[Relevant document: The Third Report from the Justice Committee, on the Government’s proposed reform of legal aid, HC 681, and the Government’s response thereto, Cm 8111.]
[3rd Allocated Day]
Further consideration of Bill, as amended in the Public Bill Committee
New Clause 4
Status of Director and Lord Chancellor
‘(1) The Director is to carry out the functions of the office on behalf of the Crown.
(2) Service as the Director is service in the civil service of the State.
(3) The Lord Chancellor is to be treated as a corporation sole—
(a) for all purposes relating to the acquisition, holding, management and disposal of property and interests in property under this Part, and
(b) for all other purposes relating to the Lord Chancellor’s functions in connection with legal aid and other functions under this Part.
(4) An instrument in connection with the acquisition, holding, management or disposal by the Lord Chancellor of property or an interest in property under this Part or for a purpose mentioned in subsection (3)(b) may be executed on the Lord Chancellor’s behalf by a person authorised by the Lord Chancellor for that purpose.
(5) Any such instrument purporting to have been executed by the Lord Chancellor or on the Lord Chancellor’s behalf is to be received in evidence and, unless the contrary is proved, to be treated as having been so executed.’.—(Mr Djanogly.)
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following:
Government new clause 9—Northern Ireland: information about financial resources.
New clause 17—Extension of scope of legal aid in complex cases—
‘(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) is satisfied.
(2) This subsection is satisfied where the Director—
(a) has made a complex case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), a complex case determination is a determination—
(a) that the individual has complex, interconnected needs in relation to which the individual requires comprehensive civil legal services, and
(b) not all of those civil legal services would otherwise be available to the individual because they do not all fall within the scope of Schedule 1.’.
New clause 43—Funding for civil legal advice—
‘(1) The Lord Chancellor may make funding available for the promotion of civil legal advice on matters not included in Schedule 1, Part 1 where it appears to the Lord Chancellor that the provision of such services would be consistent with the purpose of the civil legal services provided for under that schedule.
(2) The Lord Chancellor may make arrangements by—
(a) entering into funding arrangements with other Government departments and public bodies to facilitate the provision of services,
(b) making arrangements to support the delivery of civil legal advice through the provision of grant in aid to providers of legal services, including any consortia or partnership arrangements into which providers of legal services may choose to enter, and
(c) any additional arrangements which the Lord Chancellor considers appropriate to ensure the provision of services as set out in subsection (1).
(3) In making any such arrangements the Lord Chancellor shall ensure that value for money is achieved.
(4) Welsh Ministers shall be consulted upon the funding and provision of civil legal advice in Wales.
(5) “Civil legal advice” means the types of services given in section 7(1) and includes advice and assistance which is usually given by any representative in the steps preliminary or incidental to proceedings and as to any appeal, mediation and other forms of dispute resolution, but does not include representation for the purposes of proceedings.’.
Government new schedule 3—‘Northern Ireland: information about financial resources.
Amendment 162, in clause 1, page 2, line 7, at end insert—
‘(c) funding for the promotion of civil legal services, not including representation, on matters not included in Schedule 1, Part 1 where it appears to the Lord Chancellor that the provision of such services would be consistent with the purpose of the civil legal services provided for under that schedule.’.
Amendment 123, in clause 4, page 3, line 25, leave out subsection (4) and insert—
‘(4A) The Director must, except to the extent that section (4B) applies, act under the direction of the Lord Chancellor.
(4B) The Director must act independently when performing any functions or duties under this Part.’.
Amendment 116, page 8, line 29, leave out clause 12.
Amendment 104, in clause 12, page 8, line 31, leave out from ‘station’ to end of line 20 on page 9.
Amendment 125, page 8, line 35, leave out subsections (2) to (7).
Amendment 90, page 9, line 27, leave out subsection (9) and insert—
‘(9) Sections 20 and 26(2) do not apply in relation to this section’.
Amendment 148, page 21, line 7, leave out clause 26.
Government amendments 1, 2 and 25 to 27.
Amendment 69, in schedule 4, page 130, line 36, at end insert—
‘(3A) A transfer scheme shall make pension provision and compensation provision for and in respect of persons who become employed in the civil service of the State under paragraph 1 which is at least as favourable as the pension provision and compensation provision applicable to them immediately before they ceased to be employees of the Legal Services Commission.’.
Government amendment 64.
Amendment 71, page 131, line 9, at end insert—
‘“compensation provision” means the provision of compensation under a compensation scheme;’.
Amendment 70, page 131, line 14, at end insert—
‘“pension provision” means the provision of pension and other benefits under an occupational pension scheme;’.
Government amendments 65, 137, 66 to 68, 138, 19 and 54.
We now move on, or perhaps I should say back to, legal aid. When we discussed legal aid on our first day on Report, we had two very constructive, albeit lengthy, debates in which I took more than three dozen interventions. That was partly the reason, along with the many valuable contributions that were made, why we were unable to cover all the groupings—[Interruption.] I know that that disappointed a number of hon. Members in all parts of the House.
I want to try to avoid delay today, so I shall speak to Government amendments now and respond to the points made in debate later, rather than pre-empting in my opening remarks what hon. Members may have to say about their amendments.
Government new clause 4, which is a technical amendment, has two purposes. First, it seeks to provide clarity about the role of the director of legal aid casework, by ensuring that the exercise of the functions of the office is on behalf of the Crown, and that service as the director is service in the civil service of the state. The second purpose of new clause 4 is to ensure that the Lord Chancellor is treated as a corporation sole for the purposes of part 1 of the Bill.
The new clause is necessary in order to clarify the position in relation to the Lord Chancellor’s ability to hold an interest in land for those purposes, and so applies to charges that transfer from the Legal Services Commission to the Lord Chancellor at the point when the LSC is abolished, and for future charges to be taken over property under clause 24. The statutory charge is the charge that arises under clause 24 on any property recovered or preserved, including costs, by a legally aided person in respect of the amounts spent by the Lord Chancellor in securing their legal aid services and any other amounts payable by them under clauses 22 and 23. The amendment is essential, as the current value of charges held by the LSC is £212 million.
Government new clause 9 and new schedule 3 make provision on information sharing in relation to checking a person’s financial eligibility for legal aid in Northern Ireland. They replicate for Northern Ireland the information gateway for England and Wales created by clause 21 and further provided for in clause 32. Government amendments 26 and 27 are technical amendments that make it clear that regulations made under new schedule 3 will be prescribed not by the Lord Chancellor but by the Northern Ireland Assembly. Government amendment 54 is also a technical amendment that makes it clear that the Bill extends to Northern Ireland for the purposes of new clause 9 and new schedule 3, which create the information gateway, and for the purposes of clauses 38 to 40. I should point out that under paragraph 2(4) of new schedule 3, it will be a criminal offence to use or disclose information contrary to the provisions of paragraph 2.
Government amendments 25 and 64 to 68 relate to the transfer of LSC employees to the civil service when the LSC is abolished. The powers currently set out in the Bill include a power, in schedule 4, for the Lord Chancellor to make transfer schemes to transfer to the Lord Chancellor or the Secretary of State the LSC’s rights, powers, duties and liabilities under or in connection with an LSC occupational pension scheme, of which there are currently two, or compensation scheme. The occupational pension and compensation scheme arrangements for LSC employees are different from those for existing civil servants. When the employees transfer to the civil service and become civil servants, they will join the principal civil service pension scheme.
Amendment 64 confers new powers upon the Lord Chancellor that can be exercised as part of any transfer scheme. Proposed new sub-paragraph (6A), set out in amendment 64, allows for the Lord Chancellor to apply legislation with modifications as far as it is necessary to give effect to any transfer scheme. That is appropriate when transfer schemes are of an administrative nature relating to the specific issues in question. For example, it will allow the Lord Chancellor to provide that an aspect of pensions legislation applies in a particular way to that particular scheme. It will assist, as appropriate, in enabling the continuation of the LSC pension scheme or schemes after the abolition of the LSC so that they can continue for the benefit of their pensioner and preserved members. Those are members who have contributed to the schemes before leaving LSC employment and either draw a pension from the scheme or will be entitled to do so in future.
For compensation scheme arrangements, as well as allowing the modification of legislation, proposed new sub-paragraph (6B), set out in amendment 64, provides that the transfer scheme may amend or otherwise modify the existing LSC compensation scheme. That will allow compensation arrangements for LSC employees transferring to the civil service to be brought into line with those of other civil servants over a transitional period.
Amendment 65 reflects the fact that when LSC employees transfer to the civil service there will no longer be any active members of the two current LSC occupational pension schemes, known as the No. 3 and No. 4 pension schemes. The amendment provides the Lord Chancellor with the power to make a scheme to merge the two residual pension schemes. It is explicit that a scheme exercising this power must not result in members of the pension schemes, or other beneficiaries under the schemes, being deprived of any rights accrued prior to the merger.
The LSC’s No. 3 pension scheme has fewer than 100 pensioner and preserved members, and no current LSC staff members. The No. 4 scheme is for current staff and also has a number of pensioner and preserved members. At present there is much duplication in the administration of the No. 3 and No. 4 schemes, such as producing two sets of accounts and actuarial valuations. Merging the schemes would allow us to cut significantly the administration costs of running two trust-based schemes. The amendment will also give the power to wind up an LSC occupational pension scheme.
Amendment 25 corrects a slip in clause 38(7)(j). The intention was not to make regulations that contain free-standing provision that modifies an Act either directly or indirectly, subject to the affirmative procedure. Amendments 66 to 68 clarify the fact that the regulation-making power provided to the Lord Chancellor under paragraph 10 of schedule 4 can be used in connection not only with transfers affected by schedule 4, but with schemes under schedule 4, meaning schemes dealing with something other than a transfer.
Government amendments 137 and 138 concern schedule 4 to the Bill, which governs transfers of employees and assets following the abolition of the LSC. They are purely technical amendments that simplify existing provisions. Paragraph 10(1) of schedule 4 currently allows the Lord Chancellor to make consequential supplementary, incidental or transitional provision by regulation, and paragraph 10(2)(b) specifies separately that such regulations may include transitory or savings provision. Rather than continue to separate these related provisions, for the purposes of simplification amendment 137 brings them together in a revised paragraph 10(1) and amendment 138 amends paragraph 10(2) to reflect that simplification. That mirrors an identical amendment to clause 115.
Finally, Government amendments 1, 2 and 19 are minor and technical amendments to clause 32 and schedule 5, consequential on the removal in Committee of what was then clause 71.
If the Minister was sincere when he said in his opening remarks that we will make good progress and deal with as many of the groups of amendments as we can today, I applaud him for it, but it is a challenging task. There has been a statement so we have barely four hours left to debate huge chunks of the Bill, which is impractical. It will no doubt be assisted by the fact that, with the exception of the Minister’s Parliamentary Private Secretary, who has just appeared, there is not a single Conservative Back Bencher here. [Interruption.] I apologise to the hon. Member for Hendon (Mr Offord); I thought he was a Liberal Democrat. I withdraw that slur on his character immediately.
There is a serious point. We had a disgraceful situation in the House on Monday when the Minister called in Conservative Back Benchers, one by one, to speak on domestic violence and clinical negligence, particularly as they affect the most severe injuries and brain-damaged children, and to waste time. By wasting time and then voting against amendments that would deal with those issues, the Government prevented us from moving on to a substantive discussion on legal aid. I will not dwell on that point, because I wanted to move on, but I hope that in discussing these amendments, of which there are a broad range, we will be able to do justice to that important subject.
I will speak principally to amendment 123, which stands in my name. I will get my contributions out of the way in one go by speaking to new clause 17, tabled by my hon. Friend the Member for Makerfield (Yvonne Fovargue), amendment 148, tabled by Liberal Democrat Members, who for some reason rejected a similar amendment I tabled, and new clause 43, tabled by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards), which is a very good one. I will say at the outset that we support all those amendments. I will not deal with amendment 116, which stands in my name, because my hon. Friend the Member for Darlington (Mrs Chapman) will make a contribution on that later. For the avoidance of doubt, I will say at the outset that the Opposition will press amendment 116 to a vote, and other hon. Members may wish to press their amendments to a vote.
Amendment 123 deals with a fairly straightforward point, but an important one, which is in no way party political. The independence of the new director has raised considerable alarm and concern across the professions and the voluntary sector, and indeed with anyone who deals regularly with legal aid. We attempted many times in Committee, with a variety of amendments, to try to push at this and get the Government to give a little. We asked for an appeals process, a vetting process before appointment, which would give some independence, and for assurances in relation to the civil service, which will be working in this area. Every amendment, as was the case throughout the Committee’s proceedings, was rejected. I hope—this is the case in other common law jurisdictions which have moved to a similar system—that the Minister is listening to these proposals. This is not an issue that divides the parties on the abolition of the Legal Services Commission, but it is an issue that strongly divides the parties on the adverse influence, be it perceived or real, that the Government will bring to bear on to the director post once it is firmly ensconced within the Department.
There is a trend in this Bill towards Government control and authoritarianism, and we will see it when we debate clause 12, whereby the same director of legal aid will get the power to decide whether legal aid is granted to those in extremis—in the worst circumstances—when they have been arrested. We also see the trend in relation to the constraints on the powers of the judiciary, and, although I doubt that we will get time to debate remand today, I note that the Government wish severely to tie the hands of magistrates and judges in relation to whom they can remand in custody. All the time, these measures restrict either citizens’ rights or the rights of independent parties, whether they be the director or the judiciary, to make decisions.
I heard quite a chilling statement from the Ministry on the radio this morning. I do not know whether other hon. Members heard the compelling interview with Christopher Jefferies on the “Today” programme, which I will not dwell on, because we hope to have time to debate no win, no fee later this afternoon. At the end of the interview no one from the Ministry of Justice—not the Minister, not anyone else—was prepared to come forward. There was simply a statement to this effect: “We believe that deserving cases will still be able to be brought by no win, no fee, but not cases which are too costly or undeserving.”
The presenter made a mistake—I hope the Minister is not making the same one—in relation to talking about legal aid, as presenters often do, but I assure the House that Mr Jefferies was clearly talking about conditional fee agreements and no win, no fee. The answer is—
I know the Minister does not want to hear this, but in relation to the director the point is that the Government wish to decide who has merit and who does not. That is the charge that the Government have to answer, and in this case they will do so only by ensuring the independence of the director.
Let me move on, because we are in the midst of a radical reform of the social welfare system. The Secretary of State for Work and Pensions has embarked on restructuring the way benefits are assessed, calculated and provided, local authorities have had budgets radically reduced, and a housing benefit cap is being introduced. In short, the benefits system is in a period of turmoil, and as a consequence the system of checks and balances on state decision making through the first-tier tribunals is also significantly under pressure, such that more staff are being taken on daily to deal with a growing number of appeals against decisions taken by Jobcentre Plus.
When in October last year the coalition produced its Green Paper on the reform of legal aid in England and Wales, we were shocked to see that there were cuts of £450 million, as defined in the latest impact assessment, and that they overwhelmingly came from civil legal aid. Things such as education, employment, welfare benefits, debt, housing matters and clinical negligence were taken out of scope, either in their entirety, as in the case of employment, welfare benefits and clinical negligence, or substantially, as in the case of debt, housing and education.
Means-testing will also change. The Government have proposed the abolition of capital passporting, by which those receiving certain income-based benefits are automatically eligible for legal aid, and the introduction of a new minimum capital contribution, a personal financial contribution towards legal costs.
The philosophy behind the cuts is explained in the Government’s impact assessment, in which they state:
“Legal aid may be regarded as a redistributive transfer of resources from taxpayers to those who are most needy, in relation to both the nature and merits of their case and also to their financial position… The Government may consider intervening if there are strong enough failures in the way markets operate…or if there are strong enough failures in existing government interventions”.
The amendments under discussion simply seek to address the Government’s failure to abide by those principles as set down in their own impact assessment. We are in a period of great need and of great changes to the system, and many meritorious cases are being referred to tribunal. By definition, the financial position of those requiring help with welfare benefits, employment law, debt and housing is necessarily the most precarious of any in society, and £70 a week is often all that stands between some of my constituents and utter destitution. They are in a desperate place.
Let me give the House one example, in relation to eligibility for disability living allowance. There are so many problems with the private contractor Atos that many seriously ill people are being judged fit for work. I leave aside operational issues, such as the fact that, according to its own website, 20% of Atos’s 141 medical assessment centres do not have wheelchair access, because, according to a newspaper report, one third of those refused DLA by Atos have appealed to the first-tier tribunals, and 39% of decisions have been overturned. Furthermore, the report states:
“The tribunals service…has had to double its capacity in the social security section to deal with the large number of appeals, recruiting an extra 170 paid medical panel members.”
In a letter to The Guardian, leading mental health charities and a senior consultant from the Royal College of Psychiatrists say:
“We’ve found that the prospect of incapacity benefit reassessment is causing huge amounts of distress and tragically there have already been cases where people have taken their own life following problems with changes to their benefits.”
These are not just economic issues; they profoundly affect the most vulnerable individuals.
The Government’s proposals will seriously damage access to justice for the most vulnerable in society, and their own impact assessment shows that there will be a disproportionate impact on women. Similarly, there is the potential for the cuts to impact disproportionately on black and ethnic minority clients and on those with disabilities.
That is something the Minister himself acknowledges. When it was put to him that groups with protected characteristics would be affected, he dismissed it, as only a Conservative Minister can, although the Liberal Democrats are getting there, by saying, “Well, that’s because they are disproportionately represented among the most vulnerable.” That is the logic of the Government’s case—“Because vulnerable people get legal aid, and we are cutting it, what do you expect to happen?” Those principles show an absolute absence of moral guidance.
I was going to deal with that at the end of my remarks, but let me do so now. I am grateful to the right hon. Gentleman for giving me the opportunity to do so, because two days ago the Minister said, “Oh, the Labour party wants to reinstate £245 million of cuts.” On the same day, however, he put out a press release saying that the Labour party wanted to reinstate £64 million of cuts, and I have grown tired of responding to him. He has heard my response from this Dispatch Box, in Westminster Hall and in Committee time and again, and it is simply this: we would not have made at present the cuts to social welfare legal aid.
The Minister quantifies those cuts as £64 million, but why did he not proceed with the final parts of Lord Carter’s review and go through the criminal tendering exercise, which was in place and ready to go when the Government took office last year, and which included savings that might have raised twice that sum? I anticipate the figures changing. The figures on savings have changed from £350 million to £450 million within two impact assessments, but, without being more precise than that, we believe that if the Government looked for efficiencies in the criminal legal aid system, first they would save more money than they are by cutting social welfare legal aid, and secondly there would not be the same social or financial consequences.
The Green Paper talks frequently about the possibility of self-representation as a reason for withdrawing legal aid provision, but data provided in answer to a written parliamentary question indicate that there are considerable differences in success rates between those with and those without representation. Owing to a lack of representation, 51,223 meritorious cases that were successful in 2010 at the first-tier tribunals, many of which involved applicants for DLA, incapacity benefit, jobseeker’s allowance and so forth, would not have been successful if the proposed cuts had been in place. The changes will close or severely reduce the operation of law centres, citizens advice bureaux and hundreds of independent advice centres, and limiting the scope of issues which legal aid-funded advisers can help with means that they will not be able to solve people’s problems fully.
New clause 17, in the name of my hon. Friend the Member for Makerfield, addresses precisely that issue. At the end of Monday’s debate, I gave the example of the Wiltshire law centre in the constituency of the hon. Member for South Swindon (Mr Buckland). That will lose 90% of its funding, and that is not untypical of the cuts being made. In most cases they are above 80%.
The specific issue that is dealt with my hon. Friend’s new clause is the interconnectivity of people’s problems. We are all too familiar, as constituency MPs, with the individual who comes in with two plastic bags full of paper and is unable to convey the scale of their distress, let alone the complexity of their problems, which may include unpaid debts, threats of eviction, underlying mental health problems and the inability to access the welfare benefit system. Sometimes we can help, and I pay tribute, as I am sure all hon. Members do, to the constituency staff who have developed phenomenal skills at unpicking these issues and dealing sympathetically with them. In many cases, however, legal expert help is needed, but that help will now be severely compromised. If one is allowed to deal only with the threat of eviction but not with the underlying issues of accessing benefits and dependency on debt, one is working with one hand tied behind one’s back.
The exceptions to the withdrawal of legal aid in certain cases, such as when an applicant for legal aid is at risk of homelessness, are nonsensical distinctions. People who come for aid early on, while they still have manageable rent arrears, can see their case deteriorate rapidly and drastically. The legal aid that would help exactly those people has been withdrawn, and that is Shelter’s No. 1 priority for what should be restored. Let me add, at this point, that we support the hon. Member for Carmarthen East and Dinefwr in his wish to undo what is a calumny in the Bill—measures allowing the Secretary of State by order further to restrict what is in scope for legal aid, but not to expand it. I do not know whether the hon. Gentleman is going to press his amendment to a vote tonight but I hope that, if he has an opportunity to speak, the Minister will give an indication that that glaring error in the Bill will be corrected.
The cost of dealing with a single case of homelessness has been estimated at £50,000 by Shelter. Early intervention is an extremely efficient and cost-effective way of preventing cases from becoming more complex, difficult to resolve and commensurately expensive. The legal aid Green Paper suggests a shift to telephone advisory services, and this brings us to amendment 148. Although these methods are an efficient and often effective means of delivering certain types of advice, clients presenting with complex or chronic problems gain far better outcomes from face-to-face advice.
Research by the Legal Action Group has highlighted the issues faced by the most vulnerable in utilising telephone advisory services. It found that full-time employees were the most likely to access an advice service through the telephone line or the internet, at 43%, whereas people in the lowest social class, DE, were least likely to access advice through an advice line or the internet, at 26%. This class of people was also the most likely to experience a social welfare law problem. The Minister’s own impact assessment says that the bottom 20%, in terms of income, will represent 80% of those who suffer from the withdrawal of these services. Overall, people of social class DE are twice as likely as people in all other social classes to experience problems with debts or benefits.
Issues facing the most vulnerable people include language, comprehension and somewhat more prosaic economic issues such as the expense of calling an 0845 number from a pay-as-you-go mobile when trying to get advice upon being rejected for jobseeker’s allowance. Citizens Advice has noticed a dramatic rise in the volume of cases and the number of people seeking advice in this recession. Advice has been focused on debt, housing, employment and difficulty accessing the benefit system. For example, between April 2008 and 2009, CABs in England and Wales saw daily inquiries relating to redundancy increase by 125%. Local authority cuts combined with the cuts in the Ministry of Justice have inflicted a double whammy on law centres, CABs and third sector organisations. Many organisations that are staffed by a mixture of volunteers and modestly paid staff will be forced to close or reduce staff and service breadth, depth and reach. Indeed, that is already happening.
We agree that the legal aid budget needs to be contained, as I have already said in response to the intervention of the Chair of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), and that ways of making savings need to be found. When we were in power we did not shy away from taking those decisions and containing the budget. We had begun and were continuing to implement the recommendations of Lord Carter of Coles and we believe that those outstanding recommendations should have been implemented by this Government. Frankly, we are at a loss to understand why the Government have not looked at the scope of criminal legal aid or at how it is delivered in this country, preferring instead to target the poorest and most vulnerable. I accept that those changes would not have been popular with all the legal sector but they would have delivered substantial savings, which would have been greater than the total cuts to social welfare legal aid we have discussed this week. Let me pay tribute to my colleague the noble Lord Bach who, as Minister with responsibility for legal aid, took exactly that line. He was prepared to be very tough on his own profession but he always protected social welfare legal aid.
We oppose the cuts because they affect the most vulnerable in society and run the risk of decimating the social welfare and legal advice community. Even at this stage, I urge the Government to rethink their plans. If they will not, I shall ask again, and I am pleased to see that hon. Members from all parties, save the Conservative party, have tabled amendments on this matter for debate today. I hope—I say this in the spirit of wanting to protect those of our constituents who are most vulnerable and most reliant and who need access to justice more than ever today—that those amendments will be pressed to a vote by hon. Members, particularly those on the Liberal Democrat Benches, and that they will see fit to support our amendments when we push them forward.
In the interests of brevity I shall speak only to amendment 116 to which I have added my name. It has been more than 30 years since the National Consumer Council referred to access to advice as the fourth right of citizenship. It was ahead of its time in predicting the coming of an information age in which people’s ability to live full lives as responsible citizens would depend on access to organised, specialist information in order to navigate complex consumer choices, labour markets and state bureaucracy and law. In no area could that be more important than in relation to legal advice in a police station, where the presence of a lawyer acting for a defendant is crucial, although I might not have thought that between 1990 and 1998 when I was a serving police officer in Edinburgh. Solicitors are there to ensure that suspects’ rights are respected, that they are not physically abused, that their confessions are not forged and that they are not detained for longer than is legally allowed. The presence of a lawyer not only protects defendants from police abuse but protects the police from false allegations by defendants about what happened during an interrogation, for example.
Clause 12 provides the Secretary of State with the flexibility to subject legal aid in police stations to a system of means-testing. The Ministry of Justice has made it clear that such proposals would be modelled on the system currently operating in Scotland, where people who earn more than a certain amount—in Scotland, a weekly disposable income of £105—have to pay a contribution towards the cost of their legal aid. The current system of police station advice in Scotland is only a year old, but the Law Society of Scotland has already stated that it is complex process to operate and to explain to clients, many of whom are in a vulnerable situation.
The experience north of the border also shows that the provision of adequate verification undoubtedly lengthens the suspect’s time in a police station and that the solicitor often has no evidential proof that the client is eligible or of what their contribution should be. Solicitors also find that the prospects of claiming the contribution from the client are limited when the detention ends without criminal charges. Consequently, in Scotland in the past year, uptake of advice in police stations has fallen to around 25% of cases—roughly half that in England and Wales.
The Minister will also know that the Scottish situation has been somewhat complicated recently by the judgment in the Cadder case. Previously, when I was a serving officer, suspects could be detained without charge for up to six hours and questioned without the presence of a solicitor. Following that case in the Supreme Court last year, the Lord Advocate issued guidelines, and emergency legislation has since been enacted, to provide suspects who are detained by the police with the right to
“a private consultation with a solicitor”.
That can be either before questioning or at any stage during questioning. Moreover, experience has shown that it is often more expensive to administer means-testing than to operate it. Cutting out legal aid in police stations will lead to false economy, not least because the courts will be clogged up with unmeritorious or unprepared cases, or proceedings without a solicitor present will be open to legal challenge.
Early advice in a police station may save many social and economic costs, most of which must be picked up by other public services. Moreover, who will ask what someone’s earnings are, or how much their mortgage is? Those questions will have to be asked in extremely stressful situations. Will the Minister explain how the proposals will work without the whole process becoming extremely unwieldy?
Furthermore, will the Minister explain why such a provision is in the Bill when I and colleagues received assurances that there was no intention of the clause ever coming into effect? If the Government have no intention of using the power, why leave it in the Bill? The Minister has effectively asked us to sign a blank cheque, but assured us that he will never have to cash it. Much as I trust the Minister, that is no way to propose or to implement new legislation, because it leaves pointless regulation in statute, which because of assurances from Ministers might never have been properly scrutinised. That is a bad precedent, and a dangerous one, which should not allowed to continue.
I rise to speak to new clause 17, tabled in my name. It is well known that many problems in social welfare law are interconnected and that clients invariably approach agencies with clusters of problems, which is why the social welfare law cluster of housing, benefit, debt and employment was introduced in the first place. As my hon. Friend the Member for Hammersmith (Mr Slaughter) said, all MPs have seen constituents who arrive with carrier bags of unopened mail from various agencies. It is impossible to deal with one issue—for example, electricity disconnection—without dealing with problems such as tax credit underpayment and illegal deduction of wages. It is the natural state of affairs that one problem leads to another, and the merit of not-for-profit agencies dealing with that cluster is the availability of specialisms in a one-stop shop, and the ability to drill down to the root cause of the issue, which may be wrongful refusal of benefits or unfair dismissal leading to debt issues and potential homelessness.
My new clause would allow agencies to deal with all the issues. They would not have to take a piecemeal approach, but could make difficult decisions on which issues are legally aidable and which are not, so that the individual would not be left to struggle with the complex non-legally aidable issues alone.
Make no mistake; the issues that the Government wish to remove from scope are complex. The welfare benefits that the Government wish to remove from scope completely have 20 volumes of guidance, thousands of pages of case law, and thousands of statutory instruments, clauses and schedules. The Child Poverty Action Group’s handbook on welfare benefits and tax credits alone has 1,600 pages. In 2010, the Department for Work and Pensions issued 8,690 pages of advice to decision makers. That advice is not specialist. Can people rely on help from Jobcentre Plus or the Benefits Agency, the agencies that turned down their original claim? I do not think so.
The Bill is being enacted at precisely the same time as the introduction of universal credit, which will affect 19 million individual claimants and 8 million households. I remember the change from supplementary benefit to income support. The number of people who needed advice rocketed, and many important cases were appealed by advice agencies, which had far-reaching consequences for many people, not just individual claimants. That is being denied in the Bill.
In 2010, under the current system, there were 160,000 appeals, more than half of which were decided in favour of the claimant. To remove support from individuals who have been wrongly and unlawfully denied their benefit—in more than half of cases that was indeed the decision—and to deal with the rent arrears caused by that denial of benefit at the point of eviction, is perverse in the extreme.
Early intervention and an holistic approach save money. Even the Minister admitted that early advice may reduce costs further down the road, but he chose to save £1 now at the cost, according to research from the National Association of Citizens Advice Bureaux, of £8.80 for every benefit case, £7.13 for every employment case, £2.98 for every debt case and £2.34 for every housing case. This is blinkered short-termism at its most extreme.
I would like to give a couple of examples of linked problems where dealing with just the issue that remains in scope will be counter-productive. A client had multiple priority and non-priority debts, including rent arrears, and was facing the threat of possession proceedings. She had prioritised credit card repayments due to pressure applied by her bank and debt collection agencies, and had fallen behind with her rent. She suffered mental health problems, and her teenage daughter was becoming ill because of the stress facing her mother. She was working and studying to improve her situation, but had lost benefits and was appealing that, with help. Under the Government’s proposals, there would be no help with that appeal. The only help available would be to deal with the immediate repossession issue. The credit card and other debts would not be dealt with and I surmise that it is extremely likely that that client would return in exactly the same position, or worse, at a later date.
A constituent had been dismissed from employment and was being assisted with an unfair dismissal claim. Stress was making them ill and unable to work, and there was also an appeal against benefit sanctions for leaving their job. Owing to the lack of income, the bills were mounting up and mortgage arrears were accruing. Under the new proposals the client would have to wait until they were in imminent danger of losing their home, and that would be the only issue within the scope of the scheme. If ever there were examples of false economy, surely those are such.
The most vulnerable will bear the brunt of the cuts. The Legal Services Commission’s figures show that 62% of those affected by removal of welfare benefits from scope will be those with disabilities. Indeed, there is concern about whether agencies will be able to provide advice even to those fortunate individuals who still qualify for legal aid. The cuts to social welfare law disproportionately affect not-for-profit advice agencies with 77% of the funding withdrawn going from those agencies. Some 54% of citizens advice bureaux and more than 70% of law centres believe that they will not exist after 2013 if this Bill becomes law. There is no clear plan or strategy for the sector, just death by a thousand cuts.
Wigan metropolitan borough council currently has 3,080 cases funded by legal aid, but 2,342 will go out of scope if the Bill is enacted. At a rough estimate of 300 cases per caseworker, resources will drop from 10 specialists to help my constituents to 2. Their ability to deal with even the severely curtailed legal aid cases will be massively impacted, let alone their ability to deal with linked issues. Will the Minister say what cross-Departmental plans are in place to deal with the destabilisation of the not-for-profit advice sector, and how will linked issues, which are often the root cause of an immediate threat of eviction, be dealt with in future?
I want to address briefly the issue of whether those who qualify will be able to navigate the system and reach the help they need and not fall at the first barrier—the telephone gateway. In the all-too-inadequate time allowed in Committee, when the agencies presented their evidence, they all stated that the telephone gateway will be yet another barrier and will deny some clients access to the services they need. Indeed, Steve Hynes, director of the Legal Action Group, commented on research by that group—my hon. Friend the Member for Hammersmith referred to it. He said:
“if you want a legal system that people do not use, deliver it through telephone advice because the people who pass the means test tend to be the ones who do not have telephones”
In my experience, individuals with a number of problems often cannot focus on the most serious issue for many reasons. It often takes a considerable amount of time and experience to untangle the knotted ball of problems into single strands, and then to decide which is the most immediate and serious. For example, I saw a client who was most upset because, for the first time, she could not pay Provident. She was really upset that when it came to collecting the debt, her neighbour would know that she had problems and could not pay. Eventually, she let me examine all the other documents that she had, and it was apparent that she had been paying the company at the expense of her rent and was in danger of eviction. To tease that information out over the telephone without sight of the documents that she eventually handed over would be almost impossible, and I believe that that client would have been told her issue was not legally aidable and sent away still prioritising the wrong debt and facing eviction.
I urge the Government at least to pilot the telephone gateway and to listen to the concerns of the advice providers, who are, after all, the experts in the field. In fact, in the rather protracted debate on Monday, which did not allow us to reach the removal from scope of the majority of social welfare law, the Government were at pains to assure us that they were listening and had listened to all the respondents to the consultation, which had one of the largest numbers of respondents that we have ever seen—over 3,000. In that case, why were the 93% of agencies and individuals who responded, disagreeing with the Government’s proposals to remove these areas from scope, not heeded? They certainly do not feel their views were valued or that any coherent and valid response was received, apart from on short-term money saving, which, as has been pointed out, will lead to many increased costs later on.
The new clause would at least mitigate the untenable situation of agencies being funded to deal with only one issue when they know that the root cause of the problem still remains, and it would put them back, in some small way, to being able to deal with the individual as an individual with a group of issues and problems, thus preventing the inevitable recurrence. I urge hon. Members to support the new clause.
I rise to speak principally about new clause 17, which was tabled by the hon. Member for Makerfield (Yvonne Fovargue).
Before I do so, I should like to comment on amendment 116. My hon. Friend the Member for Edinburgh West (Mike Crockart) made a cogent case for deleting clause 12. The Minister rightly said in Committee that
“the practicalities are the greatest stumbling block, and the costs could be significant.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 8 September 2011; c. 437.]
My hon. Friend underlined that that had been the experience in Scotland. It is therefore clear what the Government’s response should be. For the sake of clarity and succinctness, the Bill could appropriately lose clause 12.
I think I am right in saying that the right hon. Gentleman is speaking to an amendment that would effectively get rid of the idea of means-testing in police stations. I agree that this is an issue of great concern to Members in all parts of the House. I am surprised, however, that when he sat on the Bill Committee he did absolutely nothing about it when he could have supported my amendment or that of the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd).
I am not going to give way. The point has been raised, it is on the record. I am sure that the Minister will have heard it. My right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) will speak about this in relation to amendment 148, and I am sure that he will echo the concerns raised by the hon. Member for Makerfield about the telephone gateway.
The right hon. Gentleman will know that the Law Society, the Bar Council, the Family Law Bar Association and the Lord Chief Justice have all indicated that the changes made by the Government in this Bill will curtail access to the legal system but that the projected savings will not be obtained. Given that the right hon. Gentleman sat on the Bill Committee, perhaps he can tell me why all those organisations are wrong but the Government and the Bill he supports are correct.
In a situation where funding is going to be withdrawn from organisations, it is not surprising that their response is that they do not favour it. The Government need to monitor very carefully some of the concerns that have been raised about the impact of withdrawing legal aid, and we have already had assurances that that will be the case.
The hon. Lady makes a point that is worth considering. Clearly, certain organisations are financial beneficiaries of some of the funding, but I do not want to throw out all the concerns that have been raised because, equally, there are legitimate concerns that the Government need to monitor very carefully.
I turn to new clause 17. I had hoped that during the debate on Monday we would reach the group of amendments on social welfare in which my amendment 149 on complex welfare benefits was listed. Also in the group was amendment 131, which sought to ensure that advice on housing repossessions was available sooner. I regret that we did not reach that group, as, I am sure, does my hon. Friend the Member for Eastbourne (Stephen Lloyd), who is chairman of the all-party group on Citizens Advice. However, new clause 17 touches on many aspects of what was included in amendment 149. I welcome the fact that the hon. Member for Makerfield has put the matter up for debate today because it provides an opportunity to discuss some of the points that would have been raised on amendment 149. Her definition in trying to ensure that legal aid is extended to complex cases is
“that the individual has complex, interconnected needs”
“not all of those…legal services would otherwise be available to the individual”.
It is reasonable to speculate that many, or most, individuals with complex and interconnected needs will also have welfare benefit issues that will often also be complex. Under the Government’s proposals, welfare benefit cases, complex or otherwise, are excluded from the scope of legal aid.
I acknowledge that the scope of the hon. Lady’s new clause is slightly different from what was proposed in amendment 149. However, if it had been restricted to individuals with complex and interconnected needs who require legal help with complex welfare benefit issues, I suspect that we would have been discussing exactly the same area of legal aid, because virtually every individual who has a benefit advice problem involving issues of legal complexity, significant evidential hurdles or daunting adjudication processes will have complex and interconnected needs. According to Citizens Advice, that more targeted approach would help to achieve a compromise position whereby more complex cases can be covered by the legal help system. When we asked Citizens Advice what it would identify as a single priority as regards what the Government should change, that is what it proposed.
Citizens Advice has calculated the cost impact of its proposal. It says that the current welfare benefits advice spend is £25 million on just under 140,000 cases, and that restricting it to complex welfare benefit cases covering only reviews and appeals, which applies to two thirds of the current welfare benefit cases, would cost £16.5 million and help around 100,000 people. The cost could fall further if, as the Government and all hon. Members intend in practice, decision making first time round is improved and becomes much more effective. The CAB calculation is that if we were to improve first-time decision making by 30%, the costs of that provision could fall to £12 million.
Is it not absurd that the Government should be scrabbling around for money to meet the costs of bad decision making and bad communication between Departments and those who are affected by their decisions? Ought not the Government’s priority be to ensure that those Departments change those processes, which they are more likely to do if they have an incentive, which is provided by the fact that their budget will meet some of the costs if they do not do so?
The right hon. Gentleman is absolutely right. The Liberty briefing paper states that the
“Community Links advice service records that…73% of the benefits related cases handled by their staff arose as a result of errors on the part of the Department of Work and Pensions.”
The Opposition agree with him, but we are where we are, and particularly at this time of change, we need certainty that those people will be properly represented. I think he said that he would not support new clause 17, but will he support amendment 116 and, later, the new clause in his name or the new clause relating to the Dowlers, which is in the name of my hon. Friend the Member for Rhondda (Chris Bryant)? He has given assurances outside the House and said that he supports those positions, but he now seems to be resiling from them. Will he and his hon. Friends support those measures? Will he answer that question now?
As I stated earlier, the simple change in new clause 12 affects a very large number of people—up to 100,000. As I mentioned in the debate yesterday, it is incumbent on Members who propose alternatives that mean the Government will spend more when they are trying to address a very large deficit to identify where funding for such proposals would come from. I hope we have an opportunity to debate amendment 144 this afternoon, because that would more than adequately cover the expenditure that the amendments would necessitate.
The right hon. Gentleman talks about the need for Government Departments to look at how they interconnect. From my constituency case load experience, a significant number of those 100,000 people are likely to develop mental health problems as a result of the predicament in which they find themselves. Surely money invested in provision for them would save the Department of Health quite considerable moneys. Is he confident that coalition Front Benchers have been talking to each other to do that sort of cost-benefit analysis?
The hon. Lady’s intervention is a fair one. I have raised the knock-on impact on other Departments directly with the Minister. I have received assurances that, for instance, the Department of Health has analysed the impact and does not see significant knock-on costs. That is the assurance that I have been given.
I conclude by urging the Minister to make a clear statement that the Government believe that the issue of complex welfare benefits is still up for negotiation, and that they will make progress on it in the Lords. If he cannot give such an assurance, and if the hon. Member for Makerfield presses new clause 17 to a Division, it is with regret that I would feel obliged to support it. I await the Minister’s response with interest.
I have never been a tribal politician, and I understand the dynamics of the House, but I am very disappointed that the hon. Member for Edinburgh West (Mike Crockart) and his colleague, the right hon. Member for Carshalton and Wallington (Tom Brake), had nothing to say on this issue in Committee. Worse still, an amendment that would have dealt with clause 12 was pressed to a Division, but they declined to vote for it. Indeed, they voted against it. The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) came to the debate in the House on Monday and said that he was interested in dealing with the immigration law aspect in the Bill, but again, his colleagues said nothing about that in those lengthy Committee proceedings. The right hon. Gentleman said that he would pursue the matter. The modus operandi of the Liberal Democrat party is to sit on a Committee, do nothing, and then come back on Report and pretend they have done a hell of a lot. I am rather disappointed in the right hon. Member for Carshalton and Wallington in that regard. I have never been a tribal politician, but when I see this kind of behaviour, it makes me a bit sick.
I have three headlines from The Guardian, which are like a tableau. From September, we have “Liberal Democrats urged to defy plans to cut legal aid”; from October, we have “Lib Dem MPs rebel against proposals to cut legal aid funding”; and from yesterday, we have “Lib Dems have their cake and eat it”. That last article features a lovely picture of the right hon. Member for Carshalton and Wallington (Tom Brake). They rebel, and at the last moment, they do not.
I have made my point, so I will move on to the substance of this important debate, because others wish to speak.
I support the hon. Member for Makerfield (Yvonne Fovargue) on new clause 17, the amendments tabled by the Official Opposition, and new clause 43 and amendment 162, which were tabled by my hon. Friend the Member for Carmarthen East and Dinefwr (Jonathan Edwards).
However, I am against clause 12, which threatens through secondary legislation to limit advice and assistance at police stations. I shall not speak for long, but it is important to deal with one or two aspects of the measure. Clause 12 could thwart the fundamental right to legal advice when held in police custody, which frankly is a time when individuals are at their most vulnerable. That the Government did not consult on that measure has been widely criticised by many, and not simply those who allegedly want to raise money. The Lord Chief Justice is not dependent on legal aid, as far as I am aware.
I spoke in Committee of the importance of people having legal advice and assistance when they are detained in police stations. No consultation was held, but the measure was pushed through. Clause 12(3) is particularly worrying, because it would allow the Lord Chancellor to introduce regulations requiring the director to apply means-testing provisions if he or she considers them appropriate. It is well known that advice and assistance on arrest are not currently means-tested. The introduction of that in a police station is utterly inappropriate. What is more, as the Bar Council has pointed out, experience over the years shows that errors and abuses at police stations are responsible for very many miscarriages of justice, which cost not only lives, but finances.
Amendments 90, 104 and 125, which are in my name, would ensure that as a matter of course advice and assistance would continue to be made available for individuals held in police custody—they would not be subject to any means or merits testing. Amendment 104 would remove the word “station”, and amendment 125 would remove the need for a determination by a director. Furthermore, amendment 90 would remove subsection (9) and state in its place that:
“Sections 20 and 26(2) do not apply”.
The first point clarifies that means-testing cannot be introduced at police custody. Negating the application of clause 26(2) would ensure that the Lord Chancellor was unable to replace advice in person at police stations with
“services to be provided by telephone or by other electronic means.”
Clause 12 has a grave potential to destabilise access to justice for some of the most vulnerable in our society. As Liberty has pointed out:
“Justice requires that, as a bare minimum, all individuals taken into police custody have access to legal advice and representation when facing criminal allegations with the potential loss of liberty, disruption and damage to reputation they entail.”
As anyone who has practised criminal law will know, the first couple of hours in custody can be crucial in determining whether a case goes further, even on to an interview. Most people, when facing a police interview, particularly for the first time, are unable to think clearly and may not be cognisant of their best interests. As I said in Committee, at the very least the initial interview at the police station should proceed on the basis that the solicitor will be paid for the first couple of hours. It seems that the Government were unwilling to listen to that concession.
The right hon. Gentleman makes an important point which I support completely. However, there is another aspect to this matter. The solicitors who are available to give such legal advice usually have great expertise in the criminal law. If legal aid is removed and there is means-testing, the wrong type of professionals—those who do not have the expertise—will be available to give advice.
The right hon. Gentleman is absolutely right. I note from my own experience that such people are highly qualified for the work that they do. If two hours are spent with a solicitor who is well-versed in procedure, a lot of work can be done and people’s reputations can be saved. It is vital that we do everything we can to retain that provision. I am not doing any special pleading for lawyers. I appreciate that there should be paring back in some areas of legal aid, but this is a fundamental matter of access to justice and it is important that the Government listen.
It is worth noting Liberty’s point that attempting to introduce means-testing when an individual is in police custody is likely to be “unworkable” because it
“requires documentary verification of financial resources”,
which an individual in custody is clearly unlikely to have on his or her person. That would again result in inevitable delay and the wasting of resources.
The right hon. Gentleman is making an excellent point. Is he aware of any representations on this matter from police sources? They must be worried that suspects will be held in police stations for an excessive time while documentation is sought and possibly not found. They will then be forced either to release the suspect or to take them to court without access to a lawyer, which a lot of police forces would not be willing to do.
The hon. Gentleman is absolutely correct. I will say a few words in a minute about the Police and Criminal Evidence Act 1984, which is important in this regard. Clause 12 will run a coach and horses through it.
I do not believe that clause 12 is well thought through. What is worse, it undermines one of the core principles of our justice system: fair and equal access to justice for all citizens. I therefore cannot support it.
The Law Society’s head of legal aid, Richard Miller, has said:
“This is not only an assault on the rights of citizens, it is also a logistical nightmare to operate in practice.”
He has said that substantial hidden costs undoubtedly will follow and that it will be “simply unworkable”. Max Hill, the chair of the Criminal Bar Association, said that the Government were meddling with a “fundamental right”:
“To contemplate some sort of qualitative testing to decide when and if a member of the public should receive legal representation and advice…is deeply alarming.”
As I said, I will not speak at length, but I will say a word about miscarriages of justice. We know of a spate of miscarriages of justice that occurred in the ’70s and ’80s, and there was an official inquiry into several of them. The Birmingham Six were jailed for life in 1975 for pub bombings. The convictions were overturned in 1991 after evidence emerged of the police’s fabrication of confessions and suppression of evidence. The Guildford Four were convicted of a bombing in the same year. The conviction was secured on confessions that were obtained through coercion, violence and threats by the police. They were acquitted in 1989.
The right hon. Gentleman is making a strong point. However, the Guildford Four were actually the first people to be arrested and convicted under the Prevention of Terrorism (Temporary Provisions) Act 1974, which meant that they were specifically denied access to anyone at the time of arrest. That was not the case with the Birmingham Six, who instead were abused in the police station.
I stand corrected. I am pleased that the hon. Gentleman has corrected the record for me. However, my point still stands.
Stefan Kiszko wrongly served 16 years for rape and murder after being arrested in 1975. He confessed to the police after three days of questioning without a lawyer. That and several similar cases gave rise to the Police and Criminal Evidence Act, which gave a detained person the protection of proper legal advice. It also, crucially, gave protection to the police, which is the point made by the hon. Member for Islington North (Jeremy Corbyn). Clause 12 will undoubtedly drive a coach and horses through the 1984 Act and I believe that it should be resisted at all costs.
I rise to speak on new clause 17. I pay tribute to the hon. Member for Makerfield (Yvonne Fovargue), who was the chair of the all-party parliamentary group on Citizens Advice before I took over. I endorse what my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) said. Originally we wanted to speak to amendment 149 under the social welfare grouping on Monday night and it was disappointing that that group was not reached. Consequently, although I do not agree entirely with new clause 17, I am minded to support it, particularly given how it relates to Citizens Advice.
Some of my points have been made by my right hon. Friend the Member for Carshalton and Wallington. I reiterate that at a time when we are making radical changes to the welfare system by introducing universal credit, replacing disability living allowance and making substantial changes to employment and support allowance, it is unwise to withdraw the support for people who are challenging bad decisions. As we all know, in the process of reform, mistakes can be made. As I am sure the House is aware, the introduction of ESA has generated a significant volume of appeals and 39% of ESA appeals are still being found in favour of the appellant. The position of the Department for Work and Pensions is that welfare advice should not be funded on issues of benefit entitlement because advice is available through DWP agencies such as Jobcentre Plus. However, I strongly believe that the solution is not to take welfare advice out of the scope of legal aid altogether, but to make appropriate distinctions over whether problems involve issues of complexity.
I support a great deal of what the hon. Gentleman is saying. Does he agree that it is inappropriate for people to rely only on advice from Jobcentre Plus when they may need advice because they wish to challenge the decisions of that agency?
I agree with the hon. Lady. It is good to see her taking part in the debate, because she sat on the Work and Pensions Committee with me before she was promoted to her very high place. She makes a strong point that emphasises that the solution is not to take welfare advice out of the scope of legal aid altogether, but to make appropriate distinctions, as it states in new clause 17, over whether problems involve issues of complexity. The issues that end up before tribunals are often extremely complex and involve the interpretation of statutes and case law precedent. It is wholly unrealistic to expect somebody without specialist knowledge to undertake that. Legal advice is essential, in my view, to the fairness of the appeals process.
By definition, the people who would be denied help are vulnerable and less able to help themselves. Ill and disabled people make up 58% of those who will be affected by removing legal aid from welfare advice. Reviews and appeals should be treated separately from more routine matters and it should be noted that work on appeals and reviews accounts for only 66% of current welfare benefit casework undertaken under Legal Services Commission contracts. Consequently, restricting legal aid to reviews and appeals would reduce the welfare legal aid bill by 40% from £16.5 million, as my right hon. Friend the Member for Carshalton and Wallington said. That is a significant cut, as I am sure the Minister is aware, and it would help the 100,000 people involved—and they would be the most vulnerable 100,000.
I support new clause 17 and unless I hear a clear message from the Minister on the points that we—and especially my right hon. Friend—have made, I shall support it in the Lobby.
I declare an interest as—or confess that I am—a lawyer. I was a solicitor for more than 20 years, and I worked for the Treasury Solicitor’s Department and the Ministry of Justice, as well as in private practice and the public sector, on behalf of local authorities.
I am concerned by the removal of welfare benefit, education and debt recovery cases from the scope of legal aid. Those are the kind of bread and butter issues that used to be dealt with under the green form scheme. I wish to reassure hon. Members who are concerned that lawyers are in it for the money that we often used to give advice for nothing to people who came through our doors: we went over the time limit but never claimed for it. So we can knock on the head the idea that lawyers are only in it for the money.
When I acted for local authorities in possession cases, we found that tenants who were going to be evicted were better informed when they had advice from the duty solicitor. I sat as a deputy district judge and it was much better when the people who appeared before me were not litigants in person. If they have a lawyer to give them proper advice, less court time is taken up.
One of the problems with the reduction in legal aid is that a whole generation of lawyers with expertise in welfare, immigration and education law will disappear. The only type of lawyers churned out of law colleges will be those who can do corporate litigation.
I absolutely agree with my right hon. Friend, who has taught me more than he will ever realise. He has in common with the Lord Chancellor the fact that they both attended the very eminent lawyers’ college, Gonville and Caius.
I saw cases from both sides—tenants and local authorities—and it was very important for people to be able to access legal advice. More and more parents are now resorting to the use of lawyers to get their children into the school of their choice. If they can afford it, that is fine, but what if they just want basic advice on how to attend an appeal? That is very important for parents who cannot afford lawyers.
By happy coincidence, I acted in Hammersmith and Fulham v. Monk, a case that went straight to the House of Lords—at the time, my hon. Friend the Member for Hammersmith (Mr Slaughter) was a very good deputy leader of the council—because it involved an important question of principle. Could one of two joint tenants sever the tenancy by serving a notice to quit on the landlord? The result of that case was that we could rehouse women who were victims of domestic violence and retain the property involved. Mr Monk was legally aided, and it was important that that principle was decided by the House of Lords.
Another local authority wanted to settle the same question, and legal aid was available in that case too, but I took the decision that it would be sufficient for only one case to go forward, so lawyers do put brakes on extensive costs. I have had the privilege of litigating on behalf of the Government and, as the House will know, we have one of the finest judiciaries in the world. Judges can keep account of costs and they do not allow lawyers to go on and on and run up costs, but they also have to take their time when a litigant in person is appearing before them. There are also other ways to reduce costs, such as the Littlewoods clause. If someone has received legal aid and then come into money—by winning the pools, for example—the Government can claw back the money. Judges can also make a wasted costs order against lawyers who waste time in court.
I am a member of the Health Committee and we investigated clinical negligence, which now costs the state £800 million, whereas if it had stayed within the scope of legal aid it would cost only £17 million. That is a huge difference, and I wish the Government would think again. Even the NHS Litigation Authority said:
“The reduction in availability of public funding for clinical negligence claims and the corresponding rise in Conditional Fee Arrangements, backed by After the Event insurance, has also contributed very significantly to the cost of litigation”.
Who can get legal aid? That is a very important question and I have three examples of why that is so. The LSC gave legal aid to the Nepalese Gurkhas, and we know how that turned out. It was a very important principle concerning people who had fought and died for their country. It gave legal aid to Sean Hodgson, who was wrongly convicted and was freed after 27 years. It also gave legal aid to Colin Ross, a cancer patient who won a battle in the High Court for life-saving drug treatment that could give him an extra three years of life. Mr Ross received legal aid to challenge a decision by West Sussex PCT to refuse funding for the drug he wanted.
In the recent case of W v. M, S and an NHS primary care trust, Mr Justice Baker said:
“Given the fundamental issues involved in cases involving the withdrawal of ANH”—
artificial nutrition and hydration—
“it is alarming to the court that public funding has not been available to members of the family to assist them in prosecuting their application. In the event, the applicant’s team has acted pro bono throughout the hearing and during much of the very extensive preparation.”
That goes to the heart of what legal aid is all about. It is important to test legal principles. That is what judges are for, and it forms part of the checks and balances on the Executive. The late Lord Bingham called the rule of law
“an ideal worth striving for”.
The same sentiment applies to access to justice, so that we remain a United Kingdom. I urge the Government to think again about these divisive proposals.
We have heard some naughty stuff from the Opposition. I remember serving on a Public Bill Committee shortly after I arrived in the House. Now, I am a lad from Bradford, and we have this strange practice in Bradford: when we agree with something we vote for it, and when we disagree with something we vote against it. I went into Committee, and of course people soon told me, “That’s not the way you do it. If something comes from the other side, even if it’s a good amendment, you simply don’t accept it.” [Hon. Members: “Name them!”] I understand that that was common practice in the previous Parliament. [Hon. Members: “Name them!”] That is a tad nosey.
I am not a lawyer, but many, many people have come through my constituency door who desperately need, but cannot afford, a lawyer. I have serious concerns about these proposals, and I am very much in favour of new clause 17. Another thing that I quickly learnt when I came here was that there were unintended consequences. I had never heard of those before, to be honest, but I soon realised that when something goes wrong a bit later in the day—six months or a year later, perhaps—we say, “Well, it was unintended consequences.” That is basically a euphemism for, “We got it wrong.” In Bradford, we say, “We made a bad decision.”
Often we make bad decisions—that is the way of it—but, when we analyse why we are making bad decisions, often we find that it is because we failed to gather information or consult. Well, we have consulted on this, and we have a body of evidence. I thank the Liberal Democrat Lawyers Association for the information that it provided for us—no doubt other groups have provided information for other Members—and I am also grateful for the information from Citizens Advice. In particular, there are the case studies. Let us consider the consequences of the proposals. We can all look into the future and guess, but there are examples—case studies—of people receiving legal aid who simply will not receive it if these proposals go through. I am speaking for five or 10 minutes and could give hon. Members a couple of examples, but if I spoke for 20 minutes I could give three or four more; if I spoke for an hour I could give a dozen, and if I stayed here for a week I could give hundreds of case studies, one after another, of people who would be badly affected by the proposals.
We have received valuable information from the Law Society about the fictitious nature of the savings. They just will not be generated. In fact the proposals will probably add to costs in many ways. I am seriously concerned that, given the body of evidence available, including the huge number of case studies and examples from our constituencies, the consequences will not be unintended. These will be intended consequences; what will happen will be what the Government intended to happen. Various suggestions have been made of alternative measures that people could take—for example, they could represent themselves, or seek support from advice services—but the overall intention is that people will just go away. They will not be supported—but they will not go away, will they? Their problems will remain, and will probably get more serious, and indeed more costly.
Does the hon. Gentleman agree that it is worth reminding the House of the costs of taking a case under the legal aid scheme? A welfare benefits case costs £164. That is what the agency gets for dealing with it. It is £200 for a debt case and £174 for a housing case—and I believe that those costs have been cut by 10% from 1 August. These are not high-cost cases; this is extremely good value for money.
The hon. Gentleman is making an important point. Let us consider the parallel of immigration law. If individuals do not have access to a lawyer to deal with an immigration case they go to an immigration adviser, who might end up, over a period, getting a great deal of money out of them, often almost by coercion, in return for very bad advice that often results in disaster. The legal aid process means that people get qualified lawyers giving sensible intelligent advice, which will save us all a great deal more money in the future.
Absolutely. I have come across some pretty scary cases involving several hundred pounds of single-sheet letters from lawyers, but I have had no joy in trying to bring them to the attention of the Law Society. The hon. Gentleman is right. The present system represents good value for money to the public purse.
I thank the hon. Gentleman for giving way; he is being very generous. Community Links, an amazing voluntary organisation in my constituency, provides welfare and benefit advice and is funded, in part, by legal aid. A 10% cut in its fees will jeopardise any remaining advice that it can provide, because it already subsidises the legal aid fees coming in. I presume that he has had the same experience in Bradford.
Occasionally I try to abide by the coalition agreement, but this is not in there. There is in the coalition agreement something about the deficit reduction, and I am up for that—we do desperately need to reduce it—but I am not convinced that this will contribute to that. It is a very dangerous thing if we are going to use deficit reduction as a justification for almost anything that we might do. We have to question what we are doing.
I need to bring my speech to an end. Others need to speak.
One thing that the coalition agreement does say is that we should have a fundamental review of legal aid. I am up for that. Absolutely. Where is it? Why on earth are we taking these measures? The Business, Innovation and Skills Committee is due to undertake a debt management review, and there are a series of other reviews looking at advice centres and the work that they do. We should do that first.
I apologise, Mr Deputy Speaker.
Someone once told me that the world is divided into two groups of people. There are those who, when they see somebody walking down the street with a walking stick, believe in kicking the stick away because it will make that person stronger, and there are those who believe that if they kick away the stick, the person will just fall over. We are in grave danger of making some of those who are, by definition, the most vulnerable in our society fall over, and we will still have to be there to pick them up, at even greater cost to the public purse. It does not make sense; we should not do it.
I of course support new clause 17, standing in the name of my hon. Friend the Member for Makerfield (Yvonne Fovargue). However, I will restrict my remarks to amendment 116, standing in the name of my hon. Friend the Member for Hammersmith (Mr Slaughter) and those of many Lib Dem Members, for what it is worth. Clause 12 will effectively provide for means-testing in the police station. I have many concerns about that from my experience as a lawyer. I have practised criminal law as a solicitor for many years—indeed, my wife is a qualified criminal duty solicitor—and shortly before the general election I joined my local chambers as a pupil barrister. I therefore come to this debate with some experience as a criminal lawyer.
I want briefly to talk about the practical difficulties of means-testing people in a police station. Let us imagine the situation—it happened last weekend, in fact. My wife’s pager goes off. It is three o’clock in the morning. She spends the next six hours in Priory Road police station, representing a young man who is suspected of very serious criminal offences. She is not in a position to go through the paperwork or CDS—criminal defence service—application form to make a claim for legal aid in that situation. What the client wants to know is: “How long am I going to be here?”, “What are the consequences if I’m charged?”, “What will happen if I end up appearing before the magistrates court?” and, at the end of the day, “What will happen if I am convicted?” The question is not: “How much do you earn?” That is the last thing that the client will want to put their mind to. Indeed, the solicitor in attendance would not be acting in a proper way if they asked that question. I firmly believe that everybody should be entitled to free and independent legal advice while in a police station. It is a fundamental right in a democratic society, and to remove it would be a huge mistake.
I have spoken briefly about the practicalities, but it is also important to spend a moment thinking about what used to happen. My hon. Friend the Member for Walsall South (Valerie Vaz) mentioned the green form. Yesterday evening I spoke to a solicitor who has been around long enough to remember the days of the green form. He told me that he used to send his secretary, or anybody in the office who was available. Things have changed for the better. People need to be qualified; they have to attend courses. I remember doing them: I did not like it very much at the time, but I went along, I paid the money—or the people who employed me did—I did the homework, I passed the examinations and I carried on with my CPD, or continuing professional development.
I did that because when I am called to a police station as a solicitor, it is important that I know what consent means in relation to an allegation of rape. It is important that I can explain what defences might be available. It is important that I have enough knowledge and experience to be able to say to a client, “It’s in your best interests to speak to the police,” or, “In my professional opinion, it’s not in your best interests to speak to the police.” We must not think that everybody who attends at a police station is guilty of a terrible crime. In my experience the contrary is true. The vast majority of detainees in police stations are either not charged, released on bail pending further inquiries, or, if they are charged, acquitted. A minority of cases make their way to the courtroom and end in a conviction. Everybody is entitled to access to a solicitor. It is a fundamental right, which, in my opinion, this Government are putting at risk.
I should mention the situation before the Police and Criminal Evidence Act 1984. Hon. Members have touched on it, but we had the Birmingham Six and the Guildford Four—great miscarriages of justice—and we learned from that. I think I am right in saying that the current Lord Chancellor was responsible for the 1984 Act, which was the right thing to introduce. Before PACE was introduced, people were making “confessions” that it later transpired were not proper confessions at all. It is important to remember that time. Miscarriages of justice cost the country an awful lot of money, but it is not just about money; it is about the effect on society when people can be convicted for something that they did not do and when they were nowhere near the scene. That seems appalling and very short-sighted.
Another concern for me is adverse inferences from silence. I have not looked at case law recently, but eminent barristers on both sides of the House will be familiar with it. The most recent case I am aware of is Murray v. UK. If my memory serves me correctly—I admit I have read only a summary of the court case—it says that a jury could not be invited to hold an inference against a person’s silence in the police station if that person was prevented from seeking legal advice in that police station. I believe that this is one of the unintended consequences that the hon. Member for Bradford East (Mr Ward) spoke about.
Let us imagine this scenario. A solicitor turns up at a police station to see a client and quickly establishes that the client has enough money to be able to pay for his own legal advice. Acting quite properly in the best interests of my client, I would say, “Keep your mouth shut.” I would tell the client to say absolutely nothing. I cannot afford to hang around because I am not getting paid and I am not sure that I will be paid even if the client makes an undertaking and assures me that the money will be brought to the firm of solicitors for which I work at some point in the future. I would probably be thinking, “I’m going. I’m not going to get any disclosure from the police, but in the best interests of my client I am going to tell him or her to keep their mouth firmly shut.” That provides an opportunity at some point in the future for that suspect effectively to make up their defence. It removes a valuable tool for the judiciary and the jury to decide whether they think an inference should be made from the client’s silence at the police station. This is a massive mistake.
This Government have not consulted on this proposal in clause 12. From a sedentary intervention I told the Minister earlier that it was probably written on the back of a fag packet. With respect, I think it probably was. There has been absolutely no consultation. I have spoken to many solicitors who have said that this proposal just came out of the blue. Nobody expected this. The Law Society was shocked. I have had meetings with the Bar Council and the Law Society, and they have told me that they did not expect this.
I am grateful to the hon. Gentleman, who has much experience in this area. I declare an interest as a duty solicitor still on the books for doing my duty at police stations. I share many of the hon. Gentleman’s concerns about the practical application of a clause that I understand the Government have indicated they have no immediate plans to implement. Will he expand on the details about the interests of justice test? Does he agree that there is specific interest of justice in respect of the advice and assistance at the police station given to a detainee who has already lost his liberty? The issue of stating his case is different from what it would be in court, and he might need specific, independent advice.
I would need more time to think about that, but I am tempted to say that I agree with the hon. Gentleman’s second point. On the first point, however, am I supposed to believe the Minister when he says, “Well, we want this on the face of the Bill, but we are never going to use it.”? That is absolute, utter and complete nonsense. I asked my researcher to make inquiries with the Library and find out on how many occasions the previous Government—of whom I am entirely proud—may have used this provision as a tool. My researcher came back to me to say, “As far as the Library is concerned, there is no example whatever of a Government building provisions into an Act of Parliament that they never have any intention of using.” It is complete and utter nonsense to suggest that that is the case.
I will not give way, because many other Members are keen to speak in this important debate.
It worries me that the Government are ignoring expert advice on a proposal which, in my view, would remove a fundamental right from citizens, and that there has been no consultation whatsoever. The Bar Council and the Law Society have expressed honest concerns about the legislation, but the Government have completely ignored them, which is outrageous. Many members of the Bill Committee took that point on board, but in an article one of them, the hon. Member for Ipswich (Ben Gummer), described the Bar Council as bewigged Scargillites. I assure the House that my colleagues at the Bar are far from being bewigged Scargillites.
During my time as a criminal lawyer I defended the last Government on many occasions, and it is nonsense to say that that Labour Government were not generous to publicly funded lawyers. However, I believe that a fixed fee in a police station is now about a hundred and sixty quid; it is certainly less than two hundred. If I were still a solicitor and the pager went off, I would have to go to the police station with no idea of what awaited me. I would hope to be there for five minutes, but I might well be there for six, seven, eight, nine or 10 hours, or even longer.
It is utterly disgraceful to suggest that publicly funded lawyers are earning vast sums. As of 3 October this year, solicitors are not paid committal fees in a magistrates court. That effectively means that if a case is committed to the Crown Court, whether under section 51 of the Crime and Disorder Act 1998 or because the defendant elects for it, the solicitor will not be paid for the work. So when will solicitors be paid? They will not be paid in a police station, and they will not be paid if the case is committed to the Crown Court.
Is not the Government’s plan simply to squeeze solicitors out of the game? Clause 12 suggests that they expect them to work for free. Make no mistake: that is what it is all about. It is true that big solicitors’ firms with mixed practices dealing with other areas of law involving private payment may well survive, retain a criminal franchise and employ people to do a job, but I can tell the House that it is not cheap to employ an accredited police station representative. I do not know for sure because I have never been one, but I would guess that their salaries are between 25 and 30 grand a year. A newly qualified solicitor in my area, Hull, probably earns between £22,000 and £26,000. Moreover, the courses that solicitors must attend in order to become qualified to give legal advice in a police station cost many hundreds of pounds, and it is not a one-off cost. When people become qualified to give such advice, that is not the end of the matter, because they are required to engage in CPD as they continue in practice.
It is unbelievably short-sighted of this disgraceful Tory-led coalition Government, disgracefully propped up by the Liberal Democrats, to suggest that this might be a good idea. [Interruption.] I am not sure what the Under-Secretary, the hon. Member for Reigate (Mr Blunt), said from a sedentary position, but I am sure it was not worth hearing. The reality is—make no mistake about it—that this will cost an awful lot more money in the long run. I am glad I have put that on the record because at some point in the future I will be saying it again to those on the Treasury Bench.
It is always a considerable pleasure to follow the hon. Member for Kingston upon Hull East (Karl Turner). His speech was passionate, well informed and full of some good sense. I was unable to support a similar amendment of his in Committee, because on one rather important issue I disagree with him. I do not think it is wrong in principle for a millionaire who has been convicted of murder to be charged for the legal defence they received at the police station. However, I do agree with the hon. Gentleman that what is important is the point at which that charging happens.
I have a great deal of respect for the hon. Gentleman, too. I mean that sincerely.
I recall attending a police station to represent a doctor who had an NHS practice as well as a private practice. If he had said to me, “Listen, I’ll pay you,” I would not have continued to advise him in what was a very important case. When a solicitor turns up at a police station in such circumstances, they cannot be sure they will be paid. Even if the doctor had given me an absolute, cast-iron assurance that I would get that money, the firm of solicitors that employed me would not have allowed me to stay there. That is why I disagreed with the amendment of the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) in Committee. He suggested that two hours should be free, and then there could be charging. I disagree; I think anybody in a police-station scenario should be entitled to free and independent legal advice.
At the risk of this turning into a mutual affection session, let me say that I understand the hon. Gentleman’s point and agree with the foundation of his argument, which is that the Police and Criminal Evidence Act 1984 was the most significant advance in criminal law in this country since the second world war and we must take into account the abuses that led to its introduction. On that basis, it is an important principle that there should be free and unmolested legal advice at the point of arrest for all people, no matter how much they are worth, so that no one need be worried about the quality of the advice they are getting.
We could, however, debate whether it is appropriate to have retrospective charging for people of means who have subsequently been convicted.
All Members want there to be proper access to justice for all, and informed legal advice that can address miscarriages of justice and uphold people’s basic human rights in police stations. Might those charges be best recovered at the point of conviction? That would not create risks in respect of access to justice. Also, in prosecutions by the Department for Work and Pensions and other agencies, applications are made that cover the costs for the whole of the investigation as well as the court costs.
I bow to my hon. Friend’s superior experience of such matters. There might be a mechanism under which retrospective charging would be possible. We could debate that, and Members on both sides of the House would make reasonable arguments. Given the phrasing of the provision currently under discussion however, such a debate is not possible now.
I hope the Government will be able to provide assurances on another problem. In principle, I am against contingent legislation. I remember sitting up in the Public Gallery when I was very small, watching others in this Chamber discuss prevention of terrorism legislation. The then Opposition, headed by Neil Kinnock, were arguing passionately against that legislation for precisely the reason I am discussing. I do not think that they were right in that circumstance, but I find troubling the idea of putting contingent legislation on the statute book that could be re-enacted by order later without reference to Parliament. I hope, therefore, that the Government will either flesh out their proposals for the retrospective charging of defendants should they be convicted or decide to approach this matter in a different way.
First, I agree with the hon. Gentleman about that form of legislation and he makes a valid point. A couple of minutes ago, he asked why a millionaire or multi-millionaire should not pay for legal advice and assistance. In my experience, the vast majority of very wealthy people have their own lawyers and in many cases they actually carry their number with them all the time.
The right hon. Gentleman makes a reasonable point. However, a point of principle is involved here. I do not understand why people on low incomes in my constituency or that of the hon. Member for Kingston upon Hull East should be subsidising the legal advice of those who can pay for it at a later date should they be convicted of a crime. We can have a debate about this. All I am saying is that we should have the debate now, perhaps with a new clause, or address it in another place in a different way.
I move on to the new clause tabled by the hon. Member for Makerfield (Yvonne Fovargue). Her expertise in social welfare law is probably unparalleled in this House and I very much value what she brought to this debate. However, I would remind her—I hope that she will not take this remiss—that at the last election she stood on a manifesto promising cuts in legal aid. Although the examples that she gave were pertinent, no recommendation has come from the Opposition Front-Bench team as to the alternatives they would introduce, either to make cuts elsewhere, which would otherwise be seen in her area of advice—
I hope that we can make some progress in this debate now. This is not helping—[Interruption.] The Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly) is laughing. I hope that he is not going back on his earlier promise that we would make progress today. Had the hon. Member for Ipswich (Ben Gummer) been here earlier, he would have heard me deal with that point, in terms and at length, in response to an intervention from the Chair of the Select Committee. Will he stop wasting time?
The hon. Gentleman is a little previous. Had he allowed me to continue my point, as I had asked, he would have heard me address exactly what he said. I did hear what he said, albeit outside the Chamber. Let me deal with this point about the Opposition. If they are to be credible, they have to make alternative proposals for cuts to legal aid, which they promised in their manifesto and have promised since, to this Chamber. A few months ago, during the Public Bill Committee, they clung to the proposals made by the Bar Council and the Law Society, until those proposals fell apart. They fell apart to the extent that the Bar Council and the Law Society have had to revise them in a resubmitted document provided earlier this week. That was the Opposition’s first cost-reduction plan and it was not one of their own making—it was made by others.
Some £245 million-worth of amendments were tabled by the Opposition in the Public Bill Committee, along the lines of those proposed by the hon. Member for Makerfield, but with no suggestions as to where cuts might be made elsewhere. So we get to a point where there is a complete absence of the other side of policy from Her Majesty’s Opposition—it might provide some credibility to what they propose—until perhaps today, when the hon. Member for Hammersmith (Mr Slaughter) appears before the House saying, “We are going to bring in accelerated competitive tendering in criminal defence work.”
I have to admit something rather embarrassing to the House. I am afraid I am a constituent of the hon. Member for Hammersmith (Mr Slaughter). At the last election I received a great deal of communication from him, much of which revolved around the third runway at Heathrow, which he valiantly opposed.
I was about to say that in none of that communication did I receive any indication that the hon. Member for Hammersmith disapproved of the previous Government’s termination of competitive tendering for legal services in 2009. On that point he was silent. There was no outrage that the scheme that he is now proposing had been stopped by the previous Government, no sense that he would step down from a position on that point, as he would on the issue of the third terminal. Thus this modern-day Prometheus has been found wanting.
May I ask, therefore, that in their submissions we may have a little more substance from the Opposition on how they might pay for the many amendments that they have tabled on Report, instead of their jumping on every passing bandwagon and every interest group to which they can plead?
I begin by declaring an interest as somebody who used to work for Citizens Advice Cymru before being elected to this place, and who currently serves as the secretary of the Citizens Advice all-party parliamentary group. I shall speak to new clause 43 and amendment 162 in my name. They are probing amendments so I shall be brief, but colleagues in the other place might want to pursue the matter in greater detail, especially as the amendments carry the support of the official Opposition, for which I am extremely grateful.
The amendments are supported by advice organisations concerned that a strict interpretation of legislation may leave holes in the legal aid safety net. From a pragmatic and practical perspective, the intention of the amendments is to allow funding for the provision of advice from third sector independent and impartial advice organisations to assist with understanding a case, without the requirement to provide formal and costly legal representation. That will help the Government achieve some of the savings aims in the Bill. In technical terms, the amendment would give the Lord Chancellor discretion to permit transfers from the legal aid budget to other funding streams for the provision of advice on issues to which schedule 1 does not apply.
If schedule 1 is to be the future shape of civil legal aid, the scheme needs to work alongside advice services which deal with other legal issues, such as debt problems, issues of benefit entitlement and appeals under social security law, employment rights and immigration decisions. On a practical level, it is a waste of resources if legal aid clients cannot receive holistic advice. I know that that is something on which Citizens Advice prides itself. There will also be many cases at the margins of the situations covered in schedule 1, and the Legal Services Commission’s response to the Green Paper highlighted the problem of what it calls boundary issues, warning that
“the administration costs of considering such cases could erode revenue savings that the Ministry of Justice has committed itself to.”
That addresses some of the points that Opposition Members have raised throughout the debate on the Bill and draws attention to the unintended financial consequences of what the Government are trying to pursue. I will close as I want to allow colleagues to speak about other parts of the Bill, but it would be helpful if, in response, the Government could explain how the concerns of civil society bodies about access to advice as a result of the prescriptive nature of schedule 1 will be addressed.
I am conscious that we have had two hours of debate already and I am keen, as are other Members, to get through all four groups of amendments if humanly possible, so I will make only a few comments. It is appropriate that contributions from both sides of the House, including from the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards), have made the case for the Government to proceed sensitively on this delicate issue.
My position is very clear: I signed up to the coalition agreement without reservation because it was the only realistic game in town. It was important to accept that one of the things that would drive Government policy was the need to reduce the deficit. That is right and necessary, so it is right that every Department should carry its share of that responsibility. As my hon. Friend the Member for Bradford East (Mr Ward) made clear, the coalition agreement stated that there would be a review of the legal aid system to make it work more efficiently. If the Government are also to achieve their other objective, which is to ensure that the vulnerable are protected in a time of economy austerity and reduced spending, we must ensure that this part of public spending protects and assists them as much as possible. That is where the sensitivity arises.
Like other Members who have spoken, I am lawyer, but I am not here to defend the lawyers. We need good lawyers, such as the hon. Member for Walsall South (Valerie Vaz) and many others, who come to law not to be paid six-figure salaries in large commercial firms, but to be paid £25,000 or £35,000 a year, often working 40, 50, 60 or 70 hour-weeks, in citizens advice bureaux. There is a very worthwhile legal advice centre in my constituency, the Cambridge House law centre in Southwark, and many other such places. We are here to ensure that the issues they raise are on the agenda.
We are also here because in constituencies with high levels of unemployment and deprivation, such as mine, and in every other constituency, there are huge numbers of people who from time to time need legal support in the most difficult circumstances. We must ensure that the welfare net is protected. We have a very generous system, which cannot go on in the short term, but we must make the right decisions. All the attempts in the new clauses that concern me try to persuade the Government of that fact. I have five areas of concern and will flag up one relating specifically to the amendment that has not been spoken to already, but which I hope the Government will be able to respond to positively.
My right hon. Friend mentioned the good work that many lawyers do in this area—not the commercial fat cats—and touched briefly on Citizens Advice. Does he agree that the good work done by hundreds, if not thousands, of CAB legal advisers, who are not even lawyers but provide excellent advice, is absolutely unparalleled and that it would be a tragedy if any of the Government’s proposals led to cuts in that work?
None of us can stand up and say that there do not have to be reductions, but of course it is not just the lawyers, the citizens advice bureaux or the other advice bureaux we should be concerned about; it is advice workers and qualified advice workers too.
The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who has just left the Chamber, tried to wind us up earlier. I have one objective in these considerations: if I do not think that a Bill was in the right place when it began, I want to ensure that it ends up in the right place by the time it becomes law, As we know, the reality is that sometimes we can make and win an argument in Committee, but it is very rare for a Government to be defeated in Committee. Sometimes the argument can be won on Report. Arguments are normally won when the Government have been persuaded not only in the Chamber, but outside it. I have had meetings with the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly) and other colleagues, as have many other Members. The press reports that my colleagues on the Liberal Democrat Benches want to make further progress and changes, and we will continue in that.
We have heard that the Minister was very good and said in response to my amendment 145 which we debated on Monday that he would look specifically at the issue of family reunion, and I take him at his word. I think that that is a case where we need change, and I have no reason to think that, if he is helpful today, we cannot make significant progress. Of course, it would be lovely if all the amendments were made today, but we are not necessarily at that stage.
I cannot, either because there were none or they were very rare. To be serious, however, I have been a Member not quite for ever but for a long time under both Labour and Tory Governments, and I do not want to get distracted by that, because in reality we on the Liberal Democrat Benches all seek to work with the Government to get the right outcome, and we will do so constructively. We shall do that not by megaphone diplomacy but in a way that I hope is persuasive in argument and wins the day.
I was as frustrated as everybody else when the final two groups of amendment were not debated on Monday, so I hope that Ministers will be sensitive to one thing that we lost out on, which was onward appeals. The Minister has it on his list, as amendment 147, and there is an issue when somebody who loses a case wins it on appeal but then the Government appeal on a matter of law. It seems important to ensure that there is parity between the citizen and the state, and I hope the Government concede that.
I absolutely understand the case that the hon. Member for Makerfield (Yvonne Fovargue) makes in her new clause. I have many constituents—we all do—who present with one issue, whereupon we discover that there are four, or their whole life is in a mess, whereupon we have to start trying to put it together again. Their situation will involve finance, relationships and housing, and it may involve the custody or care of children, but those complex cases absolutely need to be looked at and with legal support. That ties in to my point about telephone advice services, because people with such complex needs—whether or not they have plastic bags when they come through the door—cannot quickly and efficiently put their case on the telephone. Sometimes they cannot do so face to face, either, but one is much more likely to get an answer having had face-to-face engagement than if one tries to do so remotely, on the telephone.
Does my right hon. Friend agree, however, that in just those cases a high proportion of the advice required is not legal advice, but the advice of a sensible person with some experience in the area? Bodies such as Citizens Advice are very good at providing it.
For example, there is an organisation based in the constituency of my hon. Friend the Member for Bradford East called Christians Against Poverty, and it has people working in my constituency who are really good at dealing with debt. They have been tried and tested by me and others, so if one such element is debt I will often refer my constituent to them. They will unravel those issues and try to get them sorted even when in the county court there might be a legal issue, such as a possession action by the council or a housing association for the person’s flat, which one might need to manage as well.
In our constituencies we all have equivalents of the organisation Christians Against Poverty, to which the right hon. Gentleman refers, and there is no question but that they do marvellous work, but the kind of cuts that the Government are talking about will impact either directly or indirectly and, most certainly, on the citizens advice bureaux in my constituency. The real concern—certainly felt by me and, I think, by every Opposition Member—is that a terrible rock is being thrown into the social system, and the ripples are going to take out more and more people and, therefore, reduce more and more the advice that is out there at the moment.
Hampstead and Kilburn, as it now is, sounds more balanced and mixed, but of course the hon. Lady knows about and has experience of the issues.
I think that the Government, given the constraints of the general economic position, are trying as hard as they can to find the support that the hon. Lady and I wish for. Her party, had there been a Labour Government in this Parliament, would have made cuts in legal aid and to public spending across the board, and she would not have liked it, as she did not when they were in power. Indeed, I remember her speaking against her Government pretty well every week in the previous Parliament, owing to what they were doing, and I was with her and made just those comments.
However, this Government have already put some money into Citizens Advice, for example. Transitional funding is being discussed. My hon. Friends have discussed with the Chief Secretary to the Treasury, who made a very welcome statement earlier today, putting more money on the table for public servants and the ways in which that might be extended. I understand the hon. Lady's point and we will try, from the Liberal Democrat Benches, to win that argument, but we have to win it within the confines of what is a very difficult position for everyone, including the Government.
On amendment 116, my right hon. and hon. Friends have made the point about clause 12. May I say to Ministers that if clause 12 is not going to be used, it ought to go? I understand why the Government might want a fall-back or safety-net position, but if it is not to be used they should let it go and say so. That is important because, as colleagues have identified, providing someone at a police station with legal advice and assistance will often save huge grief for them and their families and a huge amount of time for the police and other agencies that come to deal with them. Often, it will also save a huge amount of time for the criminal justice process afterwards. I am clear that, in time-efficient and cost-efficient spend, we ought to retain that and not lose it.
Let me make a substantive point about amendment 148, which is in my name, about telephone advice and the telephone helpline. The Government propose that the community legal advice helpline that is currently in use and does a perfectly good job should, once the changes have come into operation, be the sole method of access to the service for certain issues at the beginning. It is proposed that there should be a mandatory single telephone gateway for four areas at the beginning: debt, inasmuch as it is covered by legal aid; community care; discrimination; and special educational needs, subject to exceptions. The plan is that there should then be a phased expansion of the provision of specialist telephone advice into the other areas of law for which legal aid is available, except for asylum matters, and that there should be a pilot scheme.
The Justice Committee chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) has looked into this matter and said that it was not against a telephone advice line in principle, but it advised caution and the Government have responded cautiously. May I make two points about why the Government have to be really careful? First, there is real concern out there, as I know from my meetings with Cambridge House and other organisations that do legal aid work and advice in my constituency and borough, that if people have to go through a central call centre, which is the only way into the system, they will not get the same service as with NHS Direct, for example. With that service, if someone does not like what they get they can go to their chemist, GP or hospital, but this call centre will be the only way in.
However good any advice line might be, some people are not going to be very able to deal with that service. I know that the Government are not being absolutist about this issue and that the theory is that the person at the other end will spot the person who might have learning difficulties, poor English or whatever and make sure that there is a face-to-face service. However, I am nervous that if someone from Bermondsey, to choose a place at random, phones up the national headquarters, which may be in Bradford, there will not be a full understanding of their circumstances as a recently arrived Eritrean with children, for example, who is barely able to speak English and is trying to sort out their housing when there are legal issues. I therefore ask the Government to think again about how we might make sure that there are ways for people to see someone face to face in their community or part of the world that do not require their having that kind of advice only in the first instance.
The telephone helpline will also direct people who are not legally aidable towards paid-for services. Does the right hon. Gentleman share my concern that if helpline staff do not know of any face-to-face advice agencies or telephone helplines for debt, for example, they might direct people to one of the fee-charging debt-management agencies, which would be totally inappropriate?
That would be inappropriate, and I hope that it would not happen. There should be safeguards.
I want to be constructive about how we might deal with the matter. First, when there is a helpline, as there is already, there should be monitoring not just in theory by the Government. Just as we have lay visitors at police stations and so on, there should be a facility for Members of Parliament and others—perhaps a representative group, such as the Select Committee that my right hon. Friend the Member for Berwick-upon-Tweed chairs—to be able to take part in seeing how the telephone helpline works. There will always be a telephone line, and I am not against that as an option, but it should be monitored by Parliament and Members of Parliament, as well as by the Government.
Secondly, I would be much more comfortable if somewhere was available in each region, rather than having to go through a national central location. If there was someone with the capability of knowing local circumstances, that would be hugely preferable. I hope that the Minister will be positive in his response to our concerns, and I hope that we will be given some encouragement that they will be not just listened to, but responded to at the first opportunity.
I apologise, Mr Deputy Speaker, for the fact that I will have to leave the Chamber soon after I have spoken. I am taking part in the Royal Society’s parliamentary pairing scheme.
I want to support some of the amendments tabled by Labour Front Benchers, and by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) and my hon. Friend the. Member for Makerfield (Yvonne Fovargue). I am here solely because of constituents who have written to me, and it is their words and their concerns that I wish to bring to the Chamber today. My hon. Friend made an important and informative speech, but I will make a much simpler speech, about my constituents and my relationship with them.
I have been contacted not by the 20,000 names on my database of people for whom we have been providing help, but by the people who help them—those who look to family proceedings and the care of children, and who care for those with mental health problems, and the whole range of welfare associations and advice centres. Those workers know from their experience the limits of their own abilities to assist my constituents and, like me, know the limits of my abilities to assist my constituents. It is they who are aware of how much difficulty people will face if the Bill is enacted.
The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) spoke about the telephone gateway. Recently I tried to use uSwitch. I rang it because I accepted the Government’s message to switch my energy company. I had all the papers in line as I sat at a desk with a landline. I called up and had a discussion, but when I was asked for my S number, I asked where I was likely to find that in the papers that I had already described. The person at the other end was unable to tell me. That should have been a simple process for a middle-class educated person.
We make e-mail addresses and phone numbers available to constituents, so why, in my constituency and those of the right hon. Gentleman and so many other right hon. and hon. Members, do constituents come to see us in person? The majority of my constituents do not come in person, but the 20, 30 or 40 people at every constituency surgery do not feel able to deal with their problems over the telephone. Although I have extremely experienced and competent caseworkers, with the best will in the world they often have to say to those who call up, “I’m sorry, but I can’t get to the bottom of your problem unless you bring me the paperwork, and I see you face to face.”
I want to endorse one point, and to amplify it. I gave an example of someone from abroad, but in my experience, even people who were born and brought up here and have spent all their life here often need two, three or four visits before we can sort out what the issues are and get them on their way. It is not one-off bits of advice that they need.
The right hon. Gentleman is absolutely right. This is key to the service that we provide as Members of Parliament. I know that Government Members have argued that we should not provide these services for our constituents, but I believe that we should, and I want to continue to do so.
Sometimes a vulnerable, sick and disabled person who has been wrongly deprived of sickness or disability benefits comes to me. I can say, “This should happen,” “That should happen,” “Yes, there ought to be a review,” or, “There ought to be an appeal.” However, I cannot assemble the evidence with that person. I do not have people with many hours to spend on each individual case who can put together the paperwork and the arguments and do the research. At the end of the day, that expert job is done by an advice person in an agency, who will refer the person to a solicitor, who will provide them with legal aid—or we might refer them directly. That service is absolutely vital, and if the person does not have it, they are totally denied justice.
Is the right hon. Lady aware of any incidents of people coming in with multiple issues, some of which will qualify for legal aid and some of which will not, but they are intertwined because of the person’s situation? Does she think that clarification is needed within the legal aid system in order to have all those issues dealt with rather than excluding some of them?
I certainly do, but of course the challenge for us now is not to be able to make things better but to try to save things from getting so much worse. That is the difficult situation that we are in.
There are tenants who are undoubtedly unfairly deprived of housing benefit, and home owners who are unfairly deprived of help with mortgage interest payments. They can get no assistance in the Government’s new system. In cases of housing disrepair I can write to the council or to the housing association, and very often I can get a remedy with my own resources and caseworkers. Every so often, though, there is a blank refusal by the council to deal with situations involving property that I deem unfit for human habitation, and I cannot persuade it otherwise because of the vast amounts of money involved or the difficulties of transferring people when it has tens of thousands on its waiting list. At that point a legal challenge is necessary—and that is what will be denied people in future.
I am sure that in my right hon. Friend’s constituency, as in mine, there is also the increasing problem of absentee landlords in the private sector who hand over the management of their properties to a managing agent, when often there is no management at all. It is virtually impossible for the individual who is suffering to try to pin down those people’s legal responsibilities without some kind of knowledge and support.
I could not agree more. That is so often the case, and often only the threat of legal action can even get us to the point of knowing who we are trying to deal with. That is an essential point.
Then there are those who are unlawfully evicted, and also those who may even be lawfully evicted, but could not or should not be evicted if they had an opportunity to contest the eviction. This morning we had a call from a family of five with the bailiffs at the door. If it had been a couple of days earlier, they could have been sent to a solicitor. We know about the case now, and the eviction could have been challenged. The family could have been kept in that home, although they would have had to be put under a stringent regime of dealing with their financial difficulties, which came about because things had gone wrong with their housing benefit. In future, they would not be able to get the assistance that they so badly needed, and they would therefore, as now, present themselves and cost the state a lot more money, if they could get the help at all.
Then there are the workers who are dismissed and found possibly to have a case for unfair dismissal. Under the Government’s proposals, they could get assistance only if they were able to claim discrimination. My constituency is hugely multicultural. Will people have to be told, “Can you possibly dress this up as discrimination, so that you can get the legal assistance that you will otherwise be denied”? We do not want to have to go down that path.
This will be a terrible disaster for my constituents. The constituents of the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly) may be more privileged than mine are. They may not need this kind of assistance, and he may not have surgeries bursting with constituents with problems. He may not receive the same number of e-mails, telephone calls and letters—[Interruption.] He smiles. Perhaps he would like to say—
There are real differences, I should tell the Minister. If he does not understand indices of deprivation, or the differences between constituencies in this country, I really do not think that he is fit for ministerial office.
Let me end by citing two other types of case, to which I hope that the Minister will listen carefully. I have a constituent whose sister died in Africa. Her young child was brought to Britain with a visitor, and he stayed here because his aunt is the only person who is prepared to take care of him. Lewisham social services want to see that child legally adopted, and the Government are very keen on adoption. However, the child has no legal status in this country. Such cases are complicated when it comes to getting all the paperwork together and arguing the case to the immigration authorities, which have already turned down my constituent’s case once. That is the kind of case that requires legal assistance.
The second case involves a trafficked woman, and it is one of the worst cases that I have ever had. She was trafficked here as a teenager, was raped repeatedly and gave birth to twins. She has never had her immigration status regularised. She cannot conceivably be sent back to Africa now, having been here for 12 years. These are the kinds of case that will be totally denied justice under the Government’s proposals. I appeal to the Minister, on behalf of my constituents and all those who work in advice services in Lewisham and elsewhere, to think again and not just to sit there laughing, as he is at the moment.
I too should declare an interest, in that I have practised at the criminal Bar since 1990.
I congratulate the Minister on at least having the decency to bring in clause 12 through primary legislation, unlike the previous Government, who sought to bring in such a measure through secondary legislation until they were prevented from doing so by the High Court. I am afraid, however, that that is the limit of my congratulations, because—
I am grateful to the hon. Gentleman. I will send him a copy of the case.
The clause reveals a lack of understanding of the criminal justice system, and especially of the importance of the timing and purpose of police interviews. The hon. Member for Kingston upon Hull East (Karl Turner) has spoken—perhaps until just recently—with passion about police interviews from a defence perspective, and what he said was right. Just in case the Minister is not swayed by the defence, however, I would ask him also to pause and consider this matter from the perspective of the prosecution.
Police interviews always take place at a time chosen by the prosecuting authorities, and the time is chosen because it is advantageous to them. In complex cases, perhaps involving drugs or organised violence, the police may arrange for simultaneous arrests, not least so that they can try to put the account of one arrested person against that of another, and try to break up those whom they believe to be part of a complicated conspiracy. The timing of the arrest might also be brought forward for the purpose of arranging the interview, in order to prevent a crime, or to protect a witness or a police source.
All that will fail if the arrest has taken place and the person has been brought to the police station for interview, yet nothing happens while their means are picked over and the interviewing officer drinks tea. Evidence could be lost, co-accused could flee, and witnesses could be harmed. All that will take place in the period allowed for detention, which is slowly being eaten away. The accused will not have details of his means on him. Surely we are not seriously suggesting that armed police who are looking for drugs, blood-stained clothing or weapons will be asked to look for three years’ accounts or 12 months’ pay slips.
There is a serious point to that. The rapist whom I prosecuted in the summer, who is now serving a seven-year prison sentence, was interviewed at a time that the police chose because it was appropriate for the purposes of their investigation. If they had had to wait while his means were established in order for his legal representation to be provided, it would not have been helpful to their inquiry—it would not have been what they wanted to do, and I am sure it would not have been what the victim of that offence would have wanted them to do.
My hon. Friend makes an absolutely proper set of points, but given the realities of life in the police station, from either a defence or a prosecution point of view, does it not come down to the fact that that is not the time for means-testing? At a later stage—for example, on conviction—a proper account could be made of a guilty person to establish whether they had the means to pay for their legal representation.
My hon. Friend is aware from his practice that at the point of conviction the court will consider applications for prosecution costs, which are effectively the costs of bringing the case before the court. There is nothing wrong in principle with somebody who can afford to contribute being invited to do so—“invited” in the firmest sense of the word. However, it is entirely appropriate to have a system that delays the proper prosecution of criminal justice while people’s bank accounts are checked to determine whether they qualify for legal aid at the police station. The problem is not only the injustice that might result for the accused, but the frustration that might be caused to those whom we task with investigating crime and prosecuting offenders. The introduction of such a counter-productive measure is in no way excused, in my opinion, by a promise never to use it.
I am pleased to be able to contribute briefly to this debate. I am one of a minority of hon. Members in the Chamber who is not legally qualified, but on this occasion I am grateful that so many solicitors and barristers are Members of the House. They have made this a much better debate and brought experience to it. I hope the Minister has listened carefully to what has been said, particularly in relation to the removal of clause 12.
When the House learns from its mistakes, it can introduce much better legislation. I have been here long enough to have gone through the experience of the Guildford Four, the Birmingham Six, Stefan Kiszko and many other appalling miscarriages of justice. It is true that the Police and Criminal Evidence Act 1984 made a big difference and brought about a much fairer system of investigation. However, unfortunately it did not lead to the release of people who were wrongly convicted in Birmingham, which came much later as a result of a huge campaign, which in turn led to establishment of the Criminal Cases Review Commission, which has hopefully reduced the chances of future miscarriages of justice.
My experience and that of many other hon. Members of dealing with immigration cases, miscarriages of justice and many other misfortunes that befall our constituents is that problems often come from the initial point of contact with authority, be that a police or immigration officer, a housing official or someone else. People who are not represented at the initial point of contact when they should be might confess to things that they did not do, suggest they have done things that they could not possibly have done or just become hopelessly confused and accept whatever the official says. How many of our constituents have told us that they have said all kinds of things in good faith to an official, things they clearly did not understand because they were intimidated by the experience? It is at that point that our constituents—all of them—deserve the right of independent legal representation.
The hon. Member for Dewsbury (Simon Reevell) made a good point about the delays that will happen in a police station if clause 12 is operated as drafted. It will be utterly ludicrous if the police arrest somebody and want to interview them, but are unable to get the basic information that they require and so have to keep them at the police station for a long time. That will take up police time and space when releasing the person might be the best course of action, all because there is an argument about whether a solicitor should be available.
On the point about wealthy people getting advice, I am quite sure that Roman Abramovich goes around with the numbers of half a dozen solicitors in his wallet, or at least that his security staff do. I am not particularly worried about the ability of such oligarchs to gain access to lawyers should they fall on the wrong side of the police. I am worried about people who cannot afford to get a solicitor, who do not carry a number with them and who cannot get a duty solicitor because they cannot prove that they are entitled to legal aid. I suggest that the Government should simply accept this point and withdraw clause 12 in its entirety.
I want to make two more quick points about the effect of the trajectory of legal aid. I was concerned about the trajectory of legal aid under the previous Government, as were many Members. The Liberal Democrats used to be concerned, but they have had a damascene conversion. Something far worse is now happening and they support it. When something less bad was happening, they opposed it. I do not know what has happened. Perhaps somebody can explain it to me at another time. I am too simple a soul to understand it.
The changes in legal aid have been devastating for many good solicitors’ practices in inner-urban areas. Many have closed in my area because they cannot survive any longer. There is not enough other work so that they can cross-subsidise within the company. I am not sure that that would be a good principle even if they could do it. The shortage of funding for legal advice has hit law centres badly and they are trying hard to survive. As a result, many people who should be legally represented go unrepresented.
I have the utmost time, respect and admiration for Islington law centre, but it is creaking at the seams with the pressure of the work that has fallen to it because of the number of solicitors’ practices that have closed and the number of people who are in desperate situations and want its help. It is doing its best. It relies heavily on pro bono work and trainee solicitors who work at the law centre as part of their training. That is not a bad thing—in fact, it is a good thing—but the whole system should not rely on pro bono solicitors and on the good will of trainees. I am very grateful to those people, but the system should not rely on them.
Likewise, Islington council, despite the huge problems and pressures it is facing, like every inner-urban area, has to its credit found the time, political determination and resources to open a citizens advice bureau on Upper street, opposite the town hall. It is absolutely packed out, largely dealing with debt advice. A lot of the advice that is given does not require legally qualified people, but can be given by good advisers. However, the resources have to be there to ensure that it happens.
Does the hon. Gentleman agree that what is proposed by those of us in Parliament who work closely with Citizens Advice would still lead to a reduction in cost from the current £25.5 million to £16.5 million, which as I said earlier is a 40% reduction? Citizens advice bureaux are trying to be productive to ensure that they can retain their funding.
Citizens advice bureaux do a fantastic job and they do their best to be as productive as possible. It is hard to measure productivity when one is dealing with advice. It is hard to measure how long it takes to explain to people the seriousness of their situation. As we all know from our advice surgeries, some people get it quickly and others take a long time to understand the reality of their situation. As my right hon. Friend the Member for Lewisham, Deptford (Joan Ruddock) said, it sometimes takes several visits. A solicitor or advice bureau cannot do that; only MPs can do that. That is why we are vulnerable to such visitations every Friday evening, or whenever we hold our advice surgeries.
The other point I wanted to make is about the effect of these provisions on the legal profession. Like other hon. Members, I visit universities and colleges on occasion, and I meet and talk to students. I meet many enthusiastic young law students who are working hard and doing well. They want to work in criminal law and advice, but they cannot get work in those areas. We are turning out a generation of lawyers who pursue property and commercial cases because that is where the money is, and the criminal law will suffer, along with the rights of the individual. The poorest people in the poorest communities in this country will suffer as a result.
The legal aid changes will lead to an inequality of justice. My right hon. Friend the Member for Lewisham, Deptford made two very important points. The first was about family reunion cases in immigration law. Notwithstanding the problems with the Border and Immigration Agency, there is a cost implication of removing legal aid for family reunion, because it will lead to children being taken into care, more misery for families—sometimes with accompanying abuse—and children under-achieving in school because they are so stressed by being divided from a family in a refugee camp in Kenya, Sudan or the horn of Africa, as is often the case in my constituency. Those children deserve to be represented so that they can have a family around them to give them support.
The second point was about housing. Like every other constituency in London, mine is increasingly dominated by the private rented sector, which is now bigger than the owner-occupier sector and is increasing fast. Tenants face short-term tenure, difficulties with landlords, absentees and problems with repairs, and all the other insecurities involved in such situations, and they need, deserve and should have access to appropriate legal advice to ensure that the law is carried out and they receive the protection that is due to them.
Yes, legal aid is expensive. When it was introduced in the 1940s by the very progressive Labour Government, it was seen as part of the welfare state. The welfare state included social security, housing, health, unemployment benefits and a right to access to justice. I honestly believe that the trend of cuts in legal aid means that universal access to justice is slowly disappearing before our very eyes, and that is wrong.
I support everything that my hon. Friend the Member for Hammersmith (Mr Slaughter) said from the Front Bench about the cuts in welfare rights, and I also agree with the comments by my right hon. Friend the Member for Lewisham, Deptford (Joan Ruddock) and my hon. Friend the Member for Islington North (Jeremy Corbyn). I shall not reiterate everything that they said as time is short, but I want to address clause 12 and ask the Minister to remove it from the Bill.
Before I go into the reasoning behind that request, I have a general caveat. What I am about to say is not a criticism of police officers. In all professions and walks of life there are people who do not do their jobs properly and have mala fide motives. Section 52 of PACE, which was introduced in 1984 by a Conservative Government, gave people arrested at a police station the right to see a solicitor of their choosing. As hon. Members may remember, that particular piece of legislation came about because of several riots over the sus laws, and Lord Scarman was asked by the then Government to investigate the cause of those riots.
In those days, under the old sus laws, the police could stop anyone walking on the street without any justification and without having to show reasonable cause. Inevitably, a lot of the people stopped were young men of Afro-Caribbean origin in London and young men from working-class backgrounds in the rest of the country. As a result of Lord Scarman’s inquiry and investigation, the then Conservative Government passed that piece of legislation, which, generally, was a good one that brought us up to date with many other countries with similar economies to ours and with what we could call western democratic institutions. We would be hard-pressed to find, in any of those countries, a defendant at a police station being denied the right to free legal advice. Taking away that right will almost put us back three centuries. It is not compatible with modern, 21st-century Britain and its place in the world.
We talk about saving money, but more money is saved when people are advised properly at a police station. I agree with the hon. Member for Dewsbury (Simon Reevell) and my hon. Friend the Member for Kingston upon Hull East (Karl Turner). From the prosecution and defence perspective, they talked about how such advice should be allowed. As someone who has both prosecuted and defended for the past 20-odd years, I think that access to legal representation at a police station is not only the fair, right and proper thing for a civilised society, such as ours, to do, but in the long term it saves money. It avoids unnecessary not-guilty pleas and saves unnecessary time going to court and prosecuting people. If people are spoken to by a solicitor, often—in most cases, I would say—solicitors advise their clients correctly. In my experience, if there is evidence against clients, the solicitors and lawyers tend to advise people to plead guilty. This proposal, therefore, will not save money, but waste more money. If the argument is about economy, I would have to point out that it is a false economy.
I shall give an example involving the Crown Prosecution Service. Following the Narey review, which looked into why so many cases going to court were leading to acquittals, Crown prosecutors started going into police stations, looking at cases and working with the police in order to speed up the criminal process. As a result of that direct input by lawyers at the beginning of the criminal prosecution system, the number of cases going for not-guilty pleas has been reduced and many more people now plead guilty.
I also want to mention the disclosure system, which was introduced under a fantastic piece of legislation brought in, again, by a Conservative Government—the Criminal Procedure and Investigations Act 1996. Prior to that, we had a system under which some police officers and police forces withheld material evidence in criminal cases, leading to many miscarriages of justice. The new disclosure regime came into being to deal with that and, as a result, everything now has to be disclosed.
Those were Conservative Government policies, which is why I am so surprised that the Government have proposed clause 12. It will not save any money, but there is a more fundamental point. The worst thing that a person can face is being arrested, detained, taken to a police station—often a very hostile environment—and having no one to speak to who understands the procedures. This proposal will remove a fundamental right.
Despite our financial difficulties, we are still a rich nation in comparison with the rest of the world. When I worked for the United Nations Mission in Kosovo, I helped to deal with criminal justice issues, and one of the first things we did when we got the system up and running was to draft—I was involved in it—the regulation of access to a lawyer for a person arrested by the police. That was 11 years ago in a country that had suffered 10 or 12 years of civil unrest. Its institutions were not working properly and it was financially not very solvent, but even there, 11 years ago, this particular provision was brought in because it was recognised that a person who is arrested and taken to a police station must have independent legal advice.
Does the hon. Lady not think it quite telling that although we had intervention after intervention from those on the Government Benches last night when it was argued that existing legislation allowed action to be taken against squatters, we have had no interventions today to explain why we are wrong about clause 12 or new clause 17, which stands in the name of the hon. Member for Makerfield (Yvonne Fovargue)?
I thank the hon. Gentleman for that observation, and I agree with him.
I shall conclude my remarks, because I know that we want to get on to the next piece of business. My fundamental plea is this: please do not take away the right to legal advice at a police station.
I want to ask the Minister two questions about social welfare law. I also feel obliged, even at this late stage in the debate, to speak briefly to the three amendments standing in my name—amendments 69, 70 and 71—which have not yet been debated.
My first question for the Minister follows the sensible remarks of the hon. Member for Eastbourne (Stephen Lloyd) earlier about how the Government are making significant legislative changes to a number of areas in social welfare law. They include some that he mentioned, such as the introduction of the universal credit and the changes to disability living allowance. I would add to that the substantial changes to housing, child maintenance and the immigration system, where I can already report a shortage of supply in my constituency when it comes to accessing good advice. If legal aid is not to be available to take people through what will be a period of incredible complexity and confusion, what discussions has the Minister had with ministerial colleagues in other Departments to ensure adequate provision and funding for people to receive advice, at least in this transitional period? Failing to put that funding in place will cost the Government more rather than less.
My second question for the Minister relates to the additional £20 million of funding that has been made available to support advice agencies—or really, to cope with the loss of legal aid coverage in certain categories of law. That is particularly important in my constituency, because Trafford law centre stands to lose almost all its funding, given that it is currently funded by an immigration contract and an employment contract, both of which will go. It also receives Equality and Human Rights Commission funding, which is due to end, with a small and diminishing proportion of its funding coming from the local authority. Can the Minister tell us a bit more about the £20 million fund, which my law centre is understandably interested in, but which it rather suspects has already been earmarked to support agencies elsewhere? Is it a one-off fund or will it be available in future years? What is the process for deciding how the money will be disbursed?
Finally, my amendments 69, 70 and 71 deal with the transfer of Legal Services Commission staff to the civil service, which the Minister spoke about in his opening remarks this afternoon. My understanding is that the Bill is proceeding on the assumption that TUPE will not apply to the transfer. Of course, only the courts can finally determine whether that is the case, but in any event, the Bill should proceed on the basis that transferring employees will have at least the same protection that would apply if TUPE applied. In any event, what should apply is the Cabinet Office statement of practice on staff transfers in the public sector, paragraph 19 of which says that
“transfers at the instigation and under the control of Central Government will usually be effected through legislation,”—
as is true in this case—
“in particular those involving Officeholders. Provision can then be made for staff to transfer on TUPE terms irrespective of whether the transfer is excluded from the scope of the Directive implemented by TUPE. Departments must therefore ensure that legislation effecting transfers of functions between public sector bodies makes provision for staff to transfer and on a basis that follows the principles of TUPE along with appropriate arrangements to protect occupational pension, redundancy and severance terms.”
I was grateful for the assurances that the Minister offered this afternoon on some of those points, and I understand that transferring employees will be offered membership of the premium section of the principal civil service pension scheme. I accept that that is at least as favourable as the Legal Services Commission’s own pension arrangements. The terms on which members of the LSC scheme can transfer their accrued rights to the civil service pension scheme will no doubt be set out in the transfer scheme contemplated in schedule 4. Will the Minister confirm that my understanding of the position is correct?
If the TUPE regulations and the acquired rights directive that lies behind them apply, the current early retirement and severance arrangements that apply to LSC employees would continue to apply to them post-transfer. That is what the TUPE regulations and the directive require, and those arrangements provide for the early payment of enhanced pensions if an employee over the age of 50 is made redundant. If the Cabinet Office statement of practice to which I alluded earlier is to be honoured, those rights will continue to apply post-transfer. I would be grateful if the Minister confirmed whether they will. If he cannot do so this afternoon, I would be most grateful if he would write to me on that point.
I speak in support of amendment 116, which would delete clause 12 from the Bill. It is with regret that I will keep my comments extremely brief. Some of the matters discussed today should really have been discussed on Monday. This regret is most keenly felt because the parents of Jane Clough are in the Gallery and had hoped to see us debate changes to bail.
Clause 12, which would allow the Government, based on either a means test or a an interest of justice test, to choose not to provide an arrested person with an independent legal adviser. The powers that the Government seek to gain were not subject to consultation and have generated significant controversy. It is not just Labour that opposes this clause. Members of all parties oppose it. The right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) spoke eloquently against it in Committee and again today. Others who have spoken against it include my hon. Friends the Members for Bolton South East (Yasmin Qureshi), for Islington North (Jeremy Corbyn) and for Kingston upon Hull East (Karl Turner), and the hon. Members for Ipswich (Ben Gummer), for Dewsbury (Simon Reevell), for Edinburgh West (Mike Crockart), and the right hon. Members for Carshalton and Wallington (Tom Brake) and for Bermondsey and Old Southwark (Simon Hughes). Some Tory Back Benchers have told us that they, too, oppose it. The Liberal Democrats have signed the amendment, for which we are grateful.
On this issue, however, the Minister appears to be against the clause. He said to the legal action group conference:
“I am pleased to say we have no intention to take legal help away from the police station.”
It appears, however, that the Secretary of State for Justice is embarrassed by that. He tried to blame it on Labour, saying that it was one of our proposals. A few weeks later, after the bemused Labour Front-Bench team checked with the House of Commons Library, the Secretary of State’s spokesman issued the following statement:
“The remark was made in error by the Justice Secretary during the Second Reading debate. The provisions in clause 12(3)(a) and (b) are new and, so far as I know, there have not been similar provisions in any previous Bills that did not pass into legislation.”
What a shambles—but there is more!
In the Public Bill Committee, the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly) subsequently said:
“My opinion is that as things stand, the practicalities are the greatest stumbling block, and costs could be significant.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 8 September 2011; c. 437.]
This might well be the first time a Minister has argued against his own legislation while seeking to enact it.
There was a time when people did not have access to a lawyer on arrest. Injustice after injustice propelled Parliament into action. It was, in fact, the previous Conservative Government—one who included the right hon. and learned Member for Rushcliffe (Mr Clarke)—who enacted the Police and Criminal Evidence Act 1984, which for the first time provided a suspect in police custody with a statutory right to legal advice. A textbook on police law explains:
“By section 58 of PACE, a person arrested and held in police custody is entitled, if he so requests, to consult a solicitor privately at any time.”
I am deeply concerned. In Committee, the Minister—whose conflicts of opinion match his alleged conflicts of interest—changed his mind again. Having said earlier
“I am pleased to say we have no intention to take away legal help from the police station”,
he said in Committee:
“I am not asking the Committee’s permission to implement means-testing. I am asking for permission to introduce flexibility into the Bill, so that at a later stage it could be considered, subject to full consultation.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 8 September 2011; c. 436.]
We know what the Government’s consultations are like. There were 5,000 responses to their consultation on legal aid, and they ignored them all.
At present, police station advice is provided free to anyone who is arrested. What takes place in the police station often determines how the case will proceed, and whether or not the police decide to lay charges.
I congratulate my hon. Friend on her speech so far. Does she agree that the Government are being penny wise and pound foolish? Their proposals present the prospect of many miscarriages of justice, which could ultimately prove very costly for them to sort out.
I could not have put it better myself.
It is essential for people who are detained in police custody to have access to free, independent legal advice, not only because they are at their most vulnerable and because evidence obtained from people in custody may be inadmissible if they have not had access to independent legal advice, but because the presence of a solicitor makes a significant difference to the fairness of the investigation and the subsequent smooth progress of the case. It would therefore be utterly inappropriate to introduce a merit test that goes beyond the fact of arrest.
As for a means test, it would in practice deprive many people who failed it of their right to a lawyer, as they would not feel able to afford to pay privately. However, that is not the only reason for not introducing such a test. Applying it would inevitably introduce delay in the process and prevent the police from proceeding as quickly as they would wish. Clients who are in police custody will not have access to documents with which to verify their entitlements, and clients who do not pass the means test are in no position to instruct the solicitor of their choice on a private basis, because they cannot pick and choose and cannot argue about terms and conditions. In short, they will be completely disfranchised, and in the most terrifying position in which the average citizen can find himself.
It should be clear by now that we oppose the new clause. It is no good hoping and praying, as the Liberal Democrats keep doing, that it will be repealed in another place. I urge all Members to join us in the Lobby when we press it to a vote—unless, of course, the Minister has the sense to withdraw it.
I welcome the hon. Member for Darlington (Mrs Chapman) on the occasion of her first outing at the Dispatch Box.
Most of what was said by the hon. Member for Hammersmith (Mr Slaughter) concerned the scope of civil legal aid, and was therefore not directly covered by the new clauses and amendments. It would have been good if he had discussed all the amendments that he had tabled, but he could not even do that. However, he certainly showed us once again that he knows how to spend taxpayers’ money, but not how to save it. He mentioned only one saving, when he said that he would have proceeded with criminal contract competition to save money rather than cutting social welfare law. Criminal competition in line with Labour’s model would have secured a very small reduction in the £180 million spent on police station advice—a reduction of only about 10%—which is not really enough. The hon. Gentleman will have to say where else he would make cuts. When Labour tried to address contracting, it failed, and it had to pull its contracting proposals in 2009.
Amendment 123, to which the hon. Member for Hammersmith spoke, is intended to alter the provisions in relation to the independence of the director of legal aid casework. That subject was debated substantially in Committee, but having heard the hon. Gentleman speak about it again, I still fail to understand the rationale behind the amendment, and, as I will explain, I consider it unnecessary. Let me briefly explain the role and key functions of the director, and also explain why I believe that independence is important and why it is already enshrined in the Bill.
Under the provisions, the Lord Chancellor is obliged to appoint a civil servant as a statutory office holder who will be responsible for making funding decisions in individual cases, as well as funding decisions in relation to exceptional case applications under the Bill. The statutory office holder is to be known as the director of legal aid casework. The Lord Chancellor is also obliged to provide civil servants to assist the director in carrying out their functions.
Under the new structural arrangements, clause 4 is potentially the most important provision. It ensures that the director has independence in making funding decisions, and is free from any political interference in making those decisions. That independence is enshrined specifically by subsection (4), which the hon. Member for Hammersmith wishes to delete, and which prohibits the Lord Chancellor from giving guidance or directions in individual cases. There are provisions in the clause that oblige the director to comply with directions given by the Lord Chancellor and to have regard to guidance issued by the Lord Chancellor, but crucially they cannot relate to individual cases.
The protection of the director against interference in individual cases is an important safeguard. The Bill already establishes the director in a way that maintains and protects the director’s independence of decision making. The director is a separate office from the Lord Chancellor created by statute. I therefore believe that the Bill already establishes a proper role for the director, free from any political interference in individual cases. I therefore urge the hon. Gentleman to withdraw the amendment.
On a point of order, Mr Deputy Speaker. I want to ask the Minister whether progress has been made on introducing a clause that would allow an appeal against the granting of bail. A concession was given in Committee, and several Members have tabled amendments, but we will not reach them today. Will the Minister update us?
I shall now turn to amendments 69, 70 and 71, tabled by the hon. Member for Stretford and Urmston (Kate Green), which address pensions and compensation.
Amendment 69 looks to ensure that Legal Services Commission employees transferring to the civil service are treated fairly. As drafted, the Bill and commitment between the Ministry of Justice and the LSC will achieve that. The Ministry is committed to ensuring that transferring staff are not put in a less favourable position than that of existing civil servants. The Bill protects LSC employees’ terms and conditions at the point of transfer, with the exception of those for pensions and compensation. The Bill also protects employees’ length of service.
When LSC employees transfer to the civil service, they will be enrolled as members of the premium section of the principal civil service pension scheme. The Government Actuary’s Department has determined that that scheme is “broadly comparable” to the existing LSC pension offer. Broad comparability is the standard defined by the Cabinet Office for the pension offer for staff transferred to organisations within the public sector. LSC staff will be able to choose whether to move any entitlement built up in the LSC scheme to the civil service pension scheme, or whether to leave it within the LSC scheme. Those arrangements have been communicated to LSC employees and their representatives. I will write to the hon. Lady on the TUPE point.
New clause 17 was moved by the hon. Member for Makerfield (Yvonne Fovargue). Her significant experience in the field became clear, as it also did in Committee. Many Members spoke to the new clause, including the hon. Members for Bolton South East (Yasmin Qureshi), for Islington North (Jeremy Corbyn) and for Walsall South (Valerie Vaz), the right hon. Member for Lewisham, Deptford (Joan Ruddock), my hon. Friends the Members for Eastbourne (Stephen Lloyd) and for Bradford East (Mr Ward) and my right hon. Friend the Member for Carshalton and Wallington (Tom Brake).
The new clause is very broad and would widen the scope of legal aid and increase its cost at a time when we are seeking to focus funding on the highest priority cases. It would have the effect of bringing into scope areas which are not covered in schedule 1—and which we intend no longer to fund—by virtue of their interconnected and complex nature. We have undertaken a comprehensive consultation on legal aid with published impact and equality assessments, and we have received almost 5,000 responses. As my right hon. Friend the Member for Carshalton and Wallington pointed out, cases will arise where it will be difficult to separate two or more legal issues in terms of funding. Under the current legal aid scheme, there are provisions in the funding code to cover mixed cases, where the case is partly in and partly out of scope. Those provisions allow funding of the whole case in certain circumstances, and in others they allow funding for aspects of the case. I am pleased to confirm to my right hon. Friend that paragraph 39 of schedule 1 ensures similar appropriate provision in the new scheme. We consider that that approach provides a more proportionate means of dealing with interconnected matters than the new clause proposed by the hon. Member for Makerfield.
Leaving aside the technicalities, I appreciate that various right hon. and hon. Members have used the new clause as a hook to debate admittedly important issues on the scope of social welfare law and legal aid. As anyone who attended the Committee will know, that area was of significant concern to all hon. Members, not only as a stand-alone issue, but in its interaction with the not-for-profit provision. The Government have already made a number of changes to our proposals in the area of social welfare law following consultation, which shows that we are aware of concerns and have been listening. Those changes include: retaining special educational needs cases; expanding the range of debt matters; and retaining unlawful eviction cases in scope. We will also still be spending £50 million on social welfare law post-reforms. I shall address the not-for-profit sector, but I take this opportunity to assure hon. Members that, as this Bill heads to the other place, we will continue to listen and engage on this important issue. For the reasons I have given, therefore, I urge the hon. Lady not to press her new clause to a Division.
On not-for-profit organisations, I wish to address points made by the hon. Member for Makerfield, my right hon. Friend the Member for Carshalton and Wallington, the hon. Members for Bradford East and for Walsall South, and the right hon. Member for Bermondsey and Old Southwark (Simon Hughes). In order to do so, I shall speak to the new clause tabled by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards), although it should be noted that it was debated in Committee and his amendment 162 also covers ground debated then.
The primary purpose of new clause 43, as in subsection (1), is to enable funding to be made available for advice on areas of law that would otherwise have been taken out of scope. However, the important qualification to that is in the definitional provision in subsection (5), which specifies that “civil legal advice” does not include representation for the purposes of proceedings. As such, the provision is limited to the “legal help” level of service, which encompasses the range of early advice offered, in particular, by the not-for-profit sector. Amendment 162 is very similar in nature and seeks to provide funding for out of scope areas under schedule 1 at the “legal help” level.
New clause 43 and amendment 162 are unnecessary. Let me start by reiterating my statements from Committee, where I said clearly that I greatly admire the work of the UK’s not-for-profit advice centres and recognise that they are an important national asset. I can tell the right hon. Member for Lewisham, Deptford that I very much value the advice they provide to my constituents, and I am sure that all hon. Members feel similarly. Throughout all the parliamentary debates thus far on changes to legal aid, the value and esteem that MPs and local communities place on their local advice centres has been made very clear.
In that context, I would like to deal head-on with the issue that hon. Members have raised about the provision of early advice. Let me make it clear that, as I said in Committee, I strongly agree with the argument that many people with disputes or grievances need early, good-quality general advice, and not necessarily the expertise of specialist lawyers. I acknowledge hon. Members' points and intuitively I agree with the hon. Member for Makerfield that some early advice may well have a preventive benefit in avoiding downstream costs. However, changes to legal aid should not of themselves undermine the provision of general advice. As a matter of principle, legal aid is money that has been intended for specialist advice, not for cross-subsidising other activities, as the amendments appear to provide for. I say to the hon. Member for Hampstead and Kilburn (Glenda Jackson) that, as a matter of practice, legal aid represents only one of several income streams for many organisations. For example, 85% of citizens advice bureaux funding comes from other sources, with half of all bureaux getting no legal aid funding whatsoever.
The Government share the views raised by hon. Members and want to see a robust and sustainable not-for-profit advice sector. We have heard and considered carefully the concerns about the risks that a combination of funding changes presents, and we intend to keep the conversation with the advice sector going. The hon. Member for Stretford and Urmston (Kate Green) asked about this area, and I can tell her that the £107 million transition fund made available last December is testament to a pan-government commitment to general, practical advice that empowers individuals in resolving their issues.
In addition, the Lord Chancellor announced £20 million for this financial year to support not-for-profit agencies delivering front-line services. Both citizens advice bureaux and advice centres more widely will be able to bid for that. Work between Departments on the administration of the fund is proceeding well. I hope and expect that the Cabinet Office will make an announcement shortly to provide the detailed terms of the fund. A review of free advice centres will be launched to ensure that we are doing all we can to support the sector. The review will start in early November and conclude early in the new year. It will look at the future funding for these services and likely levels of demand, and will focus on what Government can do to help the sector.
My right hon. Friends the Members for Bermondsey and Old Southwark and for Carshalton and Wallington and my hon. Friend the Member for Eastbourne all spoke about help for complicated benefits advice. They will appreciate that that is very much to do with identifying what should be dealt with as legal advice and what should be dealt with as early general advice. It is this type of issue that the review will need to cover, so yes, we will be looking carefully at these issues not again, but on an ongoing basis.
Subsection (2) of new clause 43 seeks to provide the Lord Chancellor with a power to enter into arrangements regarding the funding and delivery of services, and specifies the nature of the funding arrangements that the Lord Chancellor may enter into. This is an unnecessary amendment because the Lord Chancellor enjoys wide powers to enter into any arrangements under clause 2, pursuant to his duty to provide legal aid under clause 1. I therefore urge the hon. Member for Carmarthen East and Dinefwr to withdraw his amendments.
Let me agree with my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith)—my right hon. Friend the Member for Carshalton and Wallington, and the hon. Members for Hammersmith and for Makerfield made the same sort of points—that the Departments of State need to make better decisions at an earlier stage, leading to fewer appeals. I can tell hon. Members that I have been working closely with Ministers in the relevant Departments to that end and I will continue to do so.
The hon. Member for Walsall South said that she was concerned about the removal of education. I can confirm that we will now retain legal aid for special educational needs and discrimination matters relating to the contravention of the Equality Act 2010.
The hon. Members for Hammersmith and for Makerfield spoke about welfare benefits law being complex and asked how claimants could prepare their own tribunal applications. In most cases individuals will be able to appeal to the first tier social security and child support tribunal without formal legal assistance. The appellant is required only to provide reasons for disagreeing with the decision in plain language. According to the 2007-08 report by the president of the tribunal, it is a regular theme at the tribunal that DWP decisions are most commonly overturned because the tribunal elicits additional information from the appellant, rather than through legal arguments. So success is clearly not generally dependent on the appellant receiving legal advice.
Finally, on clause 12, many points were made by my hon. Friend the Member for Edinburgh West (Mike Crockart), my right hon. Friend the Member for Carshalton and Wallington, the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), the hon. Member for Kingston upon Hull East (Karl Turner), my hon. Friend the Member for Ipswich (Ben Gummer), my right hon. Friend the Member for Bermondsey and Old Southwark, my hon. Friend the Member for Dewsbury (Simon Reevell), and the hon. Members for Islington North and for Bolton South East. The final series of amendments—90, 104, 116, 125 and 148—seek to amend clause 12, which deals with legal aid determination for individuals arrested and held in custody in a police station or other premises.
I should point out to my hon. Friend the Member for Edinburgh West and the hon. Member for Darlington who spoke to the amendment that amendment 116 would remove clause 12 entirely, which would mean that the Bill would make no provision at all for individuals held in custody at a police station or other premises to be provided with initial advice and initial assistance. Surely that is not the hon. Lady’s or any other hon. Member’s intention. She may therefore wish to reconsider whether a Division is appropriate on the amendment.
Many right hon. and hon. Members made serious and appropriate points. Having heard what has been said and having considered the issue, I appreciate that there are many deeply held concerns across the House and more widely on both the principle and the practicality of means-testing for advice and assistance for those in police custody and in relation to the concept of contingent legislation, as my hon. Friend the Member for Ipswich said. I can confirm that we will, therefore, carefully review our approach to these clause issues as the Bill goes through its stages in another place.
On a point of order, Mr Deputy Speaker. The hon. Member for Dewsbury (Simon Reevell) referred in his remarks to claims that the previous Government planned to legislate for means-testing in police stations. The Lord Chancellor wrote to my right hon. Friend the shadow Secretary of State on 2 August. Will the Government confirm that he wrote to apologise and that the letter will appear in the Library?
That is not a point of order, but the hon. Gentleman has certainly got it on the record.
Question put and agreed to.
New clause 4 accordingly read a Second time, and added to the Bill.
New Clause 9
Northern Ireland: information about financial resources
‘Schedule [Northern Ireland: information about financial resources] (Northern Ireland: information about financial resources) has effect.’.—(Mr Djanogly.)
Brought up, read the First and Second time, and added to the Bill.
New Clause 17
Extension of scope of legal aid in complex cases
‘(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) is satisfied.
(2) This subsection is satisfied where the Director—
(a) has made a complex case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
(3) For the purposes of subsection (2), a complex case determination is a determination—
(a) that the individual has complex, interconnected needs in relation to which the individual requires comprehensive civil legal services, and
(b) not all of those civil legal services would otherwise be available to the individual because they do not all fall within the scope of Schedule 1.’.—(Yvonne Fovargue.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
New Schedule 3
‘Northern Ireland: information about financial resources
1 (1) The relevant authority may make an information request to—
(a) the Secretary of State,
(b) a relevant Northern Ireland Department, or
(c) the Commissioners for Her Majesty’s Revenue and Customs (“the Commissioners”).
(2) An information request may be made under this paragraph only for the purposes of facilitating a determination about an individual’s financial resources for the purposes of —
(a) the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)), or
(b) the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435) (N.I. 10)).
(3) An information request made to the Secretary of State or a relevant Northern Ireland Department under this paragraph may request the disclosure of some or all of the following information—
(a) a relevant individual’s full name and any previous names;
(b) a relevant individual’s address and any previous addresses;
(c) a relevant individual’s date of birth;
(d) a relevant individual’s national insurance number;
(e) a relevant individual’s benefit status at a time specified in the request;
(f) information of a prescribed description.
(4) An information request made to the Commissioners under this paragraph may request the disclosure of some or all of the following information—
(a) whether or not a relevant individual is employed or was employed at a time specified in the request;
(b) the name and address of the employer;
(c) whether or not a relevant individual is carrying on a business, trade or profession or was doing so at a time specified in the request;
(d) the name under which it is or was carried on;
(e) the address of any premises used for the purposes of carrying it on;
(f) a relevant individual’s national insurance number;
(g) a relevant individual’s benefit status at a time specified in the request;
(h) information of a prescribed description.
(5) The information that may be prescribed under sub-paragraphs (3)(f) and (4)(h) includes, in particular, information relating to—
(a) prescribed income of a relevant individual for a prescribed period, and
(b) prescribed capital of a relevant individual.
(6) Information may not be prescribed under sub-paragraph (4)(h) without the Commissioners’ consent.
(7) The Secretary of State, the relevant Northern Ireland Departments and the Commissioners may disclose to the relevant authority information specified in an information request made under this paragraph.
(8) In this paragraph—
“benefit status”, in relation to an individual, means whether or not the individual is in receipt of a prescribed benefit or benefits and, if so—
(a) which benefit or benefits the individual is receiving,
(b) whether the individual is entitled to the benefit or benefits alone or jointly,
(c) in prescribed cases, the amount the individual is receiving by way of the benefit (or each of the benefits) (“the benefit amount”), and
(d) in prescribed cases, where the benefit consists of a number of elements, what those elements are and the amount included in respect of each element in calculating the benefit amount;
“financial resources”, in relation to an individual, includes an individual’s means, disposable income and disposable capital;
“the relevant authority” means—
(a) a prescribed person, or
(b) in relation to circumstances for which no person is prescribed, the chief executive of the Northern Ireland Legal Services Commission;
“a relevant individual”, in relation to an information request under this paragraph for the purposes of a determination about an individual’s financial resources, means—
(a) that individual, and
(b) any other individual whose financial resources are or may be relevant for the purposes of the determination;
“relevant Northern Ireland Department” means the Department for Social Development in Northern Ireland or the Department of Finance and Personnel in Northern Ireland.
Restrictions on disclosing information
2 (1) A person to whom information is disclosed under paragraph 1 of this Schedule or this sub-paragraph may disclose the information to any person to whom its disclosure is necessary or expedient in connection with facilitating a determination described in paragraph 1(2).
(2) A person to whom such information is disclosed must not—
(a) disclose the information other than in accordance with sub-paragraph (1), or
(b) use the information other than for the purpose of facilitating a determination described in paragraph 1(2).
(3) Sub-paragraph (2) does not prevent—
(a) the disclosure of information in accordance with an enactment or an order of a court,
(b) the disclosure of information for the purposes of the investigation or prosecution of an offence (or suspected offence) under the law of England and Wales or Northern Ireland or any other jurisdiction, except as otherwise prescribed,
(c) the disclosure of information for the purposes of instituting, or otherwise for the purposes of, proceedings before a court, or
(d) the disclosure of information which has previously been lawfully disclosed to the public.
(4) A person who discloses or uses information in contravention of this paragraph is guilty of an offence and liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both);
(b) on summary conviction—
(i) in England and Wales, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and
(ii) in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both).
(5) It is a defence for a person charged with an offence under this paragraph to prove that the person reasonably believed that the disclosure or use was lawful.
(6) In this paragraph “enactment” includes—
(a) an enactment contained subordinate legislation (within the meaning of the Interpretation Act 1978), and
(b) an enactment contained in, or in an instrument made under, an Act or Measure of the National Assembly for Wales or Northern Ireland legislation.
(7) In relation to an offence under this paragraph committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in sub-paragraph (4)(b)(i) to 12 months has effect as if it were a reference to 6 months.
Power to make consequential and supplementary provision etc
3 (1) The Department of Justice in Northern Ireland may by regulations make consequential, supplementary, incidental or transitional provision in relation to this Schedule extending to Northern Ireland.
(2) The regulations may, in particular—
(a) amend, repeal, revoke or otherwise modify Northern Ireland legislation passed before this Schedule comes into force or an instrument made under such legislation, and
(b) include transitory or saving provision.
4 (1) In this Schedule “prescribed” means prescribed by regulations made by the Department of Justice in Northern Ireland.
(2) The powers under this Schedule to make regulations are exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).
(3) Regulations under this Schedule are subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954, subject to sub-paragraph (4).
(4) The following regulations may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly—
(a) the first regulations under paragraph 1, and
(b) regulations under paragraph 3 that amend or repeal Northern Ireland legislation (whether alone or with other provision).
(5) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of sub-paragraph (4) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment (as defined in that Act).
(6) Subsections (1) to (3) of section 38 apply in relation to regulations made under paragraph 1 or 2 of this Schedule as they apply in relation to regulations made by the Lord Chancellor under this Part.’.—(Mr Djanogly.)
Brought up, read the First and Second time, and added to the Bill.
Advice and Assistance for Individuals in Custody
Amendment proposed: 116, page 8, line 29, leave out Clause 12.—(Mr Slaughter.)
Question put, That the amendment be made.
Restriction on disclosure of information about financial resources
Amendments made: 1, page 24, line 26, after ‘conviction’, insert ‘—
(i) in England and Wales, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and
(ii) in Northern Ireland’.
Amendment 2, page 24, line 35, at end insert—
‘( ) In relation to an offence under this section committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (4)(b)(i) to 12 months has effect as if it were a reference to 6 months.’.—(Mr Djanogly.)
Orders, regulations and directions
Amendment made: 25, page 28, line 18, leave out ‘modify’ and insert ‘amend or repeal a provision of’.—(Mr Djanogly.)
Amendments made: 26, page 28, line 35, after ‘regulations’ insert ‘(except in Schedule [Northern Ireland: information about financial resources])’.
Amendment 27, page 28, line 37 [Clause 39], at end insert ‘(except in Schedule [Northern Ireland: information about financial resources])’.—(Mr Djanogly.)
Transfer of employees and property etc of Legal Services Commission
Amendments made: 64, page 131, line 8, at end insert—
‘(6A) A transfer scheme may, so far as is necessary for giving effect to that scheme, provide that an enactment that applies in relation to compensation schemes or occupational pension schemes applies to a compensation scheme or occupational pension scheme that is the subject of the transfer scheme, the members of such a scheme or the transferee with modifications specified in the transfer scheme.
(6B) A transfer scheme may—
(a) amend or otherwise modify a compensation scheme that is the subject of the transfer scheme, and
(b) create, modify or remove rights, powers, duties or liabilities under or in connection with such a scheme.
(6C) The power under sub-paragraph (6B) includes power to amend or otherwise modify any instrument relating to the constitution, management or operation of a compensation scheme.
(6D) Transfer schemes amending or otherwise modifying a compensation scheme have effect in spite of any provision (of any nature) which would otherwise prevent or restrict the amendment or modification.
(6E) A transfer scheme may include consequential, incidental, supplementary, transitional, transitory and saving provision.’.
Amendment 65, page 131, line 15, at end insert—
‘Power to merge LSC occupational pension schemes
4A (1) The Lord Chancellor may make a scheme providing for the merger of LSC occupational pension schemes.
(2) A scheme under this paragraph may in particular—
(a) provide for the assets and liabilities of one LSC occupational pension scheme to become assets and liabilities of another,
(b) create, modify or remove rights, powers, duties or liabilities under or in connection with an LSC occupational pension scheme,
(c) provide for the winding up of an LSC occupational pension scheme,
(d) provide for references to one LSC occupational pension scheme in a document, including an enactment, to have effect as references to another, and
(e) include consequential, incidental, supplementary, transitional, transitory and saving provision.
(3) A scheme under this paragraph may in particular amend or otherwise modify—
(a) the trust deed of an LSC occupational pension scheme,
(b) rules of an LSC occupational pension scheme, and
(c) any other instrument relating to the constitution, management or operation of an LSC occupational pension scheme.
(4) A scheme under this paragraph must ensure that the merger of the LSC occupational pension schemes does not, to any extent, deprive members of the LSC occupational pension schemes, or other beneficiaries under those schemes, of rights that accrue to them under those schemes before the merger takes effect.
(5) Subject to sub-paragraph (4), a scheme under this paragraph has effect in spite of any provision (of any nature) which would otherwise prevent the merger of the LSC occupational pension schemes.
(6) In this paragraph—
“LSC occupational pension scheme” means an occupational pension scheme under which—
(a) the LSC has rights, powers, duties or liabilities, or
(b) the Lord Chancellor or the Secretary of State has rights, powers, duties or liabilities by virtue of a scheme under paragraph 4(3);
“occupational pension scheme” has the same meaning as in the Pension Schemes Act 1993.’.
Amendment 137, page 133, line 3, leave out ‘or transitional’ and insert ‘transitional, transitory or saving’.
Amendment 66, page 133, line 3, after ‘with’, insert ‘—
Amendment 67, page 133, line 4, after ‘by’, insert ‘this Schedule’.
Amendment 68, page 133, line 4, after ‘or’, insert—
(b) schemes made’.
Amendment 138, page 133, line 7, leave out from ‘Schedule’ to end of line 8.—(Mr Djanogly.)
Amendment made: 19, page 144, line 31, at end insert—
‘Criminal Justice Act 2003 (c. 44)
In Schedule 26, paragraph 51.’.
Conditional fee agreements: success fees
With this it will be convenient to discuss the following:
Amendment 150, page 29, line 36, at end insert—
‘(4A) The amendments made by subsections (2) and (4) do not apply in relation to proceedings which include a claim for damages for loss or bodily injury resulting from exposure to a harmful substance or process where the claim is made against a person who—
(a) carries on business in more than one country, or
(b) owns (wholly or partly) one or more businesses carried on in more than one country or in different countries.’.
Amendment 164, page 29, line 36, at end insert—
‘(4A) The amendments made by subsections (2) and (4) do not apply in relation to a success fee payable under a conditional fee agreement made in relation to—
(a) any proceedings in relation to a claim for—
(iii) misuse of private information;
(b) any proceedings arising out of the same cause of action as any proceedings to which sub-paragraph (a) refers.’.
Amendment 163, page 29, line 41, at end insert—
‘(7) The amendments made by subsections (2) and (4) do not apply in relation to a success fee payable under a conditional fee agreement made in relation to—
(a) any proceedings based on a claim of defamation; or
(b) any proceedings based on a claim of privacy under Article 8 of the European Convention on Human Rights; or
(c) any proceedings arising out of the same cause of action as any proceedings to which paragraphs (a) or (b) refer.’.
Amendment 22, page 31, line 1, leave out clause 43.
Amendment 151, in clause 43, page 31, line 45, at end insert—
‘(6) This section does not apply in relation to a costs order made in favour of a party to proceedings which include a claim for damages for loss or bodily injury resulting from exposure to a harmful substance or process where the claim is made against a person who—
(a) carries on business in more than one country, or
(b) owns (wholly or partly) one or more businesses carried on in more than one country or in different countries.’.
Amendment 165, in clause 43, page 32, line 4, at end insert—
‘(4) The amendments made by this section do not apply in relation to a costs order made in favour of a party to proceedings in a cause of action in relation to a claim for—
(c) misuse of private information.’.
Amendment 72, page 32, line 5, leave out clause 44.
New clause 39—Road traffic accident pre-action protocol—
‘(1) The Table in Rule 45.29 of the Civil Procedure Rules 1998 (SI 1998/3132) (Amount of fixed costs under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents) is amended as follows.
(2) The figure for Stage 1 shall be £200.
(3) The figure for Stage 2 shall be £400.
(4) The figure for Stage 3 for Type A fixed costs shall be £125.
(5) The figure for Stage 3 for Type B fixed costs shall be £125.
(6) Any further amendment to the Table shall not be made by the Civil Procedure Rule Committee but may be made by the Lord Chancellor by rules made by statutory instrument and may not be made until a draft of the rules has been laid before and approved by resolution of both Houses of Parliament.’.
This is an important group of amendments to part 2 of the Bill, which deals with a complex and vital area of access to justice. Because there are only 20 minutes left to debate this group, and I want to be fair to the Minister and give him 10 minutes to reply, I shall speak quickly in the hope of getting through the main part of my argument. I should make it clear at the outset that I wish to press to a vote amendment 21, which would undo the destruction of conditional fee agreements that the Government are pushing through in the Bill. I also ask, with the leave of my hon. Friend the Member for Rhondda (Chris Bryant), the lead signatory to amendment 163, that we press that amendment to a vote.
Conditional fee agreements, also known as no win, no fee agreements, were brought in by a Conservative Government to preserve access to justice for those on moderate means at a time when vast areas were being removed from the scope of legal aid and eligibility criteria were being removed. The provisions were amended, with a remarkable lack of contention from the Conservative Opposition, in the Access to Justice Act 1999, to create their modern form.
The idea of contingency fee agreements was to create a viable market in legal services by introducing success fees paid by losing defendants—wrongdoers, in other words—to compensate lawyers for the cases that they lost, for which, of course, they received no fees. For lawyers, that form of payment by results meant not that they would take on spurious cases, but that they were allowed to take on cases that might be 75:25 or 50:50. That has created a system that works, for the main part, very well. It has created a viable market in legal services and permitted access to justice for millions since it was introduced.
What sort of people have availed themselves of contingency fee agreements? More than half of those who have used them have had an income below £25,000 a year and only 18% have had an income of more than £40,000 a year. Government Members carp on about footballers and models using them, but the average claimant is the average constituent.
How do the Government’s proposals work? First, winning claimants will lose. Victims will have to pay the costs of their insurance and their lawyer’s success fees from their damages—up to 25% of damages, aside from damages for future care, can be taken by the lawyer, and the insurance premium will take up even more of those damages, perhaps wiping them out altogether. To make up for part of those losses, the Government plan a 10% increase in damages for pain, suffering and loss of amenity. Simple maths should be sufficient to show that that will not make up for all losses.
Losing claimants, including those bringing speculative and nuisance claims, will gain. They will benefit because it is unlikely that they will have to pay the costs of the winning defendant—that is part of the perverse, qualified one-way cost-shifting scheme that the Government intend to introduce when the Bill passes.
Losing defendants—wrongdoers, in other words—and their insurers will gain. Wrongdoers will benefit, because they do not have to pay the cost of after-the-event insurance or the victim’s lawyer’s success fees, thus limiting their liabilities and those of their insurers. Winning defendants will lose out. A winning defendant will no longer be able to reclaim the cost of their defence, thanks to qualified one-way cost shifting. To summarise, winners lose and losers win. That is simply wrong.
There was a time when the Conservative party worried about access to justice, but now it appears to be nothing more than the parliamentary wing of the insurance lobby, which according to an investigation by The Guardian has donated £4.9 million to the Tories since the Prime Minister became leader.
I have spent the past few months speaking to victims who have used contingency fee agreements to get justice. I have heard them tell me how our justice system helped them, and their fears that others who suffer in future will not get the help they need. A number of areas of law will be badly—
Will the hon. Gentleman give way?
I would love to give way to the Secretary of State, but I have very little time—[Interruption.] If I have time at the end I will do so.
A number of areas of law will be badly affected by this legislation, and I should like briefly to touch on a few of them—[Hon. Members: Give way!]
I am sorry that the hon. Gentleman had to be bullied to give way to me, but there we are. I do not want him to exaggerate his case. No win, no fee was introduced by the Major Government and worked perfectly satisfactorily until the previous Government amended it. We are talking about how much winning lawyers are paid. The principles of access to justice and of no win, no fee are agreed on a bipartisan basis. They are not threatened at all by the Bill.
I began my speech by informing the house how contingency fee agreements came about. Because the Secretary of State has merely repeated that, I will penalise the Minister by taking a minute off his time.
The Secretary of State believes that there are faults in the current system whereby lawyers are unjustly enriched—he may be right, and my right hon. Friend the Member for Blackburn (Mr Straw) and I, and many other hon. Members, would probably agree with him—but let us cure those faults. Let us not throw the baby out with the bathwater.
Some categories of proceedings are particularly expensive to advance, yet lead to relatively minor awards. For instance, the largest award in a privacy case is £60,000, and below that, £13,000. The vast majority of libel cases end up with awards of less than £100,000. The problem is that in those cases, families such as the Dowlers, and people such as Christopher Jefferies, who was on the radio this morning, would have no chance of access to justice.
That is why I will be very pleased to support amendment 163, which is in my hon. Friend’s name. As I have indicated, there are some cases—libel is a good example—when damages are small, but the defamation is important. Under the Secretary of State’s scheme, more than the sum of the damages could therefore be taken in fees.
Let me go through other areas of law, and I will come to privacy at the end if I have time. On clinical negligence, it is unavoidable that there will be good and bad doctors, just as there are good and bad in any profession. It is just and proper that compensation is paid to anyone harmed as a result of inaction, negligence or incompetence when a medical professional fails to live up to their obligations. I say that despite the fact that when the Secretary of State gave the figures, he conflated the cost of damages, claimant costs and defendant costs and pretended that they were a cost figure in themselves, for which he had to make another apology to my right hon. Friend the Member for Tooting (Sadiq Khan).
On professional negligence, taking on a professional is always risky. No one knows the system better. People are never 100% likely to win such cases. Without success fees to compensate for the risk, many such cases will not be brought in future. So who will lose out? It will be the first-time home buyer whose surveyor negligently fails to spot subsidence, the pensioner whose financial adviser negligently makes a high-risk investment, the hard-working small businessman whose accountant negligently fails to prepare accounts and lands him with a huge tax bill that he cannot pay, and the bereaved family whose probate solicitor takes three years to deal with the case and then charges huge fees. Those are the kinds of case that our constituents experience.
Business and human rights cases perhaps highlight the problems even more starkly. My hon. Friend the Member for Wigan (Lisa Nandy) has tabled an amendment, which I fear she will not have time to speak to, that addresses precisely this issue. It is backed by Amnesty International, the Catholic Fund for Overseas Development, Friends of the Earth and Martyn Day of Leigh Day and Co., who brought Trafigura to justice on behalf of 30,000 Côte d’Ivoirians who were poisoned by toxic waste.
I move on to employers’ liability and breach of duty by an employer. We have created some of the safest workplaces in the world in Britain, and our incidence of accidents at work is among the lowest in the world. That is thanks in large part to the labour and trade union movement, which has made it a priority over the past 100 years. In one fell swoop, victims will have their rights taken away and employers will be incentivised to act negligently and capriciously.
Insolvency practitioners—for whom even Her Majesty’s Revenue and Customs and the Insolvency Service are lobbying for an exemption—have told us that they will not be able to bring cases. Given that HMRC is the largest creditor, with 25% of all unsecured credit, the public purse will lose out by up to £200 million a year. It will actually cost us money to enact the Bill.
I will move on to industrial diseases. The Association of British Insurers, an organisation that the Minister knows well and has met many times, is still obstructing victims of pleural plaques to try to avoid paying out. In the Insurance Times, it described a recent ruling in favour of victims of pleural plaques as a “disappointment”.
Finally, in the minute or two I have left, I turn to privacy cases and the amendment in the name of my hon. Friend the Member for Rhondda. No one can forget the case of Milly Dowler. It remains a great source of anger throughout the country. When we heard that the phones of Milly’s parents, Bob and Sally, had been hacked by News International, we were all rightly outraged. We often hear about rich and powerful people having their privacy or reputation trashed by the press. However, there are thousands of cases that happen quietly to weak, vulnerable people who are exploited for cheap and tawdry scandal. Their only recourse is through the courts, and the only means to achieve justice is no win, no fee. The Dowlers bravely put their case to the Prime Minister. Without no win, no fee, they could never have taken on the leviathan of News International.
I will quote briefly from the Dowlers’ letter to the Prime Minister:
“What helped was the fact that we would be insured if we lost a case and the premium…would be taken from the other side if we won. Without that we would not have been able to start a case or even threaten it.
We were lucky that we fell under that system. We understand that the new law will affect thousands of people who want to sue News International and other newspapers. We had understood that you were on the side of the people not the press. Please do not change the law so that the ability to sue the papers is lost.”
They end by saying:
“We are sure you do not want to go down in history as the Prime Minister who took rights away from ordinary people”.
I put those comments to the Minister and the Secretary of State today. That is the question being asked of us. Do we want to go down as the Parliament that took rights away from ordinary people so that large companies could break the law and behave as they like, without people being able to challenge them?
Part 2 of the Bill is appalling. Access to justice is being destroyed. When the Minister challenged me earlier and said that I was talking about part 2 during our discussion of part 1, as so often he missed the point.
PPSs are allowed to make points of order. Throughout the proceedings on the Bill Opposition Front Benchers, particularly the hon. Member for Hammersmith (Mr Slaughter), have made points about the perceived failure of Government Front Benchers to declare their interests. However, the hon. Gentleman has failed to point out that on 119 separate occasions the Labour party has received donations from lawyers who make their money from success fees.
I was not talking about the Minister; I was talking about the Bill. I am not surprised that the Minister’s PPS is embarrassed by the Bill, after sitting through our proceedings in Committee.
The common link between parts 1 and 2 of the Bill is the destruction of access to justice in a way that we have not seen since the introduction of legal aid by a Labour Government after the second world war. The insurance industry is being given one of the biggest pay-offs in history which, as we know from experience, will go into the pockets of their directors and shareholders. While other aspects of this Bill display the startling incompetence of this Government, none shows their intent more truly than the provisions in part 2, which would give the whip hand to large public and private corporations, while taking rights away from ordinary people. What is the point in having rights if they cannot be enforced?
I ask the Liberal Democrats to look at amendment 21, which would deal with cases such as Trafigura and pleural plaques, and amendment 163, which would deal with cases such as that of Milly Dowler, and join us in the Lobby tonight.
Amendments 21, 22, 72, 163, 164 and 165 all seek to undermine a fundamental element of the package of reform of civil litigation funding and costs based on the report prepared on behalf of the judiciary by Sir Rupert Jackson and now included in this Bill—the abolition of recoverability of success fees and after-the-event insurance premiums. I must say that I am rather perplexed by the amendments as in Committee the hon. Member for Hammersmith (Mr Slaughter) agreed that the intention of part 2 is
“perfectly sound, and it is one with which we have a great deal of sympathy.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 13 September 2011; c. 501.]
I will also deal with new clause 39, which is on the related but slightly separate matter of recoverable costs for low-value road traffic accident claims.
It is worth emphasising, as the Justice Secretary has just said, that we are not proposing to end conditional fee agreements or no win, no fee deals. What we are addressing is the substantial legal costs that go to lawyers under the current no win, no fee regime. Our reforms are designed to make these legal costs more proportionate, while enabling meritorious claims to be brought. This applies equally to defamation and privacy claims and multinational claims as to other categories of case, but it is worth reminding ourselves of some of the disproportionate costs that have arisen and that emphasise the need for our reforms across the board.
The Minister referred specifically to defamation and privacy cases. The problem is that in the vast majority of cases—and in every single instance in privacy cases—the awards are so small that if there is no success fee, it will be completely uneconomic for a lawyer to come forward with a CFA. That may not be the Minister’s intention—I take him at his word—but the effect will be to stop CFAs in libel, defamation and privacy cases.
In some cases, where the balance is against, that perhaps should be the case. In Naomi Campbell’s defamation case against the Daily Mirror, she received damages of £3,500 but the total costs exceeded £1 million.
In relation to clinical negligence claims, which can of course include substantial damages in catastrophic injury cases, lawyers’ costs are about half of the total damages that are paid out. In 2009-10, for example, the NHS paid out £297 million in damages and £121 million in legal costs, over half of which were no win, no fee costs. One of the leading no win, no fee cases against a multinational company is that against Trafigura. In that case, the claimants’ legal costs were more than £100 million, but the damages recovered were only £30 million. As a result, 30,000 claimants in the Ivory Coast received damages of an average of only £1,000.
I will not—[Hon. Members: “Go on!”] I am afraid that I do not have time to give way.
It is these high legal costs which led to Sir Rupert Jackson’s review. Specifically in relation to defamation and privacy, it is these high legal costs which led to the right hon. Member for Blackburn (Mr Straw), when he was Justice Secretary, seeking to introduce similar changes to those we are now proposing to reduce excessive legal costs, but he mistakenly limited them only to defamation and privacy cases. In effect, that is the exact opposite of what the hon. Member for Rhondda (Chris Bryant) proposes in his amendment. The sands seem to have been shifting dramatically in the Labour camp on this issue.
New clause 39, tabled by the right hon. Member for Blackburn, would reduce the amount of fixed recoverable fees on the pre-action protocol for low-value road traffic accidents in the light of the impact of the ban on referral fees. The Department is now reviewing the situation, but to achieve this outcome does not require primary legislation. Instead, a reduction can be implemented through changes to the Civil Procedure Rules. I can give the commitment that we are looking at this. Indeed, my officials plan to consult on appropriate changes to the level of recoverable costs, and any changes will be placed before the Committee for approval. I can also tell him that I do not intend to go to all the trouble of stopping referral fees being paid to claims management companies, only to see those same fees staying with the lawyers rather than going back to consumers in lower insurance premiums or prices in the shops.
I shall take each amendment in turn. Amendment 21 would remove clause 41, the effect of which is to amend the Courts and Legal Services Act 1990 so that success fees under a conditional fee agreement will no longer be recoverable from a losing party in any civil proceedings. Amendment 22 would remove clause 43. I should make it clear that we have listened carefully to specific concerns about the abolition of recoverability of after-the-event insurance premiums in clinical negligence claims and the impact it would have on funding expert reports. Such reports, which can be expensive, are often necessary in establishing whether there is a case for commencing proceedings, which raises particular issues if recoverability of ATE insurance is abolished. In responding to these concerns, clause 43 provides, by way of exception, for the recoverability of premiums in respect of ATE insurance taken out to cover the cost of expert reports in clinical negligence cases.
Amendment 72 would remove clause 44, which abolishes the recoverability of the costs incurred by membership organisations, such as trade unions, of insuring themselves against the risk of paying costs to another party in the event of losing a claim. I strongly believe that the abolition of recoverability should apply equally to the arrangements for membership organisations in order to maintain a level playing field. Amendments 150 and 151 seek to allow the recoverability of success fees and ATE insurance premiums from a losing party in certain claims for damages against a person who carries on business in more than one country or who owns one or more businesses carried on in more than one country or in different countries.
I thank the Minister for finally recognising just how strongly so many of us on both sides of the House feel about this issue and how unfortunate it is that we have not been able to make the case today. Unfortunately, we have not had sufficient answers to make Members on both sides of the House feel that these cases will be able to continue. Will he therefore agree to meet a cross-party group of us before the Bill is sent to the other place, so that we can make at least make our case before the Bill becomes law?
The hon. Lady will be pleased to hear that I have met the Corporate Responsibility Coalition—CORE—and the solicitors who acted for Trafigura. I have acted for a number of people, and of course I shall be prepared and happy to receive additional representations from her.
We understand that the amendments seek to protect the rights of individuals in developing countries to claim damages against large multinational companies, but the amendments go much wider than that, and would provide that a losing defendant should pay the success fee and ATE insurance premium based on whether it is a multinational company, regardless of the nature of the claim or status of the claimant.
Given the concerns that I have been raising in relation to cases brought by claimants in developing countries, I shall concentrate my response on those cases. The amendments are neither necessary nor appropriate. The Government believe that it will still be possible to bring claims against multinational companies, once our CFA reforms are implemented, but—this is one of the major reasons for our reforms overall—we believe that the costs involved will be more proportionate to the sums in issue. What the proposals in the Bill seek to address is not the validity of the claims, but the iniquity of a system that can allow such disproportionate costs. It is worth emphasising that the current system of recoverable success fees and recoverable ATE insurance premiums, with the consequences for high civil costs, is not seen in any other jurisdiction in the world. CFAs will continue to be available, but the Bill also extends the funding options. The Government seek to allow damages-based agreements to be used for the first time to fund such claims. Group actions in particular are suited to DBAs, as legal representatives may recover their fees as a percentage of the damages awarded to each successful claimant.
Amendments 163, 164 and 165 seek to ensure that success fees continue to be recoverable in defamation and privacy claims. The Government are aware of concerns about access to justice and the ability of those with modest means to pursue claims, often against powerful organisations. I am aware that there are slight definitional differences, which I will not go into. However, all hon. Members will be aware of one of the most high-profile cases, involving the Dowler family, who were successful in their claim against News International.
Debate interrupted (Programme Order, 31 October).
The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the amendment be made.
The Deputy Speaker then put forthwith the Questions necessary for the disposal of business to be concluded at that time (Standing Order No. 83E).
Amendment proposed: 163, page 29, line 41, at end insert—
‘(7) The amendments made by subsections (2) and (4) do not apply in relation to a success fee payable under a conditional fee agreement made in relation to—
(a) any proceedings based on a claim of defamation; or
(b) any proceedings based on a claim of privacy under Article 8 of the European Convention on Human Rights; or
(c) any proceedings arising out of the same cause of action as any proceedings to which paragraphs (a) or (b) refer.’.—(Chris Bryant.)
Question put, That the amendment be made.
Overseas community orders and service community orders
Amendments made: 75, page 47, line 36, at end insert—
‘( ) In section 322 of that Act (financial penalty enforcement orders), in the definition of “financial penalty” in subsection (4), after “including” insert “a fine imposed by the Court Martial or the Service Civilian Court under paragraph 10(1)(aa) of Schedule 8 to the 2003 Act by virtue of section 184 and Part 2 of Schedule 5 (breach etc of overseas community order) or”.’.
Amendment 76, page 48, line 2, at end insert—
‘( ) Part 2 of Schedule 5 to that Act (breach, revocation and amendment of overseas community orders) is amended as follows.’.
Amendment 77, page 48,