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If we are right to be indignant about the removal of legal aid in cases of personal injury, spare a thought, too, for the impact of the Bill on children. The Bar Council says that 68,000 children and young people will be affected by the withdrawal of legal aid and that 54,000 fewer people will be legally represented annually in the family courts. The Children's Society, which works with more than 50,000 children a year, bears this out. It says that it is concerned that the changes will affect the poorest and most vulnerable families, including,

for reasons such as,

I have a non-pecuniary interest as patron of the National Association of Child Contact Centres which, over the past year, hasworked with more than 9,000

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families 15,000 children and delivered 30,000 hours of contact. Many of those who work in the centres do a wonderful job in helping families to settle their differences and move on, without the courts or lawyers being involved-something of which I know the Government would approve. However, NACCC has flagged up its concern that this Bill will result in a big increase in the number of self-referrals that it will have to deal with: It says that many will be inappropriate and beyond its mandate, resources or its capacity. It says:

"This in turn creates extra work in terms of gathering information, assessing that information and then arranging, monitoring and reviewing contacts. To make matters worse, all of this is happening at a time when many of our Centres are already dealing with record numbers of referrals and managing ever increasing waiting lists to access their services".

The prospect is already having a disastrous impact. NACCC cites one co-ordinator who left a centre in Norfolk recently and who said, "I am a volunteer-the amount of work and the level of responsibility that goes with it is now simply too much".The centre had been running for 15 years but has closed because no one else was prepared to take on that role of co-ordinator.

Whether it is a victim of domestic violence or abuse about which we have rightly heard a great deal today, the position of a remote indigenous people living in a rainforest seeking redress against a British company, the mother of a brain-damaged baby or a man dying of mesothelioma, the same principle of being able to seek the righting of a wrong must apply.

As the Bill currently stands, it will significantly further restrict the scope of legal aid, it could leave the United Kingdom in breach of our human rights obligations, it may well create a chaotic situation in our courts, put conditional fee arrangements out of the reach of most people and save a lot less than the Government have speculated. Above all, Parts 1 and 2 of the Bill fail the ultimate test: does the Bill ensure access to justice regardless of wealth or means? Clearly, the answer is no. There can be no talk of equal access to justice if it is becomes dependent on the amount of money a person has. It is about that that this House should be indignant.

9.08 pm

Baroness Massey of Darwen: My Lords, in this far-reaching and detailed debate, I shall speak about my concerns for children, young people and families in relation to the Bill. I am surrounded by eminent lawyers and I am not a lawyer, but when I hear about the concerns of legal organisations and the voluntary sector, that reinforces my own concerns.

I remember David Cameron recently expressing a commitment to turn around the lives of the country's most troubled families. When I see what is happening in education, health, social care, welfare reform and now this Bill, those words seem empty. I know that the Minister is interested in children and young people, but can he encourage the Government to examine the impact of their Bills, individually and collectively, on the lives of children and families? Otherwise, we will pay for this in more ways than one. I wish the Government would look at children and families in a holistic way. They may reach better conclusions.



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I turn to the Bill. The Bar Council has stated:

"Justice does not come at any price. The Government has opted for cut price justice, against the views of the overwhelming majority of respondents to its consultation on legal aid".

The Bar Council points out, as have many others, that removing private family law from the scope of legal aid may cost the taxpayer more, not less. As the noble Lord, Lord Alton, has just said, there will be fewer people represented annually in the family courts, and more children and young people will be affected by the withdrawal of legal aid. In the case of victims and alleged perpetrators of abuse, children and young people could be cross-examined by the accused, with resultant threats to their welfare. The Family Justice Review has pointed out that protection for vulnerable witnesses exists in criminal, but not in family, courts. Many organisations are concerned about the potential outcomes of this.

The Interdisciplinary Alliance for Children points out that the loss of legal aid will increase the trauma of divorce and separation and disputes about children. Family courts and family lawyers can help with solutions to difficult problems in a child-centred way. Issues not resolved through such negotiations and mediation may leave parents struggling, and many of them will not take on that struggle. This could mean that parents will lose contact with their children, or a loss of protection for the child. The alliance has stated that this Bill is not child or family friendly and does not recognise the impact on children caught in the middle of parental disputes. The Bill fails to recognise the impact on people who have to represent themselves. It ignores the impact on victims of domestic abuse, as has been so eloquently expressed in the debate. I will not say much about this, except that domestic abuse can often impinge on children and set up cycles of abuse, particularly in relation to the behaviour of boys.

In my capacity as chair of the National Treatment Agency for Substance Misuse, I have often had contact with the Kinship Care Alliance. Family and friend carers often care for a child because of a crisis in the parental home; for example, death, drug or alcohol misuse, divorce, prison or domestic violence. It is estimated that there are around 300,000 children living with friends or family carers. Previous Bills have discussed the plight of such carers, particularly grandparents who may be impoverished by this extra responsibility of looking after children. Following consultation on the Green Paper, the Government announced that private law applications would be retained within the scope of public funding where a child is at risk of abuse, but not in other circumstances. That could be, for example, where lack of legal aid prevents a family or friend applying for an order to provide a permanent residence for a child.

The Bill as it stands could prevent family members taking immediate action to protect children. To get public funding to apply for a residence or special guardianship order, they will have to provide evidence of abuse. This could delay the child being given residence in a relative's home. There are other issues here, such as the 12-month time limit when a child has been in the care system or under a child protection plan for more than 12 months. Early intervention by family

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and friend carers in the cases of such vulnerable children is vital. I beg the Government not to introduce such restrictions to legal aid and ask the Minister whether he will meet me and representatives of family and friend carers to discuss this serious and urgent issue.

There is much concern about child poverty. About 2.6 million children in the UK live in poverty, 1.14 million of these in a household affected by disability. Cuts to legal aid for advice on entitlement and appeals for welfare benefits will work against the Government's ability to deliver on their targets. The organisation Just Rights points out that it would cost only £10 million to protect current legal aid entitlements for children under 18, and £40 million for 18 to 24 year-olds. Some 41,000 children aged under 18, and 124,000 18 to 24 year-olds, accessed legal aid in their own right last year. These cases related to employment, debt, immigration, welfare benefits, clinical negligence and criminal injuries. Community legal advice telephone services helped more than 21,000 children in 2010-11. It has been estimated that each year more than 1 million 16 to 24 year-olds failed to get advice for their civil justice problems, with knock-on costs of around £1 billion. The Government say that they will open an exceptional funding scheme for legal aid. What exactly does this mean? Can the Minister offer some clarity?

There is a Private Member's Bill on trafficking led by the noble Lord, Lord McColl, to be discussed this Friday. Child victims of trafficking may have immigration claims that are not asylum claims and will therefore no longer qualify for legal aid. Trafficking cases are very complex and require expert legal advice and representation. These cases of children who have been abused, exploited or neglected should surely be within the scope of legal aid.

There are concerns from the Standing Committee for Youth Justice, the Prison Reform Trust, Liberty and the Howard League about the youth justice elements of the Bill. These have been discussed earlier so I will not go into them but I am concerned about the issue of 17 year-olds. I think that the Minister made reference to this earlier. Perhaps it has been resolved but I would like to hear more about the safeguards regarding youth cautions and 17 year-olds.

I close by going back to the important issue of legal aid. Resolution, formerly the Solicitors Family Law Association, expresses its extreme concern that under this Bill the poorest and most vulnerable in society will have reduced access to justice. This concern is shared by many noble Lords and was eloquently expressed by the noble Baronesses, Lady Stern and Lady Mallalieu, and the noble Lord, Lord Alton. Another concern that many noble Lords have is that removing this access could increase government expenditure. Noble Lords will see this as an imperative to re-examine parts of the Bill. We cannot leave families, children and young people in distress. That is cruel and uneconomical. I look forward to the Minister's response.

9.15 pm

Baroness Turner of Camden: My Lords, this is a very complicated Bill but it is obviously being introduced as part of the Government's plan to cut costs. The

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problem is that it involves the possible loss of rights of poor and vulnerable people-human rights to which they are entitled as members of a civilised society. It has been suggested to me that the proposals contained in the Bill represent the most seismic shift in civil litigation in living memory.

The Legal Services Commission, which is concerned with the provision of legal aid, is to be abolished. The Lord Chancellor will now have a duty to provide civil and criminal aid, and in order to do so he will have a director of legal aid casework, who will, of course, have staff. Why it should be necessary to do away with one body and its staff and replace it with another is by no means clear. What is clear, however, is that there will be a range of services for which legal aid will not be provided. Most of these deal with the type of problems that can cause stress, trauma and often damage to ordinary people during their normal working lives. The Government seem to believe media accusations that we have become a "compensation culture" even though the noble Lord, Lord Young, who originally provided advice to the Prime Minister in these areas, said that this was a myth.

Much of the Bill has been justified by the claim that means other than legal action can resolve many difficulties. This is disputed by many organisations that have made representations to Peers on the Bill. Some of the areas likely to be adversely affected by the provisions of the Bill are family courts and legal aid casework. This is a problem because often the future of children may be at stake. Children are often the victims of family break-up. Actual domestic violence may be eligible for assistance, but the degree to which assistance will be available is not clear. Again, there are many problems because much domestic violence takes place in a family environment. I understand that local authorities have some responsibility in such cases, but, again, it depends on regulations and what these will be is far from apparent. Many of the problems involved have been fully explained by my noble friend Lady Gould of Potternewton.

Cases involving housing will not be covered, except where homelessness is threatened. Welfare cases, particularly disputes about benefit entitlement, are also unlikely to be covered. Citizens advice bureaux have already expressed concern about the provisions of the Bill. They have often been complimented by Ministers for the work that they do, much of which is concerned with debt counselling and welfare counselling. The benefits system is complicated and individuals often do not know what their entitlement is, and so they do not claim it. Then complications arise, with the necessity for claims to be pursued. However, the CABs are facing cuts in provision, to the extent of £350 million in the first year. They say that these cuts will interfere with their ability to do the job which they are appointed to do.

An issue which causes much concern is the failure to cover clinical negligence. Almost all the organisations that have made representations to us have raised this. The Bar Council has protested. Removing legal aid for clinical negligence would remove access to justice for the most vulnerable people. Legal aid for clinical

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negligence cases costs £17 million out of a legal-aid budget of £2.2 billion, so it is a relatively small amount of money.

Another area of concern is that of personal injury. Many personal injury cases are funded by conditional fee agreements, which are commonly known as no-win, no-fee. These normally allow for a success fee to be claimed by the claimant lawyer in a successful case and that is usually paid for by the losing defendant or the defendant's insurance company. A clause in the Bill will prevent the success fee from being recovered from the losing defendant and the fee will instead be taken out of the damages awarded to the injured person. An injured person will not therefore receive the full compensation to which he or she is entitled. It really seems as though the Government are anxious to make it as difficult as possible for an injured person to secure compensation for his or her injuries. Moreover, the Government's plan is to make injured people pay for some of their legal costs when someone else has injured them in the first place. As many such people are elderly or infirm that seems very unfair.

As far as I can see, employment cases are not to be regarded as eligible for legal aid. The Government apparently take the view that means other than legal ones are available; no doubt they are referring to the arbitration system. However, recently a government statement about employment law indicated that charges would be made to the dismissed employee before his or her case could be heard by the tribunal. Reference has been made to a fee of £1,000. The tribunal will not consist of lay representatives from both sides of industry but there will now be a judge sitting alone; in other words, a more legal system, but of course no legal assistance.

I hope that the TUC is paying attention to all this. Ordinary workers need the trade union movement more than ever. Unions have a record of successfully representing members and they also now provide a fairly comprehensive legal-aid service to members. But this is an unfair Bill and, unless we succeed in amending it, many people will suffer undeserved stress and trauma in incidents for which they have not themselves been responsible. We must do what we can to prevent that.

9.22 pm

Lord Clement-Jones: My Lords, I declare an interest as a member of the Law Society and as a partner in an international law firm. Even so, I venture with caution into this arena, so I shall be brief, especially as so many excellent speeches have been made tonight. By background, I am a commercial lawyer, but I became involved in politics largely as a result of my experience volunteering in the early 1970s at the first law centre, the North Kensington Neighbourhood Law Centre set up by Peter Kandler, in the immediate post-Rachman era. I joined the Legal Action Group, founded in 1971 by my noble friend Lord Phillips, and thereafter I have taken a strong interest in the development of the law centre movement and the extension of legal aid into key areas of family law and social welfare. Until now, I thought that we had been making steady progress in ensuring that, where rights had been given, there would

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be adequate access to justice to enforce them, regardless of means. The contents of this Bill heavily lead me to doubt that belief.

I recognise that savings need to be made in the budget of the MoJ; the current legal bill is £2.2 billion. However, the extent of withdrawal from scope of legal aid is quite breathtaking and I believe it will put the clock back more than 40 years. We are told that more than 650,000 people will be affected in total. As we have heard, it seems that Lord Justice Jackson is not happy that these cuts are part of the package. They will cripple CABs and law centres and many will have to close. We are told that 18 out of 56 law centres are at risk and that they are already suffering from a 10 per cent cut in legal aid fees. My noble friend Lord Shipley has illustrated that extremely clearly. Granted there is planned to be some transitional support but, over time, the law centres will lose some 77 per cent of their legal aid funding. Do the Government think that we will all go back to volunteering in order for people to get the legal help that they need?

Furthermore, in the first instance, even where legal aid is available, the only initial recourse will be via a telephone gateway. This will badly disadvantage the more vulnerable, who will find the telephone much more difficult to cope with than a face-to-face meeting, as many noble Lords have said. This will save the princely sum of £2 million, we are told. All these cuts will fall hard on the poorest and most disadvantaged members of society, who are already being heavily impacted by government welfare reforms.

Contrast the contents of this Bill with the one line in the coalition agreement which says:

"We will carry out a fundamental review of legal aid to make it work more efficiently".

What kind of mandate is that for the sweeping nature of this Bill and its changes to legal aid? As if that were not enough, as has already been said, the Lord Chancellor will have the right to omit further categories from the scope of legal aid by order, but not to add to them. What is the justification for these changes: the so-called compensation culture? As we have heard, the report by the noble Lord, Lord Young, said that this was a myth perpetrated by the national press. If the grounds are purely cost-cutting, why has the MoJ not taken more seriously the Law Society's suggestions for savings of between £249 million and £384 million, and sat down to explore them? As we have heard, the impact assessments of the MoJ are not underpinned by any proper research into the unintended cost to the taxpayer and other government departments-indeed, the MoJ admits it. How can it cast doubt on the Law Society's projections for efficiencies, procedural reforms, and cost-cutting in other areas, or the CABs' claim of what the impact will be on them?

In many ways the most unfair and emotionally disturbing aspect of the Bill, however, is the proposal to do away with legal aid for clinical negligence except in exceptional cases. This is particularly because very ill and very injured children are often involved. I want to describe a typical case which has been cited to me by a well known firm of personal injury and clinical law specialists:



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"Our client Felix was born at the Royal Surrey County Hospital in Guildford in 2002. He was born premature but healthy. Sadly his prolonged neonatal jaundice was not adequately and promptly treated, so he suffered severe brain injury and has cerebral palsy. He requires 24-hour care, including waking specialist nurse care at night. After his claim was issued at the High Court, the hospital admitted liability and has made damages payments 'on account' of the final damages settlement that we hope will be reached before the trial, fixed for next year. Felix can now be provided with the care, equipment and therapies he so desperately needs. His damages settlement will be strictly based on his needs, as well as the massive impact his condition has upon his family.

Felix's claim is funded by legal aid. This meant that if Felix had lost his case, he and his family would not be liable for the costs of the Trust, and that they were able to instruct lawyers with the ability to deal with his complex claim. Under the new LASPO regime proposed by this Government, Felix's family, who could not themselves have paid to bring a case, could only have brought a claim if they could both find a law firm willing and able to fund the investigation and running of Felix's complex claim, and perhaps also pay for insurance to cover the risk of paying the Trust's costs if the claim failed. Felix would also have lost a substantial slice of his carefully calculated damages to pay that part of his costs the Trust would no longer be obliged to pay. These same issues apply to many of our clients' claims".

It goes on to say:

"Compensation payouts are not lottery wins. They are calculated in great detail in an attempt to normalise the lives of both the injured and their families following traumatic events. They can provide for care costs, adaptations to accommodation, equipment such as wheelchairs and hosts, and vehicles".

Firms in this field say that without legal aid, especially to pay for the early investigations and medical reports, and exacerbated by the 25 per cent cap on success fees, they will in general find it very difficult to act on a regular basis with a CFA for victims of medical negligence unless their chances of success are assessed as at least 70 per cent.

All for what? An estimated saving of £10 million. The NHS Litigation Authority said that removing legal aid for clinical negligence would undoubtedly cause NHS legal costs to escalate massively and increase public expenditure. The Minister may say that of course some exceptional cases will be funded if failure to provide funding would breach the applicant's rights under the 1998 Act-but he knows that this has been very narrowly interpreted by the European Court of Human Rights.

The one bright spot in Part 1 is the fact that specific provisions for legal aid for children with special educational needs and disabilities has been strengthened: but even here, it needs to be made clear that this will continue beyond 16 to the age of 25 and will cover more than a school setting.

In conclusion, we all celebrate the passage of the landmark Legal Aid and Advice Act 1949, which had such a major, positive impact on the enforcement by ordinary citizens of their legal rights. This Bill risks being remembered for another, more negative reason. I urge the Minister to listen to the voices in the House today, and those in Committee, so that we will be able radically to alter its worst features before it leaves this House.

9.30 pm

Lord Rix: My Lords, I will put my weight behind those who oppose removing welfare benefits from the scope of legal aid provision. The point was put most

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forcefully by the noble Lords, Lord Phillips of Sudbury and Lord Howarth of Newport, and by other noble Lords. The expectation that people with a learning disability will be able to represent themselves at tribunals is thoroughly unrealistic, particularly as advocacy support will also be made more difficult to access. However, I know that many noble Lords have particular and forthright expertise in this area and I am reassured that any points I might make on the issue will be, or have been, more than adequately covered.

I will focus on other sections of the Bill, and in particular on issues around sentencing. It was notable from the exchanges in the Commons that this is a Bill of two halves. The first one concerns legal aid and the second concerns everything else. In this respect, only the first half of the Bill has been subject to any form of scrutiny. That is not to say that there has not been discussion and indeed progress on the issues of the sentencing and punishment of offenders. I wholeheartedly commend the Government on announcing their intention to equalise the sentences given to perpetrators of disability-motivated murders from 15 to 30 years. This is a vital step if, at long last, we are to view disability hate crime as a serious issue. I know that it has significant support on all sides of the House and throughout many organisations, 21 of which have signed an open letter to the Secretary of State for Justice endorsing the proposal.

Mencap's Stand by Me campaign-I declare an interest as president of the Royal Mencap Society-urges that disability hate crime should be tackled at the earliest opportunity. While I recognise the positive roles that the Government are playing with regard to the issue, it is important that Ministers take the opportunity to recognise the many challenges that remain. Disability hate crime happens on a number of different levels. Murder is one such level, but it applies equally to a spectrum of abuse from name-calling to physical violence. This is why I hope to use the passage of the Bill to put forward the case for disability hate crime to continue to achieve parity across all aspects of sentencing.

For example, issues still exist around the enforcement of Section 146 of the Criminal Justice Act 2003, which makes provision for a sentence uplift for any crimes in which disability is deemed to be a motivating factor. Although the provision exists, the requirement for joined-up work by the police, the Crown Prosecution Service and the courts to implement the sentence uplift means that it is very rarely used. Additionally, the Attorney-General's power to review sentences that he or she considers "unduly lenient" is an issue that requires great consideration. This discretionary power applies only to particular types of offences, including crimes against the person that are racially or religiously aggravated, but not including many hate crimes against individuals on the basis of their disability. Given that disability is a protected characteristic in Section 146 and, I hope, soon to be in Schedule 21 to the Criminal Justice Act, this seems to be a perplexing anomaly that creates an inconsistent picture about the seriousness with which disability hate crimes, at all levels, are treated.

Unfortunately, limits of time dictate that I cannot raise further points about which I have concerns in any great detail, particularly the treatment of people

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with a learning disability in prison. According to the Prison Reform Trust report No One Knows, published in 2007, between 20 and 30 per cent of,

However, the identification of people with a learning disability in the criminal justice system remains a complex area and there are currently no effective tools in place to measure the situation accurately. This means that many learning-disabled offenders are not accessing the appropriate support or services that they need and, equally, that provision is often not made by police and other public bodies to account for the potential reasonable adjustments that this group might require while in the system.

Provisions around employment in prisons, changes to conditional cautions and the need for accessible information to be available to individuals at all stages of the system are particular priorities. Indeed, I believe that it is essential to provide access to justice for people with a learning disability, no matter on which side of the criminal justice system they find themselves. I hope that the Minister will meet me and other noble Lords before Committee to try and move matters along towards a satisfactory outcome. I shall wait patiently until the end of this rather lengthy session in the hope of an affirmative answer, even though, as I am approaching my 88th birthday, it is long past my bedtime.

9.37 pm

Lord Collins of Highbury: My Lords, this Bill covers a wide range of issues. The only common thread is that they all come under the auspices of the Ministry of Justice. However, I detect a more disturbing theme after listening to the debate today, which is that those who are most vulnerable in our society end up paying the price for these changes. Because of the time constraints on us today I have little alternative but to focus on one specific area of the Bill, Part 2, on litigation and the funding of costs.

We often hear, and we have heard today, of the so-called "compensation culture", fuelled by media stories about individuals receiving large compensation payments, constant adverts in the media offering the promise of a handsome settlement if they claim and businesses fearing litigation and being subject to expensive insurance premiums. However, as many of my noble friends have pointed out today, the noble Lord, Lord Young, noted that the problem is one of perception rather than reality.

In early 2010 Lord Justice Jackson recommended radical changes to the system to address this problem. Unfortunately, the view of many victim support groups is that he relied heavily on information from the liability insurance industry but took very little evidence into account from the claimants' point of view.

The Government's subsequent Green Paper, aimed at implementing the Jackson recommendations, reflected this one-sided approach by stating in its introduction:



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Many people suffering from diseases and injuries were naturally outraged at the suggestion that they make frivolous claims or that they should suffer because some people might do so. They feel that they are being denied access to justice because of the actions of others.

In publishing their policy plans following the consultation, the Government continued to ignore practically every submission on behalf of claimants. My fear is that the Government are using a sledgehammer to crack a nut, especially in the light of other developments since the Jackson report was published. I suspect this is why the impact assessment contains so little data in support of their arguments. Past figures are of little use when a fixed capped costs regime, including success fees, operates under the RTA fixed-cost portal. Road traffic claims are 80 per cent of all personal injury claims, so only a tiny proportion of personal injury cases will not be subject to fixed costs. The cases that will be affected are those that are of higher value and greater complexity. This one-size-fits-all approach imposes a form of collective punishment on those who are innocent victims and who are lumped in with trivial claims and dishonest claimants. Personal injury claimants are being used to discipline solicitors to force them to keep down their costs. To impose, as we have heard today, more stress and anxiety on people who suffer serious industrial diseases is simply heartless.

Who saves from these proposals? Clearly the insurance companies do, but whether such savings are passed on in reduced premiums is a moot point, as my noble friend Lord Monks pointed out. Who pays? While the cost of litigation will be reduced, what will the cost to justice and fairness be? One of the many quotations I received that moved me was from someone who through no fault of their own is now suffering from exposure to asbestos. They said:

"How can this be morally correct? To make in my case, the most heartbreaking time of my life and the family, much harder to bear. My case has not reached court yet ... Being diagnosed was a big shock. To then be expected to pay legal costs from any compensation that might be awarded adds yet more worry that is not needed".

On the question of justice, I think two quotations are incredibly relevant:

"Compensation just means that money worries don't compound a very difficult and upsetting situation. It also acts as a deterrent to those who flout the laws on asbestos".

"Guilty defendants should pay all the costs making companies now think about health and safety of its employees and the financial implications not only now but in the future".

This last point is critical when you see that, despite our health and safety laws, many industries have an appalling record for accidents.

Finally, who are the losers? Despite the savings to the insurance industry, the changes will actually cost the taxpayer rather than save any money. In a paper shortly to be published by London Economics, Moritz Godel and Dr Gavan Conlon show that while the direct savings attributable to the Jackson proposals are substantial, estimates based on public data suggest that they will be outweighed by direct and indirect costs resulting in a sizeable net loss to the Exchequer of £70.2 million per year. The main sources of loss are tax and the recovery of payments from public bodies

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resulting from PI claims. So, on the behalf of the real people behind Britain's dreadful industrial disease and accident statistics, I plead for the Government to think again and put fairness and justice first.

9.44 pm

Lord Gold: My Lords, the Bill proposes many sensible changes to the civil justice system, although this debate has highlighted some serious issues of disagreement, particularly in relation to legal aid. I was certainly heartened and encouraged by the Minister's comments at the beginning of the debate that he is here to listen and I hope that he will be sensitive to some excellent speeches that we have heard this evening. Today, perhaps because I am looking for safety, I am going to concentrate my remarks on Part 2 of the Bill, which deals with litigation funding and costs, a subject of which I have some knowledge. I feel guilty to say that I have very little knowledge of legal aid.

At the outset I formed a somewhat simplistic view of the Bill-not the easiest thing to do, as it happens. Accepting that some reform of the legal aid system was required to reduce the high financial burden on taxpayers, it seemed to me that in order to continue providing access to justice to all, which is certainly desirable, one answer was to encourage greater use of private funding through conditional fee arrangements and "after the event" insurance to plug the hole left by the reduction in legal aid. Accordingly, it did not sit well with me that in Part 2 of the Bill, which largely seeks to implement Lord Justice Jackson's recommendations, private funding was being limited through the abolition of the recoverability of success fees, which has been the cornerstone of conditional fee arrangements and of ATE insurance premiums. Surely, I thought, what we should be doing is making it easier to fund litigation privately so that any reduction in legally aided cases would to some extent be alleviated.

Many commentators on the Bill, including the Bar Council and the Law Society, have expressed grave concern that the effect of these proposals will be to limit access to justice as many claimants who cannot obtain legal aid will be reluctant to risk losing and having to pay their own legal costs as well as those of the other party. Indeed, the Law Society goes sufficiently far as to suggest that the ATE market is likely to collapse. Having reflected on these submissions, I am much more sanguine and believe that the negative predictions of the system collapsing are somewhat exaggerated. In practice, a claimant who has the benefit of a conditional fee arrangement and after the event insurance may well not be required to pay anything towards the cost of the litigation. We have heard a lot about that today. Whatever his own costs, he may well not have to bear anything at all.

There has to be some merit in the action in the first place, otherwise neither the lawyers nor the insurers would be prepared to fund the claim. However, in assessing whether to agree to offer a CFA and ATE, I am sure that some account is taken of the effect that such an arrangement is likely to have on the opposing party when it is known that the claimant has a free run to trial and no risk of having to pay any costs whatever

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the outcome. Even the toughest of defendants will realise that there may be commercial sense in settling with such a well funded opponent.

The Government's proposals seek to remove the ability to recover either the success fee or the premium for ATE insurance. Instead, it is proposed that on a capped basis both the success fee and the insurance premium must be financed from the damages award that is made. We have had some criticism of that today from many noble Lords. To help compensate the claimant for this financial burden, the Government propose that damages awards should be increased by 10 per cent. However, that will not be sufficient to bridge the gap. Some critics say that this is unfairly eating into the compensation being awarded to a claimant. The noble Baroness, Lady Turner of Camden, made that point very clearly and very well. The result, of course, is that victims will no longer receive 100 per cent of their compensation. A second complaint, as I mentioned earlier, is that the ATE insurance market is thought likely to collapse. Thirdly, the legal services market is thought unlikely to be willing to absorb the greater losses that cases of lower value, higher risk or greater complexity would present. Solicitors will be disinclined to take on anything but the most winnable cases.

I now want to compare the position of these claimants with that of litigants who receive no financial aid and have to finance their claims themselves. First, one can be sure that self-financing litigants do not usually risk having to pay their opponents' costs by bringing claims that do not have a good chance of success. Those who pay are more cautious than those who have no risk, or, to be somewhat colloquial, have no skin in the game. Secondly, as the noble Lord, Lord Hunt of Wirral, who is sitting next to me, pointed out-what seems like many hours ago-the victor in civil litigation never recovers all of his costs. That is so, even when so-called indemnity costs are awarded. As a norm, the winning party may recover something in the order of 60 per cent of his total bill. He has to finance the balance and he has to do that from the damages awarded. In other words, the successful self-financing claimant is not able to keep for himself the whole of his damages award. A proportion of it will go to his solicitors to bridge the gap between the solicitor's bill and the money recovered from the losing party. Why should litigants who enter into CFAs and take out ATE insurance be in a better position? Why should they not give up some part of their award to pay the costs?

Finally, are the proposals in the Bill likely to bring down the ATE insurance industry? I do not think so. First, I believe that the ATE insurance market is more resilient than many fear. I do not know the figures. None of those writing to me-I have had many letters and e-mails-has indicated how much money is being made by the ATE insurance market, but I suspect that it is rather a large figure. If I am right, there will be room for the insurers to swallow some of the cost by reducing their premiums and thus reducing the cost that claimants have to contribute from their damages award. It is a question of finding the right balance. I would hope that, with a little pressure, we could move in the right direction.



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For all of these reasons, I believe that what the Government are seeking to achieve in the Bill, so far as funding is concerned, should be supported. The present system does not achieve the right balance. I fear that the availability of CFAs and ATE insurance has encouraged some, who otherwise would have been wary of litigating, to bring claims on the basis that they have nothing to lose and everything to gain. I suspect that a number of claims would not otherwise have seen the light of day. That is not to say, of course, that these claims lack some merit. Indeed, if one is to give access to justice to all who want it then theoretically we should actively pursue a course that allows such claims to be brought even if, ultimately, they fail. However, asking taxpayers to fund claims that non-funded claimants would not themselves bring because they are too speculative and therefore risky is not the answer.

Our legal aid bill in this country is too high. As the former Justice Secretary, Jack Straw, acknowledged at the beginning of 2009,

As the noble Lord, Lord Clement-Jones, said just a few minutes ago, the legal aid bill is now £2 billion a year.

As for outside funding, I suspect that this will be harder to obtain in smaller cases where solicitors and ATE insurers may calculate that it is unlikely that they will recover a sufficiently high figure to cover the costs and provide even a partial success fee. In truth, it may well be that these smaller cases are not financially viable unless supported by legal aid.

The Government's answer, which I wholly support, is to encourage greater use of mediation. If the parties can be persuaded to mediate their claims at an early stage, perhaps before litigation has commenced and substantial legal costs have been incurred, there could be considerable benefit to the parties. It is far better for them if moneys are used to settle the dispute rather than to be spent on lawyers' fees. Indeed, in some cases, the parties themselves may mediate claims without lawyers being instructed. With the right encouragement to mediate and help from an experienced mediator who ensures that each party is helped through the process and treated fairly, I envisage that many disputes will be settled at a far earlier stage than is the case once proceedings have been issued and entrenched positions are taken.

I should declare an interest in that I sometimes sit as a mediator, but not in cases of the size that we are discussing today. My experience is limited to dealing with large civil cases where mediation usually occurs late in the day after considerable work and costs have been incurred. If the Government's present proposal of encouraging mediation is to succeed it is imperative that it happens at an early stage before the costs have been racked up.

There is much detail in this Bill to review in Committee but I hope, as I said at the start of this speech, that the Government will be sympathetic to some of the very moving speeches that we have heard today.



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9.56 pm

Lord Faulkner of Worcester: My Lords, at this late hour I do not intend to detain the House for long and shall concentrate on just one issue. In Committee, I intend to table two amendments to Part 3, Chapter 8, to amend the Scrap Metal Dealers' Act. The first would have the effect of making cash transactions in the buying and selling of scrap metal illegal. The second would introduce criminal charges for theft of scrap metal which take into account aspects of the crime other than the value of the scrap metal stolen.

Subject to final guidance from the Public Bill Office, which has been extraordinarily helpful to me thus far, these two amendments would add scrap metal theft to the offences listed in Chapter 8, joining knife crime, dangerous driving, squatting, and force used in self-defence. Given the huge public outcry at the prevalence of scrap metal theft, I hope that, given the way that this Bill is structured with the four offences already listed in Clauses 128 to 131, the Government will support what I am proposing. If there were ever an issue where the universal refrain is "something must be done", this is it.

I invite the House to bear in mind that ACPO puts the national cost of metal theft at £770 million. The problem is particularly acute on the railways-as the noble Earl, Lord Attlee, knows well and I am delighted to see him in his place-where signalling cable theft caused 16,000 hours of passenger delays in the past three years. I am told that this has now reached epidemic proportions with eight actual or attempted thefts every day. Metal theft from electricity networks rose by 700 per cent between June 2009 and June 2011. Other examples are lead from church roofs, manhole covers, telephone wire, and, most despicable of all, brass plaques from war memorials. Almost no aspect of our national life is escaping.

I am not saying that my amendments will provide the complete solution, but they would undoubtedly help. The move to cashless transactions is seen by all the interested parties as an essential step in the process of getting this business under some sort of control. Introducing his Metal Theft (Prevention) Bill in the other place last Tuesday, Mr Graham Jones MP said that he had been told by the industry that,

As an indication of what we are up against, I would draw your Lordships' attention to a giant screen advertisement at West Ham United's football ground, which was seen on 27 September and which, I believe, is there on a regular basis. It says, in huge letters, "We want your scrap for cash", followed by three exclamation marks. All that was missing were the three words "No questions asked". So my first amendment will deal with cash transactions.

The second will provide for a sentencing regime that relates to the consequences of a crime, not the value of the metal stolen. So if the cost to the community in terms of, for example, passenger delays on the railway is £250,000, caused by the theft of signalling cable worth only a few hundred pounds, that much higher loss would be taken account of in any penalty

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imposed. I suspect that particularly unpleasant metal theft, like the brass plaques from war memorials, could also attract exemplary penalties.

I have already given notice of my intention to introduce these amendments to my noble friend Lord Bach, to the government Chief Whip and to the noble Lord, Lord Henley. I have no wish to score points on this issue. I just want the Government to get on with it and for the House to approve the necessary amendments to this Bill.

10.01 pm

Baroness Doocey: My Lords, I wish to focus on the impact that the proposed changes to legal aid provision will have on people claiming disability benefits. The welfare benefits system is complex and, despite the best efforts of all involved in a claimant's initial application, mistakes are frequently made. More than half of all welfare benefits funded through legal aid relate to disabled people, and the legal aid system enables them to challenge decisions made about their lives and their income.

To pursue an appeal, a claimant must have at the very least a working knowledge of the rules for benefit eligibility, which are set out in a range of different regulations. The complexity of the extensive legal precedents determining the criteria for being,

is just one example where professional legal advice is invaluable to anyone appealing against a welfare benefit decision.

The recent report published by the disability charity Scope, Legal Aid in Welfare: The Tool We Can't Afford to Lose, explains the challenges for claimants negotiating the complex appeal process unaided. The report notes that, between October 2008 and February 2010, of the 60 per cent of appeals in which disabled people were eventually successful in receiving employment and support allowance, the claimants initially had been deemed to have no factors affecting their ability to work. This underlines the importance of disabled people being able to have the tools necessary to appeal benefit decisions and get the right level of support.

Quite apart from the difficulties that the Government's proposals would create for disabled people, I fear that the Government are making a rod for their own back. Central to the welfare reform programme is the desire to get more decisions right the first time round, reducing the necessity for a large number of appeals. Currently, 40 per cent of cases taken to appeal in relation to employment and support allowance decisions are upheld, so the Government's aim is laudable. However, the benefits system will remain complicated for large numbers of disabled people as well as for Department for Work and Pensions decision-makers; and incorrect decisions are likely to continue to be made relating to the benefits and support received by disabled people. Indeed, in the words of the Employment Minister overseeing the Welfare Reform Bill:

"There will always be decisions that we get wrong the first time round, however hard we try to perfect the system".

It is worth noting the ambitious scale of the Government's welfare reforms. The replacement of disability living allowance with the new personal

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independence payment will affect 3.2 million disabled people. The migration of disabled people from incapacity benefit to employment support allowance or jobseeker's allowance will affect 1.8 million people, and the transition to universal credit during 2013-17 will affect a reported 12 million people.

When employment support allowance was introduced in 2008, there was a fourfold increase in appeals in the first year and nearly 200,000 appeals in the second year. So with a reform on this scale it is almost inevitable that there will be an increase in the number of inaccurate benefit decisions and that disabled people will need legal advice to challenge these. I share the Government's desire to reduce the number of appeals against welfare decisions. However, this reduction must not happen because the loss of legal aid prevents disabled people challenging decisions.

I also have serious concerns about the impact that withdrawing welfare benefits from the scope of legal aid will have on the tribunal system. It is almost inevitable that the number of litigants who appear in front of a tribunal without receiving proper legal advice will increase, as will the backlog of cases facing the system itself. Legal aid undoubtedly helps individuals to navigate the tribunal system. Relating medical evidence to conditions of entitlement can be technical and beyond the understanding of most people without legal advice. I would also suggest that legal aid provides excellent value for money when compared with the cost of a tribunal panel, which is nearly twice as much as the fixed fee per case for legal aid.

The Government want to get more disabled people into the workplace so that they can lead increasingly independent lives. It is therefore essential for disabled people to receive tailored, appropriate support in order to help those who can get into employment. If disabled people are placed on incorrect benefits as a result of an incorrect decision that they cannot effectively challenge, they will not be able to access this support. I will give an example. An individual who is wrongly placed on jobseeker's allowance, who should be receiving employment support allowance, will not have access to the specialised work programme or work choice that would support them into employment. Without this support, it is likely that such an individual would be unable to find work and would remain on jobseeker's allowance for a longer period of time, perhaps even incurring sanctions. Indeed, the Government's own research shows that many disabled people find the support provided by disability living allowance vital in ensuring that they can stay in employment and close to the labour market.

Without legal aid to allow disabled people to challenge incorrect decisions effectively, it is inevitable that more disabled people will find themselves further from the workplace, receiving incorrect benefit awards or lacking support to find employment, and therefore the Government's intention to get more disabled people into employment will be undermined. It is my intention to return to this issue when we reach the Committee stage.

10.05 pm

Baroness Lister of Burtersett: My Lords, I apologise that I have not been able to be present for much of the

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debate, but it would have meant absconding from the salt mines of the Welfare Reform Bill in Grand Committee, where I had an amendment down. In fact, I see the two Bills as being intimately connected, not least because what the Government herald as the most fundamental reform of social security for 60 years, to which the noble Baroness, Lady Doocey, has just referred, will coincide with the removal of social welfare law from the legal-aid scheme-a double whammy, for sure. I shall focus on this in my remarks, although I am aware that there are many other aspects of the Bill which are causing concern, such as its implications for children and young people, including immigrants, women, asbestos victims, tenants and squatters, who will be unnecessarily criminalised. According to the Law Society, the provisions in Part 1 represent the most profound change to the structure and nature of the legal-aid system in England and Wales since it was set up in 1949. Whole categories of law will be removed from the scope of legal aid in an approach that the Law Society considers to be fundamentally misguided.

Also in 1949 TH Marshall delivered his groundbreaking and influential lectures on citizenship and social class in which he discussed the Legal Aid and Advice Act as an example of a social right of citizenship which attempted to remove the barriers between civil rights and their remedies and to strengthen the civil right of the citizen. The current Bill restores the barriers between civil rights and their remedies and weakens the civil right of the citizen. It represents an assault on a key building block in the overall edifice of citizenship. Indeed, some years ago the National Consumer Council referred to access to information and advice as the "fourth right of citizenship". In its briefing, Justice also reminds us that when the 1949 Act was before your Lordships' House, it was presented as providing legal advice for those of slender means and resources so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right. In other words, Justice contends, it is misleading for the Government to suggest that the scope of legal aid has expanded beyond its original intentions.

What has certainly changed is the nature of social welfare law. In the other place, a number of references were made to the Child Poverty Action Group's national welfare benefits handbook. I declare an interest of a kind in that I wrote the first edition of that handbook in the 1970s. It was about 20 pages long. Today it is 1,620 pages long. It is a symbol of the complexity of this area of law, testified to by DWP Ministers themselves. While universal credit might represent a simplification in the structure of one area of social security, it is also introducing new complexities. As Scope points out, the lesson from previous social security reform is that it increases the need for legal advice significantly during the transition period, a point made by the noble Baroness. The assumption that social welfare law does not justify help under the legal-aid scheme because it is insufficiently complex or important is, not surprisingly, challenged by a wide range of representations made on the Bill and by a recent Civil Justice Council report. A common theme voiced in an e-mail I received from the CAB local to my university in Loughborough is that timely legal advice can prevent a problem escalating and thereby save money in the long run.

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Where a problem cannot be resolved, legal advice is particularly important in helping people prepare appeals to the courts or the Upper Tribunal. We are not talking about large numbers here so perhaps the Minister could tell the House just how much money is being saved by removing legal aid from such cases.

Citizenship is in part about the relationship between individual citizens and the state. A recent report from the chair of the Administrative Justice and Tribunals Council argued that the Government are making it more difficult for citizens to challenge decisions made by the state. The removal of legal aid from social welfare will make the situation worse. The report of a commission of inquiry into legal aid states that legal aid plays a vital role in holding the state to account for its mistakes and failings. The suggestion in the Government's response to the consultation that Jobcentre Plus and the benefits advice line are substitutes for independent legal advice is thus risible, never mind that it is their mistakes which often give rise to the need for advice in the first place. I find it strange that a Conservative-Liberal Government want to weaken the position of the individual citizen against the state in this way.

The suggestion that citizens might turn to Jobcentre Plus is made in the context of the Government's acknowledgement that,

"Respondents have told us that other sources of advice, particularly the voluntary sector, may not be able to meet the demand for welfare benefit services because of factors such as local authority cuts".

The welcome one-off £20 million support package to CABs notwithstanding-and I will be interested to hear whether it is the same £20 million that was announced earlier-I fear that the combination of local authority and legal-aid cuts will mean the destruction of the legal advice infrastructure so crucial to protecting that fourth right of citizenship I spoke about earlier. The equality impact assessment demonstrates that the citizens who will be disproportionately hurt will be those who are ill or disabled, female and/or of a black or minority ethnic group. As other noble Lords have eloquently demonstrated, we have a responsibility to defend the rights of these citizens in the name of justice.

10.15 pm

Lord Lloyd of Berwick: My Lords, at this late hour, I, too, will confine myself to a single, rather narrow point on legal aid. It concerns a particular aspect of claims for clinical negligence; namely, the cost of obtaining expert reports.

In almost all cases, expert reports are a prerequisite if a claim is to succeed. The cost of such reports is usually covered by after-the-event insurance in the manner described by the noble and learned Lord, Lord Woolf, and, before him, by the noble Lord, Lord Faulks. Since 2000, the premium paid by the plaintiff to obtain such insurance has been recoverable from the defendants, usually the National Health Service, whether the plaintiff wins or loses.

It was the Government's original intention that premiums payable for ATE insurance should cease to be recoverable, along with success fees and referral

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fees. However, the Government listened to certain concerns, particularly about the effect that that would have on funding expert reports. The point was put very clearly by the Minister in the other place on 2 November. He said:

"Such reports, which can be expensive, are often necessary in establishing whether there is a case for commencing proceedings, which raises particular issues if recoverability of ATE insurance is abolished. In responding to these concerns, clause 43 provides, by way of exception, for the recoverability of premiums in respect of ATE insurance taken out to cover the cost of expert reports in clinical negligence cases".-[Official Report, Commons, 2/11/11; col. 1027.]

As a consequence, the Government introduced Clause 43 as we now find it.

My concern is not about the Government's objective, quite the contrary-I agree that the cost of obtaining reports should not in any event fall on the plaintiff. However, I would respectfully suggest that there is a much better way of achieving that desirable objective, rather than the rather complex provisions that one finds in Clause 43. I hasten before anything else to add that this is not my idea, but an idea of Lord Justice Jackson. I echo the tribute paid by the noble Lord, Lord Hunt, to what Lord Justice Jackson achieved, by my calculation, nearly five years ago. It was an astonishing achievement in less than a year. In that respect, he has really done the state some service. His suggestion is that if clinical negligence generally is not to be covered by legal aid, it should at least, by way of exception, cover the case of expert reports, since expert reports are, as the Minister in the other place has already accepted, an exceptional case.

Why then is legal aid a better way of achieving that desirable result than what is contained in Clause 43? The reasons are set in Lord Justice Jackson's lecture, to which reference has already been made by the noble and learned Lord, Lord Woolf, and others. I pick out only two of his reasons. The first is cost, a point touched on by the noble Lord, Lord Gold, quite recently. At the moment, after-the-event insurance premiums are at an all-time high. The Law Society says that the cost of ATE insurance is "currently prohibitive". They are a major element in the cost of clinical negligence cases, which currently falls on the taxpayer and will continue to fall on the taxpayer if Clause 43 stands.

Secondly, Clause 43 is inefficient. The cost of obtaining expert reports will fall on the state-on the taxpayer-however wealthy the plaintiff. The great advantage of legal aid in this context is that it is selective and only available to those who qualify. That, surely, is as it should be.

The cost of making legal aid available for obtaining reports would be, as I understand it, a mere £6 million per year, but the savings to the public purse, by amending Clause 43, as I shall suggest in due course, are far greater than that.

Whatever view the House may eventually take about legal aid for clinical negligence generally, I hope that both sides of the House will accept that it should certainly be available in the case of expert reports, in accordance with Lord Justice Jackson's views.



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10.20 pm

Lord Beecham: My Lords, not for the first time, although I think it is fair to say no doubt inadvertently, children and young people will be among the prime casualties of government policy. The Family Rights Group reports that 300,000 children are living with family or friends as carers because of illness, violence, separation, drug abuse or whatever by their natural parents, and a third of these carers give up work to look after the children. They can apply for a residence or guardianship order, but the Bill will allow legal aid funding only where the child is at risk of abuse and in particularly constrained conditions.

For example, under Clause 10, evidence of abuse would have to be provided, including ongoing criminal proceedings for child abuse, where a local authority child protection plan is in being, or where a court has found that child abuse has occurred within a period of 12 months prior to the application. Therefore, a carer cannot obtain funding to anticipate a situation in which a child might be abused, nor will an application be able to receive legal aid support 12 months after the last incident of abuse. I hope that the Minister and the Government will look very closely at the requirements to facilitate the granting of legal aid in circumstances in which, for example, there is a reasonable cause for the carer to fear that abuse would occur even if it has not already occurred.

Alternatively, the 12-month time limit for proving abuse should be waived, and in particular there should be no bar to obtaining funding for resisting an application to discharge an order simply on the grounds that any abuse took place more than 12 months before that application was made. Equally, funding should not be restricted where the court has made a Section 37 order requiring the local authority to investigate whether abuse has occurred.

In any event, the restriction of legal aid funding to instances of child abuse, as such, is much too narrow a definition. Of course, where the welfare of children is concerned, access to justice should surely not depend on private resources where legal aid is not available.

The position of children is affected in other ways, too. The noble Lord, Lord Alton, referred to the fact that 6,000 children will be denied legal aid and assistance. Indeed, 69,000 youngsters between the ages of 18 and 24 will lose access to legal aid and advice. The range of cases is quite remarkable. There are nearly 2,000 employment cases, 9,000 debt cases, 11,000 immigration cases, 210 education cases, 9,000 welfare benefits cases, 1,090 clinical negligence cases, and up to 34,580 private law cases involving children. Those are very significant figures, and large numbers of young people will therefore be denied legal aid.

The Government seem to rely on the voluntary sector to pick up the slack that will be created by the withdrawal of legal aid funding. Citizens Advice estimates that the 500,000 people whom they currently serve will lose out because of cuts that they are sustaining. They have an 80 per cent success rate in the cases that they bring, supporting claims with legal advice. They estimate that 75 per cent of their cases in debt would lapse, and they take on an astonishing 9,400 cases a day nationally.



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The noble Lord, Lord Shipley, referred to the difficulties faced by law centres and quoted extensively the position in Newcastle. In fact, virtually the same observations were made at cols. 844 and 845 in Hansard on 26 October, when I made a speech that very much involved Newcastle. However, I undertake to the noble Lord that I will not bring any action for breach of copyright whether or not no-win no-fee arrangements are available to me. In any event, the point is well made and it is broader than simply Newcastle.

Local authority cuts to law centres nationally average 42 per cent; in London the average is 61 per cent. Four law centres have received a complete 100 per cent reduction in their funding from the local authority-in Birmingham, Oldham, Warrington and Wythenshawe in Manchester. More may well be on the way. The total cut in grants from local authorities to law centres is some £7 million. That has to be set against the £20 million, to which others of your Lordships have referred, which the Government are proposing to award in a grant. I understand that reference has been made to that £20 million about 14 different times. Whether it is the same £20 million no doubt the Minister will advise us, but perhaps when he replies he will indicate whether it is a one-off payment or whether it is envisaged that it will be continued. If it is a one-off payment, frankly, it will not go very far to staunch the flow of resources from law centres at a time when demand will constantly be rising.

I do not for a moment suppose that the Minister would associate himself with the rather strange attitude evinced by one of his ministerial colleagues in the Ministry of Justice who was reported in the Guardian last October as saying that legal aid work will be useful filler for unemployed lawyers, or for women returning to work. That is hardly a sensible definition of legal aid and what it has to offer.

Many of us have been concerned that the Health and Social Care Bill, with which we continue to deal at some length, will undermine the National Health Service. It is clear to many of us in your Lordships' House that this Bill clearly demonstrates that the Government are taking a wrecking ball to the structure of access to justice. That is in the context in which, on their own figures, 80 to 85 per cent of cuts to legal aid will affect the 20 per cent poorest people in this country. I can do no better than conclude with the words of Lord Justice Jackson in his report from which the Government have cherry-picked their selection of reforms. He said very explicitly:

"I do not make any recommendation in this chapter for the expansion or restoration of legal aid. I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas".

Those should be the watchwords of any reform. Thus far, the Bill does not match them.

10.29 pm

Lord Wigley: My Lords, I apologise, as did the noble Baroness, Lady Lister, for missing half this debate because of being engaged in the Welfare Reform Bill like a number of colleagues. Time is limited so I will confine my remarks to what I see as the most pressing elements of the Bill. My interest lies mainly in

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Part 1, but I would like to welcome a provision contained in Part 3, which abolishes the discredited system of indeterminate sentences. IPPs have been controversial. They effectively introduced life sentences by the back door for a huge range of offences. The Government are right to abolish them, although I am concerned that the new system would introduce a mandatory life sentence for those convicted of a second listed offence, so removing judicial discretion.

Unfortunately, the Government seem to be replacing one contentious system with another, which promises to throw up a number of problems. I ask, as did the noble Baroness, Lady Stern, a little earlier, why abolishing IPPs cannot also apply retrospectively. Those serving IPP sentences are languishing in our prisons since little focus is placed on putting them into rehabilitation programmes. Not enough thought seems to have been put into determining a prisoner's tariff. On average, these prisoners serve 244 days beyond their tariff and it costs roughly £30,000 to keep somebody incarcerated for that period of time. If you multiply that by the 2,229 prisoners who are in that situation, you get a figure of no less than £68 million. The IPP regime has been a rather costly mistake.

Turning to Part 1, the cuts to legal aid propagated by this Bill are, I believe, unethical and will have a damaging effect on the make-up of our legal system. What is more, as the report published by the House of Lords Constitution Committee last week made clear, the cuts go against the constitutional right to legal advice. The cuts will create a market for the supply of legal aid driven by cost rather than the needs of the clients. Profits made by legal aid firms are relatively low and any move to fixed fees for all cases will mean suppliers will be encouraged to take on only the least complicated cases.

The most vulnerable clients, including those with mental health problems and people with a range of disabilities, may find it impossible to gain access to free legal advice due to the complications often arising in these cases, as described so effectively by the noble Baroness, Lady Doocey. As we have heard from many noble Lords, legal aid will also be denied to patients injured as a result of medical negligence as well as workers who have suffered illness due, particularly, to asbestos exposure. I was involved with that campaign 20 years ago, as I had a Ferodo factory in my former constituency.

At present civil litigation claimants are able to bring cases under the no-win no-fee system, which the Bill seeks to overhaul. Claimants can take out "after the event" insurance, ATE, to pay the defendant's costs if the claim fails, while solicitors counter the risk of claims with success fees which are payable on winning a case. Under the new system, as I understand it, successful claimants will have to pay some costs and "after the event" premiums out of their compensation. Without ATE insurance, the risks of bringing a claim will simply be too great, so the right to redress will be lost for those caught up in the most distressing cases involving clinical negligence.

These proposals are totally unacceptable and made worse still when we note that the Government failed to carry out a full assessment of how their proposals would affect disabled people. Not even those suffering

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domestic abuse will be guaranteed free legal advice under this Bill. During earlier stages of the Bill in the House of Commons, the Government refused to recognise that the definition of domestic violence contained in the Bill is too narrow. This will leave vulnerable women without the support that they most certainly need. What is more, if the perpetrators of domestic violence are not entitled to legal aid and so act as litigants in person, they will be able to cross-examine witnesses, which will surely cause unnecessary anxiety.

The proposals included in Clause 12, which threaten to limit legal advice in police custody through secondary legislation, are also deeply worrying. This is yet another proposal on which the Government failed to consult and is a move which has been widely criticised. Errors and abuses at the police station can lead to miscarriages of justice, which are exceptionally difficult to resolve. The Bill as it stands allows the Lord Chancellor to replace advice in person in custody with telephone advice. This would be a dangerous step indeed. I strongly oppose the proposals to introduce a mandatory telephone gateway, which would mean that those seeking legal advice for discrimination cases would have to speak by telephone to an adviser, who may not be legally trained, to find out whether they are eligible for legal aid.

Many claimants, including those with disabilities and those with caring needs and learning difficulties, may be prevented from accessing the legal aid scheme due to communication problems. That is a real barrier to equal access to justice. The proposals ignore many subtleties that surround abuse and will abandon some of the most destitute and vulnerable people in our society without access to support. I urge the Government to reconsider these aspects of the Bill.

10.35 pm

Lord Bach: My Lords, no one could have listened to the speeches made in your Lordships' House today without recognising that the Bill we are debating is of very great importance. All three parts of the Bill could be major Bills in their own right, and all three touch on fundamental issues of justice and the rule of law in our society, whether it be the new proposed offences, the replacement for IPP provisions in Part 3, or the radical changes to the conditional fee system in civil cases and the resulting shift in the balance of power between claimants and defendants in Part 2. Other issues include the fact that there is no replication in Part 1 of the duty of the Lord Chancellor in the Access to Justice Act, and Clause 12 and police stations, which the noble Lord, Lord Wigley, just spoke about.

The Government intend to cut legal aid by in effect decimating a system of social welfare law that over the past 40 years or so has cheaply and successfully helped many of the poorest people in our society to have access to justice and to resolve their legal problems. The Bill's definition of domestic violence has been described by many noble Lords as absurdly narrow and one that will lead to many victims being deprived of vital assistance. Whether it relates to any of these concerns or all of them, the Bill goes directly to the issue of what kind of society we want to live in. The stakes could not be higher.



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I of course congratulate all noble Lords who have spoken in today's debate. This has been in many ways an astonishing debate, with a depth of knowledge and experience in this field that perhaps very few legislatures anywhere could match. However, it is surely no surprise that the vast majority of those who have spoken from all around the House are highly critical of the Bill and many of its proposals. Her Majesty's Government must take note of this widespread sense that they have not got it right. They should be prepared to listen and, more importantly, to act on what has been argued so trenchantly and so often in the House today. We will listen with even more attention than usual to the Minister when he sums up to see whether real compromise is in the air. I hope that it is. If it is, the House will welcome it, but if it is not the House may well have to do its duty on some future occasion.

I forecast, perhaps unwisely, that there will be less disagreement around Part 3 than is usual when we discuss sentencing in this House. Of course, there will have to be considerable debate and close scrutiny as so much of Part 3 has been added so ridiculously late. Even now it is not clear that it has been sufficiently thought through. Clause 114, for example, with its mandatory indeterminate life sentence for a second listed offence, does not seem to be very different from the IPP system it is there to replace. A prisoner will still not know when he is to be released. It will still depend on the Parole Board, which will have the same information as it does for IPP prisoners now. An indeterminate sentence is an indeterminate sentence, whatever it is called, or does the clause find itself in the Bill solely to appease hard-line elements of the coalition, even though the numbers caught will be absolutely minimal? We will also want to look at bail provisions in the context of the tragic Jane Clough case and at the new Clause 130 offence of squatting in a residential building. That certainly deserves some discussion. The House will have taken special note of the speech of the noble Baroness, Lady Newlove, speaking as she did on behalf of victims.

On Part 2, my noble and learned friend Lord Davidson has told the House in clear terms what our position is. Whatever view we may take of Lord Justice Jackson's report, it is clearly a prodigious personal achievement. It reminds me of a kind of magisterial work of art, large and grand, produced by eminent Victorians. However, it is no use Her Majesty's Government hiding behind Jackson because the whole world knows that they picked and mixed his conclusions as though they were choosing sweets. If there is one thing that Jackson was clear about-he was clear about a lot-it was that his proposals were a package to be taken as a whole or not at all. To many of us, as we have heard today, one of the key findings of Jackson was that there should be no reduction in civil legal aid. Noble Lords have quoted him, but my quotation is this:

"Legal aid is still available for some key areas of litigation, in particular clinical negligence, housing cases and judicial review. It is vital that legal aid remains in these areas".

He goes on to talk about eligibility. That is pretty straightforward but it is actually rejected by the Government. I ask the Minister why the Government have rejected what Lord Justice Jackson said so clearly about clinical negligence and legal aid.



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This is a critical point because the Government intend, as part of their £280 million cut in civil legal aid, to save £11 million or £10 million-I have a figure of £17 million but that may be out of date-by taking clinical negligence out of scope. The idea that conditional fee agreements alone are satisfactory for this type of law has been ridiculed by everyone in the House and outside. Many commentators believe that a number of victims, including children, will never be able to get access to justice. Is that the sort of society in which we want to live?

That brings me to what many-and, I must be honest, I-consider the meanest and most wretched proposal of all: the decimation of social welfare law. The rest of my speech will be devoted to that part of Part 1. Whether you call it social welfare law or poverty law or the law of everyday life does not matter very much, but what matters hugely is that the Government are proposing that it should no longer be possible for a citizen who cannot afford it to get legal advice to deal with a legal problem, however complex, involving welfare benefit law. The same goes for employment law, which is completely out of scope. Much housing law will come out of scope, as will practically all debt law and some education law too. As the Bill stands today, that means that there will be no legal advice or representation, even at the Court of Appeal or the Supreme Court. Just to state that proposition shows how absurd it is.

The supposed savings are as follows: including immigration, £81 million; excluding immigration, £61 million. That means that in the social welfare area alone more than 350,000 people a year-it is much wider if you take the other parts of Part 1-will not be given the sort of legal advice that they receive today. Even where the law is still in scope, fixed fees, which are far from generous, have already been cut by 10 per cent. Anything left in scope, of course, will have to go through a mandatory phone gateway, including community care cases. One can hardly think of a sillier area of law to put through a mandatory phone gateway than community care.

Despite many progressive reforms by different Governments to simplify the legal system to make it easier for participants to access and understand, the reality remains that law and enforcement of the law is an often complex and stressful experience for many in our society. The legal aid system was created to address evident inequality in the legal system. We give legal aid contracts to law centres and CABs because they help those most in need. What is the point of legal rights if there is no ability to enforce them?

The value of the advice that is currently available is unchallenged. The respected academic Professor Dame Hazel Genn, in her seminal work Paths to Justice, pointed out that legal problems are not single ones, but come in clusters: it is not debt on its own, for example, but welfare benefits, debt and housing. If legal advice is given early and well, it can and does change lives. If that advice is not given, problems grow, become more difficult to resolve, and can end up in loss of job, loss of home, loss of family, social exclusion, of course, and sometimes descent into crime. All this costs everybody: the individual involved, the Government, and society too.



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How can the Government justify this change to a system which-and I want to stress this point-up to now has been supported by all three main political parties in this country? The Conservative Party has a proud tradition of supporting law centres. The Liberal Democrat Party clearly does too, and I hope we do as well. This system has always been supported by the political parties. It has not worked faultlessly-of course not-but it has worked pretty well for many years.

This proposal is the exact opposite of any concept of the big society that one might want to consider. Who are the people who will lose out? We have heard about them throughout the afternoon. If there is no legal aid for welfare benefit advice, some of the biggest losers will be people with disabilities. These people often need legal advice to obtain the benefits they have a right to. The figure of 78,000 disabled people who will be denied specialist legal help for complicated welfare benefit problems is staggering. But the Government say, at the moment, "No, these people do not need legal advice. They can do it themselves. It is all general stuff. It is all comparatively easy". Actually, the DWP guidance now runs to, as I understand it, 9,000 pages: a good deal more than the CPAG guidance that my noble friend first wrote. As the president of the Social Entitlement Chamber, Judge Robert Martin has said that where people have not had legal advice, about 10 per cent of hearing time at welfare benefit tribunals is spent just explaining what is going on. No wonder that the noble and learned Baroness, Lady Hale, said in her Henry Hodge Memorial Lecture:

"The idea that the law in some of these areas is simple and easy to understand is laughable".

This is an example of judicial understatement if ever there was one. And yet her Majesty's Government seem set on this course, all for an alleged saving in welfare benefits of £25 million per year. This is a Government who are prepared to pay out £250 million in order that people can have weekly rather than fortnightly bin collections and £125,000 per year to-is it 40 plus?-police commissioners around the country. This is not a sensible priority at all.

Children and young people will be losers too. As we have heard, they have civil justice problems that require advice. There is academic research to show that there is a relationship between civil legal problems not being solved and crime. This seems incredible in the year of the riots. To cut legal help for the young age group is absolutely crazy-perhaps as crazy as abolishing the successful Youth Justice Board. Both legal aid and the Youth Justice Board work as early-intervention measures to ensure that our young people have a future.

Of course we know that lawyers who work in this field are not fat cats. Many sacrifice a career in high-paid private practice because they consider that the work is so important. Their fees have been cut by 10 per cent. Further legal aid cuts will rip apart law centres, CABs and solicitors' firms, which will have to close. I ask the noble Lord: where will people go then?

The honourable Member for Bradford East, the Liberal Democrat David Ward, made a brilliant speech on Report in another place on 2 November. I was

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privileged to see and hear it; I watched from our seats in the other place. He attacked these proposals with passion and good sense-and, with nine Liberal Democrat colleagues, including his Deputy Leader, voted against the Government. He made two important points. In the first, he stated:

"It is a very dangerous thing if we are going to use deficit reduction as a justification for almost everything we might do".-[Official Report, Commons, 2/11/11; col. 976.]

His second point came in his final words. He said:

"Someone once told me that the world is divided into two groups of people. There are those who, when they see somebody walking down the street with a walking stick, believe in kicking the stick away because it will make that person stronger, and there are those who believe that if they kick away the stick, the person will just fall over. We are in grave danger of making some of those who are, by definition, the most vulnerable in our society fall over, and we will still have to be there to pick them up, at even greater cost to the public purse. It does not make sense; we should not do it".-[Official Report, Commons, 2/11/11; col. 977.]

Then he sat down.

That is one way of putting it. Another way was expressed in the quote by the late Lord Bingham, which I will not repeat now. Both quotes, in different ways, make the point that equal access to justice is at the heart of our democracy, and that Governments should be very wary of tampering with that principle.

The Government's proposals are deeply wrong in three distinct ways. First, they are-I choose the word carefully-immoral. They deliberately look only at the impact assessments that the Government themselves produced; and they deliberately pick on the poor and the vulnerable. Secondly, they represent a serious denial of access to justice, as the Constitution Committee powerfully argued. Thirdly, far from saving money, they will cost much, much more.

The Minister often uses the phrase, "To govern is to choose". He is quite right. When in government we put forward proposals that would have saved much more than the cut in social welfare law that this Government propose. Our intention to cut back on the number of criminal solicitors with LSC contracts would have been very controversial-much too controversial for this Government, who chose instead to take on not powerful interests that might give them a hard time but the poor, the vulnerable and those who cannot represent themselves in court, let alone begin to fight the power of government.

I end by saying that noble Lords-I hope in a non-partisan spirit and across the House as a whole-should say that in this case the Government have made the wrong choice. If necessary the House must take up the fight and stand up for those who cannot stand up for themselves. The House has a tradition of looking after the interests of those in our society who have little power. In this of all cases, we must not let them down.

10.54 pm

Lord McNally: My Lords, I hope that the House will understand that in a debate of 54 contributions, I am not going to be able to answer them all in detail this evening. Indeed, many of the questions will be better raised at Committee, with specific details of the Bill.



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The noble Lord, Lord Rix, and the noble Baroness, Lady Massey, asked whether I would meet them on the specific issues they raised. Of course I would be delighted to do so. If they will contact me I shall fix something up. The noble Baroness, Lady Whitaker, asked whether the letter from Professor Ruggie could be put in the Library of the House. I will certainly arrange that. It is already on the internet. It might be interesting to the House to know that Professor Ruggie is no longer the UN special representative for business and human rights; he has joined a Boston law firm. Whether that is promotion, I do not know, but that is the fact.

The noble Lord, Lord Faulkner, came with his proposal about amendments to deal with metal theft and the dangers it poses. I cannot give him a definitive answer at the moment, other than that there is an inter-ministerial group looking at this issue as a matter of priority, and we will look at any proposals appropriate to the Bill. I have lost sight of him again-oh my God! Thank God we did not give the Speaker more powers; he would have named me by now.

It has been a very interesting and well-informed debate. Let me take to start-because he was quoted-my colleague from the other place, Mr Ward, who said that we must not let deficit reduction dominate everything that we do. Of course, unless we address the issue of deficit reduction, many of the things that we subsequently do-

Lord Bach: The noble Lord is quoting Mr Ward wrongly. Mr Ward said:

"It is a very dangerous thing if we are going to use deficit reduction as a justification for almost anything that we might do".-[Official Report, Commons, 2/11/11; col. 976.]

Lord McNally: I stand by that quote, then. If we are going to take that attitude, and if we are going to avoid taking tough decisions, we will face far greater economic problems. This idea that somehow we can put things off until tomorrow is perhaps why we are where we are today, and why we have to take the decisions that we will take today.

I heard closely what the noble Lord, Lord Howarth, was saying. Of course, it was a wonderful speech. A number of the speeches made today were wonderful speeches, if we believe that there is no limit to the amount of money that we can spend on legal aid; that there was somehow a golden age when this was all available. However, we know well-

Lord Howarth of Newport: The difficulty in the position that the Minister is taking is that while he may indeed reduce the Ministry of Justice's expenditure, he is exporting his cost to other government departments and to local government. Far from reducing the deficit in public finances, the policies of his department are likely to increase it.

Lord McNally: That is the speech the noble Lord made earlier. He knows, as I well know, that across government, except for two special cases-health and overseas aid-departments have had to make severe cuts. In each of those departments, there are people who could make speeches, like those that have been made today, about how those cuts hurt specific sections

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of society. But there is no getting away from it: the Ministry of Justice is a department with a budget of just over £9 billion. Its commitment was to cuts of £2 billion in a department that spends on only four things-prisons, probation, legal aid and staff and court administration. Each of those has taken a hit. If noble Lords are successful in stopping the changes we have made in legal aid, those other parts will take a hit as well. I can tell noble Lords that it may be heartbreaking to hear some of the stories today, but for me, it has been heartbreaking to see very good staff who have served the Ministry of Justice well having to leave through no fault of their own. We have a probation service, which does exceptionally good work, that is under pressure. There are no soft options and no easy ways in this. We have tried to put forward a series of suggestions.

Listening to some of the distinguished lawyers, they do not fully appreciate that their profession is in flux. The way law is delivered and by whom it is delivered is going to change. I do not think the full impact of alternative business structures and changes in the way chambers and solicitors are organised is fully appreciated yet. They will mean changes, and they may be changes that make a big difference to the way that legal advice is delivered. I heard the disparaging of telephone advice, but the world is changing and lots of people receive advice on the net and by telephone. Indeed, I went to the Law Society's prize giving for solicitor firms of the year and I was intrigued by how many of the prize winners now have web pages where people can go. You can get lots of advice for free before you press the button to hire them. It is a changing world in some of these things.

I understand that when campaigning groups are campaigning they always produce figures that will be brandished around in debates like this. For example, I point out that none of the horrendous cuts that we are being told about actually yet impacts on CABs. I hold up my hand on the £20 million. I thought of saying that when I was doing economics there was something about the velocity of money, and I think this is an example of it. I do not know whether it has been around 14 times, but it is, I confess, the same £20 million that was advised earlier, but it is a very useful addition. We are across the department looking at this very special problem of advice centres and the CAB to see whether we can bring forward proposals longer term.

I go back again to this idea that somehow we are moving from a principle in terms of legal aid. It invites the question: what is so magic about £2.2 billion or £2.1 billion against £1.7 billion? It is less, and it means cuts, but it is not a move away from some absolute commitment to pay for everything, whatever, which seemed to be the thrust of some of the speeches earlier. Once you have a budget, you make choices within that budget, and that is what we are doing. These reforms will still be spending £1.7 billion a year

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on child protection proceedings, most judicial reviews, international child abduction, special educational needs, community care, discrimination, debt and housing cases where a home is at immediate risk, mental health cases and 95 per cent of funding for child parties.

I accept that a number of issues have been raised today that need the kind of scrutiny and expertise that this House brings. The Government have not sprung these issues on an unsuspecting country. The proposals on legal aid were in the Green Paper that was published over a year ago. Certainly, some of the more recent additions will need the close scrutiny of this House, but it is not true that we brushed aside the Law Society's wonderful ideas for saving the money in different ways. We considered its proposals very carefully, and we are looking very closely into the one for more efficient prosecution and reimbursement of legal aid funds. A great deal of its proposals were shuffling responsibilities and costs around Whitehall or producing new taxes, which is not the same as making savings.

I also take on board the very strong concerns that were voiced about domestic violence. I believe that we have tried not just with these measures but with other government measures to try to give support and help in this area. We should go through this in Committee and I will be able to respond to amendments that are put down at that stage. The same is true of clinical negligence. These issues have been raised with considerable passion and they merit closer scrutiny in Committee.

Those who are experienced as Ministers will know that I cannot make any commitments at this stage, other than to suggest, as I did earlier, that we use Committee for a useful and productive examination of the Bill. I take on board what a couple of my noble friends said about advice at police stations. I suggest that they put down an amendment on that. The noble Baroness, Lady Grey-Thompson, suggested that we had not listened to earlier consultation. That is not true. I will not weary the House by going through them but there are at least a dozen examples of specific changes we have made during the consultation process. I take the advice of the noble Lord, Lord Gold, that the best way I can end this debate is the way I ended my opening speech; that is, to recognise that the range of expertise in this House will be extremely useful to us when examining this in Committee.

This may excite noble Lords or send them into depression, but we have something like three months of parliamentary time looking at this Bill in its various stages. I cannot go further on these issues than saying that we will listen, but we will listen to some very serious points that were made in a very serious way. I hope on that basis we can move to Committee and that the House will give this Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 11.09 pm.


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