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On legal aid spending—I know that noble Lords will quote back at me that you cannot take all the figures for international comparisons at face value—we have the most generous system in the world. I am proud of that. We have to make sure that we spend the money wisely. There has been a huge increase in legal aid spending over the past 10 years—it now stands at £2 billion—and we have to be careful that we spend it wisely. That is why I am persuaded that we have it about right and the access to justice test means that the right decisions are made.

The Earl of Onslow: The Minister said the total legal aid budget is £2 billion. I am sure that is right. How much did the 95,000 cases cost and how much would 1.5 per cent of them cost?

Lord Hunt of Kings Heath: The noble Earl asks how much the 95,000 applications cost. I do not have the full figures with me—I shall try to find them—but the average cost per case of legally aided defence in the magistrates’ courts is £499. An estimated cost of agreeing to the noble Earl’s amendment would be about £800,000. He may say that £800,000 is not a lot of money, but it is. We have to make sure when taking decisions on legal aid that we have as cost-effective an approach as possible. For those reasons I am going to resist the amendment.

Lord Mayhew of Twysden: The Minister has not addressed one facet of the amendment. He has told us of the issues that have to be determined by the court in deciding whether there shall be legal aid and that 1.5 per cent out of the 96,000 cases, or whatever it was, failed the test. But when you take into account the time it takes the court to try to determine each of the issues—on some of which it must be quite difficult to come to a conclusion—taking the net figure, is it really not worth £800,000 to avoid those costs?

Lord Elystan-Morgan: Will the Minister give careful consideration to the narrow point that I made about contracting out/contracting in? I do not suggest that there should be a blanket granting of legal aid in every case but, rather than the defendant having to prove that it would not be in the interests of justice for it to be refused, it should be the other way round and legal aid should be granted save in those cases where it would not be in the interests of justice to grant it. That is not being profligate with public money and it would add to the totality of justice in this situation.



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Lord Hunt of Kings Heath: The current system seems to work rather well and I would be reluctant to change it. I accept that in any consideration of resources one has to look at all the contributing factors and the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord have made important points which one has to reflect upon. Equally, these are cash-limited budgets. There has been a huge increase in the legal aid budget over the past decade and we have to be careful to ensure that we spend it as wisely as possible.

The Earl of Listowel: Will the Minister write to me on the point of what information is provided to child defendants in courts now? I would be very grateful.

Lord Hunt of Kings Heath: I apologise to the noble Earl for not responding to him. My understanding is that where a young person is arrested, cautioned and taken to the police station to be interviewed, the following process takes place: she will be informed of her right of access to free and independent legal advice and offered the services of the duty solicitor or her own solicitor. Those are the two main procedures. The noble Earl asked about information packs. I do not know the answer to that but I shall find out and let him know.

Lord Thomas of Gresford: The Minister has not really answered the point made by the noble and learned Lord, Lord Mayhew, about cost savings. If there are 95,000 cases to be considered, what is the administrative cost? What is the cost in court time? It is not that you are considering only the 1.5 per cent of cases that are refused; you have to consider the whole 95,000 cases. The Minister will know that there was a time when the legal aid authorities decided that everyone should have legal aid regardless of their means and so on because the cost of administering the scheme as it then was far exceeded the savings on the very small number of people who did not qualify. We are in exactly the same position.

These youth rehabilitation orders will be imposed in a criminal court—it is not a family court, it is not a social agency—and the role of the lawyer comes in at the very beginning. We do not have plea bargaining in this country but we certainly have bargaining about charges—to what charges will the defendant plead guilty; what charges will the prosecution drop? An enormous saving in time and administration is made by bargaining of that kind. Then if there are pleas of guilty properly advised by a lawyer, the lawyer is then concerned with marshalling all those matters which are necessary for the court to come to a proper conclusion as to which restrictions and requirements would be necessary, in this case in the youth rehabilitation order that is being considered.

Lawyers are mechanics who help the whole system to work much more smoothly and much better than it otherwise would do. If you put into court unrepresented defendants it is bound, as the noble and learned Baroness, Lady Butler-Sloss, has pointed out, to slow the whole system down. The savings of £800,000 pounds are really—

The Earl of Onslow: Pathetic.



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Lord Thomas of Gresford: The word “petty” is being used to my left.

The Earl of Onslow: Pathetic.

Lord Thomas of Gresford: All right, “pathetic”. I will say that then. The savings are tiny compared with the time, the energy and the bureaucracy involved in the noble Lord’s schemes.

7.30 pm

Lord Hunt of Kings Heath: I hear what the noble Lord says. I thought I had answered the noble and learned Lord, Lord Mayhew. It is sometimes difficult to aggregate figures, although we have the figures for legal aid, which I quoted. I am sorry, but £800,000 is still a considerable amount of money. My understanding is that, in the cases we are talking about, the test is refused if the offence is very minor, there is no likelihood of a custodial sentence, the youth is at the top of the age range and he or she understands court proceedings. I have said that the Legal Services Commission is going to undertake some research on consistency of approach. I am not aware that this is proving to be a huge administrative task, and in any case the LSC’s research may well pick up issues that we need to improve. Today, however, I am afraid I am going to disappoint your Lordships.

The Earl of Onslow: I am almost speechless—and, as your Lordships know, I have been known to chatter a bit. We are talking about £800,000. What did the Government spend on the Dome? Around £800 million, because the noble and learned Lord, Lord Falconer, encouraged them to. Yet they cannot find £800,000 to represent the most poor and vulnerable in court. I am convinced that it costs the courts more than £800,000 not to have them represented. Perhaps the Minister owes me dinner on the extra money that is being spent by the courts in saving £800,000. That is pathetic, and I have every intention of coming back to the issue on Report. I sincerely hope that on that occasion I will get even more support than I have had today. Through gritted teeth, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 to 17 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 18:

On Question, amendment agreed to.

Lord Bach: I beg to move that the House be resumed. In doing so, I suggest that the Committee should not begin again until 8.33 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.



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Government Archives

7.32 pm

Lord Rodgers of Quarry Bank asked Her Majesty’s Government what is their latest assessment of the arrangements for preserving Government archives and preparing official histories.

The noble Lord said: My Lords, I am raising two separate but related matters: how government papers, including ministerial papers, are kept after leaving their working departmental offices and the record of major events described in Crown copyright official histories. The responsibility lies with the Cabinet Office and then, I suppose, with the Prime Minister, which is appropriate, as Gordon Brown identifies himself as a historian.

In passing, I pay tribute to Tessa Stirling, the head of the Histories, Openness and Records Unit at the Cabinet Office, who was awarded a CBE in the New Year Honours. She has been well known to many professional historians for her long, devoted service, and she was very patient when I, not being a professional historian, asked some pressing questions.

This is an opportunity for me to welcome the new history and policy project launched in December. Inspired by Cambridge University and others, endorsed by the All-Party History Group and blessed by Prospect magazine, it is designed to improve public policy through the better understanding of history. I hope that it will be successful.

My first concern this evening is about government papers—lesser papers than Cabinet papers—which are stored until they are disposed of. My interest arose when I was seeking papers on two issues that were important when I was Secretary of State for Transport in 1976. Early in 2005, I asked the Department for Transport for papers arising from two ministerial areas: the public inquiry into the controversial widening of the Archway Road, the A1, and critical decisions made by the Government on whether to support the proposed Tyne and Wear metro railway. Despite toing and froing between me and the department for over six months, I finally abandoned any hope of finding anything except a single, incomplete file.

The departmental records officer went to a great deal of trouble, but I was unhappy about the condition of the papers kept in a repository at Hastings. It was possible, I discovered, that my papers might or might not have been retained. The contents of the files, although kept, might or might not have been accurately and comprehensively identified, and the titles might or might not have been changed. I am certainly not an archivist, but there is no point in keeping archives unless they are professionally catalogued and carefully managed. On the face of it, the papers of the Department for Transport were in a mess.

Eventually, on 24 January 2006, I wrote to the Secretary to the Cabinet, Sir Gus O’Donnell. I said that I no longer wished to pursue the two matters that I had raised with the Department for Transport; my concern now was the broad question of Whitehall papers once they had left the working offices and before the National Archives had decided what to

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retain. I shall not bother the House with all the details, but the Cabinet Secretary said that departmental record-keeping was of a much higher standard than it used to be, that there had been several inquiries and that an interdepartmental group had looked at the problems of storing and archiving of private office records. As a result, in 2001, the previous Cabinet Secretary had given guidance to the Permanent Secretaries, and that was revised in 2004.

That is where the matter rested, as Sir Gus said that the guidance would be looked at again during 2006-07, when the Cabinet Office would monitor how the departments had acted on their recent guidance. I am asking the Minister for a report of the outcome and what has been achieved. In particular, is every Permanent Secretary at least maintaining a good records system, or, if not, is there any sanction to ensure that the job is properly done? Could experts from the marvellous National Archives at Kew be asked to set up a model records system for every department?

I turn to my second separate but related issue: official histories. Here, I declare an interest, wholly unremunerated, as a member of a group of three privy counsellors together with the noble Lord, Lord Healey, and the noble and learned Lord, Lord Howe of Aberavon, appointed by the then Prime Minister, Tony Blair, to approve the authors of official histories. Outside that responsibility or role, however, I have become interested in the planning and overall management of official histories.

The first official history that I remember was Problems of Social Policy by RM Titmuss, published in 1950. Apart from being an account of wartime experience, it was a seminal text on poverty and deprivation and how to try to deal with it. Many years later, I was required to take a ministerial interest in a very different kind of official history, The SOE in France by MRD Foot. There is a huge series of military histories of the Second World War and, since 1966, a series that is described as “History of peacetime events”. I am much impressed by the number of volumes and the quality of those that I have read. I have read two recent volumes on the Falklands War and dipped into two volumes of separate series on early aspects of Britain’s membership of the European Union. There has been a history of Britain and the Channel Tunnel, and a biography, Churchill’s Man of Mystery: Desmond Morton and the World of Intelligence, which I have much enjoyed.

That book, Churchill’s Man of Mystery, has focused my mind on some wider policy questions about the official history programme: the timetable and shape of the programme, the publisher, the contracts with authors, and the marketing of the books. I am strongly in favour of the endeavour, but is it being done in the best way? Churchill's Man of Mystery seems to be a one-off: admirable, but not in a biographical series. It has a well designed jacket and tells a fascinating story. However, when I wanted to buy a copy, I found that it was not in my local book shop. When I eventually found it, the cost was £49, which is a ridiculous price and out of the range of many book buyers. It should have sold 5,000 to 6,000 copies or more at £25 to £30 and perhaps

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been serialised in a newspaper and considered for a television programme. Who made these decisions? How many copies have been sold? Were there book reviews in the major newspapers and magazines, as there should have been?

There is a useful, explanatory Cabinet Office leaflet about the official history programme, but I am little uneasy about the detailed arrangements. This is not a debate that lends itself to all the questions, but, to use a fashionable phrase, I ask whether it is not time for an audit. I do not mean an audit by the tireless Audit Commission, but a fresh look at these matters by a distinguished historian, perhaps accompanied by a major commercial publisher. For a historian, I think of Sir Michael Howard, emeritus professor of modern history at Oxford, Sir Keith Thomas, former president of Corpus Christi College at Oxford, or, of a younger generation, Professor David Cannadine, who is already working on the 30-year rule review. As for a publisher, there is the noble Lord, Lord Evans of Temple Guiting, who was formerly chairman of Faber & Faber for many years.

This is a moment when almost every former Cabinet Minister is expected to write a personal memoir or publish a political diary; and many special advisers and spin doctors also are on the publishing bandwagon. For this reason, it is important to safeguard the basic government material of the past and, in due course, to publish independent accounts of aspects and events of the past. I do not ask the Minister to comment in detail on both the matters that I have raised, but I hope that the Cabinet Office will carefully consider all my points.

7.43 pm

Lord Bew: My Lords, I thank the noble Lord, Lord Rodgers of Quarry Bank, for giving the House the chance to discuss these important matters. I identify myself with his remarks about the history and policy project, which has already proved to be fruitful and interesting.

The noble Lord offered two major themes for our consideration. The first relates to our current arrangements for the preservation of government archives. I think that many Members of your Lordships’ House will have been worried by the case from the noble Lord’s own ministerial days that he laid out before us. Matters may have improved in recent years, as he has been reassured. The Freedom of Information Act may have had the knock-on effect of encouraging better record management. The Lord Chancellor’s code of practice under Section 46 is said to have led to an improved level of government record retention, although the noble Lord’s example this evening did not encourage me too much in that respect.

The Freedom of Information Act has undoubtedly had another impact: it has inevitably increased the pressure on our hard-pressed archivists. I am conscious particularly of the situation in the Public Record Office of Northern Ireland as Northern Ireland emerges from the Troubles. Under the Freedom of Information Act, it has become possible to make inquiries about difficult and contentious cases, which creates a labour for our archivists. They have done everything possible

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to maximise the release of material while using the device of redaction to preserve the health and safety of living persons. The Public Record Office of Northern Ireland does a remarkable job in preserving the collective memory of the Province, which is an essential part of the long-term healing process.

At the heart of the debate is resource allocation. We must anticipate a lack of the sort of funding that would allow the absolutely satisfactory handling of government archives. At the moment, as the noble Lord, Lord Rodgers, said, the Government have a committee reviewing the working of the 30-year rule. It includes Paul Dacre, the editor of a very successful newspaper, and Professor David Cannadine, who is a very distinguished historian, as the noble Lord, Lord Rodgers, said. Given the special difficulties that relate to Northern Ireland, I am glad to say that it includes also Sir Joseph Pilling, a former Permanent Under-Secretary at the Northern Ireland Office. I should perhaps declare an interest to the extent that I served with Professor Cannadine on the committee of the Centre for Contemporary British History at the Institute of Historical Research in London.

We live in an era of ever-increasing public demand for disclosure. These trends are irreversible. Recent court cases involving leaked documents are highly instructive in this respect. Even putting aside the issue of leaks, I say that we now put officially into the public domain material that a previous generation would have regarded as quite unthinkable. When I started graduate research in history at the University of Cambridge, it was impossible to obtain sensitive documents that related to security matters in Ireland in the 1870s and 1880s. At the time of the Bloody Sunday tribunal, we put into the public domain the most sensitive material relating to an incident in 1972—not 1872. That shows the extent to which we have changed in our attitudes. The committee that I mentioned will have to decide whether adequate funding is in place to ensure that any change of the 30-year rule to 25 or 20 years is not counterproductive, perhaps even leading to the loss of important documentation. There is no doubt that the change from the 50- to the 30-year rule in 1977 led to a degree of administrative chaos, and it is important that that should not be repeated.


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