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On this occasion, the Government and even the noble and learned Lord are being rather naive about tribunals. It seems that the best justification for what the Government are doing is that because tribunals were designed to be informal, they are therefore informal and it is fine for individuals to represent themselves in person on a regular basis, even when the other side is represented by a QC or a lawyer of any kind. There is nothing that the tribunal can do to make it fair if that is the position. One thing that the state has done to make it fairer is to give individuals who do not have the benefit of trade union membership or any other resource-who do not have the money to pay for lawyers-some legal advice and, in occasional cases, representation at a tribunal, just to equalise the situation a little. I have no doubt that employment tribunal judges and the lay members who sit on tribunals welcome the fact that individuals have had advice or are, on occasions, represented. That makes their task that much easier than it is when there is complete inequality of arms.
I ask the Government why they are making a system that works pretty well at the moment more unfair and more likely to lead to injustice-this is true about a whole range of these issues but we are talking here about employment tribunals-for savings of some £4 million a year. That is if there will be savings, but
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The question that I want to ask is: given that the only possible reason for doing this is to save some public money-we know, of course, that public money must be saved-is the Minister really satisfied that this will save any money at all? The obvious consequence of there being no legal aid is that bad cases will be taken forward by individuals, which will clog up the tribunal and slow it down because the individual will not have had advice or representation. Good cases will not be pursued, which is an attack on justice, or, if they are pursued, will take much longer to be heard because of the large number of bad cases that suddenly find themselves before the tribunal.
Lord Clinton-Davis: Take, for example, a person who feels aggrieved and is advised by a lawyer that he has no case or no chance of winning but still feels aggrieved. He therefore pursues his argument to the bitter end. That will take up much more time and money. Am I right?
Lord Bach: As usual, my noble friend is right. The point is that many individuals who feel aggrieved, when they are advised-whether by a trade union lawyer or a private lawyer-that they do not have a case, will take that advice and not clog up the system in the manner that I describe. One suspects that there will be no savings at all for the poor employment tribunal itself. It will be caught with hopeless cases that will get nowhere, and claimants with good cases will have to wait a very long time to pursue their cases, if they even pursue them at all. It all seems totally unnecessary when the system that we have in England and Wales works well. I hope that I am not putting it too high when I say that I believe it is the envy of the world as far as employment law is concerned.
I hope that the Government will reconsider this aspect of the Bill between now and Report. I am minded to bring this matter back at Report for decision. However, for the moment, I beg leave to withdraw the amendment.
5.30 pm
Amendment 82ZA, in substitution for Amendment 83, not moved.
82ZB: Schedule 1, page 136, line 34, at end insert-
"( ) all areas of consumer law not otherwise covered in this Schedule"
Lord Beecham: My Lords, this amendment speaks to the question of consumer law and seeks to restore it to the scope from which it is removed by the Bill.
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In 17th century terms, I view the noble and learned Lord as a Roundhead-or in view of his provenance, perhaps as a Covenanter-rather than as a Cavalier. However, I am afraid that "cavalier" is the only word that I can apply to the Government's attitude to access to justice in this and other contexts. That attitude is well illustrated by the airy dismissal of the views of those whom they consulted on whether consumer law should be kept within scope. The Government carried out a consultation exercise and reported:
"Of those respondents who commented on this aspect of the proposals, almost all were opposed to removing these cases from scope".
Two of the grounds that were raised are relevant for today's purposes. The response stated that,
- "some respondents argued that consumer cases should be retained, in particular professional negligence cases where negligence may have resulted in serious consequences for the client ... in some professional negligence cases clients would need expert reports to prove negligence and without legal aid individuals would not be able to afford these".
"Having considered the responses ... we confirm our intention to remove consumer and general contract cases from the scope of legal aid. Whilst there are some difficult cases, in particular professional negligence cases, these are still essentially claims concerned primarily with recovering damages, and that means that we consider that their relative importance is generally low, compared, for example, with issues of safety and liberty".
That is a classic case of an argument reductio ad absurdum. To say that life and liberty are more important than contract law or divorce is axiomatic: it does not advance the argument one whit. The Government also said, as we are so used to hearing in debates on this Bill:
"There are other sources of advice available in relation to consumer matters, for example, from Trading Standards and Consumer Direct".
Here I ought to declare a non-pecuniary interest as an honorary vice-president of the Trading Standards Institute.
"There may be alternative non court based solutions in some cases, for example, through regulators and ombudsmen".
I am rather surprised that they did not add Which? and the helpful columns in the Guardian and weekend newspapers while they were at it. However, that is a considerable oversimplification and an underestimate of the problems which people face. Professional negligence is not merely confined to the recognised professions of solicitors or accountants, for example. Even members of the Bar can be sued for professional negligence, and that has been the case for some time. The conduct of financial advisers, like that of some other professions, might result in considerable loss to people. There is also the builder who botches the job or the architect whose design is defective. All these matters can affect many people and involve them in considerable financial loss.
It is certainly possible to obtain some alternative advice. On Monday, my noble friend Lord Stevenson spoke to an amendment about debt. He is the chairman
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The really worrying feature, which again underlines the unsatisfactory nature of the Government's attitude to this and other cases which we will be considering and have already considered, is summed up in their response to the consultation when they say:
"Although there may be exceptions, in our view the individuals bringing these cases are not likely to be particularly vulnerable compared with, for example, those in the mental health category",
for which, in fairness, provision will be made. But, again, that is a comparison which has no significance at all, and it is not the comparison that the person who is denied access to justice will make. He or she will rightly make the comparison with somebody who has the means to afford that advice and representation. We are creating a two-tier system of justice, one in which you can buy your way in if you have the means and another in which you will effectively be denied it if you do not have the means. In areas such as this where significant harm can be inflicted on individuals-admittedly, that is not physical harm but pecuniary harm, stress and distress-it does not seem appropriate to deny them the access which the very modest funding that is involved currently allows.
The Government should look at this matter again. Over recent years, Governments of both political persuasions-perhaps one should now say of all three-have championed the cause of consumers. We are talking now about predatory capitalism or responsible capitalism and the rest of it. We ought to be looking at the bottom of the scale of providers, if you will, and at how people can be best enabled to pursue remedies against those who inflict harm on them, because this Bill does not assist in that respect. I beg to move.
Lord Howarth of Newport: This is another important amendment and I would like to support my noble friend Lord Beecham, who has moved it. If the Government suggest that caveat emptor is a sufficient
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Professional self-regulation is not always all that it ought to be. Although we should always guard against the assumption that things are not what they used to be-a view that we are a little bit liable to become attached to in your Lordships' House-none the less, I think it is fair to say that the professional ethic has become somewhat attenuated over recent decades. We see, for example, the advertising of professional services in ways that we did not in the past. We see the marketisation of professional services, arising in part out of contracting out, and the general widespread extension of market values and market practices, which in many cases have led to greater efficiency and greater availability of services. However, they also carry the risk that those who offer these services may become a degree less scrupulous when the ethos is that of the market.
People find themselves beset by parasitic professionals. The purveyors of subprime mortgages may have been the most offensive instance in recent years that one can imagine, but there are many other cases. It will not do to leave the ordinary citizen vulnerable to predatory, grubby and dishonest so-called professionals. The issue of equality of arms that arose in the previous debate on employment law arises here, too, because the ordinary citizen may come up against professionals, or those who represent them, who are highly articulate, able to speak the jargon of a specialised field and can afford expensive advice. It must be an elementary principle that there is access to justice on sufficient equal terms to enable citizens who have been poorly, dishonestly or improperly served by professional advisers to have some remedy.
Baroness Howe of Idlicote: My Lords, I have some sympathy in this area. I also have a great deal of sympathy with what has been said on previous amendments, because there is a distinct grouping of those who have the means to cope with their own cases and those who do not. In this particular case, consumer law has been a matter that we have only recently begun to take an interest in-indeed my noble kinsman was the first ever Minister of Consumer Affairs. I remember that I was immediately enthused because I thought that it would make him much more interested in all the goods and facilities that I might be interested in buying. I have to admit that it did not quite work out that way. He was much more interested in the number of ounces and proportions described on the back of a product, and so on.
Nevertheless, on the other point made by the noble Lord who moved the amendment, we have concerns about the organisations that protect the consumer. Which? is obviously an important organisation, as are CABs in other areas also. If their funds are going to be cut in the way proposed, we will have problems. As I said, I have sympathy in these areas. I hope that what has been said will be taken into consideration, because there will be serious consequences in certain cases. In
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Lord Goldsmith: My Lords, I want to underline and strongly support one point made by my noble friend Lord Beecham, and referred to by the noble Baroness, Lady Howe, and that is the impact of these changes on the organisations that are providing just the alternative support that the Minister referred to. The Bill is about taking money away not just from lawyers but from organisations that are supporting people in an important time of need.
I speak with some knowledge of this as I have had a long history in the pro bono movement. I declare an interest as chairman of the Access to Justice Foundation. One of the things that we do is to distribute regrettably small sums of money, because that is all we have, to organisations that support consumers and provide free legal advice and representation. Those small sums are going a long way towards helping people, but I know how much more is needed. I have seen organisations going to the wall, unable to continue because they depend and to some extent scrape by on a little bit of legal aid.
I should very much like to hear from the Minister just how he and the Government believe that the alternative services to which he referred can continue in the light of the cuts that the Bill is making in this field.
Lord Clinton-Davis: I am rather frightened that too many people are going to find themselves without any remedy. That is bound to arise in many instances. I hope that the Minister will sympathise with them because having an effective remedy is vital. I am not talking about professional advice but about being able to take something to a tribunal and being heard-and being heard equitably. It is not simply that people of this kind-we are talking about consumers at the moment-ought to feel that when they are treated shoddily their point of view will be heard. I am afraid that that is unlikely to be the case and they will be sort of disfranchised. People who are inarticulate and disfranchised can resort to rather unhelpful remedies.
Lord Wallace of Tankerness: My Lords, the effect of the amendment moved by the noble Lord, Lord Beecham, would be to make civil legal services available for consumer matters. There is a degree of familiarity about the pattern of these debates. I do not think that I am speaking out of turn in saying that the previous Administration and the Labour Party went into the last election with an understanding that the legal aid system would have to be reformed. What I find difficult in listening to the debates-and I hope that I am not offending anyone-is the sentiment, "Lord make me chaste, but not just yet". We must reform legal aid, but when examples are presented people say, "We don't want to reform that part of it".
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Lord Bach: The Minister is making an important point, and he is justified in making it, but it is false. We have set out what we would have done to make savings in the legal aid budget. Our proposals would have applied largely to the criminal law, and particularly to the role of solicitors. Although I am prepared to go into details, the Committee would not be very interested in it at this stage. Our proposals would have saved a considerable amount of money. The Law Society itself has made recommendations on savings. I know that noble Lords from the Liberal Democrat Benches will later suggest a possible source of savings on criminal legal aid as well. There are alternatives out there. The one thing we committed ourselves not to do was to cut social welfare law, because we recognise that, for a relatively small amount of money, it did an incredible amount of good. Our opposition to the Government is based on the fact that they have picked on social welfare law, attempting to decimate it so that it no longer exists. That is a justified criticism that has not yet been answered.
Lord Wallace of Tankerness: My Lords, I am grateful to the noble Lord for setting out that position. As he said, we will come to issues of criminal legal aid later today-I hope; I am sure.
This is going over old ground, but it is important. The scale of the deficit reduction that has been required exceeded what many of us thought before we came into government in May 2010. As I said, that has resulted in some difficult decisions. On two occasions, the noble Lord, Lord Beecham, said that it was unfair to make that point with regard to professional negligence cases. He cited the response to the consultation, when we said that those were claims concerned primarily with recovering damages and that we considered that their relative importance was generally low compared, for example, with issues of safety and liberty. He seemed to say that that is so blatantly true that it does not add anything.
If one has limited resources, those are the kind of priority judgments that must be made. In Schedule 1, we have tried to apply those priorities in different circumstances. Again citing the response, he said that people who would be bringing damages claims were not likely in general to be vulnerable compared with detained mental health patients and elderly care home residents, who are unable to present their own case. He agreed that that is clearly the case. If we have to establish priorities, I think he would agree that priority would go to a detained mental health patient or an elderly care home resident.
If there was an unlimited fund of resources, the noble Lord's point would have far more force, but given that there is not, given that decisions have had to be made as to what comes within scope and what does not, I think the balance that we have sought to strike of giving precedence to issues of life, liberty and homelessness is proper.
It is for that reason that we did not include consumer claims within the scope. The noble Lord raised the question of professional negligence cases. It is fair to say that, when we come to Part 2, conditional fee agreements may be available for cases involving damages.
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The noble Baroness, Lady Howe, talked about the cut in CABs' funding. Of course, there will be an impact on CABs' funding from legal aid, although it is estimated that that is only 15 per cent of CABs' funding. At the risk of saying this yet again, the Chamber will be well aware that the Government announced a further £20 million funding in June last year for not-for-profit advice agencies and are considering funding for future years. Last February, £27 million was announced for continued funding administered by the Department for Business, Innovation and Skills for this financial year to maintain the face-to-face debt advice programme in citizen's advice bureaux and other independent advice agencies across England and Wales.
To pick up the important point made by the noble and learned Lord, Lord Goldsmith, additional funding has been announced for not-for-profit advice agencies, and the Government are considering funding for those organisations for future years. As parallels the previous debate, we will retain legal aid for consumer matters where they concern an alleged contravention of the Equality Act 2010. Many cases involving the Equality Act will be within scope.
At the end of the day, it boils down to the fact that, with finite resources, priorities have to be made. We have had one of, if not the most, generously funded legal aid schemes in the world. Even after the changes are implemented, should the House pass the Bill, it will still be a very generously funded legal aid system. Regrettably, some choices are very difficult, but I hope that the priorities we have identified stand up to scrutiny. It is more than axiomatic that when you have limited funds, life, liberty and dealing with homelessness and discrimination are important and that people who are less able to articulate their case or defend themselves should have priority. On that basis, I urge the noble Lord to withdraw his amendment.
Lord Beecham: My Lords, I am grateful to my noble friends Lord Howarth and Lord Clinton-Davis, my noble and learned friend Lord Goldsmith, and the noble Baroness, Lady Howe, for their contributions. I am also grateful to my noble friend Lord Bach for his intervention, although if the Government were proposing only to decimate legal aid-to take 10 per cent off-I would almost be prepared to accept that. I think he was using the phrase in the vernacular sense rather than the literal sense, because we face a much bigger reduction in legal aid and advice on funding than the 10 per cent actually means.
To refer back to my noble friend Lord Howarth's contribution in an earlier debate, he was asking about the knock-on costs of some of the changes. It may interest him to know that I have tabled a Question for
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The noble and learned Lord again advances the mantra about life and liberty, and of course they are most important. I am tempted to say that the Government believe in life and liberty but not in the pursuit of remedies, to paraphrase. More importantly, we are seeing the virtual death of equality before the law. There are areas where inequality will be deepened for a modest saving, at the very best. That is a socially divisive measure. It runs contrary to the big society concept and some of the words that we are hearing. The practical effect will be the denial of justice to far too many people. At this stage, I beg leave to withdraw the amendment, but it is a matter to which we may well return.
82ZD: Schedule 1, page 136, line 34, at end insert-
"Appeals where court or tribunal certifies complex point etc.(1) Civil legal services provided in relation to an appeal to the Upper Tribunal, the Senior Courts or the Supreme Court where the relevant court or tribunal certifies that-
(a) the appeal raises a complex issue of law or an issue of fact of exceptional complexity (in which case the certificate must identify the issue),
(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or
(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).
(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph."
Lord Thomas of Gresford: My Lords, the amendment deals with appeals where a court or tribunal certifies a complex point of law. The Judges' Council, in response to the original consultation document, stressed the importance of continued funding for competent lawyers in meritorious cases. The problem is to identify which are the meritorious cases. Its response stated:
"Appeals before the Court of Appeal or the Supreme Court have to get through a demanding permission filter, frequently involve issues of difficulty and importance and may lead to the laying down of binding principles of broad application-a fortiori in the case of 'second' appeals to the Court of Appeal, which are subject to even stricter criteria requiring the appeal to raise an important point of principle or practice or that there is some other compelling reason why the appeal should be heard. References to the European Court of Justice relate to a difficult area of law and are made only where the answer is unclear. In appeals and references of this nature, the court ought to be given all possible assistance through professional advocacy. There should be no further cut-back in the availability of legal aid for such cases. The possibility of applying under the funding scheme for excluded cases is not a satisfactory answer, both because the scheme will be very limited in scope and because the very process of applying under the scheme is bound to be complicated and dissuasive".
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Appeals are not only about the individual case before the court or tribunal; they often change the law, and make new law and law that is binding on later cases. There is a powerful public interest that both sides of the case are properly argued. It is the court or tribunal itself that is best placed to decide whether to trigger the operation of an appeal by issuing a certificate. The concept of exceptional funding under Clause 9 is excessively narrow in its scope, and I will be returning to that later. This amendment ensures that such cases remain, where appropriate, within the scope of legal aid and would retain the possibility of legal aid when the appeal is on a matter of significant wider public interest or there is some other compelling reason why legal services are required. I beg to move.
6 pm
Lord Carlile of Berriew: My Lords, I too support the amendment. When my noble and learned friend responds to this debate, it would be helpful if he would explain the relationship between the types of issues covered in the amendment and Clause 9. If he and the Government believe that there is nothing in the amendment that is not in fact or in law covered by Clause 9, it would be helpful if he would say so. I respectfully suggest that it would be better for these very important decisions to be made by judges and that we should avoid a potentially unnecessary layer of satellite litigation through judicial review of decisions of the director of civil legal aid. I suggest to my noble and learned friend that it is better that judges rather than an official determine whether there should be legal aid.
I remind my noble and learned friend that the paradigm of the English claimant is the man on the Clapham omnibus, who may be coming to court with a very ordinary dispute. My noble and learned friend will recall, as a distinguished Scots lawyer, that one of the most important cases ever decided in the civil law in the United Kingdom related to a snail in a Scottish ginger beer bottle. Another of the most important cases in the common law arose from a carbolic smoke ball. One of the most important, if not the most important, cases in administrative law arose from the administrative arrangements for a cinema-a picture house-in Wednesbury in the Midlands. More recently, an extremely important case that led to a change in policy arose from a disabled person seeking guidance on her end-of-life care. That last one might have passed the test which I understand to be applied by Clause 9, but I believe that all four of those cases should in appropriate, means-tested circumstances be the recipients of legal aid and that the means test should be applied rather lightly if the outcome of the case has great importance in setting new precedent and our understanding of the law. In brief, I suggest to my noble and learned friend that the court is better placed than the director of civil legal aid to determine the importance of an issue in the panoply of precedent that the courts set.
Lord Pannick: My Lords, I, too, support the amendment for all the reasons set out by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. I add one further factor. The criteria set out
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Baroness Mallalieu: I also support the amendment. Who do the Government propose should prepare and conduct appeals that fall into the category of either complexity or public importance in the absence of legal aid, but which will not make the cut under Clause 9 exceptional?
Unless damages are involved, conditional fee agreements will not begin to kick in. If there are qualified solicitors or barristers who have the time, the inclination and the financial ability to take on pro bono cases of complexity, I suspect that they are pretty thin on the ground and, following on from what the noble and learned Lord, Lord Goldsmith, said in the previous debate, that they are likely to be even more scarce after the cuts kick in. I am afraid that the answer will be: either pay or do it yourself. Having been at the Bar for 40 years, I would not wish to prepare my own appeal, and certainly not if it was complex.
First, I would have to discover the relevant forms-whatever they are-which must be completed and filed with strict time limits. It may be necessary to obtain transcripts of the earlier proceedings, but from where, how and who will pay for them? Bundles of exhibits correctly paginated and in sufficient numbers would have to be prepared and lodged with the court and the other side. Written skeleton arguments would have to be prepared and exchanged, and a list of authorities-the reports of the earlier cases that will be relied on-will have to be compiled and given to the court and the other side as well.
How on earth is a lay man supposed to do all that without proper advice and legal assistance, let alone argue a legal case of complexity in court? An "exceptional case" must surely include consideration of the interests of justice. Proposed new sub-paragraph (1)(c) in the amendment, which permits legal services where the court or the tribunal certifies that there is some,
aid, brings in just that factor that is currently missing.
If the amendment or at the very least something like it does not go into the ultimate legislation, I fear that the result will be: if you cannot afford to pay, you cannot appeal. That undermines one of our essential constitutional principles of equality before the law, which I cannot believe the noble and learned Lord or the Government wish.
Lord Clinton-Davis: I have learned so much today. I did not know that the noble Baroness, Lady Mallalieu, had been at the Bar for 40 years. I always thought she was 40.
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The amendment is self-evidently sensible. I hope that the Government will realise that it is important for the public that the points made here are expressed. We are talking about,
- "a complex issue of law ... wider public interest ... some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services".
I hope that the Minister will say that on reflection the amendment will be embodied in the provisions that the Government are prepared to make on Report or later. I thank the noble Lord for raising these important issues, which are critical not only for lawyers but for the public.
Lord Bach: My Lords, I will be very brief. We on the Front Bench support the amendment unreservedly. I will make three points. Given that these cases address complex or novel points of law, they are clearly beyond the ability of the average litigant in person-and, if she is to be believed, even of my noble friend Lady Mallalieu, although I am not sure about that.
Secondly, such cases are the lifeblood of our legal system. They give it its unique character and ensure that it is kept in line with evolving social mores and values, and with extranational jurisprudential developments. They are a crucial part of our legal system. Thirdly, a failure to guarantee that such cases can be heard would be a complete failure of any regime purporting to protect the needs of the average litigant.
Perhaps I may repeat the question asked by the noble Lord, Lord Carlile. Are these cases covered by the exceptional cases regime in Clause 9? If they are, under the terms of the amendment, I would be very grateful if the noble and learned Lord would say that on the record. I will go no further than to thank the noble Lord, Lord Thomas of Gresford, for the very thoughtfully crafted amendment that we commend to the House.
Lord Wallace of Tankerness: My Lords, I, too, thank my noble friend Lord Thomas of Gresford for tabling the amendment. It would bring into scope any appeal to the Upper Tribunal and appellate courts where a relevant court or tribunal has certified, for example, that the case raises a complex issue of law or is a matter of significant wider public interest. It is important to note that this would broaden the existing scope of civil legal aid, as well as bring into scope a range of cases that we intend no longer to fund. The amendment extends the legal aid scheme beyond its existing bounds by, for example, allowing legal aid-albeit subject to the relevant court certifying one of the matters listed in the amendment-for advocacy in the Upper Tribunal on welfare benefit matters, or on business cases before the Supreme Court.
Further, Clause 9 ensures that in any individual case where it would be a breach of Article 6 of the European Convention on Human Rights to withhold legal aid, funding will be provided. Both my noble friend Lord Carlile and the noble Lord, Lord Bach, asked whether the amendment merely replicated what was in Clause 9. I will put on the record that it does not, in specific respects that I will explain later. It is the case, however, that in deciding whether the withholding
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6.15 pm
As my noble friend Lord Carlile indicated, each case will depend on its own facts and circumstances. I remember my first ever tort lecture, when the lecturer suggested that the snail in the ginger beer bottle was perhaps one of the cleaner things in a Paisley café in 1929. As my noble and learned friend Lord Fraser of Carmyllie has just reminded me, it was never proved whether the snail ever existed. Cases of Wednesbury judicial review, as we discussed on numerous occasions today, fall within Schedule 1.
One area of distinction is that the amendment also seeks to bring into scope any case which is certified to be of "significant wider public interest". Under the current legal aid scheme there is a rule that allows any excluded case-other than a business case-to be brought back into scope if it is of significant wider public interest. It is not our intention to include such a rule in the future scheme created by the Bill. This is because we do not consider that the presence of this factor should constitute an automatic entitlement to publicly funded legal services, particularly where an area of law has been excluded because it is considered insufficiently important to merit public funding, because there are alternative sources of funding or because the procedure is simple enough that litigants can present their case without assistance.
Nevertheless, I reassure the Committee that funding for tribunals and appeals is not being withdrawn altogether. We have focused our limited resources on the highest priority cases in the Upper Tribunal and appellate courts, such as those concerning detained mental patients, special educational needs appeals, and discrimination. Where a case is in scope, it is our intention that the public interest will continue to be a relevant feature in the merits criteria created under Clause 10, thus allowing this to be taken into account in the funding decision.
I will combine that with my comments about the extent of Clause 9, which we will shortly debate. I have indicated that it does not cover everything, but clearly there is an overlap where the director of legal aid casework will be able to consider issues such as the complexity of a case and other factors. With that assurance, I hope that my noble friend will withdraw his amendment.
Lord Thomas of Gresford: My Lords, I do not intend to go into the complexities of proof in a Scottish court; it has always seemed something of a haar to me. I am grateful to all noble Lords who spoke in the debate. I will stress two points from the speeches
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The other point that I will stress follows from what was said by the noble Baroness, Lady Mallalieu, who outlined all the steps that must be taken in every appeal: the complicated preparation of schedules, skeleton arguments and documents that some of us are familiar with. As she said, it would be quite impossible for any individual to conduct an appeal, given all the background work that has to be done. As the noble Lord, Lord Pannick, said, the amendment is tightly drawn. I am disappointed with the response of my noble and learned friend. I hope that I will be able to pursue the matter with him afterwards and come back to it at a later stage. I beg leave to withdraw the amendment.
Amendment 82ZD, in substitution for Amendment 86, withdrawn.
Amendments 82A to 82D not moved.
Amendments 83 to 86 had been retabled as Amendments 82ZA to 82ZD.
Amendments 87 to 89 not moved.
Lord Beecham: My Lords, like the Minister, I learnt tort. In my case, it was at the feet of no less a person than the noble and learned Lord, Lord Hoffmann, and I remember those days with great affection, but in the course of my career I have also been involved in criminal injuries compensation cases, and I shall refer later to some of the problems that they throw up.
Once again, the Government have consulted about these matters, and once again the response from those consulted has been almost wholly negative. Nevertheless the Government, on the grounds that we are now very familiar with, are clearly going ahead with their determination to withdraw any form of legal support in the way of advice-representation was not covered-from the scheme.
This scheme is so simple that it takes only 55 pages to set it out in the statutory instrument and a mere 113 pages in the guide to the scheme that is available to potential claimants. It is fair to say that the guide also
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Before I come on to the issues that can confront claimants, one of the points that the Government have made is that support is available from other sources, including the compensation authority itself and Victim Support. However, Victim Support does not provide legal advice, and it is very questionable whether a telephone, or even online, conversation with the authority can help all claimants, or indeed perhaps the majority of them, because there are issues. It is not simply a case of having to establish that a criminal injury has been sustained; there are issues that can be taken into account by the tribunal in determining whether to grant an award or to reduce an award that would otherwise be available.
A number of factors come into play, such as the conduct on the occasion of the claimant, a procedural delay in reporting the matter, or a failure to co-operate with those inquiring into the matter. These might be for inadequate reasons-sloth, neglect or reluctance-but they might arise from concerns about whether bringing a claim might provoke an assailant, for example, or because the situation has created such stress that the person may not feel able to pursue matters. There are other matters too; a criminal record might disqualify or allow an abatement of an award that would otherwise have been made. Those matters-the matter of conduct, for example-are matters on which applicants might very well need advice and assistance. It will not be legal aid advice or assistance if this clause stands.
I clearly recall representing a client where conduct was an issue. He had to be advised about that, and as I was representing him I had to put the case about those matters. Equally, I had to deal with someone with a criminal record. It was not particularly relevant. He had not been convicted of a violent crime, so it was not particularly germane to whether he should have a deduction or, at any rate, a significant deduction. One of my most vivid recollections is of a very sad case of a lorry driver who was driving his lorry and was the victim of a road accident in which the driver of a sports car rammed into him head on and went underneath the cab of this client's vehicle. He sustained some physical injury but, much worse, he sustained severe post-traumatic stress.
This was a complex case in medical terms and in terms of the quantum that the client might be seeking-at that point, there was no tariff. The case took a considerable time, and we were able to secure an interim payment for him. Tragically, this man took his own life as a result of the post-traumatic stress. In those circumstances, his widow had a sustainable claim, and the case went on. I am not saying that that was a typical case, but it is an example, perhaps a most acute example, of a case where legal advice and assistance was indispensable to the client. There will be others of that kind for which such advice will not be available in future. That cannot be right. I simply add this to the list of cases for which the amount that it would cost to restore or retain legal aid and advice to scope would be relatively modest, and accordingly I beg to move.
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Lord Thomas of Gresford: I was a member of the Criminal Injury Compensation Board for seven or eight years and resigned when the noble Lord, Lord Howard, introduced his tariff scheme in 1993. Reverting to the Scottish theme, I recall sitting in Glasgow on one occasion with two very senior Scottish QCs next to me. I was the junior member. We had an applicant in front of us who addressed us in a language that I did not understand. At that time, I had been married to my late wife for some 30 years. She was from West Lothian, so I was pretty well attuned to the Scottish dialect of the central belt. However, I noticed that my learned friends on either side were nodding as though they understood, so I said to the chairman, "What's he saying?", and the chairman replied out of the side of his mouth, "I haven't a clue", so I said to the applicant, "Would you mind speaking more slowly please?". He looked at me and said, "Eh?". He could not understand me, so there was a certain confusion. I there realised the importance of having an advocate who could explain the case clearly to the tribunal. On the other hand, the members of the Criminal Injury Compensation Board were, I am sure the noble Lord, Lord Beecham, will acknowledge, a pretty experienced bunch of people, and we handled most claims without representation and without any difficulty, so if there are priorities to be chosen here, this would not be one of mine.
Lord Pannick: My Lords, there are undoubtedly few examples of claims under the scheme that raise complex legal issues that require legal advice, but there are some, and it is unfortunate that the Bill should seek to exclude legal advice and representation in cases where such complex legal issues arise. It is particularly unfortunate that paragraph 16 of Part 2 should exclude claims under the criminal injuries compensation scheme because that conflicts with one of the most welcome and important developments in criminal law in recent decades: the recognition of the rights and interests of victims of serious crime. The criminal injuries compensation scheme is one of the earliest statutory-or non-statutory, in its case-recognitions of the rights and interests of victims. I can think of nothing more likely to undermine the real interests of victims where complex matters are raised than denying them any opportunity of legal aid and advice through the legal aid scheme.
Lord Phillips of Sudbury: My Lords, I was rather impressed by the case that was put to the House by the noble Lord, Lord Beecham, and at the same time I heard what my noble friend Lord Thomas said from his direct experience of these types of tribunal. In summing up this debate, perhaps my noble friend might contemplate a compromise where legal advice would at least be available even if legal representation is not. That would significantly alleviate the sort of case that the noble Lord, Lord Beecham, told us about, and would see justice done.
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Lord Wallace of Tankerness: My Lords, I have listened carefully to the representations and arguments put forward. Amendment 90 would delete paragraph 16 of Part 2 of Schedule 1:
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"Civil legal services provided in relation to compensation under the Criminal Injuries Compensation Scheme".
I think I am right in saying that the architecture does not apply right across the board for criminal injuries, but only in cases that are brought within scope under Part 1.
I note what the noble Lord, Lord Beecham, said about the potential complexity of applying and the advice given to possible applicants, although I think it is fair to say that applications can be made online and by telephone, and the Criminal Injuries Compensation Authority itself provides help and guidance.
I rather suspect that the numbers involved are small, although I could not indicate just how many, but I have listened, I believe that some important points have been made, and I want to reflect on this-without any commitment. On that basis, I ask the noble Lord to withdraw his amendment.
Lord Beecham: I am extremely grateful for-not to say surprised and delighted by-the noble and learned Lord's generous offer, and I hope that we can take matters forward in the spirit that the noble Lord, Lord Phillips, referred to. I withdraw the amendment.
Amendments 90ZZA and 90ZZB not moved.
Lord Wallace of Tankerness: My Lords, the government amendments in this group in the name of my noble friend Lord McNally are designed to give better effect to the stated policy intention.
Under the proposals that we are putting forward, advocacy should be available for preliminary and incidental proceedings only where those proceedings take place in the same forum or venue as the proceedings that are in scope. We do not believe that this is sufficiently clear in the Bill as currently drafted. Therefore, Amendment 90D deletes from paragraph 5 of Part 4 of Schedule 1 the reference to Part 3, and Amendment 90E introduces a new sub-paragraph that clearly sets out that advocacy will be available in preliminary or incidental proceedings in the same venue as those set out in Part 3.
Amendment 90F is consequential to the amendments that I have just described. Amendment 90G inserts a new sub-paragraph to provide a power that allows regulations to make provision on when one set of proceedings is related to another. Amendment 90C makes it clear that advocacy for an in-scope area will be available in relation to bail proceedings and enforcement proceedings in any venue. Amendment 90B has been tabled to ensure that correct references are made in paragraph 24 in relation to the rest of Part 3. More technically, Amendment 90ZA corrects a slip in the original drafting and makes the wording of paragraph 10 of Part 3 of Schedule 1, which is about advocacy for
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Lord Bach: I thank the noble and learned Lord for moving these amendments so succinctly and clearly. This side of the House has no objection to them at all.
90B: Schedule 1, page 140, line 11, leave out "the preceding paragraphs" and insert "any other paragraph"
90C: Schedule 1, page 140, line 12, at end insert-
"25 Advocacy in bail proceedings before any court which are related to proceedings within any other paragraph of this Part of this Schedule.
26 Advocacy in proceedings before any person for the enforcement of a decision in proceedings within any other paragraph of this Part of this Schedule."
90E: Schedule 1, page 140, line 41, at end insert-
"( ) Where a paragraph of Part 3 of this Schedule describes advocacy provided in relation to particular proceedings in or before a court, tribunal or other person, the description is to be treated as including services provided in relation to preliminary or incidental proceedings in or before the same court, tribunal or other person."
90G: Schedule 1, page 141, line 3, at end insert-
"( ) when proceedings are related to other proceedings."
Schedule 1, as amended, agreed.
91: Clause 9, page 6, line 16, after "breach" insert ", or
(c) that it is in the interests of justice generally"
Lord Thomas of Gresford: My Lords, I rise with a sense of relief, now we have got through Schedule 1.
The amendments grouped with my Amendment 91 seek to clarify or perhaps extend the circumstances in which an exceptional case determination can be made under Clause 9(3). At the moment, as drafted, that subsection says that an exceptional case determination is one that,
- "a breach of ... the individual's Convention rights ... or ... rights of the individual to the provision of legal services that are
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In other words, an exceptional case has to fall within a breach of the individual's convention rights for funding to be granted at all. That is far too narrow a situation.
Amendment 91 is a perfectly simple amendment that says that exceptional funding should be available when,
The amendments that are grouped with mine, in the name of the noble Lords, Lord Bach and Lord Beecham, rather extend that definition, but the idea is simple enough. We believe that Clause 9 does not go far enough to address the gap in funding for parties that need representation. It is not sufficient to counter the adverse effects of litigants being forced to pursue litigation in person in areas of civil and family law where legal representation is important for the proper conduct of the case. I have already referred to what the Judges' Council had to say on this issue in addressing a previous amendment.
The exclusion of private family law from legal aid is likely to make the operation of this clause particularly problematic. There is a long line of Strasbourg cases to the effect that at least some family cases not involving domestic violence require legal aid to be available. Serious injustice would be caused if parties to these emotionally charged cases were forced to act in person. In practice, even under the clause as drafted, it is likely that a large number of cases would have to be treated as exceptional because of the risk of a breach of the right to a fair hearing under Article 6 of the European convention.
However, the problem does not end there. Article 6 does not apply in cases of an administrative character. Many cases of that kind, which reach the courts from tribunals or decision-making officials, involve important issues about education, privacy or social care, for example. Unfairness can have devastating consequences for individuals. Not surprisingly, the English courts have long accepted that domestic law in these cases imposes the same standards of fairness as Article 6. However, Clause 9 would not permit exceptional funding to be granted to avoid a miscarriage of justice in a case of this sort. It is very interesting that the coalition Government, in which there is a certain element of the Conservative Party, are limiting exceptional funding to a breach of convention rights and not to the English common law that would show that an injustice might follow.
This amendment ensures that an exceptional case determination may be made where it is appropriate in the interests of justice generally, not merely in cases where there would otherwise be a breach or a risk of a breach of the European convention. I beg to move.
Lord Bach: My Lords, this is an important group and anything I say of course comes with the proviso that we too support the amendment moved by the noble Lord, Lord Thomas of Gresford. We have put down an amendment proposed by the Law Centres Federation, which many noble Lords will know is responsible in many ways for the law centres dotted
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Exceptional funding is a proposed essential safeguard in a legal scheme that obviously seeks to exclude whole areas of law from cover. It is a mechanism by which individuals who suffer particular injustices as a result of these broad exclusions that we have been debating can in exceptional circumstances obtain legal aid to help them assert their rights. We believe that it is wrong to remove whole areas of law from scope rather than consider individual cases, as no account is taken of the importance of the case to the individual or their ability to address their legal problems by other means.
Clients with physical or mental health difficulties or with low levels of education may be wholly unable to resolve their problems without legal-aided support. They will also be seriously disadvantaged when facing, as we have been debating in the past few minutes, unusually complex areas of law or well funded opponents employing significant expert legal resources. To address this injustice, the Government rely on their proposed exceptional funding provision in Clause 9.
However, Clause 9 as drafted is too narrow, as the noble Lord, Lord Thomas of Gresford, has persuasively argued, and is problematic in a number of ways. First, as I have said, the clause is too narrow and depends on proving human rights or European law concepts. These highly complex areas of law are still meant as the only gateway to legal aid for individuals who, by definition, are often not in a position to deal with their underlying legal problems.
Secondly, Clause 9 excludes any prospect of legal aid for the initial advice and assistance stage, which is often the stage at which most help can be provided to the client to resolve matters and has the inestimable advantage of avoiding more costly litigation. I ask the noble and learned Lord when he replies to consider whether the proposition that I have just put as regards the initial advice and assistance stage is out of scope.
The current draft clause states that to acquire exceptional funding a client would have to prove that refusal of legal aid would be in breach of "the individual's convention rights" or their rights,
- "that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach".
However, in determining which areas of law to leave in scope and which to exclude, the Government have used some more approachable tests: namely, is the client likely to be particularly vulnerable; is advice and representation available from other sources; is the area of law complex; and, finally, can the client deal with matters or represent themselves? Given those considerations, surely it is appropriate to have an
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In addition, and recognising that preparing an exceptional funding application is likely to require the assistance of an adviser, especially if arguments on human rights and European law need to be formulated, we propose a new subsection (7) to be inserted in Clause 9. This broader provision would enable decision-makers to award exceptional funding in circumstances where, despite the tests used to underpin the excluded areas of law, the client's vulnerability or health is such that they cannot represent themselves and have been unable to find alternative sources of advice and assistance. That amendment would also provide a safety net for children and young people under the age of 18. It would enable provision of legal aid funding where, despite the underlying area of law being excluded, it is in the interests of justice. This is where we come back to the noble Lord's amendment for legal aid to be provided, whether at the request of the courts or on the client's application. We believe that without such amendments children and vulnerable adults will not only have great difficulty in accessing advice and asserting their rights in excluded areas of law, but will also be effectively excluded from the safety net of the exceptional funding scheme. It is on that basis that I put forward the amendments in this way.
Amendment 92, which is also in our names, introduces a requirement for the director of legal aid to consult the chief coroner when making determinations about inquests. The Committee will be well aware that the chief coroner is intended to provide leadership within the coronial system. It has been a matter of great debate in this House. The Government are to be congratulated on keeping the position of chief coroner. Through that role, the chief coroner will be in a unique position to understand the nature of inquests considered on a national level and how a particular case perhaps fits in and, more fundamentally, whether there may be a wider public interest in respect of the individual and the inquest itself.
We argue that it appears appropriate to design the legal aid system in respect of inquests with this provision in place. Will the Minister confirm whether the dialogue with the judicial office in respect of the chief coroner post has progressed to any action in establishing the post, and when can we expect to have an announcement of a new chief coroner being appointed? The Minister need not give the answers to these questions now. If he would write to me on that, I should be equally grateful. What other steps are being taken by the ministry to establish this statutory office, including accommodation and support staff? I should be grateful if in due course he could let me know the answers to those questions in writing.
As I said at the start, we agree with the amendment moved by the noble Lord, Lord Thomas of Gresford. Clause 9 is much too narrowly drafted. We have spoken to these amendments because they are worthy in themselves but we should like to see the Government give a little ground as regards Clause 9.
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Lord Pannick: My Lords, perhaps I may add a few words on Amendment 91. The defect in Clause 9(3) is that it defines the "exceptional case determination" exclusively by reference to breaches of convention rights and EU law rights. But those rights are designed as a floor and not a ceiling. It is most unfortunate that the Bill treats them as a ceiling. I hope that the Government, on reflection, agree that the interests of justice are criteria entirely appropriate for the responsible director to consider and to apply.
The wording of Clause 9(3) is very regrettable. If this amendment is not accepted, the consequence is that the director is compelled to deny legal aid even if he considers that the interests of justice require it in the circumstances of the case.
Lord Phillips of Sudbury: My Lords, my name is attached to Amendment 91. It is common ground across the Committee that the concern of those of us putting forward amendments is that, not just occasionally but frequently, the Government will inadvertently cause serious injustice by the exclusions from scope to legal aid. We have had a lot of debate on that broad proposition. The exceptional case provision in the Bill is therefore of huge importance, and if it were to be couched in sufficiently wide language, I believe that it would go a long way towards assuaging some of the great concern that is felt, as I have said, across the Committee about what this Bill will do in practice.
I want to pick up on the point made by the noble Lord, Lord Bach, that this amendment has been drafted by the Law Centres Federation. No other body of legal advice organisations in this land is as intimately knowledgeable of the on-the-ground reality of what, after this Bill has come into effect, will in practice be essential in order to avoid the greater injustices. Although my name is added to Amendment 91, I have to say that Amendment 91A is rather better and would also give the Government some solace. The arrangements that would result from it are defined in practical terms which the Government could accept. It may be that they would still be unhappy about the final subsection which talks generally about the "interests of justice", and if that is the case, surely the way forward would be for the Government to accept the four paragraphs under the first subsection and add further ones as the price of excluding the general "interests of justice" exception. I hope that the Government will take this opportunity to put our minds at rest.
Baroness Howe of Idlicote: My Lords, I would like to support this group of amendments. I am sure that some tidying up is needed, but on looking at the areas covered, I had thought originally that I was probably keener on the generality of the amendment tabled by the noble Lord, Lord Thomas of Gresford, because it gives scope for decisions based on individual circumstances. Amendment 91A is more detailed and spells out several important areas, and that is helpful in many ways, but I wonder whether the age limit, when we are talking about vulnerable or disabled children, or even more important, children who have been in care, is not too low and should not be much closer to 25. However, I strongly support the intentions behind this group of amendments.
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Lord Wallace of Tankerness: My Lords, it is important that we have moved on to Clause 9, covering exceptional funding, because this has been discussed in earlier amendments. Amendment 91, moved by my noble friend Lord Thomas of Gresford, would allow the director to fund excluded cases where he or she determines that it is generally in the interests of justice to do so. I am sure that Members of the Committee will readily acknowledge and appreciate that in this context, the phrase "interests of justice" is capable of wide interpretation. The amendment would create a power, which I am sure is its intention, that is considerably broader than the one currently being proposed in Clause 9 as it stands. It is right that there should be an exceptional funding scheme and that it should provide a potential safety net for the protection of individuals' fundamental rights of access to justice, and we believe that Clause 9 achieves that important end. Exceptional funding determinations under Clause 9(3) will be made in accordance with the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.
Following on from that and looking at the jurisprudence, in considering whether legal aid should be provided in an individual case, the kind of factors that the director will need to take into account include: the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent themselves effectively; and alternative means of securing access to justice. These factors are broadly similar to the considerations that the Legal Services Commission currently takes into account in criminal proceedings where it is in the interests of justice for legal representation to be provided. I would suggest that our exceptional funding provisions are likely to meet the concerns of noble Lords in civil cases where, for example, Article 6 of the European Convention on Human Rights is engaged. Indeed, in moving his amendment, my noble friend Lord Thomas of Gresford accepted that there is substantial case law from Strasbourg in relation to family law and he almost seemed to acknowledge himself that there was a potential for very many cases indeed to qualify under the exceptional funding provisions as set out in the Bill. However, we believe that the insertion of the general phrase "interests of justice" would be open to very broad interpretation and would risk undermining the approach, scope and rationale for making changes to the legal aid system.
It has been acknowledged that Amendment 91A, tabled by the noble Lord, Lord Bach, covers similar territory in that it would allow the director to make exceptional case determinations when it was appropriate to do so against specified criteria. As with Amendment 91, the potential ambit of this is extremely broad, and certain elements would be open to very wide interpretation. Again, however, I believe it is worth noting that many of the factors listed in the amendment, such as,
- "the client's vulnerability ... the client's capacity to represent themself ... and ... the availability of alternative sources of",
funding will form at least part of the test for exceptional funding where Article 6 is engaged.
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Amendment 91A also specifically refers to clients under the age of 18. In considering whether an individual case meets ECHR exceptional funding criteria, the director would be obliged to consider the ability of the client to present their own case, having regard to the complexity and importance of the issues in terms of what is at stake. Where a child brings an action without a litigation friend, that would be a relevant factor in deciding whether or not they have the ability to present their own case. In the end, the factors I have indicated will be taken into account by the director in deciding whether the absence of legal aid would mean that it was practically impossible for the applicant to present their case or would lead to an obvious unfairness in the proceedings.
The noble Lord, Lord Bach, asked whether legal aid would apply to advice and assistance. The answer is that in principle it could do so to the extent that it would avoid the breach of an individual's rights under, for example, Article 6. Amendment 92 raises the issue of the chief coroner-
Lord Pannick: My Lords, in relation to Amendment 91, does the noble and learned Lord accept that Clause 9(3) as currently drafted will require the director to spend much of his or her time making determinations as to the scope and application of convention rights rather than focusing on the easier question of whether or not the interests of justice require legal aid? I would suggest to the noble and learned Lord that there is a real danger of satellite litigation as to whether or not convention rights or EU rights are in fact breached. Would it not be much more sensible and efficient, and much less expensive, to leave the director to focus on what he or she will be good at, which is asking whether the interests of justice require legal aid?
Lord Wallace of Tankerness: As ever the noble Lord puts a seductive argument, but there is a certain advantage in the director being required to have regard to convention rights because, if the test was the wider one of the undefined interests of justice, I am not sure whether that would lead to any less satellite litigation; it is possible that it could lead to more. He says that it would be easier, but when faced with that test without any guidance-with the exception of a certain amount of specificity set out in the amendment tabled by the noble Lord, Lord Bach-there would not be any real steer for the director if that is all he is to be left with when making decisions.
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Lord Pannick: It would be very difficult to challenge a director's decision as to whether the interests of justice are met because it is a subjective test. If the test, as under Clause 9(3), is hard-edged-that is, whether there is a breach of the convention-it is much easier to bring a legal claim in that respect.
Lord Wallace of Tankerness: Having a definition which in these circumstances would be so broad-which I think the noble Lord is saying is a merit of it-opens up vast scope, as I said in response to my noble friend Lord Thomas.
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Lord Thomas of Gresford: I shall have my chance to reply later, but it is important that we focus on this. My noble and learned friend says that it is a broad interpretation and opens up a wide field, but everything is governed by that word "exceptional". We have referred to that word in earlier discussions and debate during the passage of this Bill. "Exceptional" takes it out of the ordinary; it is unusual, outside what is normal. That cuts down the broad interpretation. You need a wide field because exceptional cases do not arise simply in relation to what the noble Lord, Lord Pannick, referred to as the "floor"-the minimum rights guaranteed by the convention; they can come out from left field, as the Americans would say. Something quite unexpected is exceptional, which would not necessarily engage the rights under the European convention or European law. "Exceptional" cuts down the broad interpretation for which the noble Lord is arguing.
Lord Wallace of Tankerness: It may cut it down, but it leaves it still without any parameters, subject to "exceptional", whereas in what is being proposed the kind of factors which the director would be required to take into account are those which I think people would agree are relevant, particularly in determining whether an application is exceptional. The importance of the issue is to the individual concerned: the nature of the rights at stake, the complexity of the case, the capacity of the individual to represent him or herself effectively and whether there are alternative means of securing access to justice. These are not airy fairy considerations; they are ones which I would fully expect the director to be able to bring to bear in dealing with individual cases, and I am sure he would do so. Everyone who makes an application no doubt thinks that their case is in the interests of justice and that it should be funded. At least, there is some indication here as to what criteria the director will apply.
On Amendment 92, I accept what the noble Lord, Lord Bach, said, and we will ensure that the specific questions that he asked about the chief coroner get a response as soon as we can. His amendment would make it a requirement for the director to consult the chief coroner and have regard to his views before making a significant wider public interest determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a "significant wider public interest" in the applicant being represented. This is a term with a clear definition under the funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case.
The Government consider it important to retain the ability to fund inquest representation on the basis of the wider public interest because the provision of such representation may lead to findings which help prevent future deaths. That is why Clause 9(4), which I think in its generality the noble Lord welcomes, gives the director the power to provide funding on the basis of a "wider public interest" determination.
The onus has never been on the decision-maker to consult coroners-I am well aware that I am in the presence of someone who had to make these decisions
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Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has significant wider public interest.
Lord Carlile of Berriew: I apologise for interrupting my noble and learned friend. He may be aware that a boy called Jake Hardy died today as a result of suicide in Hindley Young Offender Institution, a matter that I am sure we would all regret and wish to express our deep sympathy to his family. Can he really see a distinction in inquests between a case in which that young man's family have an interest and a case in which a wider public have an interest? Is it really the intention of the Government that the family should not be entitled to legal aid if it is not identified that there is a wider interest in the outcome of the inquest? That is a distinction made by this clause.
Lord Wallace of Tankerness: My Lords, I have to confess that I have not heard that news, although they are obviously tragic circumstances and I associate myself with expressions of regret. When one does not know the circumstances, I always find it very difficult to extrapolate from them to a wider general principle. I hope that my noble friend will forgive me if I do not follow him down that line, because I simply do not know all the facts and circumstances.
In decisions on whether legal aid is required to fulfil the state's obligations under Article 2 of the ECHR, it would seem incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the significant wider public interest aspect of the case. To compel the director to consult the chief coroner in all cases which come for a determination is likely to add considerably to the administrative element of the assessment process and lead to delays for bereaved families. In turn, it would represent a burden on the chief coroner, who would almost certainly be unfamiliar with the circumstances of many cases, unlike the individual coroner who is holding the inquest. The chief coroner would therefore be required to acquaint him or herself with information pertaining to a number of cases with no obvious benefit for bereaved families, who have a locus in this. In these circumstances, there is no obvious benefit in individual coroners or the chief coroner mandating what would inevitably be an additional process in the legal proceedings.
Amendment 92A would compel the director to make provision for the payment of reasonable costs incurred by any person making a successful application under this section. The concept of "reasonable costs"
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The exceptional funding scheme being introduced by the Government will give the director a narrowly drawn power to provide civil legal services that are not available under Schedule 1-hence their being "excluded cases"-where there are exceptional circumstances. We have reviewed questions of the European convention and issues relating to the death of a family member. An individual must qualify for such services in accordance, too, with Clause 10, which means that decisions on exceptional funding will be subject to the means and merits criteria. However, we believe that this is an essential safeguard for fundamental rights of access to justice which will underpin our proposals for changes to the scope of civil legal aid. The Director of Legal Aid Casework will make these exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions in relation to excluded cases. Clause 4(4), which has already been debated, explicitly prohibits the Lord Chancellor from giving directions or guidance to the director in relation to individual cases. This will guarantee the objectivity of the decision-making process, in respect of both in-scope and excluded cases, and serve as a safeguard against political interference.
Clause 9(3)(a) provides the director with the power to make an exceptional case determination where the director considers that the failure to provide legal services to an individual would be a breach of the individual's rights under the convention or European Union law, as we have discussed.
I recognise that concerns have been expressed about the parameters of the exceptional funding scheme that the Bill will create. I am sure-it is obviously the case-that many noble Lords would prefer a broader discretionary power in the Bill but, if I may take the Committee back to the fundamental purposes of the changes that we are making to the general legal aid scheme, we need these reforms to create a fair, balanced and sustainable legal aid system. We have taken into account the importance of the issue; the litigant's ability to present his or her own case, including the vulnerability of the litigant; the availability of alternative sources of funding; and the availability of other routes towards resolution. We have used these factors to prioritise funding so that civil legal aid will be available in the highest priority cases-again, I repeat, essentially where, first and foremost, people's lives and liberty are at stake; they are at risk of serious physical harm; they risk the immediate loss of their home; or their children may be taken into care. If we make wholesale changes to the exceptional funding provisions in the Bill, we risk undermining the overall reforms to the scope of civil legal aid.
That said, it is nevertheless our expectation that there will be several thousand applications under the new scheme and that there will not be a fixed budget
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In these circumstances, we believe that this will be a route down which applicants will go and, as my noble friend said when moving his amendment, that it will cover a considerable number of cases. I invite my noble friend to withdraw the amendment and to be reassured by the structure and architecture which is in place with this important clause, in addition to those cases which already will be in scope under Schedule 1.
Lord Mackay of Clashfern: My Lords, having listened to what we have heard in connection with these amendments, it occurs to me, first, that, for some reason which is no doubt clear to some, "exceptional" is used in order to be defined, so the exceptional quality does not come into the definition of exceptional cases.
My second point is that, although "the interests of justice" is a rather general and vague subject, on the other hand if you turn it round and say that the director, before he allowed this ground to prevail, had to be satisfied that there was a real risk of injustice unless legal aid was granted in a particular case, that would focus on the issue in the case in a more distinct and direct way than the phrase "the interests of justice", which has been used in many contexts in the past. I agree that, on the whole, it is a vague phrase, but turning it round might make it a little more attractive to my noble and learned friend.
7.15 pm
Lord Wallace of Tankerness: My noble and learned friend focuses on the word "exceptional". My understanding of the term "exceptional cases" and the architecture of the proposed scheme is that there will be civil legal services available as described in Part 1 of Schedule 1, subject to Parts 2 and 3, for cases which are in scope. There will also be civil legal services available for cases which do not fall within Schedule 1 but which are, as it were, exceptional. That is set out in Clause 9. I am certainly interested in what my noble and learned friend said about turning the phrase around, which has a certain seductive charm. I would not want to immediately agree to that but, without commitment, it is certainly something that I would want to think about.
That said, the provisions we have here are quite substantive in their degree of direction and the extent to which the director can apply the convention jurisprudence as to which cases would fall within subsection (3). So there is a degree of certainty. Obviously, each case will depend on its merits, but at least there will be some indication of the kind of factors and the relevant jurisprudence that the director will take into account. As I have said, I certainly find that the concept of "the interests of justice", undefined as it is, is probably too vague to be in the Bill without undermining the scope of the scheme that is being proposed.
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Lord Thomas of Gresford: I understood my noble and learned friend to say a moment ago that "exceptional" means no more than it is a case outside Schedule 1, not that it is exceptional in the class of cases. That is a very different concept. I had understood "exceptional" to be in a class of cases that are not covered by Schedule 1 and not in scope and that you would need to have an exceptional case in that class of cases. However, if "exceptional" means, as my noble and learned friend said-and no doubt he will think about it-that it is merely a case that is outside Schedule 1, that is a very different situation.
Lord Wallace of Tankerness: My Lords, I shall certainly think about it. Clearly, if it falls within scope, it falls within scope, whereas we have discussed some cases which would not necessarily fall within scope. We had a lengthy discussion on clinical negligence, which does not fall within scope but would nevertheless be an exceptional case-obviously as determined and defined in Clause 9.
Lord Thomas of Gresford: My point is that a clinical negligence case, on what the noble and learned Lord said, as I understood it, would be exceptional. So that qualification is immediately fulfilled and then you are concerned only with the convention rights. However, any clinical negligence case would be exceptional.
Lord Wallace of Tankerness: No. When debating clinical negligence cases we agreed that they did not fall within Schedule 1. However, clinical negligence cases would be exceptional if they met the criteria set out in Clause 9. In particular I go back to the debate on the criteria which relate to the individual's convention rights within the meaning of the Human Rights Act 1998. The noble Lord, Lord Pannick, said that this is a floor operation rather than a ceiling operation but, nevertheless, Article 6 of the European convention is an important threshold and, in that respect, is exceptional. I hope I have not made things less clear. The policy is to limit this to where a failure to accept cases and make an exceptional determination would breach an individual's convention rights or any right to the provision of legal services enforceable under European Union law. That is the nature of the exceptional circumstances.
If we go any further we will probably tie ourselves up in knots. We almost got there when we were looking at clinical negligence cases in which the exceptional circumstances as defined here, with particular reference to convention rights, would apply.
Lord Bach: My Lords, before the noble Lord, Lord Thomas of Gresford, replies to the debate, I hint to the Minister that he should listen very carefully both to what the noble and learned Lord, Lord Mackay, suggested and to what the noble Lord, Lord Thomas of Gresford, invited him to say about the expression "exceptional". Can he also let us know-not in due course but reasonably quickly-some more details about how it is intended that Clause 9 will work and the kind of funding that will be available under it? He said those questions would be replied to in due course,
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My real point in getting to my feet now is that, though I may have missed what the Minister said, I do not think he answered my short query about whether the way that Clause 9 is drafted at the moment excludes any prospect of legal aid for initial advice and assistance. That is an important point in relation to the fact that that initial advice can stop things in their tracks at a much earlier stage and save the legal aid fund a lot of money.
Lord Wallace of Tankerness: My Lords, first, I indicated when replying to my noble and learned friend Lord Mackay of Clashfern that I certainly want to reflect on what he said. It would be wise to do so. On the question that the noble Lord raised, I think I replied but I can quite understand in the context of my reply that the noble Lord did not hear it. I now want to make sure that I get it right. My reply was to the effect that initial advice and assistance could in principle be granted under Clause 9, to the extent that to grant it would be necessary to avoid a breach of the individual's rights, for example, under Article 6. That is perhaps not as wide as the noble Lord hoped, but in principle there could be circumstances where it would be available.
Lord Thomas of Gresford: My Lords, my noble and learned friend referred to guidance that would be given to the director in due course about how he approached his task. I would indeed expect that the criteria for what is exceptional would be published by the director as one of his first tasks. An application form for exceptional funding would no doubt have a block saying, "You will not get this funding unless it is exceptional in the following sense", or some guidance like that. Accordingly, it would be quite possible to publish criteria as to what the director would consider to be in the interests of justice generally, but I defer to the expression that was used by the noble and learned Lord, Lord Mackay, about there being a real risk of injustice if legal aid is not granted. That seems an admirable way to approach it, and I will press that on my noble and learned friend in due course. For the moment, I beg leave to withdraw the amendment.
Amendments 91A to 92A not moved.
Clause 10 : Qualifying for civil legal aid
Lord Beecham: My Lords, in the interests of life, liberty and the pursuit of nourishment, I will be uncharacteristically brief in moving these amendments which relate to Clause 10 and the qualifications for civil legal aid.
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Amendment 93 seeks to delete subsection (4):
"In setting the criteria, the Lord Chancellor must seek to secure that, in cases in which there is more than one description of service that could be provided for an individual, the individual qualifies under this Part for the service which in all the circumstances is the most appropriate having regard to the criteria".
What that means and how significant it is escapes me. Perhaps in replying the noble Lord, Lord McNally, could amplify the meaning of it. In addition, another curious subsection states:
"The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings".
It may be a fact but it can hardly be a principle-but that may be me being pedantic again. I have already been rebuked by my noble friend Lord Bach for correcting his use of the word "decimate". The noble Lord, Lord McNally, may wish to rebuke me in this context.
Amendment 95 is simply designed to ensure that, if regulations are made, draft regulations should be laid before and approved by an affirmative resolution in each House of Parliament. We have had this amendment moved in respect of other regulations. It seems appropriate in this case that we should follow that course. I beg to move.
Lord McNally: My Lords, I would not dare to try to correct the noble Lord, Lord Beecham, on his English. I am still recovering from being corrected by the noble Lord, Lord Prescott, earlier in the Bill. I move in these circles with due caution.
I will address Amendment 95 first, which echoes the recommendation by the Delegated Powers and Regulatory Reform Committee to subject changes to the merits criteria to the affirmative resolution procedure. We have given careful consideration to what the committee said in its report about the procedure for the regulations under Clause 10(1)(b) and it is our intention to bring forward an amendment at a later stage to provide for regulations under Clause 10(1)(b) to generally be subject to the affirmative procedure. However, the amendment will also need to provide for a procedure along the lines of but not necessarily identical to that in Section 9(7) and (8) of the Access to Justice Act 1999 to allow for changes to be made quickly if necessary. With that explanation and assurance, I hope the noble Lord will not press his amendment.
Amendment 93 seeks to remove Clause 10(4) from the Bill. Clause 10(4) is based firmly on Section 8(4) of the Access to Justice Act 1999, which also contains an equivalent provision about the merits criteria. The funding code criteria made pursuant to Section 8 of the Access to Justice Act enshrine this principle. The purpose of Clause 10(4) is clear. It ensures that, where more than one level of service might be available, the merits criteria in the regulations under Clause 10 should be sure that the individual qualifies for the services which in all circumstances are the most appropriate having regard to the criteria. Often, one level of service will be most appropriate at the beginning of a case but the need of the applicant will change over time as the case progresses. Section 8(4) of the Access to Justice Act accounts for this.
The benefits of the provisions in Clause 10(4) are twofold. First, we can avoid unnecessary spending by ensuring that the appropriate level of service is funded.
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Lord Beecham: I am grateful to the noble Lord for confirming that changes will be made with respect to the regulation. I am happy to accept his explanation of what seemed beyond my limited intellectual grasp in that subsection. I beg leave to withdraw the amendment.
Amendments 94 and 95 not moved.
House resumed. Committee to begin again not before 8.29 pm.
Design Education and Growth
Question for Short Debate
7.29 pm
To ask Her Majesty's Government what is their response to the Design Commission's report Restarting Britain: Design Education and Growth.
The Deputy Speaker (Baroness Gibson of Market Rasen): My Lords, before we begin the dinner break business, I point out that the noble Baroness, Lady Wilcox, will be the last speaker in this debate, not the penultimate one, as it says on the speakers list.
Baroness Whitaker: My Lords, the raison d'etre of the new parliamentary Design Commission, whose first report is the subject of this debate, is that we do not pay enough attention to design-not enough attention economically, because it is one of the great, and potentially even greater, contributors to economic growth; not enough attention socially, because well designed environments, services and equipment create well-being, efficiency and security; and, the subject of the report, not enough attention educationally, the key to the other omissions.
The Design Commission grew out of lack of action in response to the All Party Associate Parliamentary Design and Innovation Group report on design and public procurement, Design and the Public Good, which I had the privilege of co-chairing, with Deborah Dawton, chief executive of the Design Business Association. The new commission is fortunate indeed to have as its chair someone of such distinction in the field as the noble Lord, Lord Bichard, and I look forward very much to hearing what he will say in this new role.
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We focused on education for our first report because design education is in some peril. Not enough people realise how important design is in creating the technical and intellectual capacity we need for the 21st century. One of those who does, of course, is the noble Lord, Lord Baker, and I am delighted that he will be speaking today. My co-chair, Vicky Pryce, is herself a distinguished economist, and our report took evidence from business leaders such as Sir James Dyson and Sir John Rose, formerly of Rolls-Royce, academics and experts such as Dr Paul Thompson of the Royal College of Art and Sir Christopher Frayling, and, of course, other designers themselves. Sir John Sorrell gave eloquent testimony to the powers of design for school-age children. The newly honoured Sir Jonathan Ive, our British export to Apple, spoke at an adjunct seminar mounted by the Design Council. Our evidence makes a very good read, and I recommend it. We asked four questions: why does design matter; what is the current situation in design education; what are our competitors doing; and what must we do to compete?
We came up with some interesting and disturbing answers. Design is central to growth because it is the link, in Sir Christopher Frayling's words, between disciplines like engineering and science and the production of the goods and services that we trade. As I said, good design makes the world a better place in all sorts of ways that matter profoundly. We teach design superlatively well here and there, but we have not got it lodged within the higher education science, technology, engineering and mathematics complex; we have not got enough intermediate further education shorter diplomas to equip the more technical workforce that we need; and, the most glaring gap, we do not teach all our school students with sufficient rigour that large proportion of the skills and capacities which would not only prepare them for a wide range of work calling on design, but for 21st-century work in general.
What do I mean by that? I mean a problem-solving approach; the capacity to work collaboratively; interdisciplinary capability; taking into account the participation of the end-user-that is us, the users; and the habit, and satisfaction, of creating projects which work. These are what lead to innovation and these are the qualities that business needs in its future employees if we are to make a better success of an innovative knowledge economy. They are not fundamental to the way in which art and design or design and technology are taught in school today, and they are hard to acquire from other subjects.
Nevertheless, at present, our competitors, particularly in Asia, send their students here to qualify in design. I met some at Imperial College a few weeks ago, from China, Malaysia, Indonesia and the Middle East, mixing with our own talented design engineering students in one of the few integrated courses, supported by Buro Happold. But that competitive edge will not be for long. South Korea has several new academic design institutions and it is not alone.
To keep up our leading international position, we need some changes in education. Briefly, first, like all good education recommendations, there needs to be an idea about society. The Government should have, like the Governments of the design-strong countries-Finland, Denmark, South Korea-an idea about the
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Design matters, and if we do not act accordingly we shall lose out in many ways. I very much look forward to the speeches of our select but eminent speakers-and, of course, to the Minister's response.
7.36 pm
Lord Baker of Dorking: I welcome this report and congratulate the noble Baroness, Lady Whitaker, on being the inspiration behind it, with her enthusiasm and dedication. Without it, I do not think that the report would ever have appeared.
The essence of the report is that our recovery as a manufacturing country depends on innovation and invention throughout our society, from aero engines down to carpet sweepers. That is really what the report is saying-and it is quite right to say that if we are going to have that sense of innovation it must be bedded into the education system of our country. It has to start in our schools, further education colleges and universities.
When one talks of design, one is often tempted to think of the one or two geniuses in design. These geniuses, rather like the 24 bus service, do not come in pairs-and, rather like the 24 bus service, there is a long gap until the next one appears. Innovation and design depend on hundreds and thousands of people in companies large and small, in any economy. We should be very proud of the fact that in our history we have a tremendous record of this. If you study the industrial revolution-although it has dropped out of the school curriculum almost totally, so it is almost impossible to do so-from 1730 to 1830, you would know the great names. There was Thomas Newcomen's beam engine, Arkwright's spinning jenny, Watt's first steam condenser and Joseph Bramah's lock. You would study all those-but behind them were tens of thousands of people. If you look at the patent registrations in the 18th century, it was happening day after day. When Hargreaves published his own patent application in 1740 for a spinning jenny, he referred to,
What those great names were all recording was not a great breakthrough in invention but a series of micro-inventions. The history of the industrial revolution is a history of one gadget after another that made the spinning jenny better. First, there was Kay, who realised that you could use a mechanical means to take the warp through the weft. After that there were endless
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This is where the report is a bit inadequate, if I may say so, because it does not recognise the importance in education of doing things with one's hands. I am a strong believer in doing as well as seeing in education. Perhaps that comes from my own education, because I attended a grammar school in Lancashire at the end of the war and the only lesson that I remember from that school was the three hours of carpentry that I had, where I learnt to do tenon joints and dovetail joints. If pushed I can still do them, and it made me handy in life, as it were. I have a great belief that all our children, in all our schools, should experience doing things with their hands. That is not the same as doing things on your computer; it is actually making and fashioning things.
I recommend to the House a book that was published in America last year by an American professor of philosophy who also runs his own motorcycle repair workshop in Virginia, where he repairs motorcycle engines. It is The Case for Working with Your Hands: or Why Office Work is Bad for Us and Fixing Things Feels Good. That is very much the essence of the university technical colleges that I am seeking to establish across the country, which are based very much on practical hand-work. I am glad to say that while all of them do engineering, some are specifically doing design engineering. The one that opened in Walsall last year, in the Black Country, is doing design engineering alongside the STEM subjects, and its particular courses are going to be on new product design and development. Siemens is helping it by coming in and devising the teaching modules that are needed in those courses. This is something that industry has never done before in the education system.
We asked the companies not just for day release or apprenticeships but to come in and design the actual courses. Rolls-Royce apprentices came over from Derby and in the UTC in Staffordshire set up courses to design piston pumps and to make them for eight weeks. When youngsters have done that, they have used their hands and got to know the use of metals and the effect of mechanical changes. The one in central Bedfordshire, which is opening this year, is going to do design engineering with BAE and with Cranfield, the postgraduate university. My time is almost up, so I must design the end by saying simply that the practical hands-on work in education is essential for innovation and design, and for the future growth of our country.
7.43 pm
Lord Cotter: My Lords, I, too, thank the noble Baroness, Lady Whitaker, for introducing this timely and important debate, and I compliment the noble
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"I want Britain to be the home of the greatest scientists, the greatest engineers, the greatest businesses-a land of innovators",
which, with my focus, is good news. However, I also accept the comments made in the report about this being an incomplete vision, on which the report goes on to elaborate in due course. However, if I may concentrate on the business field, I should say that those are warm words from the Chancellor but they need to be put into practice, as indeed a wider vision of design should be.
With this engineering/business focus in mind, it has been concerning to learn that, after over 20 years with design and technology as a core element of the curriculum, that is at risk. A recent report from the Design Council indicated that firms that used design intensively outperform those who did not by 200 per cent or thereabouts. The report also stated that 80 per cent of UK businesses believe that design will help them stay competitive in the current economic climate. A further point produced by the report indicates that every £100 spent on design by businesses that are alert to it increases their turnover by something in the order of £220. I hope that I am not coming over as too mercenary, but I said that I wanted to focus on business and to a large extent on manufacturing.
Using as a source a recent report from the Design and Technology Association, there was great concern about downgrading design and technology in the education system. We must ask the Government to be aware of that risk to this country's economy if these areas are downgraded. Rather than being decreased, the emphasis in our education system needs to be design-linked with technology for the future, for our economy and, most importantly, for jobs. As Sir James Dyson, the well-known designer, inventor and innovator, said, "If the Department for Education is thinking of removing D&T from the curriculum, it will be at the expense of British ingenuity"-words from someone who has been a leader in this field of design and has gone on from designing to producing products that have been extremely successful. When it comes to design and technology education, the call is that the Government need to recognise, keep and support it.
With my focus on business, perhaps I might briefly refer to concerns about careers advice and guidance. I am sure that I am not alone in remembering from my time at school quite how inadequate careers advice was in those days. It was the sort of subject that was given to a teacher who was told, "Do a bit of careers advice and get on with it", or that type of thing. Sadly it appears, generally speaking, that this situation still applies today. Since we are living in this global world-in times past it was not a global world and not as competitive as it is today-we must ensure that we have the right schools in this country. So often when I meet business people, I hear about the lack of the
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There is the concern that if we do not get this right, it will harm the economy considerably. We must get it right and go beyond the concept that for careers advice and guidance, young people can switch on a computer and get all the information that they need. This is not so, and it is so important that the Government ensure that we improve our careers guidance and advice through much more one-to-one engagement with young people, who need encouragement, who need to be told what there is out there to do, and who need to be advised that they could contribute well to this country through design technology and the education that they get in that field.
7.49 pm
Baroness Morris of Yardley: My Lords, I welcome this report and the interesting debate that we are having today. It must not just be one debate; we need a long debate about this nationally if we are really going to solve some of these problems.
In a way, design finds itself in an unusual position: I have never known anyone who was against design. There is no army of people out there making a case against it. Sometimes when that happens, because there is no core to the debate, you find that everyone thinks that it is a good thing but no one really fights for it to be as good as it could be. I suspect that in this debate today we will all agree with each other on the whole, and there is a danger that we will be left thinking, "So what are we going to carry on campaigning about and striving for after this?".
Design has often been seen as a very nice optional extra. In the past, if you could afford something and it had good design, all to the good, but if you could not afford the "good design" bit, never mind-you could just get on with the basic version. To some extent, the best thing about this report is that it shows how wrong that attitude is.
There has been something of a revolution in design in recent years, and the report puts that very powerfully. It talks about the ability of design to unlock the commercial potential of the United Kingdom's research base, and then it has a lovely quote, mentioning that all the essential services,
here I would add, "in part"-"dependent on good design". However, I am not sure that that is what the British public think. If you polled that, I am not sure that they would say, "That's terrible", but they would not say, "Absolutely, that's what drives my life day in and day out". Part of the challenge is to win the argument in a much more powerful way than we have done so far.
The roots of design might be seen to be in craft, technical and creative skills. There was national pride in that in the 1960s, the 1970s and into the 1980s. There was a national context and a national culture in which they flourished and were understood and welcomed by the education system and society in general. We were a nation that could make things. We knew what
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There are some problems with that culture at the moment. First, there is that lack of understanding of the role and importance of design in the 21st century. Secondly, the education system now is not as understanding and in praise of interdisciplinary work as it was two decades ago. We have gone back to straight subjects in silos without making the joins between them, and with polytechnics now being part of universities we do not have that clear route through apprenticeships, BTECs and HNDs into vocational and design degrees. Since the introduction of the national curriculum by the noble Lord, Lord Baker, in 1988, the subject that has had the greatest turmoil is design; the curriculum has been rewritten time and again. I do not think that this is a political issue at all, but some of the things that are around at the moment, such as the emphasis on a traditional curriculum, an apparent lack of empathy with creative subjects-particularly through the English baccalaureate-and the higher education funding of design are not helping the case for design.
There is probably general agreement across the House that more needs to be done, but what? My perhaps contentious contribution is that it is all too easy to say that if we made it compulsory for every child in every year of schooling the problems would be solved, but I am not sure that that is the case. The more difficult task is to win the case and make it so good that schools want to teach it and children want to learn it. Sometimes, giving something the hook of compulsion actually makes you take your foot off the accelerator in making it a very good subject. The Government can show some leadership and begin to oil the wheels of making that happen. The work that the noble Lord, Lord Baker, is doing with university technical colleges is excellent, and I welcome a chance to say so again.
If you look at where design and schools have worked effectively together-where the pedagogy has been right-it has been where we have invited the world of design to work with teachers and come up with something completely different. The Joined Up Design For Schools work done by the Sorrell Foundation was a perfect example of that. My plea would be that in design, more than in any other subject, the use of time, skills and space in our schools must be innovatively engineered and used in a different way. Let us make it exciting and new but, most of all, something that we can do between us: reclaim the culture and the context in which 21st-century design can flourish.
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7.55 pm
Lord Bichard: My Lords, I too congratulate the noble Baroness, Lady Whitaker, on enabling this debate and thank her for it.
It is true that many people regard design as largely concerned with aesthetics or with products such as furniture or ceramics. As a result, they regard it as a marginal issue-something that is good and desirable but not essential. However, as we have heard today, design has the power to restart Britain and, as the noble Lord, Lord Baker, has pointed out, not for the first time. Design has the power to help us answer some of the big questions that we face today: how do we stimulate growth; how can we make our businesses more profitable; how can we be more competitive in international markets; how can we provide improved public services at less cost; how can we realise the potential of our great scientific and technological innovations; how can we be more creative and innovative as a nation; how can we deliver the benefits of our engineering excellence; and how do we build places and buildings in which people can thrive?
I am not a designer, but I am convinced that design is key to answering those questions, both in the private sector because it is clear that, as the noble Lord, Lord Cotter, has said, design-led companies are more successful, but also in the public sector because surely by now we must realise that redesigning and reshaping our services is the only way that we are going to deliver better services at less cost and that just restructuring the bureaucracies will not prove successful.
We need design. We need service design as well as product and industrial engineering design. Indeed, we need a national design strategy and outstanding designers. This report is about trying to ensure that our education system continues to deliver the talent that we need at the moment. Not surprisingly, the report emphasises the need to protect design in higher education, where we are undoubtedly world leaders. Less obviously, it highlights ways in which the further education sector could play a much greater role in developing design and designers in this country.
Crucially, the report stresses the need to ensure that design has a place in the school curriculum too. There are very good reasons why it should, and those reasons go well beyond the need to inspire potential great designers of the future. Design education in schools provides opportunities for students to develop the generic skills that will be useful to them throughout their working lives, as well as the employability skills that employers now need. As we have heard, design education in schools can help to produce young people much better able to work in key growth sectors such as engineering, advanced manufacturing and the creative industries-and let us not forget that the creative industries are now the largest economic sector in London.
Design education in schools provides the opportunity for many young people who do not excel in traditional academic subjects to realise their own special talents. It has always seemed to me that the major purpose of education must be to enable every young person to liberate their potential to fulfil their talent. Design education can provide for many a clear pathway to a
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It is, as the noble Baroness, Lady Whitaker, said, encouraging that the Government are prepared to review the way in which IT is taught in schools, and to recognise the critical importance of computer literacy for our economy and society. However, many of the same arguments apply to design but are nowhere near as well understood and well articulated. I hope this report goes some way to redressing that balance.
It is always a complete delight to have the Minister responding to our debates. I hope that she will lend support to the need for a national design strategy. However, it is also important that the Department for Education acknowledges the importance of this issue and looks for ways not of requiring, as the noble Baroness, Lady Morris, said, but of encouraging schools to feature design on the curriculum. That should happen not just in specialist schools, excellent though they are, but in all schools. Design education, like design, is not a desirable extra; it should be a key part of education for all young people.
8.01 pm
Baroness Kingsmill: My Lords, I am grateful to my noble friend Lady Whitaker for introducing this debate and for suggesting to me that I might speak in it. It happens to be an area in which I am most interested.
I started my working life in Paris, sitting on little gold stools at Christian Dior, Yves St Laurent and the like, scribbling away, trying to determine which fashion trends would be the hits of the following season. Under the tutelage of two very stylish French women, I began to understand and recognise good design. I spent six years in the heady world of fashion, working with highly talented designers, whose creativity and innovation contributed to establishing France as a global leader in the fashion industry and to the growth of some of its biggest companies, such as LVMH and PPR.
We, too, have a flourishing fashion industry, which last year is estimated to have contributed, directly and indirectly, £37 billion to our GDP. However, this is small beer compared to the giant fashion design houses of Italy and France. We are well known for our brilliant young designers and their edgy, innovative styles, but many of these young British designers are head-hunted away to France and Italy, where their talents are often more appreciated than they are here in the UK. Designers such as Stella McCartney, Alexander McQueen and Phoebe Philo are well established names who have found the design environment more supportive in France and Italy than it is here, and have been enabled to develop their own hugely successful global brands as a result.
What is perhaps less well known is that many of the big international design houses, such as Marc Jacobs and Prada, are full of the brightest and best British designers, who have been unable to find an outlet for their talents in the UK. One distinguished magazine editor told me that British designers are the creative engine of the French fashion industry. We seem to be able to produce design talent but it appears that we
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I have been talking about fashion design because that is where I spent several years, but there are many other sectors where design is a significant driver of growth. As others have mentioned, the brilliant Jonathan Ive, whose creative partnership with Steve Jobs made Apple one of the world's biggest companies, is a perfect example of how a business can be transformed by a great designer. The superbly designed terminal 5, which has so enhanced the air passenger's experience of airports, is another. Dyson, too, demonstrates how innovative engineering design can completely change our perception of mundane domestic appliances and create economic growth and success.
Design and technology is a popular subject in schools. Young people like the problem-solving it entails and it is always satisfying to have an end product. I remember the stool that I designed when I was in school with more pride than any essay I ever wrote. We need to encourage and improve the teaching of design and ensure its place in the national curriculum. There is an enormous appetite among children and young people for this. I was deputy chairman of the Design Museum for six or seven years and this superb institution, under the consistent sponsorship and guidance of Sir Terence Conran, ran many hugely popular education programmes for young people. Its exhibitions raised awareness of the importance of design in a variety of fields, from street furniture to wallpaper, from shoes to aero-engine turbine blades, and many more. However, more needs to be done to ensure that the creative and innovative design talent for which we are justly praised in other countries is properly nurtured and encouraged at home.
8.06 pm
Lord Stevenson of Balmacara: My Lords, I rise to speak in the space allocated to me by the usual channels with some regret. I thought that the noble Baroness the Minister and I had been switched to illustrate that we have a common approach to this, and that our speeches would be so sympathetic to each other that they could be delivered in each other's places. Mine has to be shorter, which is a slight difficulty, but we look forward to what the Minister will say.
I start by thanking my noble friend Lady Whitaker for introducing this discussion, and all the speakers, particularly for the insights from their earlier lives from the noble Lords, Lord Baker and Lord Cotter, and my noble friend Lady Kingsmill. I particularly thank the new Design Commission itself, the first report of which is indeed a good read. It is clearly setting high standards and we eagerly await its future output.
The key messages that we need to take away from this debate are that, as a country, as the noble Lord, Lord Cotter, said, we do not understand what design can do for us both economically and socially. We do not pay enough attention to design as a new and distinctive way of manufacturing and delivering goods
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The report that we are discussing this evening is mainly about education. We have been told that there are a few places where we currently teach design as well as anywhere else in the world, but we do not have it properly interpolated within the STEM subjects as they are currently taught in higher education; and, despite the good work of the noble Lord, Lord Baker, on the university technical colleges, we do not have nearly enough courses to equip technical people to support the areas of work in design.
The most glaring gap is that we are on the point of removing design from the school curriculum. Surely, on the basis of the very strong arguments that we have heard tonight, the Government should immediately reconsider the direction apparently being taken by the DfE. The curriculum review, the constituent parts of the English baccalaureate and the reduction of teacher training places in art and design all seem to point to a disastrous return to a narrow, rigid, traditional curriculum, which is simply not aligned to the wider growth agenda. We need the excellent joined-up design for schools project back and we need it all across the secondary curriculum.
I will be interested to hear what the Minister says in response to these specific concerns. However, I also hope that she might take back to the department, and to the Government more generally, a deeper point. Is not the logical conclusion of what we have heard tonight that we have to rethink what form of curriculum would ensure that many more of our young people enter the workforce with a problem-solving approach, the capacity to work collaboratively and an inter- disciplinary capability? Is a key component of future policy not the need to make design, in its widest definition, central to how we educate people for the workplace? As the noble Lord, Lord Bichard, said, it is common for those in business-and indeed in government-to see design as largely concerned with aesthetic attributes such as style and appearance. While these are important considerations, the arguments in the report persuade me that they are only a small part of what a total design approach could deliver for UK plc.
In the recent past, when we have debated the economy or the need for growth, we have grown used to hearing it bruited about that the UK's record of scientific invention and the great strength of its creative industries-product design, architecture, fashion, media, games software, entertainment and advertising-would equip us well enough for the future. However, as my noble friend Lady Kingsmill said, the uncomfortable truth is that, with a few very honourable exceptions, we have not been good enough at carrying these capabilities through into consistently world-beating products and services. Indeed, other countries have often made far more use of our ideas and grown their economies on the back of our inventiveness and creativity.
My point is that if we are to rebalance our economy and generate the growth we need, UK companies and industries will need to produce innovative, high-quality, high value-added products and services, and bring
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8.10 pm
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, I congratulate the noble Baroness, Lady Whitaker, on securing this important debate on design. I have enjoyed it thoroughly. What follows is what my Government say, and I am delighted to repeat it, but it is lovely for me to hear the expertise expressed on all sides of the House, including from former education Ministers. That is my personal comment. As regards the "Paris model" on the other side of the Chamber, I am terribly grateful that I am wearing my suit made for me by Lachasse 24 years ago. It is still going strong. Good design definitely counts.
The noble Baroness, Lady Whitaker, has done sterling work in support of design over many years as co-chair of the Associate Parliamentary Design and Innovation Group and, more recently, through her part in bringing together a group of parliamentarians, designers and academics to establish the Design Commission, chaired by the noble Lord, Lord Bichard. The report of the commission's inquiry into design education rightly highlights the strength of the UK's design sector.
I say to the noble Baroness, Lady Kingsmill, that the UK has a global reputation as a leader in creativity and design. We have a world-class design sector, the largest in Europe with more than 230,000 designers. It is a thriving sector that makes a significant contribution to our economic wealth. Research indicates that £15 billion was spent on UK design in 2009.
While we welcome the commission's contribution to this important subject, we must dispute the suggestion that the Government do not fully appreciate design as a lever for growth. Successive Governments have supported design for more than 60 years since the Churchill Government set up the Council of Industrial Design in 1944 to aid post-war economic recovery. We do not see it as "whimsical", which I heard Sir Paul Smith say was the view of design that many people have when they should be looking at the beautiful design of an engine or water bottle. He actually said that design "isn't all red hair and bare chests" when he was interviewed this morning about the relocation of the Design Museum.
Design can be a source of competitive advantage and can help organisations transform their performance from business product innovation-as we have heard from the noble Lord, Lord Cotter-to the commercialisation of science and the delivery of public services. That is why design forms an integral part of the Government's plans for innovation and growth. It features strongly in our Innovation and Research Strategy for Growth published in December. For example, we announced that the capability to use design for commercialising technology would be integrated within the specialist expertise and support that the Catapult centres will provide to business. These are the Technology Strategy Board's network of elite technology and innovation centres.
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The strategy also reaffirms the Government's support for the Design Council's activities to connect both the private and public sectors to design. I am sure my opposition colleagues will be pleased to hear that we continue to fund activities which were supported by the previous Administration. For example, we announced an increase in funding for Designing Demand, a mentoring programme to build greater design capability and understanding among small and medium-sized enterprises. This will enable more businesses to benefit from the programme.
My right honourable friend David Willetts, the Minister for Universities and Science, is a strong advocate of design. He is keen to see design embedded across government and wants to build on the momentum generated from design's inclusion in the Innovation and Research Strategy. The noble Baroness, Lady Whitaker, said that the Government should have a national design strategy. The Government are committed to design and their strategy for design. This was outlined in the Innovation and Research Strategy for Growth, published in December.
A number of points have been raised about design teaching. The Design Commission's report notes that higher education centres of excellence need protecting and funding. The Higher Education Funding Council for England has invested in multidisciplinary centres of excellence where universities come forward with proposals. We agree with the commission that the onus for developing such activities is very much on the institution.
Design skills are fundamental for innovation and will carry the United Kingdom into future prosperity. The design education system in this country is a national asset-from the time creative subjects are given on the school timetable to the diversity and quality of courses at university.
Let me first address the points raised by the noble Baroness and others about design teaching in schools. The aim of the Government's current review of the national curriculum is to focus it on the essential knowledge that all children should learn, and to give schools greater freedom to adapt their wider curricula to meet the needs of pupils. We wholeheartedly agree that design is an important subject and that it can inspire young people to pursue careers in industry. In that way, it plays a key role in supporting economic growth in this country. The teaching of design undoubtedly equips young people with practical knowledge and a broad range of skills in preparation for the workplace.
My noble friend Lord Baker talked of practical skills in schools. The design and technology curriculum is currently compulsory to key stage 3, age 14. Pupils must participate in systems and controls, resistant materials and then either food or textiles. We are currently reviewing the whole national curriculum.
The noble Lord, Lord Cotter, asked about careers advice for young people-an issue that I know is important to this House, given that I recently answered an Oral Question on this topic. Local authorities are currently transferring careers advice to independent organisations so that young people can obtain independent careers advice, and this process is ongoing.
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We have not yet reached the stage of deciding whether design should remain part of the national curriculum and, if so, at which key stages. The call for evidence generated significant interest across the sector. On 19 December, the Department for Education published a set of documents summarising the findings of the review to date. This included a report on design and technology. These reports set out the scale of the challenge that we face in designing a world-class national curriculum. We will ensure that these issues are fully debated before any final decisions are taken. Teachers, academics, parents, business leaders and others will have an opportunity to contribute. For this reason, my right honourable friend Michael Gove, the Secretary of State for Education, also announced on 19 December that the timetable for the review would be revised. New programmes of study for all subjects in the national curriculum will be introduced together from 2014.
We intend to announce our proposals about the shape of the new national curriculum, including the position of design, later this year. A full public consultation will be undertaken before final decisions are made. I am sure all stakeholders with an interest in the future of design education will welcome the opportunity this brings to engage further.
The Design Commission's report has been a useful contribution to the debate and the Government will reflect carefully on the points raised by your Lordships this evening. I thank again the noble Baroness, Lady Whitaker, for her debate.
8.19 pm
Legal Aid, Sentencing and Punishment of Offenders Bill
Committee (5th Day) (Continued)
8.29 pm
Amendments 96 to 98 not moved.
99: After Clause 11, insert the following new Clause-
(1) The Lord Chancellor may make funding available for the obtaining of civil legal services on matters not included in Schedule 1 where it appears to the Lord Chancellor that the provision of such services would promote efficiency, the saving of costs or the attainment of justice.
(2) The Lord Chancellor may make arrangements for such purposes by-
(a) funding public bodies, law centres, citizens advice bureaux and not-for-profit advice and support agencies to facilitate the provision of such services; and
(b) supporting the delivery of such services through the provision of grant in aid to providers of civil legal services, including any consortia or partnership arrangements with public bodies, into which they may choose to enter."
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Lord Thomas of Gresford: My Lords, this is an extremely important amendment, which I hope that the Government will accept. The other side of the coin when legal aid is taken away, particularly in the area of social welfare law, is that there must be some provision for advice to people who require it in that field-in others as well, but certainly for those concerned with welfare benefits and the like.
In this country, a huge amount of work is done, a lot on a voluntary basis, by citizens advice bureaux, law centres and other not-for-profit advice and support agencies. I want an assurance from the Minister that those organisations will fill the gap, that they will be properly funded and put on a secure footing for the foreseeable future to provide the advice that is clearly needed in those areas. Consequently, my Amendment 99 is to give the Lord Chancellor power to,
- "make funding available for the obtaining of civil legal services on matters not included in Schedule 1 where it appears to the Lord Chancellor that the provision of such services would promote efficiency, the saving of costs or the attainment of justice".
What I have specifically in mind is the funding of law centres, citizens advice bureaux and not-for-profit advice and support agencies.
I know that the Government have committed some £20 million for the support of Citizens Advice, but I understand that to be on a one-off basis. At the same time, we receive information that the Cabinet Office is working on schemes to provide some permanent support in this area. Citizens Advice has two sides: a side dealing with general matters, normally done by volunteers, and a side dealing with specialist matters. The specialist advice in Citizens Advice comes from generally qualified lawyers who are funded precisely by the legal aid that is about to be withdrawn if Schedule 1 to the Bill finally goes through. That is the focus. What will happen? Will people be left to stumble around in this incredibly complex area of social welfare law? Will they have any guidance and help when it comes to the new provisions that are being introduced under the Welfare Reform Bill, or what? That is what I want to hear from the Minister tonight. I beg to move.
Baroness Mallalieu: My Lords, I support this amendment as far as it goes. We are all worried about who will fund organisations such as law centres, which at present are largely reliant on legal aid. Clearly, many of them will go under if there is not some alternative form of funding. What troubles me about the amendment in its present form is that there is absolutely no break on the way in which this Lord Chancellor-or a future Lord Chancellor-may choose to hand out the money. I should like some requirement on him to consult and some way of knowing that a distant Lord Chancellor-of course, not the present one-could not operate for reasons of political expediency, or simply on a whim to withdraw funding from an organisation which, for example, might be involved in action against the Government. Although I welcome the amendment in its present form, I think that it needs more added to it.
Lord Shipley: My Lords, I support the amendment moved by my noble friend Lord Thomas of Gresford. It addresses a question that is crucial for the success of legal aid advice at local level. The question is how
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We should note that the Legal Services Commission has very high costs. It spends £120 million on administration. After the cuts, with the new director of legal aid casework, the amount spent on administration is likely still to be around £120 million. That figure is very high. Of course, it includes criminal legal aid, but this has barely been cut at all. However, at local level, the budget cuts will be very significant. They will be in exactly the places that require a seamless service that will enable clients with problems that cut across agencies to benefit from integrated support.
I have a potential solution. I am grateful to Citizens Advice for its suggestion of how we might solve the problem. Could the Legal Services Commission, or its successor body, be moved from centre stage? Could, say, £20 million be reallocated from its administrative budget-which would thereby be reduced to £80 million -to front-line funding based on local legal advice partnerships that would map local advice needs, share back-office services and be based on clear professional standards? There would have to be-
Lord Beecham: Do I take it that the noble Lord is referring to £20 million a year rather than a one-off payment of £20 million?
Lord Shipley: I am grateful to the noble Lord, Lord Beecham. I do mean £20 million a year from the recurrent cost to provide for those local partnerships. There would have to be a co-ordinating charity, but that should be possible.
In a short debate on citizens advice bureaux on 8 December, I talked around this point and said that there was capacity at a local level to help the Government to solve the problem. Of course, all of this would be in the spirit of localism. The Government have just enacted the Localism Bill. The Localism Act has as its basic principle the principle that far more should be devolved from the centre to local areas.
The first part of the amendment simply gives the Lord Chancellor discretion to permit transfers from the legal aid budget to other funding streams for the provision of advice on issues to which Schedule 1 does not apply. The second part facilitates a cheaper delivery model based on local partnerships. On a practical level, it is important to note that it would be a waste of resources if legal aid clients could not receive holistic advice. There could also be many cases at the margins of situations covered by Schedule 1, and we should note the Legal Services Commission's response to the Green Paper, which highlighted the problem of boundary issues and warned that,
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- "the administration costs of considering such cases could erode the revenue savings that the Ministry of Justice has committed itself to".
I think this suggests that we ought to do some further work between consideration in Committee and Report and that we should not lose the opportunity to engage with finding a solution to this problem. I hope that the Minister will understand that in moving this amendment, we are trying to be helpful. There are suggestions that this approach, or one like it, could work very well. I hope that in his reply the Minister will say that he is willing to engage in further discussions prior to Report.
Lord Goldsmith: My Lords, in an earlier debate in today's Committee I indicated my involvement in helping agencies that provide social welfare advice and legal help to consumers, employees and others. I am therefore very sympathetic to what lies behind this amendment, which is a recognition that the Bill as it stands will remove an important lifeline for individuals by removing legal aid from the agencies. As I said in that earlier debate, many people outside Parliament may not appreciate that legal aid is not just about giving fees to chaps in wigs; it is also about supporting agencies that provide a lot of excellent advice on a very good value basis. They are able to do that because some of the work they do is supported by legal aid. They are very good value for money and produce tremendous results.
My noble friend Lord Bach has already referred to the very interesting research produced by the Legal Action Group on the provision of social welfare law advice in London. That research points out not only what will happen in terms of dramatically reduced services but how that will cost the state more. As I think the report says, it is penny wise and pound foolish to go down this route. That has been debated before. I am very sympathetic to doing something that will provide funds for these agencies. That is not the only thing that needs to be done to the Bill, but it is an important point-and my noble friend Lady Mallalieu and the noble Lord, Lord Shipley, have made it as well. The problem is whether this amendment will do that. That is where I am concerned. I agree with the identification of the problem, but I am very worried that this is not the solution.
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