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Jolly, B.
Jones of Cheltenham, L.
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Kramer, B.
Lamont of Lerwick, L.
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Macfarlane of Bearsden, L.
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5.50 pm

Clause 4 : Director of Legal Aid Casework

Amendment 3

Moved by Lord Hart of Chilton

3: Clause 4, page 3, line 31, at end insert-

"( ) The Lord Chancellor must ensure that the terms on which the designated person holds the post of Director are, as regards the making and termination of the designation and otherwise, such as to ensure the Director's independence from Ministers of the Crown (subject to any direction or guidance given under subsection (3)) in relation to the carrying out of the Director's functions under this Part."

Lord Hart of Chilton: My Lords, this amendment is in my name and those of the noble Lords, Lord Pannick and Lord Faulks, and the noble and learned

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Lord, Lord Woolf. It arises out of concern expressed by your Lordships' Constitution Committee, of which the noble Lord, Lord Pannick, and I are members.

The Bill will transfer responsibility for the allocation of legal aid from the Legal Services Commission to the Lord Chancellor's Department. The allocation of legal aid will be the responsibility of a civil servant within the department who will be designated as the director of legal aid casework. The Minister made it clear in Committee that the intention is that the director should be independent in the performance of his or her functions, save that the director must comply with directions under Clause 4(3)(a) and must have regard to guidance under Clause 4(3)(b). The performance of the function will indeed require independence, given that many of the applications for funding will be in respect of claims, or potential claims, against government departments, including, of course, the Ministry of Justice itself. It is striking, then, that Clause 4 says nothing about independence.

At paragraph 15 of the Constitution Committee's report we expressed concern as to whether sufficient guarantees of independence are provided in the Bill for the director of legal aid casework, who will have the responsibility within the department. Given the central importance of the functions of the director, it is appropriate to include in Clause 4 a recognition of this principle of independence. This will encourage the Lord Chancellor to focus his mind on this important question and ensure there is no doubt as to the role of the director. The amendment is not prescriptive. It leaves the detail to the Lord Chancellor. It recognises that independence is subject to directions and guidance. But it would, I think, be an improvement to say something about these vital matters on the face of the Bill itself. I beg to move.

Lord Pannick: My Lords, I support what the noble Lord, Lord Hart of Chilton, said, and I should like to add just two points. First, this amendment requires no expenditure of public funds. It is a constitutional amendment designed to ensure that a statement of the vital principle of independence is in the Bill. Independence is of central importance for the reasons that the noble Lord, Lord Hart, gave. Under the Bill we will have someone within the Ministry of Justice, a civil servant, who will perform the sensitive function of deciding when legal aid is allocated, even in relation to claims against government departments, including the justice ministry.

Secondly, I very much welcome Amendment 5, which has been tabled by the Minister. If noble Lords approve it, this amendment will require the director to produce an annual report which will be laid before Parliament. However, welcome as that amendment is, it does not address, far less rectify, the absence of any statement in the Bill about the independence of the director. Amendment 3 would meet the vital need for such a clear statement in the Bill.

Lord Faulks: My Lords, my name is also attached to the amendment, and I have very little to add to what has already been said. I am concerned too with the independence of the director, who will have considerable power over the allocation of what is left

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of legal aid. Perhaps I may give the House just two examples of where his or her role may be particularly important.

The provision for exceptional funding is still somewhat mysterious with its reference to the European convention and EU law. It is said to cater for quite a number of those cases where legal aid may still be given. How it is used is a matter of considerable importance. In deciding the best way of deploying exceptional funding it is very important that the director should be independent of the sort of influence which is potentially possible from the Lord Chancellor.

Secondly, Clause 4(4) states:

"The Lord Chancellor may not give directions or guidance about the carrying out of those functions in relation to individual cases".

I am rather more concerned not so much with the individual case as with the type of cases. If the Lord Chancellor should take the view that certain areas of litigation are worrying the Government or should not be pursued, that is not covered by Clause 4(4). Although I am sure that this Lord Chancellor would not seek to exercise any inappropriate influence, it is extremely important that this new creature who will be at the centre of legal aid has independence firmly enshrined in the Bill. I support the amendment.

Baroness Mallalieu: My Lords, I support both this amendment and the amendment that the Government have tabled. For reasons that have already been given, it is crucial that the figure who is the director should not be political in any way and should not, in so far as it is humanly possible, be susceptible to political pressure. That is not only because he will be dealing, as has just been said, with cases that may have political undertones but also because-and I say this as a clinical practitioner-there may very well be a serious crisis in criminal legal aid in the not too distant future which may have repercussions that go far beyond individual cases. It may be necessary that whoever is in the role of the director is prepared to stand up to pressures that might be placed on him in relation to the funds that are available. It is important that he should report, and I welcome that amendment, but that does not go quite far enough. The amendment in the name of my noble friend Lord Hart and others does.

Lord Phillips of Sudbury: My Lords, I concur with everything that has been said. As time goes by the role of the director is liable to get more rather than less sensitive. It seems to me that the law in this country is getting closer and closer to politics more and more often, particularly in relation to the development of judicial review. Public confidence is vital. I do not think that it needs repeating as to why it is so vital, not just in terms of the judiciary but in terms of this very sensitive office. The director will have to make some extraordinarily sensitive and difficult decisions. As we all know, because we have been debating this Bill for some while, some fine judgments will have to be made by whoever is the director.

I also note that the director is to be appointed from among the Civil Service, which strikes a rather odd note. Why should the director not be appointed from

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anywhere? Why should he or she not be the most appropriate independent-minded person? As the noble Lord, Lord Faulks, said, it is a pity that Clause 4(4) restricts the power of the Lord Chancellor to direct to individual cases rather than to classes of cases. I wish that I had put down an amendment to that.

In all the circumstances-although the publishing of an annual report is extremely beneficial; and my noble friend the Minister may say that because of this and because of that it is superfluous to express on the face of the Bill the need for independence-if ever there were a need for a single simple statement in what is already 200-plus pages of legislation, it is that this person should be absolutely independent of government.

6 pm

Lord Howarth of Newport: My Lords, I should also like to support the amendment moved by my noble friend Lord Hart of Chilton. I will be interested to hear from the noble and learned Lord the Minister why, in the way the Bill has been formulated, there is a specific insistence that the director of legal aid casework should be a civil servant. There are possibly conflicting connotations in the term "civil servant". On the one hand we always want to think of civil servants as people who are politically impartial; but on the other hand, it is the responsibility of civil servants to carry forward the political programme of the elected Government of the day. In that latter sense I share the anxiety expressed by other noble Lords that the director of legal aid casework, being a civil servant, may not be as sufficiently independent of government as is desirable and, importantly, may not be seen to be sufficiently independent.

We also take as an important principle of our constitution that the operation of the courts and the administration of justice should be separate from the operation of the Executive. Here, however, we have a proposed new set of arrangements which clearly brings decisions about the allocation of legal aid in-house. We were told in Committee that the director of legal aid casework will be an individual in charge of an executive agency. Perhaps it is the case-I do not know-that the directors of executive agencies are always civil servants, but if they are not, I would like to know why it is felt to be so crucially important that in this instance he should be a civil servant.

My noble friend Lord Hart touched on the possibility of conflict of interest. Very often the Government or one of their agencies will be the defendant in a case. Can it be right that a civil servant will determine who should or should not have access to justice in a case concerning, for example, judicial review, special educational needs, community care or the abuse of position or powers by a public authority? There is at least the risk of the perception that the odds will be stacked against a would-be litigant seeking remedy in the courts where there has been misbehaviour or abuse by a public authority.

In Committee the noble and learned Lord, Lord Woolf, made the case that it would be desirable that the person holding the office of director of legal aid casework should be someone with a legal background who, because of his experience and formation, would have a deep understanding of the way the courts work

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and of the legal system. He also made the point that it would be undesirable that the director, being a civil servant, should be expected by other senior civil servants working in the Ministry of Justice necessarily, as it were, to conform with their wishes. It is essential that the director of legal aid services should be both seen and heard to stand up for legal aid and those elements of the justice system that legal aid has always been, and I think still is, intended to secure.

I shall revert to a question that I raised with the noble Lord, Lord McNally, in Committee. Will the director of legal aid casework be allowed to have a public voice? If, for example, he comes to the view that directions or guidance issued by the Lord Chancellor or provisions made by the Treasury to support legal aid are inadequate or in some other sense wrong, will he be entitled to speak out publicly on behalf of legal aid, the beneficiaries of legal aid, or the people who should be its beneficiaries? The noble Lord, Lord McNally, told us that a framework document would be produced that will set out the governance and reporting arrangements for the relationship between the Lord Chancellor and the director of legal aid casework, and he assured us that that document would reflect the principle of independence of decision-taking by the director. Can the noble and learned Lord tell us whether the document is now available so that we can have the benefit of it as we consider the extent to which we should endorse the Government's proposals or amend them?

Lord Clinton-Davis: My Lords, I agree entirely with the points just made by my noble friend. The views of the legal profession-the Bar and the Law Society-ought to be taken into account, and perhaps the noble and learned Lord who is to reply to the debate can comment on that. My understanding is that both have made submissions to the Government about their concern-concern which is profound and goes to the heart of what we are talking about. It is essential that the director's independence from the Government is ensured and underlined, so there can be no cavilling about this. The issue is vital-always provided, of course, that the caveat entered by the Opposition's amendment is underlined as well.

The final point I want to make is this. We are not legislating for the immediate future, we are legislating for the long term. If we are wrong, we can always amend it, but the principle that ought to be underlined in this debate is exactly that-that we are debating for the long term.

Baroness Hamwee: My Lords, comments have been made about perception, and perception is important in this context. I wonder whether my noble and learned friend can help me. Reading on from Clause 4, there is the provision in Clause 5 that the Lord Chancellor in giving direction under Clause 4 would require the director,

certain things to happen. I do not know whether a direction "not to authorise" is usual. If it is then so be it, and it may be that the point which I am raising is quite irrelevant. However, it struck me as an interesting provision.

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Lord Beecham: My Lords, on this occasion, as in Committee, the House has been treated to the observations of a veritable constellation of legal luminaries, supplemented today by my noble friend Lord Howarth. Indeed, the whole principle of independence was a matter of strong comment not only by the Constitution Committee, as referred to by my noble friend Lord Hart, but by the Joint Committee on Human Rights. Both in Committee and today that concern has manifested itself across a number of speeches that have drawn attention particularly to the difficulties that could arise on the appointment of someone with very wide powers that could conceivably be exercised in an independent spirit. However, as the noble Lord, Lord Phillips, pointed out in Committee and again today, there must be not only actual independence but perceptible independence. That is very much open to question.

On the last occasion the noble Lord, Lord Faulks, drew attention to the difficulties that could arise with the exceptional cases category under Clause 9, and that certainly remains an issue. He rightly said:

"Whether a case falls within the exceptional case category"-

which is to be determined by the director-

It might be thought that that is almost judicial understatement, but it is certainly a highly relevant matter that was not really addressed on the previous occasion by the noble Lord, Lord McNally, who laid great stress, perhaps understandably, on the fact that the director would be independent from interference in individual cases. As others of your Lordships have pointed out, that is not enough. The noble Lord, Lord Phillips, referred then to Clause 4(4) and has reminded us of it today. That gives a wide power of direction to the Minister. Presumably, therefore, whole categories of case might be ruled out of access to legal aid, which cannot conceivably be regarded as satisfactory.

The amendment does not in terms address the character of the director. There must be concern, shared widely and beyond even those who have spoken today, that it would be a civil servant, without necessarily any legal or any other qualification, who was appointed. What criteria might the Government have in mind for a potential appointee to this significant position? Although it is for my noble friend to decide, I would hope that, unless the Minister indicates that the Government wish to think again about this matter, the House might wish to take a view on it.

There are a number of other pieces of legislation in which independence is in the forefront of the argument. I refer, for example, to the health Bill, in which there are issues around certain organisations and bodies where independence is thought to be highly desirable but which the current proposals do not embrace. It is even more important in the context of justice that there should be that independence. Therefore, the Opposition strongly support the amendment moved by my noble friend. We welcome the Government's amendment. It would be helpful to have a report, but that does not take us very far on the more important issue on which we wait to hear what the noble and learned Lord has to say.

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Lord Wallace of Tankerness: My Lords, I thank all noble Lords who have taken part in this debate, who it is clear wish to see "independence" in the Bill. It is probably not a matter of dispute or conflict between those who have contributed and the Government that individual cases, as set out in Clause 4(4), will be undertaken robustly and without political interference. I certainly share the view expressed by the noble Baroness, Lady Mallalieu, who said that it was important that the director is not political or in any way susceptible to political pressure. I think that Members on all sides of the House would agree with that.

Perhaps it would be of help, and pick up on the question raised by the noble Lord, Lord Howarth, if I took a moment to explain to your Lordships the type of relationship that we anticipate between the Lord Chancellor and the director of legal aid casework. One of the main objectives in abolishing the Legal Services Commission is to ensure that Ministers have greater accountability for legal aid in policy, administration and expenditure. We have no intention of recreating the non-departmental public body status of the current Legal Services Commission. That is one of the purposes of the Bill and it is why we have indicated in Clause 4(1) that the director of legal aid casework would be a civil servant. That is at the structural level, but it is accepted that it is fundamentally important in getting the balance right that an area should be carved out, which is sought by Clause 4(4), in which the Lord Chancellor may not issue the director with guidance or directions: namely, in relation to carrying out the director's functions in individual cases.

In terms of policy objectives and the prohibition at Clause 4(4), the director's freedom from political interference in carrying out his functions in individual cases is paramount. It remains the Government's view that the protection afforded in the Bill and the additional transparency, about which I shall say more in a moment, achieves the right balance between not risking the director's freedom from political interference in individual cases and not compromising the structural relationship that is sought to be achieved here.

6.15 pm

As my noble friend Lord McNally said in Committee, the existing provisions of Clause 4 provide statutory protection to the director against ministerial or other political interference. While the Lord Chancellor can, as is recognised in the amendment of the noble Lord, Lord Hart, issue directions and guidance to the director about the carrying- out of the director's functions under Part 1 of the Bill-an example would be in relation to his or her functions under Clause 9-these powers are not unfettered and there are safeguards.

At the risk of repetition, it is worth reminding your Lordships' House what these protections are. First, the Lord Chancellor has no power to give directions or guidance in relation to the carrying-out of the director's functions in individual cases. My noble friend Lord Faulks and one or two other noble Lords asked about classes of case. It is possible for the Lord Chancellor to issue directions or guidance in relation to classes of case: for example, as I have already mentioned, in relation to exceptional funding under Clause 9-indeed, it will be necessary to be able to do

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so to operate that scheme. But let us be clear; these directions and guidance must be published. There is no intent, and we believe that the structure of the Bill does not make it possible, for this to be done under the table or in some clandestine way. It is important to remember that, with regard to individual cases, to deviate from that requirement would be unlawful.

It is important to note that the prohibition in Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5.

In referring to Clause 5, perhaps I may respond to the point raised by my noble friend Lady Hamwee. Clause 5(5) relates to the ability of the Lord Chancellor to direct the director in relation to the delegation of the director's functions. The ability to issue direction requiring a director not to authorise, as well as to authorise, a person to carry out a function allows, for example, the Lord Chancellor to prohibit delegation to a particular level of civil servant. I hope that that gives some background as to why that provision is there.

Secondly, the scope of civil legal aid will be tightly drawn in Schedule 1 to the Bill. There will be regulations under Clause 10 that set out the merits criteria for cases that are within the scope of civil legal aid. Any directions or guidance issued by the Lord Chancellor cannot conflict with the criteria set in secondary legislation. I should add that those criteria will be subject to the affirmative procedure, so Parliament will have an opportunity to debate thoroughly any proposed changes.

Thirdly, the Bill imposes a duty on the Lord Chancellor to publish guidance and directions that ensure transparency. For example, we intend to issue guidance on the provision of exceptional funding under Clause 9, which will guide the director on the legal and other factors that he or she should take into account in making decisions under Clause 9. This guidance will be published, so that applicants for funding and their legal representatives know the criteria that the director will apply in making decisions about a case.

The final protection is the framework document, to which the noble Lord, Lord Howarth, referred. It is not yet published, but it will be published ahead of the agency being created. Quite naturally, there are a number of details still to be fleshed out, but I can assure not only the noble Lord but the whole House that it will feature reference to independence of decision-making in accordance with Clause 4. As has been said in a number of contributions to the debate, the principle of independence of decision-making in individual cases is important because some of these cases may be against a government department or indeed the Ministry of Justice itself.

This framework document will be published and I hope that it will provide transparency and further assurance on the relationship between the Lord Chancellor and the director. With that suite of measures contained in the Bill and to be brought forward, we feel that the powers afforded to the Lord Chancellor, when combined with the prohibition on interference in the carrying out of the director's functions in individual cases, strike the right balance between providing the Lord

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Chancellor with a degree of oversight and protecting the director in making decisions in individual applications for legal aid.

Lord Clinton-Davis: What advice did the Law Society and the Bar Council give to the Government about this particular provision?

Lord Wallace of Tankerness: The noble Lord indicated that in his contribution to the debate. I am seeking to reassure noble Lords that that reassurance is there on the substance. In individual cases it will be unlawful for the Lord Chancellor to interfere in any way. Moreover, a number of features incorporated in the Bill provide for transparency and parliamentary oversight.

Lord Phillips of Sudbury: My noble and learned friend always speaks with great persuasiveness, but I cannot see any point that he has made that makes the amendments that are being debated a problem for him. Amendment 3 makes the independence,

which covers one of the points that he made. As I say, there seems to be no argument that I can think of that makes the amendment inconsistent with the framework that the Minister has put forward. If that is right, given the universal anxiety about this point about independence, why in heaven's name not put it in the Bill?

Lord Wallace of Tankerness: In fairness to my noble friend, it is a good question, which I have asked myself. The answer, as I have tried to indicate in my earlier elaboration of the structure of the Bill, is that we are not trying to recreate a non-departmental public body. Consideration of whether it would be possible to incorporate the words "independent" or "independence" into Clause 4 as proposed would require us to consider very carefully whether that might inadvertently affect the proposed structure, but in no way does it detract from the heart of this matter. In respect of individual cases, the director of legal aid casework will in no way be subject to the influence or interference of the Lord Chancellor.

We need to try to get that structure right while allowing for the provisions that will be there, as my noble friend picked up and as the noble Lord, Lord Hart, indicated, in the part of the amendment that refers to direction and guidance. If that is combined with the very clear protection given-the freedom from any interference by the Lord Chancellor in individual cases-that gets the structure right without inadvertently affecting the proposed architecture of the Bill.

We seek to supplement this. The new clause that the Government propose in Amendment 5 is intended to provide a statutory requirement for the director to produce an annual report for the preceding financial year, detailing how the director has carried out his or her functions during that time. That would naturally include detail of the director's interaction with the Lord Chancellor and how the Lord Chancellor's directions and guidance had been used to guide decision-making over the reporting period. A noble Lord asked whether the director would have a voice. There will clearly be an opportunity for a voice because it will be his or her report that is submitted and subsequently presented to Parliament.

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I hope that noble Lords will be reassured that this additional measure will provide further transparency in relation to the director's functions and help to demonstrate that the prohibition as to interference in individual cases has been and will be adhered to. These are important safeguards to ensure the independence of the director.

Lord Newton of Braintree: I am sorry to interrupt the Minister but I have a number of questions at this stage along with a mounting sense of absurdity and unreality. Am I not right in thinking that in the ordinary course of events any civil servant has to be the servant of the Minister whom he serves? That is my general assumption. Secondly, if this civil servant is not to be in that position, does he not in effect become a non-departmental public body in his own right, as an individual? Thirdly, was it not the position of this Secretary of State on the Public Bodies Bill that these are decisions that he ought to take as Secretary of State? That was the whole purpose. My noble and learned friend, for whom I have huge admiration and who usually does terribly well on sticky wickets, has not kept the ball out of the wicket on this occasion.

Lord Wallace of Tankerness: I do not agree that the person would become a non-departmental public body in his or her own right. My noble friend raises an important point because, as has been indicated on a range of issues, guidance will be given and criteria set. There will be a framework; there will be a responsibility for the Lord Chancellor; but the crucial point-and there is concern across the House on this-is that in individual cases there cannot be that level of interference. We believe that that is secured by the provision in Clause 4(4) that it would be unlawful for the Lord Chancellor to interfere in a way that undermined that freedom of decision-making in individual cases. More than that, other measures in the Bill provide for transparency to show that that is not being in some way undermined.

Lord Howarth of Newport: We accept entirely and welcome that the Lord Chancellor will have no power to direct or even guide the director of legal aid casework, but what about classes of case? Suppose the Lord Chancellor thought that too much legal aid was going to women who are victims of domestic violence, if we succeed in carrying the amendment that was passed earlier today all the way through. Would the Lord Chancellor be able to give guidance to the director that he ought to ease up in providing legal aid in that category of case? We have to be concerned on the broader point that the noble Lord, Lord Phillips of Sudbury, expressed so strongly in Committee and just now.

Lord Wallace of Tankerness: For example, guidance will be given under Clause 9 on exceptional funding, which could relate to classes of cases, but the criteria that are set and are there in regulations will be there by secondary legislation. That can in no way be trumped. Secondary legislation will have to be approved by your Lordships' House by the affirmative procedure. That cannot be undermined or circumvented by guidance. When the regulations are eventually brought forward,

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we will have an opportunity to look at that. That will be the primary source and it would not be possible for the Lord Chancellor by some other means to undermine what was in the regulations. If you wish to change them, you have to come back to Parliament with further regulations and Parliament would have a further opportunity for debate.

Baroness Butler-Sloss: The Minister may have noticed that I have kept quiet on this amendment until now, but I am genuinely in difficulty in understanding the point made by the noble Lord, Lord Newton, about a civil servant working to a Minister. If, as the Bill requires, the director is a civil servant, is it not his duty to work to a Minister? In which case, how will he run an independent organisation within a government department? I am sorry, I do not understand.

The Advocate-General for Scotland (Lord Wallace of Tankerness): The noble and learned Baroness puts her finger on it, as she often does. Yes, it is to be a civil servant. I indicated earlier that in such a crucial area of individual cases, that individual will be a civil servant appointed on merit, who will not be subject to ministerial interference. There is common ground that that is quite proper.

As the noble and learned Baroness rightly said, there are other aspects of a civil servant's work where that relationship with the Minister is different. I hasten to add-I think the House has got the message-that there is no question of interference in the individual cases. I sought to make the point that incorporating the words "independent" or "independence" into the clause could upset the balance that would apply in other parts of the director's work. I think the House would generally accept that there ought to be that relationship between the Lord Chancellor and the director. We do not wish inadvertently to skewer the whole architecture of this when the Government share what is at the heart of everyone's perfectly legitimate concerns. We have enough clear provisions in the Bill to secure the independence of the director in making these individual decisions.

I ask noble Lords to reflect on that. We do not wish inadvertently to change the whole structure of the Bill, given that the point of concern is properly addressed by the prohibition on interference, buttressed by the many ways in which Parliament and others will be able to look at the way the powers are exercised. That is transparent. On that basis, I invite the noble Lord to withdraw his amendment.

Lord Hart of Chilton: I thank the Minister for that charming and beguiling presentation of the arguments that he seeks to address. I am afraid that it does not really address the central issue. Everybody agrees that this individual will be independent but the Government appear unable or unwilling expressly to say so. Every noble Lord who spoke in the debate wanted there to be some unequivocal statement in the Bill that this individual will be independent. The beguiling words have not answered that. It is welcome that there will be an annual report and I understand the arguments that

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have been put forward, but that is not sufficient to answer the central issue that there should be a manifest, unequivocal statement that the individual should be-and be seen to be-independent. I wish to test the opinion of the House.

6.32 pm

Division on Amendment 3

Contents 212; Not-Contents 195.

Amendment 3 agreed.

Division No. 3


Aberdare, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Armstrong of Ilminster, L.
Bach, L.
Bakewell, B.
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Jay of Paddington, B.
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Jones of Whitchurch, B.
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Kinnock of Holyhead, B.
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Knight of Weymouth, L.
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Liddell of Coatdyke, B.

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Liddle, L.
Linklater of Butterstone, B.
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McAvoy, L.
McConnell of Glenscorrodale, L.
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Macdonald of Tradeston, L.
McFall of Alcluith, L.
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Mallalieu, B.
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Montgomery of Alamein, V.
Morgan, L.
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Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Neill of Bladen, L.
Newton of Braintree, L.
Nye, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Palmer, L.
Pannick, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prescott, L.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rea, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Scott of Foscote, L.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stern, B.
Stevens of Kirkwhelpington, L.
Stevenson of Balmacara, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
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Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
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Whitaker, B.
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Wills, L.
Winston, L.
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Willis of Knaresborough, L.
Younger of Leckie, V.

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6.45 pm

Amendment 4

Moved by Lord Hart of Chilton

4: Clause 4, page 3, line 31, at end insert-

"( ) In this section "Minister of the Crown" has the meaning given by the Ministers of the Crown Act 1975."

Amendment 4 agreed.

Amendment 4A

Moved by Lord Beecham

4A: Clause 4, page 3, line 31, at end insert-

"( ) Before issuing guidance or directions under this section, a copy of the proposed direction or guidance must be laid before, and approved by, each House of Parliament."

Lord Beecham: My Lords, this is a short and simple amendment. In replying to the last debate, the Minister indicated that guidance and directions would have to be published. That is of course helpful, but what would be more helpful in reinforcing the independence of the director is if the guidance and directions had to be approved by a vote in each House. Given the potentially wide scope of directions and guidance, it seems sensible to provide for such consideration and, indeed, for an affirmative vote. I beg to move.

Lord Wallace of Tankerness: My Lords, if Amendment 4A were accepted, it would mean that directions and guidance issued by the Lord Chancellor would require the approval of this House before being in force. Directions or guidance cannot conflict with secondary legislation made under Part 1-a point I made in the previous debate-and we cannot see any reason for bringing them separately before the House. As I have already said, Clause 4 requires the Lord Chancellor to publish all directions and guidance given to the director. Transparency is achieved through this provision and, as I hope that the House agrees, the director would be required to produce an annual report on the operation of their functions. The report will include an explanation as to how directions and guidance have shaped decisions. I can also assure your Lordships' House that the Lord Chancellor will, as a matter of good administration, keep guidance and any directions issued under continual review. That emphasises the fact that, if it is to be kept under continual review, having to bring them back every time to be amended would be an unnecessarily burdensome process in the efficient administration of the legal aid scheme. It would not in any way enhance the transparency that we seek to achieve-and on that we have common ground. Accordingly, I urge the noble Lord to withdraw his amendment.

Lord Beecham: My Lords, the House has gone some distance in reinforcing the independence of the director, and I trust that the Government will accept that position. On that perhaps optimistic assumption, I beg leave to withdraw the amendment.

Amendment 4A withdrawn.

5 Mar 2012 : Column 1612

Amendment 4B

Moved by Lord Beecham

4B: Clause 4, page 3, line 31, at end insert-

"( ) Any guidance or directions issued under this section must be reviewed on a regular basis, being not more than at three year intervals from the time they were issued."

Lord Beecham: My Lords, this is again a perfectly simple amendment, and the Minister anticipated it in his reply to the previous amendment in indicating that matters will be reviewed. The amendment provides for a more systematic review, perhaps, than the Minister implied. Since his implication was that there may be a number of changes over time, it seems sensible that there should be a consolidation, and a three-year period should be sufficient to allow a view to be taken about progress and the actions of both government and the director under the terms of the legislation. I should have thought that it was a simple enough request. It does not require parliamentary approval in this case but it at least allows for a considered view to be taken after a reasonable period of time. Given that this is a new process, one would have thought that that would be helpful. I hope that the Minister on this occasion might see his way to accepting the amendment. I beg to move.

Lord Wallace of Tankerness: Again, my Lords, the noble Lord, Lord Beecham, has indicated that the purpose of his amendment is that any guidance or directions issued under Clause 4 must be reviewed on a regular basis in an interval of not more than three years from the time that they were issued. As I indicated in respect of the previous amendment, it is not possible for any of the directions or guidance to conflict with the secondary legislation made under this part of the Bill.

We believe that the review provided for by the amendment is unnecessary as a statutory requirement. However, I assure the noble Lord and your Lordships' House that the Lord Chancellor will, as a matter of good administration, keep guidance and any directions issued under continual review. Protections are afforded to the director through the operation of Clause 4. There is also an opportunity for transparency, which is achieved through the publication of directions and guidance. These are important safeguards and, in the Government's view, those arrangements are not improved upon or added to by the amendment. As I indicated, in some circumstances there might well be a maximum period of three years, but the amendment poses an additional statutory burden. I have given an assurance that the Lord Chancellor, as a matter of good administration, will keep the guidance and directions under continual review, and I hope that with that reassurance the noble Lord will feel able to withdraw his amendment.

Lord Beecham: My Lords, I am certainly prepared to accept the assurances that the Minister has given. I beg leave to withdraw the amendment.

Amendment 4B withdrawn.

5 Mar 2012 : Column 1613

Amendment 5

Moved by Lord Wallace of Tankerness

5: After Clause 6, insert the following new Clause-

"Annual report

(1) As soon as reasonably practicable after the end of each financial year, the Director must prepare an annual report for the financial year.

(2) The annual report must state how the Director has carried out the functions of the office in the financial year.

(3) The Director must send a copy of the report to the Lord Chancellor.

(4) The Lord Chancellor must-

(a) lay the copy of the report before Parliament, and

(b) arrange for it to be published.

(5) In this section "financial year" means-

(a) the period beginning on the day on which section 4 comes into force and ending on the following 31 March, and

(b) each successive period of 12 months."

Amendment 5 agreed.

Amendment 6

Moved by Lord Bach

6: After Clause 6, insert the following new Clause-

"Pre-commencement impact assessment

(1) The Lord Chancellor must commission an independent review to assess and report on the following areas-

(a) the expected costs and impacts of Part 1 on-

(i) children and young people;

(ii) people with disabilities, including people with learning, physical, mental and psychological disabilities;

(iii) women;

(iv) victims of domestic violence;

(v) black and ethnic minorities;

(vi) government departments;

(vii) courts and tribunals, including any changes in time and resources;

(viii) local authorities;

(b) any expected impact of Part 1 on-

(i) the incidence of homelessness;

(ii) the incidence of ill-health, or suicide;

(iii) the commission of criminal or anti-social behaviour; and

(iv) the future provision and availability of services including, but not limited to, law centres and citizens advice bureaux.

(2) The Lord Chancellor must lay a copy of the final report commissioned under subsection (1) in both Houses of Parliament at the same time as laying a draft commencement order for any other section in this Part."

Lord Bach: My Lords, we come back to a matter that we debated in Committee: the pre-commencement impact assessment proposal. I start by quoting something that has not been said for a few years now; indeed, at the time when it was said, although it may have contained quite a lot of sense, it was widely mocked, but I hope that it will not be today. It is a quotation from the then United States Secretary of Defense,

5 Mar 2012 : Column 1614

Donald Rumsfeld of blessed memory, of whom many noble Lords will be either great supporters or perhaps the opposite. He said:

"There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know".

As far as the Bill is concerned, the Government have been operating as though all that matters are the known knowns. Specifically, they claim that they will save some money by reducing the budget for legal aid. We have been told repeatedly that our legal aid system is the most expensive in the world. Just this very morning, the Lord Chancellor told Radio 4 listeners that what this was really about was clamping down on lawyers' pay. In the context of this Bill, that is a remarkably inept statement; it just is not what is happening with regard to the Bill. Is it seriously being suggested that the fees that lawyers get for doing social welfare law work need to be clamped down on-the £150 fee per case of helping someone with a legal problem on welfare benefits? We are not talking about fat-cat lawyers in this case and it is about time that the Government stopped claiming that that was what the Bill was about. It is not; it is about clients who receive advice and occasionally representation on matters that affect their everyday lives.

There are also known unknowns, although the Government are less keen to talk about those. The impact assessment, about which the noble Lord, Lord McNally, and I had a brief friendly exchange across the Dispatch Box at Question Time today, states the potential impacts of the Bill:

in particular, with regard to that last item, higher benefit payments for people who have spent their savings on legal action. These have been slightly brushed aside, not least by the Minister, when the Government have been asked what the implications of those impacts are. You do not put in an impact assessment things that you do not think are going to happen; you put in things that you think may or will happen. If it is believed that those things will happen as a consequence of the Bill being implemented, then that is a legitimate target for those of us who are unhappy about parts of the Bill.

The Public Accounts Committee in another place asked the Ministry of Justice to invite the National Audit Office to review the impact assessments, expressing great concern that they seemed rather sloppy and unfinished. I believe that more has happened on that in the past few days; a letter has been sent by the very distinguished Permanent Secretary of the Ministry of Justice to the Law Society explaining why Ministers do not feel it necessary or even right for the NAO to look at the impact assessment of the Bill. I would be most grateful if the Minister could tell Parliament what is going on regarding the impact assessment being looked at by the NAO.

I cannot help recalling that some months ago the Justice Committee in another place, following its report, asked the Government to set out in much more detail

5 Mar 2012 : Column 1615

what their assessments were of the consequences of the Bill coming into force. The Government seem to have refused to respond to that request in the committee's report, and I ask the Minister to tell us why that was so.

As the House will know, two independent economic analyses, one by Citizens Advice and one more recently by King's College, have done a considerable amount of work on limited information, particularly in the case of King's, about the costs and benefits of this legislation, and they quantify some of the knock-on impacts. The Government, without offering any evidence of their own, have repeatedly rejected them out of hand. This morning the Lord Chancellor argued that,

That is a statement of immense chutzpah by the Lord Chancellor but is not worthy of him or the Government. The reality is that if the Bill becomes law, the Government will start taking legally aided advice away from women, children, the disabled in particular and many other groups of people.

The impact of the Bill will be considerable, and we suggest that it is only rational to plan for its impacts. Unless you do the basic work-work that has been done elsewhere-you cannot possibly hope to plan for what may follow. We know that there will be an impact, perhaps a large one, on other departments, on the lives of vulnerable people and of course on the charitable advice sector, which needs to know where it is year on year and is afraid that, with legal aid disappearing, it too in its turn may disappear.

What we are proposing in the amendment would not stop the Bill going through; this is not an attempt to stop it becoming an Act of Parliament. Before the impact assessment that we are suggesting would be produced, the Bill will have received Royal Assent. However, we believe that it would help in planning by other departments, by the sector and by the ministry, and it would help all of us to understand what the impacts might be and respond collectively to mitigate them. We believe that the amendment is actually of assistance to good government and is plain common sense, and I am delighted that it is supported by noble Lords from the Cross Benches who, if they are in their places, I hope will be able to speak to it. I beg to move.

7 pm

Baroness Prashar: My Lords, I support this amendment, which was so ably moved by the noble Lord, Lord Bach. He moved it in a very rational and considered manner. Therefore, there is not much that I wish to add, other than to say that the Government justified the cuts to legal aid in Part 1 on two grounds: savings to the public purse and the fact that these changes can be made without seriously damaging access to justice for the most vulnerable. However, we have heard a great deal from a range of organisations which say that the impact on the most vulnerable will be enormous. We do not know what the impact will be on courts, local authorities and a range of other agencies.

5 Mar 2012 : Column 1616

As far as can be ascertained, neither premise is based on firm evidence. The MoJ itself acknowledges that it is speculating on the likely effects of its proposals. What about evidence-based policy-making? Therefore, I urge the Government to undertake this comprehensive assessment of the impact of the Bill before it is implemented. Essentially, it is not just common sense but good practice and good planning. As has already been indicated, it will not stop the Bill but it will ensure proper planning and that the Bill is implemented with the knowledge of what the likely impact will be.

Lord Howarth of Newport: My Lords, I wonder whether the Minister could tell us a little more about when the Government anticipate commencement. What is the timescale on which they propose to introduce these changes? Unless I fail to remember, we have not been advised of that. It will take a little time to introduce these changes and we are in a period of economic troubles. An upheaval on this scale-reforms with such far-reaching implications, introduced in the circumstances of the British economy, with the consequential stresses and strains on our society-needs to be handled with delicacy and care. It would be consistent with the principles of good administration, which the noble and learned Lord, Lord Wallace of Tankerness, mentioned in our previous debate, for the Government to pause and consider again what the consequences of their policies may prove to be before they go to the final stage and introduce these changes.

The noble and learned Lord, Lord Wallace of Tankerness, invited us to accept that principles of good administration mean that guidance and direction should be kept continuously under review. I am not entirely persuaded by that. There is often a case for allowing people on the front line-the providers and administrators of public service-to have a period of policy stability and be able to get on with doing their job. However, that assumes that we have come to the point at which it is appropriate to introduce the policy changes. Thereafter, I am rather in favour of allowing officials and civil servants to get on unmolested and do their job, at least for a period.

It is not only a period of intense economic difficulty but one of major policy and administrative upheaval in which the Government contemplate introducing these changes to the system of legal aid. There will of course be reforms to the welfare system. If we look at the categories that my noble friend Lord Bach has specified in proposed new subsection (1)(a) of his amendment, we see a series of categories of people who will be affected by the changes in welfare policy. On children and young people, the House does not need me to emphasise the importance of taking the greatest care to ensure that we do not place them in such a perfect storm of change that they are at risk of unnecessary instability or, one might say, unnecessary trauma.

For people with disabilities, it is not only the reform of the welfare system-the switch from disability living allowance to personal independence payment-and the constraints on their benefits that the Government are introducing that are at issue here, but the reforms to the health service. Surely we all accept that people with learning, physical, mental and psychological

5 Mar 2012 : Column 1617

disabilities warrant our very particular, prudent and humane care as policy change is introduced. Again, it would be fitting for the Government to pause and review all the circumstances that their policy and other factors are creating in the lives of people with disabilities before they remove the legal aid that enables such people to make their case and challenge administrative decisions.

In these economic circumstances, women are particularly vulnerable in their employment. Again, special care is therefore needed. While the Government are keeping legal aid to support people who may be under immediate threat of eviction from their homes, there are other kinds of housing-related problems for which people are no longer to be supported by legal aid. For example, if they are being harassed by their landlord or their landlord fails to maintain the property in decent condition, they will no longer have the support of the legal aid system to give them redress in those circumstances. Women, children and young people are plainly vulnerable, particularly at a time when there is such a shortage of social housing and rents are soaring in the private sector. Therefore, it is essential that the Government should take stock and review the position before pressing the button to implement their new policy on legal aid.

We have debated the position of victims of domestic violence at length today. I hope that they will at least be brought back into scope.

Coming to the fifth category that my noble friend indentifies in his amendment, we know that black and ethnic minorities are represented disproportionately among the poorest in our society. We know that they often have all too fragile a position in the labour market. Again, I counsel that the Government owe it to them and to society as a whole to take great care where they are concerned.

We then move to a different set of concerns expressed by my noble friend Lord Bach. He rightly raises the question of what the impact of the Ministry of Justice's policies may be on other government departments. We have had the benefit of seeing the study that was produced by King's College London, which I am sure the Minister has considered with great care. However, it is a reasonable proposition and anticipation that people who are no longer in a position to maintain their rights in the courts may find themselves becoming dependent on other aspects of state provision, particularly the health service, and particularly in situations of homelessness. I do not know what consideration the Ministry of Justice has shared with the Department of Health or the Department for Communities and Local Government-to name two departments that one can immediately imagine having to pick up the tab for the MoJ's policies-but I hope that, even if this legislation is enacted, the Government collectively will continue to think about what the totality of this policy's effects will be. Many of us consider that the very small savings that the Ministry of Justice may achieve in the legal aid budget will be dwarfed by the knock-on expenditure consequences for other government departments. A hard-headed cost analysis should be undertaken by the Government before they implement the policy.

5 Mar 2012 : Column 1618

We know that there is a widespread apprehension, certainly extensively in the legal profession, that courts and tribunals may also face additional costs and difficulties in consequence of the removal of legal aid from various categories of would-be litigants, who may feel that they then have no option but to be litigants in person. We have heard many testimonies in Committee, and in the advice and evidence offered to us by organisations seeking to educate us on what the consequences of these policies may be, to the effect that there will be a serious impediment to the courts transacting their business at the speed at which they ought to proceed. That must be a matter of concern. It ought to be a matter of particular concern to the Ministry of Justice because if there are impediments to the courts getting on with their work properly, surely there will be cost implications and other unsatisfactory implications for the department itself. Local authorities, through social services departments, will have to carry a heavy burden. There, again, I am sure that my noble friend is right to include them in his list.

I will say no more about the possible implications for homelessness or ill health, let alone suicide, but I would like to say a word or two about the impact that this policy may have on the commission of criminal or anti-social behaviour. It seems to me that if those who are most disadvantaged in our society and feel themselves most vulnerable are driven to say to themselves that there is no justice for them and no way in which they can secure their proper rights, they may reach a point of despair and may feel justified, or simply driven, to engage in criminal or anti-social behaviour. That is surely something that the Ministry of Justice cannot want.

Finally, my noble friend invites the Government to make an assessment of the impact of their policy on the future provision and availability of services, including but not limited to law centres and citizens advice bureaux. These are charitable organisations. I note that we see authoritative figures coming, I think, from the National Council for Voluntary Organisations but possibly some other well respected body in the charitable sector, which estimate that the reduction in public funding for the charitable sector by the year 2016 at the hands of this Government and through local government underfunding will be of the order of £3.3 billion. Therefore, it is inevitable that charitable provision of legal advice and assistance will be reduced. It is part of the responsibility of the Lord Chancellor and his ministerial colleagues in the Ministry of Justice to think again very carefully about what the situation is, and can reasonably be anticipated to be, before they commence the implementation of the policy. For all these reasons, I am very happy to support the amendment moved by my noble friend Lord Bach.

7.15 pm

Lord Goldsmith: My Lords, I support the amendment. The principal reason for supporting the amendment that has been given by noble Lords who have spoken so far is that it would focus attention on what the Bill will do. I support that, particularly if it is being suggested that the Bill is about trying to hit back at

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lawyers' fees, although I did not hear that remark myself. The Deputy Leader of the House-I nearly called him noble and learned-will recall that I debated with him in Committee the impact of these changes on law centres, citizens advice bureaux and the advice sector generally-which is the final category referred to in the amendment of the noble Lord, Lord Bach. I refer to the disclosures of interest that I made on that occasion as the chairman of the Access to Justice Foundation. That foundation held its annual general meeting this week, which involved agencies in the advice sector as well as the professional bodies. The key question at that meeting which I wish to underline is: what will these changes mean for the planning that these bodies have to do for the future? For that reason, as well as the reasons that have been advanced by noble Lords, it is important to understand as clearly as one can what the impact of these changes will be.

The noble Lord was good enough to write to me on a specific point. Will he ensure that that letter is placed in the Library before Wednesday's Report day, when I think we will consider social welfare issues? I want to underline the fact that it is critical for these agencies, which operate on a shoestring and do extremely important work, at least to know what the impact of these changes will be so that they can plan for that, quite apart from the powerful points raised by my noble friend Lord Bach and others about whether the Government really understand what the Bill will do.

Lord Judd: My Lords, frankly, it beggars belief that in an area which involves so much social distress and suffering the Government should rush into this legislation without having considered its impact and consequences. In terms of social irresponsibility, it is difficult to speak too strongly about that. Moreover, such a course of action makes absolute nonsense in terms of public expenditure. If we insist on cuts of this kind in a front line where we hope that things can be put right in time, expenditure on the cases concerned may considerably increase future pressure on the public purse, and more widely because of the contaminating effect of the cases concerned. This is short-sighted, counterproductive government of the worst order.

I have spent a great deal of my life working in the voluntary sector and I know that it is not just the voluntary organisations in the legal sector which will be affected, given that they will have tremendous additional burdens in the aftermath of the introduction of this measure, but that all the other voluntary organisations working in the front line of social action will have to pick up the pieces and the consequences of it. This is happening at the very time that the resources available to such organisations are diminishing and they are becoming frantic about how they will continue their work. This amendment is crucial. I cannot say how strongly I support my noble friend in having put it forward.

Baroness Butler-Sloss: My Lords, I hope that I may add a brief word about law centres and other advice centres. Taking legal aid away from a huge number of

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areas, particularly private family law, which concerns me, but also social welfare, will result in a great many people wondering what to do. Those are the people who currently go to law centres and other advice centres. I was talking to another Member of this House, who is not present in the Chamber, who told me that she used to work in a law centre as a non-lawyer and that the staff in that law centre spent their time dividing the wheat from the chaff and persuading people that they did not have a chance in court. I hope that the Minister, and particularly the Justice Secretary, understand the impact on courts and tribunals of people who do not have legal advice appearing before the various tribunals and clogging up the works. In 12 months' or two years' time there may be no assessment of whether the absence of law centres and other advice centres has exacerbated this problem to an enormous degree. However, I hope that the Government may realise at that stage that they need to provide more help. Good points have been made about areas in which I have experience.

Lord Ramsbotham: My Lords, I put my name to the amendment for one simple reason: it drew attention to impact assessments, which are a very important part of legislation. I have mentioned in connection with other legislation that has come before the House that impact assessments in general are not well done. What has been said from around the House during this debate proves the point that in this Bill it does not appear that the impact assessments on all these aspects have been carried out sufficiently well to satisfy Members of the House that we are launching in a direction in which we ought to go.

Lord McNally: My Lords, where am I to begin? It is probably best to begin with the unknown unknowns. Government can paralyse itself with inquiries and reports. Sometimes Ministers have to take decisions. As I said at the very beginning of the debate today, we had to take decisions against the background of a bleak economic situation. The brutal fact is that we were a whole lot poorer than we thought we were in 2008. That is the brutal fact and it means that bringing our public finances back into balance has required hard decisions. My department, with a £10 billion spend, has a commitment to cuts of £2 billion-not just to legal aid but to real people doing good jobs in the public service.

Sometimes when I listen to debates in this House, I think that there is no concept of the truth and consequences of what is happening. If not legal aid, where, who and what should be cut? We as a Government are willing to take responsibilities and will be tested by the outcome of our views. I am not sure that any inquiry would produce things that would settle all the arguments raised in the debate. We published a consultation paper more than a year ago, at the beginning of this process. We listened to the arguments put forward by a variety of bodies. The provisions on social welfare are not just a money-saving exercise. My right honourable friend was this morning referring more to the Jackson reforms in terms of expenditure on legal fees, and most people would agree that certain inflationary processes were caused by the reforms that the previous Government made.

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We are trying to make a number of decisions. Perhaps I may say again-I think I have said this before in reply to the noble Lord, Lord Judd-that when the noble Lord, Lord Howarth, talks menacingly about people being driven to anti-social behaviour and criminality, I emphasise that people have a choice. I come from a background where people in real deprivation chose not to break the law. That should always be kept in mind, and no justification should bypass that.

As to the NAO, the Permanent Under-Secretary gave evidence to the Public Accounts Committee, in which he maintained that the MoJ had met government standards. Her Majesty's Treasury has confirmed that carrying out the kind of study that was being proposed would be an extension of the NAO rule.

The noble Lord, Lord Howarth, asked when the Bill would come into effect. I will write if I am wrong, but I think that it is April 2013-in about a year's time.

The amendment and the related Amendment 160 are unnecessary. As noble Lords will be aware, the Government already conduct impact assessments against a recognised standard that is determined by the Department for Business, Innovation and Skills and deployed consistently across all government departments. The scope of the impact assessments required under the BIS standard is, I acknowledge, narrower than that proposed in the amendment. However, setting aside the amendment's references to groups with protected characteristics, to which I shall return in a moment, the impact assessments produced to date already touch on many of the areas that the amendment covers. However, the impact assessments necessarily quantify only costs and benefits where there is evidence that allows such quantification. Where quantification is not possible, the impact assessments consider the risk of given impacts materialising. Recognising that there are potential risks associated with making changes does not mean that such risks will be realised.

I have been disappointed with the way that the product of the analytical rigour that features in the published impact assessments, in considering every feasible risk, has been used in debate to paint a disingenuous doomsday scenario. The noble Lord, Lord Bach, claims that there is a theoretical risk of, for example, reduced social cohesion or criminality. However, that does not mean that the changes will automatically lead to such outcomes in the way that some have sought to present the assessment. Impact assessments allow policymakers to identify risks as a matter of good practice so that all possible eventualities are considered. Identification does not guarantee that such a risk will become a reality.

Turning now to equalities, the amendment also seeks a pre-commencement impact assessment on specified groups sharing characteristics that are protected under the Equality Act 2010. Public authorities are already under a public sector duty to have due regard to the impact of their policies on those protected groups. I have already invited noble Lords-and I do so again-to consider the equality impact assessment published alongside the Government's response. This considers the potential impacts of the reforms on legal aid clients by race, gender, age, disability, gender

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reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief, and sexual orientation. This is more comprehensive than what is required by the amendment, and the equality impact assessment is open about the nature and extent of those potential impacts.

The existing statutory framework has due regard to equalities impacts. The fact that the ministry has had due regard to, and has published, its assessment of potential impacts suggests to me that what the amendment seeks in respect of equalities consideration is ill conceived. In respect of the assessment of wider social impacts sought by the amendment, it may well be that there are those in this House who have powers of foresight beyond mine, because this is almost certainly what would be required were any government department to be able meaningfully to deliver what these aspects of the amendment require.

Taking an emotive example, I ask this House carefully to consider if it is realistic, or even possible, to predict the expected impact of these reforms, or indeed any government policy, on something as complex as suicide. We have absolutely no reason to believe that there would be any relationship between these changes and the incidence of suicide. However, it would in any event be analytically impossible to predict such a relationship in a reliable way. The same tension exists regarding other impacts listed in the amendment that would undoubtedly have a multitude of complex causational factors. Ultimately, it is possible to identify only the risk of an impact, and the Government have been as comprehensive as possible in their assessment of those risks.

In respect of the types of advice organisations specified in the amendment, the equality impact assessment considers impacts on the not-for-profit sector, as well as solicitors and barristers. Of course, such analysis can describe only what the financial impacts are likely to be; the question of continued service provision will be dependent on a range of factors such as other funding streams, possible reorganisation of business structures, and diversification or contraction of services based on expertise. None of these can be either predicted or generalised across hundreds of offices.

Put simply, the amendment cannot achieve what it sets out to do. We are of course committed to assessing the true impact of the Bill, once it has materialised, as part of an established process of post-implementation review of legislation. The Ministry is working hard to improve its evidence base on legal aid clients and providers to get maximum benefit from the review process. In short, much of what the amendment seeks has already been addressed in the material published to date, and we are confident that we have measured that for which evidence is available. On the remaining aspects, it is possible only to identify risk, and we have done that in accordance with the Government's accepted standards.

7.30 pm

I offer my assurances to the House that a further impact assessment will be produced following the passage of the Bill to reflect any changes made since introduction, which will be conducted against

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the established standards required across government. To reiterate, we will also conduct a full post-implementation review and are doing the groundwork for that to extract the maximum possible value for the exercise.

I address in particular the point raised by the noble and learned Lord, Lord Goldsmith, which has also been raised with me by my noble friend Lord Thomas. I have said before at the Dispatch Box that we recognise the need for certainty and assurance for CABs and other non-profit organisations. When people say what a blow this economic situation has been to charities, I say yes, but the Ministry of Justice has had to trim 20 per cent of its budget, with some heartbreaking decisions in terms of staff and services. I cannot say to non-government organisations, charities or others that they can escape the reality which I stated at the beginning: we are a whole lot poorer than we thought we were in the glory days. As I reported before, we are in close consultation. The Cabinet Office is looking at the problem with a due sense of urgency. The spending of government money is closely guarded by my right honourable friend the Chancellor of the Exchequer, and he is not due to say anything on those matters until 21 March.

I can assure the noble and learned Lord and my noble friend that the issue of giving CABs and the not-for-profit sector some long-term assurance is very much in our mind at the moment. However, I do not believe that the amendment is worthy of the House passing it, and I hope that the noble Lord will withdraw it.

Lord Bach: My Lords, I thank the noble Lord for his reply and what assurances he was able to give-not satisfactory from our point of view, but he gave what assurances he could, particularly about another impact assessment later. I thank in particular the noble Lords, Lord Ramsbotham and Lord Pannick, and the noble Baroness, Lady Prashar, for their support for the amendment and all noble Lords who spoke during this important and interesting debate. Important issues have been raised both here and in Committee, and the House obviously believes that. I am delighted to have so much general support around the House for the amendment, although the Minister insisted that it was unnecessary and misguided.

Of course we accept that difficult decisions have to be taken by the Government. The Government think that they will save about £61 million a year, a rough figure, by abolishing legal aid for social welfare law. Our problem-I think it should be one for the House-is: how much are they actually going to save by what they intend to do about the scope of legal aid? We believe-reports suggest that we are right-that other departments will have to pick up the pieces of those cases that would otherwise have been solved or sorted but which will not be because people will not have anywhere to go to get the advice that they get now. The system that works pretty well-not perfectly, but pretty well-will have gone. We believe that the cost to the Government, whichever Government, will be much higher than any savings that the ministry will make. That is why we

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wanted to know more detail and hoped that the department could help us with more detail about what it believes the costs will be.

We believe that the cost to society will be very high indeed. It will not help the Government's deficit cuts plan; it may actually add to it in the end. I know that that is not what the Government intend, but we believe that that may be the consequence, which is why I have raised this issue again this evening.

I hope that the Government listened to the 5,000-odd responses to the consultation. As I understand it, 90 per cent of them were opposed to what the Government intended to do, so they may have listened, but not very carefully, I fear.

I end by saying that the cuts that the Government have decided to make cut 53 per cent of the social welfare law budget, 27 per cent of the family law budget and 8 per cent of the criminal legal aid budget. Those figures were given by the Government in a Parliamentary Answer in another place last week. They are staggering. Why has the criminal legal aid budget, which is already much the largest, been allowed to escape almost scot-free?

Lord McNally: My Lords, as the noble Lord knows well, shortly before leaving office, he introduced cuts to criminal legal aid which we agreed should be absorbed by that sector before any further examination of the criminal legal aid side. Criminal legal aid has not been free from cuts, but those cuts were his.

Lord Bach: They were, and they were opposed by the noble Lord, his party and other parties when we made them, but so be it. They were opposed during the general election campaign. I know; I was the Minister at the time. I can tell the noble Lord that, if we had been re-elected, which we were not, we would have looked further on the basis of the White Paper we produced in March 2010 for further cuts. They would have been controversial cuts, I do not dispute that. I very much hope that they would have had the support of the noble Lord if he had been in opposition at the time; somehow I doubt it.

There is much scope to have cut more from criminal legal aid. Still, 49 per cent of criminal legal aid is spent on 1 per cent of cases. The Government are taking 53 per cent away from social welfare law, which is not well resourced anyway; 27 per cent from family law; and 8 per cent from criminal law. We say that the Government are right to look for savings; they have just chosen completely the wrong savings. It is not too late for them to change their mind.

Do I ask the House for its opinion on my amendment? I have thought long and hard about whether I should do so this evening but, in all the circumstances, I beg leave to withdraw the amendment tonight.

Amendment 6 withdrawn.

Consideration on Report adjourned until not before 8.39 pm.

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European Council


7.39 pm

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, this may be a convenient time to repeat a Statement on the European Council made in the House of Commons earlier this afternoon by my right honourable friend the Prime Minister. The Statement was as follows:

"This Council focused on the measures needed to address the growth crisis in Europe and complete the single market. It also reached important conclusions on Somalia, Serbia and Syria. Let me take each in turn.

First, growth and jobs. This was the first European Council for some months not completely overshadowed by the air of crisis surrounding the eurozone. The problems in the eurozone are far from resolved and we need continued and determined action to deal with them. But the biggest challenge for Europe's long-term future is to secure sustainable growth and jobs.

Ahead of this Council, Britain, along with 11 other EU member states, set out in a letter our action plan for growth and jobs in Europe. This was an unprecedented alliance involving countries from all across Europe, representing over half the EU population and a quarter of a billion people. It included our traditional partners on this agenda in northern Europe but it also included countries such as Poland, one of the largest in the EU, and countries such as Spain and Italy in the south of Europe, which previously had not prioritised this agenda.

Over the past year, we have frequently succeeded in inserting references to the single market and competitiveness into Council conclusions, and the Commission's proposals have begun to reflect that. But what was encouraging at this Council was that an EU growth agenda, based around free trade, deregulation and completing the single market, received stronger and broader political support from Heads of State and Government than ever before. A whole series of concrete commitments to actions and dates by which those actions need to be taken were inserted into the final communiqué. Now it is vital that these commitments are fulfilled.

The reason why Britain so strongly insists on the completion of the single market is because of its huge potential for growth and jobs at home. The single market is the biggest marketplace in the world, with 500 million consumers. Removing barriers to trade in products has had a huge impact and, with one of the largest manufacturing sectors in Europe, Britain has benefited from that.

But the benefit can be even greater if the single market is completed in other areas where Britain has also great strengths. The first of these is services. Full implementation of the services directive could add 2.8 per cent to EU GDP within 10 years. Britain would stand to be one of the prime beneficiaries because, from financial services to legal services to accountancy, Britain has some of the leading companies in the world.

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The Council also agreed to complete the digital single market by 2015. This could boost EU GDP by as much as €110 billion every year. Again, this could particularly help Britain with our strengths in digital technology and all forms of creative content, including film, television and online media.

The Council agreed a specific deadline to complete the single market in energy by 2014. This could add 0.8 per cent to EU GDP and create 5 million jobs. Again, many of these jobs will be in Britain, because we are a major producer and exporter of energy with the most liberalised market in Europe. The Council agreed there will be a special focus on trade, including trade deals with fast-growing parts of the world, at the next Council in June. Completing all open bilateral trade deals could add €90 billion to the EU economy, and a deal with the US would be bigger than all the others put together. Britain is one of the most open trading nations in Europe and that is why trade deals have a particular importance for us.

On deregulation, for the first time we got a specific commitment to analyse the costs of regulation sector by sector and a repetition of our call for a moratorium on new regulations for those businesses with fewer than 10 employees. Taken together, these measures represent a clear and specific plan for growth and jobs at the EU level and we must now ensure that Europe sticks to it.

Turning to wider international issues, on Somalia the Council welcomed the conference held in London last month and the important conclusions that we reached, cracking down on piracy and terrorism and supporting a Somali-led process for a new representative and accountable Government.

On Serbia, Britain has always been a strong supporter of enlargement of the European Union from eastern Europe to the countries of the western Balkans. This policy has clearly demonstrated success in embedding support for democracy, the rule of law and human rights across the continent, so I was particularly pleased that the Council granted Serbia candidate status. I have no doubt this decision would not have been possible without the courageous leadership of President Tadic. It was he who secured the arrest of Ratko Mladic, closing one of the darkest chapters in Serbian history. And it was he who took the brave decision to engage in a dialogue with the Kosovans.

It is also right to mention the leadership of the Kosovan Prime Minster, Hashim Thaçi. He, too, has been prepared to enter into constructive dialogue with Serbia. That decision has rightly been rewarded by the European Commission starting the process which can lead to a new contract between the European Union and Kosovo. This is the first important milestone on the long road for Kosovo to join the European Union.

Let me turn to the grave situation in Syria. I know the whole House will join me in welcoming the safe return of British photographer Paul Conroy, who escaped from Baba Amr last week. I spoke to him this morning and he described vividly the barbarity he had witnessed in that city. The history of Homs is being written in the blood of its citizens. Britain is playing a leading role in helping to forge an international coalition

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to do three things: first, to make sure there is humanitarian assistance for those who are suffering; secondly, to hold those responsible for this appalling slaughter to account; and, thirdly, to bring about the political transition which will put a stop to the killing. We must pursue all these goals at the same time.

On humanitarian assistance, Britain has already provided an extra £2 million to agencies operating on the ground to help deliver emergency medical supplies and basic food rations for over 20,000 people. But the real problem is getting that aid into the affected areas. Now that the Syrian Government have occupied Baba Amr, they have a duty to allow humanitarian access to alleviate the suffering they have caused. Britain will be working this week to secure a UNSC resolution which demands an end to violence and immediate humanitarian access. The longer access is denied, the more the world will believe that the Syrian regime is determined to cover up the extent of the horror it has brought to bear on Baba Amr.

Secondly, we are working to make sure that those responsible for crimes are held to account. The European Council agreed that there must be a day of reckoning for those who are responsible. Britain and its European partners are working together to help document the evidence of these atrocities so that evidence can be used at a later date. International justice has a long reach and a long memory.

Thirdly, we are working for a political transition to bring the violence to an end. The European Council was clear that President Assad should step aside for the sake of the Syrian people and supported the efforts of Kofi Annan to work for a peaceful process of political transition.

Syria's tragedy is that those who are clinging to Assad for the sake of stability are in fact helping to ensure the complete opposite. Far from being a force for stability, Assad's continued presence makes a future of all-out civil war ever more likely. What can still save Syria is for those who are still supporting and accommodating Assad's criminal clique to come to their senses and turn their back on the regime.

It is still possible that Syria's national institutions can be saved and play their part in opening a path to an inclusive, peaceful and decent transition. We will deploy every tool we can-sanctions, aid and the pressure of diplomacy-reaching out to the opposition in Syria and beyond. We will work with anyone who is ready to build a stable, inclusive, non-sectarian, open and democratic Syria for all Syrians. That is the choice that is still open to those in authority in Syria. Now is the time to make that choice, before it is too late.

Finally, on Friday morning 25 member states signed the intergovernmental agreement on the fiscal compact. This binds countries in the eurozone to a budget deficit of no more than 0.5 per cent, and it involves countries giving up the power to write their own budget if they go beyond it. Britain is not signing this agreement. Britain is not in the euro and it is not going to join the euro, so it is right that we are not involved. But it is important that we continue to ensure that vital issues such as the single market are discussed by all 27 members. That is exactly what happened at this

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Council. Far from not being included in the vital discussion that affects our national interests, Britain helped to set the agenda at this European Council and Britain helped ensure its success. I commend this Statement to the House".

7.50 pm

Baroness Royall of Blaisdon: My Lords, I thank the Leader of the House for repeating the Statement made by the Prime Minister. I start by associating these Benches with the words in the Statement, repeated by the Minister, on Somalia and Serbia.

On the pressing issue of the continuing violence in Syria, the pictures and testimony coming out of Homs today are horrific, with people telling of seeing their children murdered in front of their eyes. Responsibility for the brutal repression and murder of innocent people lies firmly at the door of President Assad and his regime. It is appalling that the Syrian Government have so far even refused requests for humanitarian access.

In this context, it is even more important that Britain puts pressure on the international community to back a UN resolution and address this desperate situation. Can the Leader of the House update the House on both UK and EU efforts to support the Arab League and the joint special envoy in their efforts to broker an end to the bloodshed? Can he also tell us what steps are now in train to strengthen sanctions against the Assad regime, including the enforcement of Arab League sanctions? Given the Russians' responsibility for vetoing the last UN resolution on Syria, they will be judged by their actions rather than their words. Following the Prime Minister's conversation with Vladimir Putin earlier today, what concrete actions do the Government now expect Russia to take?

I now turn to other matters at the European Council, in particular jobs and growth. The fiscal compact treaty, which was signed at last week's summit, promotes an austerity-alone approach, which, as we have seen here in the UK, is not the answer to this crisis. This was the treaty over which the Prime Minister so publicly deployed a veto last December at the previous European Council-the veto which was not, in fact, a veto. The treaty, which the Prime Minister told us did not exist as a consequence of using his veto, was in fact signed on Friday by 25 countries. Can the Leader of the House confirm that, for all the Government's claims, both the European Court of Justice and the European Commission will be fully involved in implementing the treaty?

We now know that the United Kingdom has been reduced to relying on the EU Commission to be the last line of defence in the protection of British interests because the Commission, unlike the UK Prime Minister, will actually be involved in all the meetings. Can the Leader of the House tell us how the Government will even find out about the results of the meetings, which will be discussing a whole variety of economic questions that will affect the UK? Of course, it is not just a matter for the Prime Minister, but for anyone else. It should be appropriate that they should be at the Council meetings.

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It is a matter of record that the Prime Minister spent Thursday complaining that he felt ignored while the other 25 leaders were preparing to sign the new treaty. Then on Friday the Prime Minister claimed that, in less than 24 hours, his powers of persuasion had once again triumphed. He told us:

"The communiqué has been fundamentally rewritten in line with our demands".

The Prime Minister said that big strides forward are clear from the communiqué on energy, on microenterprises, on the single market and on reducing trade barriers. Of course, we welcome all efforts to complete the single market, which is so important, as the noble Lord himself said, for retaining and creating jobs in this country. However, can the Leader of the House confirm that the commitment on the energy market was in the conclusions of last February's Council; that the commitments on the single market and trade simply echo those given following the October 2011 Council; and that the supposed progress on microenterprises was in the conclusions of last December's Council?

The primary task facing European leaders at this summit was to enhance the resilience and the capacity of the single currency. The emphasis on growth should have been an integral part of any deal agreed and, had the Prime Minister stayed at the table and fought for what was best for Britain, he could have been pushing this agenda from within the heart of Europe rather than from the sidelines of summits.

The Prime Minister has also failed to get sufficient assurances on the role of the ECB and the working of the eurozone bailout fund that are crucial to any resolution of this crisis. The Prime Minister said on Friday that there was not an air of crisis about the euro. I am glad of that, of course, but does the Leader of the House really think that a sustainable solution has been put in place for the euro area? Can the Leader explain why the Prime Minister did not press those countries with fiscal headroom to help stimulate growth in Europe? Is not the answer that we now have a Prime Minister isolated without influence?

The unanswered question after this summit remains: what exactly did the Prime Minister achieve by walking out of the EU negotiations in December? In fact, what happened is that the Prime Minister secured no additional safeguards to protect British interests, no protections on the single market, no additional safeguards for financial services and not even observer status in future meetings of the 25. The Prime Minister's disregard for diplomacy has meant that the UK's role in future crucial negotiations, in building vital European alliances and in leading in important European debates, has been weakened, not strengthened. Any future battles on single market laws, including financial services regulations, could be harder to win and therefore could leave the City and British business more, not less, vulnerable.

The Prime Minister achieved nothing for Britain at this summit: not one job created; not one family helped; and not one business boosted. The truth is that the Prime Minister is isolated and without influence in Europe as a result of his failure of diplomacy last December. He has now failed to deliver the deal that

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Europe needed and failed to protect the interests of the UK in the process. We on these Benches believe that Britain's families, communities and businesses deserve better.

7.56 pm

Lord Strathclyde: Oh dear, my Lords, I was hoping for something rather more positive from the noble Baroness. It would help if the party in Opposition were to rethink its policies on Europe and try to answer some of the questions that she herself has posed. I shall return to that in a moment.

First, I echo her words on Syria and welcome them. Of course, an enormous amount is being done on the ground in that benighted part of the world. It is clear to anyone reading the newspapers and watching television that it is a fast-moving situation which is likely to continue over the course of the next few weeks.

What are we doing about it? Our top priority is to make sure that the humanitarian situation is improved on the ground. The International Development Secretary is planning to speak to the noble Baroness, Lady Amos, today. We believe that she is flying from New York to the region today, expecting to get access to Syria, even though her efforts last week were halted. Our permanent representative to the UN is speaking to the IRCR in New York today. I am sure that my right honourable friend the Prime Minister, who hopes to speak to President Putin-indeed, he may have done so-will raise the issue with him if he has the opportunity.

Obviously, this was a Council meeting that concentrated on the issue of growth and employment. I thought that the noble Baroness was unusually carping about my right honourable friend when she talked about the eurozone agreement that had been signed by the 25. The history of that is well known. She and I have debated this across the Dispatch Box but we still do not know whether, if the Leader of the Opposition had been leading for Britain in the December Council, Mr Miliband would have signed the agreement or not. Increasingly, we believe that he would not have signed it, but we do not know.

Baroness Royall of Blaisdon: My Lords, my right honourable friend the Leader of the Opposition would have ensured that there was a better deal on the table in the first place. He would not have left an empty chair at all these important Council tables.

Lord Strathclyde: My Lords, we have ended up with the best deal for Britain. We have safeguarded Britain's interests and allowed the countries of Europe to try to solve the problems of the eurozone. We very much support them, not least because we have an absolute interest in their success. We want the euro area to sort out its problems and achieve the stability and growth that all of Europe needs, and we very much welcome the progress that has been made. The European Central Bank has provided extensive additional support to banks, and many euro area countries are taking difficult decisions to address their deficits, and giving up a degree of sovereignty over the future governance of their economies. They also agreed to set up a firewall,

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and it is entirely right that they should do so. If the noble Baroness regards that as the Prime Minister somehow being isolated in Europe, we shall have to agree to differ, because the safeguards are clearly there.

Some doubt was expressed also on the conclusions of the European Council. The noble Baroness asked whether I could confirm that measures on the energy market, trade, growth and micro-enterprises were all announced at previous EU Councils. That was a perfectly fair and appropriate question, but the fact that they were announced in the past does not mean that it was not necessary to mention them again in this Council. These are all important issues that of course were discussed at previous Councils; but this time the content is more concrete. A year ago, the conclusions talked of the importance of the issues, but not the detail of what was to be agreed. It is now even more urgent, and we have secured more concrete language to put pressure on the Commission.

Of course, the issues of growth and innovation come up every year, and it is a tradition to discuss them at the spring Council. However, the letter that Britain organised and sent to the President of the Commission was last year signed by nine countries and this year by 12, including Italy and Spain. This year's letter also goes further and discusses financial services and trade. Some similar issues are addressed; for example, the digital single market was included because there has not yet been enough action on that. The conclusions of the Council this time reference all eight of our action points, and there will be a more concrete follow-up.

The background to this Council is extremely well known. It is one of the most economically unstable backgrounds that the European Union has ever faced, and nobody thinks that we are yet out of the woods. However, we seem to be in a period of relative stability, and it was entirely correct that in the Council we should concentrate on improving our competitiveness, employment and growth.

8.03 pm

Lord Dholakia: My Lords, I thank my noble friend for repeating the Statement and will make a positive response. We certainly welcome the emphasis on growth, competitiveness and completion of the single market. We also welcome the collaboration between the United Kingdom and other heads of state and Governments in shaping Europe's strategy on jobs and growth. Does this not show that we get better results when we work together closely with our European partners, and that a strategy of positive engagement in Europe works to our benefit?

On enlargement, we welcome candidate status being accorded to Serbia, with a view to opening accession negotiations. We also welcome the Council's intention to launch a stabilisation and association process with Kosovo. How will the British Government support these processes, and what is their view of the prospects of continuing progress?

Lord Strathclyde: My Lords, I am very grateful to my noble friend, who of course is quite right that it is good to concentrate on jobs, growth and competitiveness.

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It is also important that we should work together. Britain is very much in the lead on this co-operation, working closely with other countries. The Statement is very clear not only about the British interest but also the wider European interest. That is why we have sought to complete the single market in services, the digital single market and also the energy single market, which we believe will be a substantial force in reducing prices overall and raising living standards throughout Europe. It is our intention to continue working together on these important issues at a European and bilateral level. We can see from the letter that was agreed by 12 of our partners that there is a good deal of co-operation.

Lord Williamson of Horton: My Lords, I, too, welcome the Government's Statement, and in particular the front-line role given to the statement that the biggest challenge for Europe's long-term future is to secure sustainable growth and jobs. I note that in its conclusions, the European Council states that it will concentrate on the implementation of reforms and pay particular attention to measures that have a short-term effect on jobs and growth. That is long overdue and I am very pleased to see it.

I am one of the Members of the House who reads all 45 paragraphs of the conclusions, not just the Statement. I will make one comment and then pose two questions or invitations to the noble Lord. My comment is that I am very pleased to see, in the section on action at a national level, that inter alia all member states are invited to remove barriers to the creation of new jobs. I make this point because it is important to realise that in the single market it is not just the EU institutions and the UK Government but the prosperity of the whole Union that matters. That is a very important point that could ultimately be advantageous to UK growth.

My first invitation is that the Leader of the House should spend a day and night giving priority to two points in particular. I say that because long experience has taught me that conclusions always have masses of things in them, and that if one wants to get anywhere one has to concentrate on one or two major points. The two points that strike me as very important are well known and come from the text of the conclusions. The first is that,

Personally, I would like to have seen a stronger word than "continue". I would like to have seen something like "be stepped up". However, it is extremely important for the United Kingdom to keep the emphasis on this point, even if it irritates some people, because we need action.

My second point concerns paragraph 18, which states that,

I am glad that this time it says "stepped up"-

This is not referred to in the government Statement, but it is important. There is great potential for Britain

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in using European research and development policy to drive action at a commercial level as well. Over time it could be highly beneficial. Therefore, I invite the noble Lord to spend a day and a night concentrating on those two points with his colleagues.

Lord Strathclyde: My Lords, I very much welcome what the noble Lord said. He is not alone but part of a small and very keen group of Peers who read and study the conclusions and then ask me questions on them. Fortunately, I, too, am one of those who read them. That does not mean that the noble Lord will never catch me out. However, my eye was drawn to these two conclusions-particularly the one that mentioned taking steps to remove administrative and bureaucratic burdens. This is something the Prime Minister spent a great deal of time talking about at the Council, one of the reasons being that very often Council conclusions will talk about these measures and about growth and employment measures but the Council does nothing about them. It is very important that we get into a process where the Council and the Commission do something about them.

Secondly, on more innovation, I very much admire the noble Lord for bringing this one out. Innovation is going to be the engine of growth within the whole of Europe, as he rightly pointed out, and I very much welcomed his earlier remarks about this Council being on sustainable growth and jobs. The key to all this is, of course, implementing these high sounding phrases. The noble Lord was correct in pointing out that this is not just about doing these things at a European level or, indeed, a British level. It is for every country in Europe to play a role. Within our own parliamentary system, we need to be part of that process that pushes down on regulation. We try to remove barriers to trade wherever we find them. The history of post-war Britain is that where we remove these barriers, we increase growth and employment prospects for all.

Baroness Falkner of Margravine: My Lords, while the time may not be nigh to recall that the United Kingdom has obligations under the "responsibility to protect" norm and under the genocide convention in terms of Syria, will the Minister reflect on those responsibilities and tell us whether in the interim, for the time being, now, the UK Government will consider on their own or as a coalition of the willing doing just three things: cutting diplomatic ties with Syria; banning its commercial flights landing at our airports and, in a coalition of the willing, at other European airports; and naming the 100 or so members of the Syrian regime as subjects for future indictments at the International Criminal Court?

Lord Strathclyde: My Lords, my noble friend encourages us to act unilaterally on the list of subjects that she offered. I am aware that we are moving forward on some of them, perhaps more tentatively than my noble friend would like. On others, we are not doing so. Perhaps I can check the situation when I get back to my desk, and if I can offer her any more concrete examples, I shall write to her.

Lord Brooke of Sutton Mandeville: My Lords, on the previous occasion that my noble friend delivered the Prime Minister's Commons Statement on a prior

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European Council, did he notice the coincidence in the accompanying conclusions communiqué that the number of SMEs in the European Union is 23 million and that the number of unemployed in the EU is, give or take thousands, almost precisely the same number? Without expecting my noble friend to have the same UK statistics to hand, does he find it attractive that British SMEs should seek to provide one extra job each, carrying the double advantage of creating an example of hope to the rest of Europe at large and simultaneously highlighting the desirability of reducing regulations on companies with fewer than 10 people?

Lord Strathclyde: My Lords, my noble friend has a well earned reputation for finding these sorts of statistics that have passed so many others by, including me. He is right on the figure of 23 million small firms and 23 million unemployed. One each has an extra job, and that sweeps up unemployment. Of course, that is one of the reasons why, at last, many other European countries are joining us on deregulating and are accepting the case that what are called microenterprises-those that employ fewer than 10 people-are one of the basic engines for growth and employment. I am very grateful to my noble friend for pointing that out.

Lord Kerr of Kinlochard: I thank the noble Lord for repeating the Statement, and I agree with him about the importance of deregulation. I think it was in 1988 that I first wrote in one of these post-European Council prime ministerial Statements the sentence on deregulation. For the first time, we got a specific commitment. I am a little cynical about these European Councils. Of course, I think it is a wonderful idea that they should have talked about growth and the single market, but if you read the conclusions as avidly as my noble friend Lord Williamson, you discover that there is a sort of shopping list containing all the proposals that anybody ever had, including all those the Commission has had. For example, when we agreed the conclusions we appear to have agreed that work should be carried forward on the financial transactions tax, which seems to me to be one of the silliest proposals on the table now. I cannot think why we do not say, "Let's just stop it", because we can. It is on the legal basis of unanimity, and we can say that we are not going to agree. I think the conclusions are interesting, and it is good that the right subjects are being discussed, but they are a little bit of a ragbag.

I want to ask the Leader a completely different question. It is not about why we did not sign up to the treaty of 25, although the Statement is possibly a little suggestio falsi eye on that, in that it points out that the obligations apply only to the eurozone countries but does not point out that the Poles, the Swedes and six other member states thought it worth being in the room, at least, and are not committed to the obligations. I want to ask about Kosovo. I am sure the Leader is a great expert on Kosovo. I am not, but I see that the Statement speaks of a,

Have all member states of the European Union recognised Kosovo? If they have not yet recognised Kosovo, how will this process work? Why do those who have not yet recognised Kosovo resist the independence of Kosovo?

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Could it be because they do not like secession movements, for example, in their own countries? Is this a point that the noble Lord will draw to the attention of his countrymen and mine?

Lord Strathclyde: My Lords, the noble Lord always speaks here with the voice of experience and knowledge, not least as an author of EU conclusions. I think that he said, in this rather empty House, that he is just a little bit cynical about these conclusions. It is easy to become cynical when you read these conclusions and you see the same words and phrases coming up again. I shall resist the temptation to join the Prime Minister in saying that this is a new dawn. However, the Prime Minister is very keen that when the EU says it is going to do something, it should do so. That is why he has very much been at the vanguard of making the arguments that he has, and I know that he will hold the Commission to account over the months and years ahead. Incidentally, I agree with the noble Lord about being a little bit cynical; I agree with him about the financial transaction tax. We are doing well today.

What about Kosovo? The noble Lord made a point that will be endlessly discussed over the next few years vis-à-vis the situation within the United Kingdom. I have not got an answer as to whether all the countries of the EU have recognised Kosovo. At the moment we are seeking to encourage both Serbia and Kosovo to maintain their constructive approach to further dialogue. This is crucial to the EU futures of both Serbia and Kosovo, and to stability in the region and improving the lives of its people.

One thing that came out, of course, was that the General Affairs Council gave impetus to Kosovo's EU future this week-but I do not think that was necessarily the point the noble Lord was making, which was infinitely more subtle and will require a little bit more homework from my point of view. However, I am sure that other parts of the EU seeking to secede from their mother countries will want to see not only what is developing in Kosovo but in other parts of the EU as well.

Lord Marlesford: My Lords, can my noble friend the Leader expand a little on paragraph 26 of the Council conclusions on contributions to the IMF funds? I think I am right in saying that the G20 agreed that the amount of funds for the IMF should be reviewed; that the review came up with the need to double them and that this doubling would cost Britain about £10 billion, but that this £10 billion does not count as part of public spending because it is merely a guarantee rather than a cash payment.

Am I right in thinking that HMG will be favourably disposed to playing their part-the part I have just described-in the increase in the IMF funds, assuming that 70 per cent minimum collaboration is achieved, but that if there was a special fund to rescue the eurozone by producing funds through the IMF, as is slightly referred to in paragraph 26, Britain would not contribute to that?

Lord Strathclyde: My Lords, my noble friend knows that we are a founding member of the IMF and we are very much supporters of a well funded IMF. It is one

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of the most creditworthy institutions in the world, which can draw on resources from all its 187 members to fulfil its role. There are no firm proposals on the table yet. However, I can confirm to my noble friend that we have been clear, consistently, and will continue to be clear that the IMF cannot lend money to support a currency.

8.22 pm

Sitting suspended.

Legal Aid, Sentencing and Punishment of Offenders Bill

Report (1st Day) (Continued)

8.40 pm

Amendment 7

Moved by Lord Beecham

7: After Clause 6, insert the following new Clause-

"Expert evidence

The Lord Chancellor must review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved following the commencement of this Part."

Lord Beecham: My Lords, as your Lordships will be aware, the Lord Chancellor hails from Nottingham. He adopts the robust approach to justice that the legendary sheriff of that place is assumed to have held. Indeed, he almost embodies in himself a spiritual descent from the sheriff of Nottingham judging by some of his more recent observations, including today's, in which he seemed to imply that concerns about the Bill were motivated by concerns for lawyers' incomes. Recently, in an interview, he said that there are far too many experts.

As I said in Committee when we were discussing this issue, we are not concerned to protect the interests or incomes of lawyers or experts. We are concerned about the position of organisations, such as law centres and the like, which the Government assume will be able to shoulder a substantial part of the burden that will be shed from the legal aid system-but that is another issue. Our objective is to preserve access to justice and to ensure that the parties and the courts have the assistance that experts can bring to bear on the matters which have to be adjudicated.

This amendment seeks only to create a duty on the Government-the Lord Chancellor-to review the accessibility and access to expert assistance and to ensure the maintenance of both. It does not prescribe a method by which this should be achieved. There could be a variety of ways in which the objectives can be met. There might, for example, be a system of approving panels of experts for particular areas of law and for dealing with their remuneration in a rather more structured way than is presently the case. But that is not a matter which the amendment seeks to prescribe in any detail.

Expert witnesses are relevant across many types of case. The amendment refers to the need to preserve the expert capacity in relation to Part 1, which is a matter that we will debate at some length on Wednesday. It

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remains to be seen what areas of law will remain in scope and what will not. Among the areas that might be brought into scope are elements of personal injury law and clinical negligence, and some matters of contract and the like, in which expert evidence can be very important.

Perhaps the most clear example, which will certainly arise, is in relation to evidence in family situations. There are many cases in which expert evidence can be extremely important in the context of private family law. Examples include false allegations of child sexual abuse. In one particular case a child psychiatrist, having examined the situation, stated that a child who was allegedly abused would in fact have no memory of the time when the abuse was alleged to have occurred and thus was able to demonstrate that the child had been influenced by a foster carer.

8.45 pm

There was a case where a mother was assessed to see if she had sufficient mental capacity to participate in proceedings about her child, having suffered a non-accidental injury. After extensive investigation the expert was able to demonstrate that she had not deliberately perpetrated something but was in herself a vulnerable woman struggling to cope with considerable cognitive difficulties. In another case there was an allegation of incest between a father and daughter. As a result of the expert's evidence, it was clear that the allegation was in fact true. There was a case of a child on whom it could be demonstrated, after having been examined by an independent plastic surgeon, that burns had been deliberately inflicted. I could cite many other cases of that kind. Without the presence of expert evidence, these cases would not have been concluded satisfactorily.

The question is this: to what extent can the Government ensure that expert evidence will remain available? The problem is that it is under threat. The Consortium of Expert Witnesses to the Family Courts, with a membership of some 500, reports that on the most recent evidence, only 7.5 per cent of its members in London would be prepared to work at the lower rates that are now being offered. That does not apply only to individuals who practise on their own account. Specialist expert witnesses who are employed by NHS trusts find it impossible to work and provide evidence at the rates currently being offered. For example, the Tavistock and Portman trust has written to the consortium of expert witnesses to say that the hospital could not provide the services of an expert witness at the permitted rate, which is £90 an hour. It says that £90 "may be a rate that a doctor working on a private basis would be willing to work at. We are required to pay a medical consultant at the nationally agreed rates, to pay national insurance and pension contributions, to provide admin support, office accommodation, clinical governance and a number of other functions which push the cost up to significantly more".

The Great Ormond Street Hospital, which runs a court service, has said that its costs come to £150 an hour so it could not accept £90 an hour to deploy its consultants. The Cambridge and Peterborough NHS Foundation Trust shows that even at the higher rates-I repeat what I said in Committee, which is that it is

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paradoxical that higher rates are apparently being offered to consultants outside London rather than within London at the moment-it is unable to cover its costs and that, "It is very unlikely that our trust management would allow us to maintain this position for very long as all of our team's work is conducted as part of the clinical services provided by the Trust".

I have received an open letter from a private organisation, Family Risk Assessment Ltd-I do not know whether other noble Lords have had it-illustrating the kind of problems being faced because of the new fees that have been introduced in advance of the Bill. The Bill has not created the problem, but it will have to be dealt with under the Bill's provisions in due course. The letter states that regional directors in various parts of the country have been authorising a usual hourly fee rate of £100. The Cardiff office of the Legal Services Commission has reduced that to £63 an hour by, as it were, reclassifying the expert witness as a "risk assessment expert", whatever that is supposed to mean, when their expertise is in dealing with perpetrators of domestic violence-which we were discussing only a few hours ago-and child sexual abuse. The director of the office in question decided that the expert did not need 30 hours of professional time to undertake an assessment of parents' risk and treatability but only 16 hours-which is quite an arbitrary selection of a timetable. In another case, an expert was required to visit parents in Lincolnshire, West Yorkshire and Northumberland to interview them for his court report. The fee rate was approved, but the relevant office refused to approve travel and hotel expenses. Clearly, it will be impossible for the expert to carry on at that level.

This situation has arisen now, but how under the Bill can the Government ensure that expert evidence will be available in cases where it is clearly of value both to the parties and to the courts? In Committee, the noble Lord, Lord McNally, rather took the view that it was not part of the Government's job to ensure that expert evidence was available. Given the sensitive nature of the situation in relation to family law, that would be an abdication of responsibility. It is surely important, in the interests of both the parties and the judicial process, that efforts be made to ensure that expert evidence is available at all times. Of course, it would still be available to parties who could afford to pay, leading potentially to a two-tier system. If you have the money, you can employ an expert but, if you have not, it seems increasingly unlikely on the basis of the current arrangements that the cost of such expertise will be covered within the provisions of the Bill.

There are ways of reducing the cost of expert evidence. The consortium made a series of suggestions about how that might be achieved, including the appointment of a single expert in cases, a reduced number of questions to be put, a reduction in the number of papers to be read, better timetabling and a better payment system. Direct contracts with what is now Legal Services Commission would presumably be with the director once the Bill is implemented. All those ideas were put forward in two meetings with the department, but nothing has emerged from it.

It was interesting earlier today to hear the noble Lord, Lord McNally, refer to the Government procuring services. We are not suggesting that the Government

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should procure expert witness evidence but that they should facilitate it when it is necessary and desirable. In these circumstances, I hope that the Government will consider their abdication of responsibility for facilitating the provision of expert evidence of the right kind and at a reasonable cost to the taxpayer and the system. Accordingly, I beg to move.

The Earl of Listowel: My Lords, I support the noble Lord, Lord Beecham-my name is attached to the amendment-and declare my interest as a trustee of the Michael Sieff Foundation, a child welfare organisation.

I am concerned that the quality of expert witness reports is already variable and that the cuts that Her Majesty's Government have made in payments to expert witnesses might reinforce that variability. I am particularly concerned that family courts, as they make judgments to remove children from their families, should be as well advised as possible. The noble Lord, Lord Beecham, highlighted the importance of that in the cases that he described.

I begin by thanking the Minister, the noble Lord, Lord McNally, for his encouraging response in a debate on this matter tabled by the noble Lord, Lord Bach, a couple of months ago. There is concern at the way in which the current remuneration for expert witnesses is managed through the Legal Services Commission. The noble Lord, Lord Beecham, referred to that. It was encouraging to hear the noble Lord, Lord McNally, say at that time that consideration was being given to how to meet this concern. It was also good to read later in the Family Justice Review final report that it recommended that the remuneration of expert witnesses should be moved elsewhere. I hope that the Minister may have more encouraging news on this tonight, or perhaps he can write to me.

The Family Justice Review report found that:

"Experts are too often not available in a timely way, and the quality of their work is variable. The Family Justice Service should take responsibility and work with the Department of Health and others as necessary to improve the quality and supply of expert witness services".

It continued:

"A recent Family Justice Council report examined a sample of expert psychological reports. It identified serious issues with their quality and the qualifications of those carrying them out. Further studies of this type are needed".

There is a real problem with the consistency and quality of expert reports. Her Majesty's Government are right to be concerned at the cost of expert witnesses. Judges whom I have spoken to and the Family Justice Review also found that far too many reports were commissioned and that the commissioning of reports and waiting for their completion contributed significantly to the appalling delays that too many children experience as their family cases progress through the courts. I agree absolutely with the Government's concern.

Judges and magistrates should commission far fewer reports. They often lack confidence in these complex matters. The improved continual professional development of judges and magistrates recommended by the Family Justice Review should help to ameliorate the situation. Reducing the number of reports rather than continuing to make ever deeper cuts in the remuneration of expert witnesses seems likely to provide the best outcomes all

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round in the medium term. I worry that, if they are not adequately remunerated, the best experts will leave this work, and that would be to the great detriment of children in the courts.

The Family Justice Review recommended something along the lines of this amendment. It stated:

"There is discontent over the way experts are remunerated. The Family Justice Service should review the mechanisms available to remunerate expert witnesses, and should in due course reconsider whether experts could be paid directly".

The review called for what is in this amendment-a mechanism to monitor and review payments of expert witnesses. It commented on the concern about the cuts in payment of these expert witnesses. It stated:

"It is too early to conclude that the recent 10% reduction in expert witness rates will have an effect on the supply of experts, but the government should monitor this".

That is very much in the vein of the noble Lord's amendment.

The noble Lord highlighted that in London there has been an even sharper cut in the remuneration of expert witnesses. Certainly, the expert witnesses whom I have spoken to-and I do not think that they are grinding their own axes-often feel shabbily treated at being paid so little for bringing the benefit of their experience to these important matters. I look forward to the Minister's response. I hope that he can offer some comfort on this issue.

9 pm

Baroness Howarth of Breckland: My Lords, I encourage the Minister to accept the amendment. I do not think for one moment that it cuts across the Government's own policies or-as the noble Lord, Lord McNally, continually tells us-deficit issues. Looking at this might improve those deficit issues. If we do not have good expert witnesses, the consequences could be very high costs in some cases.

I have to declare an interest as the vice-chair of the Lucy Faithfull Foundation. Lady Faithfull was of course an eminent Conservative in the House of Lords. She developed the foundation to work with abusers, and the foundation continues that work. One of the things that we do is make assessments in very complex cases so as to make recommendations to the courts on whether some individuals are safe to remain with their families. It is absolutely crucial that these experts are maintained. However, at £63 an hour, the foundation has to subsidise that work at the moment. We cannot do that for long. I use that as an example of one of many organisations that find themselves unable to produce these experts.

I also declare an interest as having been the chair and vice-chair of CAFCASS for some eight years. I absolutely agree that there are too many expert witnesses. Children's cases have been held up in court over the years because reports have been commissioned by judges and have had numbers of witnesses. Many of these have been commissioned by people who, as the noble Lord, Lord Beecham, said, can afford to commission the reports themselves. That is a difficulty. We have a serious administrative muddle. The amendment of the noble Lord, Lord Beecham, gives the Government the opportunity to review and sort this out.

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No one is saying that we want to maintain the high level of expert witnesses in the court. We want to ensure that, where expert witnesses are needed, they are available. If they are not available, that would be a really serious miscarriage of justice for children. Mistakes will be made and children will be put in danger. It is quality not quantity that really matters on this issue. If you talk to judges, social workers who work in the courts, or expert lawyers, they will always tell you that this will be the consequence.

My only other point is that the assessments being made by the Legal Services Commission are usually based on some sort of broad criteria that have little to do with expertise but have to do with qualification. If you are a poor social worker, you come very much at the bottom of the pile in terms of what you are worth, whatever your extra qualification might be. Lucy Faithfull Foundation social workers are experts in their field-psychologists and psychiatrists do not come near them, as anyone will tell you. Yet, in making their assessments, they are still paid at this sort of level. I encourage the Government to accept the amendment, not because it will mean that every expert is preserved but because it gives an opportunity to put the system on to a safe footing.

Baroness Butler-Sloss: My Lords, this amendment is a timely reminder of a potential major problem which already exists but which will be much exacerbated in future. I have considerable, sometimes very uncomfortable, personal experience of large numbers of experts in the courts before me, so I should like to make three specific points. The first is on quality.

Quality, as the Norgrove report said, is variable, and I can tell you that it is variable. There are experts who are over-enthusiasts. There were two extreme examples, of brittle bones and salt, which reverberated about the medical consultant profession. The trouble is that they were not the only two. Other experts are giving evidence because they happen to have a line.

When I was president of the Family Division, I had very useful discussions with the Chief Medical Officer about how we could identify appropriate people who one might call middle of the road. They were not at one or the other end of the continuum; they were not people who said, "Nobody ever injures a baby". I once had 13 doctors giving evidence in a shaken baby case, of which there probably needed to be about five. This was absolutely unnecessary. Half of those experts were giving evidence from a preconceived notion rather than from the evidence that they actually had, and it was extremely difficult to get them to do something sensible. It was an appalling case. It was not the only one-it was just the worst that I remember.

Quality is a real point. It is not the numbers but the people who can do it that matter. The Chief Medical Officer, Sir Liam Donaldson, and I really struggled to see how we could identify for the benefit of the judiciary and the lawyers the doctors who would be middle of the road. It is unfinished business and, particularly in a time of financial stringency, it becomes all the more important. So quality is really very important.

Secondly, it is a problem of numbers-there are far too many. That ought to be dealt with in directions

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hearings, but they quite often get appointed before the case ever gets to the judge or the justices. Something must be done about numbers.

The third point is fees. There is no shortage of very distinguished doctors, particularly in the London area but right round the country, who will not put their heads above the parapet because they do not want to expend the time and trouble on going to court. On the fees that are now suggested-and I heard the noble Lord, Lord Beecham, talking about £90-I have heard the figure of £63 mentioned in the endless e-mails that I have had, as the noble Baroness, Lady Howarth, was saying. Quite simply, if you cannot get the best experts now, what on earth is going to happen to the welfare of these very high-risk children if they do not have the doctors to help the judge or magistrates to decide whether they can safely go home or will for the rest of their lives be denied the real natural family? It is the most appalling decision. Shaken babies are an example. There is still no agreement on whether having hematomas on the outskirts of the brain within the skull or problems behind the retina is or is not an indication of a child having been shaken rather than suffering a natural trauma. How on earth does a judge try that-and these are High Court judges-if they do not have some help? What they need is good help; they need other people who will turn up and give sensible advice to the courts.

Social workers need more support. They are not having their evidence taken sufficiently seriously, and there is no shortage of cases where it would not be necessary to have several doctors if the sensible social workers' advice was taken by the courts. Too many local authorities are pulling their social workers out of a case after six months. In a case that takes two years, there may be four social workers in charge, and the result is that no social worker is really on top of a case. If something could be done about that, you would need fewer doctors.

The amendment deals with the review and is a timely reminder of the real need to have a look at this and involve the Chief Medical Officer-if I may respectfully suggest it-to see what could be done to get the right doctors in the right place, and not too many of them.

Lord Faulks: We have heard a great deal, and very helpfully, about the role of experts in family proceedings. I defer to those with much greater knowledge than I have about the various inadequacies in the arrangements that exist there. But this amendment is not, in fact, peculiar to family experts but covers the whole range of experts that assist the court.

Although all is not perfect in the litigation system, it is worth recording that considerable steps have been taken by the courts in the approach to expert evidence, particularly the various changes brought about by the noble and learned Lord, Lord Woolf, that have resulted in the timely exchange of reports, experts' meetings and even the exciting developments known as "hot-tubbing", which your Lordships may not be familiar with, involving experts in court at the same time and exchanging views in order to provide a synthesis for the judge in an effective way.

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So, the courts themselves are providing a great deal of control over the way that expert evidence is given. The judges and the consumers of experts are in a position to judge the quality of the product, which itself provides a certain discipline that is relevant in deciding which experts are retained and how much use they are. Those of us who practise in the courts are familiar with judges expressing the view that there is no need for expert evidence on this or that case, which helps considerably.

Early directions, timely interventions by judges and the proper application of expertise by the lawyers can result in the provision of expert evidence being satisfactory. The only caveat that I would give from my experience with experts' evidence, which relates essentially to professional negligence, is that in legal aid cases there is a continuing concern, just as there is in the context of family proceedings, that the rates for expert witnesses is so low that the best experts may not be available.

Subject to that, I am slightly concerned that this is rather outside the province of the Lord Chancellor in terms of accessibility and the quality of expert advice. The courts are making progress and will continue to do so. Nevertheless, I defer to what has been said about the family courts by the noble and learned Baroness, Lady Butler-Sloss.

Lord Thomas of Gresford: My Lords, I would like to illustrate the usefulness of experts. This came from a case that I did three or four years ago. There had been family proceedings in relation to a little child of 11 months old who was found dead but with no visible injury. The case for the adoption of other children took about three weeks, with something like three experts on both sides. As a result, the judge held that the father was culpable but was not going to say that he had actually caused the injuries that the child had sustained. Shaken baby syndrome was alleged, but I discovered that there was a huge divide between experts on that issue.

I advised the instruction of a biomechanical expert and the Legal Services Commission found one from Detroit, who had gained his expertise in car accidents. He was able to manufacture a doll that was of the same size and weight as the 11 month-old child. He demonstrated that, as the child was at the age of feeling around the furniture and pulling himself up on to his legs, not even yet climbing on the sofa, if the child fell over, his back hit the ground and his head followed, that would generate sufficient force to cause precisely the injuries that he had sustained. There had been no history of any previous child abuse; there were no marks, the skull was intact and nothing was broken. As a result of that evidence, the prosecution dropped the murder case that it had brought against the father following the judge's previous decisions.

That indicates how an expert can make all the difference in a case like that, but expensively. It is to the credit of the Legal Services Commission that it was prepared to fund a report like that which ultimately led to a proper conclusion to the case, but one has to think of all the experts who had been involved in the argument about shaken baby syndrome before the judge. It is vital that experts are properly instructed

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and funded when they are required but I am sure that there are times when far too many experts are employed, and I accept what the noble Earl, Lord Listowel, has said previously on that point.

9.15 pm

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, we welcome this opportunity to consider the undoubted contribution that experts make by giving evidence in our courts. Some examples have been given in the course of this debate. Before I address specific points, let me say that our basic position is that the amendment moved by the noble Lord, Lord Beecham, is inappropriate and possibly unworkable. It seeks to impose on the Lord Chancellor a duty to review the quality and accessibility of expert evidence.

By definition, expert witnesses are highly qualified. They are experienced professionals in specific technical fields. In respect of the quality of their evidence, experts are subject to the standards required by their respective professional membership bodies. From a regulatory perspective, the relationship between a professional body and an individual expert is not one on which the Lord Chancellor could or should encroach.

It is not within the Lord Chancellor's remit to assess and determine the quality of the advice provided by any given expert witness, nor should it be. We have heard in contributions to the debate not only that there are far too many experts in some cases but that they can sometimes be of variable quality. It is very invidious to ask that the Lord Chancellor should in some way be the judge of that. A huge range of expert advice is delivered in civil cases. More than 50 types of expert are covered by the current fee scheme for funding advice by experts. I agree with the view expressed by my noble friend Lord Faulks, who said that these matters are very much outwith the province of the Lord Chancellor.

The financial implications of creating a monitoring and evaluation framework, as well as an independent quality standard, that covers all these various disciplines, and the administrative resource required to make such a system work, mean that it really is not feasible. Irrespective of the financial implications, as my noble friend Lord McNally indicated when this matter was debated in Committee, we do not see how such a system could be viable. As was brought home very clearly by the contribution of the noble and learned Baroness, Lady Butler-Sloss, disputes over the accuracy and quality of expert evidence can themselves be the subject of extensive dispute and litigation. The examples that she gave, from her vast experience, of brittle bone injuries and shaken baby cases showed that you sometimes get extremes of expert evidence. I am not sure how one could put the Lord Chancellor in the position of having to make a judgment on its quality. He is not the appropriate arbiter of that kind of expert evidence. Equally, to impose the kind of duty anticipated by this amendment ignores the practical realities of expert provision. By definition, they are experts in their fields and can sometimes be relatively few in number. Their geographical distribution is bound to vary over time. With the best will in the world, I do not see how the Lord Chancellor could or should control or influence that distribution to ensure accessibility.

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