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House of Lords

Monday, 23 April 2012.

2.30 pm

Prayers-read by the Lord Bishop of Bath and Wells.

Deaths of Members


2.36 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the deaths of the noble Lord, Lord Brett, on 29 March and of the noble Lord, Lord Ashley of Stoke, on 20 April. On behalf of the House, I extend our deepest condolences to the families and friends of the noble Lords.

Finance: Equity Markets


2.37 pm

Asked By Viscount Hanworth

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, the Kay review's interim report, published in February, presented a discussion on a wide range of issues highlighted by respondents to the review's call for evidence. It did not include any firm conclusions or recommendations. We expect Professor Kay to make the recommendations in his final report in the summer and it would not be appropriate for the Government to prejudice Professor Kay's findings ahead of the final report.

Viscount Hanworth: I am surprised by the Minister's appraisal of the Kay report. However, will she concede that the rules of corporate government in the UK are in need of drastic revision? Does she not recognise the virtue of restricting the voting rights to shareholders who have long-term interests in companies in which they have invested, and is it not clear to her that the advisory role of shareholders on remuneration gives them insufficient powers to constrain the exorbitant executive awards that we have seen in recent times?

Baroness Wilcox: My Lords, as the noble Viscount will know, the review forms a key part of the action taken following the department's A Long-Term Focus for Corporate Britain: A Call for Evidence, which was published in October 2010. We are exploring the issues of economic short-termism in the UK alongside executive pay and narrative reporting. Of course we are concerned. We have put forward this independent investigation by Professor Kay so that the very points that the noble Lord has mentioned will be addressed.

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Lord Myners: My Lords, on 3 November in the other place, the Leader of the House, the right honourable Sir George Young, said that the Government were considering methods by which shareholders could become members of board remuneration committees. In this House on 30 January, the noble Baroness said that she would welcome employee representatives on board committees. Do those continue to be the Government's positions and, if so, when will we see some action?

Baroness Wilcox: On the Government's view on shareholder/worker representation on company boards and committees, we decided not to include such proposals in the packet of measures for greater transparency. However, Professor Kay's independent report will inform all the Government's judgments from this point.

Lord Razzall: My Lords, although I totally respect the view of the noble Baroness on premature discussion of the Kay report, does she not agree-a point with which I am sure the previous noble Lord would agree-that if markets are to take a longer-term view of investments, the fund management industry needs to change its method of remuneration so that fund managers are not rewarded by the short-term performance of the companies in which they invest?

Baroness Wilcox: My noble friend is right. We are looking at how the long-term proposals can be best served. Short-termism can be very advantageous, but it can also be dangerous in the long term, and we are only too delighted to support him in his view.

Lord Peston: My Lords-

Lord Naseby: My Lords-

Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Peston, will realise that there have already been two opening questions from the Labour Benches. It is now only fair that we go to the Conservatives.

Lord Naseby: My Lords, does my noble friend not recognise-I am sure that she does-that in times of low interest rates investors look for short-term and long-term reports, and that they therefore as a whole look forward to the report from Professor Kay and recognise that very little was done by the previous Government to address this issue?

Baroness Wilcox: My noble friend puts it extremely well. Of course short-termism and long-term planning go together. These are difficult times. We need to do the very best that we can. It is worth remembering that the United Kingdom has a world-leading corporate governance and company law regime. The World Bank rates the United Kingdom as the best place in Europe and the fifth best in the world for doing business. It is vital that the UK continues to be seen as world-leading in corporate governance.

Lord Peston: I did not give way because I was under the impression that the coalition was still part of the Government. Whatever the state of play is on that side of the House, is not the best performing economy in

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Europe Germany, to take an obvious example? Short-termism is frowned upon in Germany, where the shareholders are committed to the firms in which they hold shares in the longer term, as are the workers. We advised the Germans immediately after we won the Second World War. They ended up rich and we ended up a comparative economic disaster. Is it not time the Government stopped holding back from taking a view on this and actually started, as my noble friend Lord Myners said, to do something?

Baroness Wilcox: I am interested to hear the noble Lord's question. In the more than a decade in which his party was in power, it did absolutely nothing to advance from the position after the Second World War that he quotes.

The Clerk of the Parliaments: Baroness-

Lord Young of Norwood Green: Either I was too slow or someone else was too hasty. I am advised that the Kay report does not address the question of employee shareholders. Does that mean that the Government will reconsider their previous statements on employee shareholders?

Baroness Wilcox: As I have said and as I am happy to repeat, this is an independent report by Professor Kay. He is able to say what he likes on the whole of this subject and we look forward to what he recommends.

The Earl of Erroll: The challenge is how one incentivises people for longer-term thinking. The trouble is that if the quickest way of turning a fast profit in order to maximise one's share options is to axe longer-term research and development, there will be no benefit to Britain in the longer term. One sees that happening too often. There are two sorts of shareholders and unfortunately the bigger lot are in there for the short term as well for investment purposes.

Baroness Wilcox: The noble Earl is quite right. We sell ourselves short if do not invest in the future and do not look at R&D. It is an important part of anyone's balance sheets, certainly in the FTSE 100, and I am happy to agree with him.

Social Tourism


2.43 pm

Asked by Baroness Rendell of Babergh

Baroness Rawlings: My Lords, the Government support the work carried out by organisations such as the Family Holiday Association which provides holidays for families who would not normally be able to afford a break away from home, but we do not hold the view that holidays are a right. We do, however, keep an

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open mind about future tourism strategies. Our current priority is to encourage the potential that tourism gives to help the growth of our economy.

Baroness Rendell of Babergh: My Lords, I thank the Minister for her Answer. Is she aware that there are more than 2 million families in the United Kingdom-about 7 million people-who never enjoy a holiday and who will probably never have one in their whole lives? Is she also aware that while social tourism has never had official recognition or been integrated into tourism policy in this country, in the European Union, several countries integrate it-notably France and Spain, but also Portugal, Greece, Germany and Italy.

Baroness Rawlings: My Lords, the noble Baroness, Lady Rendell, asked a similar Question in February 2010. I know she is a redoubtable campaigner on social tourism and is patron of the Family Holiday Association. The Answer, which was very succinct, said that,

and we are aware of the 2 million who never have holidays. It continued:

"By providing support for those who need it most, we are committed to a society where everyone can engage in leisure activities, including holidays, if they wish. A good example is our policy of free admission to many national museums and galleries".-[Official Report, 8/2/10; col. 478.]

The noble Baroness asked about Europe. The Governments of some European countries, notably France and Belgium, take an interventionist approach to social tourism by directly funding or subsidising people to take holidays. Such countries take the view that holidays are a right.

Baroness Massey of Darwen: My Lords, would the Government consider setting up a working group to consider the social and economic benefits of social tourism?

Baroness Rawlings: I know that the noble Baroness, Lady Massey, was on the all-party group on social tourism. The Government were looking at this, but have not pursued it further. We are keeping an open mind and are aware of the European Calypso programme.

Lord Lee of Trafford: My Lords, I declare an interest as chairman of the Association of Leading Visitor Attractions and of the all-party tourism group. The proposed tax changes on air passenger duty, philanthropic giving to our great museums and galleries, restoration work for our major cathedrals, churches and historic properties and on static caravans all potentially have a negative impact on our very important tourism industry. Given that DCMS is a sponsoring ministry for tourism, could my noble friend tell the House whether it had any discussions before the implementation of the ideas of these tax changes?

Baroness Rawlings: The noble Lord asks a very relevant question. Regarding the tax changes, they are still very much in discussion. We are well aware that

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they have an effect on tourism and on many of the museums and galleries and all the charities that are involved with this. This is partly covered by the Treasury, but DCMS is very much aware of all this.

Lord Foulkes of Cumnock: When 2 million people do not get a holiday at all and those who are in the top tax bracket are now getting £45,000 a year extra and will be able to go on more skiing holidays and Mediterranean holidays, how can we all be in it together? Will the noble Baroness not listen for once to what is being said by knowledgeable people in this House, take it away and do something about it?

Baroness Rawlings: Social tourism is for the less well off. The Government are involved with the Family Fund, a registered charity covering the whole of the UK and mainly funded by the national Governments of England, Northern Ireland, Scotland and Wales. The funding from all four Governments amounted to £35 million, and included £27 million from England.

The Clerk of the Parliaments: Lord Berkeley.

Baroness Jones of Whitchurch: I am sorry, we are being a bit slow on this side. Does the Minister accept the educational benefits of children and families travelling outside their own confined communities? Does she recognise the role that that might play in raising the aspirations of young people? Will she agree to talk to her ministerial colleagues in the Department for Education about the contribution that they can play in facilitating holidays for those too poor to afford a family break?

Baroness Rawlings: The noble Baroness raises a very good point. Such travel does raise the aspirations of children. Through our changes to the education and welfare system, we hope to overcome barriers to social mobility by giving families the power and resources to be able to go on holiday if they choose.

Immigration: Eurostar


2.50 pm

Asked By Lord Berkeley

The Minister of State, Home Office (Lord Henley): My Lords, there has been no suspension of regular Eurostar services between Brussels and London which also stop at Lille. Following misuse of Brussels to Lille tickets by those seeking to avoid UK border checks, Eurostar has restricted the sale of tickets to casual travellers to three trains a day. Only these services are subject to routine immigration checks at St Pancras. We seek to keep delays to a minimum.

Lord Berkeley: I am grateful to the noble Lord for his response but is he aware that the consequence of all this is that passengers coming into the UK from

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Brussels, Lille, Disneyland Paris and anywhere except Paris have to queue to get through immigration for between half an hour and one hour at St Pancras? I have queued twice and I saw lots of families travelling from Disneyland Paris, of whom probably 99 per cent were British, having to queue for an hour, which is rather hard on them. Why cannot the immigration service process passports on the train after the passengers have left Lille, as it used to?

Lord Henley: My Lords, as the noble Lord knows, the ideal would be to process the passports at Brussels, which we try to do for seven of the 10 or 11 trains a day that go from there, stopping at Lille, that do not allow people to buy casual tickets. The noble Lord knows of the so-called Lille loophole, which we want to plug. As he has said, one solution would be to have staff on the train. We believe that that would be unnecessarily expensive and would not be cost-effective. We are talking about only three trains a day being affected by the Lille loophole. We think that we can continue to negotiate with the Brussels authorities to get them to allow us to do all the checks on all the trains, including the three on which casual tickets are allowed to be bought, at Brussels as would be appropriate.

Baroness Hamwee: My Lords, has the Minister been able to visit British Transport Police operations at St Pancras to look at what happens in relation to child trafficking? In a recent debate, he indicated that he would like to do so. My noble friend Lady Doocey pointed out that a number of simple steps could be taken to protect unaccompanied children coming into this country, including checks on the identity of such children and on the people collecting them, and a dedicated space on the train. Has he been able to follow any of those up?

Lord Henley: My Lords, I have not yet been able to visit St Pancras but I certainly hope to do so. My noble friend's question is going slightly wide of the Question on the Order Paper, but it is valuable in that it points to the need not only to maintain appropriate security to provide the proper checks and safeguards for those who potentially are being child trafficked but to be able to do that in as user-friendly a manner as possible so that the complaints to which the noble Lord, Lord Berkeley, referred do not happen as well.

Baroness Goudie: Following on from my noble friend's question, just before the Recess when we had a debate on human trafficking relating to Eurostar, I asked the Minister whether the Government would look at negotiating with the Eurostar authorities and the company which runs it to have the same arrangements as we have with airlines. Airlines are fined for bringing through children and adults who are to be human trafficked. The Minister promised to look at this and we have not yet received a reply.

Lord Henley: My Lords, I will make sure that a reply comes to the noble Baroness in due course. Obviously, we continue to negotiate on these matters with Eurostar. I should point out that Eurostar is a

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private company and we cannot order it to close the so-called Lille loophole with which we are trying to deal. Certainly, we will try to get to other matters and will negotiate accordingly.

Lord Bradshaw: Will the Minister turn his mind to the situation developing as regards trains from Germany which stop at several places before going into the tunnel? The same problem that applies to Lille will apply to a lot of other stations on the continent. Better arrangements need to be made.

Lord Henley: I am very grateful to my noble friend for raising that point. I understand that the German railways are already planning this and that there might be services from late 2015, so we have some time. He is right to point to the problems because of the confines of the concourse at St Pancras and other places, and the need to make sure that we can sort this matter out in the country of origin. That is relatively easy when you are talking about Brussels, Lille and London. It is considerably harder in the case of trains coming from a number of different stations in Germany. At that point different options will have to be looked at, but we have at least three years to do so.

Lord Grenfell: My Lords, I declare an interest, having been through the tunnel over 1,500 times, getting to work here and going home again, and indeed having lived to tell the tale. The Minister said that the Government would be trying to set up a system whereby the border agency's immigration controls would be conducted in Brussels. He must be aware that this system works extremely well in Paris; it saves a lot of time and there is absolutely no delay arriving in St Pancras. I hope that he will look into this and tell us what the problem is. They are very friendly people. This morning when I came through I was asked by the immigration officer what I was planning to do with the House of Lords Reform Bill. I declined to share my views with him, in the same way that at the moment I decline to share my views with the House on that question.

Lord Henley: I commend the noble Lord on his diligence in attending this House and the frequency with which he has come through the tunnel. The system in Brussels works pretty well for most trains, in that most people go through the appropriate border security checks. The problem is that a number of people use Brussels to Lille as a commuter line rather than what it was originally designed for, a Brussels to London line. Those people are exempted from going through passport checks by the Brussels authorities and we cannot order them so to do; that is under EU rules. We therefore had to seek with Eurostar some solution to that problem, which does not arise in the case of those coming from Paris. There is similarly not a problem coming from London because, as the noble Lord knows, we do not allow people to use London to Ashford as a commuter route. It is the use of Brussels to Lille as a commuter route on that service that causes the problem.

The Clerk of the Parliaments: Lord McKenzie-

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Lord Davies of Oldham: My Lords, I am a little disturbed at the Minister's complacency that we have got three years to sort this out. After all, the Government have had two years to sort out a range of problems, and the problems are getting worse rather than better. It is a very serious concern to all of us that a service that we are all proud of, the Channel Tunnel service, may in fact prove to be less advantageous to the travelling public in future because of these difficulties over passport checks. I hear what he says about additional expense, but if the expense is not borne by the service, it is borne by the travelling passenger having to wait for hours at the receiving station, St Pancras. Can he look at this issue with some urgency and produce a solution to it?

Lord Henley: I commend the noble Lord on the urgency with which he got to his feet, along with his colleagues on the opposition Front Bench. They have obviously been well rested by their three weeks off.

We are not complacent on this issue. All I am saying is that there is a serious problem. Part of the problem relates to the design of St Pancras and getting the passport checks done there. We would therefore like to have the checks done at the point of exit. Obviously that problem is going to be made more difficult once one has trains coming in from Germany and other places. At that point, we might have to look again at having checks done on the trains. As I said-although the noble Lord has not been that speedy-we have three years to do this because we are not likely to see trains coming in from Germany until the end of 2015.

Workers' Memorial Day


2.59 pm

Asked By Lord McKenzie of Luton

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, the Government extend their sympathy to all those for whom Workers' Memorial Day is especially poignant. It is right to commemorate those killed, injured or made ill through work. The day also highlights the importance of good health and safety in the workplace. The Government continue to recognise Workers' Memorial Day and consider that families and friends of those affected, and organisations representing workers, are best placed to decide how the day should be commemorated.

Lord McKenzie of Luton: My Lords, I thank the Minister for his reply, which I take to be personally sympathetic to Workers' Memorial Day-which, as he said, is about remembering those who have been damaged by health and safety failures, and renewing the case for good health and safety provision. The Minister will have been availed of the report of Professor Löfstedt, which the Government commissioned. It states that,

Does the Minister agree with that? If he does, will he encourage the Prime Minister to refrain from such unhelpful utterances as "killing off the monster of health and safety", and to act responsibly in these matters?

Lord Freud: My Lords, we are very supportive of the report by Professor Löfstedt. He made the point in the report that legislation,

That is why we are driving through reforms designed to make the system easy to understand, easy to administer and easy to enforce.

Lord Alton of Liverpool: My Lords, does the Minister agree that one of the cruellest industrial diseases is the asbestos-related lung cancer mesothelioma, which can strike up to 40 years after exposure and has thus far claimed the lives of 30,000 workers? Is not one of the best things that the Government can do to support such workers is to respond positively to the all-party calls made in both Houses for mesothelioma victims not to have to face surrendering up to 25 per cent of their much-needed compensation to pay legal costs-compensation which they need in facing the last nine months to one year of their lives?

Lord Freud: I am spending considerable time on mesothelioma currently and I hope to sort out the real problem, which is the large number of people suffering from the illness who are getting no compensation at all because they cannot trace who was insuring them. I hope to see some real progress in this area-looking at the whole area of mesothelioma, both those who have been traced and those who are untraced-and to report back on that in the not too distant future, certainly before the summer.

Lord Forsyth of Drumlean: My Lords, when I was responsible for health and safety as a Minister I asked to see all the regulations applying to small businesses. There was a three-month delay, and when I asked why, I was told that the Health and Safety Executive would have to hire a pantechnicon to send them round. Is the Prime Minister not absolutely right to emphasise the importance of the culture of health and safety in the workplace, rather than masses of regulations that people cannot possibly be expected to absorb and comprehend?

Lord Freud: Yes, my Lords, the Prime Minister is right: legislation must be comprehensible to people if it is to be useful. That process is currently under way, and we aim to reduce the legislation by up to half by 2014. We are confident that that can be done in a way that actually enhances the effectiveness of our health and safety regime.

Baroness Turner of Camden: My Lords, I thank the Minister for his sympathetic response. However, is he not aware that there is one organisation which represents organised employees in this country that has a system

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of training and of safety representatives that is well worth considering? I am, of course, talking about the TUC. Does he not think it a good idea to have some consultation with the TUC on these matters?

Lord Freud: My Lords, I am pleased to say that alongside my colleague Chris Grayling I wrote to the general-secretary of the TUC on the matter of Workers' Memorial Day. We are in regular contact with him on a large number of matters, and this is one of them.

Lord Wigley: My Lords, on the question of mesothelioma, to which the Minister referred a moment ago, can he indicate whether the ideas which he will be working on over the coming period will require legislation? If so, why are the Government not taking advantage of the legislation that is currently going through this House?

Lord Freud: My Lords, it is possible, depending on the outcome, that we will need primary legislation on mesothelioma. However these things take time and we will have to structure any solution in consultation with the various stakeholders in order to get there. There is not time at the moment to attach any relevant legislation quite as rapidly as the noble Lord suggests.

Lord German: My Lords, Professor Löftstedt said in his report that there needs to be general community support as regards an understanding of risk. I therefore welcome the Government's establishment of the independent challenge committee which allows the public to make a challenge when they see a risk that they believe is not appropriate. Can the Minister tell us how that body will be independent given that its chair is also the chair of the HSE, and whether it will not require a wider reporting mechanism than that currently envisaged?

Lord Freud: My Lords, my noble friend is absolutely right in the sense that it is often not so much what the regulation says as the way in which it is applied and used, and often those who are most shocked by how the regulations are applied are those in the HSE. This is a really valuable element of our society which has led to our having the lowest level of fatalities from workplace accidents in Europe. It is important that we concentrate this effort on where it really does save people's lives. I think that the HSE does have an interest in making sure that that happens.

House of Lords Reform


3.08 pm

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, before formally moving the Business of the House Motion on the Order Paper, I should like to make a short business Statement about forthcoming business.

The whole House is now well aware that the Joint Committee on the draft House of Lords Reform Bill published its long-awaited report this morning. The Government are not only deeply grateful to the committee but would like to single out its chairman, the noble

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Lord, Lord Richard, for the time, effort and expertise that have gone into the preparation of this report. I know that the Deputy Prime Minister and his ministerial colleagues will be considering the report with great care before proposing a Bill to the Cabinet.

I am equally conscious that noble Lords around the House are eager to debate the report at the earliest opportunity. I have considered this with the usual channels and, although there will be plenty of opportunities to debate the report from the Joint Committee, subject to the completion of our legislative business by the end of Thursday of this week, I propose that we should start with a debate on the Joint Committee's report, led by the noble Lord, Lord Richard, on Monday of next week.

I should add that should the Queen's Speech on 9 May include a Bill to reform the composition of this House, there will be a further opportunity to debate the Government's proposals in light of the Joint Committee's report in the course of the debate on the humble Address-that is to say, in about a fortnight's time. These two imminent occasions for debate may well be followed by others over the course of the next Session, for which I know a few noble Lords may be limbering up. I hope that we will manage to complete our legislative business by Thursday so I look forward to next week's debate. In the mean time, I take the opportunity of reminding the House that copies of the Joint Committee's report are available in the Printed Paper Office and, most importantly, on the Parliament website.

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Lord the Leader for his business Statement and I welcome the fact that the Leader, with the agreement of the usual channels, is hoping to make time available for a debate on the report of the Joint Committee on the Government's draft House of Lords Reform Bill. I am sure that the debate will also cover the alternative report, which was published today. However, I am sorry that the Leader of the House has chosen not to make a fuller Statement on the Joint Committee report today.

Before the Recess, I urged the Government both to make time for a debate on further reform of your Lordships' House, which the noble Lord has done, and to recognise the fact that Members of your Lordships' House would wish today, as the House returns from a prolonged Recess, to have an initial discussion on these issues. I recognise the fact that we will have many debates on this issue in the House in the weeks and months to come.

I think that this House, and indeed many beyond the House, will find it hard to understand why all sorts of people and organisations have been debating these matters today, and yet, apart from the noble Lord's brief business Statement, this House is not afforded an opportunity today to speak further about the issue. Indeed, the Leader was on "The Daily Politics" show and in recent days we have heard many things about a revolt by Conservative MPs on the 1922 Committee. We have seen various reports of a revolt being joined first by MPs, then by parliamentary Private Secretaries-many things have been happening.

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We have been told that the Deputy Prime Minister is saying that he "won't go to war" over Lords reform and the Prime Minister spoke of the issue on the "Today" programme this morning. We have been told all this and more, but we do not have an opportunity to discuss these things today in this House. Of course, we will all need time to examine and consider the report of the Joint Committee and the alternative report of the minority group of the Joint Committee. I have read both reports and think that they are excellent and extremely important contributions to the debate on the future of your Lordships' House. I thank the noble Lord, Lord Richard, and all those involved, for their hard work and commitment.

I urge all Members of this House and people beyond to read and study both reports closely because we need to get reform right, as the noble Baroness, Lady Shephard of Northwold, said today. We on these Benches regret that there was not a more formal Statement on these issues today, but we look forward to the debate in a week's time.

Lord Laming: My Lords, I am sure that all members of the Cross-Bench group wish to pay tribute to the noble Lord, Lord Richard, and all the members of his team-the committee that did this study-and indeed to the work of all the members in producing the extremely helpful alternative report. One waits for one report and two come along. This is a subject of immense importance to the citizens of our society. We owe it to them to make sure that Parliament is as effective as possible in holding the Executive to account and in scrutinising future legislation.

I am sure that members of the Cross-Bench group, who I have not had the chance to consult on this, are grateful to the usual channels and to the Leader for his Statement because we think that the report should be considered very carefully. I am sure that the arrangements for a debate next Monday will be welcomed by Cross-Benchers.

Lord Tyler: My Lords, I ask my noble friend whether it is the intention of the usual channels to permit the rising time for the House on Monday to be rather later than usual so that we can demonstrate that we in your Lordships' House are very good at scrutiny. In doing so, perhaps I may also say how much as a member of the committee I appreciated the chairmanship of the noble Lord, Lord Richard. However, it is a very big report and if all of us who have different views, even among and within the parties, have only a few seconds to make our point on Monday I feel this would not be doing due deference or paying proper regard to the comprehensive report of the noble Lord. Therefore, can my noble friend let us please go to a later time on Monday evening. I feel sure there will be great enthusiasm in your Lordship's House to go through the night, if necessary, on this issue.

3.15 pm

Lord Grocott: My Lords, in welcoming as I certainly do the fact that the usual channels have set aside a day for this report, I ask for one further service to the House from the Leader of the House. He has already referred to the fact that there are actually two reports.

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There is an alternative view in an alternative report signed by 12 of the 25 members of the committee. If my maths is correct that means that if, you exclude the chairman, that is half of the committee-in my personal opinion, the best half of the committee. Can the Leader of the House ensure that the alternative report, as well as the full report, is made available in the Printed Paper Office to all Members? I do not think that facility is available at present.

Lord Hughes of Woodside: Can the Leader of the House confirm that the House is to prorogue on Monday?

Lord Foulkes of Cumnock: My Lords, may I just ask another question? While this is a matter of great importance, there are other matters. Will the Leader of the House confirm that it will be a full day's sitting on Monday and that the debate will be preceded by Oral Questions and that if there are any urgent matters that Members wish to raise they can raise them under the normal procedures of the House?

Lord Forsyth of Drumlean: May I ask my noble friend a question, although it may be a naive question? Given that we had a manifesto commitment to seek a consensus on House of Lords reform and given that the Joint Committee is split completely down the middle, is that not the end of the matter?

Lord West of Spithead: My Lords, on St George's day, and falling back on the line that I am very much a simple sailor, I am confused by the fact that half the committee effectively has an alternative view. I agree with some of the statements by other noble Lords that it seems to make a nonsense of this process. I am also very concerned, as I look in a simple way at next week, that there seems to be very little time in which to have a sensible debate about this issue.

Lord Strathclyde: My Lords, I am not at all surprised by any of the interventions that have been raised today. I am sorry that the noble Baroness is disappointed that there should not be a Statement. We have had the report for only a few hours and, after all, we are House that likes to have debates when we are informed. I thought that it would be better to give all noble Lords the opportunity to read the report before debating it next week.

I am at pains to suggest that next week will not be the only opportunity to discuss this report, or indeed the whole issue of reform. I am not one of those who wish to leak the contents of the Queen's Speech, so I will not pre-empt it, but if a Bill on this subject were to be announced there would be plenty of time during the course of the Motion for an humble Address to debate it further. That will be in two weeks' time. Between now and the Summer Recess, I am sure that there will be other opportunities if that is required. All that is to say that Members of the House do not need to rush to put their names down next Monday. The House will not prorogue next Monday. It will sit at the normal time for the normal business to be taken in the normal way.

As for the remarks of the noble Lord, Lord Grocott, I think that there were 26 members of the Joint Committee.

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A noble Lord: One never turned up.

Lord Strathclyde: It may be that one never turned up, but he was still a member of the committee. I am sure that the alternative report will be discussed and debated, but I am afraid that I cannot commit the Printed Paper Office to publishing it. After all, it is a privately commissioned report, not a parliamentary report. I am sure that those who commissioned and wrote it will find it very easy to disseminate it themselves. Given the authority that they possess, I would be amazed if they were not able to do so.

As for what was said by my noble friend Lord Tyler, I have not considered the rising time of the debate on the report. Of course, much will depend on how many noble Lords wish to put down their names to speak. However, I see no reason for us to rise early on that day, and perhaps we can just take a view during the course of the week depending on how many names are put down, and given the opportunity that there will be to speak later on in the month.

It is right that we should debate it. As the Convenor of the Cross Benches, the noble Lord, Lord Laming, said, this is an important matter, which people want to have debated and discussed. As for the simple sailor, and my naive friend, the noble Lord, Lord Forsyth, I understand precisely why they might think, after nine months of deliberation, that there is still division and confusion on this issue. I think the Government should be congratulated on trying to cut through this to bring forward to Parliament something with clarity and vision. Parliament will then be able to decide what it wishes to do with it.

Lord Peston: Before the noble Lord sits down, I hate to introduce a cynical comment into this very serious matter, but will it not be nothing short of a miracle if any noble Lord can think of anything original on this subject when we debate it next Monday?

Lord Wright of Richmond: For the avoidance of doubt, I am sure that the noble Lord is aware that copies of the alternative report are freely available in the Library.

Business of the House

Motion on Standing Orders

3.20 pm

Moved By Lord Strathclyde

Motion agreed.

Canterbury City Council Bill

Leeds City Council Bill

Nottingham City Council Bill

23 Apr 2012 : Column 1555

Reading Borough Council Bill

Motions to Resolve

3.21 pm

Moved By The Chairman of Committees

Canterbury City Council Bill

Leeds City Council Bill

Nottingham City Council Bill

Reading Borough Council Bill

Motions agreed, and a message was sent to the Commons.

City of London (Various Powers) Bill [HL]

City of Westminster Bill [HL]

Transport for London Bill [HL]

Motions to Resolve

3.21 pm

Moved By The Chairman of Committees

City of London (Various Powers) Bill [HL]

City of Westminster Bill [HL]

Transport for London Bill [HL]

Motions agreed, and a message was sent to the Commons.

Legal Aid, Sentencing and Punishment of Offenders Bill

Bill Main Page

Commons Reasons and Amendments

3.22 pm

Motion A

Moved by Lord McNally

1A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

The Minister of State, Ministry of Justice (Lord McNally):My Lords, today the House has the opportunity to consider the Commons reasons in response to the amendments passed by this House during its consideration of this Bill. We have engaged in complex, informed and sometimes passionate debate on a wide range of issues that are of fundamental importance. In so doing, this House has exercised its rights and responsibility as a revising and advisory Chamber. I would hope that, in turn, the Government and the House of Commons have responded attentively and constructively to the opinions of this House. In addition, my ministerial colleagues and I have had numerous meetings with individual Peers and interest groups. We have listened, and we have amended.

Before I deal with the details of Motion A, I would like to remind the House of some of the steps that we have taken to respond to its concerns and to make this a better Bill. From the start, our guiding principles have been to decide what kinds of case need public

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funding and what alternative routes are suitable for others. It is not all about cost savings, although they are clearly a vital factor; it is also about what kind of justice system we want for the future.

Successive Governments have concluded that the provision of legal aid in the current structure is too broadly drawn, and it encourages court-based litigation and the engagement of professional lawyers as a first, rather than a last, resort. With that in mind, the test that the Government have applied to amendments in both Houses is whether they strengthen or weaken the principles behind the Bill-what I have described many times as its central architecture. We have accepted amendments where they truly improve the Bill. The House has done much valuable work in correcting omissions and ensuring that the most serious cases continue to receive public funding, and I am grateful for the commitment that this House has put into the Bill.

As I have said, the Government have listened and have moved in important areas. We have accepted the arguments put forward by, among others, the noble and learned Baroness, Lady Scotland, and adopted the definition of domestic violence used by ACPO. We have widened the forms of evidence of domestic violence that will be acceptable to secure legal aid funding in private law cases, and doubled the time limit within which such evidence may be presented. We have removed the power to means-test suspects in police custody, and retained legal aid funding for cases involving human trafficking and domestic child abduction.

We have agreed that legal advice and assistance should be made available to welfare benefit appellants whose cases are heard by the Upper Tribunal, the Court of Appeal or the Supreme Court on points of law. We have committed to doing further work to see how we might provide funding for those appearing before the First-tier Tribunal whose case also turns on a point of law, and have retained legal aid for babies who are victims of clinical negligence. We have introduced further measures to put beyond doubt the extent of independence from Ministers enjoyed by the director of legal aid casework.

Many concerns have been listened to and many amendments made, but we have not been able to satisfy every demand. We have now reached the stage where the Government ask both Houses to disagree with amendments that, in our opinion, would undermine the rationale and principles underlying the Bill. The Government cannot accept amendments that use scarce resources on lower priority needs where other funding is available, where conflicts could be resolved by other means or where people can reasonably make provisions themselves. The Government have demonstrated their commitment to the not-for-profit sector, which does such invaluable work, by providing £20 million a year for the next two years, in addition to the £16.8 million we have allocated for this year. However, in a time of austerity, we must make responsible choices about spending public money. We must be rigorous in our decisions about allocating resources. We cannot rely on unrealistic thinking about alternative methods for achieving savings.

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We have rehearsed the arguments at great length and in great depth. We are about to reflect on the House of Commons' opinion of your Lordships' amendments, and I will be asking the House to agree with the reasons of the House of Commons. I hope that this House will give good weight to that opinion. As I have said, we have listened and responded to the opinions of this House, which now has a responsibility to listen to the clear and settled view of the House of Commons.

Lord Higgins: If the noble Lord will allow me, he is saying that great attention has been given to the various issues that have been raised, for example by the noble Lord, Lord Alton. Is it not the case, however, that on some of these issues there was initially no debate in the Commons at all because it was programmed, and that when the matter returned from this House to the other place the Lords amendments were also programmed-that is, guillotined-and the debate was not brought to a conclusion in the usual way?

Lord McNally: My Lords, the debates came to a conclusion in the usual way. I must say that for a parliamentarian of the noble Lord's experience, who must have carried through quite a few Bills himself on timetables and the rest-

Lord Higgins: When I was in the other place, we had a very sensible system. If the matter was being filibustered or was urgent, we had a half-day debate followed by a vote on whether there should be a guillotine. In total contrast, when I was carrying through legislation we certainly did not have the system of programming from which we are now suffering.

Lord McNally: I will leave it to the Opposition to explain fully the introductions that they made to timetabling,

Lord Cormack: Will my noble friend give way?

Lord McNally: No. Well, I will take one more from him. Carry on.

Lord Cormack: I am most grateful for that flattering giving way. I point out to my noble friend that it was indeed a Labour Government who brought in automatic timetabling, but before the coalition Government were elected Sir George Young and others gave an assurance that any Conservative Government-or presumably any Government led by Conservatives-would not have timetabling. We still have it.

3.30 pm

Lord McNally: This is an interesting side issue. Anybody who has read the debate in the other place will see that the amendments passed in this House were thoroughly discussed.

Lord Howarth of Newport: My Lords-

Lord McNally: The House is not doing itself much service by this, but do go on.

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Lord Howarth of Newport: My Lords, on the issue of parliamentary procedure, is the noble Lord really happy that the first four amendments from this place that the Commons considered had only 26 minutes allocated to them? The House of Commons was allowed fewer than five hours to debate the 11 issues on which this House defeated the Government and offered its very earnestly considered advice.

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): The Motion before the House is that we should deal with amendments that have come back from the House of Commons. If noble Lords wish to have a debate about process and procedure in the House of Commons, they can table questions and debate the issues. This is not the time for that; this is a time to deal with the amendments that we have before us.

Lord Alton of Liverpool: My Lords, before leaving that point, it was the Minister who raised the question of procedure and who said that these matters had been thoroughly dealt with in another place. The fact remains that the issue of mesothelioma, which was quite properly raised by the Minister's noble friend Lord Higgins, was not debated on Second Reading, in Committee or on Report at all in another place. Had it not been for the amendment that your Lordships passed, it would not have been debated at all in another place. To give it only one hour at that stage and for it again to be timetabled is indicative of the need to reform not this place but, in light of what we heard earlier, the other place.

Lord McNally: The four interventions, interestingly, have all come from ex-Members of the other place.

Motion A and Amendment 1 in the name of the noble Lord, Lord Pannick, described by him on Report as a purpose clause, reflect that which features in the Access to Justice Act 1999. Amendment 1 would place a duty on the Lord Chancellor to secure within the resources made available and in accordance with Part 1 of the Bill that individuals have access to legal services that effectively meet their needs.

Despite what was said in the House of Commons by the shadow Justice Secretary, the basis for the Government's opposition to this amendment has been clearly explained in this House. While I am grateful to the noble Lord for this new amendment, I am afraid that it has not addressed the issues with the original Amendment 1, and the Government oppose the new amendment on the same substantive grounds as we opposed the original construction. In addition to those issues which I will turn to in a moment, Amendment 1B would remove the duty in Clause 1(1) for the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of the Bill.

On Report I spoke at length about the technical issues with incorporating provisions of the Access to Justice Bill, where only excluded services are specified, to this Bill, where included services are specified. The Bill before us today, if enacted, will represent Parliament's clear intention as to which services are to be capable of being made available to people by way of publicly

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funded legal aid services, and therefore to meet their needs in that regard. Any benefit of such a provision akin to that in Section 4(1) of the Access to Justice Act is simply not present in the context of this Bill. Further, both amendments conflate access to justice as a constitutional principle with the provision of legal aid. Access to justice means access to the courts, and does not mean access to a publicly funded lawyer whenever one is sought.

A further duty to provide unspecified legal services must also, in part, serve to muddy the waters and create uncertainty in respect of the services which might be funded under the Bill. It was said by the noble Lord when moving his original amendment that, as a result of the qualifications in it, the amendment,

and that it,

I am afraid that we cannot agree with this analysis. By virtue of introducing a new duty on the Lord Chancellor, a potential cause of action must be created where such a duty is said to have not been met. Therefore, by definition, the Lord Chancellor must be at risk of being compelled to provide additional, and as yet unidentified, services to meet that duty or the duty would be a redundant one. This risk is heightened by the fact that both amendments refer to legal services, which are far broader than the legally aided services that the Bill is intended to provide. I acknowledge that this is the first time for the House to hear that observation. Such a scenario would entirely frustrate the Government's intention of bringing certainty and clarity to the range of services that can be funded under legal aid. The amendment also has the potential to create a great deal of unhelpful and unnecessary litigation as the boundaries of that duty are tested in the administrative court.

The Bill's purpose is clear, as are the Lord Chancellor's duties under it. Therefore, I ask that this House does not insist on its Amendment 1. The Commons has decided against it and in my opinion the amendment in lieu from the noble Lord, Lord Pannick, will elicit the same response. Therefore, I urge the noble Lord to withdraw his Motion.

Motion A1 (as an amendment to Motion A)

Moved by Lord Pannick

1B Page 1, line 5, leave out subsection (1) and insert-

"(1) The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part."

Lord Pannick:My Lords, as your Lordships have heard, the amendment that noble Lords approved on Report by a majority of 45 votes would state the purpose of legal aid: to promote access to legal services

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within the financial resources that are made available by the Lord Chancellor and subject to the other provisions in Part 1 of the Bill. The amendment had its origins in a recommendation from your Lordships' Constitution Committee, of which I am a member, and was tabled by noble Lords from all sides of the House-the noble and learned Lord, Lord Woolf, the noble Lord, Lord Hart of Chilton, who is also a member of the Constitution Committee, the noble Lord, Lord Faulks, from the government Benches and, of course, me.

The amendment echoes the wording of Section 4 of the Access to Justice Act 1999, which is the current statutory provision. It is similar to the statutory provisions that have been found in earlier legislation from 1949 onwards. The other place disagreed with this amendment after a debate that was restricted to 27 minutes-a point made by the noble Lord, Lord Higgins, a few moments ago. Those 27 minutes to which the other place was restricted concerned not just this amendment but two others approved in this House after Divisions and to which we will come. They concern the very important subjects of the independence of the director of legal aid and the mandatory telephone gateway, which we will discuss later this afternoon. All those subjects had to be dealt with in 27 minutes-hardly the thorough consideration that the Minister suggested in his opening remarks.

The Minister in the other place, Mr Jonathan Djanogly, and the Minister today have made four main points. The first, which was emphasised in the other place but has not been mentioned today, is that financial privilege was applied to the amendment. Your Lordships will know that financial privilege in the other place does not prevent your Lordships asking the other place to think again about an amendment. Financial privilege simply requires that the amendment be varied in this House from the original amendment. That is why the amendment now before this House is not exactly the same as that which was approved on Report.

I do not want to make this a debate about financial privilege but I hope I may be excused for saying that I know that many noble Lords were as surprised as I was that financial privilege was applied to Amendment 1. The original amendment made it very clear that access to legal services would come within the resources made available by the Lord Chancellor and in accordance with the rest of Part 1, and therefore that amendment had no financial implications whatever.

Your Lordships may also be interested to note that when I made these points to the authorities in the other place and I asked for a brief explanation of the reason for financial privilege being attached to this amendment, because neither I nor the others responsible for tabling this amendment could understand the point, I was told that no reasons are given for the decision on financial privilege. Again, I doubt that I am the only noble Lord who finds it very regrettable that this House should be told that financial privilege controversially applies to an amendment but noble Lords are not told why that is so.

However, that is a side-show. In any event, the amendment now before your Lordships responds to financial privilege, and it does so by making it clear

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beyond any possible doubt that the question of what financial resources to make available is a matter for the discretion of the Lord Chancellor and the Lord Chancellor alone. That is what the amendment says beyond any question. It also makes it clear that its terms and effect are subject to the provisions of this part-in other words, subject to the restrictions in the Bill on what topics are within the scope of legal aid.

Lord Thomas of Gresford: Can the noble Lord explain what this amendment therefore adds to the provisions in the Bill? That is what puzzles me.

Lord Pannick: I was coming to that. If the noble Lord will have a little patience, that was the second point made in the other place. My first point, which I just want to complete, is that, with great respect, I do not accept that this amendment has any financial implications whatever.

The second point made by the Minister in the other place was that made just now by the noble Lord, Lord Thomas of Gresford. What is the point of this amendment? The view taken by noble Lords on Report was that now that legal aid is to be confined by this Bill, it is absolutely vital that we retain in the legislation a statement of principle that the purpose of legal aid is to promote access to justice within the available financial resources. That is important for this reason. The Government are proposing to limit legal aid by reason of current financial constraints and Parliament is accepting that. However, we all hope and expect that the economy will improve and, when it does, Clause 9(2) gives the Lord Chancellor a power to modify the substantive provisions of Part 1 to bring matters back within scope. When the economy improves, the case for relaxing the temporary limitations on legal aid should be considered by reference to principle, and the principle is that stated-I hope uncontroversially-in this amendment, which is to Clause 1 of the Bill. It is vital that this principle is not forgotten by reason of the temporary financial constraints under which we are all operating, and I can think of no better way of preserving the principle than setting it out at the beginning of the Bill. I happily give way to the noble Lord.

Lord Thomas of Gresford: But is not the effect of putting this at the beginning of the Bill precisely what the Minister said-that is, it leaves it open to lawyers to bring applications for judicial review and to ask judges to determine whether the financial situation has so improved that the provisions for legal aid should be extended? Is this not just making more work for lawyers?

3.45 pm

Lord Pannick: The noble Lord, Lord Thomas of Gresford, again jumps the gun. This is the third point that was made in the other place, which I was coming to and will now address-

Lord Lester of Herne Hill: I hope I am not jumping the gun, but I do not understand from what the noble Lord has said so far why the principle of maintaining the rule of law, a duty which is imposed on the Lord

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Chancellor, and a duty to secure access to justice under the Human Rights Act do not themselves adequately state the general principles within which this Bill needs to be looked at.

Lord Pannick: The answer to the noble Lord, Lord Lester of Herne Hill, is that we are dealing with a Bill that specifically relates to legal aid. It is surely appropriate to include in a Bill relating to legal aid the purpose of legal aid-and to say so in uncontroversial terms. Nothing is more likely to lead to legal uncertainty-the concern that the noble Lord, Lord Thomas of Gresford, has-than that these matters should be left somehow to be implied, in the context of legal aid, by reference to the Human Rights Act. That would seem to me most unsatisfactory.

I turn to the third point: uncertainty. It was a point that the Minister emphasised this afternoon-uncertainty and, as he put it, the spectre of litigation. I find it difficult to understand this concern, given that the amendment makes it clear beyond doubt, in the plainest of language, that it is entirely a matter for the Lord Chancellor how much money to provide for legal aid purposes. The amendment makes it clear beyond doubt that this provision is subject to the detailed provisions in the Bill which specify what subjects are within scope.

In any event, this concern about litigation is a particularly unpersuasive argument in the present context. As I mentioned, the substance of this amendment has been part of legal aid legislation for many years. If lawyers were going to make mischief by reference to this type of wording, noble Lords will recognise that they would have done so by now.

Finally, the fourth point that has been mentioned by the Minister this afternoon is that the other place is, of course, the elected Chamber and that we should defer to its judgment. For my part, I recognise that there is, of course, force in this argument. Noble Lords will wish to reflect carefully on this amendment, as on all the other amendments before the House this afternoon, before asking the other place to think again.

I suggest to noble Lords, however, that this is an occasion-on this amendment certainly-when it is appropriate to ask the other place to think again. The amendment now before noble Lords addresses the concerns expressed by the Minister, Mr Djanogly, in the other place. There is simply no substance to the Government's opposition to this amendment. It raises an issue of principle of considerable importance and it involves no financial cost whatever to the Government. I beg to move.

Lord Howarth of Newport: The noble Lord, Lord Pannick, for the avoidance of any doubt whatsoever, has made it clear beyond peradventure in the drafting of this amendment in lieu that what he and the House have sought to achieve contains no threat to the Government's public expenditure plans. The wording makes it clear that,

the Lord Chancellor shall exercise his powers to secure that individuals have access to legal services.

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For the sake of a completely illusory financial requirement, the Government propose to impair a constitutional principle of the first importance which goes back not just to 1949, as the noble Lord, Lord Pannick, reminded us, but to 1215. That is the principle of equality before the law. It should not be in doubt that it is the duty of the Lord Chancellor to secure equality before the law. We all recognise that there are constraints in the present very difficult circumstances of the economy, and that we face an imperfect situation. But it must be right to legislate in principle to ensure that, in normal times at the very least-I would contend at all times-it is a paramount duty of the Lord Chancellor to secure equality before the law for all our citizens. It is no use the law declaring high principles of which citizens cannot avail themselves in practice if financial constraints and the lack of support through legal aid mean that they are not able to substantiate their rights in the courts.

I praise the noble Lord, Lord Pannick, for persisting in this cause. I very much hope that the House will want to support him once again in inviting the other place to think again.

Lord Woolf: My Lords, I support what the noble Lord, Lord Pannick, has put before us. Doing my very best, I have found it very difficult to find any reason why this amendment should not be accepted. Attempting to rely upon what was said in the other place just does not wash. If the other place had understood the purpose of the previous amendment, I do not accept that it could have treated it in the way that it did. I do not need to go into detail about that matter because the noble Lord, Lord Pannick, has, with his usual clarity, set out the position perfectly obviously. The situation is as he indicated.

In Bills of this nature, it is frequently the practice to assist those who will subsequently have to apply the legislation-or, if I may say so with feeling, interpret the legislation-by setting out the purpose of the legislation. The Bill makes that purpose clear in so far as there was any doubt about it. There cannot be said to be any financial commitment involved. I am at a loss to understand how the Lord Chancellor, having the responsibilities that he has for the administration of justice under the Constitutional Reform Act 2005, can use that as an excuse for, without justification, trying to impede the proper consideration of this amendment. It reflects no credit to the way in which that office is now being handled for the Lord Chancellor to take that position. Every word that the noble Lord, Lord Pannick, has said with regard to the four points that were taken is of substance. I hope that, even now, the Lord Chancellor will consider whether it is consistent with his responsibilities to take the position that was adopted by the other place after very brief consideration.

I remind the Lord Chancellor of the oath that he takes when he takes office, which is laid down in the Constitutional Reform Act. I ask him to consider whether the position that he has now taken is consistent with that oath. Section 17 of the Act requires him to,

The purpose of the amendment is to give the Lord Chancellor scope to do just that.

I would have thought that the proper course was to welcome the amendment, having regard to changes in the situation that can take place in the future. Again and again, in the course of consideration of this Bill, it has been said on behalf of the Government that they are following the course that they are taking because of the financial situation in this country. That argument demands the greatest respect, but as the noble Lord, Lord Pannick, has indicated, this amendment does not interfere with the Lord Chancellor doing precisely that. It is said that it may lead to increased litigation. If that litigation were to take place, as far as I can foresee, it would have to be by way of judicial review and it is well known that judicial review has built-in protections to avoid the litigation process being misused. The requirement of leave would mean that proceedings which are initiated without cause would have a very short life indeed. The Government of the day would be entitled to get the assistance of the courts, which they would receive, to ensure that there was no misuse of those proceedings in these circumstances. I suggest that, if full consideration had been given to this amendment, it would not originally have been objected to or objected to now.

Lord Phillips of Sudbury: Given the noble and learned Lord's huge experience in these issues, would he kindly tell the House whether he considers that this amendment does not place any Lord Chancellor in any jeopardy in respect of judicial review? If that is the case-that is what I understood the noble Lord, Lord Pannick, to say-does that not make the provision toothless?

Lord Woolf: No one can anticipate what might happen with regard to the conduct of a particular Lord Chancellor in the future. However, in regard to the fears that have been expressed, there would be no possibility of those being treated as appropriate cases for an application for judicial review on the facts that could be reasonably expected to occur.

On the purpose of the legislation, I would adopt what was said by the shadow Minister in the other place: that the amendment states a purpose because the provision is a statement of legislative purpose. As to having a statement of legislative purpose, in legislation of this nature it is done frequently, not for the purpose of providing an enforceable duty but so that it is known what the legislation as a whole is intended to do.

Lord Lloyd of Berwick: My Lords, the noble Lord who moved the amendment as well as the noble Lord, Lord Howarth, and the noble and learned Lord, Lord Woolf, have referred to the purpose of the amendment as the avoidance of doubt. I hope that in his reply the noble Lord will explain to the House exactly what is the doubt which the amendment is designed to remove and which, presumably, the Bill will otherwise create. If he can answer that question to my satisfaction then I might vote with him. Until that question is answered, I would be inclined to vote with the Government.

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4 pm

Lord Thomas of Gresford: I regret that I have to disagree with the noble and learned Lord, Lord Woolf-I very rarely do. However, there is a statement of principle in Clause 1: it is that the Lord Chancellor must secure that legal aid is made available in accordance with this part. That is a very simple, short statement which would cause no judge any difficulty whatever in interpreting the provisions of the Bill. I said in Committee that the amendment then proposed was meaningless and added nothing to the Bill. I say precisely the same of the amendment as redrafted.

The amendment adds nothing, except this. I could be a very devious lawyer, and I might have a case for which I thought some funding was needed. So I might apply to the director of legal aid for special funding, knowing well that the case for which I am requesting funding is outside the legal aid scheme. The director of legal aid might say, "There is nothing special about this; I am refusing it". I might then make an application by way of judicial review to the court, and I would get legal aid for that: judicial review carries legal aid. So I would get my money by making an application to the court for judicial review to say, "Look at this provision which the noble Lord, Lord Pannick, argues for: it is broad; it is wide; the circumstances of the country have improved; it is only reasonable that the director of legal aid should now grant me the funding that I need, or that the category of law with which I am now concerned should be brought within scope". That is just one case. Other cases could then be brought forward in the same way.

Lord Woolf: Will the noble Lord explain how the risk to which he has just referred would be any greater than that which already exists in the words of Clause 1(1)-that the Lord Chancellor must secure that legal aid is made available in accordance with this part?

Lord Thomas of Gresford: It says in terms that it must be in accordance with this part. As the Minister has explained, the Bill as drafted says what is in scope. The Access to Justice Act 1999 set out what was not in scope.

Baroness Butler-Sloss: I am no expert in administrative law. However, my recollection is that that requires leave of the judge. If it is as spurious a case as the noble Lord has suggested, I would have thought that it would be likely to be rejected and that very little legal aid, if any, would be involved.

Lord Thomas of Gresford: Why should one run that risk? Why should one have applications for judicial review being made based on the amendment as currently drafted? This adds nothing to the Bill. All it does is open an avenue for satellite litigation which should not be permitted.

Lord Carlile of Berriew: My Lords, it would be a great disappointment to your Lordships' House if you were to find that there was unanimity on these Benches. I am not going to disappoint your Lordships: there is not.

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I agree entirely with the noble Lord, Lord Pannick-particularly in relation to the second and third parts of his speech-and also with the noble and learned Lord, Lord Woolf. In answer to my noble friend Lord Thomas of Gresford, I would say that Clause 1(1) contains absolutely no statement of principle whatever, whereas Amendment 1B does contain a statement of principle, albeit within the financial limits set by the Bill.

What I really wanted to do is say a few words about financial privilege. I suspect that there will be other noble Lords who were once Members of another place who, like me, have sat on the Reasons Committee. It is the Reasons Committee that drafts the reasons why the Commons do disagree with your Lordships' House. It sits in a room just behind the Speaker's Chair. That room is known as the Reasons Room. Behind that Alice-in-Wonderland title lies an Alice-in-Wonderland process. In the Reasons Room, the Reasons Committee-which does not produce a Hansard record, or certainly did not do so in my time-produces reasons that, by and large, are presented on a piece of paper and nodded through. That seems to me to be what has happened here. The reason that is given is that,

That is a statement of predictive certainty. What we have heard from my noble friend the Minister suggests that there might be a possibility at some stage in the future that some kind of judicial review action might, not would, have some effect on, not alter, the financial arrangements made by the Commons.

I echo the words of the noble and learned Baroness, Lady Butler-Sloss, about the process of judicial review. Every judicial review application goes in the first instance, on an entirely paper procedure, before a judge of the administrative court. As it happens, most applications-about 80 to 90 per cent-are refused on the papers and there is practically no expenditure upon them at all. I cannot see any circumstances in which it is more likely that judicial review proceedings would continue as a result of including this amendment in the Bill as compared with the Bill as it stands. As my noble friend Lord Thomas said, the Bill as it stands contains the potential for applications being made for judicial review against the exceptionality provisions and against a ruling that legal aid should not be given. What is proposed here hardly increases that risk.

Lord Thomas of Gresford: My Lords-

Lord Carlile of Berriew: I will give way in a moment; I shall just finish the sentence.

If the other place has got its reasons wrong then surely we are entitled to question those reasons in this House, and if the burden of the debate justifies it, to ask the other place to reconsider, on the basis that it has got its reasons wrong. I will give way to my noble friend now-but he does not want me to. I am glad that I have answered his question. I have nothing further to add.

Lord Morris of Aberavon: My Lords, I rise in support of the noble Lord, Lord Pannick. I am concerned about the reasons given in the Marshalled List, and

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perhaps the Minister can help the House. What are the financial implications if this amendment were accepted? The reason given is:

"Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient".

If that is the sole basis for rejecting the amendment-or if there is any other reason, any other sinister matter, that the Minister is concerned about-perhaps he will tell us.

The noble Lord, Lord Pannick, has told the House that there are no financial implications to his amendment. The amendment states that the Lord Chancellor shall exercise his powers under this provision in order to ensure that individuals have access to legal services, and that it is entirely within his discretion,

This is a very carefully drafted amendment. It secures the Government's financial position. The ultimate discretion is the Lord Chancellor's, and I find it very difficult to foresee, in reality, any other financial implication.

Lord Hart of Chilton: My Lords, I have supported the noble Lord, Lord Pannick, throughout the process of this Bill. I do so again and I will not take up time to enlarge on anything that has been said thus far in support of the amendment. I simply risk causing the Minister convulsions by drawing his attention to the clock and indicating that we are well on our way to doubling the amount of time that the Commons took to dispatch four of your Lordships' amendments. It also had the temerity to adopt a programme Motion that caused Sir Gerald Kaufman to stop in mid-track when he was saying:

"It is out of order in this House of Commons to accuse anyone of hypocrisy, so I-".-[Official Report, Commons, 17/4/12; col. 208.]

We shall never know what he was about to say, but it shows how well we attend to amendments in this House and how poorly they do so in the Commons.

Lord Elystan-Morgan: My Lords, the whole exercise of this House examining the reasons given for rejecting an amendment from this place turns on the supposition in the first instance that the other place has in a mature, reasonable and well informed way applied itself to all the relevant issues. I therefore take very much to heart the submissions made by way of preliminary argument by the Minister. It is his case that the other place has done exactly that: namely, that it has looked in a fair, reasonable and mature way and has comprehensively dealt with those issues. I think that his argument is utterly fallacious in that respect.

Lord Thomas of Gresford: Before using a word such as that, does the noble Lord not agree that there is a constitutional convention that-

Lord Elystan-Morgan: It is exactly on the question of constitutional convention that I seek to address this House now. The Minister's case, in so far as it refers to the Government having carefully considered the situation, is amply made out. I am sure that battalions or squadrons of legal eagles have been burning the midnight oil

23 Apr 2012 : Column 1569

looking carefully at every word, comma and expression in these matters. I have no doubt that that has been done thoroughly and comprehensively.

However, has the other place thoroughly and comprehensively considered this matter? There has been a double guillotine. First, there was a guillotine in dealing with the issue because it could not be raised at Second Reading, in Committee or on Report. There was a second guillotine in the meagre ration of time-27 minutes-allowed for this amendment and two or three others. You would not hang a dog on such a procedure.

Therefore, on that basis, I make no apology for raising what I consider to be a fundamental constitutional point. We are dealing with the rejection by the House of Commons of a matter on which the time taken presupposes that its consideration could not have been mature and comprehensive. In addition, we have the reason given on financial privilege. I am as sure as I am that financial privilege cannot apply to this case because the very thing that it avoids doing is increasing the burden on the public purse. If I am right-as I understand it, that has been the rule since the end of the 17th century-it is not a financial privilege matter. Therefore, we have two constitutional issues. One is the lack of time and it being ridiculously limited in the other place. The second is the reason advanced; the very basis for refusing it cannot be sustained in argument.

Perhaps I may also challenge in a respectable, and I hope friendly, way the noble Lord's contention that those of us who have had experience-in my case, it was a very long time ago-as Members in the other place are in some way tainted and disqualified from making contributions in this House on this matter. Is he saying that we should be silent? If this House is anything at all, it is a first-class reviewing Chamber. Is he saying that, as a reviewing Chamber, this House should not comment on such matters? If it does not comment on such matters, it does not deserve to be a reviewing Chamber or a court of Parliament at all.

4.15 pm

Lord Faulks: My Lords, I will be very brief. I supported the predecessor of this amendment as it went through the various stages in your Lordships' House. I did so because, for the reasons that have already been given, I thought it was an important statement of principle that ought to govern the way in which we considered the Bill and ought to be part of the Bill. I remain of that view.

It seems that the real reason for the objection to this amendment is the fear of judicial review, or the rather vaguely described "satellite litigation". I understand why government lawyers, who are not always right about everything, may consider that there is a risk of judicial review in all sorts of situations: because of the ingenuity of lawyers and perhaps the flexibility of the Human Rights Act. However, given the way in which it is currently framed, it seems absolutely hopeless to think that there could be judicial review in these circumstances. The amendment as formulated makes it entirely clear. We are all familiar with provisions with no such discretion or reference to the Lord Chancellor or the Secretary of State, in which case courts have

23 Apr 2012 : Column 1570

sometimes said that it is an absolute duty. However, with this proviso it is almost as though the Government have had the benefit of the noble Lord, Lord Pannick, advising them on how to make the matter proof from judicial review.

Lord Phillips of Sudbury: My Lords, I went to the other place to hear our amendments debated. As I am not a former Member of the other place, perhaps my noble friend will take it from me that its consideration of some of our amendments was cursory-and that is putting it quite generously. I admit to being very disappointed that, on such an important Bill as this, the other place allowed so little time for consideration of these amendments that one cannot say that they scrutinised the amendments with the seriousness with which we try to scrutinise.

Having said all that, I am still mystified by this amendment. I agree with my noble friend Lord Faulks, and consequently with my noble friend-well, he is a friend but he is not a friend-Lord Pannick. It seems clear-indeed it was part of the case made by the noble Lord, Lord Pannick-that there is no prospect of judicial review, and he has designed this amendment to cut out that prospect. However, to the extent to which he has been successful-and I think he has been-it makes the clause ineffectual. It has absolutely no practical effect. I am afraid that it is admirable in sentiment but ineffectual in purpose and therefore should not be in the Bill.

Lord Beecham: My Lords, my noble friend Lord Hart inadvertently stole my opening line about the time we have spent debating this amendment. I could also point out that we will take little less time to vote on this amendment than the other place took to discuss, and allegedly debate, all four of the amendments about which we have heard.

The noble Lord, Lord Thomas, has entertained the House by conjuring up a vision of an army of devious lawyers mining the rich seams of the potential availability of legal aid for the purpose of pursuing claims for judicial review. Others of your Lordships have rather demolished the thrust of that argument, which in any case might be thought to be somewhat fanciful, especially in the light of the quite appropriate reference made by the noble Lord, Lord Faulks, to the fact that the amendment incorporates specific reference to the discretion of the Lord Chancellor. With respect to the noble Lord, Lord Thomas, there really is no substance in his objection to the amendment as it has been moved.

In relying once again on financial privilege-when it could have been waived and substantive arguments put in the form of a Motion asking this House to reconsider the amendment-the Government seem to be succumbing once again to the temptation of relying on this way out of a difficulty. They are becoming addicted to the use of financial privilege as a reason to reject amendments from your Lordships' House, and that cannot be a satisfactory basis for dealing with significant matters of this kind. Therein lies the strength of an argument about financial privilege when, in dealing after a fashion with the amendment in the House of Commons, the Minister, Mr Djanogly, made one of his principle objections: that the Government,

23 Apr 2012 : Column 1571

If it replicates what is already in place, how can it conceivably add to the Government's expenditure? It is a ludicrous proposition in an attempt to have it both ways.

For that matter, those who argue that judicial review is something to be avoided seem to have forgotten that when we were discussing the position of the director of legal aid casework-the DOLAC amendment; we will come later to a welcome acceptance of an amendment in that respect-it was argued that judicial review would be available to those who sought to make a case for legal aid in exceptional circumstances. At that point, it was to come to the rescue of people who were being denied legal aid and was something to be embraced. Today, however, for the purposes of this amendment it is an issue that could be deployed against the amendment of the noble Lord, Lord Pannick.

There is no question that the purpose of this amendment is clear. It is declaratory, but it is important to be declaratory about important principles, and for that reason the Opposition wholly support the amendment.

Lord Lester of Herne Hill: My Lords, I will explain briefly why I do not agree with the amendment. I quite agree with those who have said that it is inconceivable that it will give rise to effective judicial review because it imposes no legally enforceable duty and it is therefore inconceivable that anyone could threaten the Government by way of judicial review. However, my problem with it is that it imposes no legal duty and then does nothing else.

The amendment begins:

"The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services-".

Pausing there, it is of course already the Lord Chancellor's duty to do so under the Human Rights Act, as I pointed out in a brief question to my noble friend and colleague Lord Pannick. Under that Act, the Lord Chancellor has to act in a way that is compatible with Article 6 of the convention, which secures a right of access to justice. Existing law and Section 3 of the Human Rights Act require that all legislation, including this Bill, must be read and given effect in so far as it is possible to do so compatibly with the Human Rights Act. That first part of the amendment is already fully taken care of by that Act. In so far as the rule of law is in play, it is also taken care of by the Constitutional Reform Act.

The amendment goes on:

That completely swallows up any suggestion that this is some new, important principle. I am afraid it is written in water and I do not approve of putting anything in the statute that is simply an unenforceable duty written in water.

Lord McNally: My Lords, we have had a very interesting debate on this. I hope when the noble and learned Lord, Lord Woolf, has time to read his own

23 Apr 2012 : Column 1572

remarks, which contain some fairly harsh strictures about the Lord Chancellor, he will reflect that the question of financial privilege is not a matter for the Government or for the Lord Chancellor. As the Clerk of the Commons explains, an amendment that infringes privilege would be the only reason that would be given. That is because giving other reasons suggests either that the Commons has not noticed the financial implications or that it somehow attaches no importance to its financial primacy.

We had a debate very like this one when we discussed the Welfare Reform Bill. I do not have figures at my fingertips-perhaps we can give the noble Lord, Lord Hennessy, the task of looking at the record of respective Administrations in using financial privilege-but when we last discussed the matter it was made clear that this is a matter for the Commons. As the Companion states:

"Criticism of proceedings in the House of Commons or of Commons Speaker's rulings is out of order, but criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons".

I think noble Lords have exercised that procedure today.

Lord Howarth of Newport: My Lords, the Minister said that financial privilege is not a matter for the Government but for the House of Commons. We understand-we are very familiar with the convention-that when the House of Commons rejects a Lords' amendment it may state reasons of financial privilege and give no further explanation. However, that does not explain or justify why the Minister, Mr Djanogly, in opening the debate on the Lords' Amendment 1 last Tuesday, began his speech by drawing to the attention of the other place that:

"Lords amendments 1 and 24 impinge on the financial privilege of this House. I ask the House to disagree to them and will ask the Reasons Committee to ascribe financial privilege as the reason for doing so".-[Official Report, Commons, 17/4/12; col. 200.]

That was his argument, essentially because he could not think of a better one. It is very unusual for the Government to rely blatantly on financial privilege during the debate.

We have to contend with a new situation. We are not criticising the constitutional arrangements, the conventions or the manner of the relationship between the two Houses, but we are saying that the Government should not hide behind this formula, this antique convention, but should deal fairly and squarely with the merits of the argument.

Lord McNally: The noble Lord, Lord Howarth, has wandered-I shall come to some of his comments later-into interesting fields. The financial privilege of the House of Commons may be antique, but as an old House of Commons man I am rather attached to financial privilege. Kings have lost their heads and revolutions have taken place to protect financial privilege and I do not airily sweep it away as an antique remnant of a bygone age. It is an important part of the relationship between the two Houses.

Lord Howarth of Newport: Can the Minister explain how financial privilege applies in this case? Of course the Bill concerns public expenditure, and in that sense

23 Apr 2012 : Column 1573

financial privilege applies, as it does to virtually every item of legislation, but how do the Government contrive to justify making it the basis of their argument to Members in another place? They asked them to reject the amendment on the grounds of financial privilege as if it were at risk of incurring unaffordable increases in public expenditure, which is simply not the case.

4.30 pm

Lord McNally: My Lords, we can go round in circles. The qualification of financial privilege is a matter for the Clerks of the House of Commons. Former Mr Speaker Martin, when we last discussed this matter at the time of the Welfare Reform Bill, made very clear where the line is drawn.

I might not have had as long and continuous a place in the House of Commons as my noble friend but I have been around this place for the past 40 years, and one of the reasons why I teased some former Members of Parliament is that for the past 40 years, under various Administrations, I have heard these debates about the paucity of the way in which the House of Commons discussed a matter and the brutality with which the guillotine was used. That may well be one day-perhaps soon-the reason for a proper parliamentary reform Bill that takes in both Lords and Commons, but it is not an excuse for assuming that somehow, on this particular Bill and this particular issue, the Government are using chicanery or arguments that are not well understood in the relationship between these two Houses.

I also point out to the House that the one thing I have not done, and certainly did not do in my remarks at Report stage, Third Reading or today, is to hide behind financial privilege. I do not think that the Pannick amendment stands up to scrutiny and I was grateful for the contribution of a number of my noble friends in that. Part 1 of the Bill, the Lord Chancellor's functions, states:

"The Lord Chancellor must secure that legal aid is made available in accordance with this Part".

This seems to me a very clear statement of intent. The difference between the Act being replaced and this Bill is that the Act being replaced is an open-ended Act. It does not restrict where legal aid would apply. The whole point of the Bill-what makes it different from the previous Act-is that it limits, specifies and draws attention to where legal aid will apply and what will be out of scope. That is the danger of the Pannick amendment-that in its general good will to all men approach, it leaves the idea that things may be added. Indeed, both the noble Lord, Lord Howarth, and to a certain extent the noble Lord, Lord Pannick, said that when better days are here this whole circumstance may change. It may change, but not under a vaguely-worded Part 1 of the Bill. We have, in the course of the Bill, accepted an amendment from my noble friends that removed the ratchet and left a regulator in terms of what can be put back into the Bill, but that will be a matter for reflection and discussion in the future.

What worries me is that all the learned Lords who have spoken may be absolutely right, and if they are right we will all live happily ever after. But if they are wrong it is a future Lord Chancellor and the taxpayer

23 Apr 2012 : Column 1574

who will have to pick up the consequences. Therefore, I think at this stage in the passage of the Bill, the Lord Chancellor of the day and the Government of the day see dangers in what, if it is anything, is either meaningless or has a meaning that has implications for the future; and if it does have implications for the future, in a Bill structured in this way, I think we are right to resist it.

I hope noble Lords will agree that the Lord Chancellor of the day and the Government of the day could and should have a sense of responsibility and care for the central architecture of the Bill, which we keep on talking about. The Bill is not open-ended but specific and the Pannick amendment is not something that should show on the face of the Bill. I hope that noble Lords reflecting on this, and the fact that it has been well considered and well debated and that I have not tried to hide behind financial privilege in addressing your Lordships either previously or today, will support the Government and the Commons in their amendment.

Lord Pannick: I am grateful to all noble Lords who have spoken in this full debate. I am grateful to the Minister for his consideration of the amendment and for meeting me last week to discuss the issues raised. The other place rejected the amendment and the Minister invites the House to reject the amendment because of a concern or belief that it would impose further obligations on the Government. In this House, a number of noble Lords objected to the amendment on the precisely opposite ground that it would impose no obligations on the Government. Perhaps I may briefly reply to both those concerns.

First, on the concern that the amendment would impose further obligations and would somehow undermine the architecture of the Bill, to use the Minister's words, with great respect I have enormous difficulty in understanding those concerns. I could understand the concern if the amendment had any adverse financial consequences, but it plainly does not. It says,

I am very grateful to the noble Lords, Lord Faulks, Lord Carlile of Berriew and Lord Phillips of Sudbury, for their views, which I share, that it is impossible to understand how in the real world this amendment could result in litigation that had any prospect of getting off the ground-certainly any more so than the original Clause 1. So the only possible objection to the amendment is that it does not impose further obligations on the Government and that it does nothing. That was the point made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Lester of Herne Hill, and was a concern expressed by the noble Lord, Lord Phillips of Sudbury. I say to those noble Lords and to the House, with great respect, that that is to misunderstand the purpose of an objects clause. The purpose of the amendment is to ensure that the Bill recognises that we are cutting back on legal aid, most regrettably, because of current financial stringency, but that the principle of securing that individuals have access to legal services that effectively

23 Apr 2012 : Column 1575

meet their needs, which has been part of our law since 1949, has not been forgotten. It is still the purpose of legal aid and, when the economy improves, that is the principle by which Ministers and Parliament should assess-

Lord McNally: I hate to stop the noble Lord's flow, but he has just put his finger on it. This is not an interim, pro tem measure, waiting for a return to the 1949 Act. Although, as I mentioned in my opening remarks, financial considerations of course have played a part, the main intention of the Bill is to restructure, reshape and re-point the direction of legal aid away from the open-ended nature of the 1949 Act and successive Acts and put it into a closed system. It is that closed system that the noble Lord's amendment, with great skill aforethought, plans to undermine. That is why we are resisting it.

Lord Pannick: I entirely accept the Minister's point that the Bill seeks to identify those subjects for which legal aid should be made available. But the Minister will recognise that, in the anxious debates that we have had through the progress of the Bill, we have considered a number of sensitive topics in respect of which the Minister's argument has been that we would like to provide legal aid for this subject but, regrettably, we cannot do so because we do not have the money under the current financial stringency. The House has listened to that debate and accepted, with a heavy heart, that in relation to many of the subjects in respect of which legal aid has previously been made available it will regrettably no longer be made available. Having accepted that the Government must have their way for financial reasons on many of those very difficult areas, I believe that it is absolutely vital that we retain in this Bill a statement of the principle of why legal aid is made available so that when the economy improves-

Lord Lester of Herne Hill: My Lords-

Lord Pannick: I have given way to the noble Lord before. I anticipate that the House is anxious to move on. The House has heard the debate in relation to this matter. I say to the House that that part of the 27 minutes which the other place devoted-I am not giving way-

Lord McNally: My Lords-

Lord Pannick: The House wants to move on. That part of the 27 minutes which the other place devoted to consideration of this amendment shows that the purpose and effect of this amendment were not understood. I think that we should ask the other place to think again on this important matter, and I wish to test the opinion of the House.

4.41 pm

Division on Motion A1.

Contents 248; Not-Contents 233.

Motion A1 agreed.

23 Apr 2012 : Column 1576

Division No. 1


Aberdare, L.
Adebowale, L.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L.
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Best, L.
Bhattacharyya, L.
Bichard, L.
Billingham, B.
Bilston, L.
Birt, L.
Blackstone, B.
Blood, B.
Boateng, L.
Borrie, L.
Bradley, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Butler-Sloss, B.
Campbell-Savours, L.
Chichester, Bp.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Collins of Highbury, L.
Corston, B.
Coussins, B.
Cox, B.
Craigavon, V.
Crawley, B.
Crisp, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Deech, B.
Desai, L.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fellowes, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Glasman, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Greenway, L.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hannay of Chiswick, L.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hennessy of Nympsfield, L.
Hereford, Bp.
Hilton of Eggardon, B.
Hollins, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hutton of Furness, L.
Hylton, L.
Imbert, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kakkar, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kilclooney, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Knight of Weymouth, L.
Laird, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
Luce, L.
McAvoy, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.

23 Apr 2012 : Column 1577

Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Manchester, Bp.
Mar, C.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Myners, L.
Noon, L.
Norwich, Bp.
Nye, B.
O'Loan, B.
O'Neill of Bengarve, B.
Pannick, L. [Teller]
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prescott, L.
Prosser, B.
Puttnam, L.
Quin, B.
Quirk, L.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L. [Teller]
Rea, L.
Rees of Ludlow, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Rogan, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Saltoun of Abernethy, Ly.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Singh of Wimbledon, L.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tonge, B.
Touhig, L.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Walker of Aldringham, L.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Wigley, L.
Williams of Baglan, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Woolf, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.


Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Bates, L.
Benjamin, B.
Berridge, B.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Buscombe, B.
Butler of Brockwell, L.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Campbell of Alloway, L.
Cathcart, E.
Chalker of Wallasey, B.
Chester, Bp.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Courtown, E.
Craig of Radley, L.
Crickhowell, L.
Cumberlege, B.
Dannatt, L.

23 Apr 2012 : Column 1578

De Mauley, L.
Dear, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Eaton, B.
Eccles, V.
Eden of Winton, L.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Fearn, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glasgow, E.
Glenarthur, L.
Glendonbrook, L.
Gold, L.
Goodhart, L.
Goodlad, L.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Home, E.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
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King of Bridgwater, L.
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Lamont of Lerwick, L.
Lang of Monkton, L.
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4.56 pm

Motion B

Moved by Lord McNally

2A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

193A Line 2, after "means" insert "any incident of"

219A Line 2, after "means" insert "any incident of"

220A Line 25, after "means" insert "any incident of"

194A Because it is appropriate for provision about forms of evidence of domestic violence to be made by regulations.

196A Because it is not appropriate to prevent a time limit being imposed in respect of evidence supporting an application for civil legal aid under paragraph 10 or 11 of Part 1 of Schedule 1.

Lord McNally: My Lords, Motion B contains amendments in relation to domestic violence. As I have previously made clear, the Government take domestic violence extremely seriously. We fund a range of programmes to help deal with and prevent this crime, many of which-I am happy to acknowledge-were put in place by the previous Administration. As the noble and learned Baroness, Lady Scotland, has previously made clear, there is nothing between the Government and the Opposition in principle here.

This was reflected in our initial proposals. First, legal aid to obtain a protective injunction against domestic violence should remain exactly as it is at present, so that those who need legal aid to protect themselves can get it regardless of their means. Secondly, while we have removed most of private family law

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from the scope of legal aid in favour of funding mediation and less adversarial proceedings, an important exception should be made for victims of domestic violence. This was because such victims could be intimidated during court proceedings about, for example, child contact or maintenance issues. Again, it is fair to say that these principles were welcomed.

There has been considerable debate in both this House and the House of Commons over how to decide who qualifies as a victim of domestic violence for the purpose of legal aid for private law family proceedings. Therefore, there has been much scrutiny of the definition of domestic violence used in the Bill, the types of evidence that would prove that someone was a victim and the length of time for which these should be valid. The contributions across the House have been informed, sometimes passionate and extremely helpful. The Government have listened and moved on several key points.

As set out in government Amendments 193A, 219A and 220A, we have accepted the ACPO definition of domestic violence in full. The Bill now defines domestic violence as,

This has been universally welcomed. We have also undertaken to widen the list of evidence, which will be reflected in regulations, to include: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, and where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.

These are in addition to those forms of evidence already accepted by the Government, which are: that a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party for the protection of the applicant is either in place or has been made in the past 12 months; a criminal conviction for a domestic violence offence by the other party against the applicant; ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; evidence from a multi-agency risk assessment conference of the applicant having been referred as being at risk of domestic violence from the other party and action recommended; and a finding of fact by the court of domestic violence by the other party against the applicant.

On time limits, we intend to double the previously announced time limit from 12 months to two years, save in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one. We think that some sort of time limit will still be needed-we are in the business of reducing rather than encouraging litigation-but we think that two years will make sure that those who need help get it.

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I know that the noble and learned Baroness, Lady Scotland, continues to have concerns and has tabled amendments in lieu of her original amendments which ask for our list of evidence to be exactly the same as the list of evidence used by the UK Border Agency in assessing domestic violence immigration applications. I know from my conversations with her that she is worried about consistency and about genuine victims missing out. I have enormous respect for the noble and learned Baroness but I really do think that her fears are now misplaced, given how far we have moved.

On consistency with the border agency, we need to understand that the decisions being made are different, as is the context in which they are made. When the border agency takes a decision on whether domestic violence has occurred, it is a decision on the case itself. This would be analogous with a court looking at an application for a domestic violence protection order and a judge deciding whether domestic violence had occurred, not with a legal aid decision about a private family law case.

We are talking here about a secondary issue-in this case, legal aid-that arises indirectly from a person being a victim of domestic violence, not a decision that directly relates to someone's protection, such as in an immigration context or an injunction application. What is needed for a grant of legal aid is a set of clear rules, not the kind of case-by-case nuance that is needed to decide whether someone requires immediate direct protection.

Other government departments have to grapple with similar issues when it comes to these secondary issues. They do not use the border agency list but take a judgment on what works in their particular context. One example is the rules for jobseeker's allowance for victims of domestic violence, over which individual local authorities have discretion.

I should also point out that the noble and learned Baroness has never objected to a very important addition that we have made to the border agency list-namely, "a finding of fact" by a court that domestic violence is a relevant feature. This partly highlights the different context that we are dealing with; such a finding of fact is much less likely to arise in an immigration context, but it also provides a very important safeguard in these cases. By definition in this context, if you are seeking legal aid, it is because there is the prospect of family proceedings. If you cannot show any of the evidence of domestic violence that we have asked for but the court decides, perhaps on the basis of police call-outs or other types of testimony, that domestic violence is a feature in the case, then legal aid will be available. This is also relevant when thinking about the time limits. Where a case relates to older incidents of domestic violence but a court considers that the matter is still relevant and it makes a finding of fact, legal aid will be triggered.

When I spoke last week with the noble and learned Baroness, she suggested that we would be missing a large number of victims with our time limit because of how long victims take to come forward. She mentioned that the average time for a victim coming forward was five and a half years. However, it does not follow, as she suggested, that a two-year time limit for evidence

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cuts out nearly two-thirds of people as a result, because the crucial point is that the evidence will be generated when people come forward-that is, when they seek an injunction, turn to their GP or decide to go to a refuge. It is when the evidence arises, not when the abuse occurs, that indicates the start of the time limit.

I stress again how far the Government have moved on this issue. We now have a system which will genuinely and generally ensure that victims of abuse get legal aid in these private family cases. We have accepted the ACPO definition of domestic violence-indeed, we have gone beyond that. We have significantly expanded the range of acceptable evidence and doubled the time limit. There is one in-built safety mechanism in the form of "finding of fact" hearings, and of course there is a second safety mechanism in the form of exceptional funding, for the more unusual cases. So I think we have now got this right. I want to pay tribute to those across the House, not least to the noble and learned Baroness, Lady Scotland-I know her well and I know her deep concern on this issue.

For the sake of completeness, I should add that we cannot accept that the evidential requirements should be in the Bill. Legislation of course needs to be precisely drafted, and because of the level of detail required, the evidential requirements are much better left to regulations, subject to the affirmative procedure, rather than primary legislation.

Sometimes at this Dispatch Box one has to make the government case with a heavy heart. I have looked at this from where we started, where we have moved to, and what we now cover in this very important area. I am proud of what the Government have done in carrying on the broader work against this evil crime, but I am also proud of what we have now finished with in terms of a package to help in this particular case. I hope the House will give us its support. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by Baroness Scotland of Asthal

2B Page 121, line 31, at end insert-

"Domestic violence

(1) For the purposes of this paragraph, evidence that abuse has occurred may consist of one or more of the following (without limitation)-

(a) a relevant court conviction or police caution;

(b) a relevant court order (including without notice, ex parte, interim or final orders), icluding a non-molestation undertaking or order, occupation order, forced marriage protection order or other protective injunction;

(c) evidence of a relevant criminal proceedings for an offence concerning domestic violence or police report confirming attandance at an incident resulting from domestic violence;

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(d) evidence that a victim has been referred to a multi-agency risk assessment conference, as a high risk victim of domestic violence, and a plan has been put in place to protect that victim form violence by the other party;

(e) a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim;

(f) a letter from the General Medical Council registered general practitioner or other medical professional confirming that he or she has examined the applicant and is satisfied that the applicant had injuries or a condition consistent with those of a victim of domestic violence;

(g) an undertaking given to a court by the alleged perpetrator of the abuse that he or she will not approach the applicant in respect of allegations of domestic violence;

(h) a letter from a social services department confirming its involvement in providing services to the applicant in respect of allegations of domestic violence;

(i) a letter of support or a report from a domestic violence support organisation; or

(j) other well-founded evidence of abuse that is either-

(i) certified by a court; or

(ii) of atype prescribed in regulations.

(2) For the avoidance of doubt, no evidence shall be deemed inadmissible on the basis of expiration where the general limitation period under the civil standard has not elapsed."

196B* Page 121, line 47, at end insert-

"(2) For the avoidance of doubt, no evidence supporting an application for civil legal services under this paragraph shall be deemed inadmissible on the basis of expiration where the general limitation period under the civil standard has not elapsed."

Baroness Scotland of Asthal:My Lords, I move the amendment standing in my name not in any way to cause anxiety or concern to the Minister, or with any lack of appreciation for how far the Government have moved. I say straightaway that I welcome the moves that have been made in the right direction. However, I hope the Minister will forgive me when I say that I regret that such a move was not done immediately and that we have had to wait so long. I hope the noble Lord will not find me ungracious when I say that I would invite him to move a little further. The amendments that have been proposed by the Government widen the evidential gateway provided by the Bill as it stood before: my amendments take it just a little further.

Domestic violence applications are of great importance, not just because they relate to a large proportion of women, but also, as the noble Lord knows, because they affect men and many children. Up to 950,000 children are affected by domestic violence every year. My amendments specifically permit well founded evidence of abuse certified by a court and/or prescribed in regulations to be used in support of an application for

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legal aid relating to matters that touch on domestic violence. In addition, my amendments provide that no evidence shall be deemed inadmissible on the basis of the expiration while the general limitation period under the civil standard has not elapsed; in effect, moving limitation from the two years provided in the Government's proposed regulations to six, which I think causes greater consistency.

Your Lordships will know that, in my Amendment 196B, I also seek to extend that more generous time limit to applications made in relation to children's cases. The House has heard from me, at Second Reading, in Committee and on Report, about the importance of these issues to victims of domestic violence and their children. These amendments are, I respectfully say, vital. They are vital to all victims who may be affected by domestic violence. It is the reality of the domestic violence victim's life that has to be properly acknowledged. Although I thank the Minister for moving both in scope on the definition and on the definition itself, it is clear from what he said in moving his Motion that the Government do not entirely understand the issues in relation to domestic violence as I had hoped that they would.

The evidential test is there to provide assurance that there is cogent information on which to base the assertions of domestic violence made by an applicant. The evidential gateway is just that: an evidential test to support the definition. The Government seek, on the basis of the amount of money that they have available, to narrow that gateway in a way that denies the reality of many victims' lives. I would love to be able to say that my fear in relation to these amendments is misplaced. The reason I know that, tragically, it is not, is that I have had the privilege of working in this field since 1977. We know, through experience and the empirical data that we have, the consequence of a narrower gateway because there has been one in the past and we know that lives have been lost.

In many cases, women-I say "women" because 89 per cent of repeat victims are women-will not get the support they need. I will give one example, which has been given to us by St Anthony's Centre for Church and Industry in Manchester. It relates to a case where a woman had entered into a marriage which was violent and traumatic. She wanted to start divorce and financial proceedings. She did not go to a refuge. She left her home and went to live at her parents' house. While there, she was not able to work because she used to work for her husband in his business, so she lost her job; she was his bookkeeper. The husband remained in the joint home. He moved his mistress into that home and refused to engage in the divorce proceedings at all for a considerable amount of time. The wife could do very little about it. Eventually, because he would not negotiate and because she had no money and he had a great deal, she went and obtained legal aid to assist her to go back into the house and, if not to go back into the house, to get her just desserts in terms of financial relief. The husband had engaged some very expensive solicitors. She did not have any money to do so. That woman, today, would get legal aid. If your Lordships were to agree with the amendments and pass them in accordance with the Government's proposal, she would not.

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There are other cases. For example, a woman left her husband because of his violence and did not go back. She did not apply for any financial relief or anything at all. She simply wanted safety for herself and her children. Eight years later-way outside the two-year time limit-her husband came to apply for contact with those children. She had not gone to the police. She had not gone to her doctor. She had not gone to a refuge, because she had gone to her mother's house. Neither had she sought to enter into litigation. But she did not have any money. At the moment, she is able to get legal aid; if these provisions are passed, she will not. I know that the noble Lord would want to provide help and assistance for those sorts of cases, but the current provisions will not do that which the Government purport to want.

5.15 pm

I wish that I could simply say to the House that we have moved far enough, but it is now a matter of whether the House and the Government will choose to assist those who are in dire need. It is not a matter of us not knowing what the impact will be. On a number of occasions, the noble Lord has said that we are in a financially difficult position and that we cannot do all that we would like to do but that we have to narrow the gateway. I could understand narrowing the gateway if it were to relate to those who make unmeritorious claims, who do not need the help and support of legal aid and indeed whose lives will not be adversely affected or put at risk. If that were the case, I could see that the Government would have a choice. However, post-separation violence occurs in 50 per cent of the cases that we deal with. These are not cases, as the noble Lord seeks to say, where those involved could go for an injunction. In many of these cases the violence occurred a long time ago but the risk of violence to the victim and often to the victim's children is still there.

We have a choice to make. In my humble submission, that choice should be one that we make in favour of women, children and victims of domestic violence whatever their gender who will have no other viable means of support. I say very clearly to the noble Lord that we on this side of the House have made a choice: our choice is to support victims and their children. I would love the Government to be able to say amen to that, not just in terms of desire but in reality. While many women do not have the support that they need, we cannot close our eyes.

I would like to remind the House of the Women's Aid snapshot survey that was done on 16 June last year. It showed that on just one day 224 women were turned away from refuge services: 163 because there were no spaces for them; 13 because they had no recourse to public funds; and 48 for other reasons such as complex needs. That demonstrates that even allowing accessing refuge services as evidence of eligibility for legal aid will exclude many women who are simply unable to access such services and yet are experiencing violence. We have to remember that if a woman has a male child who is over the age of 11, she will not have access to a refuge because such children are excluded, often because of their gender. Statistics from Women's Aid show that the number of women and children supported annually by all domestic and sexual violence

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services-both refuge-based and non-refuge-based-is 124,895: so 17,615 women are in refuges annually and 107,280 are in other services such as outreach and drop-in. Looking at the list to which the Minister has referred in his remarks, if only those who are actually admitted to a refuge are able to seek and obtain support, what about the 107,000 women who seek outreach and drop-in support?

The noble Lord knows that these amendments are widely supported by the Women's Institute, Rights of Women, Mumsnet and many other agencies, including the faith communities. I ask the noble Lord to think very carefully as to whether the Government cannot in good conscience widen the evidential gateway and the time limit to enable those with bona fide claims to be better supported. I accept that even the list and the proposals that I make will still exclude many bona fide cases. This causes me a great deal of pain and concern, but I have taken into account fully what the noble Lord has said about the restrictions that must now be put on the legal aid budget. I have accepted them. I cannot accept that the minimum standard that we have outlined in my amendment-to give succour to those in need-cannot be afforded by us as a country. If we cannot afford to protect women, children and men who are in this position we are a very poor country indeed. I beg to move.

Lord McNally: The noble Baroness-she is learned as well, is she not?

Baroness Scotland of Asthal: I am indeed learned-very learned.

Lord McNally: I have never doubted that. It is just that I keep getting nudged when I call someone learned and someone whispers in my ear that they are not.

Baroness Scotland of Asthal: Noble Lords are learned if they are in the Supreme Court or have been a Law Officer. Others, regrettably, may be learned in fact but are not learned in name.

Lord Bach: It also includes former heads of a division.

Lord McNally: That helps me a great deal. I shall never refer to the noble Lord, Lord Bach, as learned again.

Lord Bach: The noble Lord has never done that.

Lord McNally: My Lords, I have stated as clearly as I can why the Government and the Commons have put forward their reasons. The emotional span of this debate is sometimes extended to question whether we are in favour of victims and their children. The answer is that yes, we are in favour of them. As I said in my opening remarks, this debate is about how and whether and within which ambit we provide legal aid in private law cases. It is difficult to go beyond that into individual cases, which have been cited in debate at every stage. In many of these cases, the suspicion is that they would qualify either by application for an injunction or by a finding of fact by the court. The latter is extremely important in the additional list that we have put forward to qualify people for legal aid.

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