House of Lords
Tuesday, 24 January 2012.
Prayers—read by the Lord Bishop of Manchester.
House of Lords: Reform
My Lords, the costs of a reformed House will depend on a number of variables. In particular, both the net cost and total cost of salaries and allowances will depend on the transitional arrangements and the number of Members. We intend to consider the views of the Joint Committee before finalising our proposals for the reform of this House.
With respect to the Leader, that is not the most satisfying response I have had to a Question. I find it particularly odd that we have no figures when Governments of all persuasions manage to tell us how much an aircraft carrier will cost but cannot workout what 300 senators will cost. It is particularly unsatisfactory because the Deputy Prime Minister has already announced to the country that his flagship Bill in the next Session, announced ahead of the Queen’s Speech, will be a Lords reform Bill. He has apparently done this without having the faintest idea of what his project will cost. I hope that I might therefore ask the Leader, on behalf of the House, to speak to the Deputy Prime Minister and ask him please to give us the detailed costings with all those variables, which he must have. If he does not give us an answer, the suspicion will be that he knows it will cost a lot more than the present House and he is simply too embarrassed to tell us.
I am sorry if I disappointed the noble Lord, Lord Grocott. It may have been in his estimation an unsatisfactory reply, but that does not stop it being true. The fact is that the Government have not made a final decision on the arrangements for the House, particularly on the transitional arrangements or the size of the House. There is a process of pre-legislative scrutiny continuing under the excellent chairmanship of the noble Lord, Lord Richard, and until that process is over we will not be able to come up with these figures. However, as is perfectly normal, if a Bill is published after the Queen’s Speech in the next Session of Parliament, it will include a financial memorandum with a detailed breakdown of the costs of a new House.
But does my noble friend still hold to the view that an elected House would be more expensive than the present House? That being the case, and bearing in mind the current financial straits that the country is in, is it really a good use of public money to have a highly expensive elected House when, at the moment, we have a highly effective House that is capable of being reformed without being elected?
My Lords, there is no doubt that this is an effective House and a very good value House and therefore I hold to a view that I have made public in the past: that a reformed House, directly elected and with fully salaried Members, would cost more than the current House. However, it would have a legitimacy, and a power and authority, which this House does not have. I remind the House, as I have done many times, that at the last general election all three main parties carried a commitment in their manifestos to reform this House.
Should not addiction to constitutional reform be treated with the same bracing cure as addiction to welfare benefits? Will the Government set a cap on the amount that ordinary, decent, hard-working British citizens are to be required to pay to support the constitutional reform dependency of the Liberal Democrats?
My Lords, will my noble friend take due account of the very exaggerated estimates of the potential cost, which do not take into account the fact that the allowances of current Members of the House are untaxed while, presumably, a salaried Member of the new House would be taxed? Has my noble friend taken note of the fact that Mr Mark Harper, the Minister responsible for the Bill, has indicated to the Joint Committee in open session that at present a Member of this House based in London can take home more than an MP?
I agree with my noble friend on the question of taxation, and indeed with my honourable friend Mark Harper, the Minister in the House of Commons. However, I am not sure that that is a very useful comparison. After all, it would require a Peer living in London to turn up every single day, and one of the strengths of this House is that it is part-time and people choose to come when they feel that they have something of value to contribute.
My Lords, how do the Government’s proposals for reform fit in with rumours in the House of Commons that the Government are about to pack the House of Lords with an additional 50—perhaps even more than 50—coalition Peers? Where are they going to sit, where are they going to park and where are they going to have their offices?
My Lords, I am sure that issues such as where new Peers may or may not park are at the top of the agenda in the highest echelons of the Government. I too have heard this rumour but I have no idea where it came from. I thought initially that it was something to do with the Cross Benches as there was a letter in one of the newspapers from a leading Cross-Bench Member. There is no plan to pack the House with at least 60 government supporters. It would look absurd and it would be absurd.
My Lords, if it becomes possible for that figure to come out—we all appreciate the difficulties that have been enunciated—can we be sure that, at the same time as it is published, figures for the expense of running the House of Commons and of running the current House of Lords are side by side with it?
How to scrutinise the scrutineers, my Lords. I have not yet given great thought to how this House will do that, but there will be discussions in the usual channels. It is likely that in the new Session of Parliament we will find an opportunity at least to debate the Joint Committee’s report, and we will make an announcement in due course.
My Lords, the noble Lord the Leader mentioned variables in relation to cost and I quite understand the variables. As the Joint Committee itself is looking at variables, may I ask the noble Lord whether the Joint Committee is looking at the variable costs?
My Lords, I am not responsible for the Joint Committee and nor are the Government. There are 26 members of the Joint Committee, including Members of the Cross Benches and a Bishop, so I am sure that if they wish to study the variables, in whichever shape or form they wish to, they will be able to do so and they will be able to attach figures to them.
My Lords, the Statement to Parliament of my right honourable friend the Foreign and Commonwealth Secretary on 10 January outlined our response. We have issued our strongest objections to the decision by the Mercosur countries to deny access to Falkland Island flagged vessels. While we do not accept that the decision has any basis in international law, our priority has been to ensure that the trade and commercial links between the Falklands and South America are not compromised by this political declaration. We have achieved this.
My Lords, I thank the Minister for that interesting reply. Does he agree that it would be desirable to restart direct discussions—not negotiations, since there is nothing to negotiate—with Argentina, since it is at Argentina’s behest that this action has been taken?
If I might alter slightly what the noble Viscount has said, no action has been taken. Brazil, Chile and Uruguay have all agreed to continue welcoming shipping if it is flying the British Red Ensign flag, which these ships fly. If there is an intention of action, that action has not led to any results at all. As for talking to Argentina, we have said all along that we are anxious to have sensible and creative discussions that could be of assistance to Argentina itself in the longer term, so long as we respect the wishes of the Falkland Islanders, which must be paramount in accordance with international law.
My Lords, what steps are being taken by our splendid ambassadors in the region to counteract the tactics of the president of Argentina’s Government in persuading Argentina’s neighbours to support its claims of sovereignty in this way? In other words, what advice is the Foreign Office giving to ambassadors on the ground to prevent other countries following suit?
I think we have been a little ahead of the game. Obviously, the intention of Argentina was, sadly, to obstruct the movement of Falkland Islands shipping. Before that could happen we secured, for a start, the full assurance of Brazil, Chile and Uruguay that they would continue to welcome shipping flying the British ensign flag and would not interfere with trade. We have every reason to believe that the same attitude will prevail in all other ports where Falkland Islands shipping may call. However, we have taken action. Our ambassadors have moved very quickly and we are, as I say, ahead of the game.
My Lords, following the question of the noble Baroness, Lady Hooper, would the Minister agree that the best form of soft security for the Falkland Islands is very good, strong British relations with the South American neighbours of Argentina? Can he give us an update on what has happened to British relations with those countries and why this matter has come forward as it has in relation to Falkland Island flagged vessels? In particular, what has happened, since the present Government took office and since President Rousseff took office as the new president of Brazil, to the excellent relations that the British Government had with Brazil under the Labour Government and President Lula da Silva?
As far as relations with Latin America generally are concerned, I can safely say that where excellent relations existed before they have been built on and are even more excellent now. Considerable effort has been made in renewing and expanding our relations with Latin America. My right honourable friend the Foreign and Commonwealth Secretary was in Brazil the other day on a highly successful visit. My honourable friend Mr Jeremy Browne, the Minister of State, constantly visits Latin American countries, and visitors have come here with whom I and others have liaised very closely. We feel that we have a very good developing relationship, which includes the expansion of our embassy facilities and capabilities in the region.
There are many theories as to why agitation and tension have arisen over this matter. Many experts point to the possible discovery of commercial deposits of oil around the Falklands. It is a great pity that Argentina bowed out of the hydrocarbons declaration, which would have enabled it to benefit from these developments on the oil front. However, it decided to stand aside from this and, instead, to complain and apparently grow angry at what is happening. That may be one reason.
We keep in constant touch with all our EU colleagues on this matter and have had considerable understanding and support. Inevitably, there are different perspectives but the general acceptance is that in international law the Falkland Islands people have the right to have their wishes respected and that any development in the future must be guided by those wishes. If they wish that to change, it will change; if they do not wish it to change, it will not change.
Will my noble friend tell the House whether the reports are accurate that almost all the ships that are now banned from visiting Mercosur ports while flying the Falklands ensign are owned by Spanish shipping companies? In light of that, are we having discussions with the Spanish about the commercial damage which is clearly being done to them through this ban? Are we having discussions with Chile, as President Kirchner has asked the Chilean Government to ban commercial flights to the Falkland Islands?
We have had discussions with Chile of a thoroughly positive nature. It is one of the countries that has agreed to accept ships flying the British Red Ensign. I cannot comment on the ownership of some of these ships. I have seen rumours in the media but I have no further information on that matter.
My Lords, while jaw-jaw is better than war-war, as Churchill said—the great man died 47 years ago today—there is no doubt that the world is extremely dangerous. We have seen the events of the Arab spring and in Libya and tensions in the Falklands. Will the Government look at their reduction in defence spending bearing in mind these very serious risks?
The question of our capability and abilities to meet the world’s tensions are under constant review. Some of these involve military and others soft power deployments. However, the noble Lord is absolutely right that dangers are springing up. Later this afternoon this House will have to deal with another one that he did not mention—that is, the situation in the Strait of Hormuz.
My Lords, the Government are committed to eradicating child poverty but recognise that income measures and targets do not tell the full story about the causes and consequences of childhood disadvantage. We will measure the success of our approach to tackling child poverty through a new set of indicators including, but not limited to, the income targets set out in the Child Poverty Act. They include measures of family circumstances and drivers of children’s life chances.
I thank the Minister for that response. Does he accept that children are in poverty through no fault of their own and that, in neglecting early years, social costs may be very significant later? Will he also say whether proposed legislation such as the Welfare Reform Bill and the legal aid Bill will have a negative or positive impact on child poverty?
My Lords, we certainly agree on the importance of early intervention. We have put in a number of measures to reinforce that, including: the fairness premium, on which £7.2 billion is being spent; the expansion of free early education for three and four year-olds and for 40 per cent of two year-olds; and the introduction of the pupil premium. As for the Bills mentioned, in the long run the universal credit is predicted to take 350,000 children out of poverty, but rather more important than that is reducing the number of workless households by 300,000. That is a behavioural response. On legal aid, we have retained legal aid for child parties in virtually all family cases.
The Minister has said that the best way to get children out of poverty is to ensure that their families are in employment. How do the Government intend to bring the number of jobs available into line with the unemployment figures in the short term rather than the long term, because it is short-term measures that will have an effect on children? In addition to the issues he has outlined, what other financial help will he give to families in the short term while jobs are becoming available?
My Lords, we have a large number of measures to deal with unemployment in the short, medium and long terms, but the really important area here is to look at the long-term unemployed who have been excluded from economic activity. That is one of the most important areas of effort that we are undertaking to try and get those families back into the economic activity of the country.
My Lords, the work programme is one of the cornerstones of the Government’s action to alleviate child poverty. Today’s NAO report on the work programme reports that harder-to-help people are not being referred to the programme in the numbers expected. Surely, as the Minister has said, this is the most important group to help to get back into work. What response does my noble friend have to the NAO report in that respect?
My Lords, we are concerned about the slow way that people on ESA are moving into the work programme and we are looking closely at how to accelerate that process. Clearly, one of the ambitions of the programme is to get the hardest-to-help people back into the workforce, and there has been a rather slow start in that area.
My Lords, can the Minister explain why the Government dismissed the projected 100,000 increase in child poverty due to tax credit cuts as a “statistical quirk” arising from the relative nature of that poverty when, in opposition, the Prime Minister promised,
“loud and clear … the Conservative Party recognises, will measure and will act on relative poverty”?
My Lords, one of the recent decisions we have taken was to up-rate benefits by the CPI at 5.2 per cent, when average earnings in the period have increased by 2.8 per cent. Interestingly, that is the core reason why the IFS projections for this year and next show a decline on last year. Looking further ahead, we clearly have a lot of work to do in maintaining any reduction in child poverty and the IFS warns us that we need to have government policies to do that. However, I should point out that what we are driving towards is behavioural change, whereas the IFS measures concrete changes of income transfer.
My Lords, I was trying to answer that question just now. The IFS projections are valuable and important, but they do not absorb changes in future policy and they do not make any assumptions as to behavioural change; many of the policies that we are driving are trying to get people back into work and reduce worklessness in that way. In particular, as regards universal credit, the report does not take into account the reduction in workless families that we are expecting.
My Lords, if the reforms going through the House at the moment are carried, many families lose their homes and children are put into care, the cost will be £2,900 a week for each child who is in care. Have the Government taken that into consideration?
To ask Her Majesty’s Government what estimate they have made of the costs to local government and business of preparing for the new coinage, in the light of reports that the new size cannot be used in existing parking meters and vending machines.
My Lords, the Treasury published a full impact assessment on this measure last February, which is available on the Treasury website. The impact assessment was compiled after consultation with representative industry groups and estimates the overall net benefit of the conversion of 5p and 10p coins to nickel-plated steel to be about £40 million. The Royal Mint has been working with the industry for more than two years in anticipation of this change.
My Lords, I think the gap in the Minister’s Answer is that, although the Government will save money, there will be a cost to the industry in changing vending machines, payphones, parking meters, et cetera, because the new coins are marginally thicker. The cost to the vending industry will be about £25 million. The fear now is that if the £1 coin was changed, it would cost the vending industry more than £100 million to adapt. I seek assurances from the Minister that if any change is considered, there will be full consultation with industry, a two-year period in which the industry can make the changes needed and consideration of compensatory payments, given the very high cost involved to the industry.
My Lords, first, on the implementation of the introduction of the new 5p and 10p pieces, the Government took the view, after consulting the industry, that there should be a delay of one year from the date of January 2011, when the previous Government had originally intended to introduce the coins. The noble Baroness refers to the Automatic Vending Association. When we announced the delay in the introduction, the association’s CEO said:
“This … is fantastic news for the vending and coin machine industries because it allows them more time to update coin mechanisms, providing a saving of £16.8 million to the vending industry—a real help in the current economic climate”.
So the introduction of the new coins has been done in full consultation.
When it comes to the £1 coin, the issue is rather different. It is one not of cost saving but of potential risk and a drop in confidence as a result of counterfeiting. The counterfeiting of £1 coins is estimated to account for almost 3 per cent of the stock, but the Royal Mint conducts regular public awareness surveys to ensure that public confidence in the pound is high, and the Government have no change to the £1 coin in mind.
Noble Lords may not be aware that they may have in their pocket two different sorts of 1p and 2p coins, because they were changed from cupronickel to copper-plated steel in 1992. When looking in my pocket this morning, first, I could not distinguish them and, secondly, I had not been aware of the distinction. This is well trodden territory as successive Governments have updated the coinage, and there should be no particular difficulty.
My Lords, the House will have derived some reassurance from the Minister's answers thus far, but given that in the not too distant future there are likely to be changes to the higher denomination coins, would it not be politic now to have a full-blown consultation on, or perhaps even a commission into, the coinage to look at the future, to give people the opportunity to make their views known and to prepare?
My Lords, I congratulate the Government on issuing a new set of coins to popularise the Olympic Games and the fact that a number of coins represent particular sports. Can I regret the fact that the new 50p coin, which defines the football off-side law, is incorrect?
European Union (Definition of Treaties) (Republic of Korea Free Trade Agreement) Order 2012
Local Better Regulation Office (Dissolution and Transfer of Functions, Etc.) Order 2012
Motions to Approve
Order of Consideration Motion
My Lords, the usual channels have agreed that it would be desirable for the Committee-stage debate on the question of a referendum on independence to take place after the Government’s consultation has closed on 9 March. This Motion enables our debates on Clause 10 of the Bill to be taken last, and I suggest that any amendments relating to a referendum are best placed “before Clause 10”. I respectfully encourage noble Lords to table referendum-related amendments as “before Clause 10” rather than to other parts of the Bill. If the House agrees to this Motion, I understand that the Chief Whip will ensure that the last day in Committee is scheduled for the week of 12 March.
My Lords, the Minister will recall that on 10 January I raised this with him when he made the statement and asked that the whole Committee stage be held over until after the consultation. My intention was to ensure that there should be no discussion on the referendum and all aspects of it while the consultation was under way. I therefore thank the Minister very much indeed for finding a solution that enables that to be put into effect.
My Lords, first, I thank the noble Lord, Lord Foulkes, for welcoming this. We recognised the issue and found a way to resolve it. On the question asked by the noble Lord, Lord Neill, I certainly recognise the importance of the letter sent by the Lord President of the Court of Session. It is likely, although one can never be sure, that the clause to which that relates in Part 2 of the Bill will be debated on Thursday 2 February. I hope that copies of the letter will be available in the Printed Paper Office for our consideration. There are both government amendments and amendments in the name of the noble and learned Lord, Lord McCluskey, which I am sure will allow us to have a very full and informed debate on that issue.
Legal Aid, Sentencing and Punishment of Offenders Bill
Committee (5th Day)
Relevant documents: 21st Report from the Constitution Committee, 22nd Report from the Joint Committee on Human Rights, 21st and 22nd Reports from the Delegated Powers Committee.
Schedule 1 : Civil legal services
73: Schedule 1, page 131, line 44, leave out “subject to sub-paragraph (10)”
I am most grateful to my noble friend. I was saying that it would have a catastrophic effect on the provision of advice and representation to Gypsies and Travellers on issues relating to their accommodation. I am sure that I do not need to remind your Lordships that in the most recent survey by the DCLG in England, almost one in five of the caravan-dwelling population of Travellers was homeless, and that in terms of health, education, life expectancy, employment and access to public services they are the most deprived ethnic minority in our country. The tragic events at Dale Farm in Hertfordshire brought the plight of residents there to the attention of the whole country as their eviction was played out on TV day after day, at an estimated cost to the taxpayer, and to the council tax payers of Basildon, of £18 million.
Ministers say that Travellers must obey planning laws like everyone else; but they demolished the system created by the previous Government under which an obligation was imposed on local authorities to provide planning permission for Travellers’ sites that would accommodate the number of Travellers in each area, as determined by an independent assessment of needs, buttressed by public inquiries. Since the Secretary of State gave local authorities carte blanche to rip up those plans and decide in their unaided wisdom whether to allocate any land at all in their development plans to Travellers’ sites, the number of sites for which it was intended that planning permission should be granted has plummeted by half, according to research conducted by the Irish Traveller Movement in Britain.
At the same time, because of the unsympathetic attitude to Travellers who want to provide their own accommodation caused by the scrapping of circular 1/2006, Travellers who want to provide their own accommodation now have greater difficulty than ever identifying plots of land on which they would have the remotest chance of getting planning permission. They invariably find that there is an immediate hullabaloo from settled residents in the neighbourhood, whatever the planning merits of the site, because Gypsies and Travellers are the only communities against whom open racist prejudice can still be voiced without challenge.
This is the context in which Travellers are to be deprived of legal aid in cases that involve eviction from unauthorised sites and from rented sites; other issues concerning rented sites; High Court and county court planning cases such as injunctions, planning appeals or stop notices; and, finally, homelessness cases. In paragraph 28 of Schedule 1, loss of home is kept within the scope of legal aid, and “home” includes a caravan that is the individual's only or main residence. However, the words left out by the first four amendments in this group, and by Amendment 87, would address the exclusion of a caravan that is occupied by a trespasser. This would mean, for example, that a Traveller who trespasses on a local authority site, having been moved on from the roadside to a vacant pitch, would be unable to contest an order for possession and would thus be at immediate risk of losing their home. In such a case recently, solicitors managed to fend off an order and the case is going to trial.
A great deal of media attention has been given recently to local authority housing that has been left unoccupied for months, or even years in some cases. If the same is happening on local authority Traveller sites, where the shortage is even more desperate, it is surely desirable that the courts should be able to look into the matter. There is a difference between caravan dwellers and housing trespassers because there are houses in which a homeless person can be accommodated, but there are no sites on which a person dispossessed from a caravan site can find alternative accommodation. There are just no alternative sites available.
At the July 2011 count of Traveller sites, there were 4,000 caravans on unauthorised sites in England, of which just over 2,000 were on land not owned by the occupiers and therefore vulnerable to possession orders. When these provisions come into force, almost certainly there will be some landowners who seize the opportunity of kicking the Travellers off, in many cases without even having to turn up in court, and if they do, coming up against an unaided defendant. Since there is nowhere that they can lawfully take their caravans, the evicted Travellers will end up on a different unauthorised site to await yet another eviction. This churning of people living on unauthorised sites will have further harmful repercussions for the lives of the families concerned and, primarily, for the health and education of their children. That will be the effect of removing access to legal aid from people forced to live on unauthorised sites because of the failure of successive Governments over the 50 years of my political lifetime to ensure that Gypsy and Traveller caravan dwellers have places to live. Do your Lordships want to deprive these communities of the right to defend themselves against the threat of repeated eviction? I certainly hope not.
Turning to Amendment 77, it is ironic that after the success of the campaign over many years to extend the Mobile Homes Act 1983 to local authority sites, the Government have proposed that all the provisions of that Act, other than the ones concerning possession actions, should be taken out of scope. The Community Law Partnership, to which I pay tribute for the excellent work that it does on behalf of Travellers and for its help in drafting and briefing on these amendments, has lodged an application for judicial review on behalf of a Traveller challenging the failure of the equality impact assessment to address the impact of this proposal on Gypsies and Travellers. For many of them who live on rented sites, there will be no legal advice on breaches of covenant, quiet enjoyment, succession, re-siting of the mobile home, rent increases or repairs. Few of them will have the ability to deal with such cases on their own because of the widespread educational disadvantage that affects these communities and the consequent low levels of literacy and numeracy that they suffer. All we are asking for is for initial advice, since cases other than possession under the Mobile Homes Act in England are dealt with in a residential property tribunal, where legal aid is not normally available anyway.
Finally, Amendment 79 restores the right to legal aid in the large number of planning cases that appear not to be covered by paragraph 28(1)(b) because of the use of the term “eviction”. This could make it difficult, if not impossible, to maintain that for the purpose of claiming legal aid, the loss of home resulting from the dismissal of a challenge under Sections 288 or 289 of the Town and Country Planning Act or the granting of an injunction under Section 187B of that Act may be considered equivalent to an eviction because in any of those cases the occupier forfeits his home in the end, even if there is a delay before he actually has to leave the site. The Community Law Partnership asked the Ministry of Justice for clarification of this point, and in its reply the department stated that,
“legal aid will … remain available to defend an application for an injunction to evict a person from a site under Section 187B of the Town and Country Planning Act or for a planning appeal that might result in the individual being legally required to leave their home”.
That appears to cover the whole of Amendment 79, but it needs to be spelled out in the Bill.
Annexe B of the Government’s response to the consultation on reform of legal aid contains a list of the key issues raised. One of these was that:
“Funding should be provided for planning appeals and eviction cases involving Gypsies and Travellers because this group was one of the most vulnerable in society”.
Immediately following these key issues, in paragraphs 75 to 82, the Government deal with the other issues raised but totally ignore the needs of the Travellers—the usual experience of these communities and the agencies that try to help them. In this case, however, it is not only the Travellers themselves who will suffer if these amendments are not accepted; the greater levels of harassment and evictions of Travellers on unauthorised sites that will inevitably follow the withdrawal of legal aid in planning cases, coupled with the abandonment of a strategy for securing that an adequate number of planning permissions are awarded to meet the needs identified by the Government themselves in their twice-yearly count, means that there will be more unauthorised sites than ever, with the attendant health, education and social problems.
Making life more difficult for Gypsies and Travellers is not the way to turn them into good citizens who generate fewer burdens on public services. I beg to move.
My Lords, the noble Lord, Lord Avebury, has set out very clearly and powerfully the way this group of amendments would work. I will briefly give noble Lords a couple of examples to flesh out what they mean in real cases.
For instance, there are two Gypsies on different plots, both facing injunctions to make them leave their own land because they have not yet obtained planning permission—notoriously low down on most local authorities’ to-do lists. With legal aid, lawyers managed to hold off the injunctions on the basis that there were reasonable prospects of success in their planning appeals. One of them has now obtained permanent planning permission and the other has obtained temporary permission for three years—of importance when there are school-age children in the family. The point is that these two would have been homeless without legally aided assistance, but these cases would not qualify for legal aid.
I should just add that the other Minister’s amendments to the previous group of housing clauses, offered in the witching hour last Wednesday, are welcome, but they are not nearly bewitching enough. They do not materially alter the unfair situation that Gypsies and Travellers will find themselves in if the Bill becomes law.
I also cite the case of a family on a private caravan site, protected by the Mobile Homes Act 1983—unless this Bill becomes law—but facing harassment by their landlord. The harassment was clearly intended to force them to leave the site. Their legal aid lawyer obtained an injunction to stop the harassment. One of the victims said, “Without a solicitor acting for us, they would have got us out by now”—again, they would have been homeless. As the noble Lord, Lord Avebury, said, Gypsies and Travellers are often illiterate and harassment can be very complex in legal terms.
Gypsies and Travellers are often illiterate because that is what happens when you are moved on all the time as a child. Is it any wonder that our Gypsy and Traveller children have the lowest attainment rates in school, are more likely to die in infancy and have mothers who are more likely to die in childbirth? These are the consequences of constant eviction and moving on. The reason for even more moving on will still be the lack of legal sites, but added to an overwhelmingly unmet need—if the Bill becomes law—for legal advice and assistance in establishing such entitlement as exists.
Of course, the costs of unnecessary evictions are huge, but the most important disbenefit, if some form of these amendments is not accepted, will be to the ordinary human rights accepted for all other citizens not to be made homeless. As it stands, this Bill discriminates against a defined minority-ethnic group—whatever previous government letters to me have said—and I hope the noble and learned Lord can provide a more positive attitude.
My Lords, I, too, support Amendment 79, to which my name is added, and I declare my interest as a landowner. I am most grateful to the noble Baroness, Lady Whitaker, and my noble friend Lord Avebury, for drawing my attention to these amendments. All children need a degree of stability in their lives if they are to do well. Instability for Traveller children arising from repeated displacements—the “churning” to which my noble friend referred—impacts particularly adversely on their educational outcomes. Displacement risks undermining the education of Traveller children, excluding them from society and contributing to a cycle of generational failure. I would encourage the Minister to accept this amendment as a means of improving educational outcomes for Traveller children and of promoting their inclusion in society.
I should like to pray in aid two documents; namely, My Dream Site, which includes research with Traveller children and is published by the Children’s Society, and a 2003 Ofsted report, Provision and Support for Traveller Pupils. The Ofsted report states:
“The average attendance rate for Traveller pupils is around 75%. This figure is well below the national average and is the worst attendance profile of any minority ethnic group … The 1996 Ofsted report The education of Travelling children estimated that at least 10,000 Traveller pupils of secondary age were not registered at school. This survey”—
the 2003 survey—
“indicates no decrease in these numbers and estimates that the figure could now be closer to 12,000. Despite examples of success by some services, the picture at the secondary phase remains a matter of very serious concern. Not enough Traveller pupils attend or stay on at secondary school … The vast majority of Traveller pupils linger on the periphery of the education system. The situation has persisted for too long and the alarm bells rung in earlier reports have yet to be heeded”.
That 2003 report highlights our failure to educate secondary-school-age Traveller children in particular.
The Children’s Society report indicates the connection between stability and school success for Traveller children. It states:
“More than any other amenity school raised a range of emotions.
‘It’s good for your education but it’s hard to get in because you’re travellers and that, so you get a lot of hassle at school.’ Johnny aged 12 years.
Other children’s experiences at school were similar, as they had also experienced bullying because of their traveller status.
‘The only reason a lot of people do it is because they don’t understand. I tell the teachers but they don’t do anything.’ Daisy aged 12 years.
There was a marked difference in attitude towards school from the children who had been settled on a site for a stable period of time. These children had an opportunity to settle into a school routine and knew what was expected from them in a school setting. The opportunity to build up a relationship with staff and with other children seemed to make attending school a far easier experience. They appeared to have less of a problem with being bullied because of living a nomadic lifestyle. Some of the children no longer identified themselves as travellers but saw themselves more as settlers. These children had been able to attend one school and had lived in one place for most of their lives”.
To conclude, all children need a degree of stability. The education of Traveller children is likely to be significantly impaired by continued upheavals, which can lead to their exclusion from society and failure for successive generations of Traveller children. I support this amendment because it may contribute to improved stability for Traveller children and I look forward to the Minister’s response.
My Lords, the treatment of Gypsies and Travellers by states and other public agencies in the West over the last 100 years and longer has been in large measure a major disgrace. The worst instances have certainly not occurred in this country, but, as the noble Lord, Lord Avebury, put it to us, there remains a remarkable degree of prejudice against Gypsies and Travellers still, unfortunately, extensively licensed by public opinion. I was struck, in the two constituencies I had the privilege to represent in the House of Commons, by how very difficult it was, in the face of public opinion, for local planning authorities to construct a policy framework in their areas which would ensure that Gypsies and Travellers had places where they were entitled to live. While I would not argue for especially favourable treatment for Gypsies and Travellers any more than I would for any other group, it is particularly incumbent on us, as we scrutinise all legislation, to be sure that it does not involve anything that may be discriminatory against them. So I simply ask the Minister and his colleagues to look carefully and sympathetically at the amendments in this group, which have been moved and spoken to so well by the noble Lord, Lord Avebury, my noble friend Lady Whitaker and the noble Earl, Lord Listowel.
My Lords, I, too, want to add my voice briefly in support of the amendments moved by the noble Lord, Lord Avebury. Perhaps it would have been surprising if anyone other than the noble Lord had moved these amendments. I was at school when the noble Lord, as Eric Lubbock, Member for Orpington in the House of Commons, moved his Gypsies and caravan sites legislation in, I think, 1967. Many of us admired the courageous way in which he has continued over the following years to raise the plight of Travellers and Gypsies in the discrimination and racism that other noble Lords have referred to in the debate.
As a young city councillor in the 1970s, I served in Liverpool on the committee which was charged with the duty of creating a caravan sites Act. The noble Lord, Lord Storey, who is in his place, will recall the controversy that that aroused at the time. But we fulfilled our statutory duties and took on the prejudice that inevitably was raised. The not-in-my-back-yard syndrome is one with which we are all familiar. Indeed, it has to be said that the presence of Travellers or Gypsies in a community can raise a number of issues, not the least of which are questions of educational provision. In the 1970s, that provision was made, and I agree with what my noble friend Lord Listowel said about the importance of providing stability of education for the children of Travellers as they progress through life.
A few months ago we saw what happens when there is an unregulated approach to these matters. At Dale Farm there was a terrible culmination in violence that involved the use of Tasers. We saw the police having to be pitted against members of the Traveller community as they were evicted from their homes. That is not a sight that most of us want to see repeated on a regular basis. But I fear that unless amendments of this sort are incorporated, and if we deny people access to justice, which was the point made by the noble Lord in his speech, all these other things will follow. They will be the corollary. If we do not provide opportunities for resolution on planning disputes and access to amenities, as well as on questions of discrimination and the others that have been raised during this brief debate, we will see more incidents like Dale Farm. For that reason, I hope that when the noble and learned Lord comes to reply, he will tell us just how many unauthorised sites there are in the country, what is the estimated shortfall of places—that will give us a barometer of how many disputes will have to be resolved in the years to come—and the cost to the public purse through legal aid of cases which have been brought before the courts over the past decade? Without knowing what the sums of money involved are, surely it would be irresponsible of us to dismiss lightly the amendments to maintain the status quo which the noble Lord, Lord Avebury, has put before us today.
I end by returning to his point about the importance of ensuring that people have access to justice. That runs all the way through the proceedings of this Bill in your Lordships’ House, and it will continue to be the question. You cannot get justice on the cheap, and groups like these should not be left on the margins, unable to access the courts.
My Lords, I support the case that has been made so well by the noble Lord, Lord Avebury, and my noble friend Lady Whitaker. It is well known that the Gypsy and Traveller communities are among the most vulnerable and disadvantaged communities in England and Wales in terms of health, education and discrimination. It is almost universally accepted that these disadvantages and problems would be addressed if there was adequate site provision. Of course, that does not really happen, because it looks to me as though local authorities fail to follow government guidance on encampments, to take into account human rights considerations and to follow a proper and reasonable process in relation to sites for Travellers. If Gypsies and Travellers get involved in county court and High Court planning cases without the assistance of legal aid, they will eventually end up homeless. That is surely to be avoided and a distinct worsening of the situation. It is something that we should not be prepared to countenance. I therefore hope that the Government will give due consideration to the excellent case which has been made by my noble friends with a view to accepting it. These people deserve our support and consideration.
My Lords, I find myself in total agreement with everything that has been said so far by all noble Lords who have spoken to this amendment. The arguments have been put fully, lucidly and with great force, and certainly do not need me to underline them. However, I would say two things. Many years ago, I felt that there was an equitable balance between the interests of Travellers and those of the community at large, a balance which had been brought about by the legislation for which the noble Lord, Lord Avebury, fought so valiantly over the years. It was necessary under that legislation for local authorities to provide certain basic facilities for Travellers. That balance was maintained by a flagship judgment by the late Mr Justice Peter Pain, a most humane and pioneering judge, who said to a county council in Wales: “You are seeking injunction to remove these Travellers from a lay-by whose freehold is vested in your good selves. On the other hand, you have, I think in a cavalier way, done nothing at all to implement the obligations which were placed upon you to provide for Travellers. An injunction is an equitable remedy. I exercise my judicial discretion not to grant it until I am convinced that you, too, will carry out your statutory obligation”. Unfortunately, the law has now been changed and that balance no longer remains, which makes this group of amendments all the more relevant.
The other thing that I would say, as one who exercised a family jurisdiction for some years, is how obvious it was to me that insecurity ate like acid into the lives of children of Traveller families, particularly in the context of education.
My Lords, I support the amendments. I was a member of the National Equality Panel, and one of the most shocking of our findings was the degree of educational disadvantage among Gypsy and Traveller communities. Reading the very helpful briefing that we have had from Community Law Partnership reminded me of the importance of this. A number of noble Lords have made the point about educational disadvantage and children’s need for education and security. Of course, access to justice is that much more important for a community which suffers high levels of illiteracy and educational disadvantage. As Community Law Partnership points out, we are talking about some very complex areas of law. I therefore hope that the Minister will look sympathetically on the amendments, which would protect one of the most vulnerable minority-ethnic groups in this country.
When the Minister comes to reply, will he clarify how these provisions will operate? Notwithstanding the provisions that are being debated today, is it the case that Gypsies and Travellers will remain entitled to seek legal aid to challenge acts or omissions of public authorities under paragraph 17 of the judicial review, and remain entitled to challenge under paragraph 20, which relates to convention rights, in the same way as other litigants? Is it the case that the provisions we are debating will not prevent Gypsies and Travellers claiming legal aid if they have proper grounds for contending that they are not trespassers? I would be grateful if the Minister would clarify those matters, because they have a considerable bearing on the fairness of the provisions that are under challenge through these amendments.
My Lords, the Committee owes a debt of gratitude to the noble Lord, Lord Avebury, and my noble friend Lady Whitaker for bringing forward these amendments for debate in Committee today.
Most of the cuts to social welfare legal aid appear at best naive and at worst socially and economically disastrous. However, the cuts with which these amendments deal—subject, of course, to the answers to the questions that the noble Lord, Lord Pannick, has just asked the Minister—unfortunately, appear maliciously, deliberately and uniquely to target a group which, as the Committee has heard, is one of the most marginalised in our country. It is ironic—more than ironic, it is distressing—that in a society where popular and governmental discrimination against groups of people is, thankfully, becoming rarer and rarer, the tolerance and acceptance which we think is the mark of a civilised society does not seem to apply to this group of people.
Gypsy and Traveller communities do not come in for an easy time, whether it is from the press, which seems to delight in portraying them as villains or an irredeemably alien culture, or from politicians, who have not done enough to help these communities preserve their way of life and certainly have not done enough to ensure sufficiency in the provision of housing.
Every victory for this community—as, for example, the acceptance in April last year that local authority sites should be subject to the Mobile Homes Act 1983 —has been very hard won. Legal aid has played a significant part in these victories and in establishing these rights and ensuring that they are rightfully and lawfully exerted.
Although the Government have claimed that the exemptions they have put in place are to deal with squatters—a subject to which we shall no doubt return in Part 3—everyone knows that at least a quarter of the Gypsy and Traveller population who live in caravans do not live on authorised sites. The noble Lord, Lord Avebury, referred to that in opening his amendment. Many believe that this population, due to an acute crisis in the availability of sites, has little option but to trespass. If the Government’s intention is specifically to disfranchise a protected group which is already, as I have argued, much maligned, I suspect that it will end up causing much more trouble than it is worth, and that Gypsy and Traveller communities will continue to express their culture.
The Bill fails to give these communities a basic ability to stand up to oppressive behaviour by public authorities—and we have seen that kind of behaviour, I am afraid—and, frankly, it is unacceptable to mortgage the future of these communities for the purposes of the Bill. Legal aid has played an important part in gaining whatever benefits these communities have, and it would be a tragedy if they were taken away.
My Lords, we have had an important debate. As the noble Lord, Lord Alton, said, it is no surprise that the amendment was moved by my noble friend Lord Avebury, whose record over the best part of half a century in standing up for the rights of Gypsies and Travelling people is well recorded. As I understand it, he continues to be the secretary of the All-Party Parliamentary Group for Gypsy Roma Travellers. I understand that the noble Baroness, Lady Whitaker, is vice-chairman of that group. We have heard important views on wider issues, not exclusively on legal aid. The noble Earl, Lord Listowel, raised the important educational issues relating to Gypsies and Travelling people.
I will focus on the amendments and the impact on legal aid. Amendments 73, 74, 75 and 76 go together as a package. They would ensure that legal aid remains available in relation to possession and eviction matters for persons who are clearly trespassers on the property or land where they reside. As has been pointed out, the Bill currently excludes such persons from receiving legal aid under paragraph 28.
While we are generally retaining legal aid where a person is at immediate risk of losing their home, the Government do not consider it appropriate for the taxpayer to provide funding for individuals to try to resist removal where they unarguably entered and have remained on the property or site as a trespasser. On a point raised by the noble Lord, Lord Pannick, paragraph 28 states:
“if there are no grounds on which it can be argued … that the individual is occupying the vehicle or structure otherwise than as a trespasser, and … that the individual’s occupation of the vehicle or structure began otherwise than as a trespasser”.
I hope the noble Lord will be reassured that Gypsies and Travellers will have access to legal aid under paragraph 28 in relation to loss of home if there are any grounds to argue that they are not trespassers. That is certainly the intention. It is quite clear that that is what will be delivered.
I emphasise again that legal aid will remain available for eviction and possession cases where there are any grounds to argue that the client has not entered and remained as a trespasser. On the other point, we are also retaining legal aid for most judicial review cases as set in out the Bill, and also—as the noble Lord asked—with regard to breach of convention rights by public authorities. I can confirm that Gypsies and Travellers will continue to have access to legal aid in terms of that particular paragraph of the schedule, along with others.
My noble friend also referred in his amendment to the Mobile Homes Act cases. Amendment 77 seeks to bring into scope legally aided advice for all matters arising from the Mobile Homes Act 1983. That Act gives rights to residents who have agreements with site owners to live in their own mobile homes on site. As I have explained, we have generally retained legal aid where the individual is at immediate risk of homelessness. This includes possession and eviction from a mobile home site. However, the consequence of the amendment would be to extend legal aid to cover all matters under the Mobile Homes Act 1983. It would make legal aid available for what we regard as lower priority matters where legal aid is not in our view justified, for example disputes about the sale or inheritance of mobile homes.
The point made by the noble Baroness, Lady Whitaker, was on the more important issue of harassment. I hope I can reassure her that legal aid is available for harassment injunctions under Sections 3 or 3A of the Protection from Harassment Act 1997 and, by extension, under paragraph 32 of Part 1 of the schedule.
I am grateful to the Minister for that point, but perhaps I may refer back to his remarks about judicial review, in response to the noble Lord, Lord Pannick. I am still not exactly clear what happens when it is not quite an eviction but a matter that would lead to an eviction. For instance, would judicial review be available to defend a county court possession action or a failure by a local authority to follow or have regard to relevant government guidance? It is those cases that lead to eviction but are not exactly eviction actions—and indeed the Gypsy is a trespasser on the prima facie case but, after judicial review, might be found not to be a trespasser.
My Lords, I will double-check on that. I would in no way wish to mislead, but on judicial review paragraph 17 indicates that,
“civil legal services are to be provided in respect of an enactment, decision, act or omission”.
It is certainly my understanding that that is the case, but I shall conclude my speech and double-check that. That paragraph of Schedule 1 will apply and entitle Gypsies and Travellers in the same way as it entitles others. I am as certain as I can be that that is the case, but the noble Baroness gave some very specific examples. Perhaps the best thing for me to do would be to set out in writing to her, and circulate it to those who have taken part in our debate, precisely the position in regard to the very specific cases that she raised in her intervention. I hope that she will accept that. There is certainly a general power or provision to bring within scope judicial review cases, and I believe that that addresses the point, but I want to be absolutely certain with regard to the specific issues that she raised. Obviously, other Members of the Committee who have contributed to the debate will be copied into that letter.
Amendment 79 relates to this and brings in issues of planning. I hope that I can reassure the Committee, and my noble friend in particular, that it is unnecessary. Planning matters that concern eviction from home will remain in scope under paragraph 28 of Part 1 of Schedule 1. Accordingly, legal aid will, for example, remain available to defend an application for an injunction to evict a person from a site under Section 187B of the Town and Country Planning Act 1990 or for a planning appeal under Sections 288 and 289 that might result in the individual being legally required to leave their home, including the land where the home is located.
The noble Lord, Lord Alton of Liverpool, and my noble friend in moving his amendment raised the Dale Farm-type situations. To look at the legal issue that arises in relation to the amendment, we are retaining legal aid for eviction cases, including eviction from a mobile home or a caravan site. Legal aid will remain available for eviction from an unauthorised development, subject to the means and merits tests, as apply in other cases. It is important to distinguish those cases from situations where people have set up unauthorised encampments. So there is a difference between an unauthorised development and an unauthorised encampment on a site that they neither own nor have permission to enter. In these circumstances, they would be outwith the scope, as I have indicated; but if the issue is one of an unauthorised development on property that they own and have a legitimate right to be there, legal aid would be available.
Amendments 87 and 88 refer to “trespass to land” in Part 2 of Schedule 1. Amendment 88 concerns cases where the client is trespassing on land, including land surrounding a building, but is not trespassing in the building itself. I recall in a debate that we had last week under an amendment moved by my noble friend Lord Carlile of Berriew that we sought to reiterate that the reference in this part of Schedule 1, specifically to “trespass to land”, is not intended to generally exclude matters falling within Part 1 of Schedule 1 that involve trespass to land but to generally prevent funding for the tort of trespass to land. I indicated during last week’s Committee debate that we are giving active consideration to the exclusions in Part 2 of Schedule 1 generally to ensure that the drafting fully delivers on that particular intention. Clearly, we will look at the particular issue raised in regard to the specifics of trespass to land in this context when looking at whether the Bill as drafted delivers what is intended.
Part 2 of Schedule 1 generally excludes funding for tort claims, because they are primarily concerned with money and alternative funding arrangements can be made available through conditional fee agreements. However, tort claims for trespass to land are not excluded under the Bill where they concern allegations of the abuse of position or power or a significant breach of human rights by a public authority.
The debate has ranged more widely, and I am sure that if the House has not debated the wider issues in recent times, they merit a debate sooner rather than later. The Government understand the issues here and consulted on their new draft planning policy for Traveller sites over last summer. The Department for Communities and Local Government is considering all the consultation responses and intends to publish the new policy as soon as possible. Let me just put on the record that the Government are taking measures to ensure fair and effective provision of authorised sites for Travellers more generally, which seemed to be one of the issues being raised, including providing £60 million in England over the current spending period to help local authorities and other registered providers to build new Traveller sites in consultation with local communities. Councils will also be given incentives to deliver new housing, including Traveller sites, through the new homes bonus scheme.
For the reasons given, and with some of the reassurances that I have given on the scope being not quite as narrow as has perhaps been thought, I hope that my noble friend will agree to withdraw his amendment. As I have indicated, I will certainly respond—
Before the noble and learned Lord completes his remarks, I asked him a couple of specific questions. I realise that he may not have the answers to them now, but they would help us to keep this issue in context, especially when we get to Report. He has just given some information about the amount of money that the Government are going to spend, and that is welcome. However, could he in due course tell us more about the numbers of unauthorised sites and how many such cases using legal aid there have been—perhaps over the past decade, and certainly in the course of the past year—and what that has cost the public purse?
I apologise to the noble Lord for omitting to address that. When writing I cannot be certain either that the information is available in the form that he wishes or how easy it might be to extract what the specific nature of some of those cases was, but to the extent that we are able to provide the relevant information I will certainly do so at the same time as I respond to the noble Baroness, Lady Whitaker.
My Lords, first, I must express deep gratitude to all those noble Lords who spoke in favour of this amendment: the noble Earl, Lord Listowel, the noble Lords, Lord Howarth and Lord Alton, the noble Baroness, Lady Turner, the noble Lord, Lord Elystan-Morgan, the noble Baroness, Lady Lister, the noble Lord, Lord Pannick, and, finally, the noble Lord, Lord Bach. There was not a single contrary voice in the whole debate and your Lordships have demonstrated the concern which arises from these amendments and from the situation of Gypsies and Travellers in general.
In answer to the noble Lord, Lord Alton, there are in fact 2,000 caravans on unauthorised sites, which are therefore legally homeless at the moment. As the noble Lord, Lord Bach, said, the problem is that they have no option but to trespass. The answer that my noble and learned friend the Minister gave to the first of these amendments, the ones which deal with legal aid for persons liable to eviction, was not satisfactory because that was the whole point of the amendments. It is all very well to say that they will have access to legal aid under paragraph 28 if they are not trespassers, but all of those 2,000 caravans, except those which are on sites owned by the Gypsies and Travellers themselves, are in fact trespassers and have no option.
When people are thrown off a site such as Dale Farm—there is another one at the moment in Meriden, where the local authority is similarly kicking people off a site that they own and have developed themselves—they will have no alternative but to camp on the roadside or to try to sandwich themselves into an authorised site where there happens to be a little space left on one of the pitches, only to find that the local authority there takes steps to secure their removal immediately.
I am grateful to my noble and learned friend for his remarks on the challenges to an injunction under Section 187B or an order under Sections 288 and 289, but I asked him whether it was not preferable to have these spelt out in the Bill, and I hope that between now and the next stage the Government might consider the wording necessary to do so. I believe that it would be possible to quote my noble and learned friend’s remarks in a court of law if there were any doubt about the matter, but it is always best to have things spelt out in statute if you can.
The debate has raised issues that go far wider. In concluding his remarks, my noble and learned friend spoke about the £60 million that was allocated by the Department for Communities and Local Government for the construction of new sites. Unfortunately, very little progress seems likely to be made on that front; in none of the cases where grants have been made has there been either an application for planning permission or steps to identify the land.
I rang around some of the local authorities and housing associations that had received money under that heading. They all told me that they were at an extremely preliminary stage and that when they get around to identifying particular pieces of land, they will come across the problem that so many of your Lordships have spelt out today: there will be immediate opposition from local residents that will make it very difficult for them to proceed. In spite of the fact that this money is available, your Lordships should not imagine that it will lead to any immediate progress on the provision of those sites—nor, if by some miracle they were completed overnight, would they solve the problem. Speaking from memory, I think there are 600-odd pitches in the allocations but altogether there are 2,000 caravans on unauthorised sites, so they would cope with only 30 per cent of the need that exists.
In these circumstances, it is vital that Gypsies and Travellers have access to legal aid for all the purposes dealt with in this amendment. I hope that before we get to the next stage my noble and learned friend and others in the Government will consider what we have said today and think about restoring the right to legal aid, particularly in the amendments that are dealt with early on in this group. As far as we have got, though, I am grateful to my noble and learned friend, and I am sure that we will have further advice from the Community Law Partnership when we come to the next stage of the Bill. In the mean time, I beg leave to withdraw the amendment.
Amendment 73 withdrawn.
Amendment 74 not moved.
Amendments 74A and 74B
74A: Schedule 1, page 132, line 2, leave out “there are no grounds on which it can be argued”
74B: Schedule 1, page 132, line 4, at beginning insert “there are no grounds on which it can be argued”
Amendments 74A and 74B agreed.
Amendment 74C not moved.
74D: Schedule 1, page 132, line 6, at beginning insert “there are no grounds on which it can be argued”
Amendment 74D agreed.
Amendments 75 to 77H not moved.
77J: Schedule 1, page 133, line 21, after “other” insert “vehicle or”
Amendment 77J agreed.
Amendments 77K to 78B not moved.
Amendments 78C to 78E
78C: Schedule 1, page 134, line 28, after “2003” insert “(“the 2003 Act”)”
78D: Schedule 1, page 134, line 31, after “1978” insert “(“the 1978 Act”)”
78E: Schedule 1, page 134, line 31, at end insert—
“(4) The references in sub-paragraph (1) to a sexual offence include—
(a) incitement to commit a sexual offence,(b) an offence committed by a person under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to which a sexual offence is the offence which the person intended or believed would be committed,(c) conspiracy to commit a sexual offence, and(d) an attempt to commit a sexual offence.(5) In this paragraph references to a sexual offence include conduct which would be an offence under a provision of the 2003 Act or section 1 of the 1978 Act but for the fact that it took place before that provision or section came into force.
(6) Conduct falls within the definition of a sexual offence for the purposes of this paragraph whether or not there have been criminal proceedings in relation to the conduct and whatever the outcome of any such proceedings.”
Amendments 78C to 78E agreed.
Amendment 79 not moved.
79A: Schedule 1, page 136, line 9, at end insert “or a previous discrimination enactment”
Amendment 79A agreed.
Amendment 79B not moved.
79C: Schedule 1, page 136, line 14, at end insert—
“Definitions( ) In this paragraph “previous discrimination enactment” means—
(a) the Equal Pay Act 1970;(b) the Sex Discrimination Act 1975;(c) the Race Relations Act 1976;(d) the Disability Discrimination Act 1995;(e) the Employment Equality (Religion or Belief) Regulations 2003 (S.I. 2003/1660);(f) the Employment Equality (Sexual Orientation) Regulations 2003 (S.I. 2003/1661);(g) the Equality Act 2006;(h) the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031);(i) the Equality Act (Sexual Orientation) Regulations 2007 (S.I. 2007/1263).( ) The reference in sub-paragraph (1) to contravention of the Equality Act 2010 or a previous discrimination enactment includes—
(a) breach of a term modified by, or included by virtue of, a provision that is an equality clause or equality rule for the purposes of the Equal Pay Act 1970 or the Equality Act 2010, and(b) breach of a provision that is a non-discrimination rule for the purposes of the Equality Act 2010.”
Amendment 79C agreed.
Amendments 80 to 81 not moved.
My Lords, I should like to repeat the Answer to an Urgent Question in another place.
“Mr Speaker, yesterday I attended the European Union Foreign Affairs Council in Brussels, where member states agreed a new and unprecedented set of sanctions against Iran. These include a phased oil embargo, a partial asset freeze of the Central Bank of Iran, measures against Iran’s petrochemical sector and a ban on Iranian transactions involving gold. This is a major increase in the peaceful, legitimate pressure on Iran to return to negotiations over its nuclear programme. It follows the financial measures that the United Kingdom imposed on 21 November and the widening of EU measures on 1 December.
Sanctions measures, often close to those of the European Union, have been adopted by the United States, Canada, South Korea, Norway, Switzerland and Japan. These are in addition to the sanctions imposed by the United Nations Security Council itself. The Australian Foreign Minister has already announced this morning, at our joint press conference, that his country will replicate these new EU sanctions, and we will urge other nations around the world to do the same.
Iran is in defiance of six UN Security Council resolutions that call on it to suspend its uranium enrichment programme and to enter into negotiations. Its recent decision to enrich uranium to 20 per cent at an underground site at Qom demonstrates the urgent need to intensify diplomatic pressure on Iran to return to negotiations. This is a programme that can have no plausible civilian use and which Iran tried to keep secret. The International Atomic Energy Agency has expressed serious concerns about the possible military dimensions of Iran’s nuclear programme, most recently in a report last November, and Iran is now in breach of 11 resolutions of the IAEA board of governors.
Sanctions are a means to an end, not an end in themselves. Our objective remains a diplomatic solution that gives the world confidence that Iran’s nuclear programme is for purely peaceful purposes. We are ready to talk at any point if Iran puts aside its preconditions and returns to negotiations. Iranian Vice-President Rahimi was reported as saying in December:
‘If sanctions are adopted against Iranian oil, not a drop of oil will pass through the Strait of Hormuz’.
However, it must be borne in mind that 95 per cent of Iran’s oil exports, representing over 80 per cent of its foreign trade earnings, transits the Strait of Hormuz. It is very much against Iran’s interests to seek to close the strait to oil exports.
Britain maintains a constant presence in the region as part of our enduring contribution to Gulf security. The Royal Navy has been conducting such patrols since 1980. At the weekend, HMS ‘Argyll’ and a French vessel joined a US carrier group transiting through the Strait of Hormuz. This was a routine movement but it underlined the unwavering international commitment to maintaining rights of passage under international law. Any attempt by Iran to block the strait would be both illegal and unsuccessful.
We call on Iran to answer the questions raised by the International Atomic Energy Agency; to adhere to UN Security Council resolutions; to suspend its enrichment programme; and to return to the negotiations that are the only way of reaching a peaceful and long-term settlement to its dispute with the international community”.
My Lords, I thank the noble Lord for repeating the Statement on the EU, Iran and the Strait of Hormuz, made in the other place by the Foreign Secretary.
We on these Benches welcome the extensive international engagement in this policy, especially from our European partners, but also from other long-standing friends and allies. I was, of course, pleased to learn of the announcement by the Australian Foreign Minister this morning. Will the Minister outline how much support this policy has managed to garner at international level, particularly from Russia, China, India and Japan? The ban by Russia and China on supplying military equipment as well as training and maintenance is very welcome, but will the Minister say what assurances they are giving that this will be continued, and what influence they are exerting on Tehran to ensure a more responsible attitude from the regime?
On the diplomatic front, we have seen reports that at a meeting in Moscow on 18 January, Russian officials presented the Iranians with a proposed framework for negotiations with the P5+1, probably based on Russian proposals made in August. Can the Minister inform the House of any response the Government have received from Russia? The Government and the EU have rightly made it clear that we have no quarrel with the Iranian people. Before the Arab spring, we had the green movement in Iran, in which we saw huge numbers on the streets of Tehran and other Iranian cities seeking reform. Although this protest was barbarically repressed, it showed the considerable public alienation in Iran from the regime. In that light, what assessment have the Government made of the state of public opinion in Iran and of divisions in the political elite? What weight do the Government give to the threat by Iran to attempt to close the Strait of Hormuz? Do the Government intend to participate in any international naval task force to keep the strait open? What agreement have the Government obtained from other P5 countries for such action as well as from those in the Gulf? What reaction has there been from other countries in the Gulf to the threat to the Strait of Hormuz? Given the defence cuts, can the Government guarantee that vessels could be made available for such operational activity?
The policy position as set out yesterday by the former Leader of your Lordships' House, my noble friend Lady Ashton, in her capacity as the EU’s high representative on foreign affairs, is undeniably correct. However, there is no doubt either that the crisis in the Gulf could further weaken worldwide economic growth, so can the Minister outline the reaction from the main oil-consuming countries in Asia, which have a high dependence on Iranian oil, to the policy of a ban on crude oil imports from Iran and—this is almost as important—the export of refined products back to Iran? Given the disproportionate effect that these necessary sanctions will have on the vulnerable economies of southern Europe, will the Minister indicate what measures are being taken to protect them?
Finally, in the event of a crisis in the Gulf having a material impact on the world economy, what indications have the Government had from the Chancellor of the Exchequer that in such circumstances contingency plans are in place to deal with any economic effects? The position in the region, the attitude being struck by Iran and the economic impact of any implementation of the threat by Iran to close the Strait of Hormuz are unquestionably serious. Your Lordships’ House and we on these Benches look forward to the Government continuing to keep this House fully informed.
My Lords, that was a formidable list of questions. I will seek to answer them all as best I can. If I leave any out, I know that the noble Baroness will understand and we can correspond later.
The first question on which she rightly focused is how much international and global support there is for this programme. Clearly, if embargoes are undermined by other countries continuing to trade, this weakens the situation. We must be realistic. The agreements are with the list of countries that I read out and with the EU in a very united form. However, the big consumers of Iranian oil tend to be in Asia, particularly China and Japan. How much support can we expect from them? The Japanese have indicated that on a phased basis they would be able certainly not to increase any imports from Iran and possibly to run them down. Chinese Premier Wen Jiabao has indicated—indeed, within my hearing in Abu Dhabi last week—his country’s strong opposition to Iran acquiring nuclear weapons.
From that it ought to follow that China will be realistic about not increasing and maybe reducing its imports of oil from Iran. Statistics indicate that China has already run down its imports to some extent, and we will have to see how that develops, but very clear messages have been conveyed to the People’s Republic of China that as a responsible world power and a member of the WTO—and in its own view and those of others, a burgeoning superpower—it has to behave in a constructive and responsible way, in line with its own wishes to prevent Iran becoming a nuclear power.
Other countries involved are big customers of Iran, including India, from which I do not think there have been any indications so far on this matter. There are also smaller customers such as Sri Lanka. However, the big customers are the two countries I have mentioned, and their reaction has been as I outlined in my previous few comments.
The Russian position has been shifting, but I am not sure that I can comment on the detailed proposals made on 18 January to which the noble Baroness referred. I shall certainly examine that further, but if pressure is going to be effective in bringing Iran back to the negotiating table, the full support of the Russians is clearly also required. We are working on that as hard as we can.
Public opinion in Iran is very hard to assess. We all read reports of great differences of view in high circles in Iran between the mullahs and Mr Ahmadinejad, but it is hard to assess these things. My own judgment, which I think is shared, is that generally Iran feels that it has a right to develop a nuclear capability and will press ahead. It will take a lot of pressure, which is now being mounted, to bring Iran back to the negotiating table to discuss how its actions can be confined to civil nuclear power, in accordance with the IEA regulations rather than in defiance of them.
The noble Baroness asked about our defence capability. HMS “Argyll”, as my right honourable friend said, moved to the area at the weekend. The naval presence in the Gulf has been continuous for a long time and is contributing to security. Your Lordships can rest assured that all necessary contributions to the forces, which include a major American force and French ships, will be entirely what is required to meet the situation—the situation being the threat from Iranian Ministers that they would attempt, if they could, to block the Strait of Hormuz. That would be an illegal act blocking an international trade round, and will be prevented and resisted.
Oil-consuming countries face problems because some have been fairly reliant on Iranian oil. That is less so in Europe, as I have indicated, although Greece has a heavy reliance, and it is for that reason in particular that this embargo on oil is being phased in over a number of months up to 1 July, rather than being brought in instantaneously. Iran therefore has these problems. Italy is importing Iranian oil as a repayment for previous exports, and that too will have to be phased in. Japan will also need a phasing-in operation, although it is not exactly clear at what pace that will happen.
The noble Baroness mentioned contingency plans. We certainly have contingency plans, both at the financial level and in relation to the flow of oil and other energy supplies. Indeed, there are contingency plans in relation to the whole physical matter of closing the Strait of Hormuz. Should that be attempted, I believe it would be frustrated; but if it were to be attempted, there are other means of getting oil out of the Gulf area. There are the pipelines west to the Red Sea from Yanbu, and coming on stream—I do not think it is yet fully technically commissioned, but it is nearly ready—is the Fujairah pipeline, which crosses the corner of United Arab Emirates and bypasses the strait altogether. That can carry 1.9 million to 2.1 million barrels a day. So there are ways of moving oil—not at the volume that is going through the strait at present, which is about 17 per cent of the world's daily oil supplies, but many contingencies can be developed, and we are certainly participating in them at this stage.
My Lords, does my noble friend agree that Iran is not currently in breach of its NPT obligations in seeking to enrich uranium up to 20 per cent? Does he therefore accept that a return to negotiations, including the offer on the table of Iran maintaining a civil nuclear capability under a heavy IAEA inspection regime to ensure that no weaponisation occurs, is what we should be aiming for? Does he agree with US Defense Secretary Leon Panetta’s comments last month that an Israeli attack could consume the Middle East in a confrontation and a conflict that we would surely regret? What discussions are we having with the Israeli Government to the effect that any action they might take will embroil them and the rest of the region in a wider conflagration that they may deeply regret?
To answer my noble friend’s last question first, it has been the constant position of Her Majesty's Government that we would like Israel to come out fully and join the non-proliferation treaty if, as is widely alleged, it has nuclear weapons. We have not been given any firm facts on that, but it is an important aspect. As to Israeli action, that is constantly debated. Again, we have not been hesitant in making clear that action by Israel against Iran would lead to very dangerous developments. We take a very strong view that that is not the way forward and is at all costs to be avoided. That is the position vis-à-vis Israel.
My noble friend is absolutely right that one of Iran’s claimed excuses, shall we say, for pushing ahead—one of its reasons for defying IAEA resolutions and UN resolutions, as it has—is that it should have nuclear weapons because it says that Israel has a nuclear weapon. That reality must be faced. My noble friend is not entirely right in saying that Iran is not in defiance of resolutions; it is; it has broken resolutions in the past. I hope that I did not misinterpret what she said on that. This is the problem: we have a regime in Tehran that cannot be trusted and has been declaring that it was co-operating and collaborating with NPT and IAEA resolutions when it was not, as has been revealed by various alarming discoveries along the way.
My Lords, should we not all calm down a little about this? The Iranians think that they have total justification for possessing nuclear weapons. For the life of me, I cannot see any case against their having a nuclear weapon. Who on earth are they going to use it against? If anyone says Israel, you cannot imagine a more suicidal act for a country to perform than to launch a nuclear weapon against Israel. That would mean the total incineration of Iran. We ought to realise that with the Iranians we are dealing with people who deal in braggadocio, who say things they do not mean that sound great on television for local consumption. We should calm down—let them get on with it and waste their money.
The noble Lord is pointing to what one would regard as a certain reality: people should not behave in a suicidal fashion. One hopes that he is right. Similarly, one hopes that what might be called black swan events and catastrophes do not suddenly develop, almost accidentally, out of the situation. The fact remains that it is very dangerous. The proliferation of nuclear weapons would not stop at Iran if it goes full tilt in that direction. There have been indications from a leading Saudi spokesman in the past few days that, should this kind of development occur, Saudi Arabia would have to consider its position on nuclear weapons, and proliferation would proceed. The noble Lord says that proliferation does not matter because somehow mutually assured destruction and mutual deterrents will prevail. He could be right but he could be disastrously wrong.
I declare an interest as someone who was born in Iran and still works very closely with Iranian academics. My worry is that in Iran views are very divided about nuclear weapons, but the moment there is a threat of sanctions and a threat against Iran, it is likely that even among those who are absolutely opposed—I work with the resistance movement—a great many would back the Government. The fear of Israel is very real, and the idea that there is one law for Israel and one for Iran is absolutely understood by Iranians. The idea that Britain will bring its Army or Navy will be seen as armed defence of Israel. That would undermine any negotiations on the table. It would be very much better if negotiations were conducted perhaps a bit more quietly and with less threat. As an academic, I know that we are suffering enormously because brilliant Iranian students who want to do postgraduate work in this country cannot do so. As someone who came to this country as a student I can tell you that sometimes we turn good.
The noble Baroness speaks with a lot of experience and understanding in her analysis of the psychology of the Iranian policy-makers and the Iranian Government, which, as she rightly said, is a divided house in itself. All kinds of internal conflicts are going on inside Iran. As to the question of getting back to negotiation, that is something that we all want. The aim of this policy, as my right honourable friend in the other place has made clear this afternoon, is to bring Iran back to the negotiating table, and to do so in ways that will then lead to a sensible discussion of its nuclear programme and recognising its rights, if conducted properly and in accordance with NPT and IAEA resolutions and requirements, to have civil nuclear power. That is recognised, but negotiation there must be. Bringing Iran back to the table is the task. So far, doing that by saying, “Please come back”, and through the normal diplomatic niceties has proved totally inadequate. That is why we have come to the point when the pressure must be increased and the Iranians must be brought back to the table. Any suggestion that instead they will grow more violent and take action to close international waterways must be totally rejected and opposed.
My Lords, will my noble friend tell the House what active consideration is being given by the Government to the proposal made this week by Prince Turki al-Faisal of Saudi Arabia that the international community should pursue the concept of a totally nuclear-weapon-free zone, properly policed, that would include both Iran and Israel?
This is an idea, an aim and an ambition that the Government fully share. The idea of a WMD or nuclear-weapon-free zone in the Middle East is one to which we certainly subscribe, and this must be a longer-term aim. How we get from here to there is, of course, the problem. Prince Turki al-Faisal is an extremely wise and perceptive commentator and certainly I read very closely everything he had to say on the matter. That would be the ideal. How we would get from here to there would certainly include how we deal with the situation not only in Iran but also in Israel.
My Lords, I fully support these robust sanctions. Will the Minister not agree that there seems to be an ineluctable slide towards conflict, which could erupt from an incident of any kind? Iran is a very important country with a remarkable history. Is there not a very strong case for telling the Iranians that we should resume negotiations not only on nuclear issues but on much broader matters of mutual concern in the region, and on bilateral relations?
This kind of approach would be very good, if we could get Iran to recognise that it must conform to the IAEA requirements and if we could have some trust and reassurance that it is not moving surreptitiously to the full weaponisation of its nuclear programme. If that assurance was there and if Iran was prepared to talk, we could certainly develop closer relations with what, after all, is a very great country that deserves respect—although it forfeits it by some of its actions—for its history and prominence in the region, and we could move in that direction. However, to get Iran even to come to the table on that basis has so far proved impossible.
My Lords, I regret to say that I very much agreed with the Minister when he rightly said that whichever part of the Iranian Government one looks at believes that Iran has the right to develop nuclear weapons. The problem with that is that it does not stop with the conflict with Israel; it drips into the conflict right across the Gulf, including, as he said, Saudi Arabia. Perhaps I may ask him about the short-term issue of access to oil. Can he tell us anything about Saudi Arabia’s undertaking to make up the shortfall in any Iranian crude, and whether its undertaking to try to hold the international price at $100 a barrel has been dealt with officially by Her Majesty's Government and that of Saudi Arabia?
We cannot yet to talk in terms of undertakings, but there have been indications. Obviously it is up to Saudi Arabia and other major oil producers in the region, such as Kuwait and the United Arab Emirates, to undertake to make up the shortfall. The indications are that this will be possible but we are not yet at the stage where I can say that undertakings have been officially agreed; they have not.
There is also a problem of matching the quality of oil concerned. As the noble Baroness knows, although the Iranian oil that Greece, for instance, has been heavily reliant on is slightly sour, the make-up oil from Saudi Arabia would be considerably sourer and would carry a much heavier sulphur content as well, so there would be difficulties for refiners. The usual complexities that arise when one moves oil flows around inside the oil market would occur, of the kind that I have just described. Therefore, I cannot say that there is a neat package of additional oil supplies ready to come into place. One has to realise that the Iranian oil does not necessarily disappear; it will not stop being produced and will probably continue to enter the market, although one imagines at a certain discount in relation to the major customers such as China.
My Lords, the effect of sanctions may be to cause opinion in Iran to coalesce behind the Government, the risk to which noble Lords’ attention has been drawn by an expert. Will the Government do everything they can as imaginatively as possible to make clear that we have no quarrel with the Iranian people and that the quarrel is purely with the regime? Will the Government also urge their European partners to avoid unnecessary irritants in relations with Turkey, a country which has enormous experience of peaceful coexistence with Iran and a country whose expertise and experience is extremely important to us at this difficult time?
I give a most emphatic yes to both those propositions. Indeed, in relation to the second one, it is very important that we work very closely with Turkey, which has indicated very clearly that the idea of Iran becoming a fully weaponised nuclear power is extremely unwelcome to it and that it will combine with the necessary actions and strategies to prevent that. At present, the main strategy is pressure through sanctions, but there are other tracks of diplomacy to develop as well. One can pursue more than one track in these matters, but this is the one that we are now engaged on, which we hope will bring results.
My Lords, I endorse very strongly what the noble Lord, Lord Luce, said. Looking at the practicalities of the immediate threat, can my noble friend assure the House that there are adequate minesweeping capacities should the Strait of Hormuz be blocked by the Iranians?
My noble friend asks for assurances. I can give him assurances that all the necessary deployments and efforts will be made to achieve that. We are advised that it can be assured that any mines that are planted, for instance, by night or surreptitiously, will be very swiftly removed. There is the conviction that there can be no sustained blocking of the Strait of Hormuz and that any attempt to do so will be defeated. That is what I can tell my noble friend. To go beyond that to say that everything is perfect, nothing will be challenged and that there will be no difficulties would, of course, sound incredible, and I do not intend to give that assurance.
The noble Lord is raising the broader issue that we have touched on in these discussions and in many debates about the position of Israel and the position of Iran. On the second point, we are pretty sure that Iran is still short of achieving nuclear weapons, but we are also fairly well advised by the IAEA and other bodies that it is on the path to doing so. As far as the Israeli situation is concerned, I was stating the official position. Obviously, it is common talk that Israel possesses these weapons, but it has not officially asserted or confirmed that it does. Therefore, in terms of international facts—and I must use my words carefully—it cannot be asserted without question that it has nuclear weapons. That is the unsatisfactory position at present, and it is one from which we would all like to move. Of course, in the longer term, a middle-eastern nuclear-free zone would take us in that direction, but how we get there is the issue before us now and before all diplomats in the free world.
Is it not obvious, as the Minister said, that doing nothing and saying nothing is not an option at the moment? Is it not vital that Britain’s voice must be heard and that the Government are doing exactly that? Is there any indication of the Iranian Government acceding to the reasonable international pressure which is being employed at present? If not, is there any possibility of that in the future?
We clearly hope so. That is the aim of the policy. At the moment it does not look like that. It may be in the next few days that, as has happened in the more distant past, the Iranian authorities will come forward and say, “Yes, let’s return to the negotiating table”. They may add all sorts of impossible conditions and qualifications that make that difficult, or they may see sense and, in the interests of the Iranian people—with whom we have certainly have no quarrel; I should have made that clear in answer to the noble Lord, Lord Kerr—they will begin discussions in a sensible, calm way on how we prevent the whole nuclear proliferation pattern running away into a horror story in the future for the Middle East.
My Lords, there is a very detailed calculation going on at the moment in the United States and elsewhere about the difference between the very bad impact of Iran having nuclear weapons, and about proliferation and so on, the impact of attacks on her nuclear system and what it is believed will be the short-term effects of these. Does the Minister agree that that is a very dangerous calculation, because the one absolute certainty is that when you embark on war, you have no idea where that will lead?
The noble Lord is absolutely right. As Prince Turki, who we have already mentioned, said the other day, wars lead to more wars. Once we were in a pattern of violence and conflict—which might be reached by accident, which is a very terrifying prospect—there is no telling where the consequences would go. I think Prince Turki said that one consequence would be retaliation not just against the western powers but the entire Gulf state community and indeed all those who were deemed to have had any association with those who had done the attacking. Who knows where the consequences would lead? What we do know is that if we get to the point of violence, this policy will have failed and a new one will be required. That is something we are determined to avoid.
Legal Aid, Sentencing and Punishment of Offenders Bill
Committee (5th Day) (Continued)
82: Schedule 1, page 136, line 34, at end insert—
“( ) all areas of employment law not otherwise covered in this Schedule”
My Lords, I beg to move Amendment 82, in my name and that of my noble friend Lord Beecham. We come now to employment law, which, if the Government have their way, would be taken out of scope of legal aid altogether.
As a country we spend £4 million a year on legal aid for employment matters. That goes to help some 13,300 people at around £300 per head. Representation, as opposed to advice, is provided only to a handful of people a year, measured in the dozens not the thousands, and at pretty negligible cost. The kind of issues at stake will be well known to the Committee; they include unfair and wrongful dismissal, redundancy, employment contracts, discrimination, strike action, data protection and employee confidentiality, and wage issues.
These issues are of importance to the individual who has become a victim of an unlawful practice, but the Government consider them insufficiently important to merit public money—there seems no other interpretation of the Government’s intentions. Further, the Government consider that there are alternative sources of funding available for these cases. The Government’s consultation document says:
“We note that damages-based agreements are available in employment cases and that there are other sources of help available in this area of law. For example, some Trade Union members are usually entitled to legal assistance, the employer may be willing to engage in civil mediation (which is sometimes paid for by the employer), or, if the dispute concerns unfair dismissal or flexible working disputes, and there are no complex legal issues, the Advisory, Conciliation and Arbitration Service (ACAS) provides a free arbitration service. The presence of these alternatives is not determinative, but makes the provision of legal aid in these cases less likely to be justified”.
I cannot resist the comment that this must be one of the first times that a Conservative Minister and Secretary of State have plotted together to drive people into the arms of the trades unions, but so be it.
More seriously, we have to acknowledge on all sides that the majority of British workers are no longer members of trade unions. Damages-based agreements are not yet widely available and, we believe, open up the possibility of predatory behaviour by interested parties. In looking at the Solicitors Disciplinary Tribunal’s website, it does not take long to find evidence of pretty dodgy employment law claims management companies taking huge chunks of people’s damages—and that is before the lawyers get paid. If this part of the Bill goes through, the consequence will be that a large proportion of employees who have been dealt with unlawfully will end up representing themselves and will not have the benefit of legal advice.
When we asked government departments whether, when they are taken to a tribunal, they would typically be represented, hardly surprisingly, the answer was a unanimous yes. Similarly, private employers will often—although certainly not always—be represented at a tribunal by lawyers, whether they are solicitors or barristers. In practice, this means the creation of a highly prejudicial inequality of arms between employees and employers. That of course can be alleviated, as we all know, by high quality advice pre-tribunal, but even that cheap but successful option is no longer to be provided. We argue that in real terms it will mean an erosion in individual employees’ rights, especially those at the margin—for example, those on minimum wage and those who are most vulnerable. Those firms which choose to behave in the worst possible way by playing fast and loose with their employees’ rights may well be advantaged. It could be a bit of a race to the bottom, which is a cliché but precisely what happens when we start restricting access to justice. Good companies and employers that treat their employees with respect and that honour the law will find themselves at a competitive disadvantage to those who employ predatory practices. We do not believe that it is in anyone’s interests to encourage such a system.
I am afraid that it looks as though a concerted effort to curtail the rights of employees is taking place in our system. The law creates many of these rights because of the fundamental basic inequity of power between employer and employee. If these rights are to be taken away from employees gradually, that balance will shift. We have to make a decision as to whether that is a good or a bad thing. I am not talking about just the taking away of legal aid from scope; I am talking about the discussion that is going on at the moment about fees for employment tribunals, including the fee to begin a claim and the much larger, additional fee if the claim goes to hearing. I am talking about unfair dismissal and the qualifying period being doubled from one year to two years and, even though this may sound trivial, the payment of expenses to witnesses and claimants to attend an employment tribunal.
We on this side believe that such moves are unhealthy and a backward step in the very sensitive field of the employer/employee balance of power relationship. As my right honourable friend John Healey MP says today in an article in PoliticsHome, the emergence of the Trade Union Reform Campaign appears to be a rather extreme part of this process, but here we are discussing legal aid and whether it should remain in scope or be taken out of scope.
The cost of ensuring that people have good quality advice on employment rights and are able to exert those rights before a tribunal is, as I have said, £4 million a year. If those 13,000 people were not able to get some money or their job back, and if only a tenth of them went on JSA, that £4 million would immediately be spent just on that benefit. There are lots of examples of cases where employment advice has proved to be beneficial, and I want to mention a case referred to in the document London Advice Watch Report, which sets out the findings of a research project on the provision of social welfare law advice in London. The document was launched in the Palace of Westminster a couple of weeks ago, and among the speakers were my colleague Mr Andrew Slaughter MP and the noble Lord, Lord Phillips of Sudbury. The document cites the following case:
“A man who had worked at a large retail chain for eight years was fired for gross misconduct after making a mistake on the till which cost the shop a very small amount of money. Tower Hamlets Law Centre helped him claim unfair dismissal and won him his job back, along with compensation for lost earnings”.
The facts of that case are incredibly simple and straightforward, and I would bet that they are replicated many times in England and Wales, but it is just this sort of case where, if advice is not given, an employee who is unfairly sacked will go without a remedy. To use the phrase again, he will be without access to justice.
We think that this is £4 million that is well spent under our legal aid system, and has been for many years. That is why it is economic, humane, just and sensible to continue this provision and why we are putting forward this amendment to keep employment law in scope. I beg to move.
My noble friend has put his finger on the spot. The issues we are discussing are of prime importance, particularly for people who are not members of trade unions. I hope that they would be, but they are not, and we have to face up to the facts. We are talking about people who are particularly vulnerable, and I hope that the Liberal Democrats in this House are equally concerned about this issue. Employment law should enshrine issues which are vital to protect the lives of ordinary people. In that regard those who, unwisely or wisely, are not members of trade unions should be properly protected, but they are not. Indeed, they are going to be worse off if this particularly noxious proposal is carried.
I hope that the Minister will see sense, but I have seen little sign of that. He knows that I have a high regard for him, but I am surprised that he is part of the present coalition—I thought more highly of him than that. Vulnerable people need to be protected and I am concerned that that is far from being the case at present.
My Lords, I, too, support my noble friend’s amendment. The Government have not got their act together on this. We are told that these rights are being taken out of scope because there are other means of dealing with them. Well, the other means of dealing with them, of course, are via the arbitration system, but it is not very long ago since we debated in this House a set of proposals emanating from another wing of government, the Business Secretary, which were designed to weaken employment law on arbitration.
It was proposed that in future a dismissed employee should have to pay a fee before getting a case to an arbitration tribunal. And then, when the employee came before an arbitration tribunal, he would not face the kind of arbitration tribunal that we are used to for dismissal cases, with lay members from both sides of industry sitting on it—oh, no. In future, there would be no relatively friendly environment in which an individual could make a submission, perhaps without being legally represented, but a judge sitting on his own. In other words, it would be a much more legal system, and this legislation makes provision for no legal aid to be provided. That is totally unsatisfactory.
On the one hand, you have a Government saying, “Well, there are other means of dealing with the situation through a non-legal system”; on the other, they are doing everything possible to make it difficult for someone who has been dismissed unfairly, as they feel, to take their case to an arbitration tribunal instead of the law. This is absolutely unsatisfactory and I really do think that the Government have to re-examine their policies in this regard. It is totally unfair to individuals who believe that they are doing a good job of work, who become dismissed and who feel that they have a case, and there is nowhere for them to take it.
My Lords, I, too, support the amendment. It must make practical sense to put employment cases back into the scope of legal aid. Worryingly, we face the prospect of rising unemployment. We could see significantly rising unemployment if there were to be a disorderly collapse of the euro. Let us hope that that does not take place, but the interaction of global economic circumstances with the Government’s deliberate policies to reduce employee protection in the interests of liberalising the labour market could result in significant numbers of people becoming casualties. While the Government might argue that the overall economic process will be benign in the interests of this country, it is unquestionable that these circumstances may be malign in the interests of individuals.
In a process of economic adaptation, it is extremely important that, as a society, we take decent and proper care of those who may be the casualties of it. It must be a basic right that people should have legal aid to ensure that they are well advised and that, where necessary, they are represented and their cases can be well made in employment tribunals. What they are personally suffering is a product partly of events and partly of policy, and all of us have a responsibility to ensure that, in times of great economic difficulty, no more people suffer in these processes of change than is truly necessary.
If someone has a genuine right to bring a case against unfair dismissal or some other aspect of their employer’s treatment of them, and they are not supported to make that case, it leads to a sense of injustice. A sense of injustice pervading society in a context of economic stress and social strain cannot be something that the Government want.
If we look at the implications for individuals, again, surely Ministers do not want people to suffer unduly or to incur the costs to the public purse that one can foresee occurring. If someone loses their job, as my noble friend Lord Bach has pointed out, they are liable to become reliant on benefits and could be on the start of a slippery slope that leads to debt, homelessness, the destabilisation of family life, and physical and mental ill health, all of which carry costs to society and to the public purse which surely the Government would wish to avert.
I do not know whether it is the case—it has been suggested to me that it is—that the Government have received advice from those responsible for the conduct of the employment tribunals that it is a mistake to take employment cases out of the scope of legal aid. It would be helpful if the Minister could advise the House whether the Government’s policies have been endorsed or criticised by employment tribunals and whether they have been advised that it would be wiser not to take this course.
For all the reasons that noble Lords have put forward and those that I have suggested, I hope that the Government will accept the amendment. If they are unable to accept it today, I hope they will look carefully again at this area of reduction in legal aid before we come to Report.
My Lords, I, too, support the amendment so persuasively moved by the noble Lord, Lord Bach. I do so for three reasons. The first reason concerns the vital importance of employment rights. Few areas of the law are of such day-to-day practical importance to the individual as their rights under employment law. This is surely at least as important as environmental pollution rights, which are within scope under paragraph 37. I do not understand why equality is included in paragraph 38 and so is within scope, covering as it does some employment rights, including the important right not to be discriminated against on prohibited grounds, but not other equally important employment rights such as the right not to be unfairly dismissed.
The second reason—the noble Lord, Lord Bach, mentioned this—is the inevitable inequality in advice and representation between the employer, who almost always has legal advice and representation in the employment tribunal, and the employee. This will undoubtedly result in inequity and in decisions being given that are contrary not only to justice but to the law.
The third reason is the absolute inevitability that the lack of legal advice and representation will result in people wrongly losing their jobs and becoming reliant on state benefits. I hope that the Minister will address this point because the very limited financial savings that we are talking about are completely illusory for this reason.
My Lords, obviously, as the noble Lord, Lord Bach, said in his introduction, the purpose of the amendment is to make legally aided advice, assistance and representation available for all employment matters.
I have said from the Dispatch Box on one or two occasions in the context of these debates, and I have heard my noble friend Lord McNally say it—no doubt, he has also said it on many occasions when I have not been here—that we are faced with a need to prioritise resources. Clearly when individual issues are properly the subject for debate, it is always possible to make a case for that particular sphere of law or to bring that particular subject within scope. That has been evident from the contributions of noble Lords in this debate. Given the limited pot—it is not a bottomless pocket—my noble friends have had to address how we prioritise. As has been said on numerous occasions, we believed that the more important objective and priorities were those involving life, liberty or homelessness. As a result, we did not feel able to include within scope the employment law issues described by the noble Lord, Lord Bach, and others in the context of the amendment.
It is also important to remember that one of the other things that we have looked at and that has been addressed is where there are other opportunities for funding to be made available. That was touched on particularly by the noble Lord, Lord Bach, when he moved the amendment. Also, employment tribunals were designed, at least initially, to be simple. Their purpose is to enable parties to make or respond to a claim without the need for legal representation. While we recognise that clients find advice in the preparation of their case undoubtedly useful, when these tough choices had to be made we did not consider that this group of clients were generally likely to be in the category of particularly vulnerable people whom we have provided for in other parts of the Bill. We do not accept that the tribunal cannot be accessed or that justice cannot be obtained without legally aided advice.
In fairness, the noble Lord, Lord Bach, quoted from the Government’s consultation paper, in which we outlined other sources of advice such as the free helpline of the Advisory, Conciliation and Arbitration Service or the trade unions. I take the point made by the noble Lord, Lord Clinton-Davis, that numerous people are not in trade unions, but a considerable number of people are still covered. I seem to recall USDAW announcing earlier this week a very successful action that it had taken on behalf of its members in branches of Woolworths. It had managed to get claims. I am sure the noble Lord would agree that there is still an important and valid role for trade unions.
ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. In some cases, an employer may indeed be willing to engage in civil mediation. There is also help available from the pay and work rights helpline and the redundancy helpline, and the tribunal’s public inquiry line can provide factual information although, I accept, not legal advice. Again, in some cases, voluntary organisations or charities may be able to offer assistance.
A number of noble Lords mentioned other issues that are not immediately pertinent to the debate on legal aid. DBIS is still consulting, although it might not have even got to consultation yet. I will certainly make it my business to ensure that—
Many of the people we are talking about are inarticulate. In my view, they have to have some sort of professional advice, but advice on the spot that is legally articulated on their behalf. No one else will do it. What does the Minister say to that?
There is a distinction between advice that is preparatory to a tribunal and advice in representation. I will check this but at the moment what has been sought is in many respects advice preparatory to tribunal. The number of cases where there is actual representation is very small.
My Lords, in many cases professional advice by representation is not actually available. I have already said that I do not for a moment deny that the advice that people get in the preparation of a case is valuable—of course it is—but we get back to the issue of looking at the competing priorities for funding from a limited pot. We have said that cases involving life, liberty and homelessness are more important priorities. We are looking, too, at circumstances in which the tribunal is itself intended to be a forum in which people could much more readily access such things informally, without the need for, or recourse to, lawyers. When I was a law student, the idea was still alive and fresh. That difficult choice was made against a background where there are other sources of advice available—I shall not list them again—and in the context of a tribunal that is intended to facilitate those who do not have representation. I do not shy away from it being a difficult choice, but it was made against other competing priorities.
I was about to take the point that the noble Lord, Lord Howarth, and the noble Baroness, Lady Turner, made. We have mentioned other proposals that have been on the airwaves. A different department is responsible, but I will ensure that these concerns are drawn to the attentions of BIS, and will respond to the more specific points when it is possible to draw them to the attention of the department whose responsibility they are. I think that I am right in saying that in some cases the consultation has not been completed.
I put another question to the Minister, although I am very grateful for his answer to that one. He himself suggested that we are no longer in a golden age, if ever we were, in which tribunals were easily accessible and user friendly. Will he say whether the department has received representations and advice from the employment tribunals on this matter and, if so, what it was? Did those tribunals endorse the removal of employment cases from the scope of legal aid?
I think that I asked whether someone could come to my aid and give an answer to that question. Perhaps if I talk slowly, that may be possible. Failing which, I may be able to intervene on the noble Lord, Lord Bach, if he responds to this amendment, or I will have to resort to writing to the noble Lord. Frankly, I do not know the answer, but I shall try to find it out for him.
While the Minister awaits advice, will he tell us about the processes that led to the drafting of the impact statement? A number of us have argued that there will be knock-on consequences for the public purse to the budgets of other departments and the wider economy from taking these cases out of scope. What examination have the Government made of the cost implications elsewhere for their own policies, which the Minister keeps telling us he is applying only under duress, to save money on the legal aid budget itself? The justification offered by Ministers for this is that it is essential to contribute to the reduction of the deficit, and this is how they are going to contribute to the reduction of the deficit. Many of us simply do not believe that the net effect of these policies will be to reduce the deficit—it will be to increase it. What calculations have the Government made about that?
As the noble Lord acknowledged, the question goes wider than this particular case. I remember dealing with or at least considering the matter in relation to an earlier amendment last week. While it is often said, I do not think that any substantive evidence has been given that the cost to the public purse will be greater as a result of these policies. Certainly, if part of the purpose is to ensure that the deficit was addressed, it would not make sense to rob Peter to pay Paul, or whichever way round it is. The Government’s view is that in the totality there is benefit and that this will make a significant contribution to the reduction of the deficit. I apologise to the noble Lord, but despite the extended debate I still do not have the answer to his question.
My Lords, since this seems to be a harry-the-Minister moment and I need to make up for yesterday, can I put a couple of questions to my noble and learned friend that I would like him to think about while he is waiting? First, in my considerable experience of tribunals generally, employment tribunals have always really thought that they should be courts. They behaved much more like courts than any other form of tribunal. Indeed, the Administrative Justice and Tribunals Council was so called because the employment tribunals insisted that they were not administrative justice and wanted “tribunals” in the title, reflecting their feeling of difference. Perhaps he could comment on that.
Secondly, and linking with this legal aid point, I picked up on the words of the noble Lord, Lord Pannick. I take the point about priorities, and I am not going to say that the other things which he mentioned are of lower priority than this. I had a constituency case, years ago, where somebody was up against one of the big banks, with QCs all over the place, so to me the question is: is it fair, just and right that people should be left without advice and assistance when they are up against that sort of might? I am not sure that the answer is yes.
My Lords, the lesson of this is to get an answer quickly so that you do not get other questions accumulating. I know that my noble friend has considerable experience from his time in dealing with tribunals. I cannot remember what his exact role was, but I know that he was very much involved and I remember meeting him when he had that role and I was in another Parliament. As I indicated, over the years it has perhaps become much more formalised but we should not lose sight of the fact that the intent of the tribunals system generally, no matter what they might want to call it, is to have a forum in which people can much more readily come and put their case forward than one with all the formality of the court. Indeed, as I indicated, that was part of the thinking as to why we are dealing with the tribunal system. Perhaps the necessity of it is, let us say, that there was a less compelling argument as to why these cases should therefore be brought within scope than would otherwise be the case.
My Lords, one of the points that I made was that the Government were intending to change the nature of the tribunals, by removing the lay people who sit on unfair dismissal cases and replacing them by a judge sitting alone. In other words, they are giving a much more legal feeling to the person who appears before them than when there were laypeople on tribunals. I am not a lawyer, but I have a lot of experience of tribunals. I sat for many years as a member of the arbitration commission, and so on, so I know quite a lot about the way in which laypeople operate on tribunals. It is certainly a much more friendly arrangement for an individual appearing before such a tribunal than if he or she appears before a judge sitting alone. That changes the nature of the tribunal and of the apparatus. I wanted to raise that with the Minister.
I accept that there is obviously a distinction between a tribunal and a more formal court setting. It was in the context of those proposals, which are not before us in legislation, that I indicated I would respond in more detail. Likewise, I will respond to the noble Lord, Lord Howarth. He asked a perfectly straightforward and fair question and I very much regret that I cannot give him an answer, but I will certainly do so and ensure that that response is circulated to other Members who have participated.
Would the Minister, between now and Report, consider the experience of someone such as myself, who was removed from employment because I wished to join the appropriate trade union? Under the Government’s proposals, preventing employees joining trade unions by threatening them will, in addition to the other disadvantages, provide an incentive for unscrupulous employers to try to stop their employees joining trade unions. In my case, it was a major company which recently has gone bust.
My Lords, it is always possible to speculate on what might happen in one case or another. To take the noble Baroness’s point, if it were a case where there were efforts to prevent her joining a trade union, that suggests that there was trade union involvement there, and one of the points that I have made is that trade unions have been a source of support over many years. However, it is difficult to look at the circumstances of one case without drawing conclusions that may be inappropriate. I simply observe that there are other forms and sources of advice that could be available in such circumstances, but perhaps not least from a trade union.
I conclude by making it clear that, as the noble Lord, Lord Pannick, highlighted, although legal aid has been removed for employment cases, it will be retained for judicial reviews and claims relating to contravention of the Employment Act 2010; discrimination claims are available there. That is consistent with what we had indicated we believed to be an important priority. In those circumstances, I ask the noble Lord to withdraw his amendment.
My Lords, the concept that employment tribunals are a cosy chat between an employee and his boss in front of a very receptive body of people is quite wrong these days. An impression of unfairness is created for the employee who is seeking his rights when he finds perhaps even a QC appearing on behalf of a wealthy employer. I have appeared many times for employers, sometimes for employees and sometimes on my own behalf.
The excuse, or the reasons, given by the Minister would be far more acceptable if he were to say, “Well, if a union is backing an employee, that is fair enough; they can pay for legal representation”. If he is there on his own, why not just have the boss—the person who did the sacking—in front of the tribunal, not lawyers who in many cases are overpaid when they are dealing with the individual appearing in front of them?
Before the Minister sits down completely, I have a question arising out of his emphasis on legal aid being available for equality claims. If I have understood this part correctly, paragraph 40 makes clear that legal aid will be available if your claim is in connection with a claim that is within scope. Is it right, therefore, that if I am a dismissed employee and I wish to be eligible for legal aid under the new regime, I should add a discrimination claim to my claim for unfair dismissal and then both of them would be within scope for legal aid? If that is correct, the consequence of excluding general employment claims from scope will simply be to encourage unmeritorious discrimination claims to be brought in order to ensure legal aid for unfair dismissal claims.
To pick up my noble friend Lord Thomas’s point, I do not think I ever suggested that tribunals were a cosy chat; indeed, I suggested that they were of a somewhat different nature from those of 30 or 40 years ago. However, we should not lose sight of the fact that employment tribunals were designed to be simple and accessible, and that the parties can make a response to a claim without the need for representation. Similarly, an employment tribunal and its chairman must, so far as is practical, ensure that the parties are on an equal footing—that is actually in the rules.
With regard to what the noble Lord, Lord Pannick, says, it is the case that where an employment claim involves both discrimination and non-discrimination matters, we will consider that under the rules that we put in place for connected matters under paragraph 40 of Part 1 of Schedule 1 to the Bill. Those rules will be set out in regulation but, as with any application that is within scope, this will not necessarily bring in these cases automatically. Of course there is still the merits test, albeit that it was a category that was in scope.
My Lords, I am very grateful to all noble Lords who have taken part in what I was going to describe as a short debate but is now a medium-sized one. None the less, it has been a passionate debate, with many strong views being expressed. I am grateful, too, to the Minister for answering the sometimes difficult questions that were rightly posed to him. I am particularly glad to thank the noble and learned Lord for acting as a recruiting sergeant for trade unions. Speaking as a member of a trade union, I think that that is a splendid thing to do from the government Front Bench. He is quite right; this is a strong argument for people to join trade unions and get the help that that brings. I know he was making a serious point.
On this occasion, the Government and even the noble and learned Lord are being rather naive about tribunals. It seems that the best justification for what the Government are doing is that because tribunals were designed to be informal, they are therefore informal and it is fine for individuals to represent themselves in person on a regular basis, even when the other side is represented by a QC or a lawyer of any kind. There is nothing that the tribunal can do to make it fair if that is the position. One thing that the state has done to make it fairer is to give individuals who do not have the benefit of trade union membership or any other resource—who do not have the money to pay for lawyers—some legal advice and, in occasional cases, representation at a tribunal, just to equalise the situation a little. I have no doubt that employment tribunal judges and the lay members who sit on tribunals welcome the fact that individuals have had advice or are, on occasions, represented. That makes their task that much easier than it is when there is complete inequality of arms.
I ask the Government why they are making a system that works pretty well at the moment more unfair and more likely to lead to injustice—this is true about a whole range of these issues but we are talking here about employment tribunals—for savings of some £4 million a year. That is if there will be savings, but I will come to that. Many arguments have been put forward against this change from all sides of the Committee this afternoon.
The question that I want to ask is: given that the only possible reason for doing this is to save some public money—we know, of course, that public money must be saved—is the Minister really satisfied that this will save any money at all? The obvious consequence of there being no legal aid is that bad cases will be taken forward by individuals, which will clog up the tribunal and slow it down because the individual will not have had advice or representation. Good cases will not be pursued, which is an attack on justice, or, if they are pursued, will take much longer to be heard because of the large number of bad cases that suddenly find themselves before the tribunal.
Take, for example, a person who feels aggrieved and is advised by a lawyer that he has no case or no chance of winning but still feels aggrieved. He therefore pursues his argument to the bitter end. That will take up much more time and money. Am I right?
As usual, my noble friend is right. The point is that many individuals who feel aggrieved, when they are advised—whether by a trade union lawyer or a private lawyer—that they do not have a case, will take that advice and not clog up the system in the manner that I describe. One suspects that there will be no savings at all for the poor employment tribunal itself. It will be caught with hopeless cases that will get nowhere, and claimants with good cases will have to wait a very long time to pursue their cases, if they even pursue them at all. It all seems totally unnecessary when the system that we have in England and Wales works well. I hope that I am not putting it too high when I say that I believe it is the envy of the world as far as employment law is concerned.
I hope that the Government will reconsider this aspect of the Bill between now and Report. I am minded to bring this matter back at Report for decision. However, for the moment, I beg leave to withdraw the amendment.
Amendment 82 withdrawn.
Amendment 82ZA, in substitution for Amendment 83, not moved.
Amendment 82ZB (in substitution for Amendment 84)
82ZB: Schedule 1, page 136, line 34, at end insert—
“( ) all areas of consumer law not otherwise covered in this Schedule”
My Lords, this amendment speaks to the question of consumer law and seeks to restore it to the scope from which it is removed by the Bill. Consumer law covers a multitude of cases but in particular contract law, consumer credit and professional negligence proceedings.
In 17th century terms, I view the noble and learned Lord as a Roundhead—or in view of his provenance, perhaps as a Covenanter—rather than as a Cavalier. However, I am afraid that “cavalier” is the only word that I can apply to the Government’s attitude to access to justice in this and other contexts. That attitude is well illustrated by the airy dismissal of the views of those whom they consulted on whether consumer law should be kept within scope. The Government carried out a consultation exercise and reported:
“Of those respondents who commented on this aspect of the proposals, almost all were opposed to removing these cases from scope”.
Two of the grounds that were raised are relevant for today’s purposes. The response stated that,
“some respondents argued that consumer cases should be retained, in particular professional negligence cases where negligence may have resulted in serious consequences for the client … in some professional negligence cases clients would need expert reports to prove negligence and without legal aid individuals would not be able to afford these”.
The Government concluded:
“Having considered the responses … we confirm our intention to remove consumer and general contract cases from the scope of legal aid. Whilst there are some difficult cases, in particular professional negligence cases, these are still essentially claims concerned primarily with recovering damages, and that means that we consider that their relative importance is generally low, compared, for example, with issues of safety and liberty”.
That is a classic case of an argument reductio ad absurdum. To say that life and liberty are more important than contract law or divorce is axiomatic: it does not advance the argument one whit. The Government also said, as we are so used to hearing in debates on this Bill:
“There are other sources of advice available in relation to consumer matters, for example, from Trading Standards and Consumer Direct”.
Here I ought to declare a non-pecuniary interest as an honorary vice-president of the Trading Standards Institute.
The Government continue:
“There may be alternative non court based solutions in some cases, for example, through regulators and ombudsmen”.
I am rather surprised that they did not add Which? and the helpful columns in the Guardian and weekend newspapers while they were at it. However, that is a considerable oversimplification and an underestimate of the problems which people face. Professional negligence is not merely confined to the recognised professions of solicitors or accountants, for example. Even members of the Bar can be sued for professional negligence, and that has been the case for some time. The conduct of financial advisers, like that of some other professions, might result in considerable loss to people. There is also the builder who botches the job or the architect whose design is defective. All these matters can affect many people and involve them in considerable financial loss.
It is certainly possible to obtain some alternative advice. On Monday, my noble friend Lord Stevenson spoke to an amendment about debt. He is the chairman of an organisation called Consumer Credit Counselling Service, which offers advice in the realm of consumer credit. However, that is not face-to-face advice and anything more complex has to be referred on. My noble friend advised me that that organisation tends to refer matters to the citizens advice bureaux. There is an assumption on the part of the Government that the capacity of organisations such as the citizens advice bureaux, law centres and other bodies is capable of infinite expansion. Apparently, they will be able to undertake the very large volume of cases which will henceforth be denied legal aid or legal advice. However, not only will it be impossible to obtain legal advice from solicitors, but when the very funding of those organisations through government grant for legal advice and assistance will also be cut, they will have a massively increased demand and a diminished resource with which to meet that demand, unless they obtain a soupçon from the £20 million which the noble Lord, Lord McNally, has waved about as being available for some indefinite time to assist in dealing with these problems. That is an extremely unsatisfactory solution to the problem because it is no solution. It is interesting that the Government do not specify in any detail their assessment of the availability of these possible alternatives, simply relying on the fact that there may be alternative non-court based solutions.
The really worrying feature, which again underlines the unsatisfactory nature of the Government’s attitude to this and other cases which we will be considering and have already considered, is summed up in their response to the consultation when they say:
“Although there may be exceptions, in our view the individuals bringing these cases are not likely to be particularly vulnerable compared with, for example, those in the mental health category”,
for which, in fairness, provision will be made. But, again, that is a comparison which has no significance at all, and it is not the comparison that the person who is denied access to justice will make. He or she will rightly make the comparison with somebody who has the means to afford that advice and representation. We are creating a two-tier system of justice, one in which you can buy your way in if you have the means and another in which you will effectively be denied it if you do not have the means. In areas such as this where significant harm can be inflicted on individuals—admittedly, that is not physical harm but pecuniary harm, stress and distress—it does not seem appropriate to deny them the access which the very modest funding that is involved currently allows.
The Government should look at this matter again. Over recent years, Governments of both political persuasions—perhaps one should now say of all three—have championed the cause of consumers. We are talking now about predatory capitalism or responsible capitalism and the rest of it. We ought to be looking at the bottom of the scale of providers, if you will, and at how people can be best enabled to pursue remedies against those who inflict harm on them, because this Bill does not assist in that respect. I beg to move.
This is another important amendment and I would like to support my noble friend Lord Beecham, who has moved it. If the Government suggest that caveat emptor is a sufficient answer to the case made by my noble friend, they would be wrong. If the Government say that it is simply up to the consumer not to buy shoddy goods or not to avail themselves of shoddy professional services, it will not do—particularly in the provision of services.
Professional self-regulation is not always all that it ought to be. Although we should always guard against the assumption that things are not what they used to be—a view that we are a little bit liable to become attached to in your Lordships' House—none the less, I think it is fair to say that the professional ethic has become somewhat attenuated over recent decades. We see, for example, the advertising of professional services in ways that we did not in the past. We see the marketisation of professional services, arising in part out of contracting out, and the general widespread extension of market values and market practices, which in many cases have led to greater efficiency and greater availability of services. However, they also carry the risk that those who offer these services may become a degree less scrupulous when the ethos is that of the market.
People find themselves beset by parasitic professionals. The purveyors of subprime mortgages may have been the most offensive instance in recent years that one can imagine, but there are many other cases. It will not do to leave the ordinary citizen vulnerable to predatory, grubby and dishonest so-called professionals. The issue of equality of arms that arose in the previous debate on employment law arises here, too, because the ordinary citizen may come up against professionals, or those who represent them, who are highly articulate, able to speak the jargon of a specialised field and can afford expensive advice. It must be an elementary principle that there is access to justice on sufficient equal terms to enable citizens who have been poorly, dishonestly or improperly served by professional advisers to have some remedy.
My Lords, I have some sympathy in this area. I also have a great deal of sympathy with what has been said on previous amendments, because there is a distinct grouping of those who have the means to cope with their own cases and those who do not. In this particular case, consumer law has been a matter that we have only recently begun to take an interest in—indeed my noble kinsman was the first ever Minister of Consumer Affairs. I remember that I was immediately enthused because I thought that it would make him much more interested in all the goods and facilities that I might be interested in buying. I have to admit that it did not quite work out that way. He was much more interested in the number of ounces and proportions described on the back of a product, and so on.
Nevertheless, on the other point made by the noble Lord who moved the amendment, we have concerns about the organisations that protect the consumer. Which? is obviously an important organisation, as are CABs in other areas also. If their funds are going to be cut in the way proposed, we will have problems. As I said, I have sympathy in these areas. I hope that what has been said will be taken into consideration, because there will be serious consequences in certain cases. In the most serious cases there will be facilities to represent them—or at least I certainly hope so—but people in cases which are not recognised because no legal advice has been available will lose out. As has often been said, that will lead to increased costs to the state.
My Lords, I want to underline and strongly support one point made by my noble friend Lord Beecham, and referred to by the noble Baroness, Lady Howe, and that is the impact of these changes on the organisations that are providing just the alternative support that the Minister referred to. The Bill is about taking money away not just from lawyers but from organisations that are supporting people in an important time of need.
I speak with some knowledge of this as I have had a long history in the pro bono movement. I declare an interest as chairman of the Access to Justice Foundation. One of the things that we do is to distribute regrettably small sums of money, because that is all we have, to organisations that support consumers and provide free legal advice and representation. Those small sums are going a long way towards helping people, but I know how much more is needed. I have seen organisations going to the wall, unable to continue because they depend and to some extent scrape by on a little bit of legal aid.
I should very much like to hear from the Minister just how he and the Government believe that the alternative services to which he referred can continue in the light of the cuts that the Bill is making in this field.
I am rather frightened that too many people are going to find themselves without any remedy. That is bound to arise in many instances. I hope that the Minister will sympathise with them because having an effective remedy is vital. I am not talking about professional advice but about being able to take something to a tribunal and being heard—and being heard equitably. It is not simply that people of this kind—we are talking about consumers at the moment—ought to feel that when they are treated shoddily their point of view will be heard. I am afraid that that is unlikely to be the case and they will be sort of disfranchised. People who are inarticulate and disfranchised can resort to rather unhelpful remedies.
My Lords, the effect of the amendment moved by the noble Lord, Lord Beecham, would be to make civil legal services available for consumer matters. There is a degree of familiarity about the pattern of these debates. I do not think that I am speaking out of turn in saying that the previous Administration and the Labour Party went into the last election with an understanding that the legal aid system would have to be reformed. What I find difficult in listening to the debates—and I hope that I am not offending anyone—is the sentiment, “Lord make me chaste, but not just yet”. We must reform legal aid, but when examples are presented people say, “We don’t want to reform that part of it”.
The Minister is making an important point, and he is justified in making it, but it is false. We have set out what we would have done to make savings in the legal aid budget. Our proposals would have applied largely to the criminal law, and particularly to the role of solicitors. Although I am prepared to go into details, the Committee would not be very interested in it at this stage. Our proposals would have saved a considerable amount of money. The Law Society itself has made recommendations on savings. I know that noble Lords from the Liberal Democrat Benches will later suggest a possible source of savings on criminal legal aid as well. There are alternatives out there. The one thing we committed ourselves not to do was to cut social welfare law, because we recognise that, for a relatively small amount of money, it did an incredible amount of good. Our opposition to the Government is based on the fact that they have picked on social welfare law, attempting to decimate it so that it no longer exists. That is a justified criticism that has not yet been answered.
My Lords, I am grateful to the noble Lord for setting out that position. As he said, we will come to issues of criminal legal aid later today—I hope; I am sure.
This is going over old ground, but it is important. The scale of the deficit reduction that has been required exceeded what many of us thought before we came into government in May 2010. As I said, that has resulted in some difficult decisions. On two occasions, the noble Lord, Lord Beecham, said that it was unfair to make that point with regard to professional negligence cases. He cited the response to the consultation, when we said that those were claims concerned primarily with recovering damages and that we considered that their relative importance was generally low compared, for example, with issues of safety and liberty. He seemed to say that that is so blatantly true that it does not add anything.
If one has limited resources, those are the kind of priority judgments that must be made. In Schedule 1, we have tried to apply those priorities in different circumstances. Again citing the response, he said that people who would be bringing damages claims were not likely in general to be vulnerable compared with detained mental health patients and elderly care home residents, who are unable to present their own case. He agreed that that is clearly the case. If we have to establish priorities, I think he would agree that priority would go to a detained mental health patient or an elderly care home resident.
If there was an unlimited fund of resources, the noble Lord’s point would have far more force, but given that there is not, given that decisions have had to be made as to what comes within scope and what does not, I think the balance that we have sought to strike of giving precedence to issues of life, liberty and homelessness is proper.
It is for that reason that we did not include consumer claims within the scope. The noble Lord raised the question of professional negligence cases. It is fair to say that, when we come to Part 2, conditional fee agreements may be available for cases involving damages. That makes the provision of legal aid in such cases less likely to be justified. As has already been well rehearsed, other sources of advice are available on consumer matters. There are trading standards officers, Consumer Direct and alternative non-court based solutions through regulators or ombudsmen—such as the Financial Ombudsman Service for people with complaints about financial services or Otelo for complaints relating to telecommunications.
The noble Baroness, Lady Howe, talked about the cut in CABs’ funding. Of course, there will be an impact on CABs’ funding from legal aid, although it is estimated that that is only 15 per cent of CABs’ funding. At the risk of saying this yet again, the Chamber will be well aware that the Government announced a further £20 million funding in June last year for not-for-profit advice agencies and are considering funding for future years. Last February, £27 million was announced for continued funding administered by the Department for Business, Innovation and Skills for this financial year to maintain the face-to-face debt advice programme in citizen's advice bureaux and other independent advice agencies across England and Wales.
To pick up the important point made by the noble and learned Lord, Lord Goldsmith, additional funding has been announced for not-for-profit advice agencies, and the Government are considering funding for those organisations for future years. As parallels the previous debate, we will retain legal aid for consumer matters where they concern an alleged contravention of the Equality Act 2010. Many cases involving the Equality Act will be within scope.
At the end of the day, it boils down to the fact that, with finite resources, priorities have to be made. We have had one of, if not the most, generously funded legal aid schemes in the world. Even after the changes are implemented, should the House pass the Bill, it will still be a very generously funded legal aid system. Regrettably, some choices are very difficult, but I hope that the priorities we have identified stand up to scrutiny. It is more than axiomatic that when you have limited funds, life, liberty and dealing with homelessness and discrimination are important and that people who are less able to articulate their case or defend themselves should have priority. On that basis, I urge the noble Lord to withdraw his amendment.
My Lords, I am grateful to my noble friends Lord Howarth and Lord Clinton-Davis, my noble and learned friend Lord Goldsmith, and the noble Baroness, Lady Howe, for their contributions. I am also grateful to my noble friend Lord Bach for his intervention, although if the Government were proposing only to decimate legal aid—to take 10 per cent off—I would almost be prepared to accept that. I think he was using the phrase in the vernacular sense rather than the literal sense, because we face a much bigger reduction in legal aid and advice on funding than the 10 per cent actually means.
To refer back to my noble friend Lord Howarth's contribution in an earlier debate, he was asking about the knock-on costs of some of the changes. It may interest him to know that I have tabled a Question for Written Answer inviting the Government to say what estimates they have made of the cost to other government departments and whether those departments have accepted them or made any representations about them.
The noble and learned Lord again advances the mantra about life and liberty, and of course they are most important. I am tempted to say that the Government believe in life and liberty but not in the pursuit of remedies, to paraphrase. More importantly, we are seeing the virtual death of equality before the law. There are areas where inequality will be deepened for a modest saving, at the very best. That is a socially divisive measure. It runs contrary to the big society concept and some of the words that we are hearing. The practical effect will be the denial of justice to far too many people. At this stage, I beg leave to withdraw the amendment, but it is a matter to which we may well return.
Amendment 82ZB withdrawn.
Amendment 82ZC not moved.
Amendment 82ZD (in substitution for Amendment 86)
82ZD: Schedule 1, page 136, line 34, at end insert—
“Appeals where court or tribunal certifies complex point etc.(1) Civil legal services provided in relation to an appeal to the Upper Tribunal, the Senior Courts or the Supreme Court where the relevant court or tribunal certifies that—
(a) the appeal raises a complex issue of law or an issue of fact of exceptional complexity (in which case the certificate must identify the issue),(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph.”
My Lords, the amendment deals with appeals where a court or tribunal certifies a complex point of law. The Judges’ Council, in response to the original consultation document, stressed the importance of continued funding for competent lawyers in meritorious cases. The problem is to identify which are the meritorious cases. Its response stated:
“Appeals before the Court of Appeal or the Supreme Court have to get through a demanding permission filter, frequently involve issues of difficulty and importance and may lead to the laying down of binding principles of broad application—a fortiori in the case of ‘second’ appeals to the Court of Appeal, which are subject to even stricter criteria requiring the appeal to raise an important point of principle or practice or that there is some other compelling reason why the appeal should be heard. References to the European Court of Justice relate to a difficult area of law and are made only where the answer is unclear. In appeals and references of this nature, the court ought to be given all possible assistance through professional advocacy. There should be no further cut-back in the availability of legal aid for such cases. The possibility of applying under the funding scheme for excluded cases is not a satisfactory answer, both because the scheme will be very limited in scope and because the very process of applying under the scheme is bound to be complicated and dissuasive”.
Appeals are not only about the individual case before the court or tribunal; they often change the law, and make new law and law that is binding on later cases. There is a powerful public interest that both sides of the case are properly argued. It is the court or tribunal itself that is best placed to decide whether to trigger the operation of an appeal by issuing a certificate. The concept of exceptional funding under Clause 9 is excessively narrow in its scope, and I will be returning to that later. This amendment ensures that such cases remain, where appropriate, within the scope of legal aid and would retain the possibility of legal aid when the appeal is on a matter of significant wider public interest or there is some other compelling reason why legal services are required. I beg to move.
My Lords, I too support the amendment. When my noble and learned friend responds to this debate, it would be helpful if he would explain the relationship between the types of issues covered in the amendment and Clause 9. If he and the Government believe that there is nothing in the amendment that is not in fact or in law covered by Clause 9, it would be helpful if he would say so. I respectfully suggest that it would be better for these very important decisions to be made by judges and that we should avoid a potentially unnecessary layer of satellite litigation through judicial review of decisions of the director of civil legal aid. I suggest to my noble and learned friend that it is better that judges rather than an official determine whether there should be legal aid.
I remind my noble and learned friend that the paradigm of the English claimant is the man on the Clapham omnibus, who may be coming to court with a very ordinary dispute. My noble and learned friend will recall, as a distinguished Scots lawyer, that one of the most important cases ever decided in the civil law in the United Kingdom related to a snail in a Scottish ginger beer bottle. Another of the most important cases in the common law arose from a carbolic smoke ball. One of the most important, if not the most important, cases in administrative law arose from the administrative arrangements for a cinema—a picture house—in Wednesbury in the Midlands. More recently, an extremely important case that led to a change in policy arose from a disabled person seeking guidance on her end-of-life care. That last one might have passed the test which I understand to be applied by Clause 9, but I believe that all four of those cases should in appropriate, means-tested circumstances be the recipients of legal aid and that the means test should be applied rather lightly if the outcome of the case has great importance in setting new precedent and our understanding of the law. In brief, I suggest to my noble and learned friend that the court is better placed than the director of civil legal aid to determine the importance of an issue in the panoply of precedent that the courts set.
My Lords, I, too, support the amendment for all the reasons set out by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. I add one further factor. The criteria set out in this amendment are so tightly defined that it is highly probable that in any case falling within those criteria, where one party is not legally represented, the tribunal or the court—particularly the Appeal Court—would consider it wholly inappropriate to determine the issue before it without requesting the Attorney-General to appoint what used to be known as an amicus curiae, now friend of the court, at public expense. It is much more desirable, with that public expense, for the individual to be represented rather than to have his or her case presented through a friend of the court. Again, the saving is entirely illusory.
I also support the amendment. Who do the Government propose should prepare and conduct appeals that fall into the category of either complexity or public importance in the absence of legal aid, but which will not make the cut under Clause 9 exceptional?
Unless damages are involved, conditional fee agreements will not begin to kick in. If there are qualified solicitors or barristers who have the time, the inclination and the financial ability to take on pro bono cases of complexity, I suspect that they are pretty thin on the ground and, following on from what the noble and learned Lord, Lord Goldsmith, said in the previous debate, that they are likely to be even more scarce after the cuts kick in. I am afraid that the answer will be: either pay or do it yourself. Having been at the Bar for 40 years, I would not wish to prepare my own appeal, and certainly not if it was complex.
First, I would have to discover the relevant forms—whatever they are—which must be completed and filed with strict time limits. It may be necessary to obtain transcripts of the earlier proceedings, but from where, how and who will pay for them? Bundles of exhibits correctly paginated and in sufficient numbers would have to be prepared and lodged with the court and the other side. Written skeleton arguments would have to be prepared and exchanged, and a list of authorities—the reports of the earlier cases that will be relied on—will have to be compiled and given to the court and the other side as well.
How on earth is a lay man supposed to do all that without proper advice and legal assistance, let alone argue a legal case of complexity in court? An “exceptional case” must surely include consideration of the interests of justice. Proposed new sub-paragraph (1)(c) in the amendment, which permits legal services where the court or the tribunal certifies that there is some,
“compelling reason why the proper conduct of the appeal requires the provision of civil legal”,
aid, brings in just that factor that is currently missing.
If the amendment or at the very least something like it does not go into the ultimate legislation, I fear that the result will be: if you cannot afford to pay, you cannot appeal. That undermines one of our essential constitutional principles of equality before the law, which I cannot believe the noble and learned Lord or the Government wish.
I have learned so much today. I did not know that the noble Baroness, Lady Mallalieu, had been at the Bar for 40 years. I always thought she was 40.
The amendment is self-evidently sensible. I hope that the Government will realise that it is important for the public that the points made here are expressed. We are talking about,
“a complex issue of law … wider public interest … some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services”.
I hope that the Minister will say that on reflection the amendment will be embodied in the provisions that the Government are prepared to make on Report or later. I thank the noble Lord for raising these important issues, which are critical not only for lawyers but for the public.
My Lords, I will be very brief. We on the Front Bench support the amendment unreservedly. I will make three points. Given that these cases address complex or novel points of law, they are clearly beyond the ability of the average litigant in person—and, if she is to be believed, even of my noble friend Lady Mallalieu, although I am not sure about that.
Secondly, such cases are the lifeblood of our legal system. They give it its unique character and ensure that it is kept in line with evolving social mores and values, and with extranational jurisprudential developments. They are a crucial part of our legal system. Thirdly, a failure to guarantee that such cases can be heard would be a complete failure of any regime purporting to protect the needs of the average litigant.
Perhaps I may repeat the question asked by the noble Lord, Lord Carlile. Are these cases covered by the exceptional cases regime in Clause 9? If they are, under the terms of the amendment, I would be very grateful if the noble and learned Lord would say that on the record. I will go no further than to thank the noble Lord, Lord Thomas of Gresford, for the very thoughtfully crafted amendment that we commend to the House.
My Lords, I, too, thank my noble friend Lord Thomas of Gresford for tabling the amendment. It would bring into scope any appeal to the Upper Tribunal and appellate courts where a relevant court or tribunal has certified, for example, that the case raises a complex issue of law or is a matter of significant wider public interest. It is important to note that this would broaden the existing scope of civil legal aid, as well as bring into scope a range of cases that we intend no longer to fund. The amendment extends the legal aid scheme beyond its existing bounds by, for example, allowing legal aid—albeit subject to the relevant court certifying one of the matters listed in the amendment—for advocacy in the Upper Tribunal on welfare benefit matters, or on business cases before the Supreme Court.
Further, Clause 9 ensures that in any individual case where it would be a breach of Article 6 of the European Convention on Human Rights to withhold legal aid, funding will be provided. Both my noble friend Lord Carlile and the noble Lord, Lord Bach, asked whether the amendment merely replicated what was in Clause 9. I will put on the record that it does not, in specific respects that I will explain later. It is the case, however, that in deciding whether the withholding of legal aid would breach Article 6, the director of legal aid casework must consider the complexity of the issues and the importance of the matter at stake. This addresses the point made by the noble Baroness, Lady Mallalieu. The ability of the applicant to present their own case is a relevant factor, along with other relevant circumstances. Therefore, in cases where Article 6 is engaged, the exceptional funding scheme we have proposed will include taking into consideration the complexity of each individual case considered under Clause 9.
As my noble friend Lord Carlile indicated, each case will depend on its own facts and circumstances. I remember my first ever tort lecture, when the lecturer suggested that the snail in the ginger beer bottle was perhaps one of the cleaner things in a Paisley café in 1929. As my noble and learned friend Lord Fraser of Carmyllie has just reminded me, it was never proved whether the snail ever existed. Cases of Wednesbury judicial review, as we discussed on numerous occasions today, fall within Schedule 1.
One area of distinction is that the amendment also seeks to bring into scope any case which is certified to be of “significant wider public interest”. Under the current legal aid scheme there is a rule that allows any excluded case—other than a business case—to be brought back into scope if it is of significant wider public interest. It is not our intention to include such a rule in the future scheme created by the Bill. This is because we do not consider that the presence of this factor should constitute an automatic entitlement to publicly funded legal services, particularly where an area of law has been excluded because it is considered insufficiently important to merit public funding, because there are alternative sources of funding or because the procedure is simple enough that litigants can present their case without assistance.
Nevertheless, I reassure the Committee that funding for tribunals and appeals is not being withdrawn altogether. We have focused our limited resources on the highest priority cases in the Upper Tribunal and appellate courts, such as those concerning detained mental patients, special educational needs appeals, and discrimination. Where a case is in scope, it is our intention that the public interest will continue to be a relevant feature in the merits criteria created under Clause 10, thus allowing this to be taken into account in the funding decision.
I will combine that with my comments about the extent of Clause 9, which we will shortly debate. I have indicated that it does not cover everything, but clearly there is an overlap where the director of legal aid casework will be able to consider issues such as the complexity of a case and other factors. With that assurance, I hope that my noble friend will withdraw his amendment.
My Lords, I do not intend to go into the complexities of proof in a Scottish court; it has always seemed something of a haar to me. I am grateful to all noble Lords who spoke in the debate. I will stress two points from the speeches that we heard. My noble friend Lord Carlile pointed out that under Clause 9 it is the director of legal aid who will determine whether, in exceptional cases, legal aid should be granted. I cannot imagine any director who would have in his mind the full scope of the issues that can arise in appeals against decisions from tribunals and courts. I would have thought that the Government would have welcomed, as a safeguard, the fact that civil legal services will not be provided unless there is a certificate expressly stating why legal aid should be granted in the case. That will be an advantage, rather than leaving it to the director of legal aid, whose decision may well be challenged by way of judicial review. Surely satellite litigation is the one thing that we want to avoid when we pass the Bill.
The other point that I will stress follows from what was said by the noble Baroness, Lady Mallalieu, who outlined all the steps that must be taken in every appeal: the complicated preparation of schedules, skeleton arguments and documents that some of us are familiar with. As she said, it would be quite impossible for any individual to conduct an appeal, given all the background work that has to be done. As the noble Lord, Lord Pannick, said, the amendment is tightly drawn. I am disappointed with the response of my noble and learned friend. I hope that I will be able to pursue the matter with him afterwards and come back to it at a later stage. I beg leave to withdraw the amendment.
Amendment 82ZD, in substitution for Amendment 86, withdrawn.
Amendments 82A to 82D not moved.
Amendments 83 to 86 had been retabled as Amendments 82ZA to 82ZD.
Amendments 87 to 89 not moved.
90: Schedule 1, page 137, line 38, leave out paragraph 16
My Lords, like the Minister, I learnt tort. In my case, it was at the feet of no less a person than the noble and learned Lord, Lord Hoffmann, and I remember those days with great affection, but in the course of my career I have also been involved in criminal injuries compensation cases, and I shall refer later to some of the problems that they throw up.
Once again, the Government have consulted about these matters, and once again the response from those consulted has been almost wholly negative. Nevertheless the Government, on the grounds that we are now very familiar with, are clearly going ahead with their determination to withdraw any form of legal support in the way of advice—representation was not covered—from the scheme.
This scheme is so simple that it takes only 55 pages to set it out in the statutory instrument and a mere 113 pages in the guide to the scheme that is available to potential claimants. It is fair to say that the guide also includes the tariff that for some time now has been substituted for what was a wider area of discretion for tribunals to award.
Before I come on to the issues that can confront claimants, one of the points that the Government have made is that support is available from other sources, including the compensation authority itself and Victim Support. However, Victim Support does not provide legal advice, and it is very questionable whether a telephone, or even online, conversation with the authority can help all claimants, or indeed perhaps the majority of them, because there are issues. It is not simply a case of having to establish that a criminal injury has been sustained; there are issues that can be taken into account by the tribunal in determining whether to grant an award or to reduce an award that would otherwise be available.
A number of factors come into play, such as the conduct on the occasion of the claimant, a procedural delay in reporting the matter, or a failure to co-operate with those inquiring into the matter. These might be for inadequate reasons—sloth, neglect or reluctance—but they might arise from concerns about whether bringing a claim might provoke an assailant, for example, or because the situation has created such stress that the person may not feel able to pursue matters. There are other matters too; a criminal record might disqualify or allow an abatement of an award that would otherwise have been made. Those matters—the matter of conduct, for example—are matters on which applicants might very well need advice and assistance. It will not be legal aid advice or assistance if this clause stands.
I clearly recall representing a client where conduct was an issue. He had to be advised about that, and as I was representing him I had to put the case about those matters. Equally, I had to deal with someone with a criminal record. It was not particularly relevant. He had not been convicted of a violent crime, so it was not particularly germane to whether he should have a deduction or, at any rate, a significant deduction. One of my most vivid recollections is of a very sad case of a lorry driver who was driving his lorry and was the victim of a road accident in which the driver of a sports car rammed into him head on and went underneath the cab of this client’s vehicle. He sustained some physical injury but, much worse, he sustained severe post-traumatic stress.
This was a complex case in medical terms and in terms of the quantum that the client might be seeking—at that point, there was no tariff. The case took a considerable time, and we were able to secure an interim payment for him. Tragically, this man took his own life as a result of the post-traumatic stress. In those circumstances, his widow had a sustainable claim, and the case went on. I am not saying that that was a typical case, but it is an example, perhaps a most acute example, of a case where legal advice and assistance was indispensable to the client. There will be others of that kind for which such advice will not be available in future. That cannot be right. I simply add this to the list of cases for which the amount that it would cost to restore or retain legal aid and advice to scope would be relatively modest, and accordingly I beg to move.
I was a member of the Criminal Injury Compensation Board for seven or eight years and resigned when the noble Lord, Lord Howard, introduced his tariff scheme in 1993. Reverting to the Scottish theme, I recall sitting in Glasgow on one occasion with two very senior Scottish QCs next to me. I was the junior member. We had an applicant in front of us who addressed us in a language that I did not understand. At that time, I had been married to my late wife for some 30 years. She was from West Lothian, so I was pretty well attuned to the Scottish dialect of the central belt. However, I noticed that my learned friends on either side were nodding as though they understood, so I said to the chairman, “What’s he saying?”, and the chairman replied out of the side of his mouth, “I haven’t a clue”, so I said to the applicant, “Would you mind speaking more slowly please?”. He looked at me and said, “Eh?”. He could not understand me, so there was a certain confusion. I there realised the importance of having an advocate who could explain the case clearly to the tribunal. On the other hand, the members of the Criminal Injury Compensation Board were, I am sure the noble Lord, Lord Beecham, will acknowledge, a pretty experienced bunch of people, and we handled most claims without representation and without any difficulty, so if there are priorities to be chosen here, this would not be one of mine.
My Lords, there are undoubtedly few examples of claims under the scheme that raise complex legal issues that require legal advice, but there are some, and it is unfortunate that the Bill should seek to exclude legal advice and representation in cases where such complex legal issues arise. It is particularly unfortunate that paragraph 16 of Part 2 should exclude claims under the criminal injuries compensation scheme because that conflicts with one of the most welcome and important developments in criminal law in recent decades: the recognition of the rights and interests of victims of serious crime. The criminal injuries compensation scheme is one of the earliest statutory—or non-statutory, in its case—recognitions of the rights and interests of victims. I can think of nothing more likely to undermine the real interests of victims where complex matters are raised than denying them any opportunity of legal aid and advice through the legal aid scheme.
My Lords, I was rather impressed by the case that was put to the House by the noble Lord, Lord Beecham, and at the same time I heard what my noble friend Lord Thomas said from his direct experience of these types of tribunal. In summing up this debate, perhaps my noble friend might contemplate a compromise where legal advice would at least be available even if legal representation is not. That would significantly alleviate the sort of case that the noble Lord, Lord Beecham, told us about, and would see justice done.
My Lords, I have listened carefully to the representations and arguments put forward. Amendment 90 would delete paragraph 16 of Part 2 of Schedule 1:
“Civil legal services provided in relation to compensation under the Criminal Injuries Compensation Scheme”.
I think I am right in saying that the architecture does not apply right across the board for criminal injuries, but only in cases that are brought within scope under Part 1.
I note what the noble Lord, Lord Beecham, said about the potential complexity of applying and the advice given to possible applicants, although I think it is fair to say that applications can be made online and by telephone, and the Criminal Injuries Compensation Authority itself provides help and guidance.
I rather suspect that the numbers involved are small, although I could not indicate just how many, but I have listened, I believe that some important points have been made, and I want to reflect on this—without any commitment. On that basis, I ask the noble Lord to withdraw his amendment.
Amendment 90 withdrawn.
Amendments 90ZZA and 90ZZB not moved.
90ZA: Schedule 1, page 139, line 1, at beginning insert “Advocacy in”
My Lords, the government amendments in this group in the name of my noble friend Lord McNally are designed to give better effect to the stated policy intention.
Under the proposals that we are putting forward, advocacy should be available for preliminary and incidental proceedings only where those proceedings take place in the same forum or venue as the proceedings that are in scope. We do not believe that this is sufficiently clear in the Bill as currently drafted. Therefore, Amendment 90D deletes from paragraph 5 of Part 4 of Schedule 1 the reference to Part 3, and Amendment 90E introduces a new sub-paragraph that clearly sets out that advocacy will be available in preliminary or incidental proceedings in the same venue as those set out in Part 3.
Amendment 90F is consequential to the amendments that I have just described. Amendment 90G inserts a new sub-paragraph to provide a power that allows regulations to make provision on when one set of proceedings is related to another. Amendment 90C makes it clear that advocacy for an in-scope area will be available in relation to bail proceedings and enforcement proceedings in any venue. Amendment 90B has been tabled to ensure that correct references are made in paragraph 24 in relation to the rest of Part 3. More technically, Amendment 90ZA corrects a slip in the original drafting and makes the wording of paragraph 10 of Part 3 of Schedule 1, which is about advocacy for the Mental Health Review Tribunal for Wales, consistent with the wording of the rest of Part 3 of Schedule 1. I beg to move.
Amendment 90ZA agreed.
Amendment 90A not moved.
Amendments 90B to 90G
90B: Schedule 1, page 140, line 11, leave out “the preceding paragraphs” and insert “any other paragraph”
90C: Schedule 1, page 140, line 12, at end insert—
“25 Advocacy in bail proceedings before any court which are related to proceedings within any other paragraph of this Part of this Schedule.
26 Advocacy in proceedings before any person for the enforcement of a decision in proceedings within any other paragraph of this Part of this Schedule.”
90D: Schedule 1, page 140, line 32, leave out “2 or 3” and insert “or 2”
90E: Schedule 1, page 140, line 41, at end insert—
“( ) Where a paragraph of Part 3 of this Schedule describes advocacy provided in relation to particular proceedings in or before a court, tribunal or other person, the description is to be treated as including services provided in relation to preliminary or incidental proceedings in or before the same court, tribunal or other person.”
90F: Schedule 1, page 140, line 43, leave out “sub-paragraph (1)” and insert “this paragraph”
90G: Schedule 1, page 141, line 3, at end insert—
“( ) when proceedings are related to other proceedings.”
Amendments 90B to 90G agreed.
Schedule 1, as amended, agreed.
Clause 9 : Exceptional cases
91: Clause 9, page 6, line 16, after “breach” insert “, or
(c) that it is in the interests of justice generally”
My Lords, I rise with a sense of relief, now we have got through Schedule 1.
The amendments grouped with my Amendment 91 seek to clarify or perhaps extend the circumstances in which an exceptional case determination can be made under Clause 9(3). At the moment, as drafted, that subsection says that an exceptional case determination is one that,
“is necessary to make the services available”
“a breach of … the individual’s Convention rights … or … rights of the individual to the provision of legal services that are enforceable EU rights, or … that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach”.
In other words, an exceptional case has to fall within a breach of the individual’s convention rights for funding to be granted at all. That is far too narrow a situation.
Amendment 91 is a perfectly simple amendment that says that exceptional funding should be available when,
“it is in the interests of justice generally”.
The amendments that are grouped with mine, in the name of the noble Lords, Lord Bach and Lord Beecham, rather extend that definition, but the idea is simple enough. We believe that Clause 9 does not go far enough to address the gap in funding for parties that need representation. It is not sufficient to counter the adverse effects of litigants being forced to pursue litigation in person in areas of civil and family law where legal representation is important for the proper conduct of the case. I have already referred to what the Judges’ Council had to say on this issue in addressing a previous amendment.
The exclusion of private family law from legal aid is likely to make the operation of this clause particularly problematic. There is a long line of Strasbourg cases to the effect that at least some family cases not involving domestic violence require legal aid to be available. Serious injustice would be caused if parties to these emotionally charged cases were forced to act in person. In practice, even under the clause as drafted, it is likely that a large number of cases would have to be treated as exceptional because of the risk of a breach of the right to a fair hearing under Article 6 of the European convention.
However, the problem does not end there. Article 6 does not apply in cases of an administrative character. Many cases of that kind, which reach the courts from tribunals or decision-making officials, involve important issues about education, privacy or social care, for example. Unfairness can have devastating consequences for individuals. Not surprisingly, the English courts have long accepted that domestic law in these cases imposes the same standards of fairness as Article 6. However, Clause 9 would not permit exceptional funding to be granted to avoid a miscarriage of justice in a case of this sort. It is very interesting that the coalition Government, in which there is a certain element of the Conservative Party, are limiting exceptional funding to a breach of convention rights and not to the English common law that would show that an injustice might follow.
This amendment ensures that an exceptional case determination may be made where it is appropriate in the interests of justice generally, not merely in cases where there would otherwise be a breach or a risk of a breach of the European convention. I beg to move.
My Lords, this is an important group and anything I say of course comes with the proviso that we too support the amendment moved by the noble Lord, Lord Thomas of Gresford. We have put down an amendment proposed by the Law Centres Federation, which many noble Lords will know is responsible in many ways for the law centres dotted around England and Wales. I think that it is generally agreed by noble Lords and those outside this Committee that the federation does a fantastic job on very small resources. It gives poor people and others a chance to have access to justice to sort out their legal problems. That is at the very heart of Part 1 and I am privileged to put forward this amendment, which the Law Centres Federation originally proposed.
Exceptional funding is a proposed essential safeguard in a legal scheme that obviously seeks to exclude whole areas of law from cover. It is a mechanism by which individuals who suffer particular injustices as a result of these broad exclusions that we have been debating can in exceptional circumstances obtain legal aid to help them assert their rights. We believe that it is wrong to remove whole areas of law from scope rather than consider individual cases, as no account is taken of the importance of the case to the individual or their ability to address their legal problems by other means.
Clients with physical or mental health difficulties or with low levels of education may be wholly unable to resolve their problems without legal-aided support. They will also be seriously disadvantaged when facing, as we have been debating in the past few minutes, unusually complex areas of law or well funded opponents employing significant expert legal resources. To address this injustice, the Government rely on their proposed exceptional funding provision in Clause 9.
However, Clause 9 as drafted is too narrow, as the noble Lord, Lord Thomas of Gresford, has persuasively argued, and is problematic in a number of ways. First, as I have said, the clause is too narrow and depends on proving human rights or European law concepts. These highly complex areas of law are still meant as the only gateway to legal aid for individuals who, by definition, are often not in a position to deal with their underlying legal problems.
Secondly, Clause 9 excludes any prospect of legal aid for the initial advice and assistance stage, which is often the stage at which most help can be provided to the client to resolve matters and has the inestimable advantage of avoiding more costly litigation. I ask the noble and learned Lord when he replies to consider whether the proposition that I have just put as regards the initial advice and assistance stage is out of scope.
The current draft clause states that to acquire exceptional funding a client would have to prove that refusal of legal aid would be in breach of “the individual’s convention rights” or their rights,
“to the provision of legal services”,
under European Union law or,
“that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach”.
However, in determining which areas of law to leave in scope and which to exclude, the Government have used some more approachable tests: namely, is the client likely to be particularly vulnerable; is advice and representation available from other sources; is the area of law complex; and, finally, can the client deal with matters or represent themselves? Given those considerations, surely it is appropriate to have an exceptional funding provision also based on these tests. That is the basis of the amendment to which I am speaking at the moment.
In addition, and recognising that preparing an exceptional funding application is likely to require the assistance of an adviser, especially if arguments on human rights and European law need to be formulated, we propose a new subsection (7) to be inserted in Clause 9. This broader provision would enable decision-makers to award exceptional funding in circumstances where, despite the tests used to underpin the excluded areas of law, the client’s vulnerability or health is such that they cannot represent themselves and have been unable to find alternative sources of advice and assistance. That amendment would also provide a safety net for children and young people under the age of 18. It would enable provision of legal aid funding where, despite the underlying area of law being excluded, it is in the interests of justice. This is where we come back to the noble Lord’s amendment for legal aid to be provided, whether at the request of the courts or on the client’s application. We believe that without such amendments children and vulnerable adults will not only have great difficulty in accessing advice and asserting their rights in excluded areas of law, but will also be effectively excluded from the safety net of the exceptional funding scheme. It is on that basis that I put forward the amendments in this way.
Amendment 92, which is also in our names, introduces a requirement for the director of legal aid to consult the chief coroner when making determinations about inquests. The Committee will be well aware that the chief coroner is intended to provide leadership within the coronial system. It has been a matter of great debate in this House. The Government are to be congratulated on keeping the position of chief coroner. Through that role, the chief coroner will be in a unique position to understand the nature of inquests considered on a national level and how a particular case perhaps fits in and, more fundamentally, whether there may be a wider public interest in respect of the individual and the inquest itself.
We argue that it appears appropriate to design the legal aid system in respect of inquests with this provision in place. Will the Minister confirm whether the dialogue with the judicial office in respect of the chief coroner post has progressed to any action in establishing the post, and when can we expect to have an announcement of a new chief coroner being appointed? The Minister need not give the answers to these questions now. If he would write to me on that, I should be equally grateful. What other steps are being taken by the ministry to establish this statutory office, including accommodation and support staff? I should be grateful if in due course he could let me know the answers to those questions in writing.
As I said at the start, we agree with the amendment moved by the noble Lord, Lord Thomas of Gresford. Clause 9 is much too narrowly drafted. We have spoken to these amendments because they are worthy in themselves but we should like to see the Government give a little ground as regards Clause 9.
My Lords, perhaps I may add a few words on Amendment 91. The defect in Clause 9(3) is that it defines the “exceptional case determination” exclusively by reference to breaches of convention rights and EU law rights. But those rights are designed as a floor and not a ceiling. It is most unfortunate that the Bill treats them as a ceiling. I hope that the Government, on reflection, agree that the interests of justice are criteria entirely appropriate for the responsible director to consider and to apply.
The wording of Clause 9(3) is very regrettable. If this amendment is not accepted, the consequence is that the director is compelled to deny legal aid even if he considers that the interests of justice require it in the circumstances of the case.
My Lords, my name is attached to Amendment 91. It is common ground across the Committee that the concern of those of us putting forward amendments is that, not just occasionally but frequently, the Government will inadvertently cause serious injustice by the exclusions from scope to legal aid. We have had a lot of debate on that broad proposition. The exceptional case provision in the Bill is therefore of huge importance, and if it were to be couched in sufficiently wide language, I believe that it would go a long way towards assuaging some of the great concern that is felt, as I have said, across the Committee about what this Bill will do in practice.
I want to pick up on the point made by the noble Lord, Lord Bach, that this amendment has been drafted by the Law Centres Federation. No other body of legal advice organisations in this land is as intimately knowledgeable of the on-the-ground reality of what, after this Bill has come into effect, will in practice be essential in order to avoid the greater injustices. Although my name is added to Amendment 91, I have to say that Amendment 91A is rather better and would also give the Government some solace. The arrangements that would result from it are defined in practical terms which the Government could accept. It may be that they would still be unhappy about the final subsection which talks generally about the “interests of justice”, and if that is the case, surely the way forward would be for the Government to accept the four paragraphs under the first subsection and add further ones as the price of excluding the general “interests of justice” exception. I hope that the Government will take this opportunity to put our minds at rest.
My Lords, I would like to support this group of amendments. I am sure that some tidying up is needed, but on looking at the areas covered, I had thought originally that I was probably keener on the generality of the amendment tabled by the noble Lord, Lord Thomas of Gresford, because it gives scope for decisions based on individual circumstances. Amendment 91A is more detailed and spells out several important areas, and that is helpful in many ways, but I wonder whether the age limit, when we are talking about vulnerable or disabled children, or even more important, children who have been in care, is not too low and should not be much closer to 25. However, I strongly support the intentions behind this group of amendments.
My Lords, it is important that we have moved on to Clause 9, covering exceptional funding, because this has been discussed in earlier amendments. Amendment 91, moved by my noble friend Lord Thomas of Gresford, would allow the director to fund excluded cases where he or she determines that it is generally in the interests of justice to do so. I am sure that Members of the Committee will readily acknowledge and appreciate that in this context, the phrase “interests of justice” is capable of wide interpretation. The amendment would create a power, which I am sure is its intention, that is considerably broader than the one currently being proposed in Clause 9 as it stands. It is right that there should be an exceptional funding scheme and that it should provide a potential safety net for the protection of individuals’ fundamental rights of access to justice, and we believe that Clause 9 achieves that important end. Exceptional funding determinations under Clause 9(3) will be made in accordance with the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.
Following on from that and looking at the jurisprudence, in considering whether legal aid should be provided in an individual case, the kind of factors that the director will need to take into account include: the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent themselves effectively; and alternative means of securing access to justice. These factors are broadly similar to the considerations that the Legal Services Commission currently takes into account in criminal proceedings where it is in the interests of justice for legal representation to be provided. I would suggest that our exceptional funding provisions are likely to meet the concerns of noble Lords in civil cases where, for example, Article 6 of the European Convention on Human Rights is engaged. Indeed, in moving his amendment, my noble friend Lord Thomas of Gresford accepted that there is substantial case law from Strasbourg in relation to family law and he almost seemed to acknowledge himself that there was a potential for very many cases indeed to qualify under the exceptional funding provisions as set out in the Bill. However, we believe that the insertion of the general phrase “interests of justice” would be open to very broad interpretation and would risk undermining the approach, scope and rationale for making changes to the legal aid system.
It has been acknowledged that Amendment 91A, tabled by the noble Lord, Lord Bach, covers similar territory in that it would allow the director to make exceptional case determinations when it was appropriate to do so against specified criteria. As with Amendment 91, the potential ambit of this is extremely broad, and certain elements would be open to very wide interpretation. Again, however, I believe it is worth noting that many of the factors listed in the amendment, such as,
“the client’s vulnerability … the client’s capacity to represent themself … and … the availability of alternative sources of”,
funding will form at least part of the test for exceptional funding where Article 6 is engaged.
Amendment 91A also specifically refers to clients under the age of 18. In considering whether an individual case meets ECHR exceptional funding criteria, the director would be obliged to consider the ability of the client to present their own case, having regard to the complexity and importance of the issues in terms of what is at stake. Where a child brings an action without a litigation friend, that would be a relevant factor in deciding whether or not they have the ability to present their own case. In the end, the factors I have indicated will be taken into account by the director in deciding whether the absence of legal aid would mean that it was practically impossible for the applicant to present their case or would lead to an obvious unfairness in the proceedings.
The noble Lord, Lord Bach, asked whether legal aid would apply to advice and assistance. The answer is that in principle it could do so to the extent that it would avoid the breach of an individual’s rights under, for example, Article 6. Amendment 92 raises the issue of the chief coroner—
My Lords, in relation to Amendment 91, does the noble and learned Lord accept that Clause 9(3) as currently drafted will require the director to spend much of his or her time making determinations as to the scope and application of convention rights rather than focusing on the easier question of whether or not the interests of justice require legal aid? I would suggest to the noble and learned Lord that there is a real danger of satellite litigation as to whether or not convention rights or EU rights are in fact breached. Would it not be much more sensible and efficient, and much less expensive, to leave the director to focus on what he or she will be good at, which is asking whether the interests of justice require legal aid?
As ever the noble Lord puts a seductive argument, but there is a certain advantage in the director being required to have regard to convention rights because, if the test was the wider one of the undefined interests of justice, I am not sure whether that would lead to any less satellite litigation; it is possible that it could lead to more. He says that it would be easier, but when faced with that test without any guidance—with the exception of a certain amount of specificity set out in the amendment tabled by the noble Lord, Lord Bach—there would not be any real steer for the director if that is all he is to be left with when making decisions.
It would be very difficult to challenge a director’s decision as to whether the interests of justice are met because it is a subjective test. If the test, as under Clause 9(3), is hard-edged—that is, whether there is a breach of the convention—it is much easier to bring a legal claim in that respect.