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House of Lords

Monday, 3 December 2012.

2.30 pm

Prayers—read by the Lord Bishop of Guildford.



2.36 pm

Asked By Lord Wood of Anfield

To ask Her Majesty’s Government what legal advice they have received on whether a pre-emptive military strike on Iran would violate international law.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the Government do not believe that military action against Iran is the right course of action at this time, although no option is off the table. We believe that the twin-track approach of engagement with Iran and pressure through sanctions is the best way to resolve the nuclear issue. We do not comment on legal advice and will not speculate about the legality of various scenarios.

Lord Wood of Anfield: I thank the Minister for that Answer. I have asked this Question because of a report in the Guardian which suggests that the Attorney General’s Office has argued internally in government that providing assistance to forces that could be involved in a pre-emptive strike would be a clear breach of international law. Will the Minister clarify the Government’s understanding of the principles that should inform any decision about assisting forces in a pre-emptive strike on another country?

Baroness Warsi: I can inform your Lordships’ House that we are not advocating military action against Iran. We continue to believe that the twin-track process of pressure and engagement offers the best hope of resolving the Iranian nuclear issue. In relation to legal advice, the noble Lord will be aware that it is not practice to inform this House or notify parliamentarians of specific legal advice, if any, that we may be obtaining.

Lord Ashdown of Norton-sub-Hamdon: My Lords, leaving aside the legal considerations, given that a pre-emptive all-out strike on Iran would almost certainly be militarily unsuccessful, unite Iranian opinion behind the leadership and scupper any diplomatic talks, would not such a move be militarily inept, politically unsuccessful and diplomatically disastrous?

Baroness Warsi: My Lords, my noble friend comes to these matters with great experience and expertise, and it is important that voices such as his are heard. However, I can assure him, as I can assure the House, that there is no plan whatever to take military action against Iran, although of course all options are on the

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table. We fundamentally believe that the best way to deal with this matter is through pressure and engagement, and that is the process that we have adopted.

Baroness Deech: My Lords, does the noble Baroness agree that there is something that is perhaps slightly upside down about this Question and that what we should be worrying about is the legality of the preparation of nuclear weapons by Iran? No country should have to face the choice between obliteration and self-defence.

Baroness Warsi: The noble Baroness raises an important point. We have concerns and it is because of those concerns that there have been successive United Nations resolutions on this matter over a number of years. It is why the international community wants Iran to be much more transparent and why we continue to engage and push for that transparency. We would all like to come to a negotiated solution.

Lord Tomlinson: My Lords, is the Minister aware that, in her reply to my noble friend Lord Wood, she said that a pre-emptive was not justified “at this time”? Can she tell us when she envisages that such a strike might be justified?

Baroness Warsi: As I said at the outset, all options are on the table. It would be inappropriate for me to speculate on what scenarios may come forward in the future, and of course it would depend very much on the scenario we faced at the time. However, I can be clear that the Government are certainly mindful of their legal obligations within international law.

Lord Hannay of Chiswick: Does the Minister not agree that there would be no doubt whatever about the legal situation if Iran developed nuclear weapons? It would be illegal under the nuclear non-proliferation treaty, which was signed and ratified. However, rather than having the argument this afternoon about the legalities, is not the top priority, with the new American Administration, to revive the second of the two tracks—not the sanctions track, which must be kept up, but the track to talk to the Iranian regime? Would it not be worthwhile for the Government to take the view with the United States Administration that they should have some kind of bilateral contact with the Iranians before matters get to the point where they cannot be retrieved?

Baroness Warsi: Discussions about these matters are ongoing in a number of different ways. The noble Lord will be aware that the E3+3—Russia, China, the US and ourselves, France and Germany—have had four meetings since the beginning of this year; I think since February. Indeed, the noble Baroness, Lady Ashton, is in the process of taking forward a further meeting, possibly before Christmas. We are absolutely committed to negotiating our way out of this matter.

Lord Anderson of Swansea: Does the noble Baroness agree that, while the centuries-old legal principles in respect of pre-emptive strikes remain valid, they have been transformed in practice by the speed of warning and response in the nuclear age? Although we, along with much of the security establishment in Israel, may

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be highly critical of a possible strike, should we not at least acknowledge the dilemma of the Israeli Government, who are faced with President Ahmadinejad, who has said he intends to destroy Israel and may very well soon have the capability to do just that?

Baroness Warsi: Iran’s development of military nuclear power is a matter of concern for many more countries than just Israel. It is why we have United Nations Security Council resolutions in relation to this matter and it is why we have tried to negotiate with Iran over a number of years. It is important to continue those negotiations and discussions. These are concerns that we in this country have too.

Baroness Williams of Crosby: Does the Minister agree that only a few weeks ago Mr Soltanieh, the Iranian ambassador to the IAEA, specifically indicated that Iran was now open to the possibility of bilateral discussions with the United States, and that President Obama has reflected this in his recent views expressed within the United States? Finally, according to recent polling by the Knowledge Forum, a clear majority in the United States is now clearly in favour of discussions and diplomatic relations between the United States and Iran, beginning as soon as possible.

Baroness Warsi: Of course, we raise this matter in discussions with the United States but it has to be for the United States to take these discussions forward with Iran if it feels that that is the right way forward. As we do with a number of countries, we encourage it to take all opportunities to have these discussions. The findings of the poll that my noble friend refers to very much reflect the opinion of all of us in this House, and indeed the public, that the better way to resolve this matter is not through military action.

Lord Wigley: My Lords, are there any circumstances whatever where a first strike with nuclear weapons could be morally justifiable?

Baroness Warsi: I am not enough of a military expert to start making these decisions. I do not think that this is a matter for moral judgment; it will be based on any scenario that presents itself at the time, and it would be wrong for me or the Government to speculate at this stage.

Baroness Afshar: My Lords, should there not be the same kind of sanctions against all countries who have nuclear weapons? Is it not the case that these sanctions hurt the poor in Iran while the elite are totally unaffected?

Baroness Warsi: The noble Baroness raises a very important point. When we look at sanctions, we are extremely aware of the need to have appropriate exemptions in place that cover humanitarian assistance, including medicines. It is important to remember that what we are concerned about is the development of nuclear weapons. We have concerns about the regime but not about the Iranian people. They are not the people we want to suffer as a result of these sanctions.

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European Council: December Meeting


2.46 pm

Asked By Lord Liddle

To ask Her Majesty’s Government what are their priorities for the December meeting of the European Council.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the December European Council will cover economic policy, including economic and monetary union and banking union, as well as defence enlargement and foreign policy. The UK will seek to ensure the integrity of the single market in relation to banking union and economic and monetary union. We will press for further progress on growth and work to ensure that the defence strategy reflects UK priorities. Enlargement is dependent on the December General Affairs Council.

Lord Liddle: I thank the noble Baroness for her Answer. Why have the British Government adopted a completely different approach to a banking union from that of a fellow euro-out, Sweden, which is run, we are told, by David Cameron’s favourite conservative European Prime Minister? Sweden has engaged with the negotiations on a banking union, whereas Britain appears to be trying to reintroduce, for the first time since the introduction of the single market, some kind of veto on financial services legislation. Does the noble Baroness think that that strategy is likely to meet with more success than it did in the negotiations on the fiscal treaty last December, or are the Government once again shouting from the sidelines to try to appease the unappeasable?

Baroness Warsi: The Government’s strategy on this matter is one that reflects the best interests of Britain. I am sure that noble Lords on the other side of the House agree that it is important that when the Prime Minister goes to Europe, he acts in the best interests of this country and negotiates on the basis of that strategy. The UK does not use the euro, and we have been clear that the UK will not be part of any banking union or fall under the jurisdiction of the ECB. However, that does not mean that we do not continue to push for further liberalisation of the single market.

Lord Roper: Does my noble friend the Minister agree that one of the priorities of our right honourable friend the Prime Minister should be to ensure that any discussions or negotiations about institutional changes should take place at the level of the 27, even if they concern the eurozone, in order to maintain the integrity of the single market?

Baroness Warsi: My noble friend makes an extremely important point, and the Government are with him on this matter. We are not part of the euro, but it is important that structures are not put in place that allow the euro countries to effectively exercise a block vote and therefore make decisions that could impact on us within the single market.

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Lord Soley: Although the economic issues just discussed are probably the most important, can the Government also look at the way in which these international companies use the different tax regimes within the European Union to avoid their responsibilities in individual countries, and also perhaps at the semi-monopolistic practices of such companies? It is fairly easy—indeed, one might say pleasant—to boycott Starbucks, but Google and Amazon are a lot more difficult and are semi-monopolistic. It is something the EU should take a look at.

Baroness Warsi: The question goes beyond the immediate Question but I am sure the noble Lord will agree that the Government have been deeply committed to making sure that those who should pay tax do pay tax. We have invested more in HMRC to make sure that those who should pay tax in this country do pay tax in this country.

Lord Stoddart of Swindon: Should the Government not tell the European Union that they are in favour of a much looser arrangement between the countries of the European Union, and less centralisation? While the Prime Minister is over there, perhaps he could also have a word with the Prime Minister of Poland, who seems to imagine that the average cost of the EU budget paid by British people is only £35 a year, whereas it is actually £156.

Baroness Warsi: I will certainly feed that fact back in. I agree with the noble Lord about less centralisation. Of course we believe in power being nearest to those who are affected by those decisions. However, I think the noble Lord would agree with me that in relation to the European Union, we want a trade area but it is also important to be part of the group that makes the rules in relation to that trade area.

Lord Foulkes of Cumnock: My Lords, will the Minister take the opportunity to ask the Prime Minister to raise at the European Council the way in which three private companies—the credit rating agencies based in the United States—have such an undue and malign influence over the economy not just of the United Kingdom but the whole of Europe? I hope she will take some advice from her Treasury colleague on this. It is about time that we took collective action so that we in Europe are not dominated by these American private companies.

Baroness Warsi: The EU is engaged in ongoing discussions on work in relation to better regulation of those very institutions.

British Transport Police


2.51 pm

Asked By Lord Faulkner of Worcester

To ask Her Majesty’s Government whether they will recognise the British Transport Police for the purposes of the Firearms Act 1968.

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Earl Attlee: My Lords, the Government recognise the need to amend the Firearms Act 1968 to address the anomalous position of the BTP in relation to firearms licensing. We are continuing to seek a suitable legislative vehicle to make the necessary amendment to the Firearms Act 1968. We hope that it will be possible to do so during the third Session Bill programme.

Lord Faulkner of Worcester: My Lords, there is widespread admiration in your Lordships’ House and elsewhere for the work that the British Transport Police do, particularly in tackling metal theft, as we heard in the debate on Friday. In May last year, the Secretary of State for Transport announced that the British Transport Police could arm its officers. However, for the reason the Minister mentioned—because the definition of “police” in the Police Act 1996 does not include the BTP—its officers are not regarded as Crown servants under the Firearms Act 1968. Is he aware that, as a result, BTP officers do not enjoy the legal protection afforded to other police officers and that they have to apply for firearms certificates individually as if they were members of the public? The Minister referred to legislative opportunities—

Noble Lords: Oh!

Lord Faulkner of Worcester: I will finish very quickly. The Minister referred to legislative opportunities. Will he look at a late amendment to the Crime and Courts Bill or the introduction of a statutory instrument under the Railways and Transport Safety Act?

Earl Attlee: My Lords, the noble Lord is absolutely right in his analysis of the problem. Unfortunately, we cannot make any suitable amendment to current legislation going through your Lordships’ House. I am advised that other routes, such as a regulatory reform order, are not suitable, so we will have to wait for a suitable slot in the primary legislation. However, the noble Lord’s point about legal uncertainties is extremely important.

Lord Berkeley: My Lords, how many BTP officers carry firearms? As my noble friend said, it seems odd that they do not have the same legal position as other police officers around the country who are able to carry firearms. What is the legal position of BTP officers who carry firearms? Are they at risk on a personal level in a way that the other police officers are not?

Earl Attlee: My Lords, in answer to the noble Lord’s first question, we are talking about only 53 police officers, so the bureaucracy load is manageable, although extremely inconvenient. The weakness in the legislation on the protection of officers who are involved in an incident, alluded to by the noble Lord, Lord Faulkner of Worcester, is an extremely important point.

Lord West of Spithead: My Lords, does the Minister agree that although metal theft is a heinous crime and has caused damage to war memorials and danger to hospitals and railway lines, shooting those involved might be a little over the top?

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Earl Attlee: My Lords, in the case of a war memorial, I am sure that the noble Lord and I would have some doubt over whether that would be over the top. Police officers have a range of options. It is important to note that British Transport Police armed officers have not only a firearm but a Taser and other weapons, such as pepper sprays, so they do not need to resort to the firearm immediately.

Immigration: Home Office Meetings


2.55 pm

Asked By Baroness Smith of Basildon

To ask Her Majesty’s Government when Home Office Ministers last met the Chief Inspector of Borders and Immigration; and how often such meetings are held.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, Home Office Ministers have regular meetings with officials and others as part of the process of policy development and delivery. As was the case under previous Administrations, it is not the Government’s practice to provide details of all such meetings.

Baroness Smith of Basildon: My Lords, I am none the wiser after that Answer than I was before I asked the Question. There was a serious reason for asking, because it is clear that there are serious problems in the UK Border Agency. Even the recent fall in net migration is due to British citizens leaving the country and the fall in student numbers. Time and again, the chief inspector has found problems but, despite commitments to his recommendations to make the system more efficient and fairer, it just does not happen. We now even have the Mayor of London accusing the Government of turning a blind eye to long-term illegal immigrants.

Is part of the problem cuts that have led to 5,000 fewer UK Border Agency staff? Can the Minister give a commitment to your Lordships’ House today that the Government will act, not just promise to act, on the chief inspector’s reports?

Lord Taylor of Holbeach: The chief inspector has published two reports recently, and I thank John Vine, the chief inspector, for them. He will be appearing before the Home Affairs Select Committee tomorrow. I totally accept the view that the UK Border Agency has not performed as strongly as this House would expect, but it is improving, and that is the right direction of travel. The question we have to ask ourselves is: for how long does this go back? I fear that it goes back to 2006, when there was a huge backlog of cases, and that has taken an awful lot of clearing up. The current situation is greatly improved.

Lord Naseby: Does not the number of bogus students mentioned in one of the reports indicate how right it was that Her Majesty’s Government, first, allowed the London Metropolitan University students who were bogus to be dealt with; and, secondly, decided to keep

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student numbers quite separate from other immigration statistics? Can my noble friend assure us that a firm notice has gone out to all the many agencies scattered around the world looking to bring students to the UK, and through our embassies and consulates, that good, genuine students will always be welcome in United Kingdom but that bogus ones will be sent home?

Lord Taylor of Holbeach: That is exactly the message that the Government are sending. In fact, as has been shown in the most recent reports, university numbers are holding up very well. UCAS acceptances of international students are up by 4%, showing that our policies are having the right effect. There was a 1% increase in visa applications for students attending universities. The university sector now accounts for three-quarters of sponsored visa applications, up from about half in the equivalent period last year.

Lord Dholakia: My Lords, at my noble friend’s next meeting with the Chief Inspector of Borders and Immigration, will he insist on records being kept of cases of domestic violence where there is evidence that judicial decisions on permanent settlement have been overridden by the Executive?

Lord Taylor of Holbeach: I have recently written to the noble Lord because he asked a similar question last week on this issue. Obviously, it is important that we have a regime that is capable of ensuring that people who come to this country are fit and proper persons to be here.

Lord Hannay of Chiswick: My Lords, does the Minister agree that the considerable number of students who were threatened with expulsion following the action at London Metropolitan University were not bogus at all? That presumably was why the Government forked out £2 million to find them new places. We should not shelter behind figures that do not really prove what the Minister tries to make them prove. This sector is enormously competitive. We should be increasing it by much more than the figures he gave and would be so without the chilling effect of the Government’s Minister for immigration going out and beating his chest and saying how jolly well he had done to keep all those students out.

Lord Taylor of Holbeach: The noble Lord is perfectly right. The university sector is very important, as is the contribution made by international students to this country and the economy. I reiterate to noble Lords that there is no limit to the number of students who can come to the UK. Put simply, if they can speak basic English and have sufficient funds and the necessary qualifications, they can come.

Baroness Brinton: Does the Minister agree that it is extremely unfair to class the international students at London Metropolitan University as bogus simply because of the mistakes made by the university? The vast majority of errors were found to be in the registering of students and in the systems to monitor them. It is

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appalling that we should even contemplate saying that the majority of international students there are bogus. Does the Minister agree?

Lord Taylor of Holbeach: I do not think that I used that word. In fact, I agree with the noble Lord, Lord Hannay. The Government made funds available to ensure that students could continue their studies because we understand that the problem lay with the university, not with the students there.

Lord Morgan: Is the Minister aware of the appalling damage done to graduate studies at our universities, both academically and financially? The figures that we saw last week indicate very clearly that tens of thousands of graduate students have not come to this country, not because they are bogus but because of other qualifications—including financial—imposed by the Border Agency, whose policies have proven to be crass and philistine.

Lord Taylor of Holbeach: I do not agree with that description. The arrangements for graduate students are that they can come, but they have to show that they have an appointment that is capable of earning £20,000 a year. That is a reasonable expectation that we should have for people coming in as graduate students.

Lord Avebury: My Lords, who is accountable for the false statement made by the UKBA last spring that the legacy cases had all been resolved when it now emerges that there were still 147,000 in the queue?

Lord Taylor of Holbeach: As we know, there is a huge number of legacy cases. This was referred to in the Question we tackled last week. It is a matter of concern that these legacy cases were not cleared up promptly; they are being cleared up now and are being tackled so that those students who have been discovered to be here improperly are being sought and obliged to leave.

Lord Brooke of Alverthorpe: Do the legacy cases not cover other people as well as students? Is the fundamental problem not the one which the Minister spoke about last week: the inadequacy of our ability to search and locate these individuals to try to get them out of the country? Is it not true that the department is currently cutting the number of staff it engages by around 5,000, yet claims that it is going to be able to perform better? Will the Minister please tell the House how it will do that?

Lord Taylor of Holbeach: Identification of people who have overstayed is a clear technical problem which requires the application of all the resources of the UKBA. The UKBA is confident that it can achieve this and has given assurances that it will do so.

Lord Forsyth of Drumlean: My Lords, could the Minister possibly answer the question of my noble friend Lord Avebury when he asked who is being held accountable for the fact that we were misled about these legacy cases?

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Lord Taylor of Holbeach: There have been a couple of incidences where staff of the UKBA have indeed apologised to the Home Affairs Select Committee for mistakes that they have made. That was done orally last week and, indeed, before then in writing by the head of the UKBA.

Baroness Tonge: My Lords, is the Minister aware that in this country the age of marriage is 16 if that marriage takes place with parental consent? Is he also aware that this is used for some girls to be taken out of the country against their will to be married so that they can then bring their husbands back here? What is his department doing to stop that practice, and when will we bring our age of marriage up to 18 in line with other countries?

Lord Taylor of Holbeach: This House has frequently debated forced marriages. The Government are bringing forward legislation to criminalise them.

The Countess of Mar: My Lords, for 21 years I was a lay member of the Immigration Tribunal until I resigned in 2007 because I thought my job was not worth while. I have heard noble Lords at that Dispatch Box reiterating over and again what the Minister has iterated today. What guarantees are there this time that the Government’s measures will work?

Lord Taylor of Holbeach: The Government’s resolution to deal with this problem is the one thing that I can assure the noble Countess of.

Lord Winston: My Lords, is the Minister aware that at a recent Select Committee when the UK Border Agency was giving evidence, the members of that agency were completely incapable of giving accurate statistics on students, particularly regarding the courses and universities that they were attending? Do we not think that, rather than a ball-park figure, it would be appropriate to know exactly the quality of the students and which universities they are going to?

Lord Taylor of Holbeach: Indeed. I am sure that that information is available. The question is how it is collated.

Baroness Sherlock: My Lords, the Minister told the House that the Government’s resolution is all that they need to solve the problem. Would a little humility not be in order? Maybe if the Minister spent some time looking at why previous solutions have failed, there might be more chance that the Government will succeed. Does he agree with me?

Lord Taylor of Holbeach: I am always prepared to learn. Indeed, I have asked for a meeting with John Vine as a result of the report that I received the other day.

Medical Innovation Bill [HL]

First Reading

3.07 pm

A Bill to make provision for innovation in medical treatment.

The Bill was introduced by Lord Saatchi, read a first time and ordered to be printed.

3 Dec 2012 : Column 441

Mental Health (Discrimination) (No. 2) Bill

First Reading

3.07 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

Prisons (Property) Bill

First Reading

3.07 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

Marine Navigation (No. 2) Bill

First Reading

3.08 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

Presumption of Death Bill

First Reading

3.08 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

Mobile Homes Bill

First Reading

3.08 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

Disabled People’s Right to Control (Pilot Scheme) (England) (Amendment) Regulations 2012

Motion to Approve

3.09 pm

Moved By Baroness Stowell of Beeston

That the draft Regulations laid before the House on 24 October be approved.

Relevant documents: 9th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 26 November

Motion agreed.

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Electoral Registration Data Schemes (No. 2) Order 2012

Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012

Charitable Incorporated Organisations (Consequential Amendments) Order 2012

Motions to Approve

3.09 pm

Moved By Lord Wallace of Saltaire

That the draft Orders and Regulations laid before the House on 30 October be approved.

Relevant documents: 10th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 27 November

Motions agreed.

Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) (Amendment) Regulations 2012

Electricity and Gas (Energy Companies Obligation) Order 2012

Motions to Approve

3.09 pm

Moved By Baroness Verma

That the draft Order and Regulations laid before the House on 30 October be approved.

Relevant documents:10th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 27 November

Motions agreed.

Canterbury City Council Bill

Third Reading

3.10 pm

Moved By Lord Bilston

That the Bill be now read a third time.

Lord Bilston: My Lords, I should first explain the three minor amendments to this Bill, which I shall move formally at a later point. All I can say about these amendments is that they are in the nature of tidying up. One of them alters an incorrect reference to the “Kent Valley Police Force”, which appears to be something of a hybrid of Kent and Thames Valley, no doubt caused by the fact that Reading Borough Council is promoting one of the other Bills that we are discussing this afternoon.

I begin by paying tribute to those noble Lords who considered the Bill in Select Committee just over a year ago. The noble Baroness, Lady Knight of Collingtree,

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chaired the committee most ably, and was supported by the noble Lord, Lord Blair of Boughton, the noble Viscount, Lord Eccles, my noble friend Lord Glasman and the noble Lord, Lord Strasburger. All the members of the committee took a very strong interest in the Bills, and that is evidenced not only by their attendance here today but by their detailed special report which I, and I am sure other noble Lords, have read with interest.

Over three days the committee heard evidence from all four councils, and from pedlars who had presented petitions against the Bills. I am told that the committee was not only fair and even-handed with all the parties, as we would expect, but took a truly active and interested role in the proceedings, questioning the witnesses forensically in some detail. The committee decided to amend the Bills substantially, and highlighted a number of points in its special report, which I will try to summarise now.

First, there was a concern that the Bills were disproportionate, in the way that they restricted people’s ability to exercise their rights legally to trade as pedlars. The committee was particularly concerned to protect the rights of those pedlars—genuine pedlars, as they have become known—who play by the rules, who move around when trading and who do not use oversized stores to display their wares. These mirrored concerns raised by the noble Lord, Lord Lucas, at Second Reading, and the committee addressed them by amending the Bills in the way that it did. The Bills now contain provisions that restrict the size of stall that can be used by pedlars, but they are otherwise able to continue to trade as they did before.

Secondly, the committee was concerned about the use of piecemeal, incremental modification of national law by private legislation. As I mentioned at Second Reading, pre-empting points that were made by the noble Lord, Lord Lucas, the Bill’s promoters have real sympathy with his concern. They would have preferred not to promote these Bills to deal with these local issues, but the problems that they were encountering meant that they felt that they had to, particularly as there was, at the time that the Bills were deposited, no real appetite on the part of the Government to address the issues nationally. Things have changed on that score, and in a somewhat timely manner. Only last Friday, the Department for Business, Innovation and Skills published a consultation paper on regulations to amend street trading legislation on a national basis. I will return to that topic a little later.

The committee also questioned the motivation of the councils in promoting the Bills. It accepted the councils’ primary concern, about the need to ensure safe passage on the highway and to prevent obstruction, but was unconvinced by the council’s evidence on the need to protect the urban environment. Again, the committee’s views chimed with those of the noble Lord, Lord Lucas, at Second Reading, when he expressed his views about some of our streets lacking character.

The committee was also concerned about what it saw as an attempt to protect licensed street traders from unfair competition from pedlars. The councils presented evidence to show that licensed street traders

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sometimes paid hundreds of pounds annually for their licences, compared to the £12.50 paid by pedlars. They also demonstrated that, in many cases, traders who were trading under the authority of a pedlar’s certificate were often doing so from stalls that gave the impression of being permanent. I have some sympathy for those street traders and, in that respect, I am glad to say that, as I mentioned earlier, the committee amended the Bill in such a way that the use of larger stalls will be subject to control.

The next point that the committee dealt with was enforcement. All four Bills would have allowed the councils to seize items from unlawful street traders. The committee thought that this was a step too far and removed the seizure provisions. The councils were naturally disappointed, but were pleased that the committee was content to leave in the fixed-penalty provisions.

Finally, the committee was concerned to ensure that the new restrictions on pedlars did not operate throughout the whole area of each council. It is fair to say that a happy medium was reached in that regard, with the committee deciding that the new restrictions on the size of pedlars’ stalls should apply only in those parts of the authorities’ areas which are designated by councils on the basis that the controls will be necessary to ensure road safety or prevent obstruction of the highway.

Having mentioned the committee and its decisions, I turn briefly to the Government’s position. The Department for Business, Innovation and Skills has, while the Bills have been progressing through Parliament, been developing its own policy on street trading, particularly in the light of the European services directive which, since the introduction of the Bills, has been recognised as applying to the retail sale of goods and, therefore, to street trading. The department submitted the report to the Select Committee and appeared before it, expressing some concerns about the compatibility of the Bills, as they then were, with the directive. During proceedings, the councils drafted amendments which satisfied the department in that regard. As I have mentioned, the committee went somewhat further with its amendments, noting importantly that it was satisfied that the Bills before us now are compatible with the directive.

The Government have also recognised the need to deal on a national basis with the issue of compatibility. After a long wait, they published a consultation and a draft regulation just 10 days ago. It would not be appropriate to dwell on that consultation for too long today, but there is some similarity between what the Government are proposing on a national basis as regards the equipment that a pedlar may trade with and what the Bills now provide. The councils will need to examine the consultation document carefully and will no doubt provide detailed responses in February when the consultation closes. What seems clear, and will no doubt come as something of a relief to your Lordships, is that if the Government make their proposed regulations there are very likely to be no more local pedlars’ Bills. We should all give three cheers for that; we have been waiting for this consultation for a long time.

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I conclude by saying that, after their long gestation in Parliament, these four Bills are now in a form that I hope your Lordships will find acceptable. The councils will be able to exert much needed control over those who abuse the pedlars legislation and, as a result of the committee’s amendments to the Bills, those who are now commonly referred to as genuine pedlars will be afforded protection. I therefore hope that your Lordships will allow the Bills to pass today and agree to the amendments that I shall propose to the Canterbury City Council Bill. I beg to move.

3.22 pm

Baroness Knight of Collingtree: My Lords, we are all indebted to the masterly summary from my old friend and parliamentary neighbour for some years, the noble Lord, Lord Bilston. We had another guardian angel, and that is the noble Lord, Lord Lucas; I am delighted that we shall hear from him in a little while. When one is told one is to chair a Select Committee set up to examine a case put forward by quadruplets—three cities and a borough—it sounds like rather a dull old chore. That is wrong—in fact, it turned out to be a fascinating, educative, challenging and rewarding experience and I would not have missed it for the world.

I will put a slightly different complexion on what has been said by the noble Lord, Lord Bilston, from the heart of the Select Committee, as it were. I would like to make it clear to the House that the team of colleagues I worked with could not possibly have been better. From all political corners of this House, we worked in happy unison. I begin with my heartfelt thanks to every one of them for their expertise, wisdom, patience, judgment and, may I also say, their friendship.

Basically, as the noble Lord, Lord Bilston, has said, these local authority Bills were seeking the total eradication of pedlars from their streets. The supporting counsel said that pedlars caused unacceptable congestion. The members of the committee asked for evidence and they produced photographs of their streets, which of course were very crowded. We scrutinised them carefully and asked questions. We concluded that nothing we had been shown, or told, proved the case that the local authorities were making.

We reached the conclusion, as the noble Lord, Lord Bilston, has touched on, that the local authorities were at least partly motivated by a desire to protect licensed street traders who pay a lot more for their licences than the pedlars pay for their permits. We did not accept the claim that pedlars should be banished because the quality of their goods might be inferior to that being sold in the shops or on the fixed stalls. We felt rather outraged by this; it has never been the business of local councils to set up as experts on what is unfair or fair trading, as regards the quality of the goods. So that claim went by the wayside.

The representatives of the councils then assured us that the public were much against pedlars, that they could not stand having pedlars in their streets and that we really should listen to what the public said. The committee asked for evidence on that issue. They could not produce a single letter or newspaper campaign

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in support of their contention. However, the pedlars gave us acceptable and valid reasons to say that there was good evidence of public approval.

The members also reflected that pedlars had been on the streets of England prior to Shakespeare. Even Chaucer mentioned pedlars and we saw no reason to go to war with them or to change history. However, as has been said, we felt that some changes should be made in the way in which pedlars operate. Some of the pictures submitted by the promoters showed that the small trolleys that pedlars are allowed to use to carry and display their wares were sometimes very much extended. The base was small with four little wheels, rather like those that we all wheel about when we come to London for the week. But enormous adjuncts, including poles, were put on and where the trolley started quite small, it finished up yards wide with, for example, pashminas and scarves hung all along it. We felt that those were not acceptable and could cause obstruction.

Therefore, the committee suggested amendments. We have heard a little about the changes but I have the exact measurements. The trolley used to carry the goods must not be more than 0.75 metres in width; 0.5 metres in depth; and 1.25 metres in height. The overall size of the trolley also is constrained. We gratefully accept the small amendments, which were necessary, on different subjects, about which we have heard from the noble Lord, Lord Bilston. Clearly, great care has been exercised on the whole of these applications by the councils.

However, we had several other concerns. So great was the interest of the members of the committee that one brought a pedlar’s base to the Committee Room. We had it on the desk where we gazed at it, walked around it and figured out how it would look when it was dressed. We really concerned ourselves with how things were to work.

I am delighted to receive the news that other changes are to be made, because we felt that the four Bills presented would undoubtedly have given councils a disproportionate power in relation to suspected street trading offences. The pedlars were very worried about that, particularly the suggestion that almost at the drop of a hat all their goods could be confiscated for such a period of time that many would be useless when that time was up—they would have gone past their sell-by date by a long way. We have reduced these powers to the issuing of fixed penalty notices and we have made it a requirement that councils train all officials who exercise the remaining powers. We decided it would be best to put in place a statutory duty on councils, rather than just relying on an undertaking given under private Bill procedures.

The most important change of all is the piecemeal modification of national law by scores of individual little bits of private legislation that has gone on until now, but is now—thank heaven—to be changed. It really is extremely unsatisfactory. There are people who very much support the right of local authorities to put forward their own Bills—and long may that continue—but here we have a silly situation where the same objective has so far been put forward by 40 local authorities through their own legislation. There are

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some 300 others waiting around the corner to see when they are going to have their chance. These Bills would have come to this House, causing more time-wasting and money-wasting for the local councils, who have to employ counsels to put forward their case.

We heard a little about the arrests that this has led to, which are quite wrong and totally unfair. If a pedlar gets his certificate to trade, say, in Newcastle, that gives him the right to trade just as legally in Brighton, Bodmin, Birmingham or anywhere else; he can use the one certificate. However, a certificate in one place gives powers that are quite different from those in another place which has brought in its own rules. This is very confusing, and I am glad that we now see a light at the end of that tunnel and that this, too, will be altered. Incidentally, we heard evidence from a woman pedlar who had received her certificate quite legally, but who was arrested by the police in a town other than the one which had granted the licence and taken her money for it. She had no idea that she was breaking the law. That really must stop, and I am delighted that it will not be long before we see the change that we have all asked for.

It may be worth throwing in another point. We understand that there have been at least four other occasions when this House has held a Select Committee on very similar Bills. None of those committees came to the same conclusion that we did. They thought that the local authorities were right. That will have to be sorted out: they came to totally different conclusions, and those conclusions were wrong. Suffice to say that all the Bills were after the same thing: getting rid of pedlars.

Only a few weeks ago the Government published a consultation paper on repealing the Pedlars Act 1871 and the Pedlars Act 1881. The paper appeared after our committee had sat, but during our deliberations we warned that repealing the requirement on pedlars to obtain a certificate to trade would take away the exemption for certified pedlars from other street-trading restrictions. To do this without putting in its place a clear national exemption allowing pedlars to exercise their right to trade would be wholly unacceptable.

For more years than anyone wants to count, Peers have paid their tributes and uttered their thanks to the magnificent staff who serve us all in the Private Bill Office and the Public Bill Office. All of us on the committee wish to do so unreservedly. Nothing was too much trouble for the staff who worked with us. The bounty and quality of their help was absolutely endless. I will mention specifically the wonderful Kate Lawrence, whose expertise as clerk to the committee we relied on completely and endlessly, and Chris Bolton, who bears the impressive title Examiner of Private Acts. She, too, must be a very busy lady. Between them, these two ladies know absolutely everything and are a huge asset to the House.

3.36 pm

Lord Blair of Boughton: My Lords, it gives me great pleasure to speak after the noble Baroness, Lady Knight, and to thank the one person whom she did not thank—namely, her. I am sure that I speak for all my colleagues on the committee when I say how marvellously she chaired it and how enjoyable the experience was.

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I shall speak extremely briefly. Having heard from the noble Lord, Lord Bilston, and the noble Baroness, Lady Knight, I am not sure that there is much more to say. The crucial issue is that we cannot go on having private Bills on the same subject for the next 300 councils. The intellectual experience of trying to combine the provisions of 19th century legislation with the EU services directives of 2010 or 2012 should not be imposed on any other committee.

I urge the Government, when the consultation is over, to go back to the existing legislation and other councils. We are now in a position where the four councils whose Bills we examined will have a regime that is more restrictive of them than is the case, for instance, in London, which is much harsher towards pedlars.

Our real triumph was to look at the trolley, decide what size it was, look at the photographs of ones that looked like small cars being pushed round the streets of Leeds and decide that enough was enough.

Finally, in a period when city centres are under such pressure and there are too many closed shops, why would we wish to close down the seed corn of the pedlars who bring some brightness to those streets? I commend the Bills.

3.38 pm

Viscount Eccles: My Lords, I, too, will say a great thank you to my noble friend Lady Knight. The witnesses who came before the committee were very varied. It was not particularly easy to give them the opportunity to say what they wanted to say. Some of the representatives and the pedlars were quite overawed by the Pugin experience. Of course, the evidence coming from the local authorities was very different. They were very well schooled, they knew what they were going to say, and they also knew what they were not going to say. Our chairman did a brilliant job of bringing out the evidence that came out during our inquiry. Certainly it was because of that that the members of the committee became so intrigued by and involved in what was going on in front of us.

I want to talk briefly about fixed penalties. I think that in principle fixed penalties are undesirable. They may be necessary but, when they are, they are a necessary evil. The problem is that many people acquire the power to impose fixed penalties. We try to offset that by training and I hope that that works, but I think your Lordships will all recognise that power corrupts. One can go on to absolute power but power does corrupt—there is absolutely no doubt about that. In some fixed penalty regimes, there are people who take advantage of the power that they have and they impose the regime in a very unfriendly way. The necessity for these regimes may arise from the courts being overloaded, but one has to ask why they are overloaded. The conclusion is that Parliament must have some responsibility for that.

In the exercise of these powers, which are in some of the Private Members’ Bills that have become Acts, I think that my noble friend is entirely right that there is a culture of chasing pedlars about. I am not sure about removing them altogether—it is more fun to chase people who are still there—but they do it

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to make pedlars’ lives more difficult. I am very grateful that in the Bill the Secretary of State has the power to look at the penalties and, if necessary, to restrict them.

As for the new regime which we have been told about, I hope that it is a liberal one—that is, liberal with a small “l”. I have always thought, and continue to think, that one of the great advantages of democracy is an acceptance of difference and diversity, and not a wish to make everybody look and behave the same while living by a great welter of rules. I very much hope that the 4,000 pedlars are not reduced in number under the new regime but are able to trade and to live their lives in the way that they want.

3.42 pm

Lord Glasman: My Lords, I also pay tribute to the committee, and particularly to the noble Baroness, Lady Knight, who gave me incredible instruction on how to chair. It was a genuinely excellent experience. There are two things I should like to share with the House. First, the balance between kindness and severity was very well judged. The pedlars and their representatives were occasionally speechless and sometimes cried in the committee. They were scared and I thought that the noble Baroness dealt with them beautifully. Towards the legal counsel, the proposers and the pedlars’ legal representative, who tended to go on a little, I thought that she showed the appropriate degree of, let us say, sternness. Secondly, I should like to share with the House what the noble Baroness said to me. When I asked her a question, she said, “Being in committee is as much about the work you do between the meetings as the work you do in them”. That was taken on board. It was a very good experience indeed and I think we came to the right judgments.

There are two concerns that I should like to share with the House. First, I asked the representative from Leeds council whether she could name one world-class institution that came out of Leeds. It was obviously not the football club. She could not quite put her finger on it. I tried to prod her, telling her that Marks & Spencer was the institution and that Simon Marks started off as a pedlar. The idea that pedlars—poor people coming to this country, moving around and showing some enterprise—would be stamped on here was astonishing to me. I completely echo what the noble Viscount, Lord Eccles, said about the desire to homogenise the shopping experience and shopping centres. There was quite a whiff of local enforcement going on against the pedlars that came through from the witnesses, and I found that quite unpleasant and disturbing.

My second concern is a constitutional one. “Pedlar” is from the Latin for feet—as we said in the committee—as in pedalo. It is true that pedlars were pushing their bags rather than walking them in some cases, due the size of the things that they had, and we originally based it on Simon Marks’ bag, which we looked at in the Marks & Spencer museum. That was an appropriate size for a pedlar’s bag, we thought. There has to be enforcement in bringing that down to size and getting it correct.

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One finds references to pedlars even before Chaucer, going back to accounts from Roman times. There have been pedlars taking their wares from town to town and from city to city for as long as there have been records in the country, so it is a status that has existed from time immemorial. There were references to pedlars before 1191. It is not customary practice; it is practice from time immemorial. It was recognised in the 1871 Act; it was not created in the 1871 Act—that is a very important distinction. In other words, it is not clear that the status of the pedlar can be abolished. It seems to me that it is an ancient status in the realm and that there have been very ill thought out and incoherent attempts to limit that freedom of movement, as was manifest in the Bills that came before.

I looked at the BIS consultation document. BIS’s legal evidence seemed to suggest a lack of historical awareness about pedlars. It was taking EU directives and applying them in a very flat and straightforward way. I asked BIS how it could account for the fact that Germany has enormous differences in craft status that are still consistent with the EU. Its reply was, “We take a different view of enforcement”. BIS is taking a very straightforward, unhistorical view that pedlars will interfere with new services. We have to resist that, refute it and absolutely assert that pedlars have been part of our kingdom and part of the realm for many thousands of years. They play a role in taking things from town to town and in bringing people together in many ways, disrupting stable, corporate markets. We really should defend them. I commend the report and I commend the committee.

3.46 pm

Lord Lucas: My Lords, I am absolutely delighted to be able to praise my noble friend’s committee. It is an extraordinary example of the Lords at its very best and I cheer to the echo what it says in its report. It is wonderful to see the Lords standing up for the unregarded, which is something which, when we pay attention, we do very well. I echo my noble friend’s praise for Chris Bolton, who is one of the great anchors of this House. I am also going to praise the European Union, which I do not always do—it seems to me that it has got the services directive right—and I am going to praise my noble friend on the Front Bench in his role with his department, because the consultation that it has produced is a very fine example of a consultation. It is clear about what it sets out to do; it is clear about the reasons that it is adducing for that; and it is open as regards the responses that it is looking for. It clearly anticipates that people will disagree and it encourages disagreement. It is a very fine piece of work and I look forward to the legislation if it carries on in that spirit. It would have been nice, too, to be able to praise the Local Government Association, but its reaction to the consultation was immediate, negative and silly.

As the noble Lord, Lord Sugar, often reminds us, we are going through tough economic times. It looks as though those will be with us for some time to come. We really have to make it easy for people to start out in business, whether they intend to found Marks & Spencer or whether they intend just to make a living. If that is some minor inconvenience to us, we jolly well have to put up with it. The high streets are difficult places to

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break into now. It would be very difficult for the noble Lord, Lord Sugar, to do what he did in founding a business because so many businesses are now chains. How can a little guy starting out get a chain store to take up his product? It is very difficult. A lot of the empty premises in high streets are not for rent except at very high figures because the landlords are desperate to keep up the fiction that they still have a high-value property on their hands. That makes it very difficult for people who are just starting out to obtain space on the high street. The attitude shown by the consultation and by my noble friend’s committee seems to me entirely praiseworthy.

When one walks around the streets of Westminster, one sees that Westminster Council is very much in favour of sterility when it comes to its streetscape. I feel ashamed because there is so much money in Westminster and so many opportunities to start businesses. I hope that the result of the determination of my noble friend on the Front Bench’s department to open up the legislation on street trading and pedlary will be that we start to see that, as a community in Westminster, we give many more people the chance to start out in life.

3.51 pm

Lord Strasburger: My Lords, I, too, was a member of the Select Committee that considered these Bills and I will start by thanking the noble Baroness, Lady Knight, who chaired the Select Committee with great patience and skill.

Most pedlars are itinerant and often go where the business takes them, selling hats, scarves, other items of clothing, key rings and balloons. They are true entrepreneurs, adapting their products and location to what their customers want and where the market is. They add colour and diversity to our increasingly uniform shopping streets. The fact that they can make a living as pedlars suggests that they provide a useful service and, so far as the committee could tell, they appear to do no one any harm at all.

The Bills as drafted sought to end the pedlars’ exemption from street trading laws so that they would not be able to operate on the street in areas designated by the four local authorities that are pushing the Bills. The Bills as presented to the Select Committee also introduced fixed penalties and a power for officials to seize pedlars’ goods. The committee spent a lot of time trying to discover why the four local authorities wanted these powers. We were told that pedlars sell sub-standard goods, but no evidence whatever was offered to prove this allegation, and we have no reason to believe that their goods are any better or worse than those sold by licensed street traders. It was alleged that pedlars create a situation that attracts pickpockets, but again, no evidence was offered. It was also said that pedlars cause obstruction of the highway. Little evidence for this allegation was offered apart from a small number of cases where wide and expanding trolleys had been used.

The witnesses who spoke for the local authorities were somewhat unconvincing. We heard evidence from pedlars that many council officers and the police are ignorant about the 1871 Act, and we also heard much evidence of a bullying culture on the part of council

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officials towards honest and hard-working pedlars. I concluded that the real reason why these councils wish to exempt themselves from the 1871 Act is that they are control freaks who resent the freedom that pedlars enjoy. I also suspect that there is pressure from licensed street traders, who compete with the few pedlars in their area and who pay considerably more than a pedlar’s licence for their trading pitch. However, for the extra fees that licensed street traders pay, they get the benefit of a fixed pitch where they can trade all day without having to move on. If they think that pedlars get an unfair advantage, there is nothing to stop them applying for a pedlar’s licence themselves.

The committee made several important amendments to the Bills. Pedlars will still be able to operate on the street in the designated areas provided that their trolleys do not obstruct the highway. The amendments set maximum dimensions for the trolleys to bring clarity to this issue. The amendments reduce the number of reasons that a local authority can use to designate an area. We deleted the seizure powers, which we thought could easily have been abused by council officials. We added a requirement for better training of council officials on trading laws and a requirement for local authorities to make their rules and designated areas clear on their websites. We also constrained the value of fixed penalties. Therefore, we have turned what I believe to have been four bad Bills into four not so bad Bills. We have removed or neutered their most repressive aspects.

I have to say that, if it had been down to me alone, I would have made only one amendment to each Bill, and I would have done that with the help of the nearest shredder. But in deference to my more experienced colleagues on the committee, I have agreed to a set of amendments that reduce the detrimental impact of these Bills, and it is the amended Bill that is before the House today.

3.55 pm

Lord Gardiner of Kimble: My Lords, perhaps I may acknowledge at the outset the considerable efforts of the noble Lord, Lord Bilston, and pay tribute to his determination to see these Bills make progress. The noble Lord’s patience is remarkable. I should also say that your Lordships’ House is indebted to the committee for its extremely thorough work, and it is very clear that my noble friend Lady Knight of Collingtree has been both kind and firm. The result of the committee’s work is that the Bills are in better shape.

My understanding is that the Government do not normally seek to intervene in private legislation, but on this occasion they have done so in order to take full account of the impact of the European services directive. As many of your Lordships will know, the services directive aims to make it easier for services businesses of all types, including retailers of goods such as street traders and pedlars, to set up and trade anywhere in the European Union. Restrictions on trading must be the minimum necessary and can be allowed only where necessary to defend overarching public interest objectives such as public safety and public order. This means that licensing and registration systems must be justifiable on the evidence and effective in securing the public

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interest. Blanket bans will not be allowed if there are less restrictive ways of achieving the desired objective and there must be no discrimination in favour of UK-based or local traders.

The Government are currently consulting on changes to the national legislation on street trading and pedlary in order to take account of the directive. The same constraints apply to local legislation. I should say at this stage that this is not a case of the UK being obliged to introduce onerous new regulations against its will. The services directive is fundamentally a pro-enterprise measure designed to build the single market and successive Governments have supported this kind of deregulation.

In October 2011, during the Committee stage of these Bills in your Lordships’ House, the Government raised their concerns about the compatibility of the Bills with the services directive, in particular Clauses 4 and 5 of the Bills. As a result of the concerns raised both by the committee and the Government, Clauses 4 of the Bills were totally removed and Clauses 5 were adequately amended. As the Government’s concerns have been addressed, the Government have no objection to the further progression of the Bills through this House.

If your Lordships will permit, I would like to say a few words about the Government’s further plans in this area, and I am reassured that noble Lords have already welcomed much of what has already been said in this regard. As has been mentioned, the Government’s consultation on draft regulations to amend the national street trading regime and repeal the UK-wide Pedlars Acts of 1871 and 1881 was published on 23 November and will run until 15 February next year. On conclusion of the consultation period, the Government will fully consider the views of the respondents before a final set of draft regulations is laid in Parliament. The Government are open to amending local legislation through these regulations at the same time, if the relevant local authorities so wish. Referring to the point made by the noble Lord, Lord Blair, the Government have asked in the consultation that local authorities ensure that they screen their legislation. If they identify provisions which require amendment, they can use the Government’s regulations to make the changes. I will also refer to the point made in different ways by the noble Lord, Lord Glasman, and by my noble friends Lord Strasburger and Lord Lucas, about the historic—indeed ancient—role of pedlars. In my view as a rural man, this relates to the analogy of acorns growing into oaks of commerce. My noble friend Lord Lucas referred to founding businesses and we must surely encourage this.

The Government will watch carefully to see if the new legislation creates particular problems for local authorities and if they emerge, the Government are open to considering further changes to national legislation, if appropriate. However, on this occasion I think the balance has been struck correctly and I reiterate the Government’s continued thanks to the noble Lord, Lord Bilston, and to the committee for their work in getting this matter right.

4.01 pm

Lord Bilston: My Lords, I sense that the House wishes my reply to be brief. I can be brief, in the sense

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that a great deal of the meat of this important question has been dealt with by the members of the committee. Every member of the committee made the point that I made at the outset: that it is due to the able chairmanship of the noble Baroness, Lady Knight, and the integrity and wisdom of the committee in bringing forward the points and amendments that it made, that a fine and fair balance has been struck between the needs of pedlars and those of legitimate market traders and local authorities. I entirely accept the stricture of the noble Lord, Lord Blair, that there is a long way to go. However, it is not for the want of people like myself urging previous Governments to take hold of this issue and deal with it, as we did at Second Reading. We now understand consultation will take place in order to have a national solution which will be dealt with in a national way, rather than with these private Bills.

As we have heard, anomalies will now arise, because Bills have been passed giving greater powers to local authorities in this matter than are being given in the four Bills we are debating today. The way that these Bills have been dealt with creates anomalies and that is why we always wanted a proper national solution from the Government of the day. I hope this will be forthcoming. I again thank the noble Baroness, Lady Knight, and all the members of the committee for working in B-flat harmony to bring about this happy conclusion for the four local authorities for which we are moving these Bills and for the pedlars who will have a sense of fairness and justice awarded to them. I commend the Bill to the House and thank all noble Lords for their participation.

Amendments 1 to 3

Moved by Lord Bilston

1:Page 1, leave out “and touting”

2:Clause 2, page 2, line 13, leave out “Valley”

3:Page 2, line 22, leave out “street” has the same meaning as in Schedule 4 to the 1982 Act.”

Amendments 1 to 3 agreed.

Bill passed and returned to the Commons with amendments.

Leeds City Council Bill

Third Reading

4.05 pm

Bill passed and returned to the Commons with amendments.

Nottingham City Council Bill

Third Reading

4.05 pm

Bill passed and returned to the Commons with amendments.

Reading Borough Council Bill

Third Reading

4.05 pm

Bill passed and returned to the Commons with amendments.

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Draft Cumbria (Electoral Changes) Order 2012

Motion of Regret

4.06 pm

Moved By Lord Liddle

That this House regrets that the draft Cumbria (Electoral Changes) Order 2012 has been produced with inadequate consultation with the County Council and other interested parties; without a simultaneous review of the district council ward boundaries with the consequence that the electorate will be confused as to their local representation; and with serious flaws in the process conducted by the Local Government Boundary Commission for England (LGBCE) that specifically contravene the requirements of the Local Democracy, Economic Development and Construction Act 2009 that the LGBCE base their recommendations on population forecasts for five years after the Order comes into force, given that the LGBCE admit they do not have the legally required information for 2017.

Lord Liddle: My Lords, I beg to move the Motion of Regret in my name on the Order Paper. I apologise to the House for having to raise this matter on the Floor, but it is an important one because the Local Government Boundary Commission for England has behaved, I am afraid, in what I consider to be a bureaucratic and insensitive way and has not obeyed its own rules. On all sides of the House, there is support for the principle that boundaries of constituencies, county divisions and borough wards should be set by a process that is independent of party politics and that those boundaries should be reviewed periodically to ensure broad equality of representation. However, the contention of this Motion of Regret, and my reason for moving it, is that there were very serious flaws in the way that the Local Government Boundary Commission for England acted in relation to the boundaries of Cumbria County Council.

There are two points about Cumbria that need to be stressed. First, you are dealing with a very sparsely populated county, with very stable communities with very strong local identities which need to be respected in any review of local boundaries. In my own home town, Carlisle, which particular part of it you were from—such as Denton Holme, where I was from, or Stanwix—defined what kind of person you were. These local identities are very important.

Secondly, and this is a more important point about the process, it is a part of the country where there is two-tier local government. Personally, I regret that and am in favour of a single-tier authority, but I know there is debate about that. If you have two tiers of local government, it is important that they marry together. The problem that we have with two-tier local government is that for most of the public, the districts are the focus of local representation and democratic voice, but it is the county council that has the money and the powers and provides most of the services. There is already confusion about who is responsible for what in this two-tier system and it greatly adds to the confusion if, in revising boundaries for the county

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council without at the same time revising boundaries for the district, you end up with different bases of representation.

This could have been done differently. The order we have before us also considers town council boundaries, and there is absolutely no reason why the district and the county could not have been considered together. Instead, what appears to have happened was a mechanical, computer-driven process of equalising the wards by drawing lines on maps—which, incidentally, no local people can actually read when they try to print off those maps—but also a process that was without regard for local community ties.

Again, I cite an example from the city that I know best. Ever since my childhood there has been a ward on the west side of Carlisle round the area of the Brunton Park football ground, called St Aidans, and this has completely disappeared. The area where my parents lived for most of their lives, which is called Currock, is being split in two and half of it is being amalgamated with another part of town that is quite distinct from this area. These are bureaucrats who have applied computer principles; they are not people who have looked at local communities.

It also seems strange to introduce a wholly new set of boundaries within four or five months of the elections for the county council next May. People will discover that councillors who have represented them for decades no longer represent them. This simply adds confusion for confusion’s sake. This was a rushed job, in my view, and also did not comply with the legal requirements that the Boundary Commission is supposed to take into account when it revises boundaries.

There is a requirement to take into account population forecasts for five years for each of the wards. The Local Government Boundary Commission for England did not have that information available. It had information for the population forecasts for the districts only up to 2016, when the law requires it to have forecasts up to 2017. It used those population forecasts pro rata to each ward rather than looking at the circumstances on the ground in each ward. Of course, that information would have been available to the Boundary Commission if it had done the district boundaries at the same time because the district councils, as the planning authorities, hold the detailed information about what developments are likely in the coming period.

I am moving this Motion because I believe that the Boundary Commission has behaved with a lack of common sense. It has exceeded its authority and refused to admit its error. While it is right that the Boundary Commission should be independent in its judgments of boundaries, it cannot be independent of the statutes that govern its operation, nor can it be independent of scrutiny if it behaves in an arbitrary and bureaucratic way. I hope that this Motion will give the Boundary Commission an opportunity to think again. I beg to move.

Lord Campbell-Savours: My Lords, I only wish that the Government could have rejected the product of this review before bringing this before Parliament. The truth is that no one anywhere in the county of Cumbria asked for this review at district, town or county level.

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Indeed, I quote the Conservative leader of Cumbria County Council in his letter to the Commission on the 8 September 2010:

“I am concerned that the review of Cumbria County Council’s divisional boundaries is to take place in the next few weeks. That there is a need for such a review … I do not contest”.

He goes on to express his “considerable reservations” as to the limited nature of the review, the lack of a full consultation with the county council about the nature of any meaningful review that should take place.

There was one small problem in the county, one ward—Dalston and Cummersdale, near Carlisle—which has led to all this public money being spent, and it could have been resolved by some minor decisions being taken in the structure of county council wards. The county has provoked an anomalous position with overlapping district boundaries, which will probably provoke an equally unnecessary district boundary review, which no one wants and on which no one wants to spend public money, leading to the further use of district and county authority resources.

4.15 pm

If the review were to take place—in my view, and that of most people in the county, it should never have taken place—it should have been done in conjunction with the districts, following consultation. If that had been the case, it would probably have been many years before any review had been undertaken and a lot of public money would have been saved. As Mr Eddie Martin, the Conservative leader of the council, put it in the same letter to the Local Government Boundary Commission for England, this review

“is an unnecessary distraction which we could do well without”.

My contribution today is to ask a series of questions to which, if they cannot be answered at the Dispatch Box now, I would like answers in writing so that they can be circulated within the county. First, what has been the cost to the Local Government Boundary Commission for England of this review, which everyone believes was totally and utterly unnecessary? What would have been the cost if, at some later stage, when it was finally necessary, the review had encompassed both district and county authorities? What would have been the saving to the Cumbria council tax payer?

My noble friend Lord Liddle raised the question of Schedule 2 and the projections for 2017, which were not taken into account because the data for 2017 were not available to the Local Government Boundary Commission for England. It simply guessed. In an e-mail to the Labour leader of Cumbria County Council, Mr Stuart Young, on 31 July 2012, the commission stated:

“As explained previously, the Commission has had to make a number of assumptions to make good the lack of detailed forecasts at polling district level from your Council. Nevertheless, the Commission judged that the forecasts, such as they were, gave sufficient basis to proceed with the review and settled its final recommendations in May. The final audit we chose to undertake since has not given any cause to alter the view that the figures are fit for purpose, within an acceptable range of inherent future uncertainties”.

That is not what the law requires. The law requires something far more accurate: a description of what the statistics would be in 2017, but with that reference to,

“an acceptable range of inherent future uncertainties”,

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the Local Government Boundary Commission for England somehow believes that it is meeting the requirements of the law.

My next question is: is it actually meeting the requirements of the law? Does not its decision to proceed in that way in the county of Cumbria have implications for all future Local Government Boundary Commission for England reviews in all other counties nationally? I am sure that all county authorities will be interested in the Minister’s response. Furthermore, I would like to know what constitutes an acceptable range. That should be qualified for the benefit of others in future.

I turn to the local responses to the review. Again, they turn on the issue of public money. I have here an e-mail from Egremont Town Council. Yes, these are very parochial issues to be raising in the House of Lords, but the point about this debate is that what we are doing in this order has implications for other counties throughout the country. The concerns being expressed by the two local councils to which I intend to refer may well be mirrored in other authorities in the event that their reviews are carried out on a similar basis.

“Egremont Town Council object to the proposed change in that it will result in the parish of Egremont being divided into 4 divisions, this, we feel will add an additional financial burden on the Parish as more polling stations will be needed at an average cost of £1,000 per station”.

We are talking here about a parish council with almost no money available to it having this additional expenditure imposed upon it. The e-mail continues:

“The proposals create an Egremont East Ward that has approximately 5 houses which seems ludicrous. It is disjointed what we have and will create a polling day nightmare that will prove very confusing for many when on one sheet they will be voting for a Parish Councillor for Egremont East”,

and then it refers to overlap with other wards in the same area.

I have another letter here from Maryport Town Council, where it equally expresses its concerns. It is a letter to Sir Tony Cunningham, the MP for Workington, expressing its concern to him:

“The Council asked that I write to you expressing its dissatisfaction with the proposals for a north/south split of the Maryport area wards rather than the current east/west split arrangements. The Council considers that the current arrangements are perfectly adequate and that the arguments for the proposed arrangement are not strong enough to merit a change from a division that is working perfectly well”.

There is no politics in this; there is no gain to any political party. It is all being done neutrally, but what is happening is that relationships built up between constituents and their council representatives, sometimes over decades, are being smashed to bits, ruined and destroyed because of the turn of a pen of a bureaucrat, probably sitting in an office in London, who has no immediate knowledge of what is going on within particular wards in the county of Cumbria.

I only wish that it had been possible to stop this process proceeding. I do not know what the legal position is. I presume that now that this order is going through it will all be implemented. However, the Local Government Boundary Commission for England should realise that sometimes it should simply stop what it is doing, because no one wants what it is doing. It is

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forcing local authorities to incur public expenditure which they can ill afford at this time. The reality is that the Local Government Boundary Commission for England seems unstoppable; it seems just to keep on going irrespective of pressures at a local level. I can only put it this way: if Carlisle were burning, the Local Government Boundary Commission for England would still be drawing up wards for that town. That shows the nature of the problem.

Lord Judd: I am glad to support my noble friend Lord Liddle in bringing this Motion before the House. It is difficult to think of a county in which there is a stronger sense of tradition and community than Cumbria. It is very deep indeed—partly, of course, because it is right out there to the west of the country and not part, perhaps, of the mainstream of the United Kingdom, but very much a county with its own sense of identity. That sense of community in the county is built on a strong sense of community in the local communities of which the general community of Cumbria is comprised.

When I look at what has happened and listen to my noble friends, with all their experience—much longer than mine—of the county of Cumbria, it is clear that, if one had set out to try to disrupt something which is good, healthy and robust in the life of Cumbria, one could not have done much better than to introduce the ill considered and insensitive proposal before us.

It is impossible to speak to this subject without making reference to what has been going on with respect to constituency boundaries as well. People are in a real state of muddle about where they belong, where their loyalty is, who is representing them and for what. For democracy to succeed, it is essential that people are absolutely clear about who they are holding to account and who is representing them in the local authority, the county and nationally.

I believe that the Motion and the passion with which it has been introduced are related to the heart of democracy. It is an illusion to think that one can have a healthy democracy made up simply of individuals going to the polling station and voting. A healthy democracy is made up of individuals finding their place in the community, discussing with fellow members of that community what the issues are, making relationships and making strong representations together. The heart of democracy lies in that community life and, on the basis of that life, on then being able to hold people meaningfully to account, not just on election day but throughout the periods between elections.

I am certain that we need to think very carefully about what is being done on boundaries in so many different contexts; the measures are destroying the sense of community that is an essential element in a healthy, thriving democracy. These proposals certainly do not put that right.

I am glad to see that a Liberal Member of the coalition is going to reply to this debate. If the Liberal Democrat party prides itself on anything, it is its history of involvement in the community and its activity in community politics and the rest. I am sure that the noble Baroness will have listened to every word that has been said and will cheerfully and willingly undertake to ensure that this entire serious matter is reconsidered.

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Lord Clark of Windermere: My Lords, I shall not detain the House for more than a couple of minutes; I just want to participate in this debate that my noble friend has initiated. I agree very much with him about the strength of community in the county—not only in Cumbria, though, but in other countries as well— while starting from the opposite end: I am not in favour of a unitary authority covering such a vast area as Cumbria. However, I am in favour of a two-tier system of local government. Because of that, I am concerned about this recommendation from the Local Government Boundary Commission for England, which seeks to address only the issue of the county electoral boundaries, not the local ones. We all know that one of the problems of democracy at the moment is the identification of individuals with their council. This just adds another area of confusion where there are different boundaries for the two-tier system of government.

I submit that these proposals were made too late for the election beginning next May; they were laid on 31 July this year. There has been practically no publicity whatever in the county of Cumbria. I doubt whether 1% of the electorate know anything about them, and they are going to get quite a shock when the election comes next May.

Lord Harris of Haringey: My Lords, this is a living Chamber and I believe that procedure evolves all the time among your Lordships. I therefore find myself in a rather strange position—because the Local Government Boundary Commission for England, set up under the 2009 Act, is independent of the Government—of having drawn the short straw in responding both to my noble friend’s Motion of Regret and to the comments made by my noble friends Lord Campbell-Savours, Lord Judd and Lord Clark. A quadrumvirate of people I respected more would be extremely difficult to find, but it is important for your Lordships to understand the context in which these changes have been put forward by the Local Government Boundary Commission for England.

The commission was set up with the specific and sole remit to review electoral arrangements of councils against statutory criteria of electoral equality, giving fair weight to the votes of all electors in a council area; community identity and interests; and effective and convenient local government. It carries out its functions by relying on a mixture of analysis and judgment.

4.30 pm

What we have here, as has been outlined, is a circumstance in which there has been considerable conflict during the course of this review between Cumbria County Council and the commission. I find myself in the position I have often watched with amusement, when people at the government Dispatch Box defend material over which they have had no influence whatever.

However, that does not necessarily mean, as my noble friend Lord Campbell-Savours is inclined to suggest from a sedentary position behind me, that the position is indefensible. My noble friend Lord Campbell-Savours and others have said that the county council has never wished for this review. The advice I have

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received is that it is the council’s present leadership that has never wished for this review. At every stage the county council has challenged these boundary changes and sought to block their implementation. However, the commission has a statutory responsibility. The Act gives the commission power to conduct a review where it judges it desirable, whether a council wishes it or not. The commission has intervened in Cumbria because its well established criteria of electoral fairness indicate that it should.

The reason is that there is a significant level of electoral inequality for local voters. My noble friend Lord Campbell-Savours has specifically referred to the ward of Dalston and Cummersdale, which includes 33% more electors than the average for the county—not the lowest, but the average. That is a degree of electoral variance which, against the criteria applied universally by the commission, is unacceptable. It means that the value of the vote in that area varies very considerably depending on whether you live in that division or one of the neighbouring divisions. As the commission has a duty to ensure fair votes at local elections, it needed to carry out this review.

Lord Campbell-Savours: Did it have an obligation to carry out a review of the whole county on the basis of a single complaint about Dalston and Cummersdale?

Lord Harris of Haringey: My understanding is that you cannot make a small change without there being repercussions elsewhere, but in any event the difficulty arises because of the nature of the dialogue between the council and the commission.

As I said, the Act gives the commission the power to conduct the review whether or not the council concerned wishes it to happen. One can understand the reasons behind that. Clearly, a council might want to maintain the status quo because it suited the members of that council so to do. I accept the comments that have been made that this is not the circumstance in these areas. The Act lays down that the council “must” assist the commission by supplying necessary information.

However, I am informed that in resisting the review, the council has in practice failed to comply with its duty to supply information. Clearly, one way in which the council could have moved forward is what happens very frequently with reviews of local government divisions: the county council or the council concerned puts forward its own set of proposals, which the boundary commission then measures against those criteria to see whether or not it applies.

Lord Campbell-Savours: I am sorry to correct my noble friend, but I understand that the county council was more than helpful. The problem was at district level, so I think that he has been badly briefed by his commission.

Lord Harris of Haringey: As I have said, I am in the position of so many Ministers before the Dispatch Box in that I have not got access to the primary material. However, I am told that, universally in these circumstances, the county council provides the information

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on population projections because it has the material across the county area. When the districts were asked whether they had comments, they were not able to comment on this because, they said, all the information on the projections was held by the county council. So we have this information, and we have to make the best of what we have before us.

Of course, the commission would have been ready to contemplate the much bigger and more complex review necessary to consider the district councils as well, but only if there had been a reasonable consensus on that being the way forward. Within the individual districts, there were not the same electoral disparities. There has never been that consensus. As I said, the district councils do not present electoral inequalities to merit the review in their own right.

A number of noble Lords have criticised the quality of the consultation. As a matter of course, the commission proceeds carefully through public consultations on council size. The quality of the maps has been criticised. My understanding is that the council was given the full mapping in electronic form, which would have enabled the council, had it so wished, to disseminate and generate local maps in whatever form and as flexibly as it wished.

My noble friend has suggested that the commission was unstoppable in its approach. The reality is that, as a result of the representations made by the county council, the commission extended its usual consultation periods, allowing in total 32 weeks, or eight months—a very generous definition of consultation for those of us who are used to systems of government consultation. It allowed six weeks’ consultation on the total number of councils required; 12 weeks of inviting submissions on electoral division patterns, which would of course have been the point at which the county council could have come forward with a proposal that would have dealt with the single anomalies; and then a further 14 weeks on draft recommendations for new electoral boundaries. By most normal definitions, that is ample opportunity for people to have their say. My advice—again, it may be challenged—is that the county council did not contribute. Its representations were directed only to challenging or delaying the review.

The council has also challenged the adequacy of the electoral projections used in the review, yet these were the projections that it supplied. It complained that because electoral registration is a district council responsibility, it could not be expected to do better. The commission responded that in no previous case has a county council insisted, like Cumbria, that it cannot or will not supply the requested information. That said, I am advised that the commission recognised that questions might be raised on the council’s figures, and took steps to mitigate any ill effects. It judged the council’s overall growth projections reasonable, and not indicative of unusual volatility in the number or distribution of electors over the coming years. It adjusted for known developments. Above all, in drawing electoral divisions, it secured high levels of electoral equality on current registration figures. That is important. If there were subsequent variations, the fact that there was this high level of accuracy at this stage would mean that it would be very unlikely that, over time, the imbalance would become too great.

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The council says that the final recommendations will be defective because it had no worked projections for 2017. The commission has the council’s own projections for six years to 2016, which would normally have covered the five years from the completion date set in the Act. The only reason for the delay in completing the review was the extension of the consultation as a result of the county council’s own resistance—meaning that, in this case, the commission had no specific projections for the final year. However, the Act says that the commission,

“must have regard to any”

likely changes, and the commission has explained how it has done so.

Projections are necessarily inexact and the commission resists the council’s attempt to import into the Act the specific requirement to project figures for each year. My understanding is that if the council had persisted and wished to challenge it, it could have made a legal challenge. Indeed that would be the only normal remaining mechanism left to it. It chose not to, maybe because it could not afford to do so or maybe it received advice that the case was not as strong as it should be.

My noble friend Lord Campbell-Savours listed a series of questions, most of which, in terms of the specific costs, I am not in a position to answer. In his powerful contribution about the nature of democracy, my noble friend Lord Judd made some very valid points. Democracy is based on local representatives elected by local communities where there is an affinity between those communities and those who represent them. However, to achieve that affinity and electoral fairness requires a dialogue at local level and it is clear from the discussion that we have had in your Lordships’ House this afternoon that in this instance that dialogue was not as successful as it normally is in other cases.

I hope that on the basis of what has been said with regard to the commission’s rationale and the extensions to the consultation it provided, my noble friend Lord Liddle will feel able to withdraw the Motion in his name. I also hope that the commission will read very carefully the comments that have been made and reflect on their implications both for the way it conducted itself in this case but also in the way it conducts itself in future boundary reviews.

Baroness Garden of Frognal: I thank the noble Lord, Lord Harris, for his contribution, and clarify and confirm that these are matters for the Local Government Boundary Commission for England. It is normal procedure in such cases that the Government do not take a position.

Lord Liddle: My Lords, I thank my noble friend Lord Harris of Haringey for his robust reply to our Motion of Regret. He has done the Local Government Boundary Commission for England proud; I am only sorry that there does not appear to be anybody from the commission here to have listened to it. Before I sit down, there are a couple of points that I wish to correct.

There is nothing political about this. There was unanimity between the Conservative and Labour members on Cumbria County Council that they did not want

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this boundary review to proceed. They were not trying to stop it for reasons of party advantage but because they thought it was a completely unnecessary exercise at a time of great austerity when vital services are being cut. They did not want to have to waste their time on it. Frankly, the boundary commission could have dealt with the problem of the overexpansion of the electorate in one ward by simply making some marginal adjustments, such as putting the 1,500 voters into adjacent wards, without having to go through the whole process of a full-scale boundary review, which no one in the county really wants and which, on the eve of an election, has had disruptive effects in terms of local representation and community identity.

I thank my noble friend Lord Harris very much for making the case for the boundary commission; I only hope that the boundary commission listens to this debate and will in future take note of what has been said about how it should proceed. I hope it will accept that responsibility. On that basis I am prepared to withdraw my Motion of Regret.

Motion withdrawn.

Civil Legal Aid (Merits Criteria) Regulations 2012

Civil Legal Aid (Merits Criteria) Regulations 201210th Report from the Joint Committee on Statutory Instruments

Motion to Approve

4.44 pm

Moved By Lord McNally

That the draft Regulations laid before the House on 29 October be approved.

Relevant documents: 10th Report from the Joint Committee on Statutory Instruments

The Minister of State, Ministry of Justice (Lord McNally): My Lords, in moving the draft Civil Legal Aid (Merits Criteria) Regulations 2012, I shall speak also to the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012. The Civil Legal Aid (Merits Criteria) Regulations 2012 set out the merits criteria both for applications within the scope of the civil legal aid scheme, which are described in Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and for exceptional funding cases that fall outside that schedule.

The merits criteria are those that the director of legal aid casework must apply in deciding whether an individual qualifies for civil legal services. When the director delegates his functions under the regulations to providers or his employees, they will also be required to apply these criteria. The criteria include both general merits criteria and specific merits criteria. Specific merits criteria are applied for particular types of case where the general criteria are considered to be too strict or where bespoke criteria are appropriate for particular types of case.

Noble Lords may be aware of the funding code created under Section 8 of the Access to Justice Act 1999. These regulations replace that funding code. The funding code criteria are based on a list of factors set out in Section 8 of the Access to Justice Act 1999. These include the importance of the case to the client, the prospects of success and the likely costs. The regulations

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before us are based on a list of similar factors set out in Section 11(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The criteria must also reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings. I hope that this is a principle we all share. Our approach in making these regulations has been broadly to retain the existing merits criteria. In our consultation on legal aid reform we consulted on one significant change to the current funding code criteria; namely, that legal aid will be refused for any individual case which is suitable for a conditional fee agreement or CFA. That is reflected in Regulation 39(b).

At present that funding code requirement is disapplied for judicial review cases, claims against public authorities and claims for clinical negligence. We have removed these exceptions. We believe that our limited resources should not be focused on cases where alternative options for funding exist. The Legal Services Commission, or the Legal Aid Agency as it soon will become, has significant experience in determining whether a CFA is likely to be a real alternative. If funding is refused on this basis, an applicant can ask for a review of that decision. If they still are not satisfied, they can seek an independent appeal.

The noble Lord, Lord Pannick, has tabled a regret Motion regarding Regulation 53(b). This states that the regulation will substantially reduce the availability of legal aid in public law cases because the word “reasonable” has been omitted in relation to other means of challenging the relevant decision. I am assuming that this is in comparison to Regulation 39(d), which raised concern in the House of Commons.

Let me first explain what this regulation provides. Regulation 39(d) concerns alternative dispute resolution, such as complaints systems which might allow the client to resolve the dispute without issuing proceedings. The director has a wide discretion to decide whether such alternatives are reasonable in the circumstances. This criterion applies to public law, as well as other claims.

By contrast, Regulation 53(b) is about alternative routes to address the problem predominantly through proceedings. No concept of reasonableness is needed here because if there is an alternative route to resolving the problem in proceedings, that should be taken. This is because judicial review should be a tool of last resort. We recognise that the equivalent provision in the current funding code may on its face appear wider. However, in accordance with its published guidance, the Legal Services Commission has in practice applied this provision so that if there is an alternative appeal or procedure that addresses the problem, legal aid will not be granted for judicial review. Regulation 53(b) therefore reflects current working practice.

The Government made clear in Committee in the House of Commons that if pursuing an administrative appeal or other procedure meant that the individual could not obtain the remedy they needed, the director of legal aid casework would have the flexibility to fund. This is because the regulation specifically refers to alternative routes that “are available”. The director

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would need to interpret this in a realistic way. Where the director of legal aid casework found that alternative proceedings could not provide the remedy that the client needs, funding for a judicial review would not be refused under this criterion. I stress that this point would be put beyond doubt in published guidance.

However, the noble Lord, Lord Pannick, and others have expressed concerns about this matter, and others have expressed very strong anxieties about how we have framed this provision. I am not convinced that such anxieties are justified, but I will listen to what noble Lords have to say and see if, in my reply, I can move further to meet those anxieties and concerns.

I turn now to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012. The noble Lord, Lord Bach, will speak to his Motion shortly, but I would like to explain first what the order does. This order makes legal aid available in relation to a review by the First-tier Tribunal where it has identified an error of law in its own decision on a welfare benefit appeal. It also brings into scope certain applications as required by the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. Finally, it addresses a technical issue in relation to legal aid for judicial review.

The first aspect of the order makes available advice and assistance in relation to a review by the First-tier Tribunal where it has identified an error of law in its own decision on a welfare benefit appeal. This follows a commitment made by the Government during Commons consideration of Lords amendments of the then LASPO Bill to explore whether there was a way for independent verification to be used to identify any First-tier Tribunal welfare appeals which involved a point of law.

Of course, appeals to the First-tier Tribunal on welfare benefits matters are appeals against an administrative decision of a public authority. This is quite different from an appeal to the Upper Tribunal, where one must identify an error of law arising from the decision made by the First-tier Tribunal in order to bring the appeal. To appeal to the First-tier Tribunal, the appellant need only set out their reasons for disagreeing with the public authority’s decision in plain language. I understand that many appellants will wish to question whether the public authority has applied the law correctly. But this is precisely the job of the tribunal: to decide what the correct facts are and how the law should be correctly applied to them.

The Motion of the noble Lord, Lord Bach, against this order suggests that the Government have not fulfilled the undertaking given during the passage of the then LASPO Bill in this area. The then Lord Chancellor said at that time that he would “explore the options” available for a system of independent verification. I repeated the same assurances to this House, stating that we were,

“committed to doing further work to see how we might provide funding for those appearing before the First-tier Tribunal whose case also turns on a point of law”.—[

Official Report

, 23/4/2012; col. 1557.]

That is exactly what we have done. We have given very serious consideration to the various options for independent verification. We have come to the conclusion

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that imposing an additional task of verifying whether a case involved a point of law on either the judiciary of the First-tier Tribunal, the successor to the Legal Services Commission or the Department for Work and Pensions would be unworkable. This is because it would have resulted in significant extra administrative and cost burdens. We do not consider it right to impose these burdens in the current economic climate.

It is also important to remember that legal aid will not be limited to welfare benefit cases in this area only. We have retained legal advice and assistance for appeals under the Equality Act 2010. We have retained legal advice and assistance for reviews before the First-tier Tribunal, as I indicated. We have retained legal advice and assistance for applications for permission to appeal to the Upper Tribunal. We have retained legal advice and assistance for substantive appeals in the Upper Tribunal. We have retained legal advice, assistance and representation for onward appeals to the Court of Appeal. We have retained legal advice, assistance and representation for onward appeals to the Supreme Court. We have retained legal advice, assistance and representation for welfare benefit judicial reviews. It is important to stress that at no point in progressing our legal aid reforms did we say that it was our intention for all welfare benefit First-tier Tribunal appeals to receive legal aid. The Government’s position throughout has been that in these economic times we need to target legal aid at cases of the highest priority, where it is needed most. That was what the LASPO Bill was about. This is what we have done.

I turn briefly to the second aspect of the order, which brings into scope certain applications to meet our international obligations under the Hague Convention 2007. The convention sets out certain requirements for the provision of legal aid in relation to the recognition, enforcement or establishment of a decision in relation to maintenance, and there are reciprocal arrangements for signatory countries. We expect it to come into force in April next year. The convention is broadly equivalent to the EU maintenance regulations for which services are already made available under Schedule 1 to the LASPO Act. Most countries that have signed up to the convention will already be covered by the EU maintenance regulations—with a few exceptions, such as Norway.

The third part of the order addresses a technical issue in relation to legal aid for judicial review. In our consultation response on legal aid reforms, we confirmed that legal aid would be available for judicial review subject to a few specific exclusions. That remains our position. It is reflected in paragraph 19 of Part 1 of Schedule 1 to the LASPO Act, which puts within scope legal aid for judicial review in almost any area bar the exclusions debated and agreed by Parliament. However, an arguable effect of how the LASPO Act is drafted is that judicial review may be in scope for any area of law listed in Schedule 1, despite the exclusions in paragraph 19. This order simply makes a technical amendment to ensure that judicial review is governed exclusively through paragraph 19, and that the specific exclusions have the intended effect. I hope that this explanation has been helpful and I commend the orders to the House. I beg to move.

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Amendment to the Motion

Moved by Lord Pannick

As an amendment to the above Motion, at end to insert “but that this House regrets that Regulation 53(b) will substantially reduce the availability of legal aid in public law cases because the word ‘reasonable’ has been omitted in relation to other means of challenging the relevant decision”.

Lord Pannick: My Lords, I tabled a Motion of Regret because the Civil Legal Aid (Merits Criteria) Regulations will very substantially restrict the availability of legal aid in public law cases, particularly judicial review. In his very helpful speech, the Minister indicated that he would listen very carefully to this debate and that he might be able to move further in his reply. Therefore, I will explain the problem in the hope that he will be moved if not by me then by the many noble—and noble and learned—Lords who are limbering up to express their concerns on this issue.

The problem is caused by Regulation 53(b), which states that legal aid for a public law claim will be available only if the director of legal aid casework is satisfied that the individual has exhausted all administrative appeals and other alternative procedures which are available to challenge the decision before bringing a public law claim. Therefore, the director will have no discretion. Alternative procedures must be exhausted before legal aid is available to bring the legal challenge. The problem is that in many of these cases—whether they are judicial reviews, housing appeals or habeas corpus claims about people in detention—it is simply not reasonable to expect the litigant to exhaust other procedures and appeal mechanisms before going to court. The other procedures may take months and sometimes years to arrive at a conclusion. They may involve no power to grant an interim remedy to protect the position of the claimant—for example, if the claimant is challenging the removal of housing provision in the services provided or the removal of services which have been given to him or her to address a mental health problem. The courts themselves recognise the force of this point. If you want to bring a judicial review in the High Court, you must exhaust other remedies except if the court is satisfied that the alternative procedures are less effective or less convenient.

5 pm

The vice of Regulation 53(b) is that it will prevent the director granting legal aid if an alternative procedure is available, even if the director is satisfied that the alternative procedure is less effective than judicial review. Indeed, the bizarre effect of Regulation 53(b) will be that legal aid will be least available in the cases where it is most needed because the potential litigant faces an urgent problem which requires an urgent court order and he or she cannot wait for the other procedure to be exhausted.

The previous rules set out in the Legal Services Commission funding code, to which the Minister referred, address the issue perfectly sensibly. They say that legal aid,

“may be refused if there are administrative appeals or other procedures which should be pursued before proceedings are considered”.

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So far as I am aware, that wording has caused no difficulties because it confers a proper discretion that allows the funding body to require the use of alternative procedures only if they are equally effective or appropriate in the circumstances of the case. The Minister mentioned that there had been consultation on another aspect of the change in regulations, but as far as I am aware there has been no consultation on the change indicated in Regulation 53(b).

Nor can it be said that this problem can be remedied by implying into Regulation 53(b) the word “reasonable”. The reason that is very difficult is that other provisions of the regulations not dealing specifically with public law claims state that alternative remedies must first be exhausted but only where they are reasonable alternatives. That is what Regulation 39(d) says on the standard criteria for obtaining legal aid. I repeat that the difficulty with Regulation 53(b) is that it omits the word “reasonable”, therefore suggesting that there is an obligation to exhaust all other procedures, however unreasonable it may be to require the person to use those other procedures, before legal aid is granted.

The Minister suggested that Regulation 53 was concerned “predominantly” with alternative court proceedings. The problem with that approach is that Regulation 53(b) speaks of first exhausting,

“all administrative appeals and other alternative procedures”—

all, not some. Indeed, “administrative” suggests a process other than a judicial determination. The Minister in any event said that Regulation 53(b) is concerned “predominantly” with cases where there is an alternative court procedure, so he recognised that the regulation would also cover other cases. Even if the Minister is right that Regulation 53(b) is concerned predominantly with alternative court proceedings—and it is not—sometimes a judicial review is more appropriate than an appeal to a tribunal because, for example, the tribunal may lack the power to make an interim order which the claimant urgently needs.

The other point made by the Minister today was to suggest that, under Regulation 53(b), the claimant has to exhaust other procedures only if they are “available”, which he said provides the necessary “flexibility”. However, with great respect, that is no answer. The problem is not that the administrative and other procedures are not available; it is simply that they are less speedy or less effective than going to court for an immediate legal remedy. The Minister’s final point was that guidance will be issued on this matter, which will of course be very welcome. The problem is that guidance simply cannot cure the enactment of a duty imposed on the director to refuse legal aid.

The Minister will know that a large number of expert organisations, including the Constitutional and Administrative Law Bar Association, Mind and the Legal Aid Practitioners Group, have drawn attention to the defect in the drafting of Regulation 53(b). This restriction on legal aid in public law cases, about which so many people are concerned, is not, as I understand it, designed to advance any deliberate policy of the Government. We are not concerned here with any policy dispute. I say that having had a very helpful meeting with the Minister last week in which

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he and his officials listened very carefully to the concerns that I, together with other noble Lords, expressed. It would be very surprising if there were any policy dispute here, because the regulations are designed to implement the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The then Lord Chancellor, Mr Kenneth Clarke, gave an assurance in the other place during consideration of amendments to that legislation made by this House. I remind your Lordships of what the assurance was. Mr Clarke said that,

“we are continuing legal aid in all cases involving judicial review, so legal aid is available to someone who is trying to have a welfare decision judicially reviewed. That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice. This is not an easy concession to make, because quite a lot of people who seek judicial review are not instantly popular with all sections of society, but we still give them legal aid”.—[

Official Report

, Commons, 17/4/12; col. 277.]

I say to the Minister that the unhappy effect of Regulation 53(b) will be that legal aid will become unavailable in practice for judicial review and other public law cases where there are other less effective and slower procedures available. I therefore very much hope that in his reply the Minister will be able to move, and that he will be able to assure the House that amending regulations will be brought forward to cure what is undoubtedly a serious defect in Regulation 53(b).

Before I beg to move, I will say something about the fatal Motion of the noble Lord, Lord Bach, because, as I understand it, it is being debated together with my regret Motion. The Motion tabled by the noble Lord, Lord Bach, concerns another set of legal aid regulations. The issue here is distinct; it is access to legal aid for legal advice at First-tier Tribunal level. As the noble Lord will explain, this was a very controversial matter during the passage of the legislation earlier this year. Although most cases in the First-tier Tribunal concern the factual application of the law, some of them raise important points of law. They are very often highly complex points of law which the claimant cannot be expected to address without legal advice. Mr Clarke gave an undertaking, to which the noble Lord, Lord Bach, will refer.

I am very disappointed by the provision now made in those regulations. As I understand it—and it is a complex matter—legal aid will be provided at first-tier level only where the tribunal has already decided the case and recognises that it has made an error of law or seeks representations on whether it has made an error of law. If I may say so, that is a very odd way of addressing the issue because it opens the legal aid door only after the tribunal recognises that the legal horse has bolted, or may have bolted. I cannot understand why those regulations do not adopt the much more sensible and practical course of conferring a power—a discretion—on the chairman of the First-tier Tribunal to certify, on looking at the appeal, that it raises a point of law on which it would be appropriate for the claimant to receive legal aid for advice purposes.

I shall, of course, listen very carefully to the Minister’s answers to the Motion in the name of the noble Lord, Lord Bach, and I very much hope that the Minister will be able to move on my regret Motion. I beg to move.

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Lord Bach: My Lords, I rise to support the noble Lord, Lord Pannick, in the amendment that he has just moved, and also to speak to my Motion which I will move at the appropriate place. Before I speak to my amendment, perhaps I may say that I support unreservedly the amendment in the name of the noble Lord, Lord Pannick, to the Civil Legal Aid (Merits Criteria) Regulations. All noble Lords who have had the benefit of listening to his speech will have seen the logic and force of what he had to say. I suspect that there is no serious argument but that he is correct. I look forward, if it is necessary, to supporting him in the Lobby later on.

What I am doing with my Motion is to ask the Minister to withdraw the order that I have prayed against—namely the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012—so that it can be reconsidered as a fresh order when it is laid again. I am not seeking to go behind the Act of Parliament. I still believe that many parts of it are entirely wrong and an enormous mistake, but whether I like it or not, Parliament has passed it. It will come into force on 1 April 2013 and we will have to see what the consequences are, but that is not the point today.

5.15 pm

There are two main grounds for my request for the order to be withdrawn and they are linked together. If the order is not withdrawn, I will ask the House to decline to support it. That is why my amendment can be described as fatal, although in my view it is rather too emotive a term and is a somewhat misleading description because the Government can always come back with something that is acceptable to the House. So-called fatal amendments may be rare, but they are not that rare in this House. We have had 27 since 2000 instigated by Peers of all parties and of none. Indeed, I am in good company today in moving a fatal Motion because no one less than the Minister himself moved one—some time ago, let it be said—and pressed it to a vote. I also feel more content about moving a fatal Motion as I happen to have discovered that the Leader of the House, who is not in his place at present, has also been known to support such Motions in the past.

My first ground, and one that I hope will appeal to all parliamentarians, is that Her Majesty’s Government undertook on 17 April this year in the House of Commons to bring forward secondary legislation to allow eligible appellants to a First-tier Tribunal legal aid if their appeal is based on a point of law, but that in the event the Government have failed to honour this undertaking and are offering instead, as the noble Lord, Lord Pannick, has just said, a much narrower and, in the words of Citizens Advice, a “completely inadequate” alternative. Again, in the words of the Citizens Advice briefing:

“It would appear the Government is not making any commitment at all to provide legal aid for people to prepare appeals to the first-tier tribunal, even when that appeal is on a point of law”.

Let me take your Lordships back to the other place which, on 17 April, was involved in ping-pong, as it is described these days, with this House. Three weeks earlier, the noble Baroness, Lady Doocey, had successfully moved an amendment that would have allowed legal

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aid for legal advice for welfare benefit preliminary reviews and hearings; in other words, the position that has prevailed for many years in this country and is supported by a wide consensus from all political parties. She won her amendment by 39 votes. Her Majesty’s Government wanted to overturn the Doocey amendment, but faced a similar amendment from the honourable Tom Brake MP. It was a critical moment for this highly controversial legislation. The Brake amendment, if pressed, could well have passed the House of Commons and the Government would have lost a central plank of their Bill.

The Government needed to make a meaningful concession on First-tier Tribunals to avoid defeat. The then Lord Chancellor accepted the argument that if Second-tier Tribunal, Court of Appeal and Supreme Court appeals, all of which can be made only on points of law, can attract legal aid, then it is logical that welfare benefit cases should attract legal aid at the First-tier Tribunal as well, so that any point of law case in the First-tier Tribunal is legally aided. In such a case it would be absurd not to allow the appellant at a First-tier Tribunal at least some legal help or advice to prepare for their point of law appeal. The then Lord Chancellor stated:

“just as we have accepted the argument about legal issues in the upper tribunal, we could of course do so if the same thing arises in the lower”—[

Official Report

, Commons, 17/4/12; col. 226.]—

meaning the lower tribunal.

Anyone present at that debate in the House of Commons that day—and I was sitting in the Peers’ Gallery myself—was in no doubt that there was an undertaking to find a way to give appellants in points of law cases legal aid. The intention to do this was understood by everyone on all sides present in the Chamber. Certainly Tom Brake thought so. In agreeing to withdraw his amendment, he said:

“I also welcome the Justice Secretary’s clarification that it is the Government’s clear intention that, whether the points of law are for the upper or lower tribunals, these cases should be funded by legal aid”.—[Official Report, Commons, 17/4/12; col. 243.]

There was a “clear intention”. What happened next was that the Lords amendment of the noble Baroness, Lady Doocey, was overturned, and on 1 May the Bill became law. Many of us thought at the time that the concession did not go far enough, but whether it did or did not, none of us imagined what would follow.

On 18 September, the Parliamentary Under-Secretary of State at the Ministry of Justice, Mr Jeremy Wright, made a Written Ministerial Statement to another place in which he set out the Government’s solution to the concession. This is what is in Article 3 of the order before us this afternoon. The solution, I argue, is rather shocking. Instead of allowing legal aid in points of law cases at First-tier Tribunal, the Government will not allow any such thing. Instead, only in the extremely rare cases where, following the First-tier Tribunal decision the tribunal itself says it has made an error of law and sets up a review to decide what to do about it, will legal aid be even possible. In order to get to this stage, an appellant who has lost at First-tier Tribunal would have to draft his or her notice of appeal. This is an appellant who has received no legal help. Remember: this is about points of law, not about facts. So an appellant has received no legal help, no

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legal advice prior to or during the First-tier Tribunal or worked with a notice of appeal after the First-tier Tribunal. If the solution applies to anyone, it will be to very few people for a year.

Why have the Government given up and come up with something so different and so much less than they undertook? My guess is that the official asked to come up with a solution was told that it should not cost anything, even though the cost of the concession would have been minimal—perhaps about £5 million at £160 a case. I will remind the House that this is approximately one-twentieth of what the police commissioner elections have cost this country. Whatever the reason, my amendment is based on the belief that no Government—whatever their colour—should be allowed to get away with this. An undertaking to Parliament, even one made in extremis, must be kept. If it is not, then Parliament should insist. This is not a party point. Yes, I am proud to sit on these Benches, but it would not matter which Government of whatever colour were involved. Parliament should just not be treated like this. It is not common sense.

Briefly, my second reason for this amendment is bound up with the first. A very large number of appellants at First-tier Tribunal are disabled people appealing against decisions by the Department for Work and Pensions, whether in relation to employment and support allowance, disability living allowance or industrial injuries. Others appealing are often working men and working women who have been the object of other wrong decisions about benefits which they are entitled to. All these appeals are vital to the citizens who bring them. That is why early, inexpensive legal advice has been so important. It means that hopeless cases do not clog up the tribunals and that appellants can put their case better.

I have to accept that in the vast majority of cases legal aid will no longer be available after 1 April. However, many of the minority of cases that involve points of law are brought by disabled appellants and it has got to be common sense, and just, that they should receive some—some—legal advice. How can they be expected to know or understand the legal points that arise in their case? The Government agreed with that proposition in April; for some reason they do not now. Surely they should think again, and that is what I am asking them to do. In due course I will seek to move my amendment.

Lord Mackay of Clashfern: My Lords, I will speak in relation to both these matters; not in order of importance but in the order in which they were taken, so I will speak first to the amendment of the noble Lord, Lord Pannick.

As I understand it, what the noble Lord, Lord Pannick, finds difficult is Regulation 53(b), which requires that the director whose job it is to decide such matters has to be satisfied that,

“the individual has exhausted all administrative appeals and other alternative procedures”,

which are available to challenge the act, omission or other matter,

“before bringing a public law claim”.

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That is not just judicial review; it is quite a wide area of law, including habeas corpus jurisdiction, as the noble Lord, Lord Pannick, mentioned. However, this is not the whole of this matter. It is interesting that it is Regulation 53, because I think that the original rule of the Supreme Court that brought in judicial review was Order 53. It is a strange coincidence, but not particularly important. What is important is that, apart from what I have just read, the beginning of Regulation 53 requires that,

“the Director must be satisfied that the criteria in regulation 39 (standard criteria for determinations for legal representation) are met”.

So Regulation 39 has to be met before you come to this regulation at all.

The noble Lord, Lord Pannick, briefly referred to Regulation 39. It includes this provision at sub-paragraph (d), requiring that,

“the individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution”.

I understood my noble friend Lord McNally to suggest that that only applied to a limited number of alternative procedures—but it says “all reasonable alternatives”. I cannot see how it is possible to have Regulation 39, with that provision in it, and Regulation 53(b), which requires that that regulation is accepted, and also adds this. The two seem to be contradictory. It is not just the point that the word “reasonable” is used in Regulation 39; it is incorporated into Regulation 53 at the beginning. It simply does not make sense. That is the short and long of it.

5.30 pm

This matter was looked at by the Secondary Legislation Scrutiny Committee in its 14th report. On page 15, paragraph 44, it says:

“The Committee noted some variations in the terminology used in the Regulations and expects the guidance to make absolutely clear why these distinctions are made. For example, regulation 39(d)”—

the one I have just read—

“includes a test of reasonableness requiring the individual to have ‘exhausted all reasonable alternatives to bringing proceedings’ whereas regulation 53(b) does not include a similar test and requires the individual to have ‘exhausted all administrative appeals’, which would appear to be a higher threshold”.

Regulation 53(b) does not include a similar test, but Regulation 53 as a whole does because Regulation 39 is incorporated at the beginning of Regulation 53. Therefore the matter is quite clearly set out as a complete contradiction within Regulation 53 itself.

In my submission, Regulation 39(d) includes all alternatives, as it says, and the same is true of Regulation 53(b). The obvious solution is to delete Regulation 53(b) altogether and leave Regulation 53(a) as the only additional requirement. I hope that my noble friend will feel able to do that because I cannot accept the view of the Secondary Legislation Scrutiny Committee that guidance can solve this matter, because Regulation 53(b) is not alone as part of Regulation 53 because Regulation 39(b) is in it as well. The guidance cannot resolve a dispute—or at least a difference—on the terms of the statutory regulations. That is not the function of guidance. The guidance is supposed to explain what the regulations mean. However, it is hard

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to explain two different contradictory tests in the same area. That is beyond the scope of any guidance that could be offered.

The amendment in the name of the noble Lord, Lord Pannick, is well taken. Obviously, my noble friend does not need to withdraw these regulations because they deal with quite a lot of other things, but a simple amending regulation would solve this problem. I rather got the impression from my noble friend that the intention was that reasonable alternatives would be taken into account in Regulation 53(b), although it was not expressed. The difficulty is that when the contrary is expressed earlier on in the same regulation the difficulty is extreme. If a Minister has given an undertaking to Parliament, a regret Motion seems the right way to bring that to the attention of the House when the regulations are in question.

I turn to the amendment in the name of the noble Lord, Lord Bach. If I have understood the situation, and I am very capable of being corrected—very susceptible to being corrected is perhaps what I should say—on this matter, the regulation to which the noble Lord, Lord Bach, refers is complicated. It allows a person legal aid under the regulation if he is invited to make a representation on requesting a review. My impression is that any appellant will be entitled to ask for a review. If the appellant asks for a review and he is invited to make representations, he will have legal aid to do that. However, if he is not asked to make representations and the tribunal goes on to make a decision on the review without his representations, the second branch comes in and he is entitled to legal aid. If I have understood the set-up correctly, where there is a challenge to a decision of the First-tier Tribunal, that is done by representations to that tribunal, and in that situation the regulations permit legal aid—as far as I understand them.

Lord Bach: With the greatest of diffidence, I rise to try to explain the situation as I see it. The respect I have for the noble and learned Lord is well known. My understanding is that what the Government propose comes at the end of the First-tier Tribunal hearing. Therefore, leading up to the First-tier Tribunal, whether or not on a point of law, there would be no advice at all to the appellant. During the tribunal hearing there would be no advice to the appellant. Only if the appellant after the event decides to ask for facts and reasons and, after that, puts in a notice of appeal, will there be the slightest chance that he might get legal aid at that stage.

Lord Mackay of Clashfern: With great respect, the noble Lord’s own explanation shows that what happens is that the First-tier Tribunal makes a decision and that is one in a very large number of decisions. If somebody wants to make a representation against that decision, asking for a review, the tribunal can invite representations at that stage; if it does, the applicant, as long as he was the original appellant, can get legal aid. If, on the other hand, the tribunal decides, “We do not want representations, we know that we are right”, it goes ahead with the review and comes back to the same decision; because an application has not been opened with right of representations at that stage, the second branch of the regulation gives legal aid. That is how I understood it but I may be wrong.

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Lord Bach: I am sorry to come back, but it is only if the tribunal finds an error of law. An error of law has to be found by it first; then a review takes place. It is only in those circumstances, which are very rare indeed, that legal aid could be available at post First-tier Tribunal level. The other thing they might do is appeal to the Second-tier Tribunal, when other considerations would arise. However, it does not and cannot happen in every case. As I understand it, an error of law has to be found by the First-tier Tribunal after it has made its decision.

Baroness Doocey: My Lords, I support the amendment proposed by the noble Lord, Lord Bach, because I believe that the Government’s present proposals will be catastrophic for many thousands of people. During the passage of the Bill, provision for legal aid funding and advice for assistance in welfare benefit appeals made to the Upper Tribunal on a point of law was included in the legislation. The Government also conceded that the same point of principle should apply to the consideration of points of law by the First-tier Tribunal. The Lord Chancellor said, in reference to First-tier Tribunals:

“We are quite open to the argument for ensuring that we have legal representation when there is a legal issue that we cannot expect a lay person ordinarily to argue”.—[Official Report, Commons, 17/4/12; col. 226.]

However, the Government have honoured neither the spirit nor the letter of that commitment. The conditions they have laid down for legal aid to be available require so many planets to be in conjunction that, in practice, it is doubtful that the vast majority of claimants could ever meet them.

My prime concern is the needs of disabled people, who will be disproportionately affected by the removal of welfare benefits from the scope of legal aid. By not considering whether a point of law is involved other than when a further appeal is being pursued, the Government are effectively denying legal help to a significant proportion of disabled people whose appeal cases could nonetheless be considered to raise a point of law.

According to the Government’s own impact assessment figures, restricting legal aid to cases where the First-tier Tribunal itself identified that it erred in law would keep legal aid to just 696 welfare benefit cases in lower tribunals. That represents only a tiny proportion of the 135,000 welfare benefit cases each year. Of those 135,000 cases, 78,000—nearly 60%—involve disabled people who currently rely on legal aid for welfare benefit appeals.

What makes the situation worse is that the Government are in the middle of a major overhaul of the welfare benefits system. Millions of claimants will be reassessed and moved on to different benefits. During the transition period, disabled people will increasingly need expert legal advice to challenge inaccurate decisions about their benefits. The lack of legal aid to pursue an appeal in the first place will mean that disabled people are unlikely to reach the stage where they can get legal aid, as the vast majority of claimants are unlikely to recognise a point of law.

Legal aid for welfare benefit claimants costs an average of £150 a case. There can be significant

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consequences if disabled people do not receive the benefits to which they are entitled, causing considerable financial strain and pushing many of them into poverty. Their long-term costs in terms of demands on the health and welfare system are likely to be an awful lot higher than £150 per head.

As I have argued on previous occasions, the removal of legal aid from welfare claimants is fundamentally unjust. The paltry savings will prove to be a false economy. The Government’s latest proposal has made a bad policy worse. I urge the Minister to reconsider.

Baroness Lister of Burtersett: My Lords, I am very happy to follow the noble Baroness, Lady Doocey, who has contributed so much to our discussion of previous legislation on this issue. I shall speak to the amendment to the Schedule 1 order, but I also strongly support what the noble Lord, Lord Pannick, said on the other amendment.