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9 Mar 2010 : Column 158

He went on to say:

"It is true that because of differences between the two legal systems, it might be more difficult for an interest to bring a judicial review in Scotland than in England and Wales".

The main interest in tabling this amendment is not only to ensure that the fact that the duty is enforceable is stated in the Bill, but also to address the problem that could arise with regard to efforts to enforce that duty in Scotland.

In Scotland, judicial reviews do not tend to run in the name of a special interest group, unless that group is an association involving members who have title and interest in the particular case. Also, an individual will have such title to sue only if he or she is a party to some legal relationship giving him or her a right that has been infringed or denied. Of course, while the Bill imposes a duty on the Secretary of State, it does not confer any direct benefit on an individual. Therefore, it would be for the Scottish courts to determine whether a pursuer had title and interest in the circumstances of a particular case. Importing this amendment into the Bill would make it clear that the duty referred to was justiciable in the Scottish courts.

The Minister also indicated in his letter to the Law Society of Scotland:

"Even if the organisation operates only in Scotland, a challenge could be brought against the Secretary of State in the English courts. The group would have to show standing in the same way as a UK-wide or England-only interest group would".

As a statement of the law, I do not dispute that-I think that it is right-but it does beg some important questions, which I know that the Minister has had flagged up to him by the Law Society of Scotland. For example, would an organisation that operates only in Scotland have a title and interest to sue in the English courts? Would such an organisation operating only in Scotland qualify for legal aid from the Legal Services Commission? Would the cost of raising an action in the English courts not create a barrier to a Scottish organisation if it were not funded by legal aid? The kinds of organisation that would have an interest in raising an action to enforce the duty of the Secretary of State would be, almost by their very nature, less likely to have access to substantial funds.

If the duty is to be enforceable in all parts of the United Kingdom, it is important that people should have access to the courts where they live and should not have to travel to find somewhere where they could raise an action. It was to the credit of the Government back in 1998 when, with the Human Rights Act, they brought rights home and made rights that had previously been enforceable only in the court in Strasbourg enforceable in our own domestic courts. It would be regrettable if, at the end of their period of office, they were to bring about a situation whereby a duty could not be enforced in the domestic courts in Scotland, so that interest groups from Scotland would have to go south of the border in order to enforce the duty on the Secretary of State.

That said, one would hope that this would all be academic; we hope that the duty will be fulfilled and the targets will be met. Just in case they are not, though, some reassurances from the Minister would be welcome. I beg to move.

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Lord Freud: My Lords, I take this opportunity to return to a topic that we discussed in Committee and to delve further into what happens if the target is missed. I am grateful for the letter that the Minister sent me-unfortunately, I got it just a couple of hours ago, so I was able only to scan briefly his discussion of the case law. What is the likely result of a successful judicial review against a Secretary of State who failed to meet one or more of these targets and was found to be in breach of his duties? What punishment or penalty does the Minister anticipate that a judge would impose on the Secretary of State?

Lord McKenzie of Luton: My Lords, I thank the noble Lord, Lord Wallace, for this amendment. It gives us the chance to put something clearly on the record. As the noble Lord has outlined, the amendment has been prompted by correspondence from the Law Society of Scotland and concerns that it has expressed regarding the extent to which the duties in the Bill could be enforceable in Scotland, given the different legal system there. Some noble Lords present may have seen my response to that correspondence, but for the benefit of others I shall set out the arguments again today.

I assume that the intention behind the amendment is to explore whether a judicial review of failure to comply with the duty in Clause 1 to meet the targets is available. It may also be to make it clear that judicial review can be brought in relation to breaches of the Clause 1 duties in the courts in Scotland as well as in England and Wales-indeed, I think that that was the thrust of the amendment.

It is not clear that the amendment as drafted would achieve its purpose. The amendment uses a number of terms that are more generally used in private law and are therefore unclear in this context. In addition, as I understand it, the sheriff court does not hear judicial reviews in Scotland; that is for the Court of Session. Furthermore, in other contexts where the word "actionable" is used, it is explained who may bring an action, but the amendment is silent on this point.

As I have previously explained, the Bill is not intended to create duties in private law. It is also not intended to create any individual rights or any rights to damages for financial loss. The Bill is about placing a duty on the Secretary of State to meet targets, and using the Bill to grant individual rights would detract from that. The amendment therefore adds very little, if anything, to the Bill, because the duties in the Bill can be enforced through judicial review in the courts in Scotland and in England and Wales. The duties in Clause 1 are legally enforceable by anyone in the UK and the court may grant such remedy as it considers appropriate. I shall come back to that in more detail in response to the probing of the noble Lord, Lord Freud.

If an individual wishes to bring an action against the Secretary of State, that individual must pursue the action through the administrative courts by way of judicial review, which will involve showing title and interest in Scotland-the noble Lord acknowledged that-or standing in England. The amendment would not change the rules on title, interest and standing, and any person bringing a challenge would still need

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to show that they met these criteria. The rules on standing are in place so that purely academic claims are not brought and to ensure that a claimant or petitioner has a real interest in the case.

4.30 pm

It is true that-and this is a quote from the correspondence-

However, it remains a matter for the Scottish courts to decide whether a pursuer has title and interest, just as it would be for the courts in England and Wales to consider in each case whether an interest group has standing. What I am trying to say is that the amendment would not create that standing or that interest, which would have to be assessed by the court in all the circumstances of the case.

The noble Lord asked how legal aid might operate. I understand that there are no restrictions on residents on getting legal aid from the Legal Services Commission. Therefore, if a claimant meets the normal means and merits tests for legal aid, there would be nothing to prevent a Scottish claimant from getting legal aid to pursue a claim in the English courts. However, it should be noted that legal aid is available only to individuals, not to businesses or companies. In the case of a judicial review, if a group of individuals brings a judicial review in the name of an interest group, it is possible for the group to get legal aid or, more usually, a contribution towards its legal costs even if the case is brought in the name of the charity or group.

The noble Lord, Lord Freud, asked about the consequences of an adverse judicial review. I apologise to him if he has only just received the correspondence, which picked up on the discussion that we had in Committee on enforceability. All judicial review remedies are at the discretion of the court. The court might grant a declaration that the Government had acted in breach of their statutory duties. Therefore, if the targets are not met in 2020, the court might declare that the Secretary of State had acted in breach of the requirement in the Bill to meet them, which could result in political embarrassment.

The court could also grant an order quashing a particular policy decision or making a mandatory order requiring the Secretary of State to take a particular course of action. As to what power the courts would have to order that necessary resources should be made available, it is difficult to predict what remedies the court would prescribe and it is not appropriate for the Government to attempt to do so. The full range of judicial review remedies would be available to the court.

I hope that, on that basis, the noble Lord will not press his amendment. We believe that the form of it is more focused on issues of private law, whereas we are dealing here with judicial review. We believe that the existing rules around judicial review are sufficient to enable enforcement in Scotland as well as in England and Wales. I hope that I have dealt with the particular issues about costs and legal aid.

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Lord Wallace of Tankerness: My Lords, I am grateful to the Minister for his reply and, indeed, to the noble Lord, Lord Freud, for his contribution, to which I will return in a moment.

We should note that the Minister repeated what he said in his letter to the Law Society of Scotland-namely, that it could be more difficult for an interest group to bring a judicial review in Scotland than in England and Wales. It is regrettable, when we are establishing law in this House, that we should merely acknowledge that that will be the case, when in fact, at this stage, we have an opportunity to do something about it. If the Minister feels that the terms of the amendment are not sufficient to ensure that there is equality of access to remedy and to take action in all parts of the United Kingdom, perhaps it would have been better if he had been able to indicate that the Government would come forward with their own amendment to ensure that that was the case.

The Minister makes the point that judicial reviews are not normally available in the sheriff court in Scotland. Of course, the amendment does not refer to judicial reviews, but we are talking to a novel kind of statutory duty and it may well be that novel procedures are required if these duties are going to be more than just aspirations, albeit important and noble aspirations. That is why the contribution from the noble Lord, Lord Freud, was important, because he asked what would happen in 2020 if these duties had not been fulfilled.

I was not overwhelmed or persuaded by the Minister's reply that a declaration might be politically embarrassing. We probably need a court to give us that declaration. There will be plenty of political debate about it anyway. He said that the court might be able to order a course of action by a Minister, but how in the world would the resources ever be ordered to will the means to the end? It is therefore unfortunate that what was a worthy aspiration may not have judicial backing. I think that this is widely accepted. However, I welcome the comments about legal aid, which were helpful if it ever comes to that. I do not intend to press the amendment.

Amendment 3 withdrawn.

Amendment 4 not moved.

Amendment 5

Moved by Lord Freud

5: After Clause 5, insert the following new Clause-

"Non-financial targets

The Secretary of State will, following consultation with the Commission, establish non-financial targets relating to the number of children brought up in-

(a) households with parents who are married, in a civil partnership or in a long term relationship,

(b) workless households,

(c) households where one or more parent is addicted to drugs, alcohol or gambling, and

(d) households where a parent lacks level 2 key skills."

Lord Freud: My Lords, this is our central amendment to the Bill. It reflects what seems to be a genuine difference in approach between the Government and

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us over the Bill-that is, how best to tackle the problem of child poverty. Simply put, there are two approaches. We can transfer income until nobody is below the relative target line, or we can take measures which will help many people to move above the relative target under their own steam. I labour the distinction because until recently the Government have been essentially wedded to the first approach, as reflected by the Treasury being the department responsible for the child poverty agenda. I repeat the words of Sir Nicholas Macpherson, the Treasury Permanent Secretary, to the Treasury Select Committee, quite recently, in 2007:

"The primary reason that the Treasury has led on Child Poverty is that we control the levers which are critical for meeting the 2010 target, as we set the levels of financial support for families. Employment will have an important impact on achieving our goal of halving child poverty, but financial support is the most important lever".

As I acknowledged in Grand Committee, this position has modified recently. The impact assessment on the Bill talked about combining,


However, the Bill has not been rebalanced in this way. The "other social policies" referred to in the impact assessment are dealt with in Clause 8, which places the Secretary of State under instruction to take various issues into account, including the employment and skills of parents. They are absolutely not targets in the sense that the financial measures are targets. This leads to the conclusion that, in practice, the Bill is a reinforcement of the Treasury's approach, and that the talk of balance between the two approaches in the impact statement is so much hot air. The concern is further amplified by the fact that under this Government-I am informed by the Minister-the Treasury will retain a key interest in the work of the Child Poverty Commission, alongside the DWP and the Department for Children, Schools and Families. The risk we are running is that policy develops exclusively on track 1-that is, on financial transfers.

The purpose of introducing formal non-financial targets is to make sure that the obligations are balanced; that these goals receive an equivalent weighting to the financial measures and are not tucked away in Clause 8; and that there are targets that provide a powerful base for the DWP and the DCSF in the debate about how to tackle child poverty. After all, there is strong evidence that a pound earned is worth more to the recipient than a pound transferred. I cite the DWP's own research report 219, The Dynamics of Deprivation.

I turn to the specific non-financial targets in the amendment. I make absolutely clear that these represent a best attempt to isolate what appear to be major sources of, or at least correlations with, poverty and poor child well-being. Much of the debate surrounding this proposition in Committee focused on the precise nature of these financial targets. Therefore, should the Government be tempted to adopt this approach, I would be absolutely open to fine-tuning the specific targets. Indeed, if a clause along these lines were

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acceptable, I would be happy to establish these specific items following consultation with the proposed Child Poverty Commission.

Let me lay out why the Government should consider this proposition. This is a Bill about the next 10 years, in which it is important that there is bipartisan support. The Government should therefore be interested in ensuring that this Bill is useful for whichever party is in power. I also point out that the Minister, as a representative of the DWP, should welcome an amendment that reinforces the position of that department in tackling child poverty. I am particularly conscious that he has just piloted the Welfare Reform Bill through the House, with its emphasis on individualised intervention to help the economically inactive. Therefore, he has an intimate understanding of the importance of such interventions. He will be as conscious as I am of the internal government battles to establish strategies in this area-battles that would be exacerbated by the three-way structure of management this Government propose.

I turn to the specific drivers of poverty that I have specified in this amendment. Since we have discussed these in Committee I will not dwell on them at length. The first and last, covering work and training, are essentially uncontentious and are reflected in Clause 8 as key areas for the Secretary of State or the three Secretaries of State to take action in. The other two are not so straightforward. The importance of stable relationships does not seem to be accepted by this Government. The Minister stated that,

I think that is a wilful misinterpretation of the evidence, although I admit that there does not seem to be a lot of it around.

However, I was able to uncover one important piece of research that focuses on this question that suggests exactly the opposite. I refer to Stephen Jenkins's work on Marital Splits and Income Changes over the LongerTerm, published by the Institute for Social and Economic Research in February 2008. This found that, after a marital split, all women in the study who did not move into paid work remained below the poverty line for each of the next five years after experiencing the largest initial fall of the group in income. You can take out all those weasel words about correlation and bury them. This is straight cause and effect. The study did not cover splits by cohabitees. It is likely that the impact is amplified for this group because they are less well protected. We await specific research on this.

Interestingly, there is some good news in this survey. The secular rise in women's labour force participation rates, combined with in-work benefit, means that those women who move into work come close to recovering their pre-split incomes after five years. This finding underpins the importance of two of the factors in this amendment: work and reducing relationship breakdowns. It also underpins the equally sophisticated work undertaken by the Child Poverty Action Group, which I quoted in Committee. This research is ground-breaking in the sense that it aims to capture the relative importance

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of the factors surrounding poverty by using a new statistical technique called structural equation modelling, which was developed in around 2000. The Child Poverty Action Group found that,

Parts of this Government still seem to be in denial about the importance of stable family relationships-certainly, the part of the Government in the Chamber today. Does the Minister agree with Ed Balls, when, at the turn of the year, he said that adult relationships are,

Was that a statement about cause and effect or just another correlation? I would be most interested in the Minister's response to this pivotal question. I was pleased to provide the references to the Minister's team for the two important pieces of research to which I have referred, so I look forward to a most informed assessment of them from him.

4.45 pm

The purpose of paragraph (a) in the amendment is to ensure that we monitor, and have strategies to encourage, family stability whether the parents are married or cohabiting. The evidence that I spelt out in Committee suggests that the greatest concern should lie with the latter.

I shall deal with paragraph (c) in the amendment briefly as I have a later amendment that deals with the issue so far as it concerns financial transfers. The aspect I shall deal with now is that of relying on targets which ignore the impact of parental addiction. This is quite different in kind from the other targets and is disgracefully ignored in the Bill. As far as I can see, it does not contain a single reference to addiction. What is the use of a financial target when it ignores the fact that resources will be diverted from the children to feed a parent's habit? If we ignore this issue, we will make great efforts and spend considerable resources to reduce poverty but many children will simply not see any benefit whatever. The main beneficiaries will be the local drug dealers and off-licences.

The target must incorporate an assessment of the impact of addiction. If we had one-as I am proposing-the state would be forced to find a way to deal with this issue and channel resources towards children more effectively. This issue is entirely different in kind from the others, as addictive parents undermine the whole concept of tackling child poverty by measures focused solely on relative household incomes. That is why we need to supplement the financial targets with targets on addiction. Otherwise, the noble Lord, Lord Northbourne-I do not see him in his place-will be calling for the Bill to be renamed the child poverty and delight of drug dealers Bill. I beg to move.

Baroness Hollis of Heigham: My Lords, the noble Lord, Lord Freud, and I have a lot in common on this amendment. I, too, would like to see children brought up in families that are stable, steady, long lasting and loving. We could discuss whether that is called marriage or cohabitation. I, too, want to see families where the parents-or at least one of the parents, perhaps even both-are in work, are free of addiction and sufficiently

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educated to be able to help their children have roots and then take wing. I also want to see-I am puzzled that the noble Lord did not mention this-children brought up in households where they and their parents enjoy good physical and mental health and where there is no domestic violence or emotional abuse. I could go on. We could all treble that list of what we know helps improve the well-being of children in their family life.

We do not disagree with any of that but with what should be in the Bill. That is the disagreement between us: not whether these things matter to children-they clearly do-but whether it is reasonable to talk about non-financial targets when in so many of these areas we are trespassing on a private life where the Government have no levers to pull. The noble Lord is quite right to say that two of those four targets, worklessness and education, are part of the Government's strategy. There would not be any dispute between us that they are being pursued in other avenues and ways-we hope with increasing success.

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