord Bach, and I had at University College recently, I said that if he were here in 2015, and he asked Chancellor Balls, or whoever, for £500 million to restore the legal aid cuts, I did not think that he would get a very promising answer as the same economic constraints and realities would still apply. However, there is an interesting debate to be had about the future of legal aid and our national commitment to it. Thus far, we have made hard decisions but I want to make sure that as far as possible we are not left with rough justice.

On the point made by my noble friend Lord Phillips, we will keep the matter under review. I have asked all the various sectors of the MoJ that deal with these matters to keep monitoring the measure’s impacts and effects from day one. I know that noble Lords on all Benches will want to see how this works out. However, I believe that we have done the best we can in difficult circumstances.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

Before my noble friend sits down, will he answer the question that I think was put by the noble Lord, Lord Bach, and certainly by myself: namely, what broadly is the cost of allowing advice to be given to those few hundred people who want to appeal on a point of law against a tribunal decision on welfare law?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

I think a rough estimate is that it is probably less than £1 million. It was a very small concession, but it was not me who withdrew it.

Photo of Baroness Whitaker Baroness Whitaker Labour

Before the noble Lord sits down, I am not sure that he quite dealt with the point made by the noble Lord, Lord Phillips, about a culture change. Does he not agree that these regulations mark a complete reversal of our prior ideas about access to justice and equality before the law?

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

No, that is why I want to invite a discussion. The term “access to justice” is bandied around very freely. I do not want to provoke him but I see the menacing figure of the noble Lord, Lord Richard, just behind the noble Baroness. He would probably agree that access to justice and access to taxpayer-funded legal aid have never been the same thing and we must not get them confused. Every Government have had to limit this provision. Oh, my God, I see that the noble Lord wishes to speak. As I say, they are not the same thing, but I want this Government and successive Governments to keep the concept of access to justice very much to the forefront of their commitments to the citizen. However, that may be done by adapting the system in a whole manner of ways: for example, in the way that advice is given. The noble Lord, Lord Beecham, was rather dismissive of remote advice, but I think that the use of new technologies will give better access to justice. However, having provoked the noble Lord, Lord Richard, I will give way to him.

Photo of Lord Richard Lord Richard Labour 12:30 pm, 27th March 2013

I am flattered that the noble Lord should find me menacing. Does he not see that there is a clear distinction between access to justice and access to legal aid? Does he not see that in certain circumstances certain people who are denied legal aid are denied access to justice? That follows as night follows day. If someone cannot afford to go to the courts in order to get justice, that is denying them justice.

Photo of Lord Richard Lord Richard Labour

When a tribunal is involved, it is not a question of advice but of having to go to a tribunal to get a decision. That is where the justice comes from—the decision of the tribunal, not the advice that one is given before one gets there. Surely the noble Lord sees that distinction.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

Built into the system are corrections to the tribunal. The noble Lord will know that the tribunal system was initially conceived as a relatively lawyer-free zone where people could make their case. The other part of our reforms of justice is, in a whole range of measures, to offer different forms of mediation and arbitration that reduce what was becoming an over-lawyered system, including in tribunals.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

I am sorry to intervene again on my noble friend, but it is not fair to say that the tribunals introduced a lawyer-free zone. The point of this debate is that it is in respect of issues of law in relation to tribunals that advice is plainly needed from lawyers. That is ineluctable.

Photo of Lord Bach Lord Bach Labour

My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

Will the noble Lord give way to allow me to make one point? I know that he wants to make a political point.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

Well, all right, he wants to make a point. I was at a call centre on aid the other day. I listened to one call in which a lady said, “I know that they are bringing this legal aid to an end”. That is what worries me. I know that criticisms have to be strongly put but we must not make people think that we are ending legal aid. At the end of this process, we will be spending £1.7 billion on legal aid. We will still have a substantial amount of taxpayers’ money going into welfare legal aid. By all means attack the decisions but do not leave people with the idea that legal aid is not available, because it is.

Photo of Lord Bach Lord Bach Labour

I am grateful to the Minister, and I am grateful for what he said earlier. There is £1.7 billion left, of which approximately £1.2 billion is spent on criminal legal aid, which leaves for civil legal aid—including public family law and asylum law, which remain in scope—precisely £500 million. Social welfare law was always a small part of the legal aid budget. It is now going to be a tiny part of it. That is my criticism of the measure. It is bad for the high reputation of our legal system.

For the moment, that battle has been lost, but only for the time being. I do not share the Minister’s pessimism that no future Government, perhaps even a Liberal Democrat Government, will bring back some sort of proper legal aid in social welfare law. That may well happen. I know that this House, in its heart of hearts, regrets what is happening on 1 April. However, my amendment to the Motion does not seek to turn back that clock but to point out a particular act of what I consider to be meanness by the Government towards that very small group of people that the noble Lord, Lord Phillips of Sudbury, mentioned. It is also, if I may say so, an insult to Parliament.

The Minister is absolutely right about fatal Motions. They should be used sparingly. But when such a Motion is passed by a House of Parliament, as was the case on 3 December last year, it is incumbent on a democratic Government to take some notice of it rather than just dismiss it. I pray in aid the last time it happened in this House on 28 March 2007, almost exactly six years ago, when the Labour Government’s gambling order was defeated in this House. How did the Government respond? They responded effectively by changing their policy as a consequence of that decision. I do not ask the Government to change their policy. I just ask them not to take—

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

I am sorry to intervene and I do not want to prolong the debate. However, as the noble Lord knows, I was intimately involved in the passing of that fatal Motion, which stopped the super-casino going to Manchester. The outcome of that Motion was that the Government did not bring back their proposal. That is exactly what has happened again.

Photo of Lord McNally Lord McNally Deputy Leader of the House of Lords, The Minister of State, Ministry of Justice, Liberal Democrat Leader in the House of Lords

Oh yes; it is four-square. The House took a decision and the decision stood. That was the case with the decision made on legal aid.

Photo of Lord Bach Lord Bach Labour

I do not think that the Minister can really get away with that. The Government changed their policy as a consequence of the House of Lords vote. On this occasion, the Government have said, “We don’t like what the House of Lords have said. Therefore, we’ll do quite the opposite of what they wanted to happen”. However, let us not retreat into history; let us talk about today.

If my amendment is agreed, the regulations presented by the noble Lord will go through, of course, and the Act will come into force on 1 April in any event. However, if the House agrees to the amendment, it will show that it has some distaste for the way in which the Government have behaved in this instance. In my view, the Government have not behaved well here and the House should, in its gentle way by a Motion of Regret, just say that.

Division on Lord Bach’s amendment to the Motion

Contents 166; Not-Contents 161.

Lord Bach’s amendment to the Motion agreed.

Division number 1 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013 — Motion to Approve

Aye: 164 Members of the House of Lords

No: 159 Members of the House of Lords

Ayes: A-Z by last name


Nos: A-Z by last name


Motion, as amended, agreed.