Clause 9 : General cases
1: Clause 9, page 6, line 25, leave out from “order” to “(whether” in line 26 and insert “—
(a) add services to Part 1 of Schedule 1, or(b) vary or omit services described in that Part,”
My Lords, the Government have tabled government Amendments 1, 6, 7, 8, 13, 14 and 18 following the commitment I gave on Report. The Government have listened to the reasoned arguments presented by my noble friend Lord Thomas of Gresford and other noble Lords, and we have brought forward these amendments accordingly.
Amendment 1 to Clause 9(2) would give the Lord Chancellor the power to omit, but in addition the power to add or vary the services in Part 1 of Schedule 1. He would be able to do so by modifying Parts 1, 2, 3 and 4 of Schedule 1. The power to vary a service allows us to amend the existing services within the schedule where they need to be altered, but without the need to omit a service and then add a new service. For example, if the Immigration (European Economic Area) Regulations 2006 were amended in the future, any such amendment might not mean that services need to be added to the schedule, but it might be necessary to vary the provisions in paragraph 31 of Part 1 in order to reflect any such changes to those regulations.
The provisions of Amendment 1 mean that the power in Clause 9(2) would be similar to that which exists in Section 6(7) of the Access to Justice Act 1999. We consider that this is the correct and sensible approach to take. The powers in Clause 9(2) would be exercisable by the Lord Chancellor when making an order. Clauses 41(6) and 41(7)(a) mean that such an order would be subject to the affirmative procedure and so subject to debate in and approval by each House of Parliament.
Amendment 2, tabled by the noble Lord, Lord Bach, would allow services to be added but not to be omitted. As I have said, the government amendment provides for balance to the existing Clause 9. Amendment 2 seeks to go further and actually removes the ability to omit. I firmly believe that that power to omit is necessary and gives the Bill a welcome flexibility. An example of where this may be necessary is where the governing legislation behind an area of law is repealed or otherwise altered and we need to alter civil legal aid provision accordingly. Another example would be where particular court proceedings are moved to a tribunal. It may cease to be appropriate to provide funding for advocacy for those proceedings, so an amendment to Part 3 of Schedule 1 would be needed.
As a result of Amendment 1, we no longer consider that we need certain powers in Schedule 1 to make secondary legislation. The purpose of this is not to reduce the categories in which legal aid will be available but are more technical in nature. To ensure that this is clear, let me explain in detail the powers which will be removed. First, Amendments 6 and 7 relate to paragraph 4(1)(k) of Part 1 of Schedule 1, which concerns the care, supervision and protection of children and provides for further orders or procedures to be prescribed for the purposes of this paragraph. In the light of the power to add services proposed by Amendment 1, we consider that the power at paragraph 4(1)(k) of Part 1 of Schedule 1 is no longer necessary.
Secondly, Amendment 8 would omit paragraph 9(3)(n) of Part 1 of Schedule 1, which relates to community care. Paragraph 9(3) defines community care services as services,
“which a relevant person may provide”,
under a number of listed enactments. Heading (n) of that definition allows other enactments to be prescribed for the purposes of that definition. With the power to add services under Clause 9, this is no longer necessary.
Thirdly, Amendment 13 relates to paragraph 15(1)(g) of Part 1 of Schedule 1, which concerns the protection of children. Paragraph 15 refers to civil legal services where a person is seeking in a private law family case to protect a child from abuse by applying for any of the list of orders or procedures set out in paragraph 1, and paragraph 1(g) provides for further orders or procedures to be added by being prescribed for this paragraph. Again, this is now unnecessary.
As a result of these amendments, we have made consequential amendments to paragraph 21 of Part 1 of Schedule 1, which concerns judicial review, and Part 3 of Schedule 1. Amendment 18 makes consequential changes by removing paragraph 23 from Part 3 of Schedule 1. Paragraph 23 of Part 3 ensures that advocacy is available in relation to prescribed legal proceedings relating to orders and procedures that might have been prescribed under the powers in Part 1 of Schedule 1 which, as I have explained, we no longer consider necessary. There is, therefore, no need for paragraph 23 of Part 3. As a result, the reference to paragraph 23 of Part 3 in paragraph 21(10)(b), which defines judicial review, is removed by Amendment 14.
Amendment 1 meets the concerns raised in Committee and I urge the noble Lord, Lord Bach, not to move Amendment 2. I beg to move.
My Lords, I am grateful to my noble friend for the amendment. He knows that we on these Benches raised this issue before Second Reading. It is necessary to have flexibility brought into the Bill for two reasons: first, because economic conditions may improve and it may be possible to revert to a more generous legal aid scheme; and, secondly, because those of us with experience of litigants in person know they can clog up the courts and that, consequently, it may be necessary for urgent amendments to Schedule 1 to introduce legal aid to enable people to be legally represented. It is not fully appreciated by the public that legal representation shortens cases and leads to justice, rather than litigants in person trying to fight their own cause.
I thank the Minister for the concession that the Government have made today. The clause as it stands before we pass the Government’s amendments should never have been in that form when the Bill was published and was always crying out for amendment. Indeed, members of my party in the Commons did their best to ensure that that happened. I am grateful to the noble Lord, Lord Thomas, and other noble Lords for persuading the Government that the clause needed changing. I shall not, of course, press my amendment; I will not move it.
I know the Minister and all other noble Lords will agree that the House seems somewhat empty today because our noble friend Lord Newton of Braintree is not with us in our deliberations. He took an active part in all the debates on the Bill for many months and, even though we could all see that he was not in good health, insisted on coming here, speaking his mind and voting in the way his conscience told him to vote. He took a real interest in the Bill and—I know all noble Lords will agree—it was a delight and privilege to work with him. It does not seem right or just that he is not here listening and speaking his mind. Having said that, I thank the noble Lord for the concession.
My Lords, as a Cross-Bencher, I add to what the noble Lord, Lord Bach, has just said about the death of a man who was a great friend to many of us. Lord Newton was an adornment to this House, who stood, as the noble Lord, Lord Bach, has already said, for his conscience rather than for what his party, or any party, might wish. It is easy for me as a Cross-Bencher to examine my conscience, and I am well aware it is not so easy for members of political parties. He will be enormously missed. His name is on a number of today’s amendments, and I hope that noble Lords will forgive me for saying something about this before I move to Amendment 1.
I congratulate the Government. I do not do it terribly often but am going to do it three times today. This amendment, as the noble Lords, Lord Thomas of Gresford and Lord Bach, have said, is overdue. It is splendid that the Government have recognised the importance of having the ability to increase legal aid. I also very much support the fact that they are putting in “vary or omit”. All of us who have had anything to do with legislation know that from time to time it becomes redundant and has to be got rid of or needs a tweak here and there, and therefore needs a variation. I support this amendment as it is.
However, if the Minister will forgive me, I will make one or two points about what has happened as a result of this Bill so far as family cases are concerned. The noble Lord, Lord Thomas of Gresford, has already mentioned this but I will add to it. I strongly urge the Government to review the impact of the legal aid changes no later than a year from now, to see what happens to the family courts in the light of the removal of nearly all private law cases from legal aid. I am not sure the Government really quite accept what a number of us have been saying, to the Ministers in this House and the other place, about the impact on the courts. There will be longer lists. I know the Ministry of Justice is already aware that the lists in the courts are too long, and they will be increased substantially.
There will be longer hearings. As the noble Lord, Lord Thomas of Gresford, said—entirely accurately—without lawyers to keep a case under control, two litigants in person will spend an absolute age. The sort of case that takes a day, or possibly a day and a half to two, will take not less than a week. I have a vivid recollection of one litigant in person who took a week to give evidence and cross-examine. Every time I asked him to hurry up, it added another hour or two to the case. I am afraid I sat scribbling nonsense, because nothing he said was of any value to the conduct of the case.
It is going to be very difficult for district judges and magistrates to manage people totally caught up in the emotions of a failed relationship and fighting over money, a house or particularly children. They will have to do it but it will clog up the courts to an even more significant degree.
It will have an impact in children’s cases. One example in child protection issues is the fact that drink or drug abuse is sometimes detected only during the hearing of a private law case. It is crucial that the person who is drinking or taking drugs to excess is tested to see what should be done as to whether that parent is fit to have care of the child, or even to see the child. The Minister will be aware that in the Norgrove report that point was made about the very thin line between the private law cases and those that tip over into child protection issues. On Report, we discussed whether the mediator would identify cases where there might be abuse. There is a hard core of 5 per cent of cases that cannot be settled between the parties—and, of course, that 5 per cent of cases will carry on regardless and may not ever come to the attention of the mediator.
I ask the Minister, in congratulating him on proposing the amendment, to have a real look at the impact on the family courts within no later than a year to see what is actually happening.
My Lords, of course I associate myself with the expressions of sympathy on the untimely death of Lord Newton.
On the matter raised by the noble and learned Baroness, we are committed to undertaking a post-implementation review of the specific policies set out in the Bill. As she acknowledged, we have just replaced a ratchet by a regulator, which should also help in seeing whether some of her predictions come true, and how we react to that.
Amendment 1 agreed.
Amendment 2 not moved.
Schedule 1 : Civil legal services
3: Schedule 1, page 140, line 5, at end insert—
“Children under 181 (1) Civil legal services in relation to advice and proceedings where a child is, or proposes to be, the applicant or respondent in proceedings, or where the child is represented by a legal guardian, including—
(a) private family law;(b) any benefit, allowance, payment, credit or pension under—(i) the Social Security Contributions and Benefits Act 1992,(ii) the Jobseekers Act 1995,(iii) the State Pension Credit Act 2002,(iv) the Tax Credits Act 2002,(v) the Welfare Reform Act 2007,(vi) the Welfare Reform Act 2011, or(vii) any other enactment relating to social security; (c) all areas of education law not otherwise covered in this Schedule;(d) all areas of housing law not otherwise covered in this Schedule;(e) all areas of debt-related disputes not otherwise covered in this Schedule;(f) all areas of immigration and asylum law not otherwise covered in this Schedule;(g) all areas of clinical negligence law not otherwise covered in this Schedule;(h) all areas of consumer law not otherwise covered in this Schedule;(i) appeals to the Criminal Injuries Compensation Authority;(j) civil legal services relating to a review or appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007; and(k) civil legal services relating to an appeal to the Supreme Court.”
My Lords, I speak to the amendment in my name and in those of the noble Baronesses, Lady Eaton and Lady Benjamin. I am also very proud to say that the name of the noble Lord, Lord Newton of Braintree, was included on this amendment, and I know that I speak for all those in this Chamber when I say that he will be greatly missed.
This amendment would make legal aid available for children in all current cases, including when they are victims of medical negligence. At present, legal aid helps just over 40,000 children every year who have civil justice legal problems in their own right. If the Bill is left as it stands, legal aid for around 35,000 children every year will continue, but legal aid will not be available for around 6,000 children under 18 who would qualify if the current rules remained in place. The Government have so far not explained why those 6,000 children will be treated differently from other children who have problems under the same categories of law.
This is now the 40th day of debate in your Lordships' House and in the other place. I do not believe that the Government have been able to explain the criteria that will decide, for example, why 220 children will continue to receive legal aid support in cases about their education but 110 will not. This is from among the numbers remaining after the Government conceded last June that legal aid would be kept for cases involving children with special educational needs—numbers obtainable only through a freedom of information request by the Children’s Society.
When put on the spot about which children will lose legal aid, the Government say that they will be able to apply to be treated as exceptional cases under Clause 10. I do not believe that there should be any confusion or delay as to whether a child under 18 is entitled to legal advice and representation in British civil justice. Children are not adults—they do not have the capacity to represent themselves or to interpret the thousands of pages of laws and regulations that affect them.
The question of a child’s capacity to represent themselves is explicitly recognised and provided for in international law. The Children’s Commissioner for England, Dr Maggie Atkinson, wrote to the Lord Chancellor to warn that denying children a voice in legal proceedings would be in breach of the European convention. She said:
“Children, by virtue of their age and capacity, will not be able to present their case effectively in the majority of proceedings … Children’s need for legal aid in civil cases where they are a party should not be viewed as ‘exceptional’”.
I am very concerned that, in many of these cases, children have been put in the position of taking action against a local authority. It is a question of a child versus the state, and the state in this Bill is denying children the capacity to challenge it. Camila Batmanghelidjh of Kids Company told us about a child who came to her charity in desperate need of help, and how the charity’s lawyer was able to use legal aid to challenge the local authority to accept its responsibilities. Camila said:
“She was under 18, but not recognised as vulnerable by the local authority despite being chronically abused at home. In the end the judge agreed with us and forced Lambeth to take her into care, when they were leaving her on the streets. I think the point we want to bring is how local authorities are not doing their job properly, and legal aid is the only way they can be held accountable”.
However, what have the Government told us will happen to children denied legal aid? During Report in the other place, the Justice Minister said:
“Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support”.—[Official Report, Commons, 31/10/11; col. 689.]
So a social worker is expected to help in a case that might well bring them against their own employer, the local authority. If we do not support this amendment, we will be asking a child to go into the courtroom alone to argue his or her case against a barrister paid for by the taxpayer. It will be unjust and unfair, and I believe that it will also be a false economy.
The Ministry of Justice believes that it can save £6 million or £7 million from its legal aid budget by denying legal aid to these 6,000 children, but the knock-on cost to the public purse could far outweigh that sum. As we have heard throughout the debates on this Bill, the Government have given no estimate of the knock-on cost that will arise because legal problems are not sorted out early, even though they accept that there will be wider costs to society and to the taxpayer. The Ministry of Justice response to the consultation on the Bill said:
“The lack of a robust evidence base means we are unable to draw conclusions as to whether wider economic and social costs are likely to result from the programme of reform or to estimate their size … It is not possible to quantify accurately these wider costs”.
To deny children, the most vulnerable in our society, the ability to access legal aid without any understanding of what the wider consequences would be is not something we should accept. I beg to move.
My Lords, I will speak briefly to the amendment which stands in my name and that of my noble friend Lady Eaton and the noble Lord, Lord Crisp. Before doing so, I would like to add my tribute to those that have already been made to the late Lord Newton of Braintree—Tony Newton, as I knew him for almost 40 years. I was in the House of Commons when he joined us. He immediately made his mark as a man of calm determination who was never, even when he was in high office, tied to a particular political line. He always sought to follow his own conscience. I shall have great cause always to be grateful to him because when I was a lone voice on the Conservative Benches in speaking out at the time of Bosnia, he was Leader of the House yet he made sure that every week I was able to make my points, and he always responded with a degree of care, concern and empathy which endeared him to me then.
When I came into your Lordships’ House, we immediately became allies on a number of issues, not least those which concern us this afternoon. Lord Newton was tenacious and determined, and nobody in this House will ever forget the courage of that man, standing with his oxygen machine either by the Throne or at the Bar of the House, then leaving the machine to come and speak—most recently from near the Cross Benches—on subjects which concerned him. His name was on both the amendments that I am talking about, so in tribute to him I want to say a few words about Amendment 4. In doing so, I in no way dissent from what the noble Baroness, Lady Grey-Thompson, has said but my amendment is more narrowly focused. I had an opportunity, along with colleagues from all parties, to discuss some of these issues with my noble friend Lord McNally last week. I thank him for the care and concern that he displayed when we discussed these extremely sensitive and important issues. What I said to him then in private I say now in this Chamber: I do not for a moment question his commitment or his concern, and I know that he is as anxious to do right as we all are. However, he is a member of the Executive.
The Government have decided to make a number of cuts in all departments. One understands why, and I am not going to cheapen this speech or this House today by trying to score points about the deficit. I say to my noble friend that of course the Government have to cut, but that does not mean that they have to cut in every department when in some departments, as in his, the sums are relatively small. Those small sums, though, can make such a difference to a great many extremely vulnerable people.
My amendment concentrates on the subject of clinical negligence and children. I stress one point in particular: those who are damaged by an agency of the state have a right to expect the assistance of the state, and the National Health Service is precisely that. If, in the care of the NHS, someone is damaged through clinical negligence then there should be an automatic right of redress. That is more particularly the case when we come to children, and that is what the amendment focuses on.
We had a debate a fortnight ago about those who had suffered brain damage from clinical negligence. They were to be treated differently from those who had been damaged physically in other ways. That is wrong. One should not discriminate in that manner between those who suffer physical damage, which may be with them for the whole of the rest of their lives, and those who suffer brain damage. I am not suggesting for a minute that there should not be assistance for all—indeed, that is the substance of the amendment—but it could be argued that those who suffer physical damage, be it paralysis or whatever, and who are conscious of that are in more personal need than those who suffer brain damage and may not be personally conscious of that.
It is wrong that we in this House should be passing any legislation without pointing that out and asking another place to think again, unless of course my noble friend can accept the amendment today, which would give us all great pleasure. If he cannot, although I hope very much that he will, then this amendment should be pressed to a vote in the event of the noble Baroness’s amendment not being approved. It may well be—I certainly shall not oppose it—but, if it is not, I will then wish to press my amendment unless my noble friend has accepted its form and substance. If this House has any truly lasting point and purpose, and I believe as strongly as any Member of it that it has, then we have a duty to say, “You haven’t got this quite right. You have got to rethink”.
I suppose that I cannot be too greedy and expect the same sort of majority that we achieved yesterday, but I hope that if it is necessary to put this amendment to the vote then it will carry. Here, we are concerned with those least able to help themselves. This really is a case of, “Suffer the little children”, and I very much hope that your Lordships’ House will ask the Government to insert an amendment along these lines in the Bill before it finally becomes law.
My Lords, I, too, should like to add to the laments that we all feel at the death of Lord Newton. On both sides of the Chamber, we all picture him standing stalwart, despite his obvious disability and discomfort—determined, as always, to give a fair view of the legislation.
I thank the noble Lord, Lord McNally, for the concessions that he made, particularly his government amendment regarding the victims of trafficking. It is most welcome. I also thank him as I was one of those at the meeting—of all parties and none—at which we all put our views to him. However, there remains a need to provide greater protection for vulnerable children and young people. My Third Reading amendment, Amendment 5, is very similar—almost identical—to that of my noble friend Lady Grey-Thompson. The difference is mainly that it raises the upper age from 18 to 24 for this very vulnerable group. It would protect only the most vulnerable people—around 12,000 out of 69,000 18 to 24 year-olds who will lose access to legal aid, specifically those with a disability and those who have been in care.
It is hard to think of groups of people who are more vulnerable than those covered by this amendment. Generally, young people are rarely equipped with the knowledge, skills and legal capacity to resolve their problems without expert advice. This particularly applies to these vulnerable young people, who are far more prone to experiencing multiple and severe problems and are therefore far more likely to require this specialist legal intervention to prevent their situation escalating and spiralling out of control. How are these young people expected to cope when they have problems if they cannot obtain legal aid?
The House will not need reminding, particularly in this economic climate, that the country is experiencing record levels of youth unemployment, rising youth homelessness and increasing levels of adolescent mental health problems. These young people need special help to get them through to a more fulfilled adult life at less cost to the community. It cannot make any sense to deny them this access to the legal advice that they desperately need to help them resolve their problems and turn their lives around.
The Government have said in their new cross-departmental youth policy that they believe in providing additional and early help to disadvantaged and vulnerable young people, including those in care and those with disabilities. Our amendment would help the Government to meet this commitment. It would protect young people who have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, according to the definition of disability that is used in the Equality Act 2010. Many of this group’s problems are in the area of social welfare law, being to do with housing, debt and welfare benefits. The considerable changes that many of your Lordships in this Chamber debated during the passage of the Welfare Reform Bill will undoubtedly mean that more young people with disabilities will face social welfare problems and will need that help to understand and gain from the new benefits regime. It simply cannot be right to leave disabled young people without the support they need to enforce payment of their entitlements.
As I have said, the amendment would also protect care leavers under the age of 25. This group is also highly vulnerable. Care leavers are far more likely to end up unemployed, homeless or in prison—alas, this will happen to too many of them—and to experience high levels of common social welfare problems. They will need good legal advice to avoid poor outcomes. The amendment would cost around £4 million, a figure far lower than the cost of not providing access to legal aid for these young people.
Research by Youth Access shows that legal advice which is targeted at vulnerable groups is particularly cost-effective and that this group is more likely to experience stress, violence and homelessness if they do not manage to get good legal advice at an early stage. Each year, 750,000 young people aged between 16 and 24 become mentally or physically ill as a result of their unresolved social welfare problems. That is costing the NHS at least £250 million a year. Much of that cost could be avoided if those young people received better and earlier support. Research by JustRights shows that any savings made through denying young people civil legal aid are likely to be outweighed by increased costs in the criminal legal aid budget alone. The Local Government Association has said that it has concerns about the extra costs for local authorities arising from the withdrawal of legal aid from care leavers.
This amendment not only makes economic sense but is the right and fair thing to do if we are serious about protecting these most vulnerable members of society. I very much hope that, when the time comes, everyone, including the Minister, will support it.
My Lords, when I first looked at the Bill, I was pleased to see how much vulnerable adults and children are protected by the provisions of Schedule 1. One has only to look at the paragraph headings to see the protection that is given: for example, “Care, supervision and protection of children”, “Special educational needs”, “Abuse of a child or vulnerable adult”, “Working with children and vulnerable adults”. All these groups will remain within the scope of legal aid. Further headings comprise: “Mental health and mental capacity”, “Facilities for disabled persons”, “Inherent jurisdiction of High Court in relation to children and vulnerable adults”, “Unlawful removal of children from the United Kingdom”, “Family homes and domestic violence”, “Victims of domestic violence and family matters”, “Mediation in family disputes”, “Protection of children and family matters”, “Children who are parties to family proceedings” and “EU and international agreements concerning children”. Over and over again the emphasis is placed on keeping the needs of children and vulnerable adults within the scope of legal aid. I look forward to hearing from my noble friend what proportion those headings represent of all the cases involving children. Those children’s and vulnerable adults’ issues will continue to be within the scope of legal aid.
There is one aspect of Amendment 3 with which I entirely agree—I spoke about this in Committee and on Report—which is that legal aid should be maintained for a review or appeal on social welfare issues and for,
“civil legal services relating to an appeal to the Supreme Court”.
That is so for children, but my position is that it is important that legal aid for appellate processes should be available to all adults and children.
I listened with a great deal of sympathy to the exposition of Amendment 4 by the noble Lord, Lord Cormack, but he should bear in mind that conditional fee agreements with one-way costing, which is the new way in which conditional fee agreements are to be entered into, will be available for people who are not covered by legal aid, and the new changes will be much more acceptable. For example, there will be protection against the defendant’s costs for a losing claimant—a losing child or adult. They will not have to pay those costs. We have discussed those issues at length. The noble Lord should also bear in mind that the Government have announced that if you are legally aided and you obtain damages in a personal injury case, 25 per cent of those damages will be taken for the supplementary legal aid scheme to fund other people who are deserving of legal aid. Therefore, entitlement to legal aid will not mean that a person gets their damages in full. It is probably better in many of these cases to have a conditional fee agreement as it has been refashioned than it is to receive legal aid. I am sure that that is the way in which the legal profession will go.
My Lords, I speak in support of the children’s amendments moved and spoken to by the noble Baroness, Lady Grey-Thompson, and my noble friend Lord Cormack. I should like to add my thoughts on Lord Newton, who kindly supported the amendment. I know that we will all miss his integrity and compassion in all our debates, particularly around these sensitive subjects. I also thank the noble Lord, Lord McNally, because I and other noble Lords have had a number of conversations with him, and he has been most gracious in his dealings with us. However, I still find myself in the unhappy position of being unable to support the Government’s intention to remove the clear and straightforward right to legal advice for children under 18 generally, and for all children who are injured in clinical negligence cases.
The Bill as it stands draws a distinction between, on the one hand, any child who suffers brain damage as a result of medical negligence before the age of nine weeks, and, on the other, any child suffering injury of any other kind caused by medical negligence—including a child who suffers from brain damage when they are nine weeks and one day old. Let me tell noble Lords about a Plymouth boy who suffered brain damage at the age of one when doctors at the Frenchay Hospital in Bristol failed to follow up a suspected aneurysm. Months later, he suffered a devastating bleed in his brain, which would have been avoided if the correct procedure had been followed. The boy will require care for the rest of his life; he cannot talk and will never be able to work. A settlement with North Bristol NHS Trust at the High Court in November 2011 will help to provide care for the rest of the boy’s life. He is now 10. The case could not have been started without legal aid, which would not be available if the Bill were to pass unamended.
I simply do not see how children who have been injured in these often heartbreaking circumstances can be divided into two groups in this way. We would allow legal aid for a baby suffering brain damage at birth, but deny legal aid to a baby suffering brain damage in hospital at the age of one. Or we would prevent a child who has been paralysed from seeking help. Just imagine two babies at two weeks old in the same hospital. One is brain damaged and the parents can seek support on their behalf, while the other is paralysed and the parents cannot get legal aid.
Are we really saying that a brain-damaged child who can walk needs more care and support than a child who has to be carried to the bathroom and turned in bed during the night? The severe difficulties facing the child’s parents will be exactly the same in both cases. They will be desperate for help. They will want to know whether they have a legal case and, first and foremost, they will be giving their child the day-to-day care and love that all parents must, whatever the difficulties.
Are we really going to ask half of those parents to appeal to the director of legal aid casework to see whether their child qualifies for legal aid as an exceptional case—as if that would be a satisfactory way to organise legal aid for children even from the Government’s point of view? I ask noble Lords to consider the expense, bureaucracy and delay that will result from such an approach.
I have highlighted medical negligence but, as a former leader of a local authority, I could go through each subject heading and make a similar case. The simple truth is that children are defined as minors in law because they cannot represent themselves and sometimes need protection and redress from their families and from the state. It is not good enough to suggest that a social worker can apply for their legal support as an exceptional case. Social workers are not legal executives and have no legal training. Inherent in that suggestion is a misunderstanding of the nature of the legal actions that may be taken. In most cases, the child will be challenging a decision or action taken by the local authority. Do we really believe that every social worker will apply for a child to have legal aid in cases which challenge his or her decisions or those of his or her employer?
All of us in this House understand that in a healthy democracy, it must be possible to challenge the state, particularly where children are concerned. We also understand that there are lots of terrible cases where children’s voices have not been heard, which is why we need to ensure that they can take independent legal advice that is accessible directly, not via a social worker or any other arm of government.
I support the amendments because I believe that they will save an enormous amount of trouble and wasteful expenditure for the Government, whom I support. I want to help the Government to pull back from what would be a regrettable and avoidable mistake, and they will save a great deal of anxiety for parents who are already coping with more than anyone should have to bear.
My Lords, I would have been inclined to support the amendment if I had not been here to listen to the debate and heard what my noble friend had to say, which appears basically to contradict the argument just made by the noble Baroness, Lady Eaton. She was saying that in the case of the infant who died at Frenchay Hospital, the case could not have been brought if legal aid had not been available; but my noble friend said that it was preferable, in terms of the amount that the litigant would receive, to conduct a case of this sort through the conditional fee arrangements which are now available. The litigant would have ended up with more money than would have been available to the child under the arrangements that prevailed at the time of that terrible accident.
I should like to hear from my noble friend when he winds up whether it is a general principle that can be accepted on all sides of the House that people who were formerly legally aided would have done worse than those who are now to be conducting their cases under the CFA. Saying that we do not need an arrangement of the sort put forward by the noble Lord, Lord Cormack, is a very powerful argument.
I also thought that perhaps the noble Lord had failed to notice that in all these cases involving children there is a litigation friend, who has to be approved by the court. Therefore, his comment that we are looking at people who are least able to help themselves may not be altogether valid. The parent or a suitable adult always appears on the child’s behalf and the child does not have to go into the court without that support. Therefore, although children may be apparently less able to conduct litigation, they do not have to deal with these matters in the court; litigation friends appear on their behalf.
I am not sure that that proposition is right. I do not think that my noble friend had borne in mind the possibility that the child would do better financially under the CFA. That is a very important consideration. In fact, in my mind it is the determining consideration in how I approach this amendment. If the argument of my noble friend Lord Thomas of Gresford is correct, it is conclusive that we should not support the amendment but that we should allow cases to go forward under the CFA, under which people will be better compensated than they would have been.
My Lords, I have put my name to an amendment in this group—that in the names of the noble Baroness, Lady Howe, and others. I simply make one appeal to the Government concerning their commitment to protect vulnerable children and young people.
I declare an interest as the chair of the All-Party Parliamentary Group for Children. Over the past year our theme has been vulnerable children. We have heard about the problems that such children and their families have in dealing with complex systems such as education, health and the law, and we have heard many passionate and committed speeches about these young people today. In my experience, this House has never been party-political on issues regarding children; it has always considered the well-being of children to be above party politics. That spirit has been shown today on the Benches opposite, and long may it continue.
The Minister for Children, Sarah Teather, for whom I have the greatest respect, made a commitment in 2010 to assess legislation against the needs of children, as enshrined in the United Nations Convention on the Rights of the Child, and I find it ironic that we are now considering legislation that will potentially damage vulnerable children and their families. The Government, in their report Positive for Youth—I shall not go into that but the commitment is there—made commitments to protect disadvantaged and vulnerable children, and the Liberal Democrat youth policy Free to be Young makes commitments to improve young people’s access to legal advice. I think we should all remember those commitments today. I trust that the Government will recognise that intervention at an early age, particularly for the vulnerable, is not only humane; it also benefits well-being and is cost effective. I hope that the Government will look again at the commitments to vulnerable children and young people.
My Lords, as the first speaker from these Benches in this debate, I add my gratitude for all the work of Lord Newton of Braintree. It seems strange to be sitting here without his advice from behind me, as the noble Lord, Lord Bach, said earlier in the debate. He had immense care and concern for children’s needs and rights, which was evident right up to last week. Not to have his sharpness here in this debate is a loss for all of us, so our thanks to him.
The amendments would go a long way to providing security of legal aid for some of our most vulnerable children, at minimal cost. We seem now to have reached a point where legal aid will be provided for many children. I have listened carefully to what has been said by the noble Lords, Lord Thomas of Gresford and Lord Avebury. It seems to be almost accidental whether a particular child will come under the provisions of the Bill. The amendment moved by the noble Baroness, Lady Grey-Thompson, gives us the opportunity to treat all children in difficulties equally, with particular concern for education and sanctuary issues.
We all recognise the importance of education for all, so we must be concerned that Black Caribbean pupils, for example, according to the children’s commissioner, are four times more likely than others to be excluded permanently from school. Those children will often be vulnerable, frightened and very unsure about their future. They need the structure of the legal system to provide them with support at that point in their lives. Equally, we continue to affirm that we have an immigration system that deliberately provides sanctuary for children who have been victims of abuse of whatever kind. They may have been trafficked into this country—and I, too, welcome the Government’s changes on that issue. However, many will not have been trafficked; trafficking is extremely difficult to define. Nevertheless, they may have suffered sexual exploitation, domestic slavery or abuse. They may have been brought into this country as domestic slaves and will often have been abused. Some will be the subject of custody cases, which may lead to abuse or separation from a parent. Others would be in danger of abuse if they returned to a country where exploitation would continue.
Justice demands proper legal representation and the amendments provide a way of securing that at minimal cost. They would demonstrate our concern for the most vulnerable young people in our society. They are absolutely in accord with the Government’s aims and purposes, and I hope, therefore, that they will accept them
My Lords, I rise to support the amendment moved by the noble Baroness, Lady Grey-Thompson, and apologise for missing her opening remarks. However, before briefly addressing the amendment, I would like to associate myself with the words in remembrance of Lord Newton. In another place I worked very closely with him, as Tony Newton, when I was vice-chair of the parliamentary All-Party Disablement Group. Even when he could not meet us in all our demands, he was always very positive and looked for ways to come at least some of the way towards us. He will be a great loss for all of us in this House as well as for the many thousands outside the House for whom he worked so hard.
I also thank the noble Lord, Lord McNally, for some of the concessions that he has been able to make at other times—particularly for those with learning difficulties—which I was unable to acknowledge earlier.
On this specific amendment, all of us who have had reason to work on behalf of disabled children will be aware of the need to ensure that they get fair play within the system. If there is any danger of them losing out and not being able to go to appeal on benefits then there need to be safeguards in legislation.
Many of us served for weeks on end on the Welfare Reform Bill. We hoped that some amendments would strengthen it and make it more easily understood. In reality, the amendments failed. There will be challenges to the interpretation of the legislation that will need to go to the courts. Unless provisions such as those in the amendment are included in the Bill, people will miss out. Therefore, even if some aspects—to which the noble Lord, Lord Thomas, referred—are already covered elsewhere, others are not. Therefore, let us give another place a chance by agreeing the amendment. If there is then a need to pare it back, all well and good—but at this point, unless we agree the amendment we will lose everything.
My Lords, I was the constituent of Lord Newton of Braintree—Tony Newton—for nearly 20 years, and he was a close friend for the rest of his life. If I need a little courage in order not to follow the Whip today on at least one of the amendments in this group, I will get it from his memory. He was an extraordinary man of both first-class intellect and a really big heart. I do not know anybody who managed to marry intellect and heart in quite the effective way that he did.
I have practised law for more than 50 years. The memories that stick with me most are of trying to help—and often to help young people under 18 and their worried parents get fairness from a barbarically complicated legal system. I understand the extraordinary difficulty faced by my noble friend Lord McNally—and by the Government. They have the hugely difficult and unwelcome task of cutting back and saving on public expenditure. However, we are faced here with a balance between £6 million to £8 million, and justice for the particularly vulnerable and needy group of our fellow citizens who are under 18.
Looking down the list of issues that Amendment 3 covers, it is almost impossible not to believe that they are all essential elements of justice in the 21st century. The noble Baroness, Lady Grey-Thompson, made the point that the downstream costs of not addressing these sorts of issues with at least timely advice are likely to exceed any up-front savings. The King’s Fund report made that clear.
On balance, I am persuaded by my noble friend Lord Thomas of Gresford that I need not support Amendment 4. In the same way, I will be able to compromise on Amendment 5, even with the shadow of Tony standing over me. To extend the age limit to 24 would have a dramatic effect. Those in the 18 to 24 age group are more likely than the younger group to be able to look after themselves when it comes to advice and a limited amount of representation.
Finally, I wish that the noble and learned Lord, Lord Howe, was in his place. Those of us who have been practitioners in the law will remember the happy days ushered in by the Conservative Government of 1980, and the noble and learned Lord’s creation of the green form scheme, which meant that we could advise on all these things automatically, without reference to anybody and with a cap on how much we could charge. I wish we could get back to those happy days. In the mean time, I fear that I may be forced at least to abstain on Amendment 3 unless my noble friend Lord McNally comes up with a wholly unexpected concession —and I hope that he will.
My Lords, bearing in mind the wish of the House, I imagine, to move to a speedy conclusion in this debate, I shall say one sentence in support of my noble friend Lady Howe on Amendment 5 with regard to children leaving care. The noble Lord, Lord Phillips, just spoke of 18 to 24 year-olds and of his doubt that there is a necessity to protect them in law in this way with regard to legal aid. However, I would draw the House’s attention, and his attention in particular, to the experience of young people in care leaving care. A quarter of young people in care leave their foster carer or children’s home at the age of 16. These children have been traumatised—they would not have been taken into care unless that was the case.
Very few of them can stay with their foster carer or in their children’s home beyond the age of 18, so past that age most of these traumatised young people have to fend for themselves. They get some additional support, but they are pretty much on their own. The average age at which most of our children leave home and have to fend for themselves is 24, so I hope that your Lordships will keep in mind the particular vulnerability of young people leaving care. It is recognised in the Children (Leaving Care) Act, which gives them special consideration until the age of 21 and until the age of 24 if they are in education or training. I hope that the Minister will give that a sympathetic ear.
My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Cormack, and I would like to speak very briefly following on from his eloquent speech and those of the noble Baroness, Lady Eaton, and others. First, like others, I am appreciative of the concessions that have already been made, but I think that they do not go far enough on clinical negligence. I recognise that it is a relatively small number of children who are left out by the concessions that have already been made.
As a former chief executive of the NHS, I add my simple tribute to Lord Newton of Braintree. He was chair of one of our great hospitals and, like others, I benefited from his wise and useful advice on many occasions.
Like others in your Lordships’ House who are associated with the NHS, I know very well the distress to all concerned that is involved in these clinical negligence cases. It obviously affects the children and their families, but also the staff and the institutions. What is most important here is to make whatever processes that are available as simple and quick as possible.
The Government’s proposal fails on three key points. First, what impact will these changes have on access to redress for this vulnerable group? I do not think from anything we have heard in this and earlier debates that they will improve access in any way but will undoubtedly damage it. Secondly, will it save the Exchequer and the NHS money? It will save the Exchequer money in the sense of saving money on legal aid, but all the evidence I have seen is that it will cost the NHS more through the processes that are being introduced. Thirdly, will it speed up and simplify the process for all concerned? I stress “all concerned”, including the staff of the NHS. I think the comments by the noble Baroness, Lady Eaton, made it clear that it simply will not. For all those reasons, I urge the Minister to reconsider and to accept this amendment, which will bring into scope a relatively small number of children to the benefit of us all.
My Lords, I speak as a practitioner in clinical negligence. Doctors who work in the NHS might be slightly surprised to find themselves described as “agents of the state”, but I take the point that the noble Lord makes that they should be accountable. Of course, they are accountable, and they can still be sued under the CFA system. The difference between the children in cases that are still outside scope unless this amendment is allowed and the children who will be within scope because of the concession made by the Government is, as I understand it, because of an assessment of the complexity of the cases. The Government have taken the view that because brain-damage cases require an enormous amount of investigation, there is a real risk that no one will take them on a CFA basis, whereas these children cases are, by and large—and I admit that the lines are not always hard and fast—less complex than that. I would respectfully suggest that although these are hard choices, it is a reasonable choice for the Government to have made in the circumstances.
I conclude by saying that I, too, received a great deal of assistance from the late Lord Newton as a new arrival in your Lordships’ House. I know that he would regard these brief observations of mine as—as he would describe it—very loyal, and I fear he would not have regarded that as a compliment.
My Lords, I support Amendments 3 and 5. I also pay tribute to Lord Newton. In the short time I knew him, he always showed integrity, dignity, compassion and a smiling face right till the end. He was a true gentleman. I also thank my noble friend Lord McNally for meeting with me, and for showing compassion and making it clear that children and vulnerable young people will continue to be covered by legal aid—and I believe him.
It therefore makes no sense for the 3 per cent of children and young people covered by these amendments to have to apply for legal aid from a fund that is called “legal aid for exceptional cases”—by definition, there will not be any exceptional cases as all children and young people are covered. Neither does it make sense to be applying for funds through a social worker or a local authority when the person or organisation being challenged may well be the young person’s own social worker or local authority. Even an adult would have difficulty with that process.
Therefore, the House has two options before it today, which are about the system and not the scope of legal aid. Option one is what Amendments 3 and 5 are all about. It would keep the current system where a child or vulnerable young person or their legal guardian can go to an independent lawyer, where they will be means-tested on the spot and their case reviewed. If they qualify, they will be given legal aid to cover them for legal advice and representation where appropriate.
Option two is the new system proposed by the LASPO Bill, in which a child will need to ask their social worker, who is not legally qualified, to make the time to apply for funding from the Ministry of Justice. However, no details have been given as to how long this will take, what legal training will be given to the social worker, how much the new system will cost, what happens if a social worker has not yet been allocated to the child or young person or how they will even find out how to do this.
I believe that the new system being proposed will be bureaucratic, expensive and time-consuming, and could lead to many miscarriages of justice. Even my noble friend the Minister says in his letter that this system will be challenged and end up in expensive cases of judicial review—meaning more money for the highest- paid lawyers, paid for by the taxpayer. This is not common sense.
I ask the Government to think again, to bridge that narrow gap, and include not just the 97 per cent already accounted for in the Bill, as my noble friend Lord Thomas highlighted, but all children, including that last 3 per cent of vulnerable children, who may be living independently from their parents, living in care or escaping difficult family circumstances. As I always say, childhood lasts a lifetime and these early experiences will have a fundamental effect on their lives. For the sake of these children, I ask the House to support Amendments 3 and 5, which would establish an independent process understood by all.
My Lords, in supporting these amendments I give an example concerning Amendment 4. Recently, I had a letter about a tragic case. A baby had a boil on his behind. When his mother took him to have his polio vaccine, she queried the fact that he had a boil with the nurse. The nurse queried it with the doctor who said, “Go ahead and give him the vaccine”. The baby developed polio through the urine in his nappy. Now, years later, the boy is paralysed but the family have had no help and are still trying. Many cases need to be sorted out early to save years of anguish.
From the opposition Front Bench I can be extremely brief, as I should be because this is Third Reading. These are very important amendments which the House will have to decide on shortly. JustRights has done some number-crunching on the issue of children. It points out that, while 95 per cent of funding may be protected, only 74 per cent of children are protected likewise. Therefore, the 6,000 mentioned by the noble Baroness who moved Amendment 3 will be left to navigate the legal system alone. These children will have no adult to help them—no litigation friend, in parlance.
It is absurd to think that in social welfare law cases, a conditional fee agreement is any substitute whatever for basic legal aid for getting legal advice for the kind of problems that affect these children. In effect, we are being asked to abandon some of these children— 16 year-olds perhaps—to a legal system that is far from understandable. They will be mainly children in care who have fractured relationships with their parents. The House knows so well that these are exactly the kind of children who, if they do not get early legal help, may end up in young offender institutions or secure children’s homes at enormous cost to the state, which would be much more than the small amount that the Government claim will be saved by not giving them legal aid. How much wiser would it be to spend that money early? Surely, for children, legal aid is greatly preferable to a CFA right across the board. We support the amendments.
My Lords, in debates like this, I am always a little worried that noble Lords not in the Chamber when the Division Bells ring will come along and say, “What is this about?”. They may be told, “Oh, we are voting on legal aid for children”. Let us be clear, these amendments and this debate are not about whether we provide legal aid for children and vulnerable people; nor is it about not being willing to help those least able to help themselves; and nor is it about denying help to the most vulnerable in our society.
As my noble friend Lord Thomas of Gresford pointed out, the core principle of our reforms is to ensure that civil legal services will continue to be available in the highest priority cases; for example, where a person’s life or liberty is at stake or where children may be taken into care. The application of this principle has led us to protect the vast majority of funding and cases involving children. They include child protection cases, civil cases concerning the abuse of a child, special educational needs cases and cases involving children who are made parties to private family proceedings. Noble Lords will also recall that we have moved to make funding available for clinical negligence cases concerning brain-damaged infants. It is simply not true therefore to suggest that there will be no funding or very substantially reduced funding for the cases involving children and young people.
In addition, as indicated earlier, we have moved the amendment ratchet to “regulator” which will enable us to test whether some of the more dramatic warnings that have been issued about our reforms can be looked at. We are committed to undertake a post-implementation review of the specific policies set out in Bill. We believe that these safeguards are sufficient to ensure that children do not fall through the net. Our approach will mean that 97 per cent of current spend on cases involving child claimants will continue, and that is the overwhelming majority of current support. Spending reductions are never welcome, but I hope these figures put it beyond doubt that we have made a genuine endeavour to ensure that children are protected, even as we push on with the wider objective of our reforms, which is to focus scarce resources on the most serious cases, to contribute to savings and to reform the system.
I do challenge the assumption that the remaining 3 per cent will automatically require specialist legal advice rather than non-legal advice which can avoid involving a child in traumatic court processes. But, of course, the wider safeguards apparent in our reforms apply. First, if legal representation really is appropriate in an individual case, then exceptional funding will be available where required under the ECHR or EU law.
Perhaps I may take up a point made by my noble friends Lady Eaton and Lady Benjamin. They both took exception to the word “exceptional”. The word is merely the label used to describe the test under Clause 10 and is not intended to have any special legal meaning. It simply signifies that these cases fall outside the normal scope of civil legal aid. There is no expectation that children or any other applicants would be required to fill in excluded case application forms. These will be completed by a solicitor, as they are now under the existing scheme, and our intention is that payments may be made towards the costs incurred in making a successful application. We propose that the application process for excluding certificated work will be broadly similar to the existing process for in-scope cases. A number of noble Lords have made the point by saying, “It’s all very difficult and complicated”, but unless you are going to make a blanket payment, you draw lines and make conditions. There is a certain element of bureaucracy, if that is the right word, but I do not believe that this is a new and complicated programme. It can be used easily and, as I have said, the word “exceptional” is used simply to designate those matters which are out of scope.
Secondly, we have been focusing on delivering additional resources for citizens advice bureaux and similar, which provide the general, practical advice that can often prove better than the drawn-out, adversarial experience of legal action. As noble Lords know, the Chancellor announced last week that we will be making a further £20 million—and this time it is £20 million of new money—available for each of the next two financial years. This comes on top of the £100 million voluntary sector transition fund.
Citizens advice bureaux operate in a country that is 10 per cent poorer than the last Government gave the country to understand. It is absurd to pretend that citizens advice bureaux or any other sector—local government and national government —should not face this reality.
In civil cases, it is already a requirement of the rules of civil litigation that a child or other protected party who lacks capacity must have a litigation friend to conduct a case on their behalf. In the case of a child, this is usually a parent unless the court specifically orders otherwise. It will only be in exceptional circumstances that the court will make an order permitting the child or protected party to conduct proceedings on their own behalf. Any step taken before a child or protected party has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child’s parent or other person caring for the child, for example, to act as the child’s litigation friend in proceedings where the child is a party. We believe that this provides a clear safeguard for children and vulnerable young people who lack capacity to conduct proceedings on their own behalf.
We recognise that Amendment 5 also covers the 18 to 24 year-old category. As I said earlier, we have provided for those who are most vulnerable. However, we have also been clear that, in what is a complex area, there must be flexibility. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas of scope which would normally be out of scope, where necessary, to ensure the protection of the individual’s right to legal aid under ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of the proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be a key consideration in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children and vulnerable young people who would otherwise be unable to present their case.
Amendment 3, in particular, seeks to bring all cases back into the scope of legal aid where a child is a party, but the Bill already provides for child parties to be within scope of legal aid in family proceedings. The amendment is therefore in part unnecessary and seeks to replicate what is already in scope. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to the relative priority or alternative methods of resolving them. The majority of children will already fall within the scope of legal aid as provided for by the Bill. However, there are additional safeguards to provide further protection through exceptional funding powers and, should it prove necessary, the power to add to civil legal services.
The Minister has not yet answered the question which I think the noble Lord, Lord Thomas, raised—and had I had the chance, I would have raised the same question—on Amendment 3, in relation to proposed new paragraph 1(1)(k), which specifies:
“civil legal services relating to an appeal to the Supreme Court”.
I have not seen that provision in the Bill as drafted, but it is quite important. What will happen to it? I agree with the Minister about the other provisions, but I do not think that he has answered the question on that one.
It is always a pleasure to see the most reverend Primate the Archbishop of York in his place. I shall give him a definitive answer as I sum up and come to my peroration, as there are a number of other matters that I wish to cover.
Amendment 4 seeks to bring into scope children for all clinical negligence cases. I have already set out my arguments on how we have protected children in the Bill. On clinical negligence, in particular, we recognised the concerns that serious and complex cases involving brain-damaged babies may not be able to secure a conditional fee agreement, and we therefore brought forward an amendment on Report that will provide certainty for families and make the application process straightforward.
The amendments we have made will allow funding for cases where the negligence occurs in a period of time beginning with the point of the mother’s pregnancy until eight weeks after birth. This does not mean that the symptoms have to become apparent during this period. They could become apparent beyond this period and still be in scope providing that the relevant negligent act or omission took place during that period. We also moved to include an additional safeguard in respect of babies who are born prematurely. We recognised that these children are particularly vulnerable in the post-natal period and have therefore provided that where a baby is born before the 37th week of pregnancy, the period of eight weeks will not run from birth but will be taken to start from the first day of what would have been the 37th week of pregnancy. I hope noble Lords will recognise that the Government have listened and acted to introduce back into scope the most serious clinical negligence cases involving children.
Amendment 5 seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 years old or under and has a disability, is a former care leaver or is a vulnerable person as specified by regulations. We have provided for those who are most vulnerable, as I have said, under Amendment 3, which covers those under the age of 18. However, we have also been clear that there must be flexibility in this complex area. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas that would normally be out of scope, where necessary, to ensure the protection of an individual’s rights to legal aid under the ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be key considerations in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children or vulnerable young people who would otherwise be unable to present their case.
I am told that we have lost the vote about retaining legal aid for appeals to the Supreme Court.
The most reverend Primate the Archbishop of York may be disappointed to know that he may have been absent to defeat us on that point at an earlier stage. As the noble Lord, Lord Bach, has indicated, the Government will look at these matters between now and consideration in the other place.
The only outstanding point that I wanted to cover was that made by the noble Lords, Lord Thomas and Lord Avebury, about the balance between CFAs and legal aid in injury cases. Although I am not a lawyer, I would say that, on balance, CFAs are the most effective way of taking these cases. It is worth remembering that 82 per cent of cases are already covered by CFAs. People are not left abandoned on a lonely sea—the process works.
It is always difficult to draw lines and easy to say that the lines have been drawn in the wrong place. As I said in opening, the amount of coverage for young people in this area is completely different from what was suggested in some speeches today. We believe that between the coverage of scope that we put into this Bill, the workings of exceptional funding and the availability of wider advice, there will not be the kind of consequences that have been suggested. I also make it clear that we do not think that Amendments 3, 4 and 5 are consequential, so if noble Lords do press them, we would want to test the opinion of the House on each. However, I hope that the noble Baroness will agree to withdraw her amendment.
My Lords, I thank the Minister for his comments and consideration. The House appreciates that he has perhaps been given little or no room for manoeuvre. I would also like to thank all Members who have tried to ensure that children’s interests are safeguarded in this Bill. Most of all, I thank Members on the government Benches who have understood the problems with this legislation right from the start and have been prepared to raise them. We all understand that this is a very difficult thing to do. However, because of the very nature of the legislation and its impact on those unable in law to represent themselves, we need to ask the other place to take another look. Therefore, I wish to test the opinion of the House.
4: Schedule 1, page 140, line 5, at end insert—
“Children and clinical negligence(1) Civil legal services provided in relation to clinical negligence in the course of the provision of clinical services which took place at a time when the individual was a child.
(2) In this paragraph—
“clinical negligence” means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);
“clinical negligence proceedings” means proceedings which include a claim for damages in respect of clinical negligence;
“child” means a person under the age of 18.”
My Lords, the House has just approved an amendment which I felt included my own. I am reluctant to ask the House to vote again but, since my noble friend said that Amendment 4 is not consequential, I have something of a dilemma. It is my view that what the House has decided embraces what my amendment contains. However, since my noble friend is shaking his head vigorously, I must, with great reluctance, therefore test the opinion of the House.
5: Schedule 1, page 140, line 32, at end insert—
“Vulnerable young people(1) Civil legal services provided in relation to advice and proceedings under this paragraph where the applicant or respondent is aged twenty four or under, and—
(a) has a disability under section 6 of the Equality Act 2010;(b) is a former relevant child (care leaver) by reference to the Children (Leaving Care) Act 2000;(c) is a vulnerable person as specified by regulations; or(d) otherwise falls within the categories of vulnerable young people which the Secretary of State may prescribe in regulations.(2) Civil legal services provided in relation to advice and proceedings relating to any benefit, allowance, payment, credit or pension under—
(a) the Social Security Contributions and Benefits Act 1992;(b) the Jobseekers Act 1995;(c) the State Pension Credit Act 2002;(d) the Tax Credits act 2002;(e) the Welfare Reform Act 2007;(f) the Welfare Reform Act 2012; or(g) any other enactment relating to social security.(3) Civil legal services provided in relation to advice and proceedings relating to all areas of employment law not otherwise covered in this Schedule.
(4) Civil legal services provided in relation to advice and proceedings relating to all areas of housing law not otherwise covered in this Schedule.
(5) Civil legal services provided in relation to advice and proceedings relating to all areas of law related to personal debt not otherwise covered in this Schedule.
(6) Civil legal services provided in relation to advice and proceedings relating to all areas of immigration and asylum law not otherwise covered in this Schedule.
(7) Civil legal services provided in relation to advice and proceedings relating to all areas of clinical negligence law not otherwise covered in this Schedule.
(8) Civil legal services provided in relation to advice and proceedings relating to all areas of consumer law not otherwise covered in this Schedule.
(9) Civil legal services provided in relation to advice and proceedings relating to appeals to the Criminal Injuries Compensation Authority.
(10) Civil legal services provided in relation to advice and proceedings relating a review or appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007.
(11) Civil legal services provided in relation to advice and proceedings relating to an appeal to the Supreme Court.”
My Lords, I, too, wish to test the opinion of the House. We are talking about a small group who, as my noble friend Lord Listowel put it so well, are highly likely to come from very deprived, disrupted backgrounds and are clearly in need of help. Over and above the success of the previous amendment—I am delighted with the result—I want to test the opinion of the House, and I hope that noble Lords will support my small amendment.
Amendments 6 to 8
6: Schedule 1, page 141, leave out lines 31 to 33
7: Schedule 1, page 141, line 36, leave out “, or prescribed under,”
8: Schedule 1, page 144, leave out lines 37 and 38
Amendments 6 to 8 agreed.
9: Schedule 1, page 145, line 26, at end insert “or to secure the return of a related child who has been unlawfully removed from the United Kingdom”
My Lords, this is an important government amendment on an issue that has been the subject of considerable debate in your Lordships’ House and, indeed, in the other place, on legal aid for cases of domestic child abduction. We have always been clear that legal aid should be available to both prevent and remedy international child abduction and, as indicated on Report, we have been listening sympathetically to the powerful arguments about legal aid for domestic child abduction. We agree that the unusual nature of these cases, including the terrible impact on those involved, means that legal aid is justified to find a child who has been unlawfully removed within the United Kingdom.
We think that our amendment, which has been worked up in the light of discussion with the noble and learned Baroness, Lady Butler-Sloss, achieves this. One point that the noble and learned Baroness has asked the Government to put on the record, which I am happy to do, concerns what we mean by unlawful removal. Unlawful in this sense has a civil rather than a criminal meaning, so if a parent with contact tried to take a child permanently from the parent with residence, that would be unlawful.
I should add for the sake of completeness that our amendments also add recovery orders under Section 34 of the Family Law Act 1986 to a list of remedies for which civil legal aid is available in international child abduction cases as well. We can see the potential relevance of such an order where a child has been removed from the parent with residence but not yet from the United Kingdom, so the final international removal might still be prevented. Another small technical amendment relates to what are described as Section 27 applications. Legal aid will be made available for the narrow associated issue of registering an order made in one part of the United Kingdom in another part of the United Kingdom if it has a different legal jurisdiction. I beg to move.
My Lords, I should like to congratulate the Government and also to express my very deep gratitude to the Ministers in this House and in the other House for achieving a very sensible solution. I am also particularly grateful to the government lawyers who have done an enormous amount of work both for me and for those behind me, and who took the trouble to deal directly with the former chairman of the Family Law Bar Association and the chairman of the ILPA in relation to a later amendment. I really am very grateful.
However, I have a wish list—I might refer to it when the first government amendment that was accepted today enables a little more money to be provided—for two groups of left-behind parents. They are generally fathers, but sometimes they are mothers. The first situation concerns preventing a threatened abduction in a family where both parents are still living together because neither parent has yet applied for a court order. The left-behind parent may be warned by another member of the family that the mother, generally, will take off with the child and that the father will never see the child again. That would require a prohibited steps order. I understand the thinking of the Government on why they will not deal with the matter now. However, I would like them to put it on the waiting list because it needs to be done at some stage.
The second is where the mother—it is generally the mother, but sometimes the father—removes a child in a situation where there is not yet a residence or other order. That internal parental abduction case is not covered, either. I would like to put both those matters on the wish list and I hope that one of these days the Government will be sympathetic to them. However, the work that has been done, and the recognition by the Government that this should be dealt with, is splendid news, and we are all extremely grateful.
My Lords, it is only a few weeks since the noble Lord, Lord McNally, described Lord Newton as a national treasure except when he voted against the Government. I intervened somewhat mischievously to say that that was what made him a national treasure. In fact, of course, he was a national treasure for a long time before that. I have good memories of working with him when he was a very approachable Minister and I was the leader of my local authority. I also had the pleasure of serving under him as a member of the Local Services Honours Committee, which he chaired with great care, always exhibiting great thoughtfulness and fairness. He was a man of great conviction and great courage, as he demonstrated fully in your Lordships' House for so many months. We will all miss him, as other noble Lords rightly said.
I turn to the amendments in this group and join the noble and learned Baroness, Lady Butler-Sloss, in acknowledging that the Government have made significant improvements to the Bill and in congratulating the noble and learned Lord on doing that. I also congratulate the noble and learned Baroness on initiating these very welcome changes. I endorse what she said about further developments. Now, of course, the Government have the capacity to bring them about without primary legislation. The Opposition look forward to that in due course and certainly support the amendments in this group.
My Lords, I start by associating myself with the comments made by the noble Lord, Lord Beecham, about Lord Newton. I first encountered him in 1983 when I was a newly elected Member of Parliament and he was the Social Security Minister. I had a particular constituency issue and he could not have been more helpful or understanding. That was my experience of him as a Minister throughout my time in the other place.
The noble and learned Baroness, Lady Butler-Sloss, outlined her wish list. I think that she understands why the Government are unable to accept at the moment that legal aid should be available for these prevention matters. We find it difficult to see how the orders covered would be used in practice for prevention of removals in situations of urgency for which a case for funding is made, rather than for securing return after removal. If a child was in the process of being abducted and the situation was an emergency, legal aid would be available for the purpose of securing their return. It is more difficult to see why legal aid should be available to fund applications that are more contingent in nature, where there is no imminent danger of abduction or associated emergency but the measure is being sought on a precautionary basis. Very often those cases will be the stuff of general private family law proceedings, and we see the risk of such orders being sought for the benefit of funding in what are general disputes over where a child is to live and with whom—which, as we made clear in other areas, we will not fund.
Having said that, I welcome the co-operation that there has been, and very much appreciate the comments made by the noble and learned Baroness about the officials who worked on this and productively engaged with her and with those who advised her. I hope that what we brought forward meets the concerns raised. I have no doubt that we will be reminded of the wish list when we have had a bit more experience of the Act in operation. Again, I thank all those, both inside and outside the House, who worked toward a constructive solution on this matter.
Amendment 9 agreed.
Amendments 10 to 14
10: Schedule 1, page 145, line 30, at end insert—
“( ) an order under section 34 of that Act for the child’s return;”
11: Schedule 1, page 145, line 32, at end insert—
“(1A) Civil legal services provided to an individual in relation to the following orders and applications where the individual is seeking to secure the return of a related child who has been unlawfully removed to a place in the United Kingdom—
(a) a prohibited steps order or specific issue order (as defined in section 8(1) of the Children Act 1989);(b) an application under section 27 of the Family Law Act 1986 for registration of an order relating to the child;(c) an order under section 33 of that Act for disclosure of the child’s whereabouts;(d) an order under section 34 of that Act for the child’s return.”
12: Schedule 1, page 145, line 34, leave out “Sub-paragraph (1) is” and insert “Sub-paragraphs (1) and (1A) are”
13: Schedule 1, page 149, leave out lines 1 and 2
14: Schedule 1, page 154, line 16, leave out from “Schedule” to “is” in line 18
Amendments 10 to 14 agreed.
15: Schedule 1, page 160, line 2, at end insert—
“Victims of trafficking in human beings33A (1) Civil legal services provided to an individual in relation to an application by the individual for leave to enter, or to remain in, the United Kingdom where—
(a) there has been a conclusive determination that the individual is a victim of trafficking in human beings, or(b) there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim.(2) Civil legal services provided in relation to a claim under employment law arising in connection with the exploitation of an individual who is a victim of trafficking in human beings, but only where—
(a) the services are provided to the individual, or(b) the individual has died and the services are provided to the individual’s personal representative.(3) Civil legal services provided in relation to a claim for damages arising in connection with the trafficking or exploitation of an individual who is a victim of trafficking in human beings, but only where—
(a) the services are provided to the individual, or(b) the individual has died and the services are provided to the individual’s personal representative.Exclusions(4) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.
(5) Sub-paragraphs (2) and (3) are subject to—
(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs 1, 2, 3, 4, 5, 6 and 8 of that Part, and(b) the exclusion in Part 3 of this Schedule.Definitions(6) For the purposes of sub-paragraph (1)(b) there are reasonable grounds to believe that an individual is a victim of trafficking in human beings if a competent authority has determined for the purposes of Article 10 of the Trafficking Convention (identification of victims) that there are such grounds.
(7) For the purposes of sub-paragraph (1) there is a conclusive determination that an individual is or is not a victim of trafficking in human beings when, on completion of the identification process required by Article 10 of the Trafficking Convention, a competent authority concludes that the individual is or is not such a victim.
(8) In this paragraph—
“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Trafficking Convention;
“employment” means employment under a contract of employment or a contract personally to do work and references to “employers” and “employees” are to be interpreted accordingly;
“employment law” means an enactment or rule of law relating to employment, including in particular an enactment or rule of law conferring powers or imposing duties on employers, conferring rights on employees or otherwise regulating the relations between employers and employees;
“exploitation” means a form of exploitation described in section 4(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (trafficking people for exploitation);
“personal representative”, in relation to an individual who has died, means—
(a) a person responsible for administering the individual’s estate under the law of England and Wales, Scotland or Northern Ireland, or(b) a person who, under the law of another country or territory, has functions equivalent to those of administering the individual’s estate;“the Trafficking Convention” means the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16 May 2005);
“trafficking in human beings” has the same meaning as in the Trafficking Convention.”
My Lords, Amendments 15 and 17 bring into the scope of legal aid cases in which the victims of human trafficking seek damages in either the civil courts or an employment tribunal. They would also provide legal aid to this group for immigration advice. The Government have always anticipated that legal aid would be available under the exceptional funding scheme for these damages claims, where such cases met the test for exceptional funding under what is now Clause 10 but which we came to know as Clause 9 during the earlier passage of the Bill. However, we listened to the concerns raised by noble Lords about whether in practice this would always be appropriate. I am pleased to say that we have responded positively to the concerns, and not least to the case made at Second Reading, in Committee and on Report by the noble and learned Baroness, Lady Butler-Sloss.
The House should be aware that paragraph 40 of Part 1 of Schedule 1 already provides for legal aid to be granted to victims of sexual offences to bring damages claims in relation to the offences. People who have been trafficked for the purposes of sexual exploitation and who wish to claim damages through the civil courts will already be able to get legal aid.
As I indicated on Report, we also considered whether legal aid should be available for the immigration aspects of trafficking. We listened to and accepted the arguments on this, given the particular vulnerabilities of this group of people. We plan to set out in regulations further provision on when it is appropriate for a victim of human trafficking to qualify for civil legal aid for immigration matters. Our intention is not to restrict numbers, and we will ensure that all victims for whom it is appropriate to provide advice will receive it. However, we cannot have a completely open-ended commitment for all immigration matters; otherwise, it is conceivable that victims of trafficking who, for example, apply for a student visa 15 years down the line will continue to qualify for legal aid for no good reason. The regulations will limit eligibility to a period relevant to the experience of being trafficked. We are discussing the most appropriate period of time, but we intend that it will be no less than an individual’s discretionary leave to remain, which can be up to three years.
I am pleased that we have been able to have a constructive engagement and hope that these amendments address the concerns that have been raised. This amendment includes legal aid for immigration advice for victims of trafficking. I beg to move.
As the co-chairman of the All-Party Group on the Trafficking of Women and Children, I again congratulate the Government and express my gratitude not only to Ministers in this House and in another place but to the government lawyers and officials. The people who were so helpful on the previous set of amendments have been equally helpful on this, and I and those behind me are enormously obliged to them for the care with which they have gone through this and their ability to recognise, listen to, take on board and accept the points that have been made which are now reflected in this excellent amendment.
I wonder whether I might again produce a wish list for consideration at some later stage. There are four points that I would like to make. First, there are those who have been trafficked who do not know that they have been trafficked and will need advice about whether they have been trafficked. Secondly, there are implications for referral to the national referral mechanism. That point was discussed with the government lawyers. I understand why Ministers do not want to help those who do not refer themselves, but there will be a group or groups of people who will fall through the net. Thirdly, there are those who do not know whether they may have an entitlement to leave to remain other than by an asylum claim, such as discretionary leave to remain. That group will also not be covered. The fourth group is rather different. It is those who would wish to challenge a decision by the Home Office that they do not come within the NRM. Those are perhaps matters for another day. At the moment, those behind me and I are enormously grateful for what we have already got.
My Lords, I, too, welcome these amendments and add my thanks to the officials who have dealt with them. My file of print-outs of e-mails last week is quite large. I thank the Minister as well. I know that his experience in Scotland means that he was already alert to the issues surrounding trafficking. I think the whole House owes the noble and learned Baroness enormous thanks for keeping us at it and for keeping at it herself.
The Minister mentioned conditions, and I understand the concern about possible overuse—abuse would be the wrong term here—of the category of victim of trafficking for immigration applications far in the future. During the discussions last week about what has ended up as these two amendments, there was a suggestion that there might be a reference to prescribed conditions and then a decision that what is now Clause 11 could cover matters, as the Minister said. Will he tell the House whether there are any other concerns that the Ministry has in mind at the moment—it may find others—apart from the time limits?
The noble and learned Baroness mentioned concerns about the workings of the national referral mechanism and time limits. Like her, I hope that that will be kept under review. I have two other areas of concern around this. If legal aid is not available until there has been a reasonable-grounds decision, will the Border Agency put the immigration case on hold? In the mean time, what happens if the individual is in detention or is without housing and food? At the previous stage of the Bill, I referred to the complex needs of trafficked people and mentioned housing and benefits. Immigration is often the gateway to them. Article 12 of the convention refers specifically to accommodation and generally to subsistence, and I suspect the Government would prefer to be clear about this rather than find themselves with claims under what is now Clause 10. The importance of identifying victims of trafficking is a moral matter, but it is also important because of their role in detecting and prosecuting traffickers, and it may take some time for a victim to be identified or to self-identify, so I am adding to the list of considerations. The Government have said that they will keep matters under review and they now have a mechanism to do so. Therefore, I welcome the amendment, although there may still be work to be done.
My Lords, I am pleased that the Government have brought forward these amendments that give the victims of human trafficking the same support as that provided for the victims of sexual exploitation, as set out in Schedule 1. There is support around the House today for these government amendments and we, too, support them. They will make sure that the victims of human trafficking will be treated fairly and given the support that they need. The Minister has listened to your Lordships’ House and responded to the arguments which were so well rehearsed by the noble and learned Baroness, Lady Butler-Sloss, on Second Reading, in Committee and at Report in trying to convince the Minister of the need for these amendments. I am sure that the Minister will listen to the wish list as well as he has to the other arguments put before him. He promised that he would address these matters and we are all grateful that he has tabled these amendments. We fully support them.
I am grateful for the general welcome that has been given to the amendments, and indeed for the work that has gone in behind the scenes to get us to where we are today. The noble and learned Baroness, Lady Butler-Sloss, has indicated that she will continue, and that she has a further wish list. The fourth point in her wish list was to find out how to challenge a decision of the national referral mechanism. I am advised that that would be done by way of judicial review, which is within the scope of legal aid.
My noble friend Lady Hamwee raised more detailed questions about the operation of the provision. I will look at those matters and try to write to her with an answer. She also asked whether there are any plans to limit immigration legal aid in this context, apart from the time limits under regulations. The answer is that there are currently no plans to do so. In referring to the progress of these amendments and this issue through your Lordships' House, my noble friend also remarked that the noble and learned Baroness, Lady Butler-Sloss, has kept at it. I have no doubt that, even after this legislation becomes law, those who take a keen interest in the serious—appalling—issue of the abuse of individuals will keep a watchful eye on the issue and keep at it, and I am sure that the Government will certainly be made aware of any concerns that arise. On that basis, I hope that the House will agree to the amendment.
Amendment 15 agreed.
16: Schedule 1, page 160, line 6, at end insert—
“( ) Civil legal services provided for the purposes of sub-paragraph (1) include legal advice and assistance in respect of that individual’s financial circumstances, including any eligibility for housing benefits, where those circumstances have led or directly contributed to the relevant court order for sale or possession, or eviction.”
My Lords, Amendment 16 consolidates earlier amendments that I have brought before your Lordships to keep within the scope of legal aid the legal advice and representation that can prevent homelessness. I am now trying one last time to convince the Government that it would be a costly mistake to remove key components of this work from the scope of legal aid. These are the components of the current legal assistance, including negotiation on welfare benefit matters, that prevent homelessness by addressing the cause of the arrears which otherwise lead to a household losing their home.
This kind of work currently accounts for 20 per cent to 25 per cent of the funding for cases where the home is at risk. Removing the opportunity for legal aid to embrace these matters is likely to make the remaining 75 per cent to 80 per cent of expenditure far less effective. Without this amendment it will not be possible to continue to support a client by handling negotiations with housing benefit officers at the local authority or those at the Department for Work and Pensions dealing with support for mortgage interest. If such representation can happen only in the context of the courtroom, the invaluable work in sorting out the complexities of the benefit system prior to the matter reaching the courts cannot continue.
Even more frustratingly, where a case is adjourned for four weeks—as it often is—it will not be possible to use the time to straighten out the issues by expert negotiation with the relevant officials on behalf of the household concerned. When the matter returns to the court four weeks later, none of the work that currently goes on will have been accomplished. The only way to get the benefit officials into a dialogue at that stage would be to issue witness summonses to bring those officers to the court, taking them away from their other work, probably for the day. This is a very inefficient way of proceeding, wasting the time of officers and achieving a much less satisfactory dialogue. The chances of saving a family from the horrors of homelessness are much reduced, all because the change in legal aid funding stops the matter being resolved during the adjournment.
I promised the Minister that I would study his comments on Report with care. I have noted that,
“legal aid would be available on reaching agreement with a landlord to delay threatened possession action pending the resolution of a welfare benefits issue”,
but not to take the action that resolves that welfare benefits issue. The Minister made clear that,
“legal aid could be used to argue for an adjournment”,
so that the individual could,
“make the necessary payments if the benefits dispute is resolved in their favour”—[Official Report, 12/2/12; col. 103]—
and they now have the money due to them. Again, it is clear that help in actually reaching that position and resolving the benefits dispute will not be available.
The Minister explained that “general advice” will be available from various sources but he underlined the point that legal aid will not be available to negotiate on welfare benefit issues on behalf of a client. I cannot believe that this is a sensible approach, not least at this time of huge changes to the housing benefit system, which will inevitably mean mistakes by the administrators that will require technical experts to unearth and sort out. The value of this legal aid work will become of even greater importance in the future with the transition of benefit support for housing costs to the Department for Work and Pensions from local authorities, and a whole new system of universal credit, which undoubtedly will take some time to bed down.
I was grateful for the Minister’s clarifications but I fear they confirm the essence of the problem with this part of the Bill. Restricting the scope of legal aid to exclude assistance with these matters will clog up the courts with more and longer cases, and more adjournments, that could and should have been handled outside the courtroom. There will be costs to the state from an inevitable increase in the numbers who become homeless for lack of the legal assistance that could have sorted out the problem. Worst of all, there will be the injustice of people losing their homes unfairly or unnecessarily.
I hope that this amendment, which compresses and consolidates our earlier discussions on this matter, will prove acceptable even at this late stage. I dedicate it to a man who became a mentor and hero for me, Lord Newton of Braintree. I beg to move.
My Lords, I support the noble Lord, Lord Best, in his Amendment 16. Like him, I am a refugee from the Welfare Reform Act and, like him, I am deeply concerned that the new system of universal credit, which I strongly support, is coming together with huge cuts in housing benefit. This will produce uncertainty and complexity at the same time as withdrawing legal aid—unless the Commons supports the amendment previously passed by your Lordships’ House and unless the House supports the noble Lord, Lord Best, today.
To introduce a new system, with the implications for the tenants of my housing association of losing up to £1 million a year, means that some will face homelessness, eviction and bed and breakfast accommodation, or alternatively will flood the tribunals and the courts system. To withdraw legal aid at the time of introducing these cuts and changes to housing benefit, as well as universal credit, creates a perfect storm that no Government should wish to whirl up. I hope very much that the noble Lord, Lord McNally, will respond positively to the amendment moved by the noble Lord, Lord Best.
My Lords, I support my noble friend Lady Hollis and, of course, the noble Lord, Lord Best, in moving this amendment. They have made a very powerful case, which was rehearsed on Report. At that time, I quoted Shelter and the Nottingham Law Centre, two separate organisations from the not-for-profit sector, which strongly urged the Government to change their position on this. They are the organisations that provide legal help and advice, not necessarily extending to court proceedings, on the benefits side as well as the remainder of the housing issue—some of which, in fairness, the Government are including within scope.
This is a classic case, as my noble friend has implied, where there is a potential modest saving to the Ministry of Justice budget but a potential extra cost to other departments. If homelessness ensues, particularly where children are involved, very substantial costs are imposed on the budgets of the local authority, and maybe also on the Department for Work and Pensions, which in certain circumstances may be devolved; for example, special needs payments or crisis loans, which a family on the streets may clearly require.
In this context, cost is a consideration which, if anything, tells against the Government’s proposals rather than the other way round. I hope that the Government will recognise the strength of arguments from those dealing with this directly—not from the legal profession in this case, but from the advice sector—and provide for the possibility of timely advice being given to avoid worse consequences for the individuals and their families and, for that matter, the public purse. I hope that the Minister will reconsider the position the Government have hitherto adopted.
My Lords, the noble Lords, Lord Beecham and Lord Best, acknowledge that this is one more time on which we have discussed these matters. We had detailed discussions in Committee and on Report. Amendment 16 is intended to bring into the scope of legal aid advice and assistance in relation to an individual’s financial situation, such as debt and housing-related welfare benefits issues, where they are linked to the loss or threatened loss of the individual’s home under paragraph 34 of Part 1 of Schedule 1. The House will be well aware that our proposals ensure that legal aid continues to be available to an individual in relation to the immediate risk of losing their home, through possession or eviction. This includes cases where the underlying cause is a debt or welfare benefits issue.
It may reassure noble Lords if I reiterate a few brief examples of where legal aid will be available under the loss-of-home provisions in paragraph 34 of Part 1 of Schedule 1. First, legal aid will continue to be available before a case is brought to court. It will be available where possession or eviction action is contemplated. Where an individual receives a letter which threatens possession action, legal aid will be available at that point. For example, legal aid will remain available to a person threatened with possession action for mortgage arrears to negotiate with their mortgage lender.
In the context of welfare benefits, it is important to recognise that, where a landlord threatens their tenant with possession proceedings, legal aid would be available to the tenant to reach agreement with a landlord to delay the possession action pending the resolution of the welfare benefits issue. If possession proceedings are issued, legal aid will be available to an individual to argue for an adjournment—for example, if they are likely to be able to make the necessary payments if an underlying benefits dispute is resolved in their favour. Where an individual loses a welfare benefits appeal and subsequently faces possession action for rent or mortgage arrears, legal aid will be available in relation to that action. We will also retain legal aid provision for judicial reviews about welfare benefits decisions and for welfare benefits matters which relate to a contravention of the Equality Act 2010.
This amendment would go much wider and would generally provide for legally aided advice and assistance on the financial circumstances of an individual—such as for underlying debt or welfare benefits issues—where these are linked to loss of home. This would run contrary to our approach. At a time when the country is recovering from a genuine fiscal crisis we need to focus limited resources on the highest-priority matters. As I have said before, we cannot agree that legally aided advice and assistance should be generally available in relation to a person’s financial circumstances—such as for debt or welfare benefits issues—in the situations covered by the amendment.
There is no doubt that people, including those in potential loss-of-home situations, find advice useful in areas such as debt and welfare benefits. But we are firmly of the view that what those affected often need is practical advice rather than legal advice funded by legal aid. Individuals who have debt problems often need advice on managing their finances better and on practical measures to resolve their situation, and can access that advice through a range of specialist organisations. It will come as no surprise to the House to hear me repeat that the Government greatly value the not-for-profit sector and the good-quality free advice which it provides to people in their communities on these sorts of matters.
My department is working closely with the DWP to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and the system of subsequent tribunal appeals. This work should make it easier for claimants to receive the right benefit provision. Moreover, welfare benefits appeals matters are resolved through a tribunal which is designed to be accessible without legal assistance, and general advice on welfare benefits is available from a number of sources.
I know that this issue has been raised at every stage. After these debates, we do not just close the book and not take any notice. We go back to the department and the Ministers and advisers have a discussion. There is also a discussion about the issues raised with other departments. This is not a decision taken lightly but we believe that the loss-of-home proposals in the Bill get the balance right in terms of focusing limited public funds for legal advice and assistance in the most appropriate circumstances. We have listened to the appeals made by the noble Lord and considered them. At this point, we cannot agree with them. I ask him to withdraw his amendment.
I am grateful to noble Lords who have spoken. I am also grateful to my noble and right reverend friend Lord Harries of Pentregarth, who put his name to this amendment but has had to leave us. I thank the noble Baroness, Lady Hollis, for talking of the perfect storm at a time of housing benefit change when advice will be incredibly important to people. Things will change dramatically on the benefit front and mistakes will be made by the officials concerned. Experts will be needed for support and assistance. I am grateful to the noble Lord, Lord Beecham, who reminded us that Shelter, Citizens Advice and such bodies are behind this amendment rather than the lawyers. He also mentioned the extra costs that homelessness always brings.
This is a cost-saving amendment. The noble Lord is right that much remains within scope. Some 75 per cent to 80 per cent of the work currently being done remains within scope, which is great, but a lot of that is wasted if the remaining 20 per cent to 25 per cent is cut out. Where possession is threatened is the bit where the argument can be taken up with the administrators, the housing benefits officers. With their negotiating skills and expertise, they can fix it and sort it. Cutting that out renders a lot of the rest of the expenditure much less worth while.
Before the hour gets any later and without further ado, I wish to test the opinion of the House.
Amendments 17 and 18
17: Schedule 1, page 169, line 15, leave out “or 31” and insert “, 31 or 33A(1)”
18: Schedule 1, page 170, leave out lines 5 to 11
Amendments 17 and 18 agreed.
Clause 10 : Exceptional cases
19: Clause 10, page 7, line 5, at end insert “, or
(c) that—(i) it is necessary to make the services available to the individual under this Part to prevent specific injustice in a particular case; and(ii) it is appropriate to do so, in order to prevent such injustice, from the funds (if any) which the Lord Chancellor in his discretion makes available to the Director for the purposes of this paragraph.”
My Lords, this amendment is in my name and in the names of the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, and the noble Lord, Lord Hart of Chilton. Its purpose is simple—to implement more effectively the Government’s proposal to include an exceptional cases category for legal aid as set out in Clause 10. The problem which this amendment seeks to address is that Clause 10 is too narrowly drafted and will prevent the very flexibility that it is designed to provide. That is because the exceptional cases category set out in the clause applies only if the refusal of legal aid would amount to a breach of rights under the European Convention on Human Rights or would create a risk of doing so.
The difficulty, as the noble Lord, Lord Thomas of Gresford, stated when moving his amendment at the Report stage, is that it is inevitable that:
“All of a sudden a case will obviously require, in the interests of justice, to be supported by legal aid because of the wider interest that is involved”.—[Official Report, 12/3/12; col. 119.]
The case may concern a difficult and important question of statutory interpretation in the Court of Appeal or in the Supreme Court in a type of case generally excluded from the scope of legal aid. This amendment would confer a power on the director of legal aid to fund litigation if both of two conditions are satisfied. The first condition is that the director considers that funding the litigation is necessary—a strong term—to avoid injustice. I have adopted in the amendment the suggestion made in Committee by the noble and learned Lord, Lord Mackay of Clashfern, that the discretion should be defined not as a power to promote justice, but as a power to avoid specific injustice, a much narrower concept. The noble and learned Lord has asked me to express to the House his apologies for not being able to be here today.
The second condition which would need to be satisfied before the power could be exercised by the director is that the director considers that the case is an appropriate one for use of the funds, if any, made available for this purpose by the Lord Chancellor. That wording is designed to ensure that funding remains entirely within the discretion of the Lord Chancellor. The amendment, I emphasise, does not require additional funds to be found. The amendment leaves it to the Lord Chancellor to decide what funds, if any, to provide for this purpose.
If then the Lord Chancellor is not required to provide funds for this exceptional category of cases, your Lordships will wish to know what is the purpose of the amendment. The answer is that even if the Lord Chancellor were to say that no money is currently available for this exceptional category of cases—I hope that that would not be the case—it is vital to include a discretion in the Bill so that a statutory power exists to fund exceptional cases which can be exercised with the agreement of the Lord Chancellor when the economy improves.
Noble Lords should not approve a Bill confining legal aid in the manner proposed by the Government without including in it a provision which at least allows the Lord Chancellor, in his discretion, to provide some funding for the exceptional cases about which I am concerned. Parliament may not have a chance to address legal aid issues again for some time. I very much hope that even at this late stage the Minister will be able to accept the amendment, which confers power on the Lord Chancellor to allow funding for exceptional cases but imposes no duty on him to do so. I beg to move.
I support the amendment, which is also in my name. Interested bodies such as Citizens Advice, Justice for All and the Law Society have all pointed out that the Government’s exceptional funding safety net does not stretch wide enough for the reasons so clearly given by the noble Lord, Lord Pannick. I emphasise that the amendment of itself imposes no extra financial burden on the Lord Chancellor; it simply provides an opportunity for a discretion to be exercised if it is necessary—I emphasise the word “necessary”—to prevent a specific injustice occurring. If it was decided to use this power, the costs would be provided from discretionary funds made available to the director by the Lord Chancellor.
The amendment should be seen as a simple, practical and positive act of assistance to the Government, who, if they accept it, will have the flexibility to act in the circumstances provided for. Legislative opportunities for any Government are few and far between. In my view, this opportunity should be seized and the helpful amendment accepted.
My Lords, in the courts, many cases have three judges involved in determining what should be the outcome. If one judge gives a judgment on the provision which the other two judges think is totally convincing and where they have nothing useful to add, they just say, “I agree”. I agree with the speeches that have been made in support of the amendment.
My Lords, the House had the opportunity to debate issues similar to those raised in the amendment during detailed discussions in Committee and on Report. As the noble Lord, Lord Pannick, indicated, my noble and learned friend Lord Mackay of Clashfern came up with the phrase “in the interests of justice to prevent injustice”, which I said at the time had a certain seductive charm and that I would think about it. The noble Lord, Lord Pannick, moved the amendment and argued his case with seductive charm, as did the noble Lord, Lord Hart. The noble and learned Lord, Lord Woolf, was very much to the point, as was, very briefly, the noble Lord, Lord Bach.
I can assure the House that we have thought about these points. The Government believe it is right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice, and Clause 10 achieves this important end. It will be necessary to provide services to an individual under Clause 10(3)(a), where a failure to provide some measure of legal aid would, for example, clearly amount to a breach of Article 6 of the European Convention on Human Rights, which guarantees an individual’s right to a fair trial and access to the courts.
As has been said on a number of occasions when we have debated exceptional funding determinations under what was Clause 9 but is now Clause 10(3), they 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.
In considering whether legal aid should be provided in an individual case engaging Article 6, the director will need to take into account, for example, 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 individuals to represent themselves effectively; and the alternative means of securing access to justice.
It is not lost on me that the noble and noble and learned Lords who tabled the amendment have carefully mirrored the existing formulation of the clause in their proposed addition. I thank, particularly, the noble and learned Lord, Lord Mackay of Clashfern, for triggering this discussion and this line of thought in Committee. I again assure the House that I have considered the alternative formulation carefully. However, as I said on Report, we are satisfied that the provision that the Bill currently makes in respect of excluded cases is both appropriate and sufficient.
First, it is extremely important to make the point that, under the existing draft of the clause, the director will be able to provide funding for cases to prevent a specific injustice in so far as that injustice also amounts to a breach of the European convention or relevant European Union law. The Government believe that it is more appropriate to use this legal benchmark as a means of determining whether an applicant would suffer injustice. Article 6, in particular, provides a suitably serious threshold, guaranteeing the right to a fair trial and an individual’s right of access to the court.
Obviously, I cannot provide a blanket guarantee that every matter that noble Lords would consider an injustice would be covered by our formulation of this clause. However, at this point, I take the House back to the fundamental structure and architecture of the changes that we are making to the general legal aid scheme. We have said on many occasions that these reforms are required to create a fair, balanced and sustainable legal aid system. We have taken into account the importance of the issue, the litigant’s ability to present his or her own case—including their vulnerability —the availability of alternative sources of funding, and the availability of other routes to resolution. As noble Lords know, we have used these factors to prioritise funding so that civil legal aid will be available in the highest priority cases: for example where a person’s life or liberty is at stake, they are at risk of serious physical harm or immediate loss of their home, or children may be taken into care.
I recognise and appreciate that the second limb of the carefully crafted amendment, as the noble Lord, Lord Pannick, has indicated, goes some way to meeting concerns that were expressed on Report about the potential breadth of such an amendment. Under the proposal, the director will only be able to use such funds as the Lord Chancellor decides to make available for the purpose of this subsection. However, I ask your Lordships to reflect on the fact that this approach would create a rather peculiar arrangement that would be at odds with the safeguards concerning the independence of the director, which we believe are fundamental to our proposals and which we have strengthened in response to valuable debates that have been held throughout the Bill’s passage.
I accept and recognise that the motivation is to give some leeway or discretion to the Lord Chancellor. The noble Lord, Lord Hart, said it would help the Government. Nevertheless, giving the Lord Chancellor a discretionary fund that he could allocate to the director at the time of his choice would risk politicising decision-making and eroding the clear boundaries that this statute seeks to create between the Lord Chancellor and the director.
For example, let us envisage a scenario in which the director wishes to make funding available for a particular case but there are no funds available for him to do so. What is he meant to do in these circumstances? Would it be appropriate for the director to have to enter into discussions with the Lord Chancellor about the provision of funding for a particular case? Indeed, would it be permissible under the Bill, given that Clause 4(4) explicitly prohibits the Lord Chancellor from giving directions or guidance to the director in relation to individual cases? It is difficult to see how the Lord Chancellor could meaningfully give his assent to the provision of such funds without breaking the spirit—if not the letter—of that prohibition. Clause 4(4) guarantees the objectivity of the decision-making process for both in-scope and excluded cases, and is there to serve as a safeguard against political interference in the making of any individual exceptional funding decisions in the future. We do not wish to put that at risk by establishing a discretionary funding stream, as envisaged in this amendment.
If we accept this amendment, we risk undermining not only the decision-making safeguards that the Bill creates but the general scope of our reforms of civil legal aid. These are important points, which weigh in the balance against this amendment. For the reasons given, I invite the noble Lord to withdraw his amendment.
I am grateful to the noble and learned Lord for his consideration of this matter and to other noble Lords who have spoken. The noble and learned Lord raised two points, as I understood him. His first concern was that this amendment would somehow politicise the functions of the director. It would not. The Lord Chancellor would remain responsible for funding questions and would decide whether it was appropriate to provide additional funding. It would be entirely a matter for the director to decide on the allocation of such funding, if any. There is no question of any politicisation of these responsibilities.
The noble and learned Lord also suggested that it was satisfactory for the exceptional cases category to be confined to those cases in which an issue arises pursuant to the European Convention on Human Rights. In my view, that is not adequate. The exceptional cases category should be sufficiently broad to cover exceptional cases whether or not an issue is engaged under the European convention.
I suggest to noble Lords that there is no basis for resisting this amendment. The Government agree that there should be an exceptional cases category—and they are right. This amendment would ensure that the exceptional cases category is sufficiently broad to enable the director to deal with exceptional cases, if and when the Lord Chancellor provides funding. This amendment imposes no duty whatever on the Lord Chancellor and requires no funding to be provided. It is purely permissive, and I invite noble Lords to support it on that basis. I wish to test the opinion of the House.
Clause 21 : Financial resources
20: Clause 21, page 16, line 40, leave out “13 or”
My Lords, the House will recall that my noble friend Lord Macdonald was most persuasive in Committee so that during Report a government amendment was agreed that removed the power to introduce means testing and make regulations setting criteria for determinations in relation to advice and assistance for individuals in custody. Amendment 20 is a government amendment that removes references to determinations under Clause 13, on police station advice and assistance, from Clause 21, which concerns financial resources. This is a consequential amendment in light of the Government’s amendment accepted on Report to remove the power to means test police station advice and assistance. This technical amendment is required to remove from Clause 21 the reference to regulations under Clause 13. I beg to move.
Amendment 20 agreed.
21: Before Clause 44, insert the following new Clause—
“Exception for international human rights cases
The changes made by sections 46, 48 and 49 of this Act do not apply in relation to proceedings which include a claim for damages for international human rights cases as defined in section 58(C)(2B) (Recovery of insurance premiums by way of costs) of the Courts and Legal Services Act 1990, as inserted by section 48 of this Act.”
My Lords, the other amendments in the group are clearly consequential, in the case of Amendments 22, 23 and 26, and directly consequential, in the case of Amendment 27. These amendments are designed to preserve the status quo in our justice system for victims of international corporate human rights abuse. I am very grateful to the Minister for the further meetings he has had with me and with others since Report, and for the correspondence we have had. I readily knowledge that he wants to achieve the same things as do I and my co-signatories to these amendments, who are from all sides of the House. Indeed, I had very much been hoping that at this stage we would be announcing an agreement of some sort, and I am very disappointed that this has not turned out to be the case. I am afraid that I have not even been able to persuade the Minister to see it as acceptable to put corporate human rights abuses on the same footing as clinical negligence, as Amendment 27 would do.
I do not believe that the Government have adequately understood the impact of the Rome II regulations, which are binding on the UK as an EU member state, let alone the additional restraint and restrictions that this Bill would provide. Figures to illustrate this are very hard to come by, because of the small number of cases of this sort that have been settled over the past decade, so many have included a confidentiality agreement as part of the settlement.
However, I will illustrate the impact of the Rome II regulations with one brief example that is in the public domain: the Trafigura case, which is probably also the most well-known case, where toxic waste was dumped on a large community in the Côte d’Ivoire. There were 30,000 claimants in this case, who shared £30 million in damages—£1,000 per head. It is estimated that under the Rome II regulations, the damages would have shrunk to £6 million, making it £200 a head. Yet the “after the event” insurance premium would still have cost over £9 million. If £200 a head seems a very small amount of compensation for loss and damage to life, homes, health and community, how much less compensation would there be under the provisions of this Bill? It makes it far too costly and risky to bring the cases in the first place.
It is a question of straightforward arithmetic, added to which there is no cost to the taxpayer whatever as a result of these amendments. We have a very good system in place already, which is the envy of many other countries in the world that are looking to us to build their own system to deal with international corporate human rights cases. I appeal to the Minister even now to accept my amendments, but if he cannot then I hope that the House will support me in trying to prevent the clock being turned back for poor and vulnerable victims of human rights injustices at the hands of UK companies, which should remain accountable in practice as well as in theory. I beg to move.
My Lords, if the Government think it appropriate that the private disputes of Russian oligarchs should be settled in our courts, how much more appropriate is it that poor people in countries such as the Côte d’Ivoire, who have been treated utterly disgracefully by a large international corporation, should also be able to seek remedy in the British courts? Should we not be proud to make that a possibility?
My Lords, the noble Baroness is to be congratulated on having persevered so well and firmly with this cause, right up to Third Reading. I remember in my early days as director of Oxfam that I was in north-west Brazil where, having travelled overnight in a rickety bus, I arrived in this very poor town. Around the tower of the church, there was a banner in Portuguese which said, “Prison bars will not prevent the truth escaping”. When I, together with the field director, probed to try to find out what had happened and what was wrong, evidently a greedy land grabber had been bribing the judge with cattle and the judge had repeatedly ordered these people off their land. They had no social insurance—nothing. They had no means of surviving but to go on farming the land they traditionally farmed. In the end, because they resisted, he threw them and the local secretary of the peasants’ association into prison for good measure.
I had gone with my colleague to discuss agriculture—wells, tools, seed and irrigation—but what became very clear was that these people were preoccupied totally with justice. They wanted to have some resources to be able to go to the regional court and put their case before it. I can remember us sitting over some beer and doing some rough calculations, and reckoning that we could find a bit of money to help support them to go off to the regional court. One of my best moments in those formative years as director of Oxfam was when I heard at headquarters in Oxford that having taken their case before the regional court, the local judge was in prison and they were back on their land.
I tell this story because I have repeatedly found in my work with the Third World that what holds people back is a lack of justice and fairness, and what they are wanting is a fair crack of the whip. If this is true within the context of their own societies, when we move into a globalised society—with the vast power of the biggest international companies and the almost limitless resources that they have at their disposal for legal undertakings, cases and the rest—the case becomes even more obvious. I am very unhappy with this whole Bill, and have been from the beginning, because it is about limiting access to justice when surely a cause in a civilised society is to increase access to justice. If we have a serious commitment to the people of the Third World, as the Government keep demonstrating that they want to have, nothing is more important than ensuring that they can get access to justice. I really will be very despairing if the Government, even at this 11th hour, cannot respond to what the noble Baroness has argued.
My Lords, I have huge sympathy with the claimants in the Trafigura case, who received £30 million in damages, and if I thought that access to justice for people in their position were being blocked by this Bill I would be entirely with the noble Baroness. Unfortunately, the costs in that case were £100 million, reduced on taxation to £40 million. I do not feel particularly proud of a legal system which produces such a disparity between the damages that were actually received by the claimants and the lawyers who acted on their behalf.
My Lords, the topic under debate appears to involve general agreement that this class of case is a proper one to be brought in the courts of this country. The critical question therefore is: is it financially possible to bring such a case under the proposed reforms in this Bill? These are long cases, which take years, and they are complex and very expensive. They involve defendants with economic might who are prepared to take on the claimants remorselessly. I remind the House that the Trafigura case actually reached the stage where this Parliament was debating whether that company’s obtaining of a super-injunction meant that Parliament could no longer debate the issues raised by the case. That is might.
The idea that such a case can readily be brought and financed under these reforms is one with which no one whom I know in the law agrees. I have been involved in four of these 10 or 12 cases in the past decade and they have all involved millions of pounds on both sides. In Trafigura, the published costs of the defendants without a trial were £14 million. I await with interest to hear from the Minister any mathematics or economic analysis that explains to this country how lawyers here under these new arrangements—a reduced success fee and no “after the event” insurance—could fund such a case. Everyone I speak to says, frankly, that it is impossible.
If the Minister comes forward with some mathematics that are realistic and not ethereal, and if he gives us financial analysis that is not far distant from reality, the House might still be persuaded. As yet, no one in public has produced such material. The result is that we expect the developing world to open its doors to our great companies to make large profits for the benefit of our country but, when those investments produce adverse consequences, we in this country close our doors of justice to the people who have suffered. That cannot be acceptable, and the Government should think again.
My Lords, the noble Baroness, Lady Coussins, has introduced this group of amendments with her customary fluency and passion, and she has been joined by other speakers who have made the case well. As has been pointed out, this measure risks damage to the UK’s reputation for justice to those people who have suffered damage to their human rights caused by companies based in the United Kingdom. I am sure that none of us wishes to see that happen.
We have support from all around the House, and we are grateful to those who have joined in on these amendments. The settled view of your Lordships’ House is clearly that there is a real danger that, if this Bill goes through in its present form, the changes that it makes to the way in which international human rights cases are to operate, combined with the restricted damages that the Rome II regulations impose on the level of damages that can be awarded to claimants, will make it impossible for such cases to be mounted in the UK in future.
As the House has heard, several very important independent charities have been lobbying hard on this issue. Several meetings have been held with the Minister and correspondence has been exchanged. We hoped that an accommodation could be reached, and we went to see him yesterday in the hope that that might be possible. He e-mailed us today to say that he could not accept our amendments.
It is clear to me that while on the one hand the Government do not want to be responsible for preventing these cases continuing in future, they have not so far been convinced that it is highly probable that they will occur in future. Why is that? The arithmetic, as has been said, is very clear. We seem to be in a situation where the department’s overriding concern that the architecture of the Bill should be retained is working here against good legislation. What other arguments can there possibly be? We have heard from those directly involved in these cases and we know what the figures are. It is clear that the facts outlined by the noble Baroness, Lady Coussins, and my noble friend Lord Brennan that the Government are wrong. I hope that when the time comes the noble Baroness will test the opinion of the House, and we will be supporting her in the Lobby.
My Lords, I confirm that we have been in regular discussions about these amendments, and I regret that I am not able to accept them today.
There have been a number of comments about costs and indeed about the Trafigura case. What strikes me most about that case is that the £30 million that was won in damages worked out at about £1,000 per victim—against, as has already been accepted, legal costs that at one time, until they were beaten down, were running at £100 million. To me, that is an obscene system.
With regard to the reforms that we brought forward, we have said that we believe CFAs will continue. We are also introducing damages-based agreements. Far from welcoming them, though, the CBI and others worry that those may well provide funding in this area. So, it is not that the Government are opposed to bringing companies to account for their behaviour. I just do not believe in the rather broad claims by the noble Lords, Lord Brennan and Lord Judd, that this issue will dramatically affect the lives of people in developing countries. There are other areas of policy that are going to do much more than that.
I make clear that the Government strongly support claims arising from allegations of corporate harm in developing countries being brought, and we support the protection of damages for personal injury. Where we disagree with the supporters of the amendment is that we do not believe that our plans would prevent such cases being brought or ultimately damage the ability of NGOs and others to hold big business to account.
An exception along the lines proposed is in our view neither necessary nor justified. It is not necessary because reformed “no win no fee” arrangements will still allow cases to be brought. It is not justified because it would undermine the wider rationale for the Jackson reforms in Part 2 of the Bill, which should apply across civil litigation without any exceptions. In doing so, it would introduce unfairness between different types of claimant.
We recognise, however, that, following the Rome II regulations, damages in these cases can be relatively low, and they will not be subject to the 10 per cent increase available for other claims. The costs awarded can nevertheless be extremely high, as was demonstrated by the Trafigura case. The question is whether any exception should be made for these cases either on a wider basis, as proposed in Amendments 21, 22, 23 and 26, or on a narrower basis, as proposed in Amendment 27. I concede that in putting forward Amendment 27, the movers tried to put forward a narrow-based solution.
The Government have listened to this debate and those that went before, and we have reflected carefully on the points raised. We have held many meetings with interested stakeholders and NGOs over the past months, and the Government are fully aware of the strength of feeling on this issue. I have looked again at the evidence that has been presented, including reports by Professor Rachael Mulheron of the University of London and Mr Smith of First Assist. Both reports make the general case for recoverable success fees and insurance premiums to continue in these cases, but they do not present any figures showing why these cases could not be brought in future. During our discussions with the NGOs we have asked for such evidence but it has not been forthcoming, even though we have asked them for more detailed figures.
The truth is that the available evidence shows that these cases, though few in number—about 10 in a decade—have historically been highly profitable for the legal firms involved. Although under our plans the margins available would be reduced, they are still likely to remain attractive. I remind noble Lords of the sums involved. Since the previous Government introduced the recoverability of success fees and insurance premiums in 2000, we know that there have been only around 10 of these cases, mainly undertaken by a single firm of solicitors. Most of these cases have succeeded or settled, but some claims have been pursued in which costs have not ultimately been recovered. The figures suggest that in those cases that were not pursued to trial, there were disbursements of some £131,000 and legal costs in the region of £1.4 million. I appreciate that those figures will not cover all costs in all cases but they should be a fair ball-park indication. £1.4 million sounds like a lot of money for a firm to bear in what are effectively losses on a case not pursued and won until the substantial sums that have been received in success fees are considered. We know that in the case of Trafigura alone, success fees—intended to cover the costs in lost cases—of around £29 million were allowed by the Court of Appeal. Those figures amount to a net gain for claimant lawyers from these cases over the past decade of more than £27 million from the success fees for Trafigura alone. That does not include all the success fees in the other successful cases.
These figures speak for themselves. They cast all emotion aside and demonstrate the substantial gains in legal costs from these cases and the proportionately much lower costs expended. When the ratio of earnings to losses is more than 10:1, the current system can, to put it mildly, bear some reform. Therefore, while I recognise that claims against multinationals can be complex, the changes that we are making to the CFA regime will not prevent these cases being brought in the future. They can still be brought but the costs will be more proportionate. As Lord Justice Jackson recognised, a greater incentive for claimants’ lawyers to work more smartly is needed so that they incur only costs that are justified when bringing a claim, rather than allowing costs to escalate.
It is worth pointing out, as I have previously in the House, the criticism by the Court of Appeal of the costs claimed by the claimants in the Trafigura case. In that case, the court itself questioned whether some of the work undertaken by the claimants’ lawyers was necessary. It criticised them for seeking costs of £100 million in a case that resulted in payment of £30 million in damages. It is not for me to question the conduct of those involved, but it needs to be borne in mind when looking at the extraordinary costs claimed in that case alone. I should add—again, as I have pointed out to the House previously—that in that case the defendant’s costs were approximately £14 million, which is around one-seventh of the costs claimed by the claimants.
I turn now to Amendment 27, which seeks to allow for the recoverability of “after the event” insurance premiums to pay adverse legal costs, including expert fees and other disbursements. In doing so, the amendment goes much wider than just the cost of funding the expert reports for which we have provided in the special situation of clinical negligence cases. The amendment would potentially cover paying the other side’s costs, too, but this is not necessary because we are introducing a system of qualified one-way cost shifting in personal injury cases, which will protect losing claimants from having to pay the other side’s costs. We have discussed making exceptions in relation to expert reports in other contexts, but we do not believe that an exception is more needed here than in other cases. As I have said, the costs recovered in successful multinational cases have been substantial and could provide funds towards paying up front for reports where needed.
As I indicated on Report, on several occasions my officials and I have met representatives of the NGOs that support these cases. However, we have not been persuaded that such cases cannot continue to be brought when our changes are implemented. Nor are we persuaded that they justify an exception in the Bill that would be unfair to other, no less deserving claimants.
The House will be aware of all the arguments that I have rehearsed today, in Committee and on Report. We have treated subsequent discussions with the seriousness they deserve, and we have listened carefully. However, the Government continue to believe that reform is unavoidable, necessary and overdue. In this case in particular, we should not mix up a challenge to overgenerous costs with a denial of access to justice. Access to justice is precisely what the reformed CFA regime will protect, but as part of a more proportionate and balanced system. Therefore, I urge the noble Baroness to withdraw her amendment.
My Lords, I thank all noble Lords who have contributed to this debate and the Minister for his very detailed and thoughtful reply. I am only sorry that, although we started from the same place, we have not reached the same conclusions.
There has been much reference in this debate to costs running into millions of pounds. However, the Rome II regulations provide for damages paid to successful victims to be calculated according to the costs in the country where the abuse took place, whereas legal costs are calculated according to what they are in the UK. Therefore, vast disparities are bound to occur. It was the UK Government who signed up to this, not the South African miners or the Peruvian campesinos. We need to take responsibility for that and for the additional restraints proposed by the Bill.
In a case with thousands of claimants, of course the costs will run into millions. If there are 1,000 claimants, there will be 1,000 medical reports and 1,000 toxicology reports to get. There will be travel and translation costs. Of course it will be expensive. The firm of solicitors to which the Minister referred, Leigh Day & Co, which has conducted most of these cases, routinely cross-subsidises its human rights work by taking on many other types of case. That enables it to take on those human rights cases. In the case of Trafigura, for example, in which each victim was awarded £1,000, it was not extraordinarily disproportionate for the company to have achieved £3,000 in costs, given the kind and amount of work and the length of time that such cases involve.
The disparities and the inequalities are too great. Justice is justice, whatever the cost. I want to test the opinion of the House.
Clause 46 : Conditional fee agreements: success fees
Amendments 22 and 23 not moved.
24: Clause 46, page 33, line 18, at end insert—
“(7) To the extent specified in regulations made by the Lord Chancellor by statutory instrument, the amendments made by subsection (4) and section 48 and the repeal made by section 49(1), do not apply in relation to a costs order made in favour of a party to proceedings of a description specified in the regulations.
(8) A statutory instrument containing regulations under subsection (7) is subject to annulment in pursuance of a resolution of either House of Parliament.”
My Lords, this amendment is in my name and that of the noble Lord, Lord Alton of Liverpool. It seeks to confer on the Lord Chancellor a power to disapply provisions of Part 2 in particular categories of case. Noble Lords will know that Part 2 removes the power of the court to make unsuccessful defendants pay success fees and “after the event” insurance. Successful claimants would need to make these payments out of their damages. Concern has been expressed in your Lordships’ House that this may deter or prevent claimants bringing meritorious claims and may operate unfairly by effectively reducing the damages which they obtain. This concern has been expressed in a wide variety of legal contexts from industrial injuries to insolvency claims.
The Minister’s response to these criticisms has been to express the hope, and sometimes the belief, that Part 2 will not have the adverse consequences for access to justice which critics of these provisions fear. The reality is that neither the Government nor the critics of Part 2 can be sure what effect it will have on access to justice in practice. The Minister will, I hope, accept that it is possible that after the Bill is enacted and comes into effect, experience may show that in specific contexts the concerns expressed by those of us who are worried about the implications of Part 2 are justified, and that access to justice is being impeded.
This amendment would confer a discretion on the Lord Chancellor to respond to any problems that are seen to occur after enactment by excluding defined categories of case from the statutory provisions if he thinks it appropriate to do so. The new provision would confer a power in Part 2 equivalent to the Lord Chancellor’s power in Part 1 under Clause 9(2) to modify Schedule 1 in relation to the scope of legal aid—a power for the Lord Chancellor which the Government accepted was appropriate in Part 1. I cannot see why the Lord Chancellor would not wish to have such a discretion in Part 2 equivalent to that which is given by the Bill in Part 1. In neither context does the discretion impose any duty on him.
Parliament is unlikely for some time to have another opportunity to look at these important matters. Given the importance of the changes that we are making in Part 2, given the concerns that have been expressed about their impact on access to justice, and given that these matters may look very different indeed in some legal contexts in the light of experience after these changes are made, it is surely wise to add to the Bill a power for the Lord Chancellor whereby it would be entirely within his discretion to modify the effect by excluding categories of cases. I beg to move.
My Lords, I shall be brief. I support the amendment in the name of my noble friend Lord Pannick. Just over a week ago, your Lordships were reminded by no less a person than Her Majesty the Queen that during her time as monarch she had signed more than 3,000 pieces of legislation enacted by Parliament. All of us who have been Members of this House and the other place know that we have a penchant for passing vast swathes of legislation that we never revisit subsequently. We all know that we sometimes legislate in haste and repent at leisure. I have had the feeling during the passage of this legislation that we will later regret some of the measures we have passed.
The problem then is what we are able to do about it. Although we sometimes add sunset clauses, and Select Committees can revisit legislation and make recommendations, we often do not put in the kind of belt-and-braces provision that my noble friend Lord Pannick has placed before your Lordships’ House this evening. It is eminently reasonable. It is perfectly good for Parliament to say that if things were to work out in the worst-case scenarios in the way that your Lordships at various stages in Committee and on Report have suggested may happen, and if the Minister is proved not to be correct in what I am sure he sincerely believes regarding the way in which this legislation will be interpreted in due course, there ought to be some way of doing something about it if it is to be found wanting.
Giving this discretionary power to the Lord Chancellor and making it consistent with Part 1, as my noble friend has just described, seems to be the perfect way of dealing with the problem. It is eminently reasonable and, like my noble friend, I cannot see any good reason why the Government would want to resist something that requires no expenditure and does not place on them any duty but simply gives them a discretionary power. I hope that the amendment will commend itself to your Lordships.
My Lords, the Opposition certainly support the amendment moved by the noble Lord, Lord Pannick, in his customary and eminently reasonable way. He clearly draws the analogy between the changes that the Government, to their credit, accepted in relation to legal aid and what is being advocated here. It adopts the precautionary principle whereby if things went wrong—they may not of course—there would be a fairly simple way of correcting them if the amendment were to be accepted. If it is not accepted, we would presumably be in for a long delay while primary legislation was enacted, as both noble Lords have made clear.
In this case, discretion is the better part of legislative valour, and I hope that the Government will accept the amendment. It does not bind them to anything but provides an opportunity for corrective measures to be taken, if that should prove necessary, in precisely the same way that they have accepted in relation to legal aid.
My Lords, the noble Lord, Lord Pannick, has tabled his amendment along the lines he suggested on Report. He suggested then that it might be sensible to have a power to disapply the effects of Part 2 in relation to the abolition of recoverability of success fees and insurance premiums in respect of particular categories of case. The amendment now seeks to achieve that.
I have referred on several occasions during the passage of the Bill to its central architecture. The Government’s view, quite simply, is that the current recoverability regime is wrong in principle. It is wrong in principle to impose substantial additional costs on losing parties, whether in relation to success fees or insurance premiums. Those costs add to the already significant costs of civil litigation and allow for risk-free litigation by claimants and what I earlier described as inflation in our legal system.
I have explained the rationale for our proposals and why we consider that they should apply across the board without exception, and I do not propose to repeat those arguments now. The amendment seeks to allow different recoverability in different classes of case. We are implementing a package of reforms, not all of which are contained in the Bill. This package has been carefully put together to be fair between claimants and defendants.
I understand the noble Lord’s intentions. I understand that he thinks it sensible to allow for exceptions to be made at a later date. However, we are legislating now on what we consider to be a fair and overdue basis. Funding arrangements need a degree of certainty. Claimants and defendants need to be able to plan and adapt to the new regime. The amendment would only create uncertainty. Will an exception be created? For what and when? Rather than settling the issue of CFAs, as this Bill seeks to do, the amendment would open the door to constant campaigning and calls for individual exceptions. The amendment may be well intentioned but it is fraught with difficulty. It would provide uncertainty and confusion where we are seeking to introduce clarity. It would provide increased costs where we are seeking to reduce costs. It is wrong in principle and unnecessary. I urge the noble Lord to withdraw it.
My Lords, I am grateful to noble Lords who have spoken in the debate. I simply do not understand how the amendment undermines certainty any more than does the equivalent provision in Part 1. I repeat that it would simply confer a discretionary power on the Lord Chancellor. I understand that the Government believe that the architecture in Part 2 is correct, but the Minister should accept that experience may show that in some contexts, the architecture does not work. The amendment would, importantly, ensure that if those concerns prove to be justified, the Lord Chancellor will have a power to do something about it.
This is an important matter. I wish to test the opinion of the House.
25: Clause 46, page 33, line 18, at end insert—
“( ) The amendments made by subsections (2) and (4) do not apply in relation to proceedings that include a claim for damages or other relief in relation to—
(a) interference with personal information or breach of privacy; or(b) defamation.”
My Lords, Amendment 25 stands in my name and in the names of my noble friend Lord Bach and the noble Baroness, Lady O’Neil of Bengarve.
This is a simple but important issue. However, I do not want to delay the House, as we have had a number of debates on these matters. The amendments in this group would retain the recovery of success fees and “after the event” insurance premiums from the losing side in privacy and defamation cases. The Bill removes these costs and puts them on to the complainant, and I consider that to be fundamentally wrong, particularly in view of what we have seen of late in the way of actions by the press.
It is argued that such recovery of fees may prevent defendants—normally powerful and wealthy people in the media, and in this case the press—defending themselves against a complaint of breach of privacy. I understand that point but I would give more weight to an individual complainant who had suffered breach of privacy from the media or the press. The absence of conditional fee arrangements will prevent the complainant with no personal financial resources seeking legal redress in a case of breach of privacy. Indeed, in this type of case the defendant and complainant are not on an equal footing, and we have to take that into account.
I have benefited from the current no-win no-fee arrangement in pursuing my case against the Murdoch press and the Metropolitan Police. I would not have been able to pursue that case without such an arrangement because, quite simply, I would not have been able to afford it. This Bill strengthens the media’s case by reducing their costs, even if they are found guilty and damages are awarded against them. However, not only does it reduce their costs but it transfers the costs to the successful complainant. However one looks at it, it is not justice for the person who wins the case to be penalised by further costs.
Perhaps I may take my case as an example, although this is not just about me; it would apply to most people in the same situation. The average level of damages awarded in these cases is approximately £40,000. So, in my own case, £40,000 was awarded in damages, there were £40,000 of costs on my side and £40,000 of costs on the media’s side. Put together, that is a considerable cost to be carried by the complainant. However, added to that is the success fee, which is compensation for lawyers taking on difficult cases. In a case such as mine, the success fee would be carried by the people who lost the case. The other type of cost is insurance. If you are going to gamble on winning a case, you have to take out insurance so that it is the insurer and not you who pays the costs. Those success fees and insurance costs are now to be transferred in some form to the side that wins the case, so in a case like mine the damages would not completely cover the costs.
If there has clearly been a serious breach—in my case, it was phone hacking, criminal acts and all the things that we are aware of from the Leveson inquiry—it cannot be right for the complainant who has suffered from those acts to be poorer. More importantly, it cannot be right that the press should have their costs reduced. I understand that it is a heavy cost but that is part of the penalty. The situation is almost like that of the polluter pays. You should think very carefully before you say some of the things that you say and you should not carry out what are clearly criminal acts. If you commit the offence, you pay the price of legal action against you, and the current no-win no-costs arrangement allows many people to sue in such a situation.
The Government are shifting the balance of payments and costs on to the complainant, even when the complainant is found innocent and the defendant is found guilty. I do not think that that is right. I have tried to think of the Government’s reasons for doing this. In some of the debates it has been argued that it is down to the cost to the public, but no evidence has been given for that. What is the cost to the taxpayer? I agree that there are probably heavy legal costs and I have referred to some of them, but if you want to do something about that there are plenty of regulations and powers that can be used. It could be argued that in some cases that is what is happening now. The burden should not be put on those who make the complaint. The defendant in this case should carry the full costs.
Then one wonders who is demanding this change. Clearly, the Government agree with it but who is pressing the Government? The answer is: a very powerful body of media. I know that because they tried to get the previous Labour Government to make this change in the law but they would not agree to it as they thought it was unfair. I see a look of puzzlement on the Minister’s face. Jack Straw may have felt that there was something in it but there was no government decision on it. I leave it at that—we refused to go along with it. However, when this Government came in, I do not know whether it was at a dinner at No. 10 but they obviously got together with some very powerful people and said, “Right, we’re going to do this for you”. It is clear that they want this change and I have given some of the reasons. The innocent parties who have suffered from breach of privacy or phone hacking are not calling for these changes. To be frank, they could not have taken up their cases without the no-win no-fee arrangement. The only people who seem to have argued powerfully for it are the media, and I am not just talking about the red tops or Murdoch. I have referred before in this Chamber to a survey of all the media—the press and television—in which they said unanimously that they wanted their costs to be cut. They did not argue that those costs should be transferred to the claimant; they just wanted their costs cut, and they were unanimous in that.
The people who have certainly not asked for this change are the McCanns, the Dowlers or Mr Jefferies. They sent a letter to the Prime Minister asking him not to do this as it would disadvantage people like themselves who had been injured by the actions of the press. We should take that into account. I noticed that in the Naomi Campbell case, curiously, the British press argued that a change should be made to human rights law. That is not usually their line on human rights but in this case they claimed that their human rights had been damaged by Naomi Campbell. She is a very rich lady and could certainly afford to bring a case. However, that is not the norm. We have to think of people such as the McCanns and the Dowlers, who have been greatly affected, as has become clear from the Leveson inquiry.
The issue is clear; it is about justice. On which side will we apportion the change? Where does the balance lie between the strong and the weak? That is what we do all the time in legislation. This loads it against the weak in favour of the powerful, which is fundamentally wrong. This legislative framework does not follow what we normally try to do. The Minister is talking about whether this can be put into the Defamation Bill. If it is right to put it in that Bill, why wait? I fear that when the Defamation Bill is debated it will be all about defamation costs but there will be very little about privacy breaches, which is what the amendment is concerned with. If the Minister wants to leave the defamation issue, he should leave it to the Defamation Bill, but if the issue is important, he should do it now and change it, or at the very least send it to the other place to consider it further. To duck behind the Defamation Bill and say that it will be dealt with then is frankly not giving the issue the justice that it is entitled to. I am saying that we should side with the weak in this case, not the powerful. Let us have justice. That is what this place is about.
My Lords, I know that it is Third Reading and at this point I shall speak to process and not to substance. We already have in the Bill two exemptions from certain provisions relating to success fees and cost recovery via insurance—Clauses 44 and 45. The existing exemptions for those two clauses relate to respiratory disease and industrial disease, particularly when there has been a breach of a duty of care.
Amendments 25 and 28, to which the noble Lord, Lord Prescott, has just spoken, and to which I am speaking, seek to establish parallel exemptions for proceedings that include a claim for damages or other relief that relate either to personal information or breach of privacy or defamation. This is simply not the moment to try to alter the costs regime in actions pertaining either to privacy or defamation. The tectonic plates are shifting in this area. We have around us many cases that relate to criminal breaches of existing legal protections of privacy as, after all, not all have been settled. We also have a report by the Joint Committee on Privacy and Injunctions from only a fortnight ago to which nobody has yet been able to give much attention, but it deserves some attention. We have notably Lord Justice Leveson’s ongoing inquiry and we have a number of parallel inquiries going on into other aspects of the phone-hacking scandals that came to light last summer.
In some quarters, it is an expectation that defamation legislation will have a place in the Queen’s Speech. Is that a rumour? I do not know, but in some cases I think that it is a firm assumption. I know that nothing can be said about that, but in short, this is simply not the time to alter the costs and fees regime relating to cases in this area. If defamation legislation is coming forward in the Queen’s Speech, then will be the time to think about that. If not, there will be time to think about these other things that are ongoing.
I believe that there would be one other way that might seem to offer the Government a route for dealing with this difficulty of timing, which I accept is not something that could have been anticipated, but it is a severe difficulty. That would be to take advantage of Clause 152, which permits different parts of the Bill for different purposes—that is an unusual way of putting it—to be commenced at different points. It would be open to the Government to delay commencement on those issues. I accept that that is a way of avoiding making commitments now that might have to be reversed if there were a Defamation Bill. However, that is simply not satisfactory from the point of view of litigants—both claimants and defendants—in privacy and in defamation where the stakes are too high and the uncertainty is too great. At this stage, an exemption parallel to the exemption in Clauses 44 and 45 would be the appropriate way forward.
My Lords, we have heard two powerful speeches on this matter. I say from the Front Bench that we support the amendment in the name of my noble friend. Legal aid has never been available for redress in this field, so no-win no-fee has become an essential bulwark for the impecunious citizen of moderate means against for the main part much more powerful media corporations. Such actions, as the House knows, recently led to the exposure of systematic wrongdoing at News International that saw innocent people’s lives just taken apart. We have heard reference already to the Dowlers and the McCanns, and to Mr Jeffries, too. But even politicians, such as the right honourable Simon Hughes, has been a victim, and have relied on no-win no-fee to get justice.
The Jackson reforms on road traffic accident personal injury cases, which we welcome very much on this side, comprising 75 per cent of all claims, are recognised as having a potentially devastating effect on this area of law. The Liberal Democrats in the other place agreed with us when they tabled amendments exempting privacy and defamation actions. I very much hope that they will be consistent if the matter is taken to a vote tonight. That is what they proposed in the other place, so will they really vote against it tonight? The Joint Committee is looking at the draft Defamation Bill. Everyone owes a huge debt to the noble Lord, Lord Lester of Herne Hill, who I am delighted to see in his place. He is unusually silent on this matter tonight but perhaps I can understand why.
That is a first. I am delighted to hear it. The Joint Committee looking at the draft Defamation Bill agreed with the point that I am attempting to make now. It said of the Government’s proposals that,
“we are sufficiently concerned about them to ask the Government to reconsider the implementation of the Jackson Report in respect of defamation actions, with a view to protecting further the interests of those without substantial financial means”.
The Government are trying to stay the House’s hand—many Members of this House are concerned about the impact on these cases—by saying that they will deal with the issue in the Defamation Bill. That is not good enough. In some ways, we will break the civil justice system in this Bill and the Government are saying, “Don’t worry; we’ll fix it later”. That is not good enough. Even if the Government change the definition of defamation, what will they do to make litigation viable for those of limited means? The fundamental problem, as the House knows, is that damages are low in these cases. Indeed, Lord Justice Jackson recommended increasing them substantially in a part of his report, but not the only part, which has been ignored by the Government. The costs of bringing them in are quite a lot higher.
The Government are doing everything they can to make these cases impossible to bring in the future. They are even refusing to put qualified one-way cost shifting in the Bill, which is an essential protection against adverse costs should a litigant lose in this kind of case. The House should not think that it is good enough for the Government to say, “Trust us; we’ll fix it all later”. The amendment should be supported because, as the noble Baroness said in her thoughtful and impressive speech, it is not good enough just to rely on some Bill that may or may not appear in the next Queen’s Speech whose contents we know not.
My Lords, I listened with great interest to the speech of noble Lord, Lord Bach. He will remember that when he was a Minister in the previous Government, his master, the right honourable Jack Straw, decided that the present regime of costs was oppressive and unfair because it imposed a chilling effect on the publishers of newspapers and other media. Mr Straw decided that it was an abusive system because of the effect that it had on free speech. The effect arose from the fact that unscrupulous, greedy or perhaps simply normal lawyers acting for claimants were taking advantage of success fees and running up enormous legal costs that dwarfed any claim for damages, leaving a publisher defendant, for example, with a damages claim for £20,000 accompanied by a costs claim for £250,000.
In the Naomi Campbell v Mirror Group Newspapers case, the European Court of Human Rights found that the circumstances breached the right to free speech enshrined in Article 10 of the European convention. In that case, exactly what I described happened in a gross and abusive way. Mr Straw and the previous Government recognised that the system was an abuse and proposed a rather crude mechanism to cut down success fees to an arbitrary figure. Although this House passed the measure, the other place refused to do so and it fell.
As I shall explain in a moment, I have great sympathy with the problem. However, at the moment I am dealing with the existing abuse. I begin by dealing with it because the amendments in this group, which refer to defamation, privacy and breach of confidence, would leave in place precisely the scheme that has been held to be contrary to the European Convention on Human Rights, on free-speech grounds. They would leave in place the exact conditional fee agreement and success fee scheme, with all its capacity for abuse. For that reason, the amendments should be resisted.
Of course, I agree with the noble Lord, Lord Prescott, and others who spoke, that there is a problem in defamation and privacy cases. It is that the normal costs regime does not work very well in those cases, where often what are sought are not massive damages but other forms of remedy that cannot be dealt with under the scheme in the Bill. That is why at a previous stage I tabled an amendment to introduce what I hoped would be a proportionate way of dealing with the problem. The noble Lord, Lord Prescott, put his name to the amendment. I am entirely at one with him in saying that there needs to be a special and proportionate regime that applies to defamation and privacy cases. We are entirely at one in our aim, and that is exactly what our colleagues in the other place indicated in the view that they took on the matter.
The question is: what is the best way of meeting this legitimate aim? A means must be found of dealing with the David and Goliath problem—both ways. In one case there may be an extremely rich and powerful claimant and an impoverished defendant—let us say a citizen critic, or a little NGO, who cannot afford to pay the costs of the claimant. In another case the claimant may be a weak or impoverished individual who is up against a powerful newspaper or other big corporation, and the same problem will arise. We need to find a scheme that ensures equality of arms—a level playing field—between the strong and the weak in these cases such as privacy and defamation claims where the remedy in the Bill is not suitable.
Sir John Whittingdale's Joint Committee on Privacy and Injunctions drew attention, in its report published yesterday, to the need for this to be dealt with in some way. I agree with the committee on that. However, the amendments cannot solve the problem because all that they would do would be to leave in place the present, bad system without any change. Therefore, what is needed is a reply from my noble friend the Minister explaining the Government’s approach to changing the costs regime. This does not have to be in a defamation Bill. As I understand it—although this needs to be confirmed—there is ample power for costs rules to be altered, especially for privacy and defamation cases, without the need to write the power into a defamation Bill. If I am right, whether a defamation Bill is in the Queen’s Speech hardly matters; the point is that the Minister will have the power to make adjustments. Since I strongly support the introduction of a defamation Bill—as do many noble Lords—I hope that the changes will be made as part and parcel of a Bill, and will therefore be worked out.
I am sorry to have taken so long. I am trying to say, with respect, that the amendments are misconceived; I hope that the House will not divide on them. They would violate the European Convention on Human Rights and would retain the very abuses of which the right honourable Jack Straw was so conscious. They would not fit the Bill as a matter of process. What is needed is for the Minister to reply, to recognise that there is such a problem and to indicate whether the Government have the power to tackle it in the way that I suggested.
My Lords, my noble friend is catching something that perhaps I should not call Pannick disease. The noble Lord, Lord Pannick, has a habit of asking questions and then giving the answers. We will have to see whether I will be able to satisfy my noble friend on the questions that he raised.
As I explained, the basic rationale for the proposed reforms to no-win no-fee conditional fee agreements is to squeeze the inflation out of our legal system. It is to rebalance the system to make it fairer as between claimants and defendants. They do this by correcting the anomaly whereby those who bring cases have no incentive to keep an eye on the legal costs. Right now, the recoverability of success fees and insurance premiums from the losing side can have the perverse effect of preventing defendants fighting cases, even when they know they are in the right, for fear of the disproportionate legal costs involved if they were to lose.
High and disproportionate costs have a negative impact not just because they can deny access to justice but more broadly because they can lead people to change their behaviour in damaging ways because of the fear of claims. Nowhere is that more true than in relation to responsible journalism, as well as to academic and scientific debate. The judgment of the European Court of Human Rights, to which my noble friend Lord Lester referred, in January 2011 in Mirror Group Newspapers v the UK—the so-called Naomi Campbell case—found the existing CFA arrangements with recoverability in that instance to be contrary to freedom of expression under Article 10 of the convention. Editors and journalists have long warned of the chilling effect of the current libel regime and argued that part of the problem is the huge costs that no-win no-fee cases impose. However, defendants are not always rich and powerful newspapers; they are also scientists, NGOs, campaigners and academics.
I have already made the general argument that any exception to reforms intended by Lord Justice Jackson to apply across the board is invidious and likely to lead to unfair anomalies with special treatment for some areas of law but not others. In the case of defamation, I additionally argue that these amendments are premature because, as the noble Lord, Lord Lester, explained, these issues need to be considered in the context of the defamation Bill, which we aim to introduce as soon as a legislative opportunity arises.
The noble Lord will have to wait and see. One thing is certainly true: I have made every effort to make sure that defamation is not engulfed in a tsunami from Leveson. If we really want to reform defamation and not get caught up in a much wider privacy law, what I am trying to do is the way forward. Stunts like dividing the House tonight will show that, on this Bill, the noble Lord is still more interested in short-term political gain than in making progress.
Before the Minister finishes winding, will he explain to the House why he does not think that these exemptions—the noble Lord, Lord Lester, may be entirely right—are the right way to go? Does he not think that two successive changes in the regime are the very worst thing for litigants in this area? In so far as we are leaving the Bill as it is, one change will happen now and another will happen down the road if there is legislation on defamation.
We are talking about a Bill that does not come into effect until 2013. Given that defamation legislation is in process, I do not think the fact that there is a slight lacuna is a major problem in terms of the issues that the Bill will deal with. If it takes a little longer, that is a problem, and I will return to that.
That Bill and associated measures seek to reduce the costs of litigation and discourage unnecessary litigation in the area of defamation. We seek to do so, very broadly, by introducing a range of substantive and procedural changes and also by focusing on alternative dispute resolution, which is quicker, at lower cost, and offers more meaningful redress.
Any exceptions for defamation or privacy cases from the changes in Part 2 are unnecessary because our CFA reforms should not prevent strong cases being brought. I share the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. Nothing in our proposals should prevent that where a case is a good one.
The noble Lord, Lord Bach, sometimes makes me gasp when he starts lecturing our Benches on consistency. The noble Lord, Lord Prescott, asked why this was happening now. Perhaps I may quote an expert on these matters:
“CFAs will remain available for defamation cases; thereby, lawyers will still be able to use them in deserving cases”.—[Official Report, 25/3/10; col. 1157.]
Those were the words of the noble Lord, Lord Bach, as Justice Minister, when he rushed attempts to reduce success fees before this House just before the election. We have already heard what happened in the grand coalition that was the Labour Government when the proposal went down the other end. Nevertheless, the noble Lord, Lord Bach, told this House:
“There is a substantial body of opinion that 100 per cent recoverable success fees should not continue in defamation cases”.—[Official Report, 25/3/10; col. 1156.]
He was backed up by a consultation which said,
“immediate steps are needed in respect of defamation proceedings”.
My Lords, I stand by those remarks. If the Minister thinks that there is something wrong—for example, the difficulty in relation to damages where, under his Government’s scheme, claimants will have to pay up to 25 per cent of the damages they get—what is he going to do to change that? He is in government now.
We are doing what they did not do. We are bringing forward a Defamation Bill that will address many of these problems. The noble Lord says that he does not know what is in the Defamation Bill. A Defamation Bill was brought into this House by my noble friend Lord Lester two years ago, when this Government first came in. In reply to that, I said from this Dispatch Box that we would take up this Bill. We went into a consultation, which has been published. We produced a draft Bill, which the noble Lord may have noticed. We also had pre-legislative scrutiny under the chairmanship of the noble Lord, Lord Mawhinney, and we have responded to that.
We have played this by the book. We have not tried to rush through legislation, as the noble Lord did in the dying days of his Government. We have carried out a sensible look at defamation. The noble Lord knows the conventions. I am very hopeful that we will find parliamentary time in the very near future.
As I have already said, the legislation in this Bill does not come into effect until 2013. The Defamation Bill and the procedural reforms that we intend to take forward with it are of course about reducing the complexity and therefore the expense involved. In order for those aims to be achieved, we will look at the rules on costs protection for defamation and privacy proceedings for when the defamation reforms come into effect. I can give the House the assurance that we will do so. Bearing that in mind, I hope that the noble Lord will withdraw these amendments. We are on course for a reform of our defamation laws.
My noble friend the Minister accused me of asking questions to which I knew the answer, but this question I do not know the answer to. Is the Minister saying that there will be adequate powers, either under existing law or the future legislation, to create any cost changes that are needed to secure a level playing field and equality of arms? If that is what he is saying, I am completely satisfied.
That is precisely what I am saying. I have not brought this Bill this far to score such an enormous own goal. Noble Lords, particularly those who have been in government, know full well how these processes are carried forward. Nothing will happen that will not be fully and thoroughly debated in both Houses of Parliament. I know that various groups have been briefing and arguing for action now. I do not think that these amendments carry us forward in any way.
I give noble Lords as full an assurance as I can. Bills have to go through Cabinets and Cabinet committees, et cetera, but they also have to go through two Houses of Parliament, where this issue is extremely live. I cannot imagine that the kind of issues that the noble Lord, Lord Prescott, has raised tonight will not be dealt with fully in that Defamation Bill. With that, I urge the noble Lord to withdraw his amendment.
Clause 48 : Recovery of insurance premiums by way of costs
Amendments 26 to 28 not moved.
Clause 57 : Rules against referral fees
29: Clause 57, page 42, line 29, after “death,” insert—
“( ) the legal services relate to any other claim or potential claim for damages arising out of circumstances involving personal injury or death,”
My Lords, I committed on Report to bring back at Third Reading amendments to address issues raised by my noble friend Lord Hunt of Wirral in respect of Clause 57. Amendment 29 addresses situations where the referral fee for an ancillary claim, such as for damage to a motor vehicle involved in a road traffic accident, in addition to a personal injury claim, may be inflated to include a payment for a referral fee for the personal injury claim. Amendment 30 makes it clear in the Bill that the payment of referral fees to a third party, whether or not they are regulated, will not avoid the prohibition on the payment of referral fees. This gives both practitioners and regulators a clear marker and removes doubt as to the effect of the clause. We do not wish to place additional burdens on regulators and these amendments will remove the potential for confusion on what is and what is not covered by the ban.
I wish to put on record my thanks to my noble friend for tabling his amendments, which have enabled the Government to strengthen and clarify the ban on referral fees in personal injury cases. I beg to move.
My Lords, I thank the Minister and declare my interest as a partner in the international commercial law firm, DAC Beachcroft LLP, and my other interests in the register.
I warmly applaud the coalition Government’s intention to ban referral fees in personal injury cases. The amendments establish greater clarity around the operation of the ban on referral fees to ensure that there must be no side-stepping of the intention to ban them. I thank him warmly for bringing forward these amendments at Third Reading.
My Lords, it is with some relief that I return to the question of referral fees for positively the last time in the course of the Bill. The Opposition have no objection to these amendments in the circumstances and we congratulate the noble Lord, Lord Hunt, on having suggested them to the Government.
I do not know whether the noble Lord read the Daily Telegraph last Monday— which I think informed the speech of the noble Baroness, Lady Deech, with its suggestions about the Labour Party’s alleged scheme for referral fees, about which I spoke at our previous meeting—but there is a certain irony in the amendment. He may not know—I did not know until after the event—that no less a body than the Daily Telegraph runs a referral scheme, including for personal injuries. It is interesting that that newspaper should have run a story criticising the Labour Party for something that does not exist when it has precisely the same scheme. Apparently it has a scheme with a firm called Irwin Mitchell, of which the noble Lord will have no doubt heard, which levies referral fees. Oddly enough, the Daily Telegraph did not disclose that in the piece that it ran.
However, the Opposition are quite content with the amendment.
Amendment 29 agreed.
30: Clause 57, page 43, line 6, after “consideration” insert “whether any benefit is received by the regulated person or by a third party”
Amendment 30 agreed.
31: After Clause 66, insert the following new Clause—
(1) In section 142 of the Criminal Justice Act 2003 (purposes of sentencing), in subsection (1)(e), at end insert—
“including, where the person affected agrees to this, reparation by means of restorative justice”.”
My Lords, the amendment is supported by the noble Lords, Lord Ramsbotham and Lord Beecham, and the right reverend Prelate the Bishop of Liverpool. I am afraid the hour is such that I am not sure that those who put their name to the amendment, apart from the noble Lord, Lord Beecham, are in their places. It is a modest amendment, which has benefited considerably from the discussions that have taken place on the subject of restorative justice through the earlier stages of this Bill. Indeed, this is my third attempt to find an amendment to which the Government could not possibly object. I have had discussions with the Government and all I can say about this amendment is that I have not yet heard—although I look forward to the Minister’s speech—any reason why they can possibly take any exception whatever to the amendment.
Restorative justice is a relatively new arrival on the criminal justice scene. I indicated in the earlier proceedings that it is part of the rather rare good news in the criminal justice area. For those who take an interest in improvements in the way in which we deal with offenders and victims, it offers evidence that things can be done better than they were in the past. Although restorative justice is possible, there is no provision in legislation yet, as far as I am aware, that makes clear in express terms, using the expression “restorative justice”, what is the precise, core role of the courts. There are indications that the role can include restorative justice but I respectfully suggest that nothing appears clearly in legislation covering the position now. I hope and believe that the Government have plans, but cases have to be decided day in and day out, up and down the country. The courts look to Section 142 of the Criminal Justice Act 2003, which has a menu of what the purposes of sentencing are. One of those includes effecting “reparation”, by unspecified means.
All I seek to do with this amendment is to insert, in clear terms, that reparation includes restorative justice. That will be a message to those who are involved in the justice process that restorative justice has come of age. I hope the House will support me in seeking to do that, because it is undoubtedly desirable. The Government have issued, I think in the last few days, a consultative document, Punishment and Reform: Effective Community Sentences. A significant part of that document deals with restorative justice. For example, paragraph 115 says that restorative justice,
“offers a unique opportunity to give victims of crime the opportunity to be heard and have a greater stake in the resolution of offences and the criminal justice system as a whole. This may entail agreeing a restorative activity for the offender to undertake such as making some form of reparation to the victim, monetary or otherwise or meeting the offender face-to-face to discuss the crime, giving the victim an opportunity to explain to the offender what damage they caused”.
Then it goes on to say:
“RJ is also a vital tool in the rehabilitation of offenders and prevention of further offending. But it is not an easy option to undertake—offenders must directly face the consequences of their actions and the impact that it has had upon others. They must seek to make amends for the damage they have caused and it therefore challenges them to change their behaviour as a result”.
The consultative paper refers to the fact that 14 per cent of offenders have reduced their frequency of offending as a result of being involved in restorative justice. Perhaps even more importantly, 85 per cent of victims have expressed satisfaction with restorative justice. It is therefore not surprising that the Government should speak in the terms that I have just cited on the question of restorative justice in this consultation paper.
The consultation paper will serve a very real purpose, not least in respect of restorative justice. I do not know what will come out of the consultation when it takes place, but if Ministers are serious about restorative justice, as I believe they are, for the purposes of sentencing they will need the modest amendment that I am proposing. It should be said expressly that,
“where the person affected agrees to this, reparation by means of restorative justice”,
is included, and is covered. That is what my amendment does.
The amendment refers to the need for the consent of the victim because that is an essential part of restorative justice. It is not meant to be something imposed on victims, unless they wish to take part, which would add to the effect of the offence. That is clearly not what is intended either by the Government or by me. It is my belief that judges up and down the country will be assisted by this clarification.
I conclude these opening remarks by saying that I am grateful to those who are to speak, and I will see what they have to say, but I would like them to identify any reason why this amendment should not be made. I suggest that if the Government oppose the amendment without having any reason for doing so it would be very unfortunate and would send a wrong message to those trying to improve the criminal justice system.
My Lords, earlier in the day in this debate, many tributes were paid to Lord Newton of Braintree. I wish to be associated with all of them. Early on in the passage of this Bill, when we had the initial skirmish about access to justice, he noticed that I had tabled an amendment questioning the fact that this Bill referred to punishment rather than rehabilitation of offenders. We had a discussion about the core values of the criminal justice system. Reflecting on that, I looked at the core values that the Ministry of Defence reckons are the values of this country: liberty, fairness, transparency and the rule of law. Lord Newton and I had a very interesting discussion about that because, although that may be a direction to the military, it applies to the whole direction of the criminal justice system in this country.
I support this amendment so strongly, and hope that the Government will take the wise words of my noble and learned friend Lord Woolf seriously, because both this Government and the previous one have set great store by the need to look after victims. Restorative justice helps suitable offenders to address the harm that they have caused to their victims, so it is at the heart of what both the main political parties have been saying on this issue. My noble and learned friend mentioned the fact that 85 per cent of the victims were satisfied with the process. However, there is also another factor, which is that 78 per cent of those victims said that they would recommend the process to others. In other words, this process enjoys their support.
If one has a vastly expensive and overcrowded prison system, it only makes common sense, quite apart from economic sense, to do everything possible to reduce the numbers in it so that what is done there can be made more effective for those who need the treatment that it can provide. Restorative justice has shown that it can result in a 27 per cent decrease in reoffending rates. Therefore, it must be a cost-effective contributor to the process.
I find it extraordinary that here we are at Third Reading with those of us who support the rehabilitation revolution feeling that we have had, during this process, almost to fight the Government to get rehabilitation included as part of the purpose of the Bill. We have had to fight inclusion of the word punishment which the Government added and which would increase the expense. We are trying to reduce expense by proposing all the things that have been proven to be able to do so. Nothing that I have seen in recent years has given me more encouragement than the possibilities of restorative justice. I hope that the Government will consider very seriously the amendment proposed by my noble and learned friend.
My Lords, I have not spoken on the whole of this Bill and I only do so now because I have seen the good effects of restorative justice in Belfast, in London and at home in Somerset. It is right that it should be one of the things that are taken into consideration in sentencing, and I hope that the Government will accept the amendment.
My Lords, I very much support my noble and learned friend Lord Woolf’s amendment because his amendment seems absolutely right. I have twice attended such meetings, with quite a long distance in between, where both the victim and the offender were present and able to exchange their views. Both meetings were extremely impressive in the effect which the victim and offender had on one another and in terms of the satisfaction they felt. As we have heard from my noble friend Lord Ramsbotham, the very fact that this process has produced something like a 27 per cent drop in reoffending rates speaks for itself. I make that point because I entirely agree that there can be no real, logical reason for not accepting the amendment—linked, as it is, superbly in this way. A great deal of research by my noble and learned friend Lord Woolf has gone into it. I therefore hope that, on this occasion, the Minister can accept the amendment.
My Lords, I support the amendment. Restorative justice is an important tool to have in your kitbag when trying to prevent or mend the effects of crime. It is not a soft option; rather, it is an economic option with extremely good, tried-and-tested results.
In Somerset, where I come from, we had a scheme that ran for five years, from 2005 to 2010. The plan was that the scheme would expand and spread to other communities but, sadly, its funding was cut by around 90 per cent due to central and local authority cuts. In the five years that it operated and the 940 cases that it dealt with, the reoffending rate was less than 5 per cent compared with our more normal courts and probation service reoffending rate of 65 per cent to 70 per cent. Among the 940 cases there were 90 cases of first-time offenders who were thus diverted from the criminal justice system, the likely establishment of a criminal record and the inevitable ongoing costs and negative social impact of that. In terms of pure economics, 30 per cent of the cases referred would have gone to court and thus cost the Somerset taxpayer some £612 per case, compared with £139 per case for the restorative panel.
As everyone knows, restorative justice saves police time, has immeasurable social benefits and brings a new perception of crime and safety into the community, which is important, as well as the re-education of potential criminals. The object of restorative justice is to repair harm and thereby strengthen the community. The process treats the harm, not the individual who caused it. As the noble and learned Lord, Lord Woolf, said, it allows the victim a voice and a part in the decision-making about the best way for the harm that they have suffered to be put right. It is not adversarial but rehabilitative.
Frequently the offender has never had the education, whether from life or from a parent, necessary to understand the effect of their actions. Invariably, when they hear, either from the victim or from the victim’s friends and family, about the detailed and personal effects on the victim of what they did, they feel intense remorse, which is very uncomfortable. The context of the discussion enables them also to realise that they themselves actually count, the people around them care and what they do matters and has an effect. They are given a choice that can change their lives and that of their community for the better. I strongly support the amendment.
My Lords, I can be brief, having heard what the noble Lord, Lord Cameron, has said, setting out the facts about what works well in the county next to the one where I live. It is very impressive.
It is right to say that restorative justice is not for everyone. There is a sort of case where it would be quite wrong: someone who has been a victim of serious domestic violence, for instance, would seldom find it possible to meet the offender, who is often another member of the family. In suitable cases, though, and there is no shortage of suitable cases, it is good for the victim—as the noble and learned Lord, Lord Woolf, has said, it gives them a voice—but it is extremely salutary for the offender, as the noble Lord, Lord Cameron, has said.
I have had instances where offenders—young offenders in particular; those just grown up—have ended up in floods of tears because they had not appreciated the impact of the way in which they had behaved, particularly in something like burglary or theft when they took from someone elderly some not very valuable things that had enormous personal value for that victim. Being told, with the victim in tears, that a great-aunt’s cup that had been preserved through the family had been stolen and thrown on the ground can lead to the offender being in tears too, and this shows that there is a real value.
The figures from Somerset showing the high degree of non-reoffending, which is a great deal more than the noble and learned Lord said was the average of 27 per cent or 28 per cent, shows that restorative justice is a real tool. I find it utterly astonishing that this Government, who have been listening throughout so much of the Bill, have failed to listen on this issue.
My Lords, briefly, I support the amendment of the noble and learned Lord, Lord Woolf. I have been involved in restorative justice through a charity called Why Me? for some years. I became involved because it offered a victim-oriented strategy, as mentioned by the noble Lord, Lord Ramsbotham. Restorative justice offers an opportunity for the person who has been offended against to address the trauma that they have suffered, to see how and why it came about and, in that way, to achieve some sort of closure. On the other side, it has had significant effects on reoffending. As the noble and learned Baroness has pointed out, offenders will say, “There was just a name on a charge sheet but when I see that it belongs to a person with a home and a family, which I have broken into or broken up, I begin to see some of the dreadful things that my actions have done”. Therefore, I am anxious that the Government should accept this amendment.
There are only two reasons why they might not accept it that I can see. First, there might be a need to restrain public spending. I accept that there is a need for this sort of activity to be carried out by well trained people to be effective. However, there will be a net benefit. If we can continue to achieve the reduction in reoffending rates that has been achieved in the past, there will be a reduction in costs as we avoid some of the costs of reoffending. Secondly, the Government have said that this amendment is overly prescriptive but I have some difficulty in understanding why. As the noble and learned Lord pointed out in his opening remarks, this just adds to the menu of options available. Therefore, it is not prescriptive in my reading of how the amendment has been drafted.
In conclusion, my concern is that if we are not careful, the idea of RJ will fall victim to what I call the Daily Mail effect. Restorative justice is not an easy thing to defend. It can appear a bit touchy-feely. One or two cases that led to difficult headlines in the newspapers could lead to the Ministry of Justice saying, “This is a bit difficult. We had better back off from this one”. Therefore, my reason for strongly supporting the noble and learned Lord’s amendment is that if we get it into the Bill, we will then have something that can be used in the future and cannot be brushed away by some unfortunate event that might lead to public opinion turning against it and putting temporary political pressure on the Government of the day.
My Lords, from the opposition Front Bench I strongly support the amendment moved by the noble and learned Lord. I do so not just because he was a distinguished judge and a most eminent Lord Chief Justice, whose words should be weighed very carefully by all sides of this House; not even because he is a fellow Novocastrian and a fellow honorary freeman of Newcastle-upon-Tyne; but because what he proposes makes such eminent sense, as several of your Lordships have pointed out. The record of restorative justice is one of success. It is not universally successful but, as we have heard, it has made a significant impact on reoffending rates, is cost-effective and, as the noble Lord, Lord Ramsbotham, pointed out, is an alternative to other forms of punishment that are generally more expensive and often less efficacious.
I cannot think of any reason why the Government should resist an amendment phrased in the way that this is. There is an analogous process called “justice reinvestment”, which is a rather more collective way of making reparation, whereby offenders put something back into the community through a community payback scheme or something of that kind. Justice reinvestment is not part of this amendment, although it is a valuable process. If the Government reject the amendment, we will not see justice reinvestment but, in effect, justice disinvestment. That would be a mistake, from which only the victims of crime—and the taxpayer, for that matter—would suffer.
I hope that the Minister, when she replies, will see the enormous persuasive logic of the case made by the noble and learned Lord, supported as it has been on all sides of the House. I hope that the Government will recognise that to incorporate an amendment of the kind that the noble and learned Lord has moved will strengthen, not weaken, the Bill. I hope that they are prepared on this occasion, as they have been on other occasions, to listen to the sense of the House and accept the amendment.
My Lords, Amendment 31, tabled by the noble and learned Lord, Lord Woolf, returns to restorative justice. I thank him for bringing this important issue before the House and for his tenacious support for its principle.
The amendment is very timely as this morning we published our consultation on community sentences, Punishment and Reform: Effective Community Sentences, which includes a chapter on reparation and restoration. I am very pleased that the noble and learned Lord has welcomed this publication. The consultation offers us an important opportunity to seek the views of practitioners, sentencers, magistrates, probation officials, victims and victims’ groups about the use of restorative justice as part of our response to tackling more serious offending through the use of community sentences. It asks questions about the use of pre-sentence and post-sentence restorative justice, what more we can do to strengthen and support the role of victims in RJ and, crucially, what might be the right approaches to building capacity and capability and boosting a cultural change for RJ. We want to gather all views on how to do this, and through what means, so that we can develop the most effective approach. Noble Lords have emphasised their experiences of how restorative justice works and have cited research to back up those experiences.
We are anxious to ensure that innovative and effective restorative practices continue to be developed and are driven by local areas and tailored to local need. We certainly want to support initiatives by building capacity in the criminal justice system so that we can deliver the restorative process that this amendment champions. I believe, therefore, that we need to undertake the important consultation exercise that we have initiated today before we can give consideration to whether further specific legislation is necessary for restorative justice, taking into account all the options for how we intend to widen its application.
Noble Lords have made a very powerful case for the use of RJ. My honourable friend in the other place Crispin Blunt, my noble friend Lord McNally and I very much welcomed the meeting that took place earlier today, to which the noble and learned Lord has referred. I hope that it reassured him that we are making progress in this area to increase the use of restorative justice across the criminal justice system. We hope that he will contribute his enormous wisdom and experience to the consultation that we launched today. I assure noble Lords that everything that they have said will be fed into that consultation process and what emerges from it.
I apologise for interrupting the noble Baroness but she has got to a point where I need to ask a question. Here is a vehicle of primary legislation into which something about restorative justice can be placed. If she and the Government wait for the results of the consultation, where on earth will they find the vehicle of primary legislation into which to slot restorative justice?
I merely wanted to say that here is a piece of legislation into which this measure can be placed. However, if it is not included in this legislation, there is a danger that it will not go in anywhere. In the absence of primary legislation, there is a danger that the Government will have difficulty in implementing the measure. That is the point I am making; I was not trying to get an idea of what is in the Queen’s Speech.
I understand what the noble and learned Baroness is saying. As we discussed in Committee and on Report, the use of restorative justice can already be taken forward under current legislation. The question is whether further legislation is required. The noble and learned Lord and other noble Lords have made the case that restorative justice is useful, as has the noble and learned Baroness. However, as I say, RJ can already be taken forward and is being developed. We hope—
Perhaps the noble Baroness will forgive me for also interrupting her, but I should like her assistance. Am I right in assuming that she intends restorative justice still to be supported by the courts? Does she agree that there is no express reference to restorative justice in legislation setting out the power of the courts to make use of it? Although there are references to similar matters, they do not clearly permit restorative justice.
I hear what the noble and learned Lord says, and he makes his case very cogently, as he and others have done at other stages. However, he, too, will recognise that the courts can use restorative justice and are doing so. That is happening. However, the Government take seriously the need to develop this area further, and noble Lords have made that case very clearly. The consultation has been brought forward. We expect that what has been said here will be fed into that consultation, and I hope that the noble and learned Lord will feed his own experience and expertise into that process. The important thing here is to make sure that the practice is taken forward and provision is expanded. That commitment I can certainly give him. Given the consultation and the process that is being carried forward, I hope that he will withdraw his amendment but continue with his commitment, which we very much support.
I thank the Minister for the way in which she presented her case. She has said everything possible to support deferring the inclusion of the reference to restorative justice, which I think is important because it makes it clear to judges up and down the land that restorative justice is part of the purposes of sentencing. That message can then be incorporated into the process.
I thank the noble Lord, Lord Hodgson, for his helpful remarks. He was obviously concerned about resources. In the present situation, everyone is concerned about resources. The amendment does not require the Government to put one penny into restorative justice. It does not deal with that subject, so he need not have that concern.
I know that there is every probability that, if we do not do it now, one day this will be done, but this is an excellent opportunity to do it. There is no reason why we should not. With respect to the comments of the noble Baroness, I did not identify any reason why we should not, other than the fact that consultation is to take place, but consultation can go on irrespective of whether or not we do this. We all support the consultation process. In those circumstances, albeit that the hour is late and that we have had a long day on the Bill, I propose to divide the House.
32: After Clause 68, insert the following new Clause—
“Guidance for Probation Trusts
The Lord Chancellor shall publish guidance for Probation Trusts concerning how Probation Trusts publicise to magistrates arrangements for magistrates to claim reimbursement for contact with Probation Trusts including reimbursement for the costs of visits undertaken in connection with community programmes.”
My Lords, following our debate on Report, I return to an amendment which concerns a new clause that I propose to insert into the Bill. I feel that there is something very familiar about this exercise, as my hero, my noble and learned friend Lord Woolf, has just argued a very simple amendment with huge implications, which is what I feel I have been trying to do during debate on this matter.
I have been careful to follow the rules governing amendments at this stage of the Bill, and I am grateful for the Public Bill Office’s advice and help in drafting this amendment. It has meant focusing on one particular aspect which I did not fully explore earlier—namely, expenses—and seeking clarification on some of the Minister’s remarks.
In this redrafted amendment, I am requesting that the Lord Chancellor should publish guidance for probation trusts on how magistrates can claim reimbursement for the costs of visits to community projects and programmes. I wonder whether this could be done through Her Majesty’s Courts and Tribunals Service, as has, I understand, been under consideration lately. If there is to be no statutory liaison for the time being between the magistracy and the probation service, which is what I was seeking, it is still essential that the costs of visits should be reimbursed so that magistrates can see and believe for themselves what local community projects and programmes consist of. There is, quite simply, no better way, even if only one or two visits are made each year. Given that the role and work of magistrates in the courtroom is entirely voluntary, they really should be supported in informing themselves, through local visits, of what their sentencing options are. I cannot emphasise how important engaging with the participants is in understanding what is being delivered. We all want and need magistrates to make informed decisions if the goal of reducing reoffending is to be realised, so this sort of engagement is really important.
I should like to seek clarification from the Minister on some of the sympathetic remarks that she made on Report. She mentioned, without specifying them, meetings between probation trust boards and magistrates and pointed out that “they”—the magistrates—
“can, in fact, claim expenses from the probation trusts in attending these meetings. This is an area where the Government might assist by doing more to publicise the process if magistrates are unaware of it. We will certainly consider, as a practical approach, encouraging better liaison by publicising this”.
This comment caused an immediate debate the following day between magistrates and probation about the meetings she was referring to. They concluded that they are the meetings of probation trust boards which magistrates can attend and for which they can claim expenses. Guidance has been carefully laid down by the senior presiding judge Lord Justice Goldring on this: magistrates can attend but solely as advisers or observers—nothing to do with visiting projects or even talking about them.
The exception is when magistrates sit exclusively in the Family Proceedings Court and may become formal members, but only in a private capacity, not representing the judiciary. Furthermore, he advised that there should not be more than two members on a trust, which means a total of 70 magistrates throughout the land from the 35 trusts, which is hardly a significant number out of 29,000 magistrates. This is the only formal contract that results in any payment of expenses that they could think of. It is also quite a different process from any arrangements that magistrates might be able to make to visit programmes, which are custodial alternatives and my chief concern. If I have misunderstood, I should be grateful if my noble friend would clarify the point.
I would also mention that the National Sentencer and Probation Forum—another body—is a management forum consisting of three senior magistrates, two chiefs of probation, two judges and some civil servants. I believe that it discusses issues of performance, commissioning, et cetera, and meets quarterly. Until I had read the briefing for this debate, I did not know of this body’s existence. As a somewhat remote management group, does the Minister think that this is the appropriate body to carry forward magistrates’ engagement with their local provision of programmes, or deal with expenses?
When the Minister said that,
“it is important that magistrates see for themselves the work of probation trusts”,
it seemed that my argument had been heard in part. For that, I am truly grateful. However, she went further and said:
“We will look to see if there is more that we can do to ensure that best practice is brought to the attention of probation trusts”.
Will she also clarify that comment? I presume she meant that it is brought to the attention of magistrates, as it is the trusts which provide the programmes that magistrates may find suitable for disposal once they have seen them. Could she also say exactly what she means by “best practice”, which is at the heart of the matter if we are to improve understanding and prevent reoffending, which is seriously important? She said:
“We are also ready to work with the Magistrates’ Association and others to ensure that we have practical arrangements in hand to encourage magistrates to take part in meetings so that information can be exchanged”.
Will she clarify what sort of meetings they might be? That has the potential to be helpful. When she noted that,
“the amendment does not ensure that magistrates attend these meetings … it instead places a duty on probation trusts to provide information”.—[Official Report, 20/3/12; cols. 789-90.]
I am not clear about the nature of the meetings she has in mind. However, I am, of course, aware that probation trusts can only provide information and the option to visit, for magistrates to get information that way. They could not be expected to require magistrates to attend any meeting.
This discussion made me wonder inter alia what would happen if the existing training arrangements for Crown Court judges, called continuation courses, and which of course are compulsory, were voluntary and left to individual choice. What would happen then? Perhaps something similar in terms of dropping attendance? However, it is unimaginable that these courses should not be required for judges, and I believe that they should be for magistrates.
Given the positive assurances that my noble friend gave in her earlier responses, will she now confirm the timescales for what she suggested the Government have in mind? We all know that the road to hell is paved with good intentions—and I am quite sure that the Government have no intention of going down that road. It is important that we should all be given a clear indication of what to expect from the practical suggestions that she made.
I was grateful for the receptiveness of her responses on Report, and I hope that we will hear more, bearing in mind that not a single substantial argument against my case was raised in the House or outside it, except by the Government, who appeared to feel that my amendment was not necessary because of the obstacles that they discerned. The rest of us beg to differ—and I beg to move.
My Lords, I support the intent of the amendment moved by the noble Baroness, Lady Linklater. I will admit to some subversion. When I was Chief Inspector of Prisons, the Magistrates’ Association one day brought me a large blue book containing the guidance issued by the Prison Service for visits paid to prisons by magistrates. The association asked me whether I would support it. I read it and advised the association to put it in the bin immediately, because it advised that when magistrates went to prisons, they should accept the programmes laid on by the governor that would show them all the things in the prison that they did not need to use or see.
I advised the magistrates instead that when they went to prisons, they should say: “I want you to do three things. First, show me what would happen if I was a prisoner arriving for the first time, so that I can see the reception arrangements. Secondly, I want to discuss the arrangements that might be made for sentence planning and conduct during the time I am in prison. Thirdly, I want to see what arrangements will be made as I come up to release from prison”. Within a month, I had the Magistrates’ Association back saying, “Thank you so much. That has given us a purpose when we go on a visit”. Then, when I went into prisons, I had a response from the staff who said how refreshing it was to have magistrates coming in who were interested in what they were doing with and for prisoners.
What I like about the amendment proposed by the noble Baroness, Lady Linklater, is that this process should be followed by magistrates showing an interest in what probation is trying to do in the community with and for prisoners. If there is that interactive relationship between the organisations involved, you will get a much more cost-effective and proactive organisation. Everyone will feel that they are working together rather than feeling that they are being shown something for the sake of being shown it because that is an exercise that they go through. Therefore, I entirely support the spirit of the amendment.
My Lords, the noble Baroness makes a persuasive case to encourage the Government to invest not money but a modest degree of guidance to assist the process of magistrates effectively learning more about sentencing options, about what happens when they institute different forms of punishment and about what happens, in particular, in relation to community sentencing. This is not a huge burden. When one thinks of some of the legislation that has passed through your Lordships’ House in recent months —a Localism Act that with its impact analysis weighed in at something over 8 pounds, as I recall, and contained 225 clauses, a health Bill that had 1,000 amendments en route to your Lordships’ House and all the rest of it—one cannot imagine that it would take very much effort on the part of those responsible to produce fairly simple guidelines on a very narrow topic, which is the subject of this amendment, that could facilitate greater awareness of what is available to magistrates in terms of sentencing options. It seems to me an overwhelmingly simple matter and one that the Government could graciously concede without any damage to the Bill. On the contrary, it would enhance the intentions of the Bill and the intentions of government policy, to which we have referred and which, no doubt, we will shortly hear again from the Minister. Along with the noble Baroness and the noble Lord, Lord Ramsbotham, I would be at a loss to understand what could possibly persuade the Government that this is not a simple and desirable course to follow. I hope that the Minister will not feel that she is constrained to remain rigid on the position that has hitherto been adopted, which produces nothing to assist magistrates or, indeed, anybody else.
My Lords, this amendment returns to the issue raised by my noble friend Lady Linklater throughout the passage of the Bill. As I said on Report, my noble friend Lady Linklater has considerable experience of bringing together magistrates and those working in probation and of building trust in alternatives to custodial sentences. That is the key area here. That is exceedingly important. We agree with my noble friend about the merits of what she is trying to achieve. However, we do not feel that there is need for legislation to reach that goal. It is interesting that the noble Lord, Lord Beecham, talks about guidance.
As I said on Report, we will look to promote best practice on liaison and information sharing and to make clear that there are already arrangements available for magistrates to claim expenses from probation trusts to encourage such close liaison. We have already begun that process. The national sentencer probation forum has agreed to look at this issue. That forum brings sentencers, including magistrates, together with probation trusts and Ministry of Justice officials to discuss national issues of common interests, including liaison arrangements. We want to gather from sentencers and probation trusts any issues of which they are aware in relation to local liaison arrangements, along with examples of good practice in information sharing. I am pleased to say that the forum has agreed to consider these issues at a forthcoming meeting. I hope that my noble friend is reassured by that. It may be that as a result of that examination of the issues, it emerges that there is indeed a need for guidance in the way that the noble Lord, Lord Beecham, indicated, or some other clarification of existing procedures. However, I stress again that there is no need for new primary legislation to enable that to happen.
I will now address the points on which my noble friend Lady Linklater sought clarification. I mentioned on Report that magistrates can claim expenses from Her Majesty’s Courts Service or probation trusts. The rules and guidance on expenses are quite complex. Given the lateness of the hour, I am very happy to write to my noble friend and spell those out in greater detail. In general terms, the Courts Service pays expenses for costs that arise from the formal duties of a magistrate; for example, attending justice issues group meetings or formal training courses. For other activities involving probation, it is open to the magistrates to claim expenses from local probation trusts. I should clarify that when I said before that it was appropriate to claim expenses from the probation trusts, this was indeed for such things as the informal local liaison meetings.
My noble friend raised the issue of best practice. On Report I emphasised that the Government wanted to encourage best practice in regard to local liaison and information-sharing in the way that she has outlined. This can come from probation or the magistrates, and we want to look at examples of effective local liaison, where there are regular, well attended local liaison meetings and where magistrates are aware of the work of probation in their area. That is what we want the national sentencer probation forum to consider.
My noble friend also asked for clarification of what I meant by meetings with magistrates. As I have said, there are two main elements. First, there are the local liaison meetings, where probation trusts and magistrates can come together and discuss issues of mutual concern in the local area; for example, the current availability of programmes run by probation or issues raised by magistrates, such as the availability or type of work being done as part of community payback schemes. We want to look at how these meetings operate now and promote the type of approaches where local liaison works best. Secondly, I also mean the familiarisation visits that magistrates may make to probation, such as visits to see community payback schemes in operation. Again, we want to learn from where this is happening well.
Therefore, I hope that I can reassure my noble friend that we are looking at best practice regarding liaison and information-sharing, and we have already started on that. We will consider any practical solutions necessary to address existing problems under the current legislation. With that clarification and reassurance that work is indeed under way, I hope that my noble friend will feel able to withdraw the amendment.
My Lords, I thank those who have contributed to this short debate. I am grateful to the Minister for replying in the way that she has, which I acknowledge was an attempt to be helpful.
As I pointed out earlier, the reality is that there are 35 probation trusts. Lord Justice Goldring says that no more than two magistrates should attend, and then only as observers and advisers. The forum that she referred to meets quarterly to discuss major management issues, with three senior members of the magistracy, two judges and two senior probation officers present.
I have been addressing the issue that involves 27,000 magistrates visiting the important projects in the areas in which they work so that they can make more informed disposals and understand what is going on. This is also in the interests of good sentencing, good decisions and safer communities. We have not touched on this, but the magistrates do a great deal of work to help keep the standard of these projects very high so that the best possible practice can be realised. I was hoping to hear a bit more about that.
I was terribly interested in the “blue book” story from the noble Lord, Lord Ramsbotham. It is another example of what this is about; namely, that seeing is believing and engaging with people, rather than talking about an issue once a quarter or having the occasional visit from probation officers with some information. You cannot get the same insight. I do not think that anything can supplant the actual experience.
As my noble friend mentioned, we have two reviews coming up—one on the magistracy and another on probation. Perhaps the underpinning of the work we have done on this subject during the passage of this Bill will inform a much more focused debate than we have been able to have with my one small amendment. Given the lateness of the hour and in the hope that that is where we will get some positive results, I beg leave to withdraw the amendment.
Amendment 32 withdrawn.
Clause 77 : Alcohol abstinence and monitoring requirement
33: Clause 77, page 58, line 45, at end insert—
“(9) In Schedule 9 to that Act (transfer of community orders to Scotland or Northern Ireland)—
(a) in paragraph 1(5), after “require” insert “an alcohol abstinence and monitoring requirement or”, and(b) in paragraph 3, after sub-paragraph (4) insert—“(4A) The court may not by virtue of sub-paragraph (1) or (3) require an alcohol abstinence and monitoring requirement to be complied with in Northern Ireland.” (10) In Schedule 13 to that Act (transfer of suspended sentence orders to Scotland or Northern Ireland—
(a) in paragraph 1(5), after “require” insert “an alcohol abstinence and monitoring requirement or”, and(b) in paragraph 6, after sub-paragraph (4) insert—“(4A) The court may not by virtue of sub-paragraph (1) or (3) require an alcohol abstinence and monitoring requirement to be complied with in Northern Ireland.”(11) In the Armed Forces Act 2006—
(a) in section 180 (transfer of service community order to Scotland or Northern Ireland), in subsection (2), after “3(1)” insert “and (4A)”, and(b) in section 204 (transfer of suspended sentence order to Scotland or Northern Ireland), in subsection (2), for “6(5)” substitute “6(4A) and (5)”.”
My Lords, Amendments 33, 34, 35, 42 and 43 are minor and technical consequential amendments, which provide clarification of the provision of the alcohol, abstinence and monitoring requirement introduced by an amendment on Report. Our intention is that new requirements should be available to the courts in England and Wales but not to the courts in Scotland or Northern Ireland. The amendment therefore ensures that the new requirement will not be capable of being imposed by a court in England and Wales on a person who is resident in Scotland or Northern Ireland. I beg to move.
My Lords, I welcome these amendments. I am grateful to the Government for addressing an area that I overlooked in the amendments that I had drafted. I also should like to place on record my gratitude to the noble Baroness, Lady Northover, who, with me, met the domestic violence groups, as we had promised in the previous proceedings. We had a very useful and fruitful meeting with open discussion. At the end, everyone agreed that it was very clear that there was never any intention that the pilots should involve domestic violence, particularly not at the beginning, because the issues around domestic violence are so complex. The organisations involved in domestic violence very much want to be consulted at every stage of further development and the programmes in place to help people cope in situations of domestic violence are very important in trying to provide a safer and more stable society.
Amendment 33 agreed.
Clause 78 : Piloting of alcohol abstinence and monitoring requirements
Amendments 34 and 35
34: Clause 78, page 59, line 24, after “(5)(a)” insert “—
35: Clause 78, page 59, line 25, at end insert “;
(b) may not enable a court to provide for an alcohol abstinence and monitoring requirement to be complied with in Scotland or Northern Ireland.”
Amendments 34 and 35 agreed.
Clause 145 : Offence of squatting in a residential building
36: Clause 145, page 132, line 7, at end insert “or if the building has been empty twelve months or more and is not subject to a current planning application”
My Lords, during the passage of this Bill we have learnt that there is no need for this clause because squatting in people’s homes is already criminal. We have learnt that there was a big need for guidance and we would not be where we are today unless there had been an abject failure of successive Governments to issue any guidance on the use of Section 7 of the Criminal Law Act 1977. If enforcement of those more reasonable measures in that Act had been properly understood, duplicating the legislation in this much harsher way would not have seemed necessary; nor is there a demand for it.
I thank my noble friend the Minister for our two meetings. She also wrote to me after the Report stage to say that the Government consultation was evidence of demand, so I looked again at the results of the consultation. In fact, out of the 2,217 people who responded, 96 per cent did not want to see any action taken to criminalise squatting, and even more surprisingly, only 10 people, 0.5 per cent of all the respondents, wrote in to say that they had been the victims of squatting. I do not feel that either need or demand has been demonstrated.
We have also learnt that this is going to cost a good deal. In a Bill that is all about cost cutting, even the Government’s own impact assessment suggests that the cost of this measure will be between £5 million and £10 million, which is a pretty wide estimate. However, those figures are probably optimistic. If the clause is enforced, it will cost the Ministry of Justice and the Home Office many tens of millions in enforcement, court time, rehabilitation, curfew monitoring and so on, and that is before we get to the costs of rehousing.
I am still against this clause in every way but, on the basis that the Government are determined to push it through, I must look at mitigating in any way I can the injustices being perpetrated against the homeless, and that is the purpose of the amendments I have tabled. My noble friend Lady Hamwee will go into greater detail on the definition of “residential”, which we feel is still inadequate. I will address my comments to the commencement of the clause. What will happen to those individuals who will be affected when the law is changed? I need to know about the practicalities of how individual homeless people who are currently squatting will get to know about the change in the law, or will they simply be criminalised overnight? Could there be a system of warning them and offering help to find alternatives? Are local authorities actually prepared to do that?
With nothing set out in the Bill, how will the Government ensure that appropriate help is offered? Evidence given to us by the charity Crisis, which has researched this issue, shows that when squatters who want to leave a squat present themselves to their local authority for help with housing, they are given a home-finder pack that at best contains a list of landlords, but since they have no money, the pack is of little help. They may be given a list of hostels, but some 2,000 hostel beds have been lost in the past year, so the hostels are likely to be full. Can my noble friend tell me what should happen then? There is nothing in the Bill to suggest even consultation with local authorities, let alone powers to make them act. Can squatters be deemed to be intentionally homeless, because then local authorities have no obligation at all to house them? They would automatically be denied help. Will the Government invite representatives of Crisis, a charity which does so much for the homeless, to work with officials on potential transitional measures? They might be able to offer some practical suggestions for measures that could be put in place to support homeless people who are squatting.
Finally, I should like to ask my noble friend about empty dwelling management orders. The number of empty homes is staggering, at over 720,000 across the UK. In London alone, there are some 74,500 empty homes. Some of them are owned by local authorities and housing associations, which is a bit of an irony since those bodies are meant to be in the business of housing people. However, by far the greatest number of empty homes are in private hands. If the Government think it is criminal to squat, they should also think it is criminal to leave properties empty, denying them to society year after year. What are the Government doing to ensure that the scandal of all those empty homes comes to an end?
I challenge the fact that this clause is still needed, but it is before us. These modest amendments try to make the position clearer and a little more just. I beg to move.
My Lords, I preface my remarks with the comment, “Better late than never”. I add my tributes to those made earlier to Lord Newton of Braintree. Back in the 1980s when I worked with the Child Poverty Action Group, I knew him to be a fair and open-minded Minister. On the day of my introduction to this House, he welcomed me from the Benches opposite in a very warm and generous way. Like so many other Members of your Lordships’ House, I thought of him as my noble friend. I thank the noble Baroness, Lady Miller of Chilthorne Domer, once again, for her perseverance in ensuring that we debate this important issue at not exactly a reasonable hour but at least a slightly less unreasonable hour than the last time. I am pleased to add my name in support of the amendment. As I made clear on Report, Clause 145 is wrong in principle. It is unfair because it treats what is a homelessness and welfare issue as a criminal justice issue, and it is unnecessary because residential home owners are already protected in law.
On reading the previous debates, it feels that the two sides are talking past each other. On Report, the Minister talked about the misery caused by people squatting in other people’s homes. The noble Baroness, Lady Miller, said that we are talking mainly not about homes—about which, of course, we all feel protective—but simply about empty properties. Amendments 36 and 37 try to deal with this by exempting properties empty for 12 months and not subject to a current planning application. Surely this is the least we can do to ensure that homeless people, the main group who will be criminalised by the clause, will be protected.
On Report, the Minister likened squatting to stealing a car, a handbag or a phone—but there are no wider social consequences if such consumer items are left abandoned for a year. In contrast, the Government acknowledge in their housing strategy that a large number of empty homes most certainly does have wider implications for the available supply of housing. They accept that we must increase the number of empty homes brought back into use as a sustainable way of increasing the overall supply of housing. You could say that squatters are doing it for themselves, rather than waiting for the Government to get round to it.
The Minister also said on Report that the definition of “residential” proposed by the noble Baroness, Lady Miller, would introduce confusion and complexity, but surely a more explicit definition in the Bill would clarify the matter and reduce the need to rely on the courts to interpret case law, as suggested in the Minister’s letter to the noble Baroness.
To the Minister’s credit, she did not pander to the kind of stereotype caricatures of squatters peddled in the right-wing media. She tacitly acknowledged that we are talking mainly about homeless people. I remind noble Lords of the figures supplied by Sheffield Hallam University for Crisis. These show that 41 per cent of homeless squatters report mental health needs; 34 per cent have been in care; 42 per cent have physical ill health or a disability; 47 per cent have experienced drug dependence; 21 per cent sometimes self-harm; and 15 per cent also have a learning disability.
The Minister pointed out that squatting is often dangerous and bad for health and ideally, she argued, people should be in mainstream services. I am sure that we all say amen to that. However, it is even more dangerous and worse for health to be out on the streets, and there is a growing number of people who are.
Mainstream services let single homeless people down. Crisis has stated:
“Shockingly 78% of homeless people who squat have approached their local authority for help and have been turned away without a resolution to their housing need. Single homeless people are usually not entitled to housing and although local authorities do have a duty to offer advice and assistance we know that too often this does not happen”.
I know the Government will be working with local authorities and that they have allocated additional funds. Can the Minister assure the House that these funds will be ring-fenced? At a time when local authorities have cut back on the support they provide, for example, for women fleeing domestic violence, have cut back disproportionately on the Supporting People fund, and face having to deal with the responsibilities from the delegated Social Fund—all at a time of big cuts in the finances available to them—I do not feel optimistic. That is why Amendment 41 is so important.
Another reason why it is very important that we have a tighter definition for this clause is because it might not be the end. In the summary of responses to the consultation, the Minister, Crispin Blunt, says in his foreword that this provision is “a first step”. The document says that:
“At this stage the Government will not seek to criminalise squatting in non-residential buildings”,
and that they will,
“continue to keep the law under review … to determine if any further action is needed”.
I find this very worrying. If we accept this clause unamended, we could be on a slippery slope to the criminalisation of all squatting in any kind of accommodation. At the very least, I hope the Minister can give an assurance that the Government will monitor the impact of this clause before they even start thinking about extending criminalisation to non-residential property.
We have been asked to adjudicate on very different perceptions of what is fair. It is too late to remove what I believe is a very unfair clause but it is not too late to mitigate its impact. We have a responsibility to do so.
My Lords, I wholeheartedly agree with what has been said by all speakers on this matter. For any new criminal offence to be created, or for any existing criminal offence to be extended, there is a heavy onus on the Government of the day to show that that is reasonably necessary. It is against that template that Clause 145 fails completely. There is a great deal of misunderstanding about the matter, which may very well have been deliberately fomented by the right-wing press. It is said to people, “What would you do if you were on holiday and came back to find that there were 20 people living in your house and having every intention of living there for ever?”. Of course, you would say it would be absurd for such a situation not to be visited by a criminal sanction—but it is already visited by a criminal sanction.
The civil law has catered for this situation—whether it be developed property or not—for a long time, since the early 1970s. Those of us who belong to the noble calling of the law will realise that Order 24 and Order 113 apply and provide a procedure that is swift, effective and cheap, provided it is competently carried out. There is no problem whatever so far as the civil law is concerned.
In 1977, with the Criminal Law Act that the noble Baroness has referred to, it was realised that there were situations where owner-occupiers were in fact trespassed upon in their own homes, normally when they were away for a day or two or where people were expecting to move into property but found that they could no longer occupy it. Section 7 of that Act said very clearly that it did not apply to non-residential property. A clear distinction was drawn and deliberately considered in detail by Parliament. That seems to have been a boundary of common sense, fairness and justice.
Why is that boundary being transgressed now? What is the case in favour of changing that boundary? It is my submission that there is no case whatever for doing it. The civil law amply provides for civil sanctions. If those are not obeyed, then of course the courts can always act on the basis of contempt of court. The punishments are severe, as we know. The criminal law deals with those cases when it is right, proper and inevitable that there should be a strict criminal sanction. It does not apply to non-residential property because it was never thought necessary that it should do so. The Government of course have issued a consultation paper on this matter, to which a substantial number of people responded—96 per cent of whom said there is no need to change the law at all. This is not a case of softness towards people who defy the law but a case of looking in a mature, fair, just and proper way at a problem. The conclusion of so many people in an excellent position to judge is that there is no need whatever to do anything. A letter in the press signed by 163 distinguished petitioners, jurists and academics, supported that view. The Criminal Bar Association, the Law Society and the Metropolitan Police supported that view. In relation to the consultation, the Metropolitan Police said:
“The Metropolitan Police, responding on behalf of the Association of Chief Police Officers, considered that the law was broadly in the right place and that the existing array of offences allowed them to tackle the worst cases of squatting (e.g. where squatters cause the rightful homeowner to be displaced) … They warned that new offences could have an impact on policing in terms of community relations, local policing objectives and cost”.
On the question of cost—and I have no doubt that other noble Lords will deal in some detail with this matter—it is abundantly clear that the Government’s own estimate of a cost of some £25 million to the public purse over a period of five years is woefully inadequate and entirely unrealistic. They have not taken into account the fact that tens of thousands of persons squatting do not apply for housing allowance. These cases, if people are ejected from their squats, will find their way into the courts. There will be massive expenses adherent to that situation. Again, there is little doubt that the figure of £25 million— I would not seek to try to set a specific figure—can probably be multiplied by 10 or 20, leading to a massive non-saving in a Bill that is dedicated to saving expense to the public purse.
I ask the House to consider one further matter. This is retrospective legislation. Clause 145(1) applies to a situation when a person, the defendant, has trespassed in the premises, knowing that he is trespassing. He may have entered 10 years before, when there was no such thing as a criminal sanction in relation to that type of trespass. That is retrospective legislation and that is what Parliament abhors and resorts to only in the most drastic of circumstances. It is the very thing that is condemned, as the House knows, by Article 7 of the European Convention on Human Rights.
All in all, this is a wholly unnecessary piece of legislation. It is utterly merciless, utterly unfeeling and utterly costly, and it is likely to be a heavy and unnecessary burden on the time and energies of the police. The next best thing to rejecting it would be to accept the amendments, which I support wholeheartedly.
My Lords, I congratulate my noble friend on her persistence in dealing with this matter and provoking some very powerful speeches from your Lordships, as well as making her own.
The issue is homelessness and housing supply. Whatever is being done now by the current Government, the stark fact is that at this moment the housing needed is just not there and cannot be created in an instant. Ordinary, decent, desperate people, whose motive is not envy, or to deprive others, or to make a political statement, are simply seeking a roof. Many of them would be regarded as vulnerable, in any normal sense of the word. Like my noble friend, I am interested in and concerned about the interface between these provisions and local authorities’ housing responsibilities —in particular, whether a conviction is needed for someone who has been squatting to be unintentionally homeless. How does all that fit together, and what guidance will be given to local authorities on this?
My noble friend trailed, perhaps a bit too enthusiastically, my reference to the definition of housing. I will not go into a lot of detail; I make the simple point that those who know housing law far better than I do advise that the terms used in this Bill are not ones normally found in legislation. To all lawyers, that raises a question—I can see nods coming from the Cross Benches. One term in particular is,
“for use as a place to live”.
In ordinary, common-sense terms, one understands that but we are talking about quite precise terms in legislation. The amendment as drafted may not be the best way of dealing with this, but it was an attempt to address the point using current legislation. My noble friend also referred to empty dwelling management orders and, like her, I am concerned to know what the Government’s intentions may be on the future of those orders, which are much underused. However, it seems that the Government are not very enthusiastic about them; they are of course a matter for local authorities.
Because of the time, I do not want to rehearse all the arguments that others have made fully, some of which I alluded to last time. However, I would like to ask about guidance to be issued regarding the new offence. Section 7 of the 1977 Act is, as we know, in force and I do not think there is any guidance regarding that. It is wider than this clause, as I understand it, because it covers ancillary land, and that answers the point about the necessity for this clause. I will not go further into that now, but how are the police and the CPS to choose which route to go and which section to use? We have just heard about ACPO’s response and its views, and I understand that the Government always issue guidance about a new offence. The guidance this time would need to go further, because it needs to be retrospective.
Finally, there is the question of commencement. In her Amendment 41, my noble friend has proposed that the section should,
“not come into force until”,
there has been consultation with,
“representatives of local authorities and”—
using language to which we have become accustomed over the years—“such other persons as” are considered “appropriate”. The term consultation here really does mean consultation. It does not mean just a period of grace or formality, because the consultees proposed in Amendment 41 are those who know the position on the ground. They know about the availability of conventional housing. To come back to the point from which I started, this is about housing supply and homelessness.
My Lords, it is unfortunate that the amendments tabled on this important subject by the noble Baroness, Lady Miller of Chilthorne Domer, should have been reached so late at each successive phase of our consideration—in Committee, on Report and now at Third Reading. It is unfortunate because the House is less full than it might have been, and it is much more difficult at this stage of the evening to win a vote on an amendment opposed by the Government. If it is unfortunate for her, though, how much more unfortunate is it for homeless and vulnerable people all across the country? They will be deeply grateful to her for the passion, determination and eloquence with which she has pursued this subject, and we ought also to thank her.
We face a housing crisis in this country, and that crisis is deepening. I am grateful to the noble Baroness, Lady Northover, for the letter that she wrote to a number of us following a debate on Report on squatting. She herself has acknowledged that while the nature of the case means that it is difficult to know precisely how many people may be squatting in this country, the best estimate by academics, homelessness organisations and people who provide advice services to squatters is that there are no fewer than 10,000 people squatting and possibly as many as 50,000. Those are large numbers and those statistics, uncertain as they are, underline the gravity of the issue all the same.
What are the Government doing to respond to this problem? It so happens that today the Government have published the national planning policy framework. It is an important document with an extended two-page section in which the Government offer their thoughts on:
“Delivering a wide choice of high quality homes”—
words that may sound a little hollow to those who are homeless and those who are squatting. However, there are good intentions in the document. It is a vigorous exhortation to all concerned to act to increase the supply of housing in this country. There is a section at paragraph 51 that is very relevant to the amendments tabled by the noble Baroness:
“Local planning authorities should identify and bring back into residential use empty housing and buildings in line with local housing and empty homes strategies and, where appropriate, acquire properties under compulsory purchase powers”.
If local authorities were to act on that exhortation, that would be helpful. I would be grateful if the Minister would say how much more the Government intend to do to translate that aspiration and exhortation into an effective and practical reality. I am concerned that even where local planning and housing authorities will wish, as I am sure they will, to increase the supply of housing available for people in desperate need and to follow the particular advice that I have just quoted, it may not be easy for them because their resources have been much reduced and we are now just entering a phase in which local authorities are having to face the first and biggest part of a reduction of some 30 per cent in available resources. If they decide that they would like to use compulsory purchase powers, it is not clear to me how they are going to be able to afford to do so.
The Government’s broader economic strategy has, unfortunately, squeezed both growth and confidence, as the Chancellor was driven to recognise last week. The upshot is that the housing market is pretty well dead in the water. People do not have the confidence to apply for mortgages and bankers do not have the confidence to offer them, so house builders cannot find a market. While the private sector of housing development is stagnant, the Government have seen it as appropriate drastically to reduce funding for social housing construction. In the face of a rising population and rising demand, particularly at the lower end of the market, we are seeing reduced supply. The consequence is that rents are rising, and in the face of rising rents the Government have also judged it right to cut housing benefit severely.
The Government have also introduced their new policy for council tax benefit—a fixed budget for each local authority to limit the total that it can spend on the benefit. Our late friend and colleague, Lord Newton of Braintree, whom we all miss so much, spoke on that very topic in our debates on the Welfare Reform Bill. He asked what the position would be if there was a fixed budget for council tax benefit in a local authority area but a factory closure meant that it had to be spread across a larger number of people. He said that it was mad—that was the word that he used—and I think it is.
The noble Baroness, Lady Miller, is absolutely right to pull us up on this and to insist that, in the face of these circumstances and against the background of these other policies, now is not the time to criminalise people who may be driven by circumstances to fairly desperate actions, and to squatting in particular. It is not the time to criminalise them if they squat in a residential premise that has been unoccupied for 12 months and for which there is no planning application. She is also right to ask the Government, at the very least, to postpone implementation of this clause until they have conducted a thorough consultation with people across the country and on the ground who understand these issues. It is of course late. However, if the noble Baroness decides to test the opinion of the House, I will enthusiastically support her.
My Lords, I shall add only a few sentences to what the noble Lord, Lord Elystan-Morgan, said about the undesirability of creating new criminal offences unless there is a substantial reason to do so. Surely that argument is doubly important when the offence carries a term of imprisonment, in this case of up to 51 weeks. We all know—I thought that there was general agreement on this—that short sentences are harmful, leading to greater recidivism on the part of those so imprisoned.
If we are to create these new offences, there have to be extremely powerful arguments in their favour, whereas here the exact opposite is true. I will not rehearse all the reasons that have already been given by noble Lords as to why these provisions are unnecessary and harmful. However, keeping houses empty for more than a year is to be discouraged. People whose homes are occupied by squatters already have effective remedies. In the consultation, not only were 96 per cent of respondents against the clause, but that included the substantial opinions of such organisations as the Law Society, ACPO, the Criminal Bar Association, Liberty, Shelter and Crisis. There is also the fact that homelessness is increasing rapidly. For all these reasons, I hope that the Government will see reason and accept my noble friend’s amendment.
My Lords, I commend the noble Baroness, Lady Miller, on her persistence in pursuing this issue. Over time, she has opened our eyes to just what is involved.
The noble Baroness, Lady Hamwee, raised the question of homelessness and housing supply. One of the things that worries me a lot is the number of blocks of flats that are blocked up over huge areas and have been, I should have thought, for a good 12 months. They are areas of housing that could have been redeveloped much earlier if there had been any sense of urgency about getting on with that sort of building. We all know that there is a great deal of replacement of existing buildings in this country; it goes on the whole time. We know that we are in a financial crisis and that there are many people out of work who do not have the money to pay rent. I commend noble Lords to remember that just outside our own door, at the entrance to the Underground, one can find signs of people sleeping there at night. They sleep on the cold stone with their tiny bits of property literally outside the entrance to the Underground and cover themselves up with cardboard boxes as best they can. It is hardly a good advertisement for what we are doing to help those who are genuinely homeless.
I would like the noble Baroness who is responding to the amendment to concentrate on how many premises remain empty when they could be inhabited by families. That is no doubt a factor that increases rents. I will leave it at that. However, I have certainly begun to think rather more seriously about the issue than I did when the noble Baroness, Lady Miller, first raised it.
My Lords, I, too, am very grateful to the noble Baroness, Lady Miller, for her determination to challenge what I still take to be the unintended consequences of Clause 145 regarding the further criminalisation of squatters, which is simply unnecessary. I do not want to repeat arguments that have already been made but this measure will have an impact on the care and support that the voluntary sector seeks to provide for the homeless in our cities. Like most cities, Leeds is seeing a steady rise in homelessness. The reasons for this are complex and the voluntary sector and the local authority are working hard to mitigate its effects, at least as regards providing mental health help for the homeless. However, we simply cannot provide accommodation for all street sleepers. Many homeless people are squatting in empty houses to avoid sleeping on the streets. This clause criminalises squatting, thereby affecting some of the most vulnerable people in our society. I hope that these amendments can be accepted to provide context and support for those people as the voluntary sector and local authorities seek to provide them with help and encouragement for the rest of their lives.
I wish to intervene briefly in this debate. I have come into the Chamber for the scrap metal debate but it seems to me that we may be overlooking a major flaw in the amendment. Clause 145 states:
“A person commits an offence if”,
and then lists various conditions. However, the amendment seeks to add to the statement in the Bill that,
“The offence is not committed by a person”,
“if the building has been empty twelve months or more and is not subject to a current planning application”.
So what happens if a building has been empty for marginally longer than 12 months and is being improved? Perhaps it is being improved to meet building regulations, or the person improving the property might be awaiting a mortgage payment to fund improvements, which might mean that they go over the 12-month period.
I will be corrected if I am wrong but I believe that that matter is adequately dealt with by Section 7 of the Criminal Law Act 1977, which covers not only persons who are in occupation but persons who anticipate occupation. I think, therefore, that the category of persons listed by the noble Lord will be covered by that provision.
That is the noble Lord’s judgment, but perhaps I may finish my contribution. Perhaps the Government intend to comment on the interpretation that he has just given. They might also take into account my further point that a planned improvement which has not taken place over a 12-month period could be the subject of an argument with neighbours, who may well be preventing the completion of the improvement to the property. All I am saying, basically, is that to introduce a current planning application as a way of stopping it could lead to unfair treatment of those carrying out improvement programmes. Let us hear what the Minister has to say.
My Lords, I should start by declaring an interest, or at least a former interest. In a previous life, I was a shareholder in and director of a company that made its money—in fact, quite a lot of money—from keeping squatters and others out of empty properties. You might conclude, when I have finished my short speech, that I am a bit of a gamekeeper turned poacher.
This clause was added late to the Bill, which might explain why it is a rather clumsy and blunt instrument. I am not sure who this new offence is aimed at. Is it aimed at squatters in vacant properties, who are not currently committing a criminal offence, or is it aimed at squatters in occupied properties that might be temporarily empty while the occupiers are on holiday, or even shopping? As we have heard, squatting such as that is already a criminal offence. I am not sure which situation this clause is intended to address. Perhaps the Minister will enlighten me.
This clause is a blunt instrument because its unintended consequence—and I sincerely hope that it is an unintended consequence—is to protect unscrupulous property owners who keep properties vacant for years for purely speculative reasons and, in the process, prevent homeless people having somewhere to live. The amendment deals with that by limiting the period of that protection. This clause is a cuckoo in the nest because such a provision has no place in the Bill and has no connection with any other part of it. Squatting should not be considered in isolation, as we have heard, but should be considered in the context of housing and homelessness.
My Lords, the House will be delighted to hear that I intend to be brief. It owes a huge debt of thanks to the noble Baroness, Lady Miller, for having persistently come back with her amendments on this absurd clause, which, as the noble Lord who has just spoken said, does not fit in. “Cuckoo in the nest” is a polite way of putting it. The clause does not fit into the Bill at all and makes one wonder why on earth the Government ever included it.
If the noble Baroness were to test the opinion of the House, we, the official Opposition, would support her because she is clearly right. Everyone who has spoken on the substance of these amendments has said that the current clause is unsatisfactory, wrong and completely unnecessary. Why is it there? There is no need for it to be there in terms of criminal offence. We have heard from the noble Lord, Lord Elystan-Morgan, and others that legislation already exists that covers the point completely. The clause is there to placate the right-wing press and right-wing prejudice. That is something that the House should bear very much in mind when considering this issue.
The Law Society, the Bar Council, ACPO and the Metropolitan Police—all those groups who have had the courage to speak out, as has the noble Baroness against the clause—are not exactly groups associated with squatters. They are independent, able groups that have come to a view about a brand-new criminal offence that is planned. Unless we do something about it this evening, it will almost certainly become law comparatively shortly.
The irony of our proceedings is that if the noble Baroness were to test the opinion of the House this evening, it would very likely be her own side who made sure that she did not win.
My Lords, at Report, I explained the role of the new squatting offence in giving greater protection to owners and occupiers of residential property who encounter squatters living in their properties. Various noble Lords have asked whether that is needed. Interestingly, only yesterday I received a letter from the deputy leader of the London Borough of Redbridge. He states:
“In one recent case in Ilford, a house owned by someone who had died became a squat during the eighteen months it was taking for lawyers to resolve her estate. In a second case a homeowner was no longer able to manage their own affairs and had been taken into care. In neither case was there an ‘owner’ able … to address the problem”.
The noble Lord is quite right to say that there is protection for a level of squatting, but, as I explained at Report and put in a letter, so I will not go into it again, the provision covers a number of additional areas where it is difficult to deal with squatters.
I know that many noble Lords, especially my noble friend Lady Miller, are concerned about the impact that a new offence might have on vulnerable people who squat. I thank my noble friend for meeting me last week, and my noble friend and my noble friend Lady Hamwee for meeting my honourable friend Crispin Blunt, my noble friend Lord McNally and me earlier today. Then and at the earlier meeting, my noble friend Lady Miller expressed concern about the possibility of a rise in demand for local authority homelessness services when the new offence comes into force.
We have already given assurances on the Floor of the House that we will work closely with the Department for Communities and Local Government to liaise with local authorities and the enforcement agencies prior to commencement to ensure that they are aware of the new offence. That is extremely important. We take very seriously mitigating any problems and we share my noble friend’s concern about the welfare of vulnerable people. However, allowing squatting to continue, sometimes in dangerous and unhealthy premises, cannot be the answer. Instead, we intend to continue to work with other departments, local authorities and homelessness services to ensure that vulnerable people are given the help and support they need to find alternative forms of accommodation.
Of course, as the noble Baroness, Lady Lister, emphasised, a number of those in that situation are suffering from mental or other problems. We have an obligation to them, as vulnerable members of society, to be properly housed. In squats, they have no protection. That cannot be right. The Government have already demonstrated our commitment to preventing homelessness by maintaining investment, with £400 million available over the next four years. We recognise the issues that single homeless people, in particular, face, and we are prioritising improvements in the help that they receive. The ministerial working group on homelessness has for the first time pledged that no one should spend more than one night out on our streets, supported by the new £20 million homelessness transition fund. The working group will publish its second report on preventing homelessness more broadly later in the spring.
Most of the money that goes to local authorities is not ring-fenced. The emphasis is on devolving to local authorities the responsibility for the people in the area. Given the lateness of the hour, I am very happy to write to the noble Baroness more specifically on that point if I have not got it right. I do not think that the money would be ring-fenced but, if I am wrong about that, I shall correct it in a minute or write to her. Nevertheless, that money has been identified to provide funding to address homelessness.
There is an ongoing debate about what you ring-fence and what you leave as the responsibility of local authorities. If you give them a responsibility to house their vulnerable local residents—or non-residents—they have to fulfil that obligation. It seems that a bit of clarity of thought is needed here. It is not appropriate to place the responsibility for a squatter on the shoulders of an individual who happens to have an empty property. If that person is well off, he should be paying his taxes, those taxes should go to society and society should look after its vulnerable people. Squatting is not the answer; nor is placing such a responsibility on the shoulders of an individual in that way. That is why it is important that we address squatting but, when a problem such as this is picked up, it is also important that we address the transition issues that my noble friend rightly identified. It is important to see what the implications are and that is why we have placed the emphasis on tackling homelessness. As I said, we have announced the first ever £20 million—
Yes, I would say so. I do not think it is right that people should live unprotected. For example, the noble Baroness, Lady Finlay, flags up monitors for heating systems and the dangers involved there. How can anybody be protected or have tenants’ rights if they are squatting? I think we owe it to our citizens to make sure that they are housed properly and that they do not live without that kind of protection, as is the case with squatting. Perhaps I may continue.
On preparing local authorities for commencement, we plan to do a range of things, including working with the National Homelessness Advice Service to provide training for local authorities, raising awareness through regional seminars and websites, and working with Citizens Advice to ensure that home owners and squatters are informed of the changes.
One or two noble Lords asked about the consultation. The vast majority of responses—1,990 out of 2,216—were received via the website of the campaign group Squatters’ Action for Secure Homes. That is fair enough. However, the remainder came from landlords’ associations, local government associations, law firms and so on. We also received responses from individual property owners who had first-hand experience of squatters in their buildings. I have just mentioned the letter that I received yesterday from the deputy leader of Redbridge Council which referred to a couple of cases and the impact on the areas involved.
I was asked by my noble Friend, Lady Hamwee, whether squatters who vacate their squats will be considered intentionally homeless. That is obviously a very important point. Section 191 of the Housing Act 1996 provides that a person becomes homeless intentionally if it is a consequence of something that he or she has deliberately done or failed to do. The accommodation that he or she has left must have been available for their occupation and reasonable for them to continue to occupy. Therefore, it is unlikely that a squat being occupied illegally could be considered as accommodation that is available to be occupied. I hope that my noble Friend is reassured on that point.
I was also asked about whether we could commit to working with Crisis, and we certainly will. We will involve Crisis when we are liaising with the local government department and local authorities on the implementation of the offence. It is very important that that is taken forward. I was asked about the empty dwelling management orders. In January 2011 the Government announced that we would be making changes to those orders. These proposals will limit the authorisation of interim EDMOs to those properties that have been wholly empty for at least two years. They will require local housing authorities to give property owners a minimum notice period of three months before applying to a residential property tribunal for an interim EDMO. They also require the local housing authority to provide all the information that it has on the empty property that is causing a nuisance to the community, and that the community supports the proposal for the local housing authority to take control.
I was asked by my noble friend Lady Hamwee about guidance for the police and the CPS. We will liaise with ACPO prior to commencement on the provision of appropriate guidance, including how the new offence will interact with existing offences in Section 7 of the Criminal Law Act 1977. There were various other points but I shall move on to Amendment 36 and the point about occupying buildings that have been left empty for a year or so.
As I explained, this amendment is problematic for a number of reasons. I explained this on Report and in my letter. There are many reasons why a residential building might be left empty for a year or more, and I have just referred to the letter from Redbridge. Clearly, if a property is inherited following a death or probate is taking a while to sort out, those kinds of issues may mean that a property is empty. Reference was made by my noble friends Lady Miller and Lady Hamwee to the definition of a building. I note that my noble friend has proposed a definition that would sit alongside the current definition in the Bill. We are concerned that that would introduce unnecessary confusion and complexity. We talked about this at our meeting this morning. I am happy to expand on that if required but it is five minutes to 11, so unless noble Lords want to come back to that, I urge them to accept the simplicity of what is there at the moment, which is the right way to go.
I commend my noble friend for her concern for a very vulnerable group of people. As I have just said, it is important to look at this with some clarity in terms of the social responsibility to individuals and how society should ensure that the vulnerable are cared for and housed properly, and that squatting is not the answer. I understand why my noble friend has tabled the amendments and her concerns about unintended consequences of legislation. I hope that she is reassured that we have looked very carefully at the issues that she has raised and that we have sought to address them, in terms of assisting vulnerable people. I therefore hope that she will be willing to withdraw her amendment.
My Lords, I am tremendously grateful to all Members of the House who spoke in this debate—which finally had the airing that it deserved, even though it was late—and to all Members of the House who stayed to hear it. It was an incredibly important debate about whether we should choose to criminalise a section of society. Many extremely good points were made and I will not rehearse them all at this hour. One theme that ran through all the speeches was that of unintended consequences.
I entirely agree with my noble friend that it is society’s responsibility to look after the vulnerable—and, I would add, the homeless. That responsibility does not include criminalising them; that is where we part company. However, I see that Amendment 36 is problematic, and I accept the criticisms around the definition of “residential”. We were trying to offer something that was slightly better than what was in the Bill.
Noble Lords concentrated on the issue of what people will do. As my noble friend Lady Hamwee said, the housing is not there and cannot be created in an instant. Therefore, there will be a group of people who will face very difficult decisions about whether to stay in a squat and be criminalised, to sleep rough or to present themselves to their local authority. We keep coming back to the issue of local authorities and consultation. I think that the Minister accepted that consultation with local authorities was the key. The House would feel very reassured if that were put in the Bill.
While accepting that my other amendments are faulty, I will seek in due course to test the opinion of the House on Amendment 41. In the mean time, I beg leave to withdraw Amendment 36.
Amendment 36 withdrawn.
Amendment 37 not moved.
Clause 147 : Offence of buying scrap metal for cash etc
38: Clause 147, page 133, leave out lines 34 to 39
My Lords, Amendment 38 is in my name and that of my noble friend Lord Berkeley. The Minister will recall that in the debate on Report on the exemption of itinerant collectors, exactly one week ago almost to the minute, he said:
“It might be that we will have to come back to this at Third Reading”.—[Official Report, 20/3/12; col. 878.]
This amendment gives the Government the further opportunity to think again about the exemption.
I need not repeat how pleased I am that the Government accepted the principle of cashless transactions and agreed with me that the LASPO Bill offered the means to implement it. Having got that right, however, why are they running the risk of undermining their own policy by creating this huge potential loophole?
The Minister will be aware that the exemption caused a mixture of bafflement and dismay—not just in the House, where the only noble Lord to speak in its favour on Report last Tuesday was the Minister, but throughout the scrap metal industry. Operators are almost unanimously of the view that the Government’s proposal to mandate cashless payment for the purchase of scrap metal must apply to all dealers, with no exemptions. They pointed out to me—and I suspect to many other noble Lords—that this view is strongly endorsed by sectors that are especially hard hit by metal theft: transport, the energy industry, local government, the Church of England, the War Memorials Trust and law enforcement agencies.
I shall not go over the same ground that noble Lords covered in last Tuesday’s debate but will confine myself to one or two observations. First, the exemption is unfair and discriminatory. It grants special privileges to those members of the industry who are most responsible for the problems of metal theft. The itinerant collectors do not all sell on what they have collected to reputable scrap metal dealers; some of the material is shipped abroad in containers. Others will launder the scrap metal they take to registered dealers, and there will be no way of knowing where it came from or whether it was stolen.
Ian Hetherington, the director-general of the British Metals Recycling Association, wrote in the latest issue of the trade magazine, Materials Recycling Week, that,
“the bill sends out a message that itinerant operators can operate outside the law. It provides a loophole for other unscrupulous operators and serves to undermine a legitimate industry that has spent hundreds of millions of pounds complying with environmental legislation”.
I shall ask the Minister three questions. First, is he able to give us any news tonight on the Government’s plans for replacing the Scrap Metal Dealers Act 1964 and will we see a Bill to do that in the next Session? Secondly, how will the five-year review of the offence of buying scrap metal for cash, as contained in Clause 148, work? Thirdly, can he give an assurance that applications for itinerant trader status will be monitored and, if there is an upsurge in them in order to get around the cashless provisions, that the Government will do something about it? If we do not get satisfactory answers, the Government are in danger of losing much of the good will that their welcome policy on cashless transactions has created by granting an exemption that pleases almost nobody and perpetuates the no-questions-asked philosophy. I ask the Minister to think again. I beg to move.
My Lords, I shall add a word or two to what the noble Lord, Lord Faulkner, said. When the Minister addressed the House last Tuesday, he made it clear, and I certainly accepted, that the exception is very much smaller than had originally been assumed by many of those who read the clause in the Government’s original amendment. It excepts a particular class of itinerant scrap dealer; namely, those who have been the subject of an order under Section 3 of the 1964 Act. I am sure that my noble friend is entirely right that that is a much smaller number of people than many had originally assumed.
I made such inquiries as I could to find out how many of these people there are and whether there is any recent trend in people seeking to include themselves in the loophole—as it certainly is—in the injunction for cashless transactions only. A good many authorities that were questioned were quite unable to supply the answer. That does not suggest that at the moment there are very many people who are subject to this. However—and this seems to me to be important—since it has come out that there is this one exemption from the requirement that dealings should be made otherwise than for cash, the numbers are increasing.
When the section that I referred to was originally enacted, it was with a view to exempting those who would be subject to an order under the Scrap Metal Dealers Act from the requirement to keep records of from whom they acquired the scrap metal and the nature of the metal. I remember that when I was first married, the children were fascinated because there was a man who went down the street with a horse and cart and used to shout out as he went down, which was imitated by the children. They thought he was saying, “Hey, Tubby the Tuba”. Of course, it was not that, but I do not know what he was saying. With that kind of dealer, one can understand the intention that he should not have to keep records. All he was doing was collecting people’s leaking kettles and other forms of waste metal from local householders. It is not like that now at all. It has developed in the 48 years since that Act was passed into an entirely different kind of trade. For instance, when the local authority in Birmingham was questioned, it said that in the course of a year it would normally see 10 or so new itinerant traders seeking inclusion in an order under the Act. In the past few days it has had no fewer than 12. They are already running into this loophole. They want to continue to be able to deal in cash. As the noble Lord, Lord Faulkner, has said, this is knocking a very large hole in the measures that we are taking to deal with what has become a very mighty scourge of the community in all sorts of ways.
The more widely this exemption is known, the greater the number of traders who will seek to bring themselves under it. That is what frightens me about this. The exemption does not allow them to go cashless; it is the exemption from other forms of control, leaving people able to continue to deal in cash for materials that will simply never be traceable. That has been defined as the heart of the problem. To their great credit, the Government have introduced a substantial measure, albeit short of the reform that I originally described some months ago as the amendment of the “Steptoe and Son” legislation of the last millennium. That will come, we have been promised that; but in the mean time, they are leaving themselves with a hole.
In addition to the points made by the noble Lord, Lord Faulkner, I have two questions. First, can the Minister explain why the Government are making this exemption? Of course, you could not have expected what I have called the “Hey, Tubby the Tuba” chap with his horse and cart to maintain records and pay by cheque—of course, long before there was any plastic money in the form of cards—and that may have been perfectly reasonable. All sorts of market traders now are able to take payments with the electronic equipment that is available. There is no problem with people like that being able to pay for their products and services and so on in that way. So why are we left with an exemption for people who no longer exist in the form in which they did when the Act was originally passed?
Secondly, how many of them will there be? What is the Government’s estimate of how many are going to, as it were, pour through this loophole in an effort to maintain what has been right at the heart of this burgeoning crime of the stealing of metal of all sorts? The consequences of that crime have been described over and over again, some of them extremely serious in terms of the damage to people, the inconvenience, the cost and so on. Why are we leaving this loophole and how many people are going to be subject to this exemption?
Like the noble Lord, Lord Faulkner, I have not found anybody who is concerned with this who has not been deeply disturbed by what is otherwise an entirely welcome piece of legislation, which we are very glad to see even at this fairly late stage in the passage of this Bill. Why is this loophole being left? It is going to be serious. It will increase and we will have to wait for months before we can get the new legislation in place that the Government have promised. I add my words of considerable dismay that we have this now. It may well be that there is something else that I have not understood about the exemption. If so, my noble friend on the Front Bench will no doubt tell us what it is. But at the moment there is not anybody concerned with the trade who for the life of them can see why.
My Lords, the Minister’s case last week was predicated almost exclusively on the basis that the group of people who were exempt was small in number. The noble Lord, Lord Jenkin of Roding, has driven a coach and horses through that argument on the basis of the research that he has done over the past few days. It is what we have repeatedly warned the Minister will happen; namely, that the trade will increase in the hands of the itinerants as against those who trade at the moment for cash in this area.
The questions that I asked last week remain unanswered. First, why do we have to wait for a five-year review? It is enshrined in legislation, is it not? Secondly, why can we not have a review, let us say, in six months? In the event that a review were to reveal that what the noble Lord, Lord Jenkin of Roding, has indicated tonight is true, what mechanism in legislation exists for repealing the provisions that have been driven through Parliament tonight, at nearly midnight, in what is, once again, a late night debate?
The question in my mind is simple: what could go wrong over the next few months? We know now that the itinerant trade will increase. We also know that it is distinctly probable that thieves who steal this material will sell it to itinerant traders who will find some way to break it up, to sell it abroad or to bring it into the market in a way whereby it cannot be traced. Under the new arrangements, it will be very difficult, as we move to greater itinerant control over the market, to track illegal material, which is the very reverse of the intention of the Government in introducing this legislation. It will also move more of the trade into the hands of traders who will not be making VAT returns. They almost exist in a shadow market of people who will always trade for cash and they will always find ways of trading for cash. Nor will they ever be accountable in any way to the Inland Revenue.
The noble Lord smiles in his seat as he dismisses this case, but I think that Ministers are totally out of touch with the real world out there of people who trade in cash and how they operate, and how they simply do not exist anywhere in official records. They are the people who increasingly will take over, as the noble Lord has just suggested, this trade.
We have also not considered the knock-on consequences on traders who trade currently on the margins of legitimacy and who at least could be more effectively regulated if the right regulatory framework was to be put in place at this stage when it is clearly not being put in place. Even at this late stage of this legislation, I believe that Ministers should reconsider the position.
The noble Lord is about to get up and he will tell us all that we have got it wrong; that we do not understand how the market works; that they will be able to regulate the trade; and that these people are already covered by existing legislation. Let me tell the noble Lord that we simply do not believe him. We believe that in a matter of months, or certainly within a few years, it will become quite obvious that this legislation is failing in its intent and it will no doubt be revealed in the tabloids. Stories will surface saying that despite the legislation that was introduced, the trade is still going on. The problem is that an accelerated approach has been taken to the legislating in this area without taking into account the need to accompany this legislation with other legislation, as well as reform of other legislation, as referred to by my noble friend in his earlier contribution.