Legal Aid, Sentencing and Punishment
of Offenders bill

The Committee consisted of the following Members:

Chairs: Mr Philip Hollobone  , †Jim Sheridan 

† Blunt, Mr Crispin (Parliamentary Under-Secretary of State for Justice)  

† Brake, Tom (Carshalton and Wallington) (LD) 

† Buckland, Mr Robert (South Swindon) (Con) 

† Crockart, Mike (Edinburgh West) (LD) 

† Cunningham, Alex (Stockton North) (Lab) 

† Djanogly, Mr Jonathan (Parliamentary Under-Secretary of State for Justice)  

† Fovargue, Yvonne (Makerfield) (Lab) 

† Goodman, Helen (Bishop Auckland) (Lab) 

† Green, Kate (Stretford and Urmston) (Lab) 

† Gummer, Ben (Ipswich) (Con) 

† Hinds, Damian (East Hampshire) (Con) 

† Lee, Jessica (Erewash) (Con) 

† Llwyd, Mr Elfyn (Dwyfor Meirionnydd) (PC) 

† Reynolds, Jonathan (Stalybridge and Hyde) (Lab/Co-op) 

† Slaughter, Mr Andy (Hammersmith) (Lab) 

† Soubry, Anna (Broxtowe) (Con) 

† Truss, Elizabeth (South West Norfolk) (Con) 

† Turner, Karl (Kingston upon Hull East) (Lab) 

† Wallace, Mr Ben (Wyre and Preston North) (Con) 

† Watts, Mr Dave (St Helens North) (Lab) 

† Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Kate Emms, Committee Clerk

† attended the Committee

Public Bill Committee 

Tuesday 6 September 2011  

(Afternoon)  

[Jim Sheridan in the Chair] 

Legal Aid, Sentencing and Punishment of Offenders Bill

Clause 1 

Lord Chancellor’s functions 

Amendment proposed (this day): 86, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that any individual wishing to access legal aid through face to face provision shall be entitled so to do and shall not be compelled to do so through a telephone gateway.’.—(Kate Green.)

4 pm 

Question again proposed, That the amendment be made. 

The Chair:  I remind the Committee that with this we are discussing the following: amendment 87, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that before any proposals to provide legal aid through a telephone gateway are progressed a full further public consultation takes place on the specific details of such proposals and such proposals are fully assessed for cost.’.

Amendment 88, in clause 1, page 2, line 7, at end add— 

‘(6) The Lord Chancellor must ensure that if a telephone gateway is introduced sufficient protection is in place to protect the rights of those who would have problems accessing it by reason of learning difficulties, mental health problems, language difficulties, problems of literacy, or from not being articulate.’.

Amendment 118, in clause 15, page 11, line 22, at end insert— 

‘( ) An individual to whom representation is made available under this Part for the purpose of criminal proceedings may select any representative willing to act for that individual, and where such a selection is made the representation is to be by way of legal services provided by the selected representative.’.

Amendment 108, in clause 26, page 20, line 34, leave out subsections (1) to (4) and insert— 

‘(1) Subject to subsection (2) the Lord Chancellor may discharge his duty under section 1(1) by arranging for services to be provided by telephone or by other electronic means.

(2) The Lord Chancellor may not arrange for services to be provided by telephone or electronic means where an individual requests that advice be provided in person.

(3) An individual who qualifies under this Part for representation for the purposes of any civil or criminal legal services may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).’.

Amendment 109, in clause 26, page 21, line 24, leave out subsections (8) to (10). 

Amendment 115, in clause 38, page 27, line 39, leave out ‘or (8)’. 

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly):  Welcome back to the Committee, Mr Sheridan. As I was saying earlier, these would be emergency cases: instances where the clients have been assessed by the mandatory single gateway within the last 12 months as requiring face-to-face advice and are seeking further help from the same face-to-face provider to resolve linked problems; clients in detention, including prisons, detention centres and secure hospitals; and children, defined as those under 18. Where an operator is in any doubt about whether a caller’s problem is within scope or whether the caller is financially eligible for legal aid, he or she will be referred to a specialist adviser. Gateway operators will not offer the callers any advice tailored specifically to their circumstances, so legal qualifications will not be a contractual requirement. 

In the consultation response, we announced that where clients access the community legal advice helpline through the mandatory single gateway in those four areas of law, clients who are eligible for legal aid will be transferred to CLA specialist telephone advisers. That will be subject to exceptions where face-to-face advice is more appropriate, such as when clients are in detention, including in secure hospitals. In addition, both gateway call operators and specialist advisers will assess the specific needs of all callers case by case, and will, as appropriate, refer them to a face-to-face advice service if that is considered necessary. Subject to those exceptions, legal aid specialist advice in those four areas will be available only by telephone. 

The Government have considered carefully the issues raised in the responses to the consultation paper regarding the provision by telephone of civil legal aid services. However, it is appropriate that we seek to provide services in a cost-effective manner that meets clients’ needs. 

Kate Green (Stretford and Urmston) (Lab):  I apologise if I missed something that the Minister said; the break for lunch has left me slightly out of mind of what he was saying earlier. He has been clear that gateway operators will not be contractually required to have legal qualifications, but did he make clear the position in relation to the specialist legal advisers who will offer telephone advice once people have passed through the gateway? 

Mr Djanogly:  I think that I did, but let me finish, and if I need to return to the issue, the hon. Lady should feel free to intervene again. 

The hon. Lady and the hon. Member for Hammersmith queried how the telephone service will work. I need to tell them as a starting point that the CLA helpline is a successful operation. It already handles more than 500,000 calls each year and provides a full casework service at the level of civil legal help, offering more than 100,000 acts of assistance each year. It is clear from the remarks made by the hon. Member for Hammersmith that he does not like call centres. More than 90% of clients who spoke to a CLA— 

4.3 pm 

Sitting suspended for a Division in the House.  

4.20 pm 

On resuming—  

Mr Djanogly:  I was saying that more than 90% of clients who spoke to the CLA specialist adviser said that they would recommend the service to others. In addition, cases typically cost significantly less than the equivalent face-to-face service. The hon. Member for Stretford and Urmston asked about the cost specifically. There should be no net cost as it is clear that significant savings can be achieved by increasing both the proportion of applications to legal aid made by telephone and the proportion of legally aided advice provided by telephone. She also asked about the qualifications of specialist telephone advisers. I can tell her that they are required to have the same level of qualifications as their face-to-face equivalents and a supervisor would have to be legally qualified. Contracted specialist telephone advisers are required to meet a higher peer-review standard than face-to-face advice providers as a consequence. 

Yvonne Fovargue (Makerfield) (Lab):  Given that the cases that are in scope will be a lot narrower in future, how will the advisers keep up their professional development and be able to see cases in the round? How will they keep up with cases that they do not see, because they will need that knowledge to be able to refer correctly? 

Mr Djanogly:  I would have thought that, to the extent that they are specialists, they will be specialising in the area in which they are giving advice, but I am happy to drop a line to the hon. Lady on that particular issue. 

Mr Dave Watts (St Helens North) (Lab):  Will the advice given by referral be recorded and will that recorded information be available to each of the persons seeking advice? In my experience, people hardly ever criticise the advice that they get in the face-to-face meeting, but there are often disputes about what was said in a phone call. 

Mr Djanogly:  My understanding is that the information is recorded. On the extent to which it is accessible, I will come back to the hon. Gentleman by letter. 

The hon. Member for Stretford and Urmston asked whether the telephone service is financially viable for providers. Tenders for CLA contracts attracted a great deal of interest, and there have not been any instances of CLA providers going into administration. 

Amendment 87 would place a duty on the Lord Chancellor to undertake a further consultation and a further cost assessment on the use of the telephone gateway to apply for legal aid services. We have consulted on the proposals. The Government asked five questions about the CLA helpline in the consultation paper. Those questions covered the mandatory single gateway to apply for civil legal aid, receiving legally aided advice by telephone and paid-for advice. 

On 7 January this year, the Government published further detail on the CLA helpline proposals alongside the consultation paper. The document clarified the fact that the helpline would not be the mandatory single gateway for emergency cases and set up further information on the operation of the current CLA helpline. In addition, a revised impact assessment on the telephone helpline proposals was published with the Government’s consultation response in June. I can confirm that we will review whether further consultation is appropriate before extending the mandatory nature of the helpline

to other areas of law. There is no need for a statutory duty to conduct a consultation or to perform a cost assessment. 

Amendment 88 would place a duty on the Lord Chancellor to ensure that provisions were put in place so that people with specific needs could apply for civil legal aid advice without using a telephone gateway. The Government accept that a mandatory single telephone gateway and mandatory specialist advice by telephone could, in principle, present a barrier for some people applying for legal aid services. That point was made by the hon. Member for Stretford and Urmston and the right hon. Member for Dwyfor Meirionnydd. However, we believe that the design of the existing CLA telephone helpline service and our proposed future gateway service will ensure that those barriers can be removed sufficiently for the effective delivery of the required service. 

Specific examples of existing adaptations to the CLA service that will continue to mitigate against barriers include a three-way translation service for clients with limited or no spoken English or Welsh; a British sign language service available via webcam, minicom, and Typetalk for deaf and deafened callers; and, where clients give approval, friends, family members or other professionals calling the service on their behalf. 

In addition, the needs of all callers will be assessed case by case, and, where appropriate, callers will be referred to a face-to-face advice service. The key consideration will be whether the client is able to give instructions and act on the advice given. Where an operator or, in case of doubt, a specialist telephone adviser believes that a caller is unable to give or receive legal instruction by telephone, the caller will be referred to a face-to-face provider. 

Amendment 108 would prevent the Lord Chancellor from insisting that legally aided services be delivered by telephone, or by some other electronic means, if an individual eligible for such services requested that they be delivered by a face-to-face provider. In addition, the amendment would allow individuals in civil proceedings to select their own legal representative if representation were required in line with the provisions made for the selection of a representative in criminal proceedings. 

The specialist telephone advice hotline will provide a consistent level of service to all callers, irrespective of where they are located, and it will be of additional benefit to those who cannot easily access face-to-face advice, such as those who live in remote areas or those who have a physical disability. Callers can access the service at a time and place convenient to them and they can quickly get help. As I said, the helpline also offers a range of facilities to help people to access telephone advice. 

The Government accepted the argument that introducing the mandatory single gateway in areas of law in which the majority of clients would ultimately require access to face-to-face advice would be of limited benefit at this stage. However, we will review implementation of the mandatory single gateway and mandatory specialist advice over the telephone for the four areas of law, and we will use the outcome of that review to determine any expansion of the helpline to other areas of law in due course. 

The hon. Member for Stretford and Urmston asked what will happen if advisers on the telephone line offer negligent advice. The same safeguards that apply to

face-to-face services apply equally to telephone advice. Client satisfaction with the service is extremely high—more than 90% of clients using the specialist telephone advice service said that they would recommend it to others. 

Ben Gummer (Ipswich) (Con):  I welcome the idea that it might be appropriate to record some conversations, or to have the facility to do so, because in my surgeries I have heard of many instances of poor advice being given from advice centres, and people have little recourse when that happens. People can at least go back and hold telephone advice centres to account. 

Mr Djanogly:  My hon. Friend makes a valuable contribution. 

The hon. Member for Stretford and Urmston asked about people who have no access to the phone, but Ofcom data indicate that only 1% of the population are in that position. In such cases, clients can allow third parties—family, friends or professionals—to call the service on their behalf. 

The hon. Lady also expressed concern about the possibility of deprivation of client choice. In the four areas to which the gateway applies, people seeking legally aided advice must access the gateway service, but they will be given some choice about how to do so. For example, they can request a call-back through an online request form or by sending a mobile phone text message to the gateway. Clients with problems in areas of law that are in scope of legal aid, but where the gateway does not apply, have the choice of calling the helpline or contacting a face-to-face provider direct. 

Amendment 108 relates to giving an individual in civil cases the same rights as those in criminal cases concerning the choice of a legal representative. In criminal cases, people will be able to select their own representative, subject to regulations in clause 26, which may limit choice in the ways referred to in subsection (6). For example, the right may be restricted to choosing a representative from a prescribed area only, or of a prescribed description. Choice is currently limited to those who hold contracts with the Legal Services Commission. Representation in criminal proceedings will always require someone to represent an individual in court. Civil advice may not be related to court proceedings and a representative may not be required. It is right, therefore, for the Lord Chancellor to decide the most appropriate type of advice for the individual, and that the provisions on representatives in criminal proceedings should not apply. 

Some low-level criminal cases receive telephone advice only via Criminal Defence Service Direct at the police station stage. Amendments 109 and 118 would add provision about the choice of provider in clause 15 and omit subsections (8) to (10) of clause 26. Those provisions in clause 26 relate specifically to an individual’s choice of provider of criminal legal aid or representation. Amendment 115 is a consequential amendment. 

4.30 pm 

Our intention is that in criminal cases, as at the moment, an individual must select a provider with whom the Lord Chancellor has entered into a contract or other arrangements. The Government believe that it

is important that only those providers that have been assessed as having the necessary capability to deliver legal aid services can be paid under the legal aid scheme. As currently under section 15 of the Access to Justice Act 1999, clause 26 enables particular restrictions to be placed on an individual’s ability to select a representative for representation for the purposes of criminal proceedings. One of those restrictions is dealt with in clause 26(8) to (10). It would allow the Lord Chancellor by regulation to require an individual to choose a new representative in prescribed circumstances. The current power to impose such a restriction is in section 15(5) and (6) of the 1999 Act. The circumstances in which an individual is required to choose a new representative for representation for the purposes of criminal proceedings are intended to be limited. The provisions are not intended to require a change of representative, unless there are sound policy reasons for doing so. 

It might assist the Committee if I provide an example. In the past, the Criminal Defence Service (Very High Cost Cases) Regulations 2008 have required an individual to choose a new representative. The regulations became necessary when a very high cost case panel was set up by the LSC to provide representation in very high cost cases. If an individual’s representative was not a member of that panel, the individual was required to choose a representative who was a panel member. 

For all those reasons, I invite hon. Members not to press their amendments. 

Kate Green:  I listened with care to the Minister’s response, because I respect the argument that telephone advice and, potentially, a telephone gateway have an important place in the range of services offered. As the Minister went on, however, it was increasingly clear that the service will be insufficient to meet the needs of the most vulnerable and disadvantaged. Indeed, his remarks were complacent on ensuring that those needs will be adequately met. I accept that there are circumstances in which telephone access can work well, but it is wrong for the Bill to leave that as the only route to advice for those who are coming forward with cases in the four categories of law proposed. 

I hope that the Minister will reassure us that calls will be fully recorded. We need to understand the nature of that recording: will it be a live recording, so that we can hear what the adviser and the caller said to each other, or will the records merely be on paper which, unless they are transcriptions, will inevitably contain an element of interpretation that could also be open to challenge? 

I fear that several concerns about the telephone gateway remain on which the Minister has not been able to provide clear reassurance. I want to restate what we see as the importance of offering that choice, so that appropriate routes to justice can be provided for individuals on whatever category of law they want advice. I therefore intend to press amendment 86 to a Division, but not amendments 87 and 88. 

Question put, That the amendment be made:— 

The Committee divided: Ayes 9, Noes 11. 

Division No. 6 ]  

AYES

NOES

Question accordingly negatived.  

Clause 1 ordered to stand part of the Bill. 

Clause 2 

Arrangements 

Mr Andy Slaughter (Hammersmith) (Lab):  I beg to move amendment 3, in clause 2, page 2, line 9, leave out ‘may’ and insert ‘must’. 

The Chair:  With this it will be convenient to discuss the following: 

Amendment 70, in clause 2, page 2, line 20, at end insert— 

‘(3A) Before making regulations relating to the payment of remuneration to barristers and solicitors in accordance with subsection (3) the Lord Chancellor shall consult the General Council of the Bar and the Law Society.

(3B) Where the Lord Chancellor makes regulations in accordance with subsection (3) he shall have regard to the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies.’.

Amendment 5, in clause 2, page 2, line 25, leave out subsection (5). 

Mr Slaughter:  It is a pleasure to see you chairing the Committee again, Mr Sheridan, after the recess. I know from your comments at the beginning of the first sitting of debate that you favour brevity, and I shall be brief in discussing the amendments. We are informed—[ Interruption. ] Perhaps it is good that I did not hear that. 

We have pointed out that we are concerned about quality, given the amount of money and resources being taken out of the legal aid system. It is therefore important to discuss amendments to the clause, which deals with standards. Briefly, it is more imperative than ever for the Lord Chancellor to set high standards, and we therefore think that there should be mandatory, rather than optional, provision, as set out in amendment 3. 

Amendment 5 is a probing amendment. The provision could be read in two ways, and I hope that the Minister will clarify how it should be read. If the purpose of subsection (5) is to establish a level playing field, we have no problem with it; if it is to create a postcode lottery, we have many problems with it. There will clearly be difficulties when cuts of this order go through, and there will be different difficulties in different parts of the country. 

The level of need and complexity of cases in urban areas and constituencies such as mine, is different, perhaps, from that in other parts of the country that are more monoglot, with less social need, fewer social problems and less mobility and diversity of population. However, I am well aware that there is equal concern among hon. Members who represent rural areas about the prospect that they might become advice deserts, where there is less provision, with long distances to travel, and where there is less specialism and expertise, and in some cases no service at all. 

Perhaps the Government want, notwithstanding the Minister’s earlier complacent comments, to deal with each constituency or local authority area on the basis of what is required to ensure that there is a proper standard or degree of provision of advice services in an area, and we would support that. However, there is an ambiguity, which suggests that, as in other areas of Government policy, we may be moving towards local choice and a situation in which whoever has the most money and the loudest voice gets the best deal. That is something that we would not support. I shall say no more about that now, and if the Minister wants to respond on that point it would be a delight. 

I do not want to pre-empt what my hon. Friend the Member for Makerfield will say on her slightly more interesting amendment, save to make one or two points. Fees are a thorny subject, and they have been caricatured somewhat unfairly in parts of the press, no doubt with encouragement from the Government and their press officers, as being about fat cat lawyers. Some of us know—some of us might not appreciate the point—that legal aid lawyers on the whole are not fat cats, and that when they and their representative associations speak, they do so on behalf of their clients and the people whom they represent. I met the new chair of the Criminal Bar Association yesterday, who tells me that the number of people in criminal legal aid pupillages—those seeking to do legal aid work—has gone down by about 50% over the past two years. 

Mr Robert Buckland (South Swindon) (Con):  I am a registered pupil master—a trainee supervisor. The hon. Gentleman makes a proper point about the decline in criminal legal aid pupillages, but that has been going on for about five or six years, because of the progressive cuts to criminal legal aid that the previous Government initiated and revelled in, as evidenced by the shadow Justice Secretary’s remarks when the Lord Chancellor announced the Green Paper. 

Mr Slaughter:  If that is the hon. Gentleman’s best point, I wonder what regard he would give to it if he were sitting and that point was made before him. If he is saying that the decline is because there were cuts right up until the end of the previous Administration—I accept that there were, and I will not shy away from the issue of fees—that draws more attention to the fact that there will be a further cut now. 

The Government have characterised the hit that legal aid practitioners—both criminal and civil—are being asked to take as taking their fair share, by putting it alongside the public sector pay freeze and other cuts in that sector. Yet, the hon. Gentleman’s point is that they have had real terms cuts in relatively recent history and that now there will be additional ones. I therefore put

the issue back to him; he can talk about the previous Administration as much as he wants, but let us deal with the proposals in the Bill. 

Mr Djanogly:  Let me make the point that the cuts that this Administration are bringing in have not yet been implemented. Therefore, the hon. Gentleman’s original point about pupil masters not taking on pupils does not relate to cuts that this Government have brought in, but to cuts under the previous Administration. 

Mr Slaughter:  I ask the Minister not to put words into my mouth. My point is that we take the situation as it is at the moment. The Government have said, I think—the Minister might or might not share this view—that they believe that some contraction in the legal profession is appropriate. At what point does that stop? At what point does it become necessary to look at the overall provision in that way? 

Mr Watts:  Will the Government publish figures for the average salary for solicitors acting on legal aid, in both criminal and family law, and what their likely income will be once the latest cuts are implemented? 

Mr Slaughter:  I hope that the Minister will supply those figures, and that we will deal with objective facts rather than with rumour and innuendo, which is, I feel, how the Government have conducted this, through the press. They are at liberty to do that, but it means that they will be taken considerably less seriously when they try to make their points. I hope that the Minister accepts that, and that he accepts that the legal profession wishes to have a coherent system with high standards. I hope that those issues are put before personal gain in many cases, and that the Government will also objectively want to see that. 

As it has been explained to me, the recent consultation on fees was not a happy one. It was a brief consultation in August, and there was a large number of responses that the Government did not appear to take seriously, seeming to have just gone through the motions. As I have said, I do not want to trespass on what my hon. Friend the Member for Makerfield is going to say, but amendment 70 relates to consultation. It does not address absolute levels of fees, or what is right and wrong. It simply states that there should be proper consultation which should be written into the Bill, and that, where there is a clear opinion in the profession, due note should be taken.

4.45 pm 

It is necessary for there to be a sufficient supply of providers of sufficient quality to provide a sufficient level of service. It is necessary to have qualified providers and to ensure that we are not constantly levelling down because the levels of remuneration available attract only those who are qualified at a very early level. We are fortunate in this country that barristers and solicitors at all levels undertake publicly funded work. They may undertake it as a mix, but one can certainly not say, as one can say in other jurisdictions—whether they are prosecutors or defenders, in civil or criminal work—that one is getting a lower standard of service from publicly

funded lawyers than one would get from privately funded lawyers, on the whole. That is something that we must preserve. 

That safety net was provided by section 25 of the Access to Justice Act 1999, to which the right hon. Member for Dwyfor Meirionnydd referred, and is repealed by schedule 5 of the Bill. We will no longer have that, so it is more important than ever to ensure that standards are preserved. The amendments ask the Government to ensure that that happens. One way in which that will happen is to ensure that, in collaboration and in co-operation with the professions, fees are set at an appropriate level. That will ensure a consistent, high and universally available standard of legal representation, be it publicly funded or not. 

Yvonne Fovargue:  Amendment 70 would mean that, before making changes to remuneration, the Lord Chancellor was obliged to discuss the changes with the Law Society and the General Council of the Bar. Most importantly, it would ensure that the regulations keep in mind the need to maintain a sufficient body of competent providers. Significant fee cuts, as my hon. Friend the Member for Hammersmith said, would create a climate in which legal aid work becomes the domain of the inexperienced legal professional, regardless of the complexity of the issues and the importance of the interests at stake. 

All legal aid providers, both solicitors and not for profit, have a break-even point and a point where services break down. If fees for providers continue to be arbitrarily reduced, they could back out. There is already a shortage of legal aid providers in many areas, creating advice deserts that we have heard about from my hon. Friend the Member for Stretford and Urmston. They may opt to continue with less supervision, less experienced and qualified staff, and drive down costs further. Legal aid work has to be of a consistently high standard equivalent to privately funded work, or else we cannot guarantee equality of justice. It cannot be ensured by using less experienced staff if they are expected to carry out complex work beyond their experience and without adequate levels of supervision and training. People with complex cases, unusual cases and cases that require a knowledge of the past, case law and a breadth of experience could very well lose out. 

The amendment simply adds a requirement that the Lord Chancellor consults prior to setting remuneration and listens to those representing the front line, has a conversation about the stability of the legal aid scheme and the fact that it will apply across the board based on the proposed fees, and then makes a decision in the full knowledge of the effect that that will have on the legal aid profession. 

Mr Djanogly:  The amendments seek to convert the power of the Lord Chancellor, set out in subsection (1), into a duty to remove the Lord Chancellor’s powers to make different arrangements for different areas, cases and persons. The amendments also seek to include provisions in relation to the matters that the Lord Chancellor must take into account when setting remuneration rates. A statutory requirement would also be created to consult the Bar Council and the Law Society when setting remuneration rates. Amendment 3 is unnecessary, because clause 1 already places a clear

duty on the Lord Chancellor to ensure that legal aid is made available in accordance with part 1 of the Bill. To fulfil that primary duty, it will be necessary—indeed, essential—for the Lord Chancellor to make appropriate arrangements. As a Minister of the Crown, the Lord Chancellor already has many of the powers that he needs to perform his functions under part 1—for example, to enter into contracts relating to his functions. Clause 2 complements the existing powers and will ensure that the Lord Chancellor may make any other arrangements that are appropriate for fulfilling the legal aid functions. That important measure of flexibility will ensure that the most appropriate arrangements can be put in place. 

The current arrangements made by the Legal Services Commission are generally contracting arrangements that act as a licence to solicitors firms to carry out certain types of work. In addition, applications for funding in individual cases often cover advocacy services. Those arrangements are likely to continue under the new scheme, although it is important to retain the flexibility to adapt, given the wider regulatory changes currently being made to the legal services market. 

I reiterate that amendment 3 is unnecessary, as clause 1 will ensure that the Lord Chancellor must secure the availability of legal aid in accordance with part 1, while clause 2 builds on that by giving the Lord Chancellor the power to make appropriate arrangements in carrying out that duty. An obligation on the Lord Chancellor to make such arrangements as he considers appropriate would add nothing to the primary duty. 

Amendment 5 would remove subsection (5), which is designed to provide the Lord Chancellor with a degree of flexibility and replicates a similar provision in the Access to Justice Act 1999. I confirm to the hon. Member for Hammersmith that it is not an attempt at postcode lottery. Retaining that flexibility is important for several reasons. Its primary purpose is to allow the Lord Chancellor to conduct pilots of new arrangements, such as the current virtual court pilot that is being run, under the Access to Justice Act, for individuals arrested and taken to specific police stations in specific areas. 

The clause may be used to deal with emergency situations—for example, where a police station is unexpectedly closed. Police station work is in part geographically bound under LSC contracts and the ability to divert additional resources to any police station, absorbing increasing volumes as a consequence of another closing, is therefore extremely important, as was seen in Hull following the devastating flooding in 2007. As similar provisions allowed at that time, the clause will allow the Lord Chancellor to put in place special arrangements when they are required in a particular area and to depart from the standard arrangements that would already have been made. 

Should the provision be removed, the Lord Chancellor would lose that important flexibility and the opportunity to respond to changes in circumstances, practices and technology, which would be highly undesirable. It is difficult to amend primary legislation, but that would be the only option were a change in approach to be necessary and if the power in the clause were not available to the Lord Chancellor. 

I am sure that hon. Members will agree that, when setting remuneration rates, the Lord Chancellor should properly have regard to all relevant considerations and that the Bill should not imply otherwise. Amendment 70,

which would retain the duty to consult on remuneration orders with the Bar Council and the Law Society, is also unnecessary. We will continue to engage with them about remuneration matters whenever it is appropriate and constructive to do so, which is not precluded by the absence of a statutory duty. On that basis, the amendment is not needed. 

I say to the hon. Member for Hammersmith that we understand that the professions want a coherent and solid structure to their legal aid fees. That is exactly why we have carried out a proper consultation rather than having the ongoing rounds of cuts that took place under the previous Administration, who carried out more than 30 consultations and failed in their criminal contracting proposals. 

Several hon. Members referred to the issue of market sustainability. We made it clear in the consultation response that we will work in conjunction with the LSC to develop and to put in place a new and robust client and provider strategy that both reflects the demands and requirements of the new legal aid market and extracts the maximum value from ongoing structural developments in the legal market. We are confident that there will be sufficient providers willing to undertake legal aid work under the new strategy once the proposals have been implemented. Therefore, there is no need for a statutory requirement, such as there is in section 25(3) of the Access to Justice Act. 

Mr Watts:  Will the Minister address the question that I put to my hon. Friend the Member for Hammersmith, our Front-Bench spokesman? I asked him whether the Government had carried out an assessment of the average earnings of a solicitor acting on legal aid, family and criminal law now, and an assessment of what the impact of the new rates will be. 

Mr Djanogly:  The answer is yes—full public consultation on the Government’s fee reforms took place as part of the consultation paper, “Proposals for the Reform of Legal Aid in England and Wales”, which ran for three months. Everyone, including the representative bodies, had the opportunity to respond to that consultation and detailed comments on fee reforms were received and carefully considered. The recent consultation that the hon. Gentleman refers to was a technical statutory consultation relating to the draft order implementing the proposals and was not a consultation on the policy per se. 

Mr Watts:  On that same point, can the Minister indicate the sorts of salaries that solicitors were earning before these changes and what they will earn in future, if he has those figures? 

Mr Djanogly:  I do not have those figures to hand. They were in the consultation document. They are, of course, publicly available. If the hon. Gentleman wishes to have them given to him again, I am sure that the Department can provide him with that information. 

Some hon. Members have referred to detailed aspects of the fee reforms that we set out in the consultation response. However, those reforms are not directly relevant to the provisions in the Bill. Recently, we introduced the necessary secondary legislation to implement the fee

reforms under the existing legislative framework, which include the provision that this amendment seeks to replicate. The consultation response includes a detailed analysis of the issue of market sustainability and, as set out in the consultation response, the conclusion that we reached is that, on balance, the proposed fee reforms are likely to be sustainable. In addition, if there should be any short-term disruption in supply in some areas, mitigating measures are available to manage that disruption. Therefore, I urge hon. Members not to press their amendments. 

Mr Slaughter:  I accept what the Minister says in relation to amendments 5 and 3; I do not accept what he says in relation to amendment 70. If my hon. Friend the Member for Makerfield is minded to do so, we will put that amendment to the vote. We would do so for the reason that there is clearly no meeting of minds between the Government and the profession. Relations between the two must be at an all-time low. Regarding the Minister’s assurances that he and the profession wish to see coherent and effective bodies for solicitors and barristers operating throughout the country, I take them with a great pinch of salt. 

I note the comments of the current Attorney-General, which were made two years ago when the current Government were not in power. His view then—I think that it has been quoted quite well—was that, as far as those doing family and legal aid work were concerned, most of them were as poor as church mice, legal aid rates were plainly not commercial rates and the profit margins were minute. There seems to be some amnesia as far as the Government are concerned about the remarks that the current Attorney-General made at that time. 

I ask my hon. Friend to put amendment 70 to the vote. However, I beg to ask leave to withdraw amendment 3. 

Amendment, by leave, withdrawn.  

Amendment proposed: 70, in clause 2, page 2, line 20, at end insert— 

‘(3A) Before making regulations relating to the payment of remuneration to barristers and solicitors in accordance with subsection (3) the Lord Chancellor shall consult the General Council of the Bar and the Law Society.

(3B) Where the Lord Chancellor makes regulations in accordance with subsection (3) he shall have regard to the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies.’.—(Yvonne Fovargue.)

The Committee divided: Ayes 9, Noes 11. 

Division No. 7 ]  

AYES

NOES

Question accordingly negatived.  

Mr Djanogly:  I beg to move amendment 17, in clause 2, page 2, line 22, after ‘court’ insert ‘, tribunal’. 

The Chair:  With this it will be convenient to discuss Government amendments 18, 20, 21, 25 to 27, 30, 33, 46, 56 and 57. 

Mr Djanogly:  Despite their number, these are purely technical amendments to ensure that the Bill makes consistent reference to a court, tribunal or other person throughout part 1. 

Amendment agreed to.  

Amendment made: 18, in clause 2, page 2, line 23, after ‘court’ insert ‘, tribunal’.—(Mr Djanogly.)  

Clause 2, as amended, ordered to stand part of the Bill.  

Clause 3 

Standards of service 

5 pm 

Yvonne Fovargue:  I beg to move amendment 64, in clause 3, page 2, line 31, at beginning insert— 

‘(A1) In carrying out the Lord Chancellor’s functions under this Part, the Lord Chancellor must have regard to the need to ensure that legally aided advice and representation is of comparable quality to non-legally aided advice and representation.’.

The Chair:  With this it will be convenient to discuss the following: amendment 65, in clause 3, page 2, line 31, leave out ‘may’ and insert ‘must’. 

Amendment 71, in clause 3, page 2, line 33, leave out ‘may’ and insert ‘must’. 

Amendment 6, in clause 3, page 2, line 42, after ‘may’, insert ‘not’. 

Amendment 67, in clause 3, page 3, line 3, leave out subsection (5) and insert— 

‘(5) The Lord Chancellor in setting and monitoring standards under this Part must have regard to the financial and administrative burden placed on the legal profession.

(6) The Lord Chancellor in setting and monitoring standards under this Part must have regard to the long-term sustainability of the legal profession and the need adequately to train and supervise new entrants to the profession.’.

Yvonne Fovargue:  Amendment 64 would ensure that the Lord Chancellor takes account of the comparative quality of advice and representation and ensures equality between legally aided clients and those with the funds to afford private advice. Currently, that is done through membership of one of the Law Society’s accreditation schemes, which certify providers’ expertise. Each area has different accreditations, and the further restriction of tolerances after close examination of equality demonstrates the complexity of each subject and the fact that professionals concentrating on and working within that area provide a better standard of service to their clients. 

Accreditation is important, but the monitoring of standards and quality assurance throughout the life of the contract are equally important. The specialist quality mark is much prized and not easy to gain; it takes a lot of work and demonstrates a wide range of managerial and subject-based knowledge. However, having worked within the system, I think that peer review demonstrates quality and provides a great basis for improvement. By sending off cases to an experienced adviser and getting back comments a few months later, advisers can discuss where they disagree or agree and what they could improve. It is expensive, but it is vital that the quality of legally aided work is not allowed to slip and that a two-tier legal system is not created that allows those who can pay a higher standard of service. What will replace the current accreditation, awarding of contracts and monitoring? Will there be a new system? How will it be developed, and who will pay for it? 

Amendment 65 is a simple amendment to change “may” to “must” to reinforce the Lord Chancellor’s duty to monitor service standards. I will not rehash the arguments, but I stress that the standard and quality of service to legally aided clients must be continually kept as high as that of service to self-funded clients. Legally aided clients have the least financial resources and often the most complex problems. If we let their standards slip, we fail them. “May” is not enough. This is an absolutely crucial duty of the Lord Chancellor that needs to be enshrined in law. 

Amendment 71 would reinforce the mandatory nature of the Lord Chancellor’s duty to make sure that providers are vetted and competent before being allowed to do legal aid work. I can remember a time when there were no standards for legal aid work and people could just apply for it. We had a lot more complaints at Citizens Advice at that time than we have had since a quality mark was established. 

I would like to discuss amendment 67, which, again, is about the quality of work. Standards are important and must be monitored, but having worked with the Legal Services Commission, I have to say that it is now noticeable that the cost of monitoring is slipping from the purchaser—the Legal Services Commission—to the provider. Together with the cuts in the fees, that is putting an incredible burden on providers. When I managed the contract, even before the 10% proposed cut in fees, there were discussions regarding the cost-benefit analysis to the rest of my service, because approximately 60% of management time was spent monitoring 30% of the income stream. That detracted from my ability to go out and get more funding for the service. If the burden is increased by insisting that providers pay for accreditation and monitoring in addition to managing, it may well tip the balance. 

Another issue relates to joint working with agencies that already monitor standards of information. I remember when I had three audits in a week that all looked at the same management systems and placed a totally unnecessary burden on my organisation. I would have happily looked at quality of work as often as required, but having three people, all of whom work with and talk to each other on Citizens Advice and the Legal Services Commission, looking at the same accounts and financial planning information is surely not the way to run a service. The cost of the administration of the LSC appears to have gone up and up. The goalposts have continually changed

and providers have always felt as if they were being kicked down the line. There must be regard to the monitoring given to sustainability and the ability to bring through new entrants to the profession. 

Supervisors should not be so overloaded with bureaucratic requirements that they have no time to mentor and train new and inexperienced staff. Sometimes, it was felt that we were monitoring for monitoring sake and left wondering what was happening. As I say, quality should not be compromised and peer review was extremely important. However, some of the best and most dedicated lawyers and advisers in the country work with legally aided clients, and any scheme put in place must not deter those people from continuing to work in the sector. 

Mr Slaughter:  I will be brief. I shall just speak to the amendments in my name because I have made the comments that I wish to make in relation to a two-tier legal system, and my hon. Friend the Member for Makerfield has said everything that needs to be said on her amendments. On her point about accreditation and its costs, I would like to add that this is yet another way of bearing down on the already very tight margins that exist on legal aid providers. The measure comes in addition to fee reductions, the reductions in scope and the other squeezes on the budget as a result of cuts from other sources of funding. It is effectively the fourth nail in the coffin. As my hon. Friend says correctly, there is an increasing trend to put the burden on providers. 

Accreditation in the legal profession has moved on in an extraordinary fashion in the past 20 years, which is not to say that there were not always high standards. There was not an effective system of accreditation, yet we now have quality marks and peer reviews. Those continuing methods of professional development are taken very seriously by the profession. I can remember trying to qualify for the Bar mark and the effort that was put in to ensure that that happened. What were once regarded as rather fusty professions are now leading the field in their ability to interact with their consumers. That must be right, but it cannot be right that an increasing number of additional burdens should be put on those providers that are trading at the margins. We would simply insert the word “not” with amendment 6, so that the Lord Chancellor could not impose accreditation charges. 

Mr Djanogly:  All the amendments relate to the standards of service of legal aid under part 1. Amendments 6 and 67 seek to prevent the imposition of charges in relation to the accreditation and monitoring of services by the accredited. Amendments 65 and 71 seek to put a duty on the Lord Chancellor or persons authorised by him to set and monitor standards of service. Amendment 64 seeks to require the Lord Chancellor, when exercising his legal aid functions, to have regard to the need to ensure that legal aid services are of a comparable quality to non-legal aid services. Amendment 67 seeks to place a further duty on the Lord Chancellor to consider the financial and administrative burden placed on the legal profession, the long-term sustainability of the legal profession and the need to train and supervise new entrants to the profession before setting standards of accreditation and monitoring. 

I shall deal first with amendments 64, 65, 67 and 71, which seek to impose various duties on the Lord Chancellor in relation to standards of service. Under clause 3, the Lord Chancellor will be given the power to ensure the quality of services delivered under the legal aid scheme by making provision on the accreditation and monitoring of standards. The provision will enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be made by the Lord Chancellor or those authorised by him to do so. Such powers are similar those currently given to the Legal Services Commission in relation to the criminal defence service and community legal service. 

The LSC’s existing quality assurance standard is, of course, the specialist quality mark. That standard ensures that organisations that hold a contract with the commission are well managed, provide good client care and have systems in place to ensure the delivery of good quality advice. However, the commission also accepts the Law Society’s Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. It is important that we retain the flexibility to adopt those professional standards alongside our own. That reflects the Government’s commitment to reducing unnecessary administrative and financial burdens on the legal profession when appropriate. 

Creating a duty to establish and monitor those standards is neither proportionate nor necessary. It could result in a system that is too onerous and potentially costly for the providers of legal aid. Amendment 64 is therefore unnecessary, as it seeks to include a requirement that does not exist in the Access to Justice Act 1999. Under the solicitors code of conduct 2007, solicitors are required to provide a good standard of service to their clients. That applies whether or not they are legally aided; legally aided clients must not be in a better or worse position than privately paying clients. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for clients. Its successor will have the same job. 

Currently, all legal aid providers must meet the specialist quality mark or the Lexcel standard. Those standards must be held prior to the award of contract and throughout the lifetime of the contract. That compares favourably with the privately funded market, where such standards are not mandatory. Providers must meet accreditation standards when set. Once a provider holds a contract, its quality of work is checked through peer review. The provider must also meet a number of key performance indicators, which include criteria such as beneficial outcomes for clients and the cost of work not falling significantly below the fixed or graduated fee. That is all done under the existing arrangements, which ensure high-quality advice. To answer the hon. Member for Makerfield, we see no reason to bring in anything new; we will review the administrative burden of the current standards. 

I turn to amendment 67. A balance needs to be struck between reducing bureaucracy and ensuring that providers meet the required standards of service. That is an important safeguard for clients and the taxpayer. A specific requirement to have regard to the financial and administrative burdens on providers is unnecessary. It could imply that the interests of providers should have

precedence over those of clients and the taxpayer. As for the second part of amendment 67, we are struggling to see how the Lord Chancellor’s accreditation and monitoring standards directly affect the sustainability of the legal profession, and we know that that specific issue arises for discussion in respect of other amendments. Training and supervision of new entrants to the legal profession is a matter not for the legal aid system, but for the profession itself. 

Turning to amendment 6, the provisions under the clause will enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for the accreditation and monitoring of persons providing services. Historically, the LSC has authorised certain organisations to carry out the accreditation and ongoing monitoring of those standards, with groups such as Citizens Advice and Shelter having provided such services in the past. That has previously proven a sensible and practical solution to what is a large-scale exercise, given the extensive number of legal aid providers, and the use of such alternatives in future is considered attractive. 

5.15 pm 

As the hon. Members for Makerfield and for Hammersmith said, significant resource implications are attached to the running of such schemes. The provisions would allow an accreditation body to meet its costs in carrying out the accreditation and monitoring functions. We believe that to be entirely appropriate if it is to commit resource to such a function, and it reflects the current statutory provisions under the Access to Justice Act. The same considerations arise when the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring, and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of the accreditation and monitoring of the services that they provide. 

In conclusion, the provisions on the charges for monitoring and accreditation are legally appropriate and reflect the current statutory position. I therefore urge the hon. Lady to withdraw the amendment. 

Yvonne Fovargue:  I thank the Minister for his response, but I take issue with the point that the cost of accreditation has no bearing on the viability of providers. It is one of the aspects that providers, particularly not-for-profit providers, take into account when looking at whether the contract is reaching its break point rather than its break-even point. However, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 3 ordered to stand part of the Bill.  

Clause 4 

Director of Legal Aid Casework 

Mr Slaughter:  I beg to move amendment 8, in clause 4, page 3, line 9, at end insert— 

‘(2) This position will be subject to a pre-appointment hearing by a select committee of the House of Commons.’.

The Chair:  With this it will be convenient to discuss the following: 

Amendment 72, in clause 4, page 3, line 12, at end insert— 

‘(2A) The Lord Chancellor shall ensure that the Director, or those providing assistance to the Director in the performance of his functions under this Part, have experience in or knowledge of—

(a) the provision of criminal and civil legal services which can be funded under this Part,

(b) the work of the courts,

(c) social conditions, and

(d) management.

(2B) Every person who exercises any function in relation to the performance of the Director’s functions under this Part shall have regard to the desirability of exercising it so as to—

(a) promote access to justice and equality of arms,

(b) promote improvements in the range and quality of civil and criminal services provided in accordance with this Part and in the ways in which they are made accessible to those who need them, and

(c) ensure that the services provided in relation to any matter are appropriate having regard to its nature and importance.’.

Amendment 68, in clause 4, page 3, line 17, at end insert— 

‘(c) make decisions independently of Government, and

(d) make all decisions in accordance with the interests of justice.’.

Amendment 9, in clause 4, page 3, line 19, at end insert 

‘except in such cases where the Lord Chancellor considers that a decision in relation to the denial of legal aid by the Director would result in the denial of access of justice.’. 

Amendment 10, in clause 4, page 3, line 20, leave out subsections (5) and (6) and insert— 

‘(5) A decision of the Director on eligibility for legal aid may be appealed to the Legal Aid Tribunal which shall—

(a) consist of the chairperson and other members appointed under the subsection below;

(b) act independently when performing any functions or duties.

(6) The functions of the Tribunal are to—

(a) consider applications for review of decisions of the Director on eligibility;

(b) conduct and determine reviews of decisions of the Director on eligibility.

(7) The Lord Chancellor must—

(a) appoint members of the Tribunal of sufficient number to deal promptly with all reviews and who between them have experience in a range of legal areas and types of proceedings; and

(b) appoint one of the members as the chairperson of the Tribunal.

(8) The primary function of the chairperson is to ensure that the Tribunal performs its functions in accordance with this Act in an efficient and effective manner.’.

Mr Slaughter:  This is an important departure. I wish to make it clear that we are not opposing the abolition of the Legal Services Commission. If we were, the amendment would ensure that what replaced it worked in a fully independent and transparent way. The first part of such a process relates to appointment. Amendment 8 speaks for itself and I shall be interested to hear what the Minister has to say about it, but there can be little objection to it, given the increasing trend towards pre-appointment hearings, and the strengthened role of

Select Committees that all parties in the House wish to see. The post of director should be subject to that sort of review. 

I will not say much about amendments 72 and 68 other than that the Minister might say that of course civil servants will be competent, pay regard to fundamental principles of such measures and act in the interests of justice. All civil servants would hold that as their sine qua non, but it is worth our adding such provisions to the Bill because significant changes will be made, principally under the Public Bodies Bill, but that is also a reflection of the trend to internalise and return to within the ordinary civil service functions that have been independent or semi-independent. 

I make a comparison with a contentious body in the Public Bodies Bill, the Youth Justice Board, with which the Minister will be familiar. There are considerable concerns that when the Youth Justice Board is returned to within the Ministry of Justice, the uniqueness that its independence gives, its dedication to its specific remit for young people before and after they enter the criminal justice system, the expertise that it has built up and its ability to attract staff will be dissipated, and that over time it will be absorbed and simply become another part of the empire that is the Ministry of Justice. By analogy, the same could be said about the demise of the LSC. My hon. Friend the Member for Makerfield may want to say more about that. 

Amendment 9 is simply an additional provision, a one-way valve allowing a review by the Lord Chancellor. Obviously, we are concerned that the functions of the director should remain independent of the Lord Chancellor, but it seems to us that that would not be affected by allowing the Lord Chancellor to extend the remit when he believes that circumstances permit it. The amendment would be an additional mechanism to allow the grant, not refusal, of legal aid in individual cases, and it speaks for itself. 

I will spend a little more time on amendment 10, the most important in the group. It seems to us to provide something that is lacking—independent review of the director’s decisions. We debated the issue before the summer recess, when we looked to other common law jurisdictions for guidance on how we should conduct ourselves here. Our proposals are modelled on the New Zealand Legal Services Act 2011, which made a change similar to the one that the Government propose, and indeed that we would have proposed but with the important caveat that it provides for appeal against the director’s decision. 

To explain how the New Zealand system works, there is appeal from the director of legal aid casework to an independent tribunal. It arose because following a review of the legal aid system in New Zealand, it was decided in the interests of efficiency and effective policy communication that the Ministry of Justice there should take over the responsibilities of the Legal Services Agency—it mirrors almost exactly the process here—but that the independence of decision making should be maintained through the investiture of a statutory officer with the power to act independently of the Minister. The need to maintain the function of the legal aid review panel, as it was then called, was taken as given, and there was no question but that there would be some form of appeal against decisions that were manifestly unreasonable or wrong in law. 

The reason why the New Zealand agency was brought in house was primarily, again, increased expenditure. Also—I make no comment on this, other than stating the fact—the relationship between the New Zealand Law Society and the agency was poor, and it was believed that the legal aid services provided were of variable quality. In any event, it was decided that the powers should be vested in a statutory officer, but also that the review panel should be maintained and moved into what was the tribunals division of the Ministry of Justice. 

In our opinion, because of the important policy role played by legal aid, it is appropriate, as it was in New Zealand, for legal aid to be close to the Ministry. It is also important that the Government have a role in determining the level of legal services they can afford, but the safeguard must be that it is not just a fact, but clearly a fact, that decisions on individual access are free from political interference. That is the role with which the director is charged. The question is, what happens in cases when the director may fall into error? The answer is that the statutory officer model was approved in the New Zealand case. Interestingly enough, significant savings were not thought to accrue—it is too early to say whether they will; nevertheless, on policy grounds the matter was proceeded with, although at that point there was a reconstitution of the existing review mechanism. 

As I said, the grounds for review are fairly narrow: applicants may apply for review when they think that the decisions of the statutory officer are manifestly unreasonable or wrong in law. However, that review could apply to decisions on applications, conditions on grants, amounts repayable to the provider, the maximum grant, withdrawal of or amendment to a grant, enforcement conditions and charges on property—a fairly wide range of issues, albeit on narrow terms. The tribunal sits in the tribunals division of the New Zealand Ministry of Justice for its independence and although the members are appointed by the Ministry, a non-lawyer always chairs it. 

Given the limited range of grounds for appeal, asking for such a mechanism seems entirely appropriate and reasonable. If the Minister wishes to dwell on the matter and return to it at a later date, so be it, but we feel strongly that the need for independence following the abolition of the LSC is of paramount importance. We will return to the subject when we reach clause 12, even if not today, but if we are to continue to be seen as behaving fairly and impartially in the grant of legal aid, it is essential that there is some check on or review of the powers of an officer who is within the Ministry of Justice and who reports to the Lord Chancellor. 

Yvonne Fovargue:  As my hon. Friend said, both amendments are really about the independence of the new body. The Bill requires the Lord Chancellor to appoint a member of the civil service to the statutory post of director of legal aid casework. That is a major change, placing a Government official in charge of deciding who should or should not receive legal representation and of making decisions on individual cases. The decisions will be made by the director or the delegated official, and amendment 72 seeks to place an obligation on the civil servants who work in legal aid to

understand fully not only the provision of services and the work of the courts but the social conditions in which problems might arise. They must also understand how the providers manage their services. The decisions made by the director will have a huge impact on the life of individuals and on their ability to deal with issues; the officials need to take a fully rounded view and, equally, must not look from a Government perspective but stand outside that, as their first duty should be to promote access to justice and equality of arms. 

There will be a huge number of cases, and it would be irresponsible to deal with them in isolation. I am reminded of the old citizens advice bureaux aims—I am afraid that I am a traditionalist and can only remember the old ones—which include exercising responsible influence on the development of social policy. People who see a large number of cases have a responsibility to say where things are going wrong and to suggest and promote improvements. In the range of civil and criminal services, a vast amount of cases will be seen, and that is key to seeing where services are being provided well or accessibly; services have to be made accessible to those who need them. Providers will demonstrate a range of innovative and good practice, which should be promoted, similar to a Legal Services Commission scheme I think called PIP—the positive improvement programme. Innovative schemes were trialled as a pilot and then throughout the country as an example of good practice on how to reach people in secure units or prisons. 

5.30 pm 

There has also been a concern about how services are provided and their appropriateness to various groups of issues, particularly the introduction of the telephone gateway. Putting that duty on the civil service would ensure that the services provided are appropriate, given the nature and importance of the issues. Basically, that duty would ensure a well-trained, competent cadre of civil servants who pay regard to the fundamental principles of the law and to the needs of the legal aid profession and its clients. 

Amendment 68 emphasises the independence of the civil servants who work on legal aid, as placing a Government official is, as I have said, a major change. Respondents have raised some concerns to the Committee. For example, the Law Society has raised the concern that many of the cases in which the individual will decide whether to award legal aid will be cases against the Government. The amendment clearly sets out that all decisions would be based on the interests of justice, and not on arbitrary considerations of the public purse or even on the effect on the Government. Without public confidence in the idea that justice can be administered fairly and without bias, a lack of respect for the law would begin to creep in and our justice system would start to be undermined. 

Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC):  I shall briefly discuss amendment 8, which suggests that any person appointed to the directorate should be subject to a pre-appointment hearing by a Select Committee of the House of Commons, which would be a useful step forward. I am a member of the Select Committee on Justice, as is my friend Mr Buckland. We have dealt with several appointment hearings recently, and it would be eminently reasonable to request the appointment to be subject to a pre-appointment hearing. I will say no

more, other than it is an extremely important, core function within the workings of the Justice Committee and the Ministry of Justice. The post, if any, is worthy of a pre-appointment hearing. 

On amendment 72, I have some misgivings about appointing a civil servant to that job without advertising externally. Through the amendment, we want to ensure that the person has experience of criminal and civil legal services, of the work of the courts, of social conditions and management, and crucially, of the all-important principle of the equality of arms. I am not here to denigrate the civil service, because it does a fine job and should often be applauded for its work. To my way of thinking, however, we have a Bill that is driven more by cost-cutting than by anything else. In some instances, the cuts have not been thought through, and we will live to rue this day and the next couple of weeks when the fallout begins to appear. I say that most sincerely. I am not here to oppose for opposition’s sake, but I have been here long enough to see when mistakes are being made due to the need to cut costs at all costs. That did not sound eloquent, but I am sure that members of the Committee know what I mean. There would be a temptation—I put it no higher than that—on the senior civil servant appointed to the post to look at the cost of granting legal aid rather than at the fairness and equality in so doing. I leave the matter there, but the point is valid. 

On amendment 10, which the hon. Member for Hammersmith eloquently discussed, I am regrettably of the vintage who can remember the days when legal aid was given by a local director. For example, the local director for north and mid-Wales and Shropshire headed the Legal Aid Board under the Law Society in an office in Chester. If an application were refused, the solicitor concerned would apply to the director asking him to review the decision. The director would then place the matter before a panel of legal aid lawyers, of which I was one. It was not rubber-stamping to help out our mates, because I remember most of the requests being turned down, although several were not for very good reasons. The process was not costly—I was given my travelling expenses from Bala to Shrewsbury twice a month. It did not take up a great deal of time, because it involved two afternoons a month. If there were a large panel to draw from, it would be easy to do. I commend that system to the Committee. 

I see that the Ministers are not of my vintage, which they will be pleased about, but I ask them to examine how that procedure worked, in case there is something to be learned and in case it could be done expeditiously and cheaply. In those days, the procedure was always fair, and I do not recall anyone feeling that they were hard done by by such a decision. The cases were carefully looked into and granted or not, depending on the case. Many were not granted, but many were. If it is a question of law, that is a different thing altogether. Those decisions were often based on the facts and on the importance of the matter to the individual. 

I digress for one slight minute, but I remember a solicitor from Wrexham writing in on behalf of his client, who was in prison in Liverpool. His complaint was that he wanted to sue the governor, because when the tea came round there was sugar in it already. I was looking at the papers before going to the committee and I realised that the individual had been released a month

before. That application still came before us and we asked the solicitor concerned, “Why are you concerned? This man is on the outside now.” He said, “Oh no. No doubt he will be back in before long.” The Committee will not be surprised to learn that that application was turned down, with good reason. 

The serious point is that a procedure was available. I am sure that the legal profession would be prepared to roll up its sleeves and make the procedure work as it did then. It would not be costly and it would be expeditious. I commend it, and I hope that the Minister will consider it in due course. 

The Chair:  Before I call the Minister, I gently remind hon. and right hon. Members that we make reference to colleagues by constituency and not by name. 

Mr Djanogly:  The proposed amendments to clause 4 have a range of effects. Amendment 8 would make the appointment of the director of legal aid casework subject to the approval of a Select Committee of the House of Commons as well as by designation by the Lord Chancellor. Our position is that the amendment is unnecessary. Clause 4 provides that the Lord Chancellor must designate a civil servant as the director. Civil servants are subject to a fair and open recruitment process. The creation of a statutory office holder ensures independence in making funding decisions, free from any political interference. The director is a separate office from the Lord Chancellor, created by statute. 

Amendment 9 would provide the Lord Chancellor with a new power in relation to the decision making of the director of legal aid casework, permitting the Lord Chancellor to give directions or guidance in relation to an individual case 

“where the denial of legal aid by the Director would result in the denial of access of justice.” 

I agree with the hon. Members for Hammersmith and for Makerfield that the question of the director’s independence is important. The amendment, unfortunately, would make serious inroads into the director’s independence. The protection of the director against interference in individual cases is an important safeguard. 

The protection of the independence of decision making is a fundamental tenet of the new arrangements, which recognises the structural changes to legal aid embodied in the Bill and the requisite safeguards that are required to make these new structural arrangements work. Any power to interfere with the decision making of the director, however ostensibly benevolent that power may be, remains highly unattractive in achieving the necessary protections that the Bill must provide to give confidence in the new arrangements. That provision also reflects what is currently in the Access to Justice Act 1999. The Lord Chancellor cannot give the Legal Services Commission directions in relation to individual cases. 

I have already acknowledged the vital importance of protecting fundamental rights of access to justice. That has been central in developing our proposals for reform, including the role of the director. The director has an important role to play in the reforms that we have put forward to establish an affordable system, while still ensuring that no one is denied their fundamental rights of access to justice. The director must make decisions in accordance with the protections afforded by the Bill. The right hon. Member for Dwyfor Meirionnydd spoke about the old way of awarding legal aid. It was certainly

interesting to hear, and he had a great anecdote. I am not entirely sure whether the modern LSC accounting requirements would tie in with the old way of looking at legal aid, but it is something that we can consider. 

Amendment 10 seeks to remove the Lord Chancellor’s duty to publish guidance or directions given to the director concerning the carrying out of the director’s functions. It would remove the Lord Chancellor’s power to vary or withdraw guidance or directions at any time. In place of the provisions, the amendment seeks to establish an independent tribunal to hear appeals against eligibility decisions made by the director. The amendment is unnecessary. The Bill already establishes the director in a way that maintains and protects the director’s independence of decision making. The director is created by statute. The Lord Chancellor cannot give directions or guidance to the director about individual cases. 

There is also already provision in the Bill for a review of the director’s decisions and appeals against the director’s decisions. This means there is no need for an amendment to create a separate tribunal. Clause 11(5) requires that the regulations must make provision for procedures for the review of the determinations director under clauses 8 and 9 as to whether a person qualifies for civil legal aid and the withdrawal of such determinations. There is also power in clause 11(6) to make provision for appeals to a court, tribunal or other person against the making or withdrawal of a determination in relation to civil legal aid. There are currently review arrangements under the Access to Justice Act 1999, and it is our intention to continue with the current arrangements, including the use of independent funding adjudicators, rather than moving to another model, such as that of New Zealand, as suggested by the hon. Member for Hammersmith. 

Mr Llwyd:  The Minister has mentioned clause 11(6). In the event of permission being given for an appeal to a court or tribunal against the determination, would that appeal be legally aided? 

Mr Djanogly:  That would depend on the circumstances, but I will come back to the right hon. Gentleman in detail. 

This is more than adequate provision to ensure that scrutiny can be applied to the decisions of the director where an individual believes that there are grounds for review. Ultimately, it will be possible to seek to judicially review decisions. There is also provision for making regulations about the review of, and appeals against, the director’s determination on criminal legal aid. I refer Committee members to clauses 14(9), 17(4)(i), 17(6) and 18(4). 

The proposed amendment to remove the current duty in relation to the publication of guidance and directions would remove one of the key provisions ensuring transparency in the new arrangements. As a result of having a duty to publish any guidance or directions given, those applying for legal aid have a clear framework against which to assess the director’s decision in relation to their application, and, if an individual believes the decision to be inconsistent with any guidance or directions given, has a clear basis for challenge under the review procedures that I have mentioned. This transparency

provides certainty and clarity to would-be legally aided clients and to firms of solicitors making applications on their behalf. 

The proposal to remove the Lord Chancellor’s power to vary or withdraw guidance or directions is therefore unhelpful. These provisions allow the Lord Chancellor to respond to changes in circumstances, such as changes in legislation and changes in response to case law, both domestic and European. This important flexibility is key. The Lord Chancellor must have the power to be able to amend or withdraw any directions or guidance issued in order to be able to reflect any wider changes that may influence the operation of the legal aid system. 

Amendment 68 requires that the director make decisions independently of Government, and that these decisions are taken in accordance with the interests of justice. In relation to criminal cases, the Bill requires the director to make decisions in accordance with what is required by the interests of justice. In relation to civil cases, the director will make his decision in accordance with the criteria set out in regulations made under clause 10. In making those regulations, the Lord Chancellor must have regard to matters such as the importance to the individual of the matters concerned, the nature and seriousness of those matters and the public interest. Amendment 68 is accordingly unnecessary. 

5.45 pm 

Amendment 72 is also unnecessary. The Lord Chancellor will take account of such factors as are appropriate when deciding which civil servant to designate as a director and there is no need for the Bill to make such specific provisions. I therefore ask hon. Members to withdraw their amendment. 

Mr Slaughter:  The Minister has persuaded me on amendment 9. It is not one of our best, so I will not pursue it. Quid pro quo, I ask him to look again at amendments 8 and 10. They are an inexpensive and relatively straightforward way of ensuring the independence and the scrutiny of what is a new and highly responsible post to which will attach the suspicion, at least in the early days, that it is less independent and more prone to political influence than the current set-up. It is the one serious reservation that we have—I do not think that we are alone in having it—in relation to the abolition of the LSC. 

I believe—the right hon. Member for Dwyfor Meirionnydd can put it more eloquently than me—that the Select Committees are there to perform a variety of functions, one of which is the pre-appointment hearing. Nothing the Minister has said has persuaded me that this is a post that is not suitable for that; it seems eminently suitable for that. I am not going to push the matter to a vote, but I hope that the Minister will consider it. It is a straightforward matter that is inexpensive and simple. It would be an important signal as well as, hopefully, an important actuality. There are several Select Committee members on this Public Bill Committee and although I am not going to push this matter to a vote, I suspect that they agree with me. 

I am disappointed with what the Minister said in relation to amendment 10 and I would like to put it to a vote. We have heard about the previous system and how it worked in a common sense way, as many parts of the legal system do. We rely on the independence and good will of many people in the legal system, from the lay

magistrates to the practitioners themselves, to ensure that the wheels are oiled and that, for a very good price, the public gets something of very high quality. All we are saying is that there needs to be some formal check. If the tribunal never sits because there are no appeals to it, I am sure that I will be the first person to say that it was unnecessary. I am sure that the Government will vote against it now, but I ask the Minister to go away and think about it again. We must have assurance and certainty that under the new regime that the measure brings in, particularly given the concerns that we all have about clause 12, the decisions that are to be made by the director will be fully independent of Government and the proposal seems the simplest and most elegant way of achieving that. 

Yvonne Fovargue:  I thank the Minister for his response, but I feel that the director’s role in promoting improvements to the system has not been addressed. As my hon. Friend says, the issue of independence has not been sufficiently addressed, but I do not wish to push my amendments to a vote. 

Mr Slaughter:  I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Amendment proposed: 10, in clause 4, page 3, line 20, leave out subsections (5) and (6) and insert— 

‘(5) A decision of the Director on eligibility for legal aid may be appealed to the Legal Aid Tribunal which shall—

(a) consist of the chairperson and other members appointed under the subsection below;

(b) act independently when performing any functions or duties.

(6) The functions of the Tribunal are to—

(a) consider applications for review of decisions of the Director on eligibility;

(b) conduct and determine reviews of decisions of the Director on eligibility.

(7) The Lord Chancellor must—

(a) appoint members of the Tribunal of sufficient number to deal promptly with all reviews and who between them have experience in a range of legal areas and types of proceedings; and

(b) appoint one of the members as the chairperson of the Tribunal.

(8) The primary function of the chairperson is to ensure that the Tribunal performs its functions in accordance with this Act in an efficient and effective manner.’.—(Mr Slaughter.)

 

The Committee divided: Ayes 9, Noes 11. 

Division No. 8 ]  

AYES

NOES

Question accordingly negatived.  

Clause 4 ordered to stand part of the Bill.  

Clauses 5 and 6 ordered to stand part of the Bill.  

Clause 7 

Civil legal services 

Mr Slaughter:  I beg to move amendment 13, in clause 7, page 5, line 20, leave out from ‘form’ to ‘resolution’ in line 22 and insert— 

‘of representation. They may also include additional services such as mediation and other forms of dispute resolution.’. 

However disappointing and inadequate we found clauses 1 to 4, it is clearly necessary to have some form of delegation or authorisation arising from them. I do not have a lot to say on clause 7, save that amendment 13 should be regarded as an amendment that needs to be flagged up at this stage, although we may well return to the issue of mediation subsequently. 

I think that I made clear in the discussion about clause 1 before the summer recess the importance that we give to the role of mediation, the importance of extending the role of mediation and the importance of the additional funds that the Government are putting into mediation. We have no problem or issue with that. 

It is the relationship between mediation and litigation that we have some difficulty with, and that mediators too have some difficulty with. The purpose of amendment 13 is to put that in the Bill, so that it is clear that legal representation is essential in some cases and mediation is only an alternative to it, which does not substitute for the determination of an applicant’s right in a courtroom and is not to be used instead of representation because it is not what the applicant wishes. That is the effect. As I say, mediation is a powerful tool, but it is underpinned by the rule of law and in the end it can only be enforced through litigation. We are all too aware of what might happen if mediation fails, if there is no settlement or if there is inequality of arms. 

In an earlier debate this morning, I quoted from the research paper on litigants in person that the Ministry of Justice published earlier in the summer. I shall read a paragraph from that paper that is relevant to the amendment: 

“Parties in mixed representation cases (where one party was represented and the other was not) were more likely, than cases where both or neither parties were represented, to report feeling unprepared to mediate, and concerns and fears about mediation.” 

Mediation is not a panacea. It does not create a level playing field. On the contrary, the ability of a represented party is important. Particularly in family disputes, it is often the case that the man is the represented party and the unrepresented party is the woman. 

I shall also read briefly from an article written by a mediator. As I have said, mediators have some of the strongest concerns about the Government’s policy, and if I read one or two sentences from the article it will become clear why: 

“it is not mediators who overclaim for their process, it is the Government’s apparent faith in it.” 

The current situation is 

“jeopardised, simply because mediation will be ‘chosen’ under pressure–ie not a ‘choice’, at all…we will find ourselves up against people who will put in insufficient effort themselves, and wish to

‘test the mediator’…clients will be feeling compelled to use our services rather than choosing them positively as an interesting, collaborative option.” 

The article concludes that 

“it would be ironic if the downsides of the policy under consideration may simply make it significantly harder for mediation to be successful, if implemented as announced.” 

The Minister is a bit like a stuck record on this: the Government are determined to force people into mediation, and determined not to offer an alternative. In the interview from which I have quoted, given by the current Attorney-General when he was in the shadow role two years ago, he said: 

“As for mediation more generally, it can be very useful, but it shouldn’t be transformed into a system that effectively discourages people from getting access to the courts.” 

In my submission, that is exactly what the Government are doing. They are using mediation as a way of preventing access to the courts, which is not appropriate. Not only is it not appropriate in itself, but it is not appropriate in ensuring good, effective mediation. 

I do not expect to get anything other than a dusty answer, but it is important to put on record that this is a serious and significant change in how dispute resolution is conducted in this country. It takes advantage of the fact that there is a general willingness, which has existed since the Woolf reforms and for many years before that, to see the expansion of different forms of dispute resolution that do not involve the formality, cost and processes of going to court and possibly to trial. That is all well and good, but it is a serious error of judgment to make the leap of faith to saying that in many cases, particularly in family disputes, mediation is the only option available to parties. 

As I have said, the change is being made purely as a cost-saving measure. If it were not for the wish to save costs and court time, it would not have been proposed. In the end, not only will it be unhelpful in itself, but it will result in more dissatisfied clients and more playing of the system by those who abuse mediation and who will not have the rigour of the court process to bring them to heel. It will stir up many, many problems for the future. 

Mr Djanogly:  Clause 7 sets out what we mean by legal services for the purposes of civil legal aid. Subsection (2) states that these services 

“include, in particular, advice and assistance in the form of…representation, and…mediation and other forms of dispute resolution.” 

Although amendment 13 suggests that advice and assistance would primarily be in the form of representation, it would not substantially change the effect of clause 7, so it is unnecessary. I welcome the apparent recognition by the hon. Member for Hammersmith that mediation can hold considerable advantages over contested court proceedings, because it can be cheaper, quicker and less acrimonious. Of course, we do not say that mediation is appropriate in all circumstances. That is why clause 10(4) makes it clear that in setting merits criteria the Lord Chancellor must seek to ensure that where more than one type of service could be provided for an applicant who qualifies, the service that is provided is the most appropriate in the circumstances. The benefits of mediation are particularly well illustrated in private

family law, however, by which I mean disputes about children or finance arising from the breakdown of a relationship. 

6 pm 

Kate Green:  The Minister is right to highlight the successful outcomes of mediation in family law matters, but is he also aware that there is not inconsiderable research that demonstrates that some of the characteristics of the individuals who go through mediation might also have a bearing on its success? In particular, those individuals are likely to be better educated and financially better off, and in many cases from higher socio-economic groups. 

Mr Djanogly:  We need to appreciate that the vast majority of people—the figure of roughly 90% comes to mind—sort out their separations themselves, without going to court, or to lawyers or anyone else. We are talking, therefore, about dealing with a significant minority of the population, within which there will be some people for whom different sorts of processes are more relevant. 

Kate Green:  The Minister will also be aware that it is known that, following separation and divorce, regardless of whether legal or mediation advice has been sought, women are usually financially worse off, and men are better off. What specific equality impact assessment has he carried out on the application of mediation? 

Mr Djanogly:  The hon. Lady can look at our equality impact assessments, and take a view on the data we present. We have said that legal aid will no longer routinely be available for representation in most private family law cases, but that family mediation will, and legal aid will be available for legal advice in support of mediation. It is right to encourage families, where appropriate, to resolve their disputes without recourse to the courts. We expect to spend an extra £10 million on mediation and legal advice in support of mediation, bringing our total spend to about £25 million. There are private family law cases for which mediation would obviously not be suitable, such as those involving domestic violence or child abuse. 

Kate Green:  The Minister is right that there are cases, including domestic violence and child abuse, that would clearly be unsuitable for mediation, but what is to be provided for people in situations where, although there is no actual violence or abuse, there is other conflict in the relationship and it would be very unlikely that mediation could operate successfully? 

Mr Djanogly:  The position that the Government have taken is not the position globally. In Australia, people who are involved in domestic violence are still expected to go to mediation. We have not taken that view, but ultimately we feel that people should sit down and mediate their problems before looking to the courts. 

Legal aid will also continue to be available for victims of domestic violence and for private family law cases arising from the breakdown of abusive relationships, where there is objective evidence of the need for protection. 

Kate Green:  Will the Minister give way? 

Mr Djanogly:  Let me make some progress, please. 

We have also made an exception for private law children cases involving children at risk of abuse, and where there is objective evidence of the risk of abuse, legal aid will be available for the parties seeking to protect the child. We have also ensured that legal aid will be available for children who are parties in private family law proceedings, primarily when a judge decides that it is in the best interests of the child for them to be represented separately from the other parties in the case, who are usually their parents. In addition, legal aid will continue to be available for public law children cases, such as those in which a local authority seeks to take a child into care. After the changes, we expect to still spend £120 million per annum on private family law, including domestic violence, and up to £300 million on public family law. The total spend on all family legal aid will still be well over £400 million. 

The need to target legal aid at the cases that are most in need means that tough choices must be made about funding priorities. Prioritising our resources means that legal aid will no longer be routinely available for court battles about property or children following the breakdown of a relationship. We are prioritising our resources so that legal aid will be available for the cases in which the most serious issues are at stake. 

I hope that the Committee agrees that it is right for private family issues to be resolved, whenever possible, by agreement rather than by seeking court-imposed arrangements. As a quicker, cheaper and less adversarial route to resolution, mediation is not the poor relation of legal representation, and I hope that the hon. Member for Hammersmith accepts my reassurances and withdraws the amendment. 

Mr Slaughter:  Sadly, I will not; I will press the amendment to a vote. The Minister has not dealt well with the point made by my hon. Friend the Member for Stretford and Urmston. In essence, the Minister has said, “Yes, we will deal with the matter in more detail when we discuss domestic violence specifically, but legal aid will still be available for such cases.” My hon. Friend’s point is that, in private family law cases, an undercurrent of, if not violence, oppressive behaviour, is often the reason why the dispute in the separation has occurred—over residence, contact and so on. Commonly, evidence in such cases demonstrates clearly that there has been oppressive behaviour from one party or the other. 

Despite that, the Minister is saying that, in such cases, it is suitable for the parties to sit round a table and try to reach a resolution through mediation. That simply will not happen. In such cases, the issues of oppressive, violent or intimidating behaviour will simply be pushed up the agenda, which is not helpful to resolving matters in any event. Often, although a court will take cognisance of the fact that there is a background of hostility, it will still concentrate on the issues before it and will try to reach a resolution. I do not believe that that will be possible, in many cases, with mediation. The Minister is wilfully closing his eyes to such possibilities because he has a budget to run to. 

Question put, That the amendment be made. 

The Committee divided: Ayes 9, Noes 11. 

Division No. 9 ]  

AYES

NOES

Question accordingly negatived.  

Clause 7 ordered to stand part of the Bill.  

Clause 8 

General cases 

Mr Slaughter:  I beg to move amendment 75, in clause 8, page 5, line 27, leave out subsection (1). 

The Chair:  With this it will be convenient to discuss the following: amendment 78, in clause 8, page 5, line 32, leave out subsection (2). 

Amendment 77, in clause 8, page 5, line 32, after ‘from’, insert ‘or adding services to’. 

Amendment 159, in clause 8, page 5, line 33, after ‘Schedule’, insert 

‘or by amending any description of services included in that Part.’.

Mr Slaughter:  The amendments go to the heart of our opposition to the Government’s strategy of restricting legal aid. I do not need to say much about them because we will shortly debate schedule 1, when we can consider the related matters in more detail. 

Legal aid was devised to allow those who are impecunious and cannot afford access to legal advice to get their cases into court to reach a fair resolution, to be put on a level peg with those who have such resources. Over time, the areas that are subject to dispute—which become more complex—and relevant to society, change significantly. We have seen such changes clearly over the past 40 or 50 years, and many of the areas that the Government propose to take out of scope have worked their way into scope over that time. 

The Government’s approach here is not permissive. They are simply saying, “Unless we have put it down in black letters that we are going to allow legal aid in a restricted number of cases, it will not be allowed. We will have a list of matters that are not allowed and we will allow the Lord Chancellor by secondary legislation to continue to remove but not to add matters to that list.” That triple whammy, as it were, of proposals makes the Government’s intention very clear: to be as restrictive as they can possibly get away with being in the provision of social welfare legal aid and to allow exceptions only where they believe it is untenable not to, either for public relations reasons or for reasons of

simple morality. Otherwise, they will do their level best to close down those options for legal aid that have grown over time. 

By removing the wording in clause 8 that allows the Government to take this reductive approach, we are saying through these amendments that we wish to stay potentially with the status quo. That does not mean things should not be reviewed. On the contrary, the point I am making is that if we want to constantly review what is and is not appropriate, we should not set up a system so restrictive that it will give little justice to anybody who is seeking that in any of the areas currently in scope. 

I mentioned amendment 77. I can anticipate what the Minister will say on amendments 75 and 78. I will conclude, so he can tell us what he wants to say on that. I do not know what he will say on amendment 77 because it is difficult for him to argue that schedule 1 should be capable of modification only to omit rather than to omit or add. As I say, I am keen to hear his explanation on that. 

Mr Llwyd :   I share the concern of the hon. Member for Hammersmith about the wording of the clause, particularly the fact that the Lord Chancellor will be given the power by order to delete further services from scope. We are having a full day’s debate on the absence of some of these services from scope, yet in this subsection we are expected to give leave to the Lord Chancellor on a whim to delete any further services from scope. We often say that the devil is in the detail. There is quite a devil in this particular detail, and I am very concerned about it. That is not to cast any aspersions on the present holder of the office or, indeed, anybody on the Treasury Benches. However, it is absolutely unacceptable to leave it open to delete other areas from scope another day. 

If there is an insistence on having that power, it is perfectly reasonable in my view, and in the opinion of the hon. Member for Hammersmith, that there should be an amendment to allow services to be added. For example, after the reference to schedule 1 in subsection (2), the amendment I have tabled could be inserted, which states: 

“or by amending any description of services included in that Part.”. 

In other words, amendment 77 and my amendment 159 would allow the Lord Chancellor to include services at a future date. The reason for cutting back on services and taking them out of scope is largely, if not entirely, being justified by the current economic circumstances and, indeed, we all hope and pray that the outlook will improve. Therefore, it would be sensible and prudent to allow the Lord Chancellor to bring back services within the scope of legal aid in due course, particularly because I am afraid that we will revisit the Bill in the not too distant future. I was around when the Dangerous Dogs Act 1991 and the firearms—pistol—legislation were enacted, and they proved to be as useful as a chocolate teapot. 

6.15 pm 

I am beginning to feel uneasy about how every amendment is batted back by Ministers saying, “Well, it’s unnecessary. It’s not going to happen”. Perhaps, but

there are concerns among the Opposition, and I believe that there are Members on the Government side who are concerned about several aspects of the changes as well. Amendments 77 and 159 are both designed to provide, reasonably enough, a power for the Lord Chancellor, in due course, to add services back to scope and not to prepare the way to add yet further services to the swathes already taken out of scope. 

Mr Djanogly:  The amendments all relate to clause 8 and concern changes to the way in which the scope of civil legal aid is set out or how it can be altered. 

Amendment 75 would remove subsection (1), removing schedule 1 in its entirety. I assume that the intended effect of the amendment is to prevent civil legal aid from being limited to the matters listed in schedule 1. However, removing the operative part of it in that way would technically prevent the director from providing civil legal aid to any individual, which presumably is not the intention. 

Clause 8 allows the Lord Chancellor to modify schedule 1 by omitting civil legal services from part 1 of the schedule, whether by modifying part 1 or other parts of the schedule. Amendment 78 would remove the Lord Chancellor’s power to modify schedule 1 by omitting types of civil legal services from part 1. We think the amendment is motivated by a concern that the Lord Chancellor should not be able to further narrow the scope of the civil legal aid scheme without primary legislation. I think that has been reflected in Members’ comments. However, the power allows the removal of civil legal services where it is no longer appropriate to fund them. An example of where that might be necessary is where the governing legislation behind an area of law is repealed or otherwise altered, and we need to alter civil legal aid provision accordingly. Another example is where particular court proceedings are moved to a tribunal, and it ceases to be appropriate to provide funding for advocacy for such proceedings, so an amendment to part 3 of schedule 1 would be needed. Any changes made to the scope of part 1, using the power in clause 8, would be subject to the affirmative resolution procedure. 

The intention of amendment 77 appears to be to allow out of scope civil legal services to be added back in by secondary legislation. Amendment 159 would allow the descriptions of funded services to be changed, essentially allowing the schedule to be substantially revised. We have been clear. I hate to say this to the right hon. Member for Dwyfor Meirionnydd, but in the current fiscal climate we have to make these tough choices about which civil legal services should continue to be funded by the taxpayer. 

Given the importance of the issue, we believe that the scope of civil legal aid should be set out in primary legislation, which the Bill places before Parliament for approval. Therefore, I urge the hon. Member for Hammersmith to withdraw the amendment. 

Mr Slaughter:  The Minister has correctly interpreted the intention of the amendment. I hear what he says, but in light of the way the clause is drafted there was little or no alternative but to draft the amendments in this way. There is no meeting of minds on these issues. The very real concerns we have about many of the scope

changes and their practical effects will become clearer as the debate continues. We need to get on to that. We simply do not believe that parts 1 and 2 are an appropriate way to administer and apply legal aid. I do not intend to press all the amendments to a Division, although I want to make it clear that we do not believe it appropriate for areas to be removed from scope by secondary legislation. I do not intend to press amendments 75 or 78 to a vote, but I will ask for a vote on amendment 77. 

I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Yvonne Fovargue:  I beg to move amendment 73, in clause 8, page 5, line 28, after ‘Schedule 1’, insert 

‘or fall within the category of proceedings provided for at subsection (1A)’. 

The Chair:  With this it will be convenient to discuss the following: amendment 74, in clause 8, page 5, line 31, at end insert— 

‘(1A) Subject to section 10, civil legal services are to be available to an individual for the purposes of challenging an act or omission of a public authority.

(1B) “Public authority” has the same meaning as in section 6 of the Human Rights Act 1998.’.

Amendment 160, in schedule 1, page 96, line 17, leave out ‘8 and 12’. 

Amendment 145, in schedule 1, page 107, line 14, leave out ‘8 and 12’. 

Amendment 148, in schedule 1, page 107, line 41, leave out ‘8 and 12’. 

Amendment 151, in schedule 1, page 113, line 4, leave out ‘8 and 12’. 

Amendment 135, in schedule 1, page 115, line 17, after ‘that’, insert ‘section 8(1A) and’. 

Amendment 136, in schedule 1, page 115, leave out line 27. 

Amendment 137, in schedule 1, page 115, line 31, leave out paragraph 12. 

Yvonne Fovargue:  I shall speak to amendments 73 and 74 together, as they work together to allow legal aid for any instance in which an individual challenges a public authority. My hon. Friend the Member for Stretford and Urmston has given well-argued and cogent reasons why individuals need legal aid to challenge such decisions, and I do not wish to repeat them all, but the inequality of arms is never more obvious than when an individual comes up against a decision made by the state or an agency of the state. Such decisions are invariably made by individuals and institutions whose powers are advised by law, and they are based on laws, legal advice and rules, so such cases are inherently legal. It is the state’s responsibility to ensure that the individual can effectively hold the state to account. 

Resources available to the state are absolutely enormous—individuals consider them boundless—and public authorities have the immeasurable advantage of familiarity with procedures. The Minister can repeat as many times as he likes that the tribunal procedure is simple. It is simple to those who have been to one, or who can imagine standing before three people and having their life examined. However, many individuals and families with no access to specialist support to

prepare their case and establish the limits of state powers, or the evidence to take their case further will simply give up. That gives the state an immeasurable advantage. 

The amendment will not extend the scope of legal aid to include representation at tribunals; it will simply allow the preparation of the case and the explanation of the process, removing the fear of the unknown and providing a more level playing field for the individual who feels that they are pitting themselves against the might of a state that holds all the cards. 

Mr Llwyd:  Amendments 136, 137, 145, 148 and 151, which stand in my name, would amend schedule 1. They are tabled with a view to altering the list of excluded services in part 2 of the schedule to remove the specific exclusions or withdrawals from scope relating to breach of statutory duty, claims against public authorities involving the Human Rights Act 1998, welfare benefits claims and applications to the Criminal Injuries Compensation Authority. Several of the amendments are consequential to those removals from the list, which would effectively bring the items back into the scope of legal aid. 

The amendments reflect our concern, which I am sure other Committee members share, about the large-scale exceptions to funding envisaged in the Bill. It will create alarming gaps in protection and hits the most vulnerable the hardest. In particular, applications for criminal injuries compensation, benefits claims and claims regarding the Human Rights Act will typically be made against a strong and powerful authority, and individuals will therefore be deprived of the opportunity to have their day in court and to have their rights properly upheld. 

Amendment 135 is consequential to amendments 73 and 74, which were tabled by the hon. the Member for Makerfield, and these comments are consequential to the arguments that she put forward. We may keep returning to the same point, but it is important that we show our concern. We are concerned about those who will be deprived of their voice as a direct result of the cuts introduced by the Bill. We may continue saying that today, tomorrow and the day after, and I hope that, at some point, the Government will listen. 

Mr Djanogly:  The amendments are contrary to the basis of our whole programme of reform and would undermine our goal of focusing limited resources on the cases that need them most. Amendments 136, 137, 145, 148, 151 and 160 seek to extend the scope of legal aid to cover claims in respect of a breach of statutory duty and claims for damages in respect of a breach of human rights by a public authority, where those arise in relation to a matter that is within the scope of civil legal aid. 

It is important to emphasise that schedule 1 makes legal aid available for the most serious damages claims against public authorities. The Bill ensures that funding may be made available for claims regarding a breach of statutory duty or a breach of convention rights against public authorities, where the matter concerns an abuse of position or power, a significant breach of human rights, allegations of the abuse of a child or vulnerable adult or allegations of sexual offence. Hon. Members should also be aware that funding may be made available

for a judicial review of an enactment, decision, act or omission, which is a clear way of holding public authorities to account. 

The amendments proposed by the right hon. Member for Dwyfor Meirionnydd, however, would go much further. They would make funding available for any claim for breach of statutory duty or breach of convention rights that arises in relation to a matter within the scope of legal aid, no matter how frivolous. Amendments 73, 74 and 135 would bring into scope for advice almost all immigration, education, welfare benefits and clinical negligence cases. They would make funding available for any claim relating to any act or omission by a public authority, subject to merits of financial eligibility. In some respects, that would expand the scheme beyond even its current bounds. 

Starting with welfare benefits, while we recognise that many people rely on such benefits, these cases are primarily about financial entitlement, and we generally consider them to have lower importance than those concerning the liberty or safety of the person. Appeals are heard before a relatively informal tribunal, which is well used to individuals presenting their own appeal without legal assistance. Legal aid would be retained for judicial review on welfare benefit decisions and for claims relating to a contravention of the Equality Act 2010 that concerns welfare benefits. 

On special educational needs, the Government were persuaded by the strength of the arguments that legal aid should be retained for advice in such cases. We have therefore decided to modify the original proposal, so that legal aid should continue to be available for SEN cases where it is currently available. We do not consider that legal aid is needed or merited for other education matters such as admissions and exclusions. In most cases, parents can simply raise any concerns by writing to the school governors. 

The amendments would also make legal advice available for various immigration cases, including applying for study or work visas, appealing family visit visas or getting advice on citizenship applications. While we appreciate the importance of those matters to the individuals concerned, immigration tribunals are designed to be user-friendly and interpreters are provided free of charge. The issues at stake are generally factual, rather than points of law. Most immigration cases do not routinely justify taxpayer funding, and they are therefore being removed from the scope of legal aid. We are, however, retaining legal aid for the most serious cases, such as domestic violence immigration cases, cases before the Special Immigration Appeals Commission and immigration detention cases, including advocacy before the tribunal. 

As previously debated, we recognise that claims of clinical negligence often raise serious issues. We also recognise that there is often a viable source of alternative funding for those cases through contingency fee arrangements. We therefore consider that legal aid is not justified in those cases and that our limited funding should be better targeted at other priority areas, such as those concerning physical safety, liberty or homelessness. I therefore urge right hon. and hon. Members to withdraw their amendments. 

6.30 pm 

Yvonne Fovargue:  I have to say that was the reply I expected from the Minister. If the Minister had not been persuaded previously, he was not to be persuaded now. However, I am sorry that the myth of the tribunal being user-friendly is still being perpetuated, when the majority of people who use advice agencies are absolutely petrified of the idea of going to a tribunal, and take a considerable amount of reassurance from the agency in order to get them even to set foot over the threshold. However, I beg to ask leave to withdraw the amendments. 

Amendment, by leave, withdrawn.  

Amendment proposed: 77, in clause 8, page 5, line 32, after ‘from’, insert ‘or adding services to’.—(Mr Slaughter.)  

The Committee divided: Ayes 9, Noes 10. 

Division No. 10 ]  

AYES

NOES

Question accordingly negatived.  

Clause 8 ordered to stand part of the Bill.  

Schedule 1 

Civil legal services 

Amendment made: 19, page 95, line 31, leave out ‘paragraph 1’ and insert ‘sub-paragraph (1)’.—(Mr Djanogly.)  

Mr Llwyd:  I beg to move amendment 161, page 96, line 21, leave out ‘other than’ and insert ‘including’. 

The Chair:  With this it will be convenient to discuss the following: amendment 146, page 107, line 18, leave out ‘other than clinical negligence’. 

Amendment 147, page 107, leave out lines 28 to 30. 

Amendment 149, page 108, line 4, leave out ‘other than’ and insert ‘including’. 

Amendment 169, page 115, line 13, at end add— 

‘40 Paragraphs 1, 2 and 3 of Part 2 to this Schedule will not apply where—

(1) The personal injury or death occurred as a result of alleged negligence during the course of medical treatment (whether provided by the National Health Service or through a private arrangement between an individual and healthcare provider).

(2) The personal injury or death occurred while the individual was in the care of the state or an emanation of the state, whether forcibly or voluntarily (see below).

(3) The injury or death was caused negligently by a servant or agent of the healthcare provider or other emanation of the state.

(4) The individual claims for assault, battery or false imprisonment against a healthcare provider or emanation of the state.

(5) In this paragraph “National Health Service” shall include all state funded healthcare provision, NHS hospital trusts, NHS foundation trusts, mental health trusts, independent treatment centres, general practitioners, primary care trusts, strategic health authorities and all their successors in title.

(6) In this paragraph “Health Care Provider” shall include private hospitals and clinics and individual healthcare professionals, including doctors, nurses and midwives where a patient has contracted on a private basis.

(7) In this paragraph “The State or emanation of the State” shall include the Police, Prison Service or Social Services.

(8) In this paragraph “alleged negligence” is a concept as per the common law including case law definition of negligence as pertaining at the time of the alleged negligence or proposed claim.’.

Amendment 223, page 115, line 19, leave out paragraph 2. 

Mr Llwyd:  We heard from the Minister a few minutes ago that removal of clinical negligence from scope could be made up in some way by the contingency fee arrangements. That is not as simple as it sounds. I am concerned about people who, at the beginning of such an arrangement with solicitors, would perhaps not be able to afford a policy that would cover them for the initial medical examinations that need to be undertaken—I have in mind children who have been born with paraplegic conditions and so on. 

I have heard the Minister say more than once when giving evidence to the Justice Committee that the change in question was necessary first because there was the cover of contingency fees and, more importantly, because it was an expensive area of law. His opinion was that lawyers tended to draw and drag things out on behalf of claimants, but I can tell the Minister that it is quite the reverse. In my experience of litigating against health authorities, they are the least helpful bodies on earth. They will withdraw or hide evidence until the very last minute, and in some way they believe that the claimant, or the next friend, will go away and leave the matter alone. They think in some weird way that things will be improved if they sit on evidence for five or six years, rather than coming clean from day one. 

If there were a duty on responsible bodies such as health authorities to come clean immediately, we would probably not be having this debate because it would not be a high-cost area. Of course damages are huge, and rightly so, particularly in paraplegic cases. That is understandable because that young person or child will have to be looked after for the rest of their life. However, in many cases over the years I have found that health authorities are the worst bodies against which to litigate, and the least credible litigators. As I have said, on numerous occasions crucial evidence has been withheld for years for one reason or another, and then it suddenly appears and a settlement is brought forward. If that kind of behaviour had not occurred, I dare say there would be no move to withdraw clinical negligence from the scope of the legislation. I regret to say it, but that is what I have found over some years of practice. 

Amendments 161, 146, 147 and 149 are designed to amend schedule 1 to bring clinical negligence cases back within scope. Amendment 161 covers cases involving the abuse of a child or vulnerable adults; amendments 146 and 147 cover the abuse of a position of power by a public authority; and a breach of convention rights by a public authority is covered by amendment 149. 

Clinical negligence cases will evidently be against the NHS or public authorities, and they will be difficult to fund in any other way. I understand that the Government have moved their position slightly so that some initial medical fees might be covered. I do not know what the Minister will say in response, but if there were a strict duty of candour on defendants in such cases, I hope that we would not be in this position. 

Although cases could be brought under amendment 73, amendment 149, which stands in my name, would stand alone as it retains specific prevision for tort and damages claims engaging convention rights, and extends provision to cases that involve clinical negligence. Amendments 146 and 147 provide specifically for cases involving a particularly serious variety of public wrongdoing and would remove the exclusion of clinical negligence cases in such a context. They could be grouped with amendments 160, 145 and 148, which remove later references in schedule 1. 

I can anticipate what the Minister will say, but I hope that, the Government having moved on the question of the cost of initial medical examinations and reports, they will look further at the matter. They cannot just say that contingency fees are the answer; they are not the answer. For many parents, they cannot be the answer, because the parents do not have the money up front to buy a policy to provide cover when making an arrangement with the lawyers at the beginning. No firm on earth seems to be prepared to take on a massive case on a no win, no fee basis because clinical negligence is the most specialised and complex area of civil law. 

I know that there are concerns on not only the Opposition side but the Government side of the Committee, and that there are divisions in the House of Commons on the issue and certainly across the board in the House of Lords. I ask the Government to reconsider the measure, because it is thought to be very cruel outside Parliament. In effect, it is cruel; it is not meant to be cruel, but it might create a disastrous situation for parents. It will be unbelievably worse for them, because they will not be able to provide for their loved one for years to come, which is the current position in litigation for clinical negligence. 

I am making an appeal to the Government. I ask them to think again about the matter and to reflect between now and the conclusion of the Committee’s proceedings; I can tell the Minister that there will be an avalanche of opposition up the corridor and that it would be good to think carefully about the change before the Bill reaches the other place. 

The Chair:  I should say that it is my intention to suspend the sitting for one hour at 7 pm. 

Mr Slaughter:  The three amendments in my name comprehensively try to do exactly what the amendments tabled by the right hon. Member for Dwyfor Meirionnydd would do, which is to put clinical negligence back into the scope of legal aid provision—in other words, to amend paragraphs 1 and 2 of schedule 1. For the avoidance of doubt, amendment 169 sets out, in proposed sub-paragraphs (1) to (8), the areas where paragraph 2(1) to (3) would not apply, particularly, as in proposed sub-paragraphs (1) and (2), where 

“personal injury or death occurred as a result of alleged negligence during the course of medical treatment” 

and where 

“personal injury or death occurred while the individual was in the care of the state”. 

The Opposition feel strongly that clinical negligence must remain within scope. There are about 1 million adverse incidents, as they are called, in the NHS every year, about 10,000 of which lead to action being taken against the NHS. In themselves, those statistics give the lie to the assertion that we often read in the press that there is a compensation culture and that people are keen to seek redress through the courts on such matters. On the contrary, it is the other side of the coin, and the right hon. Member for Dwyfor Meirionnydd made the point about the behaviour of health authorities. 

I am sure that we have all had experience of the behaviour of aggrieved parties at our surgeries and when dealing with complaints procedures. There are comprehensive, if somewhat labyrinthine complaints procedures. My experience is that in most cases, individuals want an explanation, perhaps an apology, and the assurance that whatever has happened will not happen again in other cases. They seek compensation, if that is the right word, only when there is an absolute need and because negligence has caused harm that needs redress. 

6.45 pm 

What is swimming around in the background is that somehow the NHS is abused through the court process by claims for negligence and that that is one reason why the amendments may be necessary. On the contrary—I entirely agree with the right hon. Gentleman that the experience of many people who find themselves forced to sue a health authority is that they are the worst people to sue. There may be a number of reasons for that. There may be pressure from the alleged tortfeasors that they do not wish to admit culpability, and pressure is put on the litigation authority. The authority may be overly bureaucratic in the way it behaves, but the opinion not only of those who have had to take action, but of many judges, particularly cost judges, who have reviewed the behaviour of health authorities and the NHSLA is that the primary role—I go as far as saying the primary role rather than a shared role—in inflating costs and delaying proceeding lies with defendants in such cases. 

I will not go over the wrongly given figures for costs on each side, and how much are costs and how much is compensation, but I think the Government have learned their lesson, and have apologised for the figures that were wrongly given to the House earlier. I say for the avoidance of doubt that we do not approach the matter as a cause of great concern. What is of great concern is ensuring that as little suffering as possible is caused through negligent treatment or behaviour of the national health service. None of that detracts from the fact that, given the debate in the Chamber at the moment, the huge respect that we all have for the national health service, the high regard in which it is held, and the very high rating that the public give to the NHS, they are concerned about the damage being done by the Government. In an organisation of that size, there will always be areas of neglect. We have seen that with hospitals, with individuals, and with individual tragic cases. I will come to one or two in a moment. It is essential that such matters are dealt with. 

Let us consider cost. Legal aid for clinical negligence cases is the cheapest route for both litigating parties when looking at the alternatives. Taking clinical negligence out of scope for legal aid would cost the state more overall if access to justice remains possible for all deserving claimants. Most costs will simply be transferred from the Ministry of Justice to the NHS, but the Ministry of Justice’s impact statement takes no account whatever of that. 

If many people are denied access to justice, which is not the stated policy intention, the result of the reforms will be additional expense for the state overall. For example, the Ministry of Justice estimates that it would save just £10 million a year by taking clinical negligence out of scope—I have heard a different estimate, but it would certainly be between £10 million and £20 million—and we estimate that if all cases that are currently successful under legal aid were successful under the revised no win, no fee arrangements, the cost to the NHS of investigating new claims and settling previously legally aided cases under the reformed system would amount to at least as much, and I will return to those figures later. That is mainly because the NHS will have to pay expensive insurance premiums to cover the cost of medical experts’ reports. It will also have to spend money investigating and defending more spurious claims generated by throwing the market open to non-specialist solicitors and claim farmers without any of the controls offered by legal aid. We will address that area when we reach part 2 of the Bill, but we have concerns not only about the Bill’s restrictions on access to justice but about more spurious claims. The Bill is doubly defective in that way. 

Later we will no doubt hear the Minister praise Sir Rupert Jackson’s proposals on the reform of no win, no fee. In the very same report on the subject of legal aid, Lord Justice Jackson said: 

“Legal aid is still available for some key areas of litigation, in particular clinical negligence, housing cases and judicial review. It is vital that legal aid remains in these areas. However, the continued tightening of financial eligibility criteria, so as to exclude people who could not possibly afford to litigate, inhibits access to justice in those key areas. In my view any further tightening of the financial eligibility criteria would be unacceptable.” 

If that is not good enough for the Minister, I suggest that he reads the NHS Litigation Authority’s response to the consultation, which criticises the removal of legal aid. I will quote one or two paragraphs, because I want the arguments on the record, as they are most persuasive. They come from exactly those proponents of reform in the system that the Minister relies on when wearing another hat, and they also come from exactly the people whom one might think would be the beneficiaries—defendant insurers or, in this case, the NHSLA. The NHSLA stated: 

“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements…in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid, particularly those involving brain-damaged children and adults. Such claims would therefore fall within all four of the criteria listed in paragraph 4.146 of the consultation as justifying the retention of funding.” 

I recommend that Members read the whole response, if they have not already done so—it is not terribly long, but I shall not read the whole thing today. The part I have been quoting concludes: 

“Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria.” 

I will read one more part of the NHSLA response because, in its own way, it is more damning. Question 4 of the consultation was: 

“Do you agree with the government's proposals to introduce a new scheme for funding individual cases excluded from the proposed scope, which will only generally provide funding where the provision of some level of legal aid is necessary to meet domestic and international legal obligations…or where there is a significant wider public interest in funding legal representation for inquest cases?” 

The NHSLA response was that 

“we have doubts about the operation of a scheme which, according to paragraph 4.167, would cover high-value obstetric cases in particular. No details are provided as to how such a scheme would operate and what the eligibility criteria would be. For example, would this scheme only cover cases of the most severe brain damage, or would it also extend to claims for moderate brain damage, shoulder dystocia or to children whose mental faculties are spared, but who have serious physical disabilities? 

We believe that the position needs to be made much clearer before we could consider supporting such a proposal. We note, for example, that in paragraph 4.53 it is proposed that…‘very serious cases of negligence’ might receive funding. How will it be possible to define ‘very serious negligence’? Will this be akin to the manslaughter test? In truth, we suspect that it will be impossible to achieve a satisfactory definition, at least prior to any judgment. Only a judge can authoritatively determine whether the negligence was sufficient to amount to criminal negligence.” 

That is an absolutely ringing condemnation of the Government’s proposals—their inadequacy, their lack of detail and the haste with which they are being pushed through—which is saying that they have not been thought through in any way at all. 

We have all received a lot of briefings on this subject, so I suspect that Members have read some extremely heart-rending cases. It is said that hard cases make bad law, but there are so many clear cases, particularly of children with injuries of the very greatest severity, that are occurring on a daily or weekly basis and being reported in the papers. What is also clear now is that many of these cases would not get into court without the provision of legal aid. Let me cite one or two of those cases. 

Sophie Tyler is a 14-year-old—Members may have read about her in the papers over the past two weeks—who went into Birmingham children’s hospital for a gall-stone procedure and a spinal epidural device was left in her body for two days. Clearly, there was negligence in that case. Sophie’s solicitor said it was important that lessons were learned and he pointed out that the case could not have come to court without legal aid. 

“Birmingham Children’s hospital has a reputation, both nationally and internationally, for clinical excellence, which is why it is extremely important, both to protect future patient welfare and to provide public reassurance, that the hospital learns important lessons from what happened to Sophie…We very much hope that the staff responsible have already been retrained so that similar tragedies can be avoided and I am glad that they have now admitted responsibility…Although, no amount of compensation will ever turn back the clock for Sophie—she will need specialist care and support for the rest of her life…The trust’s full admission of liability now paves the way for a settlement which will provide Sophie with financial support to pay for the special equipment and care she now needs.” 

He added: 

“This is an important case which has allowed our client to access justice and secure the lifetime of future care she needs but it would not have been possible without the support of legal aid.” 

Sophie’s mother said: 

“My daughter's life has completely changed as a result of what happened. From being an outgoing teenager, her life has altered overnight and we have all had to come to terms with what has happened.” 

In the end, the hospital admitted liability and apologised, but, as in so many of these cases, without the ability of the family to access legal aid, their solicitor said that that would not have happened. 

Let me mention the case of Andrew Green, who suffered from cerebral palsy due to clinical negligence at birth. He recently went to No. 10 Downing street to deliver a letter asking the Prime Minister and Lord Chancellor to think again on these legal aid reforms. His case is perhaps even more relevant to the case. Andrew’s mother, Julie, was initially told that her negligence claim would fail, so she enlisted the support of a specialist legal aid lawyer, which eventually resulted in a seven-figure compensation package. Using legal aid, the Green family was able to secure financial support to enrich the quality of Andrew’s life through care and support. The Green family would never have been able to afford a lawyer through private funding. In Andrew’s letter to the Prime Minister, he said: 

“Regardless of the cost to the government, legal aid medical negligence is part of civil rights that everybody should have access to, whether the applicant is rich or poor. I find it hard to believe that removing a basic right that has been established for many, many years is the only way to save the government money.” 

Just so there is no doubt as to why the settlements are needed, let me read out what Andrew says about the difference a settlement has made to his life. 

“My parents were not in a financial position to support my case against the NHS Trust Diana Princess of Wales hospital, which lasted eight years, when they found out I had cerebral palsy due to a mismanaged delivery when I was born, and so had to rely on legal aid. Even then, it was a great struggle to even receive admittance or an apology, let alone, a financial reward which was much needed…The award from the case, firstly, and possibly most importantly, allowed us to change our highly unsuitable terraced house to a bungalow, where my confidence and skills could develop. It would have been almost impossible for me to learn to walk in my old house and the fact my bedroom was upstairs was very impractical. Now, I am able to walk and even play football totally unaided, despite being told I would never be able to walk…the funding has allowed me to gain access to appropriate and much better education, where the staff at the schools have supported me to keep going and train. All these have been radical changes to my life that before almost certainly would not have been possible, but my achievements in computing would never have been possible without legal aid. I now own my own company that sells the software I produce, as well as setting up and owning multiple websites”. 

7 pm 

Sitting suspended.  

8 pm 

On resuming—  

The Chair:  Before we reconvene, it is certainly our intention to get to the end of schedule 1 by tomorrow morning, so I hope that people will keep that in mind when they are making their speeches. 

Mr Slaughter:  I read at some length two cases that bring out the details of why we think— 

Mr Llwyd:  The two cases to which the hon. Gentleman refers have several things in common. First, they were very serious cases in terms of damage to individuals. Secondly, they were fairly long drawn out due to intransigence by the defendant authority. Thirdly, they were successful, which meant that all the costs to the legal aid fund were paid by the defendant. 

Mr Slaughter:  Those are three good points concisely made. To add to the last point, I note that the success rate in clinical negligence cases has increased from 80% to 91%. What that says about the defendant, I leave for other Members to judge, but it certainly means that the LSC has paid out less money year on year. In some ways, publicity is intrusive, but obviously, the claimants in the cases that I mentioned wished their cases to be publicised for others’ benefit and to explain what happened. 

Other Members might have read today about the cases of Cayden Davies, a brain-damaged child, and Annie Burchell, a severely physically injured child. The cases were similarly serious and similarly reliant on legal aid. I drew three points from that. The first involves the necessity of legal aid in the UK. The second is the consequences of legal aid. That is why I read out the Andrew Green case. Legal aid utterly transformed that child’s life from a state of despair to a life that he can live not only productively but successfully and in comfort, playing sport and setting up a business. The third point concerns the difficulties. The letter from Andrew Green says: 

“My parents previously experienced this issue, being turned away by two standard lawyers and told there was no chance of winning a case, previous to being put in touch with the firm that agreed we should at least try.” 

Even under the current regime, these are not easy rows to hoe. I pay tribute to the individuals and their families, and to their lawyers, who persisted in the cases. 

Before I finish, I have two other points for the Minister to answer in his response. First, Action against Medical Accidents, an independent and well-respected charity, estimates the net cost of the changes at £1.8 million. That is, AVMA says that they will save £17 million but cost about £18.8 million. If that is right, why are the Government persisting with the changes? Secondly, we need clarity on exactly how the Government propose to deal with the problems that will arise if legal aid for clinical negligence is withdrawn and the reformed no win, no fee provisions go ahead. The costs of getting to the stage where a no win, no fee agreement can come into play are estimated at up to £50,000 in complex cases, due to the need for medical reports and to other costs that are not recoverable at that stage. If those costs are not recoverable, that will be an effective barrier to cases proceeding. 

Such cases are compelling, and not just due to the individual circumstances, which we should put aside and consider the lessons to be learned. What is the current product of legal aid in clinical negligence cases, and what are the risks if it is withdrawn for a relatively small saving in public funds? 

 

Tom Brake (Carshalton and Wallington) (LD):  I just want to make a few brief comments. I have some sympathy with the amendments that have just been discussed. The hon. Member for Hammersmith, who leads for the Opposition on this issue, referred to Action

against Medical Accidents. Its chief executive is, in fact, a constituent of mine and I have had regular contact with him over a number of years, particularly about the issue of the duty of candour, which was referred to in an earlier contribution to the debate. I hope that it might be possible to get more movement on that issue, because clearly it involves what are often the most distressing cases and those where the largest financial settlements might be available. 

If there is not going to be any movement on that issue, I hope that at the very least strong pressure will be put on other Government Departments—such as the Department of Health, but not only the Department of Health—to ensure that they are much more open and transparent, and less obstructive, when it comes to litigation. We have heard that the Department of Health is not exactly prompt in seeking to tackle these issues. If we can do something culturally about ensuring that the Department of Health responds more promptly and more openly, that will be beneficial to people who are fighting medical negligence cases, and in relation to other Departments more promptness and openness will be beneficial in other cases where an individual is facing a large Government Department. 

The duty of candour might be the subject of debate in the main Chamber at the moment. That duty can make a contribution, in terms of addressing issues related to medical negligence. If it forces just one, two, three or four more clinicians to come forward with a statement that accepts that there was a mistake made at a very early stage, that could take heat out of the proceedings. It might not necessarily be in this Bill, but I hope that in the other Bill that is being debated at the moment—the Health and Social Care (Re-Committed) Bill—the duty of candour is reflected. 

Mr Watts:  I share the hon. Gentleman’s concerns. If the Government do not accept his concerns and if they do not do something about them, will he and his party vote against the Government on this issue? 

Tom Brake:  I thank the hon. Gentleman for his intervention, which in some ways was predictable. I will give what is perhaps a very predictable response by saying that I believe that as a Government party—as part of a coalition working together on these issues—these are issues that we can rightly discuss in other places. I hope that, perhaps as a result of lobbying, the Government might want to take that on board, without the necessity of my supporting the Opposition. 

Mr Djanogly:  Amendments 146, 147, 149 and 161 seek to widen the scope of legal aid to bring clinical negligence cases into the scope of legal aid where there has been an abuse of position or power by the public authority, a significant breach of human rights by the authority or an abuse of a child or vulnerable adult. Amendments 169 and 223 also seek to widen the scope of legal aid to cover all claims involving personal injury, death, assault or battery and false imprisonment that occur while an individual is in the care of a public authority, as well as claims for clinical negligence brought against the NHS or private health care providers. 

Although we recognise that many of these clinical negligence cases concern very serious issues, for the most part and for most of these cases a conditional fee agreement is a suitable alternative to public funding.

According to NHS figures from 2008-09, 71% of clinical negligence cases in which the funding method is known are funded by means other than legal aid. Therefore we consider that legal aid is not justified in these cases and that our limited funding would be better targeted at other priority areas, such as those concerning physical safety, liberty or homelessness. 

However, we propose an exceptional funding scheme to ensure that some clinical negligence cases continue to receive legal aid if the failure to do so is likely to result in a breach of an individual’s rights to legal aid under the Human Rights Act 1998 or EU law. When considering whether exceptional funding should be granted, we will take account of the ability of the client to present their own case, the complexity of the matter, the importance of the issues at stake and all other relevant circumstances. As a result, the impact assessment estimates that we will continue to spend £6 million of the £16 million legal aid that we currently spend on representation in clinical negligence cases. 

The right hon. Member for Dwyfor Meirionnydd and the hon. Member for Hammersmith seemed to suggest that costs to the NHS litigation authority would be increased by ending legal aid. The impact assessment on civil litigation costs shows that there should be a saving of £50 million to the NHSLA. The Ministry of Justice is discussing with the NHSLA and other stakeholders how the process of claims can be improved. I am pleased to tell my right hon. Friend the Member for Carshalton and Wallington that those discussions will continue. Despite the many opinions voiced against the NHS this evening, in my meetings with it the NHSLA has been most productive and helpful; it wants to move this issue forward. 

Karl Turner (Kingston upon Hull East) (Lab):  Does the Minister not accept that the policy of the health service is often to fight claims? In my view, that is the policy. 

Mr Djanogly:  The policy of litigators is often to fight claims. I cannot talk about individual situations—I am sure that they exist—in which claims have been fought, perhaps to a degree or extent that the hon. Gentleman finds unacceptable, but I am not qualified to comment on the individual legal circumstances. However, I can tell him that the Government have taken up the matter with the NHSLA. Indeed, we believe that the commissioning of reports can be improved by working with the NHSLA in clinical negligence cases; for example, joint expert reports should be commissioned whenever possible. It will not always be possible, but it could significantly lower costs and save time. In turn, that would encourage the early notification of claims. 

As the right hon. Member for Dwyfor Meirionnydd mentioned, one aspect of clinical negligence cases is the significant up-front costs involved in obtaining expert evidence. Following consultation, the Government accept that this is a significant problem, which is why the Bill introduced a tightly drawn power to allow the recoverability of after-the-event insurance premiums in clinical negligence cases. Details will be set out in regulations. I should also point that qualified one-way cost shifting will mean that in the majority of cases in which damages for personal injury are sought—that includes clinical negligence—the claimant will not be at risk of having to pay the winning

defendant’s costs, which will significantly reduce the need for after-the-event insurance, and hopefully encourage people to move towards settlement. 

Mr Watts:  The Minister does not seem to want to concede to his colleagues’ concerns. He certainly is not satisfying Opposition Members, although he might be satisfying Liberal Democrat Members. This is not a coalition agreement matter, so if the Liberal Democrats were inclined to withdraw their support would he press ahead with his proposals or would he change them? 

Mr Djanogly:  I shall leave that hypothetical question for others. 

With regard to the other claims that would be brought into scope by amendments 169 and 223, it is important to emphasise that schedule 1 makes legal aid available to the most serious damages claims against public authorities. The Bill ensures that funding may be made available for damages claims against public authorities if the matter concerns an abuse of position or power, a significant breach of human rights, allegations of abuse of a child or vulnerable adult, or allegations of sexual offences. Right hon. and hon. Members should also be aware that funding may be made available for the judicial review of enactments, decisions, acts or omissions; that is clearly another way of holding public authorities to account. We will continue to spend approximately £10 million on judicial review as a similar public law remedy. 

As members of the Committee will be aware, we have had to make some difficult choices about legal aid and have focused limited resources on those who need them the most and on the most serious cases that justify legal advice or representation. That approach means that public funding will not be available for each and every claim involving a public authority, but it will be available for the most serious cases and to address serious abuses, so I urge the hon. Gentleman to withdraw his amendment. 

8.15 pm 

Mr Slaughter:  In the interests of expedition, I will push only one amendment to a vote. We have made our position clear that we regard this as one of the most serious defects in the scope changes that are outlined in the Bill. For a relatively small saving, this measure will cause untold hardship. This view has been put to the Minister on a number of occasions both today and earlier and it was previously expressed by Lord Carlile. At all times, his answers have been unconvincing. I hope that that might be an indication that the Government themselves, with or without the provocation or assistance of the Liberal Democrats, will look again at this matter, which has caused them a great deal of difficulty. They should have done the brave and logical thing and compromised on clinical negligence They have not done that. Perhaps they will think again. 

Mr Llwyd:  I am not satisfied with that. 

Mr Slaughter:  I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Yvonne Fovargue:  I beg to move amendment 217, in schedule 1, page 99, line 8, leave out ‘from the United Kingdom’. 

The Chair:  With this it will be convenient to discuss the following: amendment 161, in schedule 1, page 96, line 21, leave out ‘other than’ and insert ‘including’. 

Amendment 146, in schedule 1, page 107, line 18, leave out ‘other than clinical negligence’. 

Amendment 147, in schedule 1, page 107, leave out lines 28 to 30. 

Amendment 149, in schedule 1, page 108, line 4, leave out ‘other than’ and insert ‘including’. 

Amendment 169, in schedule 1, page 115, line 13, at end add— 

40 (1) The personal injury or death occurred as a result of alleged negligence during the course of medical treatment (whether provided by the National Health Service or through a private arrangement between an individual and healthcare provider).

(2) The personal injury or death occurred while the individual was in the care of the state or an emanation of the state, whether forcibly or voluntarily (see below).

(3) The injury or death was caused negligently by a servant or agent of the healthcare provider or other emanation of the state.

(4) The individual claims for assault, battery or false imprisonment against a healthcare provider or emanation of the state.

(5) In this paragraph “National Health Service” shall include all state funded healthcare provision, NHS hospital trusts, NHS foundation trusts, mental health trusts, independent treatment centres, general practitioners, primary care trusts, strategic health authorities and all their successors in title.

(6) In this paragraph “Health Care Provider” shall include private hospitals and clinics and individual healthcare professionals, including doctors, nurses and midwives where a patient has contracted on a private basis.

(7) In this paragraph “The State or emanation of the State” shall include the Police, Prison Service or Social Services.

(8) In this paragraph “alleged negligence” is a concept as per the common law including case law definition of negligence as pertaining at the time of the alleged negligence or proposed claim.’.

Amendment 223, in schedule 1, page 115, line 19, leave out paragraph 2. 

Amendment 162, in schedule 1, page 100, line 3, leave out from ‘(“B”)’ to end of line 4 and insert 

‘including matters relating to contact with or custody of a child.’.

Amendment 220, in schedule 1, page 102, line 6, after ‘Mediation’, insert ‘and Collaborative Law’. 

Amendment 191, in schedule 1, page 102, line 8, at end insert— 

‘( ) Civil legal services provided in relation to a family dispute where the LSC competent mediator—

(a) is satisfied that mediation is not suitable based on consideration of the individuals, dispute and all the circumstances of the case (including previous instances of domestic violence or abuse and other power imbalances);

(b) certifies that both individuals attended mediation and the mediation failed;

(c) certifies that the other party did not attend the mediation so the mediation failed.’.

Amendment 231, in schedule 1, page 102, line 8, at end insert— 

‘(2A) Civil legal services (including conveyancing services) provided in the course of giving effect to an agreed settlement of a family dispute.’.

Amendment 155, in schedule 1, page 102, line 44, leave out ‘to a child’. 

Amendment 156, in schedule 1, page 103, line 1, leave out first ‘the’ and insert ‘a’. 

Amendment 157, in schedule 1, page 103, line 2, leave out first ‘the’ and insert ‘a’. 

Amendment 158, in schedule 1, page 103, line 4, leave out first ‘the’ and insert ‘a’. 

Amendment 142, in schedule 1, page 105, line 24, at end insert— 

‘Proceedings for payment from spouse or civil partner to fund legal services

16A (1) Civil legal services in relation to proceedings for an order under section 22ZA of the Matrimonial Causes Act 1973 (order requiring one party to a marriage or civil partnership to pay the other an amount to fund legal services).

Exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of the Schedule.’.

Amendment 190, in schedule 1, page 105, line 24, at end insert— 

‘Legal services orders in family matters

17 Civil legal services provided in relation to—

(a) orders under section 22ZA of the Matrimonial Causes Act 1973;

(b) [orders under section 24A of the Matrimonial Causes Act 1973 to give effect to an order under section 22ZA of that Act];

(c) orders under paragraph 38A of Schedule 5 to the Civil Partnership Act 2004;

(d) [orders under paragraph 10(1)(a) of Schedule 5 to the Civil Partnership Act 2004 to give effect to an order under paragraph 38A of that Schedule].’.

Yvonne Fovargue:  The amendment addresses an important omission. Under the terms of the Bill, only cases of international abduction will be covered by legal aid. Domestic abduction—abduction within the UK—will not be so covered. Domestic child abduction is considerably more prevalent than international abduction and the child welfare issues are exactly the same. The child is usually taken by a non-resident parent who has been denied all contact with the child. They have been taken by somebody whom they may not know that well to somewhere they may not know that well, whether it is inside or outside the UK. Expecting a bereft parent, regardless of whether or not the child remains in the UK, to navigate the court system without advice and representation is not just untenable but cruel. I do not wish to go through the law in detail because there are people here who know the law much better than I do. Nonetheless, it is a complex area of law that involves both civil and criminal law. It is different if it happens in the UK or abroad or if it happens in Northern Ireland. Imagine a parent who has had their child taken from them and who may believe that they are still in the UK. How a parent who is in the middle of such a traumatic experience can be expected to cope without advice, support and representation beggars belief. To distinguish between children abducted abroad and children abducted in the UK is perverse in the extreme. No one should be placed in that position without access to support, advice and representation, and I urge the Minister to accept the amendment. 

Mr Slaughter:  I echo what my hon. Friend says about her amendment, and I think that my hon. Friend the Member for Stretford and Urmston will in a moment

speak to the amendment standing in her name. The amendments in this group all concern private family legal aid matters, but they are discrete, and I will restrict my comments to the three that are in my name. I hope that what the amendments have in common is that they are positive proposals. They are relatively technical but, I hope, helpful. 

I shall first deal with amendment 190. The Bill contains provisions that amend the Matrimonial Causes Act 1973, to give individuals the right to apply to a court for an interim lump sum to help them to cover the costs of legal advice and representation during divorce and separation. That move is welcome, and it will help to ensure that the financially weaker member of a couple is able to apply for such a lump sum to cover their legal costs, guaranteeing equality of arms. At the moment, however, the Bill does not provide legal aid to enable the financially weaker party to make an application for such a sum. Such provision seems to us to be entirely logical and sensible and the purpose of the straightforward amendment is to add it to the Bill. I hope that the Government will accept the amendment. 

Amendment 191 takes us back to mediation in, I hope, a positive way. As we have heard, mediation will continue to receive funding under the Bill. That is welcome, but although mediation is a highly valuable non-court option it is not suitable for all cases. When mediation fails or is deemed unsuitable by the mediator, neither party will be able to choose other publicly funded non-court options, such as collaborative law, which I shall come on to in a moment, or to obtain publicly funded legal representation to continue negotiations and ultimately pursue their claim in the courts, if required. 

The amendment sets out narrow circumstances in which other options may be made available. It states that prior to commencing mediation the mediator must assess both parties to decide whether mediation is suitable. Mediation requires both parties to voluntarily agree to take part. Mediation can be effective when both parties voluntarily enter into it in good faith and demonstrate a willingness to listen to and consider each other’s views, but if one party is not properly engaged with the process, it is unlikely to work, and might fail. 

Many couples have significant issues relating to their children and their finances that are not easily resolved in mediation, and often one party simply refuses to mediate. For example, mediation is unlikely to succeed in a contact dispute in which there are no allegations of domestic abuse and the parent with residence fails to properly engage in a voluntary dispute resolution process. Even if a compromise is reached, if it is not converted into a court order, there is often little chance that the parent with residence will adhere to its terms. 

Under the Bill, once mediation has failed, the non-resident parent will have no way of pursuing the other party in the courts, save appearing before the court in person. When mediation has failed, or is assessed as unsuitable, it should be possible to continue negotiations via solicitors, because the overwhelming majority of cases are settled without recourse to the courts, many of them through negotiations conducted by lawyers. It is a small minority that end up at trial, and therefore, where appropriate, public funding should be made available for that. 

With no expert legal advice on law and procedure available, some parents will be forced to leave issues unresolved, which is often not in their best interests or

those of their children. For example, if non-resident parents do not pursue legitimate contact applications, their children often lose contact with them. Others will be forced to use the courts without legal representation, in proceedings issued either by them or the other party. One party might pay for legal representation privately, while the other is unable to afford it. A parent who has no contact with their child and whose ex-partner refuses to co-operate in or to attend mediation, will be expected to conduct their own application for contact with the child. Finally, many will be put off by the idea of representing themselves even if the courts improve their ability to deal with litigants in person, which seems doubtful. People will simply not progress their rights if they cannot obtain legal representation, because they will feel unsupported or they lack the confidence or skills to represent themselves. Research by the Rights of Women organisation shows that 73% of its survey respondents were reluctant to represent themselves in family law issues. The net result is that, if cases are pushed into mediation, success rates will worsen and the whole process will be undermined. 

Amendment 220 deals specifically with the issue of collaborative law, inserting it as an alternative. Collaborative law, although I am not familiar with it, is a recognised alternative method for resolving family disputes outside court that could offer another workable alternative to the court process for legally aided parties and another opportunity to reduce the number of cases taking up court time. 

In the collaborative process, each party appoints its own lawyer and, instead of a series of negotiations by letter or telephone, the lawyers and their parties seek to resolve matters in several face-to-face meetings. Each of the parties has their lawyer by their side throughout the process and so benefits from legal advice as they proceed. Both parties sign an agreement at the outset, confirming that, if the process fails and the couple decide to pursue their claim through the court, those representing them must withdraw and new legal representatives be instructed to represent them in the court process. Family lawyers wishing to offer the process must attend specialist training. The skills required and the techniques employed by collaborative lawyers are similar to those used by mediators in mediation. Many lawyers who have LSC contracts have already trained as collaborative lawyers. 

The family justice review panel investigated collaborative law and referred to it in the interim report. In the executive summary, the panel refers to collaborative law as 

“another form of accredited dispute resolution”, 

in addition to mediation, which could be offered to parents as an option. Advantages of the collaborative process over mediation are that the parties can receive legal advice throughout and that the lawyers assist with the drafting and submitting to the court of the consent order once agreement has been reached. 

The collaborative process should be available to all. Currently, legal aid is not available for the process, denying people requiring publicly funded representation in private family law cases access to the collaborative option. Unless the same information on available processes is offered to clients seeking public funding, they are not getting equal and proper access to justice. In preserving parenting relationships and avoiding parental conflict, the use of the collaborative process is just as effective in

encouraging effective co-parenting as other forms of alternative dispute resolution, and might be more effective than some. 

In 2008, Resolution commissioned a survey of collaborative family law, covering the two previous years, and respondents represented 30% of the then trained collaborative lawyers. The research showed that, where clients would be suitable for either mediation or the collaborative process, some would choose collaborative law over mediation because they felt that it could offer more support if their lawyer was there beside them when the issues were discussed. 

Some respondents who carried out publicly funded work report that they had clients eligible for public funding whose cases would have been suitable for the collaborative process had public funding been available. Many lawyers undertaking legal aid work in private family cases with clients who are suitable for collaborative law are unable to act for them as collaborative lawyers solely or mainly because legal aid is not currently available for the process. In conclusion on that amendment, as the Government are promoting mediation so heavily as an alternative dispute resolution, why have they not considered collaborative dispute resolution as an acceptable alternative? 

Those are three, I hope, positive, clear and distinct issues that we wish to raise in the process of amending—not overturning—the Government proposals on private family law. I hope that the Minister will respond positively. 

Kate Green :   I wish to speak to amendment 231, which stands in my name and concerns the provision of legal aid when civil legal services, including conveyancing, are provided when giving effect to an agreed settlement of a family dispute. 

I hope that the Minister will consider what I say carefully. For the avoidance of doubt, I do not intend to press the amendment to a vote, but there is an inconsistency. Those who go through mediation and reach a settlement of a family dispute then have access to legal aid to give effect to other aspects of the settlement reached. For example, legal aid might be available for them to carry out any conveyancing in respect of any agreement about property. 

8.29 pm 

Sitting suspended for Divisions in the House.  

9 pm 

On resuming—  

Kate Green:  We have a situation that is anomalous and creates a perverse incentive, which I am sure the Minister will want to consider. Under the current provisions in the Bill, legal aid will be available for mediation provided in relation to family disputes and civil legal services provided in connection with the mediation of family disputes. That would, for example, include conveyancing services where they are provided in the course of giving effect to arrangements for the resolution of family disputes, and where they have been in relation to the dispute under the arrangements made for the purposes of this part of the Bill. 

The anomaly is that where settlement is reached without mediation, legal aid is not available, even for conveyancing services that are provided to give effect to

the arrangements that have been arrived at, but that as funding is available for the mediation itself, it would arguably create an incentive for cases that could be settled without mediation and simply between the two parties ending up being sent to mediation and unnecessarily attracting the additional costs to the public purse, simply because they would attract legal aid funding. It would also of course build in a delay in the successful settlement of such disputes. So the amendment is designed to extend the availability of legal aid services that have been provided to give effect to agreed settlements, including conveyancing services. It would remove the incentive to refer cases to mediation unnecessarily, while retaining the incentive to refer cases to mediation where settlement is otherwise unlikely. It would also, of course, create an additional incentive to settle, even in the absence of mediation. 

I do not intend to press the amendment to a Division, but I hope that the Minister will consider the perversity in what is provided and seek to ensure that those who are able to arrive at settlements of their family disputes without the need for mediation are treated in the same way as those who have taken the mediation route when it comes to giving effect to such agreements. 

Mr Djanogly:  This rather lengthy group of amendments concerns legal aid for private family law cases, with the general theme of increasing the scope of legal aid so that more cases—in the case of some amendments, many more cases—would be covered. 

I want to speak first to amendment 162, which seeks to keep all family disputes as a category within the scope of legal aid. That would completely undermine our targeted approach to legal aid reform. We have to reduce expenditure on legal aid, but we also want less reliance on litigation as a means of solving problems. We have to make tough choices and target legal aid on those who need it most. The amendments also go against the shared view in the House that savings to family legal aid must be made. The hon. Member for Hammersmith, for example, has previously made it clear that the Opposition would now be making cuts to private family legal aid if they were in power. 

We have sought to prioritise legal aid for the cases where there is the greatest risk of harm and where it is most needed—for example, for domestic violence remedies or child parties. The amendments, however, would retain funding across the board, without regard to relative priority and alternative methods of resolving disputes, and would lose an estimated £170 million of annual savings. 

I remind the Committee that after the changes we will still be spending £120 million a year on funding for private family law, including domestic violence. We will be spending an extra £10 million a year on mediation, and exceptional funding will be available where required for out-of-scope cases. The total funding for all family legal aid including public family cases will still be well over £400 million. Although money is important, I appreciate that it is not only about the money. The Government believe that the approach to, and the culture of, litigation in this country must change. The family justice review will make its final recommendations later this year, and it has indicated a clear direction of travel towards a family justice structure that directs people at every stage towards resolving their disputes without recourse to litigation. We will retain legal aid for mediation,

which we think is the best way for couples to resolve their disputes; but continuing to fund lawyers for all family disputes, and funding parties to take their disputes through the courts, cannot be the answer. 

Karl Turner:  The Minister mentions the family justice review, which will present its conclusions in the near future. Would it not be better for the Government to wait until the review has been completed? 

Mr Djanogly:  I am pleased to confirm that the Ministry of Justice has been working closely with the review team, so the policies that are being put in place by the Government were created in conjunction with the workings of the review team. I hope that will minimise conflict between the two parties. 

Amendment 191 essentially seeks to retain legal aid for cases in private family law proceedings where mediation has failed or has been deemed unsuitable. Given that we already require both privately paying and publicly funded clients to consider mediation before bringing proceedings, it is difficult to see how this would change the status quo. We would end up retaining legal aid for all or most family cases, so the arguments that I have just outlined would apply. It might also actively discourage people from trying to succeed with mediation if a failed mediation were to become the route to legal aid. 

Amendment 231 also relates to mediation, and proposes that legal help should be available in family cases in order to give effect to a settlement that is reached without recourse to mediation. As I understand it, the intention is to allow access to legal aid for conveyancing and drawing up a financial agreement or similar formal steps, as well as attendant advice, for those people who are able to reach an agreement themselves without funded mediation. The suggestion is that this would be cost-effective by reducing the demand for unnecessary mediation, where the main purpose is simply to seek the legal services that go with mediation. 

Although I have some sympathy with the intention to encourage the resolution of problems outside court in a cost-effective way, I fear that the proposal is impractical. It would be very difficult to limit, and there is obvious scope for claims that some sort of agreement was in place in order to access legal advice. We think that the likely cost would be at least £10 million a year. There follows the question whether we should focus legal aid resources on people who can reach agreement themselves without the need for either a lawyer or a mediator, and the Government think not. 

Amendment 220 seeks to make legal aid available for collaborative law as well as mediation in private family cases, and I note that the hon. Member for Hammersmith asked why that is not in the Bill. The Bill does not exclude the possibility of funding collaborative law, because clause 7 refers to funding 

“mediation and other forms of dispute resolution.” 

The amendment is accordingly unnecessary in so far as it sets out to make it possible for, as opposed to requiring, funding to be made available for collaborative law. 

We would not rule out the funding of collaborative law to some extent at some point. However, because it involves two lawyers rather than one mediator, with all the costs that that entails, we do not plan to fund it at this stage, bearing in mind its current uncertain value

for money and the reductions that we need to make to the budget. To the extent that the amendment seeks to require funding to be available, we must resist it. 

Amendment 217 seeks to extend the availability of legal aid funding to cover measures to prevent purely domestic as well as international child abduction. We initially proposed that legal aid would remain to secure the return of a child who had been abducted overseas. After listening to consultation responses, however, we have decided to extend it to cover prevention of abduction in such cases, for example for a prohibited steps order. That makes sense on the basis of the complexity, the cost and the consequent practical disadvantages involved in dealing with a foreign jurisdiction. I hope the hon. Member for Makerfield is pleased with that. 

Mr Watts:  The Minister may have pre-empted my question, because it seems somewhat strange that, if a child is seized in the UK by a parent without care, under the original proposals there would be no legal aid assistance for the other parent to bring the child back, but if the parent without care took the child out to, for example, Pakistan, or somewhere else, there would be funding. It seems strange that we would fund the second case but not the first. But the Minister seems to be guaranteeing that that is not the case. 

Mr Djanogly:  No, I think the hon. Gentleman misinterprets what I said. There is a difference between foreign and domestic. If preparation needs to be made in this country in relation to potential foreign abduction, we have decided that legal aid should apply. The position is different domestically. 

We do not consider purely domestic cases to raise the same difficulties as international abduction cases, because a resident parent would not be dealing with a foreign jurisdiction. Seek and locate orders, which are commonly employed in cases of children being removed within the jurisdiction without the other parent’s consent, are relatively straightforward to obtain. Many domestic agencies, including the police, can be engaged in trying to retrieve a child without the need for proceedings in court. If domestic violence or child abuse, and so an additional risk factor, is involved, legal aid would be available. 

Mr Watts:  Any abduction in the UK starts with a domestic abduction, which may lead to abduction abroad. It seems to be more sensible that funding for legal aid should be available at the first stage, when the child is seized, rather than waiting for the child to be taken out of the country, which would be far more expensive and far more troublesome. 

Mr Djanogly:  I have explained the proposed position. 

Helen Goodman (Bishop Auckland) (Lab):  I am puzzled by what the Minister has said. I have only ever dealt with one such case, but in that instance I found that the police were unwilling to act until there was a court order. Is the Minister saying that that should not generally be the case? If so, how will he ensure that it is implemented fully and properly across the land? 

Mr Djanogly:  I cannot talk about specific circumstances, but the domestic position is clearly different from the international one. 

Jessica Lee (Erewash) (Con):  If a child goes missing in this country, the police, who have far-reaching powers, can go and find them, but does the Minister agree that the concern is that if a child is moved outside of that jurisdiction, there are the added complexities of other jurisdictions, international organisations, and so on, being involved? That is when legal expertise is required to seek and find that child. 

Mr Djanogly:  I thank my hon. Friend for making the position clearer. 

Amendments 155 to 158 would keep legal aid for all parties in private family cases in which the court has made a child a party to the case. The Government, of course, intend to keep legal aid for child parties in such circumstances. We do not accept, however, that, as a matter of routine in cases in which a child requires representation, adult family members should also get access to legal aid. Just because a child needs to be represented, it does not follow that the case would be so complex as to require representation for all parties. Of course, by their nature, some cases will be complex, as in the examples that many of us know, and in some circumstances people will not be able to represent themselves. The exceptional funding scheme will ensure that legal aid will be available where required—those cases in which people genuinely could not manage by themselves, and in which a failure to provide legal aid would be likely to breach an individual’s right to legal aid under the Human Rights Act 1998 or EU law. 

9.15 pm 

Amendments 142 and 190 seek to make legal aid available to eligible applicants in ancillary relief and corresponding civil partnership proceedings who wish to apply to the courts for an order for the other party to fund or pay towards their legal costs in the proceedings. As the amendments anticipate, we propose to make changes to court powers in ancillary relief cases and the equivalent proceedings relating to dissolution of civil partnership in order to enable the court to make orders for payment against a party who has the means to fund the costs of legal representation for the other party. In other words, although legal aid will no longer be available for such cases unless domestic violence is present, there will be an option in some ancillary relief cases for a measure of funding to be made available by one party to the other. We accept that that will not apply in all cases; nor should it, as most cases do not present a need for extensive legal representation. Nevertheless, it will provide a route for private funding of legal costs in some cases where it is appropriate to the need and the available resources. 

We have considered whether funding should be available for applications for and the enforcement of such orders for payment. We appreciate that in some cases, there will be disagreements about the amount of assets available to the party being asked to fund both sets of legal representatives. However, we do not think that it will be necessary to go into extensive and expensive detail about the other party’s assets at the application stage. The power is designed to be flexible and to allow for staged orders or orders covering specific arguments or points in the proceedings. It is not necessary to cover in one application every possible argument for the entire proceedings. 

It will be readily apparent whether the other party can afford to fund his or her own legal representation, and basic factual information about the couple’s standard of living before their break up and the other party’s job or other declared sources of income or assets, as well as any available bank statements and so forth, will be relatively straightforward to collate, particularly as standard disclosure of such matters is required from both parties before the first appointment in the proceedings. That information is likely to be sufficient to enable the argument, for example, that the other party is being less than forthcoming about their available assets and that it is appropriate for them to provide funding for initial argument about those assets. If appropriate, further applications can be made subsequently to cover later stages of the proceedings. 

In some cases, the party seeking the order may have a solicitor working for them on a contingency basis, on the expectation that the order will be granted. In any event, it would be inconsistent to provide legal aid for the purposes of disclosure, or other issues relating to application or enforcement, in such cases but not in other ancillary relief cases where the issues are similar and we do not consider it appropriate to maintain legal aid funding. Essentially, it should be within the capacity of most litigants in person to explain their former partner’s basic financial position to a judge and point to relevant evidence. In very exceptional cases where that is not at all possible and the applicant has no form of advice or assistance and no means of securing it, exceptional funding might be available if funding is necessary to avoid a breach of the Human Rights Act or EU law. I urge hon. Members to withdraw their amendments. 

Mr Slaughter:  I am disappointed by the Minister’s responses, particularly in this case, as he has misrepresented the position that we set out clearly. He is right that we have not maintained throughout the process that we wish a wholesale restoration into scope of private family law. We accept, as we have accepted throughout, that savings must be made from the legal aid budget. However, there are crudities and problems with how the Government have gone about it, and we have sought—I thought in a positive way—to perfect the proposals with relatively minor but important changes, in the spirit that the Government have adopted in relation to considering alternative dispute resolution and in ways that would make the system work better for those party to it without costing a great deal more money. However, he has chosen not to accept that, which does not come as much of a surprise. 

I will not press all three of my amendments to a vote, although my hon. Friends may wish to do so; I will leave that to them to determine. I will not press amendments 190 and 220. However, in amendment 191, we are making a clear point that the circumstances for mediation should be narrowly defined and controlled. The mediation system has the potential to be misused, or at least used in a way that to all parties—certainly to a trained mediator—is clearly inappropriate. The Government’s answer to that is, “Well, that is tough.” Either nothing happens and the issue remains unresolved: one party becomes the victim to the other or one party tries to get into court as a litigant in person. All of those are very unsatisfactory answers and I hoped for a slightly more constructive response to that but we did not get it. 

Yvonne Fovargue:  I am sorry to say that I find the Minister’s response somewhat unsatisfactory and unconvincing. The fact that we are not dealing with a foreign jurisdiction does not make English law simple to deal with when people are in a particularly stressful situation. It seems perverse that parents can get assistance when the child is being taken abroad, but not when it is taken to the other end of the country. To give the parent an extra hurdle to prove that they cannot manage without support, to make it exceptional, in a circumstance like that, which I would have said was exceptional in any case, is perverse. I shall therefore press my amendment to a vote. 

Question put, That the amendment be made. 

The Committee divided: Ayes 9, Noes 10. 

Division No. 11 ]  

AYES

NOES

Question accordingly negatived.  

Mr Llwyd:  I beg to move amendment 163, in schedule 1, page 100, line 4, at end insert 

‘or where an allegation is made that B has been abused by A or is at risk of being abused by A’.

The Chair:  With this it will be convenient to discuss the following: amendment 229, in schedule 1, page 100, line 33, at end insert— 

‘(c) the Director of Legal Aid Casework shall be entitled to determine whether A has been abused by B or to be at risk of being abused by B on the basis of evidence that he considers sufficiently compelling to make such a determination.’.

Amendment 164, in schedule 1, page 100, leave out lines 35 to 38. 

Amendment 218, in schedule 1, page 100, leave out lines 35 to 38 and insert— 

‘“abuse” means any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality;’.

Amendment 165, in schedule 1, page 100, line 35, leave out ‘physical or mental abuse’ and insert 

‘any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)’.

Amendment 166, in schedule 1, page 101, line 26, leave out ‘(“A”)’. 

Amendment 167, in schedule 1, page 101, line 28, leave out ‘other than A’. 

Amendment 152, in schedule 1, page 101, line 40, at end insert— 

‘(1A) Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1).’.

Amendment 153, in schedule 1, page 101, line 40, at end insert— 

‘(1B) Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances).’.

Amendment 154, in schedule 1, page 101, line 40, at end insert— 

‘(1C) Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10.’.

Amendment 230, in schedule 1, page 102, line 4, at end insert— 

‘(7) For the purposes of this paragraph, the Director of Legal Aid Casework shall be entitled to determine whether a child who is or would be the subject of the order is at risk of abuse from an individual other than A on the basis of evidence that he considers sufficiently compelling to make such a determination.’.

Amendment 100, in clause 10, page 7, line 25, at end insert— 

‘( ) But the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—

(a) the individual has been admitted to a refuge for persons suffering from domestic abuse,

(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or

(c) an assessment for the purpose of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse, and in this subsection “domestic abuse” means abuse of the kind to which paragraph 10(1) of Schedule 1 relates.’.

Mr Llwyd:  I will deal first with amendment 163. In schedule 1, on page 100 at line 4, where it says: 

“where A has been abused by B or is at risk of being abused by B”, 

I want to insert: 

“or where an allegation is made that B has been abused by A or is at risk of being abused by A”. 

I will come on to definitions later. There has been a great deal of unhappiness about the strict definition of domestic violence in the operation of these provisions. 

Amendment 164 seeks to delete lines 35 to 38 on that same page, which contain the Government’s version of abuse, which is a definition which I certainly do not sign up to. More importantly, the Bar Council, the Association of Chief Police Officers and others do not sign up to it. 

Amendment 165 would leave out “physical or mental abuse” from schedule 1 on line 35 of page 100 and insert 

“any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional).” 

The Bar Council in particular argues that in paragraph 10, the Bill uses a narrow definition of domestic abuse, which it believes is inconsistent with that used by ACPO. The definition that ACPO adheres to is: 

“Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality…Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.” 

The proposed definition in amendment 165 would bring the Bill’s definition in line with ACPO’s. 

The remainder amendments, which are amendments 166, 167, 152, 153 and 154, speak to the same subject. Amendments 166 and 167 are consequential amendments. Amendment 152 would insert the following to paragraph 11: 

“(1A) Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1)” 

Amendment 153 would insert the following: 

“(1B) Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances)” 

Finally, amendment 154 would insert the following to paragraph 11: 

“(1C) Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and ‘family relationship’ has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10” 

The reason for the amendments is that it is not understood why, under schedule 1, the provision of legal aid is limited to provisions relating to the children, and not the associated financial remedy proceedings linked in with the children. Surely, the child’s economic welfare is vital in abuse cases, particularly given the higher incidence of abuse in low-income households. 

The Bar Council’s amendments would bring within scope, first, proceedings leading to an order under section 37 of the Children Act 1989, in other words, directing investigation where a care or supervision order may be appropriate; and secondly, all subsequent steps in family proceedings once a section 37 order has been made. The amendments would also ensure, like those proposed for paragraph 10, that the person against whom allegations of abuse are made is within scope. They would be important additions to the Bill, and I would be interested to hear what the Minister has to say in his response. 

Kate Green:  First, let me associate myself with the comments of my right hon. Friend the Member for Dwyfor Meirionnydd and, in particular, with my amendment 218, which covers substantially similar ground to the amendment tabled in relation to the definition of domestic violence. I wish to take the discussion a little further. The purpose of my amendment is to align the definition of abuse for the purposes of the gateway to legal aid for victims of domestic abuse involved in private family law matters relating to children and finances with that adopted by the Association of Chief Police Officers, as my right hon. Friend has also sought to do. 

Anyone who has looked at what the Government are proposing in respect of the definition is at an absolute loss to understand why they will not just accept the ACPO definition. It is now well established and understood and, as a result, means much less scope for argument and delay in the courts while people establish whether they fall within the particular definition. There is now good case law and history to be made clear about what does or does not constitute abuse within the ACPO definition. If Ministers believe that the definition that they are proposing for the Bill covers the same ground as the ACPO definition, why not just adopt the ACPO definition? If they consider that it will do something different from the ACPO definition, I should like to understand why they consider that something different is appropriate when it comes to domestic abuse in relation to the provision of legal aid. 

The Minister is nodding, so perhaps he will offer some clarification on such matters. I have to warn him that there has been no endorsement of the differentiation in matters of legal aid from any of the organisations that have contacted us about it. I am sure that they have contacted those on the Treasury Bench, too. Perhaps the hon. Member for Ipswich can tell me one that has. 

9.30 pm 

Ben Gummer:  I wish to repeat the comments of several family barristers in my constituency, who said that they were very much happier with the new definition and were content with it. 

Kate Green:  It is a pity that those family barristers did not take the trouble to submit written evidence to the Committee; then we would probably understand their arguments. Organisations that have worked in such an area for many years and campaigned particularly hard to have domestic violence taken with the seriousness that it deserves have made it absolutely clear that the ACPO definition is the right definition to use, that it is well understood and well established, and that they would prefer the legislation to go in that direction. 

Mr Llwyd:  I wish to make the general point that there are good barristers and there are bad barristers. 

Kate Green:  I bow to the right hon. Gentleman’s superior professional knowledge. 

The Minister appears to believe that there will be an explanation. It will be an explanation that I very much looking forward to hearing, and I am sure that the many organisations that have been in contact with us will want to consider it with great care, too. 

My hon. Friend the Member for Kingston upon Hull East will be discussing other concerns, as indeed has the right hon. Member for Dwyfor Meirionnydd, in relation to what evidence the Government actually take in respect of determining that domestic abuse has been present, and some real concerns have been expressed about the narrowness of the way in which they are approaching the matter. It is also unclear from the Bill whether there will be provision for legal aid for victims to obtain the initial legal advice and to get the warning letter sent to their abusers, which will be a prerequisite of getting into some of the situations that the Bill suggests will be recognised within the ambit of the definition of domestic abuse. It is important that the Minister clarifies whether

legal aid will be available in relation to such warning letters; otherwise, only those cases where the risk of violence poses an immediate danger necessitating a same-day application report for an injunction will receive legal aid. 

The Minister will also be well aware of the significant under-reporting of domestic violence. Indeed, a survey undertaken by Rights of Women and shared among members of the Committee showed that the majority of women had not reported domestic violence to the police or other authorities. Given that much of the way in which the policy will be applied will come through under regulations, it is important that Ministers think widely about the evidence that they will regard as acceptable to show that domestic abuse has taken place. That could include not just the non-molestation orders and legal actions that are proposed in the Bill, but evidence that someone has accessed domestic abuse services, a rape crisis centre, a women’s refuge or other similar organisations in the community, or help from social services, or, for that matter, where a mediator has determined that a case is not suitable for mediation because of the presence of domestic abuse. I look forward to hearing the Minister’s comments on the willingness of the Government to take a wider range of evidence in relation to domestic abuse. 

I also highlight for the Minister that we know there is a particularly high risk of domestic abuse taking place when a woman is pregnant, or shortly after the birth of a new baby, or—more pertinently perhaps for the Bill—at the point of separation and particularly when child contact matters are in dispute. It is therefore particularly important that, where there is already additional tension and difficulty in a family, we make certain that there is proper legal advice to ensure that the best interests of all family members, but especially the children, are properly protected. 

I hope that Ministers will revisit the domestic abuse proposals to ensure that they do not increase the obstacles faced by victims of domestic abuse seeking help, that they ensure that victims are able to obtain legal aid for early advice on intervention, and that there is absolute clarity about the definition of domestic abuse, which is well understood, well accepted and will serve to cut through a great deal of delay and uncertainty for those who are experiencing this particularly nasty form of violence. 

Karl Turner:  Amendments 229 and 230 give the director of legal aid casework the leeway to decide whether abuse has occurred for the purposes of awarding legal aid. Amendment 229 would insert the following: 

“the Director of Legal Aid Casework shall be entitled to determine whether A has been abused by B or to be at risk of being abused by B on the basis of evidence that he considers sufficiently compelling to make such a determination.’.” 

The amendment affects paragraphs 10 and 11, which lay down the circumstances in which legal aid may be provided for private, or family and children cases. As it stands, the provisions allow legal aid in cases of: 

“Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where A has been abused by B or is at risk of being abused by B.” 

Paragraph 11(1) states: 

“Civil legal services provided to an adult (“A”) in relation to the following orders and procedures where the child…is or would be the subject of the order is at risk of abuse from an individual other than A—”. 

The list of orders and procedures follows. 

The provisions leave open the means by which it is determined whether A has been abused by B or is at risk of being abused by B, and where the child is or would be the subject of the order is at risk of abuse from an individual other than A. It is intended that the means of determination will be set out in regulations by the Lord Chancellor, as I understand it. My concern is that that is too rigid. The Government have stated that for the purposes of clauses 10 and 11 of the Bill, it will require objective evidence that the conditions are met and that the evidence must satisfy at least one of the criteria—I think there are seven criteria in all—which are essentially protective injunctions which are either in place or have been in place within the past 12 months. 

In relation to abuse of adults, there are multiple objections to making those exclusive grounds for establishing abuse or the threat of abuse. Victims of domestic violence or domestic abuse are very often reluctant to report abuse to the police or, for that matter, in my experience, to any agency, whatever it might be. They may be unwilling to make public their private suffering for fear of further reprisals or to protect others, such as the children in that family. I am sure that hon. and right hon. Members on both sides of the Committee will appreciate that genuine and perhaps dangerous incidents of domestic violence will go on as a result of the proposed legislation, and I have no doubt that that is not the Government’s intention. 

The Government’s refusal to accept an undertaking by a party to civil proceedings not to commit acts of abuse may, in many cases, aggravate domestic violence. Evidence such as a finding of fact or a criminal conviction would be necessary to satisfy the criteria as set out. It makes no sense for eligibility for legal aid under paragraphs 10 and 11 to be dependent on taking unnecessary and, in my view, very divisive legally aided proceedings under paragraph 9, which will burden the police or social services, perhaps unnecessarily. The amendment would allow prima facie evidence, such as police reports, hospital admissions, GP reports, evidence from refuge centres or undertakings in domestic violence cases, to be used. 

Amendment 230 would insert: 

“the Director of Legal Aid Casework shall be entitled to determine whether a child who is or would be the subject of the order is at risk of abuse from an individual other than A on the basis of evidence that he considers sufficiently compelling to make such a determination”. 

With regard to incidents of child abuse, it must be said that similar objections arise. As it stands in the Bill, an adult seeking a residence order would not be eligible for legal aid, even if they had evidence of previous abuse, unless they could satisfy one of the conditions. It just does not seem right. 

I respectfully submit that the Government should consider the position for the reasons given by the right hon. Gentleman whose constituency, despite your earlier warning, Mr Sheridan, I have absolutely no chance of pronouncing, and by my hon. Friend the Member for Stretford—I can manage that. [ Interruption. ] I cannot manage the second part of it. Is “Urmston” correct? It will do. I respectfully suggest that the Government consider the provisions very carefully. 

Mr Slaughter:  I shall speak briefly, because my three colleagues have covered the amendments very well. This subject, along with clinical negligence, is the area that

the Government struggled with when they responded to the consultation responses. They made some concessions, which were welcome, but they did not go far enough. As was highlighted by the amendments in the group, first, there is a question of definition. Notwithstanding the comments from the Government Benches, there is very wide and broad agreement that the ACPO definition is a sensible one. That is certainly the conclusion that the right hon. Member for Dwyfor Meirionnydd and my hon. Friend the Member for Stretford and Urmston reached with their amendments. 

Secondly, the question of making domestic violence the gateway to legal aid in both private children and financial matters cases has been a thorn in the Government’s side. Such a provision—and all the baggage of perverse incentives that comes with it—is unseemly in restricting and funnelling access to legal aid through the medium of violent behaviour. That point is similar to the one made about complex cases, to which we shall probably return when we discuss welfare benefits. In such cases there might be a reason for providing legal aid in one respect, but that deals with only part of a legitimate claim. The Government have failed to deal with such inflexibility. 

9.45 pm 

Thirdly, my hon. Friend the Member for Kingston upon Hull East made a point about the other so-called objective tests, which effectively require victims to jump through a series of procedural and legalistic hoops—it is almost a Catch-22 situation. Only in a very few cases will people arrive at a position from where they can prove sufficiently to obtain legal aid. One of the corollaries of that is the question of undertakings. It is a long time since I practised family law, but I suspect that in the vast majority of cases—there are other more expert people in Committee so I had better be careful what I say—the family courts would be unable to cope were it necessary in every case to prove violent incidents rather than to accept undertakings. That is another important matter that the Government have failed to deal with. 

Again, we are not asking for the baby to be thrown out with the bathwater; we are asking for a sensible review to meet the facts on the ground in domestic violence cases. There has been a move forward in dealing with such cases in both criminal and civil law over the past 20 years, and domestic violence now courts a much greater appreciation by the police and prosecuting authorities, and a much more responsive attitude by the family courts. The provision goes against the grain of all that, which is why there is such concerted opposition to it. We need the Government simply to reconsider the measure in the context of the amendments. I shall leave it to my hon. Friends to decide which amendments they wish to press to a vote, but the matter needs further attention if we are to avoid undoing a great deal of good work that has been done in tackling domestic violence. 

Mr Djanogly:  This substantial group of amendments relates to legal aid for private family law cases involving domestic violence and private law children cases involving children at risk of abuse. 

I shall speak first to amendments 100, 229 and 230. Amendment 100 would set out in the Bill three sets of circumstances that would be accepted as demonstrating the fact of domestic violence for the purpose of qualifying for legal aid in private family law cases. Amendment 229 would provide for the director of legal aid casework to determine whether a person has been abused by the other party in a case or is at risk from them 

“on the basis of evidence that he considers sufficiently compelling to make such a determination.” 

Amendment 230 would provide for the director of legal aid casework 

“to determine whether a child who is or would be the subject of the order is at risk of abuse” 

on the same basis. 

The domestic violence exceptional gateway, as it were, is a difficult balancing act for the Government. On one hand, we want genuine victims of domestic violence to receive the benefit of legal aid in cases in which they will face their abuser as the other party; on the other, we heard many concerns during consultation that such proposals might cause a rise in unfounded allegations. We want to guard against that. 

We need clear, objective evidence of domestic violence to target legal aid on genuine cases in which the victim needs assistance. Such people will need assistance because of the history of abuse and the risk of further abuse by the other party, and the effect that that may have on the victims’ ability to conduct proceedings. 

Forms of evidence that will be accepted for that purpose are not set out in the Bill; instead, they will be set out in regulations under clause 10. We believe that it is appropriate to set out such detailed provisions in secondary rather than primary legislation. We listened carefully to views expressed in response to the consultation about what should be accepted as evidence of domestic violence and, as a result, we have widened the criteria originally suggested. Legal aid will be available for victims of domestic violence in private family law cases in which one of those criteria is met. 

The first criterion is that a non-molestation order, occupation order, forced marriage protection order, or other protective injunction against the other party is either in place or has been made in the past 12 months. The second is a criminal conviction for a domestic violence offence committed by the other party against the applicant for funding, unless the conviction is spent. The third is that there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding. The fourth is that the applicant for funding has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence and a plan has been put in place to protect them from violence by the other party. The final criterion is that there has been a finding of fact in the family courts of domestic violence by the other party, giving rise to the risk of harm to the victim. 

Helen Goodman:  Opposition Members are extremely concerned about the criteria and the high hurdle that the Minister is setting. I am sure that he is familiar with the facts. The truth is that many women have suffered an average of, I think, 35 instances of abuse before they even go to the police to report, yet the Minister does not accept that hurdle. He is setting a hurdle that would

require a far higher level of domestic violence to have already occurred, a level that is so high that there would already have been a court order. That is the main objection to the definition that he proposes in the Bill. 

Mr Djanogly:  The hon. Lady has made her point. The criteria all avoid self-reporting and involve a significant level of state intervention, and so maximise the objectivity of the evidence for legal aid purposes. 

I hope it will be helpful if I give the Committee some idea of the prevalence of those forms of evidence. About 24,100 domestic violence orders were made in 2010. About 74,000 domestic violence crimes were prosecuted in 2009-10 and there were 53,000 domestic violence convictions. About 43,000 victims of domestic violence were referred to multi-agency risk assessment conferences in the 12 months up to June 2010. Clearly, those numbers will overlap to an extent, but, to compare, the LSC funded legal representation in about 69,000 private family law cases in 2009-10, not including legal aid for a protective injunction. 

I will address each of the circumstances proposed in amendment 100 in turn. We are concerned that to include admission to a refuge in the criteria would be to rely on self-reporting, as well as place pressure on those organisations that provide refuges. Their assistance may be sought with greater frequency if they have a role in triggering access to legal aid. 

Kate Green  rose—  

The Chair:  Order. Interventions must be brief. 

Kate Green:  Thank you, Mr Sheridan. Frankly, the Minister’s remarks are fanciful. Refuges are significantly over-subscribed and are already having to be quite stringent in relation to who they admit to their protection. The Minister is not presenting a realistic picture in that statement. 

Mr Djanogly:  Again, the hon. Lady has made her point. We are not persuaded that medical professionals would be best placed to assess whether domestic violence has occurred. Although they may witness injuries, it may be difficult for them to determine how they occurred. Again, there would be a strong element of self-reporting, rather than objective evidence. Evidence from medical professionals could, however, depending on the circumstances and the assessment of a judge, lead to a finding of fact in the family courts that domestic violence has occurred, which would trigger funding. Moreover, of course, evidence of having entered a domestic violence shelter may similarly trigger a finding of fact. 

Helen Goodman:  I would be grateful if the Minister would describe to the Committee why he thinks self-reporting is not an adequate piece of evidence. What he is suggesting is that grown women are not capable of making clear and accurate reports. If what he is saying were right, how would the police ever know to investigate something if they needed some further objective evidence beyond the self-report of the woman? 

Mr Djanogly:  I am not saying that a woman reporting a matter to the police should not lead to an investigation. It should and that may lead to objective evidence of what we need to hear in order for funding to be provided. 

The reference in amendment 100 to the individual having obtained 

“other professional services relating to the consequences of domestic abuse” 

is very broad and vague. In that regard, the criteria proposed by the Government have been widened from those originally suggested, so that legal aid will be available where the victim has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence and a plan has been put in place to protect them from violence by the other party. 

Mr Watts:  Will the Minister give way? 

Mr Djanogly:  I will make some progress and then the hon. Gentleman can come in. 

Those referrals can be made by a range of professionals. The third part of amendment 100 deals with cases assessed as being unsuitable for mediation on the grounds of domestic violence. Again, we consider that the criterion does not sufficiently establish the objective evidence of harm or the risk of harm calling for legal aid to be made available for protection. Under the pre-action protocol for mediation, information and assessment, which came into force in April, a person is not expected to attend a mediation assessment meeting where allegations of domestic violence have been made that have resulted in a police investigation or civil protection proceedings. 

Mr Watts:  I do not know whether the Minister was going to get round to this issue, but will he say why he is inventing new criteria? Other criteria are used by the police. I gather from the logic of his argument that he thinks that the police’s criteria are wrong and that the police should change their criteria to fit in with the Government’s policy. 

Mr Djanogly:  I will come on to the ACPO definition shortly, as the hon. Gentleman requests. 

We do not consider that allegations of domestic violence in themselves would constitute clear objective evidence and nor would the fact of a police investigation without more evidence provide sufficient evidence for the purposes of legal aid, as the result of an investigation could be inconclusive or the police might determine that domestic violence has not in fact taken place. 

Legal aid will be available where a non-molestation order, occupation order, forced marriage protection order or other protective injunction is either in place or has been made in the previous 12 months. 

Kate Green:  Has the Minister made any assessment of the sort of reduction in the number of domestic violence cases that will qualify for legal aid that will result from the narrowing of his definition compared with what would have occurred under an ACPO definition? 

Mr Djanogly:  I do not have that information to hand. I will write to the hon. Lady on that issue. 

Regarding amendments 229 and 230, we have sought to be clear about the forms of evidence of both domestic violence and child abuse that will be accepted. We expect that there will be tens of thousands of applications each year for legal aid in those cases and in order to be able to grant funding quickly and minimise bureaucracy the criteria will need to be clear. Setting out the criteria

in secondary legislation will enable greater transparency and consistency than would be the case if decisions were taken without evidential criteria. It is important to remember that legal aid will remain available for exceptional out-of-scope cases where it is required as a result of our domestic or international legal obligations, including article 6 of the European convention on human rights. 

Amendment 163 would provide for legal aid to be made available for any private family law cases where there are allegations of domestic violence or a risk of domestic violence, as opposed to evidence of abuse or risk of abuse. Clear objective evidence of domestic violence will be needed in order to target legal aid to genuine cases without providing an incentive for unfounded allegations to be made. If we were to accept allegations of domestic abuse or the risk of abuse without requiring any objective evidence, we would expect there to be a significant increase in the number of allegations. 

Amendments 164, 165 and 218 would put parts of the definition of domestic violence used by ACPO in the Bill, in paragraph 10 of schedule 1, in place of the existing definition of abuse or, in the case of amendment 164, simply remove the definitions of abuse so that the term is left completely open. The amendments also seem to allow any incident of abuse to be accepted as sufficient evidence of abuse for the purpose of qualifying for legal aid in a private family law matter. 

I turn to the issue of the definition of abuse. The existing definition of abuse in the Bill is a broad one that is explicitly not limited to physical violence. It is used elsewhere in the Bill, in paragraph 3 of schedule 1, which provides civil legal aid for child abuse cases. The definition is intentionally flexible and enables funding to be given, where there is a genuine need, on the facts of the case. Let me confirm that the definition of abuse embraces mental abuse as well as physical abuse. It specifically includes neglect, maltreatment and exploitation. These references would cover, for example, abusive behaviour relating to family finances. We do not consider that the Bill definition will restrict the availability of legal aid in comparison with using the ACPO definition and therefore this part of the amendment is unnecessary. 

Kate Green:  I have heard exactly what the Minister has said and therefore I wonder whether he could address the other part of my question: if he does not believe there will be any cases excluded under the Bill’s definition that would have been picked up by the ACPO definition, why not use the ACPO definition? 

Mr Djanogly:  I have not said that. Let me finish what I am going to say and then perhaps the hon. Lady may wish to comment further. 

I turn to the phrase “any incident.” Putting that phrase into primary legislation would effectively fetter the power to limit legal aid in private family law cases by reference to the level of abuse, providing someone could point to some sort of incident, regardless of whether— 

10 pm 

Sitting suspended for a Division in the House.  

10.15 pm 

On resuming—  

Mr Djanogly:  Regardless of whether it was serious or minor, such that the victim would not generally feel inhibited in pursuing litigation against the other party. The touchstone for whether a party obtains funding must be whether the abuse was such as to inhibit their ability to present their case against the other party. The circumstances that would be accepted as evidence of the abuse will turn on the application by courts, prosecutors and other agencies of their existing criteria, which would generally reflect the cross-Government definition of domestic violence. It is where the courts and others have determined that abusive conduct is of a level that protective action or prosecution must be taken that the gateway will apply. 

Before taking any intervention, I will help Members by explaining why the Government are using a new criterion of domestic violence from that of ACPO. The ACPO definition of domestic violence is designed to ensure that allegations of domestic violence are properly investigated—I repeat the word “investigated”. That is a different purpose and a different stage from the purpose of the criteria being proposed by the Government as evidence of abuse that calls for funding for legal representation. 

Helen Goodman:  I am afraid the Minister confirms exactly the concerns raised by the Opposition, namely that there has to have been a long history of abuse before a person would be eligible for legal aid. The question I would like to ask the Minister arises from he just said. He said this is a cross-Government definition. Will he confirm that he has agreed the definition with the Minister for Women? 

Mr Djanogly:  The Bill is a Government Bill. If the hon. Lady turns to the back of the Bill she will see that it is being presented and supported by people including the Home Secretary. 

Amendment 218 goes beyond amendment 165 in referring to the relationship between those involved. It would cover intimate partners or family members, regardless of gender and sexuality. That part of the amendment is unnecessary in any event; it duplicates paragraph 10(7) of the schedule. That relies on the definition of associated persons in the Family Law Act 1996, which is a wide one and would cover the relationships set out in the amendment. 

I will now turn to the other amendments relating to private law children cases, such as disputes about custody, where a child is at risk of abuse. The amendments are to paragraph 11 of schedule 1, which provides for legal aid to be available in those cases for the party seeking to protect the child where there is objective evidence of risk of abuse. Amendment 152 would provide for applications for financial provision for children to be in scope for legal aid where the child is the subject of one or more of the measures listed in paragraph 11(1) of schedule 1. That list of orders is wide and includes contact and residence orders. The effect of amendment 152 would be that child maintenance applications would be in scope whenever a contact or residence order has been made. 

The original legal aid proposals were silent on the issue of children at risk of abuse in private law children cases. We listened to concerns raised during consultation on that point. For example, one party might be seeking an order barring an abuser from unsupervised contact with the child. We agreed that child protection is an issue of great importance. We also recognised that it would be difficult for the protective party to act in person in cases of potential complexity and heightened risk to the child, requiring prompt and clear action. That is a separate rationale to the situation where the adult himself or herself has been subject to abuse such that he or she cannot be expected to represent themselves against their abuser. We do not consider that cases concerning financial provision are of equal priority, nor do they raise the same issues. Financial matters are of a lower objective importance than child protection, and we would not expect the protecting party to encounter the same level of complexity, still less a need for urgent protective action in a case about financial provision. 

Furthermore, the person presenting the risk of abuse might not be the other party in the financial provision proceedings. Although protecting a child from abuse is clearly of high importance, it is not appropriate that, in a case for financial provision, which is a separate matter from the consideration of protective measures, a distinction should be drawn between maintenance for children considered at risk of abuse and maintenance for other children. 

Amendment 153 would bring into the scope of legal aid the entirety of any proceedings in which the court was considering whether to direct the local authority to investigate the circumstances of the child. Under section 37 of the Children Act 1989, the court may make such an order if it appears that it may be appropriate for a care or supervision order to be made. The amendment appears to be unnecessary; in any event it goes too far. Under paragraph 1 of the schedule, legal aid will be available for public family law cases such as care and supervision proceedings, as at present. We believe that the state should ensure that families are able to challenge decisions made by public authorities about the provision of care for children. Orders under section 37 of the 1989 Act are considered to be public family law matters for legal aid purposes, and fall within the list of public law proceedings in paragraph 1 of schedule 1. Funding is therefore available in relation to the section 37 issues. There is no reason in principle why a case could not be adjourned briefly in such a situation to allow the parties to seek a legal aid lawyer for the section 37 issue, if that were warranted. Providers are able to use devolved powers to grant immediate funding in emergency situations, subject to means and merits-testing. The funding would be on only that point, rather than on the main subject of the proceedings. 

Amendment 154 also references section 37 directions. The amendment would bring into scope any private family law proceedings that involved a child in respect of whom a direction under section 37 of the 1989 Act had been given, regardless of the outcome of that section 37 investigation. That is a remarkably broad proposition, which I do not think can be justified. Under the amendment, a section 37 order, regardless of the outcome of the investigation, would trigger funding for all parties in any private law family proceedings in which the child was involved. A section 37 order in itself

does not mean that the child is at risk of abuse. The local authority staff could conclude, once they had completed their investigation, that the child was not at risk and that no further action was needed. If the local authority concluded that action was needed, it would put a child protection plan in place, which would be accepted as evidence that the child was at risk of abuse and would trigger funding for the party seeking to protect the child. 

Providing for legal aid to be available for any family proceedings involving the child, as amendment 154 would do, would mean that legal aid would not be targeted on proceedings about protection of the child, but could be available for proceedings that might not concern protection at all. For example, a case about financial relief for the parents could be covered if an application were made for financial relief for the child, given that the words “involving a child” do not give much indication of how closely the child needs to be concerned. It might even be that a case between the parents about a matter that did not directly concern the child was included. 

Amendment 154 would also provide for legal aid to be available for all parties to the proceedings. We intend to target funding on the protecting party, and where a party is not the person taking action to protect a child from abuse the same level of importance and risk would not apply. 

Finally, amendments 166 and 167 would also widen the availability of legal aid under paragraph 11, beyond the party seeking to protect the child. The amendments would mean that legal aid would be available for the other party in private law children cases where a child was at risk of abuse. We decided to keep the cases in scope for the protecting party because protecting children from abuse is of paramount importance. The party is effectively acting on the child’s behalf, to protect that child. As I said in respect of amendment 154, where a party was not the person taking action to protect a child from abuse, the same level of importance and risk would not apply. The tests that we wish to use to determine the availability of legal aid in such cases are designed to be as objective as possible and to minimise the risk of false allegations. The tests are for where there is a criminal conviction or ongoing criminal proceedings for a child abuse offence. Where a local authority has put a child protection plan in place to protect the child or where there is a relevant finding of fact by the family courts that child abuse has occurred, they will provide clear, objective evidence of the risk of abuse. 

Helen Goodman:  Will the Minister explain why his priority is to prevent false allegations, which is what he said three sentences ago, rather than to provide proper services for those families? 

Mr Djanogly:  I did not say that the priority is false allegations at all. I said that the priority is the protection of the child. If the particular facts of an individual case meant that the failure to provide legal aid for both parties would be likely to result in a breach of individual rights under the Human Rights Act 1998 or the European Union law, exceptional funding would be available. On that basis, I urge the right hon. Gentleman to withdraw the amendment. 

Mr Llwyd:  I respect the fact that the Minister has addressed this at length, but frankly I am not satisfied. I will press amendments 164 and 165 to a vote. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Amendment proposed: 164, in schedule 1, page 100, leave out lines 35 to 38.—(Mr Llwyd.)  

Question put, That the amendment be made. 

The Committee divided: Ayes 9, Noes 11. 

Division No. 12 ]  

AYES

NOES

Question accordingly negatived.  

Amendment proposed: 165, in schedule 1, page 100, line 35, leave out ‘physical or mental abuse’ and insert 

‘any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)’.—(Mr Llwyd.)

Question put, That the amendment be made. 

10.30 pm 

The Committee divided: Ayes 9, Noes 11. 

Division No. 13 ]  

AYES

NOES

Question accordingly negatived.  

Amendment proposed: 191, in schedule 1, page 102, line 8, at end insert— 

‘( ) Civil legal services provided in relation to a family dispute where the LSC competent mediator—

(a) is satisfied that mediation is not suitable based on consideration of the individuals, dispute and all the circumstances of the case (including previous instances of domestic violence or abuse and other power imbalances);

(b) certifies that both individuals attended mediation and the mediation failed;

(c) certifies that the other party did not attend the mediation so the mediation failed.’.—(Mr Slaughter.)

Question put, That the amendment be made. 

The Committee divided: Ayes 9, Noes 11. 

Division No. 14 ]  

AYES

NOES

Question accordingly negatived.  

Mr Llwyd:  I beg to move amendment 143, in schedule 1, page 105, line 30, leave out 

‘with the exception of paragraph 15 of that Part,’.

The Chair:  With this we may discuss the following: amendment 91, in schedule 1, page 110, line 4, at end insert— 

‘(c) cases where an individual’s financial difficulties could lead to loss of home.’.

Amendment 150, in schedule 1, page 110, line 5, leave out sub-paragraph (2) and insert— 

‘(2) Civil legal services provided to an individual in debt matters including—

(a) advice in relation to bank loans, credit cards or other regulated credit debts,

(b) advice in relation to rent, mortgage, council tax, utilities and court fines,

(c) representation on an action to recover monies due or owing against the opponent or owing against the opponent; and

(d) advice and representation in relation to bankruptcy or Voluntary Arrangements.’.

Amendment 133, in schedule 1, page 113, line 10, at end insert— 

‘(3A) Civil legal services provided in relation to applications to the Criminal Injuries Compensation Authority.’.

Amendment 134, in schedule 1, page 114, line 33, leave out 

‘with the exception of paragraph 15 of that Part,’.

Amendment 95, in schedule 1, page 115, line 2, at end insert— 

‘38A Civil legal services in relation to—

(a) employment law,

(b) all areas of debt-related disputes not otherwise covered in this schedule, and

(c) all areas of housing law not otherwise covered in this schedule.’.

Amendment 93, in schedule 1, page 115, line 13, at end insert— 

‘Welfare benefit cases

40 Civil legal services provided in relation to any review or appeal concerning a benefit, allowance, payment, credit or pension under—

(a) the Social Security Contributions and Benefits Act 1992,

(b) the Jobseekers Act 1995,

(c) the State Pension Credit Act 2002,

(d) the Tax Credits Act 2002,

(e) the Welfare Reform Act 2007,

(f) the Welfare Reform Act 2011, or

(g) any other enactment relating to social security.’.

Amendment 225, in schedule 1, page 115, line 13, at end add— 

‘(c) civil legal services provided in relation to employment law’.

Amendment 92, in schedule 1, page 116, line 8, leave out paragraph 15. 

Amendment 138, in schedule 1, page 116, line 8, leave out paragraphs 15 and 16. 

Mr Llwyd:  I will briefly refer to the lead amendment, amendment 143, which seeks to ensure that the contents of paragraph 15 on page 116 will be subject to legally aided judicial review. For some reason, I might have misunderstood the matter. Am I right in saying that at the present time, the services listed in paragraph 15 on page 116 are exempted from being legally aided judicially reviewable matters? I might have misunderstood the matter. May I leave the Minister to take advice on that while I will move to the other amendments? 

Mr Djanogly:  Yes. 

Mr Llwyd:  It is a matter that I am trying to clear in my own mind, really. 

Amendment 150 is perhaps more straightforward. It seeks to replace paragraph 27(2) of schedule 1 with 

“(2) Civil legal services provided to an individual in debt matters including—

(a) advice in relation to bank loans, credit cards or other regulated credit debts,

(b) advice in relation to rent, mortgage, council tax, utilities and court fines,

(c) representation on an action to recover monies due or owing against the opponent or owing against the opponent; and

(d) advice and representation in relation to bankruptcy or Voluntary Arrangements.”

Those measures seek to reinstate assistance for welfare and debt matters, many of which we encounter in our surgeries day after day. 

Amendment 133 would insert proposed new sub-paragraph (3A) at the end of paragraph 33 of schedule 1. It states: 

“Civil legal services provided in relation to applications to the Criminal Injuries Compensation Authority.”

Again, I want to see that provision reinstated. Having had some experience from when I was a solicitor, making an application to that authority is not a straightforward matter. It has become a rather judicial forum. The board is normally chaired by an experienced silk, and those appearing before it need to know what they are talking about when it comes to cases, the quantum of

damages and so on. They have become not just a quasi chamber, but a fully legal chamber, and assistance is therefore deserved. Individuals without some expertise in court procedure would not find them palatable or reasonable to try to take on. Much as the chairs of such boards—the nominated silks—do their best to assist, if somebody comes their way hopelessly ill-prepared, it will not be a good experience for anybody and will be a waste of everyone’s time. Indeed, given the situation that they were in, it may undermine that person’s legitimate expectation of proper compensation. 

I kindly ask the Minister to respond to my first inquiry in due course, and to give consideration to my other amendments. 

Yvonne Fovargue:  I want to discuss amendment 91, which would widen the scope of advice on housing when an individual’s financial difficulties could lead to the loss of a home. Dealing with the preventing problem in the short term will simply mean that the client is likely to return if the underlying issue has not been dealt with. I have seen this time and time again in the advice agencies. The test that the Government would apply to determine immediate loss of pay is specifically legalistic. Possession proceedings, court orders, eviction notices and bankruptcy petitions come into play, which make it potentially harder to deal with the context in which homelessness situations arise and court proceedings are issued. 

By far the most effective solutions and outcomes are likely to be achieved by focusing the scarce resources on early interventions to prevent the possession proceedings in the first place and on the triggers and causes that lead to people losing their home. They start long before the parties, whether they are landlords, tenants, homeowners or owner-occupiers, reach the door of the court. By the time a case reaches court, the relationship with the lender is likely to have broken down irretrievably. There are usually many reasons for that, such as misunderstood letters, letters that go behind the clock, other creditors that shout a lot louder—particularly those who knock on the door—changes in tenancy conditions and changes in circumstance and income. All of those have to be solved at an earlier stage, but they need legal advice to identify and separate the issues and find a solution. 

That early resolution also fits well with the wider housing policy context. There is no doubt that last-minute action can prevent the loss of the home, but the legal costs simply inflate the debts owed. Early action could prevent that and keep the debt at a more manageable level. A range of legal options are available to home owners and tenants, provided they are brought into play at the correct time, which I suggest, is not the stage of actual eviction. 

I am also aware of many people coming at an earlier stage, who are at the end of their tether. They cannot cope with the feeling of hopelessness or the letters coming through the door, and they are insistent. They want to hand the keys back to the mortgage lender or the landlord. They feel this is their only option, and they are completely desperate to avoid the stress of any court action, even if it is not imminent. To say to that individual, “I’m sorry, but you need to go back now and wait till you are absolutely on the brink before you can be helped,” is absolutely unthinkable to most advice

agencies. The amendment, which would allow the advice process to start earlier, is small, but it would make a big difference and it would be more cost-effective. 

Amendments 92 and 93 are also in my name, and I would like to speak to them together. The benefits system is notoriously complex—I have stated how many pages of instructions there are for DWP officials—and generates 160,000 appeals, over half of which are decided in the appellant’s favour. It is going through systemic transition under the Welfare Reform Bill, which will add to the morass of the social security statutes and case law. Amendment 92 would reinstate all advice on benefits, and claimants would be able to receive advice to assist with the unprecedented level of changes that the introduction of universal credit will bring to 19 million individuals and 8 million households. 

At the same time, not a single benefit case will qualify for that assistance under the legal help scheme—not even for initial advice, which can assist in identifying whether there is a justiciable issue under social security law and can either steer cases away from a tribunal, or ensure that they are processed correctly. It is, of course, beneficial if cases are right first time, and there should be fewer disputes and errors, but removing the specialist advice before the changes have been proven is a big risk—not for the Government, but for individuals who are in and out of work and depend on such benefits to supplement their income and pay their bills. 

Amendment 93 would limit the advice to reviews and appeals. There is, as I have stated, a high level of decision-making error within the DWP agencies, in applying the law correctly. The resulting issues, which often end up at tribunal, are extremely complex, involving interpretation of difficult statute and case law precedents. It is unrealistic to expect people without specialist knowledge to put together coherent review requests or appeals with no input from an independent specialist adviser, and advice agencies really cannot deliver advice at this level without funding specialist caseworkers. Volunteers do an excellent job, and they are the bedrock of advice services—particularly, the CAB. However, when the Government forms send people to the CAB for specialist advice, expectations are raised that advisers will deal with the most complex issues. Such cases are referred to the specialist adviser by the generalist adviser, performing a triage function. It is the continuity of the advice and the experience of the adviser that gives the excellent advice that is delivered by such services. 

For example, in my bureau in Wigan, a client came in who was at risk of loss of liberty because of a benefit problem. They had been charged with £220,000 of fraud by the Department. It took 18 months and appeals to the highest court for this case to be resolved, and the client was found to owe around £2,600. It was an official error. They needed an experienced adviser, whom they needed to see around twice a month—which I think is how often they saw that adviser. They also needed to see that same adviser, and to be sure of doing that. 

Advice on legal issues at the review stage can also avoid the need for an appeal or tribunal. Advisers can sift the evidence. They know how to look at the facts and they can ensure that the relevant facts, statutes and case law, backed up with the right evidence, are made available to decision makers, saving them time. 

10.45 pm 

Preparing cases for tribunals helps to reduce the time needed for tribunal hearings. Claimants who go without advice quite often do not know what is relevant. An adviser spends a considerable time going through the case with the client, preparing them for the tribunal and often listening to quite an amount of irrelevant information. Sometimes, it is necessary for the client to get that off their chest, but they also need to be told that the tribunal does not need to hear it. Therefore, experienced advisers and welfare benefits advice actually save money. 

The Citizens Advice service has costed how much it would cost to keep reviews and appeals in scope. Work on reviews and appeals accounts for approximately 66% of current welfare benefits casework, so, in monetary terms, there would be an expenditure of approximately £16.5 million. If the amendment applied only to appeals, that would cover 49% of casework, which would be an expenditure of £12.5 million. In context, supporting advice for benefits reviews and appeals is 0.8% of the legal aid budget, and yet that could help 100,000 people, who might find their income at risk and who, on the Government’s own assessments, are among the most vulnerable, ill and disabled people. Some 58% of the people affected by the removal of welfare benefits are in that category. 

Naturally, it would be necessary to reduce the number of appeals—it would be wonderful if that could be done—but a study in Nottingham found that 31% of the demand for advice services is caused by preventable failure, primarily by the DWP and Jobcentre Plus systems and decision making. The potential for cutting the legal aid budget in that way is significant, if simplification is part of the answer, but if just 30% of appeals could be taken from the system, the savings to the legal aid budget would be about £8 million. However, we cannot guarantee that. 

Any new system that is introduced brings its own problems—we saw that with tax credits—and to remove legal aid from all welfare benefits cases is to put on people who are often the most vulnerable, ill and disabled a disproportionate burden of the legal aid savings. 

Kate Green:  I shall speak briefly about amendment 95, which is in my name. It would include in scope for legal aid, 

“Civil legal services in relation to…employment law,…all areas of debt-related disputes not otherwise covered in this schedule, and…all areas of housing law not otherwise covered in this schedule.” 

Many points have already been made about the importance of those categories of law and the need to ensure that people can access top-quality advice in relation to the justiciable matters that they face. We have discussed the boundary and cost-effectiveness issues, and the fact that those are often complex matters that people struggle to deal with on their own. In particular, very good points have been made by my hon. Friends in relation to homelessness and debt, which can frequently overlap. Indeed, many of the categories of law that will remain in scope will give rise to aspects of people’s difficulties with debt or housing that are not covered. 

Now that employment falls out of scope, I am particularly concerned that cases of discrimination in the workplace are unlikely to be picked up, because the lawyers who

are currently able to deal with discrimination matters under their employment contracts will no longer hold such contracts and will not be able to take on such cases. There continues to be a substantial amount of pregnancy discrimination, for example, in the workplace. Research by the then Equal Opportunities Commission highlighted that that remains an ongoing concern. It is important to recognise that by the removal of employment and therefore, indirectly, of discrimination in the workplace from scope, we would potentially be in breach of our international obligations in relation to protection from discrimination. 

I would like such matters to be brought back into scope to ensure that we have the right provision of holistic legal advice. For that reason, I commend the amendment to the Committee. 

Mr Slaughter:  Amendment 225, which stands in my name, also deals with the reversion into scope of employment law, which affects the most basic and the most complex advice in that area. The right hon. Member for Dwyfor Meirionnydd mentioned the complexity to which the tribunal service has run since its inception. At one level—I am looking at the Citizens Advice brief—the issue is about giving people basic but nevertheless legal advice when they go into advice agencies. Citizens Advice notes, perhaps not surprisingly given rising unemployment levels, that discrimination problems relating to employment increased by 7% to 2009-10, and that three quarters of all discrimination advice recorded by bureaux in 2009-10 related to employment. Citizens Advice makes this general comment: 

“Timely advice can reduce stress and mitigate the economic cost and some or all of the personal negative impacts of employment problems and related impacts can be eased by good advice. As a result of bureau advice, clients with employment problems can retain their job, protect their terms and conditions, or, where it is not appropriate for them to return to their job, Citizens Advice Bureaux can help them…financial compensation through tribunals.” 

That seems to be an entirely sensible way to proceed. At the other end, Members will have received the Equality and Human Rights Commission’s response, which makes this point about employment: 

“The Commission has serious misgivings about the proposal to remove employment law from the scope of legal aid. In the year 2009/2010, nearly 32,000 new employment cases were started with Legal Help funding. While there is no legal aid for representation at the Employment Tribunal, this is currently available for cases before the Employment Appeal Tribunal and beyond. Removing legal aid for representation on employment matters in the higher courts will undermine access to justice in relation to a civil right (i.e., rights under a contract between an employer and employee). This is potentially in breach of Article 6(1) ECHR, especially if the client is facing an unusually complex employment law problem or if they would have particular difficulties in representing themselves. As we have already suggested…the MoJ’s forthcoming proposals for exceptional funding should be designed to deal with such situations to avoid the need for legal challenges by individuals who believe they should be granted legal aid on human rights grounds. 

We also have concerns about the chilling effect on access to justice for workplace-based discrimination cases, were employment law to be removed from the scope of legal aid. Research conducted for the Equality and Human Rights Commission demonstrates that there are already significant gaps in the provision of discrimination advice in England, Scotland and Wales.” 

The measures are another stroke of the pen to remove an entire area of social welfare law from scope, and they will have significant effects on employee-employer relations

and the equality of arms between employers and employees. They are likely to lead to more cases of unfair dismissal and of people unjustly losing their jobs, and to more unemployment, with relatively little saving for the Government. The Government always think that they know best in such matters, and take the quick win and the money up front. 

Housing is another subject that my hon. Friend the Member for Stretford and Urmston discussed. I used to do quite a lot of work in that area of practice. Even with further amendments, about 40% of the current provision will still be lost as a result of the changes. The Government say that homelessness cases will be dealt with. I note that we are coming to one or two Government amendments containing what appear to be—the Minister will correct me if I am wrong—concessions relating to parts of unlawful eviction and counter-claims in respect of disrepair. Of course, any concession is welcome, and we will clearly not oppose those, but as always, although not too late, it is certainly too little. I would like the Minister to clarify whether this will deal with the whole of unlawful eviction, including damages claims, which are complicated. They involve exemplary damages, and they are important matters that need to be tackled.

The concessions clearly do not deal with housing benefit issues, which form part of many claims because of the inefficiency of the housing benefit system as it is administered by local authorities. Debt arises as a consequence of delays in claims being paid. There are statutory, non-discretionary grounds for evicting tenants, and without proper advice—often quite assertive advice—before the courts, people can find themselves losing their homes. 

Again, the proposal is very short-sighted of the Government. It is penny pinching, and in the end it will cost a great deal more money. The figure, which I am sure the Minister is sick of hearing now, for the cost-benefit in relation to housing for every £1 of legal aid spent is a saving of £2.34, rising to £2.98 for debt, £8.80 for benefits and £7.13 for employment. 

I will not detain the Committee long, because most of these points have been well rehearsed in debates over the past year, but I want to put it on the record that we oppose the scope changes in social welfare law, including those that this group of amendments addresses. We do so because each of them individually plays a role in giving representation and advice to people who would otherwise go without and would be unfairly treated, and because it is the right thing to do not only socially and morally but often economically. When we look as a package, rather than discretely, at housing, debt and welfare benefits, we see that there are substantial links between them. The same problems often occur to the same individual or the same family, and often one leads into another. Debt leads to non-payment of rent and housing crises, and failure to be awarded welfare benefits when one is entitled to them again leads to debt. The link is there, as is the benefit to the state of dealing with such problems early. 

My hon. Friend the Member for Makerfield has said that from her own experience—as a result of her job for many years, her experience in these matters is probably more extensive than any of ours, notwithstanding our surgeries—the clients whom one sees at advice agencies are in desperate need of help, and I imagine that that is true throughout the country. They need a certain amount

of help, which some people in society would find it easy to deliver themselves; they have got themselves into a situation that they cannot get out of, but with a limited amount of professional help that could be effected. In making the changes, the Government are taking away that lifeline. That is why, even at this late stage, we urge the Minister to think again about the scope change in social welfare law, because of the cumulative ills that will affect not only the recipients, but the public purse as a consequence. 

Mr Djanogly:  The amendments all relate to schedule 1 and the scope of legal aid. Given that they cover a wide range of law, I will deal with each amendment in turn. 

Amendment 91 appears to be aimed at making legally aided advice, assistance and representation available when a person’s financial difficulties, such as debt problems, could lead to the individual losing their home. Amendment 150 is also aimed at making legal aid generally available in relation to debt and personal finance matters, regardless of whether the client’s home is at immediate risk. 

11 pm 

In our consultation on legal aid reform, we proposed that funding should be prioritised for cases where the individual is homeless or at immediate risk of homelessness. We are, therefore, retaining legal aid in relation both to court orders for possession or sale of the home, and to eviction. We generally consider that other debt matters are a lower priority and do not justify public funding for legal aid and representation. We recognise that early advice can be helpful in a range of contexts, but what people often need is general advice—for example on welfare benefits, debt or housing—rather than legal advice. There are many alternative sources of help with debt issues, including Credit Action, the National Debtline, the Consumer Credit Counselling Service and local authorities, which also signpost people to local sources of advice and assistance on debt matters. In addition, the Money Advice Trust has recently launched “My Money Steps”, an online tool that advises people with debt problems, and the Consumer Credit Counselling Service offers “Debt Remedy”, a free online service.

The hon. Member for Makerfield went a step further. She said, “Isn’t it too late to provide legal aid only for possession and eviction? By that point things have progressed too far for legal aid to help someone save their home. It is about early intervention.” Indeed, it is about early intervention, but we do not accept that providing legal aid for possession or eviction is too far down the line to make a real difference. The effectiveness of legal advice provided in court when possession proceedings are already under way has been recognised by CAB, Shelter and Advice UK. In any event, legal aid will be available earlier than that. It will be available when repossession is contemplated—when a person is threatened with repossession action unless they immediately pay their outstanding debts, for example. 

Yvonne Fovargue:  I think I said that late intervention can prevent people from losing their home, but it takes away some of the options that are available earlier and could help, such as some of the Government’s mortgage support schemes, which apply only at an earlier stage. 

Mr Djanogly:  I am pleased that we all agree that both early-stage and later-stage interventions have a part to play. 

We also recognise the arguments that the withdrawal of legal aid for any issue may lead, through a chain of events, to serious consequences. We considered those points carefully when formulating our final proposals. Our view, however, is that the limited public funds for legal advice and representation should be focused on those cases in which the client faces serious direct consequences. We do not propose, therefore, to devote limited public funds to less important cases on the basis that they could indirectly lead to more serious consequences for that person. As I have already said, general non-legal advice on debt is available from a variety of sources to people who are not at immediate risk of losing their home. 

It is also important to recognise that the Bill does not require legal proceedings to have been issued before legal aid can be made available. Legal aid will be available when repossession or eviction is contemplated. 

Yvonne Fovargue:  The Minister states that general advice on debt is available from a range of sources. That is under threat, however, due to the withdrawal of FIF—financial inclusion funding—which is due to end in March. Face-to-face advice is seriously under threat. Online advice and telephone advice is not suitable for all clients, particularly those who cannot even bring themselves to open an envelope. 

Mr Djanogly:  As I have said, there is a whole series of debt funding. I did not mention a large part of the voluntary sector. In my constituency, many church organisations offer debt advice. One of the problems in this country is the patchwork of general advice that was left, rather than being put together in a concerted fashion, by the previous Government. We are looking to address that centrally, not least through the work of the Cabinet Office. 

In answer to the hon. Member for Hammersmith, our amendments address unlawful eviction damages. The Government have tabled amendments 170 and 171, which we will consider shortly. They will ensure that legal aid continues to be available to lawful occupiers seeking damages claims related to unlawful eviction, even where the occupier is not seeking to be reinstated in the property. Although the obtaining of damages is not our priority, the availability of a damages remedy, including a remedy for aggravated or exemplary damages, will deter landlords from engaging in unlawful evictions. 

Mr Slaughter  rose—  

Mr Djanogly:  I think that debate should wait until I move my amendment, at which point the hon. Gentleman may address it in more detail. 

It should also be noted that we will retain funding for the housing possession court duty scheme, which offers free legal advice and representation to anyone in danger of eviction or having property repossessed, on the day of the hearing, regardless of means. Research shows that 77% of clients who receive such last-minute advice avoid the immediate loss of their home. 

Amendments 95 and 225 seek to make legally aided advice, assistance and representation available for all employment matters. Employment tribunals are designed

to be simple, to enable parties to make or respond to a claim without the need for representation. While we recognise that clients find advice in the preparation of their case useful, we do not consider that that group of clients are generally likely to be particularly vulnerable, and we do not accept that the tribunal cannot be accessed or that justice cannot be obtained without legally aided advice. Given the need to prioritise resources, we consider that employment matters are of a lower objective importance than cases involving life, liberty or homelessness. 

The hon. Member for Stretford and Urmston asked a couple of questions. She asked what help there would be for those claiming unlawful discrimination in an employment matter. We are retaining legal aid for unlawful discrimination cases. Legally aided advice will continue to be available for employment tribunal discrimination claims, and legally aided advice and representation will be available at the employment appeal tribunal. We recognise the importance of the issues at stake and claims relating to a contravention of the Equality Act 2010, addressing societal prejudice and ensuring equality of opportunity. In our view, other employment cases are generally about monetary damages or earning potential. We do not consider such cases to be of such high priority as to justify funding, and there are often other ways of funding them, such as damaged-based agreements. 

In addition, advice is available from the ACAS free helpline, and is usually available from trade unions. ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. In some cases, an employer may be willing to engage in civil mediation, which is sometimes paid for by the employer. There is also help available from the pay and work rights helpline and the redundancy helpline, and the tribunal’s public inquiry line can provide factual information, though not legal advice. Voluntary organisations or charities may also offer assistance. 

Amendments 92 and 133 seek to amend parts 1 and 2 of the schedule to make available civil legal services for welfare benefits matters and Criminal Injuries Compensation Authority claims. Amendments 93 and 138 would then delete the exclusions for welfare benefits matters and CICA claims in part 2 of the schedule. Amendments 134 and 143 would make consequential changes as a result of the welfare benefits amendments by removing the provisions that lift the exclusions for welfare benefits that appear in the provisions regarding equality or judicial review claims. 

The right hon. Member for Dwyfor Meirionnydd asked about welfare benefits and judicial review, relating to paragraph 15 in part 2 of the schedule. That paragraph generally excludes legal services in relation to welfare benefits from scope. In general, legal aid will not be available in respect of welfare benefits. However, judicial review proceedings in relation to welfare benefits will remain in scope by virtue of the provisions in paragraph 17 in part 1 of the schedule. That is because the welfare benefits exclusion is disapplied by paragraph 17(2)(a). Legal aid is currently available for legal advice in relation to decisions on welfare benefits. Legally aided representation is not available for tribunal hearings. 

The Government’s reforms to scope are designed to refocus legal aid on those who need it most and for the most serious cases in which legal advice and representation are justified. Given that, and the need to prioritise

funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme. While we recognise that many people rely on benefits, such cases are primarily about financial entitlement, and we generally consider that the importance of such cases is lower than that of those concerning the liberty or safety of the person. 

For those who need assistance on a welfare benefits matter, there is factual advice available from, for example, Jobcentre Plus, the benefits inquiry line and the tribunal itself. I should also make it clear that, although legal aid will be removed for welfare benefits cases, it will be retained for judicial reviews of welfare benefits decisions, and for claims relating to a contravention of the Equality Act 2010 that concern welfare benefits. 

While we recognise that the people making applications to the Criminal Injuries Compensation Authority might be vulnerable having often been through a traumatic event, we consider that, generally, the application forms are straightforward to complete and the authority itself provides help and guidance for applicants to help them through their claim. We have prioritised funding and we consider that these cases are primarily financial claims, which are of a lower priority for public funding. For the reasons that I have given, I ask members of the Committee not to press the amendments.

Mr Llwyd:  I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Mr Slaughter:  We wish to press some amendments to a Division. 

Yvonne Fovargue:  I heard the Minister’s response. He accepted that early intervention is better than going against all the advice of the experts. I certainly do not wish to withdraw amendment 91. Sending people to Jobcentre Plus—the agency that my clients believe has taken away their benefits—for help with an appeal is slightly perverse. I also wish to press amendments 92 and 93 to a Division. 

Kate Green:  With regret, I wish press amendment 95 to a Division. The Minister appears to live in a universe where there is all manner of alternative provision. We all know that that simply is not the case. Funding cuts are already putting advice services under pressure. As my hon. Friend the Member for Makerfield pointed out in relation to debt, for example, the uncertainty about future funding means that it might become worse. 

Mr Llwyd:  I beg to move amendment 144, in schedule 1, page 105, line 44, leave out subparagraphs (5), (6) and (7). 

The amendment is straightforward. It disapplies the exemptions from judicial review of these types of immigration cases. The wording and effect of the amendment are self-evident. 

Mr Djanogly:  The amendment seeks to maintain, within civil funding scope, particular immigration judicial review cases that are very likely to be without merit. Such cases will either have already had a hearing on the same or substantially the same issue within a period of one year, or will be judicial reviews of removal directions

where there is less than one year between the giving of the direction and the determination of the decision to remove. 

In response to our legal aid consultation, the Judges Council highlighted the large number of immigration judicial reviews that were without merit and which, in effect, simply clog up the system. Only a minority of such cases would receive legal aid. The Government’s view, as expressed in this part of schedule 1, is that it is wrong in principle for such cases to remain within the scope of funding. 

The first category of case that we seek to exclude is one in which there has already been at least one appeal before the tribunal, or another judicial review within the last year, on the same or substantially the same issue. Judges in immigration judicial reviews too often see attempts to litigate on the same points again and again, essentially to string out the removals process. We do not think that taxpayer funding should be available in such instances. 

The second category relates to judicial reviews of removal directions rather than the underlying decision. Such proceedings are often brought at the last minute, sometimes literally as people are being put onto a plane. Again, they are essentially designed to frustrate the removals process. Similarly, we do not think that the UK taxpayer should be asked to foot the bill for such claims. 

There will, of course, be some genuine although unusual cases in those categories that would still, in principle, warrant legal aid. That is why we have made exceptions to our proposed exclusions. These principally take into account the potential for changes in an individual’s circumstances over time. In both categories the exclusion is subject to a one-year time limit. Judicial reviews of a refusal by the Secretary of State to treat a claim for asylum as a fresh claim—one with new facts or circumstances—will also be retained by making sure that when there is a possibility that there has not already been an opportunity for appeal, legal aid for judicial review will still be available, subject to the normal means and merits test. 

11.15 pm 

I emphasise that we are retaining legal aid for most judicial reviews, immigration or otherwise. We accept that an individual’s ability to hold the state to account is an important one, but where it has been abused, combined with the need to target resources effectively, we think removing legal aid from those discrete categories of cases is justified, especially with the safeguards I have set out. I hope that the right hon. Gentleman will be reassured on that point and will withdraw his amendment. 

Mr Llwyd:  I am not hugely reassured, but I will not press the amendment to a vote. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Amendment made: 20, in schedule 1, page 106, line 36, leave out ‘body’ and insert ‘person’.—(Mr Djanogly.)  

Amendment proposed: 91, in schedule 1, page 110, line 4, at end insert— 

‘(c) cases where an individual’s financial difficulties could lead to loss of home.’.—( Yvonne Fovargue.)

The Committee divided: Ayes 9, Noes 10. 

Division No. 15 ]  

AYES

NOES

Question accordingly negatived.  

Mr Djanogly:  I beg to move amendment 170, in schedule 1, page 110, line 16, leave out ‘exception in sub-paragraph (5)’ and insert 

‘exceptions in sub-paragraphs (5) and (5A)’.

The Chair:  With this it will be convenient to discuss the following: 

Government amendments 171 and 172. 

Mr Djanogly:  The Government amendments relate to housing matters at paragraphs 27 and 29 of part 1 of schedule 1. They do not represent a change in policy. They are aimed at giving better effect to our stated policy intentions. In our consultation paper and our response to that consultation, we announced our intention to prioritise funding on housing cases where the individual is at immediate risk of homelessness, or where there are disrepairs to the home that seriously threaten the health of the individual or their family. As both amendments 170 and 171 relate to the loss of the client’s home through possession or unlawful eviction I will deal with them together. 

In our consultation paper we proposed to retain legal aid funding for housing disrepair damages claims that are brought as counter-claims in rent arrears possession cases. The rationale for this is that these counter-claims can help an individual who is at immediate risk of homelessness to remain in their home. Legal services provided in relation to such counter-claims fall within paragraph 27(1) of part 1 of schedule 1. In the circumstances, such counter-claims form part of the legal services being provided for the client in relation to the possession proceedings. However, counter-claims for housing disrepair naturally concern damage to property. Paragraph 27 of part 1 of schedule 1, which covers loss of home cases, is subject to certain exclusions set out in part 2 of schedule 1, including an exclusion for damage to property. It has come to our attention that in order to give effect to our stated intention to fund these counter-claims to possession proceedings we will need to lift that exclusion for the purpose of such counter-claims. 

In addition, it has become apparent that counter-claims in possession proceedings are often brought on grounds other than housing disrepair, such as harassment related counter-claims brought under the torts of trespass to the person, land or goods. Legal services in relation to those torts are currently excluded by part 2 of schedule 1.

Amendments 170 and 171 therefore lift those exclusions to counter-claims brought in proceedings for possession orders. That is important because such counter-claims also have the potential to keep the client from becoming homeless and therefore they should remain in scope. 

It is the Government’s policy that legal aid should continue to be available for unlawful eviction cases. Tenants usually bring unlawful eviction claims based on breach of the covenant for quiet enjoyment that is part of every tenancy agreement. However, this course of action is not available to other lawful occupiers who do not have a tenancy agreement. These lawful occupiers may rely on various heads of claim, including trespass to the person and/or goods and breach of the statutory duty. Those particular heads of claim are currently excluded by part 2 of schedule 1. Amendments 170 and 171 will therefore lift those exclusions in relation to unlawful eviction and will ensure that funding for these cases is available to lawful occupiers and not just to tenants. 

I turn to amendment 172. Freestanding housing disrepair actions are dealt with under paragraph 29 of part 1 of schedule 1. That paragraph is subject to certain exclusions, including the tort of breach of statutory duty. However, it has come to the Government’s attention that one common course of action in use for housing disrepair claims is a breach of section 4 of the Defective Premises Act 1972, which constitutes a breach of statutory duty. We therefore wish to lift the breach of statutory duty exclusion in relation to housing disrepair actions by means of amendment 172. 

Mr Slaughter:  I shall respond to the Minister before my hon. Friend the Member for Stretford and Urmston moves her amendment. It would be churlish not to say that we welcome any concessions, because they are so few and far between. That sounds rather churlish, but we will put it down to the hour. 

The provision is symptomatic of poor drafting and schoolboy errors in relation to the Defective Premises Act and is trying to eke out as slowly and carefully as possible every single concession that the Government are willing to give. Why do the Government not just sit around the table with Shelter and other interested parties who have been dealing with these matters for many years, if not decades, and come to a conclusion about what is reasonable in terms of disrepair, unlawful eviction and, indeed, in terms of claim, counter-claim or however the matter may arise? 

I am still not clear from what the Minister said whether all parts of damages only claims for unlawful eviction, which in my experience are more common than reinstatement and injunction claims, are covered. That is essential because we are talking about vulnerable people who have often been evicted from their homes but for whom there is no point in applying for re-entry to their property because they do not want to go back to a landlord who has been harassing them. There may well be a new tenant in the property and they may well find that they can be taken by the local authority at that point, if they are lucky. However, they may still have lost possessions and suffered personal injury or certainly great distress. I would like the Minister to clarify whether all aspects of unlawful eviction will now be covered. 

As regards disrepair, I take the point about the intention where there is serious risk of harm to health and safety. That is not always the case with disrepair, but it can still

be very serious disrepair in terms of causing personal injury or a great deal of distress. It can be infestation, it can be severe damp, or it can amount to a form of harassment. It can, effectively, amount to a form of homelessness, because a property is often in such a condition that it is impossible, for reasons of damp or cold or other matters, to continue to live there. It would therefore have been far more sensible and saved us the palaver of an amendment at this stage if the Government had simply taken a more expansive view. It would not have changed the cost to a great extent. 

Housing, according to Shelter, is one of the top three priorities of three quarters of MPs. I suspect that it is the top priority for all London MPs. It is about half my work load as a constituency MP, because of the severity of the housing problem, including the standard and quality of private sector property and the severe housing need. It is therefore an area that the Government should have taken more care over. 

Yes, we welcome these amendments and yes, I would like clarification from the Minister on how far he is prepared to go in the area of disrepair and unlawful eviction, but despite the risk of this falling on deaf ears, I urge the Government to look again at the provisions so we have a proper package of housing legal aid, rather than the tawdry effort that we have been left with. 

Mr Djanogly:  I acknowledge the hon. Gentleman’s support for our amendments, even if it was in the most grudging terms. He said that we should have listened to professionals and practitioners in the area. I can tell him that that is exactly what we did. We have our policy objectives. We are following those policy objectives. It was brought to our attention by certain experts in the field that the drafting needed tweaking slightly. That is exactly what we are doing with these amendments. I can confirm to him, on his question about whether legal aid will be available for unlawful eviction damages, that it will be available, even where reinstatement is not sought. 

Amendment 170 agreed to.  

Amendments made: 171, in schedule 1, page 110, line 20, at end insert— 

‘(5A) The services described in sub-paragraph (1) include services described in any of paragraphs 3 to 6 or 8 of Part 2 of this Schedule to the extent that they are—

(a) services provided to an individual in relation to a counterclaim in proceedings for a court order for sale or possession of the individual’s home, or

(b) services provided to an individual in relation to the unlawful eviction from the individual’s home of the individual or others.’.

172, in schedule 1, page 111, line 31, leave out ‘paragraph 6’ and insert ‘paragraphs 6 and 8’.—(Mr Djanogly.)  

Kate Green:  I beg to move amendment 94, in schedule 1, page 114, line 30, after ‘2010’, insert 

‘or any European directive in force relating to equality or discrimination.’.

The amendment would expand paragraph 37 of schedule 1, which already includes civil legal services provided in relation to contravention of the Equality Act 2010, to cover any European directive in force relating to equality or discrimination. Members of the Committee will be familiar with the main provisions of the Act, which was enacted on 1 October 2010. It provides for equal treatment without direct or indirect

discrimination in employment, housing, education and the provision of public services. It also clarifies and extends concepts of discrimination, harassment and victimisation and applies them across nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. It broadens the circumstances in which positive action may be taken voluntarily, replacing earlier legislation, and it implements the EU equality directives. 

11.30 pm 

The main directives affecting domestic legislation are council directives 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 2000/78/EC establishing a general framework for equal treatment in employment and occupation and 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services, and European Parliament and Council directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment between men and women in matters of employment and occupation, which has been recast. Also relevant in this context is article 157 of the treaty on the functioning of the European Union. 

Hon. Members will be aware that European directives are directly enforceable in the UK on emanations of the UK state, which the case of Foster v. British Gas established. The term can be used by an individual employed by anybody made responsible by the state for providing a public service under the control of the state and who has special powers for that purpose. 

The European directives in force in relation to discrimination and other areas of employment law are directly enforceable against the state or bodies emanating from the state, but it is also sensible to take action under the Equality Act. A person might choose to use the directive where there are discrepancies between the directive and its implementation in UK law. There could also be cases outside the scope of the 2010 Act, which European principles of equality could cover. The key equalities directives are: 75/117/EEC, the equal pay directive; 76/207/EEC, the equal treatment directive; 94/33/EC, the young persons work directive; 97/80/EC, the burden of proof directive; 2000/43/EC, the race directive; 2000/78/EC, the framework employment directive; 2002/73/EC, the equal treatment amendment directive; 2004/113/EC, the equal treatment amendment directive; and 2006/54/EC, the recast equal treatment directive. 

The proposals on legal aid relate to discrimination cases arising solely under the 2010 Act, which means that legal aid might not be available in all situations, and future EU directives might not be covered. The purpose of the amendment is to ensure that equalities issues in all circumstances will continue to be funded. As the Minister knows, failure to do so would itself be a breach of European law, which is why we are keen to propose the amendment. 

Article 47 of the charter of fundamental rights of the EU enshrines the right to an effective remedy and a fair trial specifically in relation to EU law, as implemented by member states. The text of the article includes: 

“Everyone shall have the possibility of being advised, defended and represented. 

Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.” 

Any limitations on access to justice for people seeking recourse in equality or anti-discrimination cases based on EU law could fall foul of the article. 

The purpose of the amendment is to ensure that we have comprehensive access to funding for legal advice in relation to the legislative framework that governs equalities in this country, be it the 2010 Act or the wider EU legislative framework, which also has effect. I urge the Minister to take on board the amendment and I look forward to his comments. 

Mr Djanogly:  The amendment would extend paragraph 37 of part 1 of schedule 1, so as to include explicitly within scope of legal aid contraventions of any European directive regarding equality or discrimination. The amendment is unnecessary: the Bill continues to retain in scope all equality cases in all areas of law, which are currently within the scope of legal aid. The Equality Act 2010, which paragraph 37 explicitly covers, already takes full account of our obligations under European Union law in the field of equality and discrimination, and legal aid will continue to remain available for such cases. The amendment, therefore, adds nothing to what we already have in the Bill. 

Moreover, if a dispute arises about whether the Equality Act fully implements European Union directives about equality legal aid, legal aid will be available, because the proceedings themselves will be under the Equality Act. I hope that in the light of my response, the hon. Lady will withdraw her amendment. 

Kate Green:  I am grateful to the Minister. While I appreciate the explanation he has offered, it is my understanding that there is a risk of a discrepancy, which would mean that access through the Equality Act could not be guaranteed in all cases, not least because we do not know what future European Union directives might come forward, which would be seen to be beyond the scope of the Equality Act. It is therefore my intention, Mr Sheridan, to press the amendment to a vote. 

Question put, That the amendment be made:— 

The Committee divided: Ayes 9, Noes 10. 

Division No. 16 ]  

AYES

NOES

Question accordingly negatived.  

Amendment proposed: 95, in schedule 1, page 115, line 2, at end insert— 

‘38A Civil legal services in relation to—

(a) employment law,

(b) all areas of debt-related disputes not otherwise covered in this schedule, and

(c) all areas of housing law not otherwise covered in this schedule.’.—(Kate Green.)

The Committee divided: Ayes 9, Noes 10. 

Division No. 17 ]  

AYES

NOES

Question accordingly negatived.  

Amendment proposed: 93, in schedule 1, page 115, line 13, at end insert— 

‘Welfare benefit cases

40 Civil legal services provided in relation to any review or appeal concerning a benefit, allowance, payment, credit or pension under—

(a) the Social Security Contributions and Benefits Act 1992,

(b) the Jobseekers Act 1995,

(c) the State Pension Credit Act 2002,

(d) the Tax Credits Act 2002,

(e) the Welfare Reform Act 2007,

(f) the Welfare Reform Act 2011, or

(g) any other enactment relating to social security.’.—(Yvonne Fovargue.)

The Committee divided: Ayes 9, Noes 10. 

Division No. 18 ]  

AYES

NOES

Question accordingly negatived.  

Amendment proposed: 169, in schedule 1, page 115, line 13, at end add— 

‘40 (1) The personal injury or death occurred as a result of alleged negligence during the course of medical treatment (whether provided by the National Health Service or through a private arrangement between an individual and healthcare provider).

(2) The personal injury or death occurred while the individual was in the care of the state or an emanation of the state, whether forcibly or voluntarily (see below).

(3) The injury or death was caused negligently by a servant or agent of the healthcare provider or other emanation of the state.

(4) The individual claims for assault, battery or false imprisonment against a healthcare provider or emanation of the state.

(5) In this paragraph “National Health Service” shall include all state funded healthcare provision, NHS hospital trusts, NHS foundation trusts, mental health trusts, independent treatment centres, general practitioners, primary care trusts, strategic health authorities and all their successors in title.

(6) In this paragraph “Health Care Provider” shall include private hospitals and clinics and individual healthcare professionals, including doctors, nurses and midwives where a patient has contracted on a private basis.

(7) In this paragraph “The State or emanation of the State” shall include the Police, Prison Service or Social Services.

(8) In this paragraph “alleged negligence” is a concept as per the common law including case law definition of negligence as pertaining at the time of the alleged negligence or proposed claim.’.—(Mr Slaughter.)

Question put, That the amendment be made. 

The Committee divided: Ayes 9, Noes 10. 

Division No. 19 ]  

AYES

NOES

Question accordingly negatived.  

Amendment proposed: 225, in schedule 1, page 115, line 13, at end add— 

‘(c) civil legal services provided in relation to employment law’.—(Mr Slaughter.)

Question put , That the amendment be made. 

The Committee divided: Ayes 9, Noes 10. 

Division No. 20 ]  

AYES

NOES

Question accordingly negatived.  

Amendment proposed: 92, in schedule 1, page 116, line 8, leave out paragraph 15.—(Yvonne Fovargue.)  

Question put, That the amendment be made. 

The Committee divided: Ayes 9, Noes 10. 

Division No. 21 ]  

AYES

NOES

Question accordingly negatived.  

Mr Llwyd:  I beg to move amendment 139, in schedule 1, page 117, line 18, leave out paragraph 9 and insert— 

‘9 Advocacy for an individual in proceedings against a public authority before—

(a) the General Regulatory Chamber of the First-tier Tribunal where proceedings concern a decision of a public authority under—

(i) the Freedom of Information Act 2000, or

(ii) the Data Protection Act 1998.

(b) the Health, Education and Social Care Chamber of the First-tier Tribunal (Care Standards),

(c) the Health, Education and Social Care Chamber of the First-tier Tribunal (Mental Health),

(d) the Health, Education and Social Care Chamber of the First-tier Tribunal (Special Educational Needs and Disability),

(e) the Immigration and Asylum Chamber of the First-tier Tribunal,

(f) the Social Entitlement Chamber of the First-tier Tribunal.’.

The Chair:  With this it will be convenient to discuss the following: amendment 140, in schedule 1, page 117, line 23, leave out paragraphs 11 to 13. 

Amendment 141, in schedule 1, page 118, line 2, leave out ‘13’ and insert ‘10’. 

Mr Llwyd:  In speaking to the lead amendment, which stands in my name, I shall try to be brief, given the hour that we have reached. This is an important amendment. It would provide for advocacy services to be provided for individuals in any proceedings against a public authority and it lists five or six categories. The first is the general regulatory chamber of the first-tier tribunal, to deal with freedom of information under the Freedom of Information Act 2000 and data protection under the Data Protection Act 1998. The others are the health, education and social care chamber of the first-tier tribunal regarding care standards; the health, education and social care chamber of the first-tier tribunal regarding mental health; the health, education and social care chamber of the first-tier tribunal regarding special educational needs and disability; the immigration and asylum chamber of the first-tier tribunal; and the social entitlement chamber of the first-tier tribunal. The other two amendments are consequential amendments. 

11.45pm 

The main amendment would ensure that individuals challenging the decisions of local authorities in all the contexts will be able to do so effectively and efficiently. It would make provision for legal challenges to be brought by, among others, those detained on mental health grounds; those excluded from certain professions or activities under the vetting and barring scheme; parents appealing against decisions affecting the education of their children; and those affected by immigration and welfare benefits decisions, including asylum support. While representation would be provided for some of those individuals under the Bill, the amendment reflects the importance of proper legal representation in formal legal proceedings for all individuals facing a public body in court or a tribunal in the areas of law identified. The amendment is designed to address the practical difficulties faced by litigants in person, particularly when they are facing a public authority with the disparity of resources that that entails—equality of arms once more. 

As the Government acknowledge in their literature review, the weight of the evidence demonstrates that litigants in person face a wide range of problems, including understanding evidential requirements, difficulties with forms, problems identifying which facts are relevant to their case and even understanding the nature of proceedings. The evidence also supports the contention that litigants in person are frequently overwhelmed by the procedure and oral demands of the court room and have difficulty explaining the details of their cases. The Government’s literature review also acknowledges the views of court staff, the judiciary and other parties and representatives, who have reported that they are forced to compensate for the difficulties experienced by litigants in person, producing extra work and presenting them with ethical challenges. 

The Government’s answer, apparently, to such conspicuous difficulties is to point to the availability of assistance such as guides to court procedure, assistance from court staff and online help, which I do not think are adequate at all. I am obliged to Liberty, which assisted me in the preparation of the amendments. Put succinctly, those are the amendments proposed, and I would be interested to hear what the Minister has to say in response. 

Mr Djanogly:  The amendments are contrary to the basis of our whole programme of reform and would increase the cost of legal aid dramatically at a time when we are seeking to focus it on the highest priority cases. As members of the Committee will be aware, we have had to make some difficult choices about legal aid, and we set out our rationale for changes to the scope of the scheme in the consultation paper published last November. 

Amendment 139 seeks to bring into scope advocacy for appeals in the first-tier tribunal against public authorities for a wide range of matters. It seeks to extend legal aid for advocacy to areas where it is not currently provided, such as for first-tier tribunal appeals concerning welfare benefits, special educational needs, asylum support and information rights. In practice, the amendment would provide advocacy only for matters falling within the scope of part 1 of schedule 1, but its intention is clearly wider than that. 

We maintain the view that legal representation will generally not be necessary in these cases, given the user-friendly and accessible nature of the tribunal. Furthermore, while legal aid is no doubt useful in appeals concerning areas such as information rights, we consider that such cases are not of high importance when compared, for example, with issues of safety or homelessness. By way of example, the amendment would make advocacy available for an individual in proceedings against a public authority in various immigration cases. While we appreciate the importance of such matters to the individuals concerned, immigration tribunals are designed to be user-friendly, and interpreters are provided free of charge. 

Amendments 140 and 141 make consequential changes as a result of the amendments that I have already discussed. Those amendments not only seek to retain existing provision, but also seek to extend legal aid for advocacy to hundreds of thousands of new cases. Legal aid for advocacy has never been available for appeals in

the first-tier tribunal on welfare benefits, asylum support, information rights, Criminal Injuries Compensation Authority or special educational needs cases. In 2009-10, there were 339,000 social security and child support appeals to the first-tier tribunal. Extending legal aid for advocacy for these appeals alone could cost up to £500 million a year. I therefore urge the right hon. Gentleman to withdraw his amendments. 

Mr Llwyd:  I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Amendment made: 21, in schedule 1, page 119, line 15, leave out ‘body’ and insert ‘person’.—(Mr Djanogly.)  

Schedule 1, as amended, agreed to.  

Ordered, That further consideration be now adjourned. —(Jeremy Wright.)  

11.52 pm 

Adjourned till Thursday 8 September at Nine o’clock.