Vol. 732 Monday No. 225 21 November 2011

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Health: Early Diagnosis Children: Television International Development Syria London Olympic Games and Paralympic Games (Amendment) Bill Third Reading Legal Aid, Sentencing and Punishment of Offenders Bill Second Reading

Grand Committee Welfare Reform Bill Committee (15th Day)

Written Statements Written Answers For column numbers see back page

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Earl Howe: My Lords, the noble Lord makes an House of Lords extremely good point. The answer to his question is, Monday, 21 November 2011. yes, I believe that it will have the capacity to do that. He rightly mentions advances in genomic science, 2.30 pm which of course will have a major part to play in the field of diagnostics. As regards rarer diseases, as he Prayers—read by the Lord Bishop of St Edmundsbury will know, we are placing responsibility with the national and Ipswich. Commissioning Board for the commissioning of specialised services for rarer conditions. Health: Early Diagnosis Question Lord Collins of Highbury: My Lords, as the Minister is aware, the reduction of 10 per cent in weight maintained 2.36 pm over a period can reduce the risk of developing type 2 Asked By Lord Sharkey diabetes by 50 per cent. Small improvements in eating and drinking are needed. Will the Minister accept that To ask Her Majesty’s Government what provision the country needs a major awareness programme, led there will be for national early diagnosis campaigns by the Government, on what to do to avoid developing for serious diseases following the enactment of the type 2 diabetes; and, under the new legislation, will he Health and Social Care Bill. continue to use his powers?

The Parliamentary Under-Secretary of State, Earl Howe: My Lords, the Government have no Department of Health (Earl Howe): My Lords, both current plans for a specific national campaign to raise Public Health England and the NHS Commissioning awareness of diabetes. On the other hand, as part of Board, subject to the passage of the Bill, will have a Change4Life, which we are continuing with, we aim to clear interest in ensuring that early diagnosis supports raise awareness about diet and physical activity, and to improved outcomes in line with the NHS outcomes create what we hope will be a mass movement to help framework, the public health outcomes framework to reduce obesity and related conditions, including and the Secretary of State’s mandate. The Government, diabetes. The campaign encourages everyone to, as set out in Healthy Lives, Healthy People: Update “eat well, move more and live longer”. and Way Forward, continue to reflect on where commissioning responsibility for early diagnosis There is also the very important ingredient of the campaigns should rest. NHS Health Check in this area, which the noble Lord is familiar with, for people in England aged 40 to 74. Lord Sharkey: The Minister will know that there We think that this has the potential to prevent over have been recent and very welcome significant advances 4,000 people a year from developing diabetes. in the early diagnosis of bowel and oesophagal cancers, but not in lung cancer, which is the most common Baroness Gardner of Parkes: My Lords, I am sure cause of cancer deaths in men and women. Cancer that the noble Earl is well aware that not only lung Research UK points out that early diagnosis would cancer but all forms of cancer benefit hugely from make a significant difference to the current 5 per cent early diagnosis. Will he ensure that one existing problem 10-year survival rate. Given that, can the Minister tell is dealt with, perhaps through further encouragement the House how much money will be spent on lung of medical education? In the very rare cases of cancer early diagnosis campaigns in this financial year osteosarcoma, and to a certain extent oral cancer, GPs and how much is planned for next year? are not really aware; cases are referred to them and are missed. Surely this must be a matter of further training Earl Howe: My Lords, we have provided funding in the specialities of these rare conditions. for a number of local lung cancer awareness campaigns. On 10 October, we launched a five-week regional lung Earl Howe: My noble friend is absolutely right. It is cancer awareness campaign in the Midlands, using widely recognised that GPs have very important roles TV, radio, press and face-to-face events. All those in prevention and early diagnosis of cancer of all campaigns are aimed at improving public awareness of kinds but that, until recently, there has been very little the signs and symptoms of lung cancer and to encourage information available to enable GPs to benchmark people to visit their GP when they have symptoms. An their own activity and performance against that of evaluation of the impact of those campaigns is now other practices. We have launched what we are calling taking place. I do not have the figure in front of me of GP practice profiles, which will bring together a range the cost of those specific campaigns, but I shall let my of outcomes and process information relevant to cancer noble friend know. in primary care, so that GPs have comparative information available to benchmark their own performance. I think Lord Walton of Detchant: Does the Minister accept this will be a major plus in taking these variations that, with recent advances in molecular biology and forward. genomic diagnosis, many previously untreatable rare diseases have been identified, and that early diagnosis Baroness Finlay of Llandaff: My Lords, the is crucial in order to introduce the newly available responsibility for paediatric care for children aged five treatments for those conditions? Is he satisfied that the to 19 is moving from health—where it is to remain for national Commissioning Board, with its outreach into the under-fives—to local authorities, and public health the subnational senates, will have the facilities available will be responsible for many of these campaigns for to manage these rare diseases appropriately? early diagnosis. In view of this, how will the Government 813 Health: Early Diagnosis[LORDS] Children: Television 814

[BARONESS FINLAY OF LLANDAFF] review since 2005. Instead of waiting for new legislation, ensure that there is joined-up information and data will the Government urge Ofcom to review the EPG collection between public health, the local authority, code sooner rather than later, and place BBC’s children’s and the point at which diagnosis of complex conditions channels in their right and proper place? I declare an is made, which is usually in general practice and interest as an independent producer and a children’s paediatric departments, and therefore in health? presenter.

Earl Howe: The noble Baroness draws attention to Baroness Rawlings: My Lords, my noble friend an issue which we have been debating in various forms Lady Benjamin is right. As we all know, she has under this Bill, which is how we join up services and formidable experience in this area and is a passionate make the whole system hang together in the way that supporter of children’s television in the UK. We believe we all wish to see. The short answer to her question is that with around 30 dedicated children’s channels in that, at local authority level, the health and well-being the UK, our younger viewers have a wide choice of boards will be responsible for co-ordinating that kind programmes. Two of these are public service broadcasting of information. However, we will also want to make channels: the BBC services of CBeebies and CBBC. I sure that this takes place at a national level too. The hope that my noble friend agrees that the BBC is outcomes data that we get from secondary care providers fulfilling its public duty by making certain that these will in time, I am confident, produce information that channels play a very important role in the provision of will feed into public health campaigns. high-quality children’s programmes in this country. Lord Hughes of Woodside: My Lords, I welcome Baroness McIntosh of Hudnall: My Lords, will the the emphasis on and campaigns for early diagnosis, Minister answer the question that the noble Baroness, but will the Minister recognise that equally important Lady Benjamin, has just asked? It was not about is early treatment, and therefore not abandon targets whether CBeebies and CBBC are good providers but for ensuring that people get early intervention of the where they stand on the electronic guide. As I know to highest quality? my cost, having searched for them in the interests of Earl Howe: Yes, my Lords, we recognise fully that giving my grandchildren something worth watching, waiting times are important, and in particular diagnostic you have to go right down to number 71 on the waiting times. I am certain that the noble Lord will be electronic programming guide to find CBeebies. I do reassured to know that waiting times in both respects not think that that is high enough. Will the Government remain low, and we intend that they should remain put pressure on Ofcom to make it better? that way. Baroness Rawlings: The noble Baroness makes an important point. I am sorry if I did not stress that Children: Television Ofcom is an independent body that decides these Question things, and the communications review will be looking at this. The prominence of a children’s programme is 2.44 pm decided by Digital Multiplex Operators Ltd, DMOL, Asked By Baroness Benjamin and other operators.

To ask Her Majesty’s Government, further to Baroness Howe of Idlicote: My Lords, the BBC is the Answer by the Secretary of State for Culture, renowned for its children’s broadcasts—there is little Media and Sport on 8 September (HC Deb, col. 543), doubt about that—but as far as concerns radio how they will ensure higher prominence for children’s programmes for children, it has not been as effective public service channels on electronic programming as it could have been. Will the Minister do her best to guides. persuade all the Ministers in the department to keep Baroness Rawlings: My Lords, we are considering up the pressure on the BBC about this and also to the whole picture of public service broadcasting, encourage the BBC to do a much better job in that including electronic programme guides, as part of the respect than it has done up to now? communications review. We will publish our thoughts in the communications Green Paper around the turn Baroness Rawlings: The noble Baroness is very expert of the year. on these matters and has gone to the core of the matter regarding radio programmes. It is up to the BBC Baroness Benjamin: I thank my noble friend. I to follow up on its children’s programmes. The assessment am sure that she agrees that the BBC’s children’s of whether radio and television broadcasters are meeting channels are the largest providers of UK-made their obligations towards children is a matter for Ofcom. public service programmes. The other children’s channels provide mainly a relentless diet of cartoons Lord Brooke of Sutton Mandeville: Does the Minister and bought-in programmes. Yet on the Sky electronic feel that the present arrangements for handling these programming guide, EPG, BBC children’s channels matters are entirely satisfactory? are low on the list. Does she agree that this is not what Parliament meant by “appropriate prominence” in the Baroness Rawlings: My noble friend Lord Brooke Communications Act 2003, under which Ofcom is brings up a very important point. That is why the required to review the position of PSB channels at communications review Green Paper is being discussed least every two years? There has not been such a at the moment. In the new year we will publish the 815 Children: Television[21 NOVEMBER 2011] International Development 816

Green Paper, through which all these ideas will be fed measuring the results and making them transparent so in to the Secretary of State before the Bill comes to that the Government can be held to account. The this House. Secretary of State for International Development has also established the Independent Commission for Aid Lord Soley: Will the noble Baroness draw this exchange Impact to provide independent assurance that UK aid to the attention of Ofcom and, when she does so, will is being spent properly and is achieving the desired she express her own view that it should be higher up impacts. The commission reports directly to Parliament the list and not be down at the bottom? Will she do through the International Development Select Committee. that? Baroness Rawlings: Yes, my Lords; the EPG Lord Sheikh: My Lords, I thank the Minister for prominence is an extremely important tool for making that response. The Public Accounts Committee in certain that as many people as possible have easy another place found recently that DfID had no systematic access to the full range and diversity of the PSB or comprehensive approach to quantifying the extent channels. However, we intend to take the opportunity of foreign corruption and was unable to provide an of the communications review to look into this properly, estimate of the scale of leakage. Does the Minister to make certain that we have a fit-for-purpose system agree that this is not acceptable, and what action are for the long term. the Government taking to put this right to ensure that they secure value for money? Baroness Walmsley: Does my noble friend the Minister agree that children’s radio is a very valuable tool for Baroness Northover: My Lords, it certainly would helping children to develop their language, particularly be unacceptable if this were the case. The report very those children for whom English is not their first much reflects the position of the past and takes little language? Does she also agree that the BBC has entirely account, it seems to me, of the changes made by the failed in this despite a great deal of urging from many coalition. For example, in 2009-10 about 43 per cent of Members of your Lordships’ House? Is there anything known losses were recovered, whereas over the past that the Government can do to encourage commercial year that has risen to 92 per cent. We have also broadcasters to fill this important gap? transformed the way in which the department manages Baroness Rawlings: I am sure that that is exactly its finances so that spending is attached to tangible one of the areas that we will be including in the results, which are being rigorously scrutinised by the communications Green Paper. While the whole world new independent aid watchdog that I referred to just outside will be celebrating the Olympics and the Jubilee, now. your Lordships will have the pleasure of the exciting communications Green Paper and the Leveson review, Lord McConnell of Glenscorrodale: My Lords, will which will be looking into all forms of broadcasting. the Minister comment on the current position on the budget aid to Malawi? Six months ago the Secretary of Baroness Jones of Whitchurch: My Lords, given State suspended budget support to Malawi but gave us that there is inevitably limited space on the front pages assurances that funds would be redirected by other of EPGs, does the Minister agree that greater priority means to be spent in that country for those in need. Is should be given to ensuring that public service broadcasters it possible to give an estimate at this stage of all the and, as part of that, quality children’s programmes money that will be spent in this financial year, and are should appear on the front pages, rather than the we now on target to achieve the objectives set out in Secretary of State’s declared policy of giving priority our own Government’s development plan to support to local TV? Malawi this year? Baroness Rawlings: Regarding local television, the Government want local services to achieve EPG Baroness Northover: I realise that the noble Lord prominence on Freeview through acquiring a sufficiently has a great interest in Malawi from his work in the high channel number. The Government hope that this Scottish Parliament. I will write to him so that he has will be Channel 8, which is currently vacant in England the most up-to-date details on that. His question and Northern Ireland, and another high number for reflects the difficulty, which we all recognise, of working services in Wales and Scotland where Channel 8 is in some of the most complex countries around the already in use. world. It is extremely important that we balance the needs of the poorest people in these countries with the International Development difficulty of working through some of their Governments. Question Lord Hannay of Chiswick: My Lords, will the Minister 2.52 pm confirm that, as the press reports, the Secretary of Asked By Lord Sheikh State for International Development has today, or To ask Her Majesty’s Government what steps recently, written warning the FAO and UNESCO for they are taking to ensure that funds allocated to the last time that their aid from us may be at risk? Will international development are spent in accordance she say whether the Secretary of State intends, in the with their objectives. light of the 20 per cent or more cut in UNESCO’s budget, for reasons that have nothing whatever to do Baroness Northover: My Lords, the Government with its efficiency, and for reasons that I imagine the are focusing on delivering specific results and better Government do not sympathise with, to take that into value for money through our programmes. DfID is account when considering that particular case? 817 International Development[LORDS] Syria 818

Baroness Northover: I hear what the noble Lord Busan is trying to do that too. She is absolutely right says. In the initial part of his question, he is referring that this is something that DfID will be emphasising, to the multilateral aid review that took four organisations to try to ensure that aid is effective and targeted, and out of those that DfID would support and put four that countries and organisations should work closely into, as it were, special measures, to be reviewed. together. In this regard, it is extremely important to UNESCO’s current problems are very significant. He bring in some of the BRIC countries, which up to now is referring to UNESCO deciding to recognise the have not played such a large part in this area and may Palestinian Authority and the withdrawal of United play a major role in the future. States support as a result. I will write to him with the latest information on that. Syria Question Lord Roberts of Llandudno: My Lords, especially at this time of heavy youth unemployment, could we ask 3pm the Government to encourage organisations such as Asked By Lord Risby Voluntary Service Overseas to expand their activities and to give jobs to as many as, say, 20,000 young To ask Her Majesty’s Government what action people in developing these projects? It would give they are taking regarding the current situation in work to those who have no work, and it would give Syria through the United Nations and neighbouring hope to those who have little hope. countries. The Minister of State, Foreign and Commonwealth Baroness Northover: My Lords, we are currently Office (Lord Howell of Guildford): My Lords, the piloting the International Citizen Service, which is United Kingdom has been at the forefront of international giving more than 1,000 young people from all backgrounds activity on Syria. To raise the international pressure the opportunity to spend three months doing voluntary on the regime further, we have tabled a draft human work overseas. This will make a real difference to some rights resolution in the UN General Assembly Third of the world’s poorest people, while developing skills Committee. We have also made clear the need for that will be invaluable as they seek employment in the firmer action in the UN Security Council. The UK future. Our intention is to scale up this programme so has been active in welcoming and supporting the Arab that 7,000 young people will benefit over the next League, and is in regular discussion with key players in three years. the region, including Turkey. Lord Turnberg: My Lords, is the Minister aware Lord Risby: My Lords, as we have watched with that in the Palestinian West Bank territories many horror the murder and mayhem that has descended textbooks contain all sorts of anti-Semitic and anti- upon the people of Syria in the last eight months or Christian remarks and incitements to violence? Is that so, we should nevertheless remind ourselves of a long- not something that DfID should pay attention to in its standing historic tradition in Syria, unique in the funding arrangements? region, of quite exceptional tolerance between the different religious communities. Therefore, when my Baroness Northover: The noble Lord is right that noble friend the Minister and his ministerial colleagues some of these textbooks include things that we would have discussions with our Turkish friends and the certainly not wish to see within them. There is no Arab League at the United Nations, and most particularly doubt about that. With his work in the area, he knows with the Syrian opposition, can the clearest possible how difficult it is to bring together groups that come reassurances be given publicly to the minorities, for from opposing positions. Sometimes it is extremely whom this is an extremely fearful and difficult time, important to try to take forward the bigger picture that in the event of a change of government in Syria, and ensure that the Israeli side has security and that which now seems increasingly likely, their rights and the Palestinian side has some kind of hope. That has way of life will be fully protected? to be the focus of DfID in supporting those who are in poverty in whatever situation they may be living. Lord Howell of Guildford: The short answer to my noble friend is yes. Those are very important points Baroness Kinnock of Holyhead: Does the Minister and have certainly been brought to the fore in all these share my concern that the Development Assistance discussions, including those that took place only a few Committee of the OECD has reported that international hours ago between my right honourable friend the donors have met only one of the 13 targets that they Foreign Secretary and several opposition leaders in set themselves on aid effectiveness and that, in addition, Syria. Our view is that minorities would be best protected aid is now fragmented, unpredictable and poorly if the Syrian Government themselves would stop their co-ordinated and lacks transparency? Will she give an violent and oppressive activities and the slaughter of assurance that the Government will raise these issues many of their citizens, and at every point we have as a major concern at the Busan high-level forum on sought to encourage the opposition leaders to engage aid effectiveness later this month? with minorities and maintain non-sectarian approaches as far as they conceivably can. Baroness Northover: The noble Baroness is right that as more organisations and countries have become Lord Wright of Richmond: Perhaps I may remind involved in aid, which itself is welcome, there is a lot of the Minister of a question that I asked on 8 June this fragmentation. Previous meetings such as those in year, in which I warned of the danger of calling for the Paris and Accra have tried to take this forward, and overthrow of a system of government that is, for all its 819 Syria[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 820 faults, a secular system of government. On that point, take matters forward in respect of what the noble I endorse very much what the noble Lord, Lord Risby, Lord suggested. That faces the same difficulty at the has said. The Minister may have heard on the BBC moment. We will try to overcome it, but there are very recently the Syrian Orthodox Archbishop of Aleppo obvious obstacles. making precisely that warning. Does the Minister agree that while we are absolutely right to continue to Arrangement of Business put pressure on the Syrian Government to respect Announcement human rights, to which they are of course fully committed under the international convention on human rights, 3.06 pm we should nevertheless watch with caution the motives of some other Governments who are calling for the Lord Wallace of Saltaire: My Lords, as no amendments removal of President Bashar al-Assad, not so much have been tabled to the London Olympic Games and because of the slaughter of civilians on the Syrian Paralympic Games (Amendment) Bill, it may be helpful streets but because the Syrian Government are an ally if I announce at this point the advisory speaking time of both Iran and Hezbollah? for the Second Reading of the Legal Aid, Sentencing and Punishment of Offenders Bill. There are 54 speakers signed up. If Back-Bench contributions are kept to a Lord Howell of Guildford: The noble Lord is absolutely maximum of seven minutes, the House should be able right that there are many complexities, risks and concerns, to rise at around the target rising time of 11 pm. both in keeping the present regime and, indeed, in the removal of it. Who knows whether the violence and horrors of the present situation will evaporate and be London Olympic Games and Paralympic removed by a replacement? There may well be difficulties Games (Amendment) Bill ahead. However, we are encouraged by the fact that Third Reading the Arab League has taken the position it has, of criticising and challenging the Syrian Government— 3.07 pm indeed, of expelling them from the Arab League—and Bill passed and returned to the Commons with taking a very firm stand for the future. We want to see amendments. the Arab League take a lead on the whole Syrian situation and indeed we are working at the United Legal Aid, Sentencing and Punishment of Nations to see that it has a stronger say so that we can mobilise the full force of the global community for Offenders Bill change. Second Reading 3.07 pm Lord Triesman: My Lords, the noble Lord, Lord Risby, asks the right question, and at a key moment. I Moved By Lord McNally greatly appreciate the work that the Government have That the Bill be read a second time. done on the human rights resolution, and I hope that it might be possible, with the visit of the President of The Minister of State, Ministry of Justice (Lord Turkey, to pursue some of those arguments as well in McNally): My Lords, this is a substantial and far-reaching the near future. Does the Minister think that there is Bill. Its breadth is a consequence of the scale of its scope for an escalating pattern of sanctions, which ambition, which is nothing less than intelligent, radical could be agreed at the UN; for the encouragement of reform of the justice system. It aims to reform our appropriate bodies which nominate people, to remove criminal justice system so that it protects and serves Syria from some of the multinational bodies on which the needs of the law-abiding, especially victims. It it still sits; and for an extension in issuing warrants recognises that, for many offenders, prison does work under the rubric “crimes against humanity”, in order and clear, stiff punishments are the right response to to increase the pressure on what is an obnoxious serious crime. But it also seeks to meet the challenge of regime? persistent offending by bringing on stream a rehabilitation revolution which, if successful, would be a win-win, Lord Howell of Guildford: There can certainly be an saving future victims from the trauma of a crime and escalation of pressures. Indeed, that is what we are the taxpayer the cost of incarcerating the offender involved in with the new EU measures that we are once again, at the same time introducing to society a proposing, which will come forward on 1 December—the productive citizen whose life is not wasted in the cycle week after next—and the UN Human Rights Commission of criminality. report, which is appearing next week, as well as doing The Bill’s second goal is the long-overdue renewal what we can to carry forward the possibility of a UN of our system of civil justice. A modern system should Security Council resolution. However, one has to be resolve conflict as early as possible in the most cost- realistic. In the UN Security Council there remains effective way. Yet the reality is that many ordinary very great reluctance and indeed obstruction to advancing users find going to law a slow, expensive and daunting any Security Council agreement on a full resolution experience that fosters rather than minimises litigation, for further action. We are constantly working to overcome often at the taxpayer’s expense. that, but it is there. That of course applies to the The Bill therefore seeks to remove certain areas from International Criminal Court aspects as well because, the scope of legal aid while encouraging a step-change as Syria is not a signatory to the ICC, it requires a UN in the use of mediation and other ways of resolving Security Council resolution to authorise the ICC to disputes. It also implements the recommendations of 821 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 822

[LORD MCNALLY] free advice services, as well as undertaking a cross- Lord Justice Jackson on reforming no-win no-fee funding government review to ensure that people continue to arrangements, which have become dysfunctional and have access to good quality free advice services in their inflationary. We also propose to ban referral fees. communities. Underpinning these first two aims is our third Concerns have also been raised about the impact of intention; namely, to make a contribution to unavoidable Part 1 on children and women. Let us be clear from and necessary reductions in public spending. We approach the outset: we have retained legal aid for child protection our task with a profound belief in the fundamental cases, civil cases concerning child abuse and those importance of access to justice but the system as it involving special educational needs. We have also stands faces an unignorable problem of affordability. made special provision to retain legal aid for child Therefore, Part 1 introduces major reforms to the parties in family cases. The consequence is that the scope of civil legal aid. Alongside this, the changes in vast majority of support for children will be unaffected Part 1 mean a fundamental shift in the way the legal by our changes. In 2009-10, the Government provided aid and wider civil justice system works. £133 million in civil legal-aid funding to child parties For those who say that those most in need must in all categories of law. Under our proposals, 95 per have legal help to support them when they have a cent of that will continue. serious legal problem, I agree. For those who say that people must have legal help for whatever they want, In relation to women’s access to legal aid, we are whenever they want, I cannot agree. Access to justice again prioritising those most at risk of harm, retaining is not the same as state-funded access to legal legal aid for private law cases involving domestic violence, representation at court. We must do more to encourage where we have broadened the range of evidence accepted. people to use alternative, less adversarial means of Applications for protective injunctions and associated resolving their problems. advice will continue to be funded. We have approached our reforms of legal aid from In addition, in private family cases, Part 2 extends first principles and have taken into account the relative the courts’ powers to require one party to pay towards importance of the issues at stake, the litigant’s ability the other’s costs. This will help significantly in cases in to present their own case, the availability of alternative which there is an inequality of arms. In family law as a sources of funding as well as alternative sources of whole, the taxpayer will still be providing over £400 million, help and advice. Our proposals seek to focus legal-aid much of which will benefit women. funding on circumstances where a person’s life or Of course, the dire economic situation that we liberty is at stake, where they are at risk of serious inherited drives some of the tough choices that we physical harm, or where they face immediate loss of have had to make. Indeed, noble Lords opposite were their home. Importantly, we are also retaining civil already trying to cut legal aid at a time when they were legal aid in cases where children may be taken into still telling us that they had cured boom and bust. We care. all agree that legal help for those facing serious legal The net effect of all this is significant change. Yet, difficulties is fundamental. On the other hand, substantial in all, we estimate that the taxpayer will still spend the changes and reform are much needed. We believe that best part of £1.7 billion on legal aid each year after our proposals in Part 1 achieve this balance. these reforms have been carried through. Prioritising critical areas of spend necessarily means taking a Part 2 implements reforms in civil litigation funding and more radical approach elsewhere. That is why, for costs, based on Lord Justice Jackson’s recommendations. example, we have decided to remove taxpayer funding No-win no-fee conditional fee agreements were first for legal representation in private family law cases introduced in England and Wales by my noble and and, instead, increase spending on mediation. Similarly, learned friend Lord Mackay of Clashfern. Most observers in areas such as employment, routine immigration believe that they succeeded in their goal of improving applications and welfare benefits issues, legal aid will access to justice for those who were neither poor no longer be available. As noble Lords well know, the enough to qualify for legal aid nor wealthy enough to original rationale of the tribunals system was precisely afford the costs of privately funded litigation. However, to enable people to make their case without the later changes tilted the balance much too far in favour intervention of a lawyer. of claimants. The Master of the Rolls, the noble and learned Lord, Lord Neuberger, said to the Times only Although narrowing the scope of legal aid, we last week: intend to provide a safety net. The exceptional funding scheme established in the Bill will provide funding for “When you see the level of costs in some cases … it is clear an excluded case where failure to do so would amount that the system is unsatisfactory, some would say worse than to a breach of a person’s right to legal aid under the unsatisfactory, and something needs to be done about it”. Human Rights Act or European Union law. We also This Bill intends to do something about it by ending intend to address worries about the future of the the recoverability from losing parties of success fees valuable work done by the not-for-profit sector. This is and insurance premiums that drive up legal costs. This an important part of our alternative and we recognise will be balanced against a 10 per cent increase in the need for a strong sustainable body of advice providers. general damages for claimants. By taking these steps, The Government have already announced a we will restore common sense to the system and stop £100 million transition fund for the not-for-profit the perverse situation in which fear of excessive costs sector. I can confirm that, as announced this morning, often forces defendants to settle, even when they know we are injecting an extra £20 million specifically for that they are in the right. This marks a return to the 823 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 824 kind of arrangement that prevailed when the system The first of the measures is greater discretion. We was first set up by my noble and learned friend Lord are legislating to provide more flexibility for judges Mackay in the mid-1990s. and magistrates to sentence appropriately. The Bill is a I am well aware that a number of noble Lords, first step to unpicking the labyrinth of legislation many of whom are sympathetic to the broad thrust of governing sentencing and creating a single framework the Jackson reforms, have concerns about how this for the release and recall of offenders. We are also will impact on certain areas of litigation. I will listen proposing a simpler, clearer duty on the court to to what they have to say both during today’s debate explain the sentence it passes, enabling it to be understood and when we return to those matters in Committee. better. The Bill also introduces greater flexibility and I turn now to the third and final part of the Bill, discretion by removing the so-called “escalator principle” which concerns our sentencing proposals. I want to of out-of-court disposals for under-18s, which forces start by making the point that these reforms are designed young people arbitrarily into the criminal justice system, with the victims of crime very much in mind. As I have regardless of the nature of their offending. In this area said already, for many, prison is necessary and it of youth justice reform, we are also undertaking the works. However, if it is truly to protect the public, it important step of treating 17 year-olds as children for needs to do a much better job on tackling reoffending. remand purposes, and giving “looked-after child” status to all young people aged under 18 who are securely We have two key proposals to deliver this change. remanded. This will enable, for the first time, care The first is to introduce reforms across the estate to plans to be created for those young people who are make our prisons places of hard work, not idleness. remanded to youth detention accommodation. Getting prisoners into the habit of work matters in its own right not only because unemployment is a major In the wider system, we seek to take a tougher risk factor in reoffending, but because once you get approach to waste and reduce unnecessary pressures. offenders working, you can institute a much more Our major reform here is our proposals on remand in effective system of reparation to victims and to Chapter 2 of Part 3. These focus the use of remand in communities. Accordingly, this Bill enables deductions custody on those who are likely to receive a custodial to prisoners’ earnings to pay for victims’ services and sentence if convicted, with an exception in domestic puts a positive duty on the courts to consider handing violence cases. While I recognise that this change will down compensation orders, the proceeds of which can be unwelcome to some, continuing to remand into go direct to victims. These reforms will help to move custody people who in reality have no prospect of prisoners from being a purely negative drain on the being sent to prison if convicted is simply a wasteful system to making a positive contribution and pay use of expensive prison places. On the other hand, if genuine reparation to the victims who their actions you have committed a serious crime, you can expect a have affected so terribly. serious punishment, so Part 3 introduces a number of new criminal offences which ensure that the public Running parallel to the Bill, our second key proposal have confidence in the system. These include: criminalising is paying by results those organisations which work to squatting in a residential building; minimum sentences rehabilitate offenders. This is a truly radical reform for those aged 16 and over who use a knife or offensive with the potential to revolutionise the way a lot of weapon to threaten another person and cause an rehabilitation services operate. Rehabilitation is the immediate risk of serious physical harm to that other key theme that runs right through the Government’s person; and a maximum penalty of five years’ sentencing proposals. One need only look at this summer’s imprisonment for causing serious injury by dangerous riots, where around three-quarters of suspects had driving. previous convictions, to see that existing punishments have so far failed to reform. I believe that we need Lord Reid of Cardowan: Before we leave sentencing punishment which is robust and proportionate but I would like to ask the Minister a question about that is also accompanied by a determination to get indeterminate sentences, which he has not mentioned. offenders to face up to the causes of their crime. We In doing so, I declare my interests, as registered. The are offering those who commit crimes a choice. For Minister may know that some years ago when I was those who do wrong, you will be punished, but for Home Secretary, I gently reminded the judiciary of the those who choose to mend their ways, we are extending premise behind the sentencing guidelines that people a helping hand. That helping hand includes freeing up should not be sent to prison for offences that did not courts to impose drug, alcohol or mental health treatment merit it but should be given community services, whereas requirement programmes which are tailored to individual people who were a serious danger to society should be needs. retained indefinitely for protection, not for punishment. I can also announce today that the Government Could he say something about that relationship, in intend to introduce reforms to the Rehabilitation of particular indeterminate sentences, before he moves Offenders Act 1974, the outdated operation of which on? inhibits rehabilitation. We intend to bring forward amendments to achieve the right balance between the Lord McNally: Patience, my Lords. I will be turning need to protect the public while removing unnecessary to IPPs. barriers that prevent reformed offenders contributing On knife crime, in particular, I understand the to society. I pay tribute to my noble friend Lord arguments of those requests and the desirability of Dholakia on his long campaign on this matter. We minimum sentences. We have not taken this decision believe that punishment must be proportionate, flexible lightly but only after careful consideration. The stark and productive, so let me turn to some of the key reality is that too many people are affected by this measures in the Bill which will ensure that. scourge and more often than not those targeted will be 825 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 826

[LORD MCNALLY] As the Minister indicated, the Bill is plainly a other children, whom we have a duty to protect. This substantial piece of legislation. It makes major changes offence will bite where this becomes most serious, to the civil law, with consequences for access to justice. where the knife is brandished and there is an immediate Our principal concern focuses on extensive cuts to risk of serious physical harm to another person. I can legal aid and a dramatic switch in civil litigation to say with some feeling that every parent of teenage place greater financial burdens on winning claimants, children knows the worry that an innocent night out hitherto treated as entitled to restitution for their loss might end in an act of violence against their child, and and damage. As the House’s Select Committee on the I make no apology for acting to send the clearest Constitution has observed—as if there were any doubt possible message that this is unacceptable. about the matter: I now wish to turn to one of the Bill’s most important “There is no doubt that access to justice is a constitutional reforming measures, namely reform of the current principle”. system of indeterminate sentences for public protection. The section of the Bill on criminal justice is perhaps IPPs are poorly understood by the public. They lead less sweeping and less controversial, encompassing as to inconsistent sentences for similar crimes. They deny it does both sentencing reform, much of which we victims clarity about the length of time an offender support, and the creation of new criminal offences, the will serve. The previous Government estimated that latter for the main part having been introduced on there would be around 900 such prisoners in jail. Report in another place. There are now 6,500 and more than half of those are beyond their tariff. As of the end of June 2011, only It is the changes to both legal aid and civil litigation 320 had been released. that have rightly attracted the most concern, the most representations from civil society and the most debate IPPs clearly need major reform. We will replace the in another place. It should be clear from the outset IPP with the new extended determinate sentence. Instead that we oppose many of these changes. I know from of serious violent and sexual criminals being released speaking to certain of your Lordships that these concerns automatically halfway through their sentence, those are shared by many here. My noble friend Lord Bach receiving the new extended determinate sentence will and I will advance arguments as to why those changes have to serve at least two-thirds before they can be are both economically misguided and target the wrong considered for release, and the more serious offenders people. They target, for example, the most vulnerable will not be released at that point unless the Parole in the case of legal aid, including vulnerable families, Board considers it safe to do so. Under our plans we and victims in the case of civil litigation reform. expect that more dangerous offenders who commit a second serious crime will receive a mandatory life Part 3 of the Bill contains a variety of fairly substantial sentence. We believe this is a balanced reform, one changes to the criminal justice system, some of which where victims will have a clearer understanding of we welcome. For example, the Government intend to how long offenders will spend in prison and will be divert away from custody people with mental health kept informed of progress and release plans. It is an and addiction problems as well as young people. These attempt to deal with the real problem without proposals are both sensible and proportionate. The compromising the public safety or ignoring legitimate Government propose to end indefinite sentences for concerns about serious offenders. public protection, IPPs, which have attracted considerable I am well aware, given the range of expertise in this criticism over the years. The plan to replace IPPs with House, that the sentencing reforms that I have outlined extended determinate sentences and mandatory life will be subject to scrutiny and debate, both today and sentences for the offender who commits certain specified in Committee. So, too, will our proposals on legal aid, offences twice will plainly require scrutiny in Committee, on the Jackson reforms and the rehabilitation revolution. as the Minister anticipated. This is as it should be for this is a revisory and an The Bill also aims to change the way in which advisory House of great wisdom and expertise, and I remand works in England and Wales by limiting its will listen. But we remain clear about the need to make use where a judge rules that there is no probability of a hard choices and fundamental reforms in our justice custodial sentence. Our view on this issue is that there system. If we get this right, the prize is a justice system is of course merit in reducing the use of remand where that contributes to a safer and fairer society by tackling it is unnecessary, but only if it does not put victims reoffending and by putting the victim at the heart of and the general public in harm’s way. Further, there everything we do. Moreover, it will be a system that are due process issues for a magistrate, who, without protects access to justice where it counts while keeping having seen prima facie evidence, is required to decide costs under control and ensuring the system has less whether an offender is likely to be sentenced to custody. waste and less delay. Our aim has always been to The Government have signalled their intent to bring propose a balanced package and I can tell the House forward in this House further changes to remand in that that remains exactly what this is. This is a radical response to campaigns such as that by the parents of and reforming Bill and I commend it to the House. I Jane Clough, who was murdered by her ex-partner beg to move. while he was on bail pending charges for her rape We expect that these will require considerable scrutiny so 3.29 pm that we can balance keeping the use of remand while Lord Davidson of Glen Clova: My Lords, I thank protecting the public. the Minister for his measured introduction to the The Bill also creates new, or possibly restated, criminal Bill. First, I should declare an interest as a practising offences of threatening with a knife and squatting, member of the Bar. alongside what the Government call a “clarification” 827 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 828 of how much force can be used in defence of property. It goes on to say: I expect that there will be constructive debate in this “The design of the legal aid reductions and changes will take House on these issues. away routes to accessible early advice (including by the damage I return to Parts 1 and 2 of the Bill, which correctly done to the advice sector, which in turn damages access to wider pro bono legal services) and leave intervention too late or denied have attracted most concern. The cuts to legal aid set altogether. As a result we will find more cases started by self- out in Part 1 and the reduction of damages that represented claimants that need not have been started, more cases victims receive set out in Part 2 are contiguous assaults where self-represented defendants are involved for longer than on access to justice for both the most impecunious in need be, and more cases not starting when they should be started society and those of moderate means. The Government so that they can be resolved. We will find problems clustering, aim to make substantial cuts to social welfare legal aid with increasingly wide and serious consequences for the individual, and advice. Welfare benefits will be removed from the for families, and the state”. scope of legal aid. Education, advice and representation, The Government’s own assessments do not read except for matters dealing with special educational particularly hopefully. They say the cuts to social needs or discrimination, will be removed from scope, welfare legal aid threaten to lead to reduced social as will be debt advice, except where the client’s home is cohesion; increased criminality; reduced business and at risk, employment advice and representation, except economic efficiency; increased costs for other departments; discrimination issues, and housing advice, except where and increased transfer payments from other departments, the client’s home is at risk. The Government apparently in particular higher benefits payments for people who hope to save some £64.5 million by removing these have spent their savings on legal action. areas of law from scope while, we say, adversely affecting These proposals merit considerable scrutiny by this the most vulnerable people in society. We say “adversely House. I urge those who have not done so to read the affecting” as these citizens will now have to navigate Hansard record of the Committee and Report stage of the first-tier tribunals on their own without advice or this Bill in another place. Members from all sides have representation. argued that these changes will do little to enhance our I appreciate the first-tier tribunals are meant to be society.This House’s Select Committee on the Constitution more user-friendly to the unrepresented applicant than suggests an amendment to oblige the Lord Chancellor the courts, but they still rule on matters of law, which to, user-friendliness in itself does not assist. The Minister “secure that legal aid is made available in order to ensure has indicated that today apparently £20 million will be effective access to justice”. made available in respect of free advice. I have one or We consider that this is a necessary buttress to justice. two questions about this. It would be interesting to The second major change to the legal aid system is know, for example, whether this is free legal advice, that to private family legal aid. Private family legal because legal questions tend to require legal advice. I aid, which helps impecunious applicants with matters ask this question because we on these Benches have including divorce, custody or ancillary relief—payments received little information about this proposal. I also and maintenance following divorce—will no longer be ask whether this is possibly the same £20 million to funded by legal aid unless the applicant has suffered which reference was made on 2 June this year. domestic abuse. The Government have set out six The risk is that someone who has a learning disability forms of evidence that they will accept for the purposes or poor language or communication skills will receive of accessing private family legal aid. no help at all. Answers to Parliamentary Questions We believe, as do many others including the Women’s reveal that those who appear before the tribunals with Institute, Rights of Women, and End Violence Against specialist advice are twice as likely to win as those Women, that this evidential prescription will adversely without specialist advice. If we look at the data for the affect women. In particular, the Opposition are very last year, taking advice away from those who won concerned that the evidential criteria adopted by the raises the question whether those 51,000 people who Government are too narrow. In fact, they do not even received advice and won their case would have in fact reflect best practice across government. The UK Border won at all. Agency’s list of accepted evidence on domestic violence The real concern is that people, who have meritorious is broader than the Bill’s treatment of someone seeking cases, where advice would permit their cases to be pled legal aid for divorce. cogently and persuasively, will lose out. We know that One is given to understand that the Government where the vulnerable lose out, their lives can sometimes are worried that evidential criteria containing an element tip over into ill health, homelessness and family of self referral and their decision to make domestic breakdown. Of course, it is then, only then, that the abuse the gateway to legal aid will create a perverse state will be obliged to intervene. incentive to claim abuse where they might be none. It costs £150 per case of debt advice, but many But this approach seems to create and foster thousands are required to be spent to resolve a case of institutionalised doubt as to the veracity of victims’ homelessness. It can be tens of thousands of pounds— claims in the first instance. Put colloquially, women many tens of thousands. will lie. We fear that it will disadvantage women and The Civil Justice Council, the non-departmental indeed men who leave a partner after sustained abuse. public body that advises the Ministry of Justice on They may not have revealed their experience of abuse civil justice, states in its recent report on access to to others but they will be denied legal aid because they justice for litigants in person: do not fit the set criteria. That is hardly an advance, noble Lords may agree. “It is hard to overstate just how difficult it can be—for the person, for the court, and for other parties—when someone Part 2 of the Bill deals with reform of civil litigation self-represents”. funding and costs. The Government believe that 829 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 830

[LORD DAVIDSON OF GLEN CLOVA] children and adults will find it hard to instruct a contingency fee arrangements—that is, no-win no-fee lawyer who is willing and able to take on their cases. claims—require substantial reform. No-win no-fee is People who have lost out to incompetent or fraudulent a mechanism allowing people of little or moderate financial advisers, lawyers or accountants, will find means to access the courts without having to mortgage that they will end up recovering less than they lost, their houses or get into severe debt funding an action despite having done nothing wrong. To lose 25 per on a standard fee basis. No-win no-fee has worked cent of damages today connotes significant contributory remarkably well as a means of funding litigation. It negligence by the claimant. Under this Bill, the limits liabilities for claimants and deters lawyers from damaged—the blame-free—will lose out; and for what taking on vexatious or spurious cases while enabling overriding public good? It would no doubt be crude reasonable cases to be taken on, all through the awarding sloganeering to suggest that this is for the protection of success fees. of insurance company profits, but one is left puzzled The Government’s plans, which we will examine in seeking to identify the clear policy objective justifying their technicalities in due course, propose major changes such consequences. The Minister will no doubt assist to the settled system that we have now. How will it the House with an explanation beyond what we have affect those who find themselves needing recourse to heard thus far. litigation, often literally through no fault of their I turn to another area of the adverse effects of this own? Winning claimants—that is, those who have Bill: business and human rights. Cases such as Trafigura, been wronged—will lose out. They may have to pay up the toxic waste to Africa case, will be most unlikely to 25 per cent of their damages to their lawyers ever to be brought again in future, and that for cost excepting any award for future care. It is true that to reasons. The UN Secretary-General’s special representative make up for part of these losses the Government plan for business and human rights, Professor John Ruggie, a 10 per cent increase in damages for pain, suffering of Harvard University, alongside campaigners such and loss of amenity, but not all damages awards. The as, inter alia, CAFOD, Friends of the Earth, Amnesty simplest arithmetic shows that the increase is unlikely and Oxfam, all urge a rethink. We join them. to replace the percentage paid to the lawyer. Turning to employment law, it is already under Oddly, losing claimants, however, will gain. They assault in so many ways, whether from tribunal charges, will no longer have to pay the costs of winning defendants. legal aid cuts or so-called blue-sky thinking to remove That is part of the qualified one-way cost shifting the laws completely. If people are made redundant or scheme that the Government intend to introduce once sacked unlawfully and their entitlement to remedies is the Bill passes. Local authorities and insurers are blocked, the result in many cases will be that the state privately counselling that that will lead to an explosion has to provide the support for which otherwise the in fraudulent small claims, typically slips and falls, employer is liable. We note also that insolvency cases where the authorities’ costs of defending exceed the raise issues. HMRC and the Insolvency Service have claim. Elsewhere, the Government say that they fear stated that they are lobbying for an exemption, which perverse incentives. is possibly not an example of a joined-up government. We also find that losing defendants—that is, the I should also mention concerns about defamation law. wrongdoers, those proven to have caused harm—will YourLordships will be aware that the Joint Committee gain because they will not have to pay the cost of on the draft Defamation Bill has observed that this after-the-event insurance and the victim’s lawyer’s success Bill’s proposals do not put libel proceedings, fee thus limiting their and their insurers’ liabilities. “genuinely within the grasp of the ordinary citizen”. Winning defendants who successfully defend their cases It is hardly an endorsement. Your Lordships will also will no longer be able to reclaim the cost of their be aware that the family of Milly Dowler are powerful defence thanks to qualified one-way cost shifting. Not advocates for the argument that the no-win no-fee all defendants, of course, are large companies or insured system works. persons. Finally, I turn to industrial illness and disease, one The gainers from this Bill are losing claimants and of the most difficult areas. Many charities, including losing wrongdoers and their insurers. The losers are those that support the victims of asbestosis, have claimants who prove their cases and defendants who expressed real concern that this Bill threatens their are held not to be at fault. Such outcomes are at best ability to get access to justice. I will read a few excerpts curious to those who prefer justice and fairness. from a letter written by Yvette Oldham, whose partner The majority of civil cases involve road traffic Trevor was a victim of asbestosis. She wrote: accident personal injuries and it is true that the Association “My husband Trevor and I were devastated upon hearing his of British Insurers and the right honourable Jack diagnosis of mesothelioma in March 2010. We were just a normal Straw have highlighted how so-called whiplash fraud couple with a grown-up son, leading busy lives at work, socialising and sporting activities. Trevor is in no way to blame for his is a real problem in this area. However, this Bill has condition and was exposed to asbestos between 16 and 24 years consequences well beyond that problem, which can be of age when he was an apprentice lift engineer erecting lifts on resolved by a more focused approach. The effect of building sites … This disease has affected our lives in every the Government’s changes will be to render much of possible way and stress levels have been extremely high for both of the law that protects the individual no longer practically us … Trevor has been in pain since the condition showed itself, he accessible to many of our fellow citizens. If we take is very sensitive to strong pain-killing drugs, so is unable to take the acute area of clinical negligence, for example, the more effective pain relief. Compensation would be eroded by having to pay legal costs plus insurance to cover defendants’ legal NHS Litigation Authority—hardly a claimants’ advocate costs, plus the worry of having to pay some fees upfront. This is because it defends clinical negligence cases— identifies an insult and will discourage people from making a claim to in its response to consultation that severely brain-damaged which they are entitled. This Bill should be designed to stop the 831 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 832

‘ambulance chaser’ brigade who contact prospective clients and grown sleek and fat on the rich pickings of advising advertise constantly, not workplace victims whose lives were put the sick, the disabled, the unemployed, the homeless at risk by exposure to asbestos”. and the immigrant have no need to go to WeightWatchers; This Bill overturns central aspects of our civil justice they can now slim effortlessly. The matrimonial courts system that have proved positive and progressive. The and the welfare and immigration tribunals of this most vulnerable people in society and victims are country will resound not with the arguments of dry-as- being disadvantaged. Some say that the purpose is to dust lawyers any more, but with the arguments of attack a so-called compensation culture. Of course, good, honest, grievance-holders who will present their there are abuses, as can occur in all systems, but there concise cases with style and precision and smoothly is no evidence—evidence, not headlines—of continuing win their way to justice. Those of us with practical pervasive abuse requiring this Bill’s approach. We experience of the court system have just the smallest believe that the Government will struggle to justify the hesitation in applauding. changes this debate will highlight. We can promise that In welfare, immigration and benefit law, one principle the Bill will be subject to substantial scrutiny in Committee. stands out, and it is a principle to which my noble friend Lord McNally referred in his opening remarks— 3.50 pm that of equality of arms. There has to be equality of Lord Thomas of Gresford: My Lords, one of the arms between the state and its offshoots and any three great universal lies is, “I am from the Government person in dispute with the state. At the very least that and I am here to help you”. I assure my noble friend requires legal advice, assistance and advocacy in the Lord McNally that we are from the Liberal Democrat Upper Tribunal on appeals from the social entitlement Benches and we are here to help you. I hope that by and the immigration and asylum chambers of First-tier the time we have finished this process that will not turn Tribunals to the Upper Tribunal and appeals from out to be the fourth great lie. there to the Court of Appeal and the Supreme Court. Many aspects of this Bill are very welcome. The It also means a focus on better decision-making at sentencing provisions demonstrate the enlightened views first instance in these areas and a far less adversarial of the Lord Chancellor, who sees great merit in improving and more co-operative climate where litigants appear the system of retribution and reform by community in person in front of First-tier Tribunals. sentences, not to mention the many millions of pounds For the moment, I shall say little about areas of law that it will save in keeping offenders out of our great that are removed from the scope of legal aid, save that universities of crime. One client said to me not so long the argument to retain clinical negligence within scope ago—he was a man of excellent character before he is, in our opinion, overwhelming. The Lord Chancellor went to prison—“I don’t need to work again. After takes power to remove further areas of the law out of what I’ve learnt in here over the last six months, my scope, but takes no power to return into scope those future is made”, so that is one less on the jobless list. It areas where, as we reluctantly predict, the courts and is true that in this Bill the old devil is peeping out from tribunals will quickly grind to a halt. the provisions for mandatory sentencing, but we shall I must make this point too; we on these Benches are deal with that in Committee. My noble friends Lord not committed to smaller government, and when the Dholakia and Lady Linklater will speak further on economy improves we will look to ensure that access these matters shortly. to justice in all areas is guaranteed. However, if financial Once again, parts of this Bill have not been debated necessity demands savings, it is essential that advice by our elected representatives and have passed through services to the public are fully supported. My noble on the nod. I single out particularly the new crime friend Lord Shipley will expand on that, but it seems of squatting. Are current civil powers of kicking out to me that if the Government are stipulating that the squatters and letting them go on their way not enough? only gateway to legal aid is initially through the Must we punish the homeless with fines and imprisonment Community Legal Advice helpline, they should think as well? My noble friend Lady Miller of Chilthorne again. The legal advice centres, citizens advice bureaux Domer, who wished to make this point today, is unhappily and other voluntary advice organisations, whose very not with us but she will address this issue in Committee. existence is threatened by the cuts in legal aid, are a This is certainly not hating the sin but loving the national resource not to be lightly cast aside. Rather sinner; it is hating the sinner because of the chaotic than expanding the CLA helpline, the Government person he usually is. should fund these organisations to use their considerable I declare an interest in that over the past 50 years I expertise and local knowledge in providing the have made my living from legal aid, and I am proud to independent telephone and e-mail advice, which will say so. The system has been due for revision and certainly be required. change for some years. It is a basic principle that: In the course of the Bill, I intend to focus on the “In the determination of his civil rights and obligations— changes promoted to conditional-fee agreements and a person who can afford it— after-the-event insurance in Part 2 of the Bill. My “is entitled to a fair and public hearing within a reasonable time noble friend Lord Phillips and I were hotly opposed to by an independent and impartial tribunal established by law”. the alterations contained in the Access to Justice Act 1999 I am sorry, I made a mistake; Article 6 of the European on the principle that a lawyer ought never to have a Convention on Human Rights actually states that financial interest in the outcome of a case. I shall table “everyone” is entitled to a fair trial. amendments to continue that fight against the creeping The legal aid provisions of the Bill are not designed advance of third-party litigation funding, which used to increase access to justice; they are meant to save to be called maintenance and champerty, to introduce money. That is fair enough. Those lawyers who have regulation into a completely unregulated field. 833 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 834

[LORD THOMAS OF GRESFORD] taking up their entitlement. The Government have However, we have to sort out in the present provisions said that they want to protect those with the greatest of the Bill not only the principle of whether the need, but many hundreds of thousands of disabled success fee and after-the-event insurance premium people could have their support removed, and for should be deducted from the damages of a claimant many, the proposals in this Bill could act as a double who has been injured by the negligence of the defendant, whammy. but the uncertainty introduced by the proposals for No benefits system is easy to understand. However, qualified one-way costs shifting, to which the noble to push technical advice to volunteers or to Jobcentre and learned Lord, Lord Davidson, referred. The Plus is not appropriate. Specialist advice is required in unintended consequences of the present proposals compiling evidence and also to meet the tight timescales include much more satellite litigation: the destruction in the appeals process. I am very interested in this area of after-the-event insurance in claims other than personal as I have an amendment to the Welfare Reform Bill, injuries, such as in environmental law where we have now in Grand Committee, which seeks to remove an international obligations under the Aarhus convention, extra step to the appeals process. One reason that I and in other complex and different cases where the believe in protecting legal aid for disabled people is ordinary man faces an industrial or commercial giant that in 60 per cent of appeals in which disabled people or the intransigence of local authorities. The concept were eventually found to qualify for ESA, zero points of abolishing referral fees is to be welcomed, but it is had been allocated at the initial assessment. That is a another area that must be fully explored and the real massive turnaround, highlighting some of the problems abuses rooted out. with the assessment process, which quite rightly has We are here for the long haul, and in Committee been discussed elsewhere. However, it is clear to me and at later stages we shall wish to put many things that it is right to support people through the appeals to the noble Lord, Lord McNally. We look forward to process and this must be protected. those stimulating encounters. The Government’s impact assessment shows that disabled people make up a disproportionate number 4pm of those who receive legal aid for welfare benefits Baroness Grey-Thompson: My Lords, I have a number cases: some 58 per cent. This translates to over 78,000 of concerns about this Bill, specifically in the area of disabled people who could be denied specialist legal legal aid which has been outlined wonderfully by the help if these measures go through. I have spoken many noble Lord, Lord Thomas of Gresford. Like many, I times about my desire to get more disabled people into have worried that we have been creeping towards a work, but it is about getting the right advice and more litigious society. However, research suggests to putting the right steps in place to encourage this to me that instead of encouraging litigation, legal-aid happen. advisers only recommend that clients go to appeal if The Government’s own research has found that the they judge that there is a realistic chance of winning. public will face poorer case outcomes, longer delays in They act as independent gatekeepers, keeping costs the resolution of cases and a declining prospect of down. settlements, and vulnerable people with complex needs The Bill proposes that legal aid should be provided will be forced to present their own cases. The court for some alleged victims of abuse in private divorce system could be thrown into chaos by the increasing and children proceedings, but not for the alleged number of litigants in person. This process can be perpetrator. This will almost certainly result in those intimidating for the most articulate and informed of alleging abuse, including disabled people and vulnerable individuals. adults, being cross-examined by the accused, creating There are several questions that I would like to ask significant risks to their welfare through the court the Minister. Citizens Advice has provided evidence to process. The final report of the Family Justice Review the Government that removing welfare benefits from points out that protections are available to prevent legal aid will cost more in the long term. Can the vulnerable witnesses going through this ordeal in the Minister explain what account has been taken of that criminal courts, but not in the family courts. advice? The Government’s own impact assessment has It was announced this morning that in Middlesbrough, suggested that there could be increased costs for other the nearest large town to where I live, there were 4,500 departments due to these proposals. What are these reports of domestic violence in the last year. I am costs, and which departments are involved? I accept seriously concerned that many women, and some men, that we are in difficult times and that tough choices will be put in the vulnerable position of not taking have to be made. To redress the balance, the Ministry cases forward because of fear of the system they are of Justice will rely on a proposed exceptional funding entering. test as stated in Clause 9. However, the threshold for Disabled people are facing the biggest changes to the test means that very few—only 5 per cent of the welfare system that we have seen in a long time. I cases—will likely be brought back into scope. think many in your Lordships’ House would agree I also have serious concerns about the telephone that reform is necessary, and I welcome a simplification gateway being proposed for community care law, debt, of the system. Based on the Government’s projection, discrimination and special educational needs. The cases approximately 250,000 households with a disabled of disabled people are complex. A phone call will not person living there will be lifted out of poverty due to take into account the nuances of the situation. If a the introduction of universal credit. However, this disabled person has struggled to put their case forward could be undermined in the absence of appropriate in an assessment process, a phone call will not make it legal advice that might prevent a disabled person easier. In these tough times, I am concerned that local 835 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 836 authorities may risk breaking the law at the level of It seems that the limitation on the types of cases care provided, hoping or even knowing that many people eligible for legal aid, the changes to the criteria of will not know the course of action open to them. eligibility and the extension of means testing will have Data from the Civil and Social Justice Survey show drastic effects on many litigants and defendants. The that disabled people are more likely to report that they Bar Council stated: do now know their rights compared to non-disabled “If legal aid is withdrawn from substantial areas of law, many people: 69.2 per cent compared with 63 per cent. The people will be unable in practice to enforce their legal rights”. 63 per cent figure also causes me concern, but perhaps The question is one of access to justice. The repeal of it is not something to address here. the duty to ensure that individuals have access to legal The Disability Law Service believes that this Bill services that effectively meet their needs is regressive, will deny legal representation and advice to 650,000 as the Constitution Committee of the House noted. people on low income, many of them disabled people. Surely there is the potential to swamp the courts with Where will these people go for help, advice and support, ill-equipped litigants in person. This would not only and the opportunity to get into work if more barriers put extra pressure on the individuals but would extend are put in their way? the length of proceedings, thereby partly cancelling My final question concerns the consultation process. out the savings made by cutting legal aid. I understand that there were 5,000 responses and that I have particular areas of concern. There remains around 90 per cent did not support the proposed changes. an anxiety that the Bill will have a damaging effect in What notice has been taken of the consultation process? family law cases, particularly where domestic abuse is involved. A number of children’s advocates remain anxious about what has been curtailed in the way of 4.04 pm legal aid in this area. The Bill will limit the ability of The Lord Bishop of St Edmundsbury and Ipswich: people to seek compensation in areas such as clinical My Lords, Members on these Benches, like many negligence. The proposal to amend defendants’ cost noble Lords who spoke, have many serious questions orders looks like a blow to innocent defendants who about the legal aid provisions in Parts 1 and 2, but choose to fund themselves. The exclusion of most broadly welcome the sentencing provisions in Part 3, immigration cases will affect people who often have no particularly the ending of IPP sentences. I recently alternative means of resolving disputes and enforcing spoke to a Crown Court judge who had not used to their rights. The provision of exceptional case funding such a sentence for more than two years, and had for people in special need seems puzzling. Almost all found them very unsatisfactory before that. Questions cases should pass the proposed test, so why have remain about those who are in the system already exceptional funding in the first place? under IPP sentences, and how some of the anomalies As we heard, notably from the noble Baroness, will be dealt with. However, that is something apart Lady Grey-Thompson, disabled people are likely to be from the Bill. disproportionately affected. They tend to rely on benefits It is not easy for those of us who are not lawyers to and are less able to represent themselves. If firms evaluate the claims and counterclaims made about the specialising in legal aid are put under financial pressure workings of legal aid. However, some principles from or go out of business, there will be considerable knock-on which we on these Benches work include the very clear effects. The Bill may save money in one area at the concern for justice that runs right through the scriptures. expense of considerable social disruption and consequent In the Old Testament, the prophet Amos said: expenditure in others. “Hate evil, and love good, and establish justice in the gate”. As I said, it is difficult when you are not a legal Members on these Benches are aware not only of the expert; however, when we stand and listen to the widespread opposition in the legal profession to these debate, as Members from these Benches will do with changes but of the apprehensiveness of many voluntary great care, we remain hopeful that Parts 1 and 2 will organisations that work with less well-off recipients of continue to be heavily scrutinised and substantially legal aid. amended by your Lordships’ House. Our attention There is a consensus that costs are too high in both will be there. the civil and criminal courts, but there is a lot of disagreement about the causes. We understand the 4.10 pm problems that the Government face. A well known study by the University of York concluded that the Lord Hunt of Wirral: My Lords, I declare my high expenditure is driven by the high income ceilings interest as a partner in the international commercial on eligibility, although I realise that the Committee on law firm DAC Beachcroft LLP and the other interests Justice in another place concluded that the ceilings that I declare in the register. However, I would like to here were not very different from those in comparable return to the speech of my noble friend Lord Thomas European Community countries. There is also a wide of Gresford, with whom I have previously worked. coverage of different areas of law and a necessity for How right he is to criticise the changes that were high-quality representation in an adversarial system. introduced to the no-win no-fee system which made it The committee also found that the comparatively high exceedingly complicated but also benefited a number proportion of legally aided criminal cases was due in of groups, to which I will refer in a moment. part to the higher rates of recorded crime and to the I also worked closely with him on the Legal Services higher proportion of cases brought to court. Given Bill, to emphasise the need for access to justice. In that this, some remedies lie outside the legal aid system, context, I want to refer to the recommendations of which cannot help being a victim of its success. Lord Justice Jackson and to declare an interest in my 837 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 838

[LORD HUNT OF WIRRAL] accidents notified to the police in the past three years. pride at having been one of his original assessors. Criticisms have been voiced of Part 2 and Sir Rupert Lord Justice Jackson was set an almost impossible Jackson’s work. Referring for a moment to the task by the Master of the Rolls. I recall that he was Transport Committee in another place, when dealing asked to find the best way of tackling the present with referral fees, it made it quite clear that the system unacceptable level of litigation costs and promoting had gone wrong because substantial fees were now access to justice at proportionate cost. I doubt whether being paid to, anyone else could have produced a report which would “insurance firms, vehicle repairers, rescue truck drivers, credit have been received by the Master of the Rolls with the hire firms, claims and accident management firms, law firms and comments that it was, medical experts”. “clear and comprehensive in its coverage, thorough and fair in its How on earth can anybody be complacent about a discussions and imaginative and realistic in its proposals”. system that has brought that about? I strongly support those recommendations, but remind All I would say to my noble friends is that we have your Lordships that Sir Rupert started with a blank to listen critically to any claims from any vested interests sheet of paper. He then spent four months gathering here, but let us concentrate on the hard facts as, evidence and a further three months in consultation, indeed, Sir Rupert did in his excellent report. before examining that evidence, balancing all the special pleading that was introduced by various vested interests, 4.15 pm and coming up with recommendations which were firmly in the public interest. It is that balance which Baroness Scotland of Asthal: My Lords, I declare we must insist we keep in view throughout the passage my interest as chair of the All-Party Parliamentary of the Bill in this House. Group on Domestic and Sexual Violence and founder What Sir Rupert Jackson said—and I remind the and patron of the Corporate Alliance Against Domestic noble and learned Lord, Lord Davidson, of this—was Violence and the Global Foundation for the Elimination to advocate the return of the no-win, no-fee system of Domestic Violence. that was originally introduced in 1995. I take this Many elements of the Bill have already been opportunity to praise the work of my noble and alluded to in part and are meritorious of our anxious learned friend Lord Mackay of Clashfern, who as consideration and concern. For my part, I wish to Lord Chancellor steered those reforms into law. concentrate on the provisions that affect domestic This is now very much his view of how litigation violence. The noble Lord said that they were to be should be funded, and I thought, until the noble and preserved in relation to private law concerns, but I learned Lord spoke from the Opposition Front Bench, have to say to him that the preservation that has been that it was based firmly on his Scottish roots. The retained does not adequately meet the needs of domestic system which the noble and learned Lord, the then violence victims. I also wish to say straightaway that Lord Chancellor, introduced and which Sir Rupert throughout the years when I had the privilege of now advocates, is still no-win, no-fee. It worked perfectly addressing the House from where the Minister now well, both for the severely injured and for those with sits, I was always confident that I would have on lesser injuries. It also worked in other areas of law, domestic violence the total support of all those who such as human rights litigation and insolvency. It was now sit on the Benches opposite. Nothing ever divided never intended to be like the US style of contingency us. Indeed, I do not see the Chief Whip in her place, fees. Although Sir Rupert advocates the introduction but many in this House will remember her trenchant of contingency fees, that certainly does not mean that support. Indeed, she was very much my comrade in we are introducing a US style litigation culture as a arms. consequence. I understand that the provisions that are now I do not think that there is anything in the idea of coming before us are coming before us because it is the client contributing towards the costs incurred on felt that the fiscal position we now find ourselves in their behalf that would be against the established is such that drastic reform has to be made. I also principles of our English legal system. Historically, understand what the noble Lord has said, on this there has always tended to be a difference between the occasion and in the past: that hard choices have to be cost which any litigant could recover at law from the made. However, may I say that hard choices have to be opposing party and the total cost that they were liable made but they should be the right choices? They to pay their own solicitor. Of course, there is a great should be made on principle and with a proper debate about whether we have a compensation culture understanding of what is just and proper. It is right in this country, but Sir Rupert clearly thought that our for us to remind ourselves, as the Constitution Select legal costs culture had gone too far and, for my part, I Committee has reminded us, that these issues are strongly agree with him. of constitutional importance. I draw the House’s I shall give one example, which has been given in attention to what the committee said in its report. At another place by Mr Straw and was referred to by the paragraph 7, it reiterates the comments made by the Lord Chancellor. At present, over 570,000 people late Lord Bingham: present claims for whiplash. That is up 32 per cent in “In his book, The Rule of Law, the late Lord Bingham the past three years. That is the equivalent of one forcefully argued that one of the ingredients of the rule of law itself was that ‘means must be provided for resolving, without person every minute of every hour of every day. The prohibitive cost or inordinate delay, bona fide disputes which the number of such claims notified increased by 72 per parties are unable themselves to resolve’. He went on to say that cent between 2002 and 2010 against a background of ‘denial of legal protection to the poor litigant who cannot afford a reduction of 16 per cent in the number of car to pay is one enemy of the rule of law’”. 839 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 840

When we say that we cannot afford legal aid, we prevented, your Lordships can see very quickly that it should think very carefully about whether we are will not be very long until we have enough savings to saying that we cannot afford justice. Justice should be more than pay for the legal aid that is now being available in times of good and ill. In times of ill, it is withdrawn. more necessary than ever. There are many things that we should do, but I say I accept that there has to be some modification, and to the House very strongly indeed that the provisions that cost is a matter of importance. However, I have on domestic violence are not one of them. This is a cut acute anxiety about the provisions in this Bill. They do that we cannot afford, both in human terms and not display any proper understanding of the nature of economically. I will be asking the Government to domestic violence, which I find acutely disappointing think again. There are so many provisions to look at, and, I have to say, surprising. These provisions reduce but I ask the Government to give these provisions in both scope and extent the nature of legal aid that particular and anxious consideration. will be available to those who suffer from domestic I will add just one more word, if I may, on the violence. As your Lordships will be only too well welfare claims. We know that the Government are aware, one in four women and one in six men are currently minded to remove the Administrative Justice subject to domestic violence in our country. Eighty-nine and Tribunals Council. The noble Baroness, Lady per cent of victims are women; the repeat victimisation Grey-Thompson, has already indicated that over 650,000 is of women. cases are dealt with by the tribunal system. If we It is well known that many victims, through shame are not to have legal aid, and if we are not to have the and other matters, do not come before the courts with supervision and oversight of the AJTC, how do the any degree of speed. They are reluctant and resistant Government think that justice can be preserved? and quite often do anything other than go to law. Any suggestion that we have to restrain or restrict the 4.26 pm applicants seems misplaced. A woman will normally be assaulted 39 times on average before she will come Lord Dholakia: My Lords, much has happened forward. As your Lordships will know, some women since the introduction of the consultation paper, Breaking will come forward straightaway but the majority will the Cycle. I shall leave it to the lawyers to deal with not, and sometimes they will suffer hundreds of assaults Parts 1 and 2 of the Bill. I shall concentrate on Part 3. before they do. I trust the Minister will not be surprised if the These provisions restrict the legal aid given to victims thrust of my contribution relates to the rehabilitation in a number of significant ways. First, the definition of process. I welcome the Bill and the fact that many of domestic violence is far narrower than the definition its provisions will help to reduce this country’s entrenched that we have all come to accept, which is accepted overuse of prison custody. This country currently has across government and by practitioners in the field. 154 people in prison for every 100,000 in our general Secondly, there is a time limit of one year on when the population, compared with 96 in France and 88 in person can come forward; one has to have either Germany. Eighty of our 132 prisons are overcrowded obtained an injunction or indeed got a conviction and this overcrowding severely hampers prisons in against the perpetrator within a year. Your Lordships their attempts to provide rehabilitative regimes. We will know that quite often abuse goes on for more than send many offenders to prison to serve short sentences a year; for example, if a perpetrator is sentenced to which are too brief for a sustained attempt at rehabilitation five years’ imprisonment and comes out after two and but are long enough for prisoners to lose their homes a half years, he may still present a threat to his wife and jobs, which in turn makes them more likely to but that conviction will be more than 12 months ago reoffend. and therefore the proposed litigant will not get legal Several of the Bill’s provisions will give courts aid. Finally, the victim has to have been identified as greater ability to use non-custodial and suspended high risk by the multiagency risk assessment criteria. sentences. For example, the Bill will allow courts to Your Lordships will know that that means that the suspend sentences of up to two years, rather than victim has to be at risk of either death or grievous sentences of up to one year as at present. It gives bodily harm. Many victims who are in that condition courts more options when dealing with offenders who never get to make an application for legal aid. The have breached conditions of community sentences. important thing is to assist individuals long before For example, courts will now have the option of fining they get to that stage. the offenders and allowing the order to continue. The I know that Members opposite care deeply about Bill will allow referral orders for young offenders to be these issues. I ask the Government to think very used more often and more flexibly. All these changes carefully indeed about the economic cost of these should help to reduce the unnecessary use of custodial provisions. Your Lordships will know that as a result sentences. of the proper application of a joined-up approach, we I have one reservation about the proposed changes have been able to reduce domestic violence in our to non-custodial sentences and this relates to curfew country by 64 per cent and have saved £7.5 billion in requirements. The Bill increases the maximum period economic costs. Each murder has a cost to the system of a curfew from 12 to 16 hours a day and extends the in excess of £1.1 million. In London alone, from 2003 period for which a curfew can last from six to 12 months. we reduced domestic homicide significantly. In 2003 Confining offenders to their homes for such an extreme there were 49 such homicides. In 2010, when we left length of time could result in extreme family tensions government, that figure had been reduced in London in homes which are often overcrowded and characterised to five. If £1.1 million is saved with each murder that is by chaotic lifestyles. In some cases it could increase 841 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 842

[LORD DHOLAKIA] a long period of post-release supervision on licence. the risk of domestic violence. In other cases it could This means that they are subject to restrictive conditions set offenders up to fail by requiring them to comply and controls alongside constructive help for the offender. with restrictive conditions for such lengthy periods If they breach the conditions of their licence, they can that the temptation to breach the curfew order could be recalled to prison. be overwhelming. However, the Bill would increase the time which an The Bill includes some welcome provisions to reduce offender given an extended sentence spends in prison. the number of prisoners who are unnecessarily remanded This means that the time which he or she spends under in custody. Around 40 per cent of defendants remanded supervision will correspondingly be reduced, which in custody are either acquitted or given non-custodial makes little sense. Can the Minister explain why the sentences. Of course, in some cases the offender receives Government have decided that a court wishing to a non-custodial sentence because the court takes into impose an extended period of post-release supervision account the fact that he or she has already been held in will be able to do so in future only if it passes a custody on remand. Nevertheless, to deprive someone sentence which also increases the length of time spent of their liberty when they have not yet been found in custody before release? If a court does not want to guilty of a crime is an extremely serious matter. It is increase the time the offender spends in prison but surely right to ensure that we are not using custodial wants to make sure that he or she has an extended remands where the severity of this measure is period of supervision on release, why should they not disproportionate to the seriousness of the alleged offence. be able to order this as they can under the current I therefore strongly support the Bill’s provision that provisions for extended sentences? defendants should not be remanded in custody when Clause 63 replaces the current complicated there is no real prospect that they will receive a custodial requirements on courts to explain the implications of sentence if they are convicted. Those who have studied and reasons for their sentences with a simpler requirement the use of remand in custody at international level will that they should explain the sentence in ordinary concur with the Government’s approach. language. This is a welcome simplification of the The Bill also puts right a serious anomaly in relation court’s duties at the sentencing stage. However, I have to defendants aged 17. At present, 17 year-olds are one concern about this change; namely, that it abolishes treated as juveniles for sentencing purposes but as the requirement for courts passing prison sentences to adults for the purpose of bail and remand arrangements. explain why they consider that the offence requires a This is indefensible and illogical, and I am pleased that custodial sentence. Depriving offenders of their liberty the Government are ending this anomaly and putting by passing a custodial sentence is a uniquely serious the matter right. In common with the overwhelming decision that is in a different category from imposing majority of people involved in the penal system, I am even the most restrictive and intensive community delighted to see the back of the sentence of imprisonment sentences. The discipline of having to give reasons for for public protection, referred to by many noble Lords. passing a custodial sentence helps to concentrate the The sentence has been a disaster for criminal justice sentencer’s mind on the gravity of that decision. It is and a disaster for the prison system, which is now designed to help ensure that custodial sentences are clogged with more than 6,000 IPP prisoners with no imposed only when there is no reasonable alternative. certain release date, as the Minister has mentioned. It I hope that the Government will think again and is particularly unjust that many prisoners who have decide to retain this important requirement. passed their tariff dates are on lengthy waiting lists to I have never believed in miracles, but I am delighted start offending behaviour courses which could reduce that the noble Lord has indicated his wish to bring their risk and make them good prospects for release. amendments on the rehabilitation of offenders, and I While I welcome the abolition of the IPP sentence, certainly welcome this. Reform of the Rehabilitation I have some reservations about the measures which the of Offenders Act 1974 would enable many offenders Bill proposes to replace it. The first is the automatic who have left crime behind to apply for jobs without life sentence for a second serious offence. Mandatory fearing that they will be rejected on the basis of old sentences always tend to produce injustice by preventing and irrelevant convictions. courts from taking into account all the circumstances Reform of the Act would reduce crime by removing of the individual case and tailoring their sentences some of the obstacles that face former offenders who accordingly. However, I acknowledge that this measure are seeking to live productive, law-abiding lives. This is much more restricted in its scope than the IPP reform is in line with the Government’s stated intention sentence. It is limited to cases in which both the in this House and in last year’s Green Paper, Breaking previous offence and the current offence merit sentences the Cycle. This is the right thing to do. It is right that of at least 10 years and courts will not have to impose those who wish to lead a law-abiding life are assisted the automatic sentence if they consider that the interests to do so. I shall study the Government’s amendments of justice require another sentence. with great interest. In the mean time, it is right that I I also have reservations about the proposal that record my thanks to my noble friend Lord McNally. offenders receiving extended sentences should have to serve two-thirds of their custodial term in custody 4.35 pm compared with one-half as at present. At present, the Lord Pannick: My Lords, the exceptional quality of point of an extended sentence is not to increase the all the contributions that your Lordships have heard period which offenders spend in custody. Extended so far in this debate confirms—as if there were any sentences are currently intended to make sure that doubt—the importance to the rule of law of the issues when serious offenders are released they are subject to raised by this Bill. I want to focus my comments on 843 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 844

Part 1. To put these issues in context, your Lordships in clinical negligence or, indeed, in family law where may find it of assistance to look back at the speech of the problem is that often the parties are inherently Sir Hartley Shawcross, the Attorney-General, when he unreasonable and unwilling to reach agreement, at introduced the Legal Aid and Advice Bill in the other least in their mutual relations. place in December 1948. His concern and the concern The third point I want to mention is that Clause 8(2) of the Labour Government in those days was that the will confer power on the Lord Chancellor by subordinate doors of the courts were in theory open to ordinary legislation to take further categories of services out of people, the scope of legal aid. This is inherently objectionable “just as the grill room at the Ritz Hotel is open to all”; in that inevitably there will not be full parliamentary but obtaining and acting on legal advice were, scrutiny. It is all the more objectionable when the Bill confers no power on the Lord Chancellor to add services “luxuries which were beyond their reach”.—[Official Report, Commons, 15/12/48; cols.1221-23.] back into the scope of legal aid, a point already mentioned by the noble Lord, Lord Thomas of Gresford, The 1949 Act recognised that the rights conferred if, for example, experience shows a lack of wisdom in by Parliament and the duties imposed by Parliament the exclusion or if, as we all hope, the economy improves. are undermined to the extent that people cannot Again, I will be tabling an amendment on this subject, enforce their legal entitlements through the judicial which was addressed by your Lordships’ Constitution process. The law and democracy are quite simply Committee. brought into disrepute. As with other pillars of a civil society—such as an efficient National Health Service, Fourthly, and finally, the money that the Government an effective defence system and effective border controls— hope to save through these measures really needs to be there is no getting away from the fact that these cost assessed by reference to the financial costs that will money. have to be met by the state. Judges will need to deal with many more hearings in which litigants in person I want to mention four main objections to Part 1 of are going to waste valuable and expensive court resources. the Bill. First, it does not recognise that access to The health and housing agencies of the state and other justice is, as we have already heard today, a vital welfare agencies will have the burden of dealing with constitutional principle. Mention has been made of the consequences of vulnerable children and adults the report of your Lordships’ Constitution Committee being denied the benefits to which the law entitles last week. I am a member of that Committee and I will them. The Justice Committee in another place and the be putting down an amendment to replace Clause 1(1) Law Society have rightly criticised the Government for of the Bill. The amendment will state that the Lord conducting no study into the costs of the provisions Chancellor must secure, within the resources made contained in this Bill. available, that individuals have access to legal services I hope that the Minister will forgive me for saying that effectively meet their needs. I hope that the Minister that I know that he personally did not come into will be able to accept such an amendment, because it politics to aid and abet the infliction of serious harm echoes precisely the current statutory provision in to the legal aid system which Sir Hartley Shawcross Clause 4(1) of the Access to Justice Act 1999. introduced, and I very much welcome his assurance The second objection to Part 1 that I want to today that he will be listening as this House carries out mention—we have heard about this already—is that it its vital work of scrutinising the Bill in Committee and removes from the scope of legal advice and assistance on Report. many complex areas of law where the law is a vital safeguard of basic needs for the most vulnerable sections of our community—areas such as clinical 4.43 pm negligence. The fact of the matter is this. It is indisputable Viscount Simon: My Lords, as has already been that the removal of legal aid in these contexts will mentioned by the noble Lord, Lord Hunt of Wirral, in inevitably result in many hopeless claims being pursued February of this year three senior cost judges made a by litigants in person, because they will not have had report about the proposals of the Ministry of Justice objective legal advice, as well as many proper claims for reform of civil litigation and costs in England and not being pursued or, almost as bad, being pursued Wales. I suspect that the Law Society is not alone in ineffectively by litigants in person. Do-it-yourself disagreeing with various parts of the report. It is litigation—because that is what it is—will be as effective thought that the problems which affect the conditional as a do-it-yourself medical operation, and I do not fee regime will not be resolved by the abolition of the think that the elementary truth of that proposition is recoverability of success fees by paying parties, as the undermined by my declaration of interest. I am a Ministry of Justice proposes. On the contrary, shifting practising barrister who occasionally has the privilege the burden of success fees away from tortfeasors and to act in legal aid cases. on to claimants will not only cause injustice, but also I recognise the problems of delay and expense in cast aside the many commendable steps that have been the legal system. They continue to impede access to already been taken by interested parties over the past justice despite the exceptional work done in this area decade to iron out the malign aspects of the conditional by the noble and learned Lord, Lord Woolf of Barnes, fee arrangement regime, which is widely recognised as who I am delighted to see will be speaking later in the having been a blight on the English and Welsh legal debate. But it is wholly unrealistic to suggest, as the system. Minister did in his measured opening to this debate, Under the conditional fee agreements it is often that mediation or a telephone helpline are practical said that claimants have no interest in the costs of solutions to the exclusion of legal aid in welfare law, their claim. Quite apart from the fact that claimants 845 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 846

[VISCOUNT SIMON] 4.48 pm will not want the stress of a long and more expensive case if they can possibly help it, they will in fact have a Baroness Howe of Idlicote: My Lords, like other deep interest in matters affecting their well-being, noble Lords, I shall be addressing my remarks only to especially if they have suffered an injury. The claimant certain parts of this somewhat hybrid Bill, starting solicitor will also have a strong interest in keeping with the provisions for legal aid cuts. Obviously all costs down because if they lose they will have to departments—indeed all of us but we are discussing absorb them. In some senses the clue is in the well departments—must share the burden of these cuts. known phrase “no-win no-fee”. However, while the The legal aid system may indeed have become bureaucratic recoverability regime can be described as anything and expensive. In 2009-10 it spent more than £120 million. but teething problems, the reality is that where But as one young lawyer’s e-mail pointed out, the improvements need to be made, the majority of average salary for a young legal aid lawyer is £25,000, difficulties have been resolved and those remaining which is comparable to that of a teacher or policeman. can be dealt with without dismantling the existing So quite clearly other parts of the system need attention regime. I find it interesting that the Law Society thinks as well as what we pay lawyers. that the changes contained in Part 2 of the Bill will Upstairs in Committee on the Welfare Reform Bill, cause years of satellite litigation as people argue about one of our major concerns is to see that the most the new rules. vulnerable sections of our community—children, the I now turn to medical accidents and the impact on disabled, those with special educational needs and injured patients and their families who are not able to their carers—are protected as far as possible from the challenge the NHS with the help of legal representation. otherwise laudable attempts by government to get Practically every clinical negligence claim represents a those who could be in work back into employment, an failure in patient safety, even if the case successfully aim which would be even more laudable were the jobs results in negligence liability and causation is proved available. But with the many changes that the LASPO and compensation paid. The vast majority of cases are Bill brings, the need for expert legal advice for vulnerable robustly defended by the NHS simply because there is groups will be of even greater importance if the resulting, no understanding of serious errors made which have long-term costs for this group are not to escalate, as led to avoidable harm to patients. It is often only other noble Lords have mentioned. A particular area because the case has been investigated independently of concern for SEC, the Special Educational Consortium, that it becomes clear that errors have been made, is that young people with SEND between 16 and 25 who resulting in some learning taking place to help prevent are not in school, or not in provision formally designated the same errors being repeated. The reforms under this as a school, will be outside legal aid. Nor apparently Bill, particularly taking clinical negligence out of the does it cover young people with a learning difficulty scope of legal aid, will prevent vast numbers of people assessment, which sets out the support they need ever having their case properly investigated, thereby beyond school; that is, in a college. As SEC points out, denying the NHS vital lessons for improving patient help and advice in that particularly difficult transition safety. This is due to the very high costs encountered to adulthood can be important for SEND families. by medical experts. If there is no legal aid, solicitors Equally worrying, the Equality and Human Rights will be able to cherry pick the more clear-cut cases. Commission points out that the new criteria for receiving Because the vast majority of clinical negligence victims legal aid for private family law may well mean that are harmed at the hands of a state body—the NHS—there fewer victims of domestic abuse will be eligible for is a strong moral argument that the state should support. The basis for these concerns is that almost ensure that these people have access to justice. 50 per cent of family court cases where a report is There are many more areas of concern which I am ordered may have involved domestic violence. Government sure will be raised by other noble Lords but I would reassurance that legal aid advice will be available like to mention citizens advice bureaux where, under beyond doubt in these circumstances is therefore the Legal Help scheme, thousands of people are assisted important. The noble and learned Baroness, Lady with their varied problems. According to the Government, Scotland, made that point clearly. this kind of assistance should not be within the scope We all know that imprisonment of children is both of legal aid and these people should be able to represent expensive and ineffective, with 80 per cent of those themselves. The proposed changes will prohibit eligibility imprisoned reconvicted within a year. It is therefore for assistance and restrict people’s access to justice. It good to see, not least because one-third of children will also have a serious financial impact on CABs and currently remanded to youth detention are subsequently other non-profit agencies. We are told frequently that given community sentences, that Clauses 91 to 94 of the Government listen. However, Citizens Advice has the Bill, dealing with youth detention, place two sets told me that 93 per cent of those who responded to the of conditions on the court before a child can be consultation did not support the proposed changes remanded. The Government are rightly commended and raised serious concerns about them. These responses for this by the Prison Reform Trust, and for giving the have not received the scrutiny they deserve and should court in Clause 73 extra powers conditionally to discharge be looked at in much more detail. The Government the young offender or indeed to give a second referral may well listen but they do not seem to take into order. account the concerns of so many people. I turn to what follows, or should follow, from There are many aspects of this Bill which will cause sentencing and punishment: rehabilitation. As the Prison all kinds of difficulties and I suspect that there will be Reform Trust points out, young men aged 18 to 20 are numerous amendments to address them. disproportionately represented in the prison population 847 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 848 and clearly have not been, and are still not being, beware of golden-ageism. We should also be careful of diverted from falling into a repeat pattern of offending. drawing too close a parallel between patients and A much more focused approach to rehabilitating young litigants. Welcome though the provision of legal aid offenders is needed. The Prison Reform Trust gives as was, there gradually developed a system in which only examples two successful intensive-alternative-to-custody those who were very rich or had legal aid could afford schemes run by Greater Manchester Probation Trust to litigate at all. and West Yorkshire Probation Trust, both of which It was to restore a sense of balance that the Court have achieved good results. and Legal Services Act 1990 brought in some modest However, it is surely even more important to focus, changes allowing conditional fees to provide access for much earlier in a child’s life, on early intervention. We what has now become known as the squeezed middle. now have conclusive evidence from Frank Field, Graham There was a view that these changes did not go far Allen and others that this approach is the way forward. enough, hence the Access to Justice Act 1999, which The Government are again to be congratulated on unleashed the changes now to be redressed by the Bill. taking an important step by committing to early testing The provisions of that Act allowed for the recoverability of all children at the start of their primary schooling. of success fees up to 100 per cent and large ATE Funds for further research are still needed to identify premiums which were effectively unchallengeable This those chaotic families with many generations of offending has meant that defendants have suffered an unfair behind them as the real targets for extra help and disadvantage in litigation. I remind the House, as did supervision. If this is achieved it will not only help the noble and learned Lord, Lord Davidson, that not to ensure useful and satisfying lives for such children, all defendants are multinationals or emanations of but will be saving a considerable amount of the the state. literally millions of pounds of taxpayers money spent The Jackson report, about which the noble Lord, unnecessarily on prisons. Lord Hunt of Wirral, spoke so clearly, was the remarkably Last, and certainly not least, I turn to women. As detailed and comprehensive response to these problems. the CAB and Equality and Human Rights Commission It forms the basis of Part 2 of the Bill. I am broadly if point out, indirect discrimination is unlawful unless it rather cautiously in favour of these changes. I am can be objectively justified. Yet over the past 15 years concerned that some meritorious claims by the victims numbers of women in prisons have doubled. Many of of industrial disease and even of environmental disasters these have themselves been victims of serious crime, may not now be viable. I will leave other noble Lords domestic violence and sustained sexual abuse. One-third to develop arguments in these areas. However, a lose their homes and, worse, around 18,000 children fundamental point ought to be made about Sir Rupert are separated from their mothers. In 2009, women Jackson’s report. It assumed the continuation of legal aid. accounted for 43 per cent of the 24,114 incidents of self-harm in prison, although women are only 5 per I want to concentrate the remainder of my remarks cent of the total prison population. One essential on clinical negligence. I should declare an interest as a amendment, backed by PRT, NCW and others—and practising barrister who has been instructed for defendants certainly backed by me—would be to require the and claimants in this area of litigation. Many noble Government to produce a strategy to promote the just Lords will consider that we should retain the status and appropriate treatment of women in the criminal quo, which allows legal aid at least where children are justice system. When he replies, I would be very grateful concerned. I have considerable sympathy for this view. if the Minister could give us any hope that the Government The retention of legal aid for clinical negligence is will indeed consider producing such a strategy. supported not only by the NHSLA, as has been referred to by the noble Lord, but by Sir Rupert Jackson 4.56 pm himself. In a lecture to the Cambridge law faculty in September this year, he said, Lord Faulks: My Lords, the intention behind Parts 1 and 2 of the Bill is to restore some balance to our civil “of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate”. litigation system. The system should provide access to justice but should not be so distorted that it provides a Although I would prefer to keep legal aid for seriously source of excessive profits to lawyers and a small injured children as it is, it should at least be retained industry of parasitic organisations which have been for the costs of investigation. Let me give a specific spawned by the current arrangements. Whether there example of where injustice will follow if the current is indeed a compensation culture does not matter very Bill is not amended. In cases of brain-injured children much. In fact, successive government investigations there are often considerable difficulties in establishing have suggested that there is no such thing. What, whether there has been a breach of duty, and sometimes however, is indisputable is that the litigation process greater complications still in establishing causation. has been disfigured by the whole machinery of referral Even the most experienced solicitors in the field will fees, crude advertising and cases which too often become need expert opinions from obstetricians, midwives, about legal fees rather than the underlying dispute. neuro-radiologists, paediatric neurologists and/or The case for reform is clear. But does the Bill go neonatologists. Under the existing system, the LSC, too far? which carefully monitors expenditure, allows for The noble Lord, Lord Pannick, is quite right: we considerable legal and medical costs involved in forming should see the whole question in historical context. a view on whether a case can go forward. When legal aid was introduced in 1949, it came shortly Without legal aid I cannot see how a brain-damaged after the establishment of the national health system child and his or her family can begin to pursue these and reflected the national mood. However, we should cases. The cost of an ATE premium will be beyond the 849 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 850

[LORD FAULKS] 5pm means of almost all litigants. Even large firms of solicitors will not be able to carry the expenditure, Baroness Gould of Potternewton: My Lords, there particularly where the advice may often be not to is so much in the Bill to be concerned about. The Bill is proceed further. Someone who is possibly the victim discriminatory and will entrench inequality for women, of clinical negligence has the right to know whether people from minority ethnic groups, disabled people the immense cost and heartbreak involved in bringing and other groups facing discrimination, all of whom up a disabled child can be mitigated by an award of will be disproportionately affected, as I am sure we damages. The provision of legal aid at modest rates is will discover as we go through it. I wish to follow my essential to allow them to do so. noble and learned friend Lady Scotland and deal with domestic violence, and I will go through the consequences For reasons that will be developed in Committee, of the Bill in some more detail. the so-called exceptional funding provisions, which First, I congratulate the National Federation of seem to be directed at Human Rights Act cases, are no Women’s Institutes on the work it has undertaken in answer. In this connection perhaps I may refer the talking to vulnerable women, who have made it clear Minister to the case of Powell v United Kingdom in that the Bill will leave them without support or access 1990, decided by the European Court of Human to protection under civil remedies. As my noble and Rights, which makes it clear that medical negligence learned friend says, the Bill demonstrates a complete cases will very rarely, if at all, involve violations of the lack of understanding of the nature and dynamics of convention. I am afraid that I am also wholly unsatisfied domestic violence. It flies in the face of the violence by the Government’s proposal in Clause 45 that there against women and girls strategy produced by the will be some modification of the rules to allow the Government only last year. The strategy stated that a, recoverability of ATE premiums in respect of expert reports. Where is there any evidence that such a market “robust cross-government approach underpinned by a single agreed can simply be created by the Government in this context? definition”, is required. Perhaps the Minister can explain why the The only other response is that CFAs should be definition in the Bill is not the one used by other enough. For the reasons that I have given, I cannot see government bodies, the one in the national strategy or how anyone in this situation will be able to obtain a the one used by the CPS and ACPO, which defines CFA, particularly if the profitability is to be so reduced. domestic violence as, It is interesting that the existing LSC funding code, which specifically identifies investigative help as being of, “any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional)”. “vital importance in clinical negligence cases”, Domestic violence takes all these forms, but the also provides that, definition, quite deliberately, does not take that into “the potential to obtain a Conditional Fee Agreement will not be account and in no way reflects the Government’s a ground for refusal of Investigative Help for a clinical negligence stated aim of affording access to justice and legal case”. protection to victims of domestic violence. How much So even if a CFA could be obtained, it is not a very is that commitment honoured when looking at the impressive reason for declining legal aid in these cases, criteria required for evidence of domestic violence? particularly when legal aid is granted only where the No one challenges that there have to be criteria and solicitors are franchised and thus experienced in the evidence, but they must reflect the reality of life for field. That is a point of fundamental importance to domestic violence survivors. access to justice. I profoundly hope that the Government The Minister in the Commons stated that the will make changes to put the matter right. Government had to engage in a difficult balancing act I hope that there can be a degree of consensus in providing legal aid for genuine victims of domestic in the approach to the vitally important process of violence without encouraging false allegations. I want improving the Bill. That would be much easier to to look at what he means by balance. Under the Bill, achieve if the party opposite were to acknowledge in to get legal aid a domestic violence sufferer must have the course of debate that it too would have made obtained one of four kinds of civil injunctions or a significant, if not wholly identical, changes to the civil criminal conviction against the perpetrator, a multi-agency litigation system. Would it really have ignored the risk assessment conference, which is used only for a Jackson recommendations? Was it really happy with few exceptionally serious cases, or a non-molestation some of the grotesque results of the legislation that it order. These do not reflect the reality of how women brought in? react and respond to domestic violence; 70 per cent of women choose not to go to the police and very few get This momentous legislation is a necessary corrective non-molestation orders. to the unsatisfactory system. It reflects the economic How is it “balance”when an overwhelming allegation times in which we live. There are changes to the Bill of domestic violence, supported by witness evidence, which we need, not least in the definition of the Lord will not qualify for legal aid under the law? One would Chancellor’s duties to which the noble Lord, Lord assume that a doctor would be a credible witness, or Pannick, referred—I support his proposed amendment that staff in accident and emergency departments, in that regard—and the role of the director of legal aid where the battered victim is regularly seen, would be casework. In scrutinising this legislation it will be vital credible witnesses, but no. to ensure that access to justice is not a meaningless mantra. It is a critically important part of what it The Minister in the Commons said: means to be British. “we are not convinced that they”— 851 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 852 the medical professions— Two further proposals will make it hard for victims to take action. Reference has already been made to the “would be best placed to assess whether domestic violence has occurred. They might witness injuries, but it might be difficult for telephone gateway—the first port of call—and talking them to determine how they had occurred”.—[Official Report, to someone who may have no legal qualifications but Commons, 31/10/11; col. 688.] is expected to make a legal assessment. Disclosure is difficult enough, so at least you would expect to speak The important word is “might”. What if they are to somebody who understands what you are talking certain that the victim’s injuries come from domestic about. This proposal is certainly not appropriate for violence? She will still not get legal aid under the people who have language difficulties or mental health criteria. The word of a neighbour who may have heard problems or are in distress. blows and rescued the victim from the violence she was suffering, or even if the police attended and saw In addition to my concerns about the process I have her being beaten, is insufficient to meet the criteria. a number of questions. Will there be a free phone Here is another unbelievable quote from the Minister: number? Will the conversations be recorded, kept securely and quality-controlled in case of further litigation “the investigation could be inconclusive, or the police might arising? How will the number be publicised? It has determine that domestic violence has not taken place”.—[Official been suggested that the victim might represent herself Report, Commons, 31/10/11; col. 687.] in court. Domestic abuse involves abuse of power. If the woman asks for an injunction, judges often Many victims, whether subjected to physical power or tell a perpetrator that he can save the cost of a hearing other forms of abuse, do not have the capacity, skills by undertaking not to hurt her in future. The court or expertise to face and question the perpetrator in registers that undertaking. It is a contempt of court if court. Not only would it be a traumatic experience, it the man breaks it, but it will not help her to get legal could also put a victim in further danger. aid. Should she get admission to a refuge, although This Bill will mean that too many women will have the staff will be experienced in assessing complaints it no alternative but to stay in an abusive relationship, will not get her legal aid. As the Minister said: with serious consequences not only for themselves but “to include admission to a refuge in the criteria would be to rely for their children. I thought that those days were past on self-reporting”.—[Official Report, Commons, 31/10/11; col. 688.] and that we were moving away from women living in fear and children living in violent households. This For a woman suffering domestic violence, self-reporting Bill will bring that back. might be absolutely essential. A victim may have eye- witnesses, police and medical evidence, records from It is said that the Prime Minister is to appoint refuges and perpetrator programmes, undertakings someone to look at the effects of policy on women. I not to assault, and photographs of injuries, but she suggest that she examines this Bill and its consequences will not get legal aid. on women’s lives; maybe then will women who are victims be listened to. A further barrier in the criteria for assessing legal aid is the restrictive 12-month timeframe. This is sheer 5.12 pm nonsense. The woman may delay reporting for a number Lord Goodhart: My Lords, in the last year of his of reasons and the problems that require legal aid may life, Lord Bingham—the greatest judge, I believe, of continue to affect her more than 12 months after she my adult life—wrote and published a short but remarkable has experienced violence. There is example after example book called The Rule of Law. In Chapter 8, he wrote: of women who, post-separation, have spent many “The pressure for reform culminated in the Legal Aid and years being harassed and stalked by the perpetrator. Advice Act 1949 … For half a century the legal aid scheme The 12-month timeframe fails to reflect this. A time enabled those without means to sue and defend themselves in the limit of any duration, particularly such a restrictive courts … But its cost was its undoing. In the years 1988 to 1996/7 expenditure on civil (and also criminal) legal aid rose at a rate one, will take many individuals out of eligibility. substantially in excess of inflation, and was the fastest rising item Then we come to mediation. Although information of government expenditure overall”. from the Ministry of Justice shows that currently Lord Bingham was, I am afraid, undoubtedly correct, more than 50,000 couples are referred to mediation and some reduction of costs here is necessary. On that services annually, just 13,500 of those couples participate basis, I start by saying that I agree very strongly with in mediation. It appears that little research has been the general principles of my noble friends Lord Hunt done to ascertain why that is the case. Mediation is not of Wirral and Lord Faulks. Of course, we need to keep always less confrontational as the Minister seems to a no-win no-fee system. The amount involved in this believe. It can place the victim at further risk of should not be as large as it has been. We cannot justify violence or abuse. It gives the perpetrator the opportunity paying the cost of fees for clients who have no serious to continue to have contact with the victim and can chance of winning an action. cause revictimisation. Evidence shows that mediation Part 1 of the Bill contains changes to the existing works best when entered into voluntarily, but sometimes law that need to be enacted, but there also are other that is not the case. One victim identified that she was changes that I do not think should be enacted, particularly bullied and manipulated in mediation and found it those relating to clinical negligence and family violence— hard to stand up to her “ex”. The Bill also assumes although those are not the only ones—where legal that parties will be able to come to agreement in rights are plainly necessary and should continue. We mediation. This, again, is not always the case. There should regard a number of provisions introduced in may be partial resolution. In those circumstances, can the Bill as, at best, temporary provisions which could the Minister say what happens next? What is the be removed when public resources increase. I feel that victim expected to do? that is the basis on which we must go ahead. Importantly, 853 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 854

[LORD GOODHART] The inquiry into access to justice was over a decade that would mean that some legal aid, which is not ago, and it is not surprising that it should need looking provided for in the Bill, will continue to be provided. at again after this period. I for one was very pleased We must also act in a way that will prevent some of when the Master of the Rolls invited Lord Justice these difficulties and some of these seriously unpleasant Jackson to make his report. I do not think anyone can things, such as the exceptional level of some profits. doubt that this difficult task was undertaken by Lord We also need to deal with the amount of money Justice Jackson, as the noble Lord, Lord Hunt, has spent, as far too much has been spent on legal aid in indicated, in an exemplary manner. He had a huge recent years. amount of material to marshal, and he did so and Part 3 of the Bill deals with very different issues made recommendations of which, I suggest, on the which I believe should have been dealt with in a whole this House could make favourable use. separate Bill. However, it is too late for that now. I am The inquiry was needed not only because more most concerned with Chapter 5. I welcome the than a decade had elapsed since my attempts to improve abolition in Clause 113 of indeterminate or IPP the situation, but also because it was clear that reforms sentences. IPP was a failure from the beginning. It which were made, for which I bear no responsibility, relied on the ability to train prisoners while in prison, were causing the system to become unbalanced. The and there has been no such ability. There have been conditional fee—for which the noble and learned Lord, many—often justified—complaints, of which I have Lord Mackay, is rightly to be congratulated—initially received a number, about the difficulty of ensuring helped to obtain access to justice for those who were that prisoners have access to the probation services not able to use the court because they were neither which are essential for release. It would have been poor enough to qualify for legal aid, nor wealthy impossible to release many of these prisoners because enough to dine at the Ritz. That section of the community, of the difficulties of administration. IPP should not which was a large section, at the time of my report was be allowed to continue for those who are already not receiving access as was necessary. However, while subject to it and it should be replaced by a fixed time those changes initially worked well, the noble and limit. It is absolutely wrong that those subjected to learned Lord, Lord Irvine, thought, rightly or wrongly, this wholly undesirable sentence of uncertainty should that further changes were needed if the conditional fee not have a proper degree of certainty about when their arrangements were to work as hoped. The problem time will end. was that there were doubts as to whether they gave I am also concerned with Clause 114, which lawyers enough assistance to take on the really difficult imposes a life sentence for a second listed offence. cases because of the need for payment of an uplift fee, That is a mandatory sentence and it must be imposed which it was hoped could be smaller than ultimately unless the court is satisfied that there are special proved to be the case. circumstances. That is perhaps a little better than the Californian custom of two strikes and you’re out, In addition, it was found that insurance was necessary. but it is not that much better. The judge will have This is because the costs for a claimant if he was seen the prisoner under questioning in court and he unsuccessful could be very substantial, and so we had will have heard the evidence of the witnesses, so I the after-the-event insurance. This, from one point of believe that the judge and no one else should decide view, was beneficial; but it had the effect that a claimant whether the prisoner should receive a life sentence. who had paid the after-the-event insurance premium That will happen under Clause 115, which empowers was left substantially out of pocket. Therefore, it was the judge to decide whether to impose an extended ordered, first, that the uplift to which I referred should sentence. Why should that not also apply to the be paid by an unsuccessful defendant; and secondly, question of life sentences under Clause 114? After all, that the premium to which I referred should also be it is open to the Attorney-General to appeal to the paid by an unsuccessful defendant. The practical Court of Appeal if the judge has acted wrongly. consequence was that a defendant who was unsuccessful could end up paying four sets of costs: first, the costs he incurred himself; secondly, the costs of the claimant 5.19 pm who won; thirdly, the uplift, which could be up to Lord Woolf: My Lords, it has been a privilege to be 100 per cent; and, fourthly, the insurance premium. I able to hear this debate so far. If my arithmetic is say to the House with absolute confidence that there correct, I have heard 14 speeches, and I am in the were many defendants who regarded the total burden happy position of saying that there is nothing which as wholly inappropriate, to the extent that they had no has been said so far with which I disagree. I include in option other than not to contest cases that they otherwise that the speech for the Government introducing this would have. Bill, by the noble Lord, Lord McNally, in case it is Since I ceased to be Chief Justice, I have earned a thought that there was an implied exception. living—here I declare an interest—by conducting I have two reasons for saying that this Bill has mediations on occasion. I have found that some defendants special relevance to me, with regard to the two reach settlements in the course of mediation that they inquiries which I carried out when I was a serving would not otherwise have done because of the deterrent judge. The first inquiry related to access to justice, a effects of the combination of four sets of costs. While subject about which we have heard quite a considerable one was very anxious that justice should be done for amount so far. The second was the inquiry into riots in claimants, it must also be done for defendants in the our prison system caused by overcrowding, a problem same position. This is something that requires attention. which, alas, is still with us today. In due course we will have to consider whether the 855 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 856 proposals made in that regard will get us back to a with which I can be associated that will improve this situation where there is a fair balance between both Bill in the spirit identified by the noble Lord, Lord parties in litigation. Faulks. I emphasise what was drawn to our attention by my 5.33 pm noble friend Lord Faulks: namely, the fact that Lord Justice Jackson was not directly involved with the Lord Clinton-Davis: It is a great privilege for a mere question of legal aid. He was not asked to report on it. solicitor to follow the noble and learned Lord, Lord I suggest that if the system is to be amended in the way Woolf. Contrary to the view of the noble Lord, Lord proposed by the Bill, it is regrettable that he did not McNally, I think that this Bill is profoundly flawed. In have an opportunity to look at the matter objectively my view, many of the clauses are not capable of and independently in the way that was needed. I fear amendment. Many people, in both civil and criminal that his report could be a victim, as I consider I was fields, will be adversely affected by these proposals. because I was only shown part of the picture of where I had some 25 years’ experience of legal aid litigation. change will take place. In its earlier days, the scheme was seen to be an In the Cambridge lecture of 5 September last to essential part of the system of social justice introduced which my noble friend Lord Faulks referred, which I by the post-war Labour Government. The House will read with interest, Lord Justice Jackson gave an indication be grateful to the noble Lord, Lord Pannick, for his of his views on the matter. He said: views about that. The advantage enjoyed by the legislation introduced “Let me make it plain that the cutbacks in legal aid are by the Labour Government of that day was that it contrary”— brought legal protection and legal rights within the and I emphasise “contrary”— reach of ordinary working people and also middle-class “to the recommendations made in my report”. people, who would pay a contribution towards the Again, I encourage the House to accept that view. Legal Aid Fund. This was enjoyed for the very first Lord Justice Jackson went on to state that if the time; previously they had been outside the scope of position were to remain as is now proposed, an additional any remedy whatever. Much of what was introduced exception should be made to the cuts in legal aid. He by the Labour Government was opposed by the said: Conservative Party then and, apparently, now. Of course, a small minority of lawyers milked the system, “On the assumption that it is decided not to maintain civil but few made hefty profits. Nowadays, with ever-declining legal aid at present levels, the question may possibly arise as to numbers of solicitors operating legal aid, younger whether any particular area of civil legal aid is particularly important and should be salvaged from the present cuts. My members of the profession are disinclined to be part of answer to that question is that of all the proposed cutbacks in the whole system. Who can blame them? Is this not legal aid, the removal of legal aid from clinical negligence is the bound to have a deleterious effect on the question of most unfortunate”. obtaining legal aid? I hope that the House will pay attention to that remark. In my day, even the most complicated criminal I see the time that I have already taken and I apologise cases rarely lasted more than three months. Today that for speaking for two or three minutes more. I would situation is very different. Of course, the law has like to say something else with regard to Part 3. become more complex. Perhaps I can make a tentative suggestion—namely, that the system of applying for I am the chairman of the Prison Reform Trust and more funds should be readjusted. But it should be I am grateful to my noble friend Lady Howe for her recognised that in normal circumstances approval should comments, which are based on research done by that not be given, save where the claimant can establish trust, and which deserve considerable attention. There beyond a peradventure of doubt that it is in the are matters on which the Government are to be interests of justice that the application should succeed. congratulated. They have been mentioned by other However, there should be a term limited by the award. Members of the House and there is no need for me to go over the same ground. The real trouble with this Bill is that there will be no savings: indeed, the very reverse. Unrepresented persons However, I submit that when we now know the will appear before courts and tribunals and many, problem with IPPs, it is extraordinary that the House through no fault of their own, will make false and should be asked to accept a more modified form of incoherent points. Time will be wasted. Inevitably, IPP. The one thing we want to avoid is people being in judges and chairmen will provide greater slack than custody longer than they should be. Although the Bill ever, and accordingly costs will burgeon. Many repeals IPPs, it is, understandably, not retrospective. organisations—charities, the judiciary, the Bar, the We have a deplorable situation in our prisons today, Law Society, many victims’groups, Justice, the Magistrates’ where thousands of prisoners who might be able to be Association, CABs, the Sentencing Guidelines Council safely returned to the community cannot be, because and now the bishops, by a large majority—have signposted unfortunately the Parole Board is not in a position to their anxieties about the Government’s proposals. They deal with their cases due to the resources available to have all been spurned. it. That will continue for some time. Surely it would be My own umbrella organisation, the Law Society, possible to change the procedures for those prisoners has raised a number of vital points. So far, the claims to obtain release? There is nothing in the Bill about which they have made have been unanswered. They that. say that the cuts to civil legal aid are a violation of the With that indulgence from the House, I conclude European Court of Human Rights and the Charter. my remarks. I hope that there will be many amendments Are they right about that? 857 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 858

[LORD CLINTON-DAVIS] case in the terms of the law at all, and yet had a They say that the Bill’s proposed exceptional funding genuine grievance. It was very time-consuming, as my model is likely to prove ineffective. Are they right noble friend Lord Clinton-Davis said. about that? Some ask whether this is an Anglo-Saxon problem, They also claim that limitations on the scope of notably the much-lamented late Lord Bingham, and legal aid will carry with them unrealistic costs, risks the noble and learned Baroness, Lady Hale, in her and burdens. celebrated Henry Hodge memorial speech last June. Then they say that the proposals introduce a lack of Our adversarial system is heavily dependent on preparation institutional independence and impartiality. That is a by lawyers, with the judge coming in at the end to very serious claim indeed, and deserves a response decide. If the judge were more proactive, the argument from the Government. runs, there would not be such a need for an expensive and lengthy presentation of the case, so access might Finally, they say that there is a serious risk that the be easier. However, our courts are faster and cheaper courts will declare that compatibility under Section 4 than those in the inquisitorial system, so, as the noble of the Human Rights Act 1998 will be seriously impaired. and learned Baroness, Lady Hale, says, the total legal The £350 million postulated by the Government by system is not extravagant and legal aid is necessary to way of savings has been challenged by others, including ensure access. the noble and learned Baroness, Lady Hale, of the Supreme Court. She has argued that this will be exceeded, The Jackson report, on which the Government base and there can be little doubt that the poor and the much of their rationale, did not recommend purging most vulnerable will be the principal victims. legal aid, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Faulks, both said. I will The Government reply in a superior and quote just one more sentence from Sir Rupert Jackson: uncomprehending way. For example, they recommend “I do, however, stress the vital necessity of making no further more telephone advice and excellent advice to ensure cutbacks in legal aid availability or eligibility. The legal aid system that the legal system is hardly ever used. Most people plays a crucial role in promoting access to justice at proportionate needing such advice are without telephones and, if costs in key areas”. they do manage to get through, are incapable of Will the Minister confirm the total cost of our judicial communicating their often-complicated problems. Are system relative to that of other common law countries? the Government wholly out of touch with reality as The Lord Chancellor said in the House of Commons far as this is concerned? that our system costs four times that of New Zealand, In conclusion, it is noteworthy that one of the which is a rather smaller country. Does this make a principal supporters of this legislation has been the true comparison for civil legal aid? Association of British Insurers. It perceives that it is We should realise that the costs of severe reductions in its interest to see the decline of legal aid and in legal aid will not fall on the Ministry of Justice ordinary people’s access to justice. My hope is that budget. Its own cumulative impact assessment states: these disgraceful endeavours will be frustrated. The “if dispute outcomes were much less fair … these resource gains House of Lords now has the chance to demonstrate might be more than outweighed by the total economic cost … that it prefers to protect the interests of ordinary This would include wider social and economic costs, both tangible people rather than the powerful, such as Enron and and intangible”. Lehman Brothers. This legislation is fatally flawed. Can the Minister give any idea of what costs might fall on other budgets if people are not helped early on in their battles over housing, debts, employment or family 5.42 pm breakdown? What is being sacrificed for this dubious Baroness Whitaker: My Lords, we all believe in saving? A huge proportion of civil legal aid under upholding the rule of law, but when it comes to threat in this Bill is spent on things that matter very making a reality of what the law provides, there are much indeed to poor people: getting the benefits they problems. Our law is not easy for everyone to have a right to, domestic violence, fair compensation understand. The vast accumulation of case law from for injuries that prevent normal living or earning a Magna Carta on, let alone the wording of the statutes, living, getting the appropriate education for their children whose occult succinctness is so cherished by parliamentary or housing. draftsmen, makes it almost impossible for the average Take an appeal against the refusal of a planning person to grasp what they can and cannot do, or have application for a Traveller site. It looks as though High done to them, without expert help, and there is no Court planning appeals and planning injunction actions alternative. would all be out of scope for legal aid, and it seems The law is not always coterminous with justice, that if a local authority takes eviction action against but it is our best shot, and if we want access to an unauthorised encampment in the county court, justice we have to have a means of getting the point of and even if it does this in an unlawful way, say by laws. Professional lawyers are that means, and when ignoring government guidance, the defendants will the aggrieved person is poor, legal aid is the path. I not be allowed legal aid. Would the Minister confirm think it was a judge who said that a person who this? If that is so, a very high proportion of Travellers represents himself has a fool for a client. I do not who have no legitimate home will lose the chance of know about that, but I have sat on tribunals where acquiring one or will face unlawful eviction. the people who brought the case did not understand As long as local authorities shirk their task of the rules of evidence, did not know the difference providing enough sites, an inability to get legal aid for between facts and opinions, could not present their the interim stages of establishing legitimacy or for 859 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 860 those on the roadside through no fault of their own, as hospitals or prisons can provide. That treatment will well as for the characteristic problems of negligent not be completed in either hospital or prison, but has landlords and illiterate tenants, will unfairly prejudice to be continued in the community in the form of this group of claimants. Why is the cumulative impact aftercare. assessment silent on this impact? Does the Ministry of However, just as the healthcare system would break Justice include Gypsies and Travellers in its category down if hospitals were choked with people who did of black and minority ethnic citizens, and if not, why not need that level of treatment, so the criminal justice not? system has broken down over the past 18 years because To supplement the already scarce social good of prisons have been choked with steadily increasing legal aid, the no-win no-fee system was brought in. numbers who do not need expensive imprisonment. That enlightened decision by the noble and learned The Justice Secretary should know this because he was Lord, Lord Mackay of Clashfern, and the second Home Secretary in the early 1990s, the last time that even more enlightened decision by my noble and learned there was any clear thinking about imprisonment, as friend Lord Irvine of Lairg to extend the conditional set out by his predecessor, the noble Lord, Lord Baker fee agreement system were responsible for some important of Dorking, in his 1991 White Paper Custody, Care settlements of fair entitlement. How could the countless and Justice, following the prison riots in 1990, and the mesothelioma cases, the passive smoking landmark masterly report on their causes and possible repair by cases or the Trafigura case have been brought under my noble and learned friend Lord Woolf. the proposed new regime? That White Paper, agreed to by all political parties, My noble and learned friend Lord Davidson of laid down clear priorities for the Prison Service. These Glen Clova referred to the United Nations Secretary- included: to develop community prisons, which will General’s special representative for business and human involve the gradual realignment of the prison estate rights’ commendation of the UK system in cases of into geographically coherent groups serving most prisoners high public interest in his letter of 16 May to the within that area; to increase delegation of responsibility Justice Minister, Jonathan Djanogly, and expressed and accountability to all levels, with clear leadership concern over the proposed reforms. Could that letter and a published annual statement of objectives; to be placed in the Library? I think noble Lords would provide a code of standards for conditions and activities find it helpful. This Bill would take away advice that in prisons which will be used to set improvement often results in cases not going expensively to court, targets in the annual contracts made between prison and it cuts away equal access to the rule of law in governors and their area managers; and to provide major areas of deep human importance. active and relevant programmes for all prisoners, including Finally, I refer to Magna Carta again: unconvicted prisoners. Had those priorities been enacted and had the thoroughly unpleasant competition between “To no one will we sell, to no one will we deny or delay, right or justice”. the main political parties to appear tougher—or not weaker—than the other not undermined rational thinking There is a facsimile copy in the Voting Lobby that about the role of imprisonment, I believe that we noble Lords can have a look at. I think it is time for the would not be in today’s mess. Barons to get on the case again. What is that role? Some say that it is to deter people 5.50 pm from crime, but the figures prove that the fear of imprisonment does not do this; others that it is to Lord Ramsbotham: My Lords, I shall not touch on satisfy victims, but they are only a small part of legal aid or sentencing, which have been so society; others that it is to reform and rehabilitate comprehensively covered by other noble Lords, but those who are sentenced to imprisonment; and others instead try to explain a long-held disappointment and that it is to punish, but the deprivation of liberty is the how it leads to a current fear. only punishment involved. Courts determine the length When I heard that there was to be a legal aid, of that punishment, related to the seriousness of the sentencing and rehabilitation of offenders Bill, I hoped crime. Therefore, while imprisonment is punishment, that this marked the end of the mistaken idea that prisons are not for punishment, at least not in a the criminal justice system is solely about punishment. civilised country, which we purport to be. Finally, However, when the Bill appeared, my heart sank some think that it is a mix of all four. because there was the word “punishment” instead of However, roles are synonymous with aims. The “rehabilitation”. The change had been ordered, I was overall aim given to the criminal justice system is to told, by No. 10 Downing Street, and it confirmed my protect the public by preventing reoffending. Therefore fears that a truly coherent criminal justice policy remains the role of the Prison Service should be related to the an impossibility while there is a continued failure to prevention of reoffending, which means rehabilitation. understand or accept what its acute part— Taken objectively, I am surprised that successive imprisonment—is all about. Governments, while voicing their concerns about the The criminal justice system is made up of four rising numbers of those in prison, appear not to have distinct parts: courts, police, prison and probation. thought through why the current conduct of imprisonment The success or failure of the system as a whole depends is clearly failing—witness the appallingly high reoffending on these four understanding and working with each rate—and what this says about that conduct. I contend other. I put imprisonment in pole position because, that the avalanche of confusing legislation and torrents like hospitals in the NHS, prisons are the acute part, of wishful thoughts and undeliverable ideas, not least where treatment takes place and to which no one the expensive introduction of the so-called National should be sent unless they need the treatment that only Offender Management Service—which, if it is anything 861 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 862

[LORD RAMSBOTHAM] and should be removed as quickly as possible. Secondly, at all, is a system and not a service—stem from the fact he should conduct a similar census of all determinate- that successive Ministers and their officials have failed sentence prisoners who are over tariff, and establish to carry out such an analysis and have allowed themselves exactly the same facts. to be led astray by the seductions of penal populism This is a very important Bill because it contains and the cult of managerialism, which is all about many features of the rehabilitation revolution. Sadly, process and not about outcomes. it has lost some of the clarity of purpose contained in If you accept that imprisonment is the acute part of Breaking the Cycle, which this House now has an the criminal justice system, and should be structured opportunity to restore. I know that the Justice Secretary and managed accordingly, you will understand why I and the Minister share my concern that the acute part am so afraid that the Secretary of State should be of the criminal justice system should be made fit for embarking on the rehabilitation revolution—the intent purpose. We must not waste this opportunity of helping for which I strongly support—without the necessary them to make it so. I hope that, unlike their predecessors, structures or management in place to ensure that it they will repair the flaws in the system that they have can succeed. It would be an avoidable tragedy if it inherited. failed for all the wrong reasons. At present, prisons are not organised into geographically coherent groups, 6pm with regions responsible for the rehabilitation of their Lord Newton of Braintree: My Lords, before I say own prisoners. Today’s incoherent prison population anything else, I should make one prefatory remark of management system, as when I first saw it in 1995, apology to the House and the Minister. It will not prevents continuity of treatment. Also, because no surprise those who have observed me in recent times to one is responsible or accountable for any type of learn that my stamina is not quite what it was. I hope it prisoner, other than high security, there is no consistency will be understood that I shall not feel able to stay for of treatment in prisons of the same type, and individual the winding-up speeches later on. I am sorry for not prison governors are not required to carry on from complying fully with the conventions of the House in where their predecessor left off. Imagine the outcry if that respect. If the Minister chooses to ignore me acute hospitals in the NHS were run in the same way. entirely, I shall of course understand completely. In Why are acute prisons? the mean time, I shall try to refrain from asking him Therefore, during the passage of the Bill, I will be too many questions. tabling amendments designed to try to improve the In line with almost everybody else in this debate—I ability of the acute part of the criminal justice system want to make this clear to my noble friends on the to carry out its role, not least in improving alternatives Front Bench—I am not opposed to this Bill in principle. to custody. I shall challenge some of the omissions It is important, and there is a lot of important stuff in and the wishful thoughts, and shall focus on the it. I do not think that we should attempt to frustrate it. working prison, substance abuse treatment, women in We have had as good a debate as I can recall on any the criminal justice system, restorative justice and the such matter, and it has been a privilege, as a non-lawyer treatment of young adults. and layman in the field, to have the opportunity to Finally, I would like to say a word about indeterminate take part in it. I should also tell my noble friends—this sentences, to which I have been opposed ever since may be music to their ears—that wherever I can give they were introduced. Of course there will always be the Government the benefit of the doubt they will some criminals who should never be released, most of have it. As for the sentencing and punishment—I must whom receive natural life sentences. However, the obscenity say that I prefer the word rehabilitation—of offenders of the IPP is that the overcrowded system cannot chunk, if it is in line with the normal liberal instincts provide the programmes that prisoners need to qualify of my right honourable friend Kenneth Clarke, I shall for release. While I applaud the Secretary of State’s be happy to go along with it. decision to end IPP sentences, like my noble and I am also pleased that my noble friend Lord McNally learned friend Lord Woolf, I am concerned that he said that he was listening. If I am allowed to note it has not tackled the problem of those serving such and it is in line with the rules of the House, I was sentences now. particularly pleased to note that my right honourable There are two immediate steps that I believe the friend Kenneth Clarke actually came along to listen Secretary of State should take, for which he has given this afternoon, which was a further encouragement. himself the necessary weapon in Clause 117 of the I want to concentrate on civil legal aid, or rather the Bill. First, he should conduct a census of all IPP proposed cuts in it. I am not now talking about the prisoners and establish precisely why any of them are Jackson aspects, which I broadly support and which over their tariff, what is required of each of them to seem broadly sensible. Nevertheless, I hope that attention qualify for release, and what plans, if any, have been will be paid to the wise words of my noble friends made to ensure that they are enabled to do so. This Lord Hunt of Wirral and Lord Faulks and, indeed, to task would be far easier to execute if, as should have the words of the noble and learned Lord, Lord Woolf, been done years ago, someone was made responsible which seem to me to be very important in this context. and accountable for the oversight and management of The areas that concern me have already been all IPP prisoners, because that information would be highlighted, so I am not going to rehearse them. One available now. I urge him to make such an appointment. is social welfare law, including the effects on disabled I have had more than 500 letters from prisoners serving people, on people with special educational needs and an IPP, and their families. I share their view that the learning disabilities, who are a subset of disabled IPP is a stain on our reputation for civilised behaviour people, and on the law centres that are associated with 863 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 864 those effects on social welfare law. I am concerned have heard about disabled people’s fears that a lot of about the effects on family law, and especially on them are going to lose out as a result of it. I am not battered people—battered wives, mainly—and children, saying that they will or will not, but that is their fear. A which have been highlighted in a number of important figure has been bandied around of 650,000 people speeches. I am concerned about the effect on clinical who could lose out on disability living allowance as it negligence, where I have some experience as a chair of moves on to something else. That group of people will a number of health trusts, and where I certainly share include many who will want to challenge the results of some of the concerns that were expressed by my noble a new system of that kind. Here we are, then, at one friend Lord Faulks but not only by him. I also still and the same time putting this fear into people’s remain a bit concerned about some of the effects in minds, potentially cutting their benefits and reducing the area of immigration. We had a go at the Government the scope for them to challenge what has been done to about that a few weeks back in a dinner-hour debate, them. It is a sort of pincer movement. It is not the kind where I made it clear that I welcomed the concessions of thing I like, and I will need to be persuaded before I but thought that a few questions remained. vote for it. As I have already said, I am not going to rehearse the arguments. Noble Lords on all sides of the House will 6.09 pm have representations running out of their ears, and I Lord Phillips of Sudbury: My Lords, this Bill is have them running out of mine. The conclusion I draw another monster piece of legislation—234 pages long— is that there is now so much smoke on some of the amending no fewer than 34 other statutes and repealing issues that I have touched on that there must be some parts of 20 statutes. I rather concur with the suggestion fire somewhere, and we need if possible to put it out. made by my noble friend Lord Goodhart that it might I shall mention three or four other points briefly. I have been more manageable were we to have taken this have never seen such a strong feeling that a set of cuts in two bites. Certainly, the complexity of this measure will not produce the savings that they are said to will tax all of us to the limit and, I fear, the Minister produce. What we appear to have here, as I judge beyond endurance. Having heard the noble Lord, Lord it—and I should warn the Minister that this is an area Pannick, mention the speech made by Sir Hartley that we all need to explore very vigorously in Shawcross on 15 December 1948 in moving the Second Committee—is a set of cuts that will save the Ministry Reading debate of the Legal Aid and Advice Bill, I of Justice money at the cost of passing costs to a cannot resist quoting the first two sentences, the first number of other departments, including the welfare of which illustrates the gulf of style that separates departments, throughout Whitehall and beyond, including, then from now and the second of which is a rather perhaps, local authorities as well. pithy encapsulation of what the Labour Government were then trying to do. I wish that I could put on his Even within the Ministry of Justice, I suspect that accent, but he said: we have proposals that are going to pass costs from one part of the ministry to another. I was the previous “If I might translate a respected expression from the promissory and ephemeral field in which it has been misemployed of late into chairman of the Administrative Justice and Tribunals the sphere of intended enactment, I should be inclined to call this Council. It was notorious that, in many jurisdictions, Bill a charter. It is the charter of the little man to the British cases where people turned up unrepresented took courts of justice”.—[Official Report, Commons, 15/12/48; col. 1221.] longer and cost more than cases where they had legal With that, we can all concur. advice or assistance. Has that been costed? I am not sure. I happened to speak at the beginning of last week Like the noble Lord, Lord Clinton-Davis, I have with a barrister who had been involved in a case been a solicitor for more years than I dare to remember. involving a litigant in person. He sounded a sensible But I came into the profession in the 1950s fired—I fellow, although I cannot validate this in any other have to be frank—with a certain idealism that the way. He reckoned that this case—a High Court case, 1949 Act had brought justice within the reach of every not one involving civil legal aid—had taken, in his man and woman. I fear that I still persist in that ideal, estimation, two and a half weeks instead of four days although one has to confess that over the intervening because of the appearance of a litigant in person. If years the legal aid scheme has run down and down. that was replicated on any scale at all, the savings in There is one reason above all for that—it is not a possible civil legal aid cases would disappear in a popular scheme with the great British public. It is if flash. We need to explore that. It was brought out very you take advantage of it but it is not in general. I am clearly by my noble friend Lord Pannick—I am going afraid it is assumed that anything that is good for the to call him my noble friend for this purpose. legal aid scheme is most of all good for lawyers and we are the least popular branch of the entire establishment. I accept the need to make savings, and I hope that In my view that makes it more essential that we defend that will not be thrown at me. However, the Government’s the legal aid scheme. position, which I support, was to make these savings I accept and want to make clear, especially to my and fill the debt hole, or whatever we want to call it, noble friends on the Front Bench, that it must have with savings that would not be at the expense of the been most difficult to put this measure together in a poorest and most vulnerable but might even help circumstance where all departments of state are having them. As I hear things at the moment, this Bill does to take their share of unpopular and unwished for not do what it said on that tin. cuts, but which are, none the less, I believe, necessary. Let me conclude with one very brief example. If I However, two broad matters, both of which have been was not here, I would be upstairs in Committee on the referred to by other noble Lords in this excellent Welfare Reform Bill. While discussing that Bill, we debate, have to be faced by the Government and have 865 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 866

[LORD PHILLIPS OF SUDBURY] What are we doing? We know the suffering, the to be satisfied if this Bill is to go forward without disenchantment and the cynicism that will follow. We doing far more damage than good. have made no attempt to calculate the financial costs The first matter is simple, yet complex, and it has in social or other terms. We know that these problems been referred to many times; that is, the boast in this come in clusters and that if a man is not given advice country of equality before the law. Is it not something on a housing problem because it is now out of scope, which enables us to sleep soundly that the judges are that may lead to an eviction order in a court, which in not corrupt and that the law is designed with the best turn will lead to a plethora of social security and of intentions? Again, if we are honest, we have to welfare engagements, such as children—you name it. accept that year-by-year—it does not matter which Tens of thousands of pounds could be involved for the Government are in power—we legislate more and saving of a piece of advice by a CAB or a solicitor—God more benefits for the disadvantaged, the poor, the bless him if he is still doing this type of work. Let us unable and so on. It is a large slice of every party not forget either that the cost of this work is by the manifesto. Religiously and properly we legislate and standards of most solicitors puny. It is a £150 fixed fee enact those good intentions. But we all know full well for every case that they take on. A City solicitor that those rights are not enjoyed by a large minority of charges £150 for 10 or 15 minutes of his precious time. those for whom they are intended. There is no access I could go on but time is against me. I hope that to those benefits. Why? Above all, it is because the law when we get into the details of this Bill, we will be able relating to access is a jungle. If you think that only tax fairly and squarely to face up to the on-the-ground law is a complicated jungle, just have a look at welfare realities so that we emerge with a Bill that does justice law. to the Government’s needs and aims but also does justice to justice. I believe that if we legislate rights and benefits for our less advantaged citizens, knowing that they will not be taken advantage of because we do not have the 6.19 pm wherewithal to enable the people who need those Baroness Kennedy of The Shaws: My Lords, like the benefits to access them, we are engaged in an organised noble Lord, Lord Phillips, I came in to the law full of hypocrisy. We undermine this place and democracy. idealism. I have remained idealistic about the law and We add to citizen disenchantment and to a social what its purposes are and I have remained proud of context which I believe is one we should all worry the legal system in which I work. That has not meant greatly about—a context which I suggest showed at that I have not been a critic of the legal system. least one aspect of itself in the riots a few months ago. Frequently and regularly, I have been involved in criticising the law’s failures and suggested ways in I am apologetic to my noble friends on the Front which we could improve the system. From the 1970s Bench because I appreciate that they are in a position onwards, I have campaigned for women’s issues and that I am not, but I cannot resist saying, as an old for greater fairness for women in the courts, hoping lawyer who has spent his life standing up for legal and working for better sentencing and so on. I have aid—I formed the Legal Action Group with others in been only too aware of ways in which we have had 1971—that I cannot go along with a situation where miscarriages of justice, and I have been involved in we pretend that we are doing good to our fellow many of those cases. citizens when we know we are not and we know why we are not. Yet in this Bill we are doing exactly that. However, when you travel abroad, nothing fills your heart with greater joy as a lawyer than to realise just To take but one example, we are excluding welfare how wonderful our legal system is. I happen to believe advice from legal aid henceforward. Can anyone imagine that it is the best legal system in the world and that it is any aspect of our law which more needs help and a source of pride to us. Yet I ask myself regularly: why advice than welfare law? I cannot. Citizens Advice has is it, when we have something so precious and wonderful 400 main offices and 3,300 satellites. It deals with that is the best in the world, that we should we seek in 2.1 million advices every year and welfare law problems any way to undermine it and actually take steps to are a major part of that. Yet that will be taken out of destroy it? scope. Law relating to social security, debt, housing, One of the ways in which we are measured as a immigration, community care and employment will be democracy is that we are proponents of the notion taken out of scope, although not totally. However, that the rule of law and democracy travel hand in welfare will be. Citizens Advice calculates that at present hand. Britain is looked to as a great place of law, with the advice given in those areas by the CABs and the great judges who are not corrupt, as the noble Lord, approximately 50 law centres that still exist, but which Lord Phillips, said, and great lawyers, whatever public are declining, costs £25 million plus to the Exchequer. opinion might be. When I go to the United States and If this Bill is enacted as currently drafted, that sum speak to judges even in the Supreme Court, they say will be down to £5.5 million. But as others have said, that they have sat and watched proceedings in our no serious attempt has been made to calculate the courts, like the Old Bailey. They say, “We have some downstream impact in just financial terms, let alone in great lawyers who are as good as some of your greatest terms of pain, suffering, disenchantment and cynicism. advocates; but we do not have great lawyers in the Recently, the Ministry of Justice stated: middle ranks to measure against the lawyers that you have in the general run of courts”. It does not come “The lack of a robust evidence base means we are unable to draw conclusions as to whether wider economic and social costs without a price. We train our junior lawyers well. We are likely to result from the programme of reform or to estimate give them opportunities to hone their skills. They start their size”. small doing legal aid cases, as I did, and build it up. I 867 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 868 have to say that most of my life has been spent doing ready access to a lawyer will be replaced by a telephone legal aid cases, and I take a pride in that. I do not feel hotline, a sort of call centre. We all know the problems that it is the sad end of the work that we do. I think that we have with call centres in every other area of that it is about the most precious and important work our lives; imagine it when you are in distress and in thatwedo. need of decent legal advice. I want to remind noble Lords why all of this The 1972 Act introduced a scheme for legal advice matters. Only a week ago I was discussing the rule of on any matter of English law, known variously as the law with people in government in Iraq. They asked, green form scheme or the £25 scheme. It meant that a “How do we make access to justice real?”. When I am solicitor was available to give you advice. Law centres describing how our system has operated, it is a solid and advice bureaux came into being around that time, reminder that the rule of law is about more than too, to give advice—on welfare benefits, community passing laws and what we do in this House. It is about care, mental health, education law and so on—on that making it real by giving people genuine access. The first call, when people have anxieties about how something Master of the Rolls, the noble and learned Lord, Lord is affecting their lives. I know good, decent, committed, Neuberger, recently made a speech in which he, like idealistic lawyers, who have not become rich but who the late Lord Bingham and the noble and learned can persistently stay in this area providing that kind of Baroness, Lady Hale, talked about how we get incredible advice to people. For us to be destroying it seems to value for money compared to other places. We also me to be crazy. have a strong sense of what the rule of law is about. The suggestion that there is a compensation culture, The noble and learned Lord made it very clear in I am afraid, has been swallowed by our Lord speaking about its three facets: making clear and Chancellor—to my surprise, because I am a great effective laws, which we try to do by honing, refining admirer of his. With the tabloid notion that a and improving legislation; enforcing those laws effectively compensation culture exists, in a society that has and clearly through a good legal system, which I idealised materialism and put the greatest value on consider the best in the world; and ensuring that the money, it is not surprising that when bad things happen law and the legal system are accessible to all. to people, they will want to be compensated. If you As the noble Lord, Lord McNally, told the press in deregulate the professions and make it possible for a recent interview, like every other government department, them to ambulance-chase, it is not surprising that you the Ministry of Justice had to take its hit. Of course, will have poor outcomes. Judges at the Old Bailey now that is done at the behest of the Treasury, which is not tell me that, because of the legal aid cuts by the really looking at the principles of the rule of law. previous Government, they are seeing a decline in the However, two-thirds of the savings being made are quality of representation in the courts before them. being paid for out of the legal aid pot. The Ministry of Why is that? Increasingly, people will go in ill prepared. Justice could have been bolder about taking more Cases of weight are being conducted by inexperienced money out of the prison system. Regrettably, over the people. That happens if you are paying people very past 20 years, we have seen the ratcheting up of the little money for doing a professional job. numbers of people going in to prison, all satisfying a I really think that a mistake is being made in these sort of Dutch auction on sentencing when we really proposals. I urge the Front Bench, which I know is ought to be much more creative about the ways in concerned about these matters, to think again. This is which we deal with crime. We could have been bolder a precious part of our legal system and the consequences about the ways in which this requirement to reduce the of the cuts may be far greater than anyone imagines. bill in the Ministry of Justice was fulfilled. Instead of reducing across the board what legal aid would mean in civil law, we have seen whole areas of law being 6.29 pm removed from its ambit. It cannot be right or good Lord Martin of Springburn: My Lords, I have an for law. interest to declare. Before entering this House I took The cuts are going to dismantle two key elements of up a complaint with the Times newspaper on a no-win the existing system. Others have mentioned how the no-fee basis and I was successful. Whether you are a legal aid system came into being at the end of the long-standing politician or a showbiz personality, when Second World War. It was saying that law is not just you point out to a newspaper that it got the story for the rich or for those who have money, but for all of wrong and ask it, in a civil manner, to rectify the us. That is what having a mature democracy is about. matter, you are soon regarded as its enemy.The newspaper What came into being at that time was essentially legal will look upon a complainant as someone who is aid that started off in family law and provision for attacking its professional integrity as a newspaper and women who did not have equality of arms and for it can take weeks to negotiate in the hope that you will their children when it came to the increase in divorces go away. If you are lucky, you will get a few lines of and in family disputes. The second thing that happened correction somewhere in the back pages. The private in the stages of this building up of legal aid was the individual who is not in public life can expect to be Legal Advice and Assistance Act of 1972, which was treated just as badly when he or she is publicly traduced, taken through this House by Lord Hailsham, who was scorned or sneered at. It will be a daunting task for an not exactly a bleeding heart on matters to do with law individual as the newspaper deliberately delays or but a very fine constitutional lawyer who understood drags its feet in the hope that the complainant will go why it was important. He introduced assistance, which away. At least with the no-win no-fee arrangement the was the green form scheme, to which I will turn in a private citizen does not need to worry about his or her minute. We are going to see that dismantled. Having modest savings or house, or both, being at risk. 869 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 870

[LORD MARTIN OF SPRINGBURN] the most vulnerable in our society, and that too is The Government and the media tell us that 100 per agreed across all the Benches. However, I disagree with cent success fees are too high. If that is the case, why it. I shall address my comments to the biggest interest not go to a 50 per cent success fee, with stages at 10 per group in this country—namely, our press. They are the cent and 25 per cent for pre-court settlements, and ones that have real influence. They are the ones that 50 per cent only after a full court hearing? That 50 per have committed most of the injustices against individuals. cent should be paid by the losing party; it should not They are the ones that can claim to do whatever they come out of the winning claimant’s settlement. This like in the name of the public interest, usually at the would give private citizens access to libel lawyers without cost of the private individual’s interests and rights. I considerable financial worry. shall therefore concentrate on Part 2, which deals with There are many examples of decent people who litigation. have benefited from no-win no-fee arrangements: a It has been said that many more cases are taken on Catholic priest who was wrongly accused of habitually under conditional agreements. Naturally so, and many stealing from his church collection, an Army officer have been won that way. Why is that? It is because who was falsely accused of being involved in the abuse people could not afford to take on the press before, of prisoners in his care, and a teacher who was wrongly who in contempt would not make any kind of apology. accused of inappropriate contact with female pupils. By the way, if you did get an apology, it was usually The Dowler family has written to our Prime Minister printed on page 25, even if you had probably been to say that it could not have taken through its successful given the front page, as they often did with me. But case had it not been for the no-win no-fee arrangements. eventually, when you win the case for an apology—by There is also the case of Mr Christopher Jefferies, the way, they do not use the word “apology”; they say the landlord of the late Joanna Yeates, who was “correction”—basically it is put on the back pages. brutally murdered. This man who lived quietly was They are in contempt of justice for the individual. We arrested on suspicion of murder and was going about therefore now have an opportunity to take into account the business of convincing the police that they were how this Bill affects this area. wrong to suspect him. However, eight newspapers, What offends me most about the Bill is that it most of them national, indulged in a hate campaign strengthens the most powerful group against the vulnerable against this good man. They described him as a individual. The press have the money, the lawyers and “Peeping Tom”, a “weird”, “posh”, “lewd”and “creepy” the influence, and they use all that effectively against individual, a “blue-rinse loner”, a “creep” who “freaked the individual. What this Bill seeks to do is strengthen out schoolgirls”. What kind of people do we have in that strong group by helping to reduce its costs on the the media who can behave in such a manner against one hand and by increasing its influence in these innocent people? This was after Mr Jefferies’ lawyer situations on the other. Look at what the Bill is warned the media to desist from publishing damaging actually proposing on damages—and we are talking stories. It should be pointed out that in law a journalist about an industry that does not look as if it is going to is even allowed to get things wrong provided that he change. Listen to the inquiry being conducted by Lord can prove he acted responsibly. Eight newspapers failed Leveson, or to what was said there today by Milly in their duty to act responsibly with regard to Mr Jefferies. Dowler’s family. The press are still carrying on with I am speaking tonight not for the benefit of highly-paid business as usual. This is a group that does not want lawyers but for men and women on low or modest any change or a statutory framework. It is making it incomes who might be caught up with the media that clear that it wants to keep the voluntary system. That we have the misfortune to have. I thank noble Lords has to be questioned. for listening to me. The importance of that, particularly for this Bill, is: how do you bring an action against a powerful interest 6.34 pm group like this? It is accountable to the useless Press Complaints Commission. It is absolutely useless. We Lord Prescott: My Lords, I cannot declare an interest have had Members of this House chairing the or experience as a barrister, a lawyer, a solicitor or, commission—I think the noble Baroness, Lady Buscombe, indeed, a judge, but I can declare some experience was one. In fact she was the chair of this pretty useless from my seafaring days when the ship owners used to group when it was fined or had to pay damages for call me a barrack room lawyer. I did not have legal aid, libel against one of the lawyers in the hacking case. In but a bit of industrial muscle helped. Perhaps I can that case, did the press pay her legal fees and did they just declare one interest. I am presently, after the pay the damages? I keep asking but I get no answers. comments made by the noble Lord, Lord Martin, But I can tell you for a cert that it would have been involved in a no-win no-fee situation with the Metropolitan carried by the industry. The PPC is a total failure. It Police. Indeed, I concur with what the noble Lord has does not carry out its job. Why is that? It is because it said. If you try to get justice for an offence committed is self-regulated. It is controlled by the Editors’ Code by the press, they just ignore you or say, “We’ll sue of Practice Committee and by its code. If anybody you”, and you have to think about whether you will saw the apology made by the Daily Telegraph in regard take on a no-win no-fee case. I identify with those to Vince Cable, the Business Secretary, about what it circumstances. did to him, they will see that the newspaper admitted I want to concentrate my remarks on what people that it was in the wrong and in breach of the Editors’ have criticised about the Bill, which is that it is about Code of Practice, but thought that it could still go cutting costs and money. Indeed, everybody admits ahead with the story. Publish and be damned because that. But the people who are carrying the burden are it could not care a damn, quite frankly, as long as it 871 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 872 sells newspapers. That is the only interest of the press This House will be debating a number of pieces of in these matters, and they ride over the rights of the legislation. One is the legal aid Bill which is now individual simply to secure those sales. before us. The second will be a defamation Bill that This Bill will actually help to reduce the costs of the will presumably come before this House. There will be press, which they are moaning about, and not only in a new Human Rights Bill, a Bill of Rights or whatever, individual cases. Last July, we had a debate in this which normally comes to this House. And there will House on the private Defamation Bill introduced be a new public complaints or mediation facility and by the noble Lord, Lord Lester. The press were perhaps even a cross-media ownership issue. All worried about libel tourism and who would carry the these involve the media. This is an opportunity for costs of that when our judges were making judgments this House to get a very clear idea of how the press on damages in some of the other cases that they fits within the framework. I believe in a free press—I thought to be excessive. Are they excessive when they think it is necessary—but one that defines what the breach the law and breach people’s rights and even public interest is, not one that is out of control. The object to judges giving a decision? Look at the case of Guardian’s proposal is that the editors should determine Mr Dacre, who attacked the judge for making a the public interest. Editors determining the public judgment on human rights issues in regard to the interest? They are only concerned about their own Mosley case. That was totally unacceptable. It is the private interest and the selling of newspapers. To judges’ right to make the decision about the balance suggest, against the background of what our press has between public interests and private rights. That is been doing, that they should define the public interest what we ask them to do. Mr Dacre was saying it is not is unacceptable. They have defined it and they have no the job of the judges to do that. Journalists want time for it. It is all about press freedom. I hope when human rights legislation changed, so it is not only in we come to debate this legislation, we will consider all regard to individual claims that we have to watch this these parts. This is about the role of the press in a free powerful interest group. They want changes right through society but not one where it is business as usual, as the system. They want changes to reduce costs and they are now proposing. damages so they can continue to pay them, limited as they are, in order to publish and carry on. That is what 6.44 pm concerns me most. Baroness King of Bow: My Lords, this House knows In my own regard, the police constantly opposed that when a Bill is put before it, the Government of the my application for a judicial review. Thank goodness day usually get some of the legislation right and some the judges eventually made a judgment that I should wrong. But the wrongs contained in this Bill, whether have one. But the police were contesting it. Who pays by accident or design, are monumentally devastating. the police’s costs if there are damages involved? Who They cannot be made good by the benign aspects of pays for them to employ the best barristers? That is the Bill or written off as collateral damage to be borne paid, presumably, by the Metropolitan Police, which by British citizens in times of austerity. The Bill means by the public. I could not have taken out a case undermines the very compact between citizen and against the press if I had not had the chance to use the state. Were it to become law, British citizens who conditional system and to pay insurance. We now hear cannot afford a lawyer will effectively lose fundamental that the Government in this Bill are going to transfer rights they have today. insurance and other costs on to those who win their I will confine most of my remarks to the legal aid case. That is totally unacceptable, frankly. We talk section of the Bill. Those affected could be almost about individuals paying damages if they have lost a anyone but they include some of the most vulnerable case, but here we are talking about a powerful, wealthy groups in Britain: disabled children whose lives are body called the press which is asking us to make these ruined by medical negligence, battered women who changes. are victims of domestic violence, terminally ill patients— There have been recommendations by Alan Rusbridger, for example, those suffering from asbestosis-related editor of the Guardian. He suggested having a proper disease—the disabled, the abused and the sick. Under press complaints procedure with intervention and this Bill these are the scapegoats for austerity Britain. mediation by the Press Complaints Commission. He is What is the Government’s argument? They say they absolutely right. He said it should be an independent must clamp down on frivolous and trivial cases and body. He is absolutely right. But he does not want it to the claim culture. We all agree with that. But how can be a statutory one. How are you going to enforce they claim that a person dying of asbestos-related everybody to be part of the PCC unless there is a disease is a trivial or frivolous case or is part of the statutory framework? How are you going to enforce claim culture? I am sure the Minister does not claim sanctions, if you believe in doing that? I would suggest that; in which case, surely he must bring those claims to him that in no-win, no-fee cases, the PCC should back within the scope of legal aid. consider acting in mediation, and if courts or individuals The same is true of domestic violence. Those crimes refuse to accept that, then let the Press Complaints can never be described as trivial or frivolous. I was Commission take the complaint. Let it offer a conditional struck by what was said by a domestic violence survivor, agreement so that the individual can then take the Jeanie, who came here to the House of Lords to case, and let that be a cost to the industry, because it address Peers a fortnight ago. She said: might be an effective deterrent if it has to pay to put “It’s not an ideological issue; it’s one of basic fairness and something on the front page that is wrong. The justice”. Government in this Bill are reducing those penalties Jeanie was thrown down the stairs by her husband late and strengthening the press and that is not acceptable. in her pregnancy. She gave birth at the bottom of her 873 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 874

[BARONESS KING OF BOW] state. I do not think that this is an ideological issue, stairs to a still-born child. Eventually, on a subsequent but, if it is, surely noble Lords on the government occasion when her husband cracked her skull, she Benches would want to stop this drift of power from received legal aid and was able to escape with her the individual to the state. children and prosecute her psychotic husband On the subject of children, the NSPCC unsurprisingly for GBH. Jeanie says that without legal aid she would says that it is “gravely concerned” by the Bill and that: not have been able to leave her husband and he would “The proposals fail to protect the interests of children’s welfare have killed her. He might have killed the kids as well. and the interests of justice”. Under this Bill as it now stands, Jeanie would not be That is a damning critique. The Children’s Society is eligible for legal aid. It is clear that these provisions equally concerned and says: must be amended because the criteria for domestic “Taking whole areas of legal matter out of scope will inevitably violence are now so narrow that in many circumstances affect the poorest, most vulnerable and marginalised families”. even if a perpetrator admits that he has raped a So let us add those vulnerable families to the other woman, his own admission no longer counts in getting specific groups targeted by the Bill: the disabled, the his victim legal aid. This is madness. It is no good abused and the sick. There must surely be a better way asking a woman who is beaten and raped by her of reforming legal aid than making life unbearable for partner to use what the Minister described earlier as those on the margins. “less adversarial means” to resolve disputes. Not only I was so concerned about the proposals in the area is it inappropriate to ask a woman to do this, it is of medical negligence that I wrote to all Peers on the adding insult to terrible injury. Again, I know the subject before the summer. I was overwhelmed by the Minister would never intend that so I am sure that he responses that I received from all sides of the House. will want to rectify the Bill as it stands. If he is not able Your Lordships clearly do not think that it is wise or to give women in Jeanie’s position access to justice, I just to remove legal aid in medical negligence cases. I am sure he will never sleep again at night. To am sure that the Government will want to listen intently prevent terminal insomnia on his part and to put all to the will of the House by accepting an amendment our minds at rest, I ask him to abandon the narrow on this subject at an early stage. definition of domestic violence which is not used in other parts of Government, to lift the 12-month time My last sentence on this matter returns us to the limit and to ensure that no victim of domestic violence victim of domestic violence, Jeanie, whose husband’s is forced to either ruin their life or lose their life violence killed her child. Jeanie named her daughter, because the justice system is now closed to them. who was stillborn at the bottom of her stairs, Hope. She found the courage to protect her children and save I now turn my remarks to the Bill’s impact on her own life using legal aid. Jeanie is relying on us, on children. The Government have said that where the Minister and especially on Peers on the government children are involved, legal aid will still be provided. Benches to ensure that other lives are not ruined by a In the Minister’s opening remarks he said that 95 per legal system where justice is denied. cent of children who are currently covered by legal aid will retain that protection. First, having spoken 6.53 pm to all interested parties, I am not yet convinced of that fact. Secondly, the Minister cannot be including Lord Elystan-Morgan: My Lords, I wish to use the within that statistic all the children affected by their time available to me to speak to Parts 1 and 2 of the parents’ or carers’ loss of legal aid under these Bill, that robustly harrowed area in respect of which proposals. The Minister will know that almost 150,000 we have heard the most distinguished and powerful children will lose civil law and family law protection contributions already. provided by legal aid. Children are the main party in Unless a Government of the future pass a one-clause 6,000 cases a year that will no longer qualify for legal Bill to abolish legal aid completely, the contents of aid. They are financially affected by more than 140,000 this Bill and the proposals surrounding them must cases a year involving their parents. Another obvious constitute the most savage and most deadly attack example, about which we heard earlier, is welfare upon the institution of legal aid in the 62 years of its benefit advice. Currently in tribunal appeals where existence. The Government have pleaded three the applicant has legal advice—this is an justifications for those proposals. The first is that we incredible statistic; if your Lordships are drifting off, I live in a society that is overindulgent with eccentric advise you to come back for this one and remember litigants, that legal aid is wasted and, even worse, that it—55 per cent of all DWP decisions to cut benefits in some way or another it encourages and stimulates are declared wrong and are overturned. On decisions utterly irresponsible litigation. The second is that, in taken to appeal, the Government are proved wrong the context of legal aid, there is every alternative more often than they are proved right. This means possible that can ameliorate and mitigate any loss that without a shadow of a doubt that low-income households would otherwise exist. Furthermore, they say that, in will unfairly and through no fault of their own suffer any event, it is a system that will be greatly improved when they no longer have recourse to legal aid. That by the proposals in the legislation. includes 36,000 children every year from the poorest A few questions should be asked about those families who will no longer be able to appeal poor propositions. First, is there a litigation culture that benefits decisions of this nature. A previous speaker menaces the community in which we live? I doubt it talked about equality of arms. This is a precise illustration very much. I draw all my experience from some 50 years of how we are losing that equality of arms and how in the law as a solicitor, a barrister and a judge. I have power is slipping from the individual towards the seen many cases of legal aid. There may well be some 875 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 876 one would doubt it was utterly reasonable to have It has been calculated by the CAB that for every £1 granted legal aid—what else would you expect in an that is spent on legal aid, £2.34 will be spent on imperfect world? But for each one of those, I can think housing, £7.18 on employment, and £8.80 on benefits. of a dozen cases for which one would think it would Where is the gain? What is the gain commensurate have been proper for a litigant to have been granted with the anguish, the loss and the injustice? At Second legal aid. Reading of the Bill in the other House, the Secretary The first point that I would wish to make in challenge of Justice said: to that proposition of overindulgence and creating a “I accept that access to justice for the protection of fundamental culture of litigation is to be found in the report by the rights is vital for a democratic society—something on which I will noble Lord, Lord Young,some few months ago, entitled not compromise”.—[Official Report, Commons, 29/6/11; col. 986.] if I remember rightly, A Community and a Safe Society. It is not by their words but by their deeds that they will be judged, as far as this matter is concerned. Lord Faulks: My Lords, it was Common Sense, Common Safety. 7.02 pm Lord Elystan-Morgan: I am most grateful and obliged to the noble Lord. In that report, the noble Lord, Lord Morris of Aberavon: My Lords, in the limited Lord Young,made it perfectly clear that the conclusion time available, I shall try to avoid Committee points, that he came to, from all the evidence that he had but I am confident that this House has a formidable heard, was that there was no such thing as a litigation task as a revising Chamber. The Lord Chancellor was, culture in society but there was in the minds of tabloid reputedly, one of the first to agree to the Treasury’s editors. Of course, there are eccentric litigants. Let us demand to contribute to the cut in the deficit. With just think of how poor the reports of the law of tort hindsight, that might turn out to be a mistake. All his and the law of contract in the 19th century would have proposals flow from his efforts to meet the required been were it not for eccentric litigants. However, they amount: sentencing, remission, prison numbers and were rich and they were certainly not on legal aid. now the legal aid budget. Our job is to assess their That is what we have to consider. There is no evidence fairness. How fair are they? In which fields will the whatever that we live in a situation where legal aid has most vulnerable suffer disproportionately? The words stimulated a culture of litigation. of the late Lord Bingham ring in our ears—they have already been quoted by my noble and learned friend Secondly, we ask whether the effects of what we see Lady Scotland. He said that, now are going to be destructive or benign. So much has been said here today that it needs me only to ask “denial of legal protection to the poor litigant who cannot afford that particular question for it to be answered. It is to pay is one enemy of the rule of law”. perfectly clear that the whole foundation, the whole The Law Society, in today’s Times, recites some of ethos, of legal aid is being challenged and attacked. In the most vulnerable who will suffer. This House will those situations, the scope of the cuts and the very have to examine in detail proposals for family law, nature of the deprivations are such that it is inevitable some victims of domestic abuse, and victims of clinical that there will be very considerable destruction. There negligence. The view has already been expressed of the will be no legal aid generally, but only in that cluster of grave concern that clinical negligence will be outwith sparse areas referred to in Schedule 1. Six hundred legal aid. In the absence of legal aid, no-win no-fee has thousand people who are now eligible for legal aid will been the only means of litigation for many. From what be taken out of that system. There will be no legal aid I understand, a great deal of the ground is to be cut for private family cases apart from domestic violence—and from under the feet of many by the Bill’s proposals. it seems that the gateway to that has already been Let me pinpoint one issue—the environment. As a deliberately created as a massive obstacle course for constituency MP for more than 40 years, I was constantly likely applicants. reminded of environmental problems created by industry Thirdly, I look to the question of whether amelioration and developers. Litigation is the last resort in these is possible. I doubt it. No doubt mediation has its part fields, only when other means have failed. It is a battle to play. Even if we had an army of persons trained, of David and Goliath. There are occasions when the skilled and experienced in mediation—and I hope that means should be provided for David to have his day in some day we might very well come to that; a great deal court. The Bar Council, in response to the Government’s might be done—some cases, especially family cases, as proposals for legal aid reform, has made proposals for I well know, could take days but would otherwise be £350 million savings in the administration of justice. It utterly impossible. Again, so much has been said is the profession’s belief that its views have fallen on about no-win no-fee to make it obvious that, although deaf ears. that may fill some of the gap, a huge and yawning Let me make one point of detail—a detail which, if chasm will still remain. continued to be ignored, distorts the legal aid budget Lastly, I ask a question about the cost to the substantially. I have defended over the years many Exchequer. In its third report on legal aid, the House defendants who have hitherto enjoyed significant wealth. of Commons Select Committee on Justice expressed The cases would involve drug dealing, particularly amazement that there was no comprehensive study of importation, VAT frauds, mortgage frauds and the the knock-on effects. These knock-on effects will show like. The defendants would frequently, having enjoyed themselves in one of two ways: either people will the trappings of wealth, be on legal aid—or, in the retreat from defending or asserting their rights altogether, course of a trial would be granted legal aid. You may or there will be a knock-on effect in massive expenditure well ask why. It would be because their assets would in other departments. have been frozen by court orders on the application of 877 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 878

[LORD MORRIS OF ABERAVON] be confusion in the minds of supporters of the Bill as the CPS. At that point, they would be persons without to what does and does not constitute legal advice. On resources, eligible for legal aid, and in many cases Report in another place, it was said that social welfare treated as men of straw. problems are not legal matters and do not require Let me give the basis of all this. In 2005, more than legal expertise to resolve them. 50 per cent of Crown Court legal aid expenditure is However, common sense would teach us that these consumed by 1 per cent of cases. These are the kinds matters are as legally complex, with case law and of cases I was involved in. The average cost per case precedents to be taken into account, as any other legal would be £2.6 million. To give an idea of the sums area. Where they differ, of course, is that the first port under restraint, the value in 2009-10 was £560 million, of call for a hearing or an appeal is usually a tribunal rising to £744 million in 2010-11. If we used some of where an unqualified lay person can speak and represent that money for legal aid that is not necessary, the legal the claimant or client. The law centre and advice aid budget would be more realistic, fairer and more centre movement is also acutely aware that to claim easily understood. The Treasury says that it can recover legal aid for non-legal advice is simply against the law. some of the money through confiscation orders. But Because of the interdependency of the services how successful is it? Does not that basis distort the provided, restricting the availability of legal aid support whole picture of legal aid? In any event, I believe that in the ways proposed is likely to see the collapse of the it is an unfair and distorted way of portraying and whole advice network. It is very hard to see how in a allocating public expenditure. civilised society justification can be made to withdraw I will touch briefly on sentencing. When I sat as a access to legal remedies from the most vulnerable and recorder from 1973 to 1997, we were bombarded each needy among us. It seems that there is a view that such year by criminal justice Acts. Sentencing was a labyrinth people will somehow be able to look up the law, draft that you navigated as best you could. The pressure on out a legal case and speak to the court—all this, of the judiciary to get a sentence right was unremitting. course, after going through the mandatory telephone Let me give two examples of how some things fell into gateway where they will be required to refer to complex or out of favour. At one stage, suspended sentences documents at the same time as interpreting the legalese were very much in favour—with or without conditions. and trying to articulate their case—all in the name of Then they fell out of favour. And now we are, back reducing the overall legal aid bill, where civil legal aid again, to look at how they are to be implemented. is not even the culprit. Secondly, the four-year imprisonment tariff became Many other aspects of the Bill cause me to feel important; release depended on whether the sentence dismayed. There is to be no housing advice unless the was just under or just over four years. That had person is likely to lose their home. What about redress immense consequences for the sentencing judges. against landlords who make their tenants’ lives a misery, Some of the proposals in the Bill may well have a turning off the electricity for example or refusing to great deal of merit. We will examine them exceedingly do essential repairs? There is to be no help in cases of carefully and hold on to that which is good. But I hope domestic violence until the point where the woman is and pray for some respite in the introduction of the likely to be afraid for her life and often the lives of her equivalent of the criminal justice Bills which change children. There is to be no help for employment cases. whatever is the fashion from year to year. The judiciary Combine that with the introduction of fees to access should be allowed to get on with it. Sentencing would the employment tribunal and a wronged employee has be easier; the professions would understand it better; no effective right of redress at all. The Minister refers and the defendant—an equally important person—would to the fact that tribunals were intended as more informal understand it better. Constant changing in sentencing venues where the ordinary person can go along and does not make life any easier for anyone at the criminal state their case. He implied that it would be good to Bar. get back to that happy state and I am sure that most of us would agree, except that we cannot go back. We are 7.09 pm where we are. Informal venues have been turned into highly legalistic arenas where the inexperienced will be Baroness Prosser: My Lords, I am pleased to be swallowed up by complex arguments and convoluted able to contribute to this debate, but less than pleased language. Eleven years of sitting on the employment with the proposals contained within the Bill itself. I appeal tribunal tells me that unrepresented cases will will restrict my remarks to the social welfare law take up much more court time. Where is the saving? aspects of the Bill, plus a couple of comments regarding I turn briefly now to matters of rights and access. I access and rights. declare an interest as deputy chair of the EHRC. Prior to becoming a trade union organiser, I worked There are two areas of particular concern. The first is in a south London law centre for six and a half years. the likely impact of the mandatory telephone gateway It was work that I thoroughly enjoyed and was an on those with disabilities. The equality impact assessment experience which has given me a good understanding carried out by the Government does not properly of the range of issues dealt with and the types of assess whether the impact can be justified as a means people looking for help. of achieving a particular aim. Indirect discrimination I also clearly understand how the law centre and in services and public functions is of course unlawful advice centre network is interdependent, providing unless it can be objectively justified. general and specialist advice and services and a system The second is the overall question of legal rights of cross-referrals, almost always with good connections being no rights at all if they cannot be accessed. As is to services, benefit offices and so forth. There seems to known, we have international obligations and the right 879 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 880 to a fair trial is guaranteed by Article 6.1 of the It states that there will be 25 per cent fewer claimants European Convention on Human Rights. It has also and that the remaining 75 per cent will lose up to been found by our own courts to be a constitutional 25 per cent of their compensation. This will almost right. The proposals contained in the Bill do not inevitably, in medical cases, result in additional costs reflect the values of a civilised society. In my opinion, to the National Health Service. Have those costs been they are pretty shameful. factored in to the overall savings said to be consequential on the proposed changes? 7.15 pm The reality for a parent who has given birth to a child who has suffered significant injuries as a consequence Baroness O’Loan: My Lords, there can be no doubt of medical negligence is very grim. Such parents face, that the current arrangements represent, as the Minister even in the present situation, an almost insuperable said, an “unignorable problem of affordability”. However, problem. They must learn to come to terms with the even in that situation the current arrangements do not consequences of the alleged negligence in terms of enable access to justice by huge sectors of society who their baby’s ability to function. They must enter a must make the decision not to bring legal proceedings, world which they hitherto never knew of clinical process based not on the merits of their case, but simply on the and, in some cases, almost constant emergency situations. basis that they do not have the resources to fund They must learn to do that which doctors and nurses litigation. So the current situation is far from perfect. normally do, to preserve the life and function that The Bill as drafted will in some respects exacerbate a their children have. Often, they will be constantly very difficult situation. It will not be compliant with exhausted and frightened. They may have to care for Lord Justice Jackson’s insistence that there should be, their other children while coming to terms over years “no further cutbacks in legal aid availability or eligibility”. with the ongoing, developing consequences of that Elements of the Bill are welcome. I refer to the medical negligence. In the midst of all this, and of all proposed introduction of a new offence of squatting the consequential visits to doctors, occupational therapists in a residential building—a problem which became and physiotherapists, as well as to those who provide quite widespread as it was realised that it is possible to wheelchairs and other aids and adaptations for those occupy a building without any possibility of criminal with disability, they must contemplate the need to sanction. The costs of such occupation in terms of commence legal proceedings to seek compensation, property damage and the consequential civil legal which will enable them to secure proper care for their proceedings to eject a party can be very significant and children in the future. can cause massive distress. This provision is clearly a Similar situations will arise for those whose adult common-sense and necessary improvement to the law. friends and relatives have suffered catastrophic damage The only question is why it has taken so long to get as a consequence of medical negligence. They too will there. have to come to terms with a whole new way of life if I wish to address the issue of the extent to which the they decide to become the carer for the injured party. current proposals will restrict access to justice for the By so doing, they will save the state a lot of money, most vulnerable and marginalised members of our because the state will not have to provide residential society in circumstances in which they find themselves care. What too of the situation of those with an the victims of crime—of clinical negligence, professional industrially-acquired disease and the widows and children negligence or fraud. I think of those who are very of those who die at work as a consequence of an poor; those who have to cope with the consequences employer’s negligence? of disability in all its forms; of the 20 per cent or so of our population who effectively cannot read and write; In the midst of all the grief, the confusion, the fear of prisoners, who are disproportionately represented and the exhaustion, they will need to know how long among those with mental health and literacy difficulties; they have to initiate legal proceedings. They will need and of immigrants for whom access to justice was to know when it is best to do so, because the consequences completely unknown in their home country and who of medical negligence may take a little time to emerge. have come to this country believing in the rule of law They will have to contemplate the costs of expert and the principles thereunder to enable access to justice. medical and other technical evidence to support and The current civil legal aid provisions are very restricted explain the situation to them. They will need the but they do allow people with very limited assets to capacity to keep their claims going through years of bring the proceedings that are necessary to assert their litigation—and all this without legal support. Is this rights. The evolving conditional fee arrangements provide possible? some access to justice for those who are not entitled to All the while, in many negligence cases the costs of legal aid but who can seek redress in the courts through the defendant are borne by the public purse. We fund alternative arrangements. the defendant, but we will refuse to fund the complainant. I am no fan of the ambulance chaser. Indeed, I The effect of the current proposals will be that yet would prohibit the type of advertisement to which another two-tier system will emerge. There will be I—like many other noble Lords, I am sure—have been those with sufficient resources to bring actions with subjected, suggesting that I have suffered an accident legal representation, for whom compensation may and the sender of the text will provide me with legal ultimately be decreed and consequentially a higher representation to enable me to secure compensation. standard of care. Then there will be those whose However, the Access to Justice Action Group has parents or carers just cannot contemplate how to stated that Part 2 of the Bill will affect the capacity of bring such proceedings and who will ultimately suffer some 600,000 ordinary people to get access to justice. the consequences in terms of reduced living standards. 881 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 882

[BARONESS O’LOAN] experiences as victims of the violent teenage gang that As the noble Viscount, Lord Simon, said, where the left my husband Garry dying in a pool of his own injury has been suffered as a consequence of the blood. failure of state-provided care, it is even more necessary I support these innocent, grievously wounded people, to provide an accessible remedy in law. There will have and I speak also for Garry and the many others, to be revision to this section of the Bill. The provision deeply loved and missed, who are silenced for ever. for exceptional cases will not meet the needs of these This Bill has the capacity to right many wrongs and claimants. I also echo the words of the noble Lords, bring real justice. The coalition Government’s strong Lord Pannick and Lord Newton, about the court sentencing package will make a huge sea-change reform costs resulting from the appearance of an unrepresented of our justice system. It will ensure that criminals are litigant. I echo too those who identified the serious punished for their crimes and made to face up to the problems which will emerge from the withdrawal of causes of that criminality, and it will restore public legal aid for welfare cases. confidence in our criminal justice system. I ask you to There is one other matter in the Bill to which I will listen with your heart as well as your ears and minds. refer briefly. It is the matter of how the law deals with There but for the Grace of God go you. those offenders who are dangerous and violent and I am grateful and humbled by the Minister saying who will be sentenced, but in respect of whom there is on record that the victim will be at the centre of these an enhanced need for public protection which must be reforms. I thank my noble friend. Our criminal justice dealt with in a proportionate manner. This matter was system needs overhauling. Our jails and young offender dealt with in Northern Ireland by means of the Criminal units are full and overflowing. The system is creaking Justice (Northern Ireland) Order 2008, which created at the seams and not working when we see the depressing indeterminate custodial sentences. Under the legislation, and costly figures of reoffending. Many people locked a judge contemplating an ICS has first to consider away are not violent, but others who can cause hurt whether an extended custodial sentence, have their freedom. It is shocking that about half of “would be adequate for the purpose of protecting the public from all prisoners reoffend within a year of release; 74 per harm”. cent of young people sentenced to youth custody and The purpose of that law is to ensure that the ICS is 68 per cent of young people on community sentences imposed only where there is no other proportionate re-offend within a year. Something is broken and way to protect the public. Mr Justice Hart stated in the needs urgent fixing. case of R v McGleenon this year: “Common to each of these four sentencing options (determinate The scales of justice are tipped too far to the rights sentence, ECS, ICS, life sentence) is the need to consider whether and needs of the offender. They must be balanced the accused presents a danger to others by virtue of being a towards the victim; or, if their lives have been cruelly significant risk to members of the public of serious harm in the taken from them, then towards the families left behind. event that he were to commit offences of the same or a similar They should have a say in the sentencing, parole and nature in the future”. probation of offenders. Although the argument rages In that case, Hart imposed an indeterminate custodial between rights of victim and offender, there is another sentence with a minimum term of five years’ interested party to this; the public. Victims were the imprisonment, meaning that the defendant would not public once. Anyone can join our terrible club in a automatically be released after the minimum term has heartbeat. Membership is lifelong and unwanted. Lives elapsed, but rather that he would be released when the will always be affected by the violence they never parole commissioners are satisfied that it will be asked for. appropriate to release him. We need to restore public confidence in the judicial It appears to be the view in Northern Ireland that processes, to look at the proposals put forward in this the combination of judicial discretion as to the question Bill and why we must make these changes. Offenders of dangerousness—similar to that applied in England are not victims. Please do not patronise and disrespect and Wales—and the requirement to consider an ECS us by confusing the two. Mitigating factors of background, before imposing an ICS has meant that the number of bad parenting and social circumstances can influence public protection sentences has grown slowly, far lower an individual to commit terrible crimes, but this can than anticipated. Consideration of the operation of never be a cloak to excuse criminal behaviour. Ultimately that system may assist in providing a public perception it is down to individual choice and we must do all we and reality of protection while ensuring that there is can to inform, educate and, if that fails, enforce common not a disproportionate use of the ICS. laws of acceptable behaviour. That is how a just and strong society functions. The will and actions of every 7.24 pm individual must support and nurture the community. Baroness Newlove: My Lords, I have listened with It protects the weak and defenceless, the young, aged great interest to the debate, which so far seems mostly and those with disabilities and learning needs. For about legal aid. I cannot comment knowledgeably without the common goals of strong values, self-respect about that, but I want to speak about what I know. and self esteem, we turn feral. We become a society I stand with a great weight of expectation on my that looks to self-gratification, to thinking me, me, shoulders as I speak out for victims of violent crime. and mine, mine. That takes out and does not put back I cannot hope to represent all the different views in; grabs and steals but does not earn; tramples everyone held by this group, but I will try. Many good and that stands in the way of getting what we want; and honest people, through no fault of their own, have passes these wrong behaviours to the next generation. entered the criminal justice system as victims. I add my In this downward spiral we risk never releasing the own and my daughters’ personal and eye-witness compassionate good that is within every one of us. 883 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 884

I do not speak from a vengeful and bitter platform. and the support networks for victims of homicide What has happened to my family and so many like us brought together by Victim Support. I hope that everyone will be with us for ever. We cannot turn back the clock. in this sector puts aside their minor disagreements and What victims want is that it does not happen to joins to make this a powerful force for good, sharing anyone else. The suffering we experience cuts to our best practice, avoiding duplication and acting as a very hearts. My daughters will never have their father central source of comment so that reform of the walk them down the aisle on their wedding day. My criminal justice system can be better joined-up. grandchildren will have to be content with photos and The Bill promises to tackle reoffending by young stories about the grandfather they will never see. Birthdays, people so that the young offenders of today do not anniversaries, Christmas, the back of a head in a become the hardened career criminals of tomorrow. I crowd which is so familiar, the words or tune of “our recently visited the West Midlands to see a police song”—I cannot describe the physical pain which initiative which is driving down anti-social behaviour strikes unexpectedly and ferociously; words do not by bringing young offenders and victims together to exist. thrash out their differences in a safe, controlled I welcome the Bill’s promise to simplify, release and environment. It is very early days but the initiative recall arrangements and clarify the statutory duty to holds great promise and similar avenues of restorative explain a sentence. Again, it must be clear and easily justice should be explored. Success builds community understood and accessible by the public. It must not trust in the police and empowers victims while exposing be lip service. Communication is vital for everyone to offenders to the suffering that they cause. This can understand our criminal justice system and the Bill stop minor bad behaviour escalating to dangerously promises to strip out unnecessary clutter. The government high levels, as I know only too well. support of approximately £50 million to the victims’ voluntary sector this year was a real commitment to Outrageous stories of foreign nationals abusing our rebalancing the criminal justice system. Extra funding hospitality while using human rights to stay and cause for the homicide services and a redirection of offender terrible harm to our citizens are shocking. The Bill surcharge and earnings are all steps in the right direction. promises to do what we all clamour for—remove them from our shores at the earliest possible moment and The Bill looks to encourage the use of compensation keep them out. Possessing a bladed article in a public orders. This should be mandatory and paid directly to place is already an offence. The new custodial sentences the victim involved or, where refused, the money should are welcome, but the message must be clear that no still be deducted and retained for other victims. Focusing one should carry a knife in a public place without on punishment for the perpetrator will help them to good reason; for example, for use in their job. It is the recognise and accept the wrong they have committed wrong message to send that unless someone threatens against others. This could well have a positive effect on or endangers another it is okay to carry a knife. We reoffending. It will certainly appease the general public must speak out loudly and impose harsh deterrents to who are unhappy to learn that offenders can get away reinforce the message to prevent anyone of any age with working just six hours a week. A consultation carrying a knife. By setting an age limit, those under it document on victims’ services will be published soon will be coerced or bribed into carrying for their elders. by the Ministry of Justice and I look forward to the public’s chance to influence policy-makers. The victims’ May I ask noble Lords to join me in conveying a code should focus on sharing information and offer huge thank you and get well soon message to the four complete transparency. I recommend that we should brave police officers who were stabbed in the line of explore new technology to help us in the fight against duty yesterday in north London? Our officers get up criminal behaviour and offender management. The each morning, kiss their loved ones goodbye and walk public will accept community orders as long as they into the unknown—a violent and unpredictable world. feel that they are safe and are guaranteed that offenders There is no guarantee that they will return unharmed, are not left to roam free but are properly monitored as this latest knife attack reminds us all. That is why and put to real work. we have to get knives off our streets, to limit the risk to them and us. Tomorrow I will look at a new GPS-linked UK tagging device called Buddi Tracker. This has an impressive Finally, I want to comment on the review of the record of stopping repeat breaking of parole conditions. IPP sentencing to make this easier for the public to It could help in the fight against organised gangs as understand. I welcome clarity in sentencing laws. Victims tracker devices can alert when two or more banned need to know exactly how long offenders will be individuals try to get together. While I believe in imprisoned. I hope this means that we see the end of a localism and returning power to local communities review of tariff at half-term stage for those convicted and agencies, I am also very afraid that we risk losing of murder and that instead they are subject to the new consistency in supporting victims by handing over extended determinate sentence and will have to serve these services completely. There needs to be an umbrella at least two-thirds of it behind bars before release. organisation so that, no matter where you live, the Victims must know that offenders are made to serve same platinum service is delivered to support victims time and that there will be no automatic release before and encourage witnesses to testify. end of sentence for the most serious cases. The annual three-year grant funding of £38 million Sentencing, punishment, rehabilitation of offenders to Victim Support, with its roots embedded in and the cost to the public purse of legal aid will be communities and supported by local volunteers, is to overhauled by this new Bill. It might not be totally my mind a good thing. I shall be speaking next month perfect but it goes a long way to rid us of the current at the first meeting of a victims’ alliance of charities wrongs in the system and reassures the public that this 885 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 886

[BARONESS NEWLOVE] The Bill is not making minor adjustments to the Government will guard their safety and at the same present system; it is scrapping the present system. time introduce common sense into new laws. Instead Sections of society, other than the wealthy, will be of being back-seat passengers, victims are at last being frightened off pursuing cases. As the Law Society has invited into the front seat, and even occasionally given argued, the other winner will be the insurance industry. the wheel, to enable them to take their rightful place I ask the Minister: is that industry preparing to cut on the journey. It is time that we were not treated as a premiums as a result of these substantial changes in meddlesome problem in the criminal justice system to their favour? They have given no such promises in the be ignored, but included in discussions as part of the road traffic area, so those small and medium-sized long-term solution. We have paid a high price for our employers who were in Ministers’ minds when they ticket. introduced the Bill had better not count on getting a better deal from their insurers. 7.38 pm Even at this stage, I hope that the Government will Lord Monks: My Lords, I declare an interest as a rethink their position. As the noble Lord, Lord Newton, non-executive director of Thompsons Solicitors, which said earlier, public finances may well not benefit. There is probably the most experienced legal firm acting for could be a loss to the social security department in workers in the personal injury and employment fields, recoupable benefits, extra burdens on the NHS for the and certainly the largest legal firm working with trade costs of care, and more people being reliant on benefits. unions. That is enough of the advertising. Victims who win cases will have to pay a hefty slice of I am grateful to the noble Lord, Lord McNally, for their compensation to lawyers, while many others will affording me the opportunity to discuss my concerns be deterred from taking cases at all. There is many a about the Bill with him. A central concern relates to human tragedy, as we have heard today, behind all this Part 2 which, if enacted, will undoubtedly make it technical talk of fees and so on. In today’s debate we harder, more hazardous and more expensive for many have heard very moving stories about the victims of damaged workers to have access to justice. As a result, asbestos, from the Spinal Injuries Association, and it will act as a major deterrent to applicants to apply other support and self-help groups. I ask the Government for justice. A good thing too, some might say, including to look again at Lord Justice Jackson’s two alternative some employers and insurance companies. However, packages, which would control recoverable success the losers will be the many victims suffering from fees, and at the problems in the road traffic area. injury or illness who are afraid to risk the expense of I have one final point on legal aid. I would like to seeking redress. support points made by, among others, the noble In recent years, access to justice has been much Lords, Lord Newton and Lord Phillips, and the Chairman encouraged by conditional fee agreements—the so-called of the All-Party Group on Citizens Advice in the no-win, no-fee arrangements. These have certainly not other place, that at a time when major changes are led to an explosion of cases in the employer liability taking place in the welfare system, it is unwise to personal injury field. Employer liability claims are on withdraw support for people who are challenging bad a downward trend and fell between 2007 and 2011. decisions. We heard the statistics on that earlier. I hope There has been no noticeable surge in the compensation that the Government will urgently meet concerns in culture in this area. As the noble Lord, Lord Hunt, this area. There is a way forward that is more equal highlighted earlier, recently there has been a surge in and effective than the current provisions in this Bill road traffic cases, which are up 43 per cent to the very and I hope that we can persuade the Government to high figure of 791,000, 10 times the number of employer take it. liability cases. I understand the Government’s concern in the road traffic area, but that is no justification for 7.44 pm making no-win, no-fee arrangements in relation to employer liability and making access much harder for Baroness Linklater of Butterstone: My Lords, this vulnerable claimants. has been a fascinating and important debate and I am Conditional fee agreements were introduced to ensure honoured to be part of it. This is an enormous Bill, that people who did not qualify for legal aid had an not only in its size but also its scope and aspirations. opportunity to instruct solicitors on a no-win, no-fee Of particular interest to me are the relative roles of basis. Changes to funding, brought in by the Access to prison and community sentencing in the future and Justice Act, meant that from 2000 solicitors were able how this will be managed. I agree with everything that to make judgments about whether to proceed with my noble friend Lord Dholakia has said on specific cases with a degree of confidence that they would get aspects of sentencing policy and so will not repeat paid; and, importantly by using the success fees that those arguments. I shall concentrate on Part 3. they recovered in cases that they won, they could fund The Lord Chancellor came into office to find our riskier, less straightforward cases with worse odds of criminal justice system in a mess. There are soaring success. As the Bill is now, there will, at best, be a costs. The NOMS resource budget alone for 2011-12 is limited fund from success fees because they will be £3,679 billion—I thought they might have got the capped and it is a fund into which clients would have “b”s and “m”s muddled up, but apparently not; prison to pay from the compensation, if any, that they receive. numbers are soaring and are currently around 85,000; We calculate that as many as 25 per cent of injured and re-offending rates are soaring. Of those serving people whose cases would currently be run, and won, short sentences of a year or less, nearly two thirds will will not be able to find a lawyer willing to take on their reoffend. Where children are concerned the figure for cases. reoffending rises to more than 71 per cent. This is the 887 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 888 headline indicator of the failure to deal effectively private sector and voluntary sector partners. However, with offenders in ways which help them to stop committing it has yet to demonstrate any definite outcomes, and is crimes. The whole country’s needs, particularly those also based in the prison and focuses on finding prisoners of victims, are not being met. The challenge is to cut jobs. I understand that at least 14 other prisons have costs and to try to make the system work better. plans of some kind in place. Mostly, however, the work—if it is to work—must be done in the community, The Lord Chancellor’s initial response in the Green on release, where the capacity to keep a job and Paper, Breaking the Cycle, recognised that short custodial sustain it will be the critical result. sentences do not work, and he proposed instead the development of effective, tougher, targeted community I have the honour to be the patron of an excellent penalties, which are much more successful at reducing medium-sized, voluntary sector organisation called reoffending, thus making society a safer place. He SOVA, which is also attempting to make such a PBR proposed making prisons work better by reducing the scheme work. It is very well placed to do so in terms of impossible overcrowding created by those serving short its knowledge and experience of working with offenders terms and allowing them to do what they do best, in the community. The problem is that for the first two which is to deal with the violent, dangerous, prolific years at least there is no return on its investment offenders, who are serving long sentences, from whom which, as an organisation, is extremely expensive, because we need to be protected. He talked about a rehabilitation the payment only comes after two years, based on the revolution and presented a coherent programme of result of reduced reoffending; this is of course a major legislative reform, which was very welcome and made gamble. There are in fact only a few agencies in the many of us cheer. voluntary sector able to afford such up-front commitment. The voluntary sector has been the bedrock of Since then, there has been a move back from the community-based work with offenders and consists clear, constructive focus on prevention, rehabilitation mainly of SOVA-sized organisations which will struggle and the reduction of reoffending to giving punishment and have to take on huge risks to deliver results. The a more central focus. Hence the change to the last part field is left mainly to the few large voluntary organisations of the name of this Bill from “the Prevention of or the private sector who can afford to become players Reoffending” to “the Punishment of Offenders” after if and when they choose. These are the ones who have it was first published and the Bill had to be reissued. I come into the criminal justice world through providing regret this because it injected an unhelpful, retributive STCs—our child prisons—YOIs, some adult prisons, and negative tone. From my earliest days of working and escort services such as Serco or G4S. Meanwhile, in prisons, I have been told that not only was imprisonment the probation service, which provides the basic, statutory the sanction of very last resort and for as short a time work with offenders in the community, is itself facing as possible, but that those who were sent to prison cuts and is very limited in its ability to participate— went as a punishment, not for punishment. although I understand that there is a project on which Despite this, I believe that the Bill could usher in a it is working with NOMs. shift of focus, or emphasis, so that much of what is How is it that on this very important and key being proposed is constructive and could succeed in element of policy, on which the reduction of the the core aim of reducing the number of short-term prison population is predicated, and which we all want prison sentences, and thus reoffending, save money to succeed, there so little explanation of how it will and protect the public. However, that will depend work, be managed, structured, co-ordinated, staffed, crucially on the work that will have to be done with or delivered? I have searched the Bill without success. sentencers in both magistrates’ courts and Crown Courts Perhaps the Minister can help me. to generate understanding and, more importantly, I welcome the Bill’s aspirations in Part 3 as a confidence in the proposed community sentences and positive first step in the approach to reforming our the quality and availability of these new tough sentences sentencing system and making it more fit for purpose, in the community. The decision on whether to use particularly in relation to community penalties including these alternatives remains with the sentencers. However, PBR, and the reduction of short-term prison sentences. there is nothing in the Bill about the nature, range or Much will hinge on the nature and effectiveness of expectations of the community sentences, which are to how these penalties are devised, how they command be alternatives to short sentences and on which the confidence—regarding sentences in particular—and reduction of reoffending is predicated. show themselves to be truly effective. I sincerely hope At a meeting with the Minister, Crispin Blunt, he that these aspirations will be realised. was emphatic that there is no government money for this provision, but rather an expectation that payment 7.53 pm by results will provide the answer. My noble friend Lord McNally did indeed refer to that in his opening Lord Borrie: My Lords, several participants in the remarks, but I have yet to find any detail in the Bill. course of this debate have referred to and quoted from Perhaps this is because this is an approach which is the book by our late colleague Lord Bingham. If still only being trialled at the moment and that the noble Lords will forgive one more quotation, he described success or otherwise is as yet unknown and unproved. the Legal Aid and Advice Act as one of the great but The result will take at least two years to demonstrate, less celebrated achievements of the post-war Attlee so the country will have to wait several years. This Government. The noble Lords, Lord Pannick, Lord means we are indeed putting on hold the kind of Goodhart, and others, made the point, following on revolution we hope to see. There is one much-heralded from what Lord Bingham said, that legal aid is a project at Peterborough prison, run by the prison, the service that the modern state owes to its citizens as a 889 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 890

[LORD BORRIE] beginning of proceedings, and at that stage it is guesswork matter of principle. Lord Bingham went on to say that rather than any rational, intelligent observation that the closer a country comes to achieving the goal of determines whether the proceedings are likely to end expeditious and affordable dispute resolution, the better with a term of imprisonment. I understand that the the rule of law is served. As several noble Lords, Sentencing Council has criticised the Government’s including the noble and learned Baroness, Lady Scotland, proposals, saying: from these Benches, have already said, access to justice “it will not be clear until the conclusion of the trial … whether the for all is essential to the rule of law. offence … merits a custodial sentence”. These are powerful and persuasive sentiments. Because So what is the point of this in determining whether of the cost of legal aid—many noble Lords have bail should be given? rightly concentrated on this this afternoon—increasing, Finally, again on the subject of bail, the Opposition of course, in the 60-plus years that have passed since in the other place made a powerful case for the prosecution 1949, successive Governments and senior judges alike to have the right of appeal against a court decision to have promoted alternative remedies. The noble and grant bail to an accused person. Jonathan Vass was learned Lord, Lord Woolf, in particular has promoted given bail in a rape case in 2009, despite the fact that alternative dispute resolution procedures such as he had a very violent past. While on bail he murdered arbitration, mediation, more informal tribunal hearings, a woman who had earlier filed a number of complaints and alternative methods of financing litigation in the of rape against him. I understand that the Director of courts through conditional fee arrangements. Some of Public Prosecutions endorsed the desirability of a these are not appropriate in all circumstances, and I change in the law through a statement made by do not think that anyone is suggesting that they are. Parliamentary Under-Secretary Mr Crispin Blunt, and However, as people have worked through those proposals that favourable comments were made by the Government and as some of them have been implemented, we have a few weeks ago in favour of the prosecution having come to see their value but also their limitations. the right of appeal against the granting of bail. I will This Government, like the previous Government—and be interested both in what the noble Lord, Lord I certainly have no objection to this at all—are trying Macdonald, will say shortly and in what the Minister to reduce the costs of civil litigation. Many participants will say in due course. in the debate this afternoon have indicated serious doubts about the detail of the Bill because it very specifically limits legal aid for the most vulnerable and 8pm impecunious in society, such as those in need of advice The Earl of Listowel: My Lords, I am prompted to on social welfare. Many people in this House, this speak briefly about the debate tomorrow on the Public week, next week and so on, will be involved in the Bodies Bill—and the amendments that are coming most tremendous upheaval in welfare rights, and many back from the other place—by what was said by the individuals who may or may not be on welfare at the noble Baronesses, Lady Newlove and Lady Linklater moment will have somehow to see whether they are of Butterstone, about the reoffending rate for young eligible under the new legislation that will be in force offenders, which is put at 71 per cent. Clearly we want very soon. to see that figure reduced. I draw noble Lords’ attention Many provisions in this Bill are counterproductive, briefly to the programme of change that the Youth as has been indicated, sometimes with detailed figures Justice Board has set in motion in this area. Key to the such as those given by the former Attorney-General, effective rehabilitation of young offenders is the ensuring the noble and learned Lord, Lord Morris of Aberavon, of good resettlement back into their home areas. The and as Citizens Advice has pointed out as well. Judges Youth Justice Board has worked with consortia of have said many times that if applicants are unrepresented local authorities to develop programmes of work, in the courts—and in the tribunals, which deal with so accommodation, training and education for young many welfare matters—they will be overwhelmed trying people. It is early days, but one striking fact is that in to cope with litigants in person. Trials that might have the recent riots only one child in the programme was taken such and such a time will take much more time if involved in criminal activity. I cannot tell noble Lords litigants are not represented. The noble Lord, Lord how many children are involved, but so far four large Newton of Braintree, made a special point about this. local authorities in the north-west of England have A seemingly minor change is a promised requirement been pulled into the programme, which is now moving that applicants must use the telephone as the only down to Wales. I hope that noble Lords will make time method of communication. Several people have put it to listen to the debate tomorrow on amendments to as a mandatory requirement. Yet it must be clear to the Public Bodies Bill—I apologise, the debate is in many people that for those with mental health problems fact on Wednesday—because it will be germane to this or linguistic problems, the telephone is a more difficult debate. method of communication compared with others. I was grateful to the Minister for introducing the The only other matter that I wanted to mention Bill in the way he did, and in particular for paying briefly relates to criminal proceedings. I do not think attention to concerns about the welfare of women and that it has been mentioned today; it is the provision children. I am speaking because of concerns that have that bail should be granted to a defendant where, been raised by many bodies about the impact of the “there is no real prospect”, legislation on their welfare. I was grateful to the Minister that the defendant will be sentenced to imprisonment for making clear that the Bill will not directly affect at the conclusion of the proceedings. But of course, as looked-after children in local authority care. I was many people realise, bail is normally determined at the also very pleased to hear some things that he said 891 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 892 about the Bill’s impact on sentencing, and about 17 year- I share concerns that were raised that many more olds. In the past they were treated—quite unacceptably—as litigants in person may clog up the courts. I worry that adults, but now that situation will be remedied and this will add to delays for children both in private and they will be recognised as children while they are on public family law, as the same courts are used for both. remand. For example, has the Minister considered how the Bill I will comment on the rehabilitation revolution. It may impact on the time it takes for children to go is perhaps important to bear in mind the success of through the adoption process? Is he concerned that it the previous and current Governments in reducing the may add to delay? I share the concerns raised about numbers of children coming into custody. There has the likely knock-on costs of poor decisions or no been a 30 per cent reduction in the past three years in decisions being taken, in particular by the family the number of children coming into custody. That is a courts. very striking result. There has also been a 51 per cent As I said, I am grateful for the care with which the reduction in the number of under-14s coming into Minister in his opening remarks addressed anxieties custody in the past four years. Given that we have an about the impact on children and women. Is he prepared exceptionally low age of criminal responsibility, and to undertake an impact assessment of the Bill’s that such concern has been expressed in this area, it is consequences for children and its compliance with the very good news and one must pay tribute to the previous United Nations Convention on the Rights of the and current Governments for achieving those results. Child? I look forward to his response. Given the success that we have seen in the Youth Justice Board arena with these children in terms of 8.07 pm reducing the numbers coming into custody, will the Minister consider again the recommendation made by Lord Howarth of Newport: My Lords, it is a bedrock the noble Baroness, Lady Corston, in her report on principle of a liberal society that there should be women in the criminal justice system? She recommended equality before the law. Every citizen, regardless of that there should be a women’s justice board that means, should be able, where they have a reasonable would give appropriate focus to the smaller number of case, to have access to legal advice, assistance and, women, with their complex needs, in the criminal should it be necessary, representation in court. This is justice system. I understand that the decline in that a matter of both constitutional and humanitarian area has not been sustained, and indeed that the principle—a principle that the Government are numbers may be climbing again. abandoning in the Bill. I return to the Bill and say that I share the concerns Legal aid costs £2.1 billion. Is that too much to pay expressed in particular by the noble and learned Baroness, to make such a fundamental principle a reality in Lady Scotland. I will address briefly the important practice? Is it really unaffordable? It is no more than point raised by the Minister in previous debates regarding 1 per cent of social security expenditure, yet legal aid, the disproportionate size of our legal aid system when too, is an indispensable part of the welfare state. Of compared with that of our international peers. Many course, where there is waste in legal aid, or unintended noble Lords tonight spoke of the rule of law, which is injustice in its working—as the noble and learned perhaps dearer to us than to many nations. The Minister Lord, Lord Woolf, explained—it should be stripped prompted me to reflect on differing national priorities. out. However, when that has been done, I do not In Finland, 40 applicants for a teaching post are mind—and I suspect that most of my fellow citizens rejected for every successful candidate, and it takes do not mind—how much tax we pay to fund legal aid. five years to qualify as a teacher. In Denmark, a social Justice for All warns that more than 700,000 cases a pedagogy degree—the qualification for working with year will lack legally aided support following the reduction vulnerable children—is almost as popular as one in of legal aid funding for advice centres and the removal law or medicine. In France, the literature suggests that from the scope of legal aid of housing, welfare benefits, social workers have a high status and are held in high debt, employment, immigration, education, clinical respect by the courts. In this country we are beginning negligence and family breakdown. The organisations to address the low status of social workers, teachers that form Justice for All—including the Law Society, and others who work with our most vulnerable children. Justice, the Disability Alliance, AvMA, Mind, the However, we have always prized the law. It has always National Autistic Society, Gingerbread, Citizens Advice been a high-status profession. and Shelter—are experts, and I trust their evidence and their motives. I sat in with a lawyer doing pro bono work at the Waterloo Legal Advice Service. He was advising a The Government take the view that legal aid is not young, pregnant woman about her rights of tenure in justified in welfare benefits cases. Paragraph 4.219 of her home. I was compelled to admire the clarity of the Green Paper states that, reasoning he applied to the young woman’s situation. “because the issues are not generally of sufficiently high importance In our culture it is vital to ensure that the weak have to warrant funding”, access to the law, because so many of their other and the tribunal system is so “user-accessible”, advocates are absent or weak. Therefore, I share the “appellants are able to represent themselves”. deep concerns expressed by the noble and learned Not of sufficiently high importance for whom? I think Baroness, Lady Scotland of Asthal, and other noble that they are of very high importance for people in Lords. While I recognise the complexities of the issues poverty. And how are people beset by the multiple, that face the Government, I am very worried about interlinking problems that the poor have to battle with how the raising of the threshold of access to justice and facing all the complexities of debt, the benefits will hit the most vulnerable. system and the law to represent themselves? It is 893 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 894

[LORD HOWARTH OF NEWPORT] The National Federation of Women’s Institutes has estimated that 58 per cent of those whose benefits noted that: cases will fall out of scope will be sick and disabled “To exclude areas of law such as housing and debt from the people. legal aid scheme denies victims of violence the support they Those served by law centres and other advice centres need”. funded through legal aid include people who are ill Then there is the new obligatory telephone gateway and unable to manage day to day, have physical or to legal aid. My noble friend Lord Borrie asked sensory impairments, are learning disabled, cannot questions about this. How are people with poor speak English, cannot read, have addictions, are old language skills, speech impairments or mental health people with support needs or young people with support problems leading to stress and poor concentration to needs, or are refugees. Legal aid is to be taken away explain themselves over the telephone? Clients need from people who are in acute difficulty. face to face contact with advisers. Advisers need to The Government are legislating to remove legal aid read body language, and build clients’ confidence and from employment cases at a time when youth ability to explain and understand. Poor presentations unemployment has passed 1 million and employment and poor advice will lead to poor decisions and further prospects are bleaker than they have been for a generation. costs. Shelter anticipates that more than 50,000 housing The exclusion of poor people from advice and legal cases will be unaided when legal aid is removed. aid comes when the Government are cutting local The removal of legal aid for clinical negligence is authority funding by 30 per cent; forcing cuts to Sure very worrying. The noble Lord, Lord Faulks, spoke Start, social care and other local authority services powerfully about that. I ask Ministers to imagine the that are crucial in assisting disadvantaged people to grief and the stress for a family in such a situation. cope; cutting and capping benefits; making social Parents seeking legal redress and compensation in the housing tenure more uncertain; driving up unemployment interests of their damaged child have to battle not only through reckless cuts to public spending; and making with the distress and the practical difficulties at home it easier for employers to sack people. that such an event creates but with daunting legal The Ministry of Justice has failed to seek economies complexities, substantial costs for expert reports and in the right places. The Law Society says: the implacable resistance of the NHS to admitting fault. Your Lordships will want to examine rigorously “There is significant scope to make efficiency savings within the Government’s contention that reformed conditional the legal aid and the civil and criminal justice systems that will fee agreements and the insurance industry will make enable at least £400 million to be saved”. up the gap. It is not civil legal aid whose costs have been rising. Special educational needs are also removed from The ministry is hitting the wrong targets. It is cutting scope. Parents again face constant struggle and stress the fees paid to legal aid practitioners by 10 per cent, as they try to establish the rights of a child, ground yet legal aid lawyers typically earn only around £25,000 down by the determination of so many LEAs to a year. The ministry’s policy will also result in a 77 per provide the minimum. If the parents’ marriage should cent loss of legal aid income to charities, which is break down, adding new dimensions and intensities of essential to fund staff. Volunteers need professional distress to their lives, again the Government intend training and cases need the continuity that only that they should no longer have access to legal aid to professional staff will supply. help them through the crisis. Sixty per cent of appeals against the refusal to The policy in the Bill on legal aid is not only award disability living allowance, when the claimant is indecent; it will not only create fear and suffering to accompanied by an adviser, are successful. Appeals save net, perhaps, £20 million or £25 million on against the refusal of employment and support allowance legal aid for welfare cases and just £11 million for have quadrupled in the last two years. Why are the clinical negligence cases; it is also stupid. It will end up Government penalising claimants instead of the DWP costing more to other government departments and to for the appalling quality of its decision-making? It has local government. Early advice and intervention prevent to be anticipated that the introduction of universal problems escalating to become more serious, complex credit from 2013, affecting huge numbers of people, and costly. The Howard League warns that: will be accompanied by a high error rate. Legal aid will be essential for the success of welfare reform. “The logical conclusion of reducing legal aid is that … youth crime will increase and greater economic costs will be incurred At a time when we are seeing mass protests, which further down the line”. the Government should take very seriously, they are Through legally aided advice centres, litigation is actually introducing a policy in this Bill that will drive more averted, tribunal procedures are smoothed, ill health is people to hold the view that politics, law and public prevented and children are saved from harm. administration in this country are unjust. There is an ignorance and unrealism in the ministry’s I had hoped that we agreed across the parties that approach. Real life is messy and fails to fit bureaucratic in hard times, and indeed at all times, we should categories. Citizens Advice has testified that, protect the weakest and the most vulnerable. Of course “advising only on debts where a home is at ‘immediate I do not believe that Ministers personally want to hurt risk’ is not practical, as most clients have multiple debts which anyone, but this policy of withdrawing legal aid, of must be addressed for them to achieve a sustainable financial hitting people when they are down, will be cruel in position”. effect, and it is wrong. 895 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 896

8.17 pm violence in the Bill so that fewer women who are victims of it will have access to the law and to the Lord Macdonald of River Glaven: My Lords, as my protection of the law, as will their children. noble friend Lady Linklater said a few minutes ago, this has been a fascinating debate, and it is a great I want to address one other issue in the Bill because privilege to speak in it. I listened with particular it seems to be another illustration of the application of interest to the speeches of my noble friend Lord the law of unintended consequences as it applies to the Phillips of Sudbury and of the noble Baroness, Lady Bill. Clause 12(1) concerns criminal legal aid in the Kennedy of The Shaws. I found myself agreeing with context of advice and assistance for individuals in every single word that they uttered. police custody. The right of a prisoner to consult a solicitor in a police station is a fundamental protection. It is clear that the legal aid bill is high, but it is It has been described by the Court of Appeal as, equally clear that Part 1 of the Bill, if it passes into “one of the most important and fundamental rights of a citizen”. law, will narrow access to justice. That is a quite inevitable consequence and in that sense it is surely a The United Kingdom Supreme Court has endorsed retreat. It is all the more essential then that the areas this view saying that, where access will be narrowed are carefully chosen and “on arrival at a police station, the detainee must be advised about the most vulnerable, we would hope, protected. It his right to free legal advice”. seems that many noble Lords on all sides of the House However, the provision of legal advice in police stations feel that these important aims may not yet have been is not simply a protection for detainees; it is also a entirely achieved by the Bill so that if Part 1 passes protection for the police. This was very well understood into law unrevised, the pain will, on the contrary, fall by Parliament when it passed the Police and Criminal disproportionately on the weakest and the most vulnerable. Evidence Act into law under a Conservative Government That cannot be the Government’s intention. in 1984. This legislation followed notorious police abuses in the 1970s and early 1980s, when mistreatment I want to address the question of domestic violence, in police stations was common and confessions were which has already been spoken to by a number of regularly fabricated. One notable and inevitable effect noble Lords. When I was chief prosecutor some years of this misconduct was the growing unwillingness of ago, I saw the extent of the scourge of domestic juries to convict defendants on the strength of police violence, its impact on those who suffered it, who were evidence alone and widespread cynicism among them mainly women, and its impact on the children, who about confession evidence generally. This cynicism usually witnessed it, many of whom would enter certainly meant that some guilty people escaped justice, their own chaotic cycles later in life. We did a great adding insult to the injury of their victims. deal of work with the police and other agencies to try to improve the response of criminal justice to crimes It was in response to this that the Police and Criminal of violence committed against women and children Evidence Act enshrined the right to legal advice in in the home. The first lesson we learnt doing this police stations into our law. The effect of this long-overdue work was that it is impossible to predict the responses reform was immediate and entirely beneficial. Of course of people who are suffering that sort of crime. They it helped fundamentally to regulate conduct in police do not respond in a way that you can always stations—and that was a good thing—but it also protected predict. Sometimes their responses appear to be the police because it gave honest officers, the overwhelming entirely out of kilter with what is happening to them. majority, protection from malicious allegations of abuse. One thinks of women returning again and again to The universal availability of free legal advice in custody abusive partners. This first lesson which we learnt suites throughout England and Wales has improved appears to have been forgotten by the drafters of this beyond measure the quality of criminal justice and, Bill, who completely fail to understand that the along with tape-recorded interviews, improved the responses of people who are being beaten and standard of prosecution evidence to the general benefit abused by their partners will not fit into the sort of of the public. narrow tramlines that serve as a gateway to legal aid Of course, a critical aspect of this legal advice was under Part 1. An inevitable consequence of the Bill’s that it was readily available and free. This meant that approach to domestic violence is that more people—again, its provision was swift, it was certain, and it did not mainly women and children—will be trapped in more tend to disrupt the flow of an investigation with abusive relationships with no succour at all from our additional layers of scrutiny and paperwork. However, law. I venture to suggest to noble Lords that that is a Clause 12(1) raises the spectre of this all changing in situation that would bring shame upon our entire the future, and changing for the worse, because it legal system. indicates the possible future introduction of means-testing It surely at the very least must make sense for the before police station advice may be available. Leaving definition of domestic violence in the Bill to be the aside the extent to which the cost of administering same as the tried and tested ACPO definition that means-testing often seems to outweigh any financial has been used by the police and the Crown Prosecution benefit occasioned by its introduction, it is very difficult Service and well understood by the courts for many to conceive of any environment less suited to its always years. It is a matter of very great regret that the rather clumsy operation. definition of domestic violence in the Bill is narrower We are talking about busy police stations, in the and, I have to assume, deliberately narrower than the early stages of an investigation, possibly when the definition used by ACPO and the CPS. I ask the need to interview a suspect is urgent. However, if he Government to think very carefully about whether it is wants legal advice, he cannot be interviewed until he appropriate to have a narrow definition of domestic has received that advice—after all, if he remains silent, 897 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 898

[LORD MACDONALD OF RIVER GLAVEN] in the city’s jail system has been going down steadily. that could be held against him at a trial. Are we really In 2010 it fell below 100,000 for the first time since to say that no interview is going to take place before a 1987, and at the same time there has been a big and means test is considered, no charge may be preferred much publicised reduction in New York City’s crime until the financial forms are filled out and passed— rate. Whether the legislation we are debating here this mortgage payments, rents, wage slips, debts, assets and evening will take us in that direction remains to be all the rest of it? It is—I choose my words carefully—a seen, but it might be worth noting that features of the foolish notion. Who is going to calculate the cost of European countries with lower and stable prison this in wasted time and disruption to the forensic populations are, to generalise, first, broad discretion process? How will any hoped-for benefit possibly for judges; secondly, strenuous efforts to keep young compensate us for yet more bureaucracy in police people out of the system and to divert lesser offenders; stations at a time when we are supposed to be doing all thirdly, strong, well resourced probation and social we can to reduce it? services; and finally, a recognised role in the system for The truth is that suspects in police stations need victims of crime. legal advice and it is equally in the interests of the There is therefore much to welcome in Part 3 of this police that they should have it. It is certainly in the Bill. For example, there are provisions for greater use wider public interest too because appropriate and of compensation orders, which take victims into account. legally compliant behaviour in our police stations is There is flexibility for the court in dealing with breaches— the starting point for a fair and decent justice system that is, more discretion for judges; greater discretion worthy of public confidence. We would tamper with and flexibility in supervising community orders—and this gateway at our peril. probation staff are likely to be more effective if they are given the opportunity to use their discretion and tailor what they do to the individual before them; 8.25 pm more flexibility in imposing referral orders, trusting Baroness Stern: My Lords, I am very glad indeed to the court to do what is best for the juvenile before it; follow the noble Lord, Lord Macdonald, and and reducing remands in custody, and, in particular, wholeheartedly endorse his comments about free legal juvenile remands. advice in police stations. However, I shall concentrate Obviously many of us who have spoken so often in my remarks on the sentencing part of this Bill, Part 3, this House about the injustice inherent in the IPP which contains many proposals that are broadly welcome. system will welcome the abolition of the IPP sentence, The Lord Chancellor has said on more than one and also the proposal to reform the release test for occasion: prisoners serving IPP sentences. The Convenor of the “A sensible review of sentencing policy is much overdue”. Cross Benches, the noble Lord, Lord Laming, has This followed his statement soon after his appointment received and passed to me a huge packet of letters that he was “amazed” that the prison population had from the families of current IPP prisoners—I believe doubled since he was Home Secretary in the early that they have also written to the noble Lord, Lord 1990s and now stood at more than 85,000, which he Ramsbotham—pointing out the injustice of their described as “an astonishing number”, which he would continued detention. Many of them are without access have, to the facilities that would enable them to progress “dismissed as an impossible and ridiculous prediction” towards release. Can the Minister also tell the House if it had been put to him as a forecast in 1992. He said: in his response what the Government plan to do to “We need an enlightened and effective penal system that the deal with those currently serving IPP sentences? public can both trust and afford to pay for … Too often prison Not everything that has been put before us in Part 3 has proved a costly and ineffectual approach”. of the Bill is so welcome. Curfews of up to 16 hours, These are very sensible words that have proved a little with the length of curfew periods up from six to difficult to put into policy. 12 months, seem to me neither sensible nor enlightened, It is perhaps worth noting, in support of the Lord especially for children and young people. The provision Chancellor’s view, that it is a feature of England and for mandatory four-month detention and training Wales that our use of prison is high compared to orders—that is, prison sentences for 16 and 17 year- similar countries, and our use of prison rises year by olds—for threatening with a knife could bring another year, unlike similar countries. England and Wales have 200 to 400 teenagers into prison every year. It is not 154 prisoners per 100,000 of population; Germany, a clear to me that that is sensible either. similar, large, western country, has about 87. So we are I must end with a word about the legal aid aspects about 70 per cent higher. Germany’s prison population of the Bill, although I can see that the Minister feels he has not been on a steady upward trend for the past might well have heard enough about them. It is my 20 years; it has fluctuated around 90 per 100,000, and experience when dealing with improving observance has gone down by 6 per cent since 2007. In England of the rule of law in countries where it is grossly and Wales, the prison population has gone up steadily deficient that the one measure most likely to create a for the past 20 years and has increased by 6 per cent more lawful, fair and democratic society is to give since 2007. poor people access to justice and access to means of The Lord Chancellor is right to think that there are redress of abuses by the powerful or by the state. In a models of an “enlightened and effective” penal policy, democratic society, people—whatever their social and prison numbers can be reduced, especially since position—should be able to get wrongs righted and there is no evidence to connect imprisonment rates injustices rectified. So I am in wholehearted agreement and crime rates; for example, in New York, the number with the very powerful points that have been made all 899 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 900 around the House, calling for the Government to in the family home. More than 17,000 children in any think again about what it means when a rich person year are separated from their mothers as the result of can go to court and fight for his or her rights and a imprisonment. While on average women spend four to poor person cannot do so. six weeks in prison on remand, 60 per cent do not go on to receive a custodial sentence, which is clearly 8.34 pm contradictory and counterproductive. But what kind of logic is being advanced in favour of a situation of Lord Judd: My Lords, in opening this debate, the this kind? As my noble friend Lady Corston put it in noble Lord, Lord McNally, in his engaging, candid her good report, surely we should have a situation in way, asked us to be reasonable and accept that it was which women who are unlikely to be give a custodial not possible for everyone who sought legal aid to have sentence are never remanded to prison. it. The trouble is, if I may say so to the noble Lord, that those with wealth can always have access. That is As a former director of Oxfam, I very much share the basic contradiction and injustice in the system. We the concern of my old organisation and other must not lose sight of that in our deliberations. Quite organisations working in the same sphere about the apart from the burden on judges, courts and legal way in which wealthy companies have invested heavily systems as a result of inadequate legal aid, which will in cheap agricultural land in poor countries. In many be caused by the absence of proper professional legal cases, the land sold is being used by poor families to representations, we have to remember the indirect grow food. Families are often forcibly evicted with costs, which have been spelt out for other spheres of little or no warning or compensation. Research by my government and for the economy as a whole; that is, old organisation has revealed that residents regularly the costs of stress, mental illness, homelessness and lose out to local elites and domestic or foreign investors the impact on economic performance by people who and to local corruption, because they lack the power are so stressed or, indeed, broken. to claim their rights effectively and to defend and advance their interests. There is concern that the changes My noble friend Lord Howarth was right. We have in this Bill to the cost regime for civil litigation would to remain focused on the people about whom this make it almost impossible for foreign victims of human legislation is concerned. We have to focus on the rights abuses committed by UK multinational companies widow, the single mother, the disabled, the chronically to access justice in the United Kingdom. sick, the bereaved, the recently unemployed and the redundant. These people often are devastated, broken There is real anxiety lest the abolition of success and bewildered. It is not just a matter of leaving it to fees being payable by defendants will mean that claimant them; they need particular help and assistance in their firms will not be able to run the risk of taking on cases struggle simply to keep going. against multinational companies. The financial risk of losing the case will be great. Even if they are successful, The distinguished Howard League has raised key they may not be able to recoup all their expenses. This, issues in approaching most of us, I think, about these of course, will be particularly pertinent when the deliberations. It has raised magistrates’ sentencing powers claimants are from developing countries. and has asked whether, if we are really serious about reducing the number of people unnecessarily in prison The Bill also proposes that the claimant, rather and ensuring adequate rehabilitation, the issue of than the defendant, should pay for the “after the event” committing people to prison should be in the realm of insurance premium, again reducing compensation the Crown Court and not the magistrates. It has also recovered. In recognition of the significant expense raised the issue of curfews and extending them, as and expertise required, clinical negligence cases are to proposed, to 16 hours. What impact will that have on be exempt. Surely human rights cases, which require rehabilitation? For people who are expected to stay at similar levels of expense and expertise, should therefore home even longer, what will the situation really be? be exempt. This will need our careful consideration. I Will this assist them in becoming more well adjusted, think the example that I have just given brings home productive citizens or will it make matters worse? The that, at an international level as well as within the UK, Howard League has suggested that perhaps there is justice is indeed often the key to full mobilisation of provocation, in effect, in extending the hours, which people’s potential rather than simply handouts or grants. makes the system almost certain to fail. Access to justice is, of course, the hallmark of a On bail, in 2009, 40 per cent of people remanded in decent society. Lack of convincing access is a spur to custody did not go on to a custodial sentence. Almost social fragmentation, alienation, instability, or worse. two-thirds of those on remand in prison are accused To talk about all being in it together is provocative of non-violent offences. The average waiting time is when it is patently obvious that, in effect, we are not 12.3 weeks. What are the social and economic all equal in the processes of the legal system and when consequences of this? What about family disruption? too many people simply cannot get access to justice at Are we thinking through the implications of some of all. In our deliberations, we must be vigilant lest these measures? overall this Bill aggravates that sad reality. The Howard League rightly concentrates, as have other noble Lords, on the position of women. In 8.42 pm dealing with women, we are also dealing with children Baroness Mallalieu: My Lords, I must first declare and families. Do we remember that the average distance two interests. I am a practising member of the criminal of prisons away from home is 55 miles? Very often, Bar with an almost exclusively legal aid practice. In that distance is faced by families with virtually no addition, I have a daughter who has followed me into spare means available. Only 5 per cent—a shocking the same area of practice, despite my best efforts to statistic—of the children of women in prison remain stop her boarding a sinking ship. I have had 40 years’ 901 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 902

[BARONESS MALLALIEU] To remove legal aid altogether, saying that there experience of looking at the legal aid system from will be nothing but self-help in so many areas of inside and outside, and in my seven minutes I will the law for those who cannot afford to pay, concentrate on Part 1 of this Bill. ultimately does not punish the greedy lawyers, who Most members of the public give credit to the 1945 if they exist in this field will simply move on to other Labour Government for laying down the foundations work, but puts the most needy outside the protection of the National Health Service. However, few people of the law. Strong cases have been advanced in a outside this Chamber remember that that same number of areas during the course of this very Government introduced legal aid and that, later on, interesting debate. People have argued for the victims reforming Labour Lord Chancellors, notably Lord of domestic violence, for those involved in welfare Gardiner and Lord Elwyn-Jones, built on those beginnings claims and also in cases of clinical negligence. All of to try to ensure that no one in our country should be these are likely to fall outside the scope, as far as I can denied access to justice through lack of funds. They see, of any remedy. I would just say this. Clinical saw that principle, as I do, as a fundamental aim of a negligence is not alone. There are many other cases just and civilised society and part of our very constitution. where medical reports and expensive preparations have Since then, like the health budget, the legal aid to be made before a case can be begun, and I doubt budget has grown and grown as areas of law have very much that many solicitors will take up those developed and expanded. In the present climate, every costs unless the case is 100 per cent sure, which they area of public spending, including legal aid, faces cuts seldom are. in addition to those that have already been imposed on As the noble Baroness, Lady Kennedy, said, we criminal legal aid with very damaging consequences have in this country the best legal system in the world. under the previous Administration. Our judges are drawn from the top of the practising The legal profession has not been guilty of special profession and they are of the highest quality. Our pleading. It entered into the consultation with the courts are not corrupt, they are relatively speedy and Government fully on this Bill and identified alternative they have a worldwide reputation for fairness. But our cost savings of more than £350 million in the justice system will be tarnished if it lies beyond the administration of justice, which the Government have means of whole sections of our poorest citizens. On so far chosen to ignore. Those proposals would have the figures I have heard mentioned, over half a million saved money yet retained the structure of the legal aid people a year who would now be eligible for help will system without abandoning some of the most vulnerable be excluded. If people are left with no alternative but to do-it-yourself justice. But instead, in Part 1 of the to grin and bear it or try to represent themselves, Bill, the Government have preferred to throw out the usually against a trained lawyer experienced in the baby as well. Indeed, Part 1 might just as well be titled field, where does that take equality of arms? I sat as a the “slash and burn” Bill, because it is destructive and recorder for some years in both criminal and civil in no way constructive. What it says is, “We’ll get rid of cases. A litigant in person was the one thing I most legal aid and maybe we’ll give a little help to some dreaded. The whole case took far longer as everything further mediation here or a bit of encouragement to had to be explained—the procedure and the law, which some pro bono work there”. usually I had no time to check. I had to help them with If access to our health service was to be reduced to the evidence, with cross-examination and, indeed, with as many people and to the extent to which this Bill every aspect of the case. The rest of the list, which was proposes to reduce access to legal assistance for those always long, often went out of the window. in need, there would be a public outcry and very probably a major demonstration taking place outside The Government’s own research shows that poorer in Parliament Square today. We can all readily envisage outcomes, longer delays, fewer settlements and overall a time when we or those close to us may need a doctor a greater likelihood of injustice occurs where someone or a hospital, but few of us envisage needing a lawyer is not represented. To take away legal aid in cases or having to go to court until it actually happens to us. where at present there is no practical alternative and to Much of the outcry against this Bill, and there is one leave so many of our poorer people without help in a which will grow as its reality becomes better known to time of need is to strike a blow at fairness itself. We the wider public, comes from people who have seen for may all have to stomach many unpalatable cuts in themselves those in need of help and the protection of these difficult times but we would be mad to dismantle the law, or with good and valid claims sometimes the very structure of one of the pillars of our constitution against government departments or large companies which goes to the essence of fairness in our society with big purses, who lack the means and the ability to and respect for the rule of law. pursue them without proper help. When we come to the Committee stage of this Bill Like others who have spoken, I hold no brief for for my part I shall support the amendment which the ambulance chasing, for referral fees which should noble Lord, Lord Pannick, indicated that he would rightly go, or for excessive legal costs. For the reasons put down and which the noble and learned Lord, Lord given by the noble Lord, Lord Thomas of Gresford, I Woolf, indicated that he would support, which will spoke out against conditional fee agreements when place clearly on the head of the Lord Chancellor a they were introduced in this House, but I have to say duty to secure that legal aid is made available in order now, “Thank goodness for them”. I am very concerned to ensure effective access to justice. If we cannot stop about some of the steps that are proposed in a later unpleasant and painful cuts being made, we can at part of the Bill which are likely to close that avenue off least stop the pillars of our constitution being knocked to many people. down in this way. 903 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 904

8.50 pm The proposed removal of public funding from private family cases—essentially, divorce, contact and residence Lord Shipley: My Lords, my noble friend Lord disputes—will decimate the legal profession in these Thomas of Gresford indicated that I would say something areas. Legal aid firms already typically work for only about access to justice. My concerns relate to the £50 an hour for this type of work. They provide planned reduced availability of legal aid and the impact excellent value for money in these critically important on the voluntary sector, in particular on law centres, cases. Without their continued help, access to justice which helps those who lack the resources to buy their for our most vulnerable will be severely harmed and own representation. I wish to address the issue from social cohesion damaged. Without that help, legal two perspectives—first, law centres, and secondly, the rights may not be enforced. With this modest but court system. crucial income stream removed, many legal aid firms Law centres are non-profit legal providers. In 2010, will withdraw from this work and many will go out of Newcastle Law Centre opened 550 casework files on a business altogether. If they do, there will be no going mix of welfare benefits, housing, immigration, asylum back. Having left this type of work, it is unlikely that and employment—including discrimination—cases. The firms will return to it should there be a later change of law centre works closely with and complements the mind by government. work of Shelter and Citizens Advice and it meets a Initial access to proper matrimonial legal advice is gap in provision. All 550 cases were for clients on low often a gateway to other areas of social welfare law, incomes who might not otherwise have received legal including housing and debt. It may minimise conflict representation. In addition to those 550 cases progressed, between separating parents and head off social services Newcastle Law Centre gave some 2,000 instances of involvement and potentially expensive, harmful and one-off advice to individuals—people who might manage disruptive care proceedings at much greater cost to the themselves or could secure advice and help from elsewhere. state. In that year this law centre’s income was just £346,000 Those members of the public who avoid the temptation with nine full-time equivalent workers. Experienced simply to take the law into their own hands will be solicitors were paid on average £29,000 a year and forced to attempt mediation. Should mediation fail, experienced caseworkers were paid £25,000 a year. the parties will be forced, unrepresented, into a complex That figure of £346,000 is made up of £206,000 from and technically difficult arena. While the judiciary are the Legal Services Commission, £60,000 from the experienced in dealing with litigants in person, there is Equality and Human Rights Commission, £65,000 likely to be a flood of unrepresented litigants, which from Newcastle City Council—I declare my interest as will severely impact on the courts’ business and lead to a member of that council—and other incidental income. delay, lack of proper presentation of cases and potential Within this year’s budget there has been a 10 per cent injustice. The reduction in experienced court staff will cut in contract fees already. exacerbate the situation, as there will be no one to help In England and Wales there are 52 law centres and guide the public through the procedures and forms all of them have a legal aid contract with the Legal they need to complete to prepare their own cases. Services Commission. The Law Centres Federation Cases which might have proceeded smoothly through estimates that up to 18 of the 52 law centres—that is the system will require direction hearings, with greater just over a third—receiving Legal Services Commission judicial input, for the judge to explain to the parties in funding would close as a consequence of this Bill. layman’s terms what is required to prepare and present These 18 are primarily or entirely funded by legal aid their cases, and final hearings will be lengthened. work. The curtailment of the scope of civil legal aid Budgetary cuts have already led to a reduction in hits law centres hard as it focuses on those areas in the number of sitting days for part-time judges, leading which law centres specialise—welfare benefits, to overlisting of cases, longer adjournments and greater employment, housing, debt and so on. In Newcastle inefficiency in the court system. Justice delayed is funding will be reduced from £206,000 to £48,000 as a justice denied, and there is a very real and serious risk consequence of the abolition of the Legal Services that those delays will only worsen when the flood of Commission. This cut cannot be taken in isolation litigants in person starts to come through the system. since the Equality and Human Rights Commission The removal of legal aid as proposed could have grant of £60,000 is disappearing as well. In total at many unintended consequences. I hope that we shall least 63 per cent—effectively two-thirds—of Newcastle be able during the passage of the Bill to make changes Law Centre’s income is set to disappear, which leaves which guarantee effective access to justice for all. That us with the question of what will happen to those 550 means access to good-quality, face-to-face, free advice cases and where those people will get the detailed help from a qualified person, and representation when it is that they need. needed for those without their own resources to enable Secondly, I want to address the issue of access to them to pursue their right to equality under the law. the court system. In December 2010 the Ministry of Justice announced the closure of 142 courts—93 8.58 pm magistrates’ courts and 49 county courts—out of a total of 530 courts in England and Wales. Although Lord Alton of Liverpool: My Lords, it must surely the business of these courts is being transferred to remain one of the highest ideals of any society, perhaps other courts, the court closure plans have caused the its very first duty, to provide equal and unfettered loss of experienced caseworkers and counter staff, access to justice regardless of economic status. Justice while simultaneously making it more difficult to access is not a commodity to be rationed. Any legal system a local court. which depends on the amount of money that you have 905 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 906

[LORD ALTON OF LIVERPOOL] who probably would not be entitled to compensation before you can seek redress forgoes the right to describe had the Supreme Court appeal by the defendants not itself as just. Sadly, unless this Bill is significantly been dismissed. amended along the lines suggested by my noble friend The judgment in Sienkiewicz v Greif (UK) Ltd was Lord Pannick and by many others in your Lordships’ given in the Supreme Court in March this year. Mr. Jones House today, these proposals will be judged as a huge handled the action under a conditional fee agreement. assault on access to justice. There were CFAs for the County Court proceedings, Specifically, I want to speak about the changes to the Court of Appeal and the Supreme Court. Norman legal aid and to success fees, and the deleterious impact Jones tells me that without the 100 per cent success fee which these changes will have on victims of personal payable under the CFAs, the risks of the handling this injury and on claimants who have modest means. I case would have been totally beyond his firm. Putting particularly regret that the Government did not accept it bluntly, he says, had it lost, his firm may have been amendments in another place to retain legal aid in facing bankruptcy. It is not only the claimant who will cases of clinical negligence and have chosen to ignore suffer—so will many of their representatives. Small significant and broad-based opposition, which includes practices and single-handed solicitors working in the Judges’ Council and the Lord Chief Justice. disadvantaged cities and regions are likely to be the I take as my starting point the Bar Council’s assertion most badly affected by these proposals. that it is profoundly concerned about the impact that Donal Bannon, the director of the Liverpool Law the Bill’s proposals could have on access to justice, Society says that Liverpool is one of the most deprived particularly for some of the most vulnerable members cities in Europe and that the impact of the proposed of society. It says that access to justice will be replaced reforms will have a disproportionate effect there. I by do-it-yourself justice; that access to justice will be asked the Liverpool Law Society for more examples seen as an unaffordable luxury; that there will be a and it sent me several. They include a medical negligence concomitant and inevitable short and long-term decline case, a vicious-circle case involving an unemployed in the availability of quality advocacy services. That drug addict, where no one is willing to bear cost point is underlined by the Law Society, which says that liability for an expert witness, and children’s cases that the Bill ensures that serious injustice will be done and they say would simply be out of the reach of anyone that clients with physical or mental health difficulties but the very rich without public funding. It says that or low levels of education may be unable to resolve the idea that mediation can resolve all these matters is their problems in the absence of support through legal delusional. One of its member solicitors says that if we aid. want a society where only the rich can litigate, then we Take the specific example highlighted by Tony Whitston are certainly heading in the right direction. of the Asbestos Victim Support Group, who vividly This is why the Bill represents a huge assault on points out that mesothelioma sufferers will have to access to justice. Lord Justice Jackson stressed the bear their share of risks by paying up to 25 per cent of importance of making no further cuts to the availability their damages for pain and suffering in legal costs. of legal aid, specifically in the case of medical negligence. That should be simply be unconscionable. Many learned He stressed, jurists from Lord Bingham to Hartley Shawcross have “the vital necessity of making no further cutbacks in legal aid been quoted in our debates today. Let me rely instead availability or eligibility … the maintenance of legal aid at no less on the Greek philosopher, Thucydides, who proclaimed: than present levels makes sound...sense and is in the public interest ... On the assumption that it is decided not to maintain “Justice will not come...until those who are not injured are civil legal aid at present levels, the question may possibly arise as as indignant as those who are injured.” to whether any particular area of civil legal aid is particularly For those who have contracted mesothelioma, or important and should be salvaged from the present cuts. My who are in the position of the lady who spoke with answer to that question is that of all the proposed cutbacks in such dignity at a meeting here last week about the life legal aid, the removal of legal aid from clinical negligence is the which lies ahead of her in bringing up a brain-damaged most unfortunate”. baby, we in this House need to be indignant on their If we are right to be indignant about the removal of behalf; indignant at the prospect that recourse to law legal aid in cases of personal injury, spare a thought, will in future be denied them; indignant that their too, for the impact of the Bill on children. The Bar damages may be swallowed up in meeting legal costs. Council says that 68,000 children and young people Forcing mesothelioma sufferers—many of us who have will be affected by the withdrawal of legal aid and that been constituency Members of Parliament will have 54,000 fewer people will be legally represented annually met victims, whose life expectancy is nine to 12 months in the family courts. The Children’s Society, which from diagnosis—to surrender as much as 25 per cent works with more than 50,000 children a year, bears of damages, which average about £65,000, because of this out. It says that it is concerned that the changes austerity measures or charges of ambulance-chasing will affect the poorest and most vulnerable families, or compensation culture or the bad practice of some including, claims management companies, is cruel and unjust. “children who will suffer as a knock on effect of limited access to I would particularly like to draw the attention of the justice for their parents or carers”, House to a case involving the president of the Liverpool for reasons such as, Law Society, Mr Norman Jones; a case which ended in “parental disability, language barriers, poverty and mental health the Supreme Court and is known to the noble Lord, issues”. Lord Bach. Hugely significant in the development of I have a non-pecuniary interest as patron of the the common law concerning mesothelioma, the judgment National Association of Child Contact Centres which, has given hope to many thousands of asbestos victims over the past year, has worked with more than 9,000 907 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 908 families 15,000 children and delivered 30,000 hours of I turn to the Bill. The Bar Council has stated: contact. Many of those who work in the centres do a “Justice does not come at any price. The Government has wonderful job in helping families to settle their opted for cut price justice, against the views of the overwhelming differences and move on, without the courts or lawyers majority of respondents to its consultation on legal aid”. being involved—something of which I know the The Bar Council points out, as have many others, that Government would approve. However, NACCC has removing private family law from the scope of legal flagged up its concern that this Bill will result in a big aid may cost the taxpayer more, not less. As the noble increase in the number of self-referrals that it will have Lord, Lord Alton, has just said, there will be fewer to deal with: It says that many will be inappropriate people represented annually in the family courts, and and beyond its mandate, resources or its capacity. It more children and young people will be affected by the says: withdrawal of legal aid. In the case of victims and “This in turn creates extra work in terms of gathering information, alleged perpetrators of abuse, children and young assessing that information and then arranging, monitoring and people could be cross-examined by the accused, with reviewing contacts. To make matters worse, all of this is happening resultant threats to their welfare. The Family Justice at a time when many of our Centres are already dealing with Review has pointed out that protection for vulnerable record numbers of referrals and managing ever increasing waiting lists to access their services”. witnesses exists in criminal, but not in family, courts. Many organisations are concerned about the potential The prospect is already having a disastrous impact. outcomes of this. NACCC cites one co-ordinator who left a centre in Norfolk recently and who said, “I am a volunteer—the The Interdisciplinary Alliance for Children points amount of work and the level of responsibility that out that the loss of legal aid will increase the trauma goes with it is now simply too much”. The centre had of divorce and separation and disputes about children. been running for 15 years but has closed because no Family courts and family lawyers can help with solutions one else was prepared to take on that role of co-ordinator. to difficult problems in a child-centred way. Issues not resolved through such negotiations and mediation Whether it is a victim of domestic violence or abuse may leave parents struggling, and many of them will about which we have rightly heard a great deal today, not take on that struggle. This could mean that parents the position of a remote indigenous people living in a will lose contact with their children, or a loss of rainforest seeking redress against a British company, protection for the child. The alliance has stated that the mother of a brain-damaged baby or a man dying this Bill is not child or family friendly and does not of mesothelioma, the same principle of being able to recognise the impact on children caught in the middle seek the righting of a wrong must apply. of parental disputes. The Bill fails to recognise the As the Bill currently stands, it will significantly impact on people who have to represent themselves. It further restrict the scope of legal aid, it could leave the ignores the impact on victims of domestic abuse, as United Kingdom in breach of our human rights has been so eloquently expressed in the debate. I will obligations, it may well create a chaotic situation in not say much about this, except that domestic abuse our courts, put conditional fee arrangements out of can often impinge on children and set up cycles of the reach of most people and save a lot less than the abuse, particularly in relation to the behaviour of Government have speculated. Above all, Parts 1 and 2 boys. of the Bill fail the ultimate test: does the Bill ensure In my capacity as chair of the National Treatment access to justice regardless of wealth or means? Clearly, Agency for Substance Misuse, I have often had contact the answer is no. There can be no talk of equal access with the Kinship Care Alliance. Family and friend to justice if it is becomes dependent on the amount of carers often care for a child because of a crisis in the money a person has. It is about that that this House parental home; for example, death, drug or alcohol should be indignant. misuse, divorce, prison or domestic violence. It is estimated that there are around 300,000 children living 9.08 pm with friends or family carers. Previous Bills have discussed Baroness Massey of Darwen: My Lords, in this the plight of such carers, particularly grandparents far-reaching and detailed debate, I shall speak about who may be impoverished by this extra responsibility my concerns for children, young people and families of looking after children. Following consultation on in relation to the Bill. I am surrounded by eminent the Green Paper, the Government announced that lawyers and I am not a lawyer, but when I hear about private law applications would be retained within the the concerns of legal organisations and the voluntary scope of public funding where a child is at risk of sector, that reinforces my own concerns. abuse, but not in other circumstances. That could be, I remember David Cameron recently expressing a for example, where lack of legal aid prevents a family commitment to turn around the lives of the country’s or friend applying for an order to provide a permanent most troubled families. When I see what is happening residence for a child. in education, health, social care, welfare reform and The Bill as it stands could prevent family members now this Bill, those words seem empty. I know that the taking immediate action to protect children. To get Minister is interested in children and young people, public funding to apply for a residence or special but can he encourage the Government to examine the guardianship order, they will have to provide evidence impact of their Bills, individually and collectively, on of abuse. This could delay the child being given residence the lives of children and families? Otherwise, we will in a relative’s home. There are other issues here, such pay for this in more ways than one. I wish the Government as the 12-month time limit when a child has been in would look at children and families in a holistic way. the care system or under a child protection plan for They may reach better conclusions. more than 12 months. Early intervention by family 909 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 910

[BARONESS MASSEY OF DARWEN] problem is that it involves the possible loss of rights of and friend carers in the cases of such vulnerable poor and vulnerable people—human rights to which children is vital. I beg the Government not to introduce they are entitled as members of a civilised society. It such restrictions to legal aid and ask the Minister has been suggested to me that the proposals contained whether he will meet me and representatives of family and in the Bill represent the most seismic shift in civil friend carers to discuss this serious and urgent issue. litigation in living memory. There is much concern about child poverty. About The Legal Services Commission, which is concerned 2.6 million children in the UK live in poverty, 1.14 million with the provision of legal aid, is to be abolished. The of these in a household affected by disability. Cuts to Lord Chancellor will now have a duty to provide civil legal aid for advice on entitlement and appeals for and criminal aid, and in order to do so he will have a welfare benefits will work against the Government’s director of legal aid casework, who will, of course, ability to deliver on their targets. The organisation have staff. Why it should be necessary to do away with Just Rights points out that it would cost only £10 million one body and its staff and replace it with another is by to protect current legal aid entitlements for children no means clear. What is clear, however, is that there under 18, and £40 million for 18 to 24 year-olds. Some will be a range of services for which legal aid will not 41,000 children aged under 18, and 124,000 18 to be provided. Most of these deal with the type of 24 year-olds, accessed legal aid in their own right last problems that can cause stress, trauma and often year. These cases related to employment, debt, damage to ordinary people during their normal working immigration, welfare benefits, clinical negligence and lives. The Government seem to believe media accusations criminal injuries. Community legal advice telephone that we have become a “compensation culture” even services helped more than 21,000 children in 2010-11. though the noble Lord, Lord Young, who originally It has been estimated that each year more than 1 million provided advice to the Prime Minister in these areas, 16 to 24 year-olds failed to get advice for their civil said that this was a myth. justice problems, with knock-on costs of around £1 billion. The Government say that they will open an exceptional Much of the Bill has been justified by the claim that funding scheme for legal aid. What exactly does this means other than legal action can resolve many difficulties. mean? Can the Minister offer some clarity? This is disputed by many organisations that have There is a Private Member’s Bill on trafficking led made representations to Peers on the Bill. Some of the by the noble Lord, Lord McColl, to be discussed this areas likely to be adversely affected by the provisions Friday.Child victims of trafficking may have immigration of the Bill are family courts and legal aid casework. claims that are not asylum claims and will therefore no This is a problem because often the future of children longer qualify for legal aid. Trafficking cases are very may be at stake. Children are often the victims of complex and require expert legal advice and family break-up. Actual domestic violence may be representation. These cases of children who have been eligible for assistance, but the degree to which assistance abused, exploited or neglected should surely be within will be available is not clear. Again, there are many the scope of legal aid. problems because much domestic violence takes place There are concerns from the Standing Committee in a family environment. I understand that local authorities for Youth Justice, the Prison Reform Trust, Liberty have some responsibility in such cases, but, again, it and the Howard League about the youth justice elements depends on regulations and what these will be is far of the Bill. These have been discussed earlier so I will from apparent. Many of the problems involved have not go into them but I am concerned about the issue of been fully explained by my noble friend Lady Gould 17 year-olds. I think that the Minister made reference of Potternewton. to this earlier. Perhaps it has been resolved but I would Cases involving housing will not be covered, except like to hear more about the safeguards regarding where homelessness is threatened. Welfare cases, youth cautions and 17 year-olds. particularly disputes about benefit entitlement, are I close by going back to the important issue of legal also unlikely to be covered. Citizens advice bureaux aid. Resolution, formerly the Solicitors Family Law have already expressed concern about the provisions Association, expresses its extreme concern that under of the Bill. They have often been complimented by this Bill the poorest and most vulnerable in society will Ministers for the work that they do, much of which is have reduced access to justice. This concern is shared concerned with debt counselling and welfare counselling. by many noble Lords and was eloquently expressed by The benefits system is complicated and individuals the noble Baronesses, Lady Stern and Lady Mallalieu, often do not know what their entitlement is, and so and the noble Lord, Lord Alton. Another concern they do not claim it. Then complications arise, with that many noble Lords have is that removing this the necessity for claims to be pursued. However, the access could increase government expenditure. Noble CABs are facing cuts in provision, to the extent of Lords will see this as an imperative to re-examine £350 million in the first year. They say that these cuts parts of the Bill. We cannot leave families, children will interfere with their ability to do the job which they and young people in distress. That is cruel and are appointed to do. uneconomical. I look forward to the Minister’s response. An issue which causes much concern is the failure to cover clinical negligence. Almost all the organisations 9.15 pm that have made representations to us have raised this. Baroness Turner of Camden: My Lords, this is a The Bar Council has protested. Removing legal aid for very complicated Bill but it is obviously being introduced clinical negligence would remove access to justice for as part of the Government’s plan to cut costs. The the most vulnerable people. Legal aid for clinical 911 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 912 negligence cases costs £17 million out of a legal-aid be adequate access to justice to enforce them, regardless budget of £2.2 billion, so it is a relatively small amount of means. The contents of this Bill heavily lead me to of money. doubt that belief. Another area of concern is that of personal injury. I recognise that savings need to be made in the Many personal injury cases are funded by conditional budget of the MoJ; the current legal bill is £2.2 billion. fee agreements, which are commonly known as no-win, However, the extent of withdrawal from scope of legal no-fee. These normally allow for a success fee to be aid is quite breathtaking and I believe it will put the claimed by the claimant lawyer in a successful case clock back more than 40 years. We are told that more and that is usually paid for by the losing defendant or than 650,000 people will be affected in total. As we the defendant’s insurance company. A clause in the have heard, it seems that Lord Justice Jackson is not Bill will prevent the success fee from being recovered happy that these cuts are part of the package. They from the losing defendant and the fee will instead be will cripple CABs and law centres and many will have taken out of the damages awarded to the injured to close. We are told that 18 out of 56 law centres are person. An injured person will not therefore receive at risk and that they are already suffering from a the full compensation to which he or she is entitled. It 10 per cent cut in legal aid fees. My noble friend Lord really seems as though the Government are anxious to Shipley has illustrated that extremely clearly. Granted make it as difficult as possible for an injured person to there is planned to be some transitional support but, secure compensation for his or her injuries. Moreover, over time, the law centres will lose some 77 per cent of the Government’s plan is to make injured people pay their legal aid funding. Do the Government think that for some of their legal costs when someone else has we will all go back to volunteering in order for people injured them in the first place. As many such people to get the legal help that they need? are elderly or infirm that seems very unfair. As far as I can see, employment cases are not to be Furthermore, in the first instance, even where legal regarded as eligible for legal aid. The Government aid is available, the only initial recourse will be via a apparently take the view that means other than legal telephone gateway. This will badly disadvantage the ones are available; no doubt they are referring to the more vulnerable, who will find the telephone much arbitration system. However, recently a government more difficult to cope with than a face-to-face meeting, statement about employment law indicated that charges as many noble Lords have said. This will save the would be made to the dismissed employee before his princely sum of £2 million, we are told. All these cuts or her case could be heard by the tribunal. Reference will fall hard on the poorest and most disadvantaged has been made to a fee of £1,000. The tribunal will not members of society, who are already being heavily consist of lay representatives from both sides of industry impacted by government welfare reforms. but there will now be a judge sitting alone; in other Contrast the contents of this Bill with the one line words, a more legal system, but of course no legal in the coalition agreement which says: assistance. “We will carry out a fundamental review of legal aid to make I hope that the TUC is paying attention to all it work more efficiently”. this. Ordinary workers need the trade union movement more than ever. Unions have a record of successfully What kind of mandate is that for the sweeping nature representing members and they also now provide a of this Bill and its changes to legal aid? As if that were fairly comprehensive legal-aid service to members. not enough, as has already been said, the Lord Chancellor But this is an unfair Bill and, unless we succeed in will have the right to omit further categories from the amending it, many people will suffer undeserved stress scope of legal aid by order, but not to add to them. and trauma in incidents for which they have not What is the justification for these changes: the so-called themselves been responsible. We must do what we can compensation culture? As we have heard, the report to prevent that. by the noble Lord, Lord Young, said that this was a myth perpetrated by the national press. If the grounds are purely cost-cutting, why has the MoJ not taken 9.22 pm more seriously the Law Society’s suggestions for savings of between £249 million and £384 million, and sat Lord Clement-Jones: My Lords, I declare an interest down to explore them? As we have heard, the impact as a member of the Law Society and as a partner in an assessments of the MoJ are not underpinned by any international law firm. Even so, I venture with caution proper research into the unintended cost to the taxpayer into this arena, so I shall be brief, especially as so and other government departments—indeed, the MoJ many excellent speeches have been made tonight. By admits it. How can it cast doubt on the Law Society’s background, I am a commercial lawyer, but I became projections for efficiencies, procedural reforms, and involved in politics largely as a result of my experience cost-cutting in other areas, or the CABs’ claim of what volunteering in the early 1970s at the first law centre, the impact will be on them? the North Kensington Neighbourhood Law Centre set up by Peter Kandler, in the immediate post-Rachman In many ways the most unfair and emotionally era. I joined the Legal Action Group, founded in 1971 disturbing aspect of the Bill, however, is the proposal by my noble friend Lord Phillips, and thereafter I have to do away with legal aid for clinical negligence except taken a strong interest in the development of the law in exceptional cases. This is particularly because very centre movement and the extension of legal aid into ill and very injured children are often involved. I want key areas of family law and social welfare. Until now, I to describe a typical case which has been cited to me thought that we had been making steady progress in by a well known firm of personal injury and clinical ensuring that, where rights had been given, there would law specialists: 913 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 914

[LORD CLEMENT-JONES] forcefully by the noble Lords, Lord Phillips of Sudbury “Our client Felix was born at the Royal Surrey County Hospital and Lord Howarth of Newport, and by other noble in Guildford in 2002. He was born premature but healthy. Sadly Lords. The expectation that people with a learning his prolonged neonatal jaundice was not adequately and promptly disability will be able to represent themselves at tribunals treated, so he suffered severe brain injury and has cerebral palsy. He requires 24-hour care, including waking specialist nurse care is thoroughly unrealistic, particularly as advocacy support at night. After his claim was issued at the High Court, the will also be made more difficult to access. However, I hospital admitted liability and has made damages payments ‘on know that many noble Lords have particular and account’ of the final damages settlement that we hope will be forthright expertise in this area and I am reassured reached before the trial, fixed for next year. Felix can now be that any points I might make on the issue will be, or provided with the care, equipment and therapies he so desperately have been, more than adequately covered. needs. His damages settlement will be strictly based on his needs, as well as the massive impact his condition has upon his family. I will focus on other sections of the Bill, and in Felix’s claim is funded by legal aid. This meant that if Felix particular on issues around sentencing. It was notable had lost his case, he and his family would not be liable for the from the exchanges in the Commons that this is a Bill costs of the Trust, and that they were able to instruct lawyers with of two halves. The first one concerns legal aid and the the ability to deal with his complex claim. Under the new LASPO second concerns everything else. In this respect, only regime proposed by this Government, Felix’s family, who could the first half of the Bill has been subject to any form of not themselves have paid to bring a case, could only have brought a claim if they could both find a law firm willing and able to fund scrutiny. That is not to say that there has not been the investigation and running of Felix’s complex claim, and discussion and indeed progress on the issues of the perhaps also pay for insurance to cover the risk of paying the sentencing and punishment of offenders. I wholeheartedly Trust’s costs if the claim failed. Felix would also have lost a commend the Government on announcing their intention substantial slice of his carefully calculated damages to pay that to equalise the sentences given to perpetrators of part of his costs the Trust would no longer be obliged to pay. disability-motivated murders from 15 to 30 years. This These same issues apply to many of our clients’ claims”. is a vital step if, at long last, we are to view disability It goes on to say: hate crime as a serious issue. I know that it has “Compensation payouts are not lottery wins. They are calculated significant support on all sides of the House and in great detail in an attempt to normalise the lives of both the injured and their families following traumatic events. They can throughout many organisations, 21 of which have provide for care costs, adaptations to accommodation, equipment signed an open letter to the Secretary of State for such as wheelchairs and hosts, and vehicles”. Justice endorsing the proposal. Firms in this field say that without legal aid, especially Mencap’s Stand by Me campaign—I declare an to pay for the early investigations and medical reports, interest as president of the Royal Mencap Society—urges and exacerbated by the 25 per cent cap on success fees, that disability hate crime should be tackled at the they will in general find it very difficult to act on a earliest opportunity. While I recognise the positive regular basis with a CFA for victims of medical negligence roles that the Government are playing with regard to unless their chances of success are assessed as at least the issue, it is important that Ministers take the 70 per cent. opportunity to recognise the many challenges that All for what? An estimated saving of £10 million. remain. Disability hate crime happens on a number of The NHS Litigation Authority said that removing different levels. Murder is one such level, but it applies legal aid for clinical negligence would undoubtedly equally to a spectrum of abuse from name-calling to cause NHS legal costs to escalate massively and increase physical violence. This is why I hope to use the passage public expenditure. The Minister may say that of of the Bill to put forward the case for disability hate course some exceptional cases will be funded if failure crime to continue to achieve parity across all aspects to provide funding would breach the applicant’s rights of sentencing. under the 1998 Act—but he knows that this has been For example, issues still exist around the enforcement very narrowly interpreted by the European Court of of Section 146 of the Criminal Justice Act 2003, which Human Rights. makes provision for a sentence uplift for any crimes in The one bright spot in Part 1 is the fact that specific which disability is deemed to be a motivating factor. provisions for legal aid for children with special educational Although the provision exists, the requirement for needs and disabilities has been strengthened: but even joined-up work by the police, the Crown Prosecution here, it needs to be made clear that this will continue Service and the courts to implement the sentence beyond 16 to the age of 25 and will cover more than a uplift means that it is very rarely used. Additionally, school setting. the Attorney-General’s power to review sentences that In conclusion, we all celebrate the passage of the he or she considers “unduly lenient” is an issue that landmark Legal Aid and Advice Act 1949, which had requires great consideration. This discretionary power such a major, positive impact on the enforcement by applies only to particular types of offences, including ordinary citizens of their legal rights. This Bill risks crimes against the person that are racially or religiously being remembered for another, more negative reason. aggravated, but not including many hate crimes against I urge the Minister to listen to the voices in the House individuals on the basis of their disability. Given that today, and those in Committee, so that we will be able disability is a protected characteristic in Section 146 radically to alter its worst features before it leaves this and, I hope, soon to be in Schedule 21 to the Criminal House. Justice Act, this seems to be a perplexing anomaly that creates an inconsistent picture about the seriousness 9.30 pm with which disability hate crimes, at all levels, are treated. Lord Rix: My Lords, I will put my weight behind Unfortunately, limits of time dictate that I cannot those who oppose removing welfare benefits from the raise further points about which I have concerns in scope of legal aid provision. The point was put most any great detail, particularly the treatment of people 915 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 916 with a learning disability in prison. According to the Many people suffering from diseases and injuries were Prison Reform Trust report No One Knows, published naturally outraged at the suggestion that they make in 2007, between 20 and 30 per cent of, frivolous claims or that they should suffer because “offenders have learning difficulties or learning disabilities that some people might do so. They feel that they are being interfere with their ability to cope within the criminal justice denied access to justice because of the actions of system”. others. However, the identification of people with a learning In publishing their policy plans following the disability in the criminal justice system remains a consultation, the Government continued to ignore complex area and there are currently no effective tools practically every submission on behalf of claimants. in place to measure the situation accurately. This My fear is that the Government are using a sledgehammer means that many learning-disabled offenders are not to crack a nut, especially in the light of other developments accessing the appropriate support or services that they since the Jackson report was published. I suspect this need and, equally, that provision is often not made by is why the impact assessment contains so little data in police and other public bodies to account for the support of their arguments. Past figures are of little potential reasonable adjustments that this group might use when a fixed capped costs regime, including success require while in the system. fees, operates under the RTA fixed-cost portal. Road Provisions around employment in prisons, changes traffic claims are 80 per cent of all personal injury to conditional cautions and the need for accessible claims, so only a tiny proportion of personal injury information to be available to individuals at all stages cases will not be subject to fixed costs. The cases that of the system are particular priorities. Indeed, I believe will be affected are those that are of higher value and that it is essential to provide access to justice for greater complexity.This one-size-fits-all approach imposes people with a learning disability, no matter on which a form of collective punishment on those who are side of the criminal justice system they find themselves. innocent victims and who are lumped in with trivial I hope that the Minister will meet me and other noble claims and dishonest claimants. Personal injury claimants Lords before Committee to try and move matters are being used to discipline solicitors to force them to along towards a satisfactory outcome. I shall wait keep down their costs. To impose, as we have heard patiently until the end of this rather lengthy session in today, more stress and anxiety on people who suffer the hope of an affirmative answer, even though, as I serious industrial diseases is simply heartless. am approaching my 88th birthday, it is long past my Who saves from these proposals? Clearly the insurance bedtime. companies do, but whether such savings are passed on in reduced premiums is a moot point, as my noble 9.37 pm friend Lord Monks pointed out. Who pays? While the cost of litigation will be reduced, what will the cost to Lord Collins of Highbury: My Lords, this Bill covers justice and fairness be? One of the many quotations I a wide range of issues. The only common thread is received that moved me was from someone who through that they all come under the auspices of the Ministry no fault of their own is now suffering from exposure of Justice. However, I detect a more disturbing theme to asbestos. They said: after listening to the debate today, which is that those “How can this be morally correct? To make in my case, the who are most vulnerable in our society end up paying most heartbreaking time of my life and the family, much harder the price for these changes. Because of the time constraints to bear. My case has not reached court yet ... Being diagnosed was on us today I have little alternative but to focus on one a big shock. To then be expected to pay legal costs from any specific area of the Bill, Part 2, on litigation and the compensation that might be awarded adds yet more worry that is funding of costs. not needed”. We often hear, and we have heard today, of the On the question of justice, I think two quotations so-called “compensation culture”, fuelled by media are incredibly relevant: stories about individuals receiving large compensation “Compensation just means that money worries don’t compound payments, constant adverts in the media offering the a very difficult and upsetting situation. It also acts as a deterrent promise of a handsome settlement if they claim and to those who flout the laws on asbestos”. businesses fearing litigation and being subject to expensive “Guilty defendants should pay all the costs making companies insurance premiums. However, as many of my noble now think about health and safety of its employees and the friends have pointed out today, the noble Lord, Lord financial implications not only now but in the future”. Young, noted that the problem is one of perception This last point is critical when you see that, despite our rather than reality. health and safety laws, many industries have an appalling In early 2010 Lord Justice Jackson recommended record for accidents. radical changes to the system to address this problem. Finally, who are the losers? Despite the savings to Unfortunately, the view of many victim support groups the insurance industry, the changes will actually cost is that he relied heavily on information from the liability the taxpayer rather than save any money. In a paper insurance industry but took very little evidence into shortly to be published by London Economics, Moritz account from the claimants’ point of view. Godel and Dr Gavan Conlon show that while the The Government’s subsequent Green Paper, aimed direct savings attributable to the Jackson proposals at implementing the Jackson recommendations, reflected are substantial, estimates based on public data suggest this one-sided approach by stating in its introduction: that they will be outweighed by direct and indirect “we are endeavouring to ensure … that unnecessary or frivolous costs resulting in a sizeable net loss to the Exchequer claims are deterred; and that as a result costs overall become more of £70.2 million per year. The main sources of loss are proportionate”. tax and the recovery of payments from public bodies 917 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 918

[LORD COLLINS OF HIGHBURY] the outcome. Even the toughest of defendants will resulting from PI claims. So, on the behalf of the real realise that there may be commercial sense in settling people behind Britain’s dreadful industrial disease with such a well funded opponent. and accident statistics, I plead for the Government to think again and put fairness and justice first. The Government’s proposals seek to remove the ability to recover either the success fee or the premium 9.44 pm for ATE insurance. Instead, it is proposed that on a capped basis both the success fee and the insurance Lord Gold: My Lords, the Bill proposes many sensible premium must be financed from the damages award changes to the civil justice system, although this debate that is made. We have had some criticism of that today has highlighted some serious issues of disagreement, from many noble Lords. To help compensate the claimant particularly in relation to legal aid. I was certainly for this financial burden, the Government propose heartened and encouraged by the Minister’s comments that damages awards should be increased by 10 per at the beginning of the debate that he is here to listen cent. However, that will not be sufficient to bridge the and I hope that he will be sensitive to some excellent gap. Some critics say that this is unfairly eating into speeches that we have heard this evening. Today, perhaps the compensation being awarded to a claimant. The because I am looking for safety, I am going to concentrate noble Baroness, Lady Turner of Camden, made that my remarks on Part 2 of the Bill, which deals with point very clearly and very well. The result, of course, litigation funding and costs, a subject of which I have is that victims will no longer receive 100 per cent of some knowledge. I feel guilty to say that I have very their compensation. A second complaint, as I mentioned little knowledge of legal aid. earlier, is that the ATE insurance market is thought At the outset I formed a somewhat simplistic view likely to collapse. Thirdly, the legal services market is of the Bill—not the easiest thing to do, as it thought unlikely to be willing to absorb the greater happens. Accepting that some reform of the legal aid losses that cases of lower value, higher risk or greater system was required to reduce the high financial complexity would present. Solicitors will be disinclined burden on taxpayers, it seemed to me that in order to to take on anything but the most winnable cases. continue providing access to justice to all, which is certainly desirable, one answer was to encourage greater I now want to compare the position of these claimants use of private funding through conditional fee with that of litigants who receive no financial aid and arrangements and “after the event” insurance to plug have to finance their claims themselves. First, one can the hole left by the reduction in legal aid. Accordingly, be sure that self-financing litigants do not usually risk it did not sit well with me that in Part 2 of the Bill, having to pay their opponents’ costs by bringing claims which largely seeks to implement Lord Justice that do not have a good chance of success. Those who Jackson’s recommendations, private funding was pay are more cautious than those who have no risk, or, being limited through the abolition of the recoverability to be somewhat colloquial, have no skin in the game. of success fees, which has been the cornerstone of Secondly, as the noble Lord, Lord Hunt of Wirral, conditional fee arrangements and of ATE insurance who is sitting next to me, pointed out—what seems premiums. Surely, I thought, what we should be doing like many hours ago—the victor in civil litigation is making it easier to fund litigation privately so that never recovers all of his costs. That is so, even when any reduction in legally aided cases would to some so-called indemnity costs are awarded. As a norm, the extent be alleviated. winning party may recover something in the order of 60 per cent of his total bill. He has to finance the Many commentators on the Bill, including the Bar balance and he has to do that from the damages Council and the Law Society, have expressed grave awarded. In other words, the successful self-financing concern that the effect of these proposals will be to claimant is not able to keep for himself the whole of limit access to justice as many claimants who cannot his damages award. A proportion of it will go to his obtain legal aid will be reluctant to risk losing and solicitors to bridge the gap between the solicitor’s bill having to pay their own legal costs as well as those of and the money recovered from the losing party. Why the other party. Indeed, the Law Society goes sufficiently should litigants who enter into CFAs and take out far as to suggest that the ATE market is likely to ATE insurance be in a better position? Why should collapse. Having reflected on these submissions, I am they not give up some part of their award to pay the much more sanguine and believe that the negative costs? predictions of the system collapsing are somewhat exaggerated. In practice, a claimant who has the benefit Finally, are the proposals in the Bill likely to bring of a conditional fee arrangement and after the event down the ATE insurance industry? I do not think so. insurance may well not be required to pay anything First, I believe that the ATE insurance market is more towards the cost of the litigation. We have heard a lot resilient than many fear. I do not know the figures. about that today. Whatever his own costs, he may well None of those writing to me—I have had many letters not have to bear anything at all. and e-mails—has indicated how much money is being There has to be some merit in the action in the first made by the ATE insurance market, but I suspect that place, otherwise neither the lawyers nor the insurers it is rather a large figure. If I am right, there will be would be prepared to fund the claim. However, in room for the insurers to swallow some of the cost by assessing whether to agree to offer a CFA and ATE, I reducing their premiums and thus reducing the cost am sure that some account is taken of the effect that that claimants have to contribute from their damages such an arrangement is likely to have on the opposing award. It is a question of finding the right balance. I party when it is known that the claimant has a free run would hope that, with a little pressure, we could move to trial and no risk of having to pay any costs whatever in the right direction. 919 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 920

For all of these reasons, I believe that what the 9.56 pm Government are seeking to achieve in the Bill, so far as funding is concerned, should be supported. The Lord Faulkner of Worcester: My Lords, at this late present system does not achieve the right balance. I hour I do not intend to detain the House for long and fear that the availability of CFAs and ATE insurance shall concentrate on just one issue. In Committee, I has encouraged some, who otherwise would have been intend to table two amendments to Part 3, Chapter 8, wary of litigating, to bring claims on the basis that to amend the Scrap Metal Dealers’ Act. The first they have nothing to lose and everything to gain. I would have the effect of making cash transactions in suspect that a number of claims would not otherwise the buying and selling of scrap metal illegal. The have seen the light of day. That is not to say, of course, second would introduce criminal charges for theft of that these claims lack some merit. Indeed, if one is to scrap metal which take into account aspects of the give access to justice to all who want it then theoretically crime other than the value of the scrap metal stolen. we should actively pursue a course that allows such Subject to final guidance from the Public Bill Office, claims to be brought even if, ultimately, they fail. which has been extraordinarily helpful to me thus far, However, asking taxpayers to fund claims that non-funded these two amendments would add scrap metal theft to claimants would not themselves bring because they the offences listed in Chapter 8, joining knife crime, are too speculative and therefore risky is not the dangerous driving, squatting, and force used in self- answer. defence. Given the huge public outcry at the prevalence of scrap metal theft, I hope that, given the way that Our legal aid bill in this country is too high. As the this Bill is structured with the four offences already former Justice Secretary, Jack Straw, acknowledged at listed in Clauses 128 to 131, the Government will the beginning of 2009, support what I am proposing. If there were ever an “legal aid per head in England and Wales is higher … than in any issue where the universal refrain is “something must other country in the world, including common-law countries”.— be done”, this is it. [Official Report, Commons, 26/1/09; col. 28.] I invite the House to bear in mind that ACPO puts As the noble Lord, Lord Clement-Jones, said just a the national cost of metal theft at £770 million. The few minutes ago, the legal aid bill is now £2 billion a problem is particularly acute on the railways—as the year. noble Earl, Lord Attlee, knows well and I am delighted As for outside funding, I suspect that this will be to see him in his place—where signalling cable theft harder to obtain in smaller cases where solicitors and caused 16,000 hours of passenger delays in the past ATE insurers may calculate that it is unlikely that they three years. I am told that this has now reached will recover a sufficiently high figure to cover the costs epidemic proportions with eight actual or attempted and provide even a partial success fee. In truth, it may thefts every day. Metal theft from electricity networks well be that these smaller cases are not financially rose by 700 per cent between June 2009 and June 2011. viable unless supported by legal aid. Other examples are lead from church roofs, manhole covers, telephone wire, and, most despicable of all, The Government’s answer, which I wholly support, brass plaques from war memorials. Almost no aspect is to encourage greater use of mediation. If the parties of our national life is escaping. can be persuaded to mediate their claims at an early I am not saying that my amendments will provide stage, perhaps before litigation has commenced and the complete solution, but they would undoubtedly substantial legal costs have been incurred, there could help. The move to cashless transactions is seen by all be considerable benefit to the parties. It is far better the interested parties as an essential step in the process for them if moneys are used to settle the dispute rather of getting this business under some sort of control. than to be spent on lawyers’ fees. Indeed, in some Introducing his Metal Theft (Prevention) Bill in the cases, the parties themselves may mediate claims without other place last Tuesday, Mr Graham Jones MP said lawyers being instructed. With the right encouragement that he had been told by the industry that, to mediate and help from an experienced mediator who ensures that each party is helped through the “scrap metal is a £5 billion industry, with an incredible £1 billion estimated to be exchanged in cash payments”.—[Official Report, process and treated fairly, I envisage that many disputes Commons, 15.11.11; col. 709.] will be settled at a far earlier stage than is the case once proceedings have been issued and entrenched positions As an indication of what we are up against, I would are taken. draw your Lordships’ attention to a giant screen advertisement at West Ham United’s football ground, I should declare an interest in that I sometimes sit which was seen on 27 September and which, I believe, as a mediator, but not in cases of the size that we are is there on a regular basis. It says, in huge letters, “We discussing today. My experience is limited to dealing want your scrap for cash”, followed by three exclamation with large civil cases where mediation usually occurs marks. All that was missing were the three words “No late in the day after considerable work and costs have questions asked”. So my first amendment will deal been incurred. If the Government’s present proposal with cash transactions. of encouraging mediation is to succeed it is imperative The second will provide for a sentencing regime that it happens at an early stage before the costs have that relates to the consequences of a crime, not the been racked up. value of the metal stolen. So if the cost to the community There is much detail in this Bill to review in Committee in terms of, for example, passenger delays on the but I hope, as I said at the start of this speech, that the railway is £250,000, caused by the theft of signalling Government will be sympathetic to some of the very cable worth only a few hundred pounds, that much moving speeches that we have heard today. higher loss would be taken account of in any penalty 921 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 922

[LORD FAULKNER OF WORCESTER] independence payment will affect 3.2 million disabled imposed. I suspect that particularly unpleasant metal people. The migration of disabled people from incapacity theft, like the brass plaques from war memorials, benefit to employment support allowance or jobseeker’s could also attract exemplary penalties. allowance will affect 1.8 million people, and the transition I have already given notice of my intention to to universal credit during 2013-17 will affect a reported introduce these amendments to my noble friend Lord 12 million people. Bach, to the government Chief Whip and to the noble When employment support allowance was introduced Lord, Lord Henley. I have no wish to score points on in 2008, there was a fourfold increase in appeals in the this issue. I just want the Government to get on with it first year and nearly 200,000 appeals in the second and for the House to approve the necessary amendments year. So with a reform on this scale it is almost to this Bill. inevitable that there will be an increase in the number of inaccurate benefit decisions and that disabled people 10.01 pm will need legal advice to challenge these. I share the Baroness Doocey: My Lords, I wish to focus on the Government’s desire to reduce the number of appeals impact that the proposed changes to legal aid provision against welfare decisions. However, this reduction must will have on people claiming disability benefits. The not happen because the loss of legal aid prevents welfare benefits system is complex and, despite the disabled people challenging decisions. best efforts of all involved in a claimant’s initial application, I also have serious concerns about the impact that mistakes are frequently made. More than half of all withdrawing welfare benefits from the scope of legal welfare benefits funded through legal aid relate to aid will have on the tribunal system. It is almost disabled people, and the legal aid system enables them inevitable that the number of litigants who appear in to challenge decisions made about their lives and their front of a tribunal without receiving proper legal income. advice will increase, as will the backlog of cases facing To pursue an appeal, a claimant must have at the the system itself. Legal aid undoubtedly helps individuals very least a working knowledge of the rules for benefit to navigate the tribunal system. Relating medical evidence eligibility, which are set out in a range of different to conditions of entitlement can be technical and regulations. The complexity of the extensive legal beyond the understanding of most people without precedents determining the criteria for being, legal advice. I would also suggest that legal aid provides “virtually unable to walk”, excellent value for money when compared with the cost of a tribunal panel, which is nearly twice as much is just one example where professional legal advice is as the fixed fee per case for legal aid. invaluable to anyone appealing against a welfare benefit decision. The Government want to get more disabled people into the workplace so that they can lead increasingly The recent report published by the disability charity independent lives. It is therefore essential for disabled Scope, Legal Aid in Welfare: The Tool We Can’t Afford people to receive tailored, appropriate support in order to Lose, explains the challenges for claimants negotiating to help those who can get into employment. If disabled the complex appeal process unaided. The report notes people are placed on incorrect benefits as a result of that, between October 2008 and February 2010, of the an incorrect decision that they cannot effectively challenge, 60 per cent of appeals in which disabled people were they will not be able to access this support. I will give eventually successful in receiving employment and an example. An individual who is wrongly placed on support allowance, the claimants initially had been jobseeker’s allowance, who should be receiving deemed to have no factors affecting their ability to employment support allowance, will not have access work. This underlines the importance of disabled people to the specialised work programme or work choice being able to have the tools necessary to appeal benefit that would support them into employment. Without decisions and get the right level of support. this support, it is likely that such an individual would Quite apart from the difficulties that the Government’s be unable to find work and would remain on jobseeker’s proposals would create for disabled people, I fear that allowance for a longer period of time, perhaps even the Government are making a rod for their own back. incurring sanctions. Indeed, the Government’s own Central to the welfare reform programme is the desire research shows that many disabled people find the to get more decisions right the first time round, reducing support provided by disability living allowance vital in the necessity for a large number of appeals. Currently, ensuring that they can stay in employment and close 40 per cent of cases taken to appeal in relation to to the labour market. employment and support allowance decisions are upheld, Without legal aid to allow disabled people to challenge so the Government’s aim is laudable. However, the incorrect decisions effectively, it is inevitable that more benefits system will remain complicated for large numbers disabled people will find themselves further from the of disabled people as well as for Department for Work workplace, receiving incorrect benefit awards or lacking and Pensions decision-makers; and incorrect decisions support to find employment, and therefore the are likely to continue to be made relating to the Government’s intention to get more disabled people benefits and support received by disabled people. Indeed, into employment will be undermined. It is my intention in the words of the Employment Minister overseeing to return to this issue when we reach the Committee the Welfare Reform Bill: stage. “There will always be decisions that we get wrong the first time round, however hard we try to perfect the system”. It is worth noting the ambitious scale of the 10.05 pm Government’s welfare reforms. The replacement of Baroness Lister of Burtersett: My Lords, I apologise disability living allowance with the new personal that I have not been able to be present for much of the 923 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 924 debate, but it would have meant absconding from the Where a problem cannot be resolved, legal advice is salt mines of the Welfare Reform Bill in Grand Committee, particularly important in helping people prepare appeals where I had an amendment down. In fact, I see the to the courts or the Upper Tribunal. We are not two Bills as being intimately connected, not least talking about large numbers here so perhaps the Minister because what the Government herald as the most could tell the House just how much money is being fundamental reform of social security for 60 years, to saved by removing legal aid from such cases. which the noble Baroness, Lady Doocey, has just Citizenship is in part about the relationship between referred, will coincide with the removal of social welfare individual citizens and the state. A recent report from law from the legal-aid scheme—a double whammy, for the chair of the Administrative Justice and Tribunals sure. I shall focus on this in my remarks, although I am Council argued that the Government are making it aware that there are many other aspects of the Bill more difficult for citizens to challenge decisions made which are causing concern, such as its implications for by the state. The removal of legal aid from social children and young people, including immigrants, women, welfare will make the situation worse. The report of a asbestos victims, tenants and squatters, who will be commission of inquiry into legal aid states that legal unnecessarily criminalised. According to the Law Society, aid plays a vital role in holding the state to account for the provisions in Part 1 represent the most profound its mistakes and failings. The suggestion in the change to the structure and nature of the legal-aid Government’s response to the consultation that Jobcentre system in England and Wales since it was set up in Plus and the benefits advice line are substitutes for 1949. Whole categories of law will be removed from independent legal advice is thus risible, never mind the scope of legal aid in an approach that the Law that it is their mistakes which often give rise to the Society considers to be fundamentally misguided. need for advice in the first place. I find it strange that a Also in 1949 TH Marshall delivered his groundbreaking Conservative-Liberal Government want to weaken the and influential lectures on citizenship and social class position of the individual citizen against the state in in which he discussed the Legal Aid and Advice Act as this way. an example of a social right of citizenship which The suggestion that citizens might turn to Jobcentre attempted to remove the barriers between civil rights Plus is made in the context of the Government’s and their remedies and to strengthen the civil right of acknowledgement that, the citizen. The current Bill restores the barriers between “Respondents have told us that other sources of advice, particularly civil rights and their remedies and weakens the civil the voluntary sector, may not be able to meet the demand for right of the citizen. It represents an assault on a key welfare benefit services because of factors such as local authority building block in the overall edifice of citizenship. cuts”. Indeed, some years ago the National Consumer Council The welcome one-off £20 million support package to referred to access to information and advice as the CABs notwithstanding—and I will be interested to “fourth right of citizenship”. In its briefing, Justice hear whether it is the same £20 million that was also reminds us that when the 1949 Act was before announced earlier—I fear that the combination of your Lordships’ House, it was presented as providing local authority and legal-aid cuts will mean the destruction legal advice for those of slender means and resources of the legal advice infrastructure so crucial to protecting so that no one would be financially unable to prosecute that fourth right of citizenship I spoke about earlier. a just and reasonable claim or defend a legal right. In The equality impact assessment demonstrates that the other words, Justice contends, it is misleading for the citizens who will be disproportionately hurt will be Government to suggest that the scope of legal aid has those who are ill or disabled, female and/or of a black expanded beyond its original intentions. or minority ethnic group. As other noble Lords have eloquently demonstrated, we have a responsibility to What has certainly changed is the nature of social defend the rights of these citizens in the name of welfare law. In the other place, a number of references justice. were made to the Child Poverty Action Group’s national welfare benefits handbook. I declare an interest of a kind in that I wrote the first edition of that handbook 10.15 pm in the 1970s. It was about 20 pages long. Today it is Lord Lloyd of Berwick: My Lords, at this late hour, 1,620 pages long. It is a symbol of the complexity of I, too, will confine myself to a single, rather narrow this area of law testified to by DWP Ministers themselves. point on legal aid. It concerns a particular aspect of While universal credit might represent a simplification claims for clinical negligence; namely, the cost of in the structure of one area of social security, it is also obtaining expert reports. introducing new complexities. As Scope points out, the lesson from previous social security reform is that In almost all cases, expert reports are a prerequisite it increases the need for legal advice significantly during if a claim is to succeed. The cost of such reports is the transition period, a point made by the noble usually covered by after-the-event insurance in the Baroness. The assumption that social welfare law does manner described by the noble and learned Lord, not justify help under the legal-aid scheme because it Lord Woolf, and, before him, by the noble Lord, Lord is insufficiently complex or important is, not surprisingly, Faulks. Since 2000, the premium paid by the plaintiff challenged by a wide range of representations made to obtain such insurance has been recoverable from on the Bill and by a recent Civil Justice Council the defendants, usually the National Health Service, report. A common theme voiced in an e-mail I received whether the plaintiff wins or loses. from the CAB local to my university in Loughborough It was the Government’s original intention that is that timely legal advice can prevent a problem premiums payable for ATE insurance should cease to escalating and thereby save money in the long run. be recoverable, along with success fees and referral 925 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 926

[LORD LLOYD OF BERWICK] 10.20 pm fees. However, the Government listened to certain concerns, particularly about the effect that that would Lord Beecham: My Lords, not for the first time, have on funding expert reports. The point was put although I think it is fair to say no doubt inadvertently, very clearly by the Minister in the other place on children and young people will be among the prime 2 November. He said: casualties of government policy. The Family Rights Group reports that 300,000 children are living with “Such reports, which can be expensive, are often necessary in family or friends as carers because of illness, violence, establishing whether there is a case for commencing proceedings, which raises particular issues if recoverability of ATE insurance separation, drug abuse or whatever by their natural is abolished. In responding to these concerns, clause 43 provides, parents, and a third of these carers give up work to by way of exception, for the recoverability of premiums in respect look after the children. They can apply for a residence of ATE insurance taken out to cover the cost of expert reports in or guardianship order, but the Bill will allow legal aid clinical negligence cases”.—[Official Report, Commons, 2/11/11; funding only where the child is at risk of abuse and in col. 1027.] particularly constrained conditions. As a consequence, the Government introduced Clause 43 For example, under Clause 10, evidence of abuse as we now find it. would have to be provided, including ongoing criminal My concern is not about the Government’s objective, proceedings for child abuse, where a local authority quite the contrary—I agree that the cost of obtaining child protection plan is in being, or where a court has reports should not in any event fall on the plaintiff. found that child abuse has occurred within a period of However, I would respectfully suggest that there is a 12 months prior to the application. Therefore, a carer much better way of achieving that desirable objective, cannot obtain funding to anticipate a situation in rather than the rather complex provisions that one which a child might be abused, nor will an application finds in Clause 43. I hasten before anything else to add be able to receive legal aid support 12 months after the that this is not my idea, but an idea of Lord Justice last incident of abuse. I hope that the Minister and the Jackson. I echo the tribute paid by the noble Lord, Government will look very closely at the requirements Lord Hunt, to what Lord Justice Jackson achieved, by to facilitate the granting of legal aid in circumstances my calculation, nearly five years ago. It was an astonishing in which, for example, there is a reasonable cause for achievement in less than a year. In that respect, he has the carer to fear that abuse would occur even if it has really done the state some service. His suggestion is not already occurred. that if clinical negligence generally is not to be covered Alternatively, the 12-month time limit for proving by legal aid, it should at least, by way of exception, abuse should be waived, and in particular there should cover the case of expert reports, since expert reports be no bar to obtaining funding for resisting an application are, as the Minister in the other place has already to discharge an order simply on the grounds that any accepted, an exceptional case. abuse took place more than 12 months before that Why then is legal aid a better way of achieving that application was made. Equally, funding should not be desirable result than what is contained in Clause 43? restricted where the court has made a Section 37 order The reasons are set in Lord Justice Jackson’s lecture, requiring the local authority to investigate whether to which reference has already been made by the noble abuse has occurred. and learned Lord, Lord Woolf, and others. I pick out In any event, the restriction of legal aid funding to only two of his reasons. The first is cost, a point instances of child abuse, as such, is much too narrow a touched on by the noble Lord, Lord Gold, quite definition. Of course, where the welfare of children is recently. At the moment, after-the-event insurance concerned, access to justice should surely not depend premiums are at an all-time high. The Law Society on private resources where legal aid is not available. says that the cost of ATE insurance is “currently prohibitive”. They are a major element in the cost of The position of children is affected in other ways, clinical negligence cases, which currently falls on the too. The noble Lord, Lord Alton, referred to the fact taxpayer and will continue to fall on the taxpayer if that 6,000 children will be denied legal aid and assistance. Clause 43 stands. Indeed, 69,000 youngsters between the ages of 18 and 24 will lose access to legal aid and advice. The range of Secondly, Clause 43 is inefficient. The cost of obtaining cases is quite remarkable. There are nearly 2,000 expert reports will fall on the state—on the taxpayer— employment cases, 9,000 debt cases, 11,000 immigration however wealthy the plaintiff. The great advantage of cases, 210 education cases, 9,000 welfare benefits cases, legal aid in this context is that it is selective and only 1,090 clinical negligence cases, and up to 34,580 private available to those who qualify. That, surely, is as it law cases involving children. Those are very significant should be. figures, and large numbers of young people will therefore The cost of making legal aid available for obtaining be denied legal aid. reports would be, as I understand it, a mere £6 million The Government seem to rely on the voluntary per year, but the savings to the public purse, by amending sector to pick up the slack that will be created by the Clause 43, as I shall suggest in due course, are far withdrawal of legal aid funding. Citizens Advice estimates greater than that. that the 500,000 people whom they currently serve will Whatever view the House may eventually take about lose out because of cuts that they are sustaining. They legal aid for clinical negligence generally, I hope that have an 80 per cent success rate in the cases that they both sides of the House will accept that it should bring, supporting claims with legal advice. They estimate certainly be available in the case of expert reports, in that 75 per cent of their cases in debt would lapse, and accordance with Lord Justice Jackson’s views. they take on an astonishing 9,400 cases a day nationally. 927 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 928

The noble Lord, Lord Shipley, referred to the difficulties Part 1, but I would like to welcome a provision contained faced by law centres and quoted extensively the position in Part 3, which abolishes the discredited system of in Newcastle. In fact, virtually the same observations indeterminate sentences. IPPs have been controversial. were made at cols. 844 and 845 in Hansard on 26 October, They effectively introduced life sentences by the back when I made a speech that very much involved Newcastle. door for a huge range of offences. The Government However, I undertake to the noble Lord that I will not are right to abolish them, although I am concerned bring any action for breach of copyright whether or that the new system would introduce a mandatory life not no-win no-fee arrangements are available to me. In sentence for those convicted of a second listed offence, any event, the point is well made and it is broader than so removing judicial discretion. simply Newcastle. Unfortunately, the Government seem to be replacing Local authority cuts to law centres nationally average one contentious system with another, which promises 42 per cent; in London the average is 61 per cent. Four to throw up a number of problems. I ask, as did the law centres have received a complete 100 per cent noble Baroness, Lady Stern, a little earlier, why abolishing reduction in their funding from the local authority—in IPPs cannot also apply retrospectively. Those serving Birmingham, Oldham, Warrington and Wythenshawe IPP sentences are languishing in our prisons since in Manchester. More may well be on the way. The little focus is placed on putting them into rehabilitation total cut in grants from local authorities to law centres programmes. Not enough thought seems to have been is some £7 million. That has to be set against the put into determining a prisoner’s tariff. On average, £20 million, to which others of your Lordships have these prisoners serve 244 days beyond their tariff and referred, which the Government are proposing to award it costs roughly £30,000 to keep somebody incarcerated in a grant. I understand that reference has been made for that period of time. If you multiply that by the to that £20 million about 14 different times. Whether it 2,229 prisoners who are in that situation, you get a is the same £20 million no doubt the Minister will figure of no less than £68 million. The IPP regime has advise us, but perhaps when he replies he will indicate been a rather costly mistake. whether it is a one-off payment or whether it is envisaged Turning to Part 1, the cuts to legal aid propagated that it will be continued. If it is a one-off payment, by this Bill are, I believe, unethical and will have a frankly, it will not go very far to staunch the flow of damaging effect on the make-up of our legal system. resources from law centres at a time when demand will What is more, as the report published by the House of constantly be rising. Lords Constitution Committee last week made clear, I do not for a moment suppose that the Minister the cuts go against the constitutional right to legal would associate himself with the rather strange attitude advice. The cuts will create a market for the supply of evinced by one of his ministerial colleagues in the legal aid driven by cost rather than the needs of the Ministry of Justice who was reported in the Guardian clients. Profits made by legal aid firms are relatively last October as saying that legal aid work will be low and any move to fixed fees for all cases will mean useful filler for unemployed lawyers, or for women suppliers will be encouraged to take on only the least returning to work. That is hardly a sensible definition complicated cases. of legal aid and what it has to offer. The most vulnerable clients, including those with Many of us have been concerned that the Health mental health problems and people with a range of and Social Care Bill, with which we continue to deal at disabilities, may find it impossible to gain access to some length, will undermine the National Health Service. free legal advice due to the complications often arising It is clear to many of us in your Lordships’ House that in these cases, as described so effectively by the noble this Bill clearly demonstrates that the Government are Baroness, Lady Doocey. As we have heard from many taking a wrecking ball to the structure of access to noble Lords, legal aid will also be denied to patients justice. That is in the context in which, on their own injured as a result of medical negligence as well as figures, 80 to 85 per cent of cuts to legal aid will affect workers who have suffered illness due, particularly, to the 20 per cent poorest people in this country. I can do asbestos exposure. I was involved with that campaign no better than conclude with the words of Lord Justice 20 years ago, as I had a Ferodo factory in my former Jackson in his report from which the Government constituency. have cherry-picked their selection of reforms. He said At present civil litigation claimants are able to very explicitly: bring cases under the no-win no-fee system, which the “I do not make any recommendation in this chapter for the Bill seeks to overhaul. Claimants can take out “after expansion or restoration of legal aid. I do, however, stress the the event” insurance, ATE, to pay the defendant’s vital necessity of making no further cutbacks in legal aid availability costs if the claim fails, while solicitors counter the risk or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas”. of claims with success fees which are payable on winning a case. Under the new system, as I understand Those should be the watchwords of any reform. Thus it, successful claimants will have to pay some costs and far, the Bill does not match them. “after the event” premiums out of their compensation. Without ATE insurance, the risks of bringing a claim 10.29 pm will simply be too great, so the right to redress will be Lord Wigley: My Lords, I apologise, as did the lost for those caught up in the most distressing cases noble Baroness, Lady Lister, for missing half this involving clinical negligence. debate because of being engaged in the Welfare Reform These proposals are totally unacceptable and made Bill like a number of colleagues. Time is limited so I worse still when we note that the Government failed to will confine my remarks to what I see as the most carry out a full assessment of how their proposals pressing elements of the Bill. My interest lies mainly in would affect disabled people. Not even those suffering 929 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 930

[LORD WIGLEY] I of course congratulate all noble Lords who have domestic abuse will be guaranteed free legal advice spoken in today’s debate. This has been in many ways under this Bill. During earlier stages of the Bill in the an astonishing debate, with a depth of knowledge and House of Commons, the Government refused to recognise experience in this field that perhaps very few legislatures that the definition of domestic violence contained in anywhere could match. However, it is surely no surprise the Bill is too narrow. This will leave vulnerable women that the vast majority of those who have spoken from without the support that they most certainly need. all around the House are highly critical of the Bill and What is more, if the perpetrators of domestic violence many of its proposals. Her Majesty’s Government are not entitled to legal aid and so act as litigants in must take note of this widespread sense that they have person, they will be able to cross-examine witnesses, not got it right. They should be prepared to listen and, which will surely cause unnecessary anxiety. more importantly, to act on what has been argued so The proposals included in Clause 12, which threaten trenchantly and so often in the House today. We will to limit legal advice in police custody through secondary listen with even more attention than usual to the legislation, are also deeply worrying. This is yet another Minister when he sums up to see whether real compromise proposal on which the Government failed to consult is in the air. I hope that it is. If it is, the House will and is a move which has been widely criticised. Errors welcome it, but if it is not the House may well have to and abuses at the police station can lead to miscarriages do its duty on some future occasion. of justice, which are exceptionally difficult to resolve. I forecast, perhaps unwisely, that there will be less The Bill as it stands allows the Lord Chancellor to disagreement around Part 3 than is usual when we replace advice in person in custody with telephone discuss sentencing in this House. Of course, there will advice. This would be a dangerous step indeed. I have to be considerable debate and close scrutiny as so strongly oppose the proposals to introduce a mandatory much of Part 3 has been added so ridiculously late. telephone gateway, which would mean that those seeking Even now it is not clear that it has been sufficiently legal advice for discrimination cases would have to thought through. Clause 114, for example, with its speak by telephone to an adviser, who may not be mandatory indeterminate life sentence for a second legally trained, to find out whether they are eligible for listed offence, does not seem to be very different from legal aid. the IPP system it is there to replace. A prisoner will Many claimants, including those with disabilities still not know when he is to be released. It will still and those with caring needs and learning difficulties, depend on the Parole Board, which will have the same may be prevented from accessing the legal aid scheme information as it does for IPP prisoners now. An due to communication problems. That is a real barrier indeterminate sentence is an indeterminate sentence, to equal access to justice. The proposals ignore many whatever it is called, or does the clause find itself in subtleties that surround abuse and will abandon some the Bill solely to appease hard-line elements of the of the most destitute and vulnerable people in our coalition, even though the numbers caught will be society without access to support. I urge the Government absolutely minimal? We will also want to look at bail to reconsider these aspects of the Bill. provisions in the context of the tragic Jane Clough case and at the new Clause 130 offence of squatting in 10.35 pm a residential building. That certainly deserves some discussion. The House will have taken special note of Lord Bach: My Lords, no one could have listened to the speech of the noble Baroness, Lady Newlove, the speeches made in your Lordships’ House today speaking as she did on behalf of victims. without recognising that the Bill we are debating is of very great importance. All three parts of the Bill could On Part 2, my noble and learned friend Lord Davidson be major Bills in their own right, and all three touch has told the House in clear terms what our position is. on fundamental issues of justice and the rule of law in Whatever view we may take of Lord Justice Jackson’s our society, whether it be the new proposed offences, report, it is clearly a prodigious personal achievement. the replacement for IPP provisions in Part 3, or the It reminds me of a kind of magisterial work of art, radical changes to the conditional fee system in civil large and grand, produced by eminent Victorians. cases and the resulting shift in the balance of power However, it is no use Her Majesty’s Government hiding between claimants and defendants in Part 2. Other behind Jackson because the whole world knows that issues include the fact that there is no replication in they picked and mixed his conclusions as though they Part 1 of the duty of the Lord Chancellor in the were choosing sweets. If there is one thing that Jackson Access to Justice Act, and Clause 12 and police stations, was clear about—he was clear about a lot—it was that which the noble Lord, Lord Wigley, just spoke about. his proposals were a package to be taken as a whole or The Government intend to cut legal aid by in effect not at all. To many of us, as we have heard today, one decimating a system of social welfare law that over the of the key findings of Jackson was that there should past 40 years or so has cheaply and successfully helped be no reduction in civil legal aid. Noble Lords have many of the poorest people in our society to have quoted him, but my quotation is this: access to justice and to resolve their legal problems. “Legal aid is still available for some key areas of litigation, in The Bill’s definition of domestic violence has been particular clinical negligence, housing cases and judicial review. It described by many noble Lords as absurdly narrow is vital that legal aid remains in these areas”. and one that will lead to many victims being deprived He goes on to talk about eligibility. That is pretty of vital assistance. Whether it relates to any of these straightforward but it is actually rejected by the concerns or all of them, the Bill goes directly to the Government. I ask the Minister why the Government issue of what kind of society we want to live in. The have rejected what Lord Justice Jackson said so clearly stakes could not be higher. about clinical negligence and legal aid. 931 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 932

This is a critical point because the Government How can the Government justify this change to a intend, as part of their £280 million cut in civil legal system which—and I want to stress this point—up to aid, to save £11 million or £10 million—I have a figure now has been supported by all three main political of £17 million but that may be out of date—by taking parties in this country? The Conservative Party has a clinical negligence out of scope. The idea that conditional proud tradition of supporting law centres. The Liberal fee agreements alone are satisfactory for this type of Democrat Party clearly does too, and I hope we do as law has been ridiculed by everyone in the House and well. This system has always been supported by the outside. Many commentators believe that a number of political parties. It has not worked faultlessly—of victims, including children, will never be able to get course not—but it has worked pretty well for many access to justice. Is that the sort of society in which we years. want to live? This proposal is the exact opposite of any concept That brings me to what many—and, I must be of the big society that one might want to consider. honest, I—consider the meanest and most wretched Who are the people who will lose out? We have heard proposal of all: the decimation of social welfare law. about them throughout the afternoon. If there is no The rest of my speech will be devoted to that part of legal aid for welfare benefit advice, some of the biggest Part 1. Whether you call it social welfare law or losers will be people with disabilities. These people poverty law or the law of everyday life does not matter often need legal advice to obtain the benefits they have very much, but what matters hugely is that the a right to. The figure of 78,000 disabled people who Government are proposing that it should no longer be will be denied specialist legal help for complicated possible for a citizen who cannot afford it to get legal welfare benefit problems is staggering. But the advice to deal with a legal problem, however complex, Government say, at the moment, “No, these people do involving welfare benefit law. The same goes for not need legal advice. They can do it themselves. It is employment law, which is completely out of scope. all general stuff. It is all comparatively easy”. Actually, Much housing law will come out of scope, as will the DWP guidance now runs to, as I understand it, practically all debt law and some education law too. 9,000 pages: a good deal more than the CPAG guidance As the Bill stands today, that means that there will be that my noble friend first wrote. As the president of no legal advice or representation, even at the Court of the Social Entitlement Chamber, Judge Robert Martin Appeal or the Supreme Court. Just to state that has said that where people have not had legal advice, proposition shows how absurd it is. about 10 per cent of hearing time at welfare benefit The supposed savings are as follows: including tribunals is spent just explaining what is going on. No immigration, £81 million; excluding immigration, wonder that the noble and learned Baroness, Lady £61 million. That means that in the social welfare area Hale, said in her Henry Hodge Memorial Lecture, and alone more than 350,000 people a year—it is much I quote: wider if you take the other parts of Part 1—will not be “The idea that the law in some of these areas is simple and given the sort of legal advice that they receive today. easy to understand is laughable”. Even where the law is still in scope, fixed fees, which This is an example of judicial understatement if ever are far from generous, have already been cut by 10 per there was one. And yet her Majesty’s Government cent. Anything left in scope, of course, will have to go seem set on this course, all for an alleged saving in through a mandatory phone gateway, including welfare benefits of £25 million per year. This is a community care cases. One can hardly think of a Government who are prepared to pay out £250 million sillier area of law to put through a mandatory phone in order that people can have weekly rather than gateway than community care. fortnightly bin collections and £125,000 per year to—is Despite many progressive reforms by different it 40 plus?—police commissioners around the country. Governments to simplify the legal system to make it This is not a sensible priority at all. easier for participants to access and understand, the Children and young people will be losers too. As we reality remains that law and enforcement of the law is have heard, they have civil justice problems that require an often complex and stressful experience for many in advice. There is academic research to show that there our society. The legal aid system was created to address is a relationship between civil legal problems not being evident inequality in the legal system. We give legal aid solved and crime. This seems incredible in the year of contracts to law centres and CABs because they help the riots. To cut legal help for the young age group is those most in need. What is the point of legal rights if absolutely crazy—perhaps as crazy as abolishing the there is no ability to enforce them? successful Youth Justice Board. Both legal aid and the The value of the advice that is currently available is YouthJustice Board work as early-intervention measures unchallenged. The respected academic Professor Dame to ensure that our young people have a future. Hazel Genn, in her seminal work Paths to Justice, pointed out that legal problems are not single ones, Of course we know that lawyers who work in this but come in clusters: it is not debt on its own, for field are not fat cats. Many sacrifice a career in high-paid example, but welfare benefits, debt and housing. If private practice because they consider that the work is legal advice is given early and well, it can and does so important. Their fees have been cut by 10 per cent. change lives. If that advice is not given, problems Further legal aid cuts will rip apart law centres, CABs grow, become more difficult to resolve, and can end up and solicitors’ firms, which will have to close. I ask the in loss of job, loss of home, loss of family, social noble Lord: where will people go then? exclusion, of course, and sometimes descent into crime. The honourable Member for Bradford East, the All this costs everybody: the individual involved, the Liberal Democrat David Ward, made a brilliant speech Government, and society too. on Report in another place on 2 November. I was 933 Legal Aid, Sentencing and Punishment[LORDS] Legal Aid, Sentencing and Punishment 934

[LORD BACH] The noble Lord, Lord Rix, and the noble Baroness, privileged to see and hear it; I watched from our seats Lady Massey, asked whether I would meet them on in the other place. He attacked these proposals with the specific issues they raised. Of course I would be passion and good sense—and, with nine Liberal Democrat delighted to do so. If they will contact me I shall fix colleagues, including his Deputy Leader, voted against something up. The noble Baroness, Lady Whitaker, the Government. He made two important points. In asked whether the letter from Professor Ruggie could the first, he stated: be put in the Library of the House. I will certainly “It is a very dangerous thing if we are going to use deficit arrange that. It is already on the internet. It might be reduction as a justification for almost everything we might do”.— interesting to the House to know that Professor Ruggie [Official Report, Commons, 2/11/11; col. 976.] is no longer the UN special representative for business His second point came in his final words. He said: and human rights; he has joined a Boston law firm. “Someone once told me that the world is divided into two Whether that is promotion, I do not know, but that is groups of people. There are those who, when they see somebody the fact. walking down the street with a walking stick, believe in kicking the stick away because it will make that person stronger, and there The noble Lord, Lord Faulkner, came with his are those who believe that if they kick away the stick, the person proposal about amendments to deal with metal theft will just fall over. We are in grave danger of making some of those and the dangers it poses. I cannot give him a definitive who are, by definition, the most vulnerable in our society fall over, answer at the moment, other than that there is an and we will still have to be there to pick them up, at even greater inter-ministerial group looking at this issue as a matter cost to the public purse. It does not make sense; we should not do of priority, and we will look at any proposals appropriate it”.—[Official Report, Commons, 2/11/11; col. 977.] to the Bill. I have lost sight of him again—oh my God! Then he sat down. Thank God we did not give the Speaker more powers; That is one way of putting it. Another way was he would have named me by now. expressed in the quote by the late Lord Bingham, It has been a very interesting and well-informed which I will not repeat now. Both quotes, in different debate. Let me take to start—because he was quoted—my ways, make the point that equal access to justice is at colleague from the other place, Mr Ward, who said the heart of our democracy, and that Governments that we must not let deficit reduction dominate everything should be very wary of tampering with that principle. that we do. Of course, unless we address the issue of The Government’s proposals are deeply wrong in deficit reduction, many of the things that we subsequently three distinct ways. First, they are—I choose the word do— carefully—immoral. They deliberately look only at the impact assessments that the Government themselves Lord Bach: The noble Lord is quoting Mr Ward produced; and they deliberately pick on the poor and wrongly. Mr Ward said: the vulnerable. Secondly, they represent a serious denial “It is a very dangerous thing if we are going to use deficit of access to justice, as the Constitution Committee reduction as a justification for almost anything that we might powerfully argued. Thirdly, far from saving money, do”.—[Official Report, Commons, 2/11/11; col. 976.] they will cost much, much more. The Minister often uses the phrase, “To govern is to Lord McNally: I stand by that quote, then. If we are choose”. He is quite right. When in government we going to take that attitude, and if we are going to put forward proposals that would have saved much avoid taking tough decisions, we will face far greater more than the cut in social welfare law that this economic problems. This idea that somehow we can Government propose. Our intention to cut back on put things off until tomorrow is perhaps why we are the number of criminal solicitors with LSC contracts where we are today, and why we have to take the would have been very controversial—much too decisions that we will take today. controversial for this Government, who chose instead I heard closely what the noble Lord, Lord Howarth, to take on not powerful interests that might give them was saying. Of course, it was a wonderful speech. A a hard time but the poor, the vulnerable and those who number of the speeches made today were wonderful cannot represent themselves in court, let alone begin speeches, if we believe that there is no limit to the to fight the power of government. amount of money that we can spend on legal aid; that I end by saying that noble Lords—I hope in a there was somehow a golden age when this was all non-partisan spirit and across the House as a whole— available. However, we know well— should say that in this case the Government have made the wrong choice. If necessary the House must Lord Howarth of Newport: The difficulty in the take up the fight and stand up for those who cannot position that the Minister is taking is that while he stand up for themselves. The House has a tradition of may indeed reduce the Ministry of Justice’s expenditure, looking after the interests of those in our society who he is exporting his cost to other government departments have little power. In this of all cases, we must not let and to local government. Far from reducing the deficit them down. in public finances, the policies of his department are likely to increase it.

10.54 pm Lord McNally: That is the speech the noble Lord Lord McNally: My Lords, I hope that the House made earlier. He knows, as I well know, that across will understand that in a debate of 54 contributions, I government, except for two special cases—health and am not going to be able to answer them all in detail overseas aid—departments have had to make severe this evening. Indeed, many of the questions will be cuts. In each of those departments, there are people better raised at Committee, with specific details of the who could make speeches, like those that have been Bill. made today, about how those cuts hurt specific sections 935 Legal Aid, Sentencing and Punishment[21 NOVEMBER 2011] Legal Aid, Sentencing and Punishment 936 of society. But there is no getting away from it: the on child protection proceedings, most judicial reviews, Ministry of Justice is a department with a budget of international child abduction, special educational needs, just over £9 billion. Its commitment was to cuts of community care, discrimination, debt and housing £2 billion in a department that spends on only four cases where a home is at immediate risk, mental health things—prisons, probation, legal aid and staff and cases and 95 per cent of funding for child parties. court administration. Each of those has taken a hit. If I accept that a number of issues have been raised noble Lords are successful in stopping the changes we today that need the kind of scrutiny and expertise that have made in legal aid, those other parts will take a hit this House brings. The Government have not sprung as well. I can tell noble Lords that it may be heartbreaking these issues on an unsuspecting country. The proposals to hear some of the stories today, but for me, it has on legal aid were in the Green Paper that was published been heartbreaking to see very good staff who have over a year ago. Certainly, some of the more recent served the Ministry of Justice well having to leave additions will need the close scrutiny of this House, through no fault of their own. We have a probation but it is not true that we brushed aside the Law service, which does exceptionally good work, that is Society’s wonderful ideas for saving the money in under pressure. There are no soft options and no easy different ways. We considered its proposals very carefully, ways in this. We have tried to put forward a series of and we are looking very closely into the one for more suggestions. efficient prosecution and reimbursement of legal aid Listening to some of the distinguished lawyers, they funds. A great deal of its proposals were shuffling do not fully appreciate that their profession is in flux. responsibilities and costs around Whitehall or producing The way law is delivered and by whom it is delivered is new taxes, which is not the same as making savings. going to change. I do not think the full impact of I also take on board the very strong concerns that alternative business structures and changes in the way were voiced about domestic violence. I believe that we chambers and solicitors are organised is fully appreciated have tried not just with these measures but with other yet. They will mean changes, and they may be changes government measures to try to give support and help that make a big difference to the way that legal advice in this area. We should go through this in Committee is delivered. I heard the disparaging of telephone and I will be able to respond to amendments that are advice, but the world is changing and lots of people put down at that stage. The same is true of clinical receive advice on the net and by telephone. Indeed, I negligence. These issues have been raised with considerable went to the Law Society’s prize giving for solicitor passion and they merit closer scrutiny in Committee. firms of the year and I was intrigued by how many of Those who are experienced as Ministers will know the prize winners now have web pages where people that I cannot make any commitments at this stage, can go. You can get lots of advice for free before you other than to suggest, as I did earlier, that we use press the button to hire them. It is a changing world in Committee for a useful and productive examination of some of these things. the Bill. I take on board what a couple of my noble I understand that when campaigning groups are friends said about advice at police stations. I suggest campaigning they always produce figures that will be that they put down an amendment on that. The noble brandished around in debates like this. For example, I Baroness, Lady Grey-Thompson, suggested that we point out that none of the horrendous cuts that we are had not listened to earlier consultation. That is not being told about actually yet impacts on CABs. I hold true. I will not weary the House by going through up my hand on the £20 million. I thought of saying them but there are at least a dozen examples of specific that when I was doing economics there was something changes we have made during the consultation process. about the velocity of money, and I think this is an I take the advice of the noble Lord, Lord Gold, that example of it. I do not know whether it has been the best way I can end this debate is the way I ended around 14 times, but it is, I confess, the same £20 million my opening speech; that is, to recognise that the range that was advised earlier, but it is a very useful addition. of expertise in this House will be extremely useful to We are across the department looking at this very us when examining this in Committee. special problem of advice centres and the CAB to see This may excite noble Lords or send them into whether we can bring forward proposals longer term. depression, but we have something like three months I go back again to this idea that somehow we are of parliamentary time looking at this Bill in its various moving from a principle in terms of legal aid. It invites stages. I cannot go further on these issues than saying the question: what is so magic about £2.2 billion or that we will listen, but we will listen to some very £2.1 billion against £1.7 billion? It is less, and it means serious points that were made in a very serious way. I cuts, but it is not a move away from some absolute hope on that basis we can move to Committee and commitment to pay for everything, whatever, which that the House will give this Bill a Second Reading. seemed to be the thrust of some of the speeches Bill read a second time and committed to a Committee earlier. Once you have a budget, you make choices of the Whole House. within that budget, and that is what we are doing. These reforms will still be spending £1.7 billion a year House adjourned at 11.09 pm.

GC 315 Arrangement of Business[21 NOVEMBER 2011] Welfare Reform Bill GC 316

However, this is simply not the case for those with Grand Committee long-term conditions. There are around 300,000 adults in England with autism, which is a lifelong condition. Monday, 21 November 2011 While some people with autism may develop the ability to manage aspects of their disability, such as improving Arrangement of Business verbal communication or overcoming an inability to travel by learning a specific route, such positive change Announcement happens only as a result of support, including the present disability living allowance. If that is taken 3.30 pm away, progress risks being reversed. The Deputy Chairman of Committees (Baroness I am not arguing that people should be granted McIntosh of Hudnall): My Lords, I remind the Committee indefinite awards solely on the basis of their diagnosis. that if there is a Division in the Chamber, the Committee However, if medical and social care assessment evidence will adjourn for 10 minutes from the sound of the for the individual claimant indicates that theirs is a Division Bell for Members of the Committee to vote. lifelong condition that is unlikely to improve, this should be taken into account to indicate that an indefinite award may be appropriate. It is important Welfare Reform Bill that this is prescribed in regulation. Reassessing all Committee (15th Day) claimants with long-term and degenerative conditions Relevant document: 17th Report from the Delegated not only wastes taxpayers’money but can cause significant Powers Committee. stress for claimants, especially those with autism, who often have additional mental health problems. The 3.30 pm increased anxiety can lead to deterioration in the claimant’s health, thereby undermining the Government’s Clause 84 : Prisoners purpose and the rationale of enhancing the independence of disabled people—to which we all subscribe. Amendment 86EA not moved. Our amendments before your Lordships this afternoon would allow for lifelong awards where there is evidence Clause 84 agreed. to show that the individual’s condition is unlikely to change over time. In our debate last Monday I said Clause 85 : Claims, awards and information that, so far as understanding autism is required, the condition can be summed up in four words: autism is Amendments 86EB and 86EC not moved. for life. Where it is established that a person with autism should receive the personal independence payment, it, too, should be for life. I beg to move. Amendment 86F Moved by Lord Touhig Lord Wigley: My Lords, I rise to speak very briefly 86F: Clause 85, page 60, line 11, leave out subsection (3) and in support of these amendments so ably moved by the insert— noble Lord, Lord Touhig. Many of the arguments that “(3) Regulations shall prescribe the considerations to be taken underpin these amendments have already been rehearsed into account in deciding whether a fixed-term award would be in the previous debate, so I will not take too much appropriate.” time. Lord Touhig: My Lords, Amendments 86F and 86G It seems sensible to have an equal-handed approach in my name, that of my noble friend Lady Healy of to these circumstances. If someone has a condition Primrose Hill and those of my good colleagues, the that is palpably for life, the guidance should be that noble Lord, Lord Wigley, and the noble Baroness, the benefit should run for life. Equally, in those Lady Gardner of Parkes, are intended to make it clear circumstances where there may be doubt, there needs that indefinite awards could and should be made for to be flexibility. What is needed, perhaps on the face of people with lifelong conditions or disabilities of a the Bill as these amendments propose, is that there are degenerative nature. Such awards should be based on guidelines that take those two sets of circumstances evidence from healthcare professionals showing that properly into account. The system itself must be willing the needs of the person receiving the award will remain to respond to the individual circumstances rather than the same or increase over time, and that they will just follow a dogma about restricting benefits even therefore continue to meet the eligibility criteria for where benefits are probably much needed. the benefit indefinitely. The Government have stated an intention to make Lord Skelmersdale: My Lords, I am not sure whether the personal independence payment awards for a fixed I ought to declare an interest, but I will do so nevertheless. term, except in exceptional circumstances. In addition, My daughter is a research biochemist at the University the Government’s proposal is that there will be an of Sheffield where she works in a cancer laboratory. in-built review process for all awards to ensure that Her objective, as it currently stands, is to starve cancer they remain accurate. This proposal is based on the cells of blood—something that other researchers around assumption that most individuals will show some the country, and indeed around the world, are currently improvement or will be able to adapt to their condition working on without yet having achieved a satisfactory over time to the extent that their needs will lessen. result. GC 317 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 318

[LORD SKELMERSDALE] “exceptional circumstances” was somewhat broader Although I readily understand why the noble Lord, than a strict reading of it might lead one to conclude. Lord Touhig, has moved his amendment, I find the Therefore, I ask the Minister to expand on that when amendment, although this might be unfair, perhaps—to dealing with this amendment and to say whether he make up a word—a little closed mind-ish. There is no accepts the proposition that there will be those with doubt that, over recent years, the medical fraternity long-term degenerative conditions that are unlikely to has made leaps and bounds in research. There is even, improve. as I understand it, a possibility that stem cells could be The noble Lord, Lord Skelmersdale, makes the used to repair the nerve system up the back. Now, reasonable point that we never know if there might be such developments may come up in five, 20 or 50 years— medical scientific breakthroughs, but, as my noble I do not know, and nobody knows—but an amendment friend said, these matters could always be revisited. It like this is so restrictive that it rather ignores the seems to be important to try to give some comfort to possibilities of medical science. people whose condition is sadly not going to improve. I readily understand the interest of the noble Lord, What is the purpose of bringing them in simply to pile Lord Touhig, in mental health, particularly autism. stress on to their lives and use resources that could be I confess that I do not know anything about autism, deployed elsewhere? whereas clearly he does. It is not beyond the wit of man to believe that some better treatment, understanding The Parliamentary Under-Secretary of State, Department or social environment in respect of any mental disease for Work and Pensions (Lord Freud): My Lords, we could well improve matters to allow people a certain think it is right that an individual’s benefit entitlement amount of, for example, work. My son-in-law suffers is based on the degree to which he or she is participating from ME, and apparently there is tremendous argument in society. This level of participation can vary as health as to whether ME is entirely a mental disease or a conditions or impairments improve or deteriorate, their physical disease with mental attributes. I do not know impact changes or individuals adapt to their circumstances. whether he will recover enough to work; I suspect that We want the benefit accurately to reflect relevant changes neither he nor anyone else knows that. However, I find in circumstances to ensure that people receive the right this particular amendment—especially the second one— level of support. The 2004-05 national benefit review somewhat restrictive. found that about £630 million a year of DLA is overpaid as a result of unreported changes in circumstances. The Countess of Mar: My Lords, I support the This cannot be right. However, it is equally about noble Lord, Lord Touhig, in his amendment. I respect ensuring that, when people’s circumstances deteriorate, the view of the noble Lord, Lord Skelmersdale, on the benefit keeps track with them. ME, and I also thank the Minister for his recent letter to me that clarifies a lot about the department’s stance The same study estimated that around £190 million on ME. I am very grateful for what he has done. of DLA is underpaid each year—vital money that is not reaching the people for whom it was intended. However, there are serious cases of ME where There is no one-size-fits-all answer; our approach will people are just not going to get better. In the House involve a combination of awards that, in some cases, the other day during our consideration of the Health will be fixed for a short time and in others will be and Social Care Bill, I described a young lady who has longer term, depending on the individual, the impact had ME since she was 15 and who is now 30 and is not of their disability and the extent to which they are able going to get any better. There are a lot of people like to live independently. In many circumstances, this can that. She is suffering terrible stress with worrying change for better or indeed for worse during someone’s about what is going to happen with her personal lifetime, and this will be different for different people. independence payments, and that is not helping her We think that an active management regime that condition. In cases like that, where it is pretty obvious involves planned reviews is the most appropriate way that the person is not going to get better—unless there of responding to this. is a miracle of medical science, when of course it should be reviewed whether the person’s health can be However, it is important—and on this I feel we improved, which would be all well and good—such agree—that we do not undertake inappropriate or patients should not be subjected to the stresses of a unnecessary assessments and interventions where there medical examination. is unlikely to be a change in award. Key to this is ensuring that decisions on award duration and Lord McAvoy: My Lords, I would like to follow the interventions are evidence based. Here I refer back to point made by the noble Lord, Lord Skelmersdale, comments I made during the debate on the noble that medical science might come up with a cure, but I Lord’s previous amendments. In PIP assessment, we am puzzled as to why that is problem. Surely when the want to get the best mix of evidence from a variety of facts change, the law would be changed; I do not see sources. This will be partly about what the claimants any great problem with changing the law. tells us about themselves, partly what can be gathered at face-to-face consultations and partly what we can Lord McKenzie of Luton: MyLords,wehavea obtain from relevant people who support them. Moreover, degree of sympathy with the amendment moved by as I said, we want individuals to tell us who is best my noble friend Lord Touhig and spoken to by the placed to advise us on these matters. noble Countess, Lady Mar, and the noble Lord, Lord Therefore, I think we are fundamentally in the same Wigley. As I understand it, it goes with the grain of place as the noble Lords and the noble Baroness. The what the Government are seeking to do. When we one key difference is that we do not think that an debated similar issues last week, I thought the term individual’s type of health condition or impairment GC 319 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 320 matters—for example, whether or not it is a lifelong Lord Freud: My Lords, it would be premature for condition; what matters is the likely impact of the me to go into much more detail here. Clearly, we are condition going forwards and whether it is likely to aiming to build up the award duration in consultation, affect benefit entitlement. Conditions and impairments— and I would not want to pre-empt that consultative even ones that are usually degenerative—can affect process. people in very different ways. That is why we want decisions on award durations to be based on individual Lord Touhig: My Lords, I thank all noble Lords for circumstances following consideration of all the evidence their contributions to this very short but useful and of the case. important debate. The noble Lord, Lord Wigley, pointed out that we have sought to be flexible in these amendments. Lord Wigley: The Minister said a moment ago that I am sorry that the noble Lord, Lord Skelmersdale, he was looking for the maximum degree of flexibility thinks that we are being somewhat restrictive. However, and not to have reviews where they were patently not that is not the intention; we are trying to be flexible, necessary. Am I right in recalling that in the earlier recognising that there will be circumstances where it debates he indicated that the first tier of any review will not be appropriate for a lifetime award to be made. might be with the professionals without impinging on The noble Countess, Lady Mar, made an important the beneficiary so as not to cause unnecessary worry point in speaking about someone with experience of and that, if the professional—the GP or whoever—advised an illness that will not improve. Putting someone that there was no change, there would be no need at all through all the problems and distress of a review will for the beneficiary to be aware of this? not be helpful at all. We all hope to God that many of these problems can be solved as time goes on. My 3.45 pm noble friend Lord McAvoy made the point that, if Lord Freud: Yes, my Lords. That is what I said and what we are asking for were in the Bill and there were it has not changed. Noble Lords might be reassured some considerable improvement in one area or another, by the fact that, even where awards are fixed term and we would obviously need to change the law if that periodic reassessment is required, this does not have to were appropriate. Therefore, I think that we need to be be burdensome. As I have just said, in some cases the flexible on that. assessments will involve scrutiny of paper evidence The Minister made the important point that £630 million only and will not require a face-to-face consultation. had been overpaid in DLA. However,from my experience This will especially be the case where there is considerable of sitting on the Public Accounts Committee in the supporting evidence on which to base decisions. other place, I would say that one really has to look into Conditions or impairments which are life-long and/or how that happened. Very often, it was due to failure by degenerative are particularly likely to have such supporting the department and not because someone’s condition evidence. had changed. The National Audit Office reports point We will provide guidance on the duration of an this out. Indeed, on one occasion I had a case where a award, including when an ongoing award would be constituent had to complete a form and there was a appropriate and with what frequency that award would box to be ticked against the question, “Have you be reviewed. We are committed to developing the received income support in the past year?”. She ticked duration assessment in consultation with disabled people it and underneath wrote, “But it ceased on X date”. and their representatives to ensure that we get it right. However,because the form was scanned in, the department’s We recognise how important this is to ensure that the system could not read the words underneath, so it process of deciding award durations remains both fair continued to overpay her and then demanded the and transparent. money back. I fear that the problem of overpayment is I should also like to tackle a misconception that often caused not by the person making the claim but seems to have built up in relation to this issue—that is, by the system, in any event. that there will be a requirement for everyone to be I thank the noble Lord for his clarity on a number reviewed on a yearly basis. This is simply not true. of points and for the encouragement that he gave. While some people will receive one-year awards where I feel that can we make progress, as the way that we are their circumstances warrant it, the vast majority of working in this Committee and in this House helps us awards are likely to be longer than this, with some to improve the quality of legislation because of the being much longer and some indefinite. backgrounds, knowledge and expertise that so many I hope that I have reassured noble Lords that we are noble Lords have on a whole range of matters. I believe in the same place as them on this issue. We want award that by collaborating, we will protect those who are durations to be based on individuals’ circumstances perhaps the most vulnerable—certainly, those who and the likelihood of change; we do not want unnecessary concern those of us who tabled this amendment—so reviews or assessments; and we want decisions on that they will not have to go through all the trauma these issues to be based on the best evidence, including and difficulties associated with constant review of that from the professionals involved in supporting their benefit once it is awarded, if their condition is claimants. On that basis, I urge the noble Lord to such that it will not improve. Having said that, I thank withdraw his amendment. the Minister for his comments and I am sure that we will enter into more dialogue about this in future. I beg Lord McKenzie of Luton: Can the Minister clarify leave to withdraw the amendment. one point? He said that some awards might be long Amendment 86F withdrawn. term and some short term. Can he give us an inkling as to the department’s thinking about that spectrum Amendment 86G not moved. and what long-term awards may mean? Clause 85 agreed. GC 321 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 322

Clause 86 : Report to Parliament averse to them. Given the strength of opinion that I know exists on this issue, I will take it away to see what I can do before Report. Although I cannot promise Amendment 87 here and now that I can agree to exactly the formulation Moved by Lord Rix in these amendments, I will do all that I can to satisfy noble Lords on this matter. 87: Clause 86, page 60, line 17, at end insert “biennially for the first six years after those sections come into force” I hope that this statement also deals with my noble friend Lord German’s concern, which I believe may lie behind his Amendments 98ZA and 98ZB. Given Lord Rix: My Lords, the purpose of this amendment this assurance, I urge noble Lords to withdraw their and Amendment 88 would be to introduce a biennial amendments. independent review of the personal independence payment for the first six years after it comes into force. The amendments also aim to require the report within two Lord Wigley: My Lords, as my fire has been taken years of PIP being implemented, not the three years as away from me by the Minister, perhaps I may at least proposed in the Bill. As your Lordships will be aware, be allowed to say thank you. In consideration of this the Bill already provides for a single independent matter—and obviously consideration can come to a review of the PIP assessment, with a report that must positive outcome, but not necessarily—the one initial be presented to Parliament. While this is welcome, fact that I would ask the Minister to take on board is given the impact of the new assessment on many that other circumstances can change in parallel with disabled people—particularly those with a learning this—the general economy and other legislation—which disability—I believe that more than one review would may make it beneficial for reviews to take place more be necessary. frequently. However, I will not press an open door. Indeed, the precedent for having more than one review has already been established. The work capability Lord Rix: My Lords, I will manage to cut things assessment is subject to an annual independent review short by saying that I am very grateful to the Minister. for the first five years of its operation, as laid out in I trust that it will all come to pass and I beg leave to the Welfare Reform Act 2007. The experience of the withdraw the amendment. work capability assessment has shown the benefits of an ongoing independent review, although I acknowledge Baroness Hollis of Heigham: If we go on like this, that the yearly requirement has meant insufficient we will finish today. time for the introduction of one review’s proposals before the next commences. Hence, I am calling for the Amendment 87 withdrawn. PIP review to take place on a biennial basis only. During discussion on this matter in the Commons, it Amendment 88 not moved. was noted by the Government that the proposed one-off report is just one way of “close working and testing” Clause 86 agreed. the implementation of the new measure. However, I am concerned that this does not necessarily guarantee Clauses 87 and 88 agreed. a fully fit-for-purpose assessment. The independent review of the WCA has shown a process that is not working as it should be. If a similar Schedule9:Personal independence payment: scenario is revealed for the PIP assessment, the amendments Government should act swiftly to ensure that disabled people are appropriately supported and not denied the Amendment 89 assistance they need to live more independently. I believe a biennial review would help to make this Moved by Lord Freud happen. Indeed, on a more positive note, if PIP is to 89: Schedule 9, page 133, line 10, leave out from beginning to be as successful as the Government claim it is going to end of line 28 on page 134 be, Ministers would then have a valuable opportunity to showcase this in Parliament and more widely across Lord Freud: My Lords, the amendments in this the country, which—in these rather hard-pressed times group serve two purposes: to remove a number of for the Government on this Bill—must surely be a consequential amendments relating to tax provisions welcome boost both to the Government and to Ministers. for claimants of personal independence payment, and I beg to move. to align the benefit with common provisions on appealing against payability decisions when someone is imprisoned Lord Freud My Lords, perhaps I may be permitted or detained in legal custody. I do not wish to dwell on to make an early intervention here in order to offer to the latter provision, as it is merely intended to extend take this matter away and return at Report. The common rules to personal independence payment, but Government fully agree with noble Lords on the need I should like to offer some reassurances around the for robust independent evaluation of how the assessment amendments that we are proposing against tax provisions. works in practice and of the value that Professor First, let me say that these amendments do not Harrington has added through his reviews of the reflect any change in the Government’s plans for either work capability assessment. While we had not intended welfare or taxation. The amendments are purely a legislating for multiple reviews of PIP, we are not procedural matter. They will remove the tax amendments GC 323 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 324 from the Welfare Reform Bill so that suitable tax piece of tax trust law, you can do the whole thing in amendments can be made by a future Finance Bill or one, rather than having to go to different Acts. That is by Treasury order if appropriate. It may be helpful if I the reason. give an example of one of the tax-related provisions. Currently, Schedule 7A to the Finance Act 1994 makes Amendment 89 agreed. provision for the letting of a vehicle to be exempt from insurance premium tax. This provision applies where the contract is made on qualifying terms, one of which Amendments 90 to 95 is that the disabled person leasing the vehicle receives Moved by Lord Freud the DLA mobility component at either rate. 90: Schedule 9, page 137, line 35, leave out from beginning to I should like to reassure noble Lords that, although end of line 9 on page 140 we are removing these provisions from the Bill, the 91: Schedule 9, page 141, line 1, after “paragraph 3” insert “— Government have committed to maintain the current passporting arrangements wherever possible. These (a) in paragraph (f), the final “or” is repealed;” amendments will not make anyone worse off. They do 92: Schedule 9, page 141, line 4, at end insert— not reflect any change in the Government’s plans for “(i) section 84 of that Act.” either welfare or taxation; they are purely procedural. 93: Schedule 9, page 141, leave out lines 12 to 16 The provisions will remove the tax amendments from the Welfare Reform Bill, so that suitable tax amendments 94: Schedule 9, page 141, line 37, leave out paragraph 62 can be made in future finance legislation. This will 95: Schedule 9, page 142, leave out lines 9 to 34 enable the tax position, including potential knock-on consequences for other parts of tax legislation, to be Amendments 90 to 95 agreed. considered in the round. Schedule 9, as amended, agreed. The Government have been very clear that personal independence payment, like DLA, will be a tax-free Clause 89 agreed. benefit. In recognition of that absolute commitment, we have therefore decided to retain provision within this Bill to provide absolute certainty that these payments Clause 90 : Transitional will be free of tax. I beg to move. Amendment 95ZA not moved.

4pm Clause 90 agreed. Lord McKenzie of Luton: My Lords, I thank the Schedule 10 agreed. Minister for his explanation of these amendments, which I think I understand and accept. I wondered at first when I saw them whether we had done something Clause 91 : Regulations to upset Treasury Ministers, and they no longer wanted to come before us. To be clear, we have provisions in Amendment 95A here relating to tax which we are simply moving out of the Bill because they are going to go back in a Finance Moved by Baroness Sherlock Act. If they remained in the Bill in their current form, 95A: Clause 91, page 61, line 28, at end insert “including those would that in any way invalidate them? There might be aged 16 to 24” a procedural issue that has gone awry in this case, but I am still a little unclear as to why it is necessary in the Baroness Sherlock: My Lords, I move this amendment event. Given that those provisions are there, why they on behalf of the noble Lord, Lord Patel, who has could not remain? been unavoidably detained, as he has an important More importantly, I am anxious that if these provisions meeting on other legislation. I shall speak also to come out of this Bill, there is certainty that they will Amendment 98A. end up in a Finance Bill. Can the Minister give us any In doing so, I am grateful for briefing, particularly assurance as to which Bill that is likely to be and what from CLIC Sargent, a charity that works with children processes, given the oversight that we dealt with a with cancer. These are probing amendments that are couple of Committee sittings ago, there are in place to designed to ensure that personal independence payment make sure that these are followed through and put is able to meet the distinct needs of young people aged into effect? 16 to 24 who have a long-term health condition or disability. I understand that the Government have confirmed that the reform of DLA for under-16s will Lord Freud: When you look at these detailed measures, be taken forward separately, but there is still an issue which is something that I do not encourage anyone to about whether PIP is able to meet the unique needs of do who wants to retain their sang-froid, you can see young people aged 16 to 24. There is a concern that that they are closely associated with taxation and trust they will end up being treated the same way as adults, funds. It is much more coherent for them to be dealt despite being much less likely to have financial with in a Finance Bill or another finance Act rather independence and having fewer benefits available to than one dealing with welfare reform. That is simply them. I understand that DLA is at present the only the reason, because it means that if you restructure a benefit available to young people with a health condition GC 325 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 326

[BARONESS SHERLOCK] certainly support the thrust of this and the needs for which is available in all circumstances. Therefore, it is regulations that are affirmative—not just the first set. particularly important that PIP is able to meet the I think that we will hear from the noble Lord, Lord unique needs of this group of young people with German, on that in a moment. health conditions or disabilities. The age 16 already has ramifications in the DLA As noble Lords will appreciate, those young people system. Below that age, young people cannot qualify aged 16 to 24 face a range of transitions as they for the lower-rate care component via the cooking approach adulthood. They may leave education and test, and there are additional tests for the lower-rate move on to higher education or employment, perhaps mobility test. So there is already a potentially stressful leaving their family and moving into their own home. transition under DLA that could be compounded They may enter into long-term relationships and have with the transition to PIP. The figures that have been children; increasingly, those key transitions happen in mentioned are that over the next three years 173,000 the 20s. In particular, I am conscious that elsewhere disabled children will turn 16. If they have to seek or the Government are moving to raise the age participation apply for PIP immediately, that is a big challenge. rate for children in education. There are also reviews There was a hint in the other place when this was going on of SEN; the disability Green Paper is looking debated that that would not necessarily be the case at a co-ordinated system of assessment and support and that, in the scheduling of young people in this age from birth to age 25. But the plans to raise participation group, they would go directly on to PIP. Perhaps we age will mean that, for example, most 16 to 18 year-olds can have the Minister’s reassurance or an update on will still be in education or training, but PIP will that point. classify them as working-age adults. By way of example, The briefing note that we got from the DWP sets I understand that the best practice NICE guidance out the work undertaken to date, seeking to base the treats 16 to 24 year-olds with cancer as being a assessment on the education health and care plan that distinct group with specific social, psychological and is being developed across government, which we would educational needs and goes on to explain the best way support. But I am not quite sure how it fits together on for services to be shaped for this group. Could the timing, particularly over the next couple of years, with Minister be encouraged to look at that as an approach PIP being relatively close by and due to be with us that might be helpful in transitioning across to examining shortly. Can the Minister confirm to us the process of PIP? assessment for young adults and say what the likely The effect of relying on different age ranges within migration process is? What happens to 16 year-olds the benefits system not only complicates transition who are on DLA at the point when PIP is introduced? for long-term health conditions or disabilities but can also see them facing a cliff edge. Can I put some specific questions to the Minister? I have no desire to Lord Freud: My Lords, I am grateful to the noble press this amendment but perhaps he could help the Lord, Lord Patel, for tabling these amendments and Committee to understand how the Government intend to the noble Baroness, Lady Sherlock, for moving to support this group of people. Has he looked at the them in his absence. The amendments allow me to set possibility of introducing specialist teams or a tailored out the Government’s position on how we will deliver approach to young people aged 16 to 24 in the benefits PIP effectively for young disabled people in a way that system? Would he consider a distinct PIP system for is sensitive to their needs. Noble Lords may be aware those aged 16 to 24, which would include an age- that the Government published a briefing document appropriate system of assessment for that age group? that specifically considered the position of young people. In particular, would he consider whether those already The briefing document set out some of the main in receipt of DLA could continue to receive it until insights that we have learned from them and their they turn 18—or maybe even up to 24, if he is feeling representatives, which are informing our design work. particularly generous today? Would he comment on Let me be clear from the outset. I know that there the qualifying period? Could he reassure the Committee are particular issues and sensitivities when dealing that that will not apply for those under 18, and ideally with disabled young adults at what can be a particularly not for those under 24? Could he help the Committee challenging period of their life. That is why we have to understand what approach the Government are been working closely with people aged 16 to 24 and taking to harmonising the various age limits across the their representative organisations in order to understand benefit system? how we can ensure that the benefit is administered in a This is a potentially particularly vulnerable group way that best meets their needs. Two main considerations of young people, and it is important that in looking at that young people have raised with us are: whether 16 how PIP will operate we take careful account of the is too young an age to begin the process of moving impact on this group. I hope that the Minister is able from DLA to PIP; and making sure that the transition to reassure the Committee. I beg to move. arrangements for moving on to the new benefit are easy to understand and transparent—the role of advocates Lord McKenzie of Luton: My Lords, these are and information needs, for example, being particularly useful probing amendments to understand fully what important. is happening or proposed in respect of this group of Under current arrangements for DLA, the child-related young people. I imagine that the Minister will say that, rules fall away at the age of 16 and the entitlement as the Bill stands, there are already powers to make conditions to the care component are extended. The regulations as proposed for 16 to 24 year-olds, but it is age of 16 therefore forms a natural touch-point to an opportunity to get something on the record. We re-examine entitlement and take young people through GC 327 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 328 to entitlement and receipt of DLA in their own right, 4.15 pm where that is appropriate. Paying young people directly Following the findings from our interviews with gives them direct control over how the benefit can young people, our intention is to engage early, informing enable them to live independent lives. It is our firm them about the change to PIP before they turn 16. We belief that the principle of giving individuals control intend to provide continued support right through the over how they can tackle the barriers to their independence process of reassessment and for new claims after an should be brought forward into PIP. individual reaches 16. We have set out in our updated In developing our proposals for PIP, we know that policy document how we intend to continue to work there are particular issues that we need to address closely with the disabled young adults in representative concerning its delivery to young adults. For example, groups to ensure that the processes are flexible to young disabled people can expect to go through a needs and work smoothly and effectively for young number of assessments as they move from childhood people and their families. That document also sets out to adulthood, and many of them will require varying some principles that we are agreeing with stakeholders, degrees of support to negotiate those assessments. such as early access to support and advocacy and That is why we will ensure that all young people who continuous evaluation and improvement of the system, claim, or transition on to, PIP will have the appropriate involving young people. support to allow them fully to express their needs. This I had five distinct questions from the noble Baroness, could be, for example, by allowing a parent, advocate Lady Sherlock. Rather than answer them verbally or friend to accompany them to their face-to-face today, the best thing that I can do is write to her and consultation. the noble Lord, Lord Patel, addressing all the points in those detailed questions, if that is satisfactory. We are fully involving young disabled people and In conclusion, I reiterate that we fully understand their representatives as we design and build the delivery the concerns that the implementation of PIP may have mechanisms. For example, we are working with user-led for disabled young adults. We also know that the key organisations through the PIP implementation to the success of delivering it to this group is flexibility development group, which is made up of a wide range to meet the varied needs and aspirations of disabled of organisations including those that represent young young adults. I am being a bit technical but the people. We have also begun work with focus groups amendment as it stands would potentially limit that and have conducted one-to-one interviews directly flexibility by imposing statutory duties that would be with young people, appointees and their representatives less able to respond and react to change, especially as to inform both the way in which PIP will be delivered we refine and improve processes as a result of our and the transition arrangements for those moving experiences. I fully acknowledge, however, that this is a from DLA to PIP. probing amendment so we do not need to worry about As I mentioned, the transition from childhood to the niceties of its wording. adulthood brings with it numerous assessments at I hope that I have been able to describe the approach different ages. We are therefore also working across that we want to adopt. Given the assurances that I government, in particular with the Department of have been able to make, I urge the noble Baroness to Education, to see what more we may be able to join up withdraw the amendment. and share information with the proposed single assessment process for education, health and social care. This Lord McKenzie of Luton: Could the Minister clarify means, for example, that if an individual is still in a point? I apologise if I have missed this. In the case of education or training, exploring whether we may be someone who at the moment is under 16 and on DLA, able to use evidence from special educational needs if they reach the age of 16 before PIP is introduced, assessments or information from the school or college will they undergo the normal reassessment to adult to inform the determination of a PIP claim. But we DLA? If they reach 16 after PIP has been introduced, need to look carefully at this so that we get the right will they automatically go through the PIP process, or balance between not overassessing someone and having could they potentially stay on the DLA adult process an approach that is too general to identify a person’s for a period, whatever that may be? specific needs. My officials are therefore working closely with officials in the Department of Education so that Lord Freud: My Lords, we have not done a detailed we get this right. migration strategy. When people are effectively on To ensure transparency, credibility and a smooth adult DLA, even though they have transitioned from transition from DLA to PIP, we know that we will child DLA, we will have to work out the exact timings need to build in processes, with appropriate information for when to take them. We do not have those precise and engagement, that let young people and their families details yet. know what to expect and understand what they have to do. Our intention is to ensure continuity of payment, Lord McKenzie of Luton: I am grateful for that. The with no gap between DLA ending and PIP starting Minister will see that the issue that that highlights is when an individual makes a claim and subject to their the one that was probed: if people reaching 16 are meeting the eligibility conditions. We are continuing going to go straight on to PIP, given what is going to to consider how the detailed rules should work and, happen with the number of young people achieving as with all the changes that we are making, we the age of 16 over the next couple of years, they are in will continue to involve disabled people and their large measure going to be first through the gate for representatives in the design. PIP. That was the concern. GC 329 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 330

Lord Freud: Clearly, if they go through their birthday Clause 93 : Benefit cap when PIP is in position, we will have the arrangements that I was describing. If they have already gone through the gateway because PIP was not yet in position, we Amendment 99ZA will have to decide on the precise migration strategy Moved by The Lord Bishop of Ripon and Leeds regarding whether they get priority or at what stage we 99ZA: Clause 93, page 62, line 16, after “couple” insert “or would take them. That is something we need to determine family with children” a little later.

The Lord Bishop of Ripon and Leeds: My Lords, as Baroness Sherlock: My Lords, I thank the Minister we come to the consideration of the cap on welfare for giving such a comprehensive account of the benefits, the amendments in my name in the next two Government’s approach to this group of young people. groupings concentrate on the needs of children. They I also thank him for his offer to write to the noble are concerned not with the existence of the cap but Lord, Lord Patel, and to me. I hope that, if he does, he with the way in which it operates for families with will pick up the point made at the very end by my children. noble friend Lord McKenzie and try to address what happens to those young people who may be first Amendment 99ZA in my name and that of the through the gate and how the system can deal with noble Baroness, Lady Tyler, makes families with children them. In the light of that, I beg leave to withdraw the a specific category within Clause 93. The clause currently amendment. has no reference at all to children. The distinction that it makes is between single people and couples, yet Amendment 95A withdrawn. children are most deeply affected by any restriction of benefits. My amendments are an attempt to find ways in which families with children can be helped to care Amendment 96 not moved. for them where there is unemployment or circumstances which make the parents dependent on benefits. Amendments 97 and 98 I am particularly indebted to the Children’s Society for its Good Childhood report on the condition of Moved by Lord Freud children and the pressures on them in this country. I 97: Clause 91, page 61, line 32, leave out “either or both” and am also indebted to it for its work to ensure that insert “any” children in deprived families are protected from the 98: Clause 91, page 61, line 32, at end insert— effect of capping and that the capping arrangements “( ) the first regulations under section 76(4) or 77(4);” do not damage the needs of children and the way in which they grow up in our society. As the Bill stands, children are disproportionately affected by the cap. The Amendments 97 and 98 agreed. Children’s Society estimates that some 210,000 children will be affected by it compared with some 70,000 adults. Amendment 98ZA The amendment promotes fairness because it compares like with like. If we are to set a cap for families with Tabled by Lord German children, that should be compared with working families 98ZA: Clause 91, page 61, line 33, leave out “the first” with children—probably those with someone working more than 16 hours a week, as suggested in Amendment 99ABB. That fits with, for example, the Chancellor of Lord German: This group of amendments was designed the Exchequer’s remarks at the 2010 Conservative to test the arrangements that we have in Parliament Party conference that the cap should be at the level of for reviewing and looking in detail at the operation of the earnings of the average working family. I believe PIP. In view of the offer that we have just had from the that most of us would see an average working family Minister to take back all the reviewing and reporting as meaning a family with children, whereas household arrangements for the whole of PIP, I think that it earnings include those of childless single people, for would be unwise of me to move the amendment. example. This simple alteration in Amendment 99ZA could remove something like 25,000 children from the Amendment 98ZA not moved. cap. Linked in this group of amendments are those Amendments 98ZB to 99 not moved. seeking to produce a fair definition of income. Amendment 99ABB aims to relate the cap to the income of working families rather than simply to their Clause 91, as amended, agreed. earnings. The principle behind the cap is that households should not be better off living on benefits than they would be in work. Income, for a family that is in work, Clause 92 : Interpretation of Part 4 includes, for example, child benefit or council tax benefit. If we are looking for an equitable comparison, then it is the amount that comes in to the household which Amendments 99ZZA and 99ZZB not moved. is relevant, and not simply that which is on the payslip. To replace earnings by income, as Amendment 99ABB Clause 92 agreed suggests, could remove some 38,000 children from GC 331 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 332 the effects of the cap. Again, the concern is with currently constructed. While it is estimated that some provision for the growth, development and support 50,000 households will have their benefits reduced at of children as they grow up within our culture, and the moment by this policy, it has also been estimated those who need the support of a welfare system as that over 200,000 children will be affected and up to they grow up. 80,000 of those could be made homeless. The last of the amendments in my name in this The composition of the households that are likely group concerns the maths by which “average”is calculated. to be affected is interesting. The figures are one-third The word “average” contains a studied ambiguity and couples, two-thirds single women—generally single I hope the Minister will be able to enlighten us as we mothers—and about half will also be disabled. Indeed, look at this. At present, Clause 93(8) gives freedom to 60 per cent of the households likely to be affected live the Secretary of State to choose what he means by an in London, where housing is more expensive, particularly average. That seems to me to be a slightly Humpty people living in private rented accommodation. Various Dumpty-ish way of looking at the whole issue. It is ethnic groups will also be particularly affected, when unsatisfactory because it causes uncertainty. The mean, they have larger families. which is what is proposed by this amendment, is what, in my experience, is normally meant by an average. The first consequences of the benefit cap, unless it The figures are added up and then divided by the is possible to look at constructing it in a different number of people concerned. It is like a cricket batting way—perhaps using one of the approaches suggested average, where the number of runs is divided by the in these excellent amendments—will be families having number of dismissals to get the average. The other to move very abruptly to cheaper areas. This risks common so-called average is the median—the middle children moving school in the middle of a year, thereby number. If you have a cohort of 1,000, it is number disrupting their education and their social networks. It 500 in that 1,000. That is a remarkably arbitrary figure also risks families splitting up, and I shall come back because it takes no account of the way in which there to that point. It could have adverse consequences on may be clustering at one end or the other of the total kinship carers—family and friends—which is why in number of 1,000 in that particular example. However, the next grouping I am moving an amendment on that it might well tempt future Secretaries of State, since at point. I also feel that families who will be able to least, as figures are at the moment, it would be lower continue to pay the rent will have less money left for than the mean under current calculations. It may be other essentials such as food and clothes, which will that exploration could pursue a trimmed mean, which therefore contribute to child poverty. For families who omits the highest paid 5 per cent and the lowest paid are not able to pay the rent, are evicted and become 5 per cent of working households when calculating the homeless, this will be a parlous situation. Children are mean. We need some definition of average if this a priority group for council housing so this is likely to clause is going to make sense. lead to additional pressure on temporary accommodation costs, adding to the cost pressures on local authority These are simple amendments, which do not challenge budgets. We have heard quite a bit about this in recent the basis of the benefits cap. They acknowledge the months. cost of bringing up children, which is at the heart of the need for family income. They recognise the struggle There is then a very real danger, which has had of parents unable to find work as they seek to care for virtually no attention, that children at risk will simply their families. They could be crucial in helping to disappear from view. This raises real child protection avoid plunging children back into poverty. I hope that and safeguarding concerns for me. We all know the the Government and the Minister will be able to very tragic stories of children who have disappeared explore some of these possibilities. I beg to move. from view and what happens to them in the very worst circumstances. We must ensure that the benefit cap 4.30 pm does not, however inadvertently, have that consequence. Baroness Tyler of Enfield: My Lords, I should like Then there is the reduction in what I call mixed to explain why I decided to add my name to the communities, as poorer families are forced to move excellent amendments that have just been put forward out of an expensive area. As I said earlier, this is by the right reverend Prelate the Bishop of Ripon and particularly the case in London. Not only will it create Leeds. I, too, was indebted to the work of the Children’s very undesirable ghettoisation but there will be pressure Society, which did an excellent analysis in this area. I on public services in ways that different bits of different understand the rationale for a benefit cap. I am not boroughs will find difficult to deal with. For example, trying to say that I am against it; I understand the the concentration of workless households in some arguments about promoting fairness between those in areas has significant potential implications for a wide work and those receiving benefits, and indeed the need range of local authority services. Boroughs that have to reduce the cost of the rapidly growing benefits bill an inward migration of households are likely to face as part of the overall deficit reduction strategy. My severely increased service pressures such as demand concern, though, as I looked at the numbers, at who for school places, the impact of unemployment, poverty would be affected and at the types of families that and poor housing conditions, whereas in contrast would be affected, was the implications for some of other boroughs will experience reduced demand for the most vulnerable families, particularly families with such services but will themselves face challenges and children. I shall say a few more words about that. costs in adapting very quickly to these different demands. I was very taken by the analysis of the The point that I should like to finish on, which Children’s Society that showed that children would be I feel particularly passionate about—perhaps because disproportionately affected by how the benefit cap is I am chief executive of the country’s largest relationships GC 333 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 334

[BARONESS TYLER OF ENFIELD] The cap is very much about housing, and the way support organisation Relate, which is a declared that it is applied relates directly to housing costs. interest—is the inherent couple penalty currently built Where a family’s entitlement to benefits exceeds the into the benefit cap. This has had very little attention cap, the cut to their state support is to be achieved, in so far, but it will affect couples substantially more the first instance, by cutting their housing benefit. The than lone parents. Indeed, it has been suggested by DWP calculates that some 50,000 households will be experts in the field that the cap will introduce one of affected. On average, they will lose £93 per week from the most substantial couple penalties ever seen in the the amount that they can contribute towards their benefits system, so it could have the perverse consequence rent. This shortfall, which cannot possibly be covered of breaking up families as well as deterring people by cutting back on food, clothing, heating and so on, from entering new relationships and forming new rises to a colossal £150 per week for some 7,500 families. households. Surely this couple penalty is completely at The cap also raises the prospect that some families odds with the Government’s, and indeed the Prime who will have to move in 2012, because of caps on Minister’s, very clear stance on wishing to support housing benefit and local housing allowance already strong and stable family relationships. I am sure that announced, will be hit again and uprooted for a second this is an unintended consequence and has not been time when this overall cap reaches them in 2013. thought through, but we need to look at this. Amendment 99AC in my name seeks to address Finally, the impact would be particularly keen where this fundamental flaw in the proposal for a benefit cap two lone parents decide to move in together, particularly by excluding the housing benefit component from it. if they both had children from the previous relationship. This would not save all those affected since the largest Such couples could then find that they would be far families will be left with virtually nothing with which worse off by moving in and forming one household to pay their rents if they are not to fall below the rather than living as two separate households. I will poverty line. However, it recognises the extreme not detain the Committee’s time any longer, but I just consequences, even for those in smaller households, of wanted to explain why I feel that having some in-depth having to pay today’s market rents in so many areas. discussion of an alternative way of constructing the Removing the housing benefit element from the cap benefit cap is so vital. would greatly moderate its effect upon already very poor households. Lord McKenzie of Luton: My Lords, I think that the noble Lord, Lord Best, wishes to speak. The DWP itself points out in its impact assessment that households are very likely to go into rent arrears, which means landlords and the courts incurring the Lord Best: My Lords, in speaking to Amendment 99AC expense and effort of evictions, and local authorities in this group, I am very grateful to Shelter, Homeless facing the increased cost of handling homelessness. Link and the National Housing Federation, which Shelter research shows that out-of-work families with have formulated a series of amendments here and just two children will face a shortfall in what they given invaluable advice to all of us. receive for their rent in the private rented sector in all It turns out that the new benefit cap is really about inner London boroughs and many outer London two factors: children and housing. As was so clearly boroughs, from Hounslow to Haringey to Newham. demonstrated by the noble Baroness, Lady Tyler, and Those with three children will face this problem in the right reverend Prelate, because the cap is not every London borough and in 82 per cent of all local adjusted to take account of the number of children in authorities throughout the south-east of England. a family, larger families will be hardest hit. The other I may be pre-empting the Minister’s response but factor for which no allowance is made in the crude the problem would be solved if private landlords and calculation of the benefit cap is housing costs. No housing associations charging the highest rents were account is taken of the fact that families in otherwise to cut dramatically the rents of their tenants receiving identical circumstances have to pay very different amounts housing benefit or local housing allowance. However, for their housing, not out of choice but because of we should remember that housing benefit and local where they live, what type of landlord they have and housing allowance are being cut and capped in several the size of home that their family requires. other ways, including through the high rent caps and Rents are far higher in some areas than in others. In the restriction to the lowest 30 per cent of rents. London and the south-east, rents may be four times Therefore, in total, some pretty hefty rent reductions the levels in the cheaper areas of the north of England will be necessary. I fear that there is simply no chance or, say, south Wales. If the accommodation is in the of private landlords, who now have lots of new customers private rented sector, again rents can be several times because so few younger households can afford to buy, higher than in the social, council or housing association slashing rents to accommodate the extra cap. Rather, sector. Of course, accommodation costs will be higher Amendment 99AC seeks to remove much of this problem if you have a larger family. Heaven help you if you by taking housing benefits out of the equation. have, say, three children—let alone four, as in my own family—and you are in the private rented sector and In the next set of amendments, I will look at some you live in the southern half of England. If you of the ways in which the problem might be mitigated. cannot find a job, you are probably going to have to However, this overarching amendment seeks to remove move, most likely to a cheaper area where, unfortunately, from the problem of a simple, overarching benefit cap employment prospects are likely to be even worse, or the housing costs that make such a big difference to you will face homelessness. who is and who is not affected by the new overall cap. GC 335 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 336

Baroness Hollis of Heigham: My Lords, I support Of course, we are learning with this Government that the noble Lord, Lord Best, in his amendment. There fairness has many different meanings to different people, are some very difficult inconsistencies in the Government’s but it would be hard for anyone to justify the idea that policy on housing benefit, about which we should be the current policy will be fair to children, who, as we concerned. The noble Lord talked about the fact that have heard, the Children’s Society has shown that we there is, apparently, almost a standard housing and are nine times as likely to lose out from the cap as rent element in the benefit assumptions, even though adults. Out of the 50,000 households that will be we know that rent varies from area to area and region affected by the cap, the Children’s Society estimates to region. that 210,000 will be hit, compared to 70,000 adults. I particularly want to pick up the point that he Perhaps the Minister will tell us whether he thinks this made about the discrepancies between the private policy is indeed fair to children. rented sector and the social rented sector. Some of The Bill impacts so heavily on children in part us—certainly the noble Lord, Lord Best, and I—argued because of the way that the Government have stated very strongly against a benefit cap based on that they will calculate the level of the cap. At present underoccupancy in an earlier round of amendments. it is proposed to set the benefit cap at two different It was clear from the impact analysis that one of the levels. The first, for single people without children, responses that the Government felt was appropriate will be introduced at around £350. For couples, it will for people who were in so-called overly large local be introduced whether they have children or not, authority accommodation—with no possibility of an and for single parents with children the cap will be internal move because the stock does not exist—was introduced based on net average earnings for a to tell them that they should move into the private working household with or without children, which rented sector. However, the impact analysis also recognised the Government estimate to be around £500 per week that that sector would also have increased rents, and at the point of introduction. therefore the assumption of savings that would follow from that move would not be available to the Government. We should note that that proposal creates a substantial The Government are saying that if you manage to couple penalty, which the noble Baroness, Lady Tyler, avoid your housing benefit cut by virtue of these very spoke about. Research by Family Action showed that harsh rules on underoccupancy by going into the for two lone-parent households that decided to move private rented sector, you will then come up against an in together this penalty could be as much as £9,000 a alternative cut—the benefit cap. You are between a year. Does the Minister believe that financial penalties rock and a hard place: you can stay put and have your of this type form a disincentive for families to move in cut because of the underoccupancy rules, or you can together? If so, what assessments has his department move to accommodation in the private rented sector made of the likely impacts of applying the cap in this which apparently fits, but because of the number of way on the rates of lone parenthood and cohabitation? children you have, you will be up against the benefit We note that while the universal credit has a higher cap and again you face a cut. Which strategy does the personal amount for couples than for single people Minister suggest people should follow in that situation? with children, the benefit cap has not followed the It would be helpful to know because a lot of our poorest same principle. Not only is the current calculation families will be faced with just such dilemmas. unfair towards couple families, it is also unfair in its comparison between those in and out of work. Both 4.45 pm working and non-working families were able to receive Lord McKenzie of Luton: My Lords, we are indebted child benefit and housing benefit. As the level of the to the right reverend Prelate the Bishop of Ripon and cap is based on earning levels rather than income, Leeds for leading the charge on this. Indeed, faith however, these will, as the right reverend Prelate said, communities generally have been a voice for people be excluded from consideration of the amount of who might otherwise not have been heard. The need money that working families have to live on but included for so many amendments around this proposal in the in the calculation for those out of work. Amendments Bill highlights the extent to which it is a badly conceived in the next group seek to exclude child benefit and policy. Whether or not you believe there should be an those in this group to exclude housing benefit from overall cap on benefit entitlement, what we know being included in the calculation of total income for about the approach taken to applying such a cap in the out-of-work families. Perhaps now the Minister could Bill shows it to be unfair, inconsistent and to ignore explain exactly the basis on which this method for the needs of many of the most vulnerable. calculating average family earnings was chosen. This first group of amendments relates to how the In-work benefits, including working tax credit and, benefit cap is to be calculated and shows the extent to subsequently, universal credit, will also be excluded which there are major inconsistencies in the Government’s from the calculation of the level of the cap, but not approach. The second group relates to the fact that the from the calculation of the amount of income that Government appear to have ignored the needs of out-of-work families are expected to live on. Here we many of the most vulnerable people when thinking come to another lack of clarity about the Government’s about who is to be excluded from the benefit cap. approach, as it is once again not clear what the definition The Government have argued that applying the of work is expected to be for the benefit cap when benefit cap is fair. The Secretary of State for Work and universal credit is established. Before universal credit Pensions, Iain Duncan Smith, has stated: is established, the cap will initially be applied to housing “The benefit cap will restore fairness to the taxpayer and benefit, and the note with the draft regulations that we fairness to those who do the right thing on benefits”. received states that a claimant in receipt of housing GC 337 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 338

[LORD MCKENZIE OF LUTON] “Unless housing benefit is removed from the calculation of benefit will be considered to in work if they are the cap there is a risk that low income households will be entitled to working tax credit. It has been announce displaced from large areas of the south-east, on a scale far wider that when working tax credit is abolished, there will be than that feared in response to” a corresponding exemption for people on universal the local housing allowance caps. For families already credit who are considered to be in work. The precise hit by those caps, the organisations state, criteria for this exception are still being considered. “there is a risk that they could be hit again and forced to move twice within less than a year”, Again, the thinking behind the benefit cap appears as the noble Lord, Lord Best, said. What estimates has to be out of kilter with what is behind the universal the Minister made of the additional cost to local credit. Indeed, the Government have just spent a large authorities in London and the increased costs that amount of money on ensuring that households working they are likely to face as a result of the household under 16 hours will still be able to claim support with benefit cap? childcare costs under universal credit. Yet in benefit-cap In the post-Bill world, these same local authorities terms, it seems that working less than 16 hours is not will also be delivering council tax benefit. For the really considered as work, and it is possible that this Government to be able to take council tax benefit or childcare support will be removed by the restriction on its replacement into account for the purposes of the the total amount of benefit that a family can receive. cap, they will therefore need local authorities to tell Large families may be caught in a trap whereby any them who is in receipt of the benefit and how much move into work brings with it additional childcare they are receiving. What arrangements does the Minister costs, which are then reduced by the cap to the extent expect to be in place to ensure that the benefit cap that working is no longer worth while. Does the Minister correctly takes into account the amount of support believe that a family in which someone is working for with council tax? less than 16 hours a week is a “working family”? The variation in local authority support for council tax also means that how families are affected by the Amendments 99ABAA and 99ACA in our names benefit cap will vary by local authority. Those local seek to understand why housing benefit and council authorities faced with additional costs in temporary tax benefit have been included in the benefit cap. At accommodation as a result of the cap may be tempted present, the proposals seem both unfair and unworkable. to recoup their costs by limiting the amount of support The differences in rent around the country, as we that they give with council tax—knowing that, in heard from the noble Lord, Lord Best, mean that effect, the DWP will pick up the bill by paying out families in different areas will be affected very differently more universal credit before the benefit cap is imposed. by the cap, with the most severe impact on families in Perhaps the Minister can tell us what estimates have London. As the Government’s own impact assessment been made of the potential for savings from the benefit states about the possible impacts of the cap, it is likely cap to vary, depending on the level of council tax to affect where different family types will be able to support put in place by differing local authorities. live, housing benefit may no longer cover housing costs, and some households may go into rent arrears. The Minister may say in his response that according This is a direct consequence, they acknowledge, of to the impact assessment the benefit cap is expected to government policy. Some households will be pushed hit just 50,000 households—roughly 1 per cent of the into rent arrears, which will require expense and effort out-of-work benefit caseload. Yet the impact on these by landlords and the courts to evict and seek to recoup families will be extreme, with an expected average loss rent arrears. Some households are likely to present as of £93 a week. He may also tell us that he has no homeless and may, as a result, need to move into more money and no way of recouping the expected savings expensive temporary accommodation at a cost to the from this policy of £225 million in 2013-14, and local authority. These costs are likely to fall most £270 million in 2014-15. However, it is clear that the heavily on local authorities in London. Shelter, Crisis, costs of this policy, not only in terms of family well-being Homeless Link and the National Housing Federation but for local authorities, will be high. The amendments state that although the cap has been characterised as a proposed today seek to rescue this policy and to cap on large families, high rents in London mean that ensure that it can retain some aspects of the fairness families with just two children will be subject to the that the Government say that they are aiming for. I cap in all inner London and many parts of outer hope that the Minister feels able to accept the amendments. London, including Newham, Haringey and Hounslow, Perhaps I may conclude with a few questions. The because of higher housing costs in those areas. London impact assessment, as has been discussed, sets out the Councils points out that rent levels vary widely across consequences of the benefit cap—that it will force the country. London has the highest average private people into rent arrears and cause them to be evicted—but sector rents in the country, at £220 per week, which is it has not been able to put a cost on that. Do central more than 35 per cent higher when compared to £164 Government accept that this is an increased burden on nationally. It is estimated that more than 50 per cent of local authorities which, under the Government’s policy, couples with more than three children in London are should be met on one basis or another, and has any unlikely to be able to afford their rent. further work being undertaken to quantify this? What about the costs falling on the devolved Administrations? The benefit cap will come on top of the already As to those Administrations, which benefits, if any, imposed cap on the local housing allowance, as we are included under Clause 93(9) that could be capped have heard, while Shelter, Crisis, Homeless Link and in England but not in Wales or Scotland? Perhaps the the National Housing Federation state: Minister could let us have a detailed note, not today GC 339 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 340 but by correspondence, on the local authority obligations Lord Skelmersdale: Before my noble friend the Minister to individuals and families made homeless by these responds to the questions asked by noble Lords, it provisions and the types of rules that local authorities seems to me that the key to all these questions is in have to take into account, particularly in relation to Clause 99(4)(c)—in other words, what exceptions to local connections. the application of the benefit cap are due to be made? Can the Minister also say something about the As I understand the matter, the average annual salary number of people who will be affected by this cap and for a full-time worker is currently £25,900 a year. In who live in social housing? I think that a figure of his very long speech, the noble Lord, Lord McKenzie, something like 70 per cent was discussed in the other talked about the amount of money out-of-work families place, but that may not be up to date. The point is that are expected to live on. Those were his exact words. I social housing is, generally, of lower cost than pretty find it extremely difficult to anticipate that the amount much any other housing around. If people in social of money out-of-work families are expected to live on housing are being forced into rent arrears and eviction, should be more than the average annual salary for a the only consequence will be that they will face being full-time worker. rehoused in higher-cost accommodation. Noble Lords: Oh! Baroness Hollis of Heigham: Does the noble Lord not agree that, with the new affordable rents—which are going to be 80 per cent of market rents—we could Lord Skelmersdale: Can I just finish? I accept that end up with social housing being higher than the benefit this will involve lifestyle changes. It is inevitable, is it available to somebody on the 30th or 20th percentile in not? Noble Lords have spoken about housing. There is the private rented sector? no doubt that idleness—no, idleness is an unfair word— having more time than someone in full-time work 5pm costs money. How and with what— Lord McKenzie of Luton: Indeed, I very much agree with that. In fact, one of my other questions to the Lord McKenzie of Luton: Would the noble Lord Minister is to ask what assessment has been made of approve of a lifestyle change that forced someone out the impact of the capping policy on RSL’s ability to of a council house, whatever the level of rent, into charge rents of up to 80 per cent of market value, much more expensive private sector accommodation which is the key to the housing programme that the because they had been made homeless? Is that a Government have promulgated. They have moved away lifestyle change that the noble Lord would approve of? capital spend to revenue spend. Perhaps the Minister could spell out more generally the whole evidence base for this policy that is presented to us. Baroness Hollis of Heigham: Perhaps I may add to I also ask the Minister—because part of the rationale my noble friend’s comments. Would the noble Lord is supposedly its impact on work incentive—whether, care to compare apples with apples rather than apples out of the 50,000 households expected to be affected with oranges—in other words, not compare the situation by the cap, he could split that 50,000 between those of a single man earning the average of £25,000 with who are within income support currently, those who the situation of a family who would also be entitled, are within the WRAG, those in the support group and for example, to child tax credits? If the noble Lord is those in the full conditionality regime of JSA. Does he going to make comparisons, he must in all integrity agree that the cap will effectively create a cliff edge compare like with like. that undermines a key benefit of the universal credit? Whether it is hours or income, movement to either Lord Skelmersdale: If there is a family where the side of the cut-off point could be dramatic. What sole income comes from either the man or the woman, modelling has been done to assess the consequences of then the situation is as I have described it. If, however, that? someone is working full time and someone is working Finally—for the time being—I ask the noble Lord part time, then the situation is clearly different, which for his comments on the report from the Centre for is what I suspect the noble Baroness means. Social Justice, which I think is an organisation dear to the Minister’s heart. It says, “we do share some of the criticisms about how such cuts are being Baroness Hollis of Heigham: The noble Lord is introduced in the welfare system”. incorrect. He is failing to recognise that a man in work That was a reference to child benefit. The Centre for with a family at that income level will be entitled to tax Social Justice goes on to state: credits that go into his net income. He is failing to take “But our main contention is with current plans to introduce a into account the additional benefits that come from full benefit cap on households in one fell swoop. Without the the state over and beyond wages for someone in full-time careful phasing in of such a cap … the CSJ is concerned it will work. He must compare like with like in all integrity. bring hardship to as many as 50,000 large families who will have the plug pulled from under them overnight”. As we discussed, average losses are projected to be Lord Skelmersdale: In that case, it would be useful £93 a week. The Centre for Social Justice states that, for my noble friend Lord Freud to tell us how many “it is likely to be devastating” and that the Government families with an income of £25,900 a year are on should think again urgently about their implementation benefit of any sort. I cannot imagine that he will be plan. Does the Minister accept that assessment? able to do so off the cuff but— GC 341 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 342

Baroness Lister of Burtersett: Perhaps I may intervene. Local Government to the Prime Minister, sent via I can tell the Committee off the cuff that all of them their Private Secretaries, in which the Secretary of with children will be receiving child benefit, which has State says of this proposal that there are, a 99 per cent take-up rate. They will be receiving “serious practical issues for DCLG priorities”. exactly the same amount in child benefit as people out The letter continues by stating that an additional of work, and one of the amendments in the next 20,000 people will be accepted as homeless, according group will address this matter. to the DCLG modelling. That is presumably done by those who would know what the outcome would be in Lord Skelmersdale: My Lords, as I understand it, a set of circumstances described by government. The everyone with children gets child benefit, so you can letter goes on to say that this would mean additional cut that out quite regularly because you know that it is expenditure in dealing with homelessness and for going to come under subsection (4)(c)—that is inevitable. temporary accommodation, and further that the As I said at the beginning, we will find out from my £270 million savings that the DWP budgets expects to noble friend what exceptions the Government are make would be negated by the additional expenditure currently planning in order to change what the noble elsewhere. That is not my interpretation—those are Baroness, Lady Hollis, calls apples and pears into the words I have read. There would, indeed be a net apples and apples or perhaps pears and pears. cost to the taxpayer. If these figures stand up to scrutiny—and I certainly have not seen any rebuttal of Lord German: My Lords— those figures—the cap as crafted will be at an additional cost to the taxpayer. I should like my noble friend the Noble Lords: Oh! Minister to tell me: has there been or is there a rebuttal of the figures from the Secretary of State for Communities and Local Government? Lord German: I hope that I have followed your However, that does not deal with the second policy Lordships’ normal pathway by allowing those who objective that we have to face: the unfairness of working have put their names to amendments to speak first. I families seeing benefit recipients living in homes that understand that that is what your Lordships’ House they could not themselves afford. The challenge is to wants and therefore I have done the appropriate thing. satisfy this need and at the same time avoid the If I had had an amendment in my name, I would have consequential homelessness that the Secretary of State spoken earlier. However, I am quite happy to speak for Communities and Local Government has indicated. now if your Lordships will permit me. I pay tribute to This issue has been left to fester for far too long. The the right reverend Prelate the Bishop of Ripon and previous Government placed it in the “too hot to Leeds for introducing this issue, and particularly for handle” or “too difficult” category, or put it in the his amendment relating to children. That is probably long grass pile—whatever metaphor you wish to use. the subject on which I shall focus primarily. It is also However, as is always the case with very difficult issues an issue where there are unintended consequences, on such as this, they will simply not go away without which some of this debate will focus. some form of policy intervention. I think it is worth starting with what is in the impact assessment for this proposal, which outlays the Lord Boswell of Aynho: I regret that I was unable to Government’s objectives in achieving some policy attend the earlier part of this discussion, although I ambitions and states quite clearly that it is intended to am very interested in what is being said. On the matter deliver fiscal savings. The other two matters relate to that my noble friend just raised, has he been able to dealing with the fundamental unfairness of working discern a clear position from Her Majesty’s Opposition families seeing families on benefits living in homes as to the principle and, further, as to the levels or basis which they cannot themselves afford, and the incentives of execution of policies in this area of benefit cap? to help people to work. I am not sure where they stand. I believe that a cap is an appropriate device for Lord German: I have not been able to get a clear accomplishing ambitions of this sort and later I shall position. However, I was somewhat interested to hear give some of my reasons for saying that. However, it is yesterday the Shadow Chancellor declare that his party important that whatever the cap or caps may be, they is in favour of having limits. Perhaps other noble must fit the heads on which they are placed. I do not Lords might explain what those limits are. However, believe that the cap as currently constructed does the as the Secretary of State for Work and Pensions said job or serves the purpose that the impact assessment in the House of Commons—as I believe I am now lays out. That is because there are of course some allowed to call it—the benefit cap, unintended and perverse consequences as a result of “is about those who we believe should be able to go to work but the way that it is currently being calculated and laid are not doing so”.—[Official Report, Commons, 15/6/11; col. 882.] out. As currently crafted, the cap produces a number Therefore, the purpose of this set of clauses seems to of these unintended consequences but exploring them be to try and achieve a balance of fairnesses. Very does not negate the importance of having a cap or importantly, we cannot see a rise in costly homelessness caps. The evidence demonstrates that the current approach that penalises children who are mainly in large families will need amendment in order to fulfil its intended and in high-rental areas. purposes. The cap, as proposed, would punish children for the I should like to address the issue of fiscal savings. I decisions of their parents. Children have little or no am sure that all noble Lords will have seen the letter control over the upbringing they receive. I wonder from the Secretary of State for Communities and whether the current cap, as defined here, could encourage GC 343 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 344 family breakdown as families split up in order to get highlight in this policy. It is necessary for existing their benefit entitlement under the cap level. In terms households caught by the cap to be given the time to of maintaining family structures, this surely cannot be prepare for its implementation. For example, they right. might want to seek work or negotiate a planned move The first issue to be tackled is the one mentioned by to a cheaper area. Such a transition period would the right reverend Prelate the Bishop of Ripon of allow those who are furthest from the labour market Leeds—mean and median. The Bill clearly refers to, the time to gain the necessary skills and experience to “the average weekly earnings of a working household in Great enter work. The obvious way to achieve this would be Britain net of tax and national insurance contributions”. to open up early access to the work programme, However, as many noble Lords have pointed out, there thereby ensuring that the appropriate levels of support are of course working households with children are in place very quickly. and working households without children. Working I would also like my noble friend the Minister to households with children also receive child benefit and assure me that there will be a grace period for people possibly tax credits, and other benefits as well. Therefore, who find themselves out of work through no fault of if you do the mathematics, a cap measured across their own. People need the breathing space to be able average earnings based on working families with and to find a new job and to get themselves back into without children can only be tougher on those households work. The rationale behind this Bill is making work with children and easier on those households without pay. Opening up the work programme and giving children. people time to find another job, for all those households that will be affected, should be a first and not a last 5.15 pm resort. There is also no doubt that households with In fact, I looked at the Family Resources Survey large numbers of children will be hit hardest by the figures for 2009-10, which are the most recent figures cap. These parents, often lone parents, will need time that are publicly available and are, I understand, the to work through the problems of finding affordable figures on which the cap levels have been worked out. childcare. There is a case for saying that there will be The issue is quite simple: households with children grace periods for those who are immediately caught by have a higher median income—to use the words used the cap, but that new potential claimants should be made by the Family Resources Survey—than all households, aware that the cap will be applied immediately to them by £3,380 per annum per household. In other words, if if they exceed the limits that are eventually set. you had a household with children you would be There are many ways in which the cap can be made higher than the median. Also, the range of median to fit. In the search for a balance of fairness to both incomes, by region across the whole of Great Britain, working families and children in non-working families, spans a gap of £12,000. London households have a the cap level can be constructed to meet these dual higher median income than UK households, by £4,271 ambitions much better. The Secretary of State for per household. Scottish households have a lower median Communities and Local Government has already told income than UK households, by £8,522 per household. us that the cap as constructed would produce no It is quite clear that if you are going to measure across savings to the taxpayer. I am sure that many of your the country, either by families with and without children Lordships see the merit in this balance of fairness. or by families in different parts of the country, you are This stage of the Bill gives the Government time to not looking at the actual real figures for those families. consider all these issues. Changes are needed, and I Two points follow from that. First, in order to be would want to see them. The Government have said fair to households with children, the Government that they want to balance their budget, but not on the should take separate averages for working households backs of the poor. Well, neither should it be on the with children and those without children. Not to do so backs of children. These children should not have to will unfairly benefit households without children and pay because of the actions of their parents. I know discriminate against families with children. For families that the Government are listening. I would like to with a few children, the impact will be tough; for those know when we can hear the result of their deliberations, with five, six or seven children, the burden will be because there must be a way of making the cap fit. devastating. Secondly, when measuring the average, the Government Lord Freud: My Lords, these amendments seek to should take note of working family income, including increase the amount of welfare benefits that households additional income such as child benefit, which every which are out of work will be able to receive to above working family with children—or 99 per cent of them— the level that we have said we will be introducing for will get. Not to do so would, again, shift the average the new benefit cap. Before I speak to the specific working family income against which the cap is being points that they raise, I need to make it clear that the set against families with children and, relatively, help coalition Government believe that there has to be a those families without children. Additionally, because limit on the overall levels of benefit that it is appropriate of the difference in the levels of income between one for the state to provide to those who are not working. part of the country and another, it is obviously important Indeed, I understand from the comment of Liam that some financial support is needed for those local Byrne MP in yesterday’s Observer that this is also the authority areas where private sector housing rentals position of the Opposition. Perhaps the noble Lord, are very high. Lord McKenzie, will be happy to confirm that. We also need to be able to help those people to A welfare system that provides payment at unrestricted adapt to the changes that are coming to them. It seems rates ultimately serves nobody—not those paying to me that time to adapt is a very important point to taxes to fund it and often not those it traps in welfare GC 345 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 346

[LORD FREUD] The noble Lord, Lord Best, raised a point about dependency by providing little or no incentive to move whether the cap will force families to move. It will not off benefit and into employment. It is important that necessarily mean that people need to move but they the benefits system is fair and is seen to be fair. We do will have to make the same choices about affordability not believe that it is appropriate that households getting as those in work. While some may well choose to out-of-work benefits should receive a greater income move, there are a number of ways in which they might from benefits than the average weekly net wage for be able to meet any such shortfall, such as moving into working households. employment, trying to negotiate a reduction in their We believe that the cap for lone-parent and couple rent—I accept the noble Lord’s point that in some households should be around £500 a week, which is cases that may not be possible—and meeting it from the level of median household earnings. This is the other income or capital. The Government are looking equivalent of a net salary of £26,000 per year, or a at ways of easing the transition for families and providing gross figure of £35,000 per year. There will be a cap of assistance in hard cases. We recognise that there are around £350 per week for single-adult households. households for which it would be inappropriate to Therefore, even within the limits of the cap, households restrict the amount of benefit that they can receive. We will still be able to receive significant amounts of have announced the groups that we intend to exempt financial assistance from state welfare payments—an and will discuss these groups further as we move on to amount equal to the median national wage without the next debate. going out to work. To make that explicit, it is the The noble Lord, Lord McKenzie, asked about equivalent of what more than half the households in childcare—specifically whether those working a small the country are earning. number of hours will be eligible for support for childcare The right reverend Prelate’s Amendment 99ZA and costs through the universal credit. I confirm that several of his other amendments seek to differentiate support for childcare through the universal credit will and improve the position of families with children in not be affected by the cap. the way that the cap is calculated and applied. I acknowledge that, because of in-work benefits, there Lord McKenzie of Luton: Could the noble Lord will be some working households that earn at the level clarify whether he is saying that it will not be included of the average weekly wage whose total income will in the total of benefits that is judged against the cap, exceed the level that we are setting for the cap. However, or whether it cannot be withdrawn from that component we believe that work should always pay more than of the benefit? out-of-work benefits. That is one of the driving principles of the Bill and at the heart of our welfare reform. Lord Freud: It is the former. It may be helpful if I When we introduce the cap, we intend to use a explain now that we feel that the best way to support method that looks at median earnings after tax and these households is to exempt them completely from national insurance for all working families, which will the impacts of the cap, rather than attempt, as these strike the right balance between providing support for amendments do, to alter its design to accommodate families, promoting fairness between those out of work their particular circumstances. For the groups to whom on benefits and those in work and, crucially, ensuring the cap applies, this measure creates a very strong that there are clear financial incentives to work because incentive to work. The most effective way of smoothing work is the best route out of poverty. The benefit cap transition will be to engage closely with those families provides a clear, simple message that there has to be a likely to be affected by the cap in the year before it is maximum level of financial support that claimants implemented. We are having initial discussions with can expect the state to provide. The aim of this policy local authorities and will provide them with guidance is to achieve positive effects through changed attitudes on the implications of the caps so that they can take to welfare, responsible life choices and strong work account of this when working with affected households, incentives. People must be encouraged to take especially those affected by the LHA cap. responsibility for their decisions in light of what they can afford. I accept that a case can be made for On the council tax benefit question, I confirm that making the estimate in a variety of ways. However, I we are looking at the implications of localised support should make it clear that the clause would provide us for council tax, including the implications of decisions with flexibility, should it be necessary in future to taken by the devolved Administrations. adapt how we estimate average earnings if it is felt that we are no longer achieving the correct balance. 5.30 pm I will address Amendments 99ABAA, 99AC and Baroness Hollis of Heigham: If the Minister is 99ACA together, as they are all concerned with housing- staying on this point then I will sit down, but before he related benefits. Each of these amendments would goes on to another point, could he please clarify undermine the fundamental principles underpinning further? Say that there are two households in band D the cap—that, ultimately, there must be a limit to the in two different local authorities for which the council amount of benefit that a household can receive and tax charge in one borough is £20 a week and in the that work should pay. It is not right that some families other is £30 a week. In the first borough, the localised on benefits have been able to live in homes that most benefits system effectively allows a rebate of £15 out working families could not afford. With the introduction of the £20, but in the other borough facing £30 a week of the cap, people receiving benefit will have to make there is a localised council tax benefit of only half that the same choices about their housing that people who sum, which is also £15. When it comes to calculating do not get benefit make. the universal credit, what elements of that mess will GC 347 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 348 the Minister take into account? Will he look at the Lord Freud: Putative is a good word. The figures to putative council tax that should be paid and the benefit which he was referring came from internal modelling or the net sum paid? What counts as income? What from the Department for Communities and Local counts as cost? How will this be done when everyone Government which had not been externally validated. will have a different calculation to be made locally? That analysis was out of date, having been produced in January and before we announced that we were Lord Freud: The noble Baroness is, as always, way looking at transitional arrangements for dealing with ahead of the curve. As I hope I explained, there are particularly hard cases. It is not possible to predict several things that have to happen before we come to robustly the effects of this policy on homelessness as deciding some of those issues, and we need to know we cannot anticipate the resulting behaviours of tenants the shape of any replacement for council tax or the or their landlords. We will think carefully about all impact of localising council tax, which as yet we do these matters, but the clause is drafted so that we have not. I am left with my previous observation that we all the powers we need to ensure, through regulations, will take that information into account when we have that the cap achieves its purpose in the fairest way it, but we have all the powers to do that so there is no possible. issue here regarding our not being able to do it. Picking up the question of the noble Lord, Lord McKenzie, on the devolved Administrations, under Baroness Hollis of Heigham: I understand the dilemma Clause 93(9) we will be able to reduce only payments that the Minister faces and that it is not a dilemma of that are the responsibility of the United Kingdom his making, so I have great sympathy with him. Will he Parliament. No payments that are within the legislative expect income to be the council tax benefit, or the competence of the Scottish Parliament, the National council tax benefit minus whatever element the individual Assembly for Wales or the Welsh Ministers will be may be expected to pay? In other words, are we reduced by the cap. dealing with gross or net? It could vary by £15 or £20 a week between two different households with similar Lord McKenzie of Luton: I understand that; I have income in adjacent boroughs, and that will make a lot read the clause. I was trying to understand what might of difference to their actual outgoings. be included in the items that cannot be capped in Wales and Scotland. Lord Freud: Regrettably, yes, it may or it may not. That will depend on how we reach our design by taking in the implications of localised support. I cannot Lord Freud: Such payments could, however, be design a system on the spot when we do not know taken into account when determining whether the cap several of the components, but we have the powers itself should apply and whether the non-devolved here to take that into account and we are planning to payment should be reduced. Presently, we expect the do so. cap to apply to housing benefit and ultimately to universal credit, which are the responsibility of the Lord McKenzie of Luton: Will discretionary housing UK Parliament. payments be included as benefits for these purposes? The next, or rather the last, question put by the noble Lord, Lord McKenzie, was on whether the Lord Freud: They will not be included. Moving on, Government accept that there would be an increased with regard to the couple penalty, we should not burden on local authorities as a result of this measure. assume any automatic link between the benefit cap The impact assessment recognised that there could be and family breakdown. One of the key drivers of a cost to local authorities in connection with temporary family breakdown is long-term unemployment, which accommodation. That is why we intend to work closely puts considerable pressure on vulnerable families. One with local authorities on the implementation of the of the most supportive things that we can do for these cap. families is ensure that work always pays and that the transition to work is as smooth as possible. Baroness Sherlock: Could I just press the Minister The benefit cap is intended to support our new for a moment on that? Have the Government looked universal credit, which will improve the incentive to into what other costs there might be for local authorities? work and the level of support for many low-income For example, what if families with children were forced families, especially couples with children in rented to move only to boroughs such as Haringey or Redbridge? accommodation. At the same time, we will also look Has the Minister looked into the matter and, if so, to offer additional support through Jobcentre Plus. could he tell the Committee what would happen about This would include working with local providers to the availability of school places or of other forms of support claimants with budgeting and the management support or social services, in those boroughs? Could of their housing costs, and encouraging families affected he share the information with us? to engage with more employment support, particularly the work programme. We have always made clear that Lord Freud: My Lords, the principle, as noble Lords we would look at ways of easing the transition for will know, is that the grants to particular local authorities families and providing assistance in hard cases. reflect the number of people living in those authorities. Picking up the remarks of my noble friend Lord Therefore, there is an automatic adjustment process. I German, where he read from a putative letter— accept there are some timing issues if there are sudden movements, but the DWP is talking very closely to Noble Lords: Putative? DCLG about these practical implementation matters. GC 349 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 350

[LORD FREUD] house, they could do one of three things: they could I come to an end with this question. As I understand negotiate their rent down, but he acknowledged to the it, certainly the parties in the Committee—I am not noble Lord, Lord Best, that that might not be possible; sure whether that covers all the Back-Benchers—are they could move into work, but he has just told the all signed up to the principle of the cap. We believe noble Lord, Lord McKenzie, that 90 per cent of them that the cap is the right approach. In the light of these are not required to work; or they could use savings. We comments, I hope that the right reverend Prelate and know from discussions earlier in Committee that most the other noble Lords will withdraw their amendments. people in this situation have almost no savings. What is he trying to achieve? Lord McKenzie of Luton: My Lords, I thank the Minister as ever for his detailed response but there are Lord Freud: My Lords, I am going to revert to still a few questions left unanswered. I can confirm principle here. The principle of our policy sets out that that he correctly sets out the position of the Labour the equivalent of £35,000 of earned income is a reasonable Party in respect of the cap, but we want to see something maximum amount of benefits for the state to pay that is evidence-based, properly analysed and fair to someone who is living on them. Clearly, we are aware people. This is our great concern with what is on the of concerns about the impact of a cap in some specific table at the moment. The Minister did not deal with circumstances, and the clause is drafted as it is in order the analysis of the 50,000 households to be affected by to give us the power to set the cap so that it achieves this and the extent to which they are in a group which the purpose in the fairest possible way. is subject to full work conditionality. If a big thrust of this is to look at work incentives but it then applies 5.45 pm only to a minority of those people, where does that leave the policy? Lord McKenzie of Luton: I am sorry to press the Minister but, for us, the percentage of people affected Lord Freud: I think that we have a scattering of by the cap who might be tenants of social landlords is figures in this area. It is a minority, which I think is a hugely important issue. I accept that the information around 10 per cent. If the noble Lord is after a has been updated but perhaps he can at least confirm detailed response, I ought to offer to write on that the original estimate. Does he not understand that it is matter if it would be satisfactory to him. impossible for those people to get lower-cost housing? Generally you cannot get housing that costs less than Lord McKenzie of Luton: That would certainly be social housing, so what are those people meant to do? satisfactory but even if that 10 per cent estimate is roughly right, it means that 90 per cent of the people Lord Freud: The best I can say is that according to who will be affected by this cap are under no obligation, the current published impact assessment roughly 70 per under the Government’s policies, to have full work cent of those affected are in social housing. However, conditionality. How does that square with the big the direction of travel of those figures in the new thrust of this being about work incentives? I should assessment is downwards, although I do not know by also like to follow up on another point which the how much. Minister did not touch upon: the profile of those, again within that 50,000, who would be tenants and Baroness Hollis of Heigham: I am not sure that I paying rent of one sort or another. Is it the case that a have an answer that I fully understand. The noble significant proportion of that 50,000 are tenants of Lord, Lord Best, raised the question of affordable social landlords, RSLs or councils? housing, which, as we know, is to be set at 80 per cent Baroness Lister of Burtersett: While the noble Lord of market rents. The market rent for a three or four- is conferring, can he perhaps explain to the Committee bedroomed family house not in central London but in what behavioural effects the Government are trying to some of the outer suburbs might well be £1,200 a achieve in the case of those who are not required to month or £300 a week. Social housing with an affordable seek work? rent would therefore have to be 80 per cent of that £300, which is £240 a week. Let us assume that a Lord Freud: On the figures, one reason why I am family consists of a husband and wife with two or slightly betwixt and between is that we are looking at three children. He is in work and is paying an affordable that impact assessment, which is now somewhat dated, rent, then his job collapses and he goes on to UC. He with a view to updating it and providing fresher figures then finds that £240 a week has to come out of his when we can. That work is in progress and we are benefit and he is up against the cap. Precisely what is getting some more detail. All that I can do is to offer he going to do? Obviously he is going to search for to provide some of that extra detail as soon as we get work but what does he do in the meanwhile? This is an it. I am not completely sure yet of its timetable but affordable rent, being 80 per cent of a market rent, yet there is ongoing work there, which is why I am slightly this is social housing, so there is nowhere else for him hazy about exactly what some of these figures will end to go. What does he do? As my noble friend said, the up being, for which I apologise. probability is that he has very modest savings, otherwise he would not be in that sector in the first place, and he Baroness Sherlock: Before we leave this point, my has children in school. It may well be that he cannot noble friend Lady Lister just asked what is for me the reasonably expect to get a job within the next six crucial question: what behavioural impact does the months, however frantically he tries, and he is then up Minister want this to have? He told the Committee against a benefit cap while in social housing with earlier that if people did not want to be forced to move children. What does he do? 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Lord Freud: My Lords, I have made it clear how we of analysis. I do not think that there is any real ease the transition for families, and that is one of the movement there but, as we have homed in and obtained things that we are looking at. more information, that is our understanding. On his second question, the interesting reality is Baroness Hollis of Heigham: Can the Minister at that childless couples have higher earnings than couples least help the Committee by indicating the shape—I with kids. Perversely, therefore, having a differentiation shall not try to hold him to the precise details—of that based on what actually happens would have the opposite transitional arrangement? Will it be over three years, effect to the one that I imagine the right reverend or alternatively will extra resources be available through Prelate wants. That is the point. It is not a useful the discretionary housing allowance via the DCLG in approach because it would do exactly the opposite. order to allow local authorities to smooth that transitional arrangement? Would there be exceptions for particular payments, such as higher housing rent, because we are Lord McKenzie of Luton: My Lords, is that right? It talking about social housing and affordable rents? might be right if you are looking at earnings, but if Alternatively, would the Minister suggest to the DCLG you are looking at income, which was part of the that that rent could go from being affordable to the proposition, it might not be the case. average social rent, even though that would then inhibit the ability to carry on with new building? I can think Lord Freud: I very elegantly have a wonderful piece of three or four ways of doing it but what does the of paper to hand. On the median, it works for total noble Lord have in mind? income—all gross and net household income—and it works for the mean. I can give noble Lords all the Lord Freud: Regrettably, I am not in a position to figures but it would bore them. be drawn. All I can say is that we are looking at how we can ease the position for families and how we can Baroness Hollis of Heigham: If the Minister could provide assistance for hard cases. I know that the circulate those figures to all Members of the Committee, noble Baroness has already created four different scenarios it would be very useful. and ways of doing it, for which we are grateful, but that is all I can say at this point. Lord Freud: I am sure that noble Lords probably Baroness Hollis of Heigham: But it is a problem of have them at their fingertips anyway. They are meant the Government’s own creation. This is the difficulty— to be accessible figures, but if noble Lords would like there is no evidence that this will have any longer-term some help and for me to use up another Scandinavian savings cost. forest, I will circulate them. I will put them in an e-mail instead. That would be cheaper. Lord Freud: I should like to engage in a detailed debate on this, but all I can tell noble Lords at this Lord McKenzie of Luton: I am sorry to come back stage is that we are looking at how we ease the transition to this but there are still some unanswered questions. I for families, and we are looking at providing assistance do not think the noble Lord dealt with the definition in hard cases. of “in-work” and when the cap will apply. Is the threshold set at 16 hours, as it is for working tax credit The Lord Bishop of Ripon and Leeds: Ihavetwo at the moment? How will that change from April? points. First, do I understand that now, in contrast to I think for couples there is a joint requirement for the research done some months ago, a far lower proportion 24 hours a week, rather than 16. How will that all of those affected by the cap are in social housing? If work? so, where have they gone—the people who were in social housing a few months ago but who no longer are? Lord Freud: That is a matter that we will look at Going back to the original amendment that we are, very closely. We want to encourage work and one of in a way, discussing, my second, unconnected, question the main aspects of universal credit is to encourage is that I have still not quite understood why it is smaller amounts of work. We will look at that issue inappropriate, when looking at the cap, to look at very precisely. families with children separately from couples. We have the distinction between singles and couples. Lord McKenzie of Luton: In which case, I have one Surely, in any discussion of how a cap should operate, final question. In relation to homelessness, I asked children are fundamental and families with children whether we might have a detailed note setting out all are fundamentally different from those who do not the obligations of local authorities when people present have children. Should that not somewhere come into as homeless or when they are evicted. the way in which the cap, and therefore this clause, are established? Lord Freud: I will be happy to do that. Lord Northbourne: I support that view. Baroness Hollis of Heigham: Will the Minister ensure Lord Freud: As to the first question asked by the that his colleagues in the DCLG do not give guidance right reverend Prelate on where all the people in social to local authorities that anyone unable to pay their housing have gone, the situation is, to be honest, rent by virtue of these changes is therefore deemed probably nothing more than a result of greater depth intentionally homeless? That is absolutely key. GC 353 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 354

Lord Freud: As I said, we are working very closely The Lord Bishop of Ripon and Leeds: My Lords, with the DCLG on the implementation of the benefit the amendment seeks to remove child benefit from cap. We will work through those issues in detail. the calculation of benefit income when determining the cap. We had a bit of discussion about that in the Baroness Hollis of Heigham: When may we know previous grouping. The argument for this is really the answer to that point? Conventionally, under quite straightforward: child benefit is a non-means-tested homelessness legislation, anyone who loses their home benefit paid to all families, working or non-working. by virtue of a failure to pay their rent is regarded as It is not at all an employment benefit and has no effect intentionally homeless. If they have children, they may on whether a person would be better off in work than get some help on grounds of vulnerability and the out of work. It is far better to regard it as a grant to local authority may temporarily rehouse them. However, children. It represents the most effective way in which in future the local authority has only to give them we as a society invest in the next generation, or the guidance into the private rented sector, where they will next but one. be stuck. It is not a casual question. Unless we redefine It is manifestly unfair if child benefit is to be the homelessness legislation from 1972 onwards, these counted as income for non-working families but not families will be crucified. counted as income for working families, because there we have talked about earnings. I hope that we can Lord Freud: It is for local authorities to make simply remove it from the calculations. If we do, that decisions on individual homelessness applications, as will release perhaps another 20,000 children from poverty. they do now. Under homelessness legislation, if the That discussion has taken place already. We have only reason for the person’s homelessness is a reduction heard that 99 per cent of families with children claim in benefit that is outside their control, they should not this benefit, but I do not see what that has to do with be considered intentionally homeless by their local the present discussions or with any of the Government’s authority. purposes in establishing the cap. If I am wrong about that, no doubt the Minister will tell me, as well as telling me what effect it can have. The Lord Bishop of Ripon and Leeds: Perhaps I may just thank everyone for all the contributions that have The group also includes Amendment 99C, a been made. I also thank the Minister for his engagement compendium amendment to which the noble Baronesses, with the collection of questions that have been asked Lady Taylor and Lady Hayter, and the noble Lord, of him over the past half-hour or so. I retain considerable Lord McKenzie, have added their names. It seeks to disappointment in terms of moving forward in this put a number of exemptions in the Bill so that they are area. There is clearly considerable disquiet among not subject to the whims of future Secretaries of State. your Lordships over how this is developing. We have As I understand it, there has been movement by the not yet pursued far enough issues such as the couple Government to exempt people in three groups: those penalty, which the noble Baroness, Lady Tyler, spoke in work, those with disability living allowance and about. We have been exploring homelessness but have widows. What I seek here is simply to get those exemptions not got all that far. It might grow as a result of the cap. into the Bill, and others will speak about them in The noble Lord, Lord German, and others made particular. points about children. I do not detect any likelihood Those who have recently left employment—one of that the amendment will be accepted unanimously by the other groups mentioned—are vulnerable, particularly this Committee but it is with considerable reluctance if their leaving employment is the result of developing that I withdraw it. I know that a number of these a disability, and earlier we had a discussion about just debates will need to go on behind the scenes if we are how the transitional arrangements work. They are still not to have the debate all over again on Report. I beg going to have to wait for six months before qualifying leave to withdraw the amendment. for personal independence payments. To go back to something that the noble Lord, Lord German, was Amendment 99ZA withdrawn. saying, giving people time to find another job is likely to help to keep them in touch with the labour market. Much the same goes for those who are unable to make Lord De Mauley: My Lords, may I suggest that this work pay, which is particularly the case where childcare would be an appropriate moment to take a 10-minute costs are very high. A small but very vulnerable group break? of families will be unable to escape poverty by moving into work but they will face poverty through the cuts if 5.59 pm they remain unemployed.

Sitting suspended. The exemption of lone parents with children under five is particularly important. The current system and all our arguments and discussions recognise that those 6.10 pm additional commitments make it hard for them to move into work and, indeed, recognise that they are Amendment 99ZB not expected to seek work, which also goes back to the Government’s purpose in having the cap. If they are Moved by The Lord Bishop of Ripon and Leeds not expected to seek work—and I absolutely agree 99ZB: Clause 93, page 62, line 19, after “benefits,” insert “with with the argument that lone parents with children the exclusion of child benefit” aged under five should not be expected to seek work—it GC 355 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 356 seems unreasonable to place a cap on the benefits that The justification put forward by Ministers is another they should receive when we acknowledge that they example of how the Bill is designed to try to influence should not be put under pressure to seek work. behaviour and send out signals—so many signals that we should nickname this the “semaphore Bill”. Once 6.15 pm again, the spectre of welfare dependency raises its However, perhaps my greatest concern of all in this head and people are to be incentivised to find work, group relates to carers, particularly kin carers. Other although I thought that the main point of universal noble Lords will speak to their amendments, seeking credit was to do just this, insofar as incentives are to protect those who take on this very demanding role. inadequate at present. It is often true that family and friends or kinship We have already heard how the incentives argument carers live in large households as a result of taking on is not that convincing. As my noble friend Lord McKenzie children whose parents have died. They are in particular has already observed, some groups affected by the cap difficulty and often face a particularly tragic situation. are not expected to seek work—the right reverend Some 60 per cent of those who take on other people’s Prelate the Bishop of Ripon and Leeds made this children in this way, as kin carers, give up jobs in order point—such as carers and lone parents of children to do so. They are often advised to do so. To impose a aged under five. I was disappointed that the Minister cap in those circumstances seems entirely inappropriate. could not explain to the Committee what behavioural These amendments continue to explore that protection effects the Government were trying to achieve in the of children to which we all aspire and which we have case of those who are not expected to seek work. I been discussing for the past hour or so. I hope that we hope that, having had more time to think about this, in this Committee can do something to achieve this. I he might be able to do so when he speaks. beg to move. Could the Minister also address the issue that I raised at the last Sitting, which the right reverend Baroness Lister of Burtersett: My Lords, I rise to Prelate has also raised, about impact of the six-month speak in support of Amendment 99AD and to oppose qualifying period for PIP? How many are likely to be the questions that Clauses 93 and 94 stand part of the affected, and would it be possible to backdate the Bill. I want to make clear that I also support other money that they lose as a result of the cap, when they amendments, both the more ambitious and the more then become eligible? It should also be noted that, to limited ones. I see Amendment 99AD as something of the extent that fewer people qualify for PIP than for a bottom line, particularly its exclusion of child benefit DLA, so will fewer disabled people be exempt from from the cap. However, first I shall say a few words the cap. about why Clause 93 should not stand part of the Bill. As has already been noted, the cap will also apply Unlike some other noble Lords who have spoken, I to some who are in paid work. Again, I was disappointed do not support the principle of the benefit cap. Despite that the Minister could not explain at this stage how it ministerial invocations of fairness, it is unfair. It is planned to determine at what point those in paid deliberately reduces the amount of money that some work will be free of the cap under universal credit. It is families will receive to well below the amount that a very important question. As was pointed out in Parliament has determined is the minimum that is CPAG’s Welfare Rights Bulletin, the danger is that a required to meet their needs—a minimum that is itself threshold is created that people in low-paid work well below minimum income standards, as we discussed could frequently cross, resulting in wild fluctuations in earlier in our proceedings. We have heard that the their entitlement and complex better-off calculations. average loss will be £93. Nearly half of the families A small drop in earnings over which the claimant affected will lose between £50 and £150, and 15 per might have no control could leave to a massive drop in cent will lose more than £150. Black and minority income if the cap is triggered. ethnic families will be disproportionately affected. It simply is not good enough for Ministers to say, as they Ferret Information Systems comments that the cap have, that the state can no longer afford to pay this will create just the kind of cliff edge that universal minimum. We are a rich society despite current economic credit was intended to remove. It gives an example of difficulties. What the state can afford to pay is a matter how a difference of 1p an hour for someone working of political choice. 24 hours at the minimum wage level could generate a In applying such a cap, the Government are arguably net income increase or loss of £98.23. This is surely reducing income to below what constitute decency nonsensical. The greater security of income promised levels in a modern, industrialised society—below the with universal credit would be undermined if people level required to ensure human dignity. Therefore, it on very low earnings are living in constant fear of the does not surprise me that legal advice received by the cap being triggered. Equality and Human Rights Commission stated that, I am also unclear as to how work incentives are “there must be a real concern … that the cap on benefits, which promoted if, as predicted, one effect of the cap is will disproportionately impact on larger families”, that families have to move house to find cheaper will result in a violation of the Human Rights Act. accommodation, which we have already talked about Some of the likely consequences have already been and could be difficult, given that a majority of those spelt out by other noble Lords. My noble friend Lord affected—although perhaps not quite as big a majority McKenzie has already cited the Centre for Social as originally thought—will be in social housing. Is Justice, which warned that the impact was “likely to be there not a danger that in search of affordable devastating” for some families, so how can this be accommodation they will end up moving to an area justified? where job opportunities are even poorer? GC 357 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 358

[BARONESS LISTER OF BURTERSETT] I apologise for repeating it, but it seems like the At Second Reading and in response to previous message needs repeating because it has not been heard amendments, the Minister argued that: loud and clear by some members of the Committee—that one important reason why the playing field is far from “The introduction of a benefit cap will mean that households on out-of-work benefits will have to make the same decisions as level is that child credit and child tax credit received by families in work with regard to the lives they lead and the areas families of median earnings are not included in the they can live in”.—[Official Report, 13/9/11; col. 739.] income level at which the cap is set, but are included in the out-of-work income to be taken into account. I It is still unclear to me, having listened to everything could not believe it at first when I discovered that child that the Minister said earlier and the debate so far, benefit is being treated in this way, because it is so what decisions people are supposed to take if they patently unjust. As I said earlier, take-up of child cannot find work or affordable housing. The answer is benefit is virtually 100 per cent, so there is not an issue that they simply have to live below the level set by as to whether families with median earnings are or are Parliament. In response to a Written Answer about not getting it. They are getting exactly the same amount the implications for homelessness, the Minister said as families out of work: it just depends on the size of that if they became at risk of homelessness then our the family. old friend, the loaves and fishes of the discretionary housing payment, would come to the rescue. According to a Written Answer, the median level of For lone parents in particular, the loss of social child benefit received by families with median earnings networks that can help with childcare could serve to is estimated to be £33.70 a week. If the child benefit make it harder for them to enter into paid work if they of out-of-work families were ignored when applying have to move area. The loss of such networks surely the cap—and this is also the purpose of the amendment goes against the aspirations of the big society. Moreover, moved by the right reverend prelate the Bishop of as the noble Baroness, Lady Tyler of Enfield, and my Ripon and Leeds—it would reduce the numbers affected noble friend Lord McKenzie have already said, the by 40 to 50 per cent. This would reduce the savings cap will create a significant new couple penalty. So it is from £270 million to £140 million in 2014-15. Therefore, difficult to square the cap with key elements of the nearly half of the savings from the cap are being made Government’s own philosophy. on the basis of a blatant piece of unfairness which drives a coach and horses through the Government’s The Minister of State told the Public Bill Committee claim to be creating a level playing field between those in the other place that the clause is not primarily a in and out of work. Given that the Minister of State “cost-saving measure”. Instead, he claimed that, has said that it is not primarily a cost-saving measure, I hope that the Minister will not use the cost as an “fundamentally it is about creating a more credible welfare system … We do not believe that it is reasonable or fair that households argument for rejecting the amendment. getting out-of-work benefits should receive a greater income from benefits than the average weekly net wage for working households. The amendment would also exclude childcare costs. That is the core principle that we are seeking to put in place If I understood the Minister correctly, he has told the here”.—[Official Report, Commons, Welfare Reform Bill Committee, Committee that those costs will not be treated as 17/5/11; col. 985.] income for someone out of work. That is correct, so We have heard that again from the Minister this evening. we have that again clearly on the record. I very much Is it not the case that the Government themselves are welcome that, because previously it had been suggested undermining the credibility of the so-called welfare that they would be. That is an important step; it would system by sending out a signal that people on average have been nonsensical had it been, so perhaps we have wages are receiving significantly less money than some achieved something here today. people on benefits, when the proposition is based on the false assumption that people on average—or, more I oppose the cap in principle, and would support accurately, median—wages are not themselves receiving more ambitious amendments than the one in my name welfare in various forms? That this is the case is and the names of the noble Lords, Lord Kirkwood of demonstrated by parliamentary Answers, which show Kirkhope and Lord Adebowale. As I said, I particularly that, if the benefits and tax credits received by working see the exclusion of child benefit from the income families on median earnings were taken into account, taken into account in applying the cap as a bottom hardly any of them would be worse off than out-of-work line below which the Government’s claim to fairness is families. The Government could do much more for the so patently unfounded that they should be embarrassed credibility of the system if it sent out more accurate even to try to justify its inclusion. In the Public Bill signals. Committee in the other place, the Minister of State had no real answer to this and kept evading the This brings me to Amendment 99AD, which is question of child benefit received by working families. about protecting children, who are the main victims of I would therefore be grateful in the Minister could the cap, as other noble Lords have underlined. They explain to your Lordships how in fact the Government are victims who cannot respond to the Bill’s signals. I justifies the inclusion of child benefit in the cap when am grateful to Barnardo’s for circulating a briefing in it is not included in the comparator incomes of working support of the amendment. It is designed in particular families. Better still—given that, according to the Minister to stop the cap penalising larger families—thereby of State, the cap is not primarily a cost-saving measure failing the Prime Minister’s family test—and to create but purports to be about fairness, and given the strength the level playing field that the Minister of State claimed of the opposition which we have already heard—I for the cap in the other place. We have already heard—and hope the Government will think again. GC 359 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 360

6.30 pm scheme tend to be older—50.9 per cent of expenditure is on people who are over pension age—and will Baroness Donaghy: My Lords, Amendment 99ZC is therefore count for significantly less than the 0.58 per by way of an interval in the big picture, but I hope that cent. It is unlikely that counting IIDB towards the noble Lords will not go out and get an ice-cream while benefit cap would save as much as £1 million a year, I am speaking. but I appreciate that I am really talking about an issue This is a probing amendment to ensure that industrial of principle here and not just expenditure. injuries disablement benefit is not counted towards the The Government’s equality impact assessment also benefit cap. At present, industrial injuries will be indicated that a further purpose is to improve working among the benefits that count towards total benefit incentives for those on benefits. It must be emphasised income for benefit cap purposes. The Government that IIDB does not create a work disincentive. Half of have indicated that the constant attendance allowance all spending on it is accounted for by pensioners, and under the industrial injuries scheme will be exempted working-age claimants can continue to receive the in the same way as disability living allowance, and I benefit if they stay in work or find work. shall say a little more about constant attendance allowance later. Ministers have given great prominence to the argument that it is not fair for a workless family to receive more Benefits under the industrial injuries scheme are in benefits than an average family would receive in different in character from the rest of the benefits wages. In last year’s spending review, the Treasury system. Whereas other benefits are designed to prevent listed the benefit cap under the heading of “Fairness or ameliorate poverty, to help people to cope with … Reducing the deficit fairly while protecting the extra costs or to substitute for lost income, the industrial vulnerable”. However, a working family, one of whose injuries scheme is a system of no-fault compensation. members has suffered an industrial disease or injury, In November last year, the Industrial Injuries Advisory would not be in a worse position than a workless Council wrote to the Minister to argue that IIDB family. They would have the same right to IIDB. should not count towards the cap for just this reason. The Government have not said a great deal about Employers and unions both support the industrial why it should count towards the cap. The Minister has injuries scheme, which eliminates the need for an made a distinction between recipients of disability adversarial approach to compensating for a large number living allowance and IIDB claimants. People do not of injuries and diseases that are agreed to be a risk to get industrial injuries benefit to meet extra costs, which employment. Damages won through civil litigation can be dealt with by an award of DLA if necessary, are a closer parallel to the industrial injuries scheme and the Minister has used this difference to justify than disability or other benefits. Including damages excluding DLA but not IIDB. This argument is not a awarded by the courts in the total that is subject to the sufficient rebuttal because it fails to address the point cap would plainly be unfair, but industrial injuries that I made about the nature of the industrial injuries disablement benefit is also a form of compensation scheme. Furthermore, if having extra costs were to be and including it is just as unfair. Payments under the the reason for excluding the benefit, how would we vaccine damages payment scheme are not to count explain the decision to exclude retirement pension and towards the cap but they, too, are a form of compensation. pension credit? On 10 November in this Committee, my noble Informally, officials sometimes argue that excluding friend Lady Hayter took the opportunity to raise a IIDB would open the floodgates for a long list of number of questions and she put the issue very well. special cases, which would complicate the benefit cap. She said, I hope that tidiness is never the deciding factor in “it seems that to include these payments, which are compensation matters like this and that simplicity is not a sufficient for injuries at work, within a calculation of the total support that reason for proceeding with an unfair change. a family could receive from the state would be somewhat unfair. It would mean that for a young person living with their family, any The Government’s decision to exclude constant such support would be taken away from the total family entitlement, attendance allowance is of course welcome. It is which would effectively turn the benefit into a means-tested worth remembering, however, that this is one of the benefit”. industrial injury scheme benefits abolished by the The Minister replied: previous Conservative Government and there are now “We can discuss that entire area when we look at the whole comparatively few claimants. In fact, the cost of the range of benefits”. —[Official Report, 10/11/11; col.112.] constant attendance allowance is just 1 per cent Well, my Lords, the time is now. of the industrial injuries scheme. I hope that the Government will agree with me that the industrial The Government have put forward three reasons injuries disablement benefit should not be counted for introducing the benefit cap. All these reasons are towards the benefit cap. weak when one looks at the industrial injuries disablement benefit. The Government have said that they are introducing the benefit cap partly to reduce benefit Baroness Hollins: My Lords, Amendment 99A calls expenditure but IIDB accounts for a very small amount for a new exemption from the benefit cap for households of social security expenditure. It stood at 0.58 per cent in which a resident claims carers’ allowance and for of DWP annually managed expenditure in 2010-11. carers in receipt of the additional amount in universal However, IIDB will account for an even smaller proportion credit for those with caring responsibilities. I am grateful of benefit cap savings, most of which will affect large, to my noble friend Lady Meacher, the noble Baroness, younger families, especially those in receipt of housing Lady Hayter, and the noble Lord, Lord McKenzie, benefit. Claimants of benefits from the industrial injuries who have added their names to the amendment. GC 361 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 362

[BARONESS HOLLINS] supporting him full-time, the father’s benefits, including Why is it wrong to cap carers’ benefits? Carers UK child benefit and housing benefit, would be capped and the Disability Benefits Consortium, representing because his adult son would not be considered to be in more than 50 disability charities, are concerned that, the same benefits household as his father, despite as it stands, a cap could be devastating for some carers. living with him. The financial impact of the cap could It would also send out an extremely negative message be significant. With local housing allowance and council about how the Government value family care and risk tax benefit totalling £305.22, income support £42.95, the perverse outcomes of disincentivising family care child tax credit £108.75, child benefit £33.70 and carers’ and potentially making caring for older or disabled allowance £55.55, he would be in receipt of £546.17 a relatives financially untenable for some families. week. A cap of the level announced by the Government Carers make a huge contribution to society, estimated would result in a loss of £46 a week or £184 a month. this year by Carers UK and the University of Leeds to Such a drop in income could force carers such as be £119 billion each year. From the Minister’s response this father to stop caring and instead turn to social to an earlier amendment, we know how much the services to provide full-time care for his son because he Government value that contribution. However, that feels that he has no choice but to look for paid work only emphasises the fundamental unfairness of including rather than be a full time carer—a distressing situation carers’ allowance within this cap. This is perhaps best for the family and ultimately far more costly to the illustrated by the justification given by the Secretary of state. According to Carers UK, to which I am grateful State for Work and Pensions when he introduced the to for providing me with an excellent briefing for Bill in the Commons, stating that the benefit cap was, today, carers giving up work in order to care lose an “a matter of fairness, so that those who are working hard and average of £11,000 a year. paying their taxes do not feel that someone else will benefit more This kind of situation is neither logical nor fair. by not playing a full part in society”.—[Official Report, Commons, The best way to ensure that the carer’s contribution is 9/3/11; col. 922.] better recognised and rewarded, and that carers are If this cap is designed to be fair to individuals who are not penalised for taking on caring responsibilities, working hard and playing a full part in society, then it would be to give carers exemption from this cap. I ask cannot be right that it applies to carers. the Minister: why is carers’ allowance included in the In order to receive their benefit, carers must be benefit cap when the Government’s intention is to caring for a minimum of 35 hours a week—the equivalent protect those affected by disability? Or is it simply a of a full working week. Many care around the clock, mistake? with NHS Information Centre figures showing that a fifth of carers are caring for more than 50 hours a week. It would not be possible to say that these individuals 6.45 pm are not working hard. Nor could it be said that they Lord Best: My Lords, I am speaking to Amendments are not contributing to society, as they represent so 99AA, 99AB and 99D. We now return to housing many of the social values that the Government are matters. I have already made the point that it is high working to promote in this Bill and beyond—strong housing costs that so often will push families over the families and communities, and taking personal cap. High housing costs do not of course equate to responsibility. Indeed, such carers are not required to housing quality. A £350-a-week two-bedroom flat in seek work and conditionality does not apply to them. outer London can be to far lower standards than an However, there are some inconsistencies in the existing £85-a-week three-bedroom council house with a garden proposals. While the Government have stated that the in the north-east, yet the outer London family in exemption for DLA protects families affected by disability, Newham has only £150 left within the £500 cap after this is not the case for all such families. A lot depends paying their rent while the well housed family in the on the definition of the word “household”. The DLA north-east has £415 left to meet other needs. I have exemption protects households that include a DLA argued for the housing cost element in the benefits claimant, but what is considered to be a household in received to be taken out of the equation to create universal credit includes children under 18 and partners greater fairness. That change would render several of but not adult children or other adult relatives. Therefore, my amendments in this group redundant, but I turn to while carers looking after disabled partners and disabled them none the less. young children would be exempt from the cap, those Amendment 99A calls for a period of grace for caring for adult disabled children or elderly parents or those affected by the new cap during which the claimant disabled siblings would not be exempt. Families caring would remain entitled to full benefits. Only after this for disabled children under 18 would therefore be period—my amendment suggests 26 weeks—would exempt from the cap, but those caring for adult disabled the total benefit cap be applied. Without this concession, children would be subject to it because the DLA many families in private rented accommodation in the claimant, as an adult, would no longer be considered south of England will see the benefits for their housing to live in the same benefits household, even if they costs cut, forcing them to look immediately for alternative were living together. housing elsewhere. Current housing benefit regulations Let me give an example of a family who would be allow for a 13-week period of grace from restrictions affected. Imagine a single father with three sons, the on the rent that they have been paying independently eldest of whom is 19, has learning disabilities and a up to that point, so the claimant who could afford to variety of other health conditions. The father has two pay the rent until they lost their job will get that rent other children of school age. While his eldest son covered in full for 13 weeks even if it breaches the receives DLA and he himself gets carers’ allowance for maximum levels of local housing allowance. A longer GC 363 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 364 period is allowed for households that have suffered benefits that sees them through a bad patch, rather bereavement. For them there is a 52-week period of than forcing themselves into a crisis—into homelessness grace. It seems entirely right that a proper safety net and, in all likelihood, into long-term worklessness. should be available to a family that faces a sudden change in circumstance to give them a chance to get My second amendment in this group, Amendment back on their feet. 99AB, seeks to exempt homeless households in temporary accommodation from the overall benefit cap. Again, It is generally agreed that an important function of this would be redundant if my earlier amendment to the benefits system is to provide such a full safety net exempt all housing benefit from the cap was accepted. for those suddenly hit by redundancy or relationship It is therefore a fallback amendment. It seems anomalous breakdown. If, from the very day that such a drastic for those placed by their local authority in temporary change of circumstances has struck, the family has a accommodation, quite often outside their own borough substantial shortfall to find between their benefit for and already in the cheapest neighbourhoods, to be housing costs and the rent that they must pay, then a penalised for paying too much for their housing. Such major setback becomes a real crisis. How much better households have no choice over the accommodation to give the household some weeks to secure a new job, that they occupy and therefore cannot seek to reduce or indeed to move home without having to present their housing costs or cut their cloth to suit their themselves as homeless. How much more cost-effective means. Local authorities are already restricted in their to give people the opportunity to get back into work choice of where they can put those deemed to be rather than having to move the family to another area homeless by restrictions on the housing benefit payable where rents are lower and jobs likely to be scarcer, all for temporary accommodation. The housing benefit the while accumulating rent arrears and seeing the subsidy will not cover more than the local housing chances of a settled life with a proper job taken from allowance, less 10 per cent, using the previous marker them. of the 50th percentile. Councils then charge an If they are going to have to move to a cheaper part administrative fee of £40 a week in London or £60 of the country, at least they must have time to make all elsewhere, which is added to the household’s housing those arrangements and, hopefully, secure employment benefit claim. The total rent payable in relation to the in the new place. We all know that the cap is intended homeless household will be higher for temporary to reinforce the message that work pays and a life on accommodation of this kind and therefore, alongside benefits is not sustainable, but it will affect newly the family’s ordinary benefits, is more likely to take unemployed households that have a strong desire to them over the proposed total housing benefit cap. work but have lost their jobs because of factors outside their control. Rather than penalise people who are An additional complication is that at present the doing all they can to make a swift return to employment, Government’s Homelessness Code of Guidance for Local the arrangements should see people through a difficult Authorities prevents councils from arguing that a homeless period so that they can re-establish themselves for the household should use other benefits to top up the long term. payment for their rent. This is an understandable restriction, since the state believes that the income of Where relationship breakdown and the loss or desertion families for their subsistence living should not be of the main breadwinner is the trigger for the benefit reduced below a minimum level. This means, perfectly entitlement that is now to be capped—the DWP’s reasonably, that councils securing accommodation in impact assessment shows that more than half the the private rented sector for workless homeless families households affected by the cap are likely to be headed cannot turn to the families themselves to meet any by lone parents—a precipitous application of the new part of the rental shortfall caused by the extra cap. limit seems likely to lead simply to homelessness. This compounds the harm and distress experienced by the Already inner London authorities such as Westminster children. Surely it makes more sense to allow those City Council are exporting homeless households to lone parents to look for a suitable job following separation, outer London boroughs. They will have to work within make arrangements for childcare—so often relying on tougher constraints in future, but it is hard to see the grandparents, who themselves will need to make new sense of placing an overall benefit cap that reduces the arrangements—and get back on their feet in a sensible benefit for housing costs for these homeless families. way, and to ensure that for the children the loss of a They are already being moved away from support parent is not followed by the loss of a home. networks—friends, grandparents et cetera—and penalising At the same time, a breathing space allows those the family by cutting their income to the point when responsible for paying benefits to untangle the they cannot afford the accommodation to which they complexities, calculate entitlements in relation to tax have been sent would seem to place both them and the credits and other exemptions and handle the council that sent them in an impossible position. administration. With local authorities continuing to look after housing benefit during the interim period Is the idea that the local authority, having accepted before the universal credit arrives—at least six months— responsibility for the homeless household, will be expected there is already enough opportunity for delay in handling to support the family financially to stay in the temporary these claims. The period of grace would help those accommodation to which they have been sent? While paying the benefits as well as those receiving them. I such an arrangement would enable the family to remain am confident that the Minister will be able to respond there, the extra costs falling on the local authority positively on this one, as it seems in no one’s interests would seem a very unfair transfer from the DWP to to deny families the breathing space in receiving the local councils. Or is the intention that the local authority GC 365 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 366

[LORD BEST] the imposition of the additional total benefit cap must make arrangements to ship homeless families seems likely to have grave consequences. Removal of still further away, with all the logistical problems that the housing component would address a good number implies? of the unforeseen circumstances and represent a triumph Wherever families are sent, the costs of temporary of good sense. I look forward to the Minister’s response accommodation are going to be high in relation to to my amendments. mainstream private renting and considerably more than social housing rents. Those placed in bed and Baroness Tyler of Enfield: My Lords, I add my breakfast accommodation cost an average of £325 per support to the two amendments in this group to which week back in 2008-09 across the whole of England, so I have added my name. I shall speak to Amendment moving people long distances may not achieve very 99AAA, which stands in my name, on the issue of great savings in these particular cases. It will certainly kinship carers. make it more difficult for people to find work in areas where they do not have local knowledge and contacts. Amendment 99ZB, already moved very cogently by The move is bound to disrupt children’s education; the right reverend Prelate, would remove child benefit Shelter has found that 43 per cent of parents in from the calculation of the cap. There is much that I temporary accommodation said that their children should like to say on this but in her recent contribution had missed some school and one in 10 had children the noble Baroness, Lady Lister of Burtersett, made a who had lost out in a school place entirely. Moreover, very powerful case about the unfairness of including because the maximum level does not rise according to child benefit in the calculation of the cap. Frankly, the number of children in the family, as we have heard there is little that I can add other than to say that if the so clearly today, it is not clear that there is anywhere in Government were to accede to this amendment, there the country to which the local authority could send a would be not just huge applause but real consensus homeless family if it comprises several children. I around this Table that children should be protected, know that the Government are planning changes to whatever happens to adults. Whatever is thought—and temporary accommodation funding for 2013. I hope probably not shared—about the perceived shortcomings that this presents an opportunity to overcome the of adults, children should always be protected. incompatibility between the high cost of procuring Amendment 99C deals with the exemptions of temporary accommodation and the new overall benefit particular groups from the benefit cap. This is the cap. Perhaps the Minister could reassure us of the subject of Amendment 99AAA in my name regarding position on that. kinship carers. I will be very brief but I want to say a Amendment 99D in my name seeks to exempt few words about why kinship carers are so important. people living in supported or sheltered housing from A kinship carer might, for example, be an uncle, aunt the extra benefit cap. This seems a fairly obvious or grandparent who takes in children from other members exclusion when one thinks about it. Specialist housing of the family to avoid that child going into council for individuals and couples with support needs, usually care, with all the trauma and expense to the state that provided by housing associations or charities, is clearly that creates. The purpose of this amendment, which is much more expensive than plain housing with no essentially a probing amendment, is to see whether the extras. Service charges will push up the total that is Government indeed intend to exempt family and friend eligible for housing benefit. However, this housing has carers from the cap. The architecture is already there; been created specifically to help those with particular Clause 93(4) provides for the introduction of regulations needs in a cost-effective way. If people had to leave, it to make exemptions to the cap, and the amendment is improbable that they could be accommodated more would include family and friends carers among those cheaply elsewhere. No purpose would be served by exemptions. imposing a cap that forced out vulnerable people who would have to be rehoused immediately at higher cost 7pm somewhere else. Perhaps I might briefly explain a little background This change seems an essential measure. For example, here. As it is constructed, and unless an exemption is it would cover couples in sheltered housing where one granted, some family and friends carers will be penalised person is below pension age, even if the other is well for taking on the care of a child by the introduction of above it. It would also cover those younger people the cap. I believe that this would be very unfair on who are not eligible for disability benefits of any kind people who often have stepped in because of extremely but who have experienced a range of traumas and difficult family circumstances to keep vulnerable children vulnerabilities and who are being helped to seek training out of care. Family and friends carers often live in or employment, but who are not yet work-ready and large households as a result of taking children in and, need the continuing help of specialist supported housing with an estimated one in 10 living in households of for a little while longer. Once again, this small amendment five or more people, will therefore already be would become redundant if the overarching principle disproportionately affected by the benefit cap. As has was accepted that housing costs, which vary considerably already been alluded to this afternoon, around six in from one household to another, should be taken out of 10 give up work or reduce their working hours when the calculation of the cap. children move in to look after them. That is often I conclude where I began: the benefit cap is very because the needs of the children they are looking often about cutting support for housing costs. However, after, who have often suffered real neglect or abuse, are housing benefit and local housing allowance have considerable and often because they are actively told already been the subjects of serious reductions, and to do so by social workers. GC 367 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 368

Particularly for large households where family and That is quite novel as well. Is there another social friends carers already have their own children still security regulation where the Secretary of State can living at home or have taken in several children, my exercise that level of discretion on top of the attack on concern is that the cap will act as a disincentive for entitlement contained in subsection (1)? people to provide care and is likely to have the unintended consequence of more children being taken into care. Baroness Hollis of Heigham: It is putative. Finally, given all that we know about the outcomes for Lord Kirkwood of Kirkhope: It may be putative, for children in care, in education and in the impact on the all I know, but the conjunction of subsections (1) and rest of their lives, I hope that this very small amendment, (8) worries me greatly.There may well be other precedents, which could have a profound impact on the lives of but perhaps people who know better than I do will some of the most disadvantaged children in our society— leave me alone so that I can finish my speech quickly. and, frankly, would not cost much money—is one to which the Government could see their way to acceding. I move on to my third point. Clause 93(4) talks about regulations, and that subsection is also worrying. Paragraph (b) states that regulations may, “make provision as to the welfare benefit or benefits from which a Lord Kirkwood of Kirkhope: My Lords, I think that reduction is to be made”. Clauses 93 and 94, and I speak only for myself, are There is absolutely no qualification there. It refers not incapable of satisfactory amendment. They constitute just to workless benefits but to welfare benefit or a direct and dangerous attack on entitlement and the benefits. The Minister slightly gave the game away concept of entitlement. They subvert the scrutiny of earlier by saying that we have all the power we need in Parliament and they will cost more than they save. Clause 93, and he is absolutely right about that. There Apart from that, they are absolutely fine. I understand is nothing that he cannot do by regulation. My point colleagues’ attempts to try to mitigate some of the is: what is the House of Lords for if not to say that damage. The speeches have been powerful; I have Clause 93 is a step too far? supported some of them and agree with all of them. If I will vote not only against Clauses 93 and 94 but the Minister decided to take on all the suggestions that against the regulations that flow from those clauses, he has had today on exemption, it would be so complex because that is the only way that we can protect that it would add some £270 million to add some agile entitlement. From where I am sitting, the concept of computing to get the exemptions properly carried entitlement is sacrosanct in the benefits system. I am out—and I would like to think that simplicity is an up for a discussion about reducing the social security overriding principle in developing new policy. budget total by £270 million. We can do that—we can The thing that really causes me sleepless nights is have the debates; we know the process; we can choose looking at the clauses themselves. I have just three the benefit and we can look at the effects. We do a lot points. I spent some time—not quite in my bath, as I of work in creating these entitlements and I should do not take social security Bills to my bath with like to think that we do so carefully, line by line, me—looking at three aspects in particular. The Minister particularly in the House of Lords. We all know that might help me with this. Clause 93(1) starts with the that certainly does not happen any more in the House wording: of Commons, so this is the last place where on occasion we can protect people’s entitlement. “Regulations may provide for a benefit cap to be applied”. We should remember that we are talking about the I think that that is a first. I do not think that there is lowest two deciles of the household income group in any other social security legislation that aggregates this country. They are the most vulnerable people in entitlement and then depresses the total amount by our communities throughout the length and breadth regulation. If I am wrong, I would really like to hear of the land. We need to be safe in the knowledge that about whether any other legislation does that—and I we are doing what is right, benefit by benefit, but I have been looking at this area of policy since 1986. think that Clauses 93 and 94 take away that security of We need to be careful that the step we are taking is knowledge. If we pass these clauses, everything can be not taken lightly, because subsection (2) contains some capped by regulation. By convention, we do not vote language that is also worrying if you follow the thread against regulations in the House of Lords, and there all the way through the rest of the clause. It says inter are very good reasons and precedents for that. However, alia that, this is a game that any Government can play. My “where a single person’s or couple’s total entitlement to welfare noble friend is a sensible and good man, as we established benefits in respect of the reference period exceeds the relevant earlier in the Committee. We might make sensible amount, their entitlement to welfare benefits ... is reduced by an decisions about some of these things but they will be amount up to or equalling the excess” enshrined in law. Another Government will use this We find out about the relevant amount from power and it will subvert the role of Parliament. That subsection (5), which tells us that it is going to be is my objection. I understand and agree with a plea for contained in regulations. It also tells us at subsection (6) exemptions left, right and centre, but I feel in my heart that the relevant amount will be, that if we pass this legislation we will be crossing a “determined by reference to estimated average earnings”, bridge that will lead to consequences which are not and we have had some important discussions about easily foreseen. exactly what that does and does not mean. Then we Speaking for myself, I will not vote for these clauses. have subsection (8), which is wonderful. It says: I think that on Report the House should not just “The Secretary of State may estimate such earnings in such concentrate on some of the important, powerful speeches manner as the Secretary of State thinks fit”. made in attempts to win exemptions but give some GC 369 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 370

[LORD KIRKWOOD OF KIRKHOPE] the most vulnerable children. This report showed that consideration to the parliamentary ramifications of 21 per cent of families were known to two London Clauses 93 and 94. If that does not happen, we will be Safeguarding Children Board areas, and 13 per cent to surrendering a power that we will never win back. four or more areas. Noble Lords may also remember from the Laming review of the case of Victoria Climbié the concern that was expressed about what happens Baroness Sherlock: My Lords, I hesitate to follow when a child potentially falls between two boroughs. that speech from the noble Lord, Lord Kirkwood of Anyone who has ever had cause to look at a serious Kirkhope, because I want to address a particular case review will know, as I heard another member of category. In fact, part of the reason I want to do that is the Committee explain eloquently, that where everyone for the reason he has just outlined, which is that it is gathers around the table for the first time and shares important that if the Government are to ask this all the information they have from their different House to pass the Bill they should understand the perspectives, they always say, “If only we had done implications of doing so. One of my difficulties with this sooner. If only we had all known then what we all the way that this clause is framed is that it makes it know now, this may not have happened”. very hard for noble Lords to understand the consequences That is hard enough within a single authority. It is of the decisions that they are being invited to take. clear that when people move across boroughs, children I wish to speak specifically to Amendment 99B in fall between the cracks. I am therefore very concerned my name and that of the noble Earl, Lord Listowel, that this House should not be invited to do anything although I also support other amendments in the that might make that more likely to happen, because group. My amendment would specifically exempt from we understand that the consequences are very serious. the cap households where a child is a subject of a child I am not attempting to get into shroud-waving. I protection plan, a children-in-need assessment or a simply want to give the Minister the opportunity to common assessment framework team, or is waiting to explain to the Committee whether or not he believes be subject to any of those. that this will happen, given the evidence that I have set I tabled my amendment because I am concerned out. If not, why not? If it does happen, what are the about the possible effect of forced moves on vulnerable Government going to do about it? children, and I want to give the Minister the opportunity I offer the Minister some suggestions. He has already of reassuring the Committee and, through us, the mentioned that help will be available for hard cases. House that he does not expect any such impacts. We Perhaps he could tell us how hard cases will be defined have already discussed whether or not forced moves and whether the children that I have described will will happen. Briefly, we have heard the Minister’s count. Secondly, the Minister mentioned transitional suggestion of three ways that someone could avoid relief. Can he tell us more about that? Will households being forced to move: negotiating a reduced rent, containing children at risk definitely be covered by which the Minister acknowledged may not be possible; transitional relief, and can he explain how that will moving into work, although we have already established happen? What assurance can he give the Committee that the clear majority of people likely to be affected that boroughs with an influx of safeguarded children by the benefit cap are not required to work; or using will receive adequate resources to cope? In particular, savings or other income. can the Minister tell the Committee that he has confidence We all know that most of the people we are talking that the kind of boroughs that will receive an influx of about will have little or no savings. Even if they do, children have the resources and systems and support there are already mechanisms in means-tested benefits—as them? If so, can he provide us with the basis of that there will be in universal credit—to decide how treatment confidence? If the Government are going to undertake of savings income should be taken into account. There a move that will specifically increase the chances of is therefore no need to double-address that point. We families of very vulnerable children moving, I simply must accept that there will be forced moves, and we invite the Minister to explain to the Committee how may debate elsewhere how many there will be. I want he can defend that. to address what will happen to the most vulnerable children when forced moves happen. 7.15 pm We have all had many briefings, and noble Lords Baroness Drake: My Lords, I shall speak to will be aware that charities working with vulnerable Amendment 99AAA, to which I have put my name, children are concerned that the cap could force families and to Amendment 99C, particularly proposed new to move, perhaps repeatedly, as rents rise faster than paragraphs (c) and (g). The cap as constructed fails to the cap. Research clearly shows that housing problems recognise the value of the non-waged work undertaken are a frequent theme in serious case reviews. I cite just by family and friend carers when they embrace the one example of a report from a London Safeguarding responsibility for a vulnerable child or children who Children Board paper, which found that 47 per cent of would otherwise go into care. Not only is that good for people in a sample of serious case reviews completed the child but it avoids a responsibility that would in the capital between 2006 and 2009 had rent arrears, otherwise fall to the state and the taxpayer at a cost of had been evicted or were on the verge of eviction. £40,000 per year. It is interesting to drill down further into that. It We know that a significant number of family and became clear that the highly mobile population in friend carers are older family members. Evidence from London and associated issues came to the surface. Grandparents Plus revealed that six out of 10 are That kind of mobility interferes with the ability of over 55. I should like to quote highlights from a professionals who work in child protection to focus on powerful speech that I read this weekend. It says that, GC 371 Welfare Reform Bill[21 NOVEMBER 2011] Welfare Reform Bill GC 372

“we all gain hugely from the time and commitment that many be met successfully. Otherwise, the Government may older people give. We ignore this at our peril … we should not improve their process efficiency and affordability but forget that many of the jobs they undertake would otherwise fall they will fail to support the positive behaviour of on the state. This is family doing what family does best—quietly, with great commitment, carrying out its duties … I’ve long millions of hard-working responsible people. believed that the state has become ambivalent about the importance That is why I want to address the position of those of family structure, not just decent parenting but also the role of hard-working people who suddenly lose their job the extended family. In an increasingly atomised society, and in a involuntarily and the question of why there should be context of growing family breakdown, it is all the more important a period of 12 months before the cap is applied. The that we continue to support, celebrate and hold together these wider relationships. Without them society would simply collapse”. Government say that a benefit cap to limit benefit payments to those out of work is a fair and necessary There we have it. I am sure that the Minister will measure—a driving principle, to use the Minister’s recognise those as the words of Secretary of State Iain own words. However, to address the question from the Duncan Smith in his speech on 31 October this year at noble Lord, Lord German, in a previous debate, a cap the event organised by the Young Foundation and that is of itself a measure of fairness between those Grandparents Plus to celebrate the life of Lord Michael in and out of work must in my view be fair in its Young. There was no need for me to write my own construct and proportionate in its impact. The benefit words because the Secretary of State so powerfully cap as proposed has significant shortcomings on both makes the point that I want to make that it is better to those criteria. use his. He makes a powerful case for recognising the contribution of these family and friend carers. Clause 93 as drafted, as was powerfully said by the noble Lord, Lord Kirkwood of Kirkhope, means that So we can see that there is no policy difference Parliament is forgoing influencing “fair and proportionate” between us. The only issue, given that speech, is how in the issue of the measure of fairness, unless it changes we deliver that common policy. That is why the noble that clause or starts to lay out specific exemptions. Baroness, Lady Tyler of Enfield, and I are expressing Comparing average earnings net of national insurance these concerns. However, the Secretary of State’s actual and tax with benefits is not comparing like with like, response to family and friend carers as currently provided and other noble Lords have already articulated the for in the Bill is to cap their benefits, inclusive of child problems with that approach. payments. In effect, the Bill has increased the barriers Equally, most benefit payments will be included in that these carers face. The state has moved from being the cap, including child payments. To me, the concept ambivalent to actually being negative. of fairness in constructing the cap cannot be blind to The Secretary of State concluded his speech by the existence of children, otherwise there is an implicit saying, punishment on them for their parents being out of “We need to think hard” work, and that is not acceptable in the design of a —by “we”, I presume that he meant the coalition benefit system. That point was powerfully put by the Government— right reverend Prelate in speaking to the amendment. The cap will also have a negative and disproportionate “about the way we recognise and reward caring, so that we don’t lose the invaluable support from friends and family that currently effect on hard-working families and their children exists”. when the wage earner loses a job or work involuntarily— even more so where the loss of work happens quickly I invite the Minister to do exactly that—to think hard and when any redundancy payment is low or non-existent. about the cap on this community of carers, particularly as the Secretary of State has said publicly: Unfortunately, over my working life I have been involved in one way or another with thousands of “I’ve specifically asked my colleague Lord Freud to look at the kinship carer issue”. redundancies and it is never a pleasant experience. I remember a FTSE institution deciding to close one of May I push the Minister to advise the Secretary of its regional offices. Originally, it intended both to tell State to remove the cap for family and friend carers as all the employees and remove them from the premises set out in this amendment? When I read that statement, on the same day. I managed to persuade the CEO that I had increased confidence that that would now happen. the workforce were a hard-working, decent group of I turn to Amendment 99C. There are three strands people who would not wreck the systems and that he to the Government’s architecture for the welfare system: could delay the closure for three months to give people increasing efficiency, controlling affordability and a fighting chance to find alternative work. reinforcing work incentives and positive behaviours. I kept remembering a female employee’s buoyant On that last strand, integrating in-work and out-of-work comment to me some nine months previously, because benefits into a single universal credit system has to be this was a group of people with a clear work ethic who applied to two different constituencies: those who are worked at that regional office. She said: “They will out of work for long or sustained periods and those never close this regional office: we have the highest who are regularly in work. The Government have to productivity and we win all the company awards”. The build a single system for customers with different CEO did agree to delay on the condition that I stood attitudes and experience of work, and a customer next to him when he told the staff, who had no idea of journey fit for both. what was coming. It was one of the most salutary This is both a significant policy change and a experiences of my life. The tears from both men and behavioural challenge. If the Government want to women, the panic, the anxiety: how were they going to avoid the universal credit resulting in disincentives and pay their mortgage or rent; how were they going to tell negative experiences for those who are fully engaged in their kids? I remember that plaintive question so clearly, work and have a clear work ethic, this challenge has to because it was repeated so many times. GC 373 Welfare Reform Bill[LORDS] Welfare Reform Bill GC 374

[BARONESS DRAKE] managing today’s economic realities. There is a danger When faced with job loss or redundancy, hard-working that that dimension is lost in the current debate in this people do not clap their hands and say, “Oh goody—I’m Bill. off to a life of unemployment on benefits”. They are The universal credit system is supporting both those more likely to be stressed and anxious while rushing who are persistently out of work, or who cannot for around trying to find another job, probably fighting valid reasons be in work, and those millions of people feelings of depression. To hit them with a benefit cap who have a very clear work ethic but from time to time straight away just adds further hardship to already need a national insurance-based welfare system that is difficult—maybe even traumatic—circumstances. intended to assist them through—with their clear work Anybody who has been involved in the private sector ethic—the challenges with which they are faced. and large-scale redundancies knows that some people even have to be put on suicide watch. That is the 7.30 pm reality of dealing with redundancy situations, even when there is a compelling economic reason for doing When they are faced with involuntary job loss, they so. That immediate impact of a benefit cap would should be exempt from the benefit cap for 12 months. make it even more difficult to deal with the essential Call it a transitional exemption if you like—if that is bills; their efforts may be redirected into relocating the phraseology; if that allows the handling of these into cheaper accommodation and relocating their children people in this way without it challenging a principle to different schools at the very time they should be that the Government adhere to—it would help these putting all their efforts into finding a job. It could people to manage the transition from the sudden loss force a breakdown in childcare arrangements for lone of job without presenting their families with an even parents when they so desperately need to leave them in greater series of difficulties resulting from the benefit place, because they need them so they can search for cap. There should be timed stages or pauses before the jobs and make the early transition to another job. cap takes effect. This does not contradict the need for a clear signal about the benefits system. This exemption In couples and families, to defend the cap and the would not be intended to sustain people who could couple penalty by shifting tougher work conditionality work in the long term, but to ensure that hard-working requirements to the other parent, who is the primary people and their families, faced with an involuntary carer, is not necessarily going to provide a sustainable loss of work, would be assisted in managing a flexible solution for that family. The inclusion of child payments labour market. in their benefit cap will hit their children hard. In a difficult economic climate, such hard-working people In summary, I return to two points. The universal and their children will need time on benefits before a system has to work for people in work in, trying to cap takes effect, while they try to find work. They manage their position in work, and those who may be should be given 12 months. A modern welfare system persistently out of work for good reason or not. It has has not only to incentivise people to work and address to manage both communities. Secondly, as the noble benefit dependency, but also to support hard-working Lord, Lord Kirkwood, said, on the drafting of the families with a clear work ethic in managing a flexible current Clause 93: if one is to import into the welfare labour market. The single universal credit has to address system a measure of itself, the purpose of which is both communities. simply to define a concept of fairness between those in work and those out of work, then either Clause 93 The Government want to see an increase in the needs amending or Parliament has to define those private sector relative to the public sector. They want exemptions to that cap which sustain fairness and to see an increase in the flexibility of the labour proportionality. market. This has to be achieved in part by a reduction in employment rights. However, they appear not to want to design a welfare system that supports hard- Lord De Mauley: My Lords, I apologise for intervening working people to manage the realities of today’s at this stage but it appears that this debate is going to labour market and other economic realities—realities take a few more minutes, so I beg to move that the which will become harsher as global competition debate on Amendment 99ZB be adjourned. intensifies. Such support is fundamental to fairness; taxation and national insurance should enable society Motion agreed. to make efficient and fair collective provision to meet the citizens’ needs—often at the point of need—whether Lord De Mauley: On that basis, perhaps I may it be, for example, health, defence or welfare. The suggest that the Committee be adjourned until Wednesday Government, in building a universal credit system for at 3.45 pm. customers with different attitudes and experience of work, must not fail to support hard-working people Committee adjourned at 7.33 pm. WS 49 Written Statements[21 NOVEMBER 2011] Written Statements WS 50

During his recent visit to Afghanistan, the Secretary Written Statements of State for International Development launched an important new fund for Afghan civil society organisations. Monday 21 November 2011 This will help them to engage better with the Afghan Government and hold them to account, for example on human rights and corruption. Afghanistan I am placing the report in the Library of the Statement House. It will also be published on the Foreign and Commonwealth Office website (www.fco.gov.uk). The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My right honourable friend the Secretary of State for Foreign and Airports: Security Commonwealth Affairs (William Hague) has made the following Written Ministerial Statement. Statement I wish to inform the House that the Foreign and Commonwealth Office, together with the Ministry of Earl Attlee: My right honourable friend the Secretary Defence and the Department for International of State for Transport (Justine Greening) has made Development, is today publishing the eleventh progress the following Ministerial Statement. report on developments in Afghanistan. On Christmas Day 2009 an attempted attack on The Bonn conference on 5 December provides Northwest flight 253 from Amsterdam Schiphol to President Karzai with an opportunity to set out his Detroit was made using an explosive device concealed vision for an inclusive settlement. It is also an opportunity in the underwear of a passenger. The device had been for the international community to reiterate its long-term constructed with the aim of making detection by commitment to Afghanistan. existing screening methods extremely difficult and had The summer fighting season is ending and it has not been picked up by airport security at any point been a hard year for the insurgency. The numbers of throughout the passenger’s journey. both attempted and executed attacks were lower than The previous Government’s response to this threat during the corresponding period last year, continuing included introducing security scanners at UK airports. the trend observed over the summer. Despite considerable Security scanners were deployed at Heathrow and efforts, insurgents failed to re-establish themselves in Manchester airports in February 2010. They were areas in the south from which they had previously deployed at Gatwick Airport a few months later, meaning been displaced. High profile attacks in Kandahar early that today scanners are in operation at three of the in October and in Kabul at the end of the month largest UK airports. affected Afghan and international perceptions of security. However, Afghan National Security Forces (ANSF) A public consultation on an interim code of practice disrupted many attempts and responded effectively for the use of security scanners began just before the and professionally to those that got through. Overall, general election. After the election, my predecessor, the performance and operational capability of the Philip Hammond, extended the consultation to allow ANSF continued to develop: they are on track to more time for people to respond. The consultation achieve their October 2012 growth objective of 352,000 closed on 19 July 2010 and over 6,000 responses were and work continued to ensure that the quality of the received. These have been analysed and I can now forces steadily improves. announce how we intend to deploy security scanners in the future. The United Nations Office on Drugs and Crime’s (UNODC) 2011 Afghan Opium Survey reported a The overwhelming feedback from airports is that year on year increase in cultivation of 7 per cent nearly all passengers accept the use of security scanners nationally (from 123,000 hectares to 131,000 hectares). and find the process quick and convenient. Out of However, the increase should be interpreted in the over a million scans the Government are aware of only context of a difficult economic backdrop of opium 12 refusals. However, I recognise that some passengers prices (which have doubled in the past year to the have concerns about the use of security scanners and highest level since 2004) and that the figures are 32 per these concerns were reflected in the responses to the cent lower than in 2007 (which saw 193,000 hectares consultation. cultivated). The ways in which security scanners can be deployed With UK support, the Government of Afghanistan have been restricted by European legislation. My continued to make important progress on revenue predecessor asked the Transport Commissioner to collection and budgeting. The Government confirmed bring forward proposals which relax these restrictions, their best ever first quarter performance for revenue and allow scanners to be used more flexibly. An outline collection to date, bringing it in line with neighbouring package which would achieve this was presented to the countries including Bangladesh and Pakistan. Meanwhile, European Aviation Security Committee in July and provincial governments have been working with the has now been agreed by the European Parliament. Ministry of Finance to ensure that for the first time, Most responses to the consultation expressed local priorities are reflected in plans for next year’s discomfort with the idea of having an image of their national and provincial budgets. This will improve the body captured for analysis, and they indicated that—if Government’s ability to deliver vital basic services to selected for a security scan—they would prefer to opt the Afghan people. for an alternative method of screening. I have considered WS 51 Written Statements[LORDS] Written Statements WS 52 this carefully. However, I have decided against it, on developed to a stage at which it passes rigorous security, operational and privacy grounds. government testing, airports will be expected to deploy Firstly, I do not believe that a pat down search is it when they renew or replace their equipment. This equivalent in security terms to a security scan. The will mean that in the future images will no longer be purpose of introducing security scanners in the first seen by human reviewers. In addition, airports will place was to protect the travelling public better against also be required to undertake routine testing of hardware sophisticated terrorist threats: these threats still exist and software to ensure that they remain unable to and the required level of security is not achieved by copy, save, or otherwise transmit images. This will be permitting passengers to choose a less effective alternative. verified by the department’s transport security inspectors. I have considered carefully whether there are alternative I have also been considering whether security scanners screening methods which might deliver equivalent levels should be rolled out more widely at UK airports. In of security to a security scan. A full private search— principle, I believe that they should. My officials will involving the loosening and/or removal of clothing in work with the aviation industry to agree a risk-based the presence of security staff in a private room—would approach to further deployments. However, I want to deliver a reasonable level of assurance. However, I make sure that this is done in conjunction with the believe that this is likely to represent a greater intrusion availability of enhanced screening technology with of privacy than a security scan, and that nearly all better privacy safeguards. The precise timing of further passengers, if they fully understand the procedures, deployments will therefore be dependent on how quickly would be unlikely to opt for this alternative. It is also the new generation of security scanners is developed. likely to be operationally disruptive to airports and I have placed a copy of this Statement, and the other passengers. Appropriately trained security staff revised regulations on the use of security scanners at would need to be diverted from the main search area UK airports, in the Libraries of both Houses. to undertake these searches, leading to increased costs and longer queues for everyone else. I do not, therefore, believe that this represents a viable way forward. Banking Act 2009 I am aware that the proposals recently agreed by the Statement European Parliament include the right for passengers to request an opt-out from scanning. The UK did not The Commercial Secretary to the Treasury (Lord support these proposals when they were presented to Sassoon): My honourable friend the Financial Secretary the Aviation Security Committee. Given the security to the Treasury (Mark Hoban) has today made the arguments against permitting such an opt-out, and following Written Ministerial Statement. the threat level that exists in the UK, the Government The Treasury has laid before the House of Commons intend to use their powers under the Aviation Security a report required under Section 231 of the Banking Act to maintain the current position. Those passengers Act 2009 covering the period from 1 April 2011 to selected for scanning will therefore not be able to fly if 30 September 2011. Copies of the document are available they are not willing to be scanned. in the Vote Office and the Printed Paper Office. The consultation also asked people whether they had any health concerns relating to the small doses of ionising radiation produced by some security scanners. Banking: Northern Rock Only a limited number of responses were received on Statement this issue, but I recognise that it has continued to be a contentious issue. Last year, experts from the Health Protection Agency (HPA) conducted an official assessment The Commercial Secretary to the Treasury (Lord of the X-ray backscatter scanner in use at some UK Sassoon): My right honourable friend the Chancellor airports. The HPA found that the dose of ionising of the Exchequer (George Osborne) has today made radiation received from deployed backscatter scanners the following Written Ministerial Statement. is the equivalent to that received naturally through just On 15 June 2011 I announced that I had put two minutes of flying at high altitude. Northern Rock plc up for sale. The European Commission has called for further The bidding process has now finished and on expert consideration of the potential health risks from 17 November 2011 I announced the sale of Northern security scanners and has asked the European Scientific Rock plc to Virgin Money. The Financial Secretary is Committee on Emerging and Newly Identified Health also updating the House on the sale of Northern Rock Risks to review the evidence. I look forward to the plc today. committee’s report and will consider it carefully before The deal was reached following an open, transparent making decisions about which technologies should be and competitive bidding process. It is expected to deployed at UK airports in future. complete on 1 January 2012, pending European However, it is right that the Government do what Commission merger clearance and Financial Services they can to address people’s concerns wherever that is Authority approval. possible without compromising security. Therefore I This Statement provides full details of the consideration can announce today that the Government intend to HM Treasury will receive for the sale: make further improvements to the privacy and data cash—HM Treasury will receive cash of £747 million safeguards already in place for security scanners. on completion and around an expected further £50 million Software which automatically analyses images is cash in the second quarter of 2012 relating to the currently in development. Where this technology has net asset value of Northern Rock plc upon completion; WS 53 Written Statements[21 NOVEMBER 2011] Written Statements WS 54

tier 1 capital notes—Virgin Money will issue to HM Responding to consumer concerns about the lack Treasury on completion Tier 1 Capital Notes with a of control and transparency over bank charges, the par value of £150 million and an annual coupon of Government have driven forward a voluntary agreement 10.5 per cent. The terms of these notes have been which will apply to all full-facility current accounts designed to be compliant with current GENPRU offered by the major personal current account providers. requirementsandtheexpectedrequirementsof forthcoming Under the new agreement, over 85 per cent of personal CRD4 regulations which will implement Basel III current account customers will benefit from measures guidelines into European law.Accordingly they include to make charges for unarranged overdrafts clearer, featuressuchasprincipallossabsorptionanddiscretionary fairer and more manageable. interest coupons. Virgin Money has indicated that it This will include an option for consumers to receive intends that these notes would be exchanged, or alerts when their balance is low so that they can take purchased by the acquirer, upon an initial public action to avoid a charge; consumers will know by what offering or sale, without reducing the amount and time they need to make a payment into their account quality of the firm’s capital resources, which would to avoid charges; and they will no longer be charged allow HM Treasury to exit its investment; and for going over their limit by a small amount. Balance additional cash consideration—HM Treasury will alerts will be available from March 2012, with full receive additional cash consideration payable upon implementation of the other measures by March 2013 Virgin Money delivering a future profitable initial at the latest. public offering or sale in the next five years. The These measures come in addition to commitments maximum payment would be £80 million if this already made by the industry to increase transparency, occurred in 2012; £70 million in 2013; and £50 million including annual statements detailing charges incurred in 2014 to 2016 inclusive. so that consumers can see how much their account costs them over the year, and from September 2013 a Consumer Credit new guaranteed switching service which will give customers Statement the confidence to switch accounts quickly, safely and without hassle. This will mean that consumers can make sure that they are getting a good deal from their The Parliamentary Under-Secretary of State, bank. Together, all these measures will provide a powerful Department for Business, Innovation and Skills (Baroness way for consumers to hold their banks to account. Wilcox): My honourable friend the Minister for On store cards, respondents to the review were Employment Relations, Consumer and Postal Affairs most concerned about customers being tempted into (Edward Davey) has today made the following Statement. expensive credit by retailers offering discounts on their I have together with the Financial Secretary to the purchases at the time they take out a store card. Treasury (Mark Hoban) published the Government’s Following negotiations with the Government, industry response to the consumer credit aspects of the consumer has agreed to end this practice as well as introducing credit and personal insolvency review, Managing other measures to improve the way store cards are Borrowing and Dealing with Debt, launched jointly by offered, including a good practice training scheme and BIS and HM Treasury. My Statement of 19 July a ban on direct commission for sales staff. provided the Government’s response on the insolvency aspects of the review. The Government will not be introducing a cap on interest rates on credit and store cards. Following the The response builds on a number of coalition review, the evidence showed that a cap would not be in commitments to help consumers make better financial the best interest of consumers as pricing some consumers decisions when borrowing money and deals specifically out of the market could force individuals to seek with: unregulated or high cost credit. unfair bank charges; What was clear from the review were the real concerns introductory discounts when taking out a store around the high cost credit market and the impact that card; and using this type of credit can have on vulnerable consumers. interest rate caps on credit and store cards; and To address these concerns, the Government are pleased other consumer credit issues, including high cost to have appointed Bristol University’s Personal Finance credit. Research Centre (PFRC) to carry out research into the Our vision is twofold. First, we want all consumers impact of introducing a variable cap on the total cost to be empowered to make better choices for themselves. of high cost credit that can be charged in the short to Consumers should be free to borrow if that is what medium term high cost credit market. The Government they decide is in their best interest. It is not for the have also started negotiations with industry to introduce Government to pass judgment on whether a particular improved consumer protections in codes of practice product is good or bad but, in line with the coalition for payday lenders and other instant credit providers. principles of freedom, fairness and responsibility, we In addition, the Government are working to improve want to provide consumers with the tools they need to access to credit unions which can provide a real alternative make informed decisions. Secondly, we want to ensure to high cost credit. there is a safe and fair regulatory framework for both Positive action from industry to address real consumer credit and personal insolvency. These frameworks must concerns has wider reaching benefits. By working with protect vulnerable consumers, particularly those at industry we can make changes that improve things for risk of falling into or those already in financial difficulty consumers far more quickly than legislating. As we and drive rogue companies out of the market. stated in the call for evidence, we will regulate where WS 55 Written Statements[LORDS] Written Statements WS 56 necessary but our strong preference is to promote Syria more responsible corporate and consumer behaviour Ministers adopted conclusions (see link above) and through greater transparency, competition and by restrictive measures against a further 18 members of harnessing the insights of behavioural economics. the Syrian regime and stopping all European Investment Finally, this response completes the announcement Bank loans. we made in July when we set out additional measures to assist consumers in difficulty, including a consultation Following the FAC, the Foreign Secretary said: on improving access for bankrupts to basic bank “I welcome the EU’s decision today to apply further pressure accounts—published on 17 November—and working on President Assad’s regime, following the strong measures announced with industry to improve standards in debt management by the Arab League this weekend. The EU has listed a further 18 individuals involved in or supporting the regime’s activities, plans. In addition, on 7 November we published a including military, security and intelligence officials leading military consultation seeking views on reforms to the route operations in Syria. In addition, the EU has moved to prevent any into bankruptcy and compulsory winding up to streamline further disbursement of loans from the European Investment the process and to ensure that the court focuses on Bank to Syria. dispute resolution. President Assad has ignored countless calls by the international The package of measures announced in this response community to put an end to the horrific violence in Syria. Since will deliver real benefits for consumers that can be the Syrian regime’s claim to have agreed to the plan put forward achieved while minimising the regulatory burdens on by the Arab League on 2 November, violence has only escalated with a death toll of over 3,500 people since March. As long as the business. violence continues, we will continue to press the Syrian regime to We are placing copies of the document in the bring an end to this killing”. Libraries of both Houses. Libya Ministers agreed conclusions (see link above) EU: Foreign Affairs Council and General welcoming the declaration of the liberation of Libya Affairs Council on 23 October. They encouraged the National Transitional Statement Council to respect human rights in line with its constitutional charter. The Minister of State, Foreign and Commonwealth The Foreign Secretary emphasised the success of Office (Lord Howell of Guildford): My honourable NATO’s military intervention. The three key actions friend the Minister of State (David Lidington) has for now were moving forward with EU support, engaging made the following Written Ministerial Statement. the tools of the neighbourhood policy and sending The Foreign Affairs Council (FAC) and General measured but clear signals on our expectations on Affairs Council (GAC) were held on 14 and 15 November human rights, including the rights of women. in Brussels. My right honourable friend the Foreign Tunisia and Egypt Secretary attended the FAC (foreign affairs). My honourable Conclusions welcomed the historic elections in Tunisia friend the Parliamentary Under-Secretary of State (PUSS) (see link above). Baroness Ashton laid out support for International Development attended the FAC underway or ready to be negotiated with the new (development). The UK Permanent Representative attended Government: agricultural liberalisation, open skies, the GAC. a mobility partnership, a free trade agreement, and a The agenda items covered were as follows: doubling of funding in 2011 to ¤160 million. On Foreign Affairs Council (Foreign Affairs) Egypt, there was a brief exchange on elections due The FAC was chaired by the High Representative later this month. Ministers are likely to return to this of the European Union for Foreign Affairs and Security at their meeting in December. Policy, Baroness Ashton of Upholland. A provisional Horn of Africa and Somalia report of the meeting (both foreign affairs and development), and all conclusions adopted, can be Ministers adopted a strategic framework for the found at: http://www.consilium.europa.eu/uedocs/ Horn of Africa (see link above). This will guide EU cms_data/docs/pressdata/EN/foraff/126064.pdf. action in five areas: building robust and accountable Afghanistan political structures; contributing to conflict resolution and prevention; mitigating security threats emanating Ministers agreed conclusions (see link above) that from the region; promoting economic growth, and approved a mandate for an EU co-operation agreement supporting regional economic co-operation. for partnership and development with Afghanistan. They also agreed to extend the EU police mission in On Somalia, Ministers adopted conclusions (see Afghanistan (EUPOL) in principle until the end of link above) which expressed concern about the situation 2014, and made a commitment to support Afghan in Somalia, reaffirmed the EU’s commitment to support efforts in strengthening policing and the rule of law AMISOM and to continue the EU training mission beyond 2014. for Somalia’s security forces. The Foreign Secretary stressed the importance of The Foreign Secretary set out the UK’s support for a clear vision for a future political settlement being Kenyan action in Somalia, which he stressed should set out by Afghanistan at the Bonn conference on be done in co-ordination with the Transitional Federal 5 December. He also underlined Pakistan’s key role Government and in compliance with international and the need for the EU to maintain momentum on law. He also outlined proposals for an international engagement with Pakistan, as agreed by Ministers in conference on Somalia in 2012, announced by the the Foreign Affairs Council in July. Prime Minister on 14 November. WS 57 Written Statements[21 NOVEMBER 2011] Written Statements WS 58

Iran O’Brien stressed the importance of establishing a results Ministers agreed conclusions (see link above) expressing framework for EU aid and also reinforced the UK increasing concern about the possible military dimensions concerns on EU joint programming. of the Iranian nuclear programme and the lack of EU Budget Support progress with diplomatic efforts. They also raised the This item focused on the EC communication on prospect of reinforced sanctions measures in December. The Future Approach to EU Budget Support to Third Common Security and Defence Policy (CSDP) Countries—which was broadly welcomed by Ministers. Over lunch, Ministers discussed current and possible There was general agreement on the principle of future CSDP operations. The Foreign Secretary set differentiating aid—ensuring it is more focused on the out the UK’s substantial contribution to European poorest countries. PUSS O’Brien stressed that decisions defence, not least as the EU country with the largest on budget support should be made in-country on a defence budget. He also reiterated the UK’s longstanding case by case basis, with non-EU donors and member opposition to the establishment of an EU Operational states retaining full ministerial responsibility over funding Headquarters. Baroness Ashton concluded that EU decisions. Defence and Foreign Ministers would discuss this AOB: G20 and Energy for All further at their meetings on 30 November and 1 December Limited time was afforded to these AOB points. respectively. Nevertheless, France highlighted the achievements Foreign Affairs Council (development) of the French G20 Cannes declaration. Additionally, The EU common position for the Fourth High Level Commissioner Piebalgs stated that he would write to Forum on Aid Effectiveness (HLF-4, Busan, 29 November- Ministers on his initiative on sustainable energy for 1 December 2011) all. The EU common position for Busan was adopted General Affairs Council (GAC) and received general endorsement from member states. The GAC was chaired by the Polish EU presidency PUSS O’Brien stated the UK’s desire to see a clear (Mikolaj Dowgielewicz, State Secretary for European focus on transparency, results and fragility and stressed Affairs). A draft record of the meeting can be found the importance of ensuring Busan produces an ambitious at: http://www.consilium.europa.eu/uedocs/cms_data/ outcome that engages broader development actors as docs/pressdata/EN/genaff/126082.pdf. well as traditional donors. This was endorsed by Commissioner Piebalgs and the High Representative Multiannual Financial Framework Baroness Ashton. Ministers discussed the EU’s multiannual framework Ministers also discussed the issue of EU joint for 2014-20. The presidency indicated that it would programming. Commissioner Piebalgs proposed a Busan present a report to the European Council on 9 December. initiative which launched joint programming in pilot They stressed that this report would signal the end of countries. PUSS O’Brien set out the UK’s concerns the clarification stage, paving the way for negotiations and made it clear that consultation on any list of to begin in earnest in January 2012 under the Danish countries and any form of EU co-ordination must be presidency. country-led, pragmatic and open to all donors, rather The UK Permanent Representative set out the UK’s than led by Brussels. views. The current proposals were too high. The Horn of Africa Commission needed to explore ways of replacing some Development Ministers addressed the humanitarian current expenditure rather than adding more. Proposals and development aspects of the Horn of Africa crisis, to increase structural and cohesion funds as well as the continuing the discussion held by Foreign Ministers Connecting Europe Facility were also too high. The during the Foreign Affairs Council earlier in the day. UK could not support macro fiscal conditionality on Commissioner Georgieva praised UK leadership in EU Budget funding due to the special position of the the Horn and called for a concerted long-term effort UK by virtue of Protocol 15 of the treaties. Structural which addressed resilience. funds should be directed towards the poorest regions PUSS O’Brien called for a sustained EU effort over which are mostly located in the poorest member states. 2012 with more member states providing support and And the Commission’s proposals on the common highlighted the importance of engaging with Turkey, agricultural policy needed to be substantially reduced. the Gulf States and other donors in an ambitious October and December European Councils response based on need and resilience. Ashton concluded Ministers reviewed the proposed agenda for the by endorsing PUSS O’Brien’s message on the need for December Council which includes economic issues, a holistic response and the importance of finding a energy and EU enlargement. Signature of the treaty political solution. This was supported by a number of on the accession of Croatia to the EU is scheduled for member states. The PUSS also confirmed that the UK the margins of the December Council. would be hosting the Somalia conference next year. The announcement was met with wide approval from During the discussion on draft European Council Ministers, Baroness Ashdown and the Commissioners conclusions the UK Permanent Representative stressed attending. the need to reflect earlier council conclusions on ensuring the widest possible reduction of regulatory burden Future of EU Development Policy and the importance of trade as a driver for growth. Ministers endorsed the recent European Commission’s The UK Permanent Representative welcomed the (EC) communication on Increasing the Impact of EU undertaking of President van Rompuy to update the Development Policy: An Agenda for Change. PUSS European Council on the reflections of the euro area WS 59 Written Statements[LORDS] Written Statements WS 60 member states, but noted that October European Council we are consulting on a proposal to allow reconsideration conclusions had talked in more explicit terms about of those planning obligations agreed prior to April the integrity of the EU as a whole and the role of the 2010 where development is stalled. Some planning 27 in any discussion on treaty change; and that the obligations negotiated at the height of the economy UK wanted to see that approach reflected here. boomnowmakethesiteeconomicallyunfeasible—resulting Strategy for the Baltic Sea Region in no development, no regeneration and no community benefits at all. Ministers agreed conclusions (see link above) which welcomed the European Commission’s report on the We are also taking action to lay the foundations for Baltic Sea Strategy which had been agreed by the a more responsive, effective and stable housing market General Affairs and External Relations Council in in the future: October 2009. we will be providing more support for local areas I will deposit copies of this note in the Libraries of that want to deliver larger scale new development both Houses. I will also continue to update Parliament to meet the needs of their growing communities— on future Foreign and General Affairs Councils. with a programme of support for locally planned large scale development; we are putting in place strong, new incentives for Housing housing growth through the new homes bonus, Statement community infrastructure levy and the proposals for local business rates retention; The Parliamentary Under-Secretary of State, we have consulted on simplifying planning policy Department for Communities and Local Government through the draft National Planning Policy (Baroness Hanham): My right honourable friend the Framework; Minister of State for Housing and Local Government we are supporting a self-build revolution through a (Grant Shapps) has made the following Written Ministerial custom build homes programme to support and Statement. encourage more individuals and communities to I am today announcing the publication of Laying build their own homes—including making available the Foundations: A Housing Strategy for England. This up to £30 million of new funding to support provision strategy sets out the Government’s plans to support of short-term project finance on a repayable basis; social mobility and get the housing market—and in and, particular new housebuilding—moving again. we are giving communities new powers to deliver This is vital for our economic growth—but more the development they want through community importantly, it is essential to the hopes and plans of right to build. young people, families and older households across We are also supporting choice and quality for tenants the country. We know we will not achieve this by by: attempting to control the market from Whitehall. The supporting growth and investment in private rented system of setting top down targets for housing, vast housing, as the key to increasing choice, access and amounts of planning guidance and excessive regulation standards in the sector, while also working with contributed to the lowest level of housebuilding since local authorities to tackle the worst properties; the 1920s. Housebuilding in 2010-11 was 29 per cent higher compared to 2008-09, and compared to 2009-10, creating more opportunities for council tenants to it was 17 per cent higher (103,750 starts in 2010-11; have their say—with tenants with an arm’s-length 88,690 in 2009-10, and 80,550 in 2008-09). management organisation landlord given new opportunities to influence how their homes are The strategy sets out the immediate action we are managed; taking to get the housing market moving again: introducing a radical programme of reform of we are launching a new build indemnity scheme to social housing through the Localism Act, changing provide support to potential home buyers; the way people access social housing, the types of we are reinvigorating the right to buy—to support tenancies which are provided and the way the social tenants who aspire to own their own home, homelessness duty is discharged, though not the by raising the discounts to make it attractive to duty itself which continues to provide among the tenants across England. We are matching this with best homelessness support in the world; a commitment that for every additional home bought doing more to tackle fraud and tenancy abuse—we under right to buy, a new affordable home will be will give local authorities the tools to identify and built; recover properties that are being used unlawfully; we are getting building moving again with a new to charge more reasonable market orientated rents £400 million Get Britain Building investment fund; from people earning very high salaries; and to prevent we have established a new £500 million Growing people who own a suitable home from seeking social Places Fund which will support infrastructure for housing too; and housing and economic growth; considering how we can encourage more affordable we are freeing up formerly used public sector land housing—supporting greater innovation and competition with capacity to deliver up to 100,000 new homes—with between social landlords—including encouraging build now, pay later deals on the table to support new private entrants into the social housing market builders who are struggling to get finance upfront; and considering innovative new approaches to funding and, affordable housing in the medium term. WS 61 Written Statements[21 NOVEMBER 2011] Written Statements WS 62

We are also making better use of existing stock— concerns about Iran’s nuclear activities. The IAEA bringing more empty homes and buildings back into report sets out the agency’s concerns about “possible use. The housing strategy sets out our strategy for military dimensions to Iran’s nuclear programme”. In tackling empty homes, including £100 million funding particular, the information available to the agency to bring empty homes back into use as affordable indicates that Iran has carried out the activities that housing and changes to council tax to help tackle are relevant to the development of a nuclear explosive empty homes and bring them back into productive use device. The report notes that “while some of the and an additional £50 million of funding to tackle activities identified have civilian as well as military some of the worst concentrations of empty homes. applications, others are specific to nuclear weapons”. We remain committed to providing appropriate The Government view these developments with the support, protections and opportunities to struggling utmost concern. households and to making the best use of social The case for action is underlined by the recent calls housing to provide stable homes for those who need from the Financial Action Task Force for countries to them most. We have prioritised protection for the apply effective counter-measures to protect their financial vulnerable in last year’s spending review and have sectors from money laundering and financing of terrorism established a ministerial working group to tackle the risks emanating from Iran. The FATF (the global complex causes of homelessness. We are also setting standard setting body for anti-money laundering and out a new deal for older people’s housing, with a better combating the financing of terrorism) renewed these offer to support older people to live independently for calls with urgency on 28 October 2011 and noted its longer. particular and exceptional concern about Iran’s failure This strategy is not just about building more homes. to address the risk of terrorist financing and the We know that the quality, sustainability and design of serious threat this poses to the integrity of the international housing, along with sufficient funding to support growing financial system. communities, is just as important as how many new In light of these risks to the UK’s national interests, homes are built and that getting this right is crucial if I consider it an proportionate response to require the communities are going to support new homes. UK financial sector to cease all business relationships I am also issuing today a consultation on the powers and transactions with Iranian banks and their branches which will deliver a devolved system for financing and subsidiaries, including the Central Bank of Iran. council housing from next April. Self-financing will Iranian banks play a crucial role in providing financial deliver a long-term, securely funded, future for council services to individuals and entities within Iran’s nuclear housing and give councils the freedom they need to be and ballistic missile programmes as companies carrying innovative in meeting local needs. out proliferation activities will typically require banking services. Copies of the strategy and consultation on legal determinations to implement self-financing will be Any Iranian bank is exposed to the risk of being placed in the Library of the House and published used by proliferators in Iran’s nuclear and ballistic on-line at www.communities.gov.uk. missile programmes. Experience under existing UN and EU financial sanctions against Iran demonstrates that targeting individual Iranian banks is not sufficient. Iran Once one bank is targeted, a new one can step into its Statement place. As they relate to an important global financial The Commercial Secretary to the Treasury (Lord centre, UK restrictions will have an impact on the Sassoon): My honourable friend the Financial Secretary options available to Iranian banks. This will make it to the Treasury (Mark Hoban) has today made the more difficult for Iranian banks to utilise the international following Written Ministerial Statement. financial system in support of proliferation-sensitive activities. It will protect the UK financial sector from The Government have today laid before the House the risk of unwittingly being used to facilitate activities an order under the Counter-Terrorism Act 2008 containing which support Iran’s nuclear and ballistic missile a direction requiring UK credit and financial institutions programmes. UK action of this nature signals to Iran to cease all business with banks incorporated in Iran and the international community that we consider this and their branches and subsidiaries. This means that risk to be significant. UK credit and financial institutions are prohibited from entering into transactions or business relationships These actions are being taken in co-ordination with with these entities and continuing existing transactions other partner countries, which will make their own and business relationships with them, unless licensed announcements separately. to do so by HM Treasury. The Treasury is satisfied, as required by the Act, Justice: Appointments that activity in Iran that facilitates the development or production of nuclear weapons poses a significant risk Statement to the national interests of the United Kingdom. The November board report of the International Atomic The Minister of State, Ministry of Justice (Lord Energy Agency (the UN body charged with monitoring McNally): My right honourable friend the Lord Iran’s activities and ensuring that no nuclear material Chancellor and Secretary of State for Justice (Kenneth is being diverted to non-civilian applications) highlights Clarke) has made the following Written Ministerial the reasons for the Government’s serious and ongoing Statement. WS 63 Written Statements[LORDS] Written Statements WS 64

The judiciary play a critical role in the administration governance removes or calls into question the operational of justice. It is therefore vital that we select candidates independence of the police service which remains the for judicial office on merit, through fair and open corner stone of all that is good about our way of competition, from the widest range of eligible candidates. policing by consent. We consider that there is a need to address issues To provide future safeguard to this principle I have with the current systems. Those issues include: the today laid for the approval of Parliament a protocol length of time and amount of money it can cost to run which sets out how the new policing governance a selection process; the degree of diversity in appointments; arrangements will work. It clarifies the role and and the inflexibility of the Constitutional Reform Act responsibilities of police and crime commissioners 2005, which means even minor process changes require (PCCs), the Mayor’s Office for Policing and Crime primary legislation. (MOPC), chief constables, police and crime panels All of this supports the case for revisiting judicial and the London Assembly police and crime panel. It appointments and today we have launched a consultation on outlines what these bodies are expected to do and how legislative changes to achieve the proper balance between they are expected to work together to fight crime and executive, judicial and independent responsibilities, improve improve policing. The protocol will therefore clarity, transparency and openness in processes; create fundamentally underpin the key working relationships a more diverse judiciary that is reflective of society; within the new policing landscape. and deliver speed and quality of service to applicants, the courts and tribunals and value for money to the Elections for police and crime commissioners for taxpayer. England and Wales will take place in November 2012. Within London, the Mayor’s Office for Policing and A number of our proposals give effect to Crime will perform the equivalent role for the recommendations arising from the report of the Advisory Metropolitan police district. How these elected policing Panel on Judicial Diversity. Others come from the bodies work with, and interact with, chief constables judiciary and those with a close interest in the appointment and police and crime panels will be crucial to achieving process. success. I have formally submitted the consultation to the chair of the House of Lords Constitution Committee It is my intention to issue the protocol to all chief as part of our contribution to their ongoing inquiry constables, police authority chairs, their chief executives, into judicial appointments and diversity.The Government the chief executives of all local authorities within intend to consider the committee’s findings alongside England and Wales and the Welsh Government in responses to this consultation. order to assist in transition planning. The protocol will also be made available to all potential candidates The closing date for comments will be 13 February for the Mayor of London elections in May 2012. It 2012. will then be made available to potential candidates for It is available online at http://www.justice.gov.uk/ the office of PCC within each force area in England consultations. and Wales ahead of the first elections in November 2012. Police: Governance Within England and Wales, the changes in governance Statement will take effect on the 22 November 2012, with the exception of London. I am confident that with this protocol in place everyone will be able to work together The Minister of State, Home Office (Lord Henley): effectively to drive down crime and to make our My right honourable friend the Secretary of State for communities safer. the Home Department (Theresa May) has today made the following Written Ministerial Statement. I am also today issuing a non-statutory shadow A year from now the public within England and strategic policing requirement which sets out my view, Wales will, for the first time, have been given a direct as Home Secretary, of the national threats that the vote and say in how they and their communities are police must address and the appropriate national policing policed. The election of the first police and crime capabilities I believe are required to counter those commissioners on 15 November 2012 will mark a step threats. It respects the operational independence of change in how policing is held to account. Communities the police, advising what, in strategic terms, they need will be able to voice their local priorities to a single, to achieve but not how they should achieve it. I have directly elected, individual; their police and crime placed copies of the shadow strategic policing requirement commissioner. in the House of Commons Library and an electronic Police and crime commissioners will be powerful copy can be found at: http://www.homeoffice.gov.uk/ local representatives, able to set the priorities for the publications/police/strategic-policing-requirement/. police force within their force area, respond to the I am issuing this shadow strategic policing requirement needs and demands of their communities more effectively, now to inform police forces’ and police authorities’ ensure that local and national priorities are suitably plans for 2012-13. Although it will not, at this stage, funded by setting a budget and the local precept, and have statutory effect, it is my intention that it should hold to account the local chief constable for the delivery help to drive improvements during the transition period and performance of the force. to police and crime commissioners. I will look to all Strong and effective leadership will continue to be forces and authorities to have regard to this shadow delivered by the chief constable and their command strategic policing requirement when exercising their teams. Nothing within this step-change of policing responsibilities. WS 65 Written Statements[21 NOVEMBER 2011] Written Statements WS 66

The shadow strategic policing requirement is a reviewers present new evidence and new insights. The statement of the collective capabilities that police forces Government thank the reviewers for this important across England and Wales will be expected to have in and comprehensive account of the current system and place in order to protect the public from cross-boundary recommendations for change. threats such as terrorism, civil emergencies, public Complex organisational challenges are raised by disorder, cyber incidents and organised crime. It supports this review which will require further and detailed the development and maintenance of policing capabilities, consideration, particularly in light of ongoing work often collaboratively between forces, and in support of on the employment law review, Red Tape Challenge the work of national agencies such as, in future, the and move to universal credits. The Government will National Crime Agency. undertake a comprehensive assessment of the review’s I have consulted with ACPO, the APA, and other findings and recommendations with the view to publishing policing bodies and relevant agencies to develop the a response during 2012. shadow strategic policing requirement. I will consult Copies of Dame Carol Black’s and David Frost further on the experience of forces and authorities in CBE’s review will be made available in the Vote Office using this shadow strategic policing requirement, and and the Printed Paper Office later today. will then issue the statutory strategic policing requirement next summer in time for the election of police and crime commissioners. Taxation: Avoidance Both police and crime commissioners and chief Statement constables will be required to have regard to the SPR from November 2012 in the conduct of their respective The Commercial Secretary to the Treasury (Lord responsibilities. Sassoon): My honourable friend the Exchequer Secretary to the Treasury (David Gauke) has today made the I would like to thank all of those from the police following Written Ministerial Statement. and the other bodies and agencies that have contributed to the drafting of the protocol and the shadow strategic The Government are fully committed to tackling policing requirement. Their work has been invaluable. tax avoidance and will take necessary steps to protect the Exchequer and maintain fairness in the tax system. The Government published Tackling Tax Avoidance Sickness Absence at Budget 2011 which outlines a more strategic approach Statement to addressing avoidance by placing the emphasis on preventing avoidance before it occurs. By building in sustainable defences to avoidance we will reduce the The Parliamentary Under-Secretary of State, Department need for immediate changes to legislation once an for Work and Pensions (Lord Freud): I wish to inform avoidance risk has arisen, or for HMRC to challenge the House that, today, Dame Carol Black, the National avoidance once it has happened. Director for Health and Work, and David Frost CBE, former Director General of the British Chambers of In December 2010, I asked Graham Aaronson QC Commerce, will present to Government the outcome to lead a study that would consider whether a general of their independent review of sickness absence in anti-avoidance rule (GAAR) could deter and counter Great Britain. tax avoidance, while providing certainty, retaining a tax regime that is attractive to businesses, and minimising It is estimated that around 300,000 people costs for businesses and HMRC. (approximately 1 per cent of the employed population) move on to sickness-related benefit (employment and I have now received Mr Aaronson’s report and have support allowance) each year. These individuals make arranged for it to be published today on HM Treasury’s up a sizeable proportion of long-term sickness absences website at: http://www.hm-treasury.gov.uk/d/gaar_final and around half of the total flow on to ESA every _report_111111.PDF. year. This constitutes a significant cost to taxpayers, Mr Aaronson has recommended a narrowly focused employers covering absences and the opportunity costs GAAR which should initially apply to the main direct to the economy in missed productivity. There is also a taxes—income tax, capital gains tax, corporation tax, personal cost to individuals and their families. and petroleum revenue tax, as well as national insurance Earlier this year the Minister for Employment contributions. The report sets out in detail how a Relations, Consumer and Postal Affairs, Edward Davey GAAR could be introduced, and includes an illustrative MP and I jointly commissioned this review on behalf draft rule. It also includes a summary of the views of of the Department for Business, Innovation and Skills representative bodies in the tax sector. and the Department for Work and Pensions. We asked The Government will consider the report in detail the reviewers to establish how we can mitigate the and the extent to which the proposals could add to economic losses of sickness absence, as well as provide HMRC’s existing legislative and administrative approaches effective support for those who are most at risk of and further reduce levels of tax avoidance. The long-term sickness absence. Government will discuss the implications of the proposed The review presented today explores how the current rule with business and tax groups and respond fully at system works and offers recommendations to reduce Budget 2012, setting out their plans for further, formal sickness absence, help more people stay in work and public consultation, if appropriate. adjust the balance of cost within the system. It provides I will place a copy of the report in the Library of a welcome critique of the current system and the the House.

WA 173 Written Answers[21 NOVEMBER 2011] Written Answers WA 174 Written Answers Bank of England Questions Monday 21 November 2011 Asked by Lord Myners To ask Her Majesty’s Government, further to Asylum Seekers the Written Answer by Lord Sassoon on 1 November (WA 224–5), whether HM Treasury Ministers or Question officials have received copies of any minutes of a Asked by Lord Hylton meeting of the Court of the Bank of England since May 2010; and, if so, which meetings, when those To ask Her Majesty’s Government whether the were received, and from whom. [HL13257] new system for providing interpreters and translators yet applies to the UK Border Agency (a) in respect of initial and substantive interviews for asylum The Commercial Secretary to the Treasury (Lord seekers with inadequate command of English, and Sassoon): HM Treasury Ministers or officials have not (b) for oral hearings before asylum and immigration received copies of minutes of any meeting of the courts or tribunals; if not, when they expect it to Court of the Bank of England since May 2010. do so; and whether they will keep the quality of Asked by Lord Myners interpretation under review. [HL13027] To ask Her Majesty’s Government, further to the Written Answer by Lord Sassoon on 1 November The Minister of State, Home Office (Lord Henley): (WA 225), how they ensure that the Court of the Although the Home Office has awarded the contract Bank of England is effective as the governing body for face-to-face interpreting services to thebigword, of the Bank. [HL13258] the UK Border Agency is not using the contract for the provision of interpreter services for asylum interviews. The UK Border Agency will review this position in the Lord Sassoon: Her Majesty’s Government ensure next financial year and will continue to monitor the that the Court of the Bank of England is effective quality of the interpretation service that it provides to through a robust appointment process for members asylum seekers. of the court and through maintaining close contact Interpreters for asylum and immigration tribunals with the Governor of the Bank and with the chairman are booked by HM Courts and Tribunals Service of the court. The court is accountable to Parliament (HMCTS). New arrangements for the provision of through the Treasury Select Committee, which has interpreters and translators services to HMCTS are to recently published the findings of its inquiry into the be introduced soon under a Ministry of Justice framework accountability of the Bank of England. The Government agreement. will consider the report carefully and respond in due course. Asked by Lord Myners Bahrain To ask Her Majesty’s Government who reviews Question the performance of the Court of the Bank of England, the Governor and the Deputy Governors; and to Asked by Lord Hylton whom and how they report. [HL13306] To ask Her Majesty’s Government what information they have received concerning those Lord Sassoon: Court conducts periodic board held in prison in Bahrain following recent protests effectiveness reviews. The performance of the governor and demonstrations; and whether they will assess and deputy governors is assessed by the Committee of the extent to which such persons will be accorded Non-Executive Directors. due process. [HL13242] Asked by Lord Myners To ask Her Majesty’s Government whether they The Minister of State, Foreign and Commonwealth will commission an independent review of the Bank Office (Lord Howell of Guildford): We are aware that of England’s record on forecasting for economic many people remain in prison following protests in growth compared with that of other forecasters; Bahrain earlier this year. We urge the Bahraini authorities and whether they will commission an audit of the to deal with these cases quickly and in a fair and Bank of England’s processes to determine whether transparent manner. there are in-built biases that overestimate growth His Majesty King Hamad established the Independent and under-estimate inflation. [HL13390] Commission of Inquiry to look in to human rights abuse during the unrest; this is likely to include examining allegations of the mistreatment of protestors. The Lord Sassoon: Her Majesty’s Government have no commission is due to publish its findings on 23 November. plans to commission an independent review of the We urge the Government of Bahrain to respond positively Bank of England’s record on forecasting for economic with effective implementation of reforms. growth or an audit of the Bank of England’s processes. WA 175 Written Answers[LORDS] Written Answers WA 176

Banking Asked by Lord Myners Questions To ask Her Majesty’s Government what assessment Asked by Lord Myners they have made of whether the arrangements for segregating client funds from those of advisers, To ask Her Majesty’s Government whether progress investment managers, banks and broker dealers are was made at the G20 meeting in Cannes on the effective, in the light of the failure of MF Global promotion of resolution, or living will, plans for and its subsidiaries; and whether the Financial banks; and, if so, what was the nature of that Services Authority intends to devote more resources progress, and what are the implications for United to this risk area. [HL13184] Kingdom banks. [HL13183] Lord Sassoon: MF Global UK entered special administration on 31 October 2011. It is too soon to comment on the implications of this administration for the client funds regime. The Commercial Secretary to the Treasury (Lord Any future reassessment of the arrangements for Sassoon): In the final declaration of the G20 Cannes segregating client funds would be a matter for the summit, Members endorsed the Financial Stability Financial Services Authority (FSA), which has recently Board’s (FSB) comprehensive policy framework which established a client asset specialist unit to help ensure included a new international standard for resolution the UK regulatory regime delivers adequate protection regimes.1 This included requirements for recovery and of client funds. resolution planning (RRPs), together with the The Government maintain a regular dialogue with development of other resolution tools2 such as bail-in. the FSA on these matters. Members further agreed to: implement the FSB standards and recommendations Banking: Cheques within the agreed timelines, with the FSB carrying Questions out an iterative series of peer review assessments of implementation, the first thematic peer review beginning Asked by Lord Laird by end 2012. Additionally, the FSB Peer Review To ask Her Majesty’s Government what instructions Council will, by 2013, undertake an initial review of they have given to those banks in which they have whether the global systemically important financial an investment to reduce the length of time required institution (G-SIFI) requirements, including relating to clear a cheque. [HL13282] to RRPs and institution-specific co-operation agreements, have been implemented in an effective manner;3 To ask Her Majesty’s Government what instructions they have given to those banks over which they have commit to undertake the necessary legislative changes; control to reduce the length of time for a bank to step up co-operation among authorities; and clear a cheque. [HL13283] strengthen supervisory mandates and powers. The Commercial Secretary to the Treasury (Lord Under the agreement, UK-incorporated G-SIFIs Sassoon): The Government have issued no instructions will be expected to have in place a recovery and to the banks to reduce cheque clearing times. The resolution plan containing all of the elements set out Government do not intervene in the day-to-day running in Annexe III of the FSB’s Key Attributes of Effective of the banks, in which they have an interest. Resolution Regimes for Financial Institutions paper.4 We look forward to the EU Commission’s proposals The Payments Council has tasked the Cheque and on bank recovery and resolution and their coherency Credit Clearing Company with examining how to with the FSB’s resolution recommendations. streamline the cheque clearing process, and to achieve efficiencies. UK authorities (the Bank of England, the Financial Services Authority (FSA) and HM Treasury) have already conducted a pilot project on RRPs involving Banking: Iceland the six largest UK banks. In August 2011, the FSA Questions published a consultation paper, setting out the proposed requirements for RRPs that will apply to all UK Asked by Lord Laird banks, building societies and certain large investment To ask Her Majesty’s Government, further to firms. This consultation closed on 9 November 2011. the Written Answer by Lord Sassoon on 31 October 1 See page 6 of the Cannes Summit Final Declaration: (WA 192), whether it remains their policy to levy on http://www.g20.org/Documents2011/11/Cannes% private United Kingdom financial services institutions 20Declaration%204%20November%/0202011.pdf any shortfall between what may be recovered and 2 See page 1 of the FSB’s Policy Measures to Address the £0.8 billion owing to HM Treasury after repayment Systemically Important Financial Institutions: http://www. of deposit balances above £50,000 in the failed financialstabilityboard.org/publications/r_111104bb.pdf Icelandic bank Landsbanki. [HL13139] 3 See page 9 of the FSB’s Overview of Progress in the Implementation of the G20 Recommendations for Strengthening Financial Stability: To ask Her Majesty’s Government, further to http://www.financialstabilityboard.org/publications/ the Written Answer by Lord Sassoon on 31 October r_111104gg.pdf (WA 192), whether and how they intend to levy on 4 See page 5 of the FSB’s Key Attributes paper: http://www. the United Kingdom financial services sector the financialstabilityboard.org/publications/r_111104cc.pdf. shortfall of the unrecovered amount of compensation WA 177 Written Answers[21 NOVEMBER 2011] Written Answers WA 178

paid to Landsbanki depositors; when they estimate The Office for Budget Responsibility also publishes the levy would be imposed; and what proportion an estimate of the expected net overall cost of the and amount the United Kingdom’s claim to the financial sector interventions, which includes details Landsbanki estate represents. [HL13220] of the value of the Government’s shareholdings in RBS and LBG. The next publication of this estimate will be on 29 November as part of its Economic and The Commercial Secretary to the Treasury (Lord Fiscal Outlook. Sassoon): In November 2008, following the Financial Services Authority’s announcement that the UK branch The Chancellor announced the sale of Northern of Landsbanki was in default, the Financial Services Rock Plc today (17 November). A press notice can be Compensation Scheme (FSCS) began payouts to UK found via the following web link: http://www.hm-treasury. depositors with Icesave. The FSCS made payments of gov.uk/press_129_11.htm. approx. £4.5 billion to UK depositors in Icesave. These The Government are satisfied that the sale of Northern payments were made up of three different tranches: Rock Plc to Virgin Money generates the best value for £2.3 billion for deposit balances up to ¤20,887 the public purse and represents an important first step (£16,872) which should have been paid by the in returning state-owned banks to the private sector. Icelandic Depositors and Investor Guarantee Further, the sale to Virgin Money will create a new Fund (DIGF); credible competitor in the UK retail banking sector and, in doing so, will increase choice for customers. £1.4 billion for deposit balances above £16,872 and below £50,000, for which the FSCS is liable; and The deal is expected to complete on 1 January 2012, pending European Commission merger clearance and £0.8 billion for deposit balances above £50,000, for Financial Services Authority approval. which HM Treasury is liable. We expect full recovery of the £2.3 billion for which Iceland is liable. The FSCS will levy the financial services industry for any shortfall in recoveries of the £1.4 billion, for which the FSCS is liable. Recoveries on the £0.8 billion payment for deposit Banking: Royal Bank of Scotland balances above £50,000 will be determined by the Question returns from the Landsbanki administration. HM Treasury does not have the power to levy the financial Asked by Lord Myners services industry for any shortfall between what may be recovered from the Landsbanki administration and To ask Her Majesty’s Government, further to the £0.8 billion owed to HM Treasury. HM Treasury the answer by the Prime Minister on 9 November will be liable for any shortfall. (Official Report, Commons, col. 280), how they will The FSCS has a claim of approximately £4.5 billion be “making our views known” on unacceptable in the Landsbanki estate. This includes Iceland’s liability. bonus payments at Royal Bank of Scotland. Further information on the Landsbanki administration [HL13310] can be found via the following web link: http://www.lbi.is/.

Banking: Northern Rock The Commercial Secretary to the Treasury (Lord Sassoon): The Government’s shareholding in Royal Question Bank of Scotland (RBS) is managed on a commercial Asked by Lord Myners and arm’s-length basis by UK Financial Investments Ltd (UKFI), a company which is wholly owned by the To ask Her Majesty’s Government by how much Government. the value of the taxpayer’s investment in Lloyds UKFI’s overarching objective is to protect and Banking Group and Royal Bank of Scotland has create value for the taxpayer as shareholder, with due fallen since May 2010; and whether they judge regard to financial stability and acting in a way that current market conditions to be suitable for the sale promotes competition. of Northern Rock. [HL13308] As the majority shareholder in RBS, the Government have made clear that they expect the bank to be a The Commercial Secretary to the Treasury (Lord back-marker and not a market leader on bonuses. Sassoon): The Government do not routinely value UKFI engages with the bank as a shareholder either Royal Bank of Scotland (RBS) or Lloyds Banking to ensure that remuneration incentives are designed Group (LBG). This information is already publicly to promote long-term sustainable performance. UKFI available from a wide variety of sources. also seeks to ensure that RBS is at the leading The Government do, however, estimate the value of edge of implementing the updated Financial Services their shareholdings in these banks. The most recent Authority (FSA) remuneration code. The Government official estimate of the value of the Government’s are determined that taxpayers’ investment in the banking shareholdings in RBS and LBG is contained in the system is recovered and, therefore, RBS must be able Treasury’s resource accounts for 2010-11, which show to attract and retain staff in order to protect and that the value of these holdings as at the end of March create value for the taxpayer. The Government believe 2011 was £55.3 billion. that the remuneration policies strike the right balance. WA 179 Written Answers[LORDS] Written Answers WA 180

Banks: Lending Broadcasting: Wireless Spectrum Questions Question Asked by Lord Myners Asked by Lord Hall of Birkenhead To ask Her Majesty’s Government whether bank To ask Her Majesty’s Government what steps lending data under Project Merlin, as published by they are taking to ensure that the film, broadcasting, the Bank of England, is collected and produced and entertainment industries will have sufficient according to the Bank’s Statistical Code of Practice; access to wireless spectrum for radio microphone and, if not, what are the implications of this for the and radio camera use in the next five years. reliance that can be placed on the data. [HL13255] [HL13172]

Baroness Rawlings: The matter raised is an operational The Commercial Secretary to the Treasury (Lord one for the independent regulator, Ofcom, rather than Sassoon): As the Bank of England make clear, the Ministers. Accordingly, officials at the Department for Project Merlin data that it collects are not gathered Culture, Media and Sport have spoken to Ofcom, under the Bank’s Statistical Code of Practice. However, which advises: the Governor stated that the Bank would perform a “light plausibility check” on the data. “We set out our decisions on future spectrum access for programme-making and special events (including wireless microphones Asked by Lord Myners and cameras) in a statement on 31 August 2010, available on our website at http://stakeholders.ofcom.org.uk/binaries/consultations/ To ask Her Majesty’s Government whether the bandmanager09/statement/statement310810.pdf”. demand for bank credit from small and medium-sized enterprises falls short of commitments made by banks under Project Merlin. [HL13256] Children: UN Committee on the Rights of the Child Lord Sassoon: The Merlin agreement states that, Question “the five banks have agreed to make available the Asked by Baroness Massey of Darwen appropriate capital and resources to support gross new lending to UK businesses, including the capacity To ask Her Majesty’s Government what progress noted above for UK small and medium sized businesses, they have made in implementing the recommendations of £190 billion, should sufficient demand materialise.” of the United Nations Committee on the Rights of However, these five banks have also “agreed to aim to the Child, highlighted by the report of the Children’s foster more demand”. Rights Alliance for England. [HL13019] Merlin is a commitment in respect of the calendar year 2011. The Government will assess the banks’ performance across the year. The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): In a Written Ministerial Statement on 6 December 2010, the Government gave a commitment to “give due consideration to the UNCRC articles when making new policy and legislation”. We Bats are using the UN Committee’s 2008 concluding Question observations as a reference point for where we can make progress. Asked by Lord Marlesford We are addressing many of the key areas of concern To ask Her Majesty’s Government, further to raised by the UN Committee, for example: the Written Answer by Earl Attlee on 12 October following a detailed review last year, we have consulted (WA 235–6), whether the meeting between the on proposals to strengthen the role of the Children’s Highways Agency and Natural England on the Commissioner to promote and protect the rights of future of building bridges for bats over roads has children in England in line with the UNCRC. The taken place; and whether they will in future evaluate proposals will be implemented through legislative the cost-effectiveness of bat bridges in the context changes as soon as the parliamentary timetable of constraints on public spending. [HL13078] allows; there have been significant reforms to the arrangements for children and families who have been unsuccessful Earl Attlee: The meeting between the Highways in seeking asylum, prior to deportation—in particular Agency and Natural England, also attended by the Government have said they will end the detention Department for Environment, Food and Rural Affairs, of children for immigration purposes and close Welsh Government and Countryside Council for Wales Yarl’s Wood detention centre; took place on 10 November 2011. Constraint on public we are tackling the links between children’s achievement spending is, and will continue to be, a key consideration in school and their background through a pupil in decisions made on what mitigation is provided on premium so that resources and support reach the agency projects. pupils who need them most; WA 181 Written Answers[21 NOVEMBER 2011] Written Answers WA 182

the Government are working with interested parties characterised by physical and mental fatigue and to address the issue of the commercialisation and fatigability”; however, this is referring to the symptoms sexualisation of children. This follows the independent associated with the condition and is not a reference to review by Reg Bailey and his report Letting Children its aetiology or classification. be Children which made a series of practical recommendations to businesses, broadcasters and regulators; Community Relations and Equality we are introducing free early education for disadvantaged Councils two year-olds, reforming Sure Start, recruiting Questions 4,200 extra health visitors and have reviewed the early years foundation stage so that the very youngest Asked by Lord Boateng children get the best start in life; To ask Her Majesty’s Government what discussions we have accepted Professor Munro’s recommendation they have had with the Equality and Human Rights to provide early help to families and children in Commission about the impact of spending cuts on order to prevent incidence of abuse and to ensure local community relations and equality councils. that children who have been abused receive appropriate [HL13288] support and protection; we are committed to improving outcomes for Baroness Verma: The Government Equalities Office, children in care and to improving the volume and as the sponsor body for the Equality and Human timeliness of adoption; Rights Commission, has regular discussions with the our Green Paper on special educational needs will Commission on many aspects of government policy, lead to significant reforms in the education and including the economy and the impact of spending health support for children with special educational decisions on community relations and equality groups. needs and disabilities, including in respect of giving Asked by Lord Boateng children a stronger voice in planning their support arrangements; To ask Her Majesty’s Government how many the development of a positive for youth statement, local community relations and equality councils to be published later this year, will begin to tackle were in receipt of grant funding by the Equality the committee’s concerns about the negative portrayal and Human Rights Commission and local authorities of young people in the media. in each of the past three years for which figures are This is by no means an exhaustive list of the available. [HL13289] Government’s progress on the UNCRC recommendations but provides a snapshot of some recent achievements. Baroness Verma: The Equality and Human Rights This year marks the halfway point between the UN Commission operate at arm’s length from government. Committee’s concluding observations from 2008 and Based on information provided by the commission, the Government’s next report to the UN Committee the following table shows the number of local community due in 2014. It will not be possible to implement all of relations and equality councils funded by the commission the UN Committee’s recommendations, but we want in each of the past three years. to make further progress in ways that will bring about Government do not record the number of local the greatest benefits for children. We will listen to community relations and equality councils that are views from the children’s commissioner and organisations grant funded by local authorities. This information is in the civil society in deciding on our next steps. not held or collated centrally and grant payments to these bodies are a matter for local authorities.

Chronic Fatigue Syndrome and Myalgic Year Number of organisations

Encephalomyelitis 2009-10 161 Question 2010-11 134 2011-12 114 Asked by The Countess of Mar To ask Her Majesty’s Government, in view of the fact that Chronic Fatigue Syndrome/Myalgic Credit Default Swaps Encephalomyelitis (CFS/ME) is categorised by the Question World Health Organisation’s mandatory International Categorisation of Diseases as a neurological disease, Asked by Lord Myners why Department for Work and Pensions guidelines To ask Her Majesty’s Government, further to define CFS/ME as “an illness that is characterised the Written Answer by Lord Sassoon on 9 November by physical and mental fatigue and fatigability”. (WA 49), whether HM Treasury or the Financial [HL13264] Services Authority have reviewed the criteria and processes used by the International Swaps and The Parliamentary Under-Secretary of State, Derivatives Association in determining a credit event Department for Work and Pensions (Lord Freud): DWP and the reliance that can be placed on credit default guidance does state that “The term chronic fatigue swaps in calculating net risk-weighted assets of syndrome (CFS) is used to describe an illness that is United Kingdom banks. [HL13307] WA 183 Written Answers[LORDS] Written Answers WA 184

The Commercial Secretary to the Treasury (Lord Crime: Metal Theft Sassoon): The procedures to be followed by the International Swaps and Derivatives Association Questions Determinations Committee, in determining whether a Asked by Lord Kennedy of Southwark credit event has occurred, are industry standards. They are established by the members of the credit derivatives To ask Her Majesty’s Government what assessment industry upon their own initiative. The procedures and have they made of the case for a licensing regime all decisions of the Determinations Committee are for scrap metal dealers. [HL13374] publically available and open to scrutiny. Credit Default Swaps can be used to reduce a firm’s The Minister of State, Home Office (Lord Henley): risk weighted assets when they are deemed to be The Home Office believes that some scrap metal yards effective protection against the underlying risks. There are a disposal route for stolen metal. Discussions are are specific criteria that set out what constitutes effective under way across government on whether legislative protection in the banking book. These are determined changes are needed to the Scrap Metal Dealers Act 1964 by the European capital requirements directive which to tackle metal theft. the UK has implemented. Only when these criteria are Asked by Lord Kennedy of Southwark met can Credit Default Swaps be relied upon to reduce risk weighted assets. To ask Her Majesty’s Government how many prosecutions there have been for metal theft offences in each year from 1996. [HL13429]

Crime: Anti-theft Devices Lord Henley: This information is not held centrally. Questions Asked by Lord Gardiner of Kimble Asked by Lord Kennedy of Southwark To ask Her Majesty’s Government what steps To ask Her Majesty’s Government what assessment they are taking to prevent metal theft from war they have made of the use of anti-theft devices such memorials and other public monuments. [HL13471] as ultraviolet fluorescent fluids to protect war memorials from damage or theft. [HL13431] Lord Henley: The Home Office supports the wide- ranging plan being delivered by the Association of Chief Police Officers (ACPO) metal theft working The Minister of State, Home Office (Lord Henley): group to tackle metal theft, including the theft from The Home Office is aware of the use of such products public buildings and memorials. Discussions are under on war memorials although no assessment has been way across government on whether legislative changes made. are needed to tackle metal theft. The Home Office is keen to explore and promote the use of all effective crime prevention measures, Cyclists: Helmets including forensic property marking products, although the use of such products is the decision of the property Question owner. Asked by Lord Laird More widely, the Forum for Innovation in Crime Prevention, working with Materials UK and wider To ask Her Majesty’s Government what plans materials and design communities, is actively involved they have to make the wearing of helmets by cyclists in the search for technical solutions to help reduce on public roads compulsory. [HL13379] crime. Earl Attlee: We have no plans to make the wearing Asked by Lord Kennedy of Southwark of cycle helmets compulsory. To ask Her Majesty’s Government what plans they have for greater use of anti-theft devices such Data Protection as ultraviolet fluorescent fluids to combat crime. [HL13432] Question Asked by Baroness Byford

Lord Henley: The Home Office is keen to explore To ask Her Majesty’s Government what action and promote the use of all effective crime prevention they are taking to ensure that the new Payments measures, including forensic property-marking products, Council system for switching current accounts will although the use of such products is the decision of allow personal customers to refuse to allow the the property owner. sharing of their personal data and transaction details More widely, the Forum for Innovation in Crime beyond that required by law. [HL13316] Prevention, working with Materials UK and wider materials and design communities, is actively involved The Commercial Secretary to the Treasury (Lord in the search for technical solutions to help reduce Sassoon): The Payments Council’s new service for crime. switching bank accounts will maintain existing high WA 185 Written Answers[21 NOVEMBER 2011] Written Answers WA 186 levels of data protection for customers and will only United States; and what are the implications for be used for the purposes of account switching. The Phase 1/2 trials to treat Stargardt’s Disease in patients service, which will be in place by September 2013, will at Moorfields Eye Hospital in London with stem not involve any additional third parties, nor require cells derived from embryos. [HL13464] any additional information from customers. The Parliamentary Under-Secretary of State, Egypt Department of Health (Earl Howe): The decision to halt the GRNOPCI trial was made by the sponsoring Question company on commercial grounds and not based on Asked by Lord Hylton any concerns related to the safety or efficacy of the stem cell product being tested in the trial. There are no To ask Her Majesty’s Government whether they implications for the trial under way at Moorfields Eye have raised with the interim Government of Egypt Hospital testing embryonic stem cells in Stargardt’s (a) the duration of emergency law, (b) the possibility Disease. of a review by normal criminal courts of sentences passed by military tribunals, (c) freedom of expression for individuals and the media, and (d) freedom to Eritrea organise and take part in strikes; and, if so, what Question responses they have received. [HL13320] Asked by Lord Avebury The Minister of State, Foreign and Commonwealth To ask Her Majesty’s Government what assessment Office (Lord Howell of Guildford): We regularly discuss they have made of whether Eritrea has fully complied our concerns about human rights issues in Egypt with with United Nations Security Council Resolution 1907 the Egyptian authorities. We have repeatedly called on of 23 December 2009. [HL13276] the Egyptian authorities to end the state of emergency. Both the Prime Minister, my right honourable friend Lord Howell of Guildford: Our assessment of Eritrea’s the member for Witney (Mr Cameron) and the Foreign compliance with United Nations Security Council Secretary, my right honourable member for Richmond Resolution 1907 mirrors the findings of the report of (Yorks) (Mr Hague) did so during their visits to Egypt the Monitoring Group on Somalia and Eritrea published in February and May, respectively. Most recently the in July 2011. The Monitoring Group report describes Deputy Prime Minister, my right honourable friend apparent continued support to individuals linked to the member for Sheffield Hallam (Mr Clegg) raised al-Shabaab and condemns Eritrea’s alleged involvement human rights issues with the Egyptian Prime Minister in the bomb plot to disrupt the African Union summit during his visit to Egypt on 20 October. in Addis Ababa. These allegations are extremely worrying. On 7 October the Parliamentary Under-Secretary We welcome steps taken by Eritrea and Djibouti to of State at the Foreign and Commonwealth Office, my resolve their border dispute, mediated by Qatar, and honourable friend the member for North East encourage talks to continue. Bedfordshire (Mr Burt) issued a statement expressing our serious concerns about the treatment of Maikel Nabil Sanad, an Egyptian blogger sentenced to three EU: Solvency II Directive years imprisonment in April by an Egyptian military court. He also stated the British Government’s view Question that freedom of expression, including freedom of the Asked by Lord Myners media and the ability for citizens to debate issues and challenge their Governments, is fundamental to building To ask Her Majesty’s Government whether they a democratic society. The Deputy Prime Minister also intend to require United Kingdom defined-benefit raised this case during his October visit. Mr Burt’s pension schemes to operate within the European statement also highlighted our concern about the trials Union Solvency II Directive. [HL13182] of civilians in military courts and the Foreign Secretary raised this issue when he visited Egypt in May. The Parliamentary Under-Secretary of State, Mr Burt raised our concerns about new Egyptian Department for Work and Pensions (Lord Freud): The laws to outlaw protests and strikes with the Egyptian Solvency II directive will introduce a new, risk-based Finance Minister in March. The Egyptian authorities standard for insurance regulation. have indicated that they will reform labour law. The European Insurance and Occupational Pensions Authority (EIOPA) has recently issued draft proposals Embryology regarding the European Commission’s call for advice on technical options for applying elements of Solvency II Question capital requirements under the institutions for occupational retirement provision (IORP) directive. Asked by Lord Alton of Liverpool Given the potentially serious effects this would have To ask Her Majesty’s Government what assessment on UK defined benefit pension schemes, the Government the Medicines and Healthcare Products Regulatory will be considering the proposals carefully and pressing Agency has made regarding the concerns raised by EIOPA to produce a full impact assessment for its the sudden halting of the GRNOPC1 trial in the proposals. WA 187 Written Answers[LORDS] Written Answers WA 188

EU: Taxation The Minister of State, Home Office (Lord Henley): Professor Murphy’s report is one of a number of Question reports that my right honourable friend, the Home Asked by Lord Pearson of Rannoch Secretary, has received about Mr McKinnon. These are all being considered as part of her assessment as to To ask Her Majesty’s Government whether they whether extradition to the United States is consistent have a veto over any proposal for a financial transaction with Mr McKinnon’s human rights. tax under Article 311 of the Treaty on the Functioning of the European Union; and whether they will use such a veto if a financial transaction tax is formally Finance: Clearing Houses proposed. [HL13305] Question Asked by Lord Myners The Commercial Secretary to the Treasury (Lord Sassoon): The Commission has put forward a proposal To ask Her Majesty’s Government whether they to introduce a financial transaction tax under Article 113 intend to review the arrangements under which the of the Treaty on the Functioning of the European margin triggers on Italian and French sovereign Union. Proposals put forward under Article 113 require bonds traded in London and cleared through unanimity in the Council of Ministers, giving the LCH.Clearnet are established by entities under the UK Government a veto over any such proposal. The supervision of French regulators. [HL13309] Government oppose a European financial transaction tax. The Commercial Secretary to the Treasury (Lord In addition, the Commission has put forward a Sassoon): London based LCH.Clearnet.Ltd and its proposal under Article 311 to use revenues from its Paris-based sister clearing house LCH.Clearnet SA proposed financial transaction tax to part-fund the are wholly owned subsidiaries of the holding company EU budget. Article 311 also requires unanimity in the LCH.Clearnet Group Limited but they operate Council of Ministers, giving the UK Government a independently of each other. veto over any such proposal. The Government oppose any new taxes to fund the EU budget. LCH.Clearnet Ltd is a recognised clearing house and is lead regulated by the Financial Services Authority (FSA) and the Bank of England. The FSA supervises LCH.Clearnet Ltd, including its risk management European Gendarmerie Force policies and operations, on a close and continuous Question basis. Asked by Lord Pearson of Rannoch LCH.Clearnet SA is based in Paris. It is lead regulated by the French authorities but it also holds a recognised To ask Her Majesty’s Government what is the overseas clearing house (ROCH) license in the UK. As purpose and latest position of the European Union is intended under the ROCH regime, the FSA places Gendarmerie Force; how many police are in training, reliance on the home state supervision of LCH.Clearnet from which countries, and where; and whether they SA for day-to-day regulation of this clearing house. will authorise the use of its services in the United The FSA and Bank of England are members of the Kingdom. [HL13292] Joint Regulatory Authorities (JRA), the regulatory college for the LCH.Clearnet Group (which includes LCH.Clearnet Ltd and LCH.Clearnet SA). The Minister of State, Home Office (Lord Henley): There have been no European Gendarmerie Force The JRA meets regularly at operational and (EGF) personnel deployed in the UK and the Government management levels and considers a wide range of currently see no circumstances in which they would areas of common interest for the participant authorities. consent to an EGF operation in the UK. The EGF is a multinational initiative of six countries (France, Italy, Spain, Portugal, the Netherlands and Romania) aimed Finance: Equity Markets at improving crisis management capability in sensitive Questions areas and supporting peacekeeping missions around the world. The UK does not participate in this initiative. Asked by Lord Harrison To ask Her Majesty’s Government what steps they will take to address the findings of the Kay Extradition: Gary McKinnon review in respect of investors’ fiduciary duties. Question [HL13353] Asked by Lord Maginnis of Drumglass The Parliamentary Under-Secretary of State, To ask Her Majesty’s Government whether Department for Business, Innovation and Skills (Baroness Professor Declan Murphy’s original evidential medical Wilcox): The findings of the Kay review will be presented report relating to Gary McKinnon has been submitted in its final report, due to be published in the summer and accepted in its entirety for consideration by the of 2012. The Government will respond appropriately Home Secretary. [HL12934] once the final report has been published. WA 189 Written Answers[21 NOVEMBER 2011] Written Answers WA 190

Asked by Lord Harrison Results to date are very positive. Initial findings from schemes run in England this year show only 0.25 per To ask Her Majesty’s Government what steps cent of total catches of prohibited species were discarded they will take to improve investor oversight of listed and overall catches of undersized fish of any species companies. [HL13354] are low, indicating the effectiveness of selectivity measures. We are seeking to extend these trials in 2012, though Baroness Wilcox: In June 2011, the Secretary of negotiations with the European Commission and, in State for Business commissioned Professor John Kay some instances, Norway, to test CO in mixed fisheries to undertake an independent review to examine investment and in fisheries where discards are high. in UK equity markets and its impact on the long-term We are also conducting a wide range of work to performance and governance of publicly traded UK improve the selectivity of fishing gear, with the aim of companies. The review will consider a variety of issues, getting fishermen to catch less unwanted fish in the including investor oversight and shareholder engagement first place. These include initiatives in the Irish Sea in listed companies, and will report in summer 2012. and the south-west (Project 50 per cent). Following the Commission’s proposals for reform Finance: Websites of the CFP, from next year we will also aim to undertake discard ban trials to understand how a landing obligation Question can work in practice. These will be supported by Asked by Baroness McDonagh studies on the survivability rates of certain species if they are discarded. To ask Her Majesty’s Government what were the In addition, the UK’s Fishing for the Market project costs associated with revising and re-branding the was aimed at the market side of the industry and former Money Made Clear website as the Money sought to increase consumer demand for underutilised, Advice Service website on 4 April 2011, including sustainable species that are often discarded. Defra is staff costs. [HL13322] currently considering how recommendations can be taken forward in partnership with members of the The Commercial Secretary to the Treasury (Lord seafood industry. Sassoon): The Money Advice Service enhanced and We are involving fishermen at every opportunity in rebranded its web offering prior to its launch in April work to cut discards. They are best placed to advise 2011. This included consolidating its previous websites about what works in a fishery in practice as a one-size (the Consumer Financial Education Body website and approach does not fit all. the Money Made Clear website) on a single platform under the Money Advice Service brand. The Money Advice Service states that the new website includes enhanced features, resulting in improved user experience, Fuel Smuggling and Money Laundering accessibility, speed and search engine performance. Question The Money Advice Service confirms that the total costs, including staffing costs, associated with enhancing Asked by Lord Laird its website were approximately £254,000 (excluding To ask Her Majesty’s Government what proposals VAT). they have to end fuel smuggling and money laundering in Northern Ireland. [HL13190] Fishing Question The Commercial Secretary to the Treasury (Lord Asked by Lord Kennedy of Southwark Sassoon): On fuel smuggling, I refer the noble Lord to the answer I gave him on 28 June 2011 (Official Report, To ask Her Majesty’s Government what action col. WA 393). they are taking to reduce the discarding of fish. Businesses that are at risk of being used by criminals [HL13478] to launder money are subject to the money laundering regulations, which require them to have policies and The Parliamentary Under-Secretary of State, procedures in place to detect and deter money laundering Department for Environment, Food and Rural Affairs and to report any suspicions to the Serious Organised (Lord Taylor of Holbeach): Discards are a clear waste Crime Agency. They are supervised for their compliance of natural resources, disruptive to marine ecosystems by one of the 28 supervising authorities. For businesses and ethically undesirable. The UK is seeking fundamental that are supervised by a public sector supervising reform of the Common Fisheries Policy (CFP) to authority, supervision normally involves registration, minimise this wasteful practice, but we are also taking the provision of guidance supplemented by a programme action now to cut discards and to gather the necessary of inspections and enforcement action against non- evidence to reform the CFP. compliant businesses. The UK has run successful trials to test catch quota HM Revenue and Customs (HMRC) is the supervisor (CQ) management on North Sea cod in 2010, and of some of the highest risk businesses in Northern extended these trials in 2011 to include Western Channel Ireland and is developing an intelligence-led and risk-based sole. CO is designed to measure quota uptake at point approach to ensuring effective compliance with the of capture rather than counting uptake by landings. money laundering regulations. WA 191 Written Answers[LORDS] Written Answers WA 192

In addition, the Government undertook a thorough Asked by Baroness Tonge review of the money laundering regulations in 2009-10. While this concluded that they were broadly effective To ask Her Majesty’s Government what and proportionate, the Government have consulted on representations they have made to the United Nations specific proposals to improve the regulations. These Relief and Works Agency concerning the strike by include increasing the powers available to HMRC to schoolteachers in United Nations schools following help it prevent non-compliant businesses from operating the suspension of a head teacher for sharing a and to apply robust fit and proper test for individuals platform with Hamas, the governing party in Gaza. seeking to run a high-risk business. Any changes will [HL13247] be announced in 2012. Lord Howell of Guildford: Representatives from the United Nations Relief and Works Agency (UNRWA) Gaza will be visiting the Foreign and Commonwealth Office this week, when we expect the issue of the strike by Questions schoolteachers in United Nations schools will be discussed. Asked by Baroness Tonge We have not made recent representations to UNRWA on this issue. To ask Her Majesty’s Government what representations they have made to the Israeli Government concerning the 30 October attack on Genetically Modified Organisms Rafah in Gaza, which killed 12 people. [HL13245] Question Asked by The Countess of Mar Lord Howell of Guildford: Following the Israeli air strikes on Gaza and the rocket attacks by Palestinian To ask Her Majesty’s Government on what date militant groups on Israel, the Minister of State for (a) genetically modified mosquito eggs were exported Foreign and Commonwealth Affairs, my honourable for open release in Panama; (b) Panama was notified friend the member for Taunton Deane (Mr Browne), of that export; and (c) the export notification was issued the following statement on 29 October: “Today’s sent to the Department for Environment, Food and escalation in violence is deeply unhelpful. We call for Rural Affairs; and whether they will place a copy of all sides to exercise restraint. We condemn any actions the export notification documents, including the that target innocent civilians”. risk assessment, in the Library of the House. The UK condemns all such violence which represents [HL13525] both an unacceptable risk to innocent life and a real obstacle to ongoing direct negotiations between Israel The Parliamentary Under-Secretary of State, Department and the Palestinians. for Environment, Food and Rural Affairs (Lord Taylor Our policy on Hamas is clear: the quartet have set of Holbeach): We understand that the shipment of out clearly that Hamas must renounce violence, recognise GM mosquito eggs to Panama has been for contained Israel and accept previously signed agreements. Hamas use purposes only.Wetherefore do not hold any associated must make credible movement towards these conditions, documentation or detail about the export. which remain the benchmark against which its intentions should be judged. The clear focus for now must be a return to direct negotiations between Israel and the Government Departments: E-mails Palestinians as soon as possible. Questions Asked by Baroness Tonge Asked by Lord Kennedy of Southwark To ask Her Majesty’s Government what assessment To ask Her Majesty’s Government whether any they have made of the ability of Hamas leaders to (a) Ministers, (b) special advisers, or (c) officials, in control the activities of Islamic Jihad in Gaza. the Home Office use private email accounts for [HL13246] dealing with matters of Government business. [HL12542] Lord Howell of Guildford: Since 2006 Hamas has been in effective control of Gaza. Hamas maintains The Minister of State, Home Office (Lord Henley): the largest militia and benefits from profits from the The Ministerial Code, the Code of Conduct for Special illegal tunnel trade. Hamas therefore has significant Advisers, and the Civil Service Code set out how influence over other militant groups and the onus is on Ministers, officials and special advisers within the it to prevent terrorist attacks in those areas where it Home Office should conduct government business. exercises de facto authority. Asked by Lord Kennedy of Southwark Following the rocket attacks on southern Israel launched by Palestinian Islamic Jihad on 26 October To ask Her Majesty’s Government what advice —1 November and the consequent international is given to (a) Ministers, (b) special advisers and condemnation, we understand Hamas exerted efforts (c) officials, in the Home Office about the use of to persuade all militant groups to comply with a private email accounts for dealing with matters of ceasefire, which has held since then. Government business. [HL12543] WA 193 Written Answers[21 NOVEMBER 2011] Written Answers WA 194

Lord Henley: The Ministerial Code, the Code of The third annual report on implementation of the Conduct for Special Advisers, and the Civil Service end-of-life care strategy provides detail of progress Code set out the standards of conduct that is expected along the entire end of life care pathway and can be of Ministers, officials and special advisers in the way found on the department’s website at: www.dh.gov.uk/ that they conduct government business. en/Publicationsandstatistics/Publications/ PublicationsPolicyAndGuidance/DH_130239. Government Departments: Risk Registers Question Health: Musculoskeletal Conditions Asked by Lord Touhig Questions To ask Her Majesty’s Government, further to Asked by Lord Harrison the Written Answer by Lord Sassoon on 7 November To ask Her Majesty’s Government what assessment (WA 14), whether the Government have ever had a they have made of the impact of early intervention Treasury risk register. [HL13243] musculoskeletal physiotherapy in reducing sick leave, and enabling people on sick leave to return to The Commercial Secretary to the Treasury (Lord work. [HL13357] Sassoon): The Treasury has in place robust processes To ask Her Majesty’s Government what assessment for monitoring, managing and mitigating against internal they have made of the potential savings to the and external risks. Our risk management framework welfare benefits budget of ensuring that people monitors economic, fiscal and operational risks centrally with musculoskeletal problems have early access and ensures that these risks are discussed at the Treasury to physiotherapy to enable them to remain in Board, its sub-committee and the Executive Management employment. [HL13358] Board.

The Parliamentary Under-Secretary of State, Department Health: End-of-life Care of Health (Earl Howe): There have been no assessments Question carried out centrally. It is for local National Health Service organisations to decide how best to use their Asked by Lord Dubs funds to meet national and local priorities for improving health and to commission services accordingly. This To ask Her Majesty’s Government what measures process provides the means for addressing local needs are in place to ensure that dying individuals who do within the health community including the provision not have an advance care plan, which should ensure of and access to physiotherapy services. that their end-of-life wishes are discussed and recorded, are identified and receive good quality end-of-life There have been number of initiatives to improve access to physiotherapy and other allied health professional care. [HL13363] (AHP) services. These include: the self-referral to physiotherapy pilots which The Parliamentary Under-Secretary of State, supported the findings from research in Scotland. Department of Health (Earl Howe): The Government The pilots identified a number of benefits including have confirmed their commitment to improving quality earlier presentation, lower levels of work absence and choice in palliative and end-of-life care for all and supporting self-care by empowering patients to patients in the National Health Service White Paper, be more actively involved in managing their condition. Equity and Excellence: Liberating the NHS. Information about this project can be found at: Advance care planning was highlighted as a key Self-referral Pilots to Musculoskeletal Physiotherapy area within the end-of-life care strategy.We are committed and the Implications for Improving Access to other to implementing the strategy. AHP Services: www.dh.gov.uk/prod_consum_dh/ The strategy sets out an end-of-life care pathway groups/dh_digitalassets/@dh/@en/documents/ which begins with identifying people as they approach digitalasset/dh_116358.pdf; the end of life and then planning, with them and their information from AHP referral to treatment data family if possible, for their future care. This can include collection will enable AHPs, including physiotherapists, advance care planning as set out in the Mental Capacity to innovate to improve services. The Allied Health Act 2005. These elements of the pathway have been Professional Referral to Treatment guide can be highlighted in a specific end-of-life care workstream in found at: www.dh.gov.uk/prod_consum_dh/groups/ the department’s Quality, Productivity, Innovation and dh_digitalassets/@dh/@en/@ps/documents/ Prevention (QIPP) programme. digitalasset/dh_115297.pdf; The department is also supporting the Dying Matters theAHPServiceImprovementProjectwhichdemonstrated National Coalition, run through the National Council in a range of services, including physiotherapy, how for Palliative Care (NCPC). This aims to challenge the service redesign can improve access and clinical taboo about discussing death, dying and bereavement outcomes. Details about this project can be found which can inhibit both the public and professionals at: www.dh.gov.uk/en/Publicationsandstatistics/ from having the necessary conversations to allow for Publications/PublicationsPolicyAndGuidance/ proper end-of-life care planning. DH_126840. WA 195 Written Answers[LORDS] Written Answers WA 196

Housing The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Question Wilcox): Section 1277 of the Companies Act 2006 Asked by Lord Kennedy of Southwark provides a power to require the disclosure of information about the exercise of voting rights by, among others, To ask Her Majesty’s Government what assessment institutional investors. We do not currently plan to have they have made of the barriers facing first-time bring this section into force. The Financial Reporting buyers seeking to buy a home in London. [HL13174] Council’s Stewardship Code requires institutional investors to disclose their voting records. The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): Lack of mortgage availability for households without a large deposit (typically 20 per Iraq: Camp Ashraf cent) remains a major barrier to home ownership even for creditworthy households in London. Question This Government are committed to a return to Asked by Lord Eden of Winton economic stability through our plans for deficit reduction and economic growth. This will free up lending for To ask Her Majesty’s Government what aspiring home owners, keep mortgage rates low and representations they are making to the Government improve credit availability. We held two first-time-buyer of Iraq concerning recent developments at Camp summits which have stimulated fresh thinking and Ashraf; whether they have had discussions with the partnerships between lenders and housebuilders. We European Union and the United States of America are seeing more mortgages available to those with a about immediate threats to the safety of the residents 5 per cent or 10 per cent deposit and several sector-led at Camp Ashraf; and what action they are taking at innovative schemes to help first-time buyers have been the United Nations Security Council on reaching a announced by lenders and developers, with more in peaceful resolution before the end of December. the pipeline. [HL13171] Our shared ownership schemes, delivered under First Steps, help by enabling purchasers to buy a minimum 25 per cent share, with a smaller deposit and The Minister of State, Foreign and Commonwealth then increase their equity stake over time. We are also Office (Lord Howell of Guildford): The UK remains helping first-time buyers in London through our FirstBuy deeply concerned at the humanitarian situation at scheme. Camp Ashraf. We continue to urge the Government of Iraq and the leadership of Ashraf to engage in constructive The Localism Act will transfer responsibility for negotiation to reach a peaceful and durable solution housing and regeneration activities from the Homes on the future of the residents of the camp. During his and Communities Agency in London, which manages visit to Iraq in October, the Parliamentary Under-Secretary the First Steps programme, to the Greater London of State for Foreign and Commonwealth Affairs, my Authority from April 2012. honourable friend the member for North East Bedfordshire (Mr Burt) discussed Camp Ashraf with Independent Commission on Banking the Iraqi Foreign Minister and more recently met with Question the newly appointed European Union Special Envoy to Camp Ashraf, Jean De Ruyt. Along with our Asked by Lord Laird international partners, we continue to press the Iraqi To ask Her Majesty’s Government, further to Government to ensure that the residents of Camp the Written Answer by Lord Sassoon on 25 October Ashraf are treated in accordance with the rights and (WA 134) concerning the Independent Commission protections they enjoy under international human rights on Banking, how the salary of £60,000 per year for and domestic Iraqi law and to show flexibility over the the chairman for two days work per week was end of year deadline to close the camp. But we are arrived at; and how it was agreed. [HL13191] clear that the issue is one for the sovereign Government of Iraq and the leadership of Camp Ashraf to resolve, The Commercial Secretary to the Treasury (Lord and that responsibility for a peaceful solution lies in Sassoon): The remuneration was agreed by senior their hands. The UK currently has no plans to raise officials to compensate the chairman for loss of earnings Camp Ashraf at the United Nations Security Council. as warden of All Souls College, Oxford.

Institutional Investors: Voting Records Israel Question Questions Asked by Lord Myners Asked by Lord Hylton To ask Her Majesty’s Government what action would need to be taken to require institutional To ask Her Majesty’s Government what investors to publish records of their voting at meetings representations they have made to the Government of United Kingdom-listed public companies; and of Israel regarding the release of Mr Hassan Yousef, whether they have plans to bring in this requirement. re-arrested on 1 November in the West Bank together [HL13179] with his son Mosab Hassan Yousef. [HL13197] WA 197 Written Answers[21 NOVEMBER 2011] Written Answers WA 198

The Minister of State, Foreign and Commonwealth Justice: Pre-trial Detention Office (Lord Howell of Guildford): We are aware that Mr Hassan Yusuf and his son were arrested on Question 1 November and have been sentenced to six months’ Asked by Baroness Whitaker administrative detention. This is the second time Mr Yousef has been arrested by the Israeli authorities. To ask Her Majesty’s Government, further to Our consulate-general in Jerusalem is monitoring this the Written Answer by Lord McNally on 7 November case. (WA 18), whether they will publish on 1 December We regularly raise our concerns with the Israeli their response to the European Commission’s Green Government about the application of due process and Paper on pre-trial detention; and, if not, why not. the treatment of Palestinian detainees. We shall continue [HL13324] to raise our concerns with the Israeli authorities as appropriate. The Minister of State, Ministry of Justice (Lord Asked by Baroness Tonge McNally): The deadline for responses to the European To ask Her Majesty’s Government what Commission’s Green Paper on detention issues is representations they have made to UNESCO 30 November. The European Commission will publish concerning the state of the Mughrabi Bridge leading responses to the consultation, including the UK response, on its website shortly after that date. to the Temple Mount in East Jerusalem. [HL13248]

Lord Howell of Guildford: The issue of the Mughrabi Legal Aid ramp has been the subject of discussion at the Executive Board of The United Nations Educational, Scientific Question and Cultural Organisation (UNESCO). The UK was Asked by Lord Boateng not a member of this board until last week, and we have not made specific representations to UNESCO To ask Her Majesty’s Government what assessment directly. they have made of the impact of changes in legal On 26 October, the city engineer of Jerusalem aid franchising on the advisory services provided by announced that the Mughrabi ramp was no longer community relations and equality councils. safe. A Jerusalem municipality spokesperson stated [HL13291] that the ramp should be “demolished and a permanent structure built on the site”. The British Embassy in Tel Aviv has discussed the issue with the Israeli authorities The Minister of State, Ministry of Justice (Lord and asked them to consult fully with relevant parties, McNally): The impact assessment published alongside including UNESCO, before any work on the bridge is the Government’s response to consultation lays out carried out. the best estimates of the costs and benefits of the legal aid reforms, however these did not consider the effects Asked by Baroness Tonge of the reforms on advisory services provided by To ask Her Majesty’s Government what community relations and equality councils. representations they have made to the Government of Israel to persuade them to allow International Atomic Energy Authority inspectors into Israel. [HL13249] Magna Carta Question

Lord Howell of Guildford: The Government have Asked by Lord Laird regular dialogue with the Government of Israel on To ask Her Majesty’s Government, further to nuclear issues. We consistently call on Israel to agree a the Written Answer by Lord McNally on 7 November full scope comprehensive safeguards agreement with (WA 18–19) concerning the celebration of the the International Atomic Energy Agency. 800th anniversary of the signing of the Magna Carta Asked by Baroness Tonge in 2015, what organisation they will work with in Northern Ireland to arrange celebrations there. To ask Her Majesty’s Government what [HL13281] representations they have made to the Government of Israel concerning its failure to accede to the Nuclear Non-Proliferation Treaty. [HL13250] The Minister of State, Ministry of Justice (Lord McNally): The commemorations and events to celebrate the 800th anniversary of the sealing of the Magna Lord Howell of Guildford: The Government have Carta are being co-ordinated by the Magna Carta regular discussions with the Government of Israel on Trust, an organisation independent of government. I a wide range of nuclear issues. During these dialogues am keeping in contact with the trust about their plans, we have consistently encouraged Israel to sign up to but I would suggest that the noble Lord contacts the the Nuclear Non-Proliferation Treaty. trust direct with any detailed questions that he has. WA 199 Written Answers[LORDS] Written Answers WA 200

Marine and Coastal Access Act 2009 service online, by telephone, or face-to-face through a national network. These plans include appropriate Question resources for marketing and promotion to raise awareness Asked by Lord Clement-Jones of the service and drive usage of its products and services. To ask Her Majesty’s Government what timetable is in place for completing the coastal path as set out in the Marine and Coastal Access Act 2009 and National Institute for Health and Clinical what budget has been allocated for this. [HL13169] Excellence Question The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs Asked by Lord Naseby (Lord Taylor of Holbeach): There is no timescale in the Marine and Coastal Access Act 2009 for implementation To ask Her Majesty’s Government when the of the coastal route, but we will introduce the new methodology used by the National Institute for right of coastal access on a 30-kilometre stretch of the Health and Clinical Excellence to calculate the English coast between Portland and Lulworth Cove in value of a drug was last changed. [HL13454] Dorset in time for the Olympic and Paralympic sailing events, which begin in July 2012. Natural England is The Parliamentary Under-Secretary of State, Department also currently working on proposals to implement of Health (Earl Howe): The National Institute for coastal access in a further five areas around the coast, Health and Clinical Excellence (NICE) develops guidance as we announced in October 2010. When proposals for the National Health Service on the clinical and for the coastal route have been prepared in each of the cost-effectiveness of medicines and other health technologies five areas, Natural England will start a period of local through its technology appraisal programme. consultation. NICE is an independent body and is responsible for Natural England has estimated that the costs to developing its own technology appraisal processes and deliver coastal access at Weymouth and in the five lead methods, in consultation with stakeholders. areas where it has started work will be £34,000, £40,000 and £165,000 in the years 2012-13, 2013-14 and 2014-15 NICE is currently reviewing its Guide to the Methods respectively. of Technology Appraisal and further information on the review process is available at: www.nice.org.uk. NICE last published an updated guide to the methods Money Advice Service of technology appraisal in 2008. Question Asked by Baroness McDonagh NHS: Delayed Transfers To ask Her Majesty’s Government what market Question research and analysis of consumer demand was Asked by Baroness Smith of Basildon conducted during business planning in advance of the launch of the Money Advice Service; whether To ask Her Majesty’s Government, in the light demand has been above or below expectations; and of statistics produced by the Department of Health whether the Service has been supported with sufficient showing that between January and March 2011 marketing and promotion. [HL13210] 75 per cent of all acute delayed transfers were of people aged 75 or over, whether they will reverse the The Commercial Secretary to the Treasury (Lord decision to stop collecting this data in this form, Sassoon): The independent Thoresen Review in 2008 given its role in helping to understand the relationship estimated demand for a national Money Advice between the National Health Service and social Service, which led to principles behind the service. An care provision for older people. [HL13140] evaluation of the pilot, including consumer demand, is available on the Money Advice Service’s website: The Parliamentary Under-Secretary of State, Department www.moneyadviceservice.org.uk. of Health (Earl Howe): No one should be made to stay The Money Advice Service became nationwide in in hospital longer than is necessary. The National April 2011 and launched an integrated marketing Health Service and social care must work together to campaign in June 2011. The service has so far received ensure people have the support they need on leaving over 2.7 million visits to its website and over 270,000 visits hospital. Some patients need particular support after a to the online health check, meaning it is on course to spell in hospital to settle back into their homes, recover meet its target of achieving 500,000 health check visits theirstrengthandregaintheirindependence.TheGovernment by the end of the financial year. have increased the level of investment made available This year, the Money Advice Service has reviewed to local health and care services to spend on front line its products, services and delivery channels, including services and helping people return to their homes after conducting further analysis and research into consumer a spell in hospital. demand. It is now seeking to improve what it offers to While it is recognised that the delays for over-75s is consumers, making sure that it delivers more to more a large proportion of the total, the aim should be people. It will continue to offer everyone access to the reducing the number of delays for all ages. Latest WA 201 Written Answers[21 NOVEMBER 2011] Written Answers WA 202 figures showed that 76 per cent of acute delays were This review will cover psychiatric, neuropsychological for over-75s and 23 per cent of admissions were for and peripheral neuropathy outcomes as well as evidence over-75s. for autonomic dysfunction. These are the primary The spending review recognised the importance of areas of toxicological research undertaken with social care in protecting the most vulnerable in society. organophosphates. In recognition of the pressures on the social care The Health Protection Agency advises that the system in a challenging local government settlement, potential toxicological effects on the heart, respiratory the Government have allocated an additional £2 billion system and mitochondrial function should be identified by 2014-15 to support the delivery of social care and from the standard package of toxicological tests required help protect people’s access to services upon discharge. under European Union legislation for the active ingredients As part of this funding, an allocation of £150 million of pesticides, including organophosphates. has been made available this year for reablement and £648 million for social care spend that benefits the NHS which could help to reduce the level of delayed Overseas Aid discharges. The reablement money will help people to Questions leave hospital more quickly, get settled back at home with the support they need, and to prevent unnecessary Asked by Lord Ashcroft admissions to hospital. Local authorities are responsible for decisions on how to allocate their resources. To ask Her Majesty’s Government, further to the Written Answer by Baroness Northover on The data from the NHS are collected with the aim 31 October 2011 (WA 213–14), what percentage of of helping commissioners to commission the most the annual funding for the Department for effective and appropriate services for their local population International Development they estimate reaches and to help service users to make informed decisions. projects on the ground. [HL13234] The department frequently reviews the data collected to ensure it meets this aim and will continue to do so. Baroness Northover: The total amount spent by the Department for International Development on projects Organophosphates and programmes in 2010-11 amounted to £7,476 million. Question The amount of loss identified in 2010-11 amounted to £1.19 million of which £1.085 million was fully recovered. Asked by The Countess of Mar This amounts to 0.02 per cent of total expenditure. To ask Her Majesty’s Government why the remit Asked by Lord Ashcroft of the Committee on Toxicity of Chemicals in Food, Consumer Products and the Environment’s To ask Her Majesty’s Government, further to review of organophosphates does not include the Written Answer by Baroness Northover on examination of their effect on the heart, lungs, 31 October 2011 (WA 213–14), what are the projects autonomic system and mitochondria. [HL13263] funded by the Department for International Development which have been stopped over the The Parliamentary Under-Secretary of State, past five years due to the discovery of corruption. Department of Health (Earl Howe): The independent [HL13235] Committee on Toxicity of Chemicals in Food, Consumer Products and the Environment (COT) published a Baroness Northover: Since 2006 DFID have published report on organophosphate pesticides in 1999. in the departmental annual report tables of all projects The COT decided to review all relevant scientific halted during a financial year. The table below identifies literature published since the 1999 report. all programmes stopped due to issues of corruption:

Country Programme Issue Consequence Year

Uganda Uganda: Joint Budget Inaction against corruption £5 million withheld and corrective actions 2010-11 Support Operation found in official report on reassessed at subsequent Poverty Reduction CHOGM 2007 Budget Support (PRBS) review (Nov 2010). Decision taken not to reinstate £5 million as budget support but to reallocate to other programmes Kenya Kenya Education Sector Fraud discovered in September Resulted in £10 million not being disbursed 2009-10 Support (KESSP) 2009 by Government of Kenya to KESSP and the withdrawal of DFID Internal Audit Department funding through government systems Malawi Poverty Reduction Purchase of Presidential plane Planned PRBS of £22 million reduced to 2009-10 Budget Support £19 million (equivalent to annual cost of plane over next 5 years). Malawi Support to Parliament Concerns about misuse of £300,000 in funds remaining on project (out 2009-10 funds, exposed by audit of £800,000) suspended pending full (Feb 2009) investigation into use of other funds. Requested return of funds spent outside agreed terms of MOU WA 203 Written Answers[LORDS] Written Answers WA 204

Country Programme Issue Consequence Year

Uganda PRBS—General Budget Lack of progress on high level Withholding of £2.5 million in 2009-10 2009-10 Support (GBS) corruption Zambia PRBS II Embezzlement of funds in the £11 million of DFID’s total PRBS of 2009-10 Ministry of Health £31.5 million in 2009 due to be paid in May was delayed due to uncovering serious embezzlement of funds. £9 million was subsequently released in July 2009. The remaining £2 million was released in Oct 2009 after agreed actions were carried out. Tanzania PRBS Variable tranche withheld due Variable tranche of £11.5 million withheld— 2008-09 to poor provision of results notice given in April 2008 for 2008-09 information and weak action financial year (Jun-July) on corruption allegations Sierra Leone PRBS One-third of budget support Budget support was reduced from 2006-07 was dependent on government £15 million to £12.5 million. performance against agreed indicators. Government failed to meet some indicators on anti-corruption and financial management Vietnam Vietnam Rural Transport Alleged corruption involving The remaining £1.4 million for the project 2006-07 2 project the project Management Unit was suspended, pending a full investigation. in the Ministry of Transport The money was paid in October 2006 following government investigations and efforts to strengthen anti-corruption.

Palestine Changes proposed in the command paper will only affect expenditure on public service pensions in the Question medium and long term. The paper set out the Asked by Lord Hylton Government’s objective that those public service workers To ask Her Majesty’s Government whether they who, as of 1 April 2012, have 10 years or less to their will make representations to the Palestinian National current pension age, will see no change in when they Authority for the release of Shaykh Muhammad can retire, nor any decrease in the amount of pension Skafi and Muhammad Dhuqan, a student of Al-Najah they receive at their current normal pension age. Schemes University. [HL13239] and unions will discuss the fairest way of achieving this objective, within the Government’s parameter The Minister of State, Foreign and Commonwealth that costs to the taxpayer in each and every year do Office (Lord Howell of Guildford): Our consulate-general not exceed the Office for Budget Responsibility forecasts in Jerusalem is making inquiries with regards to the for public service pensions. case mentioned, and I will write to the noble Lord when I have more information. Pensions People Trafficking Question Question Asked by Lord Laird Asked by Lord Sheikh To ask Her Majesty’s Government whether their To ask Her Majesty’s Government what sanctions latest proposals on public sector pensions made to can be imposed on companies who employ trafficked public sector trade unions will be withdrawn in the individuals. [HL12093] event of strike action by those unions; and what is their estimate of the cash flow gap between public sector pension contributions and pension payments in the next five years (a) if the latest proposals had The Minister of State, Home Office (Lord Henley): not been made, and (b) if the latest proposals are If there is sufficient evidence against an individual accepted. [HL13223] within a company, that s/he knowingly employed and exploited trafficked victims, those individuals can be The Commercial Secretary to the Treasury (Lord prosecuted for offences of human trafficking or conspiracy Sassoon): As set out in the command paper Public to commit trafficking offences. The maximum penalty Service Pensions; Good Pensions that Last, the is 14 years’ imprisonment, a fine, or both. Furthermore, Government’s offer is conditional on the trade unions if there is evidence that a company has profited from and the Government reaching agreement on the reforms the employment of trafficked individuals, there can be by the end of the year. consideration of offences under the Proceeds of Crime The line “Net public service pension payments” in Act 2002 to seize any profits they have made. table 4.15 of the Office for Budget Responsibility’s If a company in a Gangmasters Licensing Authority- Economic and Fiscal Outlook 2011 shows forecast net regulated sector has knowingly employed illegal migrants expenditure on public service pensions to 2015-16. who are victims of trafficking, their licence can be WA 205 Written Answers[21 NOVEMBER 2011] Written Answers WA 206 revoked under Gangmasters Licensing legislation. They Lord Henley: Access to police national computer could also be issued with fines by the UK Border by non-police organisations is governed by the PNC Agency of up to £10,000. Information Access Panel (PIAP), whose membership The Gang masters Licensing Act 2004 also creates is comprised of the Association of Chief Police Officers, offences for persons who enter into arrangements the Association of Police Authorities, the Home Office, under which a gangmaster supplies him/her with workers and the National Policing Improvement Agency. or services while not under the authority of a licence. Organisations/bodies with full access to the police The sanction which applies here is a sentence of national computer: imprisonment not exceeding 51 weeks, or a fine, or both. 1. All territorial police forces of Great Britain Sanctions for illegal activities including human 2. Police Service of Northern Ireland (PSNI) trafficking can also be imposed on companies by Her 3. British Transport Police (BTP) Majesty’s Revenue and Customs (HMRC) by taxing 4. Civil Nuclear Constabulary the income, profits, and gains from human trafficking. 5. Isle of Man Constabulary 6. States of Jersey Police 7. States of Guernsey Police Service Piracy 8. National Identification Service (NIS) 9. Serious Organised Crime Agency (SOCA) Question 10. Ministry of Defence Police (MDP) Asked by Lord Marlesford 11. HM Revenue & Customs 12. The Security Service To ask Her Majesty’s Government in what 13. Secret Intelligence Service circumstances a pirate captured by a Royal Navy 14. Government Communications Headquarters ship would be entitled to claim asylum in the United 15. Defence Intelligence Staff Kingdom; and whether there is an obligation on 16. Department for Work and Pensions Her Majesty’s Government to convey any such 17. Scottish Crime and Drug Enforcement Agency asylum seeker back to the United Kingdom at 18. Association of Chief Police Officers (ACPO) public expense. [HL13334]

Other organisations have restricted access. These The Minister of State, Home Office (Lord Henley): include HM Court Service, Probation Service, the The United Kingdom is under no obligation to accept Royal Military Police (Names file only), Royal Air asylum claims from individuals on board Royal Navy Force Police (Names file only), Royal Navy Police ships. Accordingly, there is no specific obligation to (Names file only), and Royal Marines Police (Names convey any such asylum seeker back to the United file only). Kingdom. The Police Information Access Panel has defined the following organisations as non-police and has agreed that authorised users within these organisations Police: National Computer can have Names file-only access commensurate with Questions their previously stated and agreed business needs.

Asked by Baroness Byford 1. Access Northern Ireland 2. Charity Commission for England and Wales To ask Her Majesty’s Government whether the 3. Criminal Cases Review Commission police national computer is still operated and managed 4. Criminal Records Bureau by the National Policing Improvement Agency; and, if so, whether there are any plans to change that 5. Defence Vetting Agency 6. Department for Business, Innovation and Skills arrangement. [HL13313] 7. Department for Environment, Food and Rural Affairs 8. Department for Transport The Minister of State, Home Office (Lord Henley): 9. Department for Work and Pensions The police national computer (PNC) is still operated 10. Disclosure Scotland and managed by the National Policing Improvement 11. Driver and Vehicle Licensing Agency Agency (NPIA). As the NPIA is phased out next year, 12. Environment Agency a study to assess the future options for service delivery 13. Financial Services Authority is currently under way. 14. Foreign and Commonwealth Office Asked by Baroness Byford 15. Gangmasters Licensing Authority 16. G4S To ask Her Majesty’s Government which bodies 17. Health and Safety Executive have rights of access to the police national computer. 18. Highways Agency [HL13314] 19. Her Majesty’s Prison Service 20. Her Majesty’s Revenue and Customs To ask Her Majesty’s Government whether the 21. Home Office rules governing who may access the police national 22. Independent Police Complaints Commission computer are set centrally, or whether each body 23. States of Jersey Customs and Immigration Service with rights to access it sets its own terms. [HL13315] WA 207 Written Answers[LORDS] Written Answers WA 208

Baroness Rawlings: I refer the noble Lord to the 24. Mersey Tunnels Police answer that I gave him on 2 November 2011 (Official 25. Ministry of Justice Report, col. 274). There is no zero-rate VAT for the 26. National Air Traffic Service construction of memorials. However, the cost of VAT 27. National Health Service incurred by charities and faith groups in the construction, 28. Office for Civil Nuclear Security renovation and maintenance of memorials, can be 29. Office of Fair Trading reclaimed through the Department for Culture, Media 30. Royal Mail and Sport’s memorial grant scheme, subject to the 31. United Kingdom Border Agency claims meeting the published eligibility criteria. From 32. Vehicle and Operator Services Agency 2011-12 onwards, the memorial grant scheme has a fixed annual budget of approximately £0.5 million. Post Offices Asked by Lord Laird Questions To ask Her Majesty’s Government how many Asked by Lord Myners Questions for Written Answers tabled by members To ask Her Majesty’s Government whether they of the House of Lords have been answered by each have plans to broaden the range of products and government department in each month since services offered by community post offices. May 2010. [HL13384] [HL13212] The Parliamentary Under-Secretary of State, The Chancellor of the Duchy of Lancaster (Lord Department for Business, Innovation and Skills (Baroness Strathclyde): Figures detailing the number of Lords Wilcox): The Government support the expansion of QWAs that each government department answers in the range of products and services at all post offices, each month are not held centrally. including community post offices, wherever this is commercially and operationally possible. However, decisions on the introduction of specific additional Rome: British Embassies products and services are for Post Office Ltd and its clients. Question Asked by Lord Myners Asked by Lord Laird To ask Her Majesty’s Government what plans To ask Her Majesty’s Government what are the they have to expand the banking products offered economic advantages of having two fully staffed through post offices. [HL13213] embassies in Rome. [HL13285] Baroness Wilcox: The Government support the expansion of accessible and affordable financial services The Minister of State, Foreign and Commonwealth and products, including banking products, through Office (Lord Howell of Guildford): The two embassies post offices. However, decisions on the introduction of in Rome are accredited to different sovereign states. specific additional products and services are commercial There are approximately 110 staff in the British Embassy and operational matters for Post Office Ltd. to Italy and approximately 10 staff in the British Embassy to the Holy See (these figures include UK-based Prisons: Staff civil servants and staff employed locally; for operational and security reasons, we cannot provide a more detailed Question breakdown). The embassy to Italy focuses on the Asked by Baroness Quin bilateral relationship with Italy—including economic To ask Her Majesty’s Government how many and commercial relations. The embassy to the Holy staff previously employed at Latchmere House prison See focuses on a wide range of bilateral and global have been redeployed within the Prison Service. issues, including our co-operation on issues that impact [HL13343] on Britain’s prosperity such as climate change and international development. The Minister of State, Ministry of Justice (Lord McNally): Of the 79 staff employed at HMP Latchmere House on 13 July 2011, the date of the closure Scrap Metal announcement, 58 have been redeployed to existing Question vacancies within the National Offender Management Service. Asked by Lord Kennedy of Southwark Questions for Written Answer To ask Her Majesty’s Government whether they plan to ban cash transactions for large-scale or Questions high-value scrap metal transactions. [HL13375] Asked by Lord Morris of Manchester To ask Her Majesty’s Government when they Lord Henley: Discussions are under way across expect to be able to answer Question for Written government on whether legislative changes are needed Answer HL12379 regarding the Bomber Command to the Scrap Metal Dealers Act 1964 to tackle metal memorial, tabled on 12 October. [HL13069] theft. WA 209 Written Answers[21 NOVEMBER 2011] Written Answers WA 210

Smoking dates; and whether they have established whether Creativity Software have servicing contracts for Question surveillance technology which they have sold to Asked by Lord Laird Iran. [HL13294] To ask Her Majesty’s Government whether they have proposals to stop smokers from obstructing entrances of public buildings; and what assessment The Parliamentary Under-Secretary of State, they have made of whether the practice contributes Department for Business, Innovation and Skills (Baroness to passive smoking. [HL13339] Wilcox): The UK Government National Technical Authority for Information Assurance provides technical advice to BIS on whether information security products The Parliamentary Under-Secretary of State, are subject to export controls. In this capacity, on Department of Health (Earl Howe): The Government 31 March 2009 officials from this authority had a have no plans to stop smoking around the entrances of meeting with Creativity Software to consider products public buildings through legislation. However, as set that the company wished to export. out in the Tobacco Control Plan for England, published in March 2011, it is up to local authorities and National Asked by Lord Alton of Liverpool Health Service organisations who may wish to make non-enclosed parts of their properties smoke-free. To ask Her Majesty’s Government which United We are not aware of any evidence which quantifies Kingdom companies have sold surveillance equipment the level of exposure to second-hand smoke around to Iran, Syria, Bahrain, Egypt, Tunisia and Libya; entrances to public buildings. and what discussions they have held with the companies, and on what dates, about the purposes A copy of the Tobacco Control Plan for England has for which such equipment could be used. [HL13296] already been placed in the Library.

Surveillance: Telecommunications Baroness Wilcox: The UK’s export control regime Questions does not generally control such software and equipment in view of the legitimate commercial applications for Asked by Lord Alton of Liverpool which it can he used. We therefore have no information To ask Her Majesty’s Government what information on what non-controlled equipment has been sold to they have regarding the use of British-made surveillance these countries. tools in political repression in the Middle East and Meetings with companies to discuss a range of North Africa; and to which countries in those export control issues are held on a regular basis with regions such equipment has been sold. [HL13202] government representatives including on whether they require an export licence. The Minister of State, Foreign and Commonwealth Asked by Lord Alton of Liverpool Office (Lord Howell of Guildford): We take any reports of exports being misused overseas seriously, but as the To ask Her Majesty’s Government whether Secretary of State for Foreign and Commonwealth Creativity Software have sold surveillance technology Affairs, my right honourable friend the Member for to the Government of Yemen; what was sold and Richmond (Yorks) (Mr Hague) reported in his Statement when; and whether they will list all export licences, to the House of Commons of 18 July, there was no detailing (a) the names of companies, (b) the dates evidence of controlled military goods exported from of transactions, and (c) the sums of money involved the United Kingdom being used for internal repression for the sale of surveillance technology to Yemen, in the Middle East and North Africa. This remains the Iran and Syria over the past five years. [HL13416] case. Surveillance equipment, including telephone intercept equipment, covers a wide variety of equipment and Baroness Wilcox: Surveillance technology is not software, and generally is not controlled because of its intrinsically controlled under the UK export control use for a wide variety of legitimate uses and its easy regime as there are a number of legitimate commercial and widespread availability. If an item is subject to applications for which it can be used. We therefore control, the licence application is considered on a have no information on what has been sold to the case-by-case basis against the Consolidated European Government of Yemen by Creativity Software. Union and UK Export Licensing Criteria, in light of prevailing circumstances and paying particular attention There has been no export licences issued to Creativity to allegations of human rights abuses. The UK will Software to Yemen, Iran or Syria over the past five not issue licences where we judge there is a clear risk years. that the proposed export might be used to facilitate Asked by Lord Alton of Liverpool internal repression. To ask Her Majesty’s Government whether they Asked by Lord Alton of Liverpool introduced the British company, Detica, to the previous To ask Her Majesty’s Government what discussions Government of Tunisia; and whether surveillance they have had with Creativity Software about their technology was subsequently sold to the Government activities in Iran; who was present and on what of Tunisia. [HL13417] WA 211 Written Answers[LORDS] Written Answers WA 212

Baroness Wilcox: No record has been found of the This publication contains an illustrative breakdown Government introducing Detica to the previous of the tax gap by taxpayer behaviour for 2009-10. It Government of Tunisia. estimates that the tax gap from evasion was around Surveillance technology is not intrinsically controlled £4 billion, equivalent to 12 per cent of the total tax under the UK export control regime as there are a gap, with a further £4 billion from the hidden economy. number of legitimate commercial applications for which The tax gap from avoidance was estimated to be it can be used. Detica does not, under the UK export around £5 billion, 14 per cent of the total gap. control regime as it stands, need permission to export this kind of equipment. Because no permission is required, the Government therefore have no information Transport: Heavy Goods Vehicles on what has been sold to the Government of Tunisia Question by Detica. The Government keep the export control regime under review on this and other issues, with Asked by Lord Bradshaw regard to whether the law should be changed to require permission to be sought in future. To ask Her Majesty’s Government, further to the Written Answer by Earl Attlee on 2 November (WA 272), why they are using a weighting factor of Syria 100:1 for measuring the relative road damaging Question factor of a heavy lorry compared to a motor car, in the light of the technical evidence contained in Asked by Lord Hylton paragraphs 376–81 of the Report of the Inquiry into To ask Her Majesty’s Government what actions Lorries, People and the Environment, published in they will take following the military assault on the 1980. [HL13130] city of Homs, and the apparent breakdown of mediation by the Arab League. [HL13240] Earl Attlee: The 1980 Report of the Inquiry into The Minister of State, Foreign and Commonwealth Lorries, People and the Environment does suggest that Office (Lord Howell of Guildford): The Secretary of the fourth power law provides the best overall indication State for Commonwealth Affairs, my right honourable of the relationship between the damage done to roads friend, the member for Richmond (Yorks) (Mr Hague), and the vehicles responsible for that damage. has called on the Syrian regime to lift the siege of I refer the noble Lord to my answer of 17 October Horns and allow in international aid and relief efforts, 2011 (Official Report, col. WA 37-8) which explained to withdraw all Syrian forces from the towns and cities that the weighting factor of 100:1 in formula grant is of Syria. We have condemned the violent repression of also based on the approximation that damage to the the Syrian people and called for an immediate end to road surface is a function of the fourth power of the the killing. axle weight. My answer also noted that this formula On 9 November, in a Statement to the House of was shared with the UK Roads Board and agreed by a Commons my right honourable friend made clear that number of local authority highway engineers. the British Government will continue to work to intensify pressure on President Assad and his regime. Transport: Lorries On 14 October, we reinforced European Union (EU) measures to include sanctions against the Questions Commercial Bank of Syria, the largest in the country. Asked by Lord Bradshaw On 14 November, the EU listed a further 18 individuals involved in or supporting the regime’s activities and To ask Her Majesty’s Government what statistics put in place measures to prevent any further disbursement or estimates they have of the number of accidents of loans from the European Investment Bank to Syria. involving British lorries that have occurred in mainland EU sanctions, including an embargo on imports of oil Europe in each of the past five years. [HL13409] from Syria into the EU, are already restricting sources of finance to the regime. Earl Attlee: We do not hold statistics on accidents Taxation: Avoidance that occur outside Great Britain. Asked by Lord Bradshaw Question Asked by Lord Jacobs To ask Her Majesty’s Government, further to the Written Answer by Earl Attlee on 8 June 2010 To ask Her Majesty’s Government what proportion (WA 33), what progress they have made in developing of the £35 billion in taxes which they estimate is lost measures to increase the visibility to lorry drivers of to the United Kingdom each year results from pedestrians and cyclists; how they are encouraging (a) illegal tax evasion, and (b) legal tax avoidance. fleet operators to improve visibility through physical [HL13204] measures and training; and what lessons they have The Commercial Secretary to the Treasury (Lord learned from schemes such as the Crossrail lorry Sassoon): The latest tax gap estimates were published driver safety programme. [HL13435] in September 2011 in Measuring Tax Gaps 2011 on HMRC’s website at: http://www.hmrc.gov.uk/stats/mtg- Earl Attlee: Improving safety for vulnerable road 2011.pdf. users is a shared responsibility. WA 213 Written Answers[21 NOVEMBER 2011] Written Answers WA 214

Department for Transport sponsored research on The department has provided both operating subsidy improving driver vision has recently been completed and the following funding to the Tyne and Wear and will be published shortly. This evidence is being Metro system in each of the past five financial years. used actively in international negotiations to inform The revenue support was mainly to contribute to the discussions on improving the requirements for mirrors operational cost of the Metro. The capital grant was on vehicles. for capital renewals and the increase in this in the last Transport for London (TfL) has promoted a number three years relates to the Metro reinvigoration upgrade of initiatives including working with cyclists and freight programme. operators to improve safety. It has developed a theory and on-bike CPC driver training course on safe driving Revenue support Capital grant in London, has distributed 20,000 Fresnel lenses to 2006-07 £18.057m £4.305m lorry operators, and also run the freight operators 2007-08 £20.779m £4.391m recognition scheme. In addition it is promoting the use 2008-09 £22.681m £7.548m of vehicle technology such as sensors, and road safety 2009-10 £23.123m £21.495m education campaigns to raise awareness of the dangers 2010-11 £25.300m £35.789m of cyclists undertaking lorries at junctions. 2011-12 (to date) £11.066m £14.435m

Transport: Merseytravel The Government have provided to date £164 million of million of annuity support for the first phase of the Question Nottingham Express Transport system. Asked by Lord Storey The Government have also announced they will fund extensions to both the Nottingham and Midland To ask Her Majesty’s Government what financial Metro light rail systems, subject to successful completion support they have provided or will provide for the of the final approval stages and procurement. Neither forthcoming relocation of Merseytravel’s headquarters. of these schemes has reached the construction stage. [HL13312] The Government are also currently considering a bid for additional vehicles on the Sheffield Supertram Earl Attlee: Merseytravel has not received, and we system. do not anticipate providing, any funding from the In addition Transport for London has also funded Government in relation to the relocation of their improvements to the Docklands Light Railway and headquarters to Mann Island. Croydon Tramlink systems using funding provided by Government through its block grant. The Edinburgh Tram scheme, currently under Transport: Trams construction, is being part-funded by the Scottish Question Government. Asked by Lord Storey Travel: Pet Travel Scheme To ask Her Majesty’s Government which tram and light rail projects they have supported financially Question in the past five years; how much they have spent on Asked by Lord Donoughue each of those projects; how far each of those projects has been developed; and what are the plans for To ask Her Majesty’s Government whether changes those projects that have yet to be completed. to the Pet Travel Scheme that come into effect on [HL13311] 1 January 2012 will require pets entering the United Kingdom from the Republic of Ireland to have additional rabies vaccinations. [HL13287] Earl Attlee: The information is as follows:

Total Capital Funding The Parliamentary Under-Secretary of State, Department Scheme Name provided to date (£m) Current position for Environment, Food and Rural Affairs (Lord Taylor Tyne and Wear 7.4 Under Construction of Holbeach): As announced in the other place on Metro Gating and 30 June, the UK will be harmonising with the EU Pet Ticketing Travel Rules from 1 January 2012. EU Regulation Blackpool Tram 65.2 Under Construction 998/2003 requires all pet dogs, cats and ferrets moving Upgrade between member states to meet the same animal health Manchester 242.2 Under Construction rules, in relation to rabies vaccination and tick treatment. Metrolink Phase 3a Manchester 60.9 Under Construction Defra is considering how these rules will be Metrolink – Ashton administered in Great Britain with respect to the & E Didsbury Republic of Ireland, which we consider to be rabies-free. Extensions Discussions with the Republic, and Northern Ireland, Manchester 46.8 Under Construction are ongoing. We do not expect there to be any changes Metrolink Phase 1 on the ground from the 1 January 2012—travellers’ Renewals experience should remain the same. WA 215 Written Answers[LORDS] Written Answers WA 216

Northern Ireland will be bringing in separate legislation Lord Howell of Guildford: The Government want to to enforce the EU obligations. It is currently considering see a peaceful, stable and prosperous Iraq. We will their position. continue our dialogue with the Turkish Government on regional support to stability in Iraq, as well as opportunities to promote trade. We have called on Turkey to work together with the Government of Iraq Turkey and the Kurdistan Regional Government to deal with Questions the terrorist threat in the border areas and to take all possible measures to avoid the potential for harm to Asked by Lord Patten civilians. To ask Her Majesty’s Government what assessment Asked by Lord Patten they have made of the current relations between Turkey and Israel as far as they affect United To ask Her Majesty’s Government what assessment Kingdom economic and strategic interests.[HL13228] they have made of the civil liberties of Kurds living within Turkey and whether they accord with those international agreements to which both the United The Minister of State, Foreign and Commonwealth Kingdom and Turkey are signatories. [HL13232] Office (Lord Howell of Guildford): The Government have noted the tensions between Israel and Turkey Lord Howell of Guildford: The Government have with concern. The UK treats both Israel and Turkey not made an assessment of civil liberties of Kurds as strategic partners in the Middle East. We continue living in Turkey and whether they accord with to urge both sides to renew their efforts to find a way international agreements signed by both the UK and forward that will promote reconciliation and enhance Turkey. It is for the relevant monitoring body responsible regional stability, including progress on the Middle for the oversight of states’ compliance with their East peace process. international obligations under the international human Asked by Lord Patten rights treaties to determine whether Turkey is acting in accordance with their obligations. We expect Turkey To ask Her Majesty’s Government what assessment to fulfil the commitments it has made to the various they have made of Turkey’s foreign policy towards international agreements it has signed on human rights. Syria as far as it affects United Kingdom economic Asked by Lord Patten and strategic interests. [HL13229] To ask Her Majesty’s Government what assessment they have made of Turkey’s foreign policy towards Lord Howell of Guildford: Her Majesty’s Government Armenia as far as it affects United Kingdom economic appreciate the pressure that Turkey is able to exert on and strategic interests. [HL13233] the Government of Syria to persuade them to end their violence against peaceful protest and to carry out reforms. We continue to encourage Turkey to use its Lord Howell of Guildford: Her Majesty’s Government influence to encourage a tougher stance against Syria continue to encourage the normalisation of relations from the region. between Turkey and Armenia. Normalising relations would increase European integration, improve the stability Asked by Lord Patten and security of the region and open up wider trade To ask Her Majesty’s Government what assessment opportunities. they have made of Turkey’s foreign policy towards The UK has supported a number of projects designed Iran as far as it affects United Kingdom economic to promote conflict resolution and break down stereotypes and strategic interests. [HL13230] by bringing together Armenian and Turkish groups.

Lord Howell of Guildford: Turkey has an important UK Border Agency: Staff role to play in the international community’s response Question to the threat posed by Iran’s nuclear programme. We welcome Turkey’s willingness to engage on this difficult Asked by Lord Marlesford issue, including through encouraging Iran to negotiate seriously with the E3+3 (UK, US, China, France, To ask Her Majesty’s Government how many Germany and Russia) and co-operate fully with the staff of the UK Border Agency are naturalised International Atomic and Energy Agency. We also citizens of the United Kingdom; and how many are welcome Turkey’s commitment to ensure sanctions are not citizens of the United Kingdom. [HL13207] implemented robustly and address proliferation concerns with Iran. The Minister of State, Home Office (Lord Henley): Asked by Lord Patten The UK Border Agency does not record the nationality status of its employees. We can therefore not give a To ask Her Majesty’s Government what assessment figure of the percentage of those working for the UK they have made of Turkey’s foreign policy towards Border Agency who are not citizens of the United Iraq as far as it affects United Kingdom economic Kingdom or who are naturalised citizens of the United and strategic interests. [HL13231] Kingdom. WA 217 Written Answers[21 NOVEMBER 2011] Written Answers WA 218

The public sector equality duty, introduced by the In due course, my department will make a further Equality Act 2010, covers the protected characteristics statement on the detail of this scheme and publish a as detailed in Section 149, and while this lists race formal prospectus inviting councils to submit innovative (which includes colour; nationality; ethnic or national bids for funding. Councils will be able to bid individually origins), neither the Act itself or the duty impose legal or in consortiums, and with the private sector, where obligations to collect information in relation to these. that increases value for money. In order to encourage the most innovative and locally tailored solutions, Waste Management authorities will be able to bid for a mix of revenue and capital funding. Questions Asked by Lord Greaves Winter Fuel Payments To ask Her Majesty’s Government what is the timetable for waste collection authorities to bid for Questions funding from the Weekly Collections Support Scheme; Asked by Lord Oakeshott of Seagrove Bay and from what date they intend to release grants under that scheme. [HL13162] To ask Her Majesty’s Government what is their To ask Her Majesty’s Government whether councils estimate of savings to public funds from making which receive funding from the Weekly Collections winter fuel payments liable to basic and higher rates Support Scheme can expect to continue to receive of income tax. [HL13271] such support for weekly collections in future years. [HL13163] The Parliamentary Under-Secretary of State, Department To ask Her Majesty’s Government whether bids for Work and Pensions (Lord Freud): The tables below for funding from the Weekly Collections Support provide estimates of how much would be paid in Scheme must be made for proposals that cover the income tax on winter fuel payments at 20 per cent for whole of the area of a waste collection authority, or basic rate taxpayers and 40 per cent for higher rate whether bids may be made for proposals that cover taxpayers if the payments were not exempt from taxation, only a part of such an area. [HL13164] assuming the 2011-12 payment rate of £200 for people To ask Her Majesty’s Government whether bids that have reached women’s state pension age and are for funding from the Weekly Collections Support under 80, and £300 for people aged 80 or over. Scheme may be made by councils which already The figures are expressed in cash terms and rounded operate a weekly collection scheme in order to to the nearest £10 million. subsidise the continued operation of that scheme. Estimated reversion to Exchequer if winter fuel payments for basic [HL13165] rate taxpayers were subject to income tax, millions of pounds, cash terms To ask Her Majesty’s Government whether funding 2011-12 2012-13 2013-14 2014-15 2015-16 from the Weekly Collections Support Scheme will be available for waste collection authorities which 200 190 190 190 190 wish to operate a separate food waste collection, or whether it will only be available to those which wish Estimated reversion to Exchequer if winter fuel payments for higher to operate weekly collections of general waste including rate taxpayers were subject to income tax, millions of pounds, cash terms food waste. [HL13166] 2011-12 2012-13 2013-14 2014-15 2015-16 To ask Her Majesty’s Government which waste collection authorities have expressed an interest in 30 40 40 40 40 applying for funding from the Weekly Collections Support Scheme. [HL13167] The estimates are based on Department for Work and Pensions expenditure forecasts combined with The Parliamentary Under-Secretary of State, Department information on the tax paid by older people from Her for Communities and Local Government (Baroness Hanham): Majesty’s Revenue and Customs Survey of Personal As outlined in my Written Statement of 10 October Incomes. 2011 (Official Report, col. WS 83), the new weekly collections support scheme, will make up to £250 million Asked by Lord Oakeshott of Seagrove Bay available to councils to help them deliver weekly collections of household waste. The scheme will be funded by To ask Her Majesty’s Government what is their money from DCLG’s unallocated departmental resource estimate of the number of winter fuel payments to budget over the spending review period. This is therefore higher rate income tax payers this winter; and what additional funding for local government over and above proportion that represents of the total. [HL13272] that already announced. The funding will support councils which switch Lord Freud: For 2011-12 we estimate that 500,000 from fortnightly to better weekly collections. It will higher rate taxpayers will be eligible for winter fuel support weekly collection which councils wish to keep payments (rounded to the nearest 100,000) out of a and improve the weekly service they offer, such as total of 13 million winter fuel payments that will be through better procurement, new technologies and issued this winter (rounded to the nearest million). reward schemes like Recyclebank and others. This is around 4 per cent of the total.

Monday 21 November 2011

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Afghanistan...... 49 Housing...... 59

Airports: Security ...... 50 Iran...... 61

Banking Act 2009 ...... 52 Justice: Appointments...... 62 Banking: Northern Rock ...... 52 Police: Governance ...... 63 Consumer Credit ...... 53 Sickness Absence ...... 65 EU: Foreign Affairs Council and General Affairs Council...... 55 Taxation: Avoidance ...... 66

Monday 21 November 2011

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Asylum Seekers...... 173 Eritrea...... 186

Bahrain...... 173 EU: Solvency II Directive ...... 186

Bank of England ...... 174 EU: Taxation ...... 187

Banking ...... 175 European Gendarmerie Force...... 187

Banking: Cheques...... 176 Extradition: Gary McKinnon...... 187

Banking: Iceland...... 176 Finance: Clearing Houses ...... 188

Banking: Northern Rock ...... 177 Finance: Equity Markets ...... 188

Banking: Royal Bank of Scotland...... 178 Finance: Websites ...... 189

Banks: Lending...... 179 Fishing...... 189

Bats...... 179 Fuel Smuggling and Money Laundering...... 190 Gaza ...... 191 Broadcasting: Wireless Spectrum...... 180 Genetically Modified Organisms...... 192 Children: UN Committee on the Rights of the Child ...... 180 Government Departments: E-mails ...... 192 Chronic Fatigue Syndrome and Myalgic Encephalomyelitis...... 181 Government Departments: Risk Registers...... 193

Community Relations and Equality Councils ...... 182 Health: End-of-life Care ...... 193

Credit Default Swaps...... 182 Health: Musculoskeletal Conditions...... 194

Crime: Anti-theft Devices ...... 183 Housing ...... 195

Crime: Metal Theft ...... 184 Independent Commission on Banking...... 195

Cyclists: Helmets ...... 184 Institutional Investors: Voting Records...... 195

Data Protection ...... 184 Iraq: Camp Ashraf...... 196

Egypt ...... 185 Israel...... 196

Embryology ...... 185 Justice: Pre-trial Detention ...... 198 Col. No. Col. No. Legal Aid...... 198 Questions for Written Answer...... 207

Magna Carta ...... 198 Rome: British Embassies...... 208

Marine and Coastal Access Act 2009...... 199 Scrap Metal ...... 208

Money Advice Service ...... 199 Smoking ...... 209

National Institute for Health and Clinical Excellence ...... 200 Surveillance: Telecommunications ...... 209 Syria ...... 211 NHS: Delayed Transfers ...... 200 Taxation: Avoidance ...... 211 Organophosphates...... 201 Transport: Heavy Goods Vehicles...... 212 Overseas Aid...... 202 Transport: Lorries...... 212 Palestine...... 203 Transport: Merseytravel...... 213 Pensions...... 203 Transport: Trams ...... 213 People Trafficking...... 204 Travel: Pet Travel Scheme...... 214 Piracy...... 205 Turkey...... 215

Police: National Computer ...... 205 UK Border Agency: Staff ...... 216

Post Offices ...... 207 Waste Management ...... 217

Prisons: Staff...... 207 Winter Fuel Payments...... 218 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL12093]...... 204 [HL13174]...... 195

[HL12542]...... 192 [HL13179]...... 195

[HL12543]...... 192 [HL13182]...... 186

[HL12934]...... 187 [HL13183]...... 175

[HL13019]...... 180 [HL13184]...... 176

[HL13027]...... 173 [HL13190]...... 190

[HL13069]...... 207 [HL13191]...... 195

[HL13078]...... 179 [HL13197]...... 196

[HL13130]...... 212 [HL13202]...... 209

[HL13139]...... 176 [HL13204]...... 211

[HL13140]...... 200 [HL13207]...... 216

[HL13162]...... 217 [HL13210]...... 199

[HL13163]...... 217 [HL13212]...... 207

[HL13164]...... 217 [HL13213]...... 207

[HL13165]...... 217 [HL13220]...... 177

[HL13166]...... 217 [HL13223]...... 203

[HL13167]...... 217 [HL13228]...... 215

[HL13169]...... 199 [HL13229]...... 215

[HL13171]...... 196 [HL13230]...... 215

[HL13172]...... 180 [HL13231]...... 215 Col. No. Col. No. [HL13232]...... 216 [HL13308]...... 177

[HL13233]...... 216 [HL13309]...... 188

[HL13234]...... 202 [HL13310]...... 178

[HL13235]...... 202 [HL13311]...... 213

[HL13239]...... 203 [HL13312]...... 213

[HL13240]...... 211 [HL13313]...... 205

[HL13242]...... 173 [HL13314]...... 205

[HL13243]...... 193 [HL13315]...... 205

[HL13245]...... 191 [HL13316]...... 184

[HL13246]...... 191 [HL13320]...... 185

[HL13247]...... 192 [HL13322]...... 189

[HL13248]...... 197 [HL13324]...... 198

[HL13249]...... 197 [HL13334]...... 205

[HL13250]...... 197 [HL13339]...... 209

[HL13255]...... 179 [HL13343]...... 207

[HL13256]...... 179 [HL13353]...... 188

[HL13257]...... 174 [HL13354]...... 189

[HL13258]...... 174 [HL13357]...... 194

[HL13263]...... 201 [HL13358]...... 194

[HL13264]...... 181 [HL13363]...... 193

[HL13271]...... 218 [HL13374]...... 184

[HL13272]...... 218 [HL13375]...... 208

[HL13276]...... 186 [HL13379]...... 184

[HL13281]...... 198 [HL13384]...... 208

[HL13282]...... 176 [HL13390]...... 174

[HL13283]...... 176 [HL13409]...... 212

[HL13285]...... 208 [HL13416]...... 210

[HL13287]...... 214 [HL13417]...... 210

[HL13288]...... 182 [HL13429]...... 184

[HL13289]...... 182 [HL13431]...... 183

[HL13291]...... 198 [HL13432]...... 183

[HL13292]...... 187 [HL13435]...... 212

[HL13294]...... 210 [HL13454]...... 200

[HL13296]...... 210 [HL13464]...... 186

[HL13305]...... 187 [HL13471]...... 184

[HL13306]...... 174 [HL13478]...... 189

[HL13307]...... 182 [HL13525]...... 192 Volume 732 Monday No. 225 21 November 2011

CONTENTS

Monday 21 November 2011 Questions Health: Early Diagnosis...... 811 Children: Television...... 813 International Development...... 815 Syria ...... 818 London Olympic Games and Paralympic Games (Amendment) Bill Third Reading ...... 820 Legal Aid, Sentencing and Punishment of Offenders Bill Second Reading ...... 820 Grand Committee Welfare Reform Bill Committee (15th Day) ...... GC 315 Written Statements...... WS 49 Written Answers...... WA 173