2 Nov 2011 : Column 947
Point of Order
1.34 pm
Derek Twigg (Halton) (Lab): On a point of order, Mr Speaker. Earlier, the Minister for the Cabinet Office said that the time for transparency had come, yet when I asked the Chief Secretary, who is now leaving, to put in the Library examples of how the changes that he announced today will affect different sectors in typical cases, he refused to do so. You will know that pensions are a complicated area. We have been given the information today but we have not seen the details yet. Surely you would agree that putting in the Library some examples of the impact on different sectors would have helped the House to come to some conclusion about whether the deal is good or bad. Can you give us any assistance in ensuring that we get that sort of information, which would be helpful to the whole of Parliament?
Mr Speaker: The hon. Gentleman is underestimating himself, because I do not think that he needs any help from me. He is a pretty experienced and ingenious Member who is well able to use the resources of the Table Office to pursue his concerns; he has, of course, highlighted them. I just have this lingering suspicion, of which I hope he will cure me, that he is trying to continue the debate, but I am sure I am wrong.
Derek Twigg: On a point of order—
Mr Speaker: Not on the same matter.
Derek Twigg: On a point of order—
Mr Speaker: On a completely unrelated matter? No, well we will leave it there for today. If there are no further points of order, we come now to the ten- minute rule motion, and I call the right hon. Member for Lagan Valley (Mr Donaldson), who has been patiently waiting.
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Devolved Administrations (Armed Forces Covenant Reports)
Motion for leave to bring in a Bill (Standing Order No.23)
1.36 pm
Mr Jeffrey M. Donaldson (Lagan Valley) (DUP): I beg to move,
That leave be given to bring in a Bill to impose a duty on the devolved administrations to report annually on the Military Covenant and the effects of membership, or former membership, of the armed forces on service people; and for connected purposes.
My party fully supports the principles of the military covenant, and we welcome the commitments given by the Government in the Armed Forces Bill that strengthen the legal standing of the covenant. We also acknowledge the recent reports prepared by the hon. Member for South West Wiltshire (Dr Murrison), who is in his place, including his recent report on the services available to military amputees. We commend him on his excellent work.
I recently attended an event in the constituency of my hon. Friend the Member for South Antrim (Dr McCrea) to recognise the contribution of the Irish Guards, who have recently returned from operational deployment in Afghanistan. Several amputee soldiers who had been seriously wounded during their time in Helmand province were there, and I was reminded of the importance of ensuring that these soldiers are properly cared for and looked after. They are, of course, based in England and have access to the highest standards of care, but one wonders whether the same level of care and treatment would be available to them if they lived in Northern Ireland.
Yet Northern Ireland provides a major contribution to our armed forces. In fact, more than 20% of the reserve forces regularly deployed on operations come from Northern Ireland, despite the fact that we make up 3% of the UK population. That is a remarkable achievement for the reserve forces in the Province. Sadly, some of those who are deployed are killed or sustain life-changing injuries, and it is important that these soldiers receive the care and support that they need, wherever they live in the United Kingdom and wherever they are based.
In respect of this Bill, I wish to acknowledge the excellent contribution made by service charities, including the Royal British Legion, Help for Heroes, Combat Stress, the Army Benevolent Fund—now known as The Soldiers Charity—and the regimental benevolent funds, whose work should not be forgotten. They very often provide help for soldiers who have been seriously injured on operational deployment. In Northern Ireland we are very proud of the giving by our people to such charities. Northern Ireland donates more per head to the poppy appeal than any other region of the United Kingdom.
We want to ensure that our soldiers receive the care and support that they need when they most need it, regardless of which region of the United Kingdom they are located in. That is why I am introducing the Bill today. We want to ensure that there is uniformity across the United Kingdom in the delivery of the objectives and principles in the military covenant.
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For example, we have quite a high number of former service personnel in Northern Ireland suffering from post-traumatic stress disorder, because we had more than 30 years of conflict in which the Army was deployed on the longest operation in the history of the British Army, Operation Banner. Yet I talk to many of those veterans and they tell me that they are not receiving the level of support and care that they need. They contrast that with the level of care that is available in other parts of the United Kingdom. Clearly there is a deficit, and we want to see it addressed. How do we go about that?
Another issue for us in Northern Ireland is the fact that the Northern Ireland Executive are the only devolved Administration that do not participate in the covenant reference group. The Scottish Government are represented, the Welsh Assembly Government are represented, but not the Northern Ireland Executive, so again there is a lack of uniformity across the United Kingdom. Although of course we cannot interfere in the day-to-day workings of the devolved Administrations, nevertheless, as it is Parliament that is charged with oversight of the military covenant, Parliament should place a duty on all the devolved Administrations to report annually on what they are doing to fulfil their obligations under the military covenant. That reporting mechanism would enable Parliament to assess the extent to which there is a lack of uniformity across the United Kingdom in the level of care and support provided to both serving and former armed services personnel.
That is the main thrust of the Bill. We want to ensure that over time we achieve that uniformity and hold the devolved Administrations to account in fulfilling their commitments and obligations under the military covenant. It may be the case that upon receiving the annual reports from the devolved Administrations, we would want to debate those reports here in the House and consider the extent to which the devolved Administrations are fulfilling their obligations.
I recognise that in the Armed Forces Bill, as amended in the other place, the Government have made provision for the Secretary of State to prepare an annual report on the military covenant, and that the report should take account of the views of the devolved Administrations, but it does not place an obligation on the devolved Administrations to provide those views, and if the devolved Administration does not endorse its part of the report, that element of the report is not brought to the House. My Bill would take the devolved
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Administrations’ obligation a step further and give them a duty to provide such a report. It is only right that we should do so, in the interests of the men and women who serve this country. That would strengthen the provisions of the Armed Forces Bill.
As I said, we are immensely proud of the contribution that the men and women of this country make in our armed forces. We know that these are difficult times and that there is pressure on public services, but we fully endorse the principles behind the military covenant that when our armed forces personnel place themselves in danger in the line of duty and sustain serious injuries, or when their families are left bereaved by the loss of a loved one, they receive the support that they undoubtedly deserve, in terms of adequate care and treatment. Therefore we do not believe it is unjust or unfair to place a duty on the devolved Administrations to provide an annual report to the House stating exactly what they are doing to implement the principles and objectives of the military covenant.
My remarks are not intended as a criticism of some of the excellent work already being undertaken by the devolved Administrations. I know that in Northern Ireland we have particular problems with the way in which our government system operates, but even there, very good work has taken forward key elements of the military covenant. We want that to go further. We want to ensure that wherever they live in the United Kingdom, whatever region of the United Kingdom they reside in or are based in, our armed forces personnel have access to the same level of care and support as they would have in other parts of the Kingdom.
I am grateful for the opportunity to present the Bill this afternoon. I trust that the House will give its support to the measure.
That Mr Jeffrey M. Donaldson, Mr Julian Brazier, Mr Gregory Campbell, Mr Nigel Dodds, Thomas Docherty, John Glen, Mr Dai Havard, Patrick Mercer, Mrs Madeleine Moon, Sandra Osborne, Jim Shannon and David Simpson present the Bill.
Mr Jeffrey M. Donaldson accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 20 January 2012, and to be printed (Bill 243).
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Legal Aid, Sentencing and Punishment of Offenders Bill
[ Relevant document: The Third Report from the Justice Committee, on the G overnment’s proposed reform of legal aid, HC 681, and the Government’s response thereto, Cm 8111.]
Further consideration of Bill, as amended in the Public Bill Committee
‘(1) The Director is to carry out the functions of the office on behalf of the Crown.
(2) Service as the Director is service in the civil service of the State.
(3) The Lord Chancellor is to be treated as a corporation sole—
(a) for all purposes relating to the acquisition, holding, management and disposal of property and interests in property under this Part, and
(b) for all other purposes relating to the Lord Chancellor’s functions in connection with legal aid and other functions under this Part.
(4) An instrument in connection with the acquisition, holding, management or disposal by the Lord Chancellor of property or an interest in property under this Part or for a purpose mentioned in subsection (3)(b) may be executed on the Lord Chancellor’s behalf by a person authorised by the Lord Chancellor for that purpose.
(5) Any such instrument purporting to have been executed by the Lord Chancellor or on the Lord Chancellor’s behalf is to be received in evidence and, unless the contrary is proved, to be treated as having been so executed.’.—(Mr Djanogly.)
Brought up, and read the First time.
1.47 pm
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I beg to move, That the clause be read a Second time.
Mr Deputy Speaker (Mr Lindsay Hoyle): With this it will be convenient to discuss the following:
Government new clause 9—Northern Ireland: information about financial resources.
New clause 17—Extension of scope of legal aid in complex cases—
‘(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) is satisfied.
(2) This subsection is satisfied where the Director—
(a) has made a complex case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), a complex case determination is a determination—
(a) that the individual has complex, interconnected needs in relation to which the individual requires comprehensive civil legal services, and
(b) not all of those civil legal services would otherwise be available to the individual because they do not all fall within the scope of Schedule 1.’.
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New clause 43—Funding for civil legal advice—
‘(1) The Lord Chancellor may make funding available for the promotion of civil legal advice on matters not included in Schedule 1, Part 1 where it appears to the Lord Chancellor that the provision of such services would be consistent with the purpose of the civil legal services provided for under that schedule.
(2) The Lord Chancellor may make arrangements by—
(a) entering into funding arrangements with other Government departments and public bodies to facilitate the provision of services,
(b) making arrangements to support the delivery of civil legal advice through the provision of grant in aid to providers of legal services, including any consortia or partnership arrangements into which providers of legal services may choose to enter, and
(c) any additional arrangements which the Lord Chancellor considers appropriate to ensure the provision of services as set out in subsection (1).
(3) In making any such arrangements the Lord Chancellor shall ensure that value for money is achieved.
(4) Welsh Ministers shall be consulted upon the funding and provision of civil legal advice in Wales.
(5) “Civil legal advice” means the types of services given in section 7(1) and includes advice and assistance which is usually given by any representative in the steps preliminary or incidental to proceedings and as to any appeal, mediation and other forms of dispute resolution, but does not include representation for the purposes of proceedings.’.
Government new schedule 3—‘Northern Ireland: information about financial resources.
Amendment 162, in clause 1, page 2, line 7, at end insert—
‘(c) funding for the promotion of civil legal services, not including representation, on matters not included in Schedule 1, Part 1 where it appears to the Lord Chancellor that the provision of such services would be consistent with the purpose of the civil legal services provided for under that schedule.’.
Amendment 123, in clause 4, page 3, line 25, leave out subsection (4) and insert—
‘(4A) The Director must, except to the extent that section (4B) applies, act under the direction of the Lord Chancellor.
(4B) The Director must act independently when performing any functions or duties under this Part.’.
Amendment 116, page 8, line 29, leave out clause 12.
Amendment 104, in clause 12, page 8, line 31, leave out from ‘station’ to end of line 20 on page 9.
Amendment 125, page 8, line 35, leave out subsections (2) to (7).
Amendment 90, page 9, line 27, leave out subsection (9) and insert—
‘(9) Sections 20 and 26(2) do not apply in relation to this section’.
Amendment 148, page 21, line 7, leave out clause 26.
Government amendments 1, 2 and 25 to 27.
Amendment 69, in schedule 4, page 130, line 36, at end insert—
‘(3A) A transfer scheme shall make pension provision and compensation provision for and in respect of persons who become employed in the civil service of the State under paragraph 1 which is at least as favourable as the pension provision and compensation provision applicable to them immediately before they ceased to be employees of the Legal Services Commission.’.
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Amendment 71, page 131, line 9, at end insert—
‘“compensation provision” means the provision of compensation under a compensation scheme;’.
Amendment 70, page 131, line 14, at end insert—
‘“pension provision” means the provision of pension and other benefits under an occupational pension scheme;’.
Government amendments 65, 137, 66 to 68, 138, 19 and 54.
Mr Djanogly: We now move on, or perhaps I should say back to, legal aid. When we discussed legal aid on our first day on Report, we had two very constructive, albeit lengthy, debates in which I took more than three dozen interventions. That was partly the reason, along with the many valuable contributions that were made, why we were unable to cover all the groupings—[Interruption.] I know that that disappointed a number of hon. Members in all parts of the House.
Mr Deputy Speaker (Mr Lindsay Hoyle): Order. Let us not start where we left off the other day. Let us see if we can make progress. We do not want to run out of time, and I am sure that those on both Front Benches want to make good time.
Mr Djanogly: I want to try to avoid delay today, so I shall speak to Government amendments now and respond to the points made in debate later, rather than pre-empting in my opening remarks what hon. Members may have to say about their amendments.
Government new clause 4, which is a technical amendment, has two purposes. First, it seeks to provide clarity about the role of the director of legal aid casework, by ensuring that the exercise of the functions of the office is on behalf of the Crown, and that service as the director is service in the civil service of the state. The second purpose of new clause 4 is to ensure that the Lord Chancellor is treated as a corporation sole for the purposes of part 1 of the Bill.
The new clause is necessary in order to clarify the position in relation to the Lord Chancellor’s ability to hold an interest in land for those purposes, and so applies to charges that transfer from the Legal Services Commission to the Lord Chancellor at the point when the LSC is abolished, and for future charges to be taken over property under clause 24. The statutory charge is the charge that arises under clause 24 on any property recovered or preserved, including costs, by a legally aided person in respect of the amounts spent by the Lord Chancellor in securing their legal aid services and any other amounts payable by them under clauses 22 and 23. The amendment is essential, as the current value of charges held by the LSC is £212 million.
Government new clause 9 and new schedule 3 make provision on information sharing in relation to checking a person’s financial eligibility for legal aid in Northern Ireland. They replicate for Northern Ireland the information gateway for England and Wales created by clause 21 and further provided for in clause 32. Government amendments 26 and 27 are technical amendments that make it clear that regulations made under new schedule 3 will be prescribed not by the Lord Chancellor but by the Northern Ireland Assembly. Government amendment 54 is also a technical amendment that makes it clear that the Bill extends to Northern Ireland
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for the purposes of new clause 9 and new schedule 3, which create the information gateway, and for the purposes of clauses 38 to 40. I should point out that under paragraph 2(4) of new schedule 3, it will be a criminal offence to use or disclose information contrary to the provisions of paragraph 2.
Government amendments 25 and 64 to 68 relate to the transfer of LSC employees to the civil service when the LSC is abolished. The powers currently set out in the Bill include a power, in schedule 4, for the Lord Chancellor to make transfer schemes to transfer to the Lord Chancellor or the Secretary of State the LSC’s rights, powers, duties and liabilities under or in connection with an LSC occupational pension scheme, of which there are currently two, or compensation scheme. The occupational pension and compensation scheme arrangements for LSC employees are different from those for existing civil servants. When the employees transfer to the civil service and become civil servants, they will join the principal civil service pension scheme.
Amendment 64 confers new powers upon the Lord Chancellor that can be exercised as part of any transfer scheme. Proposed new sub-paragraph (6A), set out in amendment 64, allows for the Lord Chancellor to apply legislation with modifications as far as it is necessary to give effect to any transfer scheme. That is appropriate when transfer schemes are of an administrative nature relating to the specific issues in question. For example, it will allow the Lord Chancellor to provide that an aspect of pensions legislation applies in a particular way to that particular scheme. It will assist, as appropriate, in enabling the continuation of the LSC pension scheme or schemes after the abolition of the LSC so that they can continue for the benefit of their pensioner and preserved members. Those are members who have contributed to the schemes before leaving LSC employment and either draw a pension from the scheme or will be entitled to do so in future.
For compensation scheme arrangements, as well as allowing the modification of legislation, proposed new sub-paragraph (6B), set out in amendment 64, provides that the transfer scheme may amend or otherwise modify the existing LSC compensation scheme. That will allow compensation arrangements for LSC employees transferring to the civil service to be brought into line with those of other civil servants over a transitional period.
Amendment 65 reflects the fact that when LSC employees transfer to the civil service there will no longer be any active members of the two current LSC occupational pension schemes, known as the No. 3 and No. 4 pension schemes. The amendment provides the Lord Chancellor with the power to make a scheme to merge the two residual pension schemes. It is explicit that a scheme exercising this power must not result in members of the pension schemes, or other beneficiaries under the schemes, being deprived of any rights accrued prior to the merger.
The LSC’s No. 3 pension scheme has fewer than 100 pensioner and preserved members, and no current LSC staff members. The No. 4 scheme is for current staff and also has a number of pensioner and preserved members. At present there is much duplication in the administration of the No. 3 and No. 4 schemes, such as producing two sets of accounts and actuarial valuations. Merging the schemes would allow us to cut significantly
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the administration costs of running two trust-based schemes. The amendment will also give the power to wind up an LSC occupational pension scheme.
Amendment 25 corrects a slip in clause 38(7)(j). The intention was not to make regulations that contain free-standing provision that modifies an Act either directly or indirectly, subject to the affirmative procedure. Amendments 66 to 68 clarify the fact that the regulation-making power provided to the Lord Chancellor under paragraph 10 of schedule 4 can be used in connection not only with transfers affected by schedule 4, but with schemes under schedule 4, meaning schemes dealing with something other than a transfer.
Government amendments 137 and 138 concern schedule 4 to the Bill, which governs transfers of employees and assets following the abolition of the LSC. They are purely technical amendments that simplify existing provisions. Paragraph 10(1) of schedule 4 currently allows the Lord Chancellor to make consequential supplementary, incidental or transitional provision by regulation, and paragraph 10(2)(b) specifies separately that such regulations may include transitory or savings provision. Rather than continue to separate these related provisions, for the purposes of simplification amendment 137 brings them together in a revised paragraph 10(1) and amendment 138 amends paragraph 10(2) to reflect that simplification. That mirrors an identical amendment to clause 115.
Finally, Government amendments 1, 2 and 19 are minor and technical amendments to clause 32 and schedule 5, consequential on the removal in Committee of what was then clause 71.
Mr Andy Slaughter (Hammersmith) (Lab): If the Minister was sincere when he said in his opening remarks that we will make good progress and deal with as many of the groups of amendments as we can today, I applaud him for it, but it is a challenging task. There has been a statement so we have barely four hours left to debate huge chunks of the Bill, which is impractical. It will no doubt be assisted by the fact that, with the exception of the Minister’s Parliamentary Private Secretary, who has just appeared, there is not a single Conservative Back Bencher here. [ Interruption. ] I apologise to the hon. Member for Hendon (Mr Offord); I thought he was a Liberal Democrat. I withdraw that slur on his character immediately.
There is a serious point. We had a disgraceful situation in the House on Monday when the Minister called in Conservative Back Benchers, one by one, to speak on domestic violence and clinical negligence, particularly as they affect the most severe injuries and brain-damaged children, and to waste time. By wasting time and then voting against amendments that would deal with those issues, the Government prevented us from moving on to a substantive discussion on legal aid. I will not dwell on that point, because I wanted to move on, but I hope that in discussing these amendments, of which there are a broad range, we will be able to do justice to that important subject.
I will speak principally to amendment 123, which stands in my name. I will get my contributions out of the way in one go by speaking to new clause 17, tabled by my hon. Friend the Member for Makerfield (Yvonne
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Fovargue), amendment 148, tabled by Liberal Democrat Members, who for some reason rejected a similar amendment I tabled, and new clause 43, tabled by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards), which is a very good one. I will say at the outset that we support all those amendments. I will not deal with amendment 116, which stands in my name, because my hon. Friend the Member for Darlington (Mrs Chapman) will make a contribution on that later. For the avoidance of doubt, I will say at the outset that the Opposition will press amendment 116 to a vote, and other hon. Members may wish to press their amendments to a vote.
Amendment 123 deals with a fairly straightforward point, but an important one, which is in no way party political. The independence of the new director has raised considerable alarm and concern across the professions and the voluntary sector, and indeed with anyone who deals regularly with legal aid. We attempted many times in Committee, with a variety of amendments, to try to push at this and get the Government to give a little. We asked for an appeals process, a vetting process before appointment, which would give some independence, and for assurances in relation to the civil service, which will be working in this area. Every amendment, as was the case throughout the Committee’s proceedings, was rejected. I hope—this is the case in other common law jurisdictions which have moved to a similar system—that the Minister is listening to these proposals. This is not an issue that divides the parties on the abolition of the Legal Services Commission, but it is an issue that strongly divides the parties on the adverse influence, be it perceived or real, that the Government will bring to bear on to the director post once it is firmly ensconced within the Department.
There is a trend in this Bill towards Government control and authoritarianism, and we will see it when we debate clause 12, whereby the same director of legal aid will get the power to decide whether legal aid is granted to those in extremis—in the worst circumstances—when they have been arrested. We also see the trend in relation to the constraints on the powers of the judiciary, and, although I doubt that we will get time to debate remand today, I note that the Government wish severely to tie the hands of magistrates and judges in relation to whom they can remand in custody. All the time, these measures restrict either citizens’ rights or the rights of independent parties, whether they be the director or the judiciary, to make decisions.
2 pm
I heard quite a chilling statement from the Ministry on the radio this morning. I do not know whether other hon. Members heard the compelling interview with Christopher Jefferies on the “Today” programme, which I will not dwell on, because we hope to have time to debate no win, no fee later this afternoon. At the end of the interview no one from the Ministry of Justice—not the Minister, not anyone else—was prepared to come forward. There was simply a statement to this effect: “We believe that deserving cases will still be able to be brought by no win, no fee, but not cases which are too costly or undeserving.”
Mr Djanogly: We are talking about legal aid.
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Mr Slaughter: The presenter made a mistake—I hope the Minister is not making the same one—in relation to talking about legal aid, as presenters often do, but I assure the House that Mr Jefferies was clearly talking about conditional fee agreements and no win, no fee. The answer is—
Mr Djanogly: Yes, but we are talking about legal aid.
Mr Slaughter: I know the Minister does not want to hear this, but in relation to the director the point is that the Government wish to decide who has merit and who does not. That is the charge that the Government have to answer, and in this case they will do so only by ensuring the independence of the director.
Let me move on, because we are in the midst of a radical reform of the social welfare system. The Secretary of State for Work and Pensions has embarked on restructuring the way benefits are assessed, calculated and provided, local authorities have had budgets radically reduced, and a housing benefit cap is being introduced. In short, the benefits system is in a period of turmoil, and as a consequence the system of checks and balances on state decision making through the first-tier tribunals is also significantly under pressure, such that more staff are being taken on daily to deal with a growing number of appeals against decisions taken by Jobcentre Plus.
When in October last year the coalition produced its Green Paper on the reform of legal aid in England and Wales, we were shocked to see that there were cuts of £450 million, as defined in the latest impact assessment, and that they overwhelmingly came from civil legal aid. Things such as education, employment, welfare benefits, debt, housing matters and clinical negligence were taken out of scope, either in their entirety, as in the case of employment, welfare benefits and clinical negligence, or substantially, as in the case of debt, housing and education.
Means-testing will also change. The Government have proposed the abolition of capital passporting, by which those receiving certain income-based benefits are automatically eligible for legal aid, and the introduction of a new minimum capital contribution, a personal financial contribution towards legal costs.
The philosophy behind the cuts is explained in the Government’s impact assessment, in which they state:
“Legal aid may be regarded as a redistributive transfer of resources from taxpayers to those who are most needy, in relation to both the nature and merits of their case and also to their financial position… The Government may consider intervening if there are strong enough failures in the way markets operate…or if there are strong enough failures in existing government interventions”.
The amendments under discussion simply seek to address the Government’s failure to abide by those principles as set down in their own impact assessment. We are in a period of great need and of great changes to the system, and many meritorious cases are being referred to tribunal. By definition, the financial position of those requiring help with welfare benefits, employment law, debt and housing is necessarily the most precarious of any in society, and £70 a week is often all that stands between some of my constituents and utter destitution. They are in a desperate place.
Let me give the House one example, in relation to eligibility for disability living allowance. There are so many problems with the private contractor Atos that many seriously ill people are being judged fit for work. I
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leave aside operational issues, such as the fact that, according to its own website, 20% of Atos’s 141 medical assessment centres do not have wheelchair access, because, according to a newspaper report, one third of those refused DLA by Atos have appealed to the first-tier tribunals, and 39% of decisions have been overturned. Furthermore, the report states:
“The tribunals service…has had to double its capacity in the social security section to deal with the large number of appeals, recruiting an extra 170 paid medical panel members.”
In a letter to The Guardian , leading mental health charities and a senior consultant from the Royal College of Psychiatrists say:
“We’ve found that the prospect of incapacity benefit reassessment is causing huge amounts of distress and tragically there have already been cases where people have taken their own life following problems with changes to their benefits.”
These are not just economic issues; they profoundly affect the most vulnerable individuals.
The Government’s proposals will seriously damage access to justice for the most vulnerable in society, and their own impact assessment shows that there will be a disproportionate impact on women. Similarly, there is the potential for the cuts to impact disproportionately on black and ethnic minority clients and on those with disabilities.
That is something the Minister himself acknowledges. When it was put to him that groups with protected characteristics would be affected, he dismissed it, as only a Conservative Minister can, although the Liberal Democrats are getting there, by saying, “Well, that’s because they are disproportionately represented among the most vulnerable.” That is the logic of the Government’s case—“Because vulnerable people get legal aid, and we are cutting it, what do you expect to happen?” Those principles show an absolute absence of moral guidance.
Sir Alan Beith (Berwick-upon-Tweed) (LD): I understand the hon. Gentleman’s argument, but is he proposing cuts in other areas of legal aid in order to maintain his objective of cutting the overall cost while putting legal aid back in place in those fields?
Mr Slaughter: I was going to deal with that at the end of my remarks, but let me do so now. I am grateful to the right hon. Gentleman for giving me the opportunity to do so, because two days ago the Minister said, “Oh, the Labour party wants to reinstate £245 million of cuts.” On the same day, however, he put out a press release saying that the Labour party wanted to reinstate £64 million of cuts, and I have grown tired of responding to him. He has heard my response from this Dispatch Box, in Westminster Hall and in Committee time and again, and it is simply this: we would not have made at present the cuts to social welfare legal aid.
The Minister quantifies those cuts as £64 million, but why did he not proceed with the final parts of Lord Carter’s review and go through the criminal tendering exercise, which was in place and ready to go when the Government took office last year, and which included savings that might have raised twice that sum? I anticipate the figures changing. The figures on savings have changed from £350 million to £450 million within two impact assessments, but, without being more precise than that, we believe that if the Government looked for efficiencies in the criminal legal aid system, first they would save
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more money than they are by cutting social welfare legal aid, and secondly there would not be the same social or financial consequences.
The Green Paper talks frequently about the possibility of self-representation as a reason for withdrawing legal aid provision, but data provided in answer to a written parliamentary question indicate that there are considerable differences in success rates between those with and those without representation. Owing to a lack of representation, 51,223 meritorious cases that were successful in 2010 at the first-tier tribunals, many of which involved applicants for DLA, incapacity benefit, jobseeker’s allowance and so forth, would not have been successful if the proposed cuts had been in place. The changes will close or severely reduce the operation of law centres, citizens advice bureaux and hundreds of independent advice centres, and limiting the scope of issues which legal aid-funded advisers can help with means that they will not be able to solve people’s problems fully.
New clause 17, in the name of my hon. Friend the Member for Makerfield, addresses precisely that issue. At the end of Monday’s debate, I gave the example of the Wiltshire law centre in the constituency of the hon. Member for South Swindon (Mr Buckland). That will lose 90% of its funding, and that is not untypical of the cuts being made. In most cases they are above 80%.
The specific issue that is dealt with my hon. Friend’s new clause is the interconnectivity of people’s problems. We are all too familiar, as constituency MPs, with the individual who comes in with two plastic bags full of paper and is unable to convey the scale of their distress, let alone the complexity of their problems, which may include unpaid debts, threats of eviction, underlying mental health problems and the inability to access the welfare benefit system. Sometimes we can help, and I pay tribute, as I am sure all hon. Members do, to the constituency staff who have developed phenomenal skills at unpicking these issues and dealing sympathetically with them. In many cases, however, legal expert help is needed, but that help will now be severely compromised. If one is allowed to deal only with the threat of eviction but not with the underlying issues of accessing benefits and dependency on debt, one is working with one hand tied behind one’s back.
The exceptions to the withdrawal of legal aid in certain cases, such as when an applicant for legal aid is at risk of homelessness, are nonsensical distinctions. People who come for aid early on, while they still have manageable rent arrears, can see their case deteriorate rapidly and drastically. The legal aid that would help exactly those people has been withdrawn, and that is Shelter’s No. 1 priority for what should be restored. Let me add, at this point, that we support the hon. Member for Carmarthen East and Dinefwr in his wish to undo what is a calumny in the Bill—measures allowing the Secretary of State by order further to restrict what is in scope for legal aid, but not to expand it. I do not know whether the hon. Gentleman is going to press his amendment to a vote tonight but I hope that, if he has an opportunity to speak, the Minister will give an indication that that glaring error in the Bill will be corrected.
The cost of dealing with a single case of homelessness has been estimated at £50,000 by Shelter. Early intervention is an extremely efficient and cost-effective way of preventing
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cases from becoming more complex, difficult to resolve and commensurately expensive. The legal aid Green Paper suggests a shift to telephone advisory services, and this brings us to amendment 148. Although these methods are an efficient and often effective means of delivering certain types of advice, clients presenting with complex or chronic problems gain far better outcomes from face-to-face advice.
Research by the Legal Action Group has highlighted the issues faced by the most vulnerable in utilising telephone advisory services. It found that full-time employees were the most likely to access an advice service through the telephone line or the internet, at 43%, whereas people in the lowest social class, DE, were least likely to access advice through an advice line or the internet, at 26%. This class of people was also the most likely to experience a social welfare law problem. The Minister’s own impact assessment says that the bottom 20%, in terms of income, will represent 80% of those who suffer from the withdrawal of these services. Overall, people of social class DE are twice as likely as people in all other social classes to experience problems with debts or benefits.
Issues facing the most vulnerable people include language, comprehension and somewhat more prosaic economic issues such as the expense of calling an 0845 number from a pay-as-you-go mobile when trying to get advice upon being rejected for jobseeker’s allowance. Citizens Advice has noticed a dramatic rise in the volume of cases and the number of people seeking advice in this recession. Advice has been focused on debt, housing, employment and difficulty accessing the benefit system. For example, between April 2008 and 2009, CABs in England and Wales saw daily inquiries relating to redundancy increase by 125%. Local authority cuts combined with the cuts in the Ministry of Justice have inflicted a double whammy on law centres, CABs and third sector organisations. Many organisations that are staffed by a mixture of volunteers and modestly paid staff will be forced to close or reduce staff and service breadth, depth and reach. Indeed, that is already happening.
We agree that the legal aid budget needs to be contained, as I have already said in response to the intervention of the Chair of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), and that ways of making savings need to be found. When we were in power we did not shy away from taking those decisions and containing the budget. We had begun and were continuing to implement the recommendations of Lord Carter of Coles and we believe that those outstanding recommendations should have been implemented by this Government. Frankly, we are at a loss to understand why the Government have not looked at the scope of criminal legal aid or at how it is delivered in this country, preferring instead to target the poorest and most vulnerable. I accept that those changes would not have been popular with all the legal sector but they would have delivered substantial savings, which would have been greater than the total cuts to social welfare legal aid we have discussed this week. Let me pay tribute to my colleague the noble Lord Bach who, as Minister with responsibility for legal aid, took exactly that line. He was prepared to be very tough on his own profession but he always protected social welfare legal aid.
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2.15 pm
We oppose the cuts because they affect the most vulnerable in society and run the risk of decimating the social welfare and legal advice community. Even at this stage, I urge the Government to rethink their plans. If they will not, I shall ask again, and I am pleased to see that hon. Members from all parties, save the Conservative party, have tabled amendments on this matter for debate today. I hope—I say this in the spirit of wanting to protect those of our constituents who are most vulnerable and most reliant and who need access to justice more than ever today—that those amendments will be pressed to a vote by hon. Members, particularly those on the Liberal Democrat Benches, and that they will see fit to support our amendments when we push them forward.
Mike Crockart (Edinburgh West) (LD): In the interests of brevity I shall speak only to amendment 116 to which I have added my name. It has been more than 30 years since the National Consumer Council referred to access to advice as the fourth right of citizenship. It was ahead of its time in predicting the coming of an information age in which people’s ability to live full lives as responsible citizens would depend on access to organised, specialist information in order to navigate complex consumer choices, labour markets and state bureaucracy and law. In no area could that be more important than in relation to legal advice in a police station, where the presence of a lawyer acting for a defendant is crucial, although I might not have thought that between 1990 and 1998 when I was a serving police officer in Edinburgh. Solicitors are there to ensure that suspects’ rights are respected, that they are not physically abused, that their confessions are not forged and that they are not detained for longer than is legally allowed. The presence of a lawyer not only protects defendants from police abuse but protects the police from false allegations by defendants about what happened during an interrogation, for example.
Clause 12 provides the Secretary of State with the flexibility to subject legal aid in police stations to a system of means-testing. The Ministry of Justice has made it clear that such proposals would be modelled on the system currently operating in Scotland, where people who earn more than a certain amount—in Scotland, a weekly disposable income of £105—have to pay a contribution towards the cost of their legal aid. The current system of police station advice in Scotland is only a year old, but the Law Society of Scotland has already stated that it is complex process to operate and to explain to clients, many of whom are in a vulnerable situation.
The experience north of the border also shows that the provision of adequate verification undoubtedly lengthens the suspect’s time in a police station and that the solicitor often has no evidential proof that the client is eligible or of what their contribution should be. Solicitors also find that the prospects of claiming the contribution from the client are limited when the detention ends without criminal charges. Consequently, in Scotland in the past year, uptake of advice in police stations has fallen to around 25% of cases—roughly half that in England and Wales.
The Minister will also know that the Scottish situation has been somewhat complicated recently by the judgment in the Cadder case. Previously, when I was a serving officer, suspects could be detained without charge for
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up to six hours and questioned without the presence of a solicitor. Following that case in the Supreme Court last year, the Lord Advocate issued guidelines, and emergency legislation has since been enacted, to provide suspects who are detained by the police with the right to
“a private consultation with a solicitor”.
That can be either before questioning or at any stage during questioning. Moreover, experience has shown that it is often more expensive to administer means-testing than to operate it. Cutting out legal aid in police stations will lead to false economy, not least because the courts will be clogged up with unmeritorious or unprepared cases, or proceedings without a solicitor present will be open to legal challenge.
Early advice in a police station may save many social and economic costs, most of which must be picked up by other public services. Moreover, who will ask what someone’s earnings are, or how much their mortgage is? Those questions will have to be asked in extremely stressful situations. Will the Minister explain how the proposals will work without the whole process becoming extremely unwieldy?
Furthermore, will the Minister explain why such a provision is in the Bill when I and colleagues received assurances that there was no intention of the clause ever coming into effect? If the Government have no intention of using the power, why leave it in the Bill? The Minister has effectively asked us to sign a blank cheque, but assured us that he will never have to cash it. Much as I trust the Minister, that is no way to propose or to implement new legislation, because it leaves pointless regulation in statute, which because of assurances from Ministers might never have been properly scrutinised. That is a bad precedent, and a dangerous one, which should not allowed to continue.
Yvonne Fovargue (Makerfield) (Lab): I rise to speak to new clause 17, tabled in my name. It is well known that many problems in social welfare law are interconnected and that clients invariably approach agencies with clusters of problems, which is why the social welfare law cluster of housing, benefit, debt and employment was introduced in the first place. As my hon. Friend the Member for Hammersmith (Mr Slaughter) said, all MPs have seen constituents who arrive with carrier bags of unopened mail from various agencies. It is impossible to deal with one issue—for example, electricity disconnection—without dealing with problems such as tax credit underpayment and illegal deduction of wages. It is the natural state of affairs that one problem leads to another, and the merit of not-for-profit agencies dealing with that cluster is the availability of specialisms in a one-stop shop, and the ability to drill down to the root cause of the issue, which may be wrongful refusal of benefits or unfair dismissal leading to debt issues and potential homelessness.
My new clause would allow agencies to deal with all the issues. They would not have to take a piecemeal approach, but could make difficult decisions on which issues are legally aidable and which are not, so that the individual would not be left to struggle with the complex non-legally aidable issues alone.
Make no mistake; the issues that the Government wish to remove from scope are complex. The welfare benefits that the Government wish to remove from scope completely have 20 volumes of guidance, thousands of pages of case law, and thousands of statutory
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instruments, clauses and schedules. The Child Poverty Action Group’s handbook on welfare benefits and tax credits alone has 1,600 pages. In 2010, the Department for Work and Pensions issued 8,690 pages of advice to decision makers. That advice is not specialist. Can people rely on help from Jobcentre Plus or the Benefits Agency, the agencies that turned down their original claim? I do not think so.
The Bill is being enacted at precisely the same time as the introduction of universal credit, which will affect 19 million individual claimants and 8 million households. I remember the change from supplementary benefit to income support. The number of people who needed advice rocketed, and many important cases were appealed by advice agencies, which had far-reaching consequences for many people, not just individual claimants. That is being denied in the Bill.
In 2010, under the current system, there were 160,000 appeals, more than half of which were decided in favour of the claimant. To remove support from individuals who have been wrongly and unlawfully denied their benefit—in more than half of cases that was indeed the decision—and to deal with the rent arrears caused by that denial of benefit at the point of eviction, is perverse in the extreme.
Early intervention and an holistic approach save money. Even the Minister admitted that early advice may reduce costs further down the road, but he chose to save £1 now at the cost, according to research from the National Association of Citizens Advice Bureaux, of £8.80 for every benefit case, £7.13 for every employment case, £2.98 for every debt case and £2.34 for every housing case. This is blinkered short-termism at its most extreme.
I would like to give a couple of examples of linked problems where dealing with just the issue that remains in scope will be counter-productive. A client had multiple priority and non-priority debts, including rent arrears, and was facing the threat of possession proceedings. She had prioritised credit card repayments due to pressure applied by her bank and debt collection agencies, and had fallen behind with her rent. She suffered mental health problems, and her teenage daughter was becoming ill because of the stress facing her mother. She was working and studying to improve her situation, but had lost benefits and was appealing that, with help. Under the Government’s proposals, there would be no help with that appeal. The only help available would be to deal with the immediate repossession issue. The credit card and other debts would not be dealt with and I surmise that it is extremely likely that that client would return in exactly the same position, or worse, at a later date.
A constituent had been dismissed from employment and was being assisted with an unfair dismissal claim. Stress was making them ill and unable to work, and there was also an appeal against benefit sanctions for leaving their job. Owing to the lack of income, the bills were mounting up and mortgage arrears were accruing. Under the new proposals the client would have to wait until they were in imminent danger of losing their home, and that would be the only issue within the scope of the scheme. If ever there were examples of false economy, surely those are such.
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The most vulnerable will bear the brunt of the cuts. The Legal Services Commission’s figures show that 62% of those affected by removal of welfare benefits from scope will be those with disabilities. Indeed, there is concern about whether agencies will be able to provide advice even to those fortunate individuals who still qualify for legal aid. The cuts to social welfare law disproportionately affect not-for-profit advice agencies with 77% of the funding withdrawn going from those agencies. Some 54% of citizens advice bureaux and more than 70% of law centres believe that they will not exist after 2013 if this Bill becomes law. There is no clear plan or strategy for the sector, just death by a thousand cuts.
Wigan metropolitan borough council currently has 3,080 cases funded by legal aid, but 2,342 will go out of scope if the Bill is enacted. At a rough estimate of 300 cases per caseworker, resources will drop from 10 specialists to help my constituents to 2. Their ability to deal with even the severely curtailed legal aid cases will be massively impacted, let alone their ability to deal with linked issues. Will the Minister say what cross-Departmental plans are in place to deal with the destabilisation of the not-for-profit advice sector, and how will linked issues, which are often the root cause of an immediate threat of eviction, be dealt with in future?
I want to address briefly the issue of whether those who qualify will be able to navigate the system and reach the help they need and not fall at the first barrier—the telephone gateway. In the all-too-inadequate time allowed in Committee, when the agencies presented their evidence, they all stated that the telephone gateway will be yet another barrier and will deny some clients access to the services they need. Indeed, Steve Hynes, director of the Legal Action Group, commented on research by that group—my hon. Friend the Member for Hammersmith referred to it. He said:
“if you want a legal system that people do not use, deliver it through telephone advice because the people who pass the means test tend to be the ones who do not have telephones”
In my experience, individuals with a number of problems often cannot focus on the most serious issue for many reasons. It often takes a considerable amount of time and experience to untangle the knotted ball of problems into single strands, and then to decide which is the most immediate and serious. For example, I saw a client who was most upset because, for the first time, she could not pay Provident. She was really upset that when it came to collecting the debt, her neighbour would know that she had problems and could not pay. Eventually, she let me examine all the other documents that she had, and it was apparent that she had been paying the company at the expense of her rent and was in danger of eviction. To tease that information out over the telephone without sight of the documents that she eventually handed over would be almost impossible, and I believe that that client would have been told her issue was not legally aidable and sent away still prioritising the wrong debt and facing eviction.
2.30 pm
I urge the Government at least to pilot the telephone gateway and to listen to the concerns of the advice providers, who are, after all, the experts in the field. In fact, in the rather protracted debate on Monday, which did not allow us to reach the removal from scope of the
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majority of social welfare law, the Government were at pains to assure us that they were listening and had listened to all the respondents to the consultation, which had one of the largest numbers of respondents that we have ever seen—over 3,000. In that case, why were the 93% of agencies and individuals who responded, disagreeing with the Government’s proposals to remove these areas from scope, not heeded? They certainly do not feel their views were valued or that any coherent and valid response was received, apart from on short-term money saving, which, as has been pointed out, will lead to many increased costs later on.
The new clause would at least mitigate the untenable situation of agencies being funded to deal with only one issue when they know that the root cause of the problem still remains, and it would put them back, in some small way, to being able to deal with the individual as an individual with a group of issues and problems, thus preventing the inevitable recurrence. I urge hon. Members to support the new clause.
Tom Brake (Carshalton and Wallington) (LD): I rise to speak principally about new clause 17, which was tabled by the hon. Member for Makerfield (Yvonne Fovargue).
Before I do so, I should like to comment on amendment 116. My hon. Friend the Member for Edinburgh West (Mike Crockart) made a cogent case for deleting clause 12. The Minister rightly said in Committee that
“the practicalities are the greatest stumbling block, and the costs could be significant.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 8 September 2011; c. 437.]
My hon. Friend underlined that that had been the experience in Scotland. It is therefore clear what the Government’s response should be. For the sake of clarity and succinctness, the Bill could appropriately lose clause 12.
Karl Turner (Kingston upon Hull East) (Lab): I think I am right in saying that the right hon. Gentleman is speaking to an amendment that would effectively get rid of the idea of means-testing in police stations. I agree that this is an issue of great concern to Members in all parts of the House. I am surprised, however, that when he sat on the Bill Committee he did absolutely nothing about it when he could have supported my amendment or that of the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd).
Tom Brake: I thank the hon. Gentleman for his intervention. I am not sure whether he is saying that I should not be raising the point now, but that is what I am doing.
Tom Brake: I am not going to give way. The point has been raised, it is on the record. I am sure that the Minister will have heard it. My right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) will speak about this in relation to amendment 148, and I am sure that he will echo the concerns raised by the hon. Member for Makerfield about the telephone gateway.
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Lyn Brown (West Ham) (Lab): The right hon. Gentleman will know that the Law Society, the Bar Council, the Family Law Bar Association and the Lord Chief Justice have all indicated that the changes made by the Government in this Bill will curtail access to the legal system but that the projected savings will not be obtained. Given that the right hon. Gentleman sat on the Bill Committee, perhaps he can tell me why all those organisations are wrong but the Government and the Bill he supports are correct.
Tom Brake: In a situation where funding is going to be withdrawn from organisations, it is not surprising that their response is that they do not favour it. The Government need to monitor very carefully some of the concerns that have been raised about the impact of withdrawing legal aid, and we have already had assurances that that will be the case.
Elizabeth Truss (South West Norfolk) (Con): Will my right hon. Friend give way?
Tom Brake: I will give way one last time and then move on to new clause 17.
Elizabeth Truss: Does my right hon. Friend agree that some of those organisations have an interest in pushing up the legal aid bill because they are its main recipients?
Tom Brake: The hon. Lady makes a point that is worth considering. Clearly, certain organisations are financial beneficiaries of some of the funding, but I do not want to throw out all the concerns that have been raised because, equally, there are legitimate concerns that the Government need to monitor very carefully.
I turn to new clause 17. I had hoped that during the debate on Monday we would reach the group of amendments on social welfare in which my amendment 149 on complex welfare benefits was listed. Also in the group was amendment 131, which sought to ensure that advice on housing repossessions was available sooner. I regret that we did not reach that group, as, I am sure, does my hon. Friend the Member for Eastbourne (Stephen Lloyd), who is chairman of the all-party group on Citizens Advice. However, new clause 17 touches on many aspects of what was included in amendment 149. I welcome the fact that the hon. Member for Makerfield has put the matter up for debate today because it provides an opportunity to discuss some of the points that would have been raised on amendment 149. Her definition in trying to ensure that legal aid is extended to complex cases is
“that the individual has complex, interconnected needs”
“not all of those…legal services would otherwise be available to the individual”.
It is reasonable to speculate that many, or most, individuals with complex and interconnected needs will also have welfare benefit issues that will often also be complex. Under the Government’s proposals, welfare benefit cases, complex or otherwise, are excluded from the scope of legal aid.
I acknowledge that the scope of the hon. Lady’s new clause is slightly different from what was proposed in amendment 149. However, if it had been restricted to individuals with complex and interconnected needs who
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require legal help with complex welfare benefit issues, I suspect that we would have been discussing exactly the same area of legal aid, because virtually every individual who has a benefit advice problem involving issues of legal complexity, significant evidential hurdles or daunting adjudication processes will have complex and interconnected needs. According to Citizens Advice, that more targeted approach would help to achieve a compromise position whereby more complex cases can be covered by the legal help system. When we asked Citizens Advice what it would identify as a single priority as regards what the Government should change, that is what it proposed.
Citizens Advice has calculated the cost impact of its proposal. It says that the current welfare benefits advice spend is £25 million on just under 140,000 cases, and that restricting it to complex welfare benefit cases covering only reviews and appeals, which applies to two thirds of the current welfare benefit cases, would cost £16.5 million and help around 100,000 people. The cost could fall further if, as the Government and all hon. Members intend in practice, decision making first time round is improved and becomes much more effective. The CAB calculation is that if we were to improve first-time decision making by 30%, the costs of that provision could fall to £12 million.
Sir Alan Beith: Is it not absurd that the Government should be scrabbling around for money to meet the costs of bad decision making and bad communication between Departments and those who are affected by their decisions? Ought not the Government’s priority be to ensure that those Departments change those processes, which they are more likely to do if they have an incentive, which is provided by the fact that their budget will meet some of the costs if they do not do so?
Tom Brake: There has not been much consensus in the Chamber, but I suspect that there is broad agreement on that point.
Mr Slaughter: The right hon. Gentleman is absolutely right. The Liberty briefing paper states that the
“Community Links advice service records that…73% of the benefits related cases handled by their staff arose as a result of errors on the part of the Department of Work and Pensions.”
The Opposition agree with him, but we are where we are, and particularly at this time of change, we need certainty that those people will be properly represented. I think he said that he would not support new clause 17, but will he support amendment 116 and, later, the new clause in his name or the new clause relating to the Dowlers, which is in the name of my hon. Friend the Member for Rhondda (Chris Bryant)? He has given assurances outside the House and said that he supports those positions, but he now seems to be resiling from them. Will he and his hon. Friends support those measures? Will he answer that question now?
Tom Brake: I thank the hon. Gentleman for his intervention, which is in the tradition of his speeches—lengthy. He should perhaps have waited until I had finished my comments before jumping to any conclusions.
Karl Turner: Will you be supporting it?
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Tom Brake: We have rightly highlighted issues such as criminal negligence in earlier debates, and this afternoon we will focus on libel and slander cases that affect a relatively small number of people.
Karl Turner: Give us a clue Tom!
Mr Deputy Speaker (Mr Nigel Evans): Order.
Tom Brake: As I stated earlier, the simple change in new clause 12 affects a very large number of people—up to 100,000. As I mentioned in the debate yesterday, it is incumbent on Members who propose alternatives that mean the Government will spend more when they are trying to address a very large deficit to identify where funding for such proposals would come from. I hope we have an opportunity to debate amendment 144 this afternoon, because that would more than adequately cover the expenditure that the amendments would necessitate.
Alison Seabeck (Plymouth, Moor View) (Lab): The right hon. Gentleman talks about the need for Government Departments to look at how they interconnect. From my constituency case load experience, a significant number of those 100,000 people are likely to develop mental health problems as a result of the predicament in which they find themselves. Surely money invested in provision for them would save the Department of Health quite considerable moneys. Is he confident that coalition Front Benchers have been talking to each other to do that sort of cost-benefit analysis?
Tom Brake: The hon. Lady’s intervention is a fair one. I have raised the knock-on impact on other Departments directly with the Minister. I have received assurances that, for instance, the Department of Health has analysed the impact and does not see significant knock-on costs. That is the assurance that I have been given.
I conclude by urging the Minister to make a clear statement that the Government believe that the issue of complex welfare benefits is still up for negotiation, and that they will make progress on it in the Lords. If he cannot give such an assurance, and if the hon. Member for Makerfield presses new clause 17 to a Division, it is with regret that I would feel obliged to support it. I await the Minister’s response with interest.
2.45 pm
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC):
I have never been a tribal politician, and I understand the dynamics of the House, but I am very disappointed that the hon. Member for Edinburgh West (Mike Crockart) and his colleague, the right hon. Member for Carshalton and Wallington (Tom Brake), had nothing to say on this issue in Committee. Worse still, an amendment that would have dealt with clause 12 was pressed to a Division, but they declined to vote for it. Indeed, they voted against it. The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) came to the debate in the House on Monday and said that he was interested in dealing with the immigration law aspect in the Bill, but again, his colleagues said nothing about that in those lengthy Committee proceedings. The right hon. Gentleman said that he would pursue the matter. The modus operandi of the Liberal Democrat party is to sit on a Committee, do nothing, and then come back on Report and pretend they have done a hell of a lot. I am rather disappointed
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in the right hon. Member for Carshalton and Wallington in that regard. I have never been a tribal politician, but when I see this kind of behaviour, it makes me a bit sick.
Mr Slaughter: I have three headlines from The Guardian, which are like a tableau. From September, we have “Liberal Democrats urged to defy plans to cut legal aid”; from October, we have “Lib Dem MPs rebel against proposals to cut legal aid funding”; and from yesterday, we have “Lib Dems have their cake and eat it”. That last article features a lovely picture of the right hon. Member for Carshalton and Wallington (Tom Brake). They rebel, and at the last moment, they do not.
Mr Llwyd: I have made my point, so I will move on to the substance of this important debate, because others wish to speak.
I support the hon. Member for Makerfield (Yvonne Fovargue) on new clause 17, the amendments tabled by the Official Opposition, and new clause 43 and amendment 162, which were tabled by my hon. Friend the Member for Carmarthen East and Dinefwr (Jonathan Edwards).
However, I am against clause 12, which threatens through secondary legislation to limit advice and assistance at police stations. I shall not speak for long, but it is important to deal with one or two aspects of the measure. Clause 12 could thwart the fundamental right to legal advice when held in police custody, which frankly is a time when individuals are at their most vulnerable. That the Government did not consult on that measure has been widely criticised by many, and not simply those who allegedly want to raise money. The Lord Chief Justice is not dependent on legal aid, as far as I am aware.
I spoke in Committee of the importance of people having legal advice and assistance when they are detained in police stations. No consultation was held, but the measure was pushed through. Clause 12(3) is particularly worrying, because it would allow the Lord Chancellor to introduce regulations requiring the director to apply means-testing provisions if he or she considers them appropriate. It is well known that advice and assistance on arrest are not currently means-tested. The introduction of that in a police station is utterly inappropriate. What is more, as the Bar Council has pointed out, experience over the years shows that errors and abuses at police stations are responsible for very many miscarriages of justice, which cost not only lives, but finances.
Amendments 90, 104 and 125, which are in my name, would ensure that as a matter of course advice and assistance would continue to be made available for individuals held in police custody—they would not be subject to any means or merits testing. Amendment 104 would remove the word “station”, and amendment 125 would remove the need for a determination by a director. Furthermore, amendment 90 would remove subsection (9) and state in its place that:
“Sections 20 and 26(2) do not apply”.
The first point clarifies that means-testing cannot be introduced at police custody. Negating the application of clause 26(2) would ensure that the Lord Chancellor was unable to replace advice in person at police stations with
“services to be provided by telephone or by other electronic means.”
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Clause 12 has a grave potential to destabilise access to justice for some of the most vulnerable in our society. As Liberty has pointed out:
“Justice requires that, as a bare minimum, all individuals taken into police custody have access to legal advice and representation when facing criminal allegations with the potential loss of liberty, disruption and damage to reputation they entail.”
As anyone who has practised criminal law will know, the first couple of hours in custody can be crucial in determining whether a case goes further, even on to an interview. Most people, when facing a police interview, particularly for the first time, are unable to think clearly and may not be cognisant of their best interests. As I said in Committee, at the very least the initial interview at the police station should proceed on the basis that the solicitor will be paid for the first couple of hours. It seems that the Government were unwilling to listen to that concession.
Keith Vaz (Leicester East) (Lab): The right hon. Gentleman makes an important point which I support completely. However, there is another aspect to this matter. The solicitors who are available to give such legal advice usually have great expertise in the criminal law. If legal aid is removed and there is means-testing, the wrong type of professionals—those who do not have the expertise—will be available to give advice.
Mr Llwyd: The right hon. Gentleman is absolutely right. I note from my own experience that such people are highly qualified for the work that they do. If two hours are spent with a solicitor who is well-versed in procedure, a lot of work can be done and people’s reputations can be saved. It is vital that we do everything we can to retain that provision. I am not doing any special pleading for lawyers. I appreciate that there should be paring back in some areas of legal aid, but this is a fundamental matter of access to justice and it is important that the Government listen.
It is worth noting Liberty’s point that attempting to introduce means-testing when an individual is in police custody is likely to be “unworkable” because it
“requires documentary verification of financial resources”,
which an individual in custody is clearly unlikely to have on his or her person. That would again result in inevitable delay and the wasting of resources.
Jeremy Corbyn (Islington North) (Lab): The right hon. Gentleman is making an excellent point. Is he aware of any representations on this matter from police sources? They must be worried that suspects will be held in police stations for an excessive time while documentation is sought and possibly not found. They will then be forced either to release the suspect or to take them to court without access to a lawyer, which a lot of police forces would not be willing to do.
Mr Llwyd: The hon. Gentleman is absolutely correct. I will say a few words in a minute about the Police and Criminal Evidence Act 1984, which is important in this regard. Clause 12 will run a coach and horses through it.
I do not believe that clause 12 is well thought through. What is worse, it undermines one of the core principles of our justice system: fair and equal access to justice for all citizens. I therefore cannot support it.
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The Law Society’s head of legal aid, Richard Miller, has said:
“This is not only an assault on the rights of citizens, it is also a logistical nightmare to operate in practice.”
He has said that substantial hidden costs undoubtedly will follow and that it will be “simply unworkable”. Max Hill, the chair of the Criminal Bar Association, said that the Government were meddling with a “fundamental right”:
“To contemplate some sort of qualitative testing to decide when and if a member of the public should receive legal representation and advice…is deeply alarming.”
As I said, I will not speak at length, but I will say a word about miscarriages of justice. We know of a spate of miscarriages of justice that occurred in the ’70s and ’80s, and there was an official inquiry into several of them. The Birmingham Six were jailed for life in 1975 for pub bombings. The convictions were overturned in 1991 after evidence emerged of the police’s fabrication of confessions and suppression of evidence. The Guildford Four were convicted of a bombing in the same year. The conviction was secured on confessions that were obtained through coercion, violence and threats by the police. They were acquitted in 1989.
Jeremy Corbyn: The right hon. Gentleman is making a strong point. However, the Guildford Four were actually the first people to be arrested and convicted under the Prevention of Terrorism (Temporary Provisions) Act 1974, which meant that they were specifically denied access to anyone at the time of arrest. That was not the case with the Birmingham Six, who instead were abused in the police station.
Mr Llwyd: I stand corrected. I am pleased that the hon. Gentleman has corrected the record for me. However, my point still stands.
Stefan Kiszko wrongly served 16 years for rape and murder after being arrested in 1975. He confessed to the police after three days of questioning without a lawyer. That and several similar cases gave rise to the Police and Criminal Evidence Act, which gave a detained person the protection of proper legal advice. It also, crucially, gave protection to the police, which is the point made by the hon. Member for Islington North (Jeremy Corbyn). Clause 12 will undoubtedly drive a coach and horses through the 1984 Act and I believe that it should be resisted at all costs.
Stephen Lloyd (Eastbourne) (LD): I rise to speak on new clause 17. I pay tribute to the hon. Member for Makerfield (Yvonne Fovargue), who was the chair of the all-party parliamentary group on Citizens Advice before I took over. I endorse what my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) said. Originally we wanted to speak to amendment 149 under the social welfare grouping on Monday night and it was disappointing that that group was not reached. Consequently, although I do not agree entirely with new clause 17, I am minded to support it, particularly given how it relates to Citizens Advice.
Some of my points have been made by my right hon. Friend the Member for Carshalton and Wallington. I reiterate that at a time when we are making radical
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changes to the welfare system by introducing universal credit, replacing disability living allowance and making substantial changes to employment and support allowance, it is unwise to withdraw the support for people who are challenging bad decisions. As we all know, in the process of reform, mistakes can be made. As I am sure the House is aware, the introduction of ESA has generated a significant volume of appeals and 39% of ESA appeals are still being found in favour of the appellant. The position of the Department for Work and Pensions is that welfare advice should not be funded on issues of benefit entitlement because advice is available through DWP agencies such as Jobcentre Plus. However, I strongly believe that the solution is not to take welfare advice out of the scope of legal aid altogether, but to make appropriate distinctions over whether problems involve issues of complexity.
Kate Green (Stretford and Urmston) (Lab): I support a great deal of what the hon. Gentleman is saying. Does he agree that it is inappropriate for people to rely only on advice from Jobcentre Plus when they may need advice because they wish to challenge the decisions of that agency?
Stephen Lloyd: I agree with the hon. Lady. It is good to see her taking part in the debate, because she sat on the Work and Pensions Committee with me before she was promoted to her very high place. She makes a strong point that emphasises that the solution is not to take welfare advice out of the scope of legal aid altogether, but to make appropriate distinctions, as it states in new clause 17, over whether problems involve issues of complexity. The issues that end up before tribunals are often extremely complex and involve the interpretation of statutes and case law precedent. It is wholly unrealistic to expect somebody without specialist knowledge to undertake that. Legal advice is essential, in my view, to the fairness of the appeals process.
3 pm
By definition, the people who would be denied help are vulnerable and less able to help themselves. Ill and disabled people make up 58% of those who will be affected by removing legal aid from welfare advice. Reviews and appeals should be treated separately from more routine matters and it should be noted that work on appeals and reviews accounts for only 66% of current welfare benefit casework undertaken under Legal Services Commission contracts. Consequently, restricting legal aid to reviews and appeals would reduce the welfare legal aid bill by 40% from £16.5 million, as my right hon. Friend the Member for Carshalton and Wallington said. That is a significant cut, as I am sure the Minister is aware, and it would help the 100,000 people involved—and they would be the most vulnerable 100,000.
I support new clause 17 and unless I hear a clear message from the Minister on the points that we—and especially my right hon. Friend—have made, I shall support it in the Lobby.
Valerie Vaz (Walsall South) (Lab): I declare an interest as—or confess that I am—a lawyer. I was a solicitor for more than 20 years, and I worked for the Treasury Solicitor’s Department and the Ministry of Justice, as well as in private practice and the public sector, on behalf of local authorities.
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I am concerned by the removal of welfare benefit, education and debt recovery cases from the scope of legal aid. Those are the kind of bread and butter issues that used to be dealt with under the green form scheme. I wish to reassure hon. Members who are concerned that lawyers are in it for the money that we often used to give advice for nothing to people who came through our doors: we went over the time limit but never claimed for it. So we can knock on the head the idea that lawyers are only in it for the money.
When I acted for local authorities in possession cases, we found that tenants who were going to be evicted were better informed when they had advice from the duty solicitor. I sat as a deputy district judge and it was much better when the people who appeared before me were not litigants in person. If they have a lawyer to give them proper advice, less court time is taken up.
Keith Vaz: One of the problems with the reduction in legal aid is that a whole generation of lawyers with expertise in welfare, immigration and education law will disappear. The only type of lawyers churned out of law colleges will be those who can do corporate litigation.
Valerie Vaz: I absolutely agree with my right hon. Friend, who has taught me more than he will ever realise. He has in common with the Lord Chancellor the fact that they both attended the very eminent lawyers’ college, Gonville and Caius.
I saw cases from both sides—tenants and local authorities—and it was very important for people to be able to access legal advice. More and more parents are now resorting to the use of lawyers to get their children into the school of their choice. If they can afford it, that is fine, but what if they just want basic advice on how to attend an appeal? That is very important for parents who cannot afford lawyers.
By happy coincidence, I acted in Hammersmith and Fulham v. Monk, a case that went straight to the House of Lords—at the time, my hon. Friend the Member for Hammersmith (Mr Slaughter) was a very good deputy leader of the council—because it involved an important question of principle. Could one of two joint tenants sever the tenancy by serving a notice to quit on the landlord? The result of that case was that we could rehouse women who were victims of domestic violence and retain the property involved. Mr Monk was legally aided, and it was important that that principle was decided by the House of Lords.
Another local authority wanted to settle the same question, and legal aid was available in that case too, but I took the decision that it would be sufficient for only one case to go forward, so lawyers do put brakes on extensive costs. I have had the privilege of litigating on behalf of the Government and, as the House will know, we have one of the finest judiciaries in the world. Judges can keep account of costs and they do not allow lawyers to go on and on and run up costs, but they also have to take their time when a litigant in person is appearing before them. There are also other ways to reduce costs, such as the Littlewoods clause. If someone has received legal aid and then come into money—by winning the pools, for example—the Government can claw back the money. Judges can also make a wasted costs order against lawyers who waste time in court.
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I am a member of the Health Committee and we investigated clinical negligence, which now costs the state £800 million, whereas if it had stayed within the scope of legal aid it would cost only £17 million. That is a huge difference, and I wish the Government would think again. Even the NHS Litigation Authority said:
“The reduction in availability of public funding for clinical negligence claims and the corresponding rise in Conditional Fee Arrangements, backed by After the Event insurance, has also contributed very significantly to the cost of litigation”.
Who can get legal aid? That is a very important question and I have three examples of why that is so. The LSC gave legal aid to the Nepalese Gurkhas, and we know how that turned out. It was a very important principle concerning people who had fought and died for their country. It gave legal aid to Sean Hodgson, who was wrongly convicted and was freed after 27 years. It also gave legal aid to Colin Ross, a cancer patient who won a battle in the High Court for life-saving drug treatment that could give him an extra three years of life. Mr Ross received legal aid to challenge a decision by West Sussex PCT to refuse funding for the drug he wanted.
In the recent case of W v. M, S and an NHS primary care trust, Mr Justice Baker said:
“Given the fundamental issues involved in cases involving the withdrawal of ANH”—
artificial nutrition and hydration—
“it is alarming to the court that public funding has not been available to members of the family to assist them in prosecuting their application. In the event, the applicant’s team has acted pro bono throughout the hearing and during much of the very extensive preparation.”
That goes to the heart of what legal aid is all about. It is important to test legal principles. That is what judges are for, and it forms part of the checks and balances on the Executive. The late Lord Bingham called the rule of law
“an ideal worth striving for”.
The same sentiment applies to access to justice, so that we remain a United Kingdom. I urge the Government to think again about these divisive proposals.
Mr David Ward (Bradford East) (LD): We have heard some naughty stuff from the Opposition. I remember serving on a Public Bill Committee shortly after I arrived in the House. Now, I am a lad from Bradford, and we have this strange practice in Bradford: when we agree with something we vote for it, and when we disagree with something we vote against it. I went into Committee, and of course people soon told me, “That’s not the way you do it. If something comes from the other side, even if it’s a good amendment, you simply don’t accept it.” [Hon. Members: “Name them!”] I understand that that was common practice in the previous Parliament. [Hon. Members: “Name them!”] That is a tad nosey.
I am not a lawyer, but many, many people have come through my constituency door who desperately need, but cannot afford, a lawyer. I have serious concerns about these proposals, and I am very much in favour of new clause 17. Another thing that I quickly learnt when I came here was that there were unintended consequences. I had never heard of those before, to be honest, but I soon realised that when something goes wrong a bit later in the day—six months or a year later, perhaps—we
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say, “Well, it was unintended consequences.” That is basically a euphemism for, “We got it wrong.” In Bradford, we say, “We made a bad decision.”
Often we make bad decisions—that is the way of it—but, when we analyse why we are making bad decisions, often we find that it is because we failed to gather information or consult. Well, we have consulted on this, and we have a body of evidence. I thank the Liberal Democrat Lawyers Association for the information that it provided for us—no doubt other groups have provided information for other Members—and I am also grateful for the information from Citizens Advice. In particular, there are the case studies. Let us consider the consequences of the proposals. We can all look into the future and guess, but there are examples—case studies—of people receiving legal aid who simply will not receive it if these proposals go through. I am speaking for five or 10 minutes and could give hon. Members a couple of examples, but if I spoke for 20 minutes I could give three or four more; if I spoke for an hour I could give a dozen, and if I stayed here for a week I could give hundreds of case studies, one after another, of people who would be badly affected by the proposals.
We have received valuable information from the Law Society about the fictitious nature of the savings. They just will not be generated. In fact the proposals will probably add to costs in many ways. I am seriously concerned that, given the body of evidence available, including the huge number of case studies and examples from our constituencies, the consequences will not be unintended. These will be intended consequences; what will happen will be what the Government intended to happen. Various suggestions have been made of alternative measures that people could take—for example, they could represent themselves, or seek support from advice services—but the overall intention is that people will just go away. They will not be supported—but they will not go away, will they? Their problems will remain, and will probably get more serious, and indeed more costly.
Yvonne Fovargue: Does the hon. Gentleman agree that it is worth reminding the House of the costs of taking a case under the legal aid scheme? A welfare benefits case costs £164. That is what the agency gets for dealing with it. It is £200 for a debt case and £174 for a housing case—and I believe that those costs have been cut by 10% from 1 August. These are not high-cost cases; this is extremely good value for money.
Mr Ward: Absolutely. I actually deleted some of my speech because of the figures that the hon. Lady quoted earlier, which highlighted my point about the fictitious nature of the cuts, the costs and the value for money to the public purse.
Jeremy Corbyn: The hon. Gentleman is making an important point. Let us consider the parallel of immigration law. If individuals do not have access to a lawyer to deal with an immigration case they go to an immigration adviser, who might end up, over a period, getting a great deal of money out of them, often almost by coercion, in return for very bad advice that often results in disaster. The legal aid process means that people get qualified lawyers giving sensible intelligent advice, which will save us all a great deal more money in the future.
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3.15 pm
Mr Ward: Absolutely. I have come across some pretty scary cases involving several hundred pounds of single-sheet letters from lawyers, but I have had no joy in trying to bring them to the attention of the Law Society. The hon. Gentleman is right. The present system represents good value for money to the public purse.
Lyn Brown: I thank the hon. Gentleman for giving way; he is being very generous. Community Links, an amazing voluntary organisation in my constituency, provides welfare and benefit advice and is funded, in part, by legal aid. A 10% cut in its fees will jeopardise any remaining advice that it can provide, because it already subsidises the legal aid fees coming in. I presume that he has had the same experience in Bradford.
Mr Ward: Absolutely. We have talked about the evidence, but it is almost so overwhelming that we must begin to wonder what is behind this. What on earth is going on here?
An answer that I have been given is that this is all in the coalition agreement.
Occasionally I try to abide by the coalition agreement, but this is not in there. There is in the coalition agreement something about the deficit reduction, and I am up for that—we do desperately need to reduce it—but I am not convinced that this will contribute to that. It is a very dangerous thing if we are going to use deficit reduction as a justification for almost anything that we might do. We have to question what we are doing.
Mr Ward: I need to bring my speech to an end. Others need to speak.
One thing that the coalition agreement does say is that we should have a fundamental review of legal aid. I am up for that. Absolutely. Where is it? Why on earth are we taking these measures? The Business, Innovation and Skills Committee is due to undertake a debt management review, and there are a series of other reviews looking at advice centres and the work that they do. We should do that first.
Karl Turner: I am grateful to the hon. Gentleman for giving way. He is making a powerful speech on behalf of his constituents, and he is also speaking for many Opposition Members. Has he thought about crossing the Floor and joining us?
Mr Ward: I tell you what: I promise to do so once we have sorted out the mess you left us in. I shall come across then, because it will just be so much easier—
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Mr Deputy Speaker (Mr Nigel Evans): Order. The hon. Gentleman is using the word “you”, but as he knows, that refers to me. Could he please refrain from using that word?
Mr Ward: I apologise, Mr Deputy Speaker.
Someone once told me that the world is divided into two groups of people. There are those who, when they see somebody walking down the street with a walking stick, believe in kicking the stick away because it will make that person stronger, and there are those who believe that if they kick away the stick, the person will just fall over. We are in grave danger of making some of those who are, by definition, the most vulnerable in our society fall over, and we will still have to be there to pick them up, at even greater cost to the public purse. It does not make sense; we should not do it.
Karl Turner: I of course support new clause 17, standing in the name of my hon. Friend the Member for Makerfield (Yvonne Fovargue). However, I will restrict my remarks to amendment 116, standing in the name of my hon. Friend the Member for Hammersmith (Mr Slaughter) and those of many Lib Dem Members, for what it is worth. Clause 12 will effectively provide for means-testing in the police station. I have many concerns about that from my experience as a lawyer. I have practised criminal law as a solicitor for many years—indeed, my wife is a qualified criminal duty solicitor—and shortly before the general election I joined my local chambers as a pupil barrister. I therefore come to this debate with some experience as a criminal lawyer.
I want briefly to talk about the practical difficulties of means-testing people in a police station. Let us imagine the situation—it happened last weekend, in fact. My wife’s pager goes off. It is three o’clock in the morning. She spends the next six hours in Priory Road police station, representing a young man who is suspected of very serious criminal offences. She is not in a position to go through the paperwork or CDS—criminal defence service—application form to make a claim for legal aid in that situation. What the client wants to know is: “How long am I going to be here?”, “What are the consequences if I’m charged?”, “What will happen if I end up appearing before the magistrates court?” and, at the end of the day, “What will happen if I am convicted?” The question is not: “How much do you earn?” That is the last thing that the client will want to put their mind to. Indeed, the solicitor in attendance would not be acting in a proper way if they asked that question. I firmly believe that everybody should be entitled to free and independent legal advice while in a police station. It is a fundamental right in a democratic society, and to remove it would be a huge mistake.
I have spoken briefly about the practicalities, but it is also important to spend a moment thinking about what used to happen. My hon. Friend the Member for Walsall South (Valerie Vaz) mentioned the green form. Yesterday evening I spoke to a solicitor who has been around long enough to remember the days of the green form. He told me that he used to send his secretary, or anybody in the office who was available. Things have changed for the better. People need to be qualified; they have to attend courses. I remember doing them: I did not like it very much at the time, but I went along, I paid the money—or the people who employed
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me did—I did the homework, I passed the examinations and I carried on with my CPD, or continuing professional development.
I did that because when I am called to a police station as a solicitor, it is important that I know what consent means in relation to an allegation of rape. It is important that I can explain what defences might be available. It is important that I have enough knowledge and experience to be able to say to a client, “It’s in your best interests to speak to the police,” or, “In my professional opinion, it’s not in your best interests to speak to the police.” We must not think that everybody who attends at a police station is guilty of a terrible crime. In my experience the contrary is true. The vast majority of detainees in police stations are either not charged, released on bail pending further inquiries, or, if they are charged, acquitted. A minority of cases make their way to the courtroom and end in a conviction. Everybody is entitled to access to a solicitor. It is a fundamental right, which, in my opinion, this Government are putting at risk.
I should mention the situation before the Police and Criminal Evidence Act 1984. Hon. Members have touched on it, but we had the Birmingham Six and the Guildford Four—great miscarriages of justice—and we learned from that. I think I am right in saying that the current Lord Chancellor was responsible for the 1984 Act, which was the right thing to introduce. Before PACE was introduced, people were making “confessions” that it later transpired were not proper confessions at all. It is important to remember that time. Miscarriages of justice cost the country an awful lot of money, but it is not just about money; it is about the effect on society when people can be convicted for something that they did not do and when they were nowhere near the scene. That seems appalling and very short-sighted.
Another concern for me is adverse inferences from silence. I have not looked at case law recently, but eminent barristers on both sides of the House will be familiar with it. The most recent case I am aware of is Murray v. UK. If my memory serves me correctly—I admit I have read only a summary of the court case—it says that a jury could not be invited to hold an inference against a person’s silence in the police station if that person was prevented from seeking legal advice in that police station. I believe that this is one of the unintended consequences that the hon. Member for Bradford East (Mr Ward) spoke about.
Let us imagine this scenario. A solicitor turns up at a police station to see a client and quickly establishes that the client has enough money to be able to pay for his own legal advice. Acting quite properly in the best interests of my client, I would say, “Keep your mouth shut.” I would tell the client to say absolutely nothing. I cannot afford to hang around because I am not getting paid and I am not sure that I will be paid even if the client makes an undertaking and assures me that the money will be brought to the firm of solicitors for which I work at some point in the future. I would probably be thinking, “I’m going. I’m not going to get any disclosure from the police, but in the best interests of my client I am going to tell him or her to keep their mouth firmly shut.” That provides an opportunity at some point in the future for that suspect effectively to make up their defence. It removes a valuable tool for the judiciary and the jury to decide whether they think an inference should be made from the client’s silence at the police station. This is a massive mistake.
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This Government have not consulted on this proposal in clause 12. From a sedentary intervention I told the Minister earlier that it was probably written on the back of a fag packet. With respect, I think it probably was. There has been absolutely no consultation. I have spoken to many solicitors who have said that this proposal just came out of the blue. Nobody expected this. The Law Society was shocked. I have had meetings with the Bar Council and the Law Society, and they have told me that they did not expect this.
Mr David Burrowes (Enfield, Southgate) (Con): I am grateful to the hon. Gentleman, who has much experience in this area. I declare an interest as a duty solicitor still on the books for doing my duty at police stations. I share many of the hon. Gentleman’s concerns about the practical application of a clause that I understand the Government have indicated they have no immediate plans to implement. Will he expand on the details about the interests of justice test? Does he agree that there is specific interest of justice in respect of the advice and assistance at the police station given to a detainee who has already lost his liberty? The issue of stating his case is different from what it would be in court, and he might need specific, independent advice.
Karl Turner: I would need more time to think about that, but I am tempted to say that I agree with the hon. Gentleman’s second point. On the first point, however, am I supposed to believe the Minister when he says, “Well, we want this on the face of the Bill, but we are never going to use it.”? That is absolute, utter and complete nonsense. I asked my researcher to make inquiries with the Library and find out on how many occasions the previous Government—of whom I am entirely proud—may have used this provision as a tool. My researcher came back to me to say, “As far as the Library is concerned, there is no example whatever of a Government building provisions into an Act of Parliament that they never have any intention of using.” It is complete and utter nonsense to suggest that that is the case.
Karl Turner: I will not give way, because many other Members are keen to speak in this important debate.
It worries me that the Government are ignoring expert advice on a proposal which, in my view, would remove a fundamental right from citizens, and that there has been no consultation whatsoever. The Bar Council and the Law Society have expressed honest concerns about the legislation, but the Government have completely ignored them, which is outrageous. Many members of the Bill Committee took that point on board, but in an article one of them, the hon. Member for Ipswich (Ben Gummer), described the Bar Council as bewigged Scargillites. I assure the House that my colleagues at the Bar are far from being bewigged Scargillites.
3.30 pm
During my time as a criminal lawyer I defended the last Government on many occasions, and it is nonsense to say that that Labour Government were not generous to publicly funded lawyers. However, I believe that a fixed fee in a police station is now about a hundred and
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sixty quid; it is certainly less than two hundred. If I were still a solicitor and the pager went off, I would have to go to the police station with no idea of what awaited me. I would hope to be there for five minutes, but I might well be there for six, seven, eight, nine or 10 hours, or even longer.
It is utterly disgraceful to suggest that publicly funded lawyers are earning vast sums. As of 3 October this year, solicitors are not paid committal fees in a magistrates court. That effectively means that if a case is committed to the Crown Court, whether under section 51 of the Crime and Disorder Act 1998 or because the defendant elects for it, the solicitor will not be paid for the work. So when will solicitors be paid? They will not be paid in a police station, and they will not be paid if the case is committed to the Crown Court.
Is not the Government’s plan simply to squeeze solicitors out of the game? Clause 12 suggests that they expect them to work for free. Make no mistake: that is what it is all about. It is true that big solicitors’ firms with mixed practices dealing with other areas of law involving private payment may well survive, retain a criminal franchise and employ people to do a job, but I can tell the House that it is not cheap to employ an accredited police station representative. I do not know for sure because I have never been one, but I would guess that their salaries are between 25 and 30 grand a year. A newly qualified solicitor in my area, Hull, probably earns between £22,000 and £26,000. Moreover, the courses that solicitors must attend in order to become qualified to give legal advice in a police station cost many hundreds of pounds, and it is not a one-off cost. When people become qualified to give such advice, that is not the end of the matter, because they are required to engage in CPD as they continue in practice.
It is unbelievably short-sighted of this disgraceful Tory-led coalition Government, disgracefully propped up by the Liberal Democrats, to suggest that this might be a good idea. [Interruption.] I am not sure what the Under-Secretary, the hon. Member for Reigate (Mr Blunt), said from a sedentary position, but I am sure it was not worth hearing. The reality is—make no mistake about it—that this will cost an awful lot more money in the long run. I am glad I have put that on the record because at some point in the future I will be saying it again to those on the Treasury Bench.
Ben Gummer (Ipswich) (Con): It is always a considerable pleasure to follow the hon. Member for Kingston upon Hull East (Karl Turner). His speech was passionate, well informed and full of some good sense. I was unable to support a similar amendment of his in Committee, because on one rather important issue I disagree with him. I do not think it is wrong in principle for a millionaire who has been convicted of murder to be charged for the legal defence they received at the police station. However, I do agree with the hon. Gentleman that what is important is the point at which that charging happens.
Karl Turner: I have a great deal of respect for the hon. Gentleman, too. I mean that sincerely.
I recall attending a police station to represent a doctor who had an NHS practice as well as a private practice. If he had said to me, “Listen, I’ll pay you,” I would not have continued to advise him in what was a
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very important case. When a solicitor turns up at a police station in such circumstances, they cannot be sure they will be paid. Even if the doctor had given me an absolute, cast-iron assurance that I would get that money, the firm of solicitors that employed me would not have allowed me to stay there. That is why I disagreed with the amendment of the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) in Committee. He suggested that two hours should be free, and then there could be charging. I disagree; I think anybody in a police-station scenario should be entitled to free and independent legal advice.
Ben Gummer: At the risk of this turning into a mutual affection session, let me say that I understand the hon. Gentleman’s point and agree with the foundation of his argument, which is that the Police and Criminal Evidence Act 1984 was the most significant advance in criminal law in this country since the second world war and we must take into account the abuses that led to its introduction. On that basis, it is an important principle that there should be free and unmolested legal advice at the point of arrest for all people, no matter how much they are worth, so that no one need be worried about the quality of the advice they are getting.
We could, however, debate whether it is appropriate to have retrospective charging for people of means who have subsequently been convicted.
Mr Burrowes: All Members want there to be proper access to justice for all, and informed legal advice that can address miscarriages of justice and uphold people’s basic human rights in police stations. Might those charges be best recovered at the point of conviction? That would not create risks in respect of access to justice. Also, in prosecutions by the Department for Work and Pensions and other agencies, applications are made that cover the costs for the whole of the investigation as well as the court costs.
Ben Gummer: I bow to my hon. Friend’s superior experience of such matters. There might be a mechanism under which retrospective charging would be possible. We could debate that, and Members on both sides of the House would make reasonable arguments. Given the phrasing of the provision currently under discussion however, such a debate is not possible now.
I hope the Government will be able to provide assurances on another problem. In principle, I am against contingent legislation. I remember sitting up in the Public Gallery when I was very small, watching others in this Chamber discuss prevention of terrorism legislation. The then Opposition, headed by Neil Kinnock, were arguing passionately against that legislation for precisely the reason I am discussing. I do not think that they were right in that circumstance, but I find troubling the idea of putting contingent legislation on the statute book that could be re-enacted by order later without reference to Parliament. I hope, therefore, that the Government will either flesh out their proposals for the retrospective charging of defendants should they be convicted or decide to approach this matter in a different way.
Lyn Brown: I wonder whether the hon. Gentleman could help us on the motivation of his Front-Bench team for making this clause contingent. Does the Minister need people to walk through the Lobby with him and they might otherwise not choose to do so?
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Ben Gummer: The motivation of my right hon. and hon. Friends on the Front Bench is unimpeachable, as I have found from sitting behind them in the Public Bill Committee.
Mr Llwyd: First, I agree with the hon. Gentleman about that form of legislation and he makes a valid point. A couple of minutes ago, he asked why a millionaire or multi-millionaire should not pay for legal advice and assistance. In my experience, the vast majority of very wealthy people have their own lawyers and in many cases they actually carry their number with them all the time.
Ben Gummer: The right hon. Gentleman makes a reasonable point. However, a point of principle is involved here. I do not understand why people on low incomes in my constituency or that of the hon. Member for Kingston upon Hull East should be subsidising the legal advice of those who can pay for it at a later date should they be convicted of a crime. We can have a debate about this. All I am saying is that we should have the debate now, perhaps with a new clause, or address it in another place in a different way.
I move on to the new clause tabled by the hon. Member for Makerfield (Yvonne Fovargue). Her expertise in social welfare law is probably unparalleled in this House and I very much value what she brought to this debate. However, I would remind her—I hope that she will not take this remiss—that at the last election she stood on a manifesto promising cuts in legal aid. Although the examples that she gave were pertinent, no recommendation has come from the Opposition Front-Bench team as to the alternatives they would introduce, either to make cuts elsewhere, which would otherwise be seen in her area of advice—
Ben Gummer: May I just finish my point? At the beginning—
Ben Gummer: I will give way to the shadow Minister.
Mr Slaughter: I hope that we can make some progress in this debate now. This is not helping—[Interruption.] The Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly) is laughing. I hope that he is not going back on his earlier promise that we would make progress today. Had the hon. Member for Ipswich (Ben Gummer) been here earlier, he would have heard me deal with that point, in terms and at length, in response to an intervention from the Chair of the Select Committee. Will he stop wasting time?
Ben Gummer:
The hon. Gentleman is a little previous. Had he allowed me to continue my point, as I had asked, he would have heard me address exactly what he said. I did hear what he said, albeit outside the Chamber. Let me deal with this point about the Opposition. If they are to be credible, they have to make alternative proposals for cuts to legal aid, which they promised in their manifesto and have promised since, to this Chamber. A few months ago, during the Public Bill Committee, they clung to the proposals made by the Bar Council and the Law Society, until those proposals fell apart. They fell apart to the extent that the Bar Council and
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the Law Society have had to revise them in a resubmitted document provided earlier this week. That was the Opposition’s first cost-reduction plan and it was not one of their own making—it was made by others.
Some £245 million-worth of amendments were tabled by the Opposition in the Public Bill Committee, along the lines of those proposed by the hon. Member for Makerfield, but with no suggestions as to where cuts might be made elsewhere. So we get to a point where there is a complete absence of the other side of policy from Her Majesty’s Opposition—it might provide some credibility to what they propose—until perhaps today, when the hon. Member for Hammersmith (Mr Slaughter) appears before the House saying, “We are going to bring in accelerated competitive tendering in criminal defence work.”
3.45 pm
I have to admit something rather embarrassing to the House. I am afraid I am a constituent of the hon. Member for Hammersmith (Mr Slaughter). At the last election I received a great deal of communication from him, much of which revolved around the third runway at Heathrow, which he valiantly opposed.
Sadiq Khan (Tooting) (Lab): This is just filibustering.
Ben Gummer: This is not filibustering. I will explain why. [Interruption.] I got the impression that a promethean career had been cut short by the principles of the hon. Member for Hammersmith, but at no point—
Karl Turner: On a point of order, Mr Deputy Speaker. Can you offer some guidance? When time is short and we are keen to debate the important issues in the Bill, is it right for hon. Members to go off the point so widely?
Mr Deputy Speaker (Mr Nigel Evans): I am allowing a little latitude, and I mean a little. I am sure Mr Gummer will wish to get his remarks straight back on to the business before us.
Ben Gummer: I was about to say that in none of that communication did I receive any indication that the hon. Member for Hammersmith disapproved of the previous Government’s termination of competitive tendering for legal services in 2009. On that point he was silent. There was no outrage that the scheme that he is now proposing had been stopped by the previous Government, no sense that he would step down from a position on that point, as he would on the issue of the third terminal. Thus this modern-day Prometheus has been found wanting.
May I ask, therefore, that in their submissions we may have a little more substance from the Opposition on how they might pay for the many amendments that they have tabled on Report, instead of their jumping on every passing bandwagon and every interest group to which they can plead?
Jonathan Edwards (Carmarthen East and Dinefwr) (PC):
I begin by declaring an interest as somebody who used to work for Citizens Advice Cymru before being elected to this place, and who currently serves as the
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secretary of the Citizens Advice all-party parliamentary group. I shall speak to new clause 43 and amendment 162 in my name. They are probing amendments so I shall be brief, but colleagues in the other place might want to pursue the matter in greater detail, especially as the amendments carry the support of the official Opposition, for which I am extremely grateful.
The amendments are supported by advice organisations concerned that a strict interpretation of legislation may leave holes in the legal aid safety net. From a pragmatic and practical perspective, the intention of the amendments is to allow funding for the provision of advice from third sector independent and impartial advice organisations to assist with understanding a case, without the requirement to provide formal and costly legal representation. That will help the Government achieve some of the savings aims in the Bill. In technical terms, the amendment would give the Lord Chancellor discretion to permit transfers from the legal aid budget to other funding streams for the provision of advice on issues to which schedule 1 does not apply.
If schedule 1 is to be the future shape of civil legal aid, the scheme needs to work alongside advice services which deal with other legal issues, such as debt problems, issues of benefit entitlement and appeals under social security law, employment rights and immigration decisions. On a practical level, it is a waste of resources if legal aid clients cannot receive holistic advice. I know that that is something on which Citizens Advice prides itself. There will also be many cases at the margins of the situations covered in schedule 1, and the Legal Services Commission’s response to the Green Paper highlighted the problem of what it calls boundary issues, warning that
“the administration costs of considering such cases could erode revenue savings that the Ministry of Justice has committed itself to.”
That addresses some of the points that Opposition Members have raised throughout the debate on the Bill and draws attention to the unintended financial consequences of what the Government are trying to pursue. I will close as I want to allow colleagues to speak about other parts of the Bill, but it would be helpful if, in response, the Government could explain how the concerns of civil society bodies about access to advice as a result of the prescriptive nature of schedule 1 will be addressed.
Simon Hughes (Bermondsey and Old Southwark) (LD): I am conscious that we have had two hours of debate already and I am keen, as are other Members, to get through all four groups of amendments if humanly possible, so I will make only a few comments. It is appropriate that contributions from both sides of the House, including from the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards), have made the case for the Government to proceed sensitively on this delicate issue.
My position is very clear: I signed up to the coalition agreement without reservation because it was the only realistic game in town. It was important to accept that one of the things that would drive Government policy was the need to reduce the deficit. That is right and necessary, so it is right that every Department should carry its share of that responsibility. As my hon. Friend the Member for Bradford East (Mr Ward) made clear, the coalition agreement stated that there would be a review of the legal aid system to make it work more
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efficiently. If the Government are also to achieve their other objective, which is to ensure that the vulnerable are protected in a time of economy austerity and reduced spending, we must ensure that this part of public spending protects and assists them as much as possible. That is where the sensitivity arises.
Like other Members who have spoken, I am lawyer, but I am not here to defend the lawyers. We need good lawyers, such as the hon. Member for Walsall South (Valerie Vaz) and many others, who come to law not to be paid six-figure salaries in large commercial firms, but to be paid £25,000 or £35,000 a year, often working 40, 50, 60 or 70 hour-weeks, in citizens advice bureaux. There is a very worthwhile legal advice centre in my constituency, the Cambridge House law centre in Southwark, and many other such places. We are here to ensure that the issues they raise are on the agenda.
We are also here because in constituencies with high levels of unemployment and deprivation, such as mine, and in every other constituency, there are huge numbers of people who from time to time need legal support in the most difficult circumstances. We must ensure that the welfare net is protected. We have a very generous system, which cannot go on in the short term, but we must make the right decisions. All the attempts in the new clauses that concern me try to persuade the Government of that fact. I have five areas of concern and will flag up one relating specifically to the amendment that has not been spoken to already, but which I hope the Government will be able to respond to positively.
Stephen Lloyd: My right hon. Friend mentioned the good work that many lawyers do in this area—not the commercial fat cats—and touched briefly on Citizens Advice. Does he agree that the good work done by hundreds, if not thousands, of CAB legal advisers, who are not even lawyers but provide excellent advice, is absolutely unparalleled and that it would be a tragedy if any of the Government’s proposals led to cuts in that work?
Simon Hughes: None of us can stand up and say that there do not have to be reductions, but of course it is not just the lawyers, the citizens advice bureaux or the other advice bureaux we should be concerned about; it is advice workers and qualified advice workers too.
The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who has just left the Chamber, tried to wind us up earlier. I have one objective in these considerations: if I do not think that a Bill was in the right place when it began, I want to ensure that it ends up in the right place by the time it becomes law, As we know, the reality is that sometimes we can make and win an argument in Committee, but it is very rare for a Government to be defeated in Committee. Sometimes the argument can be won on Report. Arguments are normally won when the Government have been persuaded not only in the Chamber, but outside it. I have had meetings with the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly) and other colleagues, as have many other Members. The press reports that my colleagues on the Liberal Democrat Benches want to make further progress and changes, and we will continue in that.
We have heard that the Minister was very good and said in response to my amendment 145 which we debated on Monday that he would look specifically at the issue
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of family reunion, and I take him at his word. I think that that is a case where we need change, and I have no reason to think that, if he is helpful today, we cannot make significant progress. Of course, it would be lovely if all the amendments were made today, but we are not necessarily at that stage.
Tom Brake: My right hon. Friend has been a Member for many years. Can he recall on how many occasions when the Labour party was in power and we as an Opposition party put forward amendments in Committee that we received its support?
Simon Hughes: I cannot, either because there were none or they were very rare. To be serious, however, I have been a Member not quite for ever but for a long time under both Labour and Tory Governments, and I do not want to get distracted by that, because in reality we on the Liberal Democrat Benches all seek to work with the Government to get the right outcome, and we will do so constructively. We shall do that not by megaphone diplomacy but in a way that I hope is persuasive in argument and wins the day.
4 pm
I was as frustrated as everybody else when the final two groups of amendment were not debated on Monday, so I hope that Ministers will be sensitive to one thing that we lost out on, which was onward appeals. The Minister has it on his list, as amendment 147, and there is an issue when somebody who loses a case wins it on appeal but then the Government appeal on a matter of law. It seems important to ensure that there is parity between the citizen and the state, and I hope the Government concede that.
I absolutely understand the case that the hon. Member for Makerfield (Yvonne Fovargue) makes in her new clause. I have many constituents—we all do—who present with one issue, whereupon we discover that there are four, or their whole life is in a mess, whereupon we have to start trying to put it together again. Their situation will involve finance, relationships and housing, and it may involve the custody or care of children, but those complex cases absolutely need to be looked at and with legal support. That ties in to my point about telephone advice services, because people with such complex needs—whether or not they have plastic bags when they come through the door—cannot quickly and efficiently put their case on the telephone. Sometimes they cannot do so face to face, either, but one is much more likely to get an answer having had face-to-face engagement than if one tries to do so remotely, on the telephone.
Sir Alan Beith: Does my right hon. Friend agree, however, that in just those cases a high proportion of the advice required is not legal advice, but the advice of a sensible person with some experience in the area? Bodies such as Citizens Advice are very good at providing it.