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In short, meritorious claimants are more likely to win their case if they have been advised in advance. Overall, 45 per cent of those before the tribunals won their case. I hope that that puts paid to any notion that the majority of appeals lack merit or involve chancers having a go. Clearly there is a substantial need for a mechanism to correct errors. We all know that the department makes errors all the time-and that will happen as long as life goes on.

I regret that I must note that 45 per cent represents a marked increase over the previous year, in which 38 per cent won their cases, itself the culmination of years of improvement. So last year represents a sudden and significant degradation in the quality of decision-making in state agencies, which is quite the opposite to the claims made by the Government that the DWP is working to make the system more effective. The worst degradation in decision-making was for employment support allowance, on which overall half the appellants won their case. To put that in numbers terms, more than 40,000 disabled people a year have their employment support allowance reinstated after a First-tier Tribunal ruling that overturns erroneous decisions from the DWP. Again, there are marked disparities in the percentage of appellants who succeed, based on whether they receive advice or not, with some 70 per cent of advised ESA appellants winning and only 43 per cent of unadvised appellants winning. We are talking about advice, not representation. The conclusion is that advice really matters.

We argue-and I hope that the House is with us-that the present system works all right. It is true that tribunals are already overburdened, but we are now in an age of austerity and we have coming up the road radical welfare benefit reform about to commence. There will be mistake after mistake made by the authorities, so how can this be the right time to take away or remove our fellow citizens' rights to have wrong decisions corrected-decisions that for some actually make the difference between a decent life and one wrecked by poverty and insecurity?

If our amendment were passed, it would cost the Government at most £15 million. All commentators agree that the Government's proposals will cost the state much more in the end because, if people do not get that expert early advice, their lives go wrong. The problems that they have can be dealt with, and have been dealt with for years, by not-for-profit organisations such as law centres and CABs, in which advice on social welfare law and the law for everyday life is given for free under legal aid. If that advice is no longer available, those problems get worse and multiply and in the end the state has to pay out much more in picking up the pieces.

We do not believe that, for £15 million, which is what the Government claim would be saved by changing this system-that is, by not allowing advice at the early stage-that can possibly be sensible. This Government have, for example, found £250 million in order that we might all have weekly bin collections, but they cannot afford £15 million per year in order that people can get advice. A system that was set up by a Conservative Government, under the noble and learned Lord, Lord Mackay of Clashfern, and supported by previous Conservative Governments, as well as by

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the Liberal Democrats over the years, and by us, is to be completely overthrown in order, in fact, not to save any money at all.

Our amendment would allow early advice to see whether a case was one that was suitable for First-tier Tribunal or not. That is all that we are asking the House to agree to tonight. This is basically the same amendment that the noble Baroness, Lady Doocey, moved on Report, but because there is financial privilege we have lessened it. It is not for the review period-the review to the DWP. It comes into play only when there is consideration of whether to go to the First-tier Tribunal. I beg to move.

8.45 pm

Lord Thomas of Gresford: My Lords, I am very pleased to welcome the government amendment in lieu, which follows very closely the amendments that the Liberal Democrats put down, both in Committee and on Report, for ensuring that there is proper legal support for appeals on a point of law to the Upper Tribunal, the Court of Appeal or the Supreme Court. The Government are to be congratulated on taking that step.

The lacuna in the amendment that I moved in Committee and on Report was that legal points might arise at First-tier Tribunal hearings. It was to that end that my colleague Mr Tom Brake put down an amendment in order to clarify that, or to try to obtain a concession from the Government in relation to that, when the matter came before the Commons. A number of points have been made about it. About 80 per cent of cases, maybe more, before the First-tier Tribunal are decided on the facts: whether a person has sustained a particular injury, whether that injury disables him from doing a particular job or whatever. It covers a wide range of possibilities, but it is usually a factual issue.

However, from time to time a point of law arises. Now, there is no difficulty whatever in identifying what a point of law is. The best illustration that I can make is the famous case of Donoghue and Stevenson-the snail in the ginger beer bottle. For the purposes of coming to a conclusion on the law of negligence and how it should develop, the House of Lords, in considering that case from Scotland in the 1930s, assumed that the claimant's facts were true; namely, that there was a snail in the ginger beer bottle that the claimant drank. Accordingly, all the argument was based upon that assumed fact. As a result, the law was clarified and developed, and is the foundation of the law of negligence to this day. When the case was remitted to the Scottish court to determine the facts, it was discovered that it was impossible to prove that there was a snail in the ginger beer bottle at all. Consequently the claim was, I think, settled, or it may have failed, but that is the distinction. A point of law is when you have a difficulty in coming to a conclusion, even if the claimant's facts are true.

The First-tier Tribunal will frequently be faced with mixed facts and law. That is to say, it will have to determine what the facts are and, in that light, consider whether there is any legal problem in the statutory provisions-any point of law-which has to be decided as well before the claimant gets his compensation,

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allowance or benefit, or whatever it may happen to be. So there is no problem. Every day, in every court and tribunal, points of law are being disclosed, discovered, analysed and dealt with. Indeed, you cannot appeal from the First-tier Tribunal to the Upper Tribunal unless there is a point of law that the First-tier Tribunal identifies. Similarly, in going from the Upper Tribunal to the Court of Appeal or the Supreme Court, there has to be a point of law, so there is no problem-as there appeared to be among certain minds in the other place-as to what a point of law is.

The problem that one has to face is: can an unrepresented applicant determine himself whether there is a point of law? There are two answers to that. First, any tribunal with a legally qualified chairman will perceive that there is a point of law involved in coming to a conclusion on the case, so it is in the hands of the chairman of the tribunal to determine whether a point of law arises. If it is unexpected, he can stop the case there, adjourn it and give legal aid for the case to be argued properly by a lawyer who is familiar with the statutory provisions. There is then equality on both sides. However, there is another approach. In the criminal context, if I am prosecuting and the defendant is representing himself when appearing in court, and if I as the prosecutor-the qualified lawyer-realise that a point of law arises which the unrepresented defendant has not realised, it is my professional duty to tell that defendant in a criminal case, "Look, there is a point of law in your case, which you should mention to the judge. Let's have a discussion about it". It is my job to bring it out.

I suggest to the Government that when it comes to tribunals, anybody representing the state-the Government or a government department-in a tribunal should be under a duty, which regulation should point out, to inform an unrepresented applicant if that state representative appreciates that a point of law arises. This is so that before they even get before the tribunal, the state representative will have told the litigant or applicant in person, "Look, my friend, you have a point of law in this case, which you must mention to the tribunal judge. If you don't do it, I will". That is the tradition of the legal system, and it must apply even when the state is represented not by lawyers but by representatives of the department in question. I urge upon my noble friend that he takes that on board and ensures that there is such a duty, as there is elsewhere, for lawyers to point out to the unrepresented applicant that there is a point that he should take.

I am very pleased that points of law will be properly dealt with under the government amendment. I hope that the moves that the Lord Chancellor makes to ensure that, where a point of law arises in a First-tier Tribunal, a case is either by agreement put forward for legal aid or the tribunal chairman will stop the proceedings and adjourn them until the point can be properly argued. In my view, that is the way in which all the fears that have been expressed on the position of the unrepresented applicant will be dealt with.

Lord Low of Dalston: My Lords, I supported the amendment tabled by the noble Baroness, Lady Doocey, on Report, so I have no hesitation in supporting the

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more limited amendment moved so fully by the noble Lord, Lord Bach, this evening. I hope that the House will ask the Commons to think further on this matter. I will say something about the substance in a minute, but I am glad that the noble Lord, Lord McNally, has emphasised the question of financial privilege because I want to say another word about that, if the House can bear it.

I come at this from a slightly different angle. There has been a change in the composition of the House of Lords in the past 10 years. I am not referring to the reduction in the number of hereditaries but to one that has been rather less remarked; namely, the appointment of so-called people's Peers by the Appointments Commission. I am not greatly enamoured of the term "people's Peers" but, for once, it may perhaps point to a reality that is worth observing-the links that those Peers, not being just the great and the good and the beneficiaries of political patronage, have with the diversity of civil society, which is something that the Appointments Commission has been keen to foster. They have been appointed for the distinctive contribution that they make and their ability to devote sufficient time to the work of the House. That last is an expressed criterion of appointment. I would not want to make too much of this, and I certainly do not wish to disparage other Peers, but the so-called people's Peers have been specifically appointed on merit for the time, perspective and expertise that they can bring to the work of the House, including that of scrutinising legislation, and for their ability to reach and give a voice to parts of society that are not always reached.

That is part of what makes the Lords more accessible in some ways than the Commons. It is this House and not the other place that has been widely seen as speaking for the vulnerable and dispossessed in our consideration of the Welfare Reform Bill and this Bill. The House has done itself a deal of good. This may not be election but it adds a measure of legitimacy, or at least detracts somewhat from the air of illegitimacy, which is said to attend this House. We all know that the Commons has primacy in matters of supply, but I am sure that I speak for my colleagues when I say that this blanket resort to the claim of financial privilege as a ground for the summary negation of weeks of the very work we were appointed to this House to perform sits very ill indeed with the job description on which we were appointed to this place. It seems to me that it is the Commons' heavy-handed use of the claim of financial privilege and not the existence of the House of Lords that deserves to be likened to what is going on in Syria or an affront to democracy.

The noble Lord, Lord Martin, whom we all greatly respect, and the noble Lord, Lord McNally, whom we also respect, say that the assertion of privilege is a completely objective matter decided on impartially by the Speaker and his advisers and has nothing to do with the Government. The Speaker may be the conduit through which these claims are asserted but, with the greatest respect, as the noble Lord, Lord Howarth, has indicated, if you believe that the Government have nothing to do with it, you will believe anything.



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Scholars differ about the extent of financial privilege but Dr Jeff King, a senior lecturer in law at University College London, said:

"The Lords has the clear right not to accept the Commons assertion of privilege without a protest".

9 pm

Lord Martin of Springburn: May I interrupt the noble Lord? It is very kind of him to mention me. I support everything that he says. However, on privilege, all the Speaker does is to remind the House that it is dealing with amendments that have come from the other place that involve privilege. If the other place wishes to accept those amendments, that is recorded in the Journal of the House. That is all the Speaker does. I make the point because when this last came up, there was an implication that the Speaker was perhaps pushed by the government Whips. I just make the point that the Speaker does not often listen to the Whips. In fact, the Speaker meeting the Whips is usually like a penance during Lent. I agree with everything that the noble Lord, Lord Low, has said. The reasons given are not a matter for the Speaker. They are agreed in the reasons room after decisions have been made. The reason can be to do with finance, but on other occasions other reasons are given. I hope I have not been too long-winded in interrupting the noble Lord's flow.

Lord Low of Dalston: I am very grateful to the noble Lord. We are in a happy state of accord. He agrees with everything that I say and I agree with everything that he has said. I do not wish to suggest that the Speaker in the other place acts in any way other than objectively. I do not think that the Speaker brings any kind of subjective judgment to bear on these matters; he just rules on these cases. However, it stretches credulity to suggest that forces other than the Speaker-to whit, the Government-may not have a role in raising the matters about which the Speaker has to remind the House. That is all that I meant to say.

I am nearly at the end of this point but I shall go back to the beginning of the quote from Jeff King of University College London. He said:

"The Lords has the clear right not to accept the Commons assertion of privilege without a protest. At risk is the Lords' future scrutiny of legislation on ... the whole of social policy. At the least one hopes the Lords will respond that they do not consent to the Commons' use of financial privilege on this bill constituting a precedent".

He was referring to the Welfare Reform Bill on that occasion. As a non-party-political Peer, appointed by the Appointments Commission-if not with a particular mandate, at least on a particular set of understandings-I protest at the blanket use of financial privilege by the Commons to summarily defeat amendments passed in your Lordships' House. We should not consent to its constituting a precedent, either.

In coming to the substance, I can be fairly brief. The noble Lord, Lord Bach, has set out the case very fully and I do not want to reiterate unduly what he said. However, I underline that this amendment is of enormous significance. The Government's proposed exclusion from legal aid of the area of welfare benefits is colossal. According to their own impact assessment, removing welfare benefit cases from the scope of legal

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aid will deny at least 78,000 disabled people specialist legal advice on complex welfare benefit problems. Citizens Advice has estimated that it will amount to 49 per cent of its current legal aid caseload.

Disabled people are particularly disproportionately affected by the removal of welfare benefits from the scope of legal aid. As the noble Lord, Lord Bach, said, 81 per cent of benefits cases heard in the First-tier Tribunal relate to disability benefits. As we know, the Government are undertaking a dramatic overhaul of the welfare benefits system. This will see millions of claimants reassessed and moved on to different benefits. For example, plans to replace disability living allowance with the personal independence payment will affect more than 2 million people. At a time of such unprecedented upheaval in the welfare system, access to legal advice is going to be essential, as inaccurate decisions will be inevitable. Indeed, even after three years of discredited Atos Healthcare assessments of people seeking to transfer from incapacity benefit to employment and support allowance, the success rate of appeals is actually going up. As we have heard, it was 45 per cent at the last count. As the noble Lord, Lord Bach, said, legal advice makes all the difference; it is not just marginal. According to the MoJ's own figures, you are 78 per cent more likely to win your case if you have had legal advice. Of those appealing against their assessment for ESA, 70 per cent of those who are advised win compared with only 43 per cent of those who are not advised.

The Government are in danger of getting themselves into the position where they are criticised for kicking a man down and then depriving him of the means of getting up again. I think we should give the Commons another chance to avoid that charge.

Baroness Doocey: My Lords, I speak in support of Amendment 168B. I share the view of the noble Lord, Lord Bach, that the Government's concessions are not an adequate substitute for the loss of legal aid.

The Government have acknowledged the fundamental principle that civil liberties are nothing if you cannot enforce them. If you do not have the money or the knowledge to defend your rights then, sadly, these rights become meaningless. That is where the legal aid system is so important, particularly for the many disabled people who depend on welfare benefits in order to survive.

The Government seem to support this principle in theory but not in practice. The Secretary of State's statement that such legal aid should be available only on a "point of law" offers little in the way of practical help for disabled people appealing against incorrect welfare benefit decisions, the majority of which are then overturned on appeal. The difficulty is that it is completely unrealistic to assume that people with no legal knowledge whatever will be able to understand what a point of law is. I believe that many people will not even bring an appeal because they will not have the knowledge or the confidence to do so without legal advice.

The Government's belief that their advice services fund is an adequate substitute for legal aid is groundless because it will not mitigate the cuts in legal aid. The fund was hugely oversubscribed, and in this

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financial year less than a third of the money has been allocated to organisations delivering advice on welfare benefits.

The Government have announced a further £20 million of funding for the next two years, and that is of course most welcome. However, this is likely to be spent plugging the gaps in generalist advice services caused by cuts to other funding sources, leaving specialist welfare benefits advice unfunded. Once legal aid cuts are introduced, the advice sector will lose at least £100 million a year, so the £20 million fund will make only a very small dent in this shortfall.

The inadequacy of the funding is exacerbated by the rising demand for services that most charities are facing. A recent survey carried out by Justice for All found that nearly 90 per cent of advice charities had more people coming to them for help in the last year, yet over 80 per cent of the same charities also predicted that, despite this increase in demand, they will be able to help many fewer people next year.

Discretionary funding is no alternative to retaining legal aid because it imposes no duty on the Government to fund specialist services and will guarantee nothing for advice agencies. Unless welfare benefit advice is retained within the scope of legal aid, it will limit access to justice and the right of people to enforce their freedoms.

The Department for Work and Pensions already reimburses the Ministry of Justice for the cost of running the tribunals, which was necessary after the huge increase in appeals caused by the introduction of employment and support allowance. It is unclear to me why this approach cannot be extended to cover the cost of independent advice to improve the effectiveness of these same tribunals.

We must do everything possible to protect the most vulnerable people in our society. I therefore urge the House to continue to press the Government to give more concrete assurances that disabled people will be able to access legal aid advice when appealing welfare benefit decisions.

Lord Howarth of Newport: On 17 April, the Lord Chancellor said to the House of Commons:

"There is no doubt that the present level of legal aid provision is on any measure unaffordably expensive ... Even after our reforms have been carried ... we will still have by far the most costly legal aid system in the world. It is almost twice as expensive as that in any other country per head of population".-[Official Report, Commons, 17/4/12; col. 217.]

The amendments that the other place addressed on 17 April concerned civil legal aid, and I would be grateful if the Minister would advise us as to which common law jurisdictions in other countries actually spend twice per head of population on civil legal aid that we do. I recognise that our expenditure on criminal legal aid is very high by international standards, but the Government have not chosen to reform criminal legal aid. We are dealing here with the reform of civil legal aid. I wonder whether what we are being asked to accept is based on a false premise. I very much doubt that it is correct that our expenditure on civil legal aid is so enormously out of line as the Lord Chancellor suggested. I am very willing to be corrected.



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At all events, my noble friend Lord Bach ventured an estimate that the cost of the amendment that we are debating now might be some £15 million. Again, I ask the Minister whether he believes that, in the context of public expenditure of the order of £100 billion per year, the expenditure of £15 million to provide legal aid to support welfare benefit claimants in cases where there is real reason to doubt whether the assessment or the adjudication that has been made of their case is appropriate is unaffordable or disproportionate.

The Lord Chancellor last week in the House of Commons put the figure at £25 million, so £15 million or £25 million in relation to social security expenditure of £100 billion does not seem inordinately expensive. Yet, he said:

Is it appropriate to describe such an area of expenditure as a relatively low priority? We are dealing with cases of people in poverty. There would be no question of their being eligible for welfare benefits unless they were on low incomes. The risk for them, if they are not awarded benefit, is that they will be cast into abject poverty. For them, this is not a matter of relatively low priority, and nor should it be for us.

The ration that the Legal Services Commission offers of £160 in legal aid to support advice and assistance in welfare benefits cases at an early stage is by no means extravagant-indeed, it represents very good value for money-and may make all the difference to people who may be awarded legal aid or benefits from organisations funded by legal aid as to whether they can lead decent and proper lives, reconstruct their situations, support their families and live other than in poverty.

9.15 pm

The Lord Chancellor also made the point that the welfare benefits tribunals are accessible and have been designed as tribunals in which it is realistic and practical for ordinary people to argue their case. Well, I have heard it suggested by people who are extensively experienced and closely familiar with the work of the tribunals that that is not a valid assertion: that the employment, immigrations and other tribunals that are relevant to this particular amendment are places in which complex legal issues are transacted, where it is not at all a simple or realistic thing for people who have not been advised to make their way and make their case.

Attention has already been drawn by my noble friend to the fact that universal credit is to be brought in. I understand that the transition to universal credit will not be completed for several years, and could take as long as until 2017. This is an enormous legal and regulatory set of changes. With the best will in the world, and I do not doubt that the administrators and adjudicators of the social security system have the best will in the world-why should I doubt that?-it will be difficult for them to cope with the scale and complexity of these changes. My noble friend was quite right to anticipate that there will be a high error rate in the interpretation of the new law, not just in matters of fact. Error rates will start at the lower levels of the system. Unless those legal complexities are picked up,

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recognised and properly dealt with at the lower levels, there is no virtue in allowing legal aid at the higher levels because the cases will get screened out before they ever reach the higher levels. I am worried that the concession that the Government offered in the other place last week may be less real than it may have seemed in the eyes of government supporters there.

For all these reasons it is very rash and irresponsible to withdraw legal aid in this area, particularly at this time. The Government simply cannot know the extent of the damage that may be done by the withdrawal of legal aid and the removal of this area of benefits from its scope. I hope very much that they will agree with us now, and if they do not I hope that this House will ask the other place to think again on this peculiarly important issue.

Lord Wigley: My Lords, I am glad to have the opportunity to support the amendment of the noble Lord, Lord Bach, and the comments of the noble Baroness, Lady Doocey, and the noble Lord, Lord Low, particularly in the context of disability. I speak having sat through the Welfare Reform Bill, as a number of us did for many months during the winter, and having seen the complexity that was just referred to a minute ago by the noble Lord, Lord Howarth. When the regulations under this legislation come forward and people's well-being-the basics of their lives-may be at stake, they may need the ability to follow appeals to wherever they go.

I want to ask the Minister about the new provisions set out by the Government in Amendments 240A and 240B. They are welcome in that they preserve legal aid for welfare benefits advice for onward appeals to the Upper Tribunal, the Court of Appeal and the Supreme Court. As mentioned earlier, such appeals rest on points of law that are highly complex and which lay people can hardly be expected to cope with alone. Now that the Government have started to recognise the problems inherent in points of law in appeals, why do they not see fit to roll out the same provisions for other areas of law where points of law would arise? Surely such provisions should not be limited just to welfare benefits appeals. Now that the Government have the power to change this Bill by order, especially in respect of the scope of legal aid, I would welcome the Minister's assurance that they will look again at retaining legal aid for advice on points of law in other complex areas of law, for example immigration appeals. Important principles arise from the changes being made and I would be very glad to have some indication from the Minister about where this might be taking us.

Lord Martin of Springburn: My Lords, the noble Lord has made many very interesting points but, at the end, he said that it would be good if the House of Commons had another chance to look at this matter. If the amendment were carried, the other place would have a chance to look at this. I heard the Minister's comments about financial privilege, but I do not share his point of view that if we put back the amendment we are being unfair to the House of Commons or to the traditions of this House.

I think of the situations that I had to face in my former constituency where there was a great deal of

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poverty. I heard many academics say that it was terrible that in the east end of Glasgow and in parts of the north end of Glasgow the life expectancy of people was such that you had a better chance of survival if you lived in Calcutta. It is all very well for an academic to say that, but people in areas of great poverty in my former constituency did not always get the benefits to which they were entitled. But if they go to the first line of appeal, it will be most unfair if they do not get legal aid. In the city of Glasgow, many lawyers recognise that people who have little or no income need the help of lawyers to articulate their cases.

We should not forget that when an appeal is made, often a recipient cannot speak up for themselves-perhaps because they are stroke victims-and cannot communicate, and therefore the carer has to worry about the benefits that they are losing. The carer has a 24-hour job. When someone says they are a carer it rolls off the tongue, but that carer can be up at three in the morning or may be denied the opportunity of a social life. They have to worry about going along to a tribunal on behalf of someone whom they love dearly and whom they are caring for seven days a week and it is a great relief to many of those people if they can get legal aid which will help them so much.

It used to be the case-I know it was a while ago-that if a working man or woman had to get the help of a solicitor, they had to go into the city centre but then lawyers realised that help was needed in the peripheral areas. Many legal companies operate in what used to be shops. They rent shops and now they are in the heart of very poor communities. It would be most unfortunate if people who need help, particularly carers, do not get assistance from those who are legally qualified and able to articulate a case for them.

Lord McNally: My Lords, when the Government launched their consultative Green Paper on this legislation nearly two years ago and I made one of my first ministerial responses from this Dispatch Box, I made it clear that I was aware that we were making some tough and difficult decisions about legal aid. We have heard many times in many debates over the past 18 months that X, Y, or Z is attacking, undermining, or damaging the most vulnerable in our society. I have listened to those debates, but I remain convinced that what would have damaged the most vulnerable in our society more would have been if we had not taken the tough economic decisions necessary to put our economy right. It is no use noble Lords opposite shaking their heads. We were a lot poorer than we thought we were and every government department has had to make tough decisions. My own has had to take cuts of 23 per cent across the board over this spending review. That has meant tough decisions not only in terms of legal aid, but in staff numbers and in other aspects of the Ministry of Justice's work.

We have never ducked the fact that we have made some hard decisions in this matter. Neither have we ducked the fact that our approach to cutting the legal aid budget meant taking the bulk of social welfare law out of scope. We had taken the decision to focus on civil legal aid. The term "relatively low priority" refers to our view that in terms of criminal legal aid we are

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talking about people's liberty and reputation. It is an important part of our system that people should have legal aid in this area.

Lord Howarth of Newport:Is the Minister therefore confident that there is no waste in the criminal legal aid budget and that there are no rackets there? Is he confident that this is an area that did not need the Government's attention and that since the Treasury obliged his department to find savings of 23 per cent it really needed to focus its effort on the civil legal aid budget?

Lord McNally: On the contrary. I am sure that the noble Lord, Lord Bach, is ready to leap to his feet to draw attention to the fact that we have carried through the savings in criminal legal aid that the previous Administration put in train.

Lord Bach: Yes, I am pleased that the Government have done that, but that figure is included in the 8 per cent that they have taken off criminal legal aid. They have taken 29 per cent off family legal aid, as well as 53 per cent off social welfare law. Why that distinction? Why take 8 per cent from a large amount on criminal legal aid, 29 per cent on family law but 53 per cent of a pretty small budget on social welfare law? That is deliberate, is it not?

9.30 pm

Lord McNally: Of course it is deliberate. One of the things about that rather long opening speech is that it is the same speech that the noble Lord has been making for 18 months. I appreciate that he disagrees with our judgment on social welfare law, but we have never made any bones about the fact that that is where we took a tough decision. On criminal legal aid, I am quite sure that we will return to it, but the judgment we made was that since the previous Administration had made a series of quite significant cuts in criminal legal aid, we would allow them to bed in before returning to that matter. The fact is that the decisions have been tough, and we stand by the fact that tough decisions were required in the economic circumstances that we found ourselves in and also because successive Administrations have said that the legal aid system was in need of reform.

I do not know whether we have got the specific answers to the question asked by the noble Lord, Lord Howarth, about the balance in other common law countries. I have never used comparisons with continental legal things; I have always made the point that as far as Britain is concerned the comparison is with common law countries. Many months ago, on my return from the Commonwealth Law Conference in Sydney, I mentioned that the one message I brought back from Commonwealth countries with legal aid systems was their amazement at the generosity of the British system.

We are in a process in which we have had to take tough decisions. Some of the contributions today by the noble Lords, Lord Low and Lord Martin, and the noble Baroness, Lady Doocey, almost made the case

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that the only practical help is legal advice. That is not something we accept. We think that in these cases there are other forms of advice that are just as valuable.

On the point made by the noble Lord, Lord Martin, that I had said that we cannot give offence to the House of Commons, I think that if he checks Hansard he will find that I have never been against this House giving offence to the House of Commons. Indeed, I quoted the Companion earlier:

"Criticism of proceedings in the House of Commons or of Commons Speaker's rulings is out of order".

However, the Companion goes on to state that,

Lord Martin of Springburn: I think that the Minister suggested that for this House to send the amendment back again was against the conventions of this House.

Lord McNally: It is not. I quoted from the Cunningham committee which held that opinion. There was a point when it was against the conventions of the House.

Lord Martin of Springburn: That is an opinion of a committee; it is not a convention of this House. The opinion of a committee is just that: an opinion.

Lord McNally: Nobody is suggesting that if this House wants to send the amendment back, it is not entitled to do so. I heard what the noble Lord, Lord Low, said about the importance of people's Peers. He may know that it is my long-standing opinion that having a party-political label does not somehow lower one's capacity to take views on legislation. Indeed, for many hours in this House the only people taking a detailed view of legislation are those on the party political Benches. I admit and acknowledge that recent appointments have brought valuable experience to this House.

Although my membership of the other place was brief, I remain at heart a House of Commons man in terms of where-

Lord Low of Dalston: With respect, in my remarks I said that I had no intention of disparaging other Peers. More than once I have gone on record as saying that the contribution of Peers appointed from political parties is indispensable to the effective working of this House. I am certainly not one of those who would like to see the House of Lords a politician-free zone.

Lord McNally: The point is that it is still an appointed House and is an advisory and revisory Chamber. As such, where this House decides to draw stumps on a particular issue is a matter for its judgment. Although financial primacy may occasionally irritate this House, again, as a House of Commons man and as I said earlier, this is not something recently drawn up by the coalition agreement or even by the 1911 Act. It is 300 years of our much-valued history during which kings have lost their heads and their throne in the primacy of the House of Commons on financial matters. Much as I should like to flatter the House on this matter, I still believe that it is important.



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I understand the desire to see more legal advice in these cases. As I said in my opening remarks, we believe that in most cases individuals will be able to appeal to the First-tier Tribunal without formal legal assistance. I quoted the president of the tribunal in highlighting that in many cases eliciting additional information from the appellant was the most useful exercise that the tribunal carried out.

I also think that we are not being idle while welfare benefit reforms are being brought forward. A number of proposals currently are being considered across government that should make it easier for people to receive the right provision of entitlement in areas such as welfare, benefits and education. The most notable of these is the universal credit which will help to reduce the scope of error significantly as it makes the whole benefit system simpler and easier to understand. We are working closely with DWP as part of its wider welfare reform programme to improve the quality and effectiveness of its initial decision-making.

As I have said, we have gone into this matter fully and it is not something that we have ducked. From the very beginning, from the first consultation paper, we took a decision that social welfare would be taken out of scope. I know how passionately the noble Lord, Lord Bach, feels about this matter. If he was in my position, it is not the road he would have taken to fulfil his party's commitment to cut legal aid. That is the nature of things. This is the judgment of the Government.

We are not looking at complex points of law in other areas at the moment. As the noble Lord, Lord Wigley, said, the problem is that if you make a concession somebody immediately stands up and says, "Why not look at it in other areas?". We can build on what the Lord Chancellor promised about talks with the DWP. The noble Lord, Lord Thomas, in explaining what he was proposing, illustrated why we have been careful in putting this matter forward. We will look at it carefully and I will draw to the attention of my right honourable friend the Lord Chancellor the specific proposals he made in his speech.

As I have said before, we have had a very thorough debate on this. It has certainly been very thoroughly debated in this place over the past year. I believe that it would be better now if the House were to accept the Commons amendments and the noble Lord were to withdraw his.

Lord Bach: I am very grateful to all noble Lords who have spoken in this debate. We have had the expertise of the noble Baroness, Lady Doocey, and the noble Lord, Lord Low, both of whom are experts on the disabled and the problems that they face. I am also very grateful to my noble friend Lord Howarth and the noble Lord, Lord Martin of Springburn, for their very knowledgeable contributions on this matter, and not least to the Minister for what he has had to say.

This is one of the central and most important debates of this whole Bill. It goes to the very heart of what the Government are seeking to do, which is effectively to ask whether social welfare law will survive in our jurisdiction. We currently have a system of social welfare law that we can be proud of. It is not perfect; it makes mistakes and it probably does not have enough money spent on it but it is not a bad

23 Apr 2012 : Column 1650

system, where not-for-profit organisations around the country-CABs, law centres, other advice centres and some Law Society solicitors-do wonderful work at very low rates, giving advice to the most vulnerable, the disabled and the poorest in our country.

The issue is whether claimants will continue to get the advice that they have been entitled to in the past-because there has been a consensus of the political classes of all the parties that that is the proper way for a mature legal system to behave-which helps them decide whether or not they have a case when they are dealing with the state. Without that advice, how will these people get to the tribunal in the first place? The Minister quoted the president of the Social Entitlement Chamber of the First-tier Tribunal. Is that the same president who has publicly said that he is appalled at the prospect of more and more claimants coming before his tribunals who have not had the benefit of any legal advice?

9.45 pm

Access to advice is going to be more essential in the years to come than in the past because of the reforms that have been made to the welfare and benefits system. The CAB, a most respected organisation and one which the Prime Minister himself frequently praises as an example of how British life should carry on, has produced a briefing for noble Lords for tonight's session. I will quote from a couple of places. It states:

"It appears to us that the policy intent of this legislation as regards much social welfare law, is that legal aid funded specialist advice should be collapsed into non-legal aid funded generalist advice thus obliterating the distinction. We do not agree with this approach, as in our experience those without specialist welfare benefits knowledge struggle to put together coherent review requests or appeals with no input at all from independent specialist welfare rights advisers".

It goes on to say that,

The CAB finishes its briefing to all noble Lords with this sentence:

"We therefore support Lord Bach's proposed amendment which would establish such clarity on the face of the Bill".

All this amendment does is to ask that the present system-as far as giving early legal advice to those who seek it because they have problems in the field of social welfare law and, in particular, welfare benefits-should continue, and that such advice should not be taken from these people. The Government's proposals are immoral because they have chosen to pick a fight with the poorest. I argue that it is unconstitutional because it is an attack on those people's access to justice. Where else can they get justice if they cannot get it through legal aid advice? The worst crime of all is that it is financially absurd. The small sum that the ministry might save by not giving legal aid for this advice will be overwhelmed by the sum that the state will have to pay out when things go wrong-when families break down, people lose their jobs and debts get worse.



23 Apr 2012 : Column 1651

This is a very important point. For the Lord Chancellor to describe it as relatively low priority only goes to show that although we have been debating these matters for months, he and some of his ministerial colleagues-although not the noble Lord, Lord McNally-just do not get it. They do not get the value of this particular part of our legal system. In the end, the question is what sort of a country do we want to live in? Do we want to live in a country where the most hard-pressed, the poorest, the most vulnerable and the disabled are actually helped by the legal system when the time is appropriate-when they need help it is there, and we provide it through pretty cheap legal aid-or do we want to live in a country where that just does not happen? We are in danger of moving backwards in this field, where the poorest and the most vulnerable-who this House has always been concerned to do its best for-will suffer. I ask the House, with all the passion that I have, to support the amendment in my name.

9.48 pm

Division on Motion G1

Contents 159; Not-Contents 197.

Motion G1 disagreed.


Division No. 6


CONTENTS

Adams of Craigielea, B.
Adonis, L.
Alli, L.
Alton of Liverpool, L.
Andrews, B.
Avebury, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Bilimoria, L.
Bilston, L.
Blackstone, B.
Boateng, L.
Borrie, L.
Bradley, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Clancarty, E.
Clark of Windermere, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corston, B.
Crawley, B.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donaghy, B.
Doocey, B.
Drake, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gavron, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grabiner, L.
Grantchester, L.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hanworth, V.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hilton of Eggardon, B.
Hollins, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.


23 Apr 2012 : Column 1652

Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
King of Bow, B.
Kinnock, L.
Kinnock of Holyhead, B.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
McAvoy, L.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Pannick, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Puttnam, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Reid of Cardowan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Soley, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Taylor of Bolton, B.
Thornton, B.
Touhig, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Woolf, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.

NOT CONTENTS

Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Barker, B.
Bates, L.
Benjamin, B.
Berridge, B.
Bew, L.
Black of Brentwood, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Burnett, L.
Byford, B.
Caithness, E.
Carlile of Berriew, L.
Cathcart, E.
Cavendish of Furness, L.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Deben, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Dykes, L.
Eccles, V.
Eden of Winton, L.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.


23 Apr 2012 : Column 1653

Fraser of Carmyllie, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glenarthur, L.
Glendonbrook, L.
Gold, L.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Home, E.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Loomba, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Mancroft, L.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newlove, B.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Parminter, B.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Ramsbotham, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Ryder of Wensum, L.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Tope, L.
Trefgarne, L.
Trimble, L.
True, L.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Verma, B.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Willis of Knaresborough, L.
Younger of Leckie, V.
9.59 pm

Motion G agreed.



23 Apr 2012 : Column 1654

Motion H

Moved by Lord McNally

170A 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.

172A 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.

Lord McNally: My Lords, the Motion contains amendments dealing with clinical negligence. We have debated the issue of clinical negligence at length, and I am grateful for the intensity and conviction of those who have spoken in support and those who have challenged the Government during the passage of this Bill. Before I go into the detail of this Motion, I remind noble Lords that we listened to their concerns and brought forward an amendment at Third Reading in this House which specifically addresses their concerns. This amendment puts beyond doubt that legal aid will remain available for babies who suffer brain injury at birth leading to a lifetime of care needs. This was in recognition that there are often difficulties in obtaining funding for these cases through conditional fee agreements due to the extent and expense of the investigations required.

Our amendment brings into scope claims where medical negligence causes a brain injury as a result of which the child is severely disabled. It is intended that this will cover cases of medical negligence where the child is at its most vulnerable, during its time in the womb, during the delivery, and immediately afterwards. The House of Commons raised concern that there might be arguments about whether a particular child falls within the scope of this amendment. We believe that the amendment is clear in this regard. It provides for funding where the negligence occurs in the period of time beginning with the point of the mother's pregnancy until eight weeks after birth. In recognition of the fact that premature babies are particularly vulnerable, the government amendment also provides that where a baby is born prematurely, the eight-week period will be taken to start from the point at which the mother would otherwise have begun her 37th week of pregnancy.

We have also provided that where the negligence occurs beyond the eight-week point, a safety net will remain in the form of the exceptional funding scheme, in those cases where the failure to fund would amount to a breach of the individual's rights under the ECHR. Contrary to the concern expressed in the other House it is right that all other cases should first seek a conditional fee agreement, and where one is not available-for example, due to high disbursement costs-then exceptional funding may be available, taking into account factors such as the complexity of the case and

23 Apr 2012 : Column 1655

the capacity of the litigant or litigation friend to present their case. The Government's amendment covers the vast majority of clinical negligence children's cases currently funded through legal aid.

My noble friend Lord Cormack has tabled an amendment in lieu of his Lords Amendment 172, which seeks to bring into scope other children's cases involving clinical negligence that occurred when the child was below the age of 16, rather than 18. We believe that this amendment would still bring into scope a whole range of less serious cases which do not involve lengthy and detailed investigations or multiple expert reports, which are caught by government Amendment 216, and which are more suited for funding through a CFA in exactly the same way as for adults. We believe this to be the case whether the child is 18 or 16. The Commons has decided against Lords Amendment 172, and it is my opinion that my noble friend's amendment in lieu will elicit the same response. I urge my noble friend to withdraw his Motion.

On Amendment 170, the Government have already made special provision for expert reports in clinical negligence reports to the Jackson provisions in Part 2. This will mean that no one is required to pay up front for expert reports in clinical negligence cases. Providing for all expert reports would be more costly than the current legal aid arrangements. As I have said previously, at present solicitors have to choose whether to use legal aid or a CFA to fund the case. Only 18 per cent of cases where the funding method is known use legal aid. The amendment would open up legal aid for all of those cases which are currently funded by way of CFA. Lawyers would be able to claim their success fee while using legal aid to fund expert fees, and the legal aid fund would carry all of the solicitor's or insurer's risk. This could result in a significant expansion of the legal aid scheme and significant costs. We do not consider this a fair outcome for the taxpayer, who should not be required to pay where cases are already taken forward and paid for by alternative means. I beg to move.

Motion H1 (as an amendment to Motion H)

Moved by Lord Cormack

172B* Page 115, line 5, at end insert-

"Children and clinical negligence

(1) Civil legal services provided in relation to clinical negligence in the course of the provision of clinical services which took place at a time when the individual was child.

(2) In this paragraph-

"clinical negligence" means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);

"clinical negligence proceedings" means proceedings which include a claim for damages in respect of clinical negligence;

"child" means a person under the age of 16."



23 Apr 2012 : Column 1656

Lord Cormack: My Lords, I will not detain your Lordships long. This is a simple, precise amendment. It does not cover the ground of Amendment 170, but it does repeat, almost exactly, the amendment which your Lordships' House approved just before we rose for the Easter Recess. When I moved the amendment at that stage, I made it quite plain that I felt that it was very wrong to single out a specific group of children who had suffered as a result of clinical negligence, and to leave the others. I have heard, of course, what my noble friend has said, and I do not for a moment question his personal commitment to these issues. But we have not had any adequate response in the very brief debate in the House of Commons, and my noble friend merely repeated this evening the amendment that the Government introduced at an earlier stage, which of course we welcome, but which creates an anomaly and an unfairness.

When we debated this last time, my noble friend Lady Eaton-who signed the earlier amendment along with the late Lord Newton of Braintree-made a very moving speech in which she talked about a child who had not suffered from brain damage, but who had been paralysed. She talked about the needs of a child who would grow up to be able to walk, in spite of the brain damage, and a child that would remain paralysed for the rest of his life. It was a movingly made speech, which illustrated what this amendment is all about.

I have heard what my noble friend has said about other means of getting support. I would just repeat a point that I made in my last speech: the National Health Service-of which we are all proud, and which we have spent many months discussing in your Lordships' House during the course of this parliamentary Session-is an agency of the state. If anyone suffers as a result of the negligence of an agency of the state, then the state should, automatically and properly, provide a means of redress. This amendment does not go so far as that, because it concerns itself wholly and exclusively with children. I believe that, in all fairness, it is an amendment that even at this late hour should commend itself once again to your Lordships' House. I believe that it would be appropriate for us to ask the other place to think again. It did not think very much about this one, and it really should. In his brief intervention this afternoon, my noble friend Lord Higgins referred to the inadequacy of time given in another place to your Lordships' considered amendments. As we look to the future of your Lordships' House, we ought to consider, in the imbalance between the two Houses, whether it might not be appropriate to do a little more insisting, if what we have deliberated on is so summarily dismissed.

Given the present conventions, and the relationship between the two Houses as they exist, I do not believe that one should go on and on playing a game of ping-pong. However, in this instance we have every right to say to another place, "Please think about this. Think about the children who suffer as a result of clinical negligence. This is your opportunity to redress an imbalance", because welcome as it is, and I repeat that it is welcome, what the Government have done does not go far enough. Let us send this back. Let the other place think, and because there are no large sums of public money involved in this-indeed it could be

23 Apr 2012 : Column 1657

argued that we are probably in the long term saving public money-let them in their charity look to those who are most deserving of that charity. I beg to move.

Baroness Finlay of Llandaff: My Lords, I very strongly support the amendment. There is a very strong reason for looking at children separately from adults. Indeed the age of 16, as outlined in this amendment, makes sense because in the General Medical Council guidance 16 is the age at which a child can be assumed to have capacity to consent. When treating a child who is actively withholding consent to treatment and who is aged between 16 and 18, the doctor should and must think again. Those under 16, however, go into treatment at the consent of their parent or guardian, not of themselves. If they are then subject to error, whether that is unfortunate or negligent or almost wilfully neglectful, they have done so not with their own informed consent but with that of others.

The amendment that the Government have brought forward, which relates to neonates and birth-related trauma, is, I suggest, fraught with difficulties over the problem of premature babies and accurate estimation of the date on which they would had been born. Even in the very best of hands, estimates of their expected date of delivery have to have a plus or minus of four days around them. That would impose an eight-day error. I fear that there will be endless arguments. Should there be a small, very premature baby in a neonatal unit, and should somebody inadvertently inject the wrong drug or should their ventilator inadvertently be set incorrectly-switched off from oxygen levels, or whatever-I fear that there will be arguments around whether the expected date of delivery was really the one that had been written on the notes. Was it actually two days forward from that or two days back, depending on the date of the error?

This amendment avoids that kind of deeply traumatic argument and recognises the fact that a child undergoing treatment has not given their informed consent to it. That treatment has been at the consent of others acting on that child's behalf. They must therefore be treated differently from adults because they are vulnerable on two counts: first, their age, and, secondly, because there was of course something wrong in the first place for them to be entrusted to the care of the service which then failed them.

Lord Higgins: My Lords, perhaps I may intervene for a moment to ask my noble friend a rather simple-minded question. The Reason given by the Commons set out in 170A states:

Can my noble friend briefly tell us exactly what these financial arrangements are, to the extent that they affect the state of the economy in terms of public expenditure and so on?

10.15 pm

Lord Thomas of Gresford: My Lords, there is something ironic in the desire of the noble Lord, Lord Cormack, to maintain legal aid for children as a child might be

23 Apr 2012 : Column 1658

very much better off pursuing a claim by means of a conditional fee agreement as things stand at the moment. I shall explain.

My noble friend Lord McNally has on two separate occasions during the Bill's passage outlined fully the Government's intention to introduce a supplementary legal aid scheme, which was part of the Access to Justice Act 1999, passed by the party opposite, whereby there would be an automatic 25 per cent deduction from the damages recovered by a claimant who is legally aided. As things stand, if a child succeeds under legal aid in obtaining damages, 25 per cent of those damages will be taken by the state under the proposed supplementary legal aid scheme, which will be used to fund other applicants for legal aid automatically. Under a conditional fee agreement, the solicitor who acts on behalf of the child claimant will be entitled to recover his fees, if he can establish the case, from the other side. But when it comes to the success fee, under these proposals, it will be recoverable from the damages of the child and limited to 25 per cent of those damages.

A success fee cannot exceed 100 per cent of the lawyer's normal fees that he recovers from the other side, so it may never come anywhere near the 25 per cent of the damages that the child recovers. Under a conditional fee agreement, the success fee is related to the amount of the fees, not the amount of the damages. There is not a 25 per cent deduction from the child's damages automatically. That is just a cap to prevent a success fee from going to an extreme amount. Consequently, it may be that the legally aided child, who will have an automatic 25 per cent reduction of his damages, will be in a worse position than one under a conditional fee agreement. I do not think that that point has properly sunk in. It is for that reason that I look to the Government, perhaps not tonight but at some time if regulations come forward for the supplementary legal aid scheme, to exempt children from the 25 per cent reduction proposed under that scheme. As things stand, 25 per cent will be taken off. For those reasons, I do not think that the amendment proposed by the noble Lord, Lord Cormack, assists the children that he wishes to help.

Lord Beecham: If I understand the noble Lord, Lord Thomas, correctly-he is obviously more conversant with the Access to Justice Act 1999 than I am-provision is contained within that Act for regulations to be made-

Lord Thomas of Gresford: It was never implemented.

Lord Beecham: I was about to say precisely that. It was never implemented so it is open to the Government to lay regulations that would require that 25 per cent deduction. It is equally open to them to do what their predecessors did and not lay such regulations or make that deduction. I am entirely at one with the noble Lord in saying that that deduction should not be made, but that is the situation at the moment.

With respect to the noble Lord, I do not think that his argument takes us very far at all. The Opposition support the amendment proposed by the noble Lord,

23 Apr 2012 : Column 1659

Lord Cormack, despite the fact that it appears to contain a grammatical error. It refers to,

There is an indefinite article missing somewhere. However, that is a trivial point. The substantive point is one that was made effectively by the noble Baroness, Lady Eaton, when we debated this on Report. In the debate on the amendment that was discussed on that occasion, she talked of the figures involved in legal aid expenditure for children. She pointed out that legal aid for clinical negligence claims involving children cost the Legal Aid Fund some £4.6 million, of which £3 million was spent on precisely the cases of neonatal injury to which the Minister referred and to which the Government have responded by restoring them within scope. Therefore, as the noble Baroness pointed out, the net saving would amount to £1.6 million for the Legal Aid Fund.

It is time to dispose of some of the shibboleths about tough decisions and the like. Apparently it is not a particularly tough decision for the Department for Communities and Local Government to spend £250 million on weekly bin collections. It seems to me and to the noble Baroness, Lady Eaton, and presumably the noble Lord, Lord Cormack, a very tough decision to deny legal aid at a cost of £1.6 million to children under the age of 16 who suffer clinical negligence other than through the limited but welcome concession that the Government have made in respect of the injuries to which we have referred.

I also remind your Lordships of the view of the National Health Service Litigation Authority, which I quoted last time and will quote again. It stated:

"We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements ... in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid".

That view was about clinical negligence claims at large. Therefore, one might think that those concerns would surely apply to claims for children under the age of 16.

This does not remotely impinge on the huge problems that the Minister constantly reminds us of in relation to deficit reduction and the like. It is an almost trivial sum of money. By no conceivable stretch of the imagination could it be justified by financial privilege, which is the cover under which the Government approach this amendment. Let us be clear about financial privilege because it has been bandied around today and on previous occasions. Of course the Commons has the right to assert financial privilege, which is an objective process as far as the Clerks and the Speaker are concerned. However, it does not stop there. The Commons can waive financial privilege. If the Government wished for financial privilege to be waived, it would pass almost without opposition and frequently does. It is often waived. The Government choose not to waive it in connection with this and the other matters to which we have referred. It is a fig leaf behind which Ministers hide. I hesitate to convey an image of Ministers brandishing fig leaves; that would be an unwelcome variation on a theme. However, it is

23 Apr 2012 : Column 1660

a pretty feeble and diminutive fig leaf for any Minister to hide behind. It is not an adequate defence for what they are doing.

I repeat: the figures show that the potential savings are minimal. Undoubtedly, justice will not be accessible for too many young people except in an expensive form potentially through a conditional fee agreement-even allowing for how the noble Lord, Lord Thomas, described it. I very much hope that the House will build on the Government's welcome concession with this small additional financial burden and extend justice to those who need it.

Lord McNally: My Lords, the noble Lord, Lord Higgins, quoted the Reason, which states that the amendment,

and goes on to state that,

As an old parliamentarian, he knows that if an amendment infringes privilege, that is the only reason that will be given. Obviously, when taken against the national economic crisis that we are dealing with, these various precise sums will always be able to be argued away as almost too trivial to worry about.

Perhaps I may relate to the House some other thoughts that have also motivated our approach in trying to reform legal aid in this area. Clinical negligence claimant lawyers' bills, which the National Health Service Litigation Authority has to pay, have more than doubled from £83 million in 2006-07 to £195 million in 2010-11. As part of this, CFA success fees to claimant lawyers have more than doubled in the past four years from £28 million to £66 million, and the NHSLA pays out an estimated £33 million in claimant insurance premiums. However, damages paid to claimants have risen more slowly-from £579.4 million to £863.4 million over the same period-and the NHSLA has controlled its own defence legal costs much more carefully, rising only 26 per cent during the same period.

One motivation behind our approach in this whole area has been the impact that the system brought in by the previous Government in 2000 has had on the National Health Service, with an extraordinary rise in payments to lawyers. We are trying to address that. In doing so, early on we listened carefully to concerns about the specific issues faced by the most vulnerable children at the most vulnerable point in their lives, and we brought forward amendments to deal with that. Of course, in these areas there will always be disputes about where you draw the line and what happens to those on the other side of that line. However, in bringing forward our amendments our intention was to meet that initial lobbying, and we responded to it most positively. However, that was immediately followed by further lobbying that this should cover all children, but we do not believe that that is necessary.

The amendment purposely captures clinical negligence before, during and shortly after birth. We believe that that is a proportionate means of meeting the policy objective of targeting legal aid on the most serious and complex cases that would otherwise struggle to obtain a CFA. The eight-week period is an appropriate

23 Apr 2012 : Column 1661

period of time at which to draw the line, because most of the serious and complex clinical negligence cases involving neurological injuries to infants are likely to arise from treatment or care administered during this period, when the infant can be considered to be most vulnerable. We have drawn the post-birth line at this point because of that. We also recognise that some children will be born prematurely and will need fairly intensive medical supervision in the first weeks of life. Any cases in which negligence occurs beyond this point will need to be considered under exceptional funding on a case-by-case basis. It is difficult-

Lord Faulks: I am very grateful to my noble friend for giving way. I wonder whether he can help the House on one point. Originally, before the welcome concession by the Government concerning babies damaged at or about the time of birth, the response was that exceptional funding might be available to meet those claims. Now that those claims are to be within the scope of legal aid, does it follow that more exceptional funding might be available to deal with the hard cases that may arise with children who are outside the scope of the eight-week period?

Lord McNally: I do not think that exceptional funding has ever been a specific amount of money and that therefore the amendment releases more of the exceptional funding pot to others. The exceptional funding is there to meet cases that fulfil the requirements for exceptional funding. I will not follow my noble friend because he leads me down a dangerous road. The exceptional funding is and will be there on the merits of the case. That is why we have confidence that the combination of the amendments that we have made, the CFAs, which, as was pointed out, some 82 per cent are already using, and a robust exceptional funding scheme will meet the needs in the cases that are covered by the amendment that we are opposing. Again, I ask the noble Lord to withdraw his amendment and to support the Commons.

Lord Cormack: My Lords, I felt very sad as I listened to a Minister, for whom I have both affection and respect, fail to answer this brief debate.

I am grateful to all those who have taken part. It has been brief, but that does not mean that the issue is unimportant. I apologise, incidentally, to the noble Lord, Lord Beecham, for the missing indefinite article, but we are talking about a definite proposition. That definite proposition is this: we often talk about rights and responsibilities, and certain people have particular rights and to them we have particular responsibilities. We are talking about children-those under the age of 16: children who are damaged as a result of clinical negligence within the National Health Service that the country provides for them and in which they and their parents place their trust. To limit the help, in a very small timeframe, to those who suffer brain damage is frankly not the hallmark of a civilised health service or a civilised society.

I know not whether the figure of £1.6 million given by the noble Lord, Lord Beecham, is right, but it is certainly around that figure. Indeed, the state would be the beneficiary in the long term. It would certainly

23 Apr 2012 : Column 1662

be the beneficiary in the moral sense. We should concern ourselves about that. Of course the Government have problems. Of course they have great responsibilities for the economy. We are not, however, talking this evening about something that can in any way damage the financial strategy. What it can do is damage our reputation. I wish to test the opinion of the House.

10.33 pm

Division on Motion H1.

Contents 125; Not-Contents 168.

Motion H1 disagreed.


Division No. 7


CONTENTS

Adonis, L.
Alli, L.
Alton of Liverpool, L.
Armstrong of Ilminster, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Bew, L.
Bilimoria, L.
Bilston, L.
Blackstone, B.
Boateng, L.
Bradley, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Clancarty, E.
Clark of Windermere, L.
Collins of Highbury, L.
Cormack, L.
Corston, B.
Craigavon, V.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donaghy, B.
Drake, B.
Dubs, L.
Eaton, B.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grey-Thompson, B.
Hanworth, V.
Harris of Haringey, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hereford, Bp.
Higgins, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
Knight of Weymouth, L.
Layard, L.
Liddell of Coatdyke, B.
Liddle, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
McAvoy, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Morgan of Ely, B.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Loan, B.
Pannick, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Puttnam, L.
Quin, B.
Ramsbotham, L.
Reid of Cardowan, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Soley, L.
Stevenson of Balmacara, L.
Taylor of Bolton, B.
Thornton, B.
Tonge, B.
Touhig, L.
Tunnicliffe, L. [Teller]


23 Apr 2012 : Column 1663

Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Wheeler, B.
Whitaker, B.
Wigley, L.
Williamson of Horton, L.
Winston, L.
Woolf, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.

NOT CONTENTS

Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Bates, L.
Berridge, B.
Black of Brentwood, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Byford, B.
Carlile of Berriew, L.
Cathcart, E.
Cavendish of Furness, L.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Cope of Berkeley, L.
Cotter, L.
Crickhowell, L.
De Mauley, L.
Deben, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eccles, V.
Eden of Winton, L.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Framlingham, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glendonbrook, L.
Gold, L.
Goodlad, L.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Hamwee, B.
Hanham, B.
Henley, L.
Hill of Oareford, L.
Home, E.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Inglewood, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Loomba, L.
Luke, L.
Lyell, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Mancroft, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Neville-Jones, B.
Newby, L.
Newlove, B.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer of Childs Hill, L.
Parminter, B.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Ribeiro, L.
Risby, L.
Ryder of Wensum, L.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.


23 Apr 2012 : Column 1664

Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Spicer, L.
Stedman-Scott, B.
Stephen, L.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Tope, L.
Trimble, L.
True, L.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Verma, B.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Willis of Knaresborough, L.
Younger of Leckie, V.
10.44 pm

Motion H agreed.

Motion J

Moved by Baroness Northover

171A 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.

Baroness Northover: Motion J concerns legal aid for children. When the Government undertook their comprehensive review of legal aid, we looked at the principles of each type of case funded by the scheme and considered, first, the importance of the issue; secondly, the litigant's ability to present their own case, including and especially any vulnerability; thirdly, the availability of alternative sources of funding; and, fourthly, the availability of other routes to resolution. We have used those principles to prioritise funding so that civil legal services will be available in the highest-priority cases-for example, as my noble friend Lord McNally said earlier, where people's life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care.

The application of these principles led us to protect the vast majority of funding in cases involving children. These include family cases where a child is at risk of abuse; child care and supervision cases; civil claims concerning the abuse of a child; special educational needs cases; clinical negligence claims concerning brain-damaged babies; cases concerning the inherent jurisdiction of the High Court in respect of children; cases concerning the unlawful removal of children from the UK; cases concerning EU and international agreements on children; and legal aid for children who are made parties to private family proceedings. That is why 96 per cent of the current spend on cases involving child claimants will continue. Because we have adopted the approach that I have outlined, we do not accept Amendment 171,

23 Apr 2012 : Column 1665

which seeks to bring all cases back into the scope of legal aid where a child is a party. On current plans, the overwhelming majority of current support will continue, as I said.

The noble Baroness, Lady Grey-Thompson, has tabled Amendment 171B, which is almost identical to Amendment 171, with the exception of immigration and consumer law cases, on which the House of Commons has offered a clear view. In our opinion, Amendment 171B will elicit the same response in the House of Commons. However, I will set out again the measures that are in place that will guard against the risk of children falling through the net.

As noble Lords know, we have committed to providing additional resources for citizens advice bureaux and similar groups that provide the general practical advice that can often prove more productive than drawn-out adversarial legal action. As I mentioned earlier today, we will be making a further £20 million available to the sector in each of the next two financial years. It is therefore not the case that there will be no or substantially reduced funding for cases involving children and young people.

Some in past debates have suggested that children might be left to fend for themselves in courts of law. Let me address that very clearly. It is already a requirement of the rules of civil litigation that a child must have a litigation friend to conduct a case on their behalf, usually a parent unless the court specifically orders otherwise. It will be only in exceptional circumstances that the court will make an order permitting the child to conduct proceedings on their own behalf. Any step taken before a child has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child's parent, or other person caring for the child, for example, to act as the child's litigation friend in proceedings where the child is a party.

In other scenarios-for example, tribunals that are addressed in the amendment tabled by the noble Baroness-where a child may be bringing an action without a litigation friend, this will of course be a relevant factor in deciding whether they have the ability to present their own case and whether exceptional funding for representation is required in order to avoid a breach of Article 6 of the ECHR. This means that the existing Civil Procedure Rules, combined with our exceptional funding system, will provide crucial safeguards against children being left to navigate court and tribunal hearings on their own. We believe that these measures, taken together, are sufficient to guard against the risk of children falling through the net where they do not fall into the vast majority of cases that are still covered by legal aid. I beg to move.

Motion J1 (as an amendment to Motion J)

Moved by Baroness Grey-Thompson

171B* Page 115, line 5, at end insert-

"Children under 18



23 Apr 2012 : Column 1666

Civil legal services in relation to advice and proceedings where a child is, or proposes to be, the applicant or respondent in proceedings, or where the child is represented by a legal guardian, including-

(a) private family law;

(b) any benefit, allowance, payment, credit or pension under-

(i) the Social Security Contributions and Benefits Act 1992,

(ii) the Jobseekers Act 1995,

(iii) the State Pension Credit Act 2002,

(iv) the Tax Credits Act 2002,

(v) the Welfare Reform Act 2007,

(vi) the Welfare Reform Act 2012, or

(vii) any other enactment relating to social security;

(c) all areas of education law not otherwise covered in this Schedule;

(d) all areas of housing law not otherwise covered in this Schedule;

(e) all areas of debt-related disputes not otherwise covered in this Schedule;

(f) all areas of clinical negligence law not otherwise covered in this Schedule;

(g) appeals to the Criminal Injuries Compensation Authority;

(h) a review or an appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007;

(i) an appeal to the Supreme Court."

Baroness Grey-Thompson: My Lords, this amendment is in my name at this stage. However, it received support from the late Lord Newton of Braintree and the noble Baronesses, Lady Eaton and Lady Benjamin, throughout the passage of the Bill.

This amendment is narrower than the one that was previously carried by your Lordships' House. I was extremely disappointed that, due to the financial arrangements in the other place, I had to remove the areas of consumer law and immigration, as the latter alone accounts for around a third of the cases affecting children. This Motion makes legal aid available for children in cases where a boy or girl is a victim of medical negligence or malpractice, in all cases of private family law, education, housing and social welfare and for criminal injury appeals only after they are financially means-tested and found to qualify. This Motion would give legal aid to about 3,000 extra children a year who are not explicitly covered by the Bill. It would cost the Government about £3.2 million a year and could be easily affordable. When you consider that the Legal Services Commission is sitting on £500 million-worth of confiscation orders that it has not yet collected against supercriminals, there are other ways to save money rather than targeting children.



23 Apr 2012 : Column 1667

At present, legal aid helps around 40,000 children every year who have civil justice legal problems in their own right. If the Bill is left as it stands, legal aid will not be available for thousands of children under the age of 18 who would qualify if the current rules remained in place. It is estimated that between 5,000 and 6,000 children could be affected. The Government have not explained the rationale of why some children are being treated differently from other children who have problems under the same categories of law.

On our 40th day of debate in your Lordships' House I asked why 220 of last year's cases on education would qualify but 110 children would not receive access to legal aid. I still have not had an answer to that question. We have been told that individual children may qualify under an exceptional cases fund, and more information has been provided, but I still fear that children will fall through the net.

It is probably slightly unfair of me to quote the Minister when he was questioned about exceptional cases on the previous Motion, but he said that it is hard to quantify the amounts. For me, the merits of the case are not enough without knowing some of those figures. It could mean that more is spent than we are saving by doing this.

Why do I feel so strongly about this? It is because children are children; they are not adults. Children do not have the capacity to represent themselves or to interpret the thousands of pages of laws and regulations that affect them. The question of children's capacity to represent themselves is explicitly recognised and provided for in international law.

I remind your Lordships' House that the Children's Commissioner for England, Dr Maggie Atkinson, wrote to the Lord Chancellor to warn that denying children a voice in legal proceedings would be in breach of the European Convention. She wrote:

"Children, by virtue of their age and capacity will not be able to present their case effectively in the majority of proceedings ... Children's need for legal aid in civil cases where they are a party should not be viewed as 'exceptional'".

In virtually all these cases a child will be taking action against the state, and we do not yet know how the state will begin to act if it cannot be challenged. It is therefore wrong that the state has discretion on whether it will grant legal aid to a child who is challenging it. Such systems are not synonymous with accountable and democratic systems. I ask noble Lords once again to support this Motion. This issue is so important that we should ask the other place to reconsider the case of these children. I beg to move.

Baroness Hamwee: I shall say a word about one of the items that has been left out of this list: immigration. I am sorry that the noble Baroness has decided, for reasons that I understand, not to include it in the list. We know that immigration matters will not be within exceptional funding, so that route will not be available. Unaccompanied children arriving here may very well initially claim asylum, but a child who makes an asylum claim that fails and fails again on appeal will fall back on an immigration claim. For instance, a child who comes here at, say, the age

23 Apr 2012 : Column 1668

of 12 and does not succeed on asylum but gets leave to remain will after three years, at the age of 15, be seeking immigration status in circumstances that will have changed dramatically.

I can see that there may be different considerations for a child who comes within a family but there must be cases where the child should be represented separately. We have a spent a lot of time on this and we know that immigration is complex; that social workers are not qualified to deal with it; and that legal advisers need to be specially licensed for it. I know that we are not in a position to change this but it is right to put on record some disappointment. But there is hope that as time goes on the Government will realise that this is something on which particular help is needed.

The Earl of Listowel: My Lords, I support the noble Baroness in her amendment. I should like to talk about young people leaving care at the age of 16 or 17 and how this affects them. I was very grateful for the opportunity to meet the Minister this morning and for his reassurance in this area. Following that, I spoke to a personal adviser-when children leave care they are appointed such an adviser to support them during their transition from care-who said, "It is so helpful to be able to go on certain occasions to a professional, a solicitor, to get a letter to get access to welfare and the right housing for these children".

About one-quarter of children leaving care do so at the age of 16. Therefore, we often have very vulnerable young people who really can benefit from expert advocacy. While I welcome what the Minister has said in terms of reassurance, this matter in particular needs to be looked at. He highlighted the use of the exceptional funding avenue. The personal adviser said that often it is not a question of going to court but of getting in early and getting a good letter to make the local authority or other agencies aware of the legal situation and then things would be done correctly. It would be helpful if the Minister in his response could give an assurance that the exceptional funding avenue is easily accessible in those circumstances. I strongly support my noble friend's amendment.

Lord Beecham: My Lords, the noble Baroness, Lady Hamwee, referred to her regret that immigration is not included in the amendment. In fairness to the noble Baroness, Lady Grey-Thompson, this amendment is in lieu and something has to be different from the original amendment. An invidious choice had to be made and one could regret that any one of the categories was to be omitted but one had to be in order for the amendment to be in order.

I am indebted to JustRights for its briefing, which no doubt many noble Lords will have seen. JustRights is made up of some 18 voluntary sector organisations. When the Minister refers to extra support for citizens advice bureaux-which I think she identified in particular although she may have been referring to the whole sector-of £20 million a year for three years, one should know that Citizens Advice sustained a loss of £80 million. That sum is for everything and not just for children. Such investment has to be seen in that context.



23 Apr 2012 : Column 1669

However, as regards these amendments, by my calculation, taking out the immigration cases, the cost of accepting the noble Baroness's amendment would be of the order of £2.8 million. JustRights estimated about £5 million to £6 million according to the Ministry's estimates but that included something like £1 million for immigration. I beg the pardon of noble Lords but that figure should be more: the net saving should be about £4 million. It points out that the Local Government Association-I declare an interest as a vice-president of that organisation-estimates that the removal of legal aid for unaccompanied child asylum seekers in immigration cases, which this amendment does not seek to restore, would cost local authorities £10 million. In other words, the cost to one element of the public purse will go substantially to exceed the savings which would accrue from the Government's package. It is estimated by Youth Access and the Legal Services Research Centre that greater costs will fall on other elements of the public sector, including the welfare system and the National Health Service.

11 pm

I will give a brief indication of the kind of cases that will no longer be covered: 280 debt cases; 90 employment cases; 430 housing cases; 1,330 welfare benefit cases; 90 cases involving the police; 110 cases involving education; an unknown number in respect of clinical negligence, because of course there has now been this government concession; 300 personal injury cases; and 165 other cases. This is a wide spread of cases, individually costing relatively modest amounts if the Government were to accept this amendment.

As it stands, 13 per cent of children's cases will now be out of scope. The exceptional funding scheme will not be sufficient to protect the children covered by this amendment. Again, for a very small sum of money, a substantial number of children, who are among the most vulnerable, will be deprived of legal advice and assistance. Your Lordships will note that this briefing comes from an organisation not of lawyers in private practice but from precisely the sector to which the Government look to support people in difficulty in this and other areas.

It is simply unacceptable to withdraw this level of support from these vulnerable young people. I hope that even at this late stage the Government will reconsider. If not, we will certainly support the noble Baroness should she decide to test the opinion of the House.

Baroness Northover: My Lords, I thank noble Lords for their very important contributions to this debate.

At the beginning of this discussion, I set out in some detail the reasons behind the Government's position on legal aid for children, and that legal aid should apply to the highest priority cases, which has been at the heart of our reform proposals. I produced a long list of where funding is being retained for children as a result of the application of this principle. The fact that 96 per cent of current spend on cases involving child claimants will continue reflects the importance that the Government have placed on that.



23 Apr 2012 : Column 1670

Lord Phillips of Sudbury: My Lords, I regret to interrupt my noble friend at this time of night, but she mentioned the figure of 96 per cent remaining in scope. The figure of 13 per cent taken out of scope was just mentioned. I wonder where the reconciliation is between those two figures, because it is significant.

Baroness Northover: It is very straightforward. As I have just said, 96 per cent of current spend on cases is included, and in terms of numbers of cases 13 per cent are outside. So 4 per cent of spend is outside, which represents 13 per cent of the number of cases.

The noble Baroness, Lady Grey-Thompson, flagged up great concern about children in this situation and referred to the Children's Commissioner saying that if this happened, it would breach the ECHR. Indeed, we agree. I hope my introductory remarks reassured her that this is not in breach, because if there was a failure to provide funding in such a situation that it was a breach, that would be covered either within that 96 per cent that I have just mentioned or through the exceptional fund. Any child qualifying for that kind of protection would qualify, under the European Convention on Human Rights, for that exceptional funding. I hope that that reassures her. The Children's Commissioner may say that it would be abuse of children's rights if that were not to be the case but we are saying that that is covered because of that protection.

My noble friend Lady Hamwee flagged up the area of immigration, and here the child's interests are generally represented by the parent or guardian. In most cases where a child is unaccompanied, the issue is usually an asylum claim and legal aid is of course remaining for these cases. My noble friend asked what would happen if the case was not accepted as an asylum claim. In these cases unaccompanied children would have a social worker assigned to them, whose role would include helping the child access the same advice and support as a child permanently settled in the UK. They could also, for example, offer assistance in filling in forms, explaining terms and giving them emotional support. As my noble and learned friend Lord Wallace of Tankerness outlined previously, the Home Office will be working with the Office of the Immigration Services Commissioner on how best to ensure that local authorities can assist children in their care with immigration applications if necessary. This could, for example, mean exempting local authorities from Office of the Immigration Services-

Baroness Lister of Burtersett: I am sorry to interrupt the noble Baroness but we have gone over this a number of times. I remember the late Lord Newton questioning this issue of using social workers. Social workers are not trained for this kind of work and, as I understand, it would be totally wrong for them to provide legal advice for children in their care. It could create real problems of conflicts of interest.

Baroness Northover: The noble Baroness may be right about social workers providing legal advice but I am talking about the kind of support that a social worker can give to a child in that situation. Often it is not a matter of specific legal advice but of assisting that child and steering them through the necessary

23 Apr 2012 : Column 1671

procedures. There has been a running theme through a lot of this discussion that it is not necessarily legal advice that is required; it may be another form of support, which is where, for example, the CAB may be able to assist. Noble Lords have a lot of experience of organisations such as these assisting people and we should not forget that. We are looking at how best to ensure that local authorities can assist children in their care in the kind of cases that my noble friend has flagged up.

The noble Earl, Lord Listowel, asked about care leavers. I am glad that he was reassured by what my noble friend could tell him. I reiterate that the exceptional funding scheme will ensure the protection of the individual's right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. The scheme will of course encompass children leaving care, where they meet the relevant legal tests. In considering whether exceptional funding should be granted on this basis in an individual case engaging Article 6 of the ECHR, the director will consider the ability of the client to present their own case, the complexity of the issues, the importance of the issues at stake and all other relevant circumstances.

Local authorities also have a range of duties to care leavers which will not be affected by the provisions of the Bill. It is late at night but I also recognise the huge commitment in this area of the noble Earl. If he would like further discussions we are happy to do that. I hope that I have addressed the concerns of most noble Lords and would like to remind them that 96 per cent of the current funding remains in place and that the principles of need and vulnerability, which underpinned the reasons for covering the areas that we have, remain the most important ones.

I hope that the noble Baroness, Lady Grey-Thompson, will be reassured that children who are in need will be protected and that we will not see the concerns that she has flagged up come to fruition. On that basis, I hope the noble Baroness will withdraw her Motion.

Baroness Grey-Thompson: I thank the noble Baroness, Lady Northover, for her response and all other noble Lords who have contributed this evening.

In my opening speech I did not mention clinical negligence because the issue had been eloquently argued in the previous Motion by the noble Lord, Lord Cormack, and the noble Baroness, Lady Finlay.

The noble Earl, Lord Listowel, raised the important issue of children in care and children leaving care. However, this will raise more issues about where the costs will move to. The hope that local authorities will pick up the pieces concerning this group of children in care or leaving care is naive. Local authorities are already under huge amounts of pressure, and pushing the costs-and potentially greater costs-on them will not help the children who we want to see receive this help.

I am also deeply uncomfortable about the role of the litigation friend and the ability of children to access an appropriate person who is able to help them through very difficult times.



23 Apr 2012 : Column 1672

I am afraid that I am still not convinced by the arguments on exceptional funding. When we debated the percentages of cases, we learnt that 13 per cent of children's cases will be out of scope. However, information provided by JustRights shows that, contrary to misleading government claims, the 5,000 to 6,000 children covered by this amendment will not be protected by the exceptional funding scheme. The Ministry of Justice has confirmed to JustRights that its figures on the number of children affected already account for those who would receive exceptional funding. If children were automatically entitled to legal aid, the Government would avoid the cost of administering children's applications to the scheme, as well as possible delays that would be detrimental to children's welfare.

I am conscious of the late hour. This issue has been extensively debated in many sessions, but we should ask the other place to think again about the thousands of children who will be seriously and negatively affected if the amendment does not go through. I beg to move.

11.12 pm

Division on Motion J1.

Contents 100; Not-Contents 154.

Motion J1 disagreed.


Division No. 8


CONTENTS

Adonis, L.
Alli, L.
Alton of Liverpool, L.
Bach, L.
Bassam of Brighton, L.
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Bilston, L.
Blackstone, B.
Boateng, L.
Bradley, L.
Brookman, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Clancarty, E.
Clark of Windermere, L.
Collins of Highbury, L.
Corston, B.
Craigavon, V.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donaghy, B.
Drake, B.
Dubs, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Gale, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grey-Thompson, B. [Teller]
Hanworth, V.
Harris of Haringey, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hereford, Bp.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hughes of Stretford, B.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
Knight of Weymouth, L.
Liddle, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
McAvoy, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Morgan of Ely, B.
O'Loan, B.
Pannick, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Quin, B.
Ramsbotham, L.
Reid of Cardowan, L.
Rosser, L.
Royall of Blaisdon, B.
Sawyer, L.


23 Apr 2012 : Column 1673

Scotland of Asthal, B.
Sherlock, B.
Smith of Basildon, B.
Smith of Finsbury, L.
Soley, L.
Stevenson of Balmacara, L.
Taylor of Bolton, B.
Thornton, B.
Tonge, B.
Touhig, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Whitaker, B.
Wigley, L.
Winston, L.
Young of Hornsey, B.
Young of Norwood Green, L.

NOT CONTENTS

Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Barker, B.
Bates, L.
Berridge, B.
Bew, L.
Black of Brentwood, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Burnett, L.
Byford, B.
Cathcart, E.
Cavendish of Furness, L.
Chalker of Wallasey, B.
Clement-Jones, L.
Cope of Berkeley, L.
Cotter, L.
De Mauley, L.
Deben, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eccles, V.
Eden of Winton, L.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Fookes, B.
Framlingham, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glendonbrook, L.
Gold, L.
Goodlad, L.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Hamwee, B.
Hanham, B.
Henley, L.
Higgins, L.
Hill of Oareford, L.
Home, E.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Inglewood, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
King of Bridgwater, L.


23 Apr 2012 : Column 1674

Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lexden, L.
Lingfield, L.
Liverpool, E.
Loomba, L.
Luke, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B.
Neville-Jones, B.
Newby, L.
Newlove, B.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer of Childs Hill, L.
Parminter, B.
Perry of Southwark, B.
Popat, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Ryder of Wensum, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Spicer, L.
Stedman-Scott, B.
Stephen, L.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Tope, L.
True, L.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Verma, B.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Willis of Knaresborough, L.
Younger of Leckie, V.
11.22 pm

Motion J agreed.

House adjourned at 11.23 pm.


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