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My noble friend Lord Prescott put his finger on it when said that we can make a choice as a society; we can say that press freedom is so important that anything goes and you can publish anything you like about people's lives, or you can make the choice that we rightly make whereby certain things are private and should be kept private. If you are serious about a right to privacy, it has to be enforced by the courts. That means looking at each individual case and asking, "Is
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The consequence of my noble and learned friend Lord Irvine's courage is that that is effectively the current law. Do not change it. Do not listen to the beguiling appeal of the press, which says, "We want to be able to tell you which footballers are having affairs, even though we know it will damage their children. They should have thought about that before they had the affairs". How does that protect their children? There may well be footballers who are acting purely for commercial interests, but the courts can draw the balance between the two.
The effect of incorporating the European Convention on Human Rights is that we have a law that is there and is sensible. The attacks on the judges are, with the greatest respect to those who do so, utterly misplaced. All those noble Lords who have said in this debate that the judges are only doing what the law says are absolutely right. That is but one example of the effects of incorporation. There are so many. For example, the European convention ensures that you will not be separated from your wife when you are elderly because it is convenient for the local authority to put one of you in one care home and one in another. That would be a breach of Article 8. The convention also helps you if, for example, you are in a care home and left for long periods on a commode because the local authority will not provide adequate care for you. That is part of your personal dignity which the Human Rights Act ensures will be protected.
The effect has been not only on individual rights but on the culture of the courts. No better example was given than that given by my noble friend Lady Kennedy of The Shaws on the comparison between Belmarsh, where the judges see themselves as having to protect individual rights, and Liversidge v Anderson, where the judges, in the middle of the war, saw their role as being simply to back up the Executive. That is a very significant change.
What changes have been suggested? It was suggested that the European Court of Human Rights act more quickly-I agree. More money should be spent on it-I agree. There should be better parliamentary scrutiny-I agree. The margin of appreciation issue should be addressed-yes, but that does not require a change in the law. The coalition has set up a commission of distinguished people, including the noble Lord, Lord Lester, and the noble Baroness, Lady Kennedy of The Shaws. They will ensure that incorporation is not retreated from. However, I think this is a mistake. The important thing is to defend the principle of those rights and their incorporation into our law. Setting up the commission raises expectations that something will change when, as I understand it, it does not intend to change anything.
I ask the Minister to give a guarantee that the Government are not going back on the incorporation of human rights into law. He will give that assurance
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The Minister of State, Ministry of Justice (Lord McNally): I love following the noble and learned Lord, Lord Falconer, because he always finishes as if he has made the final case for the prosecution in some case where the poor mutt in the dock has to stand up and say, "I did it; I did it".
It is always a little daunting for a non-lawyer-like the noble Lord, Lord Wills, I am a non-lawyer-to reply to a debate opened by one former Lord Chancellor and closed by another former Lord Chancellor, and with half the contributions coming from QCs. Our learned friends were truly out in force. That is partly a tribute to the noble and learned Lord, Lord Irvine, and the standing that he still holds in the legal profession and more widely. I was delighted when I saw his name down for this debate, because I knew that it would attract speakers of quality and knowledge about the issue. When opening the Second Reading of the Human Rights Bill, he said:
I would recommend reading the part of the speech of the noble and learned Lord, Lord Falconer, before he reached his grand peroration. There he set out in a list, as did the noble Baroness, Lady Whitaker, our human rights and how the Human Rights Act protects the rights of individuals. Of course the media are always going to find cases whereby the seemingly most undeserving rascal is given protection. However, in some ways, that in itself is what makes us a civilised society-we give guarantees in those cases, not always just to the saintly and the deserving.
I welcome the contributions of all speakers today and I think that they will help those who take the trouble to read the debate. I hope that our distinguished commission will take the Hansard report of this debate as useful evidence, because there have been many contributions which deserve recognition.
The noble and learned Lord, Lord Falconer, rightly paid tribute to the noble and learned Lord, Lord Irvine, over the birth of the Human Rights Act. The noble and learned Lord, Lord Irvine, in his turn, was generous in his tribute to the consistency of my party on these matters. The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Kirkhill, among
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In answer to the noble and learned Lord, Lord Falconer, I have never said that the Human Rights Act is some precious vase that should be kept on a high shelf and never be looked at. Indeed, I think that the greatest damage that could have been done to it would have been to allow the various criticisms of and attacks on the Human Rights Act and the convention to remain unchallenged and unexamined. Therefore, we have taken it down from the shelf and have put it in good hands to be examined. I hope that this debate serves as an illustration of the kind of informed discussion that we want on how the Act works and how it impinges on our system of justice.
A number of issues have been raised and I shall try to deal with them. Prisoner voting was referred to by the noble and learned Lord, Lord Irvine, and the noble Lords, Lord Prescott, Lord Faulks, Lord Goodhart and Lord Ramsbotham. The old ministerial fallback position of "We are considering the position" is as far as I can go on that, but I am not sure that it is a particularly edifying exercise. The other night, I watched an excellent documentary on BBC Four about the abolition of the death penalty in this country. In a way, I came to the same conclusion that the noble and learned Lord, Lord Falconer, came to about the passage of the Human Rights Act. I doubt whether this Parliament would abolish the death penalty in the way that Parliament did in the 1960s. However, that does not mean that in my opinion Parliament has not improved over the past 40 years or so in terms of its courage in addressing some of these issues.
I liked the statistic that at the recent general election in Ireland every prisoner had the right to vote but only 0.5 per cent exercised it. On the sex offenders register, my ministerial fallback position is that we are looking at the implications of the judgment. However, I also note that it has been applied in Scotland for the past year. Before I leave the subject of prisoner voting, and before people get ready to castigate this weak, flaccid and vacillating Government, I look at the Lord Chancellor who sat on the judgment for six years and did nothing.
The debate on press complaints was useful. The contributions of the noble Lords, Lord Prescott and Lord Black, showed the two sides of the debate that is to be had. The Press Complaints Commission has a job to do in convincing the public that it can be the robust, independent regulator that it was agreed it should be when the special arrangements were made at the passing of the Act. The implications of Section 12 were drawn to my attention. Section 12 asks courts to
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I am not supposed to tell your Lordships that the Master of the Rolls is going to deliver his report tomorrow. Government secrets are not what they used to be so I shall be very surprised if he does not deliver it tomorrow, as the Daily Telegraph has already said that he will be doing so. More seriously, I hope that we will be able to look at what he says about procedure with a view to making it more effective-a point emphasised by the noble and learned Lord, Lord Falconer-as well as looking at the procedure for super-injunctions. The noble and learned Lord pointed out that super-injunctions can be issued in secret without the press being able to make their case, and I suspect that the Master of the Rolls will be looking at that, and properly so. However, let us wait to see his recommendations. They will certainly be treated extremely seriously.
The noble Lord, Lord Dubs, and I have discussed the Northern Ireland Bill of Rights before. It was a commitment in the Good Friday agreement. However, I think that successive Governments have said-as has been said about so many things in relation to Northern Ireland-that, when we can get agreement in Belfast, there will be no problem on that issue.
On the specific question of the sex offenders ruling, further to the Home Secretary's Statement in the House of Commons on 16 February, the Government will shortly bring forward proposals to implement the ruling of the Supreme Court. However, a robust review, led by police and involving all relevant agencies, will be carried out so that a full picture of the risks to the public can be considered. Sex offenders who continue to pose a risk will remain on the register, and will do so for life if necessary.
I turn to the points raised by the noble Lord, Lord Prescott and Lord Black. The noble Lord, Lord Black, said that the law was reasonably easy to apply to the print media but very difficult to apply to the new technologies. This matter is also being tackled by the Joint Committee on the Defamation Bill. Some of the recent publicity about super-injunctions illustrated that it is difficult to track down messages on the new technologies. I am beginning to sound like a judge now, aren't I? As I even have to ask my son James to send texts for me, you will know why I struggle with these things. But new technologies make it difficult to make the law applicable. We are consulting widely on that and I hope that we will have some agreements, certainly about the internet-guarantees that prevent some of the abuses that have arisen in terms of libel law and freedom of speech in that regard.
I was interested in the interventions of the noble and learned Lord, Lord Scott, and the noble Lord, Lord Tomlinson. I will not presume to make judgments on the matter any more than the noble and learned Lord, Lord Irvine. The noble Lord's warning was about whether it was worth making the court rulings as subjective as the noble and learned Lord, Lord Scott, seemed to suggest, so that we lost the powerful leverage that the court's judgments have on human
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I will just check quickly through my notes whether I have missed any points that noble Lords made. On the list of good things, I had not realised the real benefit of the Human Rights Act as it applied to courts martial, as spoken about by my noble friend Lord Thomas. He also made interesting comments about Hong Kong.
In reference to the point made by the noble Lord, Lord Pannick, perhaps it needs saying that respect for the rule of law includes total respect for the independence of the judiciary. Occasionally individual Ministers-it has happened in other Governments as well-get tetchy about what judges do, but we should not get too excited that that is somehow an assault on the judiciary. Until 12 months ago I did not regularly mix with the higher ranks of the judiciary, but since then I have had some experience of them. They are fairly tough old characters, so I think that they can stand the occasional word of criticism-as politicians occasionally get words of criticism from the Bench. It is a good and healthy dynamic tension.
I was pleased that the noble Lord, Lord Faulks, spoke, because it was important that the debate had the case for the prosecution, as it were. Has the Act been trivialised? Has there been too much acquiescence by our courts-a kind of mission creep? He made the case for a proper examination of the Act, and that is what we intend to do in bringing forward the commission to look at it.
By the way, I have just remembered the bit of technology I had forgotten: Twitter. Twittering is hard to track down. The other day I was at a meeting of senior high-tech advisers, and I kept talking about biscuits. Nobody said anything until, in the end, one of them said, "What was that about biscuits?", and I said, "Where they store all this information". He said, "Those are cookies", and then all the experts confessed that they had not interrupted because they thought that the Minister must know about some new technology that they were not aware of.
I am always petrified because the noble Lord, Lord Tomlinson, finishes his speeches with a pointed finger and a question to the Minister, but this time it is easy. I will report back to the Lord Chancellor about the piece of European skulduggery that he outlined in terms of financing. Of one thing we are certain. Ken Clarke went recently to a meeting of the Council of Europe's body in Izmir in Turkey and outlined our ambitions for reform, and the response was extremely encouraging. We will make a really determined effort during our presidency to press the case for reform, advised by our commission.
Let me end as I began. We are deeply in debt to the noble and learned Lord, Lord Irvine-first, for the Act; and secondly, for inspiring the debate. It has set the parameters of how we will look at the issues, safe in the knowledge that this country had an amazing role in creating the European Convention on Human Rights. We will go forward in the 21st century as firmly committed to that as the generation who, as was rightly said, experienced personally, at first hand, what happens when the state gets out of control-when it does not have checks and balances, and when there are no human rights.
We follow a debate on human rights with a debate on one of the most fundamental human rights-access to justice. I say immediately that the credit for this Motion coming before your Lordships' House today belongs not to me, but to my noble friend Lady McDonagh, who drafted it and would have moved it had she been able to do so. Alas, she is not able to be present today for personal reasons, so I am in a sense instructed by her-a familiar condition for me, because she used to instruct me on behalf of the trade union for which she was an officer many years ago, and after that as general secretary of the Labour Party. I follow my instructions today with perhaps a little more alacrity than I did in that former case.
The legal aid system was one of the great pillars of the post-war welfare state. At one time affording access to justice to 80 per cent of the population, it has undergone many changes in the past 62 years. Currently, around 36 per cent of the population fall within the financial eligibility limits-both income and capital-for legal advice and assistance, or representation in matters of civil law. Some areas have long been excluded from the civil legal aid system, including most personal injury claims, which ironically were removed from the system's scope because of the conditional fee system that the Government now propose to abolish in the guise of an attack on the so-called compensation culture, the extent of which is surely exaggerated.
Last week, I confessed to having form in the matter of police reform. I have a similar confession in respect of legal aid. My noble friend Lord Bach will recall
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At present, legal aid and advice are available across a wide range of issues, including debt, employment, housing, education, family law, immigration and clinical negligence, and more besides. In some of these areas, legal aid does not extend to representation: in others, it does. The total cost is around £900 million a year for civil legal aid and £1.2 billion a year for criminal legal aid. The Government's Green Paper on legal aid reform proposes a massive cut in the civil legal aid budget of £279 million, with a much smaller reduction of around £71 million in the criminal legal aid budget. It achieves this by substantially reducing the scope of the scheme across most of the categories currently covered, while several categories are removed entirely.
The effects are stark. The Government's assessment of the number of individuals affected by the withdrawal of access-not the overall number, which would include family members-is around 500,000 to 550,000. This figure appears to understate the real effect by around 150,000, based on the latest Legal Services Commission data that show that some 725,000 cases will not be assisted. The Legal Action Group's estimate is 650,000-still substantially more than the Government's estimate. No doubt those figures reflect rising demand stemming from the effects of the recession both in terms of the need for advice and the increasing numbers becoming financially eligible.
What are the implications of this massive cut-around 70 per cent-in the number of cases for which funding will be available? In round figures, funding will be available for 250,000 fewer cases involving family disputes; 140,000 fewer cases involving welfare benefits; 110,000 fewer cases involving debt; 50,000 fewer cases involving serious housing problems; and 30,000 fewer cases involving employment problems. The impact is concentrated on the poorest. Currently, 80 per cent of legal help cases and 90 per cent of cases where legal representation is funded involve the poorest 20 per cent of the population.
No doubt other noble Lords will give examples of the kind of cases for which assistance will no longer be available. I will confine myself briefly to four. In the area of housing, tenants will not receive help in securing the repair of their homes; in the area of education, the parents of disabled children will not be helped to secure proper provision from the education authority; in the area of employment, help will be available only in discrimination cases; and in the complex world of clinical negligence, no claims will be assisted, not even those of children.
The Government believe that greater reliance on two factors, mediation and the support of voluntary organisations, will substantially mitigate the effects of the draconian cuts. However, mediation already exists-it has to be considered now by the parties and the courts-yet only in some 4,000 cases a year is it adopted. Moreover, as I remarked when we discussed the Statement launching the Green Paper, mediation is not suitable when, as in many family cases, there is
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As regards alternative sources of support, law centres and Citizens Advice, too, are under extreme financial pressure, both from the withdrawal of government funding implicit in the proposals of the Green Paper and from local councils struggling to cope with the largest ever reduction in government grants. The Law Centres Federation anticipates a loss of something over 50 per cent of law centres' income, and there is a fear that 50 out of the 56 existing centres may be forced to close if the Green Paper proposals are implemented. Many are already struggling with cuts in grants from local councils such as Birmingham or Hammersmith and Fulham, where the entirety of local authority funding has been withdrawn. Citizens Advice faces similar pressures at a time when demand is increasing.
The Government rightly claim that our legal aid scheme, when compared internationally, is one of the most, if not the most, generous. However, as the Bar Council points out, if one looks at the cost of the justice system as a whole, adding the cost of the courts to the legal aid bill, the gap is much narrower. Reducing the costs of administering the system should be the first priority. Paradoxically, the reduction in legal aid and advice might drive up costs, as the courts contend with the problems of dealing with litigants in person. International comparisons of expenditure are inevitably rough and ready, taking little or no account of different legal systems, let alone different social and economic structures or pressures. Citizens Advice, in its response to the Green Paper, demonstrated that the taxpayer saves substantially by investing in legal aid. In the case of housing, the saving is £2.34 for every £1 spent on legal advice or legal aid; in the case of debt, £2.98 for every £1 spent; in the case of benefits advice, £8.80; and in the case of employment, £7.13.
Clearly, the justice system cannot be immune from the pressure to engender savings at a time when deficit reduction is a given, even if the scale and timing of reductions continue to be contestable issues. However, I urge the Government to consider very carefully the Law Society's proposals for savings. It identified £249 million-worth of savings for the Ministry of Justice from a range of measures, including improving the efficiency of the prosecution service and capping an individual lawyer's fees derived from legal aid. In addition, it accepts £62 million of the savings that the Government propose in the Green Paper, plus further savings from barristers' fees. I observe that the Law Society is rather quick to suggest reductions in barristers' fees; its enthusiasm may not be shared by the Bar Council. In addition, it suggests areas where revenue can be raised: for example, by a modest 1 per cent levy on the alcohol industry, which contributes significantly to the need for legal services not just in the criminal courts but in such areas as family law, housing, debt and welfare-or, on another track, by simplifying housing law. It estimates that £158 million could be raised from a variety of such measures. If all the savings suggested by the Law Society were to be
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There may be other ways of contributing to reductions in the civil legal aid budget. In earlier days, legal aid lawyers suffered a levy of 10 per cent on their costs, as eventually assessed by the courts or agreed with the other side. Perhaps we could revert to that system to generate money for the legal aid fund: or perhaps we could introduce a contingency fee system under which legally aided clients would contribute a proportion of their damages or sums that they recover to the legal aid fund, but preferably not to their lawyers. I recall suggesting such a scheme at a meeting where my noble friend Lord Boateng, then a Minister in another place, had roundly denounced fat-cat lawyers. Speaking, as I said at the time, as a moderately plump-cat lawyer, I thought that my proposal was worth investigating. He did not, and it was not: yet it still seems to me that such a system, coupled with the former practice that cases had to be independently assessed by practitioners as having a reasonable chance of success, and authority obtained to incur significant expenditure, would be better than the conditional fee system that is supposed to incentivise lawyers to undertake weaker cases-on the grounds that swings and roundabouts would apply-many of which might fail. Those cases would be subsidised from the fees from cases that they won. Of course, the conditional fee agreement is now to go.
The Lord Chancellor has made a refreshing start on reforming penal policy, distancing himself from both his Conservative and Labour predecessors. I applaud him for that, though not for yesterday's unfortunate pronouncements, but in this area of civil legal aid, he is in danger of making a grievous error. In the words of the current Lord Chief Justice, the proposals fail,
"I do not make any recommendations ... for the expansion or restoration of legal aid. I do, however, stress the vital necessity of making no further cut backs in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate cost in key areas".
I have quoted the present Lord Chief Justice, and I conclude by referring to a most distinguished predecessor, the noble and learned Lord, Lord Woolf, who is not in his place today. Two or three years ago, the noble and learned Lord published a volume which is a distillation of his jurisprudence, wisdom and humanity. It is called The Pursuit of Justice. The title is derived from the biblical injunction:
Lord Faulks:My Lords, I should begin by declaring an interest as a practising barrister and also as chairman of research for the Society of Conservative Lawyers and editor of a pamphlet submitted to the Government and the Ministry of Justice as part of the consultation process in relation to the Government's proposals for the reform of legal aid.
The Government must cut £350 million by 2015. Although comparisons are not easy, we spend much more on legal aid than countries of an equivalent size and economic status. Legal aid, like other areas of government spending, must bear its share of pain. I agree with the Government that court proceedings should be very much the last resort and that encouragement should be given to people to seek remedies by other means.
The party opposite has accepted that had it been in power-I rely on what the shadow Minister in the other place, Sadiq Khan, said-there would have to have been significant cuts in any event. However, consistent with its approach generally, there has been a lack of specificity about where those cuts might fall, thereby leaving plenty of room for manoeuvre to criticise the proposals that the Government have put forward.
However, I welcome the debate secured by the noble Lord, Lord Beecham, and give credit to him and to the noble Baroness, Lady McDonagh, for initiating it. If one accepts that cuts have to be made, the question is where the axe should fall so as to cause the minimum of pain and to try to ensure, so far possible, that there remains meaningful access to justice. I share the concern of, I suspect, many noble Lords that the vista of unrepresented litigants will not necessarily be much of a saving in terms of the administration of justice. Cases tend to take longer and sometimes there are appeals on difficult points.
There is little time to deal with all the many issues that the Government's proposals involve. I shall refer to two. The first is clinical negligence. Some clinical negligence cases are of immense complexity-to take an example, an obstetric case which may result in a brain-damaged baby. These cases will involve myriad experts, quite rightly. They will include obstetricians, midwives, neuroradiologists, paediatric neurologists and neonatologists. A great deal of expertise is needed from them and from the lawyers to investigate what is often a very difficult matter: whether there has been a departure from the appropriate standard of care and, often even more difficult, whether such departure has or has not caused damage. An enormous amount of literature has been generated by this. It really does involve a great deal of skill. Very often the conclusion is reached by lawyers that there is no case, and the matter does not go forward. There is not to be any legal aid, even for the investigatory steps, and I suggest that is potentially going to cut off some very important cases. It means that those who really need compensation in the years to come may well be denied.
The Government's answer is the CFA system, but because of the changes in the CFA system that they propose following the partial implementation of Jackson, it will be very unattractive for many lawyers to take
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I will have to deal with my second point very briefly. The tone of the Government's response seems to suggest that there is some possibility of additional funding in cases where they may feel that they would be in breach of treaty obligations if they did not do so. Reading the subtext, I take this to be a suggestion that anything to do with Human Rights Act cases may still require legal aid. There are some very important Human Rights Act cases, but let me tell the House that there is an enormous number of very trivial Human Rights Act cases. The Government should not be frightened to say that if cases are not serious, do not involve large amounts of money and are not truly human rights issues, there should be no legal aid for them. There would be savings that could be better spent elsewhere.
Baroness Sherlock: My Lords, I wish to focus on one particular aspect of the Government's plans for legal aid: the proposal to take social welfare law out of scope. Of the cuts to be made, more than £l00 million will be cut from social welfare legal aid and, as a result, most social welfare law and legal advice will no longer be covered. I want to draw attention to the context in which these proposals are being made. The Welfare Reform Bill is currently making its way through another place. Its proposals are, frankly, a revolution in welfare benefits. Even the DWP, which is not given to overstatement, has described the Bill as,
The Bill will abolish most of the income-related benefits we know about-income support, jobseekers' allowance, employment and support allowance, tax credits, housing benefit and council tax benefit-and replace them with a single benefit called universal credit, many of whose key features are not yet clear, even though the Bill is about to come out of Committee in another place. There will also be other changes. There will be more conditionality for people already in jobs. Noble Lords will be aware of tests already being used to determine whether people are entitled to disability benefits. There is a dramatic change in the shift to local decisions on a range of benefits and provision, and there are proposals on the table which would significantly reduce access to the statutory system of child support. These proposals combined will dramatically change the landscape for poor people over the next few years.
My concern is that when Governments make changes on this scale, mistakes inevitably happen. It takes time for those administering new systems to calibrate
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As well as the fact that benefits recipients tend to be poor, legal aid is targeted at poor people. Therefore, these changes clearly target the poorest people in our country. I am also concerned, as the CABs have pointed out, that the shift in the criteria for civil funding is moving towards crisis points, such as imminent homelessness, and away from the kind of legal help and advice which might prevent someone becoming homeless in the first place. That does not seem to be a sensible move.
Ensuring the rule of law, as is often observed, is one of the foremost duties of the state. But a citizen who cannot challenge a wrong decision by the state simply because they have not got the money cannot depend on the rule of law. That does not mean unlimited spending on legal aid; but it does mean that one does not remove from the scope of publicly funded legal support an entire aspect of law which is fundamental to the dignity and survival of some of our poorest citizens.
When the Welfare Reform Bill comes to this House, I hope very much that the considerable expertise around these Benches will be deployed in scrutinising it very carefully. It is substantial legislation and its changes will make a big difference to the lives of millions of people who depend on benefits. It is the kind of thing that this House does very well and I am sure that the Bill will not emerge in the same state as it came in. But what is the point of our spending weeks of parliamentary time scrutinising legislation, if, in practice, those who are affected by it have no means to ensure that Parliament's intentions are implemented?
I would ask the Minister to consider one thing in particular. If the Government will not move on these reforms in general, will he consider at least making no changes to the provision of legal aid, advice and help to benefit claimants at least until two years after the Welfare Reform Bill has been implemented in full? The very least people expect is that if Parliament makes decisions, they should be able to get justice according to them.
Lord Thomas of Gresford: My Lords, there is no point in cutting legal aid if the effect is to increase government expenditure in other areas and at the same time deny access to justice. The Green Paper proposes a radical reduction in the scope of private family law issues for which legal aid will be available. That policy is based on a false premise; namely, that spending on legal aid fuels litigation and that the only alternative is mediation.
Family lawyers, as a group, are committed to settling cases out of court as expeditiously as possible, often by referring clients to mediation, but, more frequently, negotiating settlements themselves. In my early days as a solicitor, I was much involved in that sort of work. The Green Paper entirely neglects the current important role of lawyers in non-court-based resolution of legal disputes, particularly financial and custody disputes. It is very probably because clients were able to see a solicitor that litigation was avoided in many cases. Without professional guidance, ill founded and certainly ill prepared litigation conducted by the client in person will inevitably follow. That will mean a very substantial rise in the number of litigants in person in the family courts. Sir David Norgrove, chair of the Family Justice Review panel, in his interim report, which was published recently, has emphasised this point.
Those who lack the personal energy and other resources to take on litigation by themselves would not get access to justice at all. Those who have not been able to enforce the other party's private law responsibilities for support and so on inevitably fall back on the state for housing and support, so that is where more state expenditure is incurred. One reason why mediation is currently successful is that the threat of litigation encourages people to adopt sensible positions in mediation or in settlement discussions. With that threat effectively removed in many cases by the removal of public funding for legal representation, successful mediation will be severely hampered.
Legal aid is to be granted where there is physical violence. There is an obvious perverse incentive for people to allege domestic violence just to get access to funding for their other issues. The other side to the argument could say, "Well, I never did that", which will increase more contested court proceedings. Many women who do not disclose domestic violence that they have suffered, or refuse to apply for injunctive relief in relation to it, will not get a proper and safe resolution of the issues. The very class of person which the Green Paper most wants to protect will be left unprotected and in potentially extremely dangerous situations. Domestic violence very often comes to light only through the lawyers' handling of the case when they learn it from a client who has kept it concealed from their family. Mediation in such cases will not work and should not be tried at all.
Medical negligence cases have played a very important role in improving health care by setting standards, publicising deficiencies and punishing failures. The thalidomide case is a very good example. In many cases, new procedures have been introduced and developed as a result of litigation. According to the Green Paper, taking clinical negligence out of legal aid would save £17 million.
Of the 500,000 avoidable incidents in England alone, as estimated by the DoH in 2009-10, the National Health Service Litigation Authority received only 6,652 claims. Expert solicitors who handle these claims will decide in 75 per cent of them that there is no case. Sometimes there is negligence but no injury and sometimes there is injury but no negligence. It is not possible to assess the chances of success in clinical negligence cases at the start of the case. There must be funding to find out if there is a case and for the higher cost cases. I follow the noble Lord, Lord Faulks in his pointing out that whether the issue is negligence or causation, expensive expert medical evidence is required to establish a basis for the claim before a decision to proceed is made.
The Government propose to remove legal aid for clinical negligence at the same time-I repeat, at the same time-as changing the no-win, no-fee agreements. I am grateful to the noble Baroness, Lady King, who pointed out to me that children who were said to be still covered for clinical negligence cases are not to be, on which I am sure she will expand. When Sir Rupert Jackson published his proposals, he said:
"I stress the vital necessity of making no further cutbacks in legal aid availability or eligibility ... the maintenance of legal aid at no less than the present levels makes sound ... sense and is in the public interest".
His proposals are based on the continuing existence of legal aid. Its removal will deny access to justice to some of the most vulnerable groups in the country-children, the sick and disabled. The need to streamline costs and for systems to be efficient should not be at their expense.
Lord Dubs: My Lords, anyone who has had elected office as a Member of Parliament or as a local councillor will know how important it is to be able to advise constituents to go to a local law centre, Citizens Advice or even legal aid solicitors. It is perfectly clear that the Government's proposals will hit the most vulnerable. All the figures point to that: 85 per cent of people who got legal aid were among the poorest 20 per cent of the population. It is clear that the vulnerable will be hit particularly hard. There is also the specifically even more shocking issue that there will be no more legal aid for children who are the victims of medical accidents or negligence.
It is clear that early intervention when people have difficulties is a much quicker way of resolving their problems. It is also more economic. To take the all-too-common case of someone who gets into rent arrears, if they get advice at an early stage, the situation can be dealt with and they do not become homeless. If it is left for too long, they would become homeless, at which point they may get legal aid, but it is costly for the public purse and awful for the individual concerned. We have already heard the statistics about the savings there could be from early intervention as opposed to leaving it late and more public money having to be spent.
I was shocked, as were other noble Lords, to learn that, in the Government's view, domestic violence is now to be the gateway to receiving legal aid in relation to family law. This is turning the matter on its head because fear of violence often is the key issue-more than the violence itself. Certainly, people could turn this on its head and say that violence is being used in order to get the benefit or that such an accusation is being made.
It is increasingly clear that the procedures governing immigration, education, employment, welfare benefit and so on are becoming more and more complex. Certainly, going to a tribunal requires expert help and advice. Without it, most people will not be able to manage the process. Legal advice is helpful in that it can persuade people that, if their case has no merit, they will not proceed to a tribunal, so a saving is made. According to the Child Poverty Action Group, in 2010 some 50 new statutory instruments covering social security, housing benefit and tax credits were produced. These are complex matters and it is hard to see how people, with the best will in the world, can secure their rights without expert help.
It has been suggested by the Government that telephone advice might work. Of course it will work for some people, but anyone who has had a constituency knows that people come along to the surgery with their documents. They demonstrate their difficulties by showing you the bills they cannot pay and so on. It makes the matter much clearer than it would be on the telephone. Further, urging people to use telephone advice will be particularly damaging to the more vulnerable and the poorer social classes.
I shall finish on a specific issue, that of forced marriages. I attended a meeting here earlier in the week on this subject. These cases mainly concern women who are usually very vulnerable and have no money. By definition their families cannot help them because it is the families who are often the cause of the problem. What can these women do? We have the Forced Marriage Protection Order which can provide some help. But, frankly, accessing that order without legal help is virtually impossible. It is quite a widespread problem. Estimates of any accuracy are difficult to come by, but the joint Home Office/Foreign and Commonwealth Office Forced Marriage Unit was approached last year by nearly 2,000 women. Other estimates suggest that forced marriages may run at between 5,000 and 8,000 cases a year. The only safeguard, or bit of a safeguard, is the Forced Marriage Protection Order, and I do not understand how it can be accessed without legal help.
Lord Hart of Chilton: My Lords, when I arrived in the Lord Chancellor's Department in 1998, my experience of legal aid had been limited to the pro bono activities of my firm, Herbert Smith, which, from a position of economic comfort, nevertheless looked across the City boundaries to the much poorer London boroughs of Tower Hamlets, Hackney and Islington, and made contributions to, among other things, local law centres. I shall come back to those in a moment. So it was only in 1998 that I realised the enormity of the legal aid
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Budgetary restraint that was increasing year by year meant that the greater priorities of health and education placed heavy restrictions on funds for legal aid. This was compounded by the fact that the first claim on such funds went to criminal cases where there was a priority to defend those who faced the prospect of loss of liberty. It was impossible to ring-fence a fund earmarked for civil legal aid. Yet, when I began to make visits to law and legal advice centres, to citizens advice bureaux in the inner London boroughs such as Tower Hamlets and Southwark, and to major cities outside London such as Bristol and Nottingham, I was immediately impressed by the need for greater investment in providing help and advice towards solving civil problems before they involved the courts.
The spiral of decline triggered by one event leading to another was all too obvious from the case studies I saw. For example, loss of income caused by unemployment could lead to debt, which in turn could lead to homelessness, which could lead to domestic violence and bring about marital breakdown, then to ill health in the short and the long term, both physical and mental, along with harmful negative effects on children and their educational performance, thus affecting their future life chances. Of course, the dominos do not all fall at the same time, but the spiral is well documented. I was particularly impressed by the work of Professor Dame Hazel Genn at University College London in her book, Paths to Justice, and she was a great help to the department in my day.
I also pay tribute to the selfless work of those in the law centres and agencies whom I observed at first hand. There were no handsome salaries to compare with the private sector and many were volunteers. Local authorities were unable to offer much help, and it was left to us to provide the seed corn. The law centres correctly pointed out that early advice and intervention could help break the spiral of decline. It was also self-evident that each of the components of the spiral brought with it economic costs for society as a whole. It therefore followed that early successful interventions would not only save costs, but also prevent problems escalating. A cost-benefit analysis outlined by Citizens Advice in July 2010 demonstrates the advantages of early advice in respect of housing, debt, benefits, employment and family. In monetary terms, the benefits are enormous and are real value for money, vindicating the principle and justifying the amount of civil legal aid as a worthwhile investment.
I am proud of the fact that the previous Government introduced the Community Legal Service and, notwithstanding the fact that they were faced with a growing need to effect savings in the legal aid budget, which they did, they always sought to protect social welfare law. My fear is that those who I saw making such a valuable contribution by providing immediate help to those in the most urgent need of it will now be faced with a setback from which it will be difficult to recover. In response to the suggestion that the voluntary
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The legal profession can be justifiably proud of its record of pro bono activities. It has provided millions of pounds' worth of endeavours in that respect. I have checked the policy of my former firm on what is now called corporate responsibility, and the corporate responsibility plan at my wife's firm, Norton Rose. They are impressive policies, like many of those adopted by other City firms of solicitors, but they just will not be able to close the gap that will open up. In spite of the outstanding achievements of these policies, even all of the City firms put together will not provide enough to cover the expected shortfall in the inner London areas surrounding the City, let alone the rest of the country. We must also remember that local authorities are still strapped for cash and therefore unlikely to be able to help. I hope that the Minister will explain how advice deserts, as they have been called, in some of the most deprived communities in the country, are to be avoided. Without more civil legal aid, I cannot see how they can be.
The Earl of Listowel: My Lords, I also thank the noble Lord, Lord Beecham, for tabling this timely debate. I share the respect and admiration of the Government for the work of the voluntary agencies in this area, but as the previous speaker said, it is hard to see how they can meet the depth of need. I should like to concentrate on two issues, one of which is the separate representation of children in family court proceedings. It is important that, when parents are fighting with each other, the child's voice is not lost. I would like a reassurance from the noble Lord that tandem representation of the type developed by the National Youth Advocacy Service is not denied to children because of these changes and cuts. I want also to focus on the impact of the lack of access to justice for young people and adults who have been in local authority care. Despite welcome investment and attention both in policy and legislation, for many young people, care has been an appalling experience. It leaves them vulnerable in later life to succumb to many of the problems that have been described today. Many of them deserve redress for the way they have been disappointed.
At a meeting held yesterday of young people in care, care leavers, foster carers and social workers, a young woman talked about being in care but separated from her siblings. There was another report of siblings being split between several different foster carers. We heard about the anguish of the young person involved as they lost touch with their siblings, and the sense that no real attention was paid to the need to keep in touch with brothers and sisters. We heard from a young man who had had 20 different placements during his years in care. Another young woman had had five different social workers within the last two years. We also heard about the instability that continues to affect care.
We also heard about the welcome report from Professor Eileen Munro into how social work can be streamlined and improved. I pay tribute both to this and the
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We heard at the same meeting a barrister who had been in care speak about his admiration for a young person who had gone to court to seek redress from his local authority for the way that he had been treated and how he stood up for his rights.
I should like reassurance from the Minister that young people and adults who have been disappointed by the treatment that they have received in care can have access to justice in order to get the support they need; for instance, in paying for counselling and therapy.
It is very important that the voice of children in family courts is not lost, that they continue to have separate representation when that is appropriate, and that there is every opportunity for young people leaving the care system, and adults who have experienced it, to get redress for the way that they have on many occasions been denied their right to family life and for the disappointing treatment that they have often received.
Lord Haskel: My Lords, normally I do not trouble your Lordships on legal matters-they are way above my station. I normally speak on more lowly matters such as business and industry, science and technology. But on this occasion I felt that my noble friend's case was so strong and so compelling that I wanted to show my support. So with apologies to noble and learned Lords for trespassing on their territory, let me try to put this case in a way that we practical people see things.
The first thing that we look at are the numbers. Legal aid is a big number and is paid by a small department, the Ministry of Justice. Is this a true picture? In the world of business, we are pretty good at presenting numbers so as to project the impression that we want to give. Is this being done here?
Many noble Lords have spoken of legal aid in health, housing, employment and criminal negligence. Surely these are matters for their respective government
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We technologists are very keen on understanding the theory behind things, how they work and why they happen. We like to understand the cause so that we can foresee the effect. If there is a theory that we cannot understand, we rather think that there is something phoney behind it.
So what is the theory behind cutting legal aid? We know the effect, but what is the cause? Justifying it simply by the need to save money, as I think the noble Lord, Lord Faulks, was doing, is intellectually very weak. It will be to the lasting shame of this Government if we come to look back on things and say that the only reason that we could find was that we could not afford it. So can the Minister be intellectually more robust and explain these civil legal aid cuts in terms of the rights and wrongs of civil legal aid rather than just saying that we cannot afford it?
In my world, we are very keen on testing, both in theory and in practice. We are very suspicious of things that are done in a blinding rush before they can be tested, because that is the way that mistakes are made.
Now, we all know why this Government are in a rush. They have read Tony Blair's book, where he says that his biggest regret is that he did not get on with doing things straightaway. What he did not say in his book is that we spent a lot of time thinking and discussing our way through problems, looking at alternatives, consulting, learning from other people's experience and trying out different ideas in White Papers and Green Papers so that the best one won, so that policies such as Sure Start came out of several false starts.
Everybody in my world thinks that that is the best way of ensuring success. I find this careful preparation and testing absent in the Government's attitude towards civil legal aid. Surely we owe it to those who depend on it to search for alternative solutions, such as the reduction in costs mentioned by my noble friend Lord Beecham or the matters referred to by my noble friend Lady Sherlock and the noble Lord, Lord Thomas.
Other noble Lords have spoken about injustice, about unfairness, and they are of course absolutely right to raise it. But in my world we seek fairness not only because it is morally right but because, once it is absent, harm starts to happen. In the practical business world, when harm starts to happen, things start to go rapidly downhill. Purely to avoid trouble, will the Minister review the fairness and the injustice of the Government's decision?
It may well be that the Government do not care for that section of the community that depends on legal aid, so all the things that we have said do not really matter. But I do not think that that is the kind of society that we want to live in. It certainly matters to me.
Baroness Kennedy of The Shaws: My Lords, my noble friend Lord Haskel asked why these cuts were taking place. I want to quote to your Lordships something that Jonathan Djanogly, the justice department Minister in charge of legal aid, said at the Conservative Party conference last year. It shows an attitude to legal aid which is to misunderstand it. Mr Djanogly seemed to suggest that legal aid might be a good way of keeping busy women who wanted to return to work after maternity leave. He said:
Mr Djanogly spent 21 years in practice with the wealthy international commercial law firm SJ Berwin and earned sums which we associate with top bankers. It may well be that lawyers such as he have no understanding that someone would choose to do legal aid work not because they are looking to fill in, not because they have come back after having babies, as I did, but because they chose from the beginning to give voice to those who are usually voiceless within the system.
I have spent my life doing legal aid work and I have done it through choice. Chambers such as mine win the pro bono awards every year despite the fact that all of our lawyers are legal aid lawyers. Why do they win the prizes for pro bono? It is basically because their life experience in the courts gives them necessary expertise in these areas, so that when they come to do pro bono they are not filling in-or coming like a grandee to offer kindness and charity to the poor-but coming with expertise on welfare rights, employment and what it is like to be poor and on the margins. The starting point is wrong and misunderstands the purpose of legal aid. The purpose is set out in the 1949 legal aid Act: to ensure that no one will be financially unable to prosecute a just and a reasonable claim or defend a legal right.
As I have previously told the House, I chair Justice. We have a number of concerns with which I can deal briefly because most of the other contributors to the debate have pointed out the things that I wanted to say. I reinforce the view that the cuts to the scope of legal aid will be particularly damaging to social welfare law, employment, housing and education for the most disadvantaged. I am concerned about how that will impact on those with special needs, the mentally ill and so on.
We have to test and question some of these ideas in the House because legal aid will not be well defended by the public. Generally, if it is health or education, the public will rally, but they will not do so around legal aid because they think that it is about fat-cat lawyers. The reason for that is a malevolent combination between sometimes government Ministers and the media. It has never been my experience that fat-cat lawyers do legal aid; the vast majority who do are usually committed, decent, good people who are fairly slender and certainly not living high on the hog.
A number of the ideas are certainly worth exploring-for example, the idea of a call centre as the first point of access for the many people who do not know how to start finding a lawyer. However, it should be piloted
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I am also worried about the removal of legal aid from matrimonial cases because of the inequality of arms that it will create for women. So often in the courts already the male spouse is privately represented and the female spouse is legally aided and represented by a legal aid lawyer. She will be cut out and, as the noble Lord, Lord Thomas, said, this may well drive people to make allegations of domestic violence. Even where there has been some domestic violence it is usually not pursued for strategic reasons, because it would not be good for the children to hear rehearsed the details of what happened inside the relationship between the parents. That might lead to undesirable consequences.
I am also concerned about clinical negligence cases. Given the high initial cost of establishing liability, removing legal aid completely will mean that poor people who suffer terrible things within our hospitals will not be able to sue.
The proposals are rushed and, rather like the National Health Service proposals, they need to be given time. I ask for a little let-up and that we examine the proposals before rushing into a folly that will have serious consequences for the poor.
I declare an interest. My daughter is a lawyer practising in legal aid. However, I am not just standing here as a proud father: I have an interest in this topic and I am concerned, as noble Lords will see from what I say in these few minutes, with the knock-on effects in areas such as health and social welfare, which I do indeed know a lot about.
As a layman looking at these proposals I can see that the starting point of reducing dependency on the law and finding better ways to solve disputes is a good aim. I can also see that setting priorities and justifying the use of public funds is entirely appropriate. As a former permanent secretary I understand this well-but I also understand that the devil is in the detail and that there will be unintended consequences that must be managed and mitigated. It is particularly sad in this case that these unintended consequences can clearly be foreseen now. A large part of what is being proposed is about limiting the use of legal aid to crisis points, such as the point at which you lose your house, domestic violence, serious disrepairs and so on. That first begs the question of how well these are defined and interpreted. Then, picking up the powerful points made by the noble Lord, Lord Thomas, and others, there is the perverse effect of having to up the ante so that the problem is at that level before you can receive any legal advice.
There is another point. For many people seeking legal aid, the issue that they present with is one of a complex of other issues, not their only problem. Many people have housing problems. They may have health or mental health problems, they may be out of work
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The Government have also argued in their proposal that alternatives are available. Maybe it is entirely desirable that there should be alternatives available to reaching for a lawyer when you are in these sorts of problems-but are they available? From what other noble Lords are saying, there seems to be a great deal of evidence that there is no guarantee of reliably high-quality advice available elsewhere or everywhere. The point for the Government in making these proposals is that this is an eminently foreseeable problem. How are they going to make sure that alternative services for advice and help really are available-and available to the most vulnerable? In parenthesis, I take the point on the difficulties of having a single source of entry from a telephone system. The reality is that when you are dealing with people with multiple problems and issues you need to look at a range of different channels to reach them, not just one.
I also note that the Government have done an impact assessment of these proposals. Not only are there problems that can be foreseen, but they have foreseen them. They raise a long list of possible problems about social cohesion, increased criminality, the impact of resources on other departments, and a recognition, in their words, that,
On health, they recognise that there may be a potential negative effect on health. I will give some simple examples for which there is plenty of evidence. First, on health and housing, we know that unrepaired, damp houses affect both the mental and physical health of adults and children. Research by the LSE for the Department of Health shows that debt advice can not only lower costs for the health, social care and legal systems but can also reduce the risk of individuals developing mental health problems.
Finally, having done that assessment, what are the Government going to do about it? What policies will be put in place to mitigate and manage these problems which are affecting and will potentially affect the health of individuals? There may be unintended consequences of these policies but they are foreseeable. Indeed, the Government seem to have foreseen them.
Lord Touhig: My Lords, when my noble friend Lord Beecham opened the debate, he told us that the Government had underestimated the number of people who will be denied funding as a result of their changes to legal aid. The Legal Action Group, which discovered this error, stated that the Government had "grossly underestimated" the impact of their cuts. The error came about because the Government chose to
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It is clear from these findings that the number of people seeking help with legal problems is far higher than the Government estimated that it would be. The Law Society's chief executive, Desmond Hudson, said that it is,
At present, legal aid is available to the poorest parents of children with special educational needs who appeal against decisions made by their local councils about additional support for their child. That is as it should be given the fact that 82 per cent of parents win their appeals and 30 per cent of the appeals are conceded by the local authority even before the case reaches a tribunal. Yet the Government now propose to remove all legal aid where it relates to matters of special educational needs. While discrimination claims would still receive support, for many parents the only way to get the help that their child needs is through appeals to the Special Educational Needs Tribunal and support for these will be withdrawn.
The Government seek to justify its removal for three main reasons. First, they say that the education of children cannot be accorded the same level of priority as other important issues. Surely, access to a suitable and challenging education is the right of every child, and if they miss out on such an education they are disadvantaged for the rest of their lives. Disabled children already face many barriers in society, and a failure to provide them with a suitable education puts them at an even greater disadvantage. While the Government have taken some welcome steps to support families with disabled children, they threaten to undermine this by withdrawing legal aid, which many families need to ensure that their children get a decent level of education. The importance of providing an appropriate education to all children, especially those with special educational needs, is such that it should be given the same priority as other important issues.
Secondly, the Government say that they do not believe parents and carers bringing cases like the ones I have mentioned to be particularly vulnerable. But the consultation document from the Ministry of Justice recognises that disabled children are more likely to live with one or more parent who has a disability. Equally, the parents of disabled children are more likely to be in poverty or in single-parent families. These facts make nonsense of the Government's statement that the parents bringing these cases are not likely to be particularly vulnerable. The withdrawal of legal aid in such circumstances risks taking away support from parents who are already financially disadvantaged and pushing even more families with a disabled child into poverty. Surely that renders such parents particularly vulnerable and means that they should be given the support they need rather than making them the victims of these cuts.
In addition to making the wrong decision when assessing the vulnerability of parents, the Government in their equality impact assessment failed to consider the impact of withdrawing legal aid on the children themselves. Some 60 per cent of pupils who leave school without GCSEs have special educational needs, and they are not likely to be in education, training or employment at the age of 19. Taking away legal aid from parents who are supporting these children is an absolute disgrace.
Finally, the Government believe that there are sufficient alternative sources to justify the removal of legal aid in these cases. To support the argument, they identify the parent partnership service, the Advisory Centre for Education and the Independent Parental Special Education Advice service. The advisory centre and IPSEA already have more requests than they can cope with and the parent partnership service is facing huge budget cuts by local authorities. Therefore, legal aid will be at risk.
None of the Government's reasons for withdrawing legal aid from those with special educational needs stands up to scrutiny, and I hope they will think again. In a civilised society, this cannot be justified.
Baroness Turner of Camden: My Lords, I also am concerned about the proposed cuts in the provision of civil legal aid, to which a number of noble Lords have already referred. In his introduction to the consultation paper, the Justice Secretary claims that the proposals are justified because legal aid has expanded to cases that should not require legal expertise to be resolved. In some cases, the right to civil legal aid will be retained-for judicial review, homelessness and domestic violence, among others. On the down side, the largest casualty will be private family cases where there is no element of domestic violence or false marriage. Many women who currently get legal aid for ancillary relief will be directed to mandatory mediation, and that is all. Their former partners, if unco-operative, will simply wait out the inconvenience and continue their intransigence. But there is an even worse aspect.
Legal aid will be denied in cases of children who have been victims of medical negligence. It is really awful to think that a child, who could have been disabled perhaps for life as a result of medical negligence, would have no redress. I understand that the Government say that under no-win no-fee arrangements child victims will be able to sue for compensation. However, it seems that those arrangements are under review by the Government. Anyhow, I think that it is an entirely unsatisfactory response.
Those who lose out will be mainly women, their children, and the disabled. Those with disabilities will be disproportionately hit by cuts to areas such as clinical negligence and education, and children such as those fighting cerebral palsy, birth injuries and those requiring additional educational support will be cut out of entitlement.
In the words of a well known lawyer writing in Counsel, the journal of the Bar Council, the consultative paper destroys the coherent national system of legal
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A section of the consultative paper deals with employment, and here the Government seem rather confused. The paper refers to "user-friendly procedures" available via the tribunals, where individuals can in effect represent themselves so there is no need at all to provide legal aid in an employment context. The present arrangements are described in glowing terms. However, over at the Department for Business, Innovation and Skills an entirely different view is taken. The Business Secretary is now in favour of proposals that make it easier for employers to dismiss workers and more difficult for workers to make claims for unfair dismissal.
To get to a tribunal at all a worker will have to pay a fee, perhaps a large one, and it will not be the nice friendly tribunal envisaged in the Justice Secretary's paper-oh no. The lay sidespersons currently on tribunals, who are representative of both sides of industry, are to be withdrawn. The unemployed worker must put his case to a judge sitting alone, so a so-called nice friendly set-up is to be transformed into an entirely legal one, with, of course, no assistance provided.
There is only one piece of advice that I could give to an employee: if you are not yet a member of a trade union, join one as soon as you can. Unions are skilled at representing their members, and the Government are introducing an environment in which you will need all the protection you can get.
Baroness King of Bow: My Lords, in the time available I want to make three points about the proposed cuts to civil legal aid. First, the cuts target the poorest but reduce standards for all of us. Secondly, the cuts in their present form actually increase costs to the taxpayer. Thirdly, not only do they restrict access to justice but, as we have heard, they specifically remove legal aid from children who are victims of medical accidents or negligence.
I find that almost unbelievable. Who in their right mind would think that it was an acceptable idea to remove legal aid from a child who had been disabled for life due to a medical accident or, still worse, negligence? I have written to all noble Lords asking them to write to the Prime Minister on this point because I feel so strongly about it. Regardless of our politics, I do not believe that there is a single one of us in this House who thinks that that is a good and proper thing to do. I hope all of us believe that Great Britain should be a country that provides legal aid to children who are victims in these circumstances, not one that would deny those children any recourse to justice.
Giving Members on the government Benches the benefit of the doubt, what on earth is this about? Even more perplexingly, this is not just about saving money; if it were, the Government would welcome the Law
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Coming to perhaps the most salient point, it is not just the poorest who will suffer. We will all suffer. If we do not have legal aid to challenge Rachman-type housing, for example, housing standards will not improve. If we do not have legal aid to challenge medical negligence, care in the health service overall will not improve. We see how case law in Britain protects all British people. Look at the Hillsborough disaster, the thalidomide case and the Clapham rail crash; all involved elements of civil legal aid and led to safety improvement, whether for healthcare, stadium safety or transport. Therefore, although evidently only the poorest qualify for civil legal aid, the resulting case law protects us all. We will be worse off if this goes through as currently planned. I ask the Government to think again and for intelligent cuts. None of us thinks that no cuts should be made, but they should not be self-inflicted cuts that will wound this country grievously.
around medical negligence, again using a lot more words. Which is it? I know the Government have said that it was an accident and that they did not mean to give children that cover. However, the good thing about such a contradictory Green Paper is that the Government can do a U-turn and say, "Oh, that is what we were thinking all along". That is what I hope they will do. Please step back from these proposals. It is bad enough to remove help from the most vulnerable, but to do so when it seems clear that it will increase costs to other departments is frankly insane. I shall write to the Minister with a full list of examples of how costs will increase in other departments.
I fully realise that in this House a law we often pass is that of unintended consequences. However, here the consequences are clear. I implore the Minister to commission an impact assessment before going further with something that could severely damage this country's fantastic justice system.
Lord Bach: My Lords, I thank my noble friend Lord Beecham for instigating this debate and all noble Lords who have spoken in it. There can be no doubt that this debate is both timely and vital. It is timely because the Government are, we are told, close to announcing their decisions on their consultation paper of last November. It is vital because if the Government stick to their Green Paper proposals, the system of
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These proposals are nothing short of an attack on the poor-no more and no less. They are the wrong cuts at the wrong time and hurt the wrong people. It is therefore hardly surprising that many groups have banded together to try to persuade the Government just to think again. This debate is part of that process. I pay tribute to Justice for All, the umbrella group that covers many groups that have taken up this cause, and to the Law Society and the Bar Council. I also pay tribute to many Members of another place from all political parties, who have said: first, that this is wrong; secondly, that there are alternatives; and, thirdly, that to implement the proposals as they stand would be disastrous, uncivilised, discriminatory and hugely counterproductive.
Of course, there must be cuts. We accepted that when we were in government, and we accept it now. Indeed, we cut legal aid, controversially in some cases. If we had been returned to government at the previous election, we would have made some cuts, but not as many, nor as fast as the proposals that we are discussing. We would probably have made cuts in the field of criminal law following the publication of our White Paper Restructuring the Delivery of Criminal Defence Services, which was published in March 2010. Those substantial cuts would have been controversial, but not as substantial as this Government's. However, when we were in government we refused point blank to cut social welfare legal aid. Indeed, we increased it from £151 million in 2007-08 to £208.4 million in 2009-10-our last year in office.
We also raised the financial eligibility limit for civil legal aid by 5 per cent in 2009, making it possible for many more people to receive the legal help that they needed. Now the Government propose to cut eligibility significantly. The ministerial achievement of which I am perhaps most proud was that of saving the South-West London Law Centre from closure. At a time of economic difficulty it is madness to cut legal aid in this way, but the Government intend to do so. If legal aid does not give at least some access to justice for those who are dispossessed or disadvantaged, whether through poverty, bad housing, unemployment, low wages, the colour of their skin or their mental and physical health, what is the point of having a legal aid system?
The case has perhaps never been as well put as by Helen Grant, the new Conservative Member of Parliament for Maidstone and The Weald, in an article in a national newspaper in February this year. The article states that,
Common sense and the expert research of Professor Hazel Genn and others, mentioned by my noble friend Lord Hart, tell us that early legal advice changes lives.
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As has been said, the lawyers who practise this type of law are not well paid. Some of them have given up the possibility of well paid careers in other areas of law. Yet the Government plan to take 10 per cent from each modest fee that they receive for giving social welfare advice. We know that a number of CABs will not be able to carry on, and that private solicitors, who have been under pressure for some time, may be tipped over the edge. However, we should also state clearly that the law centre movement, which does so much for the dispossessed and underprivileged in our society, is likely to be crushed. There is a proposed 77.6 per cent reduction in funding for legal help and an 83.6 per percent reduction planned in the number of legal help cases, all at the same time as local authority spend is falling. Whether intended or not, these proposals may well destroy law centres, with a disastrous effect on their clients.
Why these proposals? On the whole, previous Conservative Governments have been generous in their support for legal aid. The Liberal Democrats have demanded more money to be spent on legal aid-they demanded that of us and criticised our cuts. They, too, have argued for social welfare law. How can Ministers have signed up to these proposals? My own view is not that Ministers want to play the role of the wicked uncle who wants to destroy anything good he comes across. It is simply, and here I follow my noble friend Lady Kennedy of The Shaws, that they just do not get it. Their view of legal aid is very limited and old-fashioned, so they do not see its relevance to social welfare law. Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty's Government should stop this 1984 Orwellian-type misuse of language.
In my view, however, the Minister who is to reply to this debate does get it. His whole political history shows him to be someone who understands the importance of what is about to be destroyed. Our request to him is: please fight these proposals within your department and do not let these fundamentally anti-liberal measures be implemented. He enjoys a huge reputation in this House, both personally and politically. If he were to succeed in mitigating these proposals, that reputation would soar even higher. Why should he bother, he might ask? Legal aid is not his portfolio but someone else's. He should bother
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My objectives in politics, like those of most people in this House, are of course of a moral kind. I did not come into politics to hurt the poor but there is the fact-in this I am not playing the usual party political game-that when we came into government we also came into the biggest financial crisis that this country had faced in 80 years. The noble Lord, Lord Bach, knows full well-because his own Government were planning cuts-that whoever the Ministers were going to be, they would be faced with tough, hard decisions.
To govern is to choose and every department has had to make tough decisions. I do not resile from these. If you are in a department which has only three big-ticket items-prisons, probation and legal aid-and you are asked, as part of the contribution to economic recovery, to find £2 billion in savings, you will have to look at those three big-ticket items. In looking at legal aid, we have tried to look in the most compassionate way at the scope of the areas that we cover. I have answered questions before on this subject. If part of your government system is targeted on the poorest sections of your community and you cut that budget then you are going to hurt those sections of the community. That is the same thing that is happening with local authorities around the country and other departments in looking at their various budgets. It is too easy and I have to say that even with the noble Lord, Lord Bach, at the end, not one of the speakers actually put forward a hard choice as if they were at this Dispatch Box. It is all right to say that we have plans to raid criminal legal aid, or the Law Society is going to shift the cost on to the drinks industry, or-I think the jargon is "the polluter pays"-that it will be spread around Whitehall, but even spreading it around Whitehall leaves the Exchequer with the need to save the money.
I do not doubt the passion that has been expressed today and some very valid points have been made. I will try to deal with specifics as I go through. We are still in consultation. I cannot say that the consultation is going to produce some Pauline conversion at the last moment. As I say, we have made a commitment to savings and we intend to deliver them. What we have tried to do is to look at the whole philosophy of the system of legal aid, which a number of speakers acknowledge had grown and expanded since its introduction in 1949. I went to see the noble Lord, Lord Hutchinson-Jeremy Hutchinson from the Liberal Benches-who is now, I think, 96. He is in splendid form, although he no longer attends the House. He was part of the generation that created the legal aid system. He said to me that their hope then was to
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Before addressing the particular points made in the debate, I wish to reiterate briefly some of the considerations the Government bore in mind in making these proposals. The context of the Government's overall reform is, as I have said, to tackle the deficit we inherited on entering office. Last October the spending review set out the scale of the challenge facing the Ministry of Justice. However, as the Government have stressed, we know that our policy cannot be determined simply by dealing with the deficit-nor are we doing so. There is considerable potential for reform within the justice system. Our legal structures and our legal aid system are capable of reform. Therefore, financial considerations and the need for reform come together.
There are many reasons why we believe it is necessary to reform legal aid, many of which have been acknowledged today. Since the modern legal aid system was established, its scope has been widened far beyond what was originally intended. By 1999, legal aid funding was available for virtually every type of potential issue, including some that should not require any legal expertise to resolve. The scheme now costs more than £2 billion a year, making it one of the most comprehensive schemes in the world, even taking jurisdictional differences into account. We need to understand that even after reform we will still have one of the most expensive schemes in the world.
In developing our legal aid reform proposals, we went back to basic principles to make choices about which issues are of sufficient priority to justify the use of public funds, subject to people's means and the merit test. The proposals in the consultation paper aimed to take into account the importance of the issues at stake, the litigant's ability to present their own case, the availability of alternative sources of funding and alternative routes to resolving the dispute, as well as our domestic and legal obligations.
To focus financial support on the areas where it is most appropriate and most necessary, the proposed reforms involve significant change to the scope of legal aid funding. We did not propose any change to the scope of criminal legal aid, and it was also proposed that legal aid will still routinely be available, as a number of colleagues have said, in civil and family cases where people's liberty is at stake, or where they are at risk of serious physical harm or immediate loss of their home.
For example, we proposed to retain legal aid for asylum cases, for debt and housing matters where someone's home is at immediate risk, and for mental health cases. Legal aid will still be provided where people face intervention from the state in their family affairs that may result in their children being taken into care and for cases involving domestic violence-I note the comments that have been made on that-forced marriage or immigration cases where the appellant's
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However, prioritising those areas requires that we make clear choices about the availability of legal aid in other areas. We therefore proposed to remove from the scope of the scheme issues that are not, relatively speaking, of sufficient priority to justify funding at the taxpayer's expense. We proposed to cease providing legal aid support for private family law cases unless domestic violence, forced marriage or child abduction is involved. Too often, the long drawn-out acrimonious nature of court proceedings exacerbates disputes between couples, rather than solving them. Under our proposals, we would continue to provide funding for mediation to encourage couples to use more effectively methods to resolve issues between themselves, rather than using the courts. We are not proposing mediation as a cure-all in place of litigation, and I will say more on that shortly.
The Government further proposed to remove from the scope of the civil legal aid scheme claims of clinical negligence, where, in many cases, alternative sources of funding are available, such as no-win, no-fee arrangements. Again, I note the points made on that. We also proposed to remove from scope the categories of employment, education and immigration, some debt and housing issues, and welfare benefits. There would be exceptions for some of these cases where there is a risk to anyone's safety or liberty, or a risk of homelessness, or discrimination. In many of these cases, the issues are not necessarily of a legal nature, but require information, practical advice or other forms of expertise to resolve.
We recognised that there would be some cases within the areas of law that we proposed to remove from scope where international or domestic law would require funding by the taxpayer. We therefore proposed a new exceptional funding scheme for excluded cases. However, I say to my noble friend Lord Faulks that we will take a very hard look at issues on the international side. There will not be an open cheque-book on that.
We are looking at the impact of the reforms on existing claimants and various groups who would no longer have access to legal aid. We recognise that the proposals would have some impact on existing claimants or various groups if issues no longer fell within the scope of legal aid. However, that does not mean that people would be unable to resolve their issues. Straightforward mechanisms are often available to assist. For example, legal representation is not currently available in many tribunals, such as on employment matters, because they are designed to be used without legal aid. We published initial impact assessments and equality impact assessments alongside our consultation. Partly in answer to the point raised by the noble Lord, Lord Touhig, we will update the impact assessments when we publish the final response.
There is limited evidence about the impact of the proposals on case length for litigants in person, and the findings are mixed. However, we are seeking to simplify the procedures, forms and guidance available to those using the courts in person.
We recognise that mediation may not be appropriate for all individuals but it is important for them to consider it as an option, and we are currently making its use easier for individuals. When successful, mediation may hold considerable advantages, as it can be a cheaper, quicker and less acrimonious process than contested court proceedings.
Public funding for family mediation has been made available for more than a decade and this has proved to be a successful policy. On 6 April, we introduced a pre-application protocol for family mediation information assessment meetings. Any individual-self-funded or public-funded-will be expected to consider mediation before beginning proceedings. However, family proceedings in relation to domestic violence or emergency proceedings are expressly outside the scope of this requirement. This is a big step forward in improving awareness and encouraging take-up of family mediation.
On civil mediation, the Government are currently consulting on the paper, Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System. The proposals are to require all those involved in cases below the small claims limit to attempt settlement through mediation before being considered for a hearing, and to introduce mediation information and assessment sessions for claims above the small claims limit. We recognise that we cannot, of course, compel parties to settle but we can create a better environment within which settlement can be explored. The consultation closes on 30 June.
Perhaps I may now turn to some of the specific issues that I have not covered. The noble Baroness, Lady Sherlock, asked for a time lag. I am not sure that that can be done but I shall feed that suggestion back to colleagues.
The question of clinical negligence was raised by my noble friend Lord Faulks and by a number of other noble Lords, including my noble friend Lord Thomas of Gresford. This will undoubtedly be a matter for some debate when legislation reaches the other place and this House. Confidence over whether CFAs will cover that area will, I am sure, be hotly debated, and we can certainly consult Lord Justice Jackson again on that.
The noble Lord, Lord Dubs, was concerned about forced marriages. I had better double-check my notes before I sell the pass on this but I think that forced marriages will remain within the scope of legal aid. We propose to keep legal aid for those cases, including the power to waive the upper financial eligibility. I hope that helps.
I go back to the noble Lord, Lord Faulks, to say that we will look hard at requests under the human rights issues, and the Government want funding only on serious and significant cases. I will also feed back his concerns-they were expressed by others as well-about clinical medical negligence.
To the noble Baroness, Lady King, I say that the consultation paper was clear. I was passed it; it is around here somewhere. That document clearly states that we were going to take clinical negligence out of scope. If she sees a contradiction, I will be happy to talk to her about it. I too received her letter; there will clearly be a campaign on that issue.
The noble Earl, Lord Listowel, asked for assurance about children who need separate representation in family cases. Yes, we propose to keep legal aid for children where they have been made a party for the case in family proceedings.
I give full deference to the advice of the noble Lord, Lord Crisp, a former Permanent Secretary. However, in his long and distinguished career, I am sure that he too must have sat there with a Treasury demand notice and a programme of cuts to be pushed through.
I am now being tugged at; my time is up. If points were made on which I have not had a chance to reply, I will write to colleagues. I agree with the noble Lord, Lord Bach; this has been an extremely timely debate, because we are still in consultation. It has been extremely useful, because those who have contributed have done so from real expertise and commitment. We are listening. We have some tough decisions to take and we will not flinch from them, but neither will we ignore common sense when it is offered to us.
Lord Beecham: My Lords, I thank noble Lords who contributed so seriously and constructively to the debate, and others who indicated interest and support but were unable to attend. I cite in particular the noble Lord, Lord Newton of Braintree, who very much wished to be here. I extend my thanks and sympathy to the Minister, who struggled manfully with the constraints of collective responsibility-or, as some of us would say, collective irresponsibility. I am sure that he will take back the opinions, facts and suggestions from today's debate and that we will see at least some of them reflected in the legislation that is wending its way towards us. In the circumstances, I beg leave to withdraw the Motion.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, these regulations establish a new requirement for some employment and support allowance customers-those who are able to prepare for a return to work-to undertake activity that will help them move closer to employment. The regulations amend current rules to allow people assessed as being able to prepare for work to engage in activities such as training, CV writing or researching local employment opportunities.
The regulations are about extending a hand of support and giving a nudge of encouragement to people who have been out of work as a result of a health condition or disability, but who may be able to return to the workplace with the right level of tailored back-to-work support, primarily under the umbrella of the Work Programme. The regulations are deliberately non-prescriptive to allow this support to be adapted to the individual and to ensure that it is flexible enough to deal with fluctuating conditions.
The regulations apply only to those in what is referred to as the work-related activity group-people who can reasonably be expected to prepare for a return to work. We remain committed to providing unconditional support for severely disabled people who cannot work, but we have also made a commitment to support people with a disability or health condition who have the potential to work in future. We are convinced that work-related activity should form part of that support.
Some noble Lords here for today's debate met officials from the Department for Work and Pensions and me to look through some of the detail of these regulations. It was a very useful meeting and I hope that the forensic investigation has already gone some way towards allaying concerns.
For our purposes, I will take a few moments to set out for the House the history of the regulations. The powers that we wish to enact today are evolutionary, building on the work of the previous Government. They were taken by the previous Government in May 2007 but never brought into force. We believe that it is crucial to enact them as originally envisaged for new customers, but also to extend them to existing customers, providing the same level of support for all.
The notion that disabled people or those with health conditions should be able to access support to help them move closer to the labour market was in the Conservative Party Green Paper, Responsibility Agenda, published in January 2008. This paper set out, for the
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Convinced of the importance of providing back-to-work support for all customers by the summer of 2014, all current incapacity benefit claimants will have been assessed for ESA. Those customers placed in the work-related activity group will, if these regulations pass, be able to access this improved package of support. These regulations make participation in work-related activity part of the mandatory package. Quite simply, the evidence of the beneficial impact of work, even for those with a health condition or disability, is too strong to ignore. The regulations before the House today seek to ensure that, for those who can, taking part in activities designed to help them return to work becomes a normal part of the ESA regime.
I stress that these regulations do not apply to all ESA customers. The group we are particularly concerned with are those customers who make up the work-related activity group, who we can realistically expect to return to work at some future point. Once we have recognised that someone is capable of work-related activity, it is vital that we provide opportunities to engage with the labour market and offer support to identify achievable and sustainable work-related goals. These regulations provide for that support to be delivered, empowering individuals so they are able to take real, active steps to improve their chances of securing employment once their health or condition improves and they are ready for a return to work.
The regulations do not specify the type of activity that we expect this group to engage in. Indeed, the definition of work-related activity is deliberately broad, covering any activity which makes it more likely that the person will obtain or remain in work. However, there are some absolutes. We will not require customers to undertake medical treatment nor to seek, apply for or take up work. Beyond that, we do not want to be overly prescriptive. The emphasis is on the relationship between advisers and individual customers working together to tailor a plan of action that will always be reasonable, realistic and relevant.
Customers who do not participate in work-related activity will be sanctioned, and I know noble Lords have some concerns in this area. In response, let me just say this: there are safeguards in place to ensure that sanctions are not improperly applied. Sanctions will apply only to the work-related activity component of the benefit and will be applied only by trained Jobcentre Plus decision-makers, who will have the freedom and expertise to exercise their discretion. The decision-makers receive comprehensive training to enable them to seek out and assess all available evidence to
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The main question that the Merits Committee, which looked at this, was concerned about was adviser training and capacity. JCP will set the standard for employment-related personal adviser services in the UK, and Edexcel has endorsed the learning route ways for personal advisers and assistant advisers. We must avoid the mistakes inherent in previous employment programmes that sought to compartmentalise customers and offered only a narrow range of support options based on predetermined assumptions. Flexibility is the key, and the support provided through the Work Programme will be tailored to individual circumstances, including taking into account any ongoing health issues.
We will guarantee the quality of the support provided through the Work Programme by implementing a demanding payment-by-results structure without dictating to providers how those results should be achieved. This will give providers from the private, voluntary and public sectors the freedom to innovate and find out what works best for different customers, enabling them to deliver a truly tailored approach.
We know that some customers on the Work Programme will be much closer to the labour market than others. To ensure that providers do not simply focus their efforts on the easiest to help, we have designed the payment structure to give providers greater rewards for supporting those with the greatest barriers to sustainable employment, including some of those claiming ESA. To put it simply, we will pay more to providers who work effectively with the hardest to help. That sum is considerable and can be nearly £14,000 in some cases.
Earlier this week, I sent out a schedule of that payment structure for ESA customers. I shall touch on some of those figures. As a reference point, for the jobseeker's allowance customer group between the ages of 18 and 24, who we know should find work reasonably quickly, the maximum payment will be £3,800 as the contracts start. Within the model, there are now three categories of ESA customers. They are divided between those who are new recipients of ESA and those who have previously received incapacity benefits.
For those new ESA work-related activity group customers who have a short prognosis and are required to participate in the programme, we will pay up to £6,500 per person at the beginning of the contract. One can see the step up from the basic £3,800 being paid to the young JSA customers. For the ESA work-related activity group customers who volunteer for the programme-those receiving contributions-based ESA or with a long prognosis-we will pay up to £3,700 at the early part of the contract. We pay those customers less because, as they have volunteered for early access to the Work Programme, they are likely to be more receptive to support and therefore easier for providers to help than customers who are required to participate in the programme. There is also a financial structure behind this around how the DEL-AME switch works.
The final group are those who come off incapacity benefit on to ESA, and they will be paid up to £13,700 at the early stage of the contract. Our evidence suggests that these customers will be the hardest to help. Many of them will have spent many years receiving incapacity benefits before they move to ESA. The payments for the groups will change as the contracts develop, during which time we will introduce an incentive structure for some groups where a £1,000 incentive will kick in when the providers start to really perform.
The Work Programme is bigger than any previous employment programmes. It will serve a much wider range of customers, including those claiming ESA. Those customers who are self-employed or who have a contract of employment will be supported by Jobcentre Plus. All others will have the option of volunteering to participate in the Work Programme at any point after their work capability assessment. One of the key changes that these regulations would allow is to make participation in the Work Programme compulsory for those in the work-related activity group who have a short prognosis.
I am not going to address the work capability assessment at this stage. Perhaps noble Lords will want to raise it, although it has been debated in great depth recently. I suspect that the subject may have been aired well enough already.
We believe that, with the right support and encouragement, many more people can and should benefit from the opportunities presented by active engagement with the world of work. Undertaking carefully considered appropriate activity to improve job prospects represents a positive, realistic approach to avoiding long-term benefit dependence. I beg to move.
Lord German: My Lords, I welcome these regulations. As the Minister said, they have been in train for some time. Progress on the process of helping people into work has been going on for several years now, so this is part of putting flesh on the bones of a project that clearly needs to be accelerated. As always when it comes to detail of this sort, it is the delivery that will cause the most anxiety in people who are trying to anticipate the conclusions that result from the implementation of these regulations. I would sum this up in an overarching phrase, that of fairness and even-handed treatment in the personalisation process about which my noble friend has spoken.
It is important to note that this marks a cultural change for Jobcentre Plus, particularly as regards how the staff have worked in the past. I approve of that because it is important to empower advisers so that they can make choices and decisions in order to be able to help people towards what will suit their individual circumstances. The consequence of that is that the advisers will have more flexibility that will enable them to treat people in different ways. That will be a considerable shift. Some months ago we observed that there was absolute direction from the centre to Jobcentre Plus offices. That resulted in different interpretations being made on, for instance, the number of job applications you could have before you were sanctioned. That was not envisaged by the Department for Work and Pensions
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Personalisation, if we are going to take this perfectly appropriate approach, raises the spectre of a variation of views being offered to the same kind of people in different places. That is a consequence of offering freedoms. There are two counterbalances to that. The first is a lighter touch, but certainly some form of strategic approach set out in guidance from the centre to Jobcentre Plus advisers. Secondly, each Jobcentre Plus office should have some form of check and balance. People who feel that perhaps they have been treated unfairly should not have to go through a whole rigmarole, so advisers should themselves be subject to a check and balance to ensure that the decisions they take meet with the accord of their colleagues as well. In that light, words are very important. We have the word "appropriateness" to which I shall return later, and the term "good cause", which covers a subjective decision but is important because it provides the flexibility needed when looking at a case that has been made by a customer which stands up and therefore needs to be tested. Clearly, if this is going to be left open to advisers, we must note that one person's interpretation may be different from that of another. It is therefore important that a check and balance is available and that a sense of direction is given, but not in too heavy-handed a way that derives a distinct interpretation of good cause.
The personalised approach that these regulations give vent to will be more helpful if advisers themselves are able to access the full range of information about their customers. Why will the work capability assessments not be provided for the advisers? If they need to know about someone's abilities and disabilities, something is already written down about it. Surely it would be more sensible to provide advisers with access to that information so that they can have a full picture before them when they speak to the customer. Only "some" discretion exists for this information being available to Jobcentre Plus advisers. Why will they not have that full level of knowledge, which one presumes will be available online anyway?
There are some lessons to be learnt from the processes-they have been going through very recently. Professor Harrington's review pointed out that some considerable changes needed to be made to the way in which we handle customers. Those recommendations were accepted and are presumably being implemented as we speak. I should like an assurance from the Minister that those customers will be approached in the same way as customers who are carrying out their action plans for work assessments. I am anxious to
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I have a number of specific questions on the regulations. The regulations seem to say that there will be discretion for lone parents with children up to the age of 13, which seems to be the cut-off. Will that level of discretion be afforded to lone parents who have children between the ages of 13 and 16? I can think of two distinct examples. The first would be where a lone parent has a child who has some form of disability and needs to be at home when the child comes back from school. The second is the lone parent of a child who has come home from school. Despite their having told the child, "You are going to be on your own at home and you'd better look after yourself", somebody complains to the school, and the school comes back to the Jobcentre Plus and says, "Why have you forced this lone parent not to be able to look after a child properly?" Discretion should be given in this area so that account can be taken of the fact that some lone parents of children between 13 and 16 need to be at home when their children get home.
The data provided with the regulations show a heavily weighted spread of people who will fall into this group in different parts of the United Kingdom. I come from Wales, which is likely to have the most people wanting help, and I wonder whether my noble friend could indicate whether the support given to advisers will be related to the number of cases that they are likely to take up.
I have two final points on the regulations. The first relates to review and evaluation. Professor Harrington's work makes it clear that a continuing, rolling review of what has been done and whether objectives have been achieved is very important. This suite of regulations should not be exempt from that review either. Will the Minister consider extending the role of Professor Harrington to look at the impact of these assessments as well? The annexe to the impact assessment states:
I hope that the Minister will assure us today that the evaluation will, rather than is likely to, include some form of support for the regime of reviewing and making sure that it is absolutely correct.
Secondly, the Minister has just said that a big package of financial help will be provided for those who are furthest from the job market. He quoted the figures for the respective ESA groups: £3,700, £6,500 and £13,700. Those are large and sharp shoulders. In this discretionary and personalisation world in which we live, there are bound to be people who will fall just outside those boundaries on one side or the other. My noble friend referred to the issue of incentivisation payments: will they help to smooth out those shoulders? They are very steep steps and if you fall into one category it will be very difficult to get out over that shoulder.
My noble friend outlined particularly well the way in which these regulations will work but safeguards will be needed. The safeguard of reasonable behaviour by both the customer and the adviser is crucial. Will the advisers now have expert support, particularly when dealing with fluctuating conditions, mental health
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Baroness Thomas of Winchester: My Lords, I, too, welcome this short debate about what the state now requires ESA claimants to do in order for them to receive the full benefits they are entitled to. If what happens on the ground is what we are told will happen in the regulations, in the Explanatory Memorandum and in the papers that my noble friend kindly sent us, then everything should go relatively smoothly and the results could be extremely encouraging and very welcome.
However, I fear that for many of us the elephant in the room is still the work capability assessment. I agree with my noble friend that this is not the place to discuss this because the regulations are about activity at least six months after the assessment will have taken place. However, the elephant is still there, lurking in the background, and I, too, look forward to Professor Harrington's report on how the assessment deals with the two most difficult but commonest causes of people not being able to work-that is, mental health conditions and fluctuating conditions. I have been reminded this week about two fluctuating conditions which hardly get raised at all. They are both quite different from each other and make one realise how wide this field is: one is congenital heart disease, which is comparatively rare and completely hidden on the surface but can make someone feel fine one day and completely exhausted the next; and the other is Crohn's disease and ulcerative colitis, where a person can be fine for a month or five years and then, without warning, have a severe flare-up which can make regular and demanding employment difficult. Incidentally, today is World IBD day-that is, inflammatory bowel disease day.
I was pleased to see in one of the documents that there is flexibility around the timing of a claimant undertaking work-related activity, which is extremely important. I was also pleased that the Minister in another place reassured our colleague, Stephen Lloyd, that decision-makers in Jobcentre Plus have the power to seek medical advice, if they need it, for people with particular conditions. This is extremely important because, as my noble friend Lord German said, decision-makers do not have access to the result of the work capability assessment. I assume this is for reasons of confidentiality, but it does seem perverse.
I endorse what my noble friend said about more training for JCP staff. I am pleased that they are being given more autonomy and flexibility and I am reassured that the Minister in the other place said that he was looking for ways in which the quality of training for JCP staff could be improved. This is an urgent matter if these new regulations are to be brought in very soon. Can my noble friend tell us which groups are advising him about this new and improved training and when the new guidance will be available?
To follow on from what my noble friend said on the culture at Jobcentre Plus offices, the attitude of personal advisers and decision-makers is as important as their
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Finally, one way to know if these regulations are working is that the number of appeals against a sanction will be low and the number of ESA claimants being helped into work will be high. I hope for a good result.
Lord McKenzie of Luton: My Lords, I thank the Minister for his clear explanation of the regulations, and also for the helpful meeting that he convened last week, the input of officials and the follow-up information. That is a productive way to deal with the issues that emanate from regulations such as these. If there is a downside to that approach, having lots more information just gives scope for further inquiry and questions. I shall try to be brief on that front.
It will come as no surprise that we support the underlying philosophy reflected in these regulations. As the Minister said, they derive from legislation of the previous Government-the 2007 and 2009 Welfare Reform Acts. I believe that we have a consensus on the importance of work and the obligations of government to help those who can work get into work and those who are not yet ready for work to get closer to the labour market. There should be an obligation on individuals to engage with the support available and, with appropriate safeguards, sanctions for those who unreasonably refuse. That consensus also acknowledges that there are some for whom it is not reasonable to expect engagement.
As ever, the devil is in the detail, as the noble Lord, Lord German, said. As we have heard, this is the first time that the Government have activated provisions that can require ESA customers to undertake specific work-related activity. For this to work, clearly it is important that the correct judgments emanate from the work capability assessment. As several noble Lords have recognised already, that has recently been the subject of considerable debate in your Lordships' House. The appropriateness of the descriptors and the capacity of Atos remain issues. As with other noble Lords, such as the noble Lord, Lord German, and the noble Baroness, Lady Thomas, we await further developments on Professor Harrington's work.
What is now required from the WCA is not only to advise on whether an individual is capable of work and therefore directed to JSA, or has limited capability for work-related activity and enters the support group, or has limited capability for work, but also, in the latter case, to make some judgment about how long it will be before the individual can be expected to be fit for work. Is this correct? In a sense, this is a new development. It is important because, as we have heard, those expected to be fit for work within six months will be required to access the support provided by the Work Programme rather than be able to volunteer
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Can the Minister say how the health professional at the WCA stage will be able to make an authoritative assessment of when an individual to be assigned to the work-related activity group will be fit for work in the absence, possibly, of knowledge of the sorts of work-related activity which are available to the individual? Can the Minister confirm-I think that this came from our meeting-that anyone assessed as being on ESA but with a prognosis of being fit for work in, say, six months will have to be reassessed through the WCA before the designation is changed?
Does not the designation of when someone is likely to be fit for work have a significant implication for providers? Someone going on the Work Programme from an ESA flow deemed likely to be fit for work within three months attracts a potential fee which is nearly double that of someone in broadly similar circumstances but who might be deemed fit for work in, say, six months. Is this right? The argument that the Minister advanced is that the difference is that somebody volunteers. But the judgment that seems to be made is that if somebody from an ESA flow is on a work-related activity group and likely to be fit for work within three months, that attracts something like double the fee to the provider of somebody who is broadly in the same circumstances but who will not be fit for work for a longer period, simply on the basis that they have volunteered for the programme. That second category of person could be argued to be a harder to reach person, yet attracts a smaller fee for the provider.
Obviously, someone deemed fit for work would move to the JSA regime and be subject to wider conditionality-for example, jobsearch. But for the purposes of the payment arrangements under the Work Programme, do they keep the status that they had when first referred to the programme? If so, the WCA assessment would have a particular significance for providers.
Incidentally I note that ESA self-employed customers-presumably, previously self employed-will not have access to the Work Programme. Why is this? The details of payment arrangements provided by the Minister under the Work Programme certainly demonstrate strong financial incentives for some groups, but could we be told the projected annual numbers for the first three years for the following ESA groups-on the ESA flow, those likely to be fit for work within three months, and the ex-IB likely to be fit for work within three months?
As the noble Baroness, Lady Thomas, and the noble Lord, Lord German, have said, the Merits Committee raised concerns over the capacity and training, which I share. The Minister touched on that in his presentation of these regulations. It is clearly of very great significance. The existence and application of sanctions has been the subject of considerable debate both during the passage of the legislation and since. We support the necessity of sanction arrangements as a means of ensuring compliance, provided they have
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My understanding is that before any sanction could be levied on customers with a mental health condition, a learning disability or a condition affecting communication and cognitive skills, some personal contact should be made, if necessary a home visit. I detect some weakening of this, certainly in the response given by the Minister of State in the other place when these regulations were debated. What is the current policy? Where will responsibility fall between the provider and Jobcentre Plus? What contact will be made by the provider before referral for a sanction and what contact after but before a determination? Is there clarity on this in the contractual arrangements? What monitoring arrangements will be in place? Can the Minister take the opportunity categorically to confirm that there are no targets operated by Jobcentre Plus relating to numbers to be sanctioned, whether for ESA, JSA or any other benefit?
It is noted that the right of lone parents to restrict availability for work-related activity when there are children between the ages of 13 and 16 is to be considered on a case-by-case basis; again, the noble Lord, Lord German, touched upon this point. This consideration is to take account of the individual needs of the child and, among other things, their ability to remain unsupervised. What on earth sort of guidance is to be given to help with this consideration?
We have touched on the Work Programme a little in so far as it is relevant to ESA and work-related activity. I hope that we will have the opportunity for a fuller debate because it is an ambitious project that we want to see succeed. The flexibility of the black box approach and individually tailored support are to be welcomed. Strong financial incentives for helping the hardest hit to get to the labour market is obviously the right approach. Before we have this debate, though, perhaps the Minister can explain why the ex-IB work-related activity group who are unlikely to be fit for work within three months should have treble the potential reward for the providers than ESA customers who are further from the labour market. Will the Minister say a little more about why the Work Programme negates the need for the work-focused health-related assessment?
Lord Freud: My Lords, I thank all noble Lords who have taken part for the support for the general principle of what we are trying to do here. This is a component of a very large change, with quite a few moving parts. I note the accusation of the noble Baroness, Lady Thomas, that the only person who has all the moving parts in their head is me. We are slowly getting it out, and this is one element of that process. As I said at the start, those people who are disabled and cannot work will get unconditional support, but we have an obligation to support large numbers of people who could get into
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The noble Lord, Lord McKenzie, is very fond of quoting my work, which always makes me blush with embarrassed pride. I also said in the report to which he referred that if the Government do not engage with these people, it is a dereliction of duty. One of the things that we are trying to tackle here is to stop that dereliction and help these people get back to work. I emphasise that what we are talking about is not getting people to work and sanctioning them for not working; this is about work-related activity. We are talking not about the intensive requirements of taking a job but about preparing for that process.
I shall try to deal with the enormous number of questions. I am not sure that I will be able to answer all of them, just because of time and volume. One of the issues that noble Lords have raised is training. The training that we offer will provide much greater emphasis on the need for personalisation and flexibility, which my noble friends Lord German and Lady Thomas were concerned about. There are new demands on staff to do with flexibility. We will provide the products and tools to support the front line in diagnosing customer need precisely. As to decision-maker expertise and who takes these decisions, staff receive extensive training so that they are able to make decisions. They have access to comprehensive, up-to-date, clear procedures and guidance for ESA decision-making, which includes how to handle difficult situations and provide customer care. The delivery of that learning is supported by Atos Healthcare.
My noble friend Lord German was concerned about how good cause would be defined. If it is too specific, it would restrict the ability of decision-makers to take into account the circumstances of individuals. However, examples of good cause include such things as caring responsibilities, attendance at court or at funerals, acute personal illness, and the availability and affordability of childcare. My noble friend raised a specific point about the parents of schoolchildren when they go through the 13-year barrier. The power to set the activity must be reasonable in the circumstances of each customer. The adviser will need to consider all the circumstances of lone parents with children aged between 13 and 16 before requiring work-related activity after school.
The other key issue that my noble friend Lord German raised was that of checks and balances before any sanctioning. I remind noble Lords that the sanctioning regime here is not the tougher one that we are talking about with JSA. It is a sanctioning regime that says that some of claimants' money will be reduced until they comply. It is a very different and much softer sanctions regime generally. Within the legal framework the adviser must reconsider the action plan at the request of the customer, if the customer feels that it is no longer appropriate. The adviser may then postpone the work-related activity that had been agreed. Clearly, when we talk about fluctuating conditions, this is exactly the kind of area where they apply.
Differential pricing was raised by both my noble friend and the noble Lord, Lord McKenzie. I am almost reluctant to get into the detail of this; the reasons why particular groups have different prices are very detailed. The blunt answer is that we have never priced people precisely. It has not been done. We have created some categories and we will learn, as the process rolls through, how those prices really work. We had to start somewhere. We had to get some broad categories that were definable, and which we could record and analyse to get this differentiation. It is clear that it would be very tough in many cases to get the people who have been on incapacity benefit for a long time and then moved into the ESA category into work. For some it would be easier but for many it would be tougher. By and large, we have aimed to achieve price differentiation which reflects reality. I expect that that system will become much more sophisticated as it moves along. I am hopeful that we can start to apply differential pricing to groups of people who we know fall into difficult categories, and that this will help us to tackle the most difficult problems. People coming out of prison is an area where I would like to see funding focused to address the problems involved.
We can debate exact pricing all day long but another factor is involved, as noble Lords will be well aware. The DEL-AME switch, on which this process is based, is acutely complex. It is a pretty simple thing to describe in theory but I do not encourage any of your Lordships to negotiate it in detail with the DWP and the Treasury. It is a very complicated matter, which it would be counterproductive to describe in detail.
The noble Lord, Lord McKenzie, asked a specific question about reassessment. I assure him that after the prognosis of three months or six months is made, another work capability assessment is undertaken before someone moves into the JSA category. The category in which you enter the programme is the one in which you stay. In other words, the providers have every incentive to move someone through the whole process.
Lord McKenzie of Luton: I understand what the noble Lord has said about the category in which you end up. I accept that the evidence base is being built, but to a certain extent it is determined by clear objective factors such as whether you have been on IB or are on ESA, but also by the prognosis that the health professional has made at the WCA, which is much more subjective. A lot could hang on that decision-for example, whether the relevant period is three months or a bit longer. What is our experience of the ability of healthcare professionals to make those fine judgments?
Lord Freud: The noble Lord makes a very interesting and valid point. We have spent a lot of time on this. Health professionals find it very difficult to make accurate prognoses for periods lasting many months. One of the reasons why we have the three and six-month periods is because the prognosis in those cases is much better and much more reliable. Rather than handing everyone in the work-related activity group over to the providers we thought that we would de-risk the situation by having three and six-month periods. We spent a lot of time wrestling with that point as we devised the groups that were going to go into the Work Programme.
I will write to the noble Lord on his question about the flows as I do not have the relevant figures to hand. My noble friend Lady Thomas asked about the closure of some JCP offices. We are planning to offer all affected staff relocation. Many questions were asked but I hope that I have covered all the key ones. If I find that I have not, I will write to noble Lords.
Let me close by saying I am convinced that this is the right way forward. I mirror what my noble friend Lady Thomas said: get this right and there is a huge prize here. I think, genuinely, that we will do this right-and we will watch it. I was asked about assessment and evaluation by the noble Lord, Lord German. We have a pretty elaborate evaluation program running. We will get that evaluation in two waves, the first this autumn and the second in early 2012. We will look at seeing exactly how this customer experience works in some detail, so we will get some flavour of that pretty soon. I have no doubt that we will be debating it at that stage, which will be quite interesting. I commend these regulations to the House.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, if passed, this order would allow jobseeker's allowance to be claimed, administered and maintained online and would open the door for some online administration of other benefits. This change would maximise efficiency and improve customer service. In addition, it would reduce the use of paper and develop a platform for electronic claims for other benefits, including the new universal credit. I confirm that the provisions of the draft order are compatible with the European Convention on Human Rights.
First, I shall say a few words on the department's current position in relation to the Merits Committee. I take the duty to provide sufficient information to Parliament to enable proper scrutiny of this department's legislation seriously. Senior officials from the department have recently had a constructive discussion with Merits Committee staff with a view to improving how we handle our secondary legislation. I assure your Lordships that I will do everything within my power to make sure that we meet the proper and reasonable demands of this important committee. In this instance, I know we were able to provide the additional information that the Merits Committee requested. I hope that additional information will assist this House during the course of this debate.
The Department for Work and Pensions is improving its customer service delivery by increasing access to its services through self-serve online channels. As part of this, the department would like to introduce a secure, automated online service. Customers will still be able to contact the department by writing or by using the telephone and face-to-face appointments will still be available. The current situation is that, at times, legislation requires the use of paper-based documents or signatures, or at least may be interpreted as requiring this. For example, currently a jobseeker's agreement must be in writing and must be signed by the customer. This order, which is made under the provisions of the Electronic Communications Act 2000, amends social security legislation to allow electronic communication and storage. The order will also develop the department's use of electronic signatures.
I shall take a few moments to run through the different possible formats of electronic signatures. I know that they are used in a lot of different ways and, if your Lordships will excuse me for being a little bit techieon this, I think that will help our debate. An electronic signature is something associated with an electronic document which performs a similar function to a traditional signature. It can be used to confirm the authenticity of an electronic communication-in other words, that it comes from a particular person. Another use of electronic signatures is to establish that the document has not been tampered with. Industry use is based on codes and ciphers, which essentially make the signature unique. For example, text can be encrypted and turned into letters or numbers, which can be deciphered only by someone who has the correct password or key. For the vast majority of services a combination of source data from the computer, or some other device and passwords, picture and word combinations, and other means of authentication form the basis of electronic signatures.
Secondly, there is authentication as a form of electronic signature. This involves collecting facts and personal details to enable customers to prove their identity. This may include pin numbers, secret questions and answers, or collecting data such as mother's maiden name and date of birth. This form of electronic signature means people can log in by answering a series of questions, and we essentially take their successful completion of the authentication process as confirmation that they are who they claim to be.
Finally, there is physically signing an electronic pad, as you do when you accept a parcel. This signature can then be digitally saved and attached to official documents, removing the need to print and store vast reams of paper. Research has shown that the psychology-at least the current psychology-of actually signing a jobseeker's agreement makes people more likely to follow through on their actions.
The powers that we are talking about allow all of these three ways of getting electronic signatures, although in reality we shall be using only authentication and physically signing an electronic pad.
We have also ensured in Clause 101 of the Welfare Reform Bill that social security legislation will include
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In this case, the order will mean that our customers will not only be able to make a claim for jobseeker's allowance online, but they will also be able to notify us of other changes in their circumstances, such as changes to their income or a change of address. In addition, they will be able to provide their signature using an electronic pad. This would replace current paper signing and would mean signatures collected from people confirming that they meet the conditions of entitlement for jobseeker's allowance, or agree to the conditions of a jobseeker's agreement, could be electronically stored.
We know that the majority of customers already regularly use the internet and would welcome the opportunity to do departmental business online. Departmental research has shown that 86 per cent of jobseeker's allowance customers surveyed were using the internet and 67 per cent had home internet access. So far almost 700,000 customers have used the service, despite very little encouragement or training. With support, the department hopes that, by 2013, 80 per cent of customers will make changes and claims for jobseeker's allowance online. We know that not everyone will be able to use an online service or will want to. Customers will still be able to contact Jobcentre Plus in writing or by using the telephone. We have no intention to make online services compulsory. We also accept that some customers may need help with online services. Arrangements will therefore be made to provide that support. Interestingly, our research shows that a large number of people with a bit of support can be fairly easily nudged to use this particular channel.
Jobcentre Plus staff will receive training and support so they are able to assist customers and additional support for staff will be provided through the use of coaches and buddies in each office when the service is launched. Jobcentre Plus staff will play a key role in encouraging take-up of the online service. They will be able to provide assurances about safety and security to those customers who may be nervous about using online services. They will also be able to arrange training for customers who have never used the internet before. We will be making customers aware of where they can obtain access to computers-for example, in libraries-and they may be able to arrange access and training via providers such as UK Online.
Customer security will be crucial and must be protected. The department has worked with security experts from both the private and public sectors to develop a robust online service that people will be able to use in confidence. The Government regularly gather intelligence and work with other security organisations to ensure that we keep up to date with new threats to online systems. Numerous organisations, such as banking and insurance firms, already use online services safely and we will continue to draw on their experience as we design and develop our processes.
Anyone choosing to use the online service will have to go through an identification process before they can set up an account and be provided with a unique pin
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