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Legal Aid, Sentencing and Punishment of Offenders Bill

Volume 735: debated on Monday 5 March 2012

Report (1st Day) (Continued)

Amendment 7

Moved by

7: After Clause 6, insert the following new Clause—

“Expert evidence

The Lord Chancellor must review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved following the commencement of this Part.”

My Lords, as your Lordships will be aware, the Lord Chancellor hails from Nottingham. He adopts the robust approach to justice that the legendary sheriff of that place is assumed to have held. Indeed, he almost embodies in himself a spiritual descent from the sheriff of Nottingham judging by some of his more recent observations, including today’s, in which he seemed to imply that concerns about the Bill were motivated by concerns for lawyers’ incomes. Recently, in an interview, he said that there are far too many experts.

As I said in Committee when we were discussing this issue, we are not concerned to protect the interests or incomes of lawyers or experts. We are concerned about the position of organisations, such as law centres and the like, which the Government assume will be able to shoulder a substantial part of the burden that will be shed from the legal aid system—but that is another issue. Our objective is to preserve access to justice and to ensure that the parties and the courts have the assistance that experts can bring to bear on the matters which have to be adjudicated.

This amendment seeks only to create a duty on the Government—the Lord Chancellor—to review the accessibility and access to expert assistance and to ensure the maintenance of both. It does not prescribe a method by which this should be achieved. There could be a variety of ways in which the objectives can be met. There might, for example, be a system of approving panels of experts for particular areas of law and for dealing with their remuneration in a rather more structured way than is presently the case. But that is not a matter which the amendment seeks to prescribe in any detail.

Expert witnesses are relevant across many types of case. The amendment refers to the need to preserve the expert capacity in relation to Part 1, which is a matter that we will debate at some length on Wednesday. It remains to be seen what areas of law will remain in scope and what will not. Among the areas that might be brought into scope are elements of personal injury law and clinical negligence, and some matters of contract and the like, in which expert evidence can be very important.

Perhaps the most clear example, which will certainly arise, is in relation to evidence in family situations. There are many cases in which expert evidence can be extremely important in the context of private family law. Examples include false allegations of child sexual abuse. In one particular case a child psychiatrist, having examined the situation, stated that a child who was allegedly abused would in fact have no memory of the time when the abuse was alleged to have occurred and thus was able to demonstrate that the child had been influenced by a foster carer.

There was a case where a mother was assessed to see if she had sufficient mental capacity to participate in proceedings about her child, having suffered a non-accidental injury. After extensive investigation the expert was able to demonstrate that she had not deliberately perpetrated something but was in herself a vulnerable woman struggling to cope with considerable cognitive difficulties. In another case there was an allegation of incest between a father and daughter. As a result of the expert’s evidence, it was clear that the allegation was in fact true. There was a case of a child on whom it could be demonstrated, after having been examined by an independent plastic surgeon, that burns had been deliberately inflicted. I could cite many other cases of that kind. Without the presence of expert evidence, these cases would not have been concluded satisfactorily.

The question is this: to what extent can the Government ensure that expert evidence will remain available? The problem is that it is under threat. The Consortium of Expert Witnesses to the Family Courts, with a membership of some 500, reports that on the most recent evidence, only 7.5 per cent of its members in London would be prepared to work at the lower rates that are now being offered. That does not apply only to individuals who practise on their own account. Specialist expert witnesses who are employed by NHS trusts find it impossible to work and provide evidence at the rates currently being offered. For example, the Tavistock and Portman trust has written to the consortium of expert witnesses to say that the hospital could not provide the services of an expert witness at the permitted rate, which is £90 an hour. It says that £90 “may be a rate that a doctor working on a private basis would be willing to work at. We are required to pay a medical consultant at the nationally agreed rates, to pay national insurance and pension contributions, to provide admin support, office accommodation, clinical governance and a number of other functions which push the cost up to significantly more”.

The Great Ormond Street Hospital, which runs a court service, has said that its costs come to £150 an hour so it could not accept £90 an hour to deploy its consultants. The Cambridge and Peterborough NHS Foundation Trust shows that even at the higher rates—I repeat what I said in Committee, which is that it is paradoxical that higher rates are apparently being offered to consultants outside London rather than within London at the moment—it is unable to cover its costs and that, “It is very unlikely that our trust management would allow us to maintain this position for very long as all of our team’s work is conducted as part of the clinical services provided by the Trust”.

I have received an open letter from a private organisation, Family Risk Assessment Ltd—I do not know whether other noble Lords have had it—illustrating the kind of problems being faced because of the new fees that have been introduced in advance of the Bill. The Bill has not created the problem, but it will have to be dealt with under the Bill’s provisions in due course. The letter states that regional directors in various parts of the country have been authorising a usual hourly fee rate of £100. The Cardiff office of the Legal Services Commission has reduced that to £63 an hour by, as it were, reclassifying the expert witness as a “risk assessment expert”, whatever that is supposed to mean, when their expertise is in dealing with perpetrators of domestic violence—which we were discussing only a few hours ago—and child sexual abuse. The director of the office in question decided that the expert did not need 30 hours of professional time to undertake an assessment of parents’ risk and treatability but only 16 hours—which is quite an arbitrary selection of a timetable. In another case, an expert was required to visit parents in Lincolnshire, West Yorkshire and Northumberland to interview them for his court report. The fee rate was approved, but the relevant office refused to approve travel and hotel expenses. Clearly, it will be impossible for the expert to carry on at that level.

This situation has arisen now, but how under the Bill can the Government ensure that expert evidence will be available in cases where it is clearly of value both to the parties and to the courts? In Committee, the noble Lord, Lord McNally, rather took the view that it was not part of the Government’s job to ensure that expert evidence was available. Given the sensitive nature of the situation in relation to family law, that would be an abdication of responsibility. It is surely important, in the interests of both the parties and the judicial process, that efforts be made to ensure that expert evidence is available at all times. Of course, it would still be available to parties who could afford to pay, leading potentially to a two-tier system. If you have the money, you can employ an expert but, if you have not, it seems increasingly unlikely on the basis of the current arrangements that the cost of such expertise will be covered within the provisions of the Bill.

There are ways of reducing the cost of expert evidence. The consortium made a series of suggestions about how that might be achieved, including the appointment of a single expert in cases, a reduced number of questions to be put, a reduction in the number of papers to be read, better timetabling and a better payment system. Direct contracts with what is now Legal Services Commission would presumably be with the director once the Bill is implemented. All those ideas were put forward in two meetings with the department, but nothing has emerged from it.

It was interesting earlier today to hear the noble Lord, Lord McNally, refer to the Government procuring services. We are not suggesting that the Government should procure expert witness evidence but that they should facilitate it when it is necessary and desirable. In these circumstances, I hope that the Government will consider their abdication of responsibility for facilitating the provision of expert evidence of the right kind and at a reasonable cost to the taxpayer and the system. Accordingly, I beg to move.

My Lords, I support the noble Lord, Lord Beecham—my name is attached to the amendment—and declare my interest as a trustee of the Michael Sieff Foundation, a child welfare organisation.

I am concerned that the quality of expert witness reports is already variable and that the cuts that Her Majesty’s Government have made in payments to expert witnesses might reinforce that variability. I am particularly concerned that family courts, as they make judgments to remove children from their families, should be as well advised as possible. The noble Lord, Lord Beecham, highlighted the importance of that in the cases that he described.

I begin by thanking the Minister, the noble Lord, Lord McNally, for his encouraging response in a debate on this matter tabled by the noble Lord, Lord Bach, a couple of months ago. There is concern at the way in which the current remuneration for expert witnesses is managed through the Legal Services Commission. The noble Lord, Lord Beecham, referred to that. It was encouraging to hear the noble Lord, Lord McNally, say at that time that consideration was being given to how to meet this concern. It was also good to read later in the Family Justice Review final report that it recommended that the remuneration of expert witnesses should be moved elsewhere. I hope that the Minister may have more encouraging news on this tonight, or perhaps he can write to me.

The Family Justice Review report found that:

“Experts are too often not available in a timely way, and the quality of their work is variable. The Family Justice Service should take responsibility and work with the Department of Health and others as necessary to improve the quality and supply of expert witness services”.

It continued:

“A recent Family Justice Council report examined a sample of expert psychological reports. It identified serious issues with their quality and the qualifications of those carrying them out. Further studies of this type are needed”.

There is a real problem with the consistency and quality of expert reports. Her Majesty’s Government are right to be concerned at the cost of expert witnesses. Judges whom I have spoken to and the Family Justice Review also found that far too many reports were commissioned and that the commissioning of reports and waiting for their completion contributed significantly to the appalling delays that too many children experience as their family cases progress through the courts. I agree absolutely with the Government’s concern.

Judges and magistrates should commission far fewer reports. They often lack confidence in these complex matters. The improved continual professional development of judges and magistrates recommended by the Family Justice Review should help to ameliorate the situation. Reducing the number of reports rather than continuing to make ever deeper cuts in the remuneration of expert witnesses seems likely to provide the best outcomes all round in the medium term. I worry that, if they are not adequately remunerated, the best experts will leave this work, and that would be to the great detriment of children in the courts.

The Family Justice Review recommended something along the lines of this amendment. It stated:

“There is discontent over the way experts are remunerated. The Family Justice Service should review the mechanisms available to remunerate expert witnesses, and should in due course reconsider whether experts could be paid directly”.

The review called for what is in this amendment—a mechanism to monitor and review payments of expert witnesses. It commented on the concern about the cuts in payment of these expert witnesses. It stated:

“It is too early to conclude that the recent 10% reduction in expert witness rates will have an effect on the supply of experts, but the government should monitor this”.

That is very much in the vein of the noble Lord’s amendment.

The noble Lord highlighted that in London there has been an even sharper cut in the remuneration of expert witnesses. Certainly, the expert witnesses whom I have spoken to—and I do not think that they are grinding their own axes—often feel shabbily treated at being paid so little for bringing the benefit of their experience to these important matters. I look forward to the Minister’s response. I hope that he can offer some comfort on this issue.

My Lords, I encourage the Minister to accept the amendment. I do not think for one moment that it cuts across the Government’s own policies or—as the noble Lord, Lord McNally, continually tells us—deficit issues. Looking at this might improve those deficit issues. If we do not have good expert witnesses, the consequences could be very high costs in some cases.

I have to declare an interest as the vice-chair of the Lucy Faithfull Foundation. Lady Faithfull was of course an eminent Conservative in the House of Lords. She developed the foundation to work with abusers, and the foundation continues that work. One of the things that we do is make assessments in very complex cases so as to make recommendations to the courts on whether some individuals are safe to remain with their families. It is absolutely crucial that these experts are maintained. However, at £63 an hour, the foundation has to subsidise that work at the moment. We cannot do that for long. I use that as an example of one of many organisations that find themselves unable to produce these experts.

I also declare an interest as having been the chair and vice-chair of CAFCASS for some eight years. I absolutely agree that there are too many expert witnesses. Children’s cases have been held up in court over the years because reports have been commissioned by judges and have had numbers of witnesses. Many of these have been commissioned by people who, as the noble Lord, Lord Beecham, said, can afford to commission the reports themselves. That is a difficulty. We have a serious administrative muddle. The amendment of the noble Lord, Lord Beecham, gives the Government the opportunity to review and sort this out.

No one is saying that we want to maintain the high level of expert witnesses in the court. We want to ensure that, where expert witnesses are needed, they are available. If they are not available, that would be a really serious miscarriage of justice for children. Mistakes will be made and children will be put in danger. It is quality not quantity that really matters on this issue. If you talk to judges, social workers who work in the courts, or expert lawyers, they will always tell you that this will be the consequence.

My only other point is that the assessments being made by the Legal Services Commission are usually based on some sort of broad criteria that have little to do with expertise but have to do with qualification. If you are a poor social worker, you come very much at the bottom of the pile in terms of what you are worth, whatever your extra qualification might be. Lucy Faithfull Foundation social workers are experts in their field—psychologists and psychiatrists do not come near them, as anyone will tell you. Yet, in making their assessments, they are still paid at this sort of level. I encourage the Government to accept the amendment, not because it will mean that every expert is preserved but because it gives an opportunity to put the system on to a safe footing.

My Lords, this amendment is a timely reminder of a potential major problem which already exists but which will be much exacerbated in future. I have considerable, sometimes very uncomfortable, personal experience of large numbers of experts in the courts before me, so I should like to make three specific points. The first is on quality.

Quality, as the Norgrove report said, is variable, and I can tell you that it is variable. There are experts who are over-enthusiasts. There were two extreme examples, of brittle bones and salt, which reverberated about the medical consultant profession. The trouble is that they were not the only two. Other experts are giving evidence because they happen to have a line.

When I was president of the Family Division, I had very useful discussions with the Chief Medical Officer about how we could identify appropriate people who one might call middle of the road. They were not at one or the other end of the continuum; they were not people who said, “Nobody ever injures a baby”. I once had 13 doctors giving evidence in a shaken baby case, of which there probably needed to be about five. This was absolutely unnecessary. Half of those experts were giving evidence from a preconceived notion rather than from the evidence that they actually had, and it was extremely difficult to get them to do something sensible. It was an appalling case. It was not the only one—it was just the worst that I remember.

Quality is a real point. It is not the numbers but the people who can do it that matter. The Chief Medical Officer, Sir Liam Donaldson, and I really struggled to see how we could identify for the benefit of the judiciary and the lawyers the doctors who would be middle of the road. It is unfinished business and, particularly in a time of financial stringency, it becomes all the more important. So quality is really very important.

Secondly, it is a problem of numbers—there are far too many. That ought to be dealt with in directions hearings, but they quite often get appointed before the case ever gets to the judge or the justices. Something must be done about numbers.

The third point is fees. There is no shortage of very distinguished doctors, particularly in the London area but right round the country, who will not put their heads above the parapet because they do not want to expend the time and trouble on going to court. On the fees that are now suggested—and I heard the noble Lord, Lord Beecham, talking about £90—I have heard the figure of £63 mentioned in the endless e-mails that I have had, as the noble Baroness, Lady Howarth, was saying. Quite simply, if you cannot get the best experts now, what on earth is going to happen to the welfare of these very high-risk children if they do not have the doctors to help the judge or magistrates to decide whether they can safely go home or will for the rest of their lives be denied the real natural family? It is the most appalling decision. Shaken babies are an example. There is still no agreement on whether having hematomas on the outskirts of the brain within the skull or problems behind the retina is or is not an indication of a child having been shaken rather than suffering a natural trauma. How on earth does a judge try that—and these are High Court judges—if they do not have some help? What they need is good help; they need other people who will turn up and give sensible advice to the courts.

Social workers need more support. They are not having their evidence taken sufficiently seriously, and there is no shortage of cases where it would not be necessary to have several doctors if the sensible social workers’ advice was taken by the courts. Too many local authorities are pulling their social workers out of a case after six months. In a case that takes two years, there may be four social workers in charge, and the result is that no social worker is really on top of a case. If something could be done about that, you would need fewer doctors.

The amendment deals with the review and is a timely reminder of the real need to have a look at this and involve the Chief Medical Officer—if I may respectfully suggest it—to see what could be done to get the right doctors in the right place, and not too many of them.

We have heard a great deal, and very helpfully, about the role of experts in family proceedings. I defer to those with much greater knowledge than I have about the various inadequacies in the arrangements that exist there. But this amendment is not, in fact, peculiar to family experts but covers the whole range of experts that assist the court.

Although all is not perfect in the litigation system, it is worth recording that considerable steps have been taken by the courts in the approach to expert evidence, particularly the various changes brought about by the noble and learned Lord, Lord Woolf, that have resulted in the timely exchange of reports, experts’ meetings and even the exciting developments known as “hot-tubbing”, which your Lordships may not be familiar with, involving experts in court at the same time and exchanging views in order to provide a synthesis for the judge in an effective way.

So, the courts themselves are providing a great deal of control over the way that expert evidence is given. The judges and the consumers of experts are in a position to judge the quality of the product, which itself provides a certain discipline that is relevant in deciding which experts are retained and how much use they are. Those of us who practise in the courts are familiar with judges expressing the view that there is no need for expert evidence on this or that case, which helps considerably.

Early directions, timely interventions by judges and the proper application of expertise by the lawyers can result in the provision of expert evidence being satisfactory. The only caveat that I would give from my experience with experts’ evidence, which relates essentially to professional negligence, is that in legal aid cases there is a continuing concern, just as there is in the context of family proceedings, that the rates for expert witnesses is so low that the best experts may not be available.

Subject to that, I am slightly concerned that this is rather outside the province of the Lord Chancellor in terms of accessibility and the quality of expert advice. The courts are making progress and will continue to do so. Nevertheless, I defer to what has been said about the family courts by the noble and learned Baroness, Lady Butler-Sloss.

My Lords, I would like to illustrate the usefulness of experts. This came from a case that I did three or four years ago. There had been family proceedings in relation to a little child of 11 months old who was found dead but with no visible injury. The case for the adoption of other children took about three weeks, with something like three experts on both sides. As a result, the judge held that the father was culpable but was not going to say that he had actually caused the injuries that the child had sustained. Shaken baby syndrome was alleged, but I discovered that there was a huge divide between experts on that issue.

I advised the instruction of a biomechanical expert and the Legal Services Commission found one from Detroit, who had gained his expertise in car accidents. He was able to manufacture a doll that was of the same size and weight as the 11 month-old child. He demonstrated that, as the child was at the age of feeling around the furniture and pulling himself up on to his legs, not even yet climbing on the sofa, if the child fell over, his back hit the ground and his head followed, that would generate sufficient force to cause precisely the injuries that he had sustained. There had been no history of any previous child abuse; there were no marks, the skull was intact and nothing was broken. As a result of that evidence, the prosecution dropped the murder case that it had brought against the father following the judge’s previous decisions.

That indicates how an expert can make all the difference in a case like that, but expensively. It is to the credit of the Legal Services Commission that it was prepared to fund a report like that which ultimately led to a proper conclusion to the case, but one has to think of all the experts who had been involved in the argument about shaken baby syndrome before the judge. It is vital that experts are properly instructed and funded when they are required but I am sure that there are times when far too many experts are employed, and I accept what the noble Earl, Lord Listowel, has said previously on that point.

My Lords, we welcome this opportunity to consider the undoubted contribution that experts make by giving evidence in our courts. Some examples have been given in the course of this debate. Before I address specific points, let me say that our basic position is that the amendment moved by the noble Lord, Lord Beecham, is inappropriate and possibly unworkable. It seeks to impose on the Lord Chancellor a duty to review the quality and accessibility of expert evidence.

By definition, expert witnesses are highly qualified. They are experienced professionals in specific technical fields. In respect of the quality of their evidence, experts are subject to the standards required by their respective professional membership bodies. From a regulatory perspective, the relationship between a professional body and an individual expert is not one on which the Lord Chancellor could or should encroach.

It is not within the Lord Chancellor’s remit to assess and determine the quality of the advice provided by any given expert witness, nor should it be. We have heard in contributions to the debate not only that there are far too many experts in some cases but that they can sometimes be of variable quality. It is very invidious to ask that the Lord Chancellor should in some way be the judge of that. A huge range of expert advice is delivered in civil cases. More than 50 types of expert are covered by the current fee scheme for funding advice by experts. I agree with the view expressed by my noble friend Lord Faulks, who said that these matters are very much outwith the province of the Lord Chancellor.

The financial implications of creating a monitoring and evaluation framework, as well as an independent quality standard, that covers all these various disciplines, and the administrative resource required to make such a system work, mean that it really is not feasible. Irrespective of the financial implications, as my noble friend Lord McNally indicated when this matter was debated in Committee, we do not see how such a system could be viable. As was brought home very clearly by the contribution of the noble and learned Baroness, Lady Butler-Sloss, disputes over the accuracy and quality of expert evidence can themselves be the subject of extensive dispute and litigation. The examples that she gave, from her vast experience, of brittle bone injuries and shaken baby cases showed that you sometimes get extremes of expert evidence. I am not sure how one could put the Lord Chancellor in the position of having to make a judgment on its quality. He is not the appropriate arbiter of that kind of expert evidence. Equally, to impose the kind of duty anticipated by this amendment ignores the practical realities of expert provision. By definition, they are experts in their fields and can sometimes be relatively few in number. Their geographical distribution is bound to vary over time. With the best will in the world, I do not see how the Lord Chancellor could or should control or influence that distribution to ensure accessibility.

Important points have been made through the experience brought to bear on this debate by noble Lords who are perhaps trustees of organisations that have provided evidence, as well as through their practical experience, either in the judiciary or at the Bar. A lot of these come back to funding—a point made the noble Lord, Lord Beecham, when he moved the amendment. They are perhaps more appropriate to the issues around the funding orders, which were introduced on 3 October last year. Perhaps I may say something about these. They are not particularly germane to this amendment but they are germane to the debate that we have had. It was by way of these funding orders that the expert witness fees were codified for the first time. Historically, though guideline rates were published by the Legal Services Commission, rates of remuneration were effectively determined by the courts. This caused a range of issues for the LSC, not least spending control and data collection. The codification of rates is intended to address this issue.

The noble Lord, Lord Beecham, and another noble Lord mentioned the difference between the codified rates in London and rates outside London. The codified rates were based on the benchmark or guidance rates applied by LSC caseworkers when assessing expert witness services as part of a solicitor’s final bill, subject to a reduction of 10 per cent in line with the 10 per cent reduction that was being imposed on legal aid solicitors’ fees. The benchmark rates were developed by experienced civil bill assessment staff at the LSC and were based on their experience of typical hourly rates charged by experts in their respective geographical regions. The rates reflect the LSC’s experience that there is a greater supply of experts in London, which allows more competitive rates to be paid. The benchmark rates have been applied by the LSC for some time and there are only limited anecdotal reports of problems with access to experts. I assure your Lordships that the Ministry of Justice is working with the Legal Services Commission and stakeholders to monitor the effect of the fee levels and to gather further data to inform the Government’s longer-term plans to put in place a scheme of fixed and graduated fees for experts.

The noble Earl, Lord Listowel, and the noble Baroness, Lady Howarth of Breckland, mentioned the Family Justice Review. The recommendations that have come out of that review are being looked at and will help to inform the development of a more detailed payments scheme for experts in the future. I will look at what the noble Earl said, as he may have made one or two further specific points. If I can reply to those points, I will certainly write to him.

I understand where many of the concerns are coming from in principle. However, as my noble friend Lord Faulks indicated, much of this matter is in the hands of the courts and some things are happening in this regard. However desirable the amendment might appear, it would be almost unworkable in practice and, indeed, would put the Lord Chancellor in an invidious position in trying to make quality assessments, which would not be appropriate to his role. Accordingly, I urge the noble Lord to withdraw the amendment.

My Lords, I am grateful to all those who have spoken in the debate for their contributions and, indeed, to the Minister. I will not press the amendment to a vote. Even if the noble and learned Lord were disposed to accept the thrust of the amendment, legislation is not required to achieve its objectives. Nevertheless, it is somewhat disappointing that the objective of maintaining the supply of expert evidence is not apparently on the Government’s agenda. It is one thing to arrange for an organisation—at present it is the Legal Services Commission—to determine fee levels on what looks to be a fairly crude and arbitrary basis. It is clear that neither the Lord Chancellor nor his department decides who should be included on any panel of approved experts. However, the Government are not even encouraging the formation of such panels comprising members of professional organisations who could evaluate whether a person was a competent specialist in his own field and was able to act as an expert witness. The latter is a different role. It is not necessarily the same as being an expert surgeon, psychiatrist or whatever. Giving evidence in the context of litigation is an additional skill which not everybody has or aspires to have, although the matter could be delegated. However, if the Government simply stand aside, as appears to be the case, it is not at all clear how the supply of relevant expert evidence can be secured.

This is a matter that will have to be returned to in the light of not only the financial aspects, which are clearly threatening to reduce the availability of witnesses with relevant experience and expertise, but the choice that is available to parties and courts. It is certainly necessary to be economical in these matters—that is absolutely accepted—but the danger is that we will end up with the worst of all possible worlds, with a reduced supply of people. That would damage the judicial process and sometimes the interests of, as the noble Lord, Lord Thomas, pointed out, vulnerable people—whether they are children or others—particularly, although not exclusively, in family matters, as the noble Lord, Lord Faulks, rightly reminded us.

Although I will seek leave to withdraw the amendment, this topic will not go away. It is one to which the courts, professional bodies and ultimately the Department of Health in the context of medical evidence—and perhaps departments in other areas, including that of the Lord Chancellor, who has responsibility for the judicial system as a whole—will have to revert at some point. However, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendment 7A

Moved by

7A: After Clause 6, insert the following new Clause—

“Post-commencement review

(1) Two years after the commencement of Part 1 of this Act, the Lord Chancellor must commission an independent review to assess—

(a) the cost and impact of Part 1 on—(i) children and young people;(ii) people with disabilities, including people with learning, physical, mental and psychological disabilities; (iii) women;(iv) victims of domestic violence;(v) black and ethnic minorities;(vi) government departments;(vii) courts and tribunals, including any changes in time and resources; and(viii) local authorities; and(b) the impact of Part 1 on—(i) the incidence of homelessness;(ii) the incidence of ill-health or suicide;(iii) the commission of criminal or anti-social behaviour; and(iv) the future provision and availability of services including, but not limited to, law centres and citizens advice bureaux.(2) The Lord Chancellor must lay a copy of the final report commissioned under subsection (1) in both Houses of Parliament at the same time as laying a draft revival order under section (Duration of Part 1).”

My Lords, I will be blessedly brief. The first of the two amendments in this group is the mirror image of my noble friend’s previous amendment and calls for a post-commencement review of the impact of the changes proposed in the Bill after two years. It would provide for a report to be laid before Parliament. No doubt the noble Lord, Lord McNally, will say that it was always intended that there should be a post-implementation review. I accept that.

The second amendment in the group would create a more formal structure by proposing a sunset clause, whereby the provisions of Part 1 would lapse unless they were to be revived by an order. This would add teeth to the review process that the noble Lord will no doubt say would happen anyway. The provision would also add pressure to ensure that such a review would be thorough and comprehensive and allow Parliament to take a considered view of what, by any standards, would be significant changes to the legal aid system, regarding not only the effect on potential clients but the impact on government departments and public expenditure as a whole.

While the noble Lord constantly returns to the refrain about the difficult economic situation, which we all of course understand, it is certainly the view of many—I put it no higher—that the Government are transferring the burden from this department to elsewhere. They may also—according to the King’s College report, at any rate—actually be increasing their financial expenditure rather than reducing it. Experience will tell us which way this will go—I hope within the period suggested. At that point it would, if the amendment were to be accepted, be open to the Government to table a resolution to continue with the scheme. Otherwise, if those of us who are sceptical about it prove to be right, the provisions would lapse, and therefore the savings would be made at that point, rather than ab initio, as the noble Lord believes will be the case. I beg to move.

My Lords, the noble Lord, Lord McNally, is being a little optimistic. I am sure he willingly accepts that it is the responsibility of this House to scrutinise the Bill in all its aspects, but of course I will not detain the House a moment longer than is strictly necessary.

In our debate just now on the availability of appropriate experts to assist the courts, we heard about the importance of evidence-based judgments. The Government make much play of the importance that they attach to evidence-based policy-making. The amendment offers the Government an opportunity to establish that this policy, contentious as it is, if it is to be continued, should be properly based on evidence. That is why my noble friend Lord Beecham has proposed in the amendment the helpful suggestion that, two years after the commencement of Part 1, the Lord Chancellor must commission an independent review to assess various aspects of its provisions.

The noble Lord, Lord McNally, offered as the principal justification for the Government's policies in the Bill that it is essential that the economy does not run out of control. Of course, we all agree with him on that. He then asked: if economies are not to be made in legal aid, where are they to be made? I would like to offer a handful of illustrative suggestions to the Government as to where they could more acceptably achieve economies. I take three examples at random.

If the Government were to abolish the tax relief at the top rate on pension contributions, they could save £7 billion annually. For the life of me, I cannot see that people who are enjoying that tax relief at the moment need incentivising. There we have an order of magnitude far beyond any economies that the Government hope to achieve through their reforms to the legal aid system.

I hope that it is not entirely unacceptable if I venture to suggest that out of the budget of £9 billion or so for the Olympic Games, there might have been scope to find some economy to protect legal aid for the most vulnerable in our society. Again, if that is an untouchable budget, let me suggest something else. The cost of bonuses paid by the Royal Bank of Scotland, a state-owned bank, to its executives is £785 million. That is at the discretion of the Government. So there are alternatives.

I know that the noble Lord, Lord McNally, is very conscientious in how he seeks to acquit himself of the Ministry of Justice's responsibility to make its contribution to the reduction in the deficit. He says: if not legal aid, where? If it is to be legal aid, then, as my noble friends have repeatedly suggested, why could not the savings have been made to criminal legal aid? The answer that the noble Lord gave to that a little earlier was that already significant savings had been required from the criminal legal aid budget and it was therefore not timely or appropriate that further savings should be sought. My noble friend Lord Bach disagreed with him. He said that he, as a Minister, had foreseen clearly that there was significant further scope to make economies in the criminal legal aid budget. I have to say that it is a great pity, therefore, that the Government have proposed to make a reduction of only 8 per cent in that expenditure head, as opposed to the 53 per cent cut that they propose to make to support for impoverished appellants.

Is my noble friend aware that a proportion of that 8 per cent is part of the cut that we made as we left office?

That certainly increases the case that I am rather lamely seeking to put forward. My noble friend is deeply expert in this field. It is, therefore, the more regrettable that the Government have sought to save only 8 per cent on the much larger criminal legal aid budget while taking 53 per cent from the funds provided to support people in poverty seeking to establish their claims for social welfare benefits.

The noble Lord, Lord McNally, said in our earlier debate that there had been difficulties with the equality impact assessment. I think he argued that it was methodologically very difficult to pursue it to the point that we were arguing it should be taken to. However, we know from the evidence of that assessment, unsatisfactory as it was, that the effect of these cuts will be disproportionate on some of the most disadvantaged people—ethnic minorities and disabled people, for example. Although it was found to be intellectually too difficult to complete the investigation initiated in that assessment, it clearly established that the risks of social injury were very great, and I do not think that a more prudent Government would have wanted to go further down that avenue. I was pleased to hear from the Minister that there is going to be a revised equality impact assessment in the light of any amendments that may be made to the Bill and, moreover, that the Government intend that there should be another impact assessment—I think that that is what the noble Lord said—in due course. Therefore, the Government’s thinking is beginning to concur with thinking on this side of the House.

If a post-commencement review is to take place two years after the commencement of Part 1 of the Bill, when enacted, there will by that time have been an opportunity to assess progress that may have been made in other regards to reduce the costs of the legal system and the courts, and that may leave a little more margin to restore legal aid to the levels that I am sure we would all wish to see it at. There are all sorts of ways in which costs in the system could be reduced in principle: the law could be made clearer and procedures could be made simpler. Perhaps lawyers could be paid less, although I do not think that lawyers doing legal aid work ought to be subjected to those kinds of savings. However, we could hope that there would be more pro bono work and that charities would provide more support to people in need. We could hope that the tribunals might indeed become more user-friendly, although I noted that the noble and learned Baroness, Lady Hale, in her Sir Henry Hodge Memorial Lecture earlier this year, discussing the question of whether tribunals could really be user-friendly, as their authors have always hoped they would be, and looking at the system of law they administer and the procedures that they developed in employment law and immigration cases, said that such a concept was, frankly, laughable. We might hope for better decision-making by public agencies so that fewer people have a need to appeal. We might also hope that alternative dispute resolution makes more progress, and that mediation, as the Government hope, will indeed lead to more expeditious and economical ways of resolving disputes.

All those things may develop and there may be progress, but I think it is unlikely in the extreme that we are going to see such appreciable economies or a system made so much more attractive and beneficial to disadvantaged people in those ways that we can reconcile ourselves to the loss of legal aid for welfare benefits claimants. Lord Bingham wrote judiciously in his book, The Rule of Law, that,

“the goal of expeditious and affordable resolution of civil disputes is elusive, and likely to remain so”.

However, if we have the post-commencement review that my noble friend has asked for, we can look at the progress that has been made on all those fronts. As a corollary of having this review, I think that my noble friend Lord Beecham is right to propose that there should be a sunset clause and that Part 1 would need to be positively revived in the light of the evidence that would have become available by then. Therefore, I am very happy to support the amendments proposed by my noble friend.

My Lords, let me make it absolutely clear from the start that my spirits are lifted when I see the noble Lord, Lord Howarth, rise to his feet. In all seriousness, I believe that he is a very effective parliamentarian. I say that as a compliment. He researches his interventions, his arguments are well marshalled, and it is always a pleasure to respond to him. That is particularly the case this evening, when we have had a glimpse of what might have been: the Howarth Chancellor of the Exchequer Budget. There would be all the savings and cuts and the only thing that would stop Chancellor Howarth getting the country a triple C rating would be the presence of a triple D rating. Nevertheless, it is always a pleasure to respond to him, and that is why I intend to take at least 25 minutes to deal precisely with the points that he has made.

As the noble Lord, Lord Beecham, very frankly, pointed out, Amendment 7A would require a post-commencement impact assessment in the same terms as the pre-commencement impact assessment, which we discussed under Amendment 6. I do not propose to rehearse the same arguments again here, as the real issue of this amendment concerns its relationship with Amendment 161. That amendment would, as has been explained, place a time limit on the effect of the primary legislation, and any revival of its provisions would require the approval of both Houses.

I ask the noble Lord, Lord Beecham, to consider for a moment the legal, contractual and practical implications of the legal aid scheme under this Bill lasting for only three years unless Parliament’s approval were reaffirmed at that point and thereafter annually. That would undermine the approval that Parliament may give by seeking re-approval inside a period shorter than most governmental terms. I do not really think that this proposition for a sunset clause in this Bill is practical. I hope that the noble Lord will reconsider the wisdom of this amendment and withdraw it.

Amendment 7A withdrawn.

Amendment 7B

Moved by

7B: After Clause 6, insert the following new Clause—

“Independent review: welfare reform and available legal advice

One year after the commencement of Part 1 of this Act, the Lord Chancellor must commission an independent review to assess how the changes made in this Act and the Welfare Reform Act 2012 have affected—(a) understanding by people who are entitled to benefits of—(i) which benefits they may be entitled to; and(ii) how to challenge (both review and any further rights of appeal) a decision made in respect of those benefits;(b) access to, and provision of, legal advice about entitlement to benefits;(c) the number and any increase in welfare benefit cases that are made or referred to—(i) parliamentary constituency offices;(ii) local authorities; and(iii) other prescribed agencies; and(d) the nature of the legal advice provided and resolution of such cases from the bodies listed in paragraph (c).”

My Lords, I trust that I have an equally wise amendment. For benefit recipients, their families, their advisers and the statutory services that support and assist such people—largely vulnerable people—the next 24 months will present challenges, difficulties and new hurdles. Rarely has there been such a mammoth change to the tax and benefit system, not to mention it happening with the parallel loss of professional advice to the people concerned if this Bill remains unamended. Of course, for the rich, as ever, there is no problem. I happened to read an advertisement in the current edition of Counsel, which for those of you who do not read it is the journal for barristers, which stated:

“Potentially up to £100,000 tax relief up for grabs: limited window … to get back some of the 50% tax … act before 5 April … New rules which received Royal Assent in July 2011 … created an opportunity to claim tax relief on pension contributions … made in the last few years … the twist is … these rules can be … retrospective … there are some hoops to jump through and therefore it is important that individuals … seek advice”.

Cheekily, the firm gives an e-mail address that starts, “barcouncil”, although it cannot have offended the Bar Council too much as it ran the advert. Clearly, if you are well paid and can afford professional advice, that could be worth £100,000 to you.

My interest is not with such folk but with those seeking to challenge inaccurate assessments by HMRC’s tax credit office or those for whom benefits may be their sole income—the difference between poverty and coping and the dividing line between surviving and drowning.

Benefits are changing, not simply with the loss of the discretionary Social Fund, about which the Minister and I have spoken, not simply with methods of payment changing from weekly to fortnightly or monthly, not simply in who the payments are made to; not simply in rules affecting those in work as well as those out of work, but in fundamental ways affecting the right to one’s home, the arrival of the benefit cap and the definition of being “in work”—a definition that, as the noble Lord, Lord Freud, admitted last month, is still awaited despite its importance to the new system of benefits under the welfare Bill.

Some changes—to the number of hours rather than to the level of pay—will kick in from next month. For example, to qualify for working tax credit, couples with children will have to work 24 hours a week between them, not 16 as before; and one of them will have to work at least 16 hours a week. While the Government see this as reducing the disparity between couples and lone parents, who are required to work at least 16 hours a week, more than 800,000 people will be affected, and probably most of them will be unable to find more hours of work. With school holidays, piecework, overtime or fluctuating hours, new understanding of such rules will be imperative.

Also from next month, thousands of people in the work-related activity group for employment and support allowance will automatically lose their existing non-means tested benefits, having drawn them for 12 months—even those who are deemed unfit to work or who at present are not expected to work. Therefore, from April—and even more from next year with the introduction of universal credit—we will see a swathe of claimants struggling to understand the new system of benefits and faced with DWP staff who, with the best will in the world, will be equally unfamiliar with the new rules and regulations, and will also have to handle a new IT system.

In Committee on the welfare Bill, noble Lords across the House repeatedly stressed the importance of adequate training for DWP staff, particularly in the areas of mental health and fluctuating health conditions, and on top of demands for umpteen new protocols such as those on conditionality, which for the first time will affect those in work and not just the unemployed. Furthermore, there are large areas of discretion within the welfare Bill, for example on what counts as acceptable childcare or travel to work time, on whether the number of hours work can be increased, or on whether it is best to leave a tried and tested employer for a new one who will apparently pay more but who offers less security. Decision-makers will have to make a wide range of difficult judgments. If they are wrong, the impact on them will be slight, but the impact on the claimant may be colossal.

There will also be discretionary awards aplenty, particularly in housing. Some will be taken for the first time by local authorities, with no national guidelines and no experience to assist them, and with different rules on eligibility in different areas. Without good advice, how will the claimant know whether they qualify? This will be particularly the case in the first few years, as the new welfare system beds down. Will we expect claimants, many of whom have the lowest literacy levels, to pore through the regulations to see whether they apply to them? The denial of something to which they are entitled will not affect just the claimant. If as a result they are made homeless, they self-harm, their children go into care or they rack up debts and rent arrears, the chances are that it will be the NHS, social services or prisons that will pick up the tab.

There are significant new rules to be implemented, particularly on underoccupancy, where discretionary funds will be available to help the occasional carer to stay overnight, or perhaps provide an extra bedroom for a disabled child or for a family member with disturbed sleep patterns, or where the home must be significantly adapted for disabled access. However, to ask a vulnerable person to navigate their way through such applications, which have a profound effect, is to ask the impossible. The same will be true with the benefit cap, and particularly with housing advice. Although there will be exemptions where the client’s home is at immediate risk, how is the client to know this in advance of getting advice?

Although we failed on the welfare Bill in a number of our attempts, for example to enable people to keep overpayments of benefit where they were the result of official error that they could not have known about, some decisions about that have been left to discretion. Without advice to the client as well as training for DWP staff, we are not going to achieve right-first-time decisions, and without those, the cost is not simply to the client but to the system with the appeals and everything that goes with them.

The Minister may say that this is not legal advice. I trust he does not because that would be very wrong. Especially with new regulations, a legal eye is needed to understand the significance of “may” as opposed to “should”, and that “include” does not preclude other factors. As with the top end of barristers whom I quoted earlier, the significance of dates and timing needs pretty sophisticated understanding of the nuances. If the Bill is unamended, 135,000 welfare claimants are going to lose their access to advice.

The amendment does not deal with that. My amendment is about helping the Government to adjust their policy in the light of outcomes following Royal Assent. It is to provide the chance for joined-up government across Whitehall, or rather from Tothill Street to Victoria Street, by having an independent assessment, of the sort well used by the noble Lord, Lord Freud, in the Harrington review, looking at how claimants are able to obtain the benefits due to them, feed in the relevant decisions and get the right legal advice about benefits as well as at how providers, such as local authorities, or advisers, such as MPs, are feeling the effects of queries, complaints or difficulties with the new welfare system. This will be valuable intelligence. It will help the Government as well as other agencies. I hope the Minister can accept this. It is a way of looking at the interplay of these two changes to our system: the enormous Welfare Reform Bill and all its changes with, potentially, the lack of advice for exactly those who need to manoeuvre their way through that system. I beg to move.

My Lords, I have been encouraged so fulsomely by the Minister that I rise to contribute briefly to this debate and to support my noble friend Lady Hayter of Kentish Town, who moved this amendment. She is right to draw our attention and, more importantly, the Government’s attention to the interaction between these two major pieces of legislation—this legal aid legislation and the welfare reform legislation—because they combine to impact in major ways on the fortunes, perhaps I should rather say the misfortunes, of people who are poor and disadvantaged. The Government have a responsibility to look to see what the combined effect may be, and I think what my noble friend has proposed—an independent review after a year—is entirely reasonable.

I would like to draw attention to paragraph (c) of my noble friend’s amendment. She wants the review to consider,

“the number and any increase in the welfare benefit cases that are made or referred to … parliamentary constituency offices”.

There is no doubt that the case load of Members of Parliament in their constituency offices will increase. People who do not know where to turn for remedy will look around and think that they must at least go to their Member of Parliament to see what he or she can do to help. Members of Parliament will be extremely willing to do what they can, but most of them will certainly not be in a position to give legal advice, and I rather suspect that Members of Parliament who are lawyers will be reluctant to give advice in their capacity as lawyers to constituents who come to them at their constituency offices.

Members of Parliament listen to what their constituents have to say and give them the best practical advice they can. They will take up the case for them or refer them to the Minister or to other appropriate agencies, but there is a very strict limit to what Members of Parliament can do to sort out such problems on behalf of their constituents. I think we need to recognise that, and also that IPSA has pretty drastically squeezed the resources available to Members of Parliament. If the workload of MPs is going to rise, one very relevant consideration is just what resources will be available to MPs to help their constituents. Equally, local authorities face reductions in their funding of some 30 per cent over the spending review period, and so will be less well placed than they would wish to support local people who find themselves in difficulties.

For example, local people with housing problems may have a complaint about their landlord; the landlord is not keeping their accommodation in proper condition. People will no longer have access to legal aid to enable them to sort out these problems. They might turn to the environmental health officer but the environmental health officer may take a very long time before he or she can get around to their case.

The “other prescribed agencies” that my noble friend mentions in her amendment are presumably charitable organisations; we talked about that earlier. The Government’s reduction to local authority funding is having a major knock-on impact on the funding that local authorities are able to provide for charitable bodies in their areas, including law centres and citizens advice bureaux. The effect of the recession is also squeezing the amount of income that is available to those agencies.

My noble friend does well to draw attention to some of these realities and I hope the Government will accept that there are problems here that they ought to review in the kind of way that my noble friend’s amendment proposes.

My Lords, I hope noble Lords will forgive me if I come in on an amendment that is rather dear to my heart, after the powerful speech by my noble friend Lady Hayter, because we both worked on the Welfare Reform Bill.

What struck me in that particular debate on the Welfare Reform Bill was that it is surely folly to withdraw legal advice at the time that you are bedding in a new system of welfare benefits, which will probably have greater effect on claimants than anything since the Second World War. I do not know whether I have the Minister’s attention but perhaps I could suggest to him that the one thing you do not do is withdraw legal advice about entitlement and eligibility at the very same time that you are introducing a major, vast set of changes to benefits.

As my noble friend Lady Hayter indicated, in discussions on the Welfare Reform Bill, the Minister, the noble Lord, Lord Freud, who had genuine respect for evidence, agreed to accept three major reviews post-implementation of the Bill: first, what would happen to private sector rented housing; secondly, what would happen to public sector rented housing; and thirdly, what would happen to disabled children. This is in respect of being informed by evidence and seeing what the effect of changes will be.

The Government are taking a leap into the dark on the Welfare Reform Bill and a leap into the dark on withdrawing the ability to seek legal advice at the time claimants are most likely to need it. At the very least, therefore, the Minister should follow in the footsteps of his noble friend Lord Freud and put in the basic safety net of a review to see whether the Government’s expectations will be fulfilled.

My Lords, it is always a pleasure to have an intervention from the noble Baroness, Lady Hollis. I hear what she says and of course I defer to the judgment of my noble friend Lord Freud about the Welfare Reform Bill. However, if she had been with us through the passage of this Bill, she would have seen the number of pre-legislative and post-legislative inquiries, independent reports, consultations—it does seem a little bit like overkill.

The noble Baroness, Lady Hayter, has confessed that this is a second go at this issue, previously raised without success in the Welfare Reform Bill. This time around she would require the Lord Chancellor to conduct a review of the combined effects of Part 1 and what is now the Welfare Reform Act on a range of measures relating to advice provision and demand for advice.

I have the greatest regard for the noble Baroness, Lady Hayter, so it is with some regret that I say we believe that her amendment is unnecessary. We have discussed at length similar impact assessments proposed under other amendments. Attributing the extent to which one Bill or another, or their combined effect, drove a particular outcome would be very difficult to achieve, and, we would argue, could not be answered with any degree of certainty. The amendment implies a very costly, broad and cumbersome exercise that would be highly unlikely to offer any real benefit given the complexity of the questions it would be trying to pose and answer. This is not to say that we are not committed to assessing the impacts of the Bill. I have made the Government’s plans in this respect clear. We will assess the true impacts of the Bill as part of the established process for post-implementation review of legislation, much of which was put in place by the previous Administration.

The Ministry of Justice is working hard to improve its evidence-base of legal aid clients and providers in order to get maximum benefit from the review process. Such a review is likely to consider the sorts of issues raised in this amendment. But we are not persuaded that the face of the Bill is an appropriate place in which to place such responsibility. I would therefore urge the noble Baroness to withdraw her amendment.

In thanking my noble friends Lady Hollis and Lord Howarth for their support, perhaps I may reassure my noble friend Lord Howarth that there will be no problem for Members of Parliament. The new elected senators or Members of the House of Lords can take up all these problems because they will have nothing else to do. I love constituency work. How it will go will be interesting. Anyone who has been elected knows that people first go to their local authority and to their councillors and then to become an MP. When I was working with MEPs, I saw it also went on to there.

This is one of the cheapest amendments one will ever get. The estimate is that for every £1 spent on legal aid on benefits advice the state saves more than £8. We are trying to give the Government the opportunity to have the evidence to change their minds. Given that there will be a post-legislative review, I beg leave to withdraw the amendment.

Amendment 7B withdrawn.

Clause 8 : General cases

Amendment 8

Moved by

8: Clause 8, page 5, line 41, leave out “omitting” and insert “adding”

My Lords, I am conscious of the time. I would sooner that this amendment is left to Wednesday.

I was not sure whether the Government were minded to adjourn the House now, it being 10 o’clock. Clause 8 has always taken a considerable amount of attention from those inside and outside the legal profession. People are very struck by the fact that it was very much a one-way ticket; namely, that the Lord Chancellor would have the power to take extra matters out from legal aid by regulation but not have the power to put them back in. Many people felt that that was very unsatisfactory.

The solution was to do it the other way around; namely, that he could put things into legal aid but could not take them out by regulation. But we see the virtues of the amendments, which are not quite the same in wording but come to the same thing, in the names of the noble Lord, Lord Thomas, and my noble friend Lord Hart. Although I will move my amendment, I would be more than happy to accept either of their amendments. I very much hope that the Government will be happy to accept one of their amendments. I beg to move.

My Lords, the principles underpinning this Bill include the need to establish very clearly the scope of civil legal aid services. We need to ensure that the funding of the scheme is sustainable in the light of the historic expansion of the scheme and the cost to the taxpayer. We have made difficult choices in order to focus legal aid in our priorities and therefore we will resist amendments that seek to expand the scope of the scheme. However, I accept that a case has been made by my noble friends Lord Thomas and Lord Phillips, and indeed by the noble Lord, Lord Bach. If they do not press their amendments this evening, I give a clear undertaking to the House to bring back our own amendment at Third Reading which I think will meet the concerns that have been expressed. I can reassure noble Lords that the Government accept the amendments in principle in so far as they would provide the Lord Chancellor with a power to add new civil legal services to Part 1 of Schedule 1. I hope that will allow the noble Lord to withdraw his amendment and await the government amendment at Third Reading.

My noble friend will know that I have been urging this course upon him since the Bill was first drafted and I am delighted with the undertaking he has given.

It is only a question for me to decide whether to put my amendment to a vote, but I do not intend to do so. I can see one or two faces opposite looking anxious—or perhaps they look confident. It is only graceful from this side to thank the Minister for arranging this concession by the Government. It is much appreciated and we look forward to seeing the draft amendment when it comes forward. In the mean time, I seek the leave of the House to withdraw my amendment.

Amendment 8 withdrawn.

Amendments 9 and 10 not moved.

Consideration on Report adjourned.

House adjourned at 10.07 pm.