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Lords Chamber

Volume 736: debated on Monday 23 April 2012

House of Lords

Monday, 23 April 2012.

Prayers—read by the Lord Bishop of Bath and Wells.

Deaths of Members


My Lords, I regret to inform the House of the deaths of the noble Lord, Lord Brett, on 29 March and of the noble Lord, Lord Ashley of Stoke, on 20 April. On behalf of the House, I extend our deepest condolences to the families and friends of the noble Lords.

Finance: Equity Markets


Asked By

To ask Her Majesty’s Government what assessment they have made of the findings of the Kay review of United Kingdom equity markets and long-term decision-making; and whether they intend to take any consequential action.

My Lords, the Kay review’s interim report, published in February, presented a discussion on a wide range of issues highlighted by respondents to the review’s call for evidence. It did not include any firm conclusions or recommendations. We expect Professor Kay to make the recommendations in his final report in the summer and it would not be appropriate for the Government to prejudice Professor Kay’s findings ahead of the final report.

I am surprised by the Minister’s appraisal of the Kay report. However, will she concede that the rules of corporate government in the UK are in need of drastic revision? Does she not recognise the virtue of restricting the voting rights to shareholders who have long-term interests in companies in which they have invested, and is it not clear to her that the advisory role of shareholders on remuneration gives them insufficient powers to constrain the exorbitant executive awards that we have seen in recent times?

My Lords, as the noble Viscount will know, the review forms a key part of the action taken following the department’s A Long-Term Focus for Corporate Britain: A Call for Evidence, which was published in October 2010. We are exploring the issues of economic short-termism in the UK alongside executive pay and narrative reporting. Of course we are concerned. We have put forward this independent investigation by Professor Kay so that the very points that the noble Lord has mentioned will be addressed.

My Lords, on 3 November in the other place, the Leader of the House, the right honourable Sir George Young, said that the Government were considering methods by which shareholders could become members of board remuneration committees. In this House on 30 January, the noble Baroness said that she would welcome employee representatives on board committees. Do those continue to be the Government’s positions and, if so, when will we see some action?

On the Government’s view on shareholder/worker representation on company boards and committees, we decided not to include such proposals in the packet of measures for greater transparency. However, Professor Kay’s independent report will inform all the Government’s judgments from this point.

My Lords, although I totally respect the view of the noble Baroness on premature discussion of the Kay report, does she not agree—a point with which I am sure the previous noble Lord would agree—that if markets are to take a longer-term view of investments, the fund management industry needs to change its method of remuneration so that fund managers are not rewarded by the short-term performance of the companies in which they invest?

My noble friend is right. We are looking at how the long-term proposals can be best served. Short-termism can be very advantageous, but it can also be dangerous in the long term, and we are only too delighted to support him in his view.

My Lords, the noble Lord, Lord Peston, will realise that there have already been two opening questions from the Labour Benches. It is now only fair that we go to the Conservatives.

My Lords, does my noble friend not recognise—I am sure that she does—that in times of low interest rates investors look for short-term and long-term reports, and that they therefore as a whole look forward to the report from Professor Kay and recognise that very little was done by the previous Government to address this issue?

My noble friend puts it extremely well. Of course short-termism and long-term planning go together. These are difficult times. We need to do the very best that we can. It is worth remembering that the United Kingdom has a world-leading corporate governance and company law regime. The World Bank rates the United Kingdom as the best place in Europe and the fifth best in the world for doing business. It is vital that the UK continues to be seen as world-leading in corporate governance.

I did not give way because I was under the impression that the coalition was still part of the Government. Whatever the state of play is on that side of the House, is not the best performing economy in Europe Germany, to take an obvious example? Short-termism is frowned upon in Germany, where the shareholders are committed to the firms in which they hold shares in the longer term, as are the workers. We advised the Germans immediately after we won the Second World War. They ended up rich and we ended up a comparative economic disaster. Is it not time the Government stopped holding back from taking a view on this and actually started, as my noble friend Lord Myners said, to do something?

I am interested to hear the noble Lord’s question. In the more than a decade in which his party was in power, it did absolutely nothing to advance from the position after the Second World War that he quotes.

Either I was too slow or someone else was too hasty. I am advised that the Kay report does not address the question of employee shareholders. Does that mean that the Government will reconsider their previous statements on employee shareholders?

As I have said and as I am happy to repeat, this is an independent report by Professor Kay. He is able to say what he likes on the whole of this subject and we look forward to what he recommends.

The challenge is how one incentivises people for longer-term thinking. The trouble is that if the quickest way of turning a fast profit in order to maximise one’s share options is to axe longer-term research and development, there will be no benefit to Britain in the longer term. One sees that happening too often. There are two sorts of shareholders and unfortunately the bigger lot are in there for the short term as well for investment purposes.

The noble Earl is quite right. We sell ourselves short if do not invest in the future and do not look at R&D. It is an important part of anyone’s balance sheets, certainly in the FTSE 100, and I am happy to agree with him.

Social Tourism


Asked by

To ask Her Majesty’s Government whether they will incorporate social tourism policies, such as the provision of holidays by the Family Holiday Association for people living on a low income, in future tourism strategies.

My Lords, the Government support the work carried out by organisations such as the Family Holiday Association which provides holidays for families who would not normally be able to afford a break away from home, but we do not hold the view that holidays are a right. We do, however, keep an open mind about future tourism strategies. Our current priority is to encourage the potential that tourism gives to help the growth of our economy.

My Lords, I thank the Minister for her Answer. Is she aware that there are more than 2 million families in the United Kingdom—about 7 million people—who never enjoy a holiday and who will probably never have one in their whole lives? Is she also aware that while social tourism has never had official recognition or been integrated into tourism policy in this country, in the European Union, several countries integrate it—notably France and Spain, but also Portugal, Greece, Germany and Italy.

My Lords, the noble Baroness, Lady Rendell, asked a similar Question in February 2010. I know she is a redoubtable campaigner on social tourism and is patron of the Family Holiday Association. The Answer, which was very succinct, said that,

“the Government understand the value of access to leisure and tourism activities”—

and we are aware of the 2 million who never have holidays. It continued:

“By providing support for those who need it most, we are committed to a society where everyone can engage in leisure activities, including holidays, if they wish. A good example is our policy of free admission to many national museums and galleries”.—[Official Report, 8/2/10; col. 478.]

The noble Baroness asked about Europe. The Governments of some European countries, notably France and Belgium, take an interventionist approach to social tourism by directly funding or subsidising people to take holidays. Such countries take the view that holidays are a right.

My Lords, would the Government consider setting up a working group to consider the social and economic benefits of social tourism?

I know that the noble Baroness, Lady Massey, was on the all-party group on social tourism. The Government were looking at this, but have not pursued it further. We are keeping an open mind and are aware of the European Calypso programme.

My Lords, I declare an interest as chairman of the Association of Leading Visitor Attractions and of the all-party tourism group. The proposed tax changes on air passenger duty, philanthropic giving to our great museums and galleries, restoration work for our major cathedrals, churches and historic properties and on static caravans all potentially have a negative impact on our very important tourism industry. Given that DCMS is a sponsoring ministry for tourism, could my noble friend tell the House whether it had any discussions before the implementation of the ideas of these tax changes?

The noble Lord asks a very relevant question. Regarding the tax changes, they are still very much in discussion. We are well aware that they have an effect on tourism and on many of the museums and galleries and all the charities that are involved with this. This is partly covered by the Treasury, but DCMS is very much aware of all this.

When 2 million people do not get a holiday at all and those who are in the top tax bracket are now getting £45,000 a year extra and will be able to go on more skiing holidays and Mediterranean holidays, how can we all be in it together? Will the noble Baroness not listen for once to what is being said by knowledgeable people in this House, take it away and do something about it?

Social tourism is for the less well off. The Government are involved with the Family Fund, a registered charity covering the whole of the UK and mainly funded by the national Governments of England, Northern Ireland, Scotland and Wales. The funding from all four Governments amounted to £35 million, and included £27 million from England.

I am sorry, we are being a bit slow on this side. Does the Minister accept the educational benefits of children and families travelling outside their own confined communities? Does she recognise the role that that might play in raising the aspirations of young people? Will she agree to talk to her ministerial colleagues in the Department for Education about the contribution that they can play in facilitating holidays for those too poor to afford a family break?

The noble Baroness raises a very good point. Such travel does raise the aspirations of children. Through our changes to the education and welfare system, we hope to overcome barriers to social mobility by giving families the power and resources to be able to go on holiday if they choose.

Immigration: Eurostar


Asked By

To ask Her Majesty’s Government what action they are taking to enable Eurostar to resume regular services between Brussels and Lille while avoiding any delays caused by immigration control being conducted at St Pancras.

My Lords, there has been no suspension of regular Eurostar services between Brussels and London which also stop at Lille. Following misuse of Brussels to Lille tickets by those seeking to avoid UK border checks, Eurostar has restricted the sale of tickets to casual travellers to three trains a day. Only these services are subject to routine immigration checks at St Pancras. We seek to keep delays to a minimum.

I am grateful to the noble Lord for his response but is he aware that the consequence of all this is that passengers coming into the UK from Brussels, Lille, Disneyland Paris and anywhere except Paris have to queue to get through immigration for between half an hour and one hour at St Pancras? I have queued twice and I saw lots of families travelling from Disneyland Paris, of whom probably 99 per cent were British, having to queue for an hour, which is rather hard on them. Why cannot the immigration service process passports on the train after the passengers have left Lille, as it used to?

My Lords, as the noble Lord knows, the ideal would be to process the passports at Brussels, which we try to do for seven of the 10 or 11 trains a day that go from there, stopping at Lille, that do not allow people to buy casual tickets. The noble Lord knows of the so-called Lille loophole, which we want to plug. As he has said, one solution would be to have staff on the train. We believe that that would be unnecessarily expensive and would not be cost-effective. We are talking about only three trains a day being affected by the Lille loophole. We think that we can continue to negotiate with the Brussels authorities to get them to allow us to do all the checks on all the trains, including the three on which casual tickets are allowed to be bought, at Brussels as would be appropriate.

My Lords, has the Minister been able to visit British Transport Police operations at St Pancras to look at what happens in relation to child trafficking? In a recent debate, he indicated that he would like to do so. My noble friend Lady Doocey pointed out that a number of simple steps could be taken to protect unaccompanied children coming into this country, including checks on the identity of such children and on the people collecting them, and a dedicated space on the train. Has he been able to follow any of those up?

My Lords, I have not yet been able to visit St Pancras but I certainly hope to do so. My noble friend’s question is going slightly wide of the Question on the Order Paper, but it is valuable in that it points to the need not only to maintain appropriate security to provide the proper checks and safeguards for those who potentially are being child trafficked but to be able to do that in as user-friendly a manner as possible so that the complaints to which the noble Lord, Lord Berkeley, referred do not happen as well.

Following on from my noble friend’s question, just before the Recess when we had a debate on human trafficking relating to Eurostar, I asked the Minister whether the Government would look at negotiating with the Eurostar authorities and the company which runs it to have the same arrangements as we have with airlines. Airlines are fined for bringing through children and adults who are to be human trafficked. The Minister promised to look at this and we have not yet received a reply.

My Lords, I will make sure that a reply comes to the noble Baroness in due course. Obviously, we continue to negotiate on these matters with Eurostar. I should point out that Eurostar is a private company and we cannot order it to close the so-called Lille loophole with which we are trying to deal. Certainly, we will try to get to other matters and will negotiate accordingly.

Will the Minister turn his mind to the situation developing as regards trains from Germany which stop at several places before going into the tunnel? The same problem that applies to Lille will apply to a lot of other stations on the continent. Better arrangements need to be made.

I am very grateful to my noble friend for raising that point. I understand that the German railways are already planning this and that there might be services from late 2015, so we have some time. He is right to point to the problems because of the confines of the concourse at St Pancras and other places, and the need to make sure that we can sort this matter out in the country of origin. That is relatively easy when you are talking about Brussels, Lille and London. It is considerably harder in the case of trains coming from a number of different stations in Germany. At that point different options will have to be looked at, but we have at least three years to do so.

My Lords, I declare an interest, having been through the tunnel over 1,500 times, getting to work here and going home again, and indeed having lived to tell the tale. The Minister said that the Government would be trying to set up a system whereby the border agency’s immigration controls would be conducted in Brussels. He must be aware that this system works extremely well in Paris; it saves a lot of time and there is absolutely no delay arriving in St Pancras. I hope that he will look into this and tell us what the problem is. They are very friendly people. This morning when I came through I was asked by the immigration officer what I was planning to do with the House of Lords Reform Bill. I declined to share my views with him, in the same way that at the moment I decline to share my views with the House on that question.

I commend the noble Lord on his diligence in attending this House and the frequency with which he has come through the tunnel. The system in Brussels works pretty well for most trains, in that most people go through the appropriate border security checks. The problem is that a number of people use Brussels to Lille as a commuter line rather than what it was originally designed for, a Brussels to London line. Those people are exempted from going through passport checks by the Brussels authorities and we cannot order them so to do; that is under EU rules. We therefore had to seek with Eurostar some solution to that problem, which does not arise in the case of those coming from Paris. There is similarly not a problem coming from London because, as the noble Lord knows, we do not allow people to use London to Ashford as a commuter route. It is the use of Brussels to Lille as a commuter route on that service that causes the problem.

My Lords, I am a little disturbed at the Minister’s complacency that we have got three years to sort this out. After all, the Government have had two years to sort out a range of problems, and the problems are getting worse rather than better. It is a very serious concern to all of us that a service that we are all proud of, the Channel Tunnel service, may in fact prove to be less advantageous to the travelling public in future because of these difficulties over passport checks. I hear what he says about additional expense, but if the expense is not borne by the service, it is borne by the travelling passenger having to wait for hours at the receiving station, St Pancras. Can he look at this issue with some urgency and produce a solution to it?

I commend the noble Lord on the urgency with which he got to his feet, along with his colleagues on the opposition Front Bench. They have obviously been well rested by their three weeks off.

We are not complacent on this issue. All I am saying is that there is a serious problem. Part of the problem relates to the design of St Pancras and getting the passport checks done there. We would therefore like to have the checks done at the point of exit. Obviously that problem is going to be made more difficult once one has trains coming in from Germany and other places. At that point, we might have to look again at having checks done on the trains. As I said—although the noble Lord has not been that speedy—we have three years to do this because we are not likely to see trains coming in from Germany until the end of 2015.

Workers’ Memorial Day


Asked By

My Lords, the Government extend their sympathy to all those for whom Workers’ Memorial Day is especially poignant. It is right to commemorate those killed, injured or made ill through work. The day also highlights the importance of good health and safety in the workplace. The Government continue to recognise Workers’ Memorial Day and consider that families and friends of those affected, and organisations representing workers, are best placed to decide how the day should be commemorated.

My Lords, I thank the Minister for his reply, which I take to be personally sympathetic to Workers’ Memorial Day—which, as he said, is about remembering those who have been damaged by health and safety failures, and renewing the case for good health and safety provision. The Minister will have been availed of the report of Professor Löfstedt, which the Government commissioned. It states that,

“the vast majority of employers and employer organisations acknowledged the importance of health and safety regulation in their responses to the call for evidence and felt that, in general, the regulations were broadly fit for purpose. During the course of my review, I have neither seen nor heard any evidence to suggest that there is a case for radically altering or stripping back current health and safety regulation”.

Does the Minister agree with that? If he does, will he encourage the Prime Minister to refrain from such unhelpful utterances as “killing off the monster of health and safety”, and to act responsibly in these matters?

My Lords, we are very supportive of the report by Professor Löfstedt. He made the point in the report that legislation,

“can contribute to the confusion, through its overall structure, a lack of clarity, or apparent duplication in some areas”.

That is why we are driving through reforms designed to make the system easy to understand, easy to administer and easy to enforce.

My Lords, does the Minister agree that one of the cruellest industrial diseases is the asbestos-related lung cancer mesothelioma, which can strike up to 40 years after exposure and has thus far claimed the lives of 30,000 workers? Is not one of the best things that the Government can do to support such workers is to respond positively to the all-party calls made in both Houses for mesothelioma victims not to have to face surrendering up to 25 per cent of their much-needed compensation to pay legal costs—compensation which they need in facing the last nine months to one year of their lives?

I am spending considerable time on mesothelioma currently and I hope to sort out the real problem, which is the large number of people suffering from the illness who are getting no compensation at all because they cannot trace who was insuring them. I hope to see some real progress in this area—looking at the whole area of mesothelioma, both those who have been traced and those who are untraced—and to report back on that in the not too distant future, certainly before the summer.

My Lords, when I was responsible for health and safety as a Minister I asked to see all the regulations applying to small businesses. There was a three-month delay, and when I asked why, I was told that the Health and Safety Executive would have to hire a pantechnicon to send them round. Is the Prime Minister not absolutely right to emphasise the importance of the culture of health and safety in the workplace, rather than masses of regulations that people cannot possibly be expected to absorb and comprehend?

Yes, my Lords, the Prime Minister is right: legislation must be comprehensible to people if it is to be useful. That process is currently under way, and we aim to reduce the legislation by up to half by 2014. We are confident that that can be done in a way that actually enhances the effectiveness of our health and safety regime.

My Lords, I thank the Minister for his sympathetic response. However, is he not aware that there is one organisation which represents organised employees in this country that has a system of training and of safety representatives that is well worth considering? I am, of course, talking about the TUC. Does he not think it a good idea to have some consultation with the TUC on these matters?

My Lords, I am pleased to say that alongside my colleague Chris Grayling I wrote to the general-secretary of the TUC on the matter of Workers’ Memorial Day. We are in regular contact with him on a large number of matters, and this is one of them.

My Lords, on the question of mesothelioma, to which the Minister referred a moment ago, can he indicate whether the ideas which he will be working on over the coming period will require legislation? If so, why are the Government not taking advantage of the legislation that is currently going through this House?

My Lords, it is possible, depending on the outcome, that we will need primary legislation on mesothelioma. However these things take time and we will have to structure any solution in consultation with the various stakeholders in order to get there. There is not time at the moment to attach any relevant legislation quite as rapidly as the noble Lord suggests.

My Lords, Professor Löftstedt said in his report that there needs to be general community support as regards an understanding of risk. I therefore welcome the Government’s establishment of the independent challenge committee which allows the public to make a challenge when they see a risk that they believe is not appropriate. Can the Minister tell us how that body will be independent given that its chair is also the chair of the HSE, and whether it will not require a wider reporting mechanism than that currently envisaged?

My Lords, my noble friend is absolutely right in the sense that it is often not so much what the regulation says as the way in which it is applied and used, and often those who are most shocked by how the regulations are applied are those in the HSE. This is a really valuable element of our society which has led to our having the lowest level of fatalities from workplace accidents in Europe. It is important that we concentrate this effort on where it really does save people’s lives. I think that the HSE does have an interest in making sure that that happens.

House of Lords Reform


My Lords, before formally moving the Business of the House Motion on the Order Paper, I should like to make a short business Statement about forthcoming business.

The whole House is now well aware that the Joint Committee on the draft House of Lords Reform Bill published its long-awaited report this morning. The Government are not only deeply grateful to the committee but would like to single out its chairman, the noble Lord, Lord Richard, for the time, effort and expertise that have gone into the preparation of this report. I know that the Deputy Prime Minister and his ministerial colleagues will be considering the report with great care before proposing a Bill to the Cabinet.

I am equally conscious that noble Lords around the House are eager to debate the report at the earliest opportunity. I have considered this with the usual channels and, although there will be plenty of opportunities to debate the report from the Joint Committee, subject to the completion of our legislative business by the end of Thursday of this week, I propose that we should start with a debate on the Joint Committee’s report, led by the noble Lord, Lord Richard, on Monday of next week.

I should add that should the Queen’s Speech on 9 May include a Bill to reform the composition of this House, there will be a further opportunity to debate the Government’s proposals in light of the Joint Committee’s report in the course of the debate on the humble Address—that is to say, in about a fortnight’s time. These two imminent occasions for debate may well be followed by others over the course of the next Session, for which I know a few noble Lords may be limbering up. I hope that we will manage to complete our legislative business by Thursday so I look forward to next week’s debate. In the mean time, I take the opportunity of reminding the House that copies of the Joint Committee’s report are available in the Printed Paper Office and, most importantly, on the Parliament website.

My Lords, I am grateful to the noble Lord the Leader for his business Statement and I welcome the fact that the Leader, with the agreement of the usual channels, is hoping to make time available for a debate on the report of the Joint Committee on the Government’s draft House of Lords Reform Bill. I am sure that the debate will also cover the alternative report, which was published today. However, I am sorry that the Leader of the House has chosen not to make a fuller Statement on the Joint Committee report today.

Before the Recess, I urged the Government both to make time for a debate on further reform of your Lordships’ House, which the noble Lord has done, and to recognise the fact that Members of your Lordships’ House would wish today, as the House returns from a prolonged Recess, to have an initial discussion on these issues. I recognise the fact that we will have many debates on this issue in the House in the weeks and months to come.

I think that this House, and indeed many beyond the House, will find it hard to understand why all sorts of people and organisations have been debating these matters today, and yet, apart from the noble Lord’s brief business Statement, this House is not afforded an opportunity today to speak further about the issue. Indeed, the Leader was on “The Daily Politics” show and in recent days we have heard many things about a revolt by Conservative MPs on the 1922 Committee. We have seen various reports of a revolt being joined first by MPs, then by parliamentary Private Secretaries—many things have been happening.

We have been told that the Deputy Prime Minister is saying that he “won’t go to war” over Lords reform and the Prime Minister spoke of the issue on the “Today” programme this morning. We have been told all this and more, but we do not have an opportunity to discuss these things today in this House. Of course, we will all need time to examine and consider the report of the Joint Committee and the alternative report of the minority group of the Joint Committee. I have read both reports and think that they are excellent and extremely important contributions to the debate on the future of your Lordships’ House. I thank the noble Lord, Lord Richard, and all those involved, for their hard work and commitment.

I urge all Members of this House and people beyond to read and study both reports closely because we need to get reform right, as the noble Baroness, Lady Shephard of Northwold, said today. We on these Benches regret that there was not a more formal Statement on these issues today, but we look forward to the debate in a week’s time.

My Lords, I am sure that all members of the Cross-Bench group wish to pay tribute to the noble Lord, Lord Richard, and all the members of his team—the committee that did this study—and indeed to the work of all the members in producing the extremely helpful alternative report. One waits for one report and two come along. This is a subject of immense importance to the citizens of our society. We owe it to them to make sure that Parliament is as effective as possible in holding the Executive to account and in scrutinising future legislation.

I am sure that members of the Cross-Bench group, who I have not had the chance to consult on this, are grateful to the usual channels and to the Leader for his Statement because we think that the report should be considered very carefully. I am sure that the arrangements for a debate next Monday will be welcomed by Cross-Benchers.

My Lords, I ask my noble friend whether it is the intention of the usual channels to permit the rising time for the House on Monday to be rather later than usual so that we can demonstrate that we in your Lordships’ House are very good at scrutiny. In doing so, perhaps I may also say how much as a member of the committee I appreciated the chairmanship of the noble Lord, Lord Richard. However, it is a very big report and if all of us who have different views, even among and within the parties, have only a few seconds to make our point on Monday I feel this would not be doing due deference or paying proper regard to the comprehensive report of the noble Lord. Therefore, can my noble friend let us please go to a later time on Monday evening. I feel sure there will be great enthusiasm in your Lordship’s House to go through the night, if necessary, on this issue.

My Lords, in welcoming as I certainly do the fact that the usual channels have set aside a day for this report, I ask for one further service to the House from the Leader of the House. He has already referred to the fact that there are actually two reports. There is an alternative view in an alternative report signed by 12 of the 25 members of the committee. If my maths is correct that means that if, you exclude the chairman, that is half of the committee—in my personal opinion, the best half of the committee. Can the Leader of the House ensure that the alternative report, as well as the full report, is made available in the Printed Paper Office to all Members? I do not think that facility is available at present.

My Lords, may I just ask another question? While this is a matter of great importance, there are other matters. Will the Leader of the House confirm that it will be a full day’s sitting on Monday and that the debate will be preceded by Oral Questions and that if there are any urgent matters that Members wish to raise they can raise them under the normal procedures of the House?

May I ask my noble friend a question, although it may be a naive question? Given that we had a manifesto commitment to seek a consensus on House of Lords reform and given that the Joint Committee is split completely down the middle, is that not the end of the matter?

My Lords, on St George’s day, and falling back on the line that I am very much a simple sailor, I am confused by the fact that half the committee effectively has an alternative view. I agree with some of the statements by other noble Lords that it seems to make a nonsense of this process. I am also very concerned, as I look in a simple way at next week, that there seems to be very little time in which to have a sensible debate about this issue.

My Lords, I am not at all surprised by any of the interventions that have been raised today. I am sorry that the noble Baroness is disappointed that there should not be a Statement. We have had the report for only a few hours and, after all, we are House that likes to have debates when we are informed. I thought that it would be better to give all noble Lords the opportunity to read the report before debating it next week.

I am at pains to suggest that next week will not be the only opportunity to discuss this report, or indeed the whole issue of reform. I am not one of those who wish to leak the contents of the Queen’s Speech, so I will not pre-empt it, but if a Bill on this subject were to be announced there would be plenty of time during the course of the Motion for an humble Address to debate it further. That will be in two weeks’ time. Between now and the Summer Recess, I am sure that there will be other opportunities if that is required. All that is to say that Members of the House do not need to rush to put their names down next Monday. The House will not prorogue next Monday. It will sit at the normal time for the normal business to be taken in the normal way.

As for the remarks of the noble Lord, Lord Grocott, I think that there were 26 members of the Joint Committee.

It may be that one never turned up, but he was still a member of the committee. I am sure that the alternative report will be discussed and debated, but I am afraid that I cannot commit the Printed Paper Office to publishing it. After all, it is a privately commissioned report, not a parliamentary report. I am sure that those who commissioned and wrote it will find it very easy to disseminate it themselves. Given the authority that they possess, I would be amazed if they were not able to do so.

As for what was said by my noble friend Lord Tyler, I have not considered the rising time of the debate on the report. Of course, much will depend on how many noble Lords wish to put down their names to speak. However, I see no reason for us to rise early on that day, and perhaps we can just take a view during the course of the week depending on how many names are put down, and given the opportunity that there will be to speak later on in the month.

It is right that we should debate it. As the Convenor of the Cross Benches, the noble Lord, Lord Laming, said, this is an important matter, which people want to have debated and discussed. As for the simple sailor, and my naive friend, the noble Lord, Lord Forsyth, I understand precisely why they might think, after nine months of deliberation, that there is still division and confusion on this issue. I think the Government should be congratulated on trying to cut through this to bring forward to Parliament something with clarity and vision. Parliament will then be able to decide what it wishes to do with it.

Before the noble Lord sits down, I hate to introduce a cynical comment into this very serious matter, but will it not be nothing short of a miracle if any noble Lord can think of anything original on this subject when we debate it next Monday?

For the avoidance of doubt, I am sure that the noble Lord is aware that copies of the alternative report are freely available in the Library.

Business of the House

Motion on Standing Orders

Moved By

That, in the event of the Sunday Trading (London Olympic and Paralympic Games) Bill [HL] being read a second time, Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Thursday 26 April to allow the Bill to be taken through its remaining stages that day.

Motion agreed.

Canterbury City Council Bill

Leeds City Council Bill

Nottingham City Council Bill

Reading Borough Council Bill

Motions to Resolve

Moved By

Canterbury City Council Bill

That this House resolves that the promoters of the Canterbury City Council Bill, which was originally introduced in the House of Commons in Session 2007-08 on 22 January 2008, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

Leeds City Council Bill

That this House resolves that the promoters of the Leeds City Council Bill, which was originally introduced in the House of Commons in Session 2007-08 on 22 January 2008, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

Nottingham City Council Bill

That this House resolves that the promoters of the Nottingham City Council Bill, which was originally introduced in the House of Commons in Session 2007-08 on 22 January 2008, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

Reading Borough Council Bill

That this House resolves that the promoters of the Reading Borough Council Bill, which was originally introduced in the House of Commons in Session 2007-08 on 22 January 2008, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

Motions agreed, and a message was sent to the Commons.

City of London (Various Powers) Bill [HL]

City of Westminster Bill [HL]

Transport for London Bill [HL]

Motions to Resolve

Moved By

City of London (Various Powers) Bill [HL]

That this House resolves that the promoters of the City of London (Various Powers) Bill [HL], which was originally introduced in this House in this Session on 24 January 2011, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

City of Westminster Bill [HL]

That this House resolves that the promoters of the City of Westminster Bill [HL], which was originally introduced in this House in Session 2008-09 on 22 January 2009, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

Transport for London Bill [HL]

That this House resolves that the promoters of the Transport for London Bill [HL], which was originally introduced in this House in this Session on 24 January 2011, should have leave to suspend any further proceedings on the Bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of Bills).

Motions agreed, and a message was sent to the Commons.

Legal Aid, Sentencing and Punishment of Offenders Bill

Commons Reasons and Amendments

Motion A

Moved by

That this House do not insist on its Amendment 1 to which the Commons have disagreed for their Reason 1A.

1A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

My Lords, today the House has the opportunity to consider the Commons reasons in response to the amendments passed by this House during its consideration of this Bill. We have engaged in complex, informed and sometimes passionate debate on a wide range of issues that are of fundamental importance. In so doing, this House has exercised its rights and responsibility as a revising and advisory Chamber. I would hope that, in turn, the Government and the House of Commons have responded attentively and constructively to the opinions of this House. In addition, my ministerial colleagues and I have had numerous meetings with individual Peers and interest groups. We have listened, and we have amended.

Before I deal with the details of Motion A, I would like to remind the House of some of the steps that we have taken to respond to its concerns and to make this a better Bill. From the start, our guiding principles have been to decide what kinds of case need public funding and what alternative routes are suitable for others. It is not all about cost savings, although they are clearly a vital factor; it is also about what kind of justice system we want for the future.

Successive Governments have concluded that the provision of legal aid in the current structure is too broadly drawn, and it encourages court-based litigation and the engagement of professional lawyers as a first, rather than a last, resort. With that in mind, the test that the Government have applied to amendments in both Houses is whether they strengthen or weaken the principles behind the Bill—what I have described many times as its central architecture. We have accepted amendments where they truly improve the Bill. The House has done much valuable work in correcting omissions and ensuring that the most serious cases continue to receive public funding, and I am grateful for the commitment that this House has put into the Bill.

As I have said, the Government have listened and have moved in important areas. We have accepted the arguments put forward by, among others, the noble and learned Baroness, Lady Scotland, and adopted the definition of domestic violence used by ACPO. We have widened the forms of evidence of domestic violence that will be acceptable to secure legal aid funding in private law cases, and doubled the time limit within which such evidence may be presented. We have removed the power to means-test suspects in police custody, and retained legal aid funding for cases involving human trafficking and domestic child abduction.

We have agreed that legal advice and assistance should be made available to welfare benefit appellants whose cases are heard by the Upper Tribunal, the Court of Appeal or the Supreme Court on points of law. We have committed to doing further work to see how we might provide funding for those appearing before the First-tier Tribunal whose case also turns on a point of law, and have retained legal aid for babies who are victims of clinical negligence. We have introduced further measures to put beyond doubt the extent of independence from Ministers enjoyed by the director of legal aid casework.

Many concerns have been listened to and many amendments made, but we have not been able to satisfy every demand. We have now reached the stage where the Government ask both Houses to disagree with amendments that, in our opinion, would undermine the rationale and principles underlying the Bill. The Government cannot accept amendments that use scarce resources on lower priority needs where other funding is available, where conflicts could be resolved by other means or where people can reasonably make provisions themselves. The Government have demonstrated their commitment to the not-for-profit sector, which does such invaluable work, by providing £20 million a year for the next two years, in addition to the £16.8 million we have allocated for this year. However, in a time of austerity, we must make responsible choices about spending public money. We must be rigorous in our decisions about allocating resources. We cannot rely on unrealistic thinking about alternative methods for achieving savings.

We have rehearsed the arguments at great length and in great depth. We are about to reflect on the House of Commons’ opinion of your Lordships’ amendments, and I will be asking the House to agree with the reasons of the House of Commons. I hope that this House will give good weight to that opinion. As I have said, we have listened and responded to the opinions of this House, which now has a responsibility to listen to the clear and settled view of the House of Commons.

If the noble Lord will allow me, he is saying that great attention has been given to the various issues that have been raised, for example by the noble Lord, Lord Alton. Is it not the case, however, that on some of these issues there was initially no debate in the Commons at all because it was programmed, and that when the matter returned from this House to the other place the Lords amendments were also programmed—that is, guillotined—and the debate was not brought to a conclusion in the usual way?

My Lords, the debates came to a conclusion in the usual way. I must say that for a parliamentarian of the noble Lord’s experience, who must have carried through quite a few Bills himself on timetables and the rest—

When I was in the other place, we had a very sensible system. If the matter was being filibustered or was urgent, we had a half-day debate followed by a vote on whether there should be a guillotine. In total contrast, when I was carrying through legislation we certainly did not have the system of programming from which we are now suffering.

I will leave it to the Opposition to explain fully the introductions that they made to timetabling,

I am most grateful for that flattering giving way. I point out to my noble friend that it was indeed a Labour Government who brought in automatic timetabling, but before the coalition Government were elected Sir George Young and others gave an assurance that any Conservative Government—or presumably any Government led by Conservatives—would not have timetabling. We still have it.

This is an interesting side issue. Anybody who has read the debate in the other place will see that the amendments passed in this House were thoroughly discussed.

My Lords, on the issue of parliamentary procedure, is the noble Lord really happy that the first four amendments from this place that the Commons considered had only 26 minutes allocated to them? The House of Commons was allowed fewer than five hours to debate the 11 issues on which this House defeated the Government and offered its very earnestly considered advice.

The Motion before the House is that we should deal with amendments that have come back from the House of Commons. If noble Lords wish to have a debate about process and procedure in the House of Commons, they can table questions and debate the issues. This is not the time for that; this is a time to deal with the amendments that we have before us.

My Lords, before leaving that point, it was the Minister who raised the question of procedure and who said that these matters had been thoroughly dealt with in another place. The fact remains that the issue of mesothelioma, which was quite properly raised by the Minister’s noble friend Lord Higgins, was not debated on Second Reading, in Committee or on Report at all in another place. Had it not been for the amendment that your Lordships passed, it would not have been debated at all in another place. To give it only one hour at that stage and for it again to be timetabled is indicative of the need to reform not this place but, in light of what we heard earlier, the other place.

The four interventions, interestingly, have all come from ex-Members of the other place.

Motion A and Amendment 1 in the name of the noble Lord, Lord Pannick, described by him on Report as a purpose clause, reflect that which features in the Access to Justice Act 1999. Amendment 1 would place a duty on the Lord Chancellor to secure within the resources made available and in accordance with Part 1 of the Bill that individuals have access to legal services that effectively meet their needs.

Despite what was said in the House of Commons by the shadow Justice Secretary, the basis for the Government’s opposition to this amendment has been clearly explained in this House. While I am grateful to the noble Lord for this new amendment, I am afraid that it has not addressed the issues with the original Amendment 1, and the Government oppose the new amendment on the same substantive grounds as we opposed the original construction. In addition to those issues which I will turn to in a moment, Amendment 1B would remove the duty in Clause 1(1) for the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of the Bill.

On Report I spoke at length about the technical issues with incorporating provisions of the Access to Justice Bill, where only excluded services are specified, to this Bill, where included services are specified. The Bill before us today, if enacted, will represent Parliament’s clear intention as to which services are to be capable of being made available to people by way of publicly funded legal aid services, and therefore to meet their needs in that regard. Any benefit of such a provision akin to that in Section 4(1) of the Access to Justice Act is simply not present in the context of this Bill. Further, both amendments conflate access to justice as a constitutional principle with the provision of legal aid. Access to justice means access to the courts, and does not mean access to a publicly funded lawyer whenever one is sought.

A further duty to provide unspecified legal services must also, in part, serve to muddy the waters and create uncertainty in respect of the services which might be funded under the Bill. It was said by the noble Lord when moving his original amendment that, as a result of the qualifications in it, the amendment,

“does not impose an independent duty which trumps the specific contents of Part 1”,

and that it,

“does not require any further expenditure by the Government”.—[Official Report, 5/3/12; col. 1559.]

I am afraid that we cannot agree with this analysis. By virtue of introducing a new duty on the Lord Chancellor, a potential cause of action must be created where such a duty is said to have not been met. Therefore, by definition, the Lord Chancellor must be at risk of being compelled to provide additional, and as yet unidentified, services to meet that duty or the duty would be a redundant one. This risk is heightened by the fact that both amendments refer to legal services, which are far broader than the legally aided services that the Bill is intended to provide. I acknowledge that this is the first time for the House to hear that observation. Such a scenario would entirely frustrate the Government’s intention of bringing certainty and clarity to the range of services that can be funded under legal aid. The amendment also has the potential to create a great deal of unhelpful and unnecessary litigation as the boundaries of that duty are tested in the administrative court.

The Bill’s purpose is clear, as are the Lord Chancellor’s duties under it. Therefore, I ask that this House does not insist on its Amendment 1. The Commons has decided against it and in my opinion the amendment in lieu from the noble Lord, Lord Pannick, will elicit the same response. Therefore, I urge the noble Lord to withdraw his Motion.

Motion A1 (as an amendment to Motion A)

Moved by

1B Page 1, line 5, leave out subsection (1) and insert—

“(1) The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part.”

My Lords, as your Lordships have heard, the amendment that noble Lords approved on Report by a majority of 45 votes would state the purpose of legal aid: to promote access to legal services within the financial resources that are made available by the Lord Chancellor and subject to the other provisions in Part 1 of the Bill. The amendment had its origins in a recommendation from your Lordships’ Constitution Committee, of which I am a member, and was tabled by noble Lords from all sides of the House—the noble and learned Lord, Lord Woolf, the noble Lord, Lord Hart of Chilton, who is also a member of the Constitution Committee, the noble Lord, Lord Faulks, from the government Benches and, of course, me.

The amendment echoes the wording of Section 4 of the Access to Justice Act 1999, which is the current statutory provision. It is similar to the statutory provisions that have been found in earlier legislation from 1949 onwards. The other place disagreed with this amendment after a debate that was restricted to 27 minutes—a point made by the noble Lord, Lord Higgins, a few moments ago. Those 27 minutes to which the other place was restricted concerned not just this amendment but two others approved in this House after Divisions and to which we will come. They concern the very important subjects of the independence of the director of legal aid and the mandatory telephone gateway, which we will discuss later this afternoon. All those subjects had to be dealt with in 27 minutes—hardly the thorough consideration that the Minister suggested in his opening remarks.

The Minister in the other place, Mr Jonathan Djanogly, and the Minister today have made four main points. The first, which was emphasised in the other place but has not been mentioned today, is that financial privilege was applied to the amendment. Your Lordships will know that financial privilege in the other place does not prevent your Lordships asking the other place to think again about an amendment. Financial privilege simply requires that the amendment be varied in this House from the original amendment. That is why the amendment now before this House is not exactly the same as that which was approved on Report.

I do not want to make this a debate about financial privilege but I hope I may be excused for saying that I know that many noble Lords were as surprised as I was that financial privilege was applied to Amendment 1. The original amendment made it very clear that access to legal services would come within the resources made available by the Lord Chancellor and in accordance with the rest of Part 1, and therefore that amendment had no financial implications whatever.

Your Lordships may also be interested to note that when I made these points to the authorities in the other place and I asked for a brief explanation of the reason for financial privilege being attached to this amendment, because neither I nor the others responsible for tabling this amendment could understand the point, I was told that no reasons are given for the decision on financial privilege. Again, I doubt that I am the only noble Lord who finds it very regrettable that this House should be told that financial privilege controversially applies to an amendment but noble Lords are not told why that is so.

However, that is a side-show. In any event, the amendment now before your Lordships responds to financial privilege, and it does so by making it clear beyond any possible doubt that the question of what financial resources to make available is a matter for the discretion of the Lord Chancellor and the Lord Chancellor alone. That is what the amendment says beyond any question. It also makes it clear that its terms and effect are subject to the provisions of this part—in other words, subject to the restrictions in the Bill on what topics are within the scope of legal aid.

Can the noble Lord explain what this amendment therefore adds to the provisions in the Bill? That is what puzzles me.

I was coming to that. If the noble Lord will have a little patience, that was the second point made in the other place. My first point, which I just want to complete, is that, with great respect, I do not accept that this amendment has any financial implications whatever.

The second point made by the Minister in the other place was that made just now by the noble Lord, Lord Thomas of Gresford. What is the point of this amendment? The view taken by noble Lords on Report was that now that legal aid is to be confined by this Bill, it is absolutely vital that we retain in the legislation a statement of principle that the purpose of legal aid is to promote access to justice within the available financial resources. That is important for this reason. The Government are proposing to limit legal aid by reason of current financial constraints and Parliament is accepting that. However, we all hope and expect that the economy will improve and, when it does, Clause 9(2) gives the Lord Chancellor a power to modify the substantive provisions of Part 1 to bring matters back within scope. When the economy improves, the case for relaxing the temporary limitations on legal aid should be considered by reference to principle, and the principle is that stated—I hope uncontroversially—in this amendment, which is to Clause 1 of the Bill. It is vital that this principle is not forgotten by reason of the temporary financial constraints under which we are all operating, and I can think of no better way of preserving the principle than setting it out at the beginning of the Bill. I happily give way to the noble Lord.

But is not the effect of putting this at the beginning of the Bill precisely what the Minister said—that is, it leaves it open to lawyers to bring applications for judicial review and to ask judges to determine whether the financial situation has so improved that the provisions for legal aid should be extended? Is this not just making more work for lawyers?

The noble Lord, Lord Thomas of Gresford, again jumps the gun. This is the third point that was made in the other place, which I was coming to and will now address—

I hope I am not jumping the gun, but I do not understand from what the noble Lord has said so far why the principle of maintaining the rule of law, a duty which is imposed on the Lord Chancellor, and a duty to secure access to justice under the Human Rights Act do not themselves adequately state the general principles within which this Bill needs to be looked at.

The answer to the noble Lord, Lord Lester of Herne Hill, is that we are dealing with a Bill that specifically relates to legal aid. It is surely appropriate to include in a Bill relating to legal aid the purpose of legal aid—and to say so in uncontroversial terms. Nothing is more likely to lead to legal uncertainty—the concern that the noble Lord, Lord Thomas of Gresford, has—than that these matters should be left somehow to be implied, in the context of legal aid, by reference to the Human Rights Act. That would seem to me most unsatisfactory.

I turn to the third point: uncertainty. It was a point that the Minister emphasised this afternoon—uncertainty and, as he put it, the spectre of litigation. I find it difficult to understand this concern, given that the amendment makes it clear beyond doubt, in the plainest of language, that it is entirely a matter for the Lord Chancellor how much money to provide for legal aid purposes. The amendment makes it clear beyond doubt that this provision is subject to the detailed provisions in the Bill which specify what subjects are within scope.

In any event, this concern about litigation is a particularly unpersuasive argument in the present context. As I mentioned, the substance of this amendment has been part of legal aid legislation for many years. If lawyers were going to make mischief by reference to this type of wording, noble Lords will recognise that they would have done so by now.

Finally, the fourth point that has been mentioned by the Minister this afternoon is that the other place is, of course, the elected Chamber and that we should defer to its judgment. For my part, I recognise that there is, of course, force in this argument. Noble Lords will wish to reflect carefully on this amendment, as on all the other amendments before the House this afternoon, before asking the other place to think again.

I suggest to noble Lords, however, that this is an occasion—on this amendment certainly—when it is appropriate to ask the other place to think again. The amendment now before noble Lords addresses the concerns expressed by the Minister, Mr Djanogly, in the other place. There is simply no substance to the Government’s opposition to this amendment. It raises an issue of principle of considerable importance and it involves no financial cost whatever to the Government. I beg to move.

The noble Lord, Lord Pannick, for the avoidance of any doubt whatsoever, has made it clear beyond peradventure in the drafting of this amendment in lieu that what he and the House have sought to achieve contains no threat to the Government’s public expenditure plans. The wording makes it clear that,

“subject to the resources which the Lord Chancellor decides, in his discretion, to make available”,

the Lord Chancellor shall exercise his powers to secure that individuals have access to legal services.

For the sake of a completely illusory financial requirement, the Government propose to impair a constitutional principle of the first importance which goes back not just to 1949, as the noble Lord, Lord Pannick, reminded us, but to 1215. That is the principle of equality before the law. It should not be in doubt that it is the duty of the Lord Chancellor to secure equality before the law. We all recognise that there are constraints in the present very difficult circumstances of the economy, and that we face an imperfect situation. But it must be right to legislate in principle to ensure that, in normal times at the very least—I would contend at all times—it is a paramount duty of the Lord Chancellor to secure equality before the law for all our citizens. It is no use the law declaring high principles of which citizens cannot avail themselves in practice if financial constraints and the lack of support through legal aid mean that they are not able to substantiate their rights in the courts.

I praise the noble Lord, Lord Pannick, for persisting in this cause. I very much hope that the House will want to support him once again in inviting the other place to think again.

My Lords, I support what the noble Lord, Lord Pannick, has put before us. Doing my very best, I have found it very difficult to find any reason why this amendment should not be accepted. Attempting to rely upon what was said in the other place just does not wash. If the other place had understood the purpose of the previous amendment, I do not accept that it could have treated it in the way that it did. I do not need to go into detail about that matter because the noble Lord, Lord Pannick, has, with his usual clarity, set out the position perfectly obviously. The situation is as he indicated.

In Bills of this nature, it is frequently the practice to assist those who will subsequently have to apply the legislation—or, if I may say so with feeling, interpret the legislation—by setting out the purpose of the legislation. The Bill makes that purpose clear in so far as there was any doubt about it. There cannot be said to be any financial commitment involved. I am at a loss to understand how the Lord Chancellor, having the responsibilities that he has for the administration of justice under the Constitutional Reform Act 2005, can use that as an excuse for, without justification, trying to impede the proper consideration of this amendment. It reflects no credit to the way in which that office is now being handled for the Lord Chancellor to take that position. Every word that the noble Lord, Lord Pannick, has said with regard to the four points that were taken is of substance. I hope that, even now, the Lord Chancellor will consider whether it is consistent with his responsibilities to take the position that was adopted by the other place after very brief consideration.

I remind the Lord Chancellor of the oath that he takes when he takes office, which is laid down in the Constitutional Reform Act. I ask him to consider whether the position that he has now taken is consistent with that oath. Section 17 of the Act requires him to,

“swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law … and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”

The purpose of the amendment is to give the Lord Chancellor scope to do just that.

I would have thought that the proper course was to welcome the amendment, having regard to changes in the situation that can take place in the future. Again and again, in the course of consideration of this Bill, it has been said on behalf of the Government that they are following the course that they are taking because of the financial situation in this country. That argument demands the greatest respect, but as the noble Lord, Lord Pannick, has indicated, this amendment does not interfere with the Lord Chancellor doing precisely that. It is said that it may lead to increased litigation. If that litigation were to take place, as far as I can foresee, it would have to be by way of judicial review and it is well known that judicial review has built-in protections to avoid the litigation process being misused. The requirement of leave would mean that proceedings which are initiated without cause would have a very short life indeed. The Government of the day would be entitled to get the assistance of the courts, which they would receive, to ensure that there was no misuse of those proceedings in these circumstances. I suggest that, if full consideration had been given to this amendment, it would not originally have been objected to or objected to now.

Given the noble and learned Lord’s huge experience in these issues, would he kindly tell the House whether he considers that this amendment does not place any Lord Chancellor in any jeopardy in respect of judicial review? If that is the case—that is what I understood the noble Lord, Lord Pannick, to say—does that not make the provision toothless?

No one can anticipate what might happen with regard to the conduct of a particular Lord Chancellor in the future. However, in regard to the fears that have been expressed, there would be no possibility of those being treated as appropriate cases for an application for judicial review on the facts that could be reasonably expected to occur.

On the purpose of the legislation, I would adopt what was said by the shadow Minister in the other place: that the amendment states a purpose because the provision is a statement of legislative purpose. As to having a statement of legislative purpose, in legislation of this nature it is done frequently, not for the purpose of providing an enforceable duty but so that it is known what the legislation as a whole is intended to do.

My Lords, the noble Lord who moved the amendment as well as the noble Lord, Lord Howarth, and the noble and learned Lord, Lord Woolf, have referred to the purpose of the amendment as the avoidance of doubt. I hope that in his reply the noble Lord will explain to the House exactly what is the doubt which the amendment is designed to remove and which, presumably, the Bill will otherwise create. If he can answer that question to my satisfaction then I might vote with him. Until that question is answered, I would be inclined to vote with the Government.

I regret that I have to disagree with the noble and learned Lord, Lord Woolf—I very rarely do. However, there is a statement of principle in Clause 1: it is that the Lord Chancellor must secure that legal aid is made available in accordance with this part. That is a very simple, short statement which would cause no judge any difficulty whatever in interpreting the provisions of the Bill. I said in Committee that the amendment then proposed was meaningless and added nothing to the Bill. I say precisely the same of the amendment as redrafted.

The amendment adds nothing, except this. I could be a very devious lawyer, and I might have a case for which I thought some funding was needed. So I might apply to the director of legal aid for special funding, knowing well that the case for which I am requesting funding is outside the legal aid scheme. The director of legal aid might say, “There is nothing special about this; I am refusing it”. I might then make an application by way of judicial review to the court, and I would get legal aid for that: judicial review carries legal aid. So I would get my money by making an application to the court for judicial review to say, “Look at this provision which the noble Lord, Lord Pannick, argues for: it is broad; it is wide; the circumstances of the country have improved; it is only reasonable that the director of legal aid should now grant me the funding that I need, or that the category of law with which I am now concerned should be brought within scope”. That is just one case. Other cases could then be brought forward in the same way.

Will the noble Lord explain how the risk to which he has just referred would be any greater than that which already exists in the words of Clause 1(1)—that the Lord Chancellor must secure that legal aid is made available in accordance with this part?

It says in terms that it must be in accordance with this part. As the Minister has explained, the Bill as drafted says what is in scope. The Access to Justice Act 1999 set out what was not in scope.

I am no expert in administrative law. However, my recollection is that that requires leave of the judge. If it is as spurious a case as the noble Lord has suggested, I would have thought that it would be likely to be rejected and that very little legal aid, if any, would be involved.

Why should one run that risk? Why should one have applications for judicial review being made based on the amendment as currently drafted? This adds nothing to the Bill. All it does is open an avenue for satellite litigation which should not be permitted.

My Lords, it would be a great disappointment to your Lordships’ House if you were to find that there was unanimity on these Benches. I am not going to disappoint your Lordships: there is not.

I agree entirely with the noble Lord, Lord Pannick—particularly in relation to the second and third parts of his speech—and also with the noble and learned Lord, Lord Woolf. In answer to my noble friend Lord Thomas of Gresford, I would say that Clause 1(1) contains absolutely no statement of principle whatever, whereas Amendment 1B does contain a statement of principle, albeit within the financial limits set by the Bill.

What I really wanted to do is say a few words about financial privilege. I suspect that there will be other noble Lords who were once Members of another place who, like me, have sat on the Reasons Committee. It is the Reasons Committee that drafts the reasons why the Commons do disagree with your Lordships' House. It sits in a room just behind the Speaker’s Chair. That room is known as the Reasons Room. Behind that Alice-in-Wonderland title lies an Alice-in-Wonderland process. In the Reasons Room, the Reasons Committee—which does not produce a Hansard record, or certainly did not do so in my time—produces reasons that, by and large, are presented on a piece of paper and nodded through. That seems to me to be what has happened here. The reason that is given is that,

“it would alter the financial arrangements made by the Commons”.

That is a statement of predictive certainty. What we have heard from my noble friend the Minister suggests that there might be a possibility at some stage in the future that some kind of judicial review action might, not would, have some effect on, not alter, the financial arrangements made by the Commons.

I echo the words of the noble and learned Baroness, Lady Butler-Sloss, about the process of judicial review. Every judicial review application goes in the first instance, on an entirely paper procedure, before a judge of the administrative court. As it happens, most applications—about 80 to 90 per cent—are refused on the papers and there is practically no expenditure upon them at all. I cannot see any circumstances in which it is more likely that judicial review proceedings would continue as a result of including this amendment in the Bill as compared with the Bill as it stands. As my noble friend Lord Thomas said, the Bill as it stands contains the potential for applications being made for judicial review against the exceptionality provisions and against a ruling that legal aid should not be given. What is proposed here hardly increases that risk.

I will give way in a moment; I shall just finish the sentence.

If the other place has got its reasons wrong then surely we are entitled to question those reasons in this House, and if the burden of the debate justifies it, to ask the other place to reconsider, on the basis that it has got its reasons wrong. I will give way to my noble friend now—but he does not want me to. I am glad that I have answered his question. I have nothing further to add.

My Lords, I rise in support of the noble Lord, Lord Pannick. I am concerned about the reasons given in the Marshalled List, and perhaps the Minister can help the House. What are the financial implications if this amendment were accepted? The reason given is:

“Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient”.

If that is the sole basis for rejecting the amendment—or if there is any other reason, any other sinister matter, that the Minister is concerned about—perhaps he will tell us.

The noble Lord, Lord Pannick, has told the House that there are no financial implications to his amendment. The amendment states that the Lord Chancellor shall exercise his powers under this provision in order to ensure that individuals have access to legal services, and that it is entirely within his discretion,

“and subject to the provisions of this Part”.

This is a very carefully drafted amendment. It secures the Government’s financial position. The ultimate discretion is the Lord Chancellor’s, and I find it very difficult to foresee, in reality, any other financial implication.

My Lords, I have supported the noble Lord, Lord Pannick, throughout the process of this Bill. I do so again and I will not take up time to enlarge on anything that has been said thus far in support of the amendment. I simply risk causing the Minister convulsions by drawing his attention to the clock and indicating that we are well on our way to doubling the amount of time that the Commons took to dispatch four of your Lordships’ amendments. It also had the temerity to adopt a programme Motion that caused Sir Gerald Kaufman to stop in mid-track when he was saying:

“It is out of order in this House of Commons to accuse anyone of hypocrisy, so I—”.—[Official Report, Commons, 17/4/12; col. 208.]

We shall never know what he was about to say, but it shows how well we attend to amendments in this House and how poorly they do so in the Commons.

My Lords, the whole exercise of this House examining the reasons given for rejecting an amendment from this place turns on the supposition in the first instance that the other place has in a mature, reasonable and well informed way applied itself to all the relevant issues. I therefore take very much to heart the submissions made by way of preliminary argument by the Minister. It is his case that the other place has done exactly that: namely, that it has looked in a fair, reasonable and mature way and has comprehensively dealt with those issues. I think that his argument is utterly fallacious in that respect.

Before using a word such as that, does the noble Lord not agree that there is a constitutional convention that—

It is exactly on the question of constitutional convention that I seek to address this House now. The Minister’s case, in so far as it refers to the Government having carefully considered the situation, is amply made out. I am sure that battalions or squadrons of legal eagles have been burning the midnight oil looking carefully at every word, comma and expression in these matters. I have no doubt that that has been done thoroughly and comprehensively.

However, has the other place thoroughly and comprehensively considered this matter? There has been a double guillotine. First, there was a guillotine in dealing with the issue because it could not be raised at Second Reading, in Committee or on Report. There was a second guillotine in the meagre ration of time—27 minutes—allowed for this amendment and two or three others. You would not hang a dog on such a procedure.

Therefore, on that basis, I make no apology for raising what I consider to be a fundamental constitutional point. We are dealing with the rejection by the House of Commons of a matter on which the time taken presupposes that its consideration could not have been mature and comprehensive. In addition, we have the reason given on financial privilege. I am as sure as I am that financial privilege cannot apply to this case because the very thing that it avoids doing is increasing the burden on the public purse. If I am right—as I understand it, that has been the rule since the end of the 17th century—it is not a financial privilege matter. Therefore, we have two constitutional issues. One is the lack of time and it being ridiculously limited in the other place. The second is the reason advanced; the very basis for refusing it cannot be sustained in argument.

Perhaps I may also challenge in a respectable, and I hope friendly, way the noble Lord’s contention that those of us who have had experience—in my case, it was a very long time ago—as Members in the other place are in some way tainted and disqualified from making contributions in this House on this matter. Is he saying that we should be silent? If this House is anything at all, it is a first-class reviewing Chamber. Is he saying that, as a reviewing Chamber, this House should not comment on such matters? If it does not comment on such matters, it does not deserve to be a reviewing Chamber or a court of Parliament at all.

My Lords, I will be very brief. I supported the predecessor of this amendment as it went through the various stages in your Lordships’ House. I did so because, for the reasons that have already been given, I thought it was an important statement of principle that ought to govern the way in which we considered the Bill and ought to be part of the Bill. I remain of that view.

It seems that the real reason for the objection to this amendment is the fear of judicial review, or the rather vaguely described “satellite litigation”. I understand why government lawyers, who are not always right about everything, may consider that there is a risk of judicial review in all sorts of situations: because of the ingenuity of lawyers and perhaps the flexibility of the Human Rights Act. However, given the way in which it is currently framed, it seems absolutely hopeless to think that there could be judicial review in these circumstances. The amendment as formulated makes it entirely clear. We are all familiar with provisions with no such discretion or reference to the Lord Chancellor or the Secretary of State, in which case courts have sometimes said that it is an absolute duty. However, with this proviso it is almost as though the Government have had the benefit of the noble Lord, Lord Pannick, advising them on how to make the matter proof from judicial review.

My Lords, I went to the other place to hear our amendments debated. As I am not a former Member of the other place, perhaps my noble friend will take it from me that its consideration of some of our amendments was cursory—and that is putting it quite generously. I admit to being very disappointed that, on such an important Bill as this, the other place allowed so little time for consideration of these amendments that one cannot say that they scrutinised the amendments with the seriousness with which we try to scrutinise.

Having said all that, I am still mystified by this amendment. I agree with my noble friend Lord Faulks, and consequently with my noble friend—well, he is a friend but he is not a friend—Lord Pannick. It seems clear—indeed it was part of the case made by the noble Lord, Lord Pannick—that there is no prospect of judicial review, and he has designed this amendment to cut out that prospect. However, to the extent to which he has been successful—and I think he has been—it makes the clause ineffectual. It has absolutely no practical effect. I am afraid that it is admirable in sentiment but ineffectual in purpose and therefore should not be in the Bill.

My Lords, my noble friend Lord Hart inadvertently stole my opening line about the time we have spent debating this amendment. I could also point out that we will take little less time to vote on this amendment than the other place took to discuss, and allegedly debate, all four of the amendments about which we have heard.

The noble Lord, Lord Thomas, has entertained the House by conjuring up a vision of an army of devious lawyers mining the rich seams of the potential availability of legal aid for the purpose of pursuing claims for judicial review. Others of your Lordships have rather demolished the thrust of that argument, which in any case might be thought to be somewhat fanciful, especially in the light of the quite appropriate reference made by the noble Lord, Lord Faulks, to the fact that the amendment incorporates specific reference to the discretion of the Lord Chancellor. With respect to the noble Lord, Lord Thomas, there really is no substance in his objection to the amendment as it has been moved.

In relying once again on financial privilege—when it could have been waived and substantive arguments put in the form of a Motion asking this House to reconsider the amendment—the Government seem to be succumbing once again to the temptation of relying on this way out of a difficulty. They are becoming addicted to the use of financial privilege as a reason to reject amendments from your Lordships’ House, and that cannot be a satisfactory basis for dealing with significant matters of this kind. Therein lies the strength of an argument about financial privilege when, in dealing after a fashion with the amendment in the House of Commons, the Minister, Mr Djanogly, made one of his principle objections: that the Government,

“are concerned that the amendment replicates what is already in place”.—[Official Report, Commons, 17/4/12; col. 201.]

If it replicates what is already in place, how can it conceivably add to the Government’s expenditure? It is a ludicrous proposition in an attempt to have it both ways.

For that matter, those who argue that judicial review is something to be avoided seem to have forgotten that when we were discussing the position of the director of legal aid casework—the DOLAC amendment; we will come later to a welcome acceptance of an amendment in that respect—it was argued that judicial review would be available to those who sought to make a case for legal aid in exceptional circumstances. At that point, it was to come to the rescue of people who were being denied legal aid and was something to be embraced. Today, however, for the purposes of this amendment it is an issue that could be deployed against the amendment of the noble Lord, Lord Pannick.

There is no question that the purpose of this amendment is clear. It is declaratory, but it is important to be declaratory about important principles, and for that reason the Opposition wholly support the amendment.

My Lords, I will explain briefly why I do not agree with the amendment. I quite agree with those who have said that it is inconceivable that it will give rise to effective judicial review because it imposes no legally enforceable duty and it is therefore inconceivable that anyone could threaten the Government by way of judicial review. However, my problem with it is that it imposes no legal duty and then does nothing else.

The amendment begins:

“The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services—”.

Pausing there, it is of course already the Lord Chancellor’s duty to do so under the Human Rights Act, as I pointed out in a brief question to my noble friend and colleague Lord Pannick. Under that Act, the Lord Chancellor has to act in a way that is compatible with Article 6 of the convention, which secures a right of access to justice. Existing law and Section 3 of the Human Rights Act require that all legislation, including this Bill, must be read and given effect in so far as it is possible to do so compatibly with the Human Rights Act. That first part of the amendment is already fully taken care of by that Act. In so far as the rule of law is in play, it is also taken care of by the Constitutional Reform Act.

The amendment goes on:

“that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.

That completely swallows up any suggestion that this is some new, important principle. I am afraid it is written in water and I do not approve of putting anything in the statute that is simply an unenforceable duty written in water.

My Lords, we have had a very interesting debate on this. I hope when the noble and learned Lord, Lord Woolf, has time to read his own remarks, which contain some fairly harsh strictures about the Lord Chancellor, he will reflect that the question of financial privilege is not a matter for the Government or for the Lord Chancellor. As the Clerk of the Commons explains, an amendment that infringes privilege would be the only reason that would be given. That is because giving other reasons suggests either that the Commons has not noticed the financial implications or that it somehow attaches no importance to its financial primacy.

We had a debate very like this one when we discussed the Welfare Reform Bill. I do not have figures at my fingertips—perhaps we can give the noble Lord, Lord Hennessy, the task of looking at the record of respective Administrations in using financial privilege—but when we last discussed the matter it was made clear that this is a matter for the Commons. As the Companion states:

“Criticism of proceedings in the House of Commons or of Commons Speaker’s rulings is out of order, but criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons”.

I think noble Lords have exercised that procedure today.

My Lords, the Minister said that financial privilege is not a matter for the Government but for the House of Commons. We understand—we are very familiar with the convention—that when the House of Commons rejects a Lords’ amendment it may state reasons of financial privilege and give no further explanation. However, that does not explain or justify why the Minister, Mr Djanogly, in opening the debate on the Lords’ Amendment 1 last Tuesday, began his speech by drawing to the attention of the other place that:

“Lords amendments 1 and 24 impinge on the financial privilege of this House. I ask the House to disagree to them and will ask the Reasons Committee to ascribe financial privilege as the reason for doing so”.—[Official Report, Commons, 17/4/12; col. 200.]

That was his argument, essentially because he could not think of a better one. It is very unusual for the Government to rely blatantly on financial privilege during the debate.

We have to contend with a new situation. We are not criticising the constitutional arrangements, the conventions or the manner of the relationship between the two Houses, but we are saying that the Government should not hide behind this formula, this antique convention, but should deal fairly and squarely with the merits of the argument.

The noble Lord, Lord Howarth, has wandered—I shall come to some of his comments later—into interesting fields. The financial privilege of the House of Commons may be antique, but as an old House of Commons man I am rather attached to financial privilege. Kings have lost their heads and revolutions have taken place to protect financial privilege and I do not airily sweep it away as an antique remnant of a bygone age. It is an important part of the relationship between the two Houses.

Can the Minister explain how financial privilege applies in this case? Of course the Bill concerns public expenditure, and in that sense financial privilege applies, as it does to virtually every item of legislation, but how do the Government contrive to justify making it the basis of their argument to Members in another place? They asked them to reject the amendment on the grounds of financial privilege as if it were at risk of incurring unaffordable increases in public expenditure, which is simply not the case.

My Lords, we can go round in circles. The qualification of financial privilege is a matter for the Clerks of the House of Commons. Former Mr Speaker Martin, when we last discussed this matter at the time of the Welfare Reform Bill, made very clear where the line is drawn.

I might not have had as long and continuous a place in the House of Commons as my noble friend but I have been around this place for the past 40 years, and one of the reasons why I teased some former Members of Parliament is that for the past 40 years, under various Administrations, I have heard these debates about the paucity of the way in which the House of Commons discussed a matter and the brutality with which the guillotine was used. That may well be one day—perhaps soon—the reason for a proper parliamentary reform Bill that takes in both Lords and Commons, but it is not an excuse for assuming that somehow, on this particular Bill and this particular issue, the Government are using chicanery or arguments that are not well understood in the relationship between these two Houses.

I also point out to the House that the one thing I have not done, and certainly did not do in my remarks at Report stage, Third Reading or today, is to hide behind financial privilege. I do not think that the Pannick amendment stands up to scrutiny and I was grateful for the contribution of a number of my noble friends in that. Part 1 of the Bill, the Lord Chancellor’s functions, states:

“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.

This seems to me a very clear statement of intent. The difference between the Act being replaced and this Bill is that the Act being replaced is an open-ended Act. It does not restrict where legal aid would apply. The whole point of the Bill—what makes it different from the previous Act—is that it limits, specifies and draws attention to where legal aid will apply and what will be out of scope. That is the danger of the Pannick amendment—that in its general good will to all men approach, it leaves the idea that things may be added. Indeed, both the noble Lord, Lord Howarth, and to a certain extent the noble Lord, Lord Pannick, said that when better days are here this whole circumstance may change. It may change, but not under a vaguely-worded Part 1 of the Bill. We have, in the course of the Bill, accepted an amendment from my noble friends that removed the ratchet and left a regulator in terms of what can be put back into the Bill, but that will be a matter for reflection and discussion in the future.

What worries me is that all the learned Lords who have spoken may be absolutely right, and if they are right we will all live happily ever after. But if they are wrong it is a future Lord Chancellor and the taxpayer who will have to pick up the consequences. Therefore, I think at this stage in the passage of the Bill, the Lord Chancellor of the day and the Government of the day see dangers in what, if it is anything, is either meaningless or has a meaning that has implications for the future; and if it does have implications for the future, in a Bill structured in this way, I think we are right to resist it.

I hope noble Lords will agree that the Lord Chancellor of the day and the Government of the day could and should have a sense of responsibility and care for the central architecture of the Bill, which we keep on talking about. The Bill is not open-ended but specific and the Pannick amendment is not something that should show on the face of the Bill. I hope that noble Lords reflecting on this, and the fact that it has been well considered and well debated and that I have not tried to hide behind financial privilege in addressing your Lordships either previously or today, will support the Government and the Commons in their amendment.

I am grateful to all noble Lords who have spoken in this full debate. I am grateful to the Minister for his consideration of the amendment and for meeting me last week to discuss the issues raised. The other place rejected the amendment and the Minister invites the House to reject the amendment because of a concern or belief that it would impose further obligations on the Government. In this House, a number of noble Lords objected to the amendment on the precisely opposite ground that it would impose no obligations on the Government. Perhaps I may briefly reply to both those concerns.

First, on the concern that the amendment would impose further obligations and would somehow undermine the architecture of the Bill, to use the Minister’s words, with great respect I have enormous difficulty in understanding those concerns. I could understand the concern if the amendment had any adverse financial consequences, but it plainly does not. It says,

“subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.

I am very grateful to the noble Lords, Lord Faulks, Lord Carlile of Berriew and Lord Phillips of Sudbury, for their views, which I share, that it is impossible to understand how in the real world this amendment could result in litigation that had any prospect of getting off the ground—certainly any more so than the original Clause 1. So the only possible objection to the amendment is that it does not impose further obligations on the Government and that it does nothing. That was the point made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Lester of Herne Hill, and was a concern expressed by the noble Lord, Lord Phillips of Sudbury. I say to those noble Lords and to the House, with great respect, that that is to misunderstand the purpose of an objects clause. The purpose of the amendment is to ensure that the Bill recognises that we are cutting back on legal aid, most regrettably, because of current financial stringency, but that the principle of securing that individuals have access to legal services that effectively meet their needs, which has been part of our law since 1949, has not been forgotten. It is still the purpose of legal aid and, when the economy improves, that is the principle by which Ministers and Parliament should assess—

I hate to stop the noble Lord’s flow, but he has just put his finger on it. This is not an interim, pro tem measure, waiting for a return to the 1949 Act. Although, as I mentioned in my opening remarks, financial considerations of course have played a part, the main intention of the Bill is to restructure, reshape and re-point the direction of legal aid away from the open-ended nature of the 1949 Act and successive Acts and put it into a closed system. It is that closed system that the noble Lord’s amendment, with great skill aforethought, plans to undermine. That is why we are resisting it.

I entirely accept the Minister’s point that the Bill seeks to identify those subjects for which legal aid should be made available. But the Minister will recognise that, in the anxious debates that we have had through the progress of the Bill, we have considered a number of sensitive topics in respect of which the Minister’s argument has been that we would like to provide legal aid for this subject but, regrettably, we cannot do so because we do not have the money under the current financial stringency. The House has listened to that debate and accepted, with a heavy heart, that in relation to many of the subjects in respect of which legal aid has previously been made available it will regrettably no longer be made available. Having accepted that the Government must have their way for financial reasons on many of those very difficult areas, I believe that it is absolutely vital that we retain in this Bill a statement of the principle of why legal aid is made available so that when the economy improves—

I have given way to the noble Lord before. I anticipate that the House is anxious to move on. The House has heard the debate in relation to this matter. I say to the House that that part of the 27 minutes which the other place devoted—I am not giving way—

The House wants to move on. That part of the 27 minutes which the other place devoted to consideration of this amendment shows that the purpose and effect of this amendment were not understood. I think that we should ask the other place to think again on this important matter, and I wish to test the opinion of the House.

Motion B

Moved by

That this House do not insist on its Amendments 2, 194 and 196 to which the Commons have disagreed for their Reasons 2A, 194A and 196A, do not insist on its Amendment 192 and do agree with the Commons in their Amendments 193A, 219A and 220A.

2A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

193A Line 2, after “means” insert “any incident of”

219A Line 2, after “means” insert “any incident of”

220A Line 25, after “means” insert “any incident of”

194A Because it is appropriate for provision about forms of evidence of domestic violence to be made by regulations.

196A Because it is not appropriate to prevent a time limit being imposed in respect of evidence supporting an application for civil legal aid under paragraph 10 or 11 of Part 1 of Schedule 1.

My Lords, Motion B contains amendments in relation to domestic violence. As I have previously made clear, the Government take domestic violence extremely seriously. We fund a range of programmes to help deal with and prevent this crime, many of which—I am happy to acknowledge—were put in place by the previous Administration. As the noble and learned Baroness, Lady Scotland, has previously made clear, there is nothing between the Government and the Opposition in principle here.

This was reflected in our initial proposals. First, legal aid to obtain a protective injunction against domestic violence should remain exactly as it is at present, so that those who need legal aid to protect themselves can get it regardless of their means. Secondly, while we have removed most of private family law from the scope of legal aid in favour of funding mediation and less adversarial proceedings, an important exception should be made for victims of domestic violence. This was because such victims could be intimidated during court proceedings about, for example, child contact or maintenance issues. Again, it is fair to say that these principles were welcomed.

There has been considerable debate in both this House and the House of Commons over how to decide who qualifies as a victim of domestic violence for the purpose of legal aid for private law family proceedings. Therefore, there has been much scrutiny of the definition of domestic violence used in the Bill, the types of evidence that would prove that someone was a victim and the length of time for which these should be valid. The contributions across the House have been informed, sometimes passionate and extremely helpful. The Government have listened and moved on several key points.

As set out in government Amendments 193A, 219A and 220A, we have accepted the ACPO definition of domestic violence in full. The Bill now defines domestic violence as,

“any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other”.

This has been universally welcomed. We have also undertaken to widen the list of evidence, which will be reflected in regulations, to include: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, and where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.

These are in addition to those forms of evidence already accepted by the Government, which are: that a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party for the protection of the applicant is either in place or has been made in the past 12 months; a criminal conviction for a domestic violence offence by the other party against the applicant; ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; evidence from a multi-agency risk assessment conference of the applicant having been referred as being at risk of domestic violence from the other party and action recommended; and a finding of fact by the court of domestic violence by the other party against the applicant.

On time limits, we intend to double the previously announced time limit from 12 months to two years, save in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one. We think that some sort of time limit will still be needed—we are in the business of reducing rather than encouraging litigation—but we think that two years will make sure that those who need help get it.

I know that the noble and learned Baroness, Lady Scotland, continues to have concerns and has tabled amendments in lieu of her original amendments which ask for our list of evidence to be exactly the same as the list of evidence used by the UK Border Agency in assessing domestic violence immigration applications. I know from my conversations with her that she is worried about consistency and about genuine victims missing out. I have enormous respect for the noble and learned Baroness but I really do think that her fears are now misplaced, given how far we have moved.

On consistency with the border agency, we need to understand that the decisions being made are different, as is the context in which they are made. When the border agency takes a decision on whether domestic violence has occurred, it is a decision on the case itself. This would be analogous with a court looking at an application for a domestic violence protection order and a judge deciding whether domestic violence had occurred, not with a legal aid decision about a private family law case.

We are talking here about a secondary issue—in this case, legal aid—that arises indirectly from a person being a victim of domestic violence, not a decision that directly relates to someone’s protection, such as in an immigration context or an injunction application. What is needed for a grant of legal aid is a set of clear rules, not the kind of case-by-case nuance that is needed to decide whether someone requires immediate direct protection.

Other government departments have to grapple with similar issues when it comes to these secondary issues. They do not use the border agency list but take a judgment on what works in their particular context. One example is the rules for jobseeker’s allowance for victims of domestic violence, over which individual local authorities have discretion.

I should also point out that the noble and learned Baroness has never objected to a very important addition that we have made to the border agency list—namely, “a finding of fact” by a court that domestic violence is a relevant feature. This partly highlights the different context that we are dealing with; such a finding of fact is much less likely to arise in an immigration context, but it also provides a very important safeguard in these cases. By definition in this context, if you are seeking legal aid, it is because there is the prospect of family proceedings. If you cannot show any of the evidence of domestic violence that we have asked for but the court decides, perhaps on the basis of police call-outs or other types of testimony, that domestic violence is a feature in the case, then legal aid will be available. This is also relevant when thinking about the time limits. Where a case relates to older incidents of domestic violence but a court considers that the matter is still relevant and it makes a finding of fact, legal aid will be triggered.

When I spoke last week with the noble and learned Baroness, she suggested that we would be missing a large number of victims with our time limit because of how long victims take to come forward. She mentioned that the average time for a victim coming forward was five and a half years. However, it does not follow, as she suggested, that a two-year time limit for evidence cuts out nearly two-thirds of people as a result, because the crucial point is that the evidence will be generated when people come forward—that is, when they seek an injunction, turn to their GP or decide to go to a refuge. It is when the evidence arises, not when the abuse occurs, that indicates the start of the time limit.

I stress again how far the Government have moved on this issue. We now have a system which will genuinely and generally ensure that victims of abuse get legal aid in these private family cases. We have accepted the ACPO definition of domestic violence—indeed, we have gone beyond that. We have significantly expanded the range of acceptable evidence and doubled the time limit. There is one in-built safety mechanism in the form of “finding of fact” hearings, and of course there is a second safety mechanism in the form of exceptional funding, for the more unusual cases. So I think we have now got this right. I want to pay tribute to those across the House, not least to the noble and learned Baroness, Lady Scotland—I know her well and I know her deep concern on this issue.

For the sake of completeness, I should add that we cannot accept that the evidential requirements should be in the Bill. Legislation of course needs to be precisely drafted, and because of the level of detail required, the evidential requirements are much better left to regulations, subject to the affirmative procedure, rather than primary legislation.

Sometimes at this Dispatch Box one has to make the government case with a heavy heart. I have looked at this from where we started, where we have moved to, and what we now cover in this very important area. I am proud of what the Government have done in carrying on the broader work against this evil crime, but I am also proud of what we have now finished with in terms of a package to help in this particular case. I hope the House will give us its support. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

Leave out from “House” to end and insert “do not insist on its Amendments 192 and 194 and do agree with the Commons in their Amendments 193A, 219A and 220A, and do not insist on its Amendments 2 and 196 but do propose Amendments 2B and 196B as amendments in lieu”

2B Page 121, line 31, at end insert—

“Domestic violence

(1) For the purposes of this paragraph, evidence that abuse has occurred may consist of one or more of the following (without limitation)—

(a) a relevant court conviction or police caution;

(b) a relevant court order (including without notice, ex parte, interim or final orders), icluding a non-molestation undertaking or order, occupation order, forced marriage protection order or other protective injunction;

(c) evidence of a relevant criminal proceedings for an offence concerning domestic violence or police report confirming attandance at an incident resulting from domestic violence;

(d) evidence that a victim has been referred to a multi-agency risk assessment conference, as a high risk victim of domestic violence, and a plan has been put in place to protect that victim form violence by the other party;

(e) a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim;

(f) a letter from the General Medical Council registered general practitioner or other medical professional confirming that he or she has examined the applicant and is satisfied that the applicant had injuries or a condition consistent with those of a victim of domestic violence;

(g) an undertaking given to a court by the alleged perpetrator of the abuse that he or she will not approach the applicant in respect of allegations of domestic violence;

(h) a letter from a social services department confirming its involvement in providing services to the applicant in respect of allegations of domestic violence;

(i) a letter of support or a report from a domestic violence support organisation; or

(j) other well-founded evidence of abuse that is either—

(i) certified by a court; or

(ii) of atype prescribed in regulations.

(2) For the avoidance of doubt, no evidence shall be deemed inadmissible on the basis of expiration where the general limitation period under the civil standard has not elapsed.”

196B* Page 121, line 47, at end insert—

“(2) For the avoidance of doubt, no evidence supporting an application for civil legal services under this paragraph shall be deemed inadmissible on the basis of expiration where the general limitation period under the civil standard has not elapsed.”

My Lords, I move the amendment standing in my name not in any way to cause anxiety or concern to the Minister, or with any lack of appreciation for how far the Government have moved. I say straightaway that I welcome the moves that have been made in the right direction. However, I hope the Minister will forgive me when I say that I regret that such a move was not done immediately and that we have had to wait so long. I hope the noble Lord will not find me ungracious when I say that I would invite him to move a little further. The amendments that have been proposed by the Government widen the evidential gateway provided by the Bill as it stood before: my amendments take it just a little further.

Domestic violence applications are of great importance, not just because they relate to a large proportion of women, but also, as the noble Lord knows, because they affect men and many children. Up to 950,000 children are affected by domestic violence every year. My amendments specifically permit well founded evidence of abuse certified by a court and/or prescribed in regulations to be used in support of an application for legal aid relating to matters that touch on domestic violence. In addition, my amendments provide that no evidence shall be deemed inadmissible on the basis of the expiration while the general limitation period under the civil standard has not elapsed; in effect, moving limitation from the two years provided in the Government’s proposed regulations to six, which I think causes greater consistency.

Your Lordships will know that, in my Amendment 196B, I also seek to extend that more generous time limit to applications made in relation to children’s cases. The House has heard from me, at Second Reading, in Committee and on Report, about the importance of these issues to victims of domestic violence and their children. These amendments are, I respectfully say, vital. They are vital to all victims who may be affected by domestic violence. It is the reality of the domestic violence victim’s life that has to be properly acknowledged. Although I thank the Minister for moving both in scope on the definition and on the definition itself, it is clear from what he said in moving his Motion that the Government do not entirely understand the issues in relation to domestic violence as I had hoped that they would.

The evidential test is there to provide assurance that there is cogent information on which to base the assertions of domestic violence made by an applicant. The evidential gateway is just that: an evidential test to support the definition. The Government seek, on the basis of the amount of money that they have available, to narrow that gateway in a way that denies the reality of many victims’ lives. I would love to be able to say that my fear in relation to these amendments is misplaced. The reason I know that, tragically, it is not, is that I have had the privilege of working in this field since 1977. We know, through experience and the empirical data that we have, the consequence of a narrower gateway because there has been one in the past and we know that lives have been lost.

In many cases, women—I say “women” because 89 per cent of repeat victims are women—will not get the support they need. I will give one example, which has been given to us by St Anthony’s Centre for Church and Industry in Manchester. It relates to a case where a woman had entered into a marriage which was violent and traumatic. She wanted to start divorce and financial proceedings. She did not go to a refuge. She left her home and went to live at her parents’ house. While there, she was not able to work because she used to work for her husband in his business, so she lost her job; she was his bookkeeper. The husband remained in the joint home. He moved his mistress into that home and refused to engage in the divorce proceedings at all for a considerable amount of time. The wife could do very little about it. Eventually, because he would not negotiate and because she had no money and he had a great deal, she went and obtained legal aid to assist her to go back into the house and, if not to go back into the house, to get her just desserts in terms of financial relief. The husband had engaged some very expensive solicitors. She did not have any money to do so. That woman, today, would get legal aid. If your Lordships were to agree with the amendments and pass them in accordance with the Government’s proposal, she would not.

There are other cases. For example, a woman left her husband because of his violence and did not go back. She did not apply for any financial relief or anything at all. She simply wanted safety for herself and her children. Eight years later—way outside the two-year time limit—her husband came to apply for contact with those children. She had not gone to the police. She had not gone to her doctor. She had not gone to a refuge, because she had gone to her mother’s house. Neither had she sought to enter into litigation. But she did not have any money. At the moment, she is able to get legal aid; if these provisions are passed, she will not. I know that the noble Lord would want to provide help and assistance for those sorts of cases, but the current provisions will not do that which the Government purport to want.

I wish that I could simply say to the House that we have moved far enough, but it is now a matter of whether the House and the Government will choose to assist those who are in dire need. It is not a matter of us not knowing what the impact will be. On a number of occasions, the noble Lord has said that we are in a financially difficult position and that we cannot do all that we would like to do but that we have to narrow the gateway. I could understand narrowing the gateway if it were to relate to those who make unmeritorious claims, who do not need the help and support of legal aid and indeed whose lives will not be adversely affected or put at risk. If that were the case, I could see that the Government would have a choice. However, post-separation violence occurs in 50 per cent of the cases that we deal with. These are not cases, as the noble Lord seeks to say, where those involved could go for an injunction. In many of these cases the violence occurred a long time ago but the risk of violence to the victim and often to the victim’s children is still there.

We have a choice to make. In my humble submission, that choice should be one that we make in favour of women, children and victims of domestic violence whatever their gender who will have no other viable means of support. I say very clearly to the noble Lord that we on this side of the House have made a choice: our choice is to support victims and their children. I would love the Government to be able to say amen to that, not just in terms of desire but in reality. While many women do not have the support that they need, we cannot close our eyes.

I would like to remind the House of the Women’s Aid snapshot survey that was done on 16 June last year. It showed that on just one day 224 women were turned away from refuge services: 163 because there were no spaces for them; 13 because they had no recourse to public funds; and 48 for other reasons such as complex needs. That demonstrates that even allowing accessing refuge services as evidence of eligibility for legal aid will exclude many women who are simply unable to access such services and yet are experiencing violence. We have to remember that if a woman has a male child who is over the age of 11, she will not have access to a refuge because such children are excluded, often because of their gender. Statistics from Women’s Aid show that the number of women and children supported annually by all domestic and sexual violence services—both refuge-based and non-refuge-based—is 124,895: so 17,615 women are in refuges annually and 107,280 are in other services such as outreach and drop-in. Looking at the list to which the Minister has referred in his remarks, if only those who are actually admitted to a refuge are able to seek and obtain support, what about the 107,000 women who seek outreach and drop-in support?

The noble Lord knows that these amendments are widely supported by the Women’s Institute, Rights of Women, Mumsnet and many other agencies, including the faith communities. I ask the noble Lord to think very carefully as to whether the Government cannot in good conscience widen the evidential gateway and the time limit to enable those with bona fide claims to be better supported. I accept that even the list and the proposals that I make will still exclude many bona fide cases. This causes me a great deal of pain and concern, but I have taken into account fully what the noble Lord has said about the restrictions that must now be put on the legal aid budget. I have accepted them. I cannot accept that the minimum standard that we have outlined in my amendment—to give succour to those in need—cannot be afforded by us as a country. If we cannot afford to protect women, children and men who are in this position we are a very poor country indeed. I beg to move.

I have never doubted that. It is just that I keep getting nudged when I call someone learned and someone whispers in my ear that they are not.

Noble Lords are learned if they are in the Supreme Court or have been a Law Officer. Others, regrettably, may be learned in fact but are not learned in name.

My Lords, I have stated as clearly as I can why the Government and the Commons have put forward their reasons. The emotional span of this debate is sometimes extended to question whether we are in favour of victims and their children. The answer is that yes, we are in favour of them. As I said in my opening remarks, this debate is about how and whether and within which ambit we provide legal aid in private law cases. It is difficult to go beyond that into individual cases, which have been cited in debate at every stage. In many of these cases, the suspicion is that they would qualify either by application for an injunction or by a finding of fact by the court. The latter is extremely important in the additional list that we have put forward to qualify people for legal aid.

As I said in my opening remarks, when addressing an issue such as this one, and within the constraints under which the Government are operating, lines have to be drawn. It is legitimate for the Opposition to argue that that line has been drawn in the wrong place or that a time limit has been put in the wrong place. In the end, however, Governments have to make decisions—and we have made decisions. As I said, I hope that the House will look at the decisions we have made and see that we have listened and acted in a way that puts us on the side of victims and their children and that, in practice, those who face the problem of domestic violence and who want to obtain legal aid for decisions in private family law cases will find that the concessions we have made and the rules and the guidelines we have laid down will give the women and children—I accept that there may be others, but mainly women and children—who are affected by this scourge access to legal aid. I therefore ask the House to support Motion B.

I am disappointed that the Minister takes that view. As he will know from our previous debates, our assessment is that as a result of the changes that the Government are proposing, 54.4 per cent of victims currently obtaining legal aid and assistance for family proceedings will not be able to obtain such help and assistance in future. Although I absolutely accept that the Government intend, or wish, to be supportive, these provisions demonstrate the reverse—that they will not be supportive. I therefore wish to test the opinion of the House.

Motion C

Moved by

That this House do not insist on its Amendments 3 and 4 and do agree with the Commons in their Amendments 4A and 4B.

4A Page 3, line 22, leave out subsection (4) and insert—

“( ) But the Lord Chancellor—

(a) must not give a direction or guidance about the carrying out of those functions in relation to an individual case, and

(b) must ensure that the Director acts independently of the Lord Chancellor when applying a direction or guidance under subsection (3) in relation to an individual case.”

4B Page 3, line 24, leave out “about the carrying out of those functions” and insert “under this section”

My Lords, we now turn to Motion C and to Amendments 3 and 4, tabled by the noble and learned Lord, Lord Pannick. The noble Lord is not learned, is he?

The noble Lord’s amendments concern the independence of the director of legal aid casework. I am confident that we all share the sentiment that the Lord Chancellor should have no involvement in a decision about legal aid funding in an individual case. However, I share the view of the House of Commons that this amendment has undesirable and unforeseen consequences and that it is possible to provide the assurance and protection required without adopting the amendment.

The primary concern with these amendments is that they would have the effect of preventing the director being appointed as a civil servant. It is our strong view that the director will enjoy full independence from the Lord Chancellor yet can be appointed as a civil servant. For the avoidance of doubt, we are abolishing the Legal Services Commission and creating a new executive agency to provide Ministers with greater policy control and improved accountability for legal aid. Giving full independence to the director would run entirely contrary to this intention.

Clause 4 already provides protection in subsection (4) with a statutory bar on the Lord Chancellor’s involvement in making funding decisions in individual cases. The Bill also imposes a duty on the Lord Chancellor to publish any guidance and directions issued to the director, thereby providing transparency. Noble Lords will recall from Report stage that we amended the Bill to offer greater transparency by requiring the director to produce an annual report for the preceding financial year on the exercise of their functions during that period. This report will be laid before Parliament and published.

As I alluded to at the outset, we share the noble Lord’s view with regard to the protection being sought, which is why the Government’s amendment in lieu was offered in the House of Commons. This amendment places a specific duty on the Lord Chancellor to ensure that the director acts independently of the Lord Chancellor when applying directions and guidance given under Clause 4(3) in relation to an individual case. I hope the House shares my view that this new provision provides the assurances sought, incorporating as it does the concept of independence in the Bill while striking the right balance in respect of the administrative arrangements that we are seeking under the new framework. I beg to move.

My Lords, together with the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Hart of Chilton and Lord Faulks, I tabled the amendment on the independence of the director that was approved in this House. I thank the Minister and the Government for listening on this important subject and for including in the Bill, as the Minister explained, a reference to the independence of the director, which will give great comfort to all those who will be involved in the administration of this legislation.

Although these are matters of constitutional principle, they can be addressed by compromise, I am happy to say. I very much hope that the Government will be able to adopt a similarly conciliatory approach to the amendments that your Lordships’ House approved earlier this afternoon. I thank the Minister.

My Lords, tempting though it is to regard the notion of an entirely independent civil servant as somewhat oxymoronic, I echo the remarks of the noble Lord, Lord Pannick, and welcome the fact that the Government have moved sufficiently to meet the considerations that were advanced on Report. We are glad to be able to conclude these matters, and look forward very much to seeing precisely how the system works in practice.

Motion C agreed.

Motion D

Moved by

That this House do not insist on its Amendment 24 to which the Commons have disagreed for their Reason 24A.

24A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

My Lords, noble Lords gave great attention to this issue in earlier stages. I hope that the discussions that have resulted, both within and outside the Chamber, have helped to reassure them.

I begin by saying that the Government have always agreed that telephone legal aid advice will not be suitable for everyone. That is why there will be exceptions to having to use the gateway to apply for legal aid—for example, for emergency cases. Those who are eligible for legal aid will be assessed on a case-by-case basis to identify whether they are suitable for telephone advice.

A key consideration in assessing suitability for receiving advice over the telephone will be whether a caller is able to give instructions and act on advice over the telephone. Trained and skilled assessors will assess this suitability, and a range of reasonable adjustments and service adaptations will also be available to assist callers in their contact with the gateway.

The gateway, based on the existing highly successful Community Legal Advice helpline, will be a two-stage process—not just, as some have called it, a “call centre” service. It may help noble Lords if I briefly set out how the process will work in practice.

Stage one: when applying for legal aid in one of the areas of law subject to the gateway, trained and skilled telephone operator service staff will engage with the caller to identify their problem and eligibility for legal aid, giving the caller the time needed to explain their problem. Organisations such as the Samaritans have contributed to training for current operator service staff. These staff will not provide legal advice, but will route clients to sources of help. If the problem is in an area of law subject to the gateway, the client will be transferred to a legally trained specialist for telephone advice.

In the second stage, as now, under the current Community Legal Advice Helpline contract, where an eligible caller is transferred to a specialist, legally trained telephone adviser, that adviser will speak to the caller to assess their needs, including their suitability for telephone advice. Where it is clear, having regard in particular to whether a caller is able to give instructions and act on advice over the telephone, that face-to-face advice is needed, the client will be referred to a face-to-face provider. I ask noble Lords to note that both the telephone operators and specialist telephone providers will have ongoing training, including awareness of different vulnerable callers, such as those with mental health issues and learning difficulties.

The Government have engaged and will continue to engage with stakeholders, including equality groups, to identify any additional reasonable adjustments for callers with specific needs. For those with little or no spoken English, a free three-way translation service in 170 languages can assist engagement with the gateway. Few face-to-face providers could offer this extensive range of languages. A third party, including a family member or advocate, can contact the gateway to speak for a person or help them explain their problem. To minimise costs, all potential callers can contact the gateway by mobile phone text or the internet to ask for a call back, and all callers can ask for a call back, too.

The use of new technologies such as Skype and webcam—wider than for just the British Sign Language service—are being investigated to enhance the service further. There will also be a service enabling an individual to contact the gateway by secure e-mail. The Government will raise awareness of the gateway to users, including the services and support it offers and we will also be monitoring its operation from day one of implementation and engaging with those using it to ensure that needs are indeed met. As we have also stressed, there will be a review of its implementation and operation, and the report of that review will be published. This will happen within two years of the implementation of the gateway and before any decision about any possible extension of the gateway to other areas of law is taken.

The Government are confident that a mandatory gateway can facilitate efficient and prompt access to legal advice, including advice for those vulnerable people in need of it. The effect of Amendment 24 and, in particular, the amendment of the noble Baroness, Lady Grey-Thompson, Amendment 24B in lieu, would be to impact severely on the provision of any legally aided advice services by telephone, including the existing Community Legal Advice helpline, the existing criminal defence service direct telephone scheme as well as the proposed mandatory gateway for certain areas of civil legal aid. These amendments are unnecessary and disproportionate to the concerns of the noble Baroness, which previously have centred on the mandatory gateway and vulnerable people.

Amendment 24B would require every eligible client to receive face-to-face advice, regardless of their particular circumstances or personal preference. This would result in a very inflexible system that would invariably introduce a delay in clients receiving advice as not only would they have to locate a suitable provider, they would also need to contact them to make an appointment to see them. No longer, for example, would a client be able to make contact with and discuss their problem at a time and place convenient to them.

Noble Lords have already acknowledged the effectiveness of telephone advice itself. On 20 December, the noble Lord, Lord Bach, described the Community Legal Advice helpline as excellent and he was sure that noble Lords would be glad to see its work continue and expand. However, such a requirement would invariably mean the end of any telephone advice as it would be highly unlikely that any individual who has explained their problem to a face-to-face advice provider would then choose to switch to a different telephone advice provider at a later stage.

Not only would this amendment have the potential to eliminate all the savings from the gateway, it could add about £4 million to the legal aid bill for criminal cases and additional cost to civil legal aid for additional face-to-face advice—advice which is currently successfully provided by telephone. The specific duties contained in Amendment 24B are also unnecessary. I can assure the noble Baroness that the Government have complied with the public sector equality duty under Section 149 of the Equality Act 2010 and we have published an equality impact assessment—at the time of the consultation on the legal aid reforms and at the time of the Government’s response—which includes consideration of the mandatory gateway policy. The public sector equality duty is a continuing one and we will continue to comply with it.

As noble Lords know, under the public sector equality duty it is necessary to have due regard to the need to eliminate discrimination, harassment, victimisation and other conduct that is prohibited by or under the Equality Act 2010, advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. The relevant protected characteristics for these purposes are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These types of discrimination are all defined in the Equality Act 2010 and we are complying, of course, with that. For these reasons, I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

24B* Page 21, line 7, at end insert—

“( ) Notwithstanding subsection (1), the Lord Chancellor’s duty to a person eligible for legal aid advice under section 1(1) must include—

(a) a duty to secure the provision of initial face-to-face advice; and

(b) a duty to secure the provision of legal aid advice in a range of forms, taking account of the needs of the person eligible for such advice (“the client”), including—

(i) the client’s vulnerability;

(ii) the client’s capacity to represent himself or herself and communicate his or her case, including any written documentation;

(iii) the client’s health (including mental health) issues;

(iv) the impact and consequences on the client, or his or her family, of failing to receive advice and assistance under this Part;

(v) the age of the client; or

(vi) that it is otherwise in the interests of justice.”

My Lords, I thank the Minister and his team for meeting with me earlier today and also for the letter I received this morning which laid out, with much greater clarity, issues previously discussed. I believe the telephone gateway will be positive for many people, and perhaps would go so far as to say that, for some, it could be better. I welcome the details of the exclusions that have been given: where there is an emergency; where the client has previously been assessed by the mandatory gateway as requiring advice face to face; where the client has accessed face-to-face advice within the past 12 months and is seeking further help to resolve linked problems from the same face-to-face provider; where the client is in detention; and where the client is a child, defined as being under 18. Some of the reassurances that have been given are positive, but these are really around those with much less complex cases.

In previous debates I have spoken much about the cost to the system and to individuals. and I initially welcomed the call-back system that has been proposed. However, on reflection, I cannot imagine an individual with a complex need or a vulnerable adult requesting this call back on the promise of a return call—there is just too much at stake.

I still have some areas of concern. The first is the continuing use of the word “mandatory”. I know that this is an operational matter; not only does it sound inflexible, it is. There are still many unanswered questions around the number of staff who will be employed, both in the first line and specialist operators, and also the cost. It is to be welcomed that they will be trained in listening, but the areas of law they will need to understand will be extensive and complicated.

The Minister has provided more information on this, and while those who work in the call centre will not be under any time constraint to get through the call, there will be a significant amount of pressure on them not only to guide the client in the right way, but to ensure that the client has understood what they are being told. How will this be measured? Will it be on customer satisfaction, or will the number of cases that progress or do not progress be used in some way?

The Minister in his letter—and I believe this is telling—twice mentions the fact that the key test will be whether the individual is able to give instructions and act on the advice given over the telephone. I am extremely concerned that vulnerable people, with complex problems, will drop out of the system, even if they make it to the first phone call. Just finding the telephone gateway may be a challenge for some. The same can be said of the online form on the DirectGov website. They may not be able to do it themselves, nor find appropriate third-party support to offer help.

I know that the Government are committed to reviewing these operations, and to make adjustments if they are not working correctly, but we could be 24 or 36 months into a new system before the figures are gathered and we understand who has been able to access the right support. It is all well and good that a client who makes it through the first call may be directly transferred to a specialist adviser, I take this to mean within the initial phone call—but I am still unclear about the route through for someone who will be advised to go to a face-to-face meeting. The current system relies on the individual being given three local centres and then making the necessary arrangements, but surely the proposed system should be better than the current one. How will this take-up rate be monitored to ensure that clients have taken the steps they are entitled to, and what are the costs attached to them?

My last amendment was rejected under financial arrangements, because there is a cost to it, but what is the cost of setting up this mandatory telephone gateway and, if vulnerable people are not able to access legal aid, what are the potential costs that could be shifted to other areas such as local authorities or the NHS? I believe a little more flexibility is required to ensure that the most vulnerable are able to access the support they are entitled to. I beg to move.

My Lords, I listened carefully to what the Minister said and I am afraid that I am not satisfied that the arrangements she explained are anything like adequate to deal with the more difficult cases that will be presented to those on the telephone lines. Indeed, the problem is that they will not be presented at all. As one who spent a large part of his early days in the law trying to help ordinary people with their so-called ordinary problems, I know that there is much greater difficulty in getting instructions from inarticulate, anxious or unconfident people than well intentioned, middle-class people can believe.

It is simply unrealistic to say that when vulnerable people come on the phone there will be sympathetic people to direct them here, there or somewhere else because they will never get on the phone. The reason is that today the law is so complicated that the kind of people I am thinking about will never get to the point of understanding, in articulate terms or with any clarity, what their problem is. The only chance of them getting to that point will be if they get before a sympathetic person, in a sympathetic context, who has the skill—and it takes skill—to coax out of them just what is the problem. Everyone sitting in this place may say, “Well, for Pete’s sake, they all go to school and have got technology that can do this and do that”, but at least 10 per cent of our fellow citizens are not in that category—they are the most needy people—and a system which fails the most needy 10 per cent is simply unacceptable.

I do not mind how many reviews we have about this, this system will not work for those people. I know it. I worked with the Samaritans for years, and every Samaritan knows that for every one person who comes on the telephone there are many more who never even get that far.

I am afraid to say that I shall be in opposition to the Government’s response to Amendment 24, the beauty of which was that it was the Lord Chancellor’s duty to deal with people’s needs by a range of forms. Such a system would be much more flexible. Indeed, the Minister, quite rightly, said that the need for every person to have face-to-face advice, as is required by subsection (a) of the proposed new clause in Amendment 24B, is too inflexible. However, by the same token, her argument that every case will be dealt with by telephone is too monopolistic and will not work for a very important slice of the population.

I ask all noble Lords to think of someone they know who does not have the confidence to speak up, the analytical ability to know quite what their problem is and certainly not the confidence to use this facility, well intentioned though it is. I hope the Minister will reflect on what I have said and, if she doubts me, talk to others who know more than I. Perhaps she will say in summing up what is now the position with the CABs and law centres. At least they have the facility for people to go in and meet other members of the public who work voluntarily for the CAB and have time. It can often take half an hour to find out what the problem is. Is the funding of CABs and law centres now assured so that they can do that?

My Lords, I agree with what the noble Lord has said. I can remember that many years ago, when I undertook my surgery in my constituency, people came there who were all too often inadequate, vulnerable and inarticulate. I do not know how they could have possibly represented their case on the telephone; they were afraid of the telephone. All I wish to say in my brief remarks is that I have first-hand knowledge of what the noble Lord has said and that what is now being proposed will affect such people. The majority of people who sought aid and assistance that they would otherwise not have received were incapable of representing their perfectly justified remarks.

My Lords, Amendment 24B improves on the original amendment rejected by another place in that it specifies the criteria that should be taken into account when determining the client’s needs.

The proposed telephone gateway would simply not be a suitable means for many people to access legal advice. Among the groups which the amendment seeks to protect are those whose disabilities and frailties would prevent them from being able to convey their case across the telephone; those whose first language is not English; and those whose cases are so sensitive that they would be hindered in discussing the details over the phone. That could include clients who have experienced abuse, rape and those with HIV/AIDS conditions.

The Government’s proposals have no regard to the individual circumstances of individual cases. People’s dignity should not be compromised in order to make what are likely to amount to modest savings. Cases should not be unnecessarily prolonged by operators with little or no legal training. The Government should surely listen to the many voices that oppose these proposals and reform this risky scheme.

My Lords, I, too, have grave doubts as to whether a telephone helpline of the kind we are talking about can be regarded as fit for purpose if the purpose is to disentangle the client’s case with empathy and give appropriate advice on it. The matter is made worse if use of the telephone gateway is to be made mandatory. There may be a place for a telephone gateway—it can have a role in filtering cases, as the Minister said—but it is surely entirely inappropriate that it is made the sole route to discriminating and informed advice.

This is not a matter of speculation for we have been here before and we know what we are talking about. I am talking about the experience that we had with the student loans company when it took over the administration of the disabled students’ allowance. This was administered by a service staffed by the kind of people who will, presumably, be staffing the telephone gateway. They proved to have little understanding of or empathy with the kind of problems disabled students have and for which they were seeking the support provided by the disabled students’ allowance. In fact they were inclined to make light of them and even suggest that the students were somehow swinging the lead or making unmeritorious excuses for financial support from the state.

Those applying for disabled students’ allowance have much in common with the kind of vulnerable people we are talking about needing help with welfare benefits cases. I would not wish to place my confidence in a service of this kind as the mandatory gateway to legal advice and I do not think the House should either.

My Lords, it is rather disappointing to have to speak on this subject again. One hoped that the other place might take note of our amendment and carry it through. However, the noble Baroness, Lady Grey-Thompson, has in her usual clear and well expressed way explained that our concern is not with telephone services per se. That is not the point at all. All of us here know the value of telephone services. I saw it at first hand as a Minister and I am delighted that the noble Baroness quoted me in her opening remarks. I hope that that excellent work continues and expands—of course I do.

However, the point is that in a limited range of cases, whether classified by the type of person, such as those with communication problems, or by the type of case, such as very complex cases or cases that require searching through reams of papers to identify the nature of the real issue—a point that was made very powerfully by the noble Lord, Lord Phillips of Sudbury—it is counterproductive to expect someone to go through a telephone gateway. In those cases there should be a provision for face-to-face advice from the outset. That is hardly an unreasonable request. Indeed, it is common sense.

I am not the first and I will not be the last to remind the House that today is St George’s day. Perhaps in rather a laboured way, I make the point that there is an English tradition of pragmatism, flexibility, seeing what actually works in the real world rather than what I fear is behind the Government’s stance: too much inflexibility, a kind of didacticism and, as I have described before using a French expression, a rather dirigiste approach towards this issue. It is an issue that cries out for flexibility and trying various ways to make sure that people who need this help can get it. The noble Baroness made her case very powerfully indeed and other speakers have supported her. I very much hope that we can ask the other House to think again on this.

I end by reminding the House of powerful words spoken by the deputy leader of the Liberal Democrat party in the other place just last Tuesday. He had listened carefully and he said this:

“I was grateful for the Minister’s reassurance, but I have to say that I am not persuaded. Like any MP with a constituency containing people from many different races and backgrounds, with many different first languages, and with all the disabilities that any mixed community has, I simply do not believe that a telephone route into deciding eligibility for legal aid is right for everybody. It may be right for many people, and I understand that it will be a good service, but if we ask constituents such as mine whether they have always been satisfied with the council response line—whether under Labour now, or with us running it, as previously—the answer is always no. That does not change, irrespective of who is running the show. I understand the Government’s position and I hear what they say about a review, although I add a request for the review to be regional as well as general, but I believe that the Lords who pressed for amendment 24 have a well-made case. I shall support the Lords in respect of amendment 24”.—[Official Report, Commons, 17/4/12; cols. 206-07.]

I do not always, or even often, agree with the right honourable Gentleman who I have just quoted at some length, but on this I do agree and I very much hope that the House will too.

My Lords, I thank noble Lords for their attention to this very important area and I especially thank the noble Baroness, Lady Grey-Thompson, for her kind words to my noble friend about his engagement with her concerns. I have a note that I need to correct the figure given for the costs of the noble Baroness’s amendment. The costs are likely to be in excess of £20 million per annum for both civil and criminal legal aid—I need to clarify that.

In reaction to what the noble Baroness, Lady Grey-Thompson, said, I point out that stage 1 is where people come in and it is decided whether they need to go through the telephone system. Stage 2 is the detailed case assessment of suitability.

To my noble friend Lord Phillips I point out that the kind of cases to which he points may well be those that are then directed towards face-to-face advice. It is extremely important to bear in mind the flexibility that is built into this system and to contrast that with the lack of flexibility of insisting that the advice is face to face. This system means that when people are taken into the telephone system their cases can be assessed to see whether they are suitable for phone advice or face-to-face advice.

I did not explain myself adequately. I was trying to get across the point that people will not get as far as a telephone. That is the problem. Once they are there, I absolutely think that what my noble friend has explained to the House is fine. However, I am talking about the people who, for the reasons I tried to explain, will not have the confidence or the competence to say what their problem is over the phone because it is often so damn difficult to do so.

I understand what my noble friend means about getting to that point. I ask him to ask himself how they would get to face-to-face advice. There they are with a major problem. They may very well end up in a CAB, in which case the CAB may assist them in phoning the telephone gateway and may indicate in its call that this is a suitable candidate for face-to-face advice. My noble friend needs to go back a bit and ask how the person who is in such circumstances will access any advice and then see how this may route them through to the kind of suitable, appropriate and flexible advice that I hope I have laid out.

However, where someone is incapable of expressing themselves—I remember having to listen to such a person for more than an hour—would they not be excluded from what is being proposed?

Let us assume that that person has come to you as a constituency Member of Parliament—I think that is the kind of case the noble Lord is talking about. Again, the Member of Parliament could phone the helpline and say that, for the reasons given by the noble Lord, in this case the person is likely to need face-to-face advice. If someone else, such as a family member, were to phone up, it would become apparent that the person in question could not do this. For those reasons it becomes apparent that this person is going to need face-to-face advice.

As I said in my introductory remarks, there are clearly cases where, for all sorts of reasons—and noble Lords have experience of these kinds of cases—that person will not be best helped by the telephone. In other cases that might be exactly what a person prefers: the distance of telephone rather than face-to-face advice. They might not be able to get to wherever the face-to-face advice is, or they might find that Skype is what they want to use.

The other point to bear in mind is the provision of language translation. Some 170 languages can be provided on the phone line, and very few CABs or constituency advice surgeries have that kind of provision; so there are certain advantages to that provision that might be of help to other cases. The important thing to remember in all this is the equality duty—the diversity of people and their situations and our obligation to address those needs. Those needs will need to be met in different ways, and that is built into how the system operates. The very fact that the Samaritans have been involved in training the operators is an indication of how seriously we consider the responsibility towards people with those diverse needs. Of course, the Samaritans operate a phone system for their own advice line.

I assure the noble Lord that there will be no restriction on the length of time that a person can speak to a caller. If that is the problem—that it is a matter of time—it will not kick in here.

My noble friend Lord Phillips asked about the Budget, which announced £40 million and £20 million in each of the remaining years of the spending review. I think he sought assurance of provision for the CABs.

I have emphasised how operator service staff and specialist telephone advisers will be trained to be aware of the needs of callers, especially those with mental health and learning impairment problems. There will be reasonable adjustments and adaptations available to assist callers, including provision for a third party such as a family member to call on an individual’s behalf. As long as a person authorises someone to call on their behalf, the third party could equally be a member of a CAB or other support or advice service. If the caller is assessed as unsuitable for telephone advice, they will still have access to face-to-face assistance and be referred directly to that provider. That is an improvement over the current situation, in which they might be given three phone numbers of advisers whom they then have to contact. Again, they have to use the telephone to set up these appointments, whereas with this they could be referred directly to that provider and will not have to find the face-to-face provider themselves from those phone numbers, and those providers will have to make contact back to the person.

Noble Lords might bear in mind how flexible the system is within the new arrangements. In December, the noble Lord, Lord Bach, referred to the satisfaction rates with both the existing community legal advice helpline operator service and the specialist telephone advice service; 96 per cent of respondents found the operator service helpful, and the 2010 survey of clients advised by telephone showed that 90 per cent of respondents found the advice provided helpful. That is a very encouraging response.

As I emphasised, and as we will continue to emphasise, we will keep this under review so that we can make sure that it is working as effectively as possible. As my noble friend Lord McNally assured the House, I assure noble Lords that the telephone gateway will apply initially to only a limited number of areas of law and will be monitored from day one. Noble Lords have picked up on the review, but I assure them that we will keep a watching brief over this from the very beginning to make sure that it is working well. The engagement with stakeholders that has already taken place and the need to make sure that everyone’s needs are addressed is a reflection of that. I can give that further assurance.

I hope that noble Lords will support the Government in this area.

I am sorry to interrupt my noble friend again, but can she tell the House that the review will be undertaken by an independent experienced reviewer?

My noble friend assures me that we will review how this is working and publish the findings. I am sure that noble Lords will scrutinise that with the greatest of care. I reiterate that the operation of the system will be monitored from the very beginning. Therefore, noble Lords do not need simply to wait for the review at the end of two years to make sure that this is working in the way that we trust will assist people, as opposed to raising the concerns that noble Lords have expressed. I hope that the noble Baroness will be able to withdraw her amendment.

I thank noble Lords who have taken part in this afternoon’s debate, in particular the noble Lord, Lord Phillips of Sudbury. Not for the first time, I wish that I had trained in the law rather than doing a politics degree. I accept that my wording could be slightly better but, as the noble Lord, Lord Wigley, said, it has been improved since the last time I moved the amendment.

It seems that we are stuck in two slightly inflexible viewpoints. I wholeheartedly agree with the noble Lord, Lord Low, when he says that there is a place for a gateway. However, I also believe that there is a place for something else to help the most vulnerable. One idiosyncrasy of this system is that an individual could go into a citizens advice bureau and ask for help but be told to ring a phone number and be sent away. In an ideal situation, that person would be able to stay in the citizens advice bureau and make the call from there, and could even have that third-party support. If they are sent away, they may take that to mean that they are not eligible or that they do not understand some of the issues.

I thank the noble Baroness, Lady Northover, for her comments. It is probably not the right time to debate this, but now that we have a system that can be accessed on the internet through or by Skype and through phone calls—there is information coming back and forth—I wonder whether there are not almost too many options for people. Perhaps a gateway and the potential for a face-to-face interview might be the simplest way to do it.

I go back to the point made by the noble Lord, Lord Phillips of Sudbury. I am sure that everyone in your Lordships’ House knows one, two, or maybe more people who would struggle to make that first contact and might drop out of the system, finding it too much to cope with, and would therefore not be able to access the help that they need. So as much as there has been some positive movement today and some very positive comments, I am not reassured that the most vulnerable would be supported through this system. Very reluctantly, I wish to test the opinion of the House.

Motion D agreed.

Motion E

Moved by

That this House do not insist on its Amendment 31 to which the Commons have disagreed for their Reason 31A.

31A Because it is not appropriate to make an exception from clauses 43, 45 and 46 for proceedings which include a claim for damages for respiratory disease or illness arising from industrial exposure to harmful substances.

My Lords, when we were opening this debate the noble Lord, Lord Alton, intervened to make the very valid point that it was only by him raising the issue of mesothelioma in debate in this House that this important issue has received the attention that it deserved. I pay tribute to him, having known him for a long time as an adept campaigner. Whatever happens, he can take great credit for the way that he has focused attention on this terrible disease. As with some of our other debates, however, this is not about whether you are in favour of or against mesothelioma victims. This is a debate about how our legal system is being reformed.

We are implementing fundamental reforms of conditional fee agreements, or CFAs, following the recommendations in Lord Justice Jackson’s review of civil litigation costs. The current regime allows for risk-free litigation for claimants and substantial additional costs for defendants. We want to restore a fair balance to the system, with meritorious cases being brought at proportionate cost. We are therefore abolishing recoverability of success fees and “after the event”, or ATE, insurance premiums. These reforms are intended to apply across the board and will cause a real shift in our society’s approach to litigation.

That is the general case, and it is important not to lose sight of it in considering respiratory disease claims, mesothelioma claims or others, but I want to repeat some specific points about mesothelioma. No one is suggesting that these tragic cases are contributing in any way to what has been described as a compensation culture—this is a horrible disease which acts very fast, and that suggestion has never been any part of my case in putting forward the Government’s position, as noble Lords know. It is a horrific disease and we have nothing but sympathy and compassion for its victims. Recent Governments of all colours have taken measures to help claimants in these cases, and this Government are continuing that work with due urgency.

In an earlier debate I spoke of recent legal changes that have significantly lowered the bar for mesothelioma claims. These cases are always tragic but they are mainly straightforward and relatively low risk. The costs should not be as high as they can be under the current regime. Legal costs need to be controlled in these cases, as in others. These reforms have been carefully put together as a balanced package. Having considered the interests of claimants against the interests of defendants, we are implementing a number of additional measures. These include a 10 per cent increase in damages for non-pecuniary loss and, in personal injury cases, a cap on the success fee of 25 per cent of damages, excluding future care and loss. Let me emphasise that that is a maximum cap. No lawyer is required to take any success fee from a claimant, and many lawyers will wish to maximise the damages that victims can receive. We are also introducing qualified one-way costs-shifting so that “after the event” insurance is no longer necessary in respect of the other side’s costs.

These measures are intended to work alongside the abolition of recoverability to ensure that all sides have an interest in keeping costs down and resolving more claims more quickly. Because speed is the other crucial element in mesothelioma cases, it is imperative that fair compensation is paid as quickly as possible. Under the current regime, however, standard cases can take as long as two years or more to be resolved. That is often longer than the sufferer survives. The Government have their part to play in speeding up this process and we are engaged with stakeholders and government colleagues in relation to it. However, to exempt mesothelioma cases wholly from our reforms would be to retain the status quo, undermining the package of reforms and allowing cases to drag on.

I should highlight that the reforms under Part 2 are not taking place in isolation. Last week I met with the Minister for Welfare Reform, my noble friend Lord Freud, to discuss the work that he is actively undertaking with stakeholders. I am glad to confirm that real progress has been made and that the Department for Work and Pensions hopes to make an announcement before the House rises for the summer on a programme for settling these disputes, a programme that will be speedier and avoid unnecessary litigation.

The Government are not ignorant of or indifferent to the plight of mesothelioma sufferers. These are important cases which need to be dealt with as quickly as possible—that is a matter of humanity. Of course, greater speed generally also means reduced costs, which benefits everyone. As I say, we are actively working with the DWP to ensure that victims can access the help that they need. I urge noble Lords to consider the whole picture, not just the element of reform which we have in front of us today. The work that we are doing on civil litigation costs is closely related to the work that we are undertaking on helping mesothelioma victims who are unable to trace their insurers. To undermine one reform may be to endanger another, which is a scenario that we should avoid. I urge noble Lords not to insist on Amendment 31 and to support Motion E. I beg to move.

Motion E1 (as an amendment to Motion E)

Moved by

My Lords, before the vote on 15 March on Report, a cross-party group of 18 Members of your Lordships’ House signed a letter urging us to defend the rights of mesothelioma victims. The House subsequently voted by a majority of 31 in favour of that amendment, which enables victims of asbestos to keep 100 per cent of their much-needed compensation. The amendment adds nothing to the public purse—that is why there is no financial privilege claim against it—but it seeks to support terminally ill victims of mesothelioma and their families.

All sides of your Lordships’ House have agreed that such cases are, as the Minister has just reiterated, not part of a compensation culture. No one has been able to give any examples of fraudulent or frivolous claims, and nothing that the noble Lord has said today would dispute that. Indeed, at no stage during our proceedings has he ever either asserted or implied that. However, I was concerned to see that the Minister in another place, Mr Jonathan Djanogly, in disputing this amendment, said that the current regime,

“was meant to promote access to justice but has frequently ended up as something of a racket allowing risk-free litigation for claimants, inflated profits for legal firms, and punitive additional costs for defendants”.—[Official Report, Commons, 17/4/12; col. 265.]

I wonder what the noble Lord has to say in contradicting that assertion made in another place. The Minister there was challenged to name one case where a mesothelioma victim had taken an unreasonable or vexatious case to court. He chose not to do so. On reflection, I am sure that he would want to reconsider linking bogus claims to the issue of mesothelioma.

The Minister then said two other things which I ask the noble Lord, Lord McNally, to ask his right honourable friend the Justice Secretary, Mr Kenneth Clarke, to ponder. One was the suggestion that people dying of mesothelioma should be “watching the clock”, which is a phrase that was used in the other place—in other words, policing what lawyers are charging. He said that,

“it is quite right that someone who employs a lawyer has some idea of what is on that lawyer’s clock and what they are charging. That is very important. If someone is sick, they will have family who can help them through their sickness”.—[Official Report, Commons, 17/4/12; col. 268.]

I suspect that when you are dying, especially from a debilitating and excruciatingly painful disease, you may have other things on your mind than watching the lawyer’s clock. As one widow put it:

“Mesothelioma sufferers are in constant pain and always fighting to breathe, they suffer horrendously and they and their families are traumatised at what the future holds”.

She also said:

“Whilst you are trying to cope with the physical and emotional trauma that comes with the words, terminal illness you cannot contemplate the extra worry and anxiety that claiming compensation would bring”.

It is also erroneous to suggest that everyone has relatives to fight their corner for them. Even if they do, should that be their primary concern when a loved one is in the last few months of their life? It is not the job of someone dying of mesothelioma to become the Government’s regulator or watchdog, watching the clock or challenging exorbitant legal fees. That is the job of regulators, not victims of a lethal industrial injury.

The Member for Wythenshawe and Sale East, Mr Paul Goggins, who kindly shepherded this amendment in the Commons, asked with great clarity:

“How can the Minister expect such victims and their families—people who have received the diagnosis and know that they are going to die—to shop around for the cheapest possible lawyer when they need every ounce of their energy to fight their disease?”.—[Official Report, Commons, 17/4/12; col. 278.]

Although our amendment was rejected in the Commons, it once again enjoyed all-party support and the government majority was one of the smallest since coming to office. That underlines the crucial role of your Lordships’ House in scrutinising legislation, especially on a day when the House is once again being told that it must be reformed. It is worth noting, as I did earlier in an intervention following the remarks of the noble Lord, Lord Higgins, that this issue was not even debated in earlier Commons stages. Our Lords amendment gave the Commons its first opportunity to consider an exception for those who had no chance of surviving their illness and little hope of seeing justice done in their lifetime. It is not a bad illustration of what one national newspaper described as “the conscience role” frequently played by this House and how it scrutinises and examines details of legislation and its effects. When an issue of this importance, affecting thousands of terminally ill people can be overlooked at Second Reading and then caught by a guillotine at Committee and Report stages, leaving it completely undebated, that raises some serious questions about which House is most in need of reform.

By sending this amendment back to the Commons, it finally allowed a one-hour debate to occur last Tuesday, although the Member for Scunthorpe, Mr Dakin, was at the very beginning of his remarks when the guillotine fell and we never got to hear what he wanted to say on behalf of his constituents. Other honourable Members of the House of Commons also hoped to speak but were unable to do so.

In the Division which followed, Conservative and Liberal Democrat Members of Parliament were among those who voted for the amendment. The speech by Tracey Crouch, the Member of Parliament for Chatham and Aylesford, who previously worked in the insurance industry, is especially noteworthy. She said:

“It is not my insurance background that drives my real interest in this issue; it is on a constituency basis that I care most. Medway has been highlighted as a hot spot for mesothelioma, which is unsurprising given that the towns have historically provided the industrial hub for Kent, and that the Chatham dockyard was one of the biggest employers for many decades”.

Supporting her, Andrew Bingham, Conservative Member of Parliament for High Peak commented on the all-pervasive nature of this pernicious disease. He said:

“My constituency, like that of my hon. Friend, has a higher than average incidence of mesothelioma. We have no shipbuilding, but there has been significant employment in other asbestos-related industries across the High Peak.—[Official Report, Commons, 17/4/12; col. 271.]

Unsurprisingly, with 30,000 deaths thus far, and many thousands more to come, many honourable Members talked about their own experiences in dealing with asbestos-related cases, and there was a series of very well made speeches. Mr Andy Slaughter, the Member of Parliament for Hammersmith, reminded the House of Commons that it is misleading to suggest that victims would be better off as a consequence of a 10 per cent uplift if some victims were to lose up to 25 per cent of their damages. He said:

“The Government have refused to reduce base costs for lawyers, which would be the obvious way to stop inflated costs. Instead, they are going after victims’ damages. The beneficiaries of all this will be the defendants and their insurers. They will have significantly reduced liabilities if they lose”.—[Official Report, Commons, 17/4/12; cols. 269-70.]

Tracey Crouch said:

“I note the Association of British Insurers is warning that mesothelioma sufferers might not benefit from those reforms if the amendment goes through. I do not believe that, and I want to issue the counter-warning that, on fatal industrial diseases such as mesothelioma, the Government will be judged on what they do to help victims, whether through financial or other types of support.—[Official Report, Commons, 17/4/12; col. 272.]

I spoke to Tracey Crouch earlier today and she told me that if we send this amendment back to the House of Commons she will persist in championing it. The reason why Members feel so strongly was summed up very well by Mr Ian Lucas, the Member of Parliament for Wrexham. He is a lawyer and said:

“I am a solicitor, and I did not go into the law to take damages away from a dying person, pending the outcome of a claim”.—[Official Report, Commons, 17/4/12; col. 275.]

Finally, in resisting the amendment in the Commons, Mr Djanogly said that if it were passed,

“claimants in mesothelioma cases would have an advantage over others”.—[Official Report, Commons, 17/4/12; col. 268.]

An advantage over others? It is hard to think of many advantages enjoyed by victims of mesothelioma. That was an ill-judged and insensitive remark.

The Minister argued that it would be unjust to single out one class of claimants for exemption. Of course it is never possible to do what we would like for everyone—I fully accept that—but does that mean that we can never see the difference between one category of victims and another? Is there not a difference between someone lodging a claim for whiplash and someone who has contracted a terminal illness? Are we really incapable of prioritising or seeing grounds for exceptions, as we have now, for instance, in medical negligence cases—and rightly so?

Noble Lords should recall that mesothelioma has attracted more legal challenges to limit liability for compensation than any other disease. Exceptionally, mesothelioma has a latency period of up to 60 years. It is a fatal disease; there is no cure. No industrial disease places claimants in such difficult circumstances when facing the stress of taking legal action.

It is moving to reflect on the comments of the late Lord Newton of Braintree, who was one of the key supporters of this amendment. Lord Newton, a former Secretary of State, Minister for disabled people and Leader of the House of Commons, referring to victims of asbestos exposure, said:

“I have some experience of claims relating to that disease—or rather to mesothelioma … I think there is a real case for wondering whether we should not maintain assistance to that group of people … this condition is what you might call very slow burn. Exposure to asbestos that occurred very many years ago may give rise much later to mesothelioma, one of the nastiest forms of cancer”.

He concluded by saying:

“I hope my noble friends on the Front Bench will not consider that this amendment would have a scattergun effect but that it is well targeted and deserves careful consideration”.—[Official Report, 30/1/12; col. 1359.]

In a letter to the Times from my noble and learned friend Lady Butler-Sloss, the noble Baroness, Lady Finlay, the noble Lords, Lord Beecham and Lord Avebury, and myself and others, we remarked on the creation of an exceptional injustice if this amendment is not supported. We said:

“Asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers”.

The letter urged Parliament,

“to protect asbestos victims from a gross injustice”.

Following the Commons debate, I am glad to say that the noble Lords, Lord McNally and Lord Freud, held talks last week with the right honourable Member for Wythenshawe and Sale East, Mr Goggins, and me. They are actively trying to find ways forward and I welcome that. As one can imagine, we were treated with characteristic respect and understanding. The movers of the amendment made it clear to Ministers that we are looking for a constructive outcome. If it comes to a Division, I hope that the House will continue to support the amendment while we continue to seek an agreed way forward. Society owes a huge debt to those who are now losing their lives to this terrible disease. Thousands of people will lose their lives in decades to come as a result of criminally negligent exposure to asbestos long after the dangers were known to government, industry and health and safety enforcement agencies. I hope that noble Lords will join me in keeping this issue in contention until a just solution is achieved. I beg to move.

My Lords, I join my noble friend Lord McNally in paying tribute to the noble Lord, Lord Alton, who has fought so tenaciously for the rights of mesothelioma victims and their bereaved families over many months and previously, before we got to these debates. I know that he has always espoused their rights and tried to do the best that he could for them. I also thank my noble friend Lord McNally for what he said about the Government’s intentions, the programme for settling cases without the necessity to go to court and the development of a scheme analogous to that which operates in the case of motor accidents where it is impossible to find the insurer. I welcome those moves but they are not in any way in conflict with what the noble Lord, Lord Alton, proposes in his amendment.

The arguments in favour of the amendment have been covered exhaustively in both Houses and I do not propose to repeat any of them now. I will say only that it is incomprehensible that, in the face of near unanimity on all sides among those who have spoken in those debates, the Government are still unwilling to give way. The argument that the amendment undermines the principle that in CFA cases the success fee and the ATE are to be paid by the winning claimant is destroyed by the concession that has been made on clinical negligence cases.

In moving to reject the amendment in another place, Mr Djanogly said that it was unnecessary because there was nothing in the Government’s proposals to prevent cases being taken or those affected receiving appropriate damages. If he had read the evidence that was provided by the Asbestos Victims Support Groups Forum UK, he would know that that was not true because many victims have said that they would not have brought cases if they had known that the success fees and ATE insurance would be deducted from the damages awarded. The Minister did not reply when asked directly by Kate Green whether he accepted that some cases would go unrepresented and unpursued.

Secondly, he trotted out the argument of inconsistency. Throughout these debates we have been perfectly clear in saying that we wanted to make an exception for the victims of what is universally acknowledged to be a particularly horrible disease that is invariably fatal, and the majority who voted for it were fully aware they were making an exception to the general pattern of CFA cases. The Minister then insinuated that the claims dealt with in the amendment were part of the compensation culture—an infamous suggestion when we are talking about people who are terminally ill. He went on to say that the Government were not persuaded that these cases were substantially different from other personal injury cases. I question whether he bothered to read our debates or has any knowledge of the ordeal that is experienced by mesothelioma sufferers in the final months of their lives. This is graphically described in the evidence submitted by the victims and relatives’ organisations, and known about directly by many past and present honourable Members from testimony that they received at their advice bureaux.

Finally, the Minister said that the Government were determined to bring down the cost of litigation. Let us be clear that, as my noble friend Lord McNally acknowledged, in this amendment we are talking about whether the claimant or the defendant pays the success fee. No cost to the taxpayer arises.

In another place, five Conservative honourable Members defied the Whip by voting for the mesothelioma amendment and several others abstained. It can be assumed that if it had been a free vote, the other place would have upheld the amendment and we would not be debating it today. It is only right that we should give them another opportunity to set aside the callous treatment that the Government have insisted on all along, and to substitute what we all know is the fair and compassionate answer.

My Lords, I add my support to the noble Lord, Lord Alton. As constituency MPs, many of us saw cases to do with this very issue and the difficulties that some of our constituents had in establishing liability after years of contact. I added my name to the noble Lord’s original amendment and heard his speech then, which set out the case admirably. I congratulate him on continuing to expose such an injustice. At this late hour, all I wish to say is that my support continues and I hope that the noble Lord will succeed.

My Lords, why success fees should be claimed at all by lawyers in this type of case just defeats me. The problem is in identifying the insurers of a particular firm that may have exposed the sufferer to asbestos many years before. I am delighted to hear that discussions are afoot on setting up a scheme akin to the Motor Insurers’ Bureau, whereby insurers come together to meet the damages and costs of a sufferer who cannot identify a particular insurance company behind his former employer. I hope that comes to pass. If it does, it will cure a lot of problems. It is obvious when a person suffers from mesothelioma; you do not have to prove that someone is suffering from this condition.

As a result of the Supreme Court’s decision last year, it has to be shown only that an employer has exposed an individual to asbestos in the past for that individual’s claim to succeed. The statistics show that these cases settle. What does that mean? It means that the fees of the lawyer are not at risk; he will have his ordinary fees paid by the insurer. Therefore, why should he get a success fee over and above that? On Report, I proposed that there should certainly be no success fee payable if a case settles before steps are taken to bring it to trial. I ask the Minister to take this into account when regulations are drawn up under what will be Section 46. The lawyer is not at risk. He has done nothing to earn more than the fees that he can properly charge. We did not have success fees in the past. We acted for people and, if we lost, we did not charge them. When we won, we got our costs and the expenses that we had paid from the other side, properly taxed. That was how the system worked.

I hope that the Government can bring in a combination of the Motor Insurers’ Bureau scheme for this type of case and couple it with regulations that say that no success fee should be charged when a case settles. That would do a great deal to alleviate the problems of which the noble Lord, Lord Alton, speaks. He is right. I stand along with Ian Lucas, my Member of Parliament in Wrexham, who as a lawyer says, “We didn’t come into this profession in order to take money from injured people”. I think that only a heartless claimant’s solicitor would charge a success fee in cases of this nature.

My Lords, I have no doubt at all about the sincerity of the noble Lord, Lord McNally, and the compassion for victims of mesothelioma that he expressed at the outset of his speech. None the less, he felt that he must advise the House to reject the amendment so powerfully moved by the noble Lord, Lord Alton of Liverpool.

I say to the Minister that there is no virtue for the Government in dogmatic consistency. I believe that they would do themselves good and, much more importantly, they would do a great deal of good for those diagnosed with mesothelioma, as well as their families and dependents, if they would agree to make an exception in this instance. If they were to do so, it would not create a permanent anomaly, and in the short term I do not believe that it would undermine the central principles of the Government’s reforms because they are absolutely secured in the legislation that Parliament will pass. In any case, the Minister need not fear because this is a category of cases that is going to reduce in number over time. Mesothelioma is, I understand, exclusively associated with exposure to asbestos. All too belatedly the terrible damage that asbestos can do to human health was recognised, and for some time due to regulations and industrial practice there has been no further exposure of people to this hazard. We can foretell with confidence that this category of cases will dwindle and, I think, disappear. Therefore, the Minister need not worry that there will be a permanent anomaly. I say to him that he does not need to persist in a doctrinaire position which runs counter to his own very real human sympathies.

My Lords, what was said in the other place about there being some advantage, as the noble Lord, Lord Alton, said, in any case of mesothelioma was most unfortunate and was, I hope, a simple slip of the tongue. Using this appalling disease to give an example of the compensation culture was equally ill advised. It plainly is not.

There is no dispute about the diagnosis of mesothelioma on any occasion. However, this is part of Part 2 of the Bill, and Amendments 31 and 32 have the effect of undermining the structure of the Bill. Part 2 was the result of Lord Justice Jackson’s report and represents an attempt to remove some of the more unattractive and, frankly, almost iniquitous aspects of the system that had grown up as a result of the changes unleashed by the previous Government’s legislation. The fact that this amendment would create an exception to this new, much fairer and proportionate system is not of course itself a reason for objecting to the amendment if it would be a denial of justice to these very deserving cases. There is no doubt that they are highly deserving cases and that they need compensation quickly. The Government have announced that there will be an increase in general damages by 10 per cent. I have to admit that I remain somewhat queasy, in common with other noble Lords, about the 25 per cent success fee that will be paid to successful lawyers in these cases, but the Government have said—and I think they are right—that the competition for these cases is such that they cannot imagine that those lawyers will insist on their success fee. A number of experienced lawyers are well geared up to taking these cases, as they have done over the years, and I very much doubt that they will want a success fee. They are, after all, as the noble Lord, Lord Thomas, said, lawyers who will recover the costs to which they are entitled. If those costs are not agreed, they will be entitled to have them assessed by a costs judge, and in due course qualified one-way costs shifting should assist.

What is important about these cases is that, as a result of a series of Acts of Parliament and decisions of the courts, they are no longer difficult to prove. With respect, they are not like some of the more complex clinical negligence cases where there are great differences of opinion over causation or diagnosis. It really is not complicated to prove these cases; nor should it be.

Therefore, the question is this: will lawyers take the cases? If they will, there will not be the terrible denial of justice to which the noble Lord refers. In my view, they will take the cases. They will be properly rewarded financially for doing so and they will have the satisfaction of representing those who deserve compensation. Therefore, while having every sympathy for the sufferers and great admiration for the campaign that has been launched on their behalf, we need to stand back and say what this amendment is about. It is about whether lawyers will be paid more money and whether the fact that they will be paid less money will prevent these cases taking place. I do not believe that it will.

My Lords, the noble Lord, Lord Alton of Liverpool, has made a very persuasive case for those who suffer from mesothelioma. Part of that case is that he believes—and he has much support for this—that there will be sufferers from mesothelioma who will not be able to recover damages unless the amendment that was previously passed remains in the Bill. We have just heard from an expert on personal injury cases—my noble friend Lord Faulks—who has expressed the contrary view. He said that lawyers will be prepared to take these cases because they are not very difficult to prove and that there will be no deficit for potential claimants if the amendment is not restored to the Bill. That leaves those of us who are genuinely interested in knowing the truth about these claims on the horns of a dilemma. Given that there is no claim of financial privilege in relation to this amendment, the answer to that dilemma is extremely important.

Therefore, I, for one—and I am sure that other noble Lords around the House share this view—would be grateful if in replying to this debate or at some point during the debate the Minister could tell us whether the department has made an assessment of this problem. What is the department’s view? Does it accept that cases will not be brought if the amendment is not restored to the Bill? If so, there is a very powerful case for an exception, as otherwise people will be denied justice for an extremely serious illness by reason of what I think the noble Lord, Lord Howarth, called dogmatic consistency. I share his view that dogmatic consistency is not a necessity for any Act of Parliament. Indeed, one has only to examine half a dozen at random to see how little dogmatic consistency there is in Acts of Parliament. Therefore, I hope that the Minister will give us that information during this debate so that we can make an informed judgment in deciding whether to vote and, if so, how.

My Lords, the case for this amendment was powerfully made in this House last month and in the other place last week, and I rise now briefly to add another voice in urging Ministers to think again, even at this late stage, and to try to find a constructive solution to this issue.

Before coming to your Lordships’ House, I was an MP in Swindon. Because of that town’s industrial history and particularly because of the large railway works, which employed many thousands of people over many years, this illness was known locally as the Swindon cancer. I, too, thank the noble Lord, Lord Alton, for his sterling efforts on behalf of all my former constituents who have suffered from this terrible disease and, I am afraid, will suffer from it in years ahead.

Ministers have claimed that it would be wrong for various reasons—I understand and completely accept what the noble Lord, Lord McNally, has said about this—to make a special case for this one disease. The fact, however, of this disease’s particular virulence, that it is inevitably fatal, that it progresses with terrifying speed, that it is hard even to find palliative care for it once it has taken hold, all argue powerfully for it being just such a special case.

It is unconscionable to force sufferers from this terrible disease, and their families, at a time when every hour is precious to them, to go through the processes required by this Bill to secure the compensation to which they are entitled. Those are fundamental points for me—whether they can secure lawyers and whether success fees are to be secured for the lawyers. Every hour is precious. The people who are diagnosed with this illness have months and sometimes only weeks to live. We should not force them to go through the processes required by this Bill.

As my noble friend Lord Howarth has already said, accepting this amendment would do no damage to the fundamental principles behind the Government’s reforms of the legal aid system. It is the only decent thing to do.

My Lords, it is the Opposition’s view that there should be no moneys taken from victims’ damages in these cases. That is the basis of our view. So we speak in favour of the amendment that has been so well moved.

There is a great feeling across this House that we have to protect victims of industrial disease and ensure that they and their families are not victims once again of reforms that are there to deal with dodgy whiplash claims and motor insurance premiums. In another place, as we heard this evening, there was a very powerful and intelligent debate on this subject. Those who often express the view that debates in this Chamber are always of a superior nature to those of another place should read Hansard carefully and look at what took place in that very short hour towards the end of Tuesday last week. It was a very good debate.

Honourable Members on all sides of the Chamber spoke with passion, knowledge and experience about this subject. Not least was Ms Crouch, a former insurance executive, who criticised both her Minister and the Association of British Insurers for their stance on these amendments. Indeed, as I understand it, she has spoken to the noble Lord, Lord Alton, today and has also put out a press release. I am delighted that a number of Members of Parliament on all sides who spoke in that debate are listening to our debate this evening.

I could also mention Mr Andrew Percy who represents Brigg and Goole, which noble Lords will know is famous for its historic shipbuilding past, and Mr Andrew Bingham, the MP for High Peak, an area that also has a high incidence of asbestosis. They spoke against the Minister’s proposals and, to their credit, voted in the Opposition’s Lobby. Their concern was perfectly understandable. Why on earth, with absolutely no savings to the state, are we reducing the amount of money that victims get from those who harm them, while handing that money to lawyers or insurers instead? Those Members on all sides who voted were not persuaded by the stupid assertions—if I may call them that—of the Minister in the other place that industrial disease sufferers should be treated in the same way as an organised gang faking whiplash injuries for payouts or someone lying about a slip or a trip on a pavement crack. Again and again, the other place heard stories of horrific suffering of victims—and the fact that you simply cannot fake cancer of the pleural linings, peritoneum or cardiac sheath.

The history of asbestos-induced diseases—and, indeed, general industrial diseases—is not a proud one for the insurance industry. It knew for decades that asbestos killed before it acted and only then at Parliament’s promptings. Insurers have fought cases—to the death—trying to get out of paying just awards to genuine victims. There is a long history of insurers fighting claims until after the death of the claimant. It is in part thanks to their tireless lobbying that compensation levels in England and Wales are not by any standard generous in cases of this kind. They are forensically calculated to reflect pain, suffering and loss of amenity and costs of past and future losses. They are far less than victims receive in comparable jurisdictions. For example, Mealey’s Litigation Report in 2007 maintained that the average jury award in the United States for mesothelioma was $7.5 million—the average award here is £65,000. Of course, the differences between jury and judge-calculated awards and our judicial systems apply, but there is a huge difference.

No one could argue that the damages victims of this disease receive are very great; they should certainly not be eaten into in the way that this Bill, if allowed, would permit. We start from a low baseline before we even consider docking damages to prevent these claimants coming forwards.

Does the Minister not support my argument that it is better that there should be no success fees at all, rather than that success fees should be claimed against the insurers, which is what this amendment amounts to—in other words, a continuation of the current system? Does the Minister not agree that in these cases, which are easy to prove once you establish the insurer, success fees are really irrelevant?

I am grateful to the noble Lord again for calling me the Minister—it is a couple of years, I think, since that was the case. I take his point though; it is a serious point. I am not convinced that lawyers who take up these cases, if this Bill in its present form becomes law, will not take success fees. In fact, I am pretty certain that they will. I cannot see why they would not. It may be a shame, but in the reality of the legal world, if they are entitled to take success fees, they will do so.

I certainly do not have the experience of the noble Lord in this area of the law, but with the greatest respect I ask whether his view is not as speculative as mine. We just do not know, but I would have thought that the history of legal proceedings of this kind is that where success fees are available they will be sought. Maybe not always up to 25 per cent, but they will be sought.