Prayers-read by the Lord Bishop of Gloucester.
Asked By Lord Kennedy of Southwark
To ask Her Majesty's Government what action they will take to ensure consumers are fully informed of the cost of payday loans.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, increasing transparency and understanding for consumers who use these loans is a key part of the work which came out of our consumer credit review, which is now concluded. We are working with the industry and consumer organisations to ensure that concerns about practices in this market that lead to consumer detriment are addressed in future codes of practice.
Lord Kennedy of Southwark: Does the noble Baroness agree that making sure that consumers make an informed choice is of paramount importance and that the consumer credit advertising regulations may be deficient in this respect? Will she facilitate a meeting between me and some campaigners with her right honourable friend the Business Secretary to discuss that matter?
Baroness Wilcox: I agree with the noble Lord that a well informed consumer is an empowered consumer. The information which is given out is often process driven by the people wishing to lend the money rather than those trying to borrow it. I have spent a long time looking at this, so I am with the noble Lord. I would welcome any ideas that he has which would enable us to work together on this.
Lord Newby: My Lords, does the Minister agree that one of the problems is that for many people of modest means there is a sparsity of easily accessible places in which to put their money and from which to borrow? What are the Government doing further to promote credit unions, which are the most obvious way for many of these people to manage their money?
Baroness Wilcox: My noble friend is absolutely right: credit unions are the way to go. Why they have never taken off in Great Britain, I will never know. For years and years consumer groups have tried to get people to save with credit unions. However, the Department for Work and Pensions will shortly report on its study on how we can best support these credit unions, which wish to extend their services to benefit many more customers.
Lord Borrie: Will the Minister indicate whether she agrees that percentage rates, including the annual percentage rate for loans which are available for only a short period, are often highly misleading? Indeed, they may suggest that the costs are far higher than they really are. Does she agree that what is needed by the consumer is cost in pounds and pence for each day that the loan is available, and information on whether there are administration costs or other costs? That clarification would be much more helpful than a mere percentage sign and a number.
Baroness Wilcox: I have to agree with every word that the noble Lord has said. He is a past director of the Office of Fair Trading and extremely well informed on this matter and together we have done much work on it over the years. There is no doubt that the APR should be replaced, certainly with a total cost of credit. We know that APRs are not the clearest way to show exactly how much short-term loans, such as payday loans, cost. It sounds terribly frightening to hear the figure £2,000. However, as we know, people borrow this money for a short number of days. The information they want is how much the loan will cost them for the short number of days they need to borrow it. As I say, I agree completely with the noble Lord's remarks.
Baroness Howarth of Breckland: My Lords, does the noble Baroness not agree that people who take out these loans are usually the poorest in our society and have the least understanding of what even an APR is-never mind the interest rate? Does she not also agree that it is crucial that such people are able to get help from places such as citizens advice bureaux because they are local, or from groups that have outreach, rather than having to find credit unions that such people often do not understand? As the Government are so determined to tackle this problem, what is she going to do to encourage the CABs and outreach groups to move forward?
Baroness Wilcox: As the noble Baroness knows, a great deal of talk is going on with the CABs regarding the possible new range of duties that they will be delivering in the high street, which is, as she said, where people are and want to be. They do not necessarily want to join a credit union. They can go to other places for free debt advice but, inevitably, people need this money at the last minute for reasons that are very important to them. They are not going to seek advice, but they will need to know where it is when they need it. What we would like to do, and what we are pushing for in the industry, is ensure that before that money is loaned such companies make sure that people understand exactly how much money they will have to repay. I will take up any suggestions that the noble Baroness may have.
Lord Mackay of Clashfern: Is not the simple answer to require those who lend money to tell people the exact cost of repaying the amount that has been borrowed and the time over which it has been borrowed?
Baroness Wilcox: My noble and learned friend is exactly right, and that is what came out of the consumer credit review. We are working with the industry and consumer groups to ensure that that is the information that people get immediately when they need it.
The Lord Bishop of Gloucester: My Lords, the Church of England's national investing bodies recently decided to avoid investment in payday lending firms because of the risk of exploitative lending. Bearing in mind that credit has to be provided responsibly and affordably, will the Government also consider instituting a requirement that payday lenders must, before advancing a loan, assess a borrower's financial circumstances and ability to repay?
Baroness Wilcox: The firms are strongly controlled by the Office of Fair Trading as to how they get their licences. They should already be asking for and giving out such information. If evidence is brought that that is not happening, the OFT is very quick to come down on it, and the Trading Standards Institute is of course involved. At the end of the day, people who desperately need money will hardly hear what someone is saying to them about how much a loan is costing and how much they will have to pay back. Right now, right there and right then, they need a washing machine.
Lord Elystan-Morgan: My Lords, can the noble Baroness kindly tell the House what use is made by judges in England and Wales of the statutory powers vested in them that allow them to ameliorate or even to disallow conditions in a loan agreement that are unconscionably harsh upon a vulnerable borrower?
Baroness Wilcox: I do not have the answer to that question today, but I will certainly look into it, write to the noble Lord and put the answer in the Library.
Lord Mitchell: My Lords, over Christmas almost every bus in London was advertising wonga.com, which was going out of the way to encourage people to have these payday loans-loans that the firm itself was advertising at rates of 4,200 per cent per annum. Will the Government consider banning the advertising of these payday loans?
Baroness Wilcox: We are looking at all options, but we should always have in mind that it is difficult to take away from people the opportunity to have access to facilities that they need. One would therefore tread delicately in this area.
To ask Her Majesty's Government what action they plan to take to limit high mileage by company cars.
Earl Attlee: My Lords, the Government recognise that high mileage by company cars may impact the economy and environment. Our policies encourage businesses to consider whether they can reduce their travel and to embrace sustainable transport choices. Some businesses have operational needs that mean that a company car is vital. Motoring taxes such as fuel duty and company car tax can encourage fuel-efficient behaviour and the use of low-carbon vehicles, in addition to supporting the public finances.
Lord Sheldon:I thank the noble Lord for that reply, but is it not clear that mileage is higher for company cars, which are large cars, than for other cars, and is not the greater mileage driven in company cars unacceptably more than the tax liability of the individual?
Earl Attlee: My Lords, I do not accept that company cars are necessarily larger than average. It is up to the employer what size car to supply to the employee. The system of company car tax takes into account the retail value of the car plus accessories and the CO2 tailpipe emissions. A heavier car is likely to, but will not necessarily, have higher emissions and therefore higher costs for the employee.
Lord Berkeley: Is there not evidence that company car drivers tend to drive not only far further but faster and less safely than people who own their own cars? Should not the Government look at that?
Earl Attlee: My Lords, the noble Lord is right; I asked my officials that precise question. I suspect that the reason why the accident rate is higher with company cars is that company car drivers are working under increased pressure and can be more tired, which is a well known cause of accidents on the strategic road network.
Baroness O'Cathain: My Lords, can my noble friend confirm that many company car drivers use their company cars as offices? If they are sales reps, they cart around stuff that they could not possibly take on and off trains, et cetera, and visit many places that are way out in the sticks. Therefore, they need their cars and have high mileage as a result.
Earl Attlee: My noble friend makes an extremely important point. Many company car users have to use a company car; there is no alternative. I am also confident that the system of company car taxation is progressive and fair.
Lord Razzall: My Lords, does my noble friend agree that, apart from what he said in his last answer about ensuring that large company cars pay the maximum tax feasible, this issue would be better not dealt with by the Government?
Earl Attlee: My Lords, I am happy to agree that the Government should not interfere any more than we already do, by the system of company car tax that I have outlined, but I am also confident that bigger and heavier cars pay considerably more in company car tax, not least because an employee who is entitled to a large car will also be paying much higher rates of marginal tax, and company car tax is paid at the marginal rate of tax.
Baroness Gardner of Parkes: My Lords, one of the questioners asked my noble friend about insurance and there being many more accidents. What is the insurance position and is it taken into account in the terms of the taxation? Do people not care so much about accidents because it is not their no-claims bonus that they are losing?
Earl Attlee: My Lords, if a company car driver has an accident, I suspect that it would affect their no-claims bonus because they would have to declare their accident to the insurance company, but I am not absolutely certain on that point.
Lord Davies of Oldham: My Lords, the Minister will be all too well aware-he indicated this in his Answer-that the issue of car emissions is important for the health of our environment. Will he look again, and encourage his colleagues in the Treasury to look again, at whether we are giving sufficient encouragement to companies to provide greener cars for their people than they do at present?
Earl Attlee: My Lords, I am confident that with the CO2 emissions regime we already encourage cars to be as green and economical as possible. However, the noble Lord will also be aware that we are encouraging the use of electric vehicles, which are exempt from fuel duty and have numerous other taxation benefits.
To ask Her Majesty's Government when they will next meet other European Union member state Governments to discuss the December 2011 Eurozone agreement.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, two meetings of the ad hoc working group on the fiscal stability union, in which the UK is participating, have been held so far. The first was on 20 December and discussed general views on the draft international agreement on a reinforced economic union and the practical arrangements for the preparatory work. The second meeting, on 6 January this year, discussed the proposed provisions in the draft agreement, particularly those relating to consistency and relationships with the law of the Union and fiscal issues. The ad hoc working group plans to hold a minimum of a further meeting a week.
Lord Dykes: My Lords, I thank my noble friend for that Answer. As the Liberal European leaders gave such good advice over the weekend, what is the coalition response to the points that they made, including the vital point about whether there should now be a full EU treaty?
Lord Howell of Guildford: The views expressed by the group to which my noble friend has referred were of course very interesting and coincided broadly with what we all accept: if, as the Deputy Prime Minister rightly said, the UK's interests are properly and fully safeguarded, then eventually this could emerge as a European treaty. However, at the moment that is not the position, as my right honourable friend the Prime Minister had to make clear in the December Council, where it was plain that our interests were not safeguarded. Until that matter is resolved, it is difficult to see how this can become a full European treaty.
Lord Soley: Can the Minister explain what the Deputy Prime Minister meant when he said that the agreement would be folded into existing treaties, and does he think that that could be done with or without a vote, as has been suggested by the Government?
Lord Howell of Guildford: I understood the Deputy Prime Minister to say that the UK would want to make sure that the basic building blocks of the single market-namely, a level playing field upon which competition takes place-are properly safeguarded. It is a question of safeguards. I think that the meaning of what is said by anyone who applies a constructive approach to this whole situation is that, if there is to be a fiscal union treaty and it is to go forward in a way that the whole European Union can support, it will have to safeguard the issues that we regard as vital to our national interest, which means preserving open competition and preventing further discrimination against our financial services. That is what all who have applied their mind to this issue agree is the right way forward.
Lord Hannay of Chiswick: My Lords, can the Minister possibly say what provisions of the draft agreement which have been discussed in Brussels are objectionable to the British Government and prevent them signing?
Can the Minister also give me an answer to the question that I put to the Leader of the House after the 9 December meeting? Why did the British Government abandon the tried and trusted approach of the noble Baroness, Lady Thatcher, in the Milan European Council and the one before the Maastricht negotiations started, of making clear certain objections but also making clear that she would make up her mind whether or not to agree only at the end of the negotiating process?
Lord Howell of Guildford: I shall take those questions in reverse order. Unfortunately, one of the leading voices at the December meeting-namely, the French leadership-made it absolutely clear that there would be no acceptance of the safeguards which my right honourable friend the Prime Minister was seeking. I refer not to safeguards to give special protection to existing interests but to safeguards against further intrusion and further discrimination against interests, which would have affected Britain in particular but other countries as well.
I do not think that the noble Lord will be surprised to hear that we do not publish informal draft text proposals. He may not like that but that has been the practice for a long time and it continues to be the practice, particularly when those taking part are in the middle of negotiations.
Lord Tebbit: My Lords, does the doctrine of collective responsibility apply in these matters?
Lord Howell of Guildford: Broadly, yes-but occasionally with some flexibility, particularly in the coalition, which I know my right honourable friend strongly supports.
Lord Barnett: Does that reply mean that the Deputy Prime Minister has indicated to the Prime Minister that he will have his full support at the next Council meeting at the end of the month, as after the previous meeting he initially indicated his support for the veto even though he now says it stopped nothing-as it did not?
Lord Howell of Guildford: One can trade many words on what occurred at the December Council, but certainly something was stopped: namely, the proposal that there should be a pan-EU, 27-member amendment to the Lisbon treaty. That was stopped by my right honourable friend when he found that the safeguards he sought would not be available and that new intrusions on, and discriminations against, open competition were to be put in place. No doubt what emerges in the future will be developed in a constructive way and, I am sure, will have the full support of my right honourable friends the Prime Minister, the Deputy Prime Minister and all members of the coalition Cabinet.
Lord Pearson of Rannoch: My Lords, do the Government agree that the Greek, Spanish, Portuguese and other people would not be suffering as they are if
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Lord Howell of Guildford: The frank and sensible answer given by much higher authorities than me to the question, "Has the time come?" is, "We do not know". As far as the situation of the Club Med countries is concerned-this applies in particular to Greece, which is having great difficulties in its debt restructuring-we hope that they will achieve it but we do not know, and we are not at all sure whether the necessary measures are in place to meet that short-term need. The broader issue of the fiscal stability union is aimed at the longer-term attempt to make sure that the eurozone is not constantly vulnerable to future crises. However, in the short term, if I told the noble Lord that I knew exactly what would happen, he would not believe me-and he would be right.
Lord Teverson: Does my noble friend agree that it is important in European economic and financial affairs, as it is in personal and social affairs, that one is seen not to snub one's friends, particularly when one might need their help in future?
Lord Howell of Guildford: I have to agree with that general proposition. As far as I am concerned, no snubbing went on. The UK sought to protect its interests and the integrity of the European Union treaty. We will continue to work both for our interests and for the stable and orderly development of EU economies generally. That will require a lot of co-operation but certainly will not require the UK, for instance, to join the eurozone, and no snubbing is involved in saying that we would rather stay out of it.
Lord Triesman: My Lords, I understand the Minister's difficulty in answering some of these supplementary questions. There may not have been 27 countries that took a different view, but there were 26. One reason was that there was little diplomatic contact before the event to discuss it. Indeed, the Minister will find that the officials in his own department lamented the fact that they were not tasked with engaging diplomatically in advance of the December meeting. What can the Minister say about a positive programme of re-engagement to engage and repair relationships-because unless those relationships are repaired the prospects for us having a substantive input are very small?
Lord Howell of Guildford: Words such as "repair" are overdramatised. We are involved in the ad hoc working group and participating not just as observers. We want to see the eurozone crisis resolved in an orderly way for the obvious reason that implosion and disorder on the continent of Europe would undermine one of our chief markets. We are working very closely with our colleagues and the relationships and involvements continue as before. To dramatise this as a tremendous break and imply that Britain is isolated and marginalised
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Asked By Lord Young of Norwood Green:
To ask Her Majesty's Government what steps they are taking to ensure the take-up of influenza vaccination among those who work in the health and care services.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, this winter NHS employers ran a staff communications campaign to increase awareness and uptake of the flu vaccine in front-line healthcare workers. The department wrote to NHS trusts, medical royal colleges, professional bodies and the social care sector for their support in increasing uptake in this group. Good progress has been made. Uptake in healthcare workers to the end of November was 40 per cent, more than double what it was by this point last year.
Lord Young of Norwood Green: My Lords, I thank the Minister for his statement and welcome the improvement, but does he agree that there is still a significant way to go? Indeed, Professor Openshaw, the director of the Centre for Respiratory Infection at Imperial College London, said that in his view healthcare staff should be vaccinated and wear a badge saying, "I've been vaccinated. Ask me why". I am not suggesting a compulsory approach, but more front-line education of staff would be a step forward, as would making vaccination available to health and care workers at their place of work. I would welcome the Minister's comments on those points.
Earl Howe: I agree that there is some way to go. It is encouraging that we have made significant progress this year. Of course, the season is not yet at an end, and we hope that more healthcare workers will still be vaccinated. Uptake rates in healthcare workers have historically been low, as the noble Lord will be aware. A number of reasons have been suggested for that, but there is no doubt about the importance of this issue. Part of the reason is the need to ensure that healthcare workers do not transmit flu to those they are looking after. Also, it is in the interest of employers to ensure that absenteeism for sickness reasons is kept to a minimum.
Baroness Jolly: My Lords, will the Minister clarify whether the same measures will be taken whenever public or NHS money is spent, which is not only in the public sector but in the private voluntary and mutual sectors?
Earl Howe: My Lords, in general it is incumbent on employers, whether in the public or the independent sector, to ensure that their staff are protected appropriately. If my noble friend's question alludes to the fact that independent providers may be offering services to the NHS, then I agree that there is a duty there, and we
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Baroness Finlay of Llandaff: With reference to the contracts and the contracting guidance, is the department considering that immunisation against infection, such as influenza, should be considered as an infection control measure in areas where patients are immunocompromised, such as those who are having chemotherapy or who are on other immunosuppressant drugs? They are at particular risk of high mortality as well as morbidity should they pick up an infection.
Earl Howe: The noble Baroness makes a very valid point. Those types of patient are in the most vulnerable category-the immunocompromised-and it is, I understand, a feature of the normal contract to ensure that those patients are protected to the maximum extent.
Baroness Knight of Collingtree:My Lords, does my noble friend recall a recent report from experts that stated that the present flu vaccine is very much less than universally good for the job that it is trying to do and that further experts reported that work was being done on a more effective vaccine that needs to be given only once a lifetime and that would do the job properly? Is there any further news about that possible development?
Earl Howe: My Lords, the Joint Committee on Vaccination and Immunisation issued a statement in November last year saying that there is good evidence that some new vaccines are demonstrably more effective in children in particular than the non-adjuvanted inactivated vaccines that are currently available. The JCVI concluded that,
However, it also said that a further review of data would be needed on the safety of these vaccines in certain groups, including asthmatics and those who are immunocompromised. There is further work to do in this area.
That the regulations be referred to a Grand Committee.
That the order be referred to a Grand Committee.
Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights, 21st and 22nd Reports from the Delegated Powers Committee
Clause 1 : Lord Chancellor's functions
5: Clause 1, page 2, line 4, at end insert-
"( ) The Lord Chancellor must review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved following the commencement of this Part."
Lord Beecham: My Lords, this amendment amplifies the definition in Clause 1 in respect of the legal aid and advice that the clause requires the Lord Chancellor to secure. Among other things, the clause calls on the Lord Chancellor to,
The purpose of this amendment is to secure the provision of expert evidence where that is needed. The amendment is not intended to be a belated addition to the Christmas stockings of expert witnesses. It is perfectly reasonable for the Lord Chancellor to seek to secure economy in the provision of such services, but that must not be at the expense of ensuring that in appropriate cases there is available to parties to disputes-and indeed to the court-expert evidence of a kind that will assist the court in coming to a decision.
Of course, there are many cases in which expert witnesses can be helpful. They will often be medical witnesses but they may be from other professions; they could be scientists, engineers or surveyors. Therefore, there is a range of professional bodies whose members are called upon from time to time to give evidence in the course of civil litigation-and, for that matter, in some criminal cases.
I want to refer particularly to one group of expert witnesses: the Consortium of Expert Witnesses to the Family Courts, which has submitted interesting evidence to the Justice Committee in the House of Commons and also briefed Members of your Lordships' House. Some 500 professionals are members of that consortium. They have a wide range of backgrounds-from paediatricians to medical and surgical specialists, forensic physicians, psychiatrists, psychotherapists, clinical psychologists, neuropsychologists, educational psychologists and the like. They have given, and give, evidence in a range of cases-usually but not exclusively involving children-in the domestic courts. That evidence will sometimes deal with the physical evidence of non-accidental injury and will also perhaps involve evidence about the impact of situations within the family on the children's psychological and emotional well-being; for example, where there
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The organisation gave evidence to the Justice Select Committee and expressed its concerns about the provisions currently obtaining in respect of the financing of expert witness evidence. Separately from this Bill, the Government have reduced the fees payable to expert witnesses by 10 per cent. In London-it might be thought somewhat paradoxically-fees are now one-third less than those for expert witnesses outside the capital. One might have thought that, with the oncosts in London generally speaking being higher, at least parity would be maintained, but that has apparently not been the case.
The consequence appears likely to be a reduction in the number of expert witnesses who would hold themselves available for cases where they would be publicly funded. It is estimated that 25 per cent of members overall of this group of 500 witnesses would not continue to give evidence in such cases and that that figure would rise to 50 per cent in London. That could seriously impede access to justice and the assistance that would be available to the courts in determining disputes. As I have said, it is not any part of the purpose of this amendment to defend the financial interests of a particular group of experts, and it is not simply a question of fee levels. It is certainly the case that a more efficient use of expert witnesses could save the public purse and perhaps the time of the courts.
The Justice Select Committee heard differing views on the use of experts. It called, in particular, for better case management by judges, with which the consortium agrees. It believes that experts could be jointly inspected so that there would be only one expert in a case, rather than two or perhaps even more; that there could be pre-hearing meetings involving the parties and the experts, so that the ground might be cleared more efficiently; and that the instructions given to experts could be better managed, with more concise and reasoned questions. It points out that it is not unusual to have sometimes 50 or more rather repetitious questions put to experts in a particular case, which is time-consuming and, therefore, necessarily expensive.
The point is also made-it should be said that this is not quite within the purview of the Bill but it reflects a problem which is causing difficulties to experts and thereby, ultimately, to the justice system-that at the moment payment is made through instructing solicitors. As a member of that profession, I am sorry to say that the profession does not have a good record in paying expert witnesses on time or, sometimes, at all. The suggestion made by the consortium is that payments should be made direct by the Legal Services Commission, which is to be absorbed within the department. Presumably, a successor body could have that same function.
What is of slight concern-I do not know whether the Minister is aware of this or whether he will comment on it-is that many of these suggestions were made during discussions with the department. Two meetings
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The problem is that there is a real risk of insufficient expert evidence being available to the court and to the parties. This is not simply a question of paying for the hired gun that one occasionally encounters in the course of practice. I remember one case of mine-a clinical evidence claim-which went to a hearing. While we were awaiting the judgment, the medical witness for the defendant hospital confessed, as it were, that he did not have a case at all. He had gone through the motions of putting a case on behalf of the defendants in what in my view was a rather unprofessional way. That is not typical of the profession and it is not something that anyone would defend. However, as a consequence of that particular case, I still have a connection with the client making the claim and I am desperately trying to seek, for the purposes of matters going on in the Court of Protection, expert evidence from doctors, but only a very few are available to give such evidence. I should say that this is not a legal aid case, but it gives an indication of the scarcity of resources. I am told that it will take at least six months to obtain a report. If this were an ongoing case in court, that would create a clear difficulty.
We need a situation in which sufficient experts are available to assist both courts and parties, and for that matter to provide an element of choice, because it would be wrong if only a very limited number of people were able to give evidence. In this rather unique market, one needs a sufficient number of players. The difficulty with the situation as it is now developing is that we shall see in this instance, as in other instances that we have been debating on this Bill, the probable emergence of a two-tier justice system. In this case, expert evidence will be available only to those who can afford it. That is not consistent with equitable access to justice for all who need it and it is not consonant with the obligation to assist the court by having available the necessary evidence that will enable it to reach the right conclusions. Whatever improvements might be made to the management of the system, this question needs to be kept under
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Baroness Kennedy of The Shaws: My Lords, I support the amendment and want to reinforce my noble friend's concern over creating a two-tier system in which those with money are able to access expertise and those without have difficulty.
I have reflected on the cases in which I have been involved in the past few years where legal aid has made available expert witnesses, and on the fact that I have within the past decade chaired an inquiry for the Royal College of Pathologists and the Royal College of Paediatrics and Child Health into sudden infant death-that was in the aftermath of miscarriages of justice for women who had been accused of killing their babies. What comes out of my experience is the fact that, even with the curtailment of legal aid in the way that is being envisaged by government, there will be areas where the need for expertise will be clear. The Government are saying that legal aid should be available for family cases where domestic violence might be an issue. One of the ways in which a contested question of domestic violence might arise is by having supportive evidence from professionals who have the expertise to assess whether someone has been subjected to abuse. In most of the domestic violence cases that I have done over the years, a breakthrough has been brought about as a result of the legal world understanding the nature of domestic violence through the assistance lent to the courts by experts. Those experts know, for example, that women often remain in relationships which are abusive and do not seek help because of the psychiatric state of learnt helplessness that they develop, where they cannot envisage being able ever to withdraw from the abusive relationship.
I think of the circumstances in which one has had to use experts to establish age in cases; for example, where an applicant's claims to be under age may be an issue in the case. Establishing age is taken up by the state or by other authorities and is done through medical examination and expert evidence. Linguistics quite often arises as an issue in cases; for example, in listening to tape-recorded interviews, where one needs the assistance of people with language expertise. We are talking not just about psychiatrists or medical experts but about psychologists.
Let us think of the huge advance that was made within the justice system by our realising that some people confessed because of high levels of suggestibility in particular personalities. Let us think of the ways in which some people process information aurally, while others have real difficulty in doing so and therefore cannot respond well to questions. Those people often give answers that they later correct because they had not understood and were not able to process complicated questions easily. On issues of culture and difference of religion, I have on a number of occasions in recent years used experts to explain to the court matters of practice in certain religions.
I therefore urge the Committee to reflect carefully on curtailment of legal aid where it would be appropriate
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Lord Elystan-Morgan: I, too, support the amendment that has been moved with such clarity by the noble Lord, Lord Beecham. An expert is not a luxury. Irrespective of how conscientious, patient and thorough a judge may be, there are many technical issues on which he would be lost in coming to a proper, conclusive determination of the case without expert evidence to assist him.
In some cases there will be privately paid experts and no expert on the other side. How can there be an equality of arms in such a situation? Without elaborating on the case that has been properly put by the noble Lord, I would urge on Her Majesty's Government a consideration that the denial of an expert in a proper case is a denial of justice and, more often than not, may not be a saving in net financial terms.
We shall deal later with other amendments on savings. The Government believe that they can save £350 million through the changes proposed in this part of the Bill. The Law Society, very conscientiously, has drawn up a plan suggesting that £375 million could be saved in a totally different way. I appreciate that there are conscientious and genuine differences as to these opinions but I have no doubt that much of the saving which, on the face of it, appears to be attractive in this situation of financial stringency, may very well not be a saving in actuality.
The diminution in the fees of experts was an extremely retrograde step. There was no justification for it and it will reduce the availability of experts. I speak as one who sat for many years in the family jurisdiction in North Wales, where one had to go far afield for experts in the Manchester and Liverpool areas. One was at the end of the queue and had to wait for months before an expert was available. Diminish that availability and you will add to an injustice that already exists.
Lord Clinton-Davis: The consortium has opined that deleterious effects will follow the Government's proposals. It says that the standards and availability of experts will disappear or be badly affected. The Committee is entitled to know-I hope the Minister will discharge this in his speech-what meetings have taken place with the consortium. What are the effects? Are the Government closing their mind entirely to the representations that are being made?
Lord Morris of Aberavon: My Lords, a range of issues could be raised under the amendment, which I support. It is self-evident-it speaks for itself-that there should be accessibility to and a maintained quality of expert evidence. For justice to be done, it frequently turns on the quality and persuasive ability of the expert who is giving evidence.
We are debating the generality of the need for expert evidence. When we come to clinical negligence, we will return to more specific questions about the need to maintain particular panels. People in this field are highly respected and in very great demand, and
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Experts must be paid a proper rate for the job. Not all people want to go to the witness box to be cross-examined; they prefer to stay in the safety and comfort of their own expertise. But there are people who are prepared to give their evidence in the witness box and face whatever challenges there are.
Science moves on and some of this expert evidence becomes highly expensive. There has to be a great deal of investigation, particularly in medical cases. In the most recent case that we have all read about, of Stephen Lawrence, justice was eventually done because of the quality of the forensic evidence that was tendered. The costs, we read, were astronomical. There were years of effort to establish and ensure that no stone was left unturned.
We can see example after example of fingerprints, firearms, forensic accountancy and criminal negligence. Indeed, I have not revisited the issue for some years, but cot deaths were highly controversial at one stage. I suspect by now that scientific evidence is more settled than it was in the earlier years. These are the fields where justice has to be done and be seen to be done, and it saves the state a large amount of money in the long run if quality evidence is available and is tendered on both sides.
Reading this amendment, I cannot see how it can be resisted. If for some reason there is a shortage of available expert evidence because the pay is insufficient to attract eminent men into the witness box, the fact that this amendment was written into primary legislation would certainly be a wake-up call to the Ministry of Justice.
Lord Faulks: My Lords, most Members of this House would approve of the idea of having good-quality expert evidence in cases. In the area in which I practise there have been considerable strides forward in that regard. Although the noble Lord, Lord Beecham, speaks of hired guns and undesirable practices, it should be known that much has improved in this area, not least thanks to the major contribution of the noble and learned Lord, Lord Woolf, the CPR, the exchange of experts' reports, experts' meetings and a sensible control of the questions that are asked, so I would not like the House to get the impression that the world is a jungle where experts are concerned. Litigation is much more orderly than it was and the noble and learned Lord, Lord Morris, is quite correct that good experts often produce settlement and good results.
While I certainly applaud the sense the amendment, which is to encourage good-quality experts, the reason why they are sometimes not available is not simply because of money. There are difficulties simply in finding the right experts for the right cases because they have other commitments. Let us take paediatric neurology, for example, an area that is particularly important in clinical negligence cases. Very few are available, and they are very often not available for many months. In other words, there are factors that are not easily within the reach of any form of legislative provision. While approving the general spirit of the amendment, I would countenance some wariness in enshrining this in any legislative form.
Lord Howarth of Newport: My Lords, as everyone who has spoken has said, it would self-evidently be a false economy and prejudicial to justice if the Government were not willing to spend the money that they genuinely need to spend in ensuring that the expert evidence required is available to the courts. I ask my noble friend Lord Beecham, who moved the amendment, and the Minister-if, as he surely must, he agrees with the thrust of the amendment at least-what their views are on the appropriate methodology under the amendment. Does my noble friend consider that there should be some sort of standing body independent of the Ministry of Justice that would have the task of keeping this issue under continuous review and to report from time to time? I would have thought that it would be a continuing necessity for the Lord Chancellor to have the benefit of such advice so that he can be sure that the taxpayer is not being asked to spend more than is genuinely necessary under this head, but equally to be sure that sufficient resources are being provided. How does my noble friend or the Minister envisage that this function should be carried out? Perhaps they could say something about the practicalities of ensuring that that takes place, as that would be helpful.
Lord Walton of Detchant: My Lords, I had not intended to speak on this issue, except to give brief support to the amendment that has been tabled by the noble Lord, Lord Beecham, which he expounded so very clearly. My own personal experience of giving expert witness in neurological cases over many years, not for a long time but many years ago, has led me to give warm support to this proposal. It is fair to say that we heard comments a moment ago about expert witnesses in the field of paediatric neurology. This is an extremely difficult and sensitive area, particularly in cases of alleged child abuse when views have been taken by different experts on very good scientific evidence who have come to totally opposing opinions about the nature of the problem.
On the other hand, looking back on personal experiences, I have to say that the mechanism that I was familiar with many years ago has not been explored sufficiently. When I was involved in giving expert evidence in cases of head injury in miners, I remember receiving letters jointly signed by the then National Coal Board and the National Union of Mineworkers, saying that they would accept my report as being binding on both parties. That kind of
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Lord Woolf: My Lords, may I say a few words in support of this proposal? Expert evidence is an area in which the courts have had considerable difficulties in the past. However, following on from what the noble Lord, Lord Faulks, said, it is right to acknowledge that great progress has been made over recent years in the way in which expert evidence is used in the courts, but the amount of knowledge that is available for expert reports in connection with litigation is limited. I suggest no more than that a review of the sort suggested in the amendment is well needed.
The Minister of State, Ministry of Justice (Lord McNally): My Lords, I am most grateful to all noble Lords who have contributed to the debate. It has gone slightly wider in the use of experts than the narrow interpretation given in the amendment, and in some respects has read into the amendment things that are not there, but I shall try to deal with the points raised and noble Lords may then understand better what I am saying.
On the point made by the noble Baroness, Lady Kennedy, we are not withdrawing funds for experts. Where the case has public funding under legal aid and funding for expert opinion is appropriate, funding will be made available. The Government are working with the Legal Services Commission to develop and put in place a robust client and provider strategy that both reflects the demands and requirements of the new legal aid market and obtains the maximum value from the ongoing structure developed in the legal aid market.
In the Government's response to the legal aid reform consultation, we confirmed that we would not be considering contracting with or paying experts directly in the short term because of the administrative costs to the LSC. However, when we have had time to consider the family justice review final report, which came out just before Christmas, we will look at this matter again. At the moment, there is no plan for the LSC to take this on from the solicitors to whom the noble Lord, Lord Beecham, referred.
Amendment 5 seeks to impose a duty on the Lord Chancellor to review the accessibility and quality of expert witness advice for the purposes of civil proceedings, as well as a duty to maintain or improve such accessibility and quality following the commencement of Part 1 of the Bill. This is an entirely unworkable amendment, in our opinion. By definition, expert witnesses are highly qualified and experienced professional individuals in their normally very technical fields. As professionals, they will be subject to the standards required by their respective professional membership bodies. It is not within the Lord Chancellor's gift, nor should it be, to determine the quality provided by any given expert witness. Principally, this would be inappropriate; the Lord Chancellor cannot be expected to be in a position to determine the quality of the expert evidence or advice given, not least because the requisite expertise would not be held to reach a credible determination.
The costs of establishing a mechanism to assess credibly the quality of expert witnesses would also be prohibitive. Even if resources were unlimited, we have severe doubts as to the viability of such a mechanism. Disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate and even litigation.
Lord Campbell of Alloway: In trying to follow this, I must say that surely the question of the quality of the expert evidence is not fundamental. The fundamental question, is it not, is whether they need expert evidence. Who decides that? Is it an independent person or is it the legal aid authorities? Could I ask for an answer, if it is relevant?
Lord McNally: I refer to quality because the amendment itself does so, but the application for legal aid will go to the new director, who will consider both the question of legal aid and whether there is justification for having expert witnesses, as I said before.
As I said, disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate, even litigation, and the notion of a single objective standard that could be applied without reviewing evidence or advice given on a case-by-case basis, bearing in mind the myriad scenarios-in which, for example, a psychologist might be giving evidence or advice-does not hold water. Equally, we find the notion of accessibility somewhat difficult in the context of expert evidence. By definition, these individuals are experts in their fields and therefore few in number, and their engagement in any given proceeding is, outside the major urban conurbations, unlikely to be geographically convenient-a point made by the noble and learned Lord. Under the current framework, experts are quite naturally drawn from far and wide and it is not within the Lord Chancellor's gift, nor should it be, to try to control or influence the geographical distribution of experts in England and Wales.
The noble Lord, Lord Beecham, referred to the matter of lower rates being applied in London. The fact is that expert provision reacts to normal economic considerations of supply and demand. It follows, of course, that in areas of higher supply there is greater competition, and it should be open to the Government to pay slightly lower rates to reflect that position.
I should also add that paying differential rates in different geographical areas is not a new concept. In the criminal legal aid payment scheme, the differences in delivery cost to providers are reflected in the differential rates payable, as is the concept of economies of scale for those residing in major urban conurbations. Wider economic features such as supply and demand must, from the purchasing point of view, be considered when setting rates of remuneration, and neither expert remuneration nor legal practice remuneration can be exempt from such considerations. The code to define rates for experts introduced in October last year was based on the benchmark or guidance rates applied by the LSC to guide caseworkers when assessing expert
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The benchmark rates are being developed by experienced civil bill assessment staff at the LSC and are based on their experience of typical hourly rates charged by experts in their respective geographic regions. The rates reflect the LSC's experience that there is a greater supply of experts in London, which allows more competitive rates to be paid.
Baroness Kennedy of The Shaws: I am sorry to interrupt. On the issue of the assumption that experts will cluster in London rather than elsewhere, the experience, particularly in the medical field, is that-after, for example, the "sudden infant death" debacle and miscarriages of justice, and due to the feeling that there has been considerable criticism of paediatricians or pathologists over matters involving children-there is now real reluctance among people to be experts. It is not that there is a plethora of experts around; in fact, the opposite is the case. It is very hard to get medical people to come forward as experts in the courts because they do not want to have that kind of exposure. They also find that they are not paid enough money to make doing so worth cutting into their professional time. There is a misunderstanding about the availability of experts, particularly in the medical field.
My point about domestic violence is that in family cases, where on the whole there will not be legal aid, if someone is claiming that they have been a victim of domestic violence then they will be able to claim legal aid, but often there will be an argument over whether indeed there has been domestic violence. It is experts who often can resolve that. Will there be legal aid available to help to resolve the issue of domestic violence in order to enable access to legal aid?
Lord McNally: I do not think that I can give that assurance. The more that this goes on, the more that one can see why the Government are reluctant to accept an amendment that would impose a kind of impossibilism on the Lord Chancellor. We are working our way carefully with the LSC to a system that we think reflects the position. I hear what the noble Baroness is saying about the availability of expert witnesses. This is not the conclusion to which my right honourable and learned friend the Lord Chancellor has come; he thinks that this structure will provide the necessary experts. The more that we hear these examples given, the more I believe that the idea that legal aid or public funds can fund the whole range of expertise that the noble Baroness was suggesting is dangerous and one that I cannot possibly support from the Dispatch Box. I think that we will see some of the worst-case scenarios but we have confidence that the system we are setting up will carry on some of the procedures and reforms set in place by the previous Administration, and that it reflects an effective way of using public money. Therefore, accordingly, I ask the noble Lord to withdraw the amendment.
Lord Beecham: My Lords, I am grateful to noble Lords who have spoken in this debate. Several noble and learned Lords have been very sympathetic to the
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I find the Minister's response disappointing, to put it mildly. In answer to my noble friend Lord Howarth, I should say that a body to advise the Lord Chancellor in the exercise of the functions proposed by the amendment would be the right approach. However, the real issue here is accessibility, which depends on there being sufficient witnesses who are ready and willing to give evidence to assist parties and the courts. There is a clear concern about that, which is magnified by the issue of fees. The Minister rather airily dismissed the question of the availability of witnesses but did not address the point that I raised about the National Health Service finding difficulties with the proposed arrangements. My noble friend Lord Bach has handed me a letter which he has just received from the chief executive of the Central and North West London NHS Foundation Trust. The chief executive says that she writes,
That is clear evidence of the kind of problem that we will see and which will presumably grow over time.
The noble Lord raised the issue of London having more people, and so on. However, a London expert giving evidence somewhere else, as many of them will have to do, will presumably be paid at the London rate, whereas an expert in a provincial city will presumably be paid at a lower rate. It seems incongruous to me.
I hope that the Government will look again at this and perhaps answer-if not on this occasion, then in writing-a question which was put by, I think, the noble Lord, Lord Clinton-Davis. What discussions have taken place with the consortium to which I referred, and were there any positive responses? In particular, if a third meeting was promised, why did it not take place? At this stage, however, I will not press the amendment, but beg leave to withdraw it.
6: After Clause 1, insert the following new Clause-
"Pre-commencement impact assessment
(1) The Lord Chancellor must commission an independent review to assess and report on the following areas-
(a) the expected costs and impacts of Part 1 on-
(i) children and young people;
(ii) people with disabilities, including people with learning, physical, mental and psychological disabilities;
(iv) victims of domestic violence;
(v) black and ethnic minorities;
(vi) government departments;
(vii) courts and tribunals, including any changes in time and resources; and
(viii) local authorities; and
(b) any expected impact of Part 1 on-
(i) the incidence of homelessness;
(ii) the incidence of ill-health, or suicide;
(iii) the commission of criminal or anti-social behaviour; and
(iv) the future provision and availability of services including, but not limited to, law centres and citizens advice bureaux.
(2) The Lord Chancellor must lay a copy of the final report commissioned under subsection (1) in both Houses of Parliament at the same time as laying a draft commencement order for any other section in this Part."
Lord Bach: My Lords, in moving Amendment 6 I will speak also to my Amendment 194. In this group there are also two amendments in the name of the noble Lord, Lord Martin of Springburn, namely Amendments 191 and 195. My amendments would require the right honourable and learned gentleman the Lord Chancellor to lay before Parliament a full independent impact assessment of the planned cuts to legal aid before the Bill-or the Act, as it then will be-can commence. Inter alia, we would require him to quantify the impact on groups with what are described as protected characteristics-namely children and young people; people with disabilities, including those with learning, physical, mental and psychological disabilities; women; victims of domestic violence; and black and ethnic minorities. We would also like him to quantify the impact on the public purse, other government departments and courts and tribunals, including any changes in time and resources. We would also like him to quantify the impact on local authorities. Finally, we would like him to quantify the impact on the incidence of the most severe negative outcomes for individuals and society-namely first homelessness; ill health, and perhaps suicide; and criminal or anti-social behaviour-and on the future provision and availability of services, including but not limited to law centres and citizens advice bureaux.
These amendments have been tabled simply because the Government have failed to get to grips with the serious consequences of their proposed legislation. They simply have not quantified the impact of the cuts on the individuals involved, on society or on the public purse. I concede at once that the Government have at least tried to describe what some of the impacts might be. The Government's impact assessment, which they made in their response to the consultation process, states that their cuts threaten,
particularly in higher benefit payments for people who have spent their savings on legal action.
Those are pretty extraordinary statements. It sounds a bit like the end of the world, does it not? If this legislation results in reduced social cohesion and increased criminality, it will go not only against everything that the Government support-a big society, and, of course, less crime-but against everything that all of us believe in, which is more social cohesion and less criminality. The Government cannot be accused of not being honest. They are honest to a fault if this is what they say will be the consequence of their Bill. However, they can be criticised for putting forward a Bill which in their opinion will have those consequences.
Given that the aim of these cuts is to save money, it would seem prudent for the Government to have calculated how much will be saved, not least because in March 2011-about 10 months ago, after the consultation had ended-the Justice Committee in the other place, following an inquiry into these proposals, was critical of the Government for not assessing the likely impact on spending from the public purse. I wish to quote from two paragraphs of the report. At paragraph 69, on page 32, it states:
"According to the Government's own figures, the changes it is proposing to the scope of legal aid will result in 500,000 fewer instances of legal help"-
we know that the figure is much closer to 650,000-
At paragraph 136, the report comes to the following conclusion:
"It has been put to us that the removal from scope of many areas of social welfare law will lead to significant costs to the public purse as a result of increased burdens on, for example, health and housing services. We are surprised that the Government is proposing to make such changes without assessing their likely impact on spending from the public purse and we call on them to do so before taking a final decision on implementation".
That was in March 2011. We are now in January 2012, and the Bill has been through the other place and is in Committee in your Lordships' House. Why have the Government not produced such assessments, as the Justice Committee invited them to do? I invite the Minister who will respond to this debate to tell the Committee why they have not done so.
The Government have rejected out of hand an analysis by Citizens Advice that can be found in its research paper entitled Towards a Business Case for Legal Aid. Most Members of the Committee will know the basic headline numbers:
"For every £1 of legal aid expenditure on housing advice, the state potentially saves £2.34 ... For every £1 of legal aid expenditure on debt advice, the state potentially saves £2.98 ... For every £1 of legal aid expenditure on benefits advice, the state potentially saves £8.80 ... For every £1 of legal aid expenditure on employment advice, the state potentially saves £7.13".
It is calculated that the proposed cut of £60 million from social welfare law will cause the withdrawal of advice services that currently save the state £338,065,000 in spending on other services.
The Citizens Advice report had some methodological rigour behind its calculations and used an array of gold-standard data. No criticism of that has yet got home. The Government owe it to themselves, to Parliament and, most of all, to those whom the cuts will disenfranchise to assess the veracity of those numbers. If they do not do so, they must provide, as the amendment argues, quantified assessments of the knock-on costs. As has already been mentioned by the noble Lord, Lord Elystan-Morgan-and the timing is almost perfect-if the Government will not do this job, then someone has to do it.
Yesterday, as the Committee has already heard, the report entitled Unintended Consequences: the Costs of the Government's Legal Aid Reforms was published. It is the work of Dr Cookson, from the Department of Management at King's College, London, and was commissioned by the Law Society. Not surprisingly, it has attracted a considerable amount of publicity in the past 24 hours or so, including on the "Today" programme very early this morning. I am afraid that it was too early for me to have listened. I am not going to go into detail, because noble Lords will know what I am talking about, but the report finds that in order to save some £239 million it will cost at least £139 million. The author's first point is that,
The report does not attempt to forecast total unbudgeted costs, because a lot of the data have not been published or recorded, but the cautious conclusions it reaches are, I argue, pretty devastating. They do not take account of the £200 million that it is intended to save by delaying the start date. Why do I say devastating? On clinical negligence savings, it states that the cost of saving £10.5 million will be £28.5 million. That is not a saving at all-it is the very opposite.
We hope that the Government will take some notice of the report published yesterday. But will they take notice of the courts? The Judges' Council has stated:
"Neither the consultation paper nor the accompanying impact assessments address that question"-
the question of more litigants in person-
Among the functions of the Civil Justice Council, an advisory body set up under the Civil Procedure Act 1997, are to keep the civil justice system under review, to consider how to make civil justice more accessible, fair and efficient, and to advise the Lord Chancellor and the judiciary on the development of civil justice. I dare say that its introduction was due very largely to the noble and learned Lord, Lord Woolf, and his report. It set up a working group on the vexed question of how many more litigants in person there will be and what to do about them. It considered what steps could be taken to improve access to justice for litigants in person. It is an extremely impressive
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"Access to justice for all is central to the Rule of Law. The proposed reduction of publicly-funded legal aid, and the current cost of privately-paid legal services, are likely to lead to a substantial increase in those whose access to law is unaided by lawyers. The result will be no access to justice for some, and compromised access to justice for others".
It makes the point very strongly that, in its view, the cuts to social welfare legal aid are potentially very serious. To end what I have to say on this aspect, the report states:
"Even if all the recommendations we make are acted upon, they will not prevent the reality that in many situations, as a result of the reductions and changes in legal aid, there will be a denial of justice. There must be no misunderstanding about this. Put colloquially, the recommendations are about making 'the best of a bad job'".
I am keen not to go over the 15-minute limit in proposing the amendment. There are some other matters I would like to talk about, but I shall not on this occasion. The point I want to make in supporting my amendment is that the Government have, for some reason or other, in this case not provided sufficient information or assessment about the consequences of the Bill they are asking Parliament to pass. This is not an insignificant Bill. It has profound effects on access to justice and people's actual lives. It is a fair argument, I hope, that the least that we could expect as legislators is that there would be a better assessment of the costs in both social and economic terms of the Bill before us. In my view, there is not that analysis. That is disappointing; in fact, I think it is scandalous. When the Minister sums up the debate, I would like him to answer the question: why?
Lord Wigley: My Lords, I support Amendment 6, which was so reasonably moved by the noble Lord, Lord Bach, and to which I have added my name.
The impact on society of some of the provisions in the Bill will be major and far reaching-perhaps further reaching than was anticipated when the Bill was formulated. I suggest that the Government have attempted to rush through so much legislation that little time has been given to the impact assessments. All Bills tend to have unintended consequences, but overloaded Bills such as this, covering material which perhaps should have been spread over two or three separate Bills, will have even more unforeseen consequences.
During Second Reading, I argued that the cuts in legal aid would have a disproportionate effect on the most vulnerable people in our society. This includes people with mental health problems and other disabilities, who will find it impossible to gain access to free legal advice due to the complexities arising in those cases. It also includes children and young people-particularly those caught up in messy divorce cases and in the likely psychological trauma that can ensue from lengthy court battles, many of which will no longer be covered by legal aid. It also includes those suffering domestic abuse, many of whom will not qualify for legal aid, as the spectrum of abuse that the Government concede to recognise is so narrow.
People with disabilities or mental health issues, children, young people and sufferers of domestic abuse are the groups that will be affected by the changes. However, as the amendment points out, the Bill is likely to have further unintended consequences on the rate of homelessness, social integration and, indeed, suicide. I support the amendment of the noble Lord, Lord Bach, as it would ensure that the Government had a duty to conduct an assessment of the likely impact that these changes would have on such vulnerable groups. It would also require the Government to review the likely costs that would result for these groups were the provisions in the Bill to be introduced.
As the noble Lord, Lord Bach, has noted, that is particularly important if we take into account the findings of the King's College, London, report, Unintended Consequences: the cost of the Government's Legal Aid Reforms, published yesterday. This shows that the cuts will result in unbudgeted costs of at least £139 million, cancelling out about 60 per cent of the £240 million projected from the legal aid cuts. The author of the report, Dr Graham Cookson of King's College, argues that this research undermines the Government's economic rationale for changing the legal aid budget. He also points out that £139 million is likely to be a substantial underestimate of the true cost. It certainly begs a question as to the extent to which the impact of these cuts has been properly assessed.
This follows on from the findings of the Government's own impact assessment that the proposals present a risk to social cohesion and the possibility of higher criminality, reduced business and economic efficiency, and increased resource costs for other departments. This finding was noted in the Ministry of Justice's cumulative impact assessment of November 2010, yet the Government have done nothing to counter these appalling consequences which will come about as a result of the Bill's implementation.
According to the King's College report commissioned by the Law Society, private family law will see knock-on costs of £100 million per annum set against the proposed saving of £170 million; social welfare law will see knock-on costs of £35.2 million against a £58 million saving; and clinical negligence cases will see knock-on costs of £28.5 million set against a saving of only £10.5 million. These proposals alone would cost the NHS three times the amount that will be saved by the Ministry of Justice.
The report does not include other costs identified by other research, including the analysis conducted by Citizens Advice in 2010, which suggests that the proposed cut of £60 million from social welfare legal aid will spell the closure of advice services that save the state some £338 million. This point is of course addressed by the amendment of the noble Lord, Lord Bach. In fact, the amendment urges the Government to look at the complete picture-at the destructive impact that these cuts will have on the fabric of our society. I urge noble Lords to support Amendment 6.
Lord Judd: My Lords, I support the amendment. As my noble friend argued so well in his introduction, it deals with the central character of the Bill. Inevitably
10 Jan 2012 : Column 27
The Government talk a good deal about their desire for partnership with the voluntary sector. I hope that this is a genuine, creative endeavour and not a cynical one. What is as clear as it could be to any of us who have worked in the voluntary sector is that as a result of the Bill the costs that will land on the budgets of that sector will increase very considerably, and the workload of the sector will inevitably increase. Therefore, before we come to final conclusions on the legislation, it is essential that we understand the ramifications, costs, burdens and adverse impacts that legislation of this kind is likely to have. I am very glad that my noble friends on the Front Bench are making a major stand on this issue. They are right to do so.
I will deal with another small matter and say that I support the utterly practical and sensible amendment tabled by the noble Lord, Lord Martin of Springburn. It is absolute madness-I refer to the economic rationale of the Bill-for us to embark on legislation of this kind without a comprehensive, authoritative and extensive review of what the cost to the courts system will be. If as a result of Parts 1 and 2 there will be an increasing number of personal litigants without professional support, over the years the cost of the administration of justice will increase very considerably. We need this information before we can make an informed decision.
The amendments go to the essence of what deeply concerns many of us about the implications of the Bill. I hope that my Front Bench will pursue the issues as vigorously as they have raised them.
Lord Pannick: My Lords, I, too, support the amendment. The case for the Bill depends on two factual premises. The first is that the Bill will save large amounts of public money. The second is that it will not cause the damage to access to justice for vulnerable groups that is feared by critics because there will be other means of providing advice and information. Each premise is highly contentious and each depends on assertion rather than evidence. Therefore I find it very surprising that the Government conducted no serious analysis of the facts relating to the impact of the Bill on these two vital matters before bringing the legislation before Parliament. Since the work was not carried out before the Bill was presented, surely it is vital that an independent assessment is carried out before it is implemented and brought into effect.
As I understand it, there will in any event be a substantial period of time between Royal Assent for this Bill and the bringing into effect of its main provisions. The amendment will not in any way commit the Government to accept the contents of the independent report. The report will be information that will be before the House and the other place when a commencement order is brought forward, so I, too, support this amendment. I very much hope that the Minister will be able to give a more positive response
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Lord Howarth of Newport: My Lords, my noble friend Lord Bach is quite right to table an amendment requiring that the Government make an impact assessment before the commencement of this legislation. The Lord Chancellor wrote an article in the Guardian on 20 December in which he said:
"Access to justice is a fundamental part of a properly functioning democracy ... Those most in need must be helped where they face serious injustice".
Those are fine professions of principle, but I do not think that Guardian readers should assume that all will therefore necessarily be well.
It is true that it is difficult to assess the impact of removing welfare cases from the scope of legal aid. The Government's own impact assessment stated:
"Any significant change in case outcomes may be associated with social and economic costs if this leads to wider economic and social issues arising (for example, relating to health, housing, employment or offending). There may then be associated costs to the Ministry of Justice, other government departments or public bodies or to society as a whole".
That somewhat tortuous prose perhaps betrays the embarrassment of the authors of that document. It acknowledges that there are indeed risks of the kind that we fear. However, it goes on to claim that there is not enough evidence to quantify or further examine those costs for any area of legal aid and therefore the implication is that the attempt should be abandoned.
I cannot accept that. It seems to me that where you have very real risks to the well-being of individuals and families as well as to access to justice, every effort should be made to continue to identify the hazards and the potential costs of the policy of taking welfare out of scope. If, indeed, it proves impossible to measure with any reasonable exactitude, and at the same time common sense tells us that the dangers of the policy are great, then surely the proper conclusion is to abandon the policy. Since I do not think that the Minister is going to tell the Committee at the end of this debate that he is going to abandon the policy, I think we must support this amendment.
My noble friend's amendment prescribes the approach that should be taken by those who are making the impact assessment. He itemises categories of vulnerable people. He is right to focus our concern on particular groups of people so that it should be possible for the Government and the wider public to understand what the impact of this policy would be on particularly vulnerable groups at moments in their lives of exceptional vulnerability.
I have two concerns about my noble friend's amendment. The categories that he has selected are not sufficiently comprehensive. Women, for example, are specified, very rightly, but what about men who find themselves dealing with bad employers, bad landlords or bad benefits decision-makers? Indeed, is there not a risk that my noble friend's amendment might be discriminatory in this regard? Who does my noble friend mean by "young people"? We know that 22 per cent of 18 to 25 year-olds are facing terrible difficulties
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My other concern about my noble friend's amendment is that these categories overlap. I think we are all familiar with the remarks of the tribunal judge Robert Martin, the president of the Social Entitlement Chamber, who said in response to the Government's consultation:
"The principal flaw in the Government's approach is the reliance on thematic categories of law as proxies for determining who is in need. These categories only have a loose association with real lives and real problems".
Disability, discrimination, unemployment, debt, relationship breakdown and ill health chase each other around and tangle with each other. In picking on particular categories of case where legal aid will cease to be in scope, the Government are attempting-unrealistically and dangerously-to unbundle the reality of people's lives. My noble friend, constrained by the structure of the Government's own legislation and policy, is driven in his amendment to do the same.
I think it was the noble Lord, Lord Newton, who said in an earlier debate that actually what is needed is a combined impact assessment. It is estimated that not less than 135,000 people will be affected by the withdrawal of welfare cases from the scope of legal aid, more than half of them disabled people. We need a really searching analysis to try to discover what the impact of the totality of these policies will be on the totality of their lives. However, the Government do not want to do that. The Green Paper stated:
"We consider that these issues"-
these are financial issues for people in poverty-
Ministers are at risk of finding themselves in a philosophical quagmire if they attempt to specify what is of "lower objective importance", but I do not really mind about that. Common sense and common sympathy tell us that extreme poverty means inability to provide basic needs, malnutrition and prejudice to physical and mental health. Is that not fundamental?
Whatever the objective justification, I believe that the policies are reckless, especially given the huge incidence of erroneous benefits assessments and of successful appeals against those assessments. For example, in the case of appeals against a refusal to award DLA, I understand that the success rate for people who are accompanied and supported at their hearing is 60 per cent. The error rate in benefits assessments is well nigh certain to rise with the transition to universal credit, employment and support allowance and personal independence payments. Especially the policies are reckless at a time of economic blizzard,
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I cannot but feel that Ministry of Justice policymakers live in another world. The Green Paper told us, with an apparently straight face, that,
We are reminded by Justice for All, a campaigning consortium of a large number of immensely respected voluntary organisations in our country, that the DWP issued 8,690 pages of advice to its decision-makers in 2009. It is not only the regulations that have to be understood but the case law.
In the House of Commons, the Lord Chancellor expressed the view that people were,
People in poverty face constant, daily, interlocking problems. They do not want to have to go to tribunals or courts, which would be one more problem and ordeal for them in their lives. They want good advice at an early stage; that is, the good advice that the Government will no longer play their part in funding so that such people can be helped to solve their problems before they ever get to tribunal or to court.
In her lecture last summer, the noble and learned Baroness, Lady Hale, said:
"Courts are, and should be, a last resort, but they should be a last resort which is accessible to all, rich and poor alike".
The Government are taking away that accessibility to all-the poor as well as the rich. The Green Paper states:
"We note that help and advice are available from a number of other sources".
That is their justification for removing legal aid from law centres, CABs and other sources of advice. But, in reality, will that help and advice be available? Charities, such as the CABs, and statutory agencies, such as Jobcentre Plus, disagree with the Government. They say that they will not be able to continue to provide that advice or that it is not their proper function to provide it. In tabling this amendment, my noble friend is absolutely right that it is essential to assess the reality of this availability of advice before commencement.
Indeed, my noble friend might want an assessment to be made of the impact more widely on the economy as a whole. To take one instance, disabled people placed on the wrong benefit without tailored assistance to help them find work are less likely to find work. The Government complain about the soaring cost of the incapacity benefit bill, but this policy will increase that cost.
The savings will not happen. The Government tell us that they expect to make savings of £25 million by taking welfare benefits out of scope. The amendment rightly calls for an assessment of the impact on government departments; the impact on costs for the Ministry of Justice with the absence of the screening out of unrealistic cases that the present legally aided system makes possible; the increase in self-representation, which will cause access to justice to be blocked for
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Other government departments will also suffer, particularly the Department for Work and Pensions in its transition through the welfare reform programme. The Department of Health will see the costs of supporting people with mental health problems increase-I fear because of increased poverty, people's struggle to cope and perhaps, particularly, because of their sense of injustice. CLG has to recognise that there will be an increased incidence of homelessness and of housing crises for individuals.
The Public Accounts Committee has drawn attention powerfully to the failures by Governments-Governments of all parties-properly to assess the costs of their policies. Here is yet another instance. In not many years' time, it may well be that, if this policy comes to pass and is implemented, the Public Accounts Committee will be doing an examination of something that was improvident, and the costs of which were not properly assessed but which have proved to be burdensome-not only grievously burdensome on individuals in need but on the economy as a whole.
However, the main arguments are social and moral. For an illusory saving of £25 million, is it really worth creating the fear, injustice, poverty, suffering and hopelessness that I believe these policies will produce? It is a measure of the quality of a Government and of a society how they treat their minorities, particularly those most disadvantaged and those who may not be particularly popular. I notice that over the past week or two there has been a series of articles in the Daily Mail which have all the fingerprints of an MoJ briefing on them. They caricature the lives of the sorts of people who are "making free" with taxpayers' money on legal aid. These people may not be popular-those who make a mess of their lives often are not-but, as I have said, it is a test of the quality of a Government and of a society that decent care is taken even of those who are widely disregarded.
It is important that this assessment should be made, and indeed my noble friend might have wanted to go further by requiring an annual assessment. At any rate, the Government should continue to examine the evidence before introducing policies that exclude the poor from access to justice. Parliament and indeed the Government themselves should have the opportunity to think again.
Baroness Massey of Darwen: My Lords, I want briefly to support this amendment moved by my noble friend and to welcome the contributions made by my noble friends Lord Judd and Lord Howarth about the potential downward spiral of misery that the Bill may bring on society. Of course we need a review of the costs for the groups and systems listed in this amendment. The lack of costing is very worrying, but what also concerns me is the impact on people's welfare and health and on the stability of their lives. It has been said before that this is about justice and morality.
I want to give an example of the costs and impacts on young people. Later amendments will discuss the impact of the Bill on children and young people, on
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As it stands, the Bill will lead to nearly 26,000 young people aged under 25 losing legal aid for social welfare cases each year. I will not go into a detailed breakdown now because I want to save that for my later amendments, but 26,000 young people may be plunged into misery and may not be able to find work, and their families will feel the impact of that, along with the rest of society. Protecting access to social welfare legal aid for all children and young people under the age of 25 would cost around £5.8 million a year. By way of comparison, the Prince's Trust estimates that the weekly cost of youth unemployment is £20 million, which is an enormous contrast. Protecting legal aid for young people with disabilities and for care leavers is likely to cost a modest amount. I ask the Minister whether an assessment has been made of the size of these groups of young people and whether an estimate has been made of the costs that will be incurred by the measures proposed in this Bill. Also, how will the Government assess the potential of other impacts, such as those profiled by my noble friends Lord Howarth and Lord Judd? It is not just about money; it is about quality of life.
Baroness Lister of Burtersett: My Lords, like my noble friend Lady Massey, I want to draw attention to the impact of the proposals on quality of life. Like other noble Lords, I received a number of representations from organisations speaking out on behalf of various disadvantaged groups. Their representations bring home to me the need for a fine-grained impact analysis of the changes on people's lives. The impact analysis that we have received does not provide that.
I want to draw attention to a few of these groups-we will talk about them in much greater depth later. My noble friend spoke about children and young people. The group JustRights has written about the vulnerability of those who are able to access legal aid in their own right. It says that 80 per cent of young people who report civil legal problems face other disadvantages such as lone parenthood, mental health issues and exclusion from education, employment and training. The group refers to the range of legal issues that these young people may need help with, one of them being immigration.
I spoke recently at a Law Society conference on social and economic human rights. A presentation was made by a group of young people from an organisation called Refugee Youth. Everyone at that conference was immensely impressed and moved by it. Afterwards, those young people wrote to me about the Bill. I hope that noble Lords will allow me to read from what they sent. They wrote:
"Many of us arrived as separated children, and have been through the asylum process. That has been successful for some of us, but not for all; and while many (not all) of us have been granted permission to stay in the UK, for some this has come from a non-asylum immigration claim",
which is relevant to this Bill. They continue:
"Indeed many of us have experience of being refused asylum, but granted permission to stay for up to 3 years; and having to bring an immigration claim and appeal at the end of that period ... We are very worried about the Legal Aid, Sentencing and Punishment of Offenders Bill, and the effect it will have on children and young people going through the immigration system in the future".
They are not talking about themselves; they are talking about other young people who might be in the same position. They mention that it was said in the House of Commons that such young people would be assigned a social worker but they say why that is not adequate. They do not feel confident that social workers would have-and there is no reason why they should have-the legal expertise to be able to help such young people.
The organisation has produced a very useful briefing-I shall not read it all, obviously-in which it gives a number of reasons why it is so worried. It says:
"The court systems are intimidating and uncomfortable for young people ... A court room is not made to be friendly, it is really intimidating. Having a lawyer makes you feel safe. As young people we feel we don't have authority anywhere-let alone in a court room".
It then quotes from some young people. One said:
"I had a really good lawyer and even though she was with me going to court was still one of the scariest things I have ever been through"-
this was from someone who had sought asylum. Another said:
"When I just had to say my name in court I was so scared and stuttering and shaking-I can't even imagine how scary it would be to represent myself".
"It is too scary to relive traumatic experiences we have been through in court. Some things are too painful to represent ourselves".
The organisation then makes the point:
"Unaccompanied young people rely on the expertise and knowledge of lawyers to represent them ... Often we come from countries where you can't criticize the police or the government or any authority, so sometimes we don't know when it's safe to speak out and tell our story. We need advice and support from our lawyers. When a lawyer is involved matters are taken more seriously".
It is concerned about the quality of legal representation from private lawyers and the fact that they do not have the finances to pay for legal representation themselves. One individual said:
"If I hadn't had that Legal Aid I don't know what I would have done. I didn't have a penny to pay for a lawyer and if I had to represent myself I would have no idea what evidence to provide".
"From our personal and lived experiences as young people involved in the asylum and immigration system we are absolutely certain that the proposed changes will have a severely damaging impact on us and our peers".
Although that is a very subjective impact statement, it is rather telling and moving.
We have had other representations, such as from the National Federation of Women's Institutes, which welcomes the concessions that have been made around issues of domestic violence and immigration but
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My noble friend Lord Howarth rightly said that it is probably unlawful to say that we should study only the impact on women, but we need a decent gender impact assessment of the Bill on the differential impacts on women and men. The withdrawal of legal aid from welfare law cases, I suspect, will show a disproportionately adverse impact on women because women are more likely to be claiming many of these benefits and are more likely to be living in poverty than are men.
We have had briefings about disability. Scope produced a helpful impact report, Legal Aid in Welfare: The Tool We Can't Afford to Lose, underlining how important the legal aid scheme is to disabled people, who again will be disproportionately affected by its removal from welfare law cases, and again underlining the importance of this at a time when the Government are making what they have said is the most radical reform of social security in 60 years.
Important, too, as we have heard, is the impact on legal services and advice services, which we all know from the different parts of the country in which we live. I read recently in my local paper, the Nottingham Post, that it is feared that almost 3,000 people in Nottingham will be left without legal support and advice if government cuts to legal aid go ahead. There are fears that the Nottingham Law Centre could close following an 85 per cent drop in funding for legal services and that there could then be a knock-on effect with the contract that it gets from the local authority.
CABs in Nottingham and Nottinghamshire are facing cuts. The example of one of them in Mansfield supports the case made by my noble friend Lord Bach about the knock-on costs of these cuts in legal aid. Mansfield CAB has had to make redundant the post for recruiting, training and supporting volunteers, so turning people who want to volunteer in the CAB away. What price the big society if that is the case? It is an example of the costs when a CAB has to turn away volunteers.
As we scrutinise the Bill, noble Lords may have to inject a more high-quality impact assessment. However, I hope that it will not be left only to noble Lords, voluntary organisations and so on but that the Government will respond positively to my noble friend's amendment.
Baroness Howarth of Breckland: My Lords, I am beginning to feel rather sorry for the Minister as he listens to the debate because I can understand how the Government, faced with the deficit that they were faced with on the change of Government, had to look across the various departments to see where they would find money. I can see, too, working as I do in the court system-I declare an interest as the outgoing chair of the Children and Family Court Advisory and Support Service-that that looked like a pretty tasty budget. I also know that when you look across the
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However, having said that, I support the amendment. This is because, having understood where the Government came from at the beginning, I do not understand why they are now unable to rethink, having been given all the evidence, of which we have heard a great deal today. I am not going to speak at length and give many more examples, but we have heard that there is a real need for an impact assessment, if not for social justice then for economic reality. I will give one example from my experience about cases that are in the private realm in the family court.
We will have more cases brought by litigants in person. The evidence is that when litigants in person bring their cases, they take longer. The other evidence is that these families are of the 10 per cent who have not come to a conclusion themselves about what will happen to their children. That means that they are in the most difficult, complex situations that you can imagine. These families need more help. We find that the lawyers who represent them often act as mediators and cut through vast amounts of discussion and argument in order to shorten cases. That is another economic reason for making cases shorter. The more important one is that the sooner cases are resolved, the better it is for the children. The one thing that we have evidence about is that the longer cases are before the court and children are left in suspense about custody or any other issue, the more difficult it is for them.
I hope that the Minister will listen to the arguments, difficult as it is for him placed where he is-he must be between a rock and a hard place. I do not believe that he is a man with a hard heart, so he must be listening to the arguments, but I realise that he is in a hard place economically. He is in the wrong place in that unless the Government look in some detail at some of these arguments-I speak only to the amendment and not to a range of other things-and have a decent impact assessment that goes into this in depth, there will be serious consequences. As the noble Lord, Lord Howarth, said, the reason why this was not done in the beginning was that it was in the too-difficult box. These situations are difficult but they are assessable.
Baroness Turner of Camden: My Lords, I, too, support the amendment, which is about unintended consequences. The Government should be grateful that it has been raised at this stage of debate on the Bill because unintended consequences are often a problem with legislation introduced by the Government. In this case, I have had the benefit of the Law Society's parliamentary brief, which is excellent and has already been referred to by my noble friend Lord Bach. The Law Society has produced evidence mainly concerned with family welfare and clinical negligence. It points out that this measure is designed to save £239 million, but the unintended extra costs are likely to be £139 million.
Frankly, I am interested in the Bill mainly from the standpoint of a former trade union official. My union, of course, provided advice across a whole range of issues to its members and supported them in the
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I do not know whether the Government feel that individuals who would otherwise be facing the consequences of accidents and so on should put up and shut up. Fortunately, many people are simply not prepared to do that and will seek all sorts of other ways in which their cases can be pursued if they are blocked from following them via the court route. That is not a very good idea either because it can lead to all sorts of other problems for people who feel that they have a case but also feel that their way forward is blocked because they cannot get access to a hearing in court.
For these reasons, it is very important that we get the Government to have a very clear look at what the unintended consequences would be from what they suggest in this Bill. It has been spelt out by a number of speakers in this debate this afternoon and I hope that it will be taken very seriously indeed by the Government.
Lord Phillips of Sudbury: I am not sure whether I am speaking for these amendments or against them. I started the day at 3 o'clock our time having breakfast in Doha, and was rather choked when eating my toast when I read in the Gulf Times about the King's research into the financial effects of parts of this Bill. I am sure that my noble friend the Minister will ponder those extremely hard.
I wanted to say a brief word about the important matter raised by the noble Baronesses, Lady Lister and Lady Howarth, and many others, of the prospect of many more of our fellow citizens having to represent themselves before courts and tribunals. I started life as a young lawyer in a country general practice, spending a great deal of my time in magistrates' courts. My principal was part-time clerk to five country courts. All I can say is that you really do not need a pre-impact assessment of the effect on a would-be proponent or accused, whether before a magistrates' court or a tribunal. You do not need to do any research to know the effect of having to go into battle without any legal help. That is particularly acute, obviously, with less confident and articulate people, but it is not confined to them. My experience is that you never know how many people are deterred from taking or defending proceedings because they cannot have legal assistance, because of course they just do not tip up; they do not pursue their claim or defend the claim made against them.
I know that my noble friend has thought long and hard about this and has a very difficult task in dealing with parts of the Bill, but the other thing that is easily forgotten is that if someone thinks that they are going to be opposed on the other side by a lawyer, that really is a finisher for the course that they adopt on those proceedings. I make those points merely to try to help the deliberations of the House.
Lord Elystan-Morgan: My Lords, I find myself in agreement with practically everything that has been said in this debate. The amendments go to the very heart, core and kernel of the Government's thinking on this part of the Bill. I would even put the matter higher than most noble Lords have put it. They have put it that there are unintended consequences that now have to be considered. I would put it rather higher than that and say that, in dealing with the sensitive and almost sacrosanct area of the administration of justice and with the question of seeking to save funds at a time when they are desperately needed by the public purse, it is nothing short of reckless to proceed in circumstances where there is no certitude of success in either of those matters.
What is recklessness? Assuming that one takes a fairly lay interpretation, it is a situation in which a risk is created and the person creating that risk either closes his or her mind completely to the risk created or, appreciating that the risk is there, still takes it. That is recklessness. I hope that I do not use intemperate language in this or any discussion in this House. It is right that the Government should ask themselves, in a situation in which the onus of proof is so immense in relation to the area of the administration of justice and saving money for the public purse, whether sufficient consideration was given to as many of the risks as can be quantified-and I appreciate that some of them are very difficult to quantify.
Was sufficient research indulged in, or was it purely a case of saying blandly, "Legal aid in this country has shot up over the years and we are spending more than practically any other community in the world, so it must be slashed", irrespective of exactly how that should be done-again, saying that there will automatically be a saving? They are not entitled to say that. How can they say that there will be a net saving at all? Clearly, if the exercise involved in Part 1 of this Bill is nothing more than the transfer of financial responsibility from one department to other departments, that is at best hypocrisy and at worst lunacy. It achieves nothing whatever.
At Second Reading I quoted the figures that have been referred to by the noble Lord, Lord Bach, from the research done by the CAB. Even if those calculations, which have been honestly made by people who are genuinely applying their minds to the situation, are inaccurate to the tune of 50 per cent, it nevertheless shows that the Government's concept of a saving in this way is utterly irresponsible. That is the point, so in relation to the risks that have been taken, these amendments are but second best. In fact, the assessment should not be made now, after the Bill becomes law; it should have been made before this strategy was contemplated in the very first place.
I appreciate that in some of these cases it will be very difficult to quantify the loss brought about by some of these proposals. In the years that I have spent in the law as a solicitor, a barrister and a judge, I certainly was of the view that were it not for the fact that a high percentage of cases were settled in general civil, in family and most certainly in crime, the courts would have been clogged into impossibility long ago. When cases are settled, it is not because the individual, of his or her own volition and without advice, suddenly concluded that it is right and proper-or, indeed, that it is advantageous-for that person to come to that conclusion. That person often comes to a conclusion very reluctantly and because a hard-headed lawyer tells him or her, "There is no real prospect of success here, and I ask you to consider withdrawing your instructions". That is how matters are settled, and if there is no such settlement, imagine the situations that are the bane of a judge's life: those in which the defendants are unrepresented.
On the £350 million which the Government hope to save, I appreciate that their attempts are genuine but I suspect that they are utterly misconceived. The Minister is a person for whom I have immense personal regard; I have greatly respected his intelligence and indeed his wisdom over the years in this House. Can he with his hand on his heart say that there is any certainty about any saving at all in relation to these expenses? Secondly, even if there is a saving, can he say that it is anywhere in the realm of the £350 million that has been adumbrated by the Government?
Lord Clinton-Davis: I agree so much with what has been said by the noble Lord but I disagree with his conclusion about the leader of the Liberal Democrats. I have a great regard for him as well, but in this regard he has been an absolute disaster.
I would like to say something about my own experience in undertaking surgeries as a Member of Parliament. Quite often, the people who came along to those were inarticulate and unable to divulge the essence of the case that they wanted to put before me as their MP. They had enormous difficulty in expressing themselves and, if I may say so, I think that will be what happens regularly with regard to the Bill. I am sure that the Minister who leads the Liberal Democrats in this regard will sense that the whole House has great suspicion about the purposes of the Bill and does not see how it is going to work out in practice. There is no evidence to suggest that there will be a saving of money if people cannot express themselves cogently and coherently. From that point of view, an enormous amount of time will be wasted, as has been the case in our surgeries. Of course, not everyone here has been an MP, but those who have will surely view what I have said with some sympathy. I can recall a case where it took about an hour for a person to express themselves about the situation that befell them because they were unable to understand the points that were relevant to the issue that they had to consider. In my view, the Government are therefore bound to consider an aspect that at the moment they are loath to do.
I hope that the Minister, on reflection, will come to the conclusion that we are entitled to know his views about the position that I have sought to reflect. This
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Lord Carlile of Berriew: My Lords, as another former MP I echo the point made by the noble Lord, Lord Clinton-Davis. Many is the time when Members of another place in their constituency surgeries have to give advice on legal issues to constituents, and it is often the poorest constituents who come with the largest and most complex, multiple legal problems, usually relating to welfare law. There are of course many cases in which an MP can say to a constituent, "Go along to the small claims court, appear on your own behalf and use the words 'contract', 'consideration' and 'damage', and you will do very well". Litigants in person can succeed, particularly before small claims courts. However, multiple, complex legal issues do not lend themselves to litigation in person. The only responsible advice that Members of another place can give in such cases is, "You've really got to go to a decent solicitor who understands this kind of work"-and, if you are a really daring MP, you might discriminate among the solicitors in your constituency and recommend someone really competent in the hope that others do not find out what you have said.
My reason for supporting this amendment is founded in the sympathy that I have for my noble friend the Minister. I share the view that there is a great deal of waste in legal aid and that steps can be taken to reduce legal aid in many areas. I suspect that almost every Member of your Lordships' House believes that. However, the list of people potentially affected in this amendment is very realistic. It sets out those very people and groups who are likely to be the most adversely and unfairly damaged by these reductions.
I would have expected the Government, in setting out legislation to cut legal aid, to do the work that is implicit in this amendment. I have looked through the notes on this draft legislation and everything that has come from the Government, and I have seen no evidence of any such assessment being carried out. I have not yet read anything but a summary of the King's College London report, but if the headlines fairly represent what the report says, they are cause for alarm. It has done the work that the Government should have done and revealed that the savings may not be there at all in certain areas, not least, critically, in clinical negligence cases, which are of particular concern to me.
I cannot see that it would be anything other than responsible for the Government to carry out the work set out in this amendment. I would ordinarily have expected them to do so to justify the cuts that they are proposing to make to legal aid. For those reasons, I feel that it is right to support at least the aims and principles of this amendment.
Baroness Farrington of Ribbleton: My Lords, I have listened carefully to people speaking in your Lordships' House who have a much greater knowledge of the legal system than I do. I look to the Minister to answer
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I bring my knowledge from a background of working with people in local government, as do many of your Lordships. In particular, I know that the groups who have been identified as being vulnerable have a fear of officialdom and official settings. I cannot be the only Member of your Lordships' House who has had to explain to someone how to vote. Someone who has decided for the first time in their life-in their 20s or 30s-that they wish to vote might be frightened of looking foolish by going in the wrong way or doing the wrong thing. I have had constituents who passionately supported their local school during a time of falling rolls, when school provision had to be rationalised. Some of those parents would not go to a public meeting in the school because they did not know how to speak in public. They did not wish to be embarrassed.
Speaking for myself, I was overwhelmed by Preston town hall-now Preston city hall-when I went in for the first time, prior to becoming a councillor. I was overwhelmed by County Hall and thought I would get lost and not know my way around. I ask all noble Lords to believe me because this is true. I was overwhelmed by being on the Committee of the Regions and thought I might get so lost in the Brussels buildings that I would never come back. The Council of Europe was a maze of places; I could have ended up in the Parliamentary Assembly instead of the Committee of the Regions there. Your Lordships' House was daunting beyond belief. I know that for those noble Lords who had been in another place it was not daunting. They were just coming to the other end of the same building and felt at home, but I did not. I know from talking to people all around the House that I was not the only one who was quaking at my introduction. My five siblings came to watch, partly out of loyalty but also for the joy of watching their big sister Josie being overwhelmed and frightened of doing something. That appealed to them even more than the delight of seeing what was happening.
As I have listened to this debate, it seems to me that there is a misunderstanding about whether people can represent themselves in court, or will even dare to try, when a vital matter in their lives is at stake. That worries me. The Minister has been praised by some likely and, occasionally, unlikely sources. All I ask him for is honesty. Before this Bill goes through Report stage, I want to know that those vulnerable people who I know and he knows will not be further disadvantaged by the Government's proposals. If, against all the odds, those people are to pay the price, I will have to be convinced that the price they will pay will meet an economic necessity and not just spread the debt into other departments.
Baroness Scotland of Asthal: My Lords, I very much agree with everything that my noble friend has just said with her great common sense and straightforwardness. She is right about the two questions but she is also right that this Bill has caused real anxiety, particularly among the most vulnerable. That is clear from what everyone has said in this debate. If
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I wish to add to what was said by the noble Lord, Lord Carlile. It is not just the vulnerable who find courts intimidating. Noble Lords will know that in this Bill it is proposed to remove all private family law from the scope of legal aid. All litigants, notwithstanding their normal level of articulacy, intellect and performance, find that area of law particularly challenging, delicate and painful. In those cases, the old adage is applied by lawyers that the client who represents himself is a fool. It is in those cases that help and support are particularly needed. The noble Lord will know that it is also an area where women tend to be disproportionately adversely affected, and that in domestic violence cases, which apply to men and women, 89 per cent of repeat victims are women. Therefore, there is real concern about the changes that are proposed if we do not understand the economic cost of so doing and the justification for it. Even those who are not poor have difficulty in family cases, particularly where the male member of the family is well endowed with money but the woman is not. Many women in that situation who may come from very advantaged families are obliged to use legal aid and will simply not try to receive their rights if they do not have it. One is therefore facing a potentially disproportionate and negative impact on women in those circumstances.
I therefore ask the noble Lord to think very carefully indeed about whether the evidence we have at the moment suffices and enables us to answer the two questions in particular that have been raised by my noble friend. If they cannot be answered in the affirmative, I hope that the Government will seriously think again.
Lord Dubs: My Lords, perhaps I may add a brief point to the debate, and I very much agree with the comments that have been made. A number of Members of this House have been Members of the Commons, as I have been, and we relied heavily in our advice surgeries on being able to steer people towards citizens' advice bureaux or, indeed, to lawyers who could do a good job. However, one phenomenon that has disappeared more recently, but which was very marked as regards immigration cases in the 1980s, is people who set themselves up as advisers and who normally give thoroughly bad advice to distressed people who want help. One had to deal with that. If I got hold of constituents who were in such difficulties, I always steered them to the CAB, to the local law centre in Wandsworth or to decent lawyers.
I am worried that the phenomenon may happen again whereby, in the absence of legal aid support for certain types of cases, people will set themselves up as advisers who will pretend that they are doing this on the cheap and give advice that is not of the best quality and is, given my experience, thoroughly bad. I very much hope that one consequence of the Government's measures will not be that people can set themselves up and mislead distressed and vulnerable people, take some of their money from them, and provide advice that is not at all helpful.
Lord McNally: My Lords, I am most grateful for all the contributions to what has been an extremely full debate-one that yet again has taken on some of the elements of a Second Reading debate, partly because of the structure of the amendment.
I have to say that we were one hour and 40 minutes into today's deliberations before anyone-it was the noble Baroness, Lady Howarth-kindly mentioned that the debate and the Bill are set against the background of the economic situation we faced when we came into office. In the Ministry of Justice, a relatively small department, there was a commitment to find savings of £2 billion during this spending round. I say to the Benches around the House that there are no soft options.
I have not yet had a chance to read in full today's speech by the Leader of the Opposition in which he is apparently asking the Labour Party to face up to the fact that cuts are inevitable. However, I have been following some of the advice he has received over the past week or so about facing that reality, some of which came even from Members of this House. I also think that some of the comments about the kind of social tsunami that we are going to face if the Bill is passed need a reality check: that after we have cut £350 million off the budget of our legal aid scheme-and I have not heard anyone challenge this-it will remain among the most generous in the world. The idea that somehow this is the end of civilisation as we know it does not stand up. We have been asked on a number of occasions to go back to first principles. We came into office with a commitment to make cuts in a department where there are really only four areas of expenditure: courts services, probation, prisons and legal aid. We set about trying to reshape the legal aid scheme in a way that addressed what we saw as the most fundamental issues of access to justice.
Lord Clinton-Davis: But if the Government are wrong about saving £350 million, and if the cost of providing services equivalent to legal aid mounts irrevocably, what does the Minister say about that? If the Government have miscalculated, is that not a grave offence?
Lord McNally: Fortunately, I know that the noble Lord has himself stood at this Dispatch Box, and I am sure that then he heard alarm bells going off in his head when anybody asked him questions with "if ... if ... if" in them. It is wise not to try to speculate. Of course things may happen beyond our control. The Government have made a judgment on these matters. We are asking the House to support that judgment, and we will find in the course of time whether that judgment is right.
The Bill is beginning to suffer from what I might call report fatigue, in that almost weekly a report comes out, usually sponsored by very interested parties, which is then quoted around the House. I would be the last to deny the right of groups to commission reports and to use their findings, but it is not necessary for those to be treated as holy writ. They are studies; we receive them, read them and take notice of them.
Baroness Farrington of Ribbleton: My Lords, I ask the Minister for the Government to produce their report. It is no good the Government dismissing or
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Lord McNally: I suggest that the noble Baroness reads our impact assessment, which has been quoted. Our critics cannot have it both ways. At one moment, they are banging the Dispatch Box and saying that the impact assessment reveals this, that and the other terrible finding, and then they say that we have not done any research. The noble Baroness has been in both national and local government. Many people in local government of all parties are having to take tough, difficult decisions. In a time of austerity there are no soft options. We have of course had cross-departmental discussions about the measures. It is almost impossible to assess with any accuracy the various impacts on one department or another of various measures-which involve, at maximum, £350 million in a relatively small department.
However, from the debate today one would think that this is going to bring down society as we know it. I do not believe that it will. As I said, our approach has been to try as far as possible to make the restructuring of legal aid focused and fair. Unfortunately, my party did not say in its election manifesto that it intended to cut legal aid-we leave that to the Labour Party.
Lord McNally: One has to face up to these things but it is always a case of cuts being made somewhere else. We have tried to restructure legal aid in a way that reflects the economic reality that we face. My right honourable friend the Lord Chancellor has said very frankly that in his opinion we have become a society that reaches too easily for lawyers at taxpayers' expense, and he is trying to roll back that tendency in this restructuring. We have also said that, as part of the restructuring, we want to look at alternative dispute resolution.
We understand the concerns that have been expressed about the not-for-profit or voluntary sector and the advice sector, and we have responded to them. I am not suggesting that this is a new announcement for the noble Lord, Lord Beecham, but we have found £20 million this year, despite the fact that the legal aid cuts do not impact on CABs at the moment as the cuts have not yet come into being. Under my honourable friend Nick Hurd in another place, we are also having a comprehensive look at the funding of that sector. Therefore, as I said, it is easy to put forward the case that has been made, but I and other Ministers were faced with a difficult decision regarding what we had to spend in the budget and how we could spend it.
Amendment 6 calls for a pre-commencement impact assessment of Part 1 of the Bill and for a copy of the report to be presented to both Houses of Parliament. The proposed review would look at the expected costs
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Amendment 195 would require the Lord Chancellor, prior to commencement, to commission an independent review of the expected cost and impact on time and resources for judges and the courts of any increase in the number of litigants in person arising from the provisions in Parts 1 and 2 of the Bill. Amendment 191 would make the date on which the provisions of the Bill came into force subject to the provisions in Amendment 195.
Noble Lords will be aware that an established process, introduced by the previous Government, is already in place for the post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government's internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check of new laws after three to five years. As set out in Cabinet Office guidance, these reviews normally take place three to five years after Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee and the Select Committee will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee's findings should it choose to conduct a review of the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan.
As noble Lords will be aware, the Government are also, under Section 149 of the Equality Act 2010, subject to an ongoing public sector equality duty to have due regard to the effect of their policies on the groups protected by equality legislation. To that end, we have already produced detailed equality impact assessments-both at the point of consultation and alongside the introduction of the Bill-which set out the likely impact of our proposals on groups sharing protected characteristics. We will of course continue to act in accordance with our public sector equality duty.
In their amendment, noble Lords ask that the cost to other government departments is factored into this review of Part 1 of the Bill. We have given careful consideration to this issue as part of the policy development and clearance process throughout Whitehall. Extensive discussions between policy officials in different departments were held as part of that, and knock-on or downstream costs were factored into those discussions. Ultimately, costs to other government departments will be driven by behavioural responses to the reforms, and these cannot be predicted with any degree of accuracy.
As I have already said, the noble Lord, Lord Bach, referred to our risk assessment. From the very beginning, I have never hidden the facts in answering questions at this Dispatch Box. If you are dealing with cuts in almost any aspect of government-for example, as
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Lord Elystan-Morgan: The noble Lord has said very helpfully that downstream costs affecting other departments were factored into the consideration. Therefore, is the £350 million in fact a gross figure from which a factor of X has to be deducted, although at this stage we do not know and are not in a position to know what X might be?
Lord McNally: No. The commitment is to the expenditure from my department, and factored in are discussions with other departments which leave us confident that the kind of disproportionate impact which has been suggested will not occur. However, one knows how fluid these matters are when discussing government budgets. For example, how do last summer's riots feed into the demand for prison places or indeed the demand for legal aid? There are variables and unknowns in these matters, but we have put forward our objective of cutting the legal aid bill by £350 million in a way that we hope is focused and takes account of some of the issues that have been raised. For example, domestic violence is in scope. We will have debates later about definitions of domestic violence, but to suggest that domestic violence is being taken out of scope is plainly not fair.
Baroness Scotland of Asthal: My Lords, I make it plain to the Minister and reassure him that no one is trying to be unfair in relation to domestic violence. The noble Lord will know that the impediments that have been put in the way of someone getting legal aid for domestic violence are quite acute. They have to have had an injunction within the previous 12 months, and there either has to be a person imprisoned within 12 months or the victim has to come at the top of the scale-that is, by being at threat of death or grievous bodily harm. That is an undue hurdle to overcome.
Secondly, we know that in many private law cases there are elements of domestic violence that are not proceeded with because the parties have lawyers and come to a settlement. The noble Lord wishes to use mediation. However, the King's College figures show that the additional mediation services that we would need would cost £46 million to £48 million; the Government's figures show that we have £10 million in the budget. Therefore, it is for these reasons that we ask for the evidence for the savings that will be made, because it does not appear to be there now.
Lord McNally: We will discuss this point at a further stage of the Bill. I compare that intervention by the noble and learned Baroness with her earlier one which was more broad-brush in its general condemnation. We will discuss the other areas when we come to them.
I will speak also about the issue of litigants in person, on which Amendment 195 focuses. I heard what was said, in particular by a number of noble and learned Lords-I do not think that the noble Lord, Lord Phillips, qualifies as learned.
Lord Phillips of Sudbury: I must rise to that jibe; I am an experienced Lord.
Lord McNally: Even after 15 years I am never sure who is gallant, who is learned and who is-like the noble Lord, Lord Phillips-just experienced.
Unrepresented litigants have always been a feature of our legal system. Judges make efforts to assist them by explaining relevant procedures and what is expected. We accept that the reforms are likely to lead to an increase in the number of litigants in person. We conducted a full review of the available literature on litigants in person, which was published alongside the consultation response. The review found that the evidence available on litigants in person tended to suggest a mixed impact on the length of proceedings where litigants in person were involved. It is also important to point out that there will be significantly increased numbers not going to court at all. We estimate that there will be 10,000 additional mediation cases as a result of our decision to prioritise this area. This will offset the additional burdens on the courts from dealing with litigants in person.
We took into account this issue in the impact assessment and the equality impact assessment, published at the time of consultation. One assumption we made in calculating costs and savings was the increase in unrepresented litigants. We are now considering how best to provide the support and training needed to those who assist unrepresented litigants, as well as to the litigants themselves. This will include looking to simplify the forms of guidance available to those using the courts in person and to improve the information we offer to members of the public through the new online content of the Directgov website. The ministry is considering the Civil Justice Council's recent report and is liaising with the council on how best to take forward its recommendations for dealing with litigants in person.
The current system of post-legislative scrutiny achieves the right balance and value in effective scrutiny for both Parliament and the Government. Therefore, I urge the noble Lord to withdraw his amendment. We have had a very good debate. It had some elements of Second Reading and took just under three hours of the second day of Committee. I hope that noble Lords will believe me when I say that we are listening and that we will have further thorough, specific debates. However, the amendment takes us too far back to first principles on a Bill that has gone through the other place and has had its Second Reading in this place.
Baroness Farrington of Ribbleton: My Lords, will the Minister give an assurance to the House that he will read this debate carefully and, where there are unanswered questions about costs that could occur, including costs to other departments, or any other
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Lord McNally: No, my Lords. I will read the debate and consider these matters, but frankly some of the issues raised were so speculative that no responsible Minister would respond in that way. I assure the noble Baroness with all honesty that I will bring the facts before the House and will deal with the Bill with all the responsibility that I can. However, she is too old a hand-
Baroness Farrington of Ribbleton: The noble Lord has lost none of his Blackpool charm.
Lord McNally: Coming from a Preston girl, that is a compliment-I think. I will read Hansard. I realise that very interesting points were made, which I will study carefully and draw to the attention of the Lord Chancellor. With that, I ask the noble Lord to withdraw his amendment.
Lord Bach: My Lords, we have had a very full debate, as the Minister reminded us. However, it was very worth while because this is a very important subject that goes to the heart of whether the Government did the work they should have done before bringing in such controversial and fundamental legislation. I start by saying how grateful I am to noble Lords from all sides of the Committee who spoke in the debate. I am very grateful to the noble Lord, Lord Wigley, for backing the amendment, as I am to the noble Baroness, Lady Prashar. I forgot to say earlier, as I was asked to, that she was unable to attend when the amendment was moved because of her appearance at a very well known and important committee. I am very glad to see her in her place now.
I thank noble Lords for making some very important points. I do not wish to embarrass the noble Lord, Lord Carlile, but I will thank him for his contribution if only because it gives me the chance on behalf of the Committee to congratulate him on the honour he received in the New Year Honours List. However, other speeches were just as good, on all sides of the Committee. The one thing they had in common-this is something that the Minister must take back to his department-is that they were all, in one way or another, critical of the way in which the Government approached this part of the Bill.
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