Legal Aid, Sentencing and Punishment of Offenders bill

Public Bill Committee, 6 September 2011.

Philip Hollobone (Conservative, Kettering)

When the Committee rose in July, it debated the first group of amendments and eventually divided on the lead amendment, amendment 60. Hon. Members with other amendments in that group had indicated their intention to press them to votes. I should advise them that, if they still intend to do so, it should be when the Committee reaches that particular amendment on the amendment paper, not straight away.

Clause 1 - Lord Chancellor’s functions

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 1, in clause 1, page 1, line 13, leave out ‘may’ and insert ‘must’.

Philip Hollobone (Conservative, Kettering)

With this we may discuss amendment 2, in clause 1, page 1, line 13, after ‘secure’, insert ‘, through the internet or otherwise,’.

Andrew Slaughter (Labour, Hammersmith)

It is good to see you, Mr Hollobone, back in the Chair after our break. It is also good to see all members of the Committee back. I am sure that we are all looking forward to the further six days of debate.

I do not think that the amendments need detain us long. I know that the Government are keen to make progress, and so are we. The amendments are non-technical, and I hope that they will appeal to the Government, because they go to the heart of two of what I have heard the Minister describe as aims that underlie the Bill.

The first aim is a more do-it-yourself culture in the courts. We see that not only in the extensive withdrawal of legal aid, but in other measures on which the Government are consulting or have consulted regarding extending small claims jurisdiction. Generally, I think the Government wish to remove lawyers from the courts when that can be done without affecting the interests of justice—I put it as neutrally as that.

The second aim, which I have heard the Minister recite many times, is that appropriate help should be available, and that, where existing channels have been withdrawn or where services have been cut back, there should still be an opportunity for advice to be given; it may just be advice of a different kind. For that to happen, one needs to direct the people seeking that advice the right way.

Amendment 1 would make it mandatory rather than optional for the Lord Chancellor to provide advice, and require him to take steps to secure such provision. That duty would then have a binding effect on other amendments, so that if amendment 1 is agreed, the Lord Chancellor would have a duty in every case to ensure proper provision of advice. I think that that would affect both providers and users of services.

I have been involved with the law centre movement for 20 or 25 years. One of the singular attributes of law centres is that they see themselves as providers of not only advice in specific cases—taking cases, if necessary, to appeal and beyond—but general legal education. I know that that goes for other advice agencies as well. The whole advice sector prides itself on the fact that it not only takes individual cases, but raises the general level of education. I mention law centres because they have combined funding—not simply from the Legal Services Commission, as it is at the moment, but from local authorities and other means—which gives them the leeway and ability to have public meetings, produce general documents and interact with their local communities. That is certainly the experience of my law centre—I have been on its management board for many years. It sees that as being entirely integrated into the process of ensuring the interests of justice, and taking a heavyweight case to the Supreme Court or holding a seminar on housing rights for local authority tenants is part of an integrated continuum.

If the Bill is passed substantially as drafted, the outcome must be a huge additional onus on users of legal services to find their own remedies. Whether that is through small claims or tribunals, there will be far more litigants in person. Therefore, the need for legal education will never be higher than in the coming years. To give one example, only yesterday I met the new chief executive of my local citizens advice bureau, who is already reacting to the changed climate of funding and policy by moving much more to a volunteer system. Many CABs already do that, as my hon. Friend the Member for Makerfield will know, and all do so to a greater or lesser extent. Whether moving from a scheme with professional paid advisers assisted by volunteers to effectively a team of supervisors of larger numbers of volunteers is a welcome step—the level of expertise will never be as great among volunteers as among professional advisers—it is proving necessary.

For my CAB, that is a specific response to a cut, although not a significant one, in its funding, but mainly to the fact that it is now the only significant provider of advice where there were three or four agencies. It could simply batten down the hatches, decide that it cannot get a quart out of a pint pot and do its work to the best of its ability on a reduced budget, but it is responding very positively, which I know the Minister will welcome. It is trying on a smaller budget to have two offices rather than one to cover a larger area to make up for the advice provision that has been cut—indeed, moving into the office of a closed advice centre—and it is spreading its budget more thinly by using volunteers. Whether in the long run that is good or bad remains to be seen, but I cannot criticise the steps that it is taking.

If we are moving to a world in which there is more—I do not use this word in a pejorative sense—amateurism, both in providers and users of legal services, it is more necessary than ever that the Lord Chancellor, in deploying the powers set out in the first few clauses, is clear that legal education, the ability of people to understand at least the basic processes of the law, their rights and duties, is a higher duty than it was before. In amendment 1, the word “must” rather than “may” is necessary to ensure that that happens.

Amendment 2, which is related, uses the phrase

“through the internet or otherwise”.

I do not rely entirely on the internet as a source of information about legal services. I happen to have a very internet-literate constituency across all social classes, but that is not the case throughout the country, and many elderly people and those who have not had the benefit of an education involving information and communications technology still sometimes lack access to the internet. However, I use that example because the internet is important, and I am sure that other Members are always coming across people doing DIY legal services through the internet, which can be a mixed blessing. I have had instances of people dealing with squatting by using the processes available on the internet. There is good advice, but it is mixed. I do not rely on the internet alone as a source of information. I use it as an example of where other services or means of communication need to be considered.

In the amendments that we will consider shortly, the Government rely entirely on the telephone gateway as a point of access. We consider that to be a blunt instrument. Again, let me use the example of how my newly reconfigured citizens advice bureau will organise itself. There will be a triage service—I think the Government approve of triage in advice—but it will not be available only by telephone. There will be an option of face-to-face or telephone. The outcome of that triage will be flexible. It may be direction to another, more specialist advice agency; a quick referral to deal with a problem that can be tackled immediately; an emergency referral if an eviction is imminent, or it may be simply a more detailed reference to general advice. That again seems to me to be the way in which advice services should work. It is an intelligent response, but the Government are straitjacketing the way in which services can be accessed.

The Lord Chancellor’s duties on access to legal information and how it should be provided should be executed in the widest possible way, and the Government should make it clear what they are doing. Considerable steps have been taken over the past 10 years. One looks at Directgov and the Plain English Campaign. I think all parties would agree that there is now a duty, as there perhaps was not in the past, for the Government to make their actions and the rights of citizens available in a way that is clear and apparent. That is the purpose of the amendments. If we are entering an era in which legal services will be more scarce—again, we will come on to amendments shortly about an advice desert—it is more and more important that people are told where they can receive advice. I suspect that in many constituencies there are already very sketchy or limited services with regard to access to legal aid and certain types of law. I am sure that it is common in all our surgeries to find people who need specialist advice. They do not come to an MP for that advice, but they want to know how to access it, and it is quite difficult to point people in the right direction. If we refer them to the Law Society, it may or may not give them a list of solicitors. If we refer them to a CAB—if you have one—it may or may not supply a list of advice providers.

If the Government pursue significant cuts in the provision of professional advice, they need to be much clearer about the alternatives and how the public can access them. That is imperative and they have a duty to ensure that that occurs. That, very simply, is the purpose of the amendments. I hope the Minister will feel able to accept them. My hon. Friends may wish to speak, but I am keen to hear the Minister’s response about how the Government will ensure that people have access to advice when much less advice and a less professional level of advice will be available.

Jonathan Djanogly (Conservative, Huntingdon)

Good morning, Mr Hollobone. I, too, welcome Members back to the Committee—refreshed and well rested, I hope. I am pleased that the hon. Member for Hammersmith is keen to make progress; that is certainly the Government’s position.

The proposed amendments seek to amend clause 1(3). Amendment 1 seeks to make the Lord Chancellor’s power in relation to the provision of information a duty. The amendment is not appropriate. The duties of the Lord Chancellor in the Bill relate to the provision of legal aid for those who qualify for it in accordance with part 1. In contrast, clause 1(3) aims to enable the Lord Chancellor to direct those who are ineligible for legal aid to other sources of advice, which may, in future, include providing for referral to paid-for advice through a telephone helpline service.

The Government have decided not to implement that proposal at this stage, but to run a pilot scheme instead. We intend that any individual seeking legally aided services but ineligible for legal aid advice will be signposted to other sources of advice that may be able to assist them. However, to create a duty in that regard would be too onerous and might be very costly, because such a duty would imply a far greater requirement to provide an all-encompassing service. The intention in the provision is to provide assistance for those who seek legally aided services but discover that they are ineligible for them; the intention is not to provide a national signposting service for anyone who seeks legal advice.

Amendment 2 would specify one main manner in which such information services might be provided. That is unnecessary, because it is for the Lord Chancellor to determine, in the exercise of the power, how best to achieve the aims of the subsection. Furthermore, technology is always changing, and although it may be appropriate to provide information over the internet or any other appropriate means, there is no need to make specific reference to that in clause 1(3). In future, no doubt there will be other appropriate ways of providing information that have not yet been invented. I therefore urge the hon. Gentleman not to press the amendments to a vote.

Andrew Slaughter (Labour, Hammersmith)

I am grateful for the Minister’s response, but I am slightly disappointed, because my point is that we do want an all-encompassing duty. We want it to be very clear to the Government and the Lord Chancellor—whoever that may be in future—that there is an overriding duty to ensure that people are directed towards appropriate advice. If the Government are not supporting that, it gives the game away in that such provision of advice will simply not be there. As I indicated in my opening remarks, the internet is an important but not exclusive source, and the amendment provides for that. However, the amendments are nothing beyond probing; I have heard the Minister’s comments, and I do not intend to press them to a vote. I beg to ask leave to withdraw the amendment.

Kate Green (Labour, Stretford and Urmston)

I beg to move amendment 79, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that when an individual is in dispute with the state or with a body that is an emanation of the state, in relation to a matter of welfare benefits, employment, debt, housing, or immigration, education or asylum support, that the individual shall continue to be entitled to legal advice, assistance and representation against the state or emanation of the state on the same basis existing prior to the enactment of this Act.’.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following: amendment 80, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that in any case where the state or an emanation of the state has legal advice, assistance or representation, a party in dispute with the state or an emanation of the state, shall continue to be entitled in turn to equality of arms and to legal aid for legal advice, assistance or representation in relation to any claim in welfare benefits, employment, debt, housing, or immigration, education or asylum support, as they would have been prior to the enactment of this Act.’.

Amendment 81, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that any individual bringing an appeal on a point of law or perversity to the Upper Tribunal, Employment Appeal Tribunal, the Social Security Commissioners, the Court of Appeal or the Supreme Court shall continue to be entitled to legal aid on the same basis as they would have been prior to the enactment of this Act. No individual shall be left without access to legal aid in appeal cases in such higher courts and Tribunals which would have been in scope prior to the enactment of this Act and on the same basis existing prior to the enactment of this Act.’.

Amendment 82, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that where an individual would experience difficulty protecting their legal rights by reason of learning difficulties, mental health problems, other disabilities, language difficulties, problems of literacy or from not being articulate, in relation to welfare benefits, employment, debt, housing, or immigration, education or asylum support, that they continue to be entitled to legal aid on the same basis as they would have been prior to the enactment of this Act.’.

Kate Green (Labour, Stretford and Urmston)

It is a pleasure to return to Committee with you in the Chair, Mr Hollobone. Amendments 79 and 80 fundamentally aim to ensure fairness in the system where the balance of power, the equality of arms between the state and the individual, would otherwise be significantly distorted. Amendments 81 and 82, which I shall discuss shortly, relate to other instances in which there might be an in-built disadvantage to individuals in the legal system.

Clearly, it is important that our legal system operates fairly, as a level playing field between the parties to legal action, which is why amendments 79 and 80 stress the importance of preserving legal aid in legal disputes between the state and the individual. Amendment 79 relates to situations in which the state is a party to a dispute. Amendment 80 relates to situations in which, presumably by definition, the state is not only a party to a dispute but has access to legal advice. It seeks to ensure that in both situations the individual who is up against the state in such disputes is also appropriately advised and represented.

The amendments draw on a point of principle that was identified by Dr E J Cohn in “Legal Aid for the Poor,” which was recently cited by the late Lord Bingham of Cornhill shortly after his retirement as the senior Law Lord in his book, “The Rule of Law”:

“Legal aid is a service which the modern State owes to its citizens as a matter of principle. It is part of the protection of the citizen’s individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves. Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc. so should it protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crisis.”

Mr Hollobone, you may feel that that is an arguable statement, but it is the statement of Lord Bingham of Cornhill. He continues to quote:

“But the State is responsible for the law. That law again is made for the protection of all citizens, rich and poor alike. It is therefore the duty of the State to make its machinery work alike, for the rich and the poor.”

Taking forward that principle as articulated by Lord Bingham is what underpins amendments 79 and 80. In situations where the state is party to the legal dispute, or by its action or inaction is the cause of the dispute, it is all the more the responsibility of the state to ensure that the individual is placed in a position where he or she can effectively hold the state and its agents to account.

In such situations, the state and those to whom it delegates authority have access to substantial resources. They can easily afford the best legal advice, they can afford to be represented in tribunals and courts and they have the facility to undertake the necessary research into the legal and factual issues of a case. That stands out particularly in comparison with individuals who currently qualify for legal aid in legal disputes with the state in areas such as welfare benefits, employment, debt, housing, immigration and asylum support. By definition, people who are in dispute with the state on those matters are likely to be poorer, for otherwise they would not be in receipt of welfare benefits or housing support. They may be struggling with the decision making of the state, which may be why they are within the ambit of the asylum or immigration system, and are therefore more reliant on good quality decision making by the state. Or the state is their employer, and naturally one could say that there is an inequality of bargaining positions between the employer and an employee. If that is the nature of the legal dispute between an individual and the state, it is important to even up the playing field.

In some instances, the content of such legal disputes can be said to be, in some significant part, the responsibility of the state. The state makes the decisions and is responsible for actions taken in consequence of such decisions. Therefore, the state is in a special place in terms of the impact of its decisions and the resources that it has available to it.

By contrast, if legal aid is removed by the Bill, an individual or family will first of all face the task of establishing what the limits of the state’s lawful exercise of its powers are; what legal remedies are available by which those limits may be insisted on; and what evidence they will need to present to establish a case against the state. Secondly, if they are to have any chance of resisting the state, the individual must have the means to acquire and present the evidence in a legal manner and in the context of a legal process in which the state may, and often will, be represented and will have the option of further calling on senior advisers and lawyers.

Many of these cases can be complex. I think we all know that cases in relation to welfare benefits can be extremely complex. It is important, therefore, that good quality advice is available to the individual to unpick that complexity and distil the legal issues—the justiciable issues—within what can be often be a real morass of concerns and complaints. It is also important to note that by no means all of those matters need to end up in tribunal. We are therefore talking about the availability of legal advice to the individual to, in many cases, prevent the case ultimately reaching tribunal. Harking back to our discussion before the summer recess, that is important in relation to the overall costs to the legal process of ensuring that support is given at the right point. Undoubtedly, early advice about difficulties with welfare benefits and so on can prevent cases arriving in a legal forum further down the line.

I hope Ministers will feel that there is not only a moral, fairness reason but an economic reason for taking on board the arguments that underlie amendments 79 and 80. Any outsider looking at the might of the state set against a potentially poor and vulnerable individual who is seeking to assert his or her rights will see that there is clearly an unfairness or an imbalance. I look forward to hearing how Ministers will seek to address that unfairness in the absence of the availability of legal aid.

Amendment 81 covers the specific instance of an individual asserting his or her rights and of access to expert legal advice being important in cases that are moved to the upper tribunal. That happens when the individual appeals on a point of law to the upper tribunal, the Employment Appeal Tribunal, the social security commissioners or, indeed, to the Court of Appeal or the Supreme Court. The amendment proposes that that individual should continue to be entitled to legal aid on the same basis as before the Bill’s enactment. No individual should be left without access to legal aid in cases in higher courts and tribunals that are in scope before the Bill’s enactment and on the same basis.

A decision of a first tribunal that is appealed to an upper tribunal will almost inevitably involve more complex points of law. That is recognised by the fact that the entitlement to go to the upper tribunal is carefully controlled. Typically, the whole factual findings of the first tribunal are not repeated, but the expert legal opinion of the senior judiciary is brought to bear on the more technical, controversial and difficult points of law. An individual cannot just assert his or her wish to go to the upper tribunal; permission has to be sought and granted. If permission is given, but it becomes impossible for the individual to go to the upper tribunal or to present his or her case effectively, it is entirely possible that decisions that are wrong in law will not be corrected as they should be on appeal.

An individual may go to the level above the first tribunal without the benefit of legal advice and representation, seek to present his or her case, fail to make that case and proceed to a further tribunal, perhaps in the Court of Appeal or the Supreme Court. Again, we can see the efficiency and cost-effectiveness of having good advice early in the process to reduce the likelihood that cases proceed all the way to the top of the system before a final decision is reached.

We should note that permission to appeal to the Court of Appeal will only be granted if the judge is satisfied that the case raises an important point of principle or practice or if there is another compelling reason. Such cases will therefore address significant points of law, and both parties should be able to argue their case effectively. Onward appeals concern matters of law on which specialist legal advice and representation may be necessary to identify and articulate the precise issue.

Again, there will be a real inequality of arms between the state and individuals if we remove access to legal aid from scope on cases that might move forward to appeal. An individual might succeed in the first-tier tribunal, but the state will be in a position to pursue an onward appeal, with the advantage of solicitors and counsel, all the way to the Supreme Court, while individuals could be left to cope without any legal advice or assistance at all. Litigants in person, whom we discussed before the summer, would also be especially vulnerable in such situations if, for example, the state was not responding in a timely manner to directions of the court, not disclosing relevant matters, not adequately preparing or pleading its case, or perhaps amending its case at the last minute. Such events are extremely difficult for the unqualified, amateur litigant to deal with without the support of legal advice.

The prospect of increased litigants in person in onward appeals raises a particular risk to the capacity of the upper tribunal and higher courts to manage the cases that come before them. We discussed all the issues around litigants in person before the summer. I do not propose to repeat them, but if they were already an issue in the lower tribunal, they are going to be a greater issue—more complex and more costly—in the upper tribunals. Again, it makes sense to ensure that we cut through some of that by ensuring that litigants have access to good legal advice.

It is important to note that when cases arrive in upper tribunals, decisions at that point are often crucial decisions in terms of the development of the law, particularly where the law may be changing rapidly; it may be subject to frequent need for understanding and interpretation, such as in relation to welfare benefits. The need for rulings by the upper tribunal and higher courts is ongoing and profound if there is to be a real prospect of consistency on appeal and in the wider understanding of the law. However, if many of the cases that come before the upper tribunal and higher courts have only the state represented, the risk will be that the development of the law lacks authority—is not properly argued out before that tribunal and requires revisiting frequently, because the issues that are put before the upper tribunal and higher courts in appeals where only the state is represented are deficient and incomplete.

Finally, there is a real risk that if only one party is represented in complex cases in the upper tribunal, confidence in the system, confidence in the decisions of the upper tribunals—public confidence and certainly the confidence of the individual litigant—will be harmed, especially where it has been perceived that individuals have been unable adequately to participate in the proceedings in court. That in turn could lead to yet further cost to the system if individuals then seek to go back through the process and look for opportunities to pursue, for example, the route of judicial review.

It is important for Ministers to consider public confidence in the legal system. Naturally, a disgruntled litigant can always be expected when a case is lost, but it is important that the ways in which cases are conducted in our upper tribunals are seen to be fair between the parties, and I am concerned that Ministers should address that point.

On amendment 82, I hope that the subject will command widespread concern and support from across the Committee. From conversations with individual Committee members about this issue, I know that there is real concern about the implications for our most disadvantaged individuals in accessing and working their way through the legal process. The amendment proposes that

“where an individual would experience difficulty protecting their legal rights by reason of learning difficulties, mental health problems, other disabilities, language disabilities, problems of literacy”

and language and speech problems, particularly in relation to those areas of law where the most vulnerable claimants are likely to be found, they should continue to be entitled to legal aid

“on the same basis as they would have been prior to the enactment of this Act.”

The Government’s impact assessment recognised the concerns about people with mental health issues. It referred to the availability of advice from volunteer organisations such as Mind, as well as specifically stating that it did not consider such sources of advice to be sufficient and that there were not sufficient alternative sources of funding to enable individuals to resolve issues without publicly funded legal assistance. It also noted that these were not cases where the individual could be expected to resolve the issues themselves.

It is not, however, only about people with mental health problems and those challenging mental health detention orders. We feel that there is a need for all vulnerable people to have access to good quality advice. There is no mention in the impact assessment of people with learning difficulties. I know that many members of the Committee share my concern about their ability to cope with working their way through the legal system on their own and unadvised.

We must also be concerned about those with language difficulties, such as those who may not be fluent in English, and those with literacy difficulties. A substantial amount of what goes on in court requires the ability to read and absorb the content of complex documentation. Those people will be disproportionately—perhaps overwhelmingly—represented among those who, as a result of the lack of access to legal advice, do not bring their cases to courts or tribunals. That is not because their claims are unmeritorious; it is simply because the most vulnerable will be disfranchised from our courts.

The Government have said that they think individuals should be capable of dealing with tribunals, which they say are designed to be accessible to users and do not require legal advice. That is a contentious statement in relation to many areas of law and many of the tribunals that individuals seek to access. It is particularly true when we are talking about individuals with high levels of need. Their needs cannot be dealt with by simply asserting that tribunals are accessible and easy to use. We risk leaving a vulnerable group of people without the ability to properly assert their legal rights simply by the nature of their disadvantages and disabilities. I know that Ministers will share those concerns. I look forward to hearing how they intend to address them if we are to see that legal aid is unavailable in such cases.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

It is a pleasure to serve under your chairmanship, Mr Hollobone.

There is not a great deal that can be said about these amendments, because the hon. Member for Stretford and Urmston has strongly and fluently argued the case on behalf of the people who are most vulnerable in society. People receive welfare benefits because, unfortunately, they are at the back of the queue. They are not in a privileged position, as we are.

Looking at employment—I have no doubt that the point made by the hon. Lady will be made by the Minister—tribunals are meant to simplify proceedings. I declare an interest here. Both as a solicitor and a barrister, I have done publicly funded work in this area. When they were set up, tribunals were meant to be simple. The employment tribunal was meant to be a simpler, cheaper and more understandable version of proceedings in the county court. That was the intention. Being a lawyer myself, I know that we have a tendency to spin things out, and unfortunately the standard work on industrial relations, “Harveys”, is now five very thick volumes. That shows just how big an area employment law is. To expect someone who has been sacked by a large corporation or the state to deal with that case on behalf of him or herself is impossible. It cannot be right. We talk about equality of arms. If there is a better example of an inequality that will create great unfairness, I do not know of it.

Let us look at debts and housing. I know that many feel that people should not get into debt, which is true, but many people do, because they are not proficient in looking after their own budgets. Perhaps those in the education system might look at that in due course. People often get into debt not through their own intentions, but because they are not proficient in handling budgets. That is an obvious matter, which I have seen as a Member of Parliament for the past 20 years or so.

Housing is vital—what is more important than people having a roof above their head? To leave it, as with the latest scheme that the Government are considering, until it is virtually too late before any intervention can be made by a legally qualified person is folly of the utmost degree. If we intervene early enough, debts and housing can be sorted out. It beggars belief that the Government are making such cuts without thinking the process through.

Immigration is clearly an important area, as is that relating to those people who are entitled to take action against the state for various reasons. There is a clear need to reconsider asylum, too.

The hon. Member for Stretford and Urmston coupled her comments about education with the idea that many people who have learning difficulties will have great problems in this climate, which is absolutely true. Some pupils who have such difficulties cannot secure statementing in a proper care scheme to enable then to have a proper education. Such situations will be made 10 times worse under the changes. I do not believe it when the Government say, “They’ll seek advice elsewhere.” Where is such advice to be sought? Organisations that provide specialist advice, such as the CAB, are disappearing as we speak. I know of one or two CABs in half of Wales that would be qualified to assist—one of those is giving up and the other is considering doing so. Half the countryside in Wales will therefore be devoid of any assistance whatever in this important field.

We talk about people being disengaged and youngsters rioting for whatever reason. I am not rushing to judgment, but undoubtedly some youngsters are disengaged from society. The provision is a recipe for further disengagement, is it not? If young people with special needs or learning difficulties are left high and dry, what can we look forward to in the next decade? Nothing but the kind of anarchy that we have seen recently; nothing that any of us would like to see.

It is a matter of fairness. I know of a young boy in our village, who came to the local school at which my wife was then a teacher. People thought he was not trying—that he could not be bothered to do anything. Suddenly, someone realised that the young man had learning difficulties that could be addressed. He went on to found a very successful cartographical business. He also does film work and he has recently been nominated for and awarded a BAFTA. That young lad’s needs were unlocked at the appropriate time, but for all I know, he could have been disengaged had that not happened. It was not my wife who spotted his learning difficulties; it was another teacher.

Heavens above! If we seriously want a civilised future society in which we are all given equal chances, the changes must be reversed and reconsidered. I agree that there must be changes and some cuts in the system—clearly that is true; only a fool would deny it—but this is the wrong end of the spectrum at which to be doing so. I endorse everything that the hon. Member for Stretford and Urmston said, and I hope that the Government will pause and think about the matter. This is probably the core area of the debate. These are the most vulnerable people, so they are the most deserving. Therefore we, as privileged people, should look after them and ensure that they are given an equal opportunity, as we have all been privileged to receive in our histories. The amendments are well argued and eminently sensible. I urge the Government, even at this eleventh hour, to reconsider the changes.

Andrew Slaughter (Labour, Hammersmith)

I can be brief as well, because I echo the right hon. Gentleman in saying that the arguments of my hon. Friend the Member for Stretford and Urmston on all the amendments, particularly the exposition on upper tribunals, are powerfully put. I hope that the Minister is sitting there and thinking, particularly with amendments 81 and 82, whether the Government have made an error in excluding people who fall into that category of legal aid.

There is a common theme to the amendments, which is why they have been grouped together. It is a criticism of the Lord Chancellor’s role as defined in the Bill. It is effectively an abdication of responsibility, which is something that we are becoming familiar with from this Government. It is perhaps not quite as extreme an example as the Bill that is being debated on the Floor of the House today and the decision by the Secretary of State of Health to wish to take little responsibility for the national health service in the future, but it is of that order. I find that somewhat surprising from the current Lord Chancellor. I read with interest his approach in The Guardian today. Leaving aside the tabloid language, which was unfortunate, the approach was quite paternalistic. It was effectively saying that we have a duty to people, even people who have committed offences and serious offences, to rehabilitate them. I am pleased to hear that voice—a rare voice now in the Conservative party—being sounded.

The Under-Secretary of State for Justice, the hon. Member for Reigate, is looking at me in a doleful manner, and of course I will scoop him up in that great paternalistic basket—[Interruption.] They all want to be in the one nation club. All right, they can all be in the one nation club, but just for today. I think the Lord Chancellor probably does get it where criminal law is concerned—[Interruption.] I am trying to collect my thoughts, but there is so much interesting debate on the Government Benches as to where exactly Government Members stand in the Conservative party. If in doubt, they can always abolish it, change the name and start again, as I believe is being proposed in some jurisdictions.

Ben Wallace (Conservative, Wyre and Preston North)

Like new Labour.

Andrew Slaughter (Labour, Hammersmith)

The hon. Gentleman says that it is like new Labour. Well, that seemed to work for a while—[ Laughter. ] I am not going to be put off my stride; not yet anyway. The Whips are trying to reach agreement, and I am not going to interrupt that.

It is a serious point. There is an understanding, certainly as far as the Lord Chancellor is concerned, that the state has a duty to those caught up in the process of criminal law. However, there is no understanding regarding civil law, which is why we are seeing such utterly swingeing cuts to the provision of civil legal aid. Of course, matters of criminal law are often about the liberty of the subject, but being a defendant or a claimant in a civil matter can often be as devastating for people’s lives. As I said, the common theme here is to get the Government to try to take their responsibility seriously. That is why we have said in amendment 79 that where there is a dispute with the state, the state has a duty not only to put its own case forward, but to see that the individual is also properly represented. That is a level-playing-field amendment, which I think should find some resonance on the Government Benches.

Equally, amendment 80 is an equality-of-arms amendment. The Minister has the fanciful view that an unrepresented litigant can go into an adversarial situation. Employment tribunals, social security tribunals—as they were called when I used to do them—and particularly immigration tribunals are highly adversarial. The representatives of the state at those tribunals often take a far more aggressive and unhelpful tone and line than is found in the county or even the Crown courts. Yet, we are asked to believe that the poor litigant, who has little understanding of the processes, is to ask either their opponent or the tribunal, which is not resourced or charged with that function in our jurisdiction, to assist them in the presentation of their case. That is simply not going to happen.

We see the outcome of such an inequality of arms in the relative success rates of appeals. There are very high success rates, particularly on disability cases, and the Minister and his colleagues should be concerned about such worryingly high rates, because they are evidence of very poor decision making. The success rates, which are high in all cases, are significantly higher—often by a factor of 50%—when the party is represented, which should again give them pause for thought.

My hon. Friend the Member for Stretford and Urmston completely demolished the Government’s case on withholding legal assistance in the upper tribunals. Surely, it is not just a question of equity—that, by definition, a court or tribunal deals with complex points of law; it is also a matter of effectiveness. It is a barely kept secret that particularly the upper courts live in fear—not fear perhaps, but dread—of litigants in person, who are hugely time-consuming. It is of course right that any individual citizen has access to justice at all levels, but it is quite wrong to expect litigants in person to be able to grasp the legal issues pertaining to appeals or to further appeals. One public policy issue is that that situation is a recipe for bad decision making in the long term. If only the state is represented, decisions will be based on only one side of the argument, notwithstanding the best efforts of the judiciary.

Moreover, in many instances, cases will simply not go to appeal. I am sure that the Government would ask why public money should be used to appeal cases. I can almost hear the Minister saying, “Would an individual take a case to appeal using their own money, if they did not have access to legal aid?” That is not the right way to look at the issue. The law is often defined and developed by cases at the Court of Appeal or the Supreme Court, and those cases would not reach such levels without the provision of public funds. It is an absolutely proper use of public funds to develop the law in that way, because that relates to the successful jurisdiction in which we all live.

I ask the Minister to think again about upper tribunals and about what we might call special cases. The idea that people who suffer from mental health difficulties should have assistance when they are challenging orders relevant to that disability—detention orders, for example—but not have assistance in other important proceedings that may affect their income, housing and so on seems wholly illogical. My hon. Friend the Member for Stretford and Urmston referred to it, but I will quote in full from the Government’s impact assessment:

“Due to the nature of their illness, many of this client group will be very vulnerable and are unlikely to have the capacity to represent themselves properly at a tribunal without legal assistance. Although advice is available from other sources, through voluntary sector organisations such as Mind, which provides a legal advice service, we do not consider that these are sufficient, or that there are alternative sources of funding which would enable individuals to resolve these issues without publicly funded legal assistance. Nor do we consider that these cases are ones where the individual could be expected to resolve the issue themselves given the involvement of the state and the nature of the illness.”

That is unarguable. That specifically relates to people who have diagnosed mental health conditions, but the same argument applies to anybody who would struggle not because of the ordinary difficulties that all unqualified people have in approaching the courts—I will come to litigants in person in a moment—but because they have a particular difficulty, whether it is a language or learning difficulty.

I think some Members would be surprised at the people who go before the courts. The Minister will not be surprised, because he is on record as saying that people with disabilities and people who are vulnerable are disproportionately represented among those eligible for legal aid. The reasons are understandable. They are likely to be on low incomes and likely to need the services of the state, which might be withdrawn—there is a high incidence of poor decision making and it is likely to get worse at a time when many parts of the benefits system are changing out of recognition—and they will not be able to challenge those decisions.

The evidence is in the Ministry of Justice research. It produced a very good paper on litigants in person in June, from which I quote:

“Most research suggested that litigants in person may experience a number of problems, which in turn impact on the court. For instance, the research pointed to problems with understanding evidential requirements, difficulties with forms, and identifying facts relevant to the case...A number of sources also pointed out that litigants in person may have difficulty understanding the nature of proceedings, were often overwhelmed by the procedural and oral demands of the courtroom, and had difficulty explaining the details of their case…many unrepresented tribunal appellants and applicants felt ill-equipped to present their case effectively at their hearing. They felt intimidated, confused at the language and often surprised by the formality of proceedings.”

That may sound slightly strange, because tribunals on the whole are designed to be less formal than established courts in the way that they look and the language that is used, but that is not the perception of those who go before them.

If the Ministry of Justice research paper is right, it may justify the Government’s prediction that there will be fewer cases coming before courts and tribunals as a result of the legislation. I am sure we would all wish—for good reasons—that fewer cases came before courts and tribunals. Perhaps they could be settled without litigation. Perhaps there is less cause for them to come, because there is less cause for action and less poor decision making. However, to reduce the number of cases in litigation simply because the individuals concerned cannot access them, cannot understand the process and feel intimidated by them appears to be wholly wrong.

It is likely, therefore, that the groups referred to in amendment 82, who have difficulties in understanding or articulating themselves, will be disproportionately and perhaps overwhelmingly represented among those who do not win their cases before the courts or tribunals. For all those reasons, the Government need to look again at the Lord Chancellor’s powers and duties and whether there is an abdication of the role of the state and of Government in not ensuring that there is proper access, particularly for those in need and for those who may need to go to a higher level where matters are more complicated. If no one else wishes to comment, I ask the Minister to respond to each amendment, perhaps paying particular attention to amendments 81 and 82.

Jonathan Djanogly (Conservative, Huntingdon)

Legal aid for tribunals, which was mentioned by various hon. Members, is the subject of amendments 139 to 141. We will come on to them later, so I will not spend a lot of time on that issue specifically at the moment. However, I point out to the hon. Member for Hammersmith that in “Government Response to Justice Committee’s Third Report of Session 2010/11”, paragraph 59 states:

“MoJ recognises the Committee’s concerns”—

this is in relation to legal representation at tribunals—

“and will continue to maintain a strong focus on ensuring tribunal processes remain accessible and informal. For example, in the social security jurisdiction, use is made of informal tribunal rooms, specially trained clerks and most importantly judges who are trained in helping unrepresented appellants give their side of the story and the appropriate consideration of equality and diversity and other cultural issues.”

I can assure the hon. Gentleman that the matter is of concern to us, and we will return to that issue later.

Amendments 79, 80 and 82 seek to amend clause 1 to retain legal aid for matters where an individual is in dispute with the state, particularly where that individual would experience difficulty in protecting their legal rights by reason of learning difficulties, mental health problems, other disabilities, language difficulties, problems of literacy or not being articulate. I appreciate and respect the concern of the hon. Member for Stretford and Urmston and the right hon. Member for Dwyfor Meirionnydd and their commitment to looking for fairness in the system. Amendment 80 would require an equality of arms with the state in such cases. The amendments seek to retain legal aid for social welfare law, immigration and education categories, at a cost to the taxpayer of around £85 million.

Amendment 81 relates to access to legal aid in appeal cases in the higher courts and certain tribunals. The categories of law in question include welfare benefits and immigration, where tribunals are used. Representation for welfare benefits is not available at the moment because such tribunals are designed to be user-friendly without the need for legal representation.

We have to make tough choices about legal aid spending, so we have sought to focus resources on those who need them the most and on the most serious cases where legal advice or representation is justified. In social welfare law, education and immigration, we are reducing the availability of legal aid, but it will remain for cases with the highest priority, and we will continue to spend some £50 million on social welfare law.

The concept of equality of arms is susceptible to misunderstanding. The amendment tabled by the hon. Member for Stretford and Urmston seems to imply that justice can be done only where both parties in proceedings have identical representation. That view is not supported by the law or by the experience of many litigants who currently appear before tribunals without the benefit of legally aided representation.

The important question is whether an imbalance in representation gives rise to an obvious unfairness in proceedings. In determining that question, it is necessary to consider all the circumstances of the case, including the nature of the rights at stake, the complexity of the law, the capacity of the individual to represent themselves and whether there are alternative means of securing access to justice. In many cases, for example before the tribunals, the procedure is relatively straightforward and there are sufficient safeguards in place to ensure that the absence of legal representation for one side does not lead to an unjust outcome.

The case law on article 6 of the European convention on human rights sets out the circumstances in which legal aid will be required to guard against an obvious unfairness in proceedings. Clause 9 will provide for an exceptional funding scheme that will continue to provide legal aid in circumstances where the failure to provide funding would amount to a breach of an individual’s rights under the ECHR or under European Union law. I emphasise that the threshold is very high; as the name suggests, the cases will have to be exceptional. However, the exceptional funding scheme provides an important safety net for those cases in which a significant inequality of arms would lead to an obvious and unlawful unfairness in proceedings, such as in the vulnerable and learning disability cases that the hon. Member for Stretford and Urmston referred to in relation to amendment 82. We shall discuss that matter further when we reach clause 9.

Yvonne Fovargue (Labour, Makerfield)

The Minister seems to be saying that these cases are not particularly complex, and he is focusing on representation. First, advice and support for people leading up to representation is equally important, and that will be vanishing. Secondly, if the cases are not complex, why did the Department for Work and Pensions issue 8,690 pages of advice to its decision makers in 2009?

Jonathan Djanogly (Conservative, Huntingdon)

I did not say that all cases are not complex; some are, and they will require exceptional funding. People access advice in different ways—there will still be CABs, law centres and people who are prepared to give advice and representation for free, as they do now. Advice is given through a variety of methods and, as I said, exceptional funding will remain.

Dave Watts (Labour, St Helens North)

Will the Minister guarantee that any individuals who seek advice will find it? If he cannot provide advice through citizens advice bureaux that do not exist, will he provide it by the state?

Jonathan Djanogly (Conservative, Huntingdon)

I can give no more guarantee of that in the future than can be given now.

On amendment 81, the Government have considered whether funding remains justified for all appeals, regardless of the area of law in which they arise. In our view, it does not. The fact that these cases are heard before a higher court, or on a point of law, does not automatically outweigh other considerations. The importance of the issue will vary with the type of case, as will the vulnerability of the appellant. As I have said, our approach retains funding for appeals in cases that raise matters of critical importance to individuals, such as those in which their life or liberty is at stake; in which they are at risk of serious physical harm or immediate loss of their home; or in which their children may be taken into care. Legal aid is not necessary for all appeals on a point of law, nor is it currently available for all such appeals. It has never been available for representation for appeals on a point of law from the welfare benefits tribunal, for example.

We recognise that appellants may have difficulty presenting complex cases before the upper courts, but not all cases before such courts will necessarily be so complex that an individual would find it impossible to assert their claim. For appeals in which such difficulties do occur, exceptional funding will be available where, in the particular circumstances of the case, the failure to provide funding would amount to a breach of the appellant’s rights under the European convention on human rights or under European Union law. I hope that the hon. Member for Stretford and Urmston will be reassured and will withdraw her amendment.

Kate Green (Labour, Stretford and Urmston)

I am disappointed by much of what the Minister has said and disappointed that the Government’s overall response to this matter seems so at odds with their impact assessment, which has highlighted the insufficiency of support for the most vulnerable in the system as a result of the changes. My right hon. Friend the Member for Dwyfor Meirionnydd summed it up when he said that we want a legal system in which all are given equal chances. Clearly, the provisions will not provide that for claimants who seek to deal with complex matters without the wherewithal and capacity to manage them on their own.

The Minister made an attractive intellectual point, but one that is completely at odds with reality, when he said that equal representation was not a prerequisite of giving everyone equal chances because our tribunals were already accessible, informal and relatively straightforward. As my hon. Friend the Member for Makerfield said, that is far from how tribunals are experienced by many who seek to access them. It is also of concern that the Minister has determined that there will be access to legal advice for what he deems to be the more serious matters, because that excludes matters that many individuals would regard as fundamentally serious to them and to their families—matters that go to the heart of their livelihood and well-being. I am concerned that there seems to be an assumption that it is only at the absolute extremes that there is the need for protection against inadequate and inappropriate decision making by the state and by others.

It is right to note, as my hon. Friend the Member for Hammersmith pointed out, that we are not only talking about what goes on in tribunals. Amendments 79, 80 and 82 discuss how access to legal advice earlier in the process could keep cases out of tribunal. That would surely benefit not only the individuals with the particular problems, but would also reduce the cost to the public purse.

In an adversarial system it is especially important that every participant in the process is adequately equipped to play their part. Despite the point that the Minister made about the judge seeking to ensure that people could understand what was going on and taking extra account of people who suffer from particular disadvantages, we have a fundamentally adversarial process, which requires each party to put their case in front of the judge and for the judge to take the decision on the basis of what he or she hears. It is difficult to see how that can be done fairly when the two parties are in different places in their ability to research, present and understand the legal complexities surrounding their case. I am concerned that, as my hon. Friend the Member for Hammersmith mentioned, we will end up with second-rate justice and deficient decisions, which are not the right decisions.

I noted what the Minister said about exceptional funding remaining where people were particularly at risk of being unable to fully enjoy their European convention rights. Frankly, however, if a small and vulnerable group of litigants will have to go through a further hoop to determine whether their rights are being put under threat and they therefore have to make a case that they need legal aid in those situations, that will mean further uncertainty for those claimants as to whether they will be able to continue their case, as well as further hassle, further grief and further confusion as to where they stand.

I was disappointed with the Minister’s response. I accept that amendments 79 and 80 would bring substantial parts of the current areas of law that qualify for legal aid back into scope. I can see why Ministers would be reluctant to accept amendments that had that particular effect. Any member of the public watching this debate would expect the Committee to stand up for those with learning disability, those with mental health problems and those who are unable to properly and equally participate in court hearings and court proceedings. They would also expect us to say that people should have access to professional, expert qualified advice in the upper tribunals where, by definition, technical and complex points of law, which require expert understanding, are involved. I beg to ask leave to withdraw the amendment.

Kate Green (Labour, Stretford and Urmston)

I beg to move amendment 84, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that a detailed strategic plan to fund the not for profit legal advice sector is adequately prepared prior to any decisions being made on changes to the scope of legal aid, to ensure that individuals are not left without access to legal advice and representation in relation to problems of welfare benefits, employment, debt, housing, or immigration, education or asylum support.’.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following: amendment 85, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure, before implementing any changes to legal aid in this Act, that in no part of the country will the proposals result in advice deserts where it is not reasonably practicable for any person to be able to access legal advice and assistance in relation to welfare benefits, employment, debt, housing, or immigration, education or asylum support.’.

Amendment 4, in clause 2, page 2, line 11, after ‘Part’, insert

‘and of fulfilling his obligations under section 1, having regard to the extent and nature of demand from eligible persons for Legal Aid’.

Amendment 90, in clause 2, page 2, line 29, at end insert—

‘(6) The Lord Chancellor may make funding available on a discretionary basis for civil legal advice on matters not covered in Schedule 1, where such advice complements the civil legal services provided for under that Schedule.’.

Kate Green (Labour, Stretford and Urmston)

Amendments 84 and 85 deal with the impact on the market of the proposals that the Government are bringing forward in relation to legal aid. Amendment 84 would require the Lord Chancellor to ensure that a detailed strategic plan is in place for funding for the not-for-profit legal advice sector before any decisions are made on changes to the scope of legal aid. We are concerned that individuals should not be left without access to legal advice and representation on matters that go to their fundamental well-being.

The Legal Services Commission has already warned of “market failure” from the proposed cuts; law centres may have to close and many citizens advice bureaux with legal aid contracts will inevitably be severely affected. To try to mitigate some effects of the cuts, the Lord Chancellor has announced funding of £20 million, which is certainly welcome, but we do not yet know to what that will be applied or whether it is only a one-time offer, so we are still concerned about the long-term funding of agencies in the not-for-profit sector.

Although we are not at present saying what the nature of the long-term strategic plan would be, the amendment would not require the reinstatement of legal aid to categories that the Bill would remove from scope. We are asking the Lord Chancellor to demonstrate strategically how the not-for-profit advice sector will be supported to continue to fulfil its important functions when the changes go through.

There are concerns about the impact on the sector and the sustainability of the market overall. The chief executive of the Legal Services Commission told us in Committee on 12 July:

“The issue around market sustainability…is the impact of the three different budget reductions in relation to the single gateway, the fee reductions and the changes in scope. The area where we have had some concerns is about the large reductions in scope and the ability of certain parts of the legal services market to adapt to that, particularly the not for profit sector, which the Government absolutely accept in their impact assessments, and in the immigration and asylum field.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 12 July 2011; c. 71, Q158.]

In its written evidence to the Committee, Shelter made the similar point that the proposals for cuts in funding will have a significant and destabilising impact on the not-for-profit advice sector and are likely to make current business plans unviable. In particular, it will be difficult for advice agencies to restrict their offer only to fields and categories of activity outside the scope of legal aid. The interdependence of agencies’ legal aid and non-legal aid work is fundamental to their overall financial and business viability, and by removing one fundamental brick in the wall the whole edifice will begin to rock.

The Government’s impact assessment highlights the extent of the impact on the not-for-profit sector. It acknowledges that the sector stands to lose 77% of its legal aid funding, which is a very substantial proportion. The Advice Services Alliance estimates that that will equate to a loss of 900 specialist advisers and solicitors from the sector. In its oral evidence, the Law Centres Federation stated that it expects to lose 86% of its funding—£6.87 million—on top of the 53% cut that has already taken place in its local authority funding. Gillian Guy, the chief executive of Citizens Advice, told us in her oral evidence that the hit on the CAB network will be about £25 million.

The loss of funding to core advice agencies is substantial and will have a significant impact on the not-for-profit sector, but does not apply only to agencies dedicated to the provision of legal advice. Members of DIAL, the disability network, and members of Youth Access also stand to lose substantial funding—Youth Access between 20% and 40% and DIAL members 39%.

Another thing that we can expect is not only some agencies struggling to keep going or to provide services at all but even if they can continue to offer some sort of advice and support to individuals, the quality and skills of the workers in those agencies being significantly and adversely affected. There is a real issue not only of quantity but of quality resulting from what the Government are proposing and in how the not-for-profit sector might look because of the funding reductions. That is a considerable cause of concern.

Amendment 85 provides that the Lord Chancellor, before implementing any changes to legal aid, should ensure that in no part of the country will proposals result in advice deserts. We are asking the Lord Chancellor to assess the impact of the changes and to respond to any adverse impacts before the changes go through.

Dave Watts (Labour, St Helens North)

Is what my hon. Friend has just said not at odds with what the Minister said earlier, in that individuals might well not be able to get access to help, assistance and advice? In that case, the desert would seem to exist, if the Minister refuses to guarantee provision for those individuals in such circumstances.

Kate Green (Labour, Stretford and Urmston)

My hon. Friend is absolutely right. We are concerned that individuals will be put in a position where they cannot get the advice that they need, either because they do not qualify or because nothing is available in their communities or neighbourhoods. In either case, that individual can no longer enjoy his or her legal rights.

We are concerned about the disappearance of provision from certain areas and certain communities. Immigration offers a good case study. Paragraph 306 of the Ministry of Justice response to its consultation document states that

“if there is any short term disruption in supply in some areas, this can be mitigated through running a short, focussed retender exercise, for example as undertaken”

in respect of

“immigration matters in Dover following the 2010 bid round.”

The consultation response neglects to mention that the immigration tender was let in November 2010, but that only in July 2011 was a firm appointed to take the Dover cases—a period of eight months during which those seeking immigration advice in Dover would have struggled to find it.

The response also neglected to mention that there was a focused retender in Plymouth, where no contract in asylum had been let, and that has failed, meaning that the nearest asylum advice to Plymouth is in Bristol. Those who know their geography of the south-west, and some hon. Members certainly do, know that that is a not inconsiderable journey for the seeker of advice to take. The response also neglected to mention that no Bristol firm or organisation had the capacity to provide interim cover in Plymouth, and that the interim arrangements were only put in place from 15 February 2011—remembering that immigration tenders were let in 2011. The interim arrangements are the cover provided on a Tuesday and a Wednesday between 10 am and 5 pm by a firm based in Enfield in London, which is not very near the south-west at all. The response neglected to mention that in east Essex a shortfall in supply could not be picked up. Attempts to resolve that without a retender have so far failed.

We can add to that the situation with regard to the Immigration Advisory Service, which has gone into administration as the Committee has been deliberating. It had offices in Bristol, serving Essex from its Cambridge office, which means that for those areas the disappearance of the IAS further compounds the existence of an immigration advice desert in those communities. Advice deserts are not some nebulous future threat but a present reality.

The Legal Services Commission, in response to the IAS going into administration, stated that there would be an orderly transition of files. We disagree. Carolyn Downs, the chief executive of the Legal Services Commission, when talking about an earlier failure of the organisation Refugee and Migrant Justice, told the Select Committee on Home Affairs last November:

“In relation to the RMJ going into administration, all the cases which were with RMJ were passed on to other providers some months ago. That was successfully transferred from the RMJ to other providers.”

A substantial proportion of RMJ cases were transferred to the Immigration Advisory Service. With that now going into administration too, we can see that the provision is very unstable. There is a risk that former IAS clients are now wandering around in advice deserts and simply unable to access their files, get advice on their case or know where their case stands at all.

We are concerned about the provision of advice and particularly the impact on the non-profit sector. More generally, we are concerned that advice is simply not available in significant areas of law that remain within scope, but where agencies are not able to survive. We are also concerned where categories of law are taken out of scope, and that has a knock-on effect on the ability of agencies to provide advice on matters that remain in scope. We therefore ask, not for the Government’s proposals to be withdrawn, but simply that they are not progressed until those concerns can be adequately addressed through the provision of proper strategies and plans to deal with them. I hope that the Minister will agree that such strategic planning now would be an investment worth making for the long-term success of the reforms that the Government seek to introduce.

Andrew Slaughter (Labour, Hammersmith)

As my hon. Friend indicated at the end of her remarks, the key word in this group of amendments is “strategic”, which is in the first line of amendment 84. That follows on logically from the previous group. The Minister probably expressed our doubts more eloquently than I could when he was struggling to justify, particularly, the Government’s intention not to provide legal assistance for litigants in person struggling with difficult and complex points of law on appeal. He was intervened on by my hon. Friend the Member for Makerfield, who suggested an example. The right hon. Member for Dwyfor Meirionnydd gave another example of the complexity of the law in many of the areas—8,000 regulations in four volumes issued by the Government. The Under-Secretary of State for Justice, the hon. Member for Reigate, indicated at that point that it might be the previous Government’s fault for being over-regulatory. If the Government are intending to replace 8,000 regulations with eight pages of regulation, perhaps they could get the Minister of State, Department for Communities and Local Government, the right hon. Member for Tunbridge Wells, to have a go at that; he seem to be good at slimming down the number of pages, but not without controversy. In the real world that is lived in every day by people who attend tribunals, such matters are complicated. That is why there has to be a strategic approach.

What underlies this part of the Bill, and the Bill in general, is a finance-led review of the legal system without regard to the consequences. That is why we are asking for a pause to consider what some of those consequences might be and to take steps to ensure that the worst of them do not come to pass. The chief executive of the Legal Services Commission indicated that the cumulative effect of the single gateway, the fee reductions and the changes in scope would mean that even if there was a desire to provide legal services in a particular area, the provision would not be sustainable. We will see later on that other costs will be loaded on to providers of legal services. The Government have not considered what that cumulative aspect will be.

My hon. Friend the Member for Stretford and Urmston says that there are already advice deserts. It is already difficult to get comprehensive legal services, even in London and major conurbations, let alone—Government Members will have more experience of this—in rural areas. People are being asked to travel prohibitive distances to seek legal advice and assistance. I know that my hon. Friend the Member for Makerfield will speak to her amendment shortly, and I do not want to pre-empt what she will say, but that is another part of the jigsaw that needs to be put in place. These are fig leaves.

We have mentioned exceptional cases and exceptional funding. We heard about the £20 million, which was provided in parentheses in one of the Lord Chancellor’s statements. We understand that it will continue this year, but we do not know for how much longer it will continue to give some succour or palliative care to the advice sector. There has been no news about what will happen to the financial inclusion fund, which was first abolished then reprieved. Those are all ancillary areas to legal advice and LSC funding, but they work in conjunction.

It is worth making the point that it is not currently the case that advice agencies are flush with money. They are already making do and finding clever ways to ensure that different funding streams such as FIF and the money that they get from charitable sources or local authorities, where that remains, are used to supplement or provide for where legal services funding cannot be there. There is no attempt, however, to look at advice in general and to come up with proposals, although we understand that there is work going on somewhere in the Government, perhaps in the Cabinet Office. The Bill pre-empts any of that. It makes the case for cutting and then waiting and seeing what the consequences may be.

Yvonne Fovargue (Labour, Makerfield)

Perhaps my hon. Friend would like to hear about a practical example of where agencies worked to minimise costs. That example is the Liverpool specialist advice services, where all the money for the specialist services for Liverpool was concentrated into the specialist services, which then provided the advisers to go out to each bureau in Liverpool. In one fell swoop, the removal of this money will mean that there are no specialist services in Liverpool, an area of high demand, simply because of the cost-efficient way that they organised their services.

Andrew Slaughter (Labour, Hammersmith)

I am grateful to my hon. Friend for that. I am sure that every hon. Member here will know of examples. I described earlier how my local citizens advice bureau is seeking to use its own resources more cleverly as well as plugging the gaps made by cuts elsewhere. I know, because they are on the record saying so, that Government Members have praised their local advice agencies and how they work. It is not that they are not valued; it is that this is incoherent. It is an attempt to make substantial cuts in a variety of different ways, which has a cumulative effect, without paying attention to the consequences.

We are asking first that the matter should be looked at in the round, secondly that it should be looked at geographically so that there is a reasonable coverage, and thirdly that there is integration and consideration of the integration of the available funding schemes. The Government would then not simply make ad hoc announcements when they are on the back foot or want to do something to keep the advice sector quiet for a few days, but instead would look at where the policy is going in general.

Yvonne Fovargue (Labour, Makerfield)

It is a pleasure to serve under your chairmanship, Mr Hollobone.

Amendment 90 seeks to give the Lord Chancellor a discretion to permit transfers from the legal aid budget to other funding schemes. I do not agree with the way in which schedule 1 frames the definition of legal services. While it is intended to prioritise the needs of the most vulnerable by establishing categories of legal proceedings, it does so by being too narrowly prescriptive. In my experience, clients do not come in with a neat bundle of problems and say to the adviser, “Here you are. This is my housing problem. I have sorted out a welfare benefit problem. While I am at it, I have a little debt problem here.” They come in and say, “I might lose my home.” It is like a ball of wool that has to be unravelled by an experienced adviser—I am sure my hon. Friend the Member for Stretford and Urmston will talk about why a telephone gateway is completely unsuitable in some experiences—and the adviser has to separate the strands.

Many issues cross boundaries and cannot be separated. What about the case where the housing benefit has been refused owing to the client’s relationship with the landlord, who happens to be the father? Both the client and the landlord could have lost the home owing to the complexity of the housing benefit legislation and, I have to say, the local authority’s lack of knowledge of the legislation. A very experienced benefits adviser argued the case to the local authority at appeal. They quoted the regulations, case law and precedents. They won the case and housing benefit was payable. The landlord continued to be able to pay the mortgage and the client remained in the home. That is not strictly a housing case. There was going to be loss of home, but it needed a benefits specialist to deal with it. We cannot separate problems with simple boundaries. If there had not been a benefits specialist available, the outcome could have been very different.

The time spent by the Legal Services Commission or its successor in unravelling eligibility and whether the problem is strictly a housing or a benefits problem will be expensive and wasteful. The LSC’s response to the Green Paper highlighted the problem of “boundary issues”. It warned that

“the administration costs of considering such cases could erode the revenue savings that the Ministry of Justice has committed itself to.”

Although the £20 million is welcome—I hope it will continue past 2012, because it is much needed for advice agencies—it has to work in conjunction with the legal aid scheme so that there is no duplication. Advice services dealing with benefits, debt, employment entitlement, social security appeals, employment rights and immigration have to be able to give holistic advice, some of which will be legally aidable, even under the scheme, and some of which may not. The MOJ has to be able to make a discretionary resource transfer to any advice funding where appropriate to ensure that the clients do not keep returning. There is no point in dealing with one problem if the underlying problem, which is not legally aidable, is still there and is causing the problem. If the problems continue because the underlying problem is out of scope, it will cost the system more money and the client will end up claiming legal aid for a much more serious problem, so I propose a discretionary transfer.

Robert Buckland (Conservative, South Swindon)

It is a pleasure to serve under your chairmanship, Mr Hollobone.

I want to address the points raised by the hon. Member for Makerfield. With respect to this morning’s other contributors, she has made a substantive proposition to the Committee about the future of the welcome £20 million that has been made available by the Government through the Office for Civil Society to help not-for-profit legal advice services. It is entirely welcome. The Government are committed to trying to ensure that there is provision for people who need legal advice services. In previous contributions to the Committee and elsewhere, I have reiterated my support for that approach. I want to talk about the future of not-for-profit legal services and how local agencies such as law centres and citizens advice bureaux can work together in a collaborative way and in partnership to deliver legal advice services.

We have endured a top-heavy, centralised system, through the Legal Services Commission, which, happily is to be abolished—we warmly welcome that. There is a case to be made in future for looking carefully at the way we deliver services locally. By that I mean looking at the sort of model that would allow the development of real localism in legal services—local partnerships with control of local budgets by way of block funding. I have used that phrase in the past and make no apology for doing so again. In that devolved and localised way, they could then make decisions about what needs they should serve, and the boundary problems that all of us, on both sides of the Committee, acknowledge could largely be avoided.

In a nutshell, I am not convinced that amendments to the Bill will be the best way to achieve that, but I know that Ministers are thinking anxiously about the issue. It is an issue for the long term. I am sure that the excellent initiative represented by the £20 million of funding will be followed through by more thinking about how to develop real localism in the delivery of legal services and allow the not-for-profit sector to flourish, as part of what we believe is a viable big society approach to the problems faced by people in all our communities.

Jonathan Djanogly (Conservative, Huntingdon)

The amendments relate to the supply of, and demand for, legal services, including, as part of that, the impact of the legal aid reforms on the not-for-profit advice sector. Before I deal with the specifics of the amendments I want briefly to set out how we have approached our reforms.

Our proposals have been designed with the aim of making substantial savings in legal aid expenditure. As we discussed earlier, legal aid is not an unlimited right. It follows that we cannot have a system that caters for unlimited demand. Refocusing the scope of the legal aid scheme on those who need it most has required us to make difficult choices about where funding continues to be justified.

The starting point for our consideration has been to examine which issues have sufficient priority to justify public funding. In reaching our proposals we have taken into account our domestic, European and international legal obligations, including the European convention on human rights. We believe it is clearly right that we should continue to provide legal aid for those accused of criminal offences, provided it is in the interest of justice, and subject to the appropriate test of the individual’s means, as that underpins the right to a fair trial.

In civil and family legal aid our aim is to introduce a targeted scheme that directs resources to those areas of law that we judge to be a priority. Our consideration of the justification of public funding for civil and family cases is based on our assessment of the nature of the rights involved, the client’s ability to represent his or her own case, and the availability of alternative assistance, remedies or funding.

The current civil legal aid scheme, established under the Access to Justice Act 1999, is very broad. Legal aid funding is available to provide legal advice on almost any area of law other than personal injury and damage to property, conveyancing, boundary disputes, defamation and malicious falsehood, the making of wills, trust law and business cases, which are explicitly excluded.

In the Bill we have taken a different approach. To target legal aid resources in a more focused way on specific issues, we propose to specify the types of issue and levels of service that are available under the revised scheme as set out in schedule 1.

Amendment 84 would place a duty on the Lord Chancellor to provide a strategy for funding and preparation of the not-for-profit sector before the finalisation of any decisions on scope, with the object of ensuring advice and representation in relation to the category specified. Amendment 85 is linked closely with that, and would require the Lord Chancellor to ensure that advice and assistance had been secured in those areas of law, before the implementation of any decisions on scope. Both amendments refer to the concept of advice deserts.

Amendment 4 relates to clause 2 and would introduce an explicit consideration that the Lord Chancellor would have to take into account in meeting his obligations under clause 1: specifically that he should have regard to the nature and extent of demand from persons eligible for legal aid. We believe that that is unnecessary. Clause 1 states that the Lord Chancellor must secure that legal aid is made available in accordance with part 1 of the Bill. The Lord Chancellor has powers under clause 2 to make arrangements to enable provision of services. Such arrangements will, as now, enable people to access in-scope legal aid services wherever they are in England or in Wales.

The concern about demand for legal aid services has not been ignored in the Bill. Under clause 10, the Lord Chancellor will make regulations setting out the criteria that the director of legal aid casework will be required to consider when making decisions. When setting such criteria, the Lord Chancellor must consider the extent to which they should reflect particular factors, which will specifically include

“the availability of resources to provide the services”

and

“the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civil legal services”.

In addition, we have been clear in the response to consultation that we will work in conjunction with the LSC to develop and implement a procurement strategy that reflects the demands and requirements of the new legal aid market. We are confident that a sufficient number of providers will be willing to undertake legal aid work under the new strategy once the provisions have been implemented, and that we will not have advice deserts. The hon. Member for Stretford and Urmston referred to IAS, whose administration was a sad event. However, within two months of its going into administration, all the organisation’s active files—more than 5,000—were successfully reallocated to new providers. All urgent cases involving unaccompanied minors and impending hearings were prioritised—there are no resulting advice deserts from IAS.

Dave Watts (Labour, St Helens North)

If the Minister is so sure that there will be no advice deserts, why does the Bill not require the Government to provide extra resources if such a desert should exist?

Jonathan Djanogly (Conservative, Huntingdon)

The Government and the Ministry of Justice want to provide appropriate coverage of legal aid throughout the country. There have been several administrations—a number of law firms have closed down. Law firms open and close, and that will always result in operational issues to deal with, which one might describe as advice deserts. However, I am pleased to say that despite that, to date, we have dealt with such issues as they have arrived, and I expect and hope that we will do so in future. That is an operational matter and not one for statute.

Andrew Slaughter (Labour, Hammersmith)

The Minister mentioned IAS; is he as certain about the demise of Refugee and Migrant Justice? According to the Immigration Law Practitioners’ Association, administrators have continued to pay tens of thousands of pounds for the storage of files that have not been reallocated, and the transfers are often transfers in name only. In other words, there has been no connection between the new provider and the client. In the light of that, the Minister may want to reconsider not only what happened to RMJ, but also what is happening with IAS. Perhaps the information that he is getting is not accurate.

Jonathan Djanogly (Conservative, Huntingdon)

I am pleased to inform the hon. Gentleman that, again, with RMJ, the LSC performed its duty well. A serious situation arose from the administration of that organisation, which was dealt with effectively. The hon. Gentleman specifically mentioned files in storage, which was a particular problem, not least because the files were, perhaps, in a room—to say that they were stored in a methodical format would be an overstatement. However, we are dealing with that matter, which, again, is operational and administrative.

Amendment 90 is designed to enable the legal aid fund to be used to fund advice for areas of law that we would otherwise have taken out of scope. The amendments are neither necessary nor desirable. I admire the work of the UK’s not-for-profit centres and I recognise that they are an important national asset. I value the advice that they provide, not least to my own constituents, and I am sure that all Committee members feel the same. Throughout all the parliamentary debates on changes to legal aid, I have been left in no doubt about the value and esteem that Members of Parliament and local communities place on their local advice centres. We have sought to redesign legal aid based on an assessment of where taxpayers ought to fund legal advice. We propose to focus funding on critically important issues. Few of those are easy choices, but after careful consideration we have decided that disputes about financial issues, rather than life and liberty, should have a lower relative priority.

In that context, I will deal head-on with the issues raised by hon. Members about the provision of early advice. Let me be clear that I strongly agree with the argument that many people with disputes or grievances need good early general advice and do not necessarily need the expertise of specialist lawyers. Of course, I can see the points made by hon. Members and, intuitively, that some early legal advice may well have a preventive benefit in avoiding downstream costs. However, changes to legal aid alone should not themselves undermine the provision of general advice. As a matter of principle, legal aid is money intended for specialist advice and not for cross-subsidising other activities, as would be provided for in amendment 90. As a matter of practice, legal aid represents only one of several income streams for many organisations—for example, 85% of CAB funding comes from other sources and half the bureaux receive no legal aid funding.

The Government share the view of hon. Members who want to see a robust and sustainable not-for-profit advice sector. We have heard and carefully considered the concerns raised about the risks presented by a combination of funding changes, and we intend to continue our conversation with the advice sector. We are not acting off the back foot or in an ad hoc manner, as was suggested by the hon. Member for Hammersmith. The £100 million transition fund that was made available last December is testament to the pan-Government commitment to general practical advice to empower individuals to resolve their issues. In addition, the Lord Chancellor has announced funding of £20 million to support not-for-profits in delivering front-line services for this financial year, for which both CABs and advice centres generally can bid.

In the longer term, a corollary of reframing legal aid might be a need to reframe early general advice provision. If we are to move away from the adversarial and litigious resolution of problems, part of our ambitious culture change has to be making the right provision of advice and information to allow people to operate on an empowered and informed basis. The priority is to work with the sector and across the Government to ensure that the implementation of our reforms helps to improve the efficiency and effectiveness of advice services. Ultimately, that work is being led by the Cabinet Office, but I can tell hon. Members that my Department and I certainly retain a keen interest.

In conclusion, although I and the Government support the broad principles raised by the amendments, they are not necessary. On that basis, I ask the hon. Member for Stretford and Urmston to withdraw her amendment.

Kate Green (Labour, Stretford and Urmston)

I noted with considerable interest all that the Minister said, particularly his points about the specific responsibilities of the Lord Chancellor and the factors that he will have to take into account in ensuring that legal advice services are provided. I welcome the Minister’s statement that he and the Government want a robust and profitable not-for-profit advice sector to continue, and that they intend to work with the Legal Services Commission to develop a procurement strategy that supports the not-for-profits and the broader advice sector.

I hope that the Minister, when he works with the LSC to develop that broader procurement strategy, will take note of the very sound points made by my hon. Friend the Member for Makerfield and the hon. Member for South Swindon, who both have significant hands-on expertise of the needs of the sector, as the Minister knows. Some very sensible points and suggestions have been made by them and other hon. Members, and I hope that the Government give them serious attention.

The Minister’s assurances are welcome, and we will be holding him to them. He has confidently stated that no advice deserts will result from what the Government plan and that they will take action to ensure that that proves to be the case. I assure the Minister that we will certainly be watching to make sure that his promises are fulfilled but, in the light of the assurances that we have received, I beg to ask leave to withdraw the amendment.

Kate Green (Labour, Stretford and Urmston)

I beg to move amendment 86, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that any individual wishing to access legal aid through face to face provision shall be entitled so to do and shall not be compelled to do so through a telephone gateway.’.

Philip Hollobone (Conservative, Kettering)

With this it will be convenient to discuss the following: amendment 87, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that before any proposals to provide legal aid through a telephone gateway are progressed a full further public consultation takes place on the specific details of such proposals and such proposals are fully assessed for cost.’.

Amendment 88, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that if a telephone gateway is introduced sufficient protection is in place to protect the rights of those who would have problems accessing it by reason of learning difficulties, mental health problems, language difficulties, problems of literacy, or from not being articulate.’.

Amendment 118, in clause 15, page 11, line 22, at end insert—

‘( ) An individual to whom representation is made available under this Part for the purpose of criminal proceedings may select any representative willing to act for that individual, and where such a selection is made the representation is to be by way of legal services provided by the selected representative.’.

Amendment 108, in clause 26, page 20, line 34, leave out subsections (1) to (4) and insert—

‘(1) Subject to subsection (2) the Lord Chancellor may discharge his duty under section 1(1) by arranging for services to be provided by telephone or by other electronic means.

(2) The Lord Chancellor may not arrange for services to be provided by telephone or electronic means where an individual requests that advice be provided in person.

(3) An individual who qualifies under this Part for representation for the purposes of any civil or criminal legal services may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).’.

Amendment 109, in clause 26, page 21, line 24, leave out subsections (8) to (10).

Amendment 115, in clause 38, page 27, line 39, leave out ‘or (8)’.

Kate Green (Labour, Stretford and Urmston)

My amendments relate to inclusion of the telephone gateway as the access to legally aided advice. The change to how people will access their legal advice and entitlement to legal aid is profound and therefore it should be explained well and understood fully.

Amendment 86 is specifically about how telephone advice might not be suitable in some cases. We are seeking to protect the availability of, for example, face-to-face advice when appropriate. Amendment 87 would require further public consultation before the telephone gateway is created, and amendment 88 returns to the theme that we were discussing this morning—the particular needs of vulnerable people, but in this instance, specifically, their ability to access and benefit from telephone advice.

In considering the amendments on the need to protect appropriate face-to-face advice and to have in mind the needs of particularly vulnerable people, it is important that we acknowledge what we already know. The socio-economic groups D and E—least likely to make use of telephone advice services—are the ones that will struggle to meet the higher costs of phoning even an 0845 number if they are calling from certain mobile networks and pay-as-you-go systems. I am sure that the Minister is anxious that people are not precluded from accessing telephone advice simply because they cannot afford it.

The Minister alluded to something else this morning that it is important to note: the intention is to allow paid-for services to be provided through the telephone gateway to those who are not eligible for legal aid. He mentioned the intention to pilot the operation of the telephone gateway, and it is certainly right to look at the conclusions to be drawn from such a pilot before proceeding to full roll-out of the gateway as proposed.

It is important to note that, while there might be some merits to having a national, single and known point of information on the legal aid system, which the telephone advice service could provide, we have deep concerns about those who might be left without help, such as those with learning difficulties, mental health problems and language problems. The Government’s own impact assessment highlighted the adverse effect of the proposals on some ethnic minorities, and those with poor literacy or speech and communication problems might find it very difficult indeed to use a telephone service.

As my hon. Friend the Member for Makerfield highlighted, some people come in with particularly complex and overlapping problems, which have to be disentangled and analysed, and which often arrive accompanied by sackfuls of documentation, some of which has been sitting behind the clock on the mantelpiece for months on end as people hope that the problem, if ignored, will simply go away. It is difficult for an adviser on the telephone to work his way through the kind of documentation that all hon. Members are familiar with in our own advice surgeries, let alone the kind of information that people might take into a citizens advice bureau or local welfare rights agency. Such people will not be helped at all by simply being routed through telephone advice. We must also be concerned that we might lose the ability to pick up on and respond to the extent of confusion and distress that people might bring when they first present a legal or quasi-legal problem. We will need very skilled telephone operators indeed to deal with some of the extremely difficult personal situations that will present themselves.

The Minister might be able to offer more clarity today and that would certainly be welcome, as there is a lack of it in the details of the proposed scheme. In its response to the Government’s Green Paper, the Law Centres Federation said specifically that there was to be an evaluation and consultation process on any proposals to introduce the telephone gateway. It was also left unclear what might happen in situations that could not be dealt with through the telephone gateway. For example, people with a problem go to the telephone gateway where it is identified clearly that they have a problem that is susceptible to resolution under legal aid, but it is not clear what would happen to them if the telephone route were not sufficient to deal with it. There is a real issue for those for whom the cost of the telephone call might be a significant barrier and, indeed, for those who might not have access to a telephone at all. Moreover, there might be some in-built cost in dealing over the telephone with complex problems if people have to go over the same ground for advisers to understand the nature of their problems.

I hope that the Minister will offer us more information today on how the proposals will be structured to ensure that it is financially viable for providers to operate the telephone advice gateway. He will be aware that the telephone service whereby solicitors can be identified and allocated has just gone bust, and I should be interested to know what lessons have been learnt from that experience. How can the hon. Gentleman be confident that the proposed telephone service will be financially viable; how can it be guaranteed a sufficient number of matter starts and how will it be viable for it to employ adequately qualified and trained staff?

Will the Minister describe the level andexperience that will be required of staff to operate the call centre both in their soft skills—their ability to empathise with people perhaps in situations of great distress and confusion—as well as in their hard skills, whereby they can identify and know the right route by which to deal with complex and tricky legal issues? What will happen when people make a complaint or are dissatisfied with the telephone service? Has an estimate been made of any cost to the state of the putting right where the telephone service might go wrong—possible claims of negligence or of poor quality advice or indeed wrong advice having been given—and what assessment has been made in designing the service?

I am worried that the proposals are likely to limit the right of a client to select their own preferred adviser—the person that they feel comfortable with and have confidence in, and with whom they can build a relationship of trust in discussing complex and personal legal problems. I hope that the hon. Gentleman will explain how those profound hurdles of trust and confidence can be overcome in the context of a telephone-only advice service. For example, those who seek asylum in this country might have come from distressing situations and it can take considerable time for such individuals to fully open up to an adviser. Similarly, we heard from Rights of Women in our oral evidence sessions before the summer recess that victims of domestic violence often take a considerable time before they are able to open up fully to their adviser and provide all the facts and circumstances of their case.

What consideration has the Minister given to ensuring that a telephone advice service can deal with such difficult and challenging individual cases? I should welcome his comments, in particular, on the protection of face-to-face advice as of right, when it is in the best interests of the client to follow that route. Finally, although the situation will arise only rarely, it is possible that callers to a telephone advice service may be calling under pressure or be subject to undue influence from another party; however, the telephone adviser will not be able to see whether that is the case. Although we accept that, in a substantial number of cases, telephone advice will be a cost-effective and efficient way of providing information and advice to individuals, it is extremely important that the Minister recognises that it will not always be so and that it cannot adequately meet need in all cases. I hope that the questions that I have asked and the concerns that many groups have raised in their submissions will be suitably addressed and that the Minister will be able to offer us reassurances today.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

In rising to make a brief contribution, may I first say that I am in full agreement with the amendments tabled by the hon. Lady? Compelling people to go through a telephone gateway is an important matter, and I believe that further consultation is needed. I am sure that I am not alone in having people regularly visiting my surgery with welfare or benefits problems that emanate directly from a failure to use the telephone gateway. I am aware of numerous problems. If the changes are inevitable, I hope that the Government will speak with the Department for Work and Pensions to see how things are working in other areas. It certainly is not an unqualified success in my neck of the woods.

Before I deal with that aspect in detail, however, I wish to speak to my amendment 118. It deals with the repealing of section 15 of the Access to Justice Act 1999 under schedule 5, which in effect removes the right of individuals granted representation in criminal proceedings to select any representative willing to act for them. That aspect was mentioned by the hon. Lady. For good reason, the amendment is fully supported by the Bar Council. It is not incumbent on me to explain further; the matter is self-evident and the wording is fairly clear.

I turn to the question of the telephone gateway. Amendment 108 deals with that in a similar way to the hon. Lady’s amendments. It states:

“(1) Subject to subsection (2) the Lord Chancellor may discharge his duty under section 1(1) by arranging for services to be provided by telephone or by other electronic means.

(2) The Lord Chancellor may not arrange for services to be provided by telephone or electronic means where an individual requests that advice be provided in person.

(3) An individual who qualifies under this Part for representation for the purposes of any civil or criminal legal services may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).”

In effect, the amendment would restrict the Lord Chancellor’s power to override individual choice for the means of service provision and of representative.

The Bill provides for the Lord Chancellor to discharge his duty to provide services for those who are eligible in accordance with primary and secondary legislation by any means he chooses, including explicit provision for services to be provided by telephone or electronic means. The Government’s response to the consultation exercise carried out earlier this year confirms their intention to press ahead with a mandatory single telephone gateway, with a few narrow exceptions, for those seeking to access the legal aid system.

In addition, the Government envisage the provision of at least some continuing casework through a specialist advice service, including complex cases and cases involving extensive documentation. While, presently, there is still little detail about how the system would work in practice, Liberty, for one, has serious concerns about the proposals.

Currently no information is given about the level of training or qualifications to be expected of those channelling requests for legal advice and assistance. Advisers with an incomplete understanding of the legal issues involved might well misdirect inquiries, which could compromise the interests of individuals, who must bring claims within set limitation periods.

Legal issues are often very complex, and an individual’s concerns frequently span areas of law and require a combination of specialisms—a point that has been made several times here today. I believe that there is a risk that telephone operatives will perhaps artificially demarcate areas of law and the specific needs of the individuals will not be met.

As I mentioned, Liberty strongly believes that face-to-face contact with clients is a critical component of good quality legal advice—obviously so that the adviser can exactly understand the problem, and so that the person who is being advised can receive good, reasonable advice based on the facts presented, facilitating a comprehensive understanding of issues, and helping to build a relationship of trust and confidence. Liberty is also concerned about the removal of choice from clients seeking legal representation.

The point is this: we have experience of the telephone gateway for benefits, which has not been a happy one in many instances. For my constituency, the nearest office is in Wrexham, which is about an hour away from where many of my constituents live, and it is not easy, when dealing with what are, let us face it, very personal matters, such as benefits.

Legal problems are also very personal, and people are often embarrassed about their situation and unable to be explicit about their precise problems. Often people—particularly the older generation—want to be as succinct as possible on the telephone, and may well leave out important matters; so, given the bundle of problems that are dealt with, they may fall foul of unintended consequences, because the adviser is not made aware of a problem.

The problem may, in many instances, be straightforward. In those circumstances the telephone inquiry line is perfectly adequate—if it is readily available, of course: we have problems with the Department for Work and Pensions, because people ring time and again and get no response.

Helen Goodman (Labour, Bishop Auckland)

The right hon. Gentleman makes a good point about the difficulties of the person speaking on the phone, but is not there also a problem for the one listening, who will give the advice? The messages that we receive visually are significant for understanding what a person is saying.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

Most definitely; speaking from my own experience in legal matters, that is the case. I often found that the first 10 minutes of any interview with a new client were virtually a waste of time; then I would realise where things were going. I would feel that some things were not being told properly and I did not quite understand. In half an hour I would understand exactly what the problems were. I agree: it is vital that the adviser is given the full picture, or obviously wrong advice will be given. That is as plain as can be.

In circumstances where difficulties are encountered it should be routine for face-to-face consultation to take place. I fear that that will be a fair old number of cases, and the Government should begin to make provision for that now. We cannot wait for the system to come in, and for the whole thing to implode, which is what will happen. Wrong advice will be given, people will lose their entitlement or they might well fall foul of limitation periods. All manner of things might happen and the consequences are dire in the extreme.

I urge the Government to think carefully about the immediate provision of face-to-face consultation, whether that is visits or visits to the office. However it is arranged, there should be face-to-face consultation in many of these cases. That is not trying to give anybody a sort of feather bed. It is to ensure that the system, if it has to come in, works. This particular element of it—face-to-face consultation—is vital if it is going to work.

Andrew Slaughter (Labour, Hammersmith)

This is an important group of amendments and that is borne out by the two speeches that have been made so far. Opposition Members have very serious concerns about the implementation of the telephone gateway. The three amendments sum up what are perhaps our three main concerns: choice; the speed at which the gateway is being implemented, and the viability of the scheme. Choice speaks for itself and it is a shame that this Government, who hold themselves up as supporting choice in many matters, are going to restrict it so far in this respect and in a way that we believe is not viable. That lack of viability would be proved if a fair opportunity was given to trial this gateway.

I hear what the Minister says about pilots but I am aware, for example, of the position that the Government take on payment by results, as we will find when we come to part 3. A pilot introduced by the Labour Government was under way and before any of its outcomes could be reviewed—while it was still in the first or second year of a five-year programme—the Government have decided to put all their eggs in one basket and use payment by results as effectively their only method of funding new schemes as alternatives to custody. The analogy with this system is very clear; the Government wish here to funnel everything through one particular channel.

Yvonne Fovargue (Labour, Makerfield)

Does my hon. Friend share my concern that debt will be one of the first areas trialled, whereas a considerable number of people who will ring the telephone gateway will be ineligible for advice because of the very narrow scope changes? Paid-for advice services, to which people can be referred, make me concerned that people will be referred not only to the free advice services, which will be able to provide debt advice, but to debt management companies, which I am sure would be happy to pay referral fees.

Andrew Slaughter (Labour, Hammersmith)

Yes. That is the central point, which is really dealt with in amendment 88. It is this issue of how feasible it is that matters of great complexity, which are dealt with through face-to-face advice in a variety of different formats, can now suddenly all be filtered through this one avenue of telephone advice. The point is that there is no risk to the Government here. The Government see only a benefit; if people fall away at that stage, there are fewer costs further down the line. However, the risks to users of the service are very great.

I do not wish to be flippant, but I think that we have all had experiences of call centres and the way that they deal with people. They are a bane of modern life. There is a process of simply making contact with a human being—what one has to do electronically to get through. Perhaps I have reached that age when I can no longer cope with electronic equipment of that kind, but I am sure that every Member here has had a bad experience of call centres. If people who should be capable of dealing with technology, processes and systems experience difficulty, I am sure that that will be the case for people who are vulnerable, quite likely to be inarticulate and in a state of some distress.

If I may, I will give another example from my experience of a constituency case that I have dealt with this week. It involved a couple running a small business. Both spoke English as a second language, and spoke different languages, although they had a good standard of English. Both were intelligent and very hard-working. They had been subjected to an extraordinary range of abuse by someone who had entered the property, taken it over and expropriated goods. In the course of a long discussion, there were clearly issues of civil law, and possibly of criminal law. They were not, at face value, issues that attracted legal aid, but in a situation where someone was locked out of their premises, had no form of income and was therefore falling into debt, they might well be. However, it took perhaps a half-hour discussion, going through lots of issues that did not appear to be germane to advice that might attract legal aid, to get to that point. Is that going to be the case with a telephone gateway? In the example that I have given, two people had to give their own side of the story. Neither spoke English as their first language, and indeed spoke different languages from each other. They were in a state of extreme distress and had a complicated story to tell, which did not, at face value, involve legal aid issues. That is not an untypical case. It beggars belief that such matters will be dealt with through a telephone gateway.

The Law Centres Federation said in its response that it supports amendment 86. There needs to be a specific evaluation and consultation process on the telephone gateway. The Minister must know, when he was still meeting the advice sector, that the issue is of the widest concern and that the proposals simply will not work. They have not been adequately assessed to consider whether they will save money, what level of skill may be required, even as a triage service, and how the referral service will work. My hon. Friend the Member for Stretford and Urmston said that that is particularly significant where people have difficulties expressing themselves in any event. Again, it is a common experience in all our surgeries to see people who have a problem but do not have the ability to articulate it and present themselves with a large amount of written material. Often I find myself going through carrier bags of information looking for key documents that are not there. Yet I know they should be. The eviction notice, the final demand or something of that nature is not there because all that the person who is presenting the case knows is that they have a problem and that they are getting an increasing series of demands and harassment, which may be from a debt collection agency or their landlord. They are asking for someone not, in the first instance, to resolve the problem, but to define it. Are the Government seriously expecting that to be done through the telephone gateway process, at least to the stage where the problem can be defined and passed on? Quite frankly, that is cloud cuckoo land.

The amendments tabled by the right hon. Member for Dwyfor Meirionnydd are welcome. He referred to section 15 of the Access to Justice Act 1999. I shall refer to that in the next group of amendments, so I will not mention it now. The repeal of that section, which defined how the legal aid system operated previously, is a significant departure. However, as I said, I will deal with that later. I am content, looking at the time, to leave my comments on the group of amendments at that.

Jonathan Djanogly (Conservative, Huntingdon)

The amendments seek to amend the provisions in the Bill relating to a mandatory single telephone gateway and the ability of a person to choose their representative in civil and criminal proceedings. Hon. Members have raised a variety of relevant and pertinent points, which I shall attempt to address.

Amendment 86 would prevent the Lord Chancellor from requiring an individual to apply for civil legal aid via a mandatory single telephone gateway. We have consulted on the proposal, and the Government explained in their consultation response their decision to implement a mandatory single gateway, initially in a restricted number of in-scope areas of law: debt, community care, discrimination—meaning claims relating to the contravention of the Equality Act 2010—and special educational needs. There will be exceptions to using the mandatory single gateway for the four areas of law covered by the gateway, including emergency cases, instances where the client has previously been assessed by the mandatory single gateway—

Jim Sheridan (Labour, Paisley and Renfrewshire North)

I remind the Committee that with this we are discussing the following: amendment 87, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that before any proposals to provide legal aid through a telephone gateway are progressed a full further public consultation takes place on the specific details of such proposals and such proposals are fully assessed for cost.’.

Amendment 88, in clause 1, page 2, line 7, at end add—

‘(6) The Lord Chancellor must ensure that if a telephone gateway is introduced sufficient protection is in place to protect the rights of those who would have problems accessing it by reason of learning difficulties, mental health problems, language difficulties, problems of literacy, or from not being articulate.’.

Amendment 118, in clause 15, page 11, line 22, at end insert—

‘( ) An individual to whom representation is made available under this Part for the purpose of criminal proceedings may select any representative willing to act for that individual, and where such a selection is made the representation is to be by way of legal services provided by the selected representative.’.

Amendment 108, in clause 26, page 20, line 34, leave out subsections (1) to (4) and insert—

‘(1) Subject to subsection (2) the Lord Chancellor may discharge his duty under section 1(1) by arranging for services to be provided by telephone or by other electronic means.

(2) The Lord Chancellor may not arrange for services to be provided by telephone or electronic means where an individual requests that advice be provided in person.

(3) An individual who qualifies under this Part for representation for the purposes of any civil or criminal legal services may select any representative or representatives willing to act for the individual, subject to regulations under subsection (6).’.

Amendment 109, in clause 26, page 21, line 24, leave out subsections (8) to (10).

Amendment 115, in clause 38, page 27, line 39, leave out ‘or (8)’.

Jonathan Djanogly (Conservative, Huntingdon)

Welcome back to the Committee, Mr Sheridan. As I was saying earlier, these would be emergency cases: instances where the clients have been assessed by the mandatory single gateway within the last 12 months as requiring face-to-face advice and are seeking further help from the same face-to-face provider to resolve linked problems; clients in detention, including prisons, detention centres and secure hospitals; and children, defined as those under 18. Where an operator is in any doubt about whether a caller’s problem is within scope or whether the caller is financially eligible for legal aid, he or she will be referred to a specialist adviser. Gateway operators will not offer the callers any advice tailored specifically to their circumstances, so legal qualifications will not be a contractual requirement.

In the consultation response, we announced that where clients access the community legal advice helpline through the mandatory single gateway in those four areas of law, clients who are eligible for legal aid will be transferred to CLA specialist telephone advisers. That will be subject to exceptions where face-to-face advice is more appropriate, such as when clients are in detention, including in secure hospitals. In addition, both gateway call operators and specialist advisers will assess the specific needs of all callers case by case, and will, as appropriate, refer them to a face-to-face advice service if that is considered necessary. Subject to those exceptions, legal aid specialist advice in those four areas will be available only by telephone.

The Government have considered carefully the issues raised in the responses to the consultation paper regarding the provision by telephone of civil legal aid services. However, it is appropriate that we seek to provide services in a cost-effective manner that meets clients’ needs.

Kate Green (Labour, Stretford and Urmston)

I apologise if I missed something that the Minister said; the break for lunch has left me slightly out of mind of what he was saying earlier. He has been clear that gateway operators will not be contractually required to have legal qualifications, but did he make clear the position in relation to the specialist legal advisers who will offer telephone advice once people have passed through the gateway?

Jonathan Djanogly (Conservative, Huntingdon)

I think that I did, but let me finish, and if I need to return to the issue, the hon. Lady should feel free to intervene again.

The hon. Lady and the hon. Member for Hammersmith queried how the telephone service will work. I need to tell them as a starting point that the CLA helpline is a successful operation. It already handles more than 500,000 calls each year and provides a full casework service at the level of civil legal help, offering more than 100,000 acts of assistance each year. It is clear from the remarks made by the hon. Member for Hammersmith that he does not like call centres. More than 90% of clients who spoke to a CLA—

Jonathan Djanogly (Conservative, Huntingdon)

I was saying that more than 90% of clients who spoke to the CLA specialist adviser said that they would recommend the service to others. In addition, cases typically cost significantly less than the equivalent face-to-face service. The hon. Member for Stretford and Urmston asked about the cost specifically. There should be no net cost as it is clear that significant savings can be achieved by increasing both the proportion of applications to legal aid made by telephone and the proportion of legally aided advice provided by telephone. She also asked about the qualifications of specialist telephone advisers. I can tell her that they are required to have the same level of qualifications as their face-to-face equivalents and a supervisor would have to be legally qualified. Contracted specialist telephone advisers are required to meet a higher peer-review standard than face-to-face advice providers as a consequence.

Yvonne Fovargue (Labour, Makerfield)

Given that the cases that are in scope will be a lot narrower in future, how will the advisers keep up their professional development and be able to see cases in the round? How will they keep up with cases that they do not see, because they will need that knowledge to be able to refer correctly?

Jonathan Djanogly (Conservative, Huntingdon)

I would have thought that, to the extent that they are specialists, they will be specialising in the area in which they are giving advice, but I am happy to drop a line to the hon. Lady on that particular issue.

Dave Watts (Labour, St Helens North)

Will the advice given by referral be recorded and will that recorded information be available to each of the persons seeking advice? In my experience, people hardly ever criticise the advice that they get in the face-to-face meeting, but there are often disputes about what was said in a phone call.

Jonathan Djanogly (Conservative, Huntingdon)

My understanding is that the information is recorded. On the extent to which it is accessible, I will come back to the hon. Gentleman by letter.

The hon. Member for Stretford and Urmston asked whether the telephone service is financially viable for providers. Tenders for CLA contracts attracted a great deal of interest, and there have not been any instances of CLA providers going into administration.

Amendment 87 would place a duty on the Lord Chancellor to undertake a further consultation and a further cost assessment on the use of the telephone gateway to apply for legal aid services. We have consulted on the proposals. The Government asked five questions about the CLA helpline in the consultation paper. Those questions covered the mandatory single gateway to apply for civil legal aid, receiving legally aided advice by telephone and paid-for advice.

On 7 January this year, the Government published further detail on the CLA helpline proposals alongside the consultation paper. The document clarified the fact that the helpline would not be the mandatory single gateway for emergency cases and set up further information on the operation of the current CLA helpline. In addition, a revised impact assessment on the telephone helpline proposals was published with the Government’s consultation response in June. I can confirm that we will review whether further consultation is appropriate before extending the mandatory nature of the helpline to other areas of law. There is no need for a statutory duty to conduct a consultation or to perform a cost assessment.

Amendment 88 would place a duty on the Lord Chancellor to ensure that provisions were put in place so that people with specific needs could apply for civil legal aid advice without using a telephone gateway. The Government accept that a mandatory single telephone gateway and mandatory specialist advice by telephone could, in principle, present a barrier for some people applying for legal aid services. That point was made by the hon. Member for Stretford and Urmston and the right hon. Member for Dwyfor Meirionnydd. However, we believe that the design of the existing CLA telephone helpline service and our proposed future gateway service will ensure that those barriers can be removed sufficiently for the effective delivery of the required service.

Specific examples of existing adaptations to the CLA service that will continue to mitigate against barriers include a three-way translation service for clients with limited or no spoken English or Welsh; a British sign language service available via webcam, minicom, and Typetalk for deaf and deafened callers; and, where clients give approval, friends, family members or other professionals calling the service on their behalf.

In addition, the needs of all callers will be assessed case by case, and, where appropriate, callers will be referred to a face-to-face advice service. The key consideration will be whether the client is able to give instructions and act on the advice given. Where an operator or, in case of doubt, a specialist telephone adviser believes that a caller is unable to give or receive legal instruction by telephone, the caller will be referred to a face-to-face provider.

Amendment 108 would prevent the Lord Chancellor from insisting that legally aided services be delivered by telephone, or by some other electronic means, if an individual eligible for such services requested that they be delivered by a face-to-face provider. In addition, the amendment would allow individuals in civil proceedings to select their own legal representative if representation were required in line with the provisions made for the selection of a representative in criminal proceedings.

The specialist telephone advice hotline will provide a consistent level of service to all callers, irrespective of where they are located, and it will be of additional benefit to those who cannot easily access face-to-face advice, such as those who live in remote areas or those who have a physical disability. Callers can access the service at a time and place convenient to them and they can quickly get help. As I said, the helpline also offers a range of facilities to help people to access telephone advice.

The Government accepted the argument that introducing the mandatory single gateway in areas of law in which the majority of clients would ultimately require access to face-to-face advice would be of limited benefit at this stage. However, we will review implementation of the mandatory single gateway and mandatory specialist advice over the telephone for the four areas of law, and we will use the outcome of that review to determine any expansion of the helpline to other areas of law in due course.

The hon. Member for Stretford and Urmston asked what will happen if advisers on the telephone line offer negligent advice. The same safeguards that apply to face-to-face services apply equally to telephone advice. Client satisfaction with the service is extremely high—more than 90% of clients using the specialist telephone advice service said that they would recommend it to others.

Ben Gummer (Conservative, Ipswich)

I welcome the idea that it might be appropriate to record some conversations, or to have the facility to do so, because in my surgeries I have heard of many instances of poor advice being given from advice centres, and people have little recourse when that happens. People can at least go back and hold telephone advice centres to account.

Jonathan Djanogly (Conservative, Huntingdon)

My hon. Friend makes a valuable contribution.

The hon. Member for Stretford and Urmston asked about people who have no access to the phone, but Ofcom data indicate that only 1% of the population are in that position. In such cases, clients can allow third parties—family, friends or professionals—to call the service on their behalf.

The hon. Lady also expressed concern about the possibility of deprivation of client choice. In the four areas to which the gateway applies, people seeking legally aided advice must access the gateway service, but they will be given some choice about how to do so. For example, they can request a call-back through an online request form or by sending a mobile phone text message to the gateway. Clients with problems in areas of law that are in scope of legal aid, but where the gateway does not apply, have the choice of calling the helpline or contacting a face-to-face provider direct.

Amendment 108 relates to giving an individual in civil cases the same rights as those in criminal cases concerning the choice of a legal representative. In criminal cases, people will be able to select their own representative, subject to regulations in clause 26, which may limit choice in the ways referred to in subsection (6). For example, the right may be restricted to choosing a representative from a prescribed area only, or of a prescribed description. Choice is currently limited to those who hold contracts with the Legal Services Commission. Representation in criminal proceedings will always require someone to represent an individual in court. Civil advice may not be related to court proceedings and a representative may not be required. It is right, therefore, for the Lord Chancellor to decide the most appropriate type of advice for the individual, and that the provisions on representatives in criminal proceedings should not apply.

Some low-level criminal cases receive telephone advice only via Criminal Defence Service Direct at the police station stage. Amendments 109 and 118 would add provision about the choice of provider in clause 15 and omit subsections (8) to (10) of clause 26. Those provisions in clause 26 relate specifically to an individual’s choice of provider of criminal legal aid or representation. Amendment 115 is a consequential amendment.

Our intention is that in criminal cases, as at the moment, an individual must select a provider with whom the Lord Chancellor has entered into a contract or other arrangements. The Government believe that it is important that only those providers that have been assessed as having the necessary capability to deliver legal aid services can be paid under the legal aid scheme. As currently under section 15 of the Access to Justice Act 1999, clause 26 enables particular restrictions to be placed on an individual’s ability to select a representative for representation for the purposes of criminal proceedings. One of those restrictions is dealt with in clause 26(8) to (10). It would allow the Lord Chancellor by regulation to require an individual to choose a new representative in prescribed circumstances. The current power to impose such a restriction is in section 15(5) and (6) of the 1999 Act. The circumstances in which an individual is required to choose a new representative for representation for the purposes of criminal proceedings are intended to be limited. The provisions are not intended to require a change of representative, unless there are sound policy reasons for doing so.

It might assist the Committee if I provide an example. In the past, the Criminal Defence Service (Very High Cost Cases) Regulations 2008 have required an individual to choose a new representative. The regulations became necessary when a very high cost case panel was set up by the LSC to provide representation in very high cost cases. If an individual’s representative was not a member of that panel, the individual was required to choose a representative who was a panel member.

For all those reasons, I invite hon. Members not to press their amendments.

Kate Green (Labour, Stretford and Urmston)

I listened with care to the Minister’s response, because I respect the argument that telephone advice and, potentially, a telephone gateway have an important place in the range of services offered. As the Minister went on, however, it was increasingly clear that the service will be insufficient to meet the needs of the most vulnerable and disadvantaged. Indeed, his remarks were complacent on ensuring that those needs will be adequately met. I accept that there are circumstances in which telephone access can work well, but it is wrong for the Bill to leave that as the only route to advice for those who are coming forward with cases in the four categories of law proposed.

I hope that the Minister will reassure us that calls will be fully recorded. We need to understand the nature of that recording: will it be a live recording, so that we can hear what the adviser and the caller said to each other, or will the records merely be on paper which, unless they are transcriptions, will inevitably contain an element of interpretation that could also be open to challenge?

I fear that several concerns about the telephone gateway remain on which the Minister has not been able to provide clear reassurance. I want to restate what we see as the importance of offering that choice, so that appropriate routes to justice can be provided for individuals on whatever category of law they want advice. I therefore intend to press amendment 86 to a Division, but not amendments 87 and 88.

Clause 2 - Arrangements

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 3, in clause 2, page 2, line 9, leave out ‘may’ and insert ‘must’.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this it will be convenient to discuss the following:

Amendment 70, in clause 2, page 2, line 20, at end insert—

‘(3A) Before making regulations relating to the payment of remuneration to barristers and solicitors in accordance with subsection (3) the Lord Chancellor shall consult the General Council of the Bar and the Law Society.

(3B) Where the Lord Chancellor makes regulations in accordance with subsection (3) he shall have regard to the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies.’.

Amendment 5, in clause 2, page 2, line 25, leave out subsection (5).

Andrew Slaughter (Labour, Hammersmith)

It is a pleasure to see you chairing the Committee again, Mr Sheridan, after the recess. I know from your comments at the beginning of the first sitting of debate that you favour brevity, and I shall be brief in discussing the amendments. We are informed—[ Interruption. ] Perhaps it is good that I did not hear that.

We have pointed out that we are concerned about quality, given the amount of money and resources being taken out of the legal aid system. It is therefore important to discuss amendments to the clause, which deals with standards. Briefly, it is more imperative than ever for the Lord Chancellor to set high standards, and we therefore think that there should be mandatory, rather than optional, provision, as set out in amendment 3.

Amendment 5 is a probing amendment. The provision could be read in two ways, and I hope that the Minister will clarify how it should be read. If the purpose of subsection (5) is to establish a level playing field, we have no problem with it; if it is to create a postcode lottery, we have many problems with it. There will clearly be difficulties when cuts of this order go through, and there will be different difficulties in different parts of the country.

The level of need and complexity of cases in urban areas and constituencies such as mine, is different, perhaps, from that in other parts of the country that are more monoglot, with less social need, fewer social problems and less mobility and diversity of population. However, I am well aware that there is equal concern among hon. Members who represent rural areas about the prospect that they might become advice deserts, where there is less provision, with long distances to travel, and where there is less specialism and expertise, and in some cases no service at all.

Perhaps the Government want, notwithstanding the Minister’s earlier complacent comments, to deal with each constituency or local authority area on the basis of what is required to ensure that there is a proper standard or degree of provision of advice services in an area, and we would support that. However, there is an ambiguity, which suggests that, as in other areas of Government policy, we may be moving towards local choice and a situation in which whoever has the most money and the loudest voice gets the best deal. That is something that we would not support. I shall say no more about that now, and if the Minister wants to respond on that point it would be a delight.

I do not want to pre-empt what my hon. Friend the Member for Makerfield will say on her slightly more interesting amendment, save to make one or two points. Fees are a thorny subject, and they have been caricatured somewhat unfairly in parts of the press, no doubt with encouragement from the Government and their press officers, as being about fat cat lawyers. Some of us know—some of us might not appreciate the point—that legal aid lawyers on the whole are not fat cats, and that when they and their representative associations speak, they do so on behalf of their clients and the people whom they represent. I met the new chair of the Criminal Bar Association yesterday, who tells me that the number of people in criminal legal aid pupillages—those seeking to do legal aid work—has gone down by about 50% over the past two years.

Robert Buckland (Conservative, South Swindon)

I am a registered pupil master—a trainee supervisor. The hon. Gentleman makes a proper point about the decline in criminal legal aid pupillages, but that has been going on for about five or six years, because of the progressive cuts to criminal legal aid that the previous Government initiated and revelled in, as evidenced by the shadow Justice Secretary’s remarks when the Lord Chancellor announced the Green Paper.

Andrew Slaughter (Labour, Hammersmith)

If that is the hon. Gentleman’s best point, I wonder what regard he would give to it if he were sitting and that point was made before him. If he is saying that the decline is because there were cuts right up until the end of the previous Administration—I accept that there were, and I will not shy away from the issue of fees—that draws more attention to the fact that there will be a further cut now.

The Government have characterised the hit that legal aid practitioners—both criminal and civil—are being asked to take as taking their fair share, by putting it alongside the public sector pay freeze and other cuts in that sector. Yet, the hon. Gentleman’s point is that they have had real terms cuts in relatively recent history and that now there will be additional ones. I therefore put the issue back to him; he can talk about the previous Administration as much as he wants, but let us deal with the proposals in the Bill.

Jonathan Djanogly (Conservative, Huntingdon)

Let me make the point that the cuts that this Administration are bringing in have not yet been implemented. Therefore, the hon. Gentleman’s original point about pupil masters not taking on pupils does not relate to cuts that this Government have brought in, but to cuts under the previous Administration.

Andrew Slaughter (Labour, Hammersmith)

I ask the Minister not to put words into my mouth. My point is that we take the situation as it is at the moment. The Government have said, I think—the Minister might or might not share this view—that they believe that some contraction in the legal profession is appropriate. At what point does that stop? At what point does it become necessary to look at the overall provision in that way?

Dave Watts (Labour, St Helens North)

Will the Government publish figures for the average salary for solicitors acting on legal aid, in both criminal and family law, and what their likely income will be once the latest cuts are implemented?

Andrew Slaughter (Labour, Hammersmith)

I hope that the Minister will supply those figures, and that we will deal with objective facts rather than with rumour and innuendo, which is, I feel, how the Government have conducted this, through the press. They are at liberty to do that, but it means that they will be taken considerably less seriously when they try to make their points. I hope that the Minister accepts that, and that he accepts that the legal profession wishes to have a coherent system with high standards. I hope that those issues are put before personal gain in many cases, and that the Government will also objectively want to see that.

As it has been explained to me, the recent consultation on fees was not a happy one. It was a brief consultation in August, and there was a large number of responses that the Government did not appear to take seriously, seeming to have just gone through the motions. As I have said, I do not want to trespass on what my hon. Friend the Member for Makerfield is going to say, but amendment 70 relates to consultation. It does not address absolute levels of fees, or what is right and wrong. It simply states that there should be proper consultation which should be written into the Bill, and that, where there is a clear opinion in the profession, due note should be taken.

It is necessary for there to be a sufficient supply of providers of sufficient quality to provide a sufficient level of service. It is necessary to have qualified providers and to ensure that we are not constantly levelling down because the levels of remuneration available attract only those who are qualified at a very early level. We are fortunate in this country that barristers and solicitors at all levels undertake publicly funded work. They may undertake it as a mix, but one can certainly not say, as one can say in other jurisdictions—whether they are prosecutors or defenders, in civil or criminal work—that one is getting a lower standard of service from publicly funded lawyers than one would get from privately funded lawyers, on the whole. That is something that we must preserve.

That safety net was provided by section 25 of the Access to Justice Act 1999, to which the right hon. Member for Dwyfor Meirionnydd referred, and is repealed by schedule 5 of the Bill. We will no longer have that, so it is more important than ever to ensure that standards are preserved. The amendments ask the Government to ensure that that happens. One way in which that will happen is to ensure that, in collaboration and in co-operation with the professions, fees are set at an appropriate level. That will ensure a consistent, high and universally available standard of legal representation, be it publicly funded or not.

Yvonne Fovargue (Labour, Makerfield)

Amendment 70 would mean that, before making changes to remuneration, the Lord Chancellor was obliged to discuss the changes with the Law Society and the General Council of the Bar. Most importantly, it would ensure that the regulations keep in mind the need to maintain a sufficient body of competent providers. Significant fee cuts, as my hon. Friend the Member for Hammersmith said, would create a climate in which legal aid work becomes the domain of the inexperienced legal professional, regardless of the complexity of the issues and the importance of the interests at stake.

All legal aid providers, both solicitors and not for profit, have a break-even point and a point where services break down. If fees for providers continue to be arbitrarily reduced, they could back out. There is already a shortage of legal aid providers in many areas, creating advice deserts that we have heard about from my hon. Friend the Member for Stretford and Urmston. They may opt to continue with less supervision, less experienced and qualified staff, and drive down costs further. Legal aid work has to be of a consistently high standard equivalent to privately funded work, or else we cannot guarantee equality of justice. It cannot be ensured by using less experienced staff if they are expected to carry out complex work beyond their experience and without adequate levels of supervision and training. People with complex cases, unusual cases and cases that require a knowledge of the past, case law and a breadth of experience could very well lose out.

The amendment simply adds a requirement that the Lord Chancellor consults prior to setting remuneration and listens to those representing the front line, has a conversation about the stability of the legal aid scheme and the fact that it will apply across the board based on the proposed fees, and then makes a decision in the full knowledge of the effect that that will have on the legal aid profession.

Jonathan Djanogly (Conservative, Huntingdon)

The amendments seek to convert the power of the Lord Chancellor, set out in subsection (1), into a duty to remove the Lord Chancellor’s powers to make different arrangements for different areas, cases and persons. The amendments also seek to include provisions in relation to the matters that the Lord Chancellor must take into account when setting remuneration rates. A statutory requirement would also be created to consult the Bar Council and the Law Society when setting remuneration rates. Amendment 3 is unnecessary, because clause 1 already places a clear duty on the Lord Chancellor to ensure that legal aid is made available in accordance with part 1 of the Bill. To fulfil that primary duty, it will be necessary—indeed, essential—for the Lord Chancellor to make appropriate arrangements. As a Minister of the Crown, the Lord Chancellor already has many of the powers that he needs to perform his functions under part 1—for example, to enter into contracts relating to his functions. Clause 2 complements the existing powers and will ensure that the Lord Chancellor may make any other arrangements that are appropriate for fulfilling the legal aid functions. That important measure of flexibility will ensure that the most appropriate arrangements can be put in place.

The current arrangements made by the Legal Services Commission are generally contracting arrangements that act as a licence to solicitors firms to carry out certain types of work. In addition, applications for funding in individual cases often cover advocacy services. Those arrangements are likely to continue under the new scheme, although it is important to retain the flexibility to adapt, given the wider regulatory changes currently being made to the legal services market.

I reiterate that amendment 3 is unnecessary, as clause 1 will ensure that the Lord Chancellor must secure the availability of legal aid in accordance with part 1, while clause 2 builds on that by giving the Lord Chancellor the power to make appropriate arrangements in carrying out that duty. An obligation on the Lord Chancellor to make such arrangements as he considers appropriate would add nothing to the primary duty.

Amendment 5 would remove subsection (5), which is designed to provide the Lord Chancellor with a degree of flexibility and replicates a similar provision in the Access to Justice Act 1999. I confirm to the hon. Member for Hammersmith that it is not an attempt at postcode lottery. Retaining that flexibility is important for several reasons. Its primary purpose is to allow the Lord Chancellor to conduct pilots of new arrangements, such as the current virtual court pilot that is being run, under the Access to Justice Act, for individuals arrested and taken to specific police stations in specific areas.

The clause may be used to deal with emergency situations—for example, where a police station is unexpectedly closed. Police station work is in part geographically bound under LSC contracts and the ability to divert additional resources to any police station, absorbing increasing volumes as a consequence of another closing, is therefore extremely important, as was seen in Hull following the devastating flooding in 2007. As similar provisions allowed at that time, the clause will allow the Lord Chancellor to put in place special arrangements when they are required in a particular area and to depart from the standard arrangements that would already have been made.

Should the provision be removed, the Lord Chancellor would lose that important flexibility and the opportunity to respond to changes in circumstances, practices and technology, which would be highly undesirable. It is difficult to amend primary legislation, but that would be the only option were a change in approach to be necessary and if the power in the clause were not available to the Lord Chancellor.

I am sure that hon. Members will agree that, when setting remuneration rates, the Lord Chancellor should properly have regard to all relevant considerations and that the Bill should not imply otherwise. Amendment 70, which would retain the duty to consult on remuneration orders with the Bar Council and the Law Society, is also unnecessary. We will continue to engage with them about remuneration matters whenever it is appropriate and constructive to do so, which is not precluded by the absence of a statutory duty. On that basis, the amendment is not needed.

I say to the hon. Member for Hammersmith that we understand that the professions want a coherent and solid structure to their legal aid fees. That is exactly why we have carried out a proper consultation rather than having the ongoing rounds of cuts that took place under the previous Administration, who carried out more than 30 consultations and failed in their criminal contracting proposals.

Several hon. Members referred to the issue of market sustainability. We made it clear in the consultation response that we will work in conjunction with the LSC to develop and to put in place a new and robust client and provider strategy that both reflects the demands and requirements of the new legal aid market and extracts the maximum value from ongoing structural developments in the legal market. We are confident that there will be sufficient providers willing to undertake legal aid work under the new strategy once the proposals have been implemented. Therefore, there is no need for a statutory requirement, such as there is in section 25(3) of the Access to Justice Act.

Dave Watts (Labour, St Helens North)

Will the Minister address the question that I put to my hon. Friend the Member for Hammersmith, our Front-Bench spokesman? I asked him whether the Government had carried out an assessment of the average earnings of a solicitor acting on legal aid, family and criminal law now, and an assessment of what the impact of the new rates will be.

Jonathan Djanogly (Conservative, Huntingdon)

The answer is yes—full public consultation on the Government’s fee reforms took place as part of the consultation paper, “Proposals for the Reform of Legal Aid in England and Wales”, which ran for three months. Everyone, including the representative bodies, had the opportunity to respond to that consultation and detailed comments on fee reforms were received and carefully considered. The recent consultation that the hon. Gentleman refers to was a technical statutory consultation relating to the draft order implementing the proposals and was not a consultation on the policy per se.

Dave Watts (Labour, St Helens North)

On that same point, can the Minister indicate the sorts of salaries that solicitors were earning before these changes and what they will earn in future, if he has those figures?

Jonathan Djanogly (Conservative, Huntingdon)

I do not have those figures to hand. They were in the consultation document. They are, of course, publicly available. If the hon. Gentleman wishes to have them given to him again, I am sure that the Department can provide him with that information.

Some hon. Members have referred to detailed aspects of the fee reforms that we set out in the consultation response. However, those reforms are not directly relevant to the provisions in the Bill. Recently, we introduced the necessary secondary legislation to implement the fee reforms under the existing legislative framework, which include the provision that this amendment seeks to replicate. The consultation response includes a detailed analysis of the issue of market sustainability and, as set out in the consultation response, the conclusion that we reached is that, on balance, the proposed fee reforms are likely to be sustainable. In addition, if there should be any short-term disruption in supply in some areas, mitigating measures are available to manage that disruption. Therefore, I urge hon. Members not to press their amendments.

Andrew Slaughter (Labour, Hammersmith)

I accept what the Minister says in relation to amendments 5 and 3; I do not accept what he says in relation to amendment 70. If my hon. Friend the Member for Makerfield is minded to do so, we will put that amendment to the vote. We would do so for the reason that there is clearly no meeting of minds between the Government and the profession. Relations between the two must be at an all-time low. Regarding the Minister’s assurances that he and the profession wish to see coherent and effective bodies for solicitors and barristers operating throughout the country, I take them with a great pinch of salt.

I note the comments of the current Attorney-General, which were made two years ago when the current Government were not in power. His view then—I think that it has been quoted quite well—was that, as far as those doing family and legal aid work were concerned, most of them were as poor as church mice, legal aid rates were plainly not commercial rates and the profit margins were minute. There seems to be some amnesia as far as the Government are concerned about the remarks that the current Attorney-General made at that time.

I ask my hon. Friend to put amendment 70 to the vote. However, I beg to ask leave to withdraw amendment 3.

Jonathan Djanogly (Conservative, Huntingdon)

I beg to move amendment 17, in clause 2, page 2, line 22, after ‘court’ insert ‘, tribunal’.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this it will be convenient to discuss Government amendments 18, 20, 21, 25 to 27, 30, 33, 46, 56 and 57.

Jonathan Djanogly (Conservative, Huntingdon)

Despite their number, these are purely technical amendments to ensure that the Bill makes consistent reference to a court, tribunal or other person throughout part 1.

Clause 3 - Standards of service

Yvonne Fovargue (Labour, Makerfield)

I beg to move amendment 64, in clause 3, page 2, line 31, at beginning insert—

‘(A1) In carrying out the Lord Chancellor’s functions under this Part, the Lord Chancellor must have regard to the need to ensure that legally aided advice and representation is of comparable quality to non-legally aided advice and representation.’.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this it will be convenient to discuss the following: amendment 65, in clause 3, page 2, line 31, leave out ‘may’ and insert ‘must’.

Amendment 71, in clause 3, page 2, line 33, leave out ‘may’ and insert ‘must’.

Amendment 6, in clause 3, page 2, line 42, after ‘may’, insert ‘not’.

Amendment 67, in clause 3, page 3, line 3, leave out subsection (5) and insert—

‘(5) The Lord Chancellor in setting and monitoring standards under this Part must have regard to the financial and administrative burden placed on the legal profession.

(6) The Lord Chancellor in setting and monitoring standards under this Part must have regard to the long-term sustainability of the legal profession and the need adequately to train and supervise new entrants to the profession.’.

Yvonne Fovargue (Labour, Makerfield)

Amendment 64 would ensure that the Lord Chancellor takes account of the comparative quality of advice and representation and ensures equality between legally aided clients and those with the funds to afford private advice. Currently, that is done through membership of one of the Law Society’s accreditation schemes, which certify providers’ expertise. Each area has different accreditations, and the further restriction of tolerances after close examination of equality demonstrates the complexity of each subject and the fact that professionals concentrating on and working within that area provide a better standard of service to their clients.

Accreditation is important, but the monitoring of standards and quality assurance throughout the life of the contract are equally important. The specialist quality mark is much prized and not easy to gain; it takes a lot of work and demonstrates a wide range of managerial and subject-based knowledge. However, having worked within the system, I think that peer review demonstrates quality and provides a great basis for improvement. By sending off cases to an experienced adviser and getting back comments a few months later, advisers can discuss where they disagree or agree and what they could improve. It is expensive, but it is vital that the quality of legally aided work is not allowed to slip and that a two-tier legal system is not created that allows those who can pay a higher standard of service. What will replace the current accreditation, awarding of contracts and monitoring? Will there be a new system? How will it be developed, and who will pay for it?

Amendment 65 is a simple amendment to change “may” to “must” to reinforce the Lord Chancellor’s duty to monitor service standards. I will not rehash the arguments, but I stress that the standard and quality of service to legally aided clients must be continually kept as high as that of service to self-funded clients. Legally aided clients have the least financial resources and often the most complex problems. If we let their standards slip, we fail them. “May” is not enough. This is an absolutely crucial duty of the Lord Chancellor that needs to be enshrined in law.

Amendment 71 would reinforce the mandatory nature of the Lord Chancellor’s duty to make sure that providers are vetted and competent before being allowed to do legal aid work. I can remember a time when there were no standards for legal aid work and people could just apply for it. We had a lot more complaints at Citizens Advice at that time than we have had since a quality mark was established.

I would like to discuss amendment 67, which, again, is about the quality of work. Standards are important and must be monitored, but having worked with the Legal Services Commission, I have to say that it is now noticeable that the cost of monitoring is slipping from the purchaser—the Legal Services Commission—to the provider. Together with the cuts in the fees, that is putting an incredible burden on providers. When I managed the contract, even before the 10% proposed cut in fees, there were discussions regarding the cost-benefit analysis to the rest of my service, because approximately 60% of management time was spent monitoring 30% of the income stream. That detracted from my ability to go out and get more funding for the service. If the burden is increased by insisting that providers pay for accreditation and monitoring in addition to managing, it may well tip the balance.

Another issue relates to joint working with agencies that already monitor standards of information. I remember when I had three audits in a week that all looked at the same management systems and placed a totally unnecessary burden on my organisation. I would have happily looked at quality of work as often as required, but having three people, all of whom work with and talk to each other on Citizens Advice and the Legal Services Commission, looking at the same accounts and financial planning information is surely not the way to run a service. The cost of the administration of the LSC appears to have gone up and up. The goalposts have continually changed and providers have always felt as if they were being kicked down the line. There must be regard to the monitoring given to sustainability and the ability to bring through new entrants to the profession.

Supervisors should not be so overloaded with bureaucratic requirements that they have no time to mentor and train new and inexperienced staff. Sometimes, it was felt that we were monitoring for monitoring sake and left wondering what was happening. As I say, quality should not be compromised and peer review was extremely important. However, some of the best and most dedicated lawyers and advisers in the country work with legally aided clients, and any scheme put in place must not deter those people from continuing to work in the sector.

Andrew Slaughter (Labour, Hammersmith)

I will be brief. I shall just speak to the amendments in my name because I have made the comments that I wish to make in relation to a two-tier legal system, and my hon. Friend the Member for Makerfield has said everything that needs to be said on her amendments. On her point about accreditation and its costs, I would like to add that this is yet another way of bearing down on the already very tight margins that exist on legal aid providers. The measure comes in addition to fee reductions, the reductions in scope and the other squeezes on the budget as a result of cuts from other sources of funding. It is effectively the fourth nail in the coffin. As my hon. Friend says correctly, there is an increasing trend to put the burden on providers.

Accreditation in the legal profession has moved on in an extraordinary fashion in the past 20 years, which is not to say that there were not always high standards. There was not an effective system of accreditation, yet we now have quality marks and peer reviews. Those continuing methods of professional development are taken very seriously by the profession. I can remember trying to qualify for the Bar mark and the effort that was put in to ensure that that happened. What were once regarded as rather fusty professions are now leading the field in their ability to interact with their consumers. That must be right, but it cannot be right that an increasing number of additional burdens should be put on those providers that are trading at the margins. We would simply insert the word “not” with amendment 6, so that the Lord Chancellor could not impose accreditation charges.

Jonathan Djanogly (Conservative, Huntingdon)

All the amendments relate to the standards of service of legal aid under part 1. Amendments 6 and 67 seek to prevent the imposition of charges in relation to the accreditation and monitoring of services by the accredited. Amendments 65 and 71 seek to put a duty on the Lord Chancellor or persons authorised by him to set and monitor standards of service. Amendment 64 seeks to require the Lord Chancellor, when exercising his legal aid functions, to have regard to the need to ensure that legal aid services are of a comparable quality to non-legal aid services. Amendment 67 seeks to place a further duty on the Lord Chancellor to consider the financial and administrative burden placed on the legal profession, the long-term sustainability of the legal profession and the need to train and supervise new entrants to the profession before setting standards of accreditation and monitoring.

I shall deal first with amendments 64, 65, 67 and 71, which seek to impose various duties on the Lord Chancellor in relation to standards of service. Under clause 3, the Lord Chancellor will be given the power to ensure the quality of services delivered under the legal aid scheme by making provision on the accreditation and monitoring of standards. The provision will enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be made by the Lord Chancellor or those authorised by him to do so. Such powers are similar those currently given to the Legal Services Commission in relation to the criminal defence service and community legal service.

The LSC’s existing quality assurance standard is, of course, the specialist quality mark. That standard ensures that organisations that hold a contract with the commission are well managed, provide good client care and have systems in place to ensure the delivery of good quality advice. However, the commission also accepts the Law Society’s Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. It is important that we retain the flexibility to adopt those professional standards alongside our own. That reflects the Government’s commitment to reducing unnecessary administrative and financial burdens on the legal profession when appropriate.

Creating a duty to establish and monitor those standards is neither proportionate nor necessary. It could result in a system that is too onerous and potentially costly for the providers of legal aid. Amendment 64 is therefore unnecessary, as it seeks to include a requirement that does not exist in the Access to Justice Act 1999. Under the solicitors code of conduct 2007, solicitors are required to provide a good standard of service to their clients. That applies whether or not they are legally aided; legally aided clients must not be in a better or worse position than privately paying clients. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for clients. Its successor will have the same job.

Currently, all legal aid providers must meet the specialist quality mark or the Lexcel standard. Those standards must be held prior to the award of contract and throughout the lifetime of the contract. That compares favourably with the privately funded market, where such standards are not mandatory. Providers must meet accreditation standards when set. Once a provider holds a contract, its quality of work is checked through peer review. The provider must also meet a number of key performance indicators, which include criteria such as beneficial outcomes for clients and the cost of work not falling significantly below the fixed or graduated fee. That is all done under the existing arrangements, which ensure high-quality advice. To answer the hon. Member for Makerfield, we see no reason to bring in anything new; we will review the administrative burden of the current standards.

I turn to amendment 67. A balance needs to be struck between reducing bureaucracy and ensuring that providers meet the required standards of service. That is an important safeguard for clients and the taxpayer. A specific requirement to have regard to the financial and administrative burdens on providers is unnecessary. It could imply that the interests of providers should have precedence over those of clients and the taxpayer. As for the second part of amendment 67, we are struggling to see how the Lord Chancellor’s accreditation and monitoring standards directly affect the sustainability of the legal profession, and we know that that specific issue arises for discussion in respect of other amendments. Training and supervision of new entrants to the legal profession is a matter not for the legal aid system, but for the profession itself.

Turning to amendment 6, the provisions under the clause will enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for the accreditation and monitoring of persons providing services. Historically, the LSC has authorised certain organisations to carry out the accreditation and ongoing monitoring of those standards, with groups such as Citizens Advice and Shelter having provided such services in the past. That has previously proven a sensible and practical solution to what is a large-scale exercise, given the extensive number of legal aid providers, and the use of such alternatives in future is considered attractive.

As the hon. Members for Makerfield and for Hammersmith said, significant resource implications are attached to the running of such schemes. The provisions would allow an accreditation body to meet its costs in carrying out the accreditation and monitoring functions. We believe that to be entirely appropriate if it is to commit resource to such a function, and it reflects the current statutory provisions under the Access to Justice Act. The same considerations arise when the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring, and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of the accreditation and monitoring of the services that they provide.

In conclusion, the provisions on the charges for monitoring and accreditation are legally appropriate and reflect the current statutory position. I therefore urge the hon. Lady to withdraw the amendment.

Yvonne Fovargue (Labour, Makerfield)

I thank the Minister for his response, but I take issue with the point that the cost of accreditation has no bearing on the viability of providers. It is one of the aspects that providers, particularly not-for-profit providers, take into account when looking at whether the contract is reaching its break point rather than its break-even point. However, I beg to ask leave to withdraw the amendment.

Clause 4 - Director of Legal Aid Casework

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 8, in clause 4, page 3, line 9, at end insert—

‘(2) This position will be subject to a pre-appointment hearing by a select committee of the House of Commons.’.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this it will be convenient to discuss the following:

Amendment 72, in clause 4, page 3, line 12, at end insert—

‘(2A) The Lord Chancellor shall ensure that the Director, or those providing assistance to the Director in the performance of his functions under this Part, have experience in or knowledge of—

(a) the provision of criminal and civil legal services which can be funded under this Part,

(b) the work of the courts,

(c) social conditions, and

(d) management.

(2B) Every person who exercises any function in relation to the performance of the Director’s functions under this Part shall have regard to the desirability of exercising it so as to—

(a) promote access to justice and equality of arms,

(b) promote improvements in the range and quality of civil and criminal services provided in accordance with this Part and in the ways in which they are made accessible to those who need them, and

(c) ensure that the services provided in relation to any matter are appropriate having regard to its nature and importance.’.

Amendment 68, in clause 4, page 3, line 17, at end insert—

‘(c) make decisions independently of Government, and

(d) make all decisions in accordance with the interests of justice.’.

Amendment 9, in clause 4, page 3, line 19, at end insert

‘except in such cases where the Lord Chancellor considers that a decision in relation to the denial of legal aid by the Director would result in the denial of access of justice.’.

Amendment 10, in clause 4, page 3, line 20, leave out subsections (5) and (6) and insert—

‘(5) A decision of the Director on eligibility for legal aid may be appealed to the Legal Aid Tribunal which shall—

(a) consist of the chairperson and other members appointed under the subsection below;

(b) act independently when performing any functions or duties.

(6) The functions of the Tribunal are to—

(a) consider applications for review of decisions of the Director on eligibility;

(b) conduct and determine reviews of decisions of the Director on eligibility.

(7) The Lord Chancellor must—

(a) appoint members of the Tribunal of sufficient number to deal promptly with all reviews and who between them have experience in a range of legal areas and types of proceedings; and

(b) appoint one of the members as the chairperson of the Tribunal.

(8) The primary function of the chairperson is to ensure that the Tribunal performs its functions in accordance with this Act in an efficient and effective manner.’.

Andrew Slaughter (Labour, Hammersmith)

This is an important departure. I wish to make it clear that we are not opposing the abolition of the Legal Services Commission. If we were, the amendment would ensure that what replaced it worked in a fully independent and transparent way. The first part of such a process relates to appointment. Amendment 8 speaks for itself and I shall be interested to hear what the Minister has to say about it, but there can be little objection to it, given the increasing trend towards pre-appointment hearings, and the strengthened role of Select Committees that all parties in the House wish to see. The post of director should be subject to that sort of review.

I will not say much about amendments 72 and 68 other than that the Minister might say that of course civil servants will be competent, pay regard to fundamental principles of such measures and act in the interests of justice. All civil servants would hold that as their sine qua non, but it is worth our adding such provisions to the Bill because significant changes will be made, principally under the Public Bodies Bill, but that is also a reflection of the trend to internalise and return to within the ordinary civil service functions that have been independent or semi-independent.

I make a comparison with a contentious body in the Public Bodies Bill, the Youth Justice Board, with which the Minister will be familiar. There are considerable concerns that when the Youth Justice Board is returned to within the Ministry of Justice, the uniqueness that its independence gives, its dedication to its specific remit for young people before and after they enter the criminal justice system, the expertise that it has built up and its ability to attract staff will be dissipated, and that over time it will be absorbed and simply become another part of the empire that is the Ministry of Justice. By analogy, the same could be said about the demise of the LSC. My hon. Friend the Member for Makerfield may want to say more about that.

Amendment 9 is simply an additional provision, a one-way valve allowing a review by the Lord Chancellor. Obviously, we are concerned that the functions of the director should remain independent of the Lord Chancellor, but it seems to us that that would not be affected by allowing the Lord Chancellor to extend the remit when he believes that circumstances permit it. The amendment would be an additional mechanism to allow the grant, not refusal, of legal aid in individual cases, and it speaks for itself.

I will spend a little more time on amendment 10, the most important in the group. It seems to us to provide something that is lacking—independent review of the director’s decisions. We debated the issue before the summer recess, when we looked to other common law jurisdictions for guidance on how we should conduct ourselves here. Our proposals are modelled on the New Zealand Legal Services Act 2011, which made a change similar to the one that the Government propose, and indeed that we would have proposed but with the important caveat that it provides for appeal against the director’s decision.

To explain how the New Zealand system works, there is appeal from the director of legal aid casework to an independent tribunal. It arose because following a review of the legal aid system in New Zealand, it was decided in the interests of efficiency and effective policy communication that the Ministry of Justice there should take over the responsibilities of the Legal Services Agency—it mirrors almost exactly the process here—but that the independence of decision making should be maintained through the investiture of a statutory officer with the power to act independently of the Minister. The need to maintain the function of the legal aid review panel, as it was then called, was taken as given, and there was no question but that there would be some form of appeal against decisions that were manifestly unreasonable or wrong in law.

The reason why the New Zealand agency was brought in house was primarily, again, increased expenditure. Also—I make no comment on this, other than stating the fact—the relationship between the New Zealand Law Society and the agency was poor, and it was believed that the legal aid services provided were of variable quality. In any event, it was decided that the powers should be vested in a statutory officer, but also that the review panel should be maintained and moved into what was the tribunals division of the Ministry of Justice.

In our opinion, because of the important policy role played by legal aid, it is appropriate, as it was in New Zealand, for legal aid to be close to the Ministry. It is also important that the Government have a role in determining the level of legal services they can afford, but the safeguard must be that it is not just a fact, but clearly a fact, that decisions on individual access are free from political interference. That is the role with which the director is charged. The question is, what happens in cases when the director may fall into error? The answer is that the statutory officer model was approved in the New Zealand case. Interestingly enough, significant savings were not thought to accrue—it is too early to say whether they will; nevertheless, on policy grounds the matter was proceeded with, although at that point there was a reconstitution of the existing review mechanism.

As I said, the grounds for review are fairly narrow: applicants may apply for review when they think that the decisions of the statutory officer are manifestly unreasonable or wrong in law. However, that review could apply to decisions on applications, conditions on grants, amounts repayable to the provider, the maximum grant, withdrawal of or amendment to a grant, enforcement conditions and charges on property—a fairly wide range of issues, albeit on narrow terms. The tribunal sits in the tribunals division of the New Zealand Ministry of Justice for its independence and although the members are appointed by the Ministry, a non-lawyer always chairs it.

Given the limited range of grounds for appeal, asking for such a mechanism seems entirely appropriate and reasonable. If the Minister wishes to dwell on the matter and return to it at a later date, so be it, but we feel strongly that the need for independence following the abolition of the LSC is of paramount importance. We will return to the subject when we reach clause 12, even if not today, but if we are to continue to be seen as behaving fairly and impartially in the grant of legal aid, it is essential that there is some check on or review of the powers of an officer who is within the Ministry of Justice and who reports to the Lord Chancellor.

Yvonne Fovargue (Labour, Makerfield)

As my hon. Friend said, both amendments are really about the independence of the new body. The Bill requires the Lord Chancellor to appoint a member of the civil service to the statutory post of director of legal aid casework. That is a major change, placing a Government official in charge of deciding who should or should not receive legal representation and of making decisions on individual cases. The decisions will be made by the director or the delegated official, and amendment 72 seeks to place an obligation on the civil servants who work in legal aid to understand fully not only the provision of services and the work of the courts but the social conditions in which problems might arise. They must also understand how the providers manage their services. The decisions made by the director will have a huge impact on the life of individuals and on their ability to deal with issues; the officials need to take a fully rounded view and, equally, must not look from a Government perspective but stand outside that, as their first duty should be to promote access to justice and equality of arms.

There will be a huge number of cases, and it would be irresponsible to deal with them in isolation. I am reminded of the old citizens advice bureaux aims—I am afraid that I am a traditionalist and can only remember the old ones—which include exercising responsible influence on the development of social policy. People who see a large number of cases have a responsibility to say where things are going wrong and to suggest and promote improvements. In the range of civil and criminal services, a vast amount of cases will be seen, and that is key to seeing where services are being provided well or accessibly; services have to be made accessible to those who need them. Providers will demonstrate a range of innovative and good practice, which should be promoted, similar to a Legal Services Commission scheme I think called PIP—the positive improvement programme. Innovative schemes were trialled as a pilot and then throughout the country as an example of good practice on how to reach people in secure units or prisons.

There has also been a concern about how services are provided and their appropriateness to various groups of issues, particularly the introduction of the telephone gateway. Putting that duty on the civil service would ensure that the services provided are appropriate, given the nature and importance of the issues. Basically, that duty would ensure a well-trained, competent cadre of civil servants who pay regard to the fundamental principles of the law and to the needs of the legal aid profession and its clients.

Amendment 68 emphasises the independence of the civil servants who work on legal aid, as placing a Government official is, as I have said, a major change. Respondents have raised some concerns to the Committee. For example, the Law Society has raised the concern that many of the cases in which the individual will decide whether to award legal aid will be cases against the Government. The amendment clearly sets out that all decisions would be based on the interests of justice, and not on arbitrary considerations of the public purse or even on the effect on the Government. Without public confidence in the idea that justice can be administered fairly and without bias, a lack of respect for the law would begin to creep in and our justice system would start to be undermined.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I shall briefly discuss amendment 8, which suggests that any person appointed to the directorate should be subject to a pre-appointment hearing by a Select Committee of the House of Commons, which would be a useful step forward. I am a member of the Select Committee on Justice, as is my friend Mr Buckland. We have dealt with several appointment hearings recently, and it would be eminently reasonable to request the appointment to be subject to a pre-appointment hearing. I will say no more, other than it is an extremely important, core function within the workings of the Justice Committee and the Ministry of Justice. The post, if any, is worthy of a pre-appointment hearing.

On amendment 72, I have some misgivings about appointing a civil servant to that job without advertising externally. Through the amendment, we want to ensure that the person has experience of criminal and civil legal services, of the work of the courts, of social conditions and management, and crucially, of the all-important principle of the equality of arms. I am not here to denigrate the civil service, because it does a fine job and should often be applauded for its work. To my way of thinking, however, we have a Bill that is driven more by cost-cutting than by anything else. In some instances, the cuts have not been thought through, and we will live to rue this day and the next couple of weeks when the fallout begins to appear. I say that most sincerely. I am not here to oppose for opposition’s sake, but I have been here long enough to see when mistakes are being made due to the need to cut costs at all costs. That did not sound eloquent, but I am sure that members of the Committee know what I mean. There would be a temptation—I put it no higher than that—on the senior civil servant appointed to the post to look at the cost of granting legal aid rather than at the fairness and equality in so doing. I leave the matter there, but the point is valid.

On amendment 10, which the hon. Member for Hammersmith eloquently discussed, I am regrettably of the vintage who can remember the days when legal aid was given by a local director. For example, the local director for north and mid-Wales and Shropshire headed the Legal Aid Board under the Law Society in an office in Chester. If an application were refused, the solicitor concerned would apply to the director asking him to review the decision. The director would then place the matter before a panel of legal aid lawyers, of which I was one. It was not rubber-stamping to help out our mates, because I remember most of the requests being turned down, although several were not for very good reasons. The process was not costly—I was given my travelling expenses from Bala to Shrewsbury twice a month. It did not take up a great deal of time, because it involved two afternoons a month. If there were a large panel to draw from, it would be easy to do. I commend that system to the Committee.

I see that the Ministers are not of my vintage, which they will be pleased about, but I ask them to examine how that procedure worked, in case there is something to be learned and in case it could be done expeditiously and cheaply. In those days, the procedure was always fair, and I do not recall anyone feeling that they were hard done by by such a decision. The cases were carefully looked into and granted or not, depending on the case. Many were not granted, but many were. If it is a question of law, that is a different thing altogether. Those decisions were often based on the facts and on the importance of the matter to the individual.

I digress for one slight minute, but I remember a solicitor from Wrexham writing in on behalf of his client, who was in prison in Liverpool. His complaint was that he wanted to sue the governor, because when the tea came round there was sugar in it already. I was looking at the papers before going to the committee and I realised that the individual had been released a month before. That application still came before us and we asked the solicitor concerned, “Why are you concerned? This man is on the outside now.” He said, “Oh no. No doubt he will be back in before long.” The Committee will not be surprised to learn that that application was turned down, with good reason.

The serious point is that a procedure was available. I am sure that the legal profession would be prepared to roll up its sleeves and make the procedure work as it did then. It would not be costly and it would be expeditious. I commend it, and I hope that the Minister will consider it in due course.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

Before I call the Minister, I gently remind hon. and right hon. Members that we make reference to colleagues by constituency and not by name.

Jonathan Djanogly (Conservative, Huntingdon)

The proposed amendments to clause 4 have a range of effects. Amendment 8 would make the appointment of the director of legal aid casework subject to the approval of a Select Committee of the House of Commons as well as by designation by the Lord Chancellor. Our position is that the amendment is unnecessary. Clause 4 provides that the Lord Chancellor must designate a civil servant as the director. Civil servants are subject to a fair and open recruitment process. The creation of a statutory office holder ensures independence in making funding decisions, free from any political interference. The director is a separate office from the Lord Chancellor, created by statute.

Amendment 9 would provide the Lord Chancellor with a new power in relation to the decision making of the director of legal aid casework, permitting the Lord Chancellor to give directions or guidance in relation to an individual case

“where the denial of legal aid by the Director would result in the denial of access of justice.”

I agree with the hon. Members for Hammersmith and for Makerfield that the question of the director’s independence is important. The amendment, unfortunately, would make serious inroads into the director’s independence. The protection of the director against interference in individual cases is an important safeguard.

The protection of the independence of decision making is a fundamental tenet of the new arrangements, which recognises the structural changes to legal aid embodied in the Bill and the requisite safeguards that are required to make these new structural arrangements work. Any power to interfere with the decision making of the director, however ostensibly benevolent that power may be, remains highly unattractive in achieving the necessary protections that the Bill must provide to give confidence in the new arrangements. That provision also reflects what is currently in the Access to Justice Act 1999. The Lord Chancellor cannot give the Legal Services Commission directions in relation to individual cases.

I have already acknowledged the vital importance of protecting fundamental rights of access to justice. That has been central in developing our proposals for reform, including the role of the director. The director has an important role to play in the reforms that we have put forward to establish an affordable system, while still ensuring that no one is denied their fundamental rights of access to justice. The director must make decisions in accordance with the protections afforded by the Bill. The right hon. Member for Dwyfor Meirionnydd spoke about the old way of awarding legal aid. It was certainly interesting to hear, and he had a great anecdote. I am not entirely sure whether the modern LSC accounting requirements would tie in with the old way of looking at legal aid, but it is something that we can consider.

Amendment 10 seeks to remove the Lord Chancellor’s duty to publish guidance or directions given to the director concerning the carrying out of the director’s functions. It would remove the Lord Chancellor’s power to vary or withdraw guidance or directions at any time. In place of the provisions, the amendment seeks to establish an independent tribunal to hear appeals against eligibility decisions made by the director. The amendment is unnecessary. The Bill already establishes the director in a way that maintains and protects the director’s independence of decision making. The director is created by statute. The Lord Chancellor cannot give directions or guidance to the director about individual cases.

There is also already provision in the Bill for a review of the director’s decisions and appeals against the director’s decisions. This means there is no need for an amendment to create a separate tribunal. Clause 11(5) requires that the regulations must make provision for procedures for the review of the determinations director under clauses 8 and 9 as to whether a person qualifies for civil legal aid and the withdrawal of such determinations. There is also power in clause 11(6) to make provision for appeals to a court, tribunal or other person against the making or withdrawal of a determination in relation to civil legal aid. There are currently review arrangements under the Access to Justice Act 1999, and it is our intention to continue with the current arrangements, including the use of independent funding adjudicators, rather than moving to another model, such as that of New Zealand, as suggested by the hon. Member for Hammersmith.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

The Minister has mentioned clause 11(6). In the event of permission being given for an appeal to a court or tribunal against the determination, would that appeal be legally aided?

Jonathan Djanogly (Conservative, Huntingdon)

That would depend on the circumstances, but I will come back to the right hon. Gentleman in detail.

This is more than adequate provision to ensure that scrutiny can be applied to the decisions of the director where an individual believes that there are grounds for review. Ultimately, it will be possible to seek to judicially review decisions. There is also provision for making regulations about the review of, and appeals against, the director’s determination on criminal legal aid. I refer Committee members to clauses 14(9), 17(4)(i), 17(6) and 18(4).

The proposed amendment to remove the current duty in relation to the publication of guidance and directions would remove one of the key provisions ensuring transparency in the new arrangements. As a result of having a duty to publish any guidance or directions given, those applying for legal aid have a clear framework against which to assess the director’s decision in relation to their application, and, if an individual believes the decision to be inconsistent with any guidance or directions given, has a clear basis for challenge under the review procedures that I have mentioned. This transparency provides certainty and clarity to would-be legally aided clients and to firms of solicitors making applications on their behalf.

The proposal to remove the Lord Chancellor’s power to vary or withdraw guidance or directions is therefore unhelpful. These provisions allow the Lord Chancellor to respond to changes in circumstances, such as changes in legislation and changes in response to case law, both domestic and European. This important flexibility is key. The Lord Chancellor must have the power to be able to amend or withdraw any directions or guidance issued in order to be able to reflect any wider changes that may influence the operation of the legal aid system.

Amendment 68 requires that the director make decisions independently of Government, and that these decisions are taken in accordance with the interests of justice. In relation to criminal cases, the Bill requires the director to make decisions in accordance with what is required by the interests of justice. In relation to civil cases, the director will make his decision in accordance with the criteria set out in regulations made under clause 10. In making those regulations, the Lord Chancellor must have regard to matters such as the importance to the individual of the matters concerned, the nature and seriousness of those matters and the public interest. Amendment 68 is accordingly unnecessary.

Amendment 72 is also unnecessary. The Lord Chancellor will take account of such factors as are appropriate when deciding which civil servant to designate as a director and there is no need for the Bill to make such specific provisions. I therefore ask hon. Members to withdraw their amendment.

Andrew Slaughter (Labour, Hammersmith)

The Minister has persuaded me on amendment 9. It is not one of our best, so I will not pursue it. Quid pro quo, I ask him to look again at amendments 8 and 10. They are an inexpensive and relatively straightforward way of ensuring the independence and the scrutiny of what is a new and highly responsible post to which will attach the suspicion, at least in the early days, that it is less independent and more prone to political influence than the current set-up. It is the one serious reservation that we have—I do not think that we are alone in having it—in relation to the abolition of the LSC.

I believe—the right hon. Member for Dwyfor Meirionnydd can put it more eloquently than me—that the Select Committees are there to perform a variety of functions, one of which is the pre-appointment hearing. Nothing the Minister has said has persuaded me that this is a post that is not suitable for that; it seems eminently suitable for that. I am not going to push the matter to a vote, but I hope that the Minister will consider it. It is a straightforward matter that is inexpensive and simple. It would be an important signal as well as, hopefully, an important actuality. There are several Select Committee members on this Public Bill Committee and although I am not going to push this matter to a vote, I suspect that they agree with me.

I am disappointed with what the Minister said in relation to amendment 10 and I would like to put it to a vote. We have heard about the previous system and how it worked in a common sense way, as many parts of the legal system do. We rely on the independence and good will of many people in the legal system, from the lay magistrates to the practitioners themselves, to ensure that the wheels are oiled and that, for a very good price, the public gets something of very high quality. All we are saying is that there needs to be some formal check. If the tribunal never sits because there are no appeals to it, I am sure that I will be the first person to say that it was unnecessary. I am sure that the Government will vote against it now, but I ask the Minister to go away and think about it again. We must have assurance and certainty that under the new regime that the measure brings in, particularly given the concerns that we all have about clause 12, the decisions that are to be made by the director will be fully independent of Government and the proposal seems the simplest and most elegant way of achieving that.

Yvonne Fovargue (Labour, Makerfield)

I thank the Minister for his response, but I feel that the director’s role in promoting improvements to the system has not been addressed. As my hon. Friend says, the issue of independence has not been sufficiently addressed, but I do not wish to push my amendments to a vote.

Andrew Slaughter (Labour, Hammersmith)

I beg to ask leave to withdraw the amendment.

Clause 7 - Civil legal services

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 13, in clause 7, page 5, line 20, leave out from ‘form’ to ‘resolution’ in line 22 and insert—

‘of representation. They may also include additional services such as mediation and other forms of dispute resolution.’.

However disappointing and inadequate we found clauses 1 to 4, it is clearly necessary to have some form of delegation or authorisation arising from them. I do not have a lot to say on clause 7, save that amendment 13 should be regarded as an amendment that needs to be flagged up at this stage, although we may well return to the issue of mediation subsequently.

I think that I made clear in the discussion about clause 1 before the summer recess the importance that we give to the role of mediation, the importance of extending the role of mediation and the importance of the additional funds that the Government are putting into mediation. We have no problem or issue with that.

It is the relationship between mediation and litigation that we have some difficulty with, and that mediators too have some difficulty with. The purpose of amendment 13 is to put that in the Bill, so that it is clear that legal representation is essential in some cases and mediation is only an alternative to it, which does not substitute for the determination of an applicant’s right in a courtroom and is not to be used instead of representation because it is not what the applicant wishes. That is the effect. As I say, mediation is a powerful tool, but it is underpinned by the rule of law and in the end it can only be enforced through litigation. We are all too aware of what might happen if mitigation fails, if there is no settlement or if there is inequality of arms.

In an earlier debate this morning, I quoted from the research paper on litigants in person that the Ministry of Justice published earlier in the summer. I shall read a paragraph from that paper that is relevant to the amendment:

“Parties in mixed representation cases (where one party was represented and the other was not) were more likely, than cases where both or neither parties were represented, to report feeling unprepared to mediate, and concerns and fears about mediation.”

Mediation is not a panacea. It does not create a level playing field. On the contrary, the ability of a represented party is important. Particularly in family disputes, it is often the case that the man is the represented party and the unrepresented party is the woman.

I shall also read briefly from an article written by a mediator. As I have said, mediators have some of the strongest concerns about the Government’s policy, and if I read one or two sentences from the article it will become clear why:

“it is not mediators who overclaim for their process, it is the Government’s apparent faith in it.”

The current situation is

“jeopardised, simply because mediation will be ‘chosen’ under pressure–ie not a ‘choice’, at all…we will find ourselves up against people who will put in insufficient effort themselves, and wish to ‘test the mediator’…clients will be feeling compelled to use our services rather than choosing them positively as an interesting, collaborative option.”

The article concludes that

“it would be ironic if the downsides of the policy under consideration may simply make it significantly harder for mediation to be successful, if implemented as announced.”

The Minister is a bit like a stuck record on this: the Government are determined to force people into mediation, and determined not to offer an alternative. In the interview from which I have quoted, given by the current Attorney-General when he was in the shadow role two years ago, he said:

“As for mediation more generally, it can be very useful, but it shouldn’t be transformed into a system that effectively discourages people from getting access to the courts.”

In my submission, that is exactly what the Government are doing. They are using mediation as a way of preventing access to the courts, which is not appropriate. Not only is it not appropriate in itself, but it is not appropriate in ensuring good, effective mediation.

I do not expect to get anything other than a dusty answer, but it is important to put on record that this is a serious and significant change in how dispute resolution is conducted in this country. It takes advantage of the fact that there is a general willingness, which has existed since the Woolf reforms and for many years before that, to see the expansion of different forms of dispute resolution that do not involve the formality, cost and processes of going to court and possibly to trial. That is all well and good, but it is a serious error of judgment to make the leap of faith to saying that in many cases, particularly in family disputes, mediation is the only option available to parties.

As I have said, the change is being made purely as a cost-saving measure. If it were not for the wish to save costs and court time, it would not have been proposed. In the end, not only will it be unhelpful in itself, but it will result in more dissatisfied clients and more playing of the system by those who abuse mediation and who will not have the rigour of the court process to bring them to heel. It will stir up many, many problems for the future.

Jonathan Djanogly (Conservative, Huntingdon)

Clause 7 sets out what we mean by legal services for the purposes of civil legal aid. Subsection (2) states that these services

“include, in particular, advice and assistance in the form of…representation, and…mediation and other forms of dispute resolution.”

Although amendment 13 suggests that advice and assistance would primarily be in the form of representation, it would not substantially change the effect of clause 7, so it is unnecessary. I welcome the apparent recognition by the hon. Member for Hammersmith that mediation can hold considerable advantages over contested court proceedings, because it can be cheaper, quicker and less acrimonious. Of course, we do not say that mediation is appropriate in all circumstances. That is why clause 10(4) makes it clear that in setting merits criteria the Lord Chancellor must seek to ensure that where more than one type of service could be provided for an applicant who qualifies, the service that is provided is the most appropriate in the circumstances. The benefits of mediation are particularly well illustrated in private family law, however, by which I mean disputes about children or finance arising from the breakdown of a relationship.

Kate Green (Labour, Stretford and Urmston)

The Minister is right to highlight the successful outcomes of mediation in family law matters, but is he also aware that there is not inconsiderable research that demonstrates that some of the characteristics of the individuals who go through mediation might also have a bearing on its success? In particular, those individuals are likely to be better educated and financially better off, and in many cases from higher socio-economic groups.

Jonathan Djanogly (Conservative, Huntingdon)

We need to appreciate that the vast majority of people—the figure of roughly 90% comes to mind—sort out their separations themselves, without going to court, or to lawyers or anyone else. We are talking, therefore, about dealing with a significant minority of the population, within which there will be some people for whom different sorts of processes are more relevant.

Kate Green (Labour, Stretford and Urmston)

The Minister will also be aware that it is known that, following separation and divorce, regardless of whether legal or mediation advice has been sought, women are usually financially worse off, and men are better off. What specific equality impact assessment has he carried out on the application of mediation?

Jonathan Djanogly (Conservative, Huntingdon)

The hon. Lady can look at our equality impact assessments, and take a view on the data we present. We have said that legal aid will no longer routinely be available for representation in most private family law cases, but that family mediation will, and legal aid will be available for legal advice in support of mediation. It is right to encourage families, where appropriate, to resolve their disputes without recourse to the courts. We expect to spend an extra £10 million on mediation and legal advice in support of mediation, bringing our total spend to about £25 million. There are private family law cases for which mediation would obviously not be suitable, such as those involving domestic violence or child abuse.

Kate Green (Labour, Stretford and Urmston)

The Minister is right that there are cases, including domestic violence and child abuse, that would clearly be unsuitable for mediation, but what is to be provided for people in situations where, although there is no actual violence or abuse, there is other conflict in the relationship and it would be very unlikely that mediation could operate successfully?

Jonathan Djanogly (Conservative, Huntingdon)

The position that the Government have taken is not the position globally. In Australia, people who are involved in domestic violence are still expected to go to mediation. We have not taken that view, but ultimately we feel that people should sit down and mediate their problems before looking to the courts.

Legal aid will also continue to be available for victims of domestic violence and for private family law cases arising from the breakdown of abusive relationships, where there is objective evidence of the need for protection.

Kate Green (Labour, Stretford and Urmston)

Will the Minister give way?

Jonathan Djanogly (Conservative, Huntingdon)

Let me make some progress, please.

We have also made an exception for private law children cases involving children at risk of abuse, and where there is objective evidence of the risk of abuse, legal aid will be available for the parties seeking to protect the child. We have also ensured that legal aid will be available for children who are parties in private family law proceedings, primarily when a judge decides that it is in the best interests of the child for them to be represented separately from the other parties in the case, who are usually their parents. In addition, legal aid will continue to be available for public law children cases, such as those in which a local authority seeks to take a child into care. After the changes, we expect to still spend £120 million per annum on private family law, including domestic violence, and up to £300 million on public family law. The total spend on all family legal aid will still be well over £400 million.

The need to target legal aid at the cases that are most in need means that tough choices must be made about funding priorities. Prioritising our resources means that legal aid will no longer be routinely available for court battles about property or children following the breakdown of a relationship. We are prioritising our resources so that legal aid will be available for the cases in which the most serious issues are at stake.

I hope that the Committee agrees that it is right for private family issues to be resolved, whenever possible, by agreement rather than by seeking court-imposed arrangements. As a quicker, cheaper and less adversarial route to resolution, mediation is not the poor relation of legal representation, and I hope that the hon. Member for Hammersmith accepts my reassurances and withdraws the amendment.

Andrew Slaughter (Labour, Hammersmith)

Sadly, I will not; I will press the amendment to a vote. The Minister has not dealt well with the point made by my hon. Friend the Member for Stretford and Urmston. In essence, the Minister has said, “Yes, we will deal with the matter in more detail when we discuss domestic violence specifically, but legal aid will still be available for such cases.” My hon. Friend’s point is that, in private family law cases, an undercurrent of, if not violence, oppressive behaviour, is often the reason why the dispute in the separation has occurred—over residence, contact and so on. Commonly, evidence in such cases demonstrates clearly that there has been oppressive behaviour from one party or the other.

Despite that, the Minister is saying that, in such cases, it is suitable for the parties to sit round a table and try to reach a resolution through mediation. That simply will not happen. In such cases, the issues of oppressive, violent or intimidating behaviour will simply be pushed up the agenda, which is not helpful to resolving matters in any event. Often, although a court will take cognisance of the fact that there is a background of hostility, it will still concentrate on the issues before it and will try to reach a resolution. I do not believe that that will be possible, in many cases, with mediation. The Minister is wilfully closing his eyes to such possibilities because he has a budget to run to.

Clause 8 - General cases

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 75, in clause 8, page 5, line 27, leave out subsection (1).

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this it will be convenient to discuss the following: amendment 78, in clause 8, page 5, line 32, leave out subsection (2).

Amendment 77, in clause 8, page 5, line 32, after ‘from’, insert ‘or adding services to’.

Amendment 159, in clause 8, page 5, line 33, after ‘Schedule’, insert

‘or by amending any description of services included in that Part.’.

Andrew Slaughter (Labour, Hammersmith)

The amendments go to the heart of our opposition to the Government’s strategy of restricting legal aid. I do not need to say much about them because we will shortly debate schedule 1, when we can consider the related matters in more detail.

Legal aid was devised to allow those who are impecunious and cannot afford access to legal advice to get their cases into court to reach a fair resolution, to be put on a level peg with those who have such resources. Over time, the areas that are subject to dispute—which become more complex—and relevant to society, change significantly. We have seen such changes clearly over the past 40 or 50 years, and many of the areas that the Government propose to take out of scope have worked their way into scope over that time.

The Government’s approach here is not permissive. They are simply saying, “Unless we have put it down in black letters that we are going to allow legal aid in a restricted number of cases, it will not be allowed. We will have a list of matters that are not allowed and we will allow the Lord Chancellor by secondary legislation to continue to remove but not to add matters to that list.” That triple whammy, as it were, of proposals makes the Government’s intention very clear: to be as restrictive as they can possibly get away with being in the provision of social welfare legal aid and to allow exceptions only where they believe it is untenable not to, either for public relations reasons or for reasons of simple morality. Otherwise, they will do their level best to close down those options for legal aid that have grown over time.

By removing the wording in clause 8 that allows the Government to take this reductive approach, we are saying through these amendments that we wish to stay potentially with the status quo. That does not mean things should not be reviewed. On the contrary, the point I am making is that if we want to constantly review what is and is not appropriate, we should not set up a system so restrictive that it will give little justice to anybody who is seeking that in any of the areas currently in scope.

I mentioned amendment 77. I can anticipate what the Minister will say on amendments 75 and 78. I will conclude, so he can tell us what he wants to say on that. I do not know what he will say on amendment 77 because it is difficult for him to argue that schedule 1 should be capable of modification only to omit rather than to omit or add. As I say, I am keen to hear his explanation on that.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I share the concern of the hon. Member for Hammersmith about the wording of the clause, particularly the fact that the Lord Chancellor will be given the power by order to delete further services from scope. We are having a full day’s debate on the absence of some of these services from scope, yet in this subsection we are expected to give leave to the Lord Chancellor on a whim to delete any further services from scope. We often say that the devil is in the detail. There is quite a devil in this particular detail, and I am very concerned about it. That is not to cast any aspersions on the present holder of the office or, indeed, anybody on the Treasury Benches. However, it is absolutely unacceptable to leave it open to delete other areas from scope another day.

If there is an insistence on having that power, it is perfectly reasonable in my view, and in the opinion of the hon. Member for Hammersmith, that there should be an amendment to allow services to be added. For example, after the reference to schedule 1 in subsection (2), the amendment I have tabled could be inserted, which states:

“or by amending any description of services included in that Part.”.

In other words, amendment 77 and my amendment 159 would allow the Lord Chancellor to include services at a future date. The reason for cutting back on services and taking them out of scope is largely, if not entirely, being justified by the current economic circumstances and, indeed, we all hope and pray that the outlook will improve. Therefore, it would be sensible and prudent to allow the Lord Chancellor to bring back services within the scope of legal aid in due course, particularly because I am afraid that we will revisit the Bill in the not too distant future. I was around when the Dangerous Dogs Act 1991 and the firearms—pistol—legislation were enacted, and they proved to be as useful as a chocolate teapot.

I am beginning to feel uneasy about how every amendment is batted back by Ministers saying, “Well, it’s unnecessary. It’s not going to happen”. Perhaps, but there are concerns among the Opposition, and I believe that there are Members on the Government side who are concerned about several aspects of the changes as well. Amendments 77 and 159 are both designed to provide, reasonably enough, a power for the Lord Chancellor, in due course, to add services back to scope and not to prepare the way to add yet further services to the swathes already taken out of scope.

Jonathan Djanogly (Conservative, Huntingdon)

The amendments all relate to clause 8 and concern changes to the way in which the scope of civil legal aid is set out or how it can be altered.

Amendment 75 would remove subsection (1), removing schedule 1 in its entirety. I assume that the intended effect of the amendment is to prevent civil legal aid from being limited to the matters listed in schedule 1. However, removing the operative part of it in that way would technically prevent the director from providing civil legal aid to any individual, which presumably is not the intention.

Clause 8 allows the Lord Chancellor to modify schedule 1 by omitting civil legal services from part 1 of the schedule, whether by modifying part 1 or other parts of the schedule. Amendment 78 would remove the Lord Chancellor’s power to modify schedule 1 by omitting types of civil legal services from part 1. We think the amendment is motivated by a concern that the Lord Chancellor should not be able to further narrow the scope of the civil legal aid scheme without primary legislation. I think that has been reflected in Members’ comments. However, the power allows the removal of civil legal services where it is no longer appropriate to fund them. An example of where that might be necessary is where the governing legislation behind an area of law is repealed or otherwise altered, and we need to alter civil legal aid provision accordingly. Another example is where particular court proceedings are moved to a tribunal, and it ceases to be appropriate to provide funding for advocacy for such proceedings, so an amendment to part 3 of schedule 1 would be needed. Any changes made to the scope of part 1, using the power in clause 8, would be subject to the affirmative resolution procedure.

The intention of amendment 77 appears to be to allow out of scope civil legal services to be added back in by secondary legislation. Amendment 159 would allow the descriptions of funded services to be changed, essentially allowing the schedule to be substantially revised. We have been clear. I hate to say this to the right hon. Member for Dwyfor Meirionnydd, but in the current fiscal climate we have to make these tough choices about which civil legal services should continue to be funded by the taxpayer.

Given the importance of the issue, we believe that the scope of civil legal aid should be set out in primary legislation, which the Bill places before Parliament for approval. Therefore, I urge the hon. Member for Hammersmith to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

The Minister has correctly interpreted the intention of the amendment. I hear what he says, but in light of the way the clause is drafted there was little or no alternative but to draft the amendments in this way. There is no meeting of minds on these issues. The very real concerns we have about many of the scope changes and their practical effects will become clearer as the debate continues. We need to get on to that. We simply do not believe that parts 1 and 2 are an appropriate way to administer and apply legal aid. I do not intend to press all the amendments to a Division, although I want to make it clear that we do not believe it appropriate for areas to be removed from scope by secondary legislation. I do not intend to press amendments 75 or 78 to a vote, but I will ask for a vote on amendment 77.

I beg to ask leave to withdraw the amendment.

Yvonne Fovargue (Labour, Makerfield)

I beg to move amendment 73, in clause 8, page 5, line 28, after ‘Schedule 1’, insert

‘or fall within the category of proceedings provided for at subsection (1A)’.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this it will be convenient to discuss the following: amendment 74, in clause 8, page 5, line 31, at end insert—

‘(1A) Subject to section 10, civil legal services are to be available to an individual for the purposes of challenging an act or omission of a public authority.

(1B) “Public authority” has the same meaning as in section 6 of the Human Rights Act 1998.’.

Amendment 160, in schedule 1, page 96, line 17, leave out ‘8 and 12’.

Amendment 145, in schedule 1, page 107, line 14, leave out ‘8 and 12’.

Amendment 148, in schedule 1, page 107, line 41, leave out ‘8 and 12’.

Amendment 151, in schedule 1, page 113, line 4, leave out ‘8 and 12’.

Amendment 135, in schedule 1, page 115, line 17, after ‘that’, insert ‘section 8(1A) and’.

Amendment 136, in schedule 1, page 115, leave out line 27.

Amendment 137, in schedule 1, page 115, line 31, leave out paragraph 12.

Yvonne Fovargue (Labour, Makerfield)

I shall speak to amendments 73 and 74 together, as they work together to allow legal aid for any instance in which an individual challenges a public authority. My hon. Friend the Member for Stretford and Urmston has given well-argued and cogent reasons why individuals need legal aid to challenge such decisions, and I do not wish to repeat them all, but the inequality of arms is never more obvious than when an individual comes up against a decision made by the state or an agency of the state. Such decisions are invariably made by individuals and institutions whose powers are advised by law, and they are based on laws, legal advice and rules, so such cases are inherently legal. It is the state’s responsibility to ensure that the individual can effectively hold the state to account.

Resources available to the state are absolutely enormous—individuals consider them boundless—and public authorities have the immeasurable advantage of familiarity with procedures. The Minister can repeat as many times as he likes that the tribunal procedure is simple. It is simple to those who have been to one, or who can imagine standing before three people and having their life examined. However, many individuals and families with no access to specialist support to prepare their case and establish the limits of state powers, or the evidence to take their case further will simply give up. That gives the state an immeasurable advantage.

The amendment will not extend the scope of legal aid to include representation at tribunals; it will simply allow the preparation of the case and the explanation of the process, removing the fear of the unknown and providing a more level playing field for the individual who feels that they are pitting themselves against the might of a state that holds all the cards.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

Amendments 136, 137, 145, 148 and 151, which stand in my name, would amend schedule 1. They are tabled with a view to altering the list of excluded services in part 2 of the schedule to remove the specific exclusions or withdrawals from scope relating to breach of statutory duty, claims against public authorities involving the Human Rights Act 1998, welfare benefits claims and applications to the Criminal Injuries Compensation Authority. Several of the amendments are consequential to those removals from the list, which would effectively bring the items back into the scope of legal aid.

The amendments reflect our concern, which I am sure other Committee members share, about the large-scale exceptions to funding envisaged in the Bill. It will create alarming gaps in protection and hits the most vulnerable the hardest. In particular, applications for criminal injuries compensation, benefits claims and claims regarding the Human Rights Act will typically be made against a strong and powerful authority, and individuals will therefore be deprived of the opportunity to have their day in court and to have their rights properly upheld.

Amendment 135 is consequential to amendments 73 and 74, which were tabled by the hon. the Member for Makerfield, and these comments are consequential to the arguments that she put forward. We may keep returning to the same point, but it is important that we show our concern. We are concerned about those who will be deprived of their voice as a direct result of the cuts introduced by the Bill. We may continue saying that today, tomorrow and the day after, and I hope that, at some point, the Government will listen.

Jonathan Djanogly (Conservative, Huntingdon)

The amendments are contrary to the basis of our whole programme of reform and would undermine our goal of focusing limited resources on the cases that need them most. Amendments 136, 137, 145, 148, 151 and 160 seek to extend the scope of legal aid to cover claims in respect of a breach of statutory duty and claims for damages in respect of a breach of human rights by a public authority, where those arise in relation to a matter that is within the scope of civil legal aid.

It is important to emphasise that schedule 1 makes legal aid available for the most serious damages claims against public authorities. The Bill ensures that funding may be made available for claims regarding a breach of statutory duty or a breach of convention rights against public authorities, where the matter concerns an abuse of position or power, a significant breach of human rights, allegations of the abuse of a child or vulnerable adult or allegations of sexual offence. Hon. Members should also be aware that funding may be made available for a judicial review of an enactment, decision, act or omission, which is a clear way of holding public authorities to account.

The amendments proposed by the right hon. Member for Dwyfor Meirionnydd, however, would go much further. They would make funding available for any claim for breach of statutory duty or breach of convention rights that arises in relation to a matter within the scope of legal aid, no matter how frivolous. Amendments 73, 74 and 135 would bring into scope for advice almost all immigration, education, welfare benefits and clinical negligence cases. They would make funding available for any claim relating to any act or omission by a public authority, subject to merits of financial eligibility. In some respects, that would expand the scheme beyond even its current bounds.

Starting with welfare benefits, while we recognise that many people rely on such benefits, these cases are primarily about financial entitlement, and we generally consider them to have lower importance than those concerning the liberty or safety of the person. Appeals are heard before a relatively informal tribunal, which is well used to individuals presenting their own appeal without legal assistance. Legal aid would be retained for judicial review on welfare benefit decisions and for claims relating to a contravention of the Equality Act 2010 that concerns welfare benefits.

On special educational needs, the Government were persuaded by the strength of the arguments that legal aid should be retained for advice in such cases. We have therefore decided to modify the original proposal, so that legal aid should continue to be available for SEN cases where it is currently available. We do not consider that legal aid is needed or merited for other education matters such as admissions and exclusions. In most cases, parents can simply raise any concerns by writing to the school governors.

The amendments would also make legal advice available for various immigration cases, including applying for study or work visas, appealing family visit visas or getting advice on citizenship applications. While we appreciate the importance of those matters to the individuals concerned, immigration tribunals are designed to be user-friendly and interpreters are provided free of charge. The issues at stake are generally factual, rather than points of law. Most immigration cases do not routinely justify taxpayer funding, and they are therefore being removed from the scope of legal aid. We are, however, retaining legal aid for the most serious cases, such as domestic violence immigration cases, cases before the Special Immigration Appeals Commission and immigration detention cases, including advocacy before the tribunal.

As previously debated, we recognise that claims of clinical negligence often raise serious issues. We also recognise that there is often a viable source of alternative funding for those cases through contingency fee arrangements. We therefore consider that legal aid is not justified in those cases and that our limited funding should be better targeted at other priority areas, such as those concerning physical safety, liberty or homelessness. I therefore urge right hon. and hon. Members to withdraw their amendments.

Yvonne Fovargue (Labour, Makerfield)

I have to say that was the reply I expected from the Minister. If the Minister had not been persuaded previously, he was not to be persuaded now. However, I am sorry that the myth of the tribunal being user-friendly is still being perpetuated, when the majority of people who use advice agencies are absolutely petrified of the idea of going to a tribunal, and take a considerable amount of reassurance from the agency in order to get them even to set foot over the threshold. However, I beg to ask leave to withdraw the amendments.

Schedule 1 - Civil legal services

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I beg to move amendment 161, page 96, line 21, leave out ‘other than’ and insert ‘including’.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this it will be convenient to discuss the following: amendment 146, page 107, line 18, leave out ‘other than clinical negligence’.

Amendment 147, page 107, leave out lines 28 to 30.

Amendment 149, page 108, line 4, leave out ‘other than’ and insert ‘including’.

Amendment 169, page 115, line 13, at end add—

‘40 Paragraphs 1, 2 and 3 of Part 2 to this Schedule will not apply where—

(1) The personal injury or death occurred as a result of alleged negligence during the course of medical treatment (whether provided by the National Health Service or through a private arrangement between an individual and healthcare provider).

(2) The personal injury or death occurred while the individual was in the care of the state or an emanation of the state, whether forcibly or voluntarily (see below).

(3) The injury or death was caused negligently by a servant or agent of the healthcare provider or other emanation of the state.

(4) The individual claims for assault, battery or false imprisonment against a healthcare provider or emanation of the state.

(5) In this paragraph “National Health Service” shall include all state funded healthcare provision, NHS hospital trusts, NHS foundation trusts, mental health trusts, independent treatment centres, general practitioners, primary care trusts, strategic health authorities and all their successors in title.

(6) In this paragraph “Health Care Provider” shall include private hospitals and clinics and individual healthcare professionals, including doctors, nurses and midwives where a patient has contracted on a private basis.

(7) In this paragraph “The State or emanation of the State” shall include the Police, Prison Service or Social Services.

(8) In this paragraph “alleged negligence” is a concept as per the common law including case law definition of negligence as pertaining at the time of the alleged negligence or proposed claim.’.

Amendment 223, page 115, line 19, leave out paragraph 2.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

We heard from the Minister a few minutes ago that removal of clinical negligence from scope could be made up in some way by the contingency fee arrangements. That is not as simple as it sounds. I am concerned about people who, at the beginning of such an arrangement with solicitors, would perhaps not be able to afford a policy that would cover them for the initial medical examinations that need to be undertaken—I have in mind children who have been born with paraplegic conditions and so on.

I have heard the Minister say more than once when giving evidence to the Justice Committee that the change in question was necessary first because there was the cover of contingency fees and, more importantly, because it was an expensive area of law. His opinion was that lawyers tended to draw and drag things out on behalf of claimants, but I can tell the Minister that it is quite the reverse. In my experience of litigating against health authorities, they are the least helpful bodies on earth. They will withdraw or hide evidence until the very last minute, and in some way they believe that the claimant, or the next friend, will go away and leave the matter alone. They think in some weird way that things will be improved if they sit on evidence for five or six years, rather than coming clean from day one.

If there were a duty on responsible bodies such as health authorities to come clean immediately, we would probably not be having this debate because it would not be a high-cost area. Of course damages are huge, and rightly so, particularly in paraplegic cases. That is understandable because that young person or child will have to be looked after for the rest of their life. However, in many cases over the years I have found that health authorities are the worst bodies against which to litigate, and the least credible litigators. As I have said, on numerous occasions crucial evidence has been withheld for years for one reason or another, and then it suddenly appears and a settlement is brought forward. If that kind of behaviour had not occurred, I dare say there would be no move to withdraw clinical negligence from the scope of the legislation. I regret to say it, but that is what I have found over some years of practice.

Amendments 161, 146, 147 and 149 are designed to amend schedule 1 to bring clinical negligence cases back within scope. Amendment 161 covers cases involving the abuse of a child or vulnerable adults; amendments 146 and 147 cover the abuse of a position of power by a public authority; and a breach of convention rights by a public authority is covered by amendment 149.

Clinical negligence cases will evidently be against the NHS or public authorities, and they will be difficult to fund in any other way. I understand that the Government have moved their position slightly so that some initial medical fees might be covered. I do not know what the Minister will say in response, but if there were a strict duty of candour on defendants in such cases, I hope that we would not be in this position.

Although cases could be brought under amendment 73, amendment 149, which stands in my name, would stand alone as it retains specific prevision for tort and damages claims engaging convention rights, and extends provision to cases that involve clinical negligence. Amendments 146 and 147 provide specifically for cases involving a particularly serious variety of public wrongdoing and would remove the exclusion of clinical negligence cases in such a context. They could be grouped with amendments 160, 145 and 148, which remove later references in schedule 1.

I can anticipate what the Minister will say, but I hope that, the Government having moved on the question of the cost of initial medical examinations and reports, they will look further at the matter. They cannot just say that contingency fees are the answer; they are not the answer. For many parents, they cannot be the answer, because the parents do not have the money up front to buy a policy to provide cover when making an arrangement with the lawyers at the beginning. No firm on earth seems to be prepared to take on a massive case on a no win, no fee basis because clinical negligence is the most specialised and complex area of civil law.

I know that there are concerns on not only the Opposition side but the Government side of the Committee, and that there are divisions in the House of Commons on the issue and certainly across the board in the House of Lords. I ask the Government to reconsider the measure, because it is thought to be very cruel outside Parliament. In effect, it is cruel; it is not meant to be cruel, but it might create a disastrous situation for parents. It will be unbelievably worse for them, because they will not be able to provide for their loved one for years to come, which is the current position in litigation for clinical negligence.

I am making an appeal to the Government. I ask them to think again about the matter and to reflect between now and the conclusion of the Committee’s proceedings; I can tell the Minister that there will be an avalanche of opposition up the corridor and that it would be good to think carefully about the change before the Bill reaches the other place.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

I should say that it is my intention to suspend the sitting for one hour at 7 pm.

Andrew Slaughter (Labour, Hammersmith)

The three amendments in my name comprehensively try to do exactly what the amendments tabled by the right hon. Member for Dwyfor Meirionnydd would do, which is to put clinical negligence back into the scope of legal aid provision—in other words, to amend paragraphs 1 and 2 of schedule 1. For the avoidance of doubt, amendment 169 sets out, in proposed sub-paragraphs (1) to (8), the areas where paragraph 2(1) to (3) would not apply, particularly, as in proposed sub-paragraphs (1) and (2), where

“personal injury or death occurred as a result of alleged negligence during the course of medical treatment”

and where

“personal injury or death occurred while the individual was in the care of the state”.

The Opposition feel strongly that clinical negligence must remain within scope. There are about 1 million adverse incidents, as they are called, in the NHS every year, about 10,000 of which lead to action being taken against the NHS. In themselves, those statistics give the lie to the assertion that we often read in the press that there is a compensation culture and that people are keen to seek redress through the courts on such matters. On the contrary, it is the other side of the coin, and the right hon. Member for Dwyfor Meirionnydd made the point about the behaviour of health authorities.

I am sure that we have all had experience of the behaviour of aggrieved parties at our surgeries and when dealing with complaints procedures. There are comprehensive, if somewhat labyrinthine complaints procedures. My experience is that in most cases, individuals want an explanation, perhaps an apology, and the assurance that whatever has happened will not happen again in other cases. They seek compensation, if that is the right word, only when there is an absolute need and because negligence has caused harm that needs redress.

What is swimming around in the background is that somehow the NHS is abused through the court process by claims for negligence and that that is one reason why the amendments may be necessary. On the contrary—I entirely agree with the right hon. Gentleman that the experience of many people who find themselves forced to sue a health authority is that they are the worst people to sue. There may be a number of reasons for that. There may be pressure from the alleged tortfeasors that they do not wish to admit culpability, and pressure is put on the litigation authority. The authority may be overly bureaucratic in the way it behaves, but the opinion not only of those who have had to take action, but of many judges, particularly cost judges, who have reviewed the behaviour of health authorities and the NHSLA is that the primary role—I go as far as saying the primary role rather than a shared role—in inflating costs and delaying proceeding lies with defendants in such cases.

I will not go over the wrongly given figures for costs on each side, and how much are costs and how much is compensation, but I think the Government have learned their lesson, and have apologised for the figures that were wrongly given to the House earlier. I say for the avoidance of doubt that we do not approach the matter as a cause of great concern. What is of great concern is ensuring that as little suffering as possible is caused through negligent treatment or behaviour of the national health service. None of that detracts from the fact that, given the debate in the Chamber at the moment, the huge respect that we all have for the national health service, the high regard in which it is held, and the very high rating that the public give to the NHS, they are concerned about the damage being done by the Government. In an organisation of that size, there will always be areas of neglect. We have seen that with hospitals, with individuals, and with individual tragic cases. I will come to one or two in a moment. It is essential that such matters are dealt with.

Let us consider cost. Legal aid for clinical negligence cases is the cheapest route for both litigating parties when looking at the alternatives. Taking clinical negligence out of scope for legal aid would cost the state more overall if access to justice remains possible for all deserving claimants. Most costs will simply be transferred from the Ministry of Justice to the NHS, but the Ministry of Justice’s impact statement takes no account whatever of that.

If many people are denied access to justice, which is not the stated policy intention, the result of the reforms will be additional expense for the state overall. For example, the Ministry of Justice estimates that it would save just £10 million a year by taking clinical negligence out of scope—I have heard a different estimate, but it would certainly be between £10 million and £20 million—and we estimate that if all cases that are currently successful under legal aid were successful under the revised no win, no fee arrangements, the cost to the NHS of investigating new claims and settling previously legally aided cases under the reformed system would amount to at least as much, and I will return to those figures later. That is mainly because the NHS will have to pay expensive insurance premiums to cover the cost of medical experts’ reports. It will also have to spend money investigating and defending more spurious claims generated by throwing the market open to non-specialist solicitors and claim farmers without any of the controls offered by legal aid. We will address that area when we reach part 2 of the Bill, but we have concerns not only about the Bill’s restrictions on access to justice but about more spurious claims. The Bill is doubly defective in that way.

Later we will no doubt hear the Minister praise Sir Rupert Jackson’s proposals on the reform of no win, no fee. In the very same report on the subject of legal aid, Lord Justice Jackson said:

“Legal aid is still available for some key areas of litigation, in particular clinical negligence, housing cases and judicial review. It is vital that legal aid remains in these areas. However, the continued tightening of financial eligibility criteria, so as to exclude people who could not possibly afford to litigate, inhibits access to justice in those key areas. In my view any further tightening of the financial eligibility criteria would be unacceptable.”

If that is not good enough for the Minister, I suggest that he reads the NHS Litigation Authority’s response to the consultation, which criticises the removal of legal aid. I will quote one or two paragraphs, because I want the arguments on the record, as they are most persuasive. They come from exactly those proponents of reform in the system that the Minister relies on when wearing another hat, and they also come from exactly the people whom one might think would be the beneficiaries—defendant insurers or, in this case, the NHSLA. The NHSLA stated:

“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements…in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid, particularly those involving brain-damaged children and adults. Such claims would therefore fall within all four of the criteria listed in paragraph 4.146 of the consultation as justifying the retention of funding.”

I recommend that Members read the whole response, if they have not already done so—it is not terribly long, but I shall not read the whole thing today. The part I have been quoting concludes:

“Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria.”

I will read one more part of the NHSLA response because, in its own way, it is more damning. Question 4 of the consultation was:

“Do you agree with the government's proposals to introduce a new scheme for funding individual cases excluded from the proposed scope, which will only generally provide funding where the provision of some level of legal aid is necessary to meet domestic and international legal obligations…or where there is a significant wider public interest in funding legal representation for inquest cases?”

The NHSLA response was that

“we have doubts about the operation of a scheme which, according to paragraph 4.167, would cover high-value obstetric cases in particular. No details are provided as to how such a scheme would operate and what the eligibility criteria would be. For example, would this scheme only cover cases of the most severe brain damage, or would it also extend to claims for moderate brain damage, shoulder dystocia or to children whose mental faculties are spared, but who have serious physical disabilities?

We believe that the position needs to be made much clearer before we could consider supporting such a proposal. We note, for example, that in paragraph 4.53 it is proposed that…‘very serious cases of negligence’ might receive funding. How will it be possible to define ‘very serious negligence’? Will this be akin to the manslaughter test? In truth, we suspect that it will be impossible to achieve a satisfactory definition, at least prior to any judgment. Only a judge can authoritatively determine whether the negligence was sufficient to amount to criminal negligence.”

That is an absolutely ringing condemnation of the Government’s proposals—their inadequacy, their lack of detail and the haste with which they are being pushed through—which is saying that they have not been thought through in any way at all.

We have all received a lot of briefings on this subject, so I suspect that Members have read some extremely heart-rending cases. It is said that hard cases make bad law, but there are so many clear cases, particularly of children with injuries of the very greatest severity, that are occurring on a daily or weekly basis and being reported in the papers. What is also clear now is that many of these cases would not get into court without the provision of legal aid. Let me cite one or two of those cases.

Sophie Tyler is a 14-year-old—Members may have read about her in the papers over the past two weeks—who went into Birmingham children’s hospital for a gall-stone procedure and a spinal epidural device was left in her body for two days. Clearly, there was negligence in that case. Sophie’s solicitor said it was important that lessons were learned and he pointed out that the case could not have come to court without legal aid.

“Birmingham Children’s hospital has a reputation, both nationally and internationally, for clinical excellence, which is why it is extremely important, both to protect future patient welfare and to provide public reassurance, that the hospital learns important lessons from what happened to Sophie…We very much hope that the staff responsible have already been retrained so that similar tragedies can be avoided and I am glad that they have now admitted responsibility…Although, no amount of compensation will ever turn back the clock for Sophie—she will need specialist care and support for the rest of her life…The trust’s full admission of liability now paves the way for a settlement which will provide Sophie with financial support to pay for the special equipment and care she now needs.”

He added:

“This is an important case which has allowed our client to access justice and secure the lifetime of future care she needs but it would not have been possible without the support of legal aid.”

Sophie’s mother said:

“My daughter's life has completely changed as a result of what happened. From being an outgoing teenager, her life has altered overnight and we have all had to come to terms with what has happened.”

In the end, the hospital admitted liability and apologised, but, as in so many of these cases, without the ability of the family to access legal aid, their solicitor said that that would not have happened.

Let me mention the case of Andrew Green, who suffered from cerebral palsy due to clinical negligence at birth. He recently went to No. 10 Downing street to deliver a letter asking the Prime Minister and Lord Chancellor to think again on these legal aid reforms. His case is perhaps even more relevant to the case. Andrew’s mother, Julie, was initially told that her negligence claim would fail, so she enlisted the support of a specialist legal aid lawyer, which eventually resulted in a seven-figure compensation package. Using legal aid, the Green family was able to secure financial support to enrich the quality of Andrew’s life through care and support. The Green family would never have been able to afford a lawyer through private funding. In Andrew’s letter to the Prime Minister, he said:

“Regardless of the cost to the government, legal aid medical negligence is part of civil rights that everybody should have access to, whether the applicant is rich or poor. I find it hard to believe that removing a basic right that has been established for many, many years is the only way to save the government money.”

Just so there is no doubt as to why the settlements are needed, let me read out what Andrew says about the difference a settlement has made to his life.

“My parents were not in a financial position to support my case against the NHS Trust Diana Princess of Wales hospital, which lasted eight years, when they found out I had cerebral palsy due to a mismanaged delivery when I was born, and so had to rely on legal aid. Even then, it was a great struggle to even receive admittance or an apology, let alone, a financial reward which was much needed…The award from the case, firstly, and possibly most importantly, allowed us to change our highly unsuitable terraced house to a bungalow, where my confidence and skills could develop. It would have been almost impossible for me to learn to walk in my old house and the fact my bedroom was upstairs was very impractical. Now, I am able to walk and even play football totally unaided, despite being told I would never be able to walk…the funding has allowed me to gain access to appropriate and much better education, where the staff at the schools have supported me to keep going and train. All these have been radical changes to my life that before almost certainly would not have been possible, but my achievements in computing would never have been possible without legal aid. I now own my own company that sells the software I produce, as well as setting up and owning multiple websites”.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

Before we reconvene, it is certainly our intention to get to the end of schedule 1 by tomorrow morning, so I hope that people will keep that in mind when they are making their speeches.

Andrew Slaughter (Labour, Hammersmith)

I read at some length two cases that bring out the details of why we think—

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

The two cases to which the hon. Gentleman refers have several things in common. First, they were very serious cases in terms of damage to individuals. Secondly, they were fairly long drawn out due to intransigence by the defendant authority. Thirdly, they were successful, which meant that all the costs to the legal aid fund were paid by the defendant.

Andrew Slaughter (Labour, Hammersmith)

Those are three good points concisely made. To add to the last point, I note that the success rate in clinical negligence cases has increased from 80% to 91%. What that says about the defendant, I leave for other Members to judge, but it certainly means that the LSC has paid out less money year on year. In some ways, publicity is intrusive, but obviously, the claimants in the cases that I mentioned wished their cases to be publicised for others’ benefit and to explain what happened.

Other Members might have read today about the cases of Cayden Davies, a brain-damaged child, and Annie Burchell, a severely physically injured child. The cases were similarly serious and similarly reliant on legal aid. I drew three points from that. The first involves the necessity of legal aid in the UK. The second is the consequences of legal aid. That is why I read out the Andrew Green case. Legal aid utterly transformed that child’s life from a state of despair to a life that he can live not only productively but successfully and in comfort, playing sport and setting up a business. The third point concerns the difficulties. The letter from Andrew Green says:

“My parents previously experienced this issue, being turned away by two standard lawyers and told there was no chance of winning a case, previous to being put in touch with the firm that agreed we should at least try.”

Even under the current regime, these are not easy rows to hoe. I pay tribute to the individuals and their families, and to their lawyers, who persisted in the cases.

Before I finish, I have two other points for the Minister to answer in his response. First, Action against Medical Accidents, an independent and well-respected charity, estimates the net cost of the changes at £1.8 million. That is, AVMA says that they will save £17 million but cost about £18.8 million. If that is right, why are the Government persisting with the changes? Secondly, we need clarity on exactly how the Government propose to deal with the problems that will arise if legal aid for clinical negligence is withdrawn and the reformed no win, no fee provisions go ahead. The costs of getting to the stage where a no win, no fee agreement can come into play are estimated at up to £50,000 in complex cases, due to the need for medical reports and to other costs that are not recoverable at that stage. If those costs are not recoverable, that will be an effective barrier to cases proceeding.

Such cases are compelling, and not just due to the individual circumstances, which we should put aside and consider the lessons to be learned. What is the current product of legal aid in clinical negligence cases, and what are the risks if it is withdrawn for a relatively small saving in public funds?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I just want to make a few brief comments. I have some sympathy with the amendments that have just been discussed. The hon. Member for Hammersmith, who leads for the Opposition on this issue, referred to Action against Medical Accidents. Its chief executive is, in fact, a constituent of mine and I have had regular contact with him over a number of years, particularly about the issue of the duty of candour, which was referred to in an earlier contribution to the debate. I hope that it might be possible to get more movement on that issue, because clearly it involves what are often the most distressing cases and those where the largest financial settlements might be available.

If there is not going to be any movement on that issue, I hope that at the very least strong pressure will be put on other Government Departments—such as the Department of Health, but not only the Department of Health—to ensure that they are much more open and transparent, and less obstructive, when it comes to litigation. We have heard that the Department of Health is not exactly prompt in seeking to tackle these issues. If we can do something culturally about ensuring that the Department of Health responds more promptly and more openly, that will be beneficial to people who are fighting medical negligence cases, and in relation to other Departments more promptness and openness will be beneficial in other cases where an individual is facing a large Government Department.

The duty of candour might be the subject of debate in the main Chamber at the moment. That duty can make a contribution, in terms of addressing issues related to medical negligence. If it forces just one, two, three or four more clinicians to come forward with a statement that accepts that there was a mistake made at a very early stage, that could take heat out of the proceedings. It might not necessarily be in this Bill, but I hope that in the other Bill that is being debated at the moment—the Health and Social Care (Re-Committed) Bill—the duty of candour is reflected.

Dave Watts (Labour, St Helens North)

I share the hon. Gentleman’s concerns. If the Government do not accept his concerns and if they do not do something about them, will he and his party vote against the Government on this issue?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thank the hon. Gentleman for his intervention, which in some ways was predictable. I will give what is perhaps a very predictable response by saying that I believe that as a Government party—as part of a coalition working together on these issues—these are issues that we can rightly discuss in other places. I hope that, perhaps as a result of lobbying, the Government might want to take that on board, without the necessity of my supporting the Opposition.

Jonathan Djanogly (Conservative, Huntingdon)

Amendments 146, 147, 149 and 161 seek to widen the scope of legal aid to bring clinical negligence cases into the scope of legal aid where there has been an abuse of position or power by the public authority, a significant breach of human rights by the authority or an abuse of a child or vulnerable adult. Amendments 169 and 223 also seek to widen the scope of legal aid to cover all claims involving personal injury, death, assault or battery and false imprisonment that occur while an individual is in the care of a public authority, as well as claims for clinical negligence brought against the NHS or private health care providers.

Although we recognise that many of these clinical negligence cases concern very serious issues, for the most part and for most of these cases a conditional fee agreement is a suitable alternative to public funding. According to NHS figures from 2008-09, 71% of clinical negligence cases in which the funding method is known are funded by means other than legal aid. Therefore we consider that legal aid is not justified in these cases and that our limited funding would be better targeted at other priority areas, such as those concerning physical safety, liberty or homelessness.

However, we propose an exceptional funding scheme to ensure that some clinical negligence cases continue to receive legal aid if the failure to do so is likely to result in a breach of an individual’s rights to legal aid under the Human Rights Act 1998 or EU law. When considering whether exceptional funding should be granted, we will take account of the ability of the client to present their own case, the complexity of the matter, the importance of the issues at stake and all other relevant circumstances. As a result, the impact assessment estimates that we will continue to spend £6 million of the £16 million legal aid that we currently spend on representation in clinical negligence cases.

The right hon. Member for Dwyfor Meirionnydd and the hon. Member for Hammersmith seemed to suggest that costs to the NHS litigation authority would be increased by ending legal aid. The impact assessment on civil litigation costs shows that there should be a saving of £50 million to the NHSLA. The Ministry of Justice is discussing with the NHSLA and other stakeholders how the process of claims can be improved. I am pleased to tell my right hon. Friend the Member for Carshalton and Wallington that those discussions will continue. Despite the many opinions voiced against the NHS this evening, in my meetings with it the NHSLA has been most productive and helpful; it wants to move this issue forward.

Karl Turner (Labour, Kingston upon Hull East)

Does the Minister not accept that the policy of the health service is often to fight claims? In my view, that is the policy.

Jonathan Djanogly (Conservative, Huntingdon)

The policy of litigators is often to fight claims. I cannot talk about individual situations—I am sure that they exist—in which claims have been fought, perhaps to a degree or extent that the hon. Gentleman finds unacceptable, but I am not qualified to comment on the individual legal circumstances. However, I can tell him that the Government have taken up the matter with the NHSLA. Indeed, we believe that the commissioning of reports can be improved by working with the NHSLA in clinical negligence cases; for example, joint expert reports should be commissioned whenever possible. It will not always be possible, but it could significantly lower costs and save time. In turn, that would encourage the early notification of claims.

As the right hon. Member for Dwyfor Meirionnydd mentioned, one aspect of clinical negligence cases is the significant up-front costs involved in obtaining expert evidence. Following consultation, the Government accept that this is a significant problem, which is why the Bill introduced a tightly drawn power to allow the recoverability of after-the-event insurance premiums in clinical negligence cases. Details will be set out in regulations. I should also point that qualified one-way cost shifting will mean that in the majority of cases in which damages for personal injury are sought—that includes clinical negligence—the claimant will not be at risk of having to pay the winning defendant’s costs, which will significantly reduce the need for after-the-event insurance, and hopefully encourage people to move towards settlement.

Dave Watts (Labour, St Helens North)

The Minister does not seem to want to concede to his colleagues’ concerns. He certainly is not satisfying Opposition Members, although he might be satisfying Liberal Democrat Members. This is not a coalition agreement matter, so if the Liberal Democrats were inclined to withdraw their support would he press ahead with his proposals or would he change them?

Jonathan Djanogly (Conservative, Huntingdon)

I shall leave that hypothetical question for others.

With regard to the other claims that would be brought into scope by amendments 169 and 223, it is important to emphasise that schedule 1 makes legal aid available to the most serious damages claims against public authorities. The Bill ensures that funding may be made available for damages claims against public authorities if the matter concerns an abuse of position or power, a significant breach of human rights, allegations of abuse of a child or vulnerable adult, or allegations of sexual offences. Right hon. and hon. Members should also be aware that funding may be made available for the judicial review of enactments, decisions, acts or omissions; that is clearly another way of holding public authorities to account. We will continue to spend approximately £10 million on judicial review as a similar public law remedy.

As members of the Committee will be aware, we have had to make some difficult choices about legal aid and have focused limited resources on those who need them the most and on the most serious cases that justify legal advice or representation. That approach means that public funding will not be available for each and every claim involving a public authority, but it will be available for the most serious cases and to address serious abuses, so I urge the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

In the interests of expedition, I will push only one amendment to a vote. We have made our position clear that we regard this as one of the most serious defects in the scope changes that are outlined in the Bill. For a relatively small saving, this measure will cause untold hardship. This view has been put to the Minister on a number of occasions both today and earlier and it was previously expressed by Lord Carlile. At all times, his answers have been unconvincing. I hope that that might be an indication that the Government themselves, with or without the provocation or assistance of the Liberal Democrats, will look again at this matter, which has caused them a great deal of difficulty. They should have done the brave and logical thing and compromised on clinical negligence They have not done that. Perhaps they will think again.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I am not satisfied with that.

Andrew Slaughter (Labour, Hammersmith)

I beg to ask leave to withdraw the amendment.

Yvonne Fovargue (Labour, Makerfield)

I beg to move amendment 217, in schedule 1, page 99, line 8, leave out ‘from the United Kingdom’.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this it will be convenient to discuss the following: amendment 161, in schedule 1, page 96, line 21, leave out ‘other than’ and insert ‘including’.

Amendment 146, in schedule 1, page 107, line 18, leave out ‘other than clinical negligence’.

Amendment 147, in schedule 1, page 107, leave out lines 28 to 30.

Amendment 149, in schedule 1, page 108, line 4, leave out ‘other than’ and insert ‘including’.

Amendment 169, in schedule 1, page 115, line 13, at end add—

40 (1) The personal injury or death occurred as a result of alleged negligence during the course of medical treatment (whether provided by the National Health Service or through a private arrangement between an individual and healthcare provider).

(2) The personal injury or death occurred while the individual was in the care of the state or an emanation of the state, whether forcibly or voluntarily (see below).

(3) The injury or death was caused negligently by a servant or agent of the healthcare provider or other emanation of the state.

(4) The individual claims for assault, battery or false imprisonment against a healthcare provider or emanation of the state.

(5) In this paragraph “National Health Service” shall include all state funded healthcare provision, NHS hospital trusts, NHS foundation trusts, mental health trusts, independent treatment centres, general practitioners, primary care trusts, strategic health authorities and all their successors in title.

(6) In this paragraph “Health Care Provider” shall include private hospitals and clinics and individual healthcare professionals, including doctors, nurses and midwives where a patient has contracted on a private basis.

(7) In this paragraph “The State or emanation of the State” shall include the Police, Prison Service or Social Services.

(8) In this paragraph “alleged negligence” is a concept as per the common law including case law definition of negligence as pertaining at the time of the alleged negligence or proposed claim.’.

Amendment 223, in schedule 1, page 115, line 19, leave out paragraph 2.

Amendment 162, in schedule 1, page 100, line 3, leave out from ‘(“B”)’ to end of line 4 and insert

‘including matters relating to contact with or custody of a child.’.

Amendment 220, in schedule 1, page 102, line 6, after ‘Mediation’, insert ‘and Collaborative Law’.

Amendment 191, in schedule 1, page 102, line 8, at end insert—

‘( ) Civil legal services provided in relation to a family dispute where the LSC competent mediator—

(a) is satisfied that mediation is not suitable based on consideration of the individuals, dispute and all the circumstances of the case (including previous instances of domestic violence or abuse and other power imbalances);

(b) certifies that both individuals attended mediation and the mediation failed;

(c) certifies that the other party did not attend the mediation so the mediation failed.’.

Amendment 231, in schedule 1, page 102, line 8, at end insert—

‘(2A) Civil legal services (including conveyancing services) provided in the course of giving effect to an agreed settlement of a family dispute.’.

Amendment 155, in schedule 1, page 102, line 44, leave out ‘to a child’.

Amendment 156, in schedule 1, page 103, line 1, leave out first ‘the’ and insert ‘a’.

Amendment 157, in schedule 1, page 103, line 2, leave out first ‘the’ and insert ‘a’.

Amendment 158, in schedule 1, page 103, line 4, leave out first ‘the’ and insert ‘a’.

Amendment 142, in schedule 1, page 105, line 24, at end insert—

Yvonne Fovargue (Labour, Makerfield)

The amendment addresses an important omission. Under the terms of the Bill, only cases of international abduction will be covered by legal aid. Domestic abduction—abduction within the UK—will not be so covered. Domestic child abduction is considerably more prevalent than international abduction and the child welfare issues are exactly the same. The child is usually taken by a non-resident parent who has been denied all contact with the child. They have been taken by somebody whom they may not know that well to somewhere they may not know that well, whether it is inside or outside the UK. Expecting a bereft parent, regardless of whether or not the child remains in the UK, to navigate the court system without advice and representation is not just untenable but cruel. I do not wish to go through the law in detail because there are people here who know the law much better than I do. Nonetheless, it is a complex area of law that involves both civil and criminal law. It is different if it happens in the UK or abroad or if it happens in Northern Ireland. Imagine a parent who has had their child taken from them and who may believe that they are still in the UK. How a parent who is in the middle of such a traumatic experience can be expected to cope without advice, support and representation beggars belief. To distinguish between children abducted abroad and children abducted in the UK is perverse in the extreme. No one should be placed in that position without access to support, advice and representation, and I urge the Minister to accept the amendment.

Andrew Slaughter (Labour, Hammersmith)

I echo what my hon. Friend says about her amendment, and I think that my hon. Friend the Member for Stretford and Urmston will in a moment speak to the amendment standing in her name. The amendments in this group all concern private family legal aid matters, but they are discrete, and I will restrict my comments to the three that are in my name. I hope that what the amendments have in common is that they are positive proposals. They are relatively technical but, I hope, helpful.

I shall first deal with amendment 190. The Bill contains provisions that amend the Matrimonial Causes Act 1973, to give individuals the right to apply to a court for an interim lump sum to help them to cover the costs of legal advice and representation during divorce and separation. That move is welcome, and it will help to ensure that the financially weaker member of a couple is able to apply for such a lump sum to cover their legal costs, guaranteeing equality of arms. At the moment, however, the Bill does not provide legal aid to enable the financially weaker party to make an application for such a sum. Such provision seems to us to be entirely logical and sensible and the purpose of the straightforward amendment is to add it to the Bill. I hope that the Government will accept the amendment.

Amendment 191 takes us back to mediation in, I hope, a positive way. As we have heard, mediation will continue to receive funding under the Bill. That is welcome, but although mediation is a highly valuable non-court option it is not suitable for all cases. When mediation fails or is deemed unsuitable by the mediator, neither party will be able to choose other publicly funded non-court options, such as collaborative law, which I shall come on to in a moment, or to obtain publicly funded legal representation to continue negotiations and ultimately pursue their claim in the courts, if required.

The amendment sets out narrow circumstances in which other options may be made available. It states that prior to commencing mediation the mediator must assess both parties to decide whether mediation is suitable. Mediation requires both parties to voluntarily agree to take part. Mediation can be effective when both parties voluntarily enter into it in good faith and demonstrate a willingness to listen to and consider each other’s views, but if one party is not properly engaged with the process, it is unlikely to work, and might fail.

Many couples have significant issues relating to their children and their finances that are not easily resolved in mediation, and often one party simply refuses to mediate. For example, mediation is unlikely to succeed in a contact dispute in which there are no allegations of domestic abuse and the parent with residence fails to properly engage in a voluntary dispute resolution process. Even if a compromise is reached, if it is not converted into a court order, there is often little chance that the parent with residence will adhere to its terms.

Under the Bill, once mediation has failed, the non-resident parent will have no way of pursuing the other party in the courts, save appearing before the court in person. When mediation has failed, or is assessed as unsuitable, it should be possible to continue negotiations via solicitors, because the overwhelming majority of cases are settled without recourse to the courts, many of them through negotiations conducted by lawyers. It is a small minority that end up at trial, and therefore, where appropriate, public funding should be made available for that.

With no expert legal advice on law and procedure available, some parents will be forced to leave issues unresolved, which is often not in their best interests or those of their children. For example, if non-resident parents do not pursue legitimate contact applications, their children often lose contact with them. Others will be forced to use the courts without legal representation, in proceedings issued either by them or the other party. One party might pay for legal representation privately, while the other is unable to afford it. A parent who has no contact with their child and whose ex-partner refuses to co-operate in or to attend mediation, will be expected to conduct their own application for contact with the child. Finally, many will be put off by the idea of representing themselves even if the courts improve their ability to deal with litigants in person, which seems doubtful. People will simply not progress their rights if they cannot obtain legal representation, because they will feel unsupported or they lack the confidence or skills to represent themselves. Research by the Rights of Women organisation shows that 73% of its survey respondents were reluctant to represent themselves in family law issues. The net result is that, if cases are pushed into mediation, success rates will worsen and the whole process will be undermined.

Amendment 220 deals specifically with the issue of collaborative law, inserting it as an alternative. Collaborative law, although I am not familiar with it, is a recognised alternative method for resolving family disputes outside court that could offer another workable alternative to the court process for legally aided parties and another opportunity to reduce the number of cases taking up court time.

In the collaborative process, each party appoints its own lawyer and, instead of a series of negotiations by letter or telephone, the lawyers and their parties seek to resolve matters in several face-to-face meetings. Each of the parties has their lawyer by their side throughout the process and so benefits from legal advice as they proceed. Both parties sign an agreement at the outset, confirming that, if the process fails and the couple decide to pursue their claim through the court, those representing them must withdraw and new legal representatives be instructed to represent them in the court process. Family lawyers wishing to offer the process must attend specialist training. The skills required and the techniques employed by collaborative lawyers are similar to those used by mediators in mediation. Many lawyers who have LSC contracts have already trained as collaborative lawyers.

The family justice review panel investigated collaborative law and referred to it in the interim report. In the executive summary, the panel refers to collaborative law as

“another form of accredited dispute resolution”,

in addition to mediation, which could be offered to parents as an option. Advantages of the collaborative process over mediation are that the parties can receive legal advice throughout and that the lawyers assist with the drafting and submitting to the court of the consent order once agreement has been reached.

The collaborative process should be available to all. Currently, legal aid is not available for the process, denying people requiring publicly funded representation in private family law cases access to the collaborative option. Unless the same information on available processes is offered to clients seeking public funding, they are not getting equal and proper access to justice. In preserving parenting relationships and avoiding parental conflict, the use of the collaborative process is just as effective in encouraging effective co-parenting as other forms of alternative dispute resolution, and might be more effective than some.

In 2008, Resolution commissioned a survey of collaborative family law, covering the two previous years, and respondents represented 30% of the then trained collaborative lawyers. The research showed that, where clients would be suitable for either mediation or the collaborative process, some would choose collaborative law over mediation because they felt that it could offer more support if their lawyer was there beside them when the issues were discussed.

Some respondents who carried out publicly funded work report that they had clients eligible for public funding whose cases would have been suitable for the collaborative process had public funding been available. Many lawyers undertaking legal aid work in private family cases with clients who are suitable for collaborative law are unable to act for them as collaborative lawyers solely or mainly because legal aid is not currently available for the process. In conclusion on that amendment, as the Government are promoting mediation so heavily as an alternative dispute resolution, why have they not considered collaborative dispute resolution as an acceptable alternative?

Those are three, I hope, positive, clear and distinct issues that we wish to raise in the process of amending—not overturning—the Government proposals on private family law. I hope that the Minister will respond positively.

Kate Green (Labour, Stretford and Urmston)

I wish to speak to amendment 231, which stands in my name and concerns the provision of legal aid when civil legal services, including conveyancing, are provided when giving effect to an agreed settlement of a family dispute.

I hope that the Minister will consider what I say carefully. For the avoidance of doubt, I do not intend to press the amendment to a vote, but there is an inconsistency. Those who go through mediation and reach a settlement of a family dispute then have access to legal aid to give effect to other aspects of the settlement reached. For example, legal aid might be available for them to carry out any conveyancing in respect of any agreement about property.

Kate Green (Labour, Stretford and Urmston)

We have a situation that is anomalous and creates a perverse incentive, which I am sure the Minister will want to consider. Under the current provisions in the Bill, legal aid will be available for mediation provided in relation to family disputes and civil legal services provided in connection with the mediation of family disputes. That would, for example, include conveyancing services where they are provided in the course of giving effect to arrangements for the resolution of family disputes, and where they have been in relation to the dispute under the arrangements made for the purposes of this part of the Bill.

The anomaly is that where settlement is reached without mediation, legal aid is not available, even for conveyancing services that are provided to give effect to the arrangements that have been arrived at, but that as funding is available for the mediation itself, it would arguably create an incentive for cases that could be settled without mediation and simply between the two parties ending up being sent to mediation and unnecessarily attracting the additional costs to the public purse, simply because they would attract legal aid funding. It would also of course build in a delay in the successful settlement of such disputes. So the amendment is designed to extend the availability of legal aid services that have been provided to give effect to agreed settlements, including conveyancing services. It would remove the incentive to refer cases to mediation unnecessarily, while retaining the incentive to refer cases to mediation where settlement is otherwise unlikely. It would also, of course, create an additional incentive to settle, even in the absence of mediation.

I do not intend to press the amendment to a Division, but I hope that the Minister will consider the perversity in what is provided and seek to ensure that those who are able to arrive at settlements of their family disputes without the need for mediation are treated in the same way as those who have taken the mediation route when it comes to giving effect to such agreements.

Jonathan Djanogly (Conservative, Huntingdon)

This rather lengthy group of amendments concerns legal aid for private family law cases, with the general theme of increasing the scope of legal aid so that more cases—in the case of some amendments, many more cases—would be covered.

I want to speak first to amendment 162, which seeks to keep all family disputes as a category within the scope of legal aid. That would completely undermine our targeted approach to legal aid reform. We have to reduce expenditure on legal aid, but we also want less reliance on litigation as a means of solving problems. We have to make tough choices and target legal aid on those who need it most. The amendments also go against the shared view in the House that savings to family legal aid must be made. The hon. Member for Hammersmith, for example, has previously made it clear that the Opposition would now be making cuts to private family legal aid if they were in power.

We have sought to prioritise legal aid for the cases where there is the greatest risk of harm and where it is most needed—for example, for domestic violence remedies or child parties. The amendments, however, would retain funding across the board, without regard to relative priority and alternative methods of resolving disputes, and would lose an estimated £170 million of annual savings.

I remind the Committee that after the changes we will still be spending £120 million a year on funding for private family law, including domestic violence. We will be spending an extra £10 million a year on mediation, and exceptional funding will be available where required for out-of-scope cases. The total funding for all family legal aid including public family cases will still be well over £400 million. Although money is important, I appreciate that it is not only about the money. The Government believe that the approach to, and the culture of, litigation in this country must change. The family justice review will make its final recommendations later this year, and it has indicated a clear direction of travel towards a family justice structure that directs people at every stage towards resolving their disputes without recourse to litigation. We will retain legal aid for mediation, which we think is the best way for couples to resolve their disputes; but continuing to fund lawyers for all family disputes, and funding parties to take their disputes through the courts, cannot be the answer.

Karl Turner (Labour, Kingston upon Hull East)

The Minister mentions the family justice review, which will present its conclusions in the near future. Would it not be better for the Government to wait until the review has been completed?

Jonathan Djanogly (Conservative, Huntingdon)

I am pleased to confirm that the Ministry of Justice has been working closely with the review team, so the policies that are being put in place by the Government were created in conjunction with the workings of the review team. I hope that will minimise conflict between the two parties.

Amendment 191 essentially seeks to retain legal aid for cases in private family law proceedings where mediation has failed or has been deemed unsuitable. Given that we already require both privately paying and publicly funded clients to consider mediation before bringing proceedings, it is difficult to see how this would change the status quo. We would end up retaining legal aid for all or most family cases, so the arguments that I have just outlined would apply. It might also actively discourage people from trying to succeed with mediation if a failed mediation were to become the route to legal aid.

Amendment 231 also relates to mediation, and proposes that legal help should be available in family cases in order to give effect to a settlement that is reached without recourse to mediation. As I understand it, the intention is to allow access to legal aid for conveyancing and drawing up a financial agreement or similar formal steps, as well as attendant advice, for those people who are able to reach an agreement themselves without funded mediation. The suggestion is that this would be cost-effective by reducing the demand for unnecessary mediation, where the main purpose is simply to seek the legal services that go with mediation.

Although I have some sympathy with the intention to encourage the resolution of problems outside court in a cost-effective way, I fear that the proposal is impractical. It would be very difficult to limit, and there is obvious scope for claims that some sort of agreement was in place in order to access legal advice. We think that the likely cost would be at least £10 million a year. There follows the question whether we should focus legal aid resources on people who can reach agreement themselves without the need for either a lawyer or a mediator, and the Government think not.

Amendment 220 seeks to make legal aid available for collaborative law as well as mediation in private family cases, and I note that the hon. Member for Hammersmith asked why that is not in the Bill. The Bill does not exclude the possibility of funding collaborative law, because clause 7 refers to funding

“mediation and other forms of dispute resolution.”

The amendment is accordingly unnecessary in so far as it sets out to make it possible for, as opposed to requiring, funding to be made available for collaborative law.

We would not rule out the funding of collaborative law to some extent at some point. However, because it involves two lawyers rather than one mediator, with all the costs that that entails, we do not plan to fund it at this stage, bearing in mind its current uncertain value for money and the reductions that we need to make to the budget. To the extent that the amendment seeks to require funding to be available, we must resist it.

Amendment 217 seeks to extend the availability of legal aid funding to cover measures to prevent purely domestic as well as international child abduction. We initially proposed that legal aid would remain to secure the return of a child who had been abducted overseas. After listening to consultation responses, however, we have decided to extend it to cover prevention of abduction in such cases, for example for a prohibited steps order. That makes sense on the basis of the complexity, the cost and the consequent practical disadvantages involved in dealing with a foreign jurisdiction. I hope the hon. Member for Makerfield is pleased with that.

Dave Watts (Labour, St Helens North)

The Minister may have pre-empted my question, because it seems somewhat strange that, if a child is seized in the UK by a parent without care, under the original proposals there would be no legal aid assistance for the other parent to bring the child back, but if the parent without care took the child out to, for example, Pakistan, or somewhere else, there would be funding. It seems strange that we would fund the second case but not the first. But the Minister seems to be guaranteeing that that is not the case.

Jonathan Djanogly (Conservative, Huntingdon)

No, I think the hon. Gentleman misinterprets what I said. There is a difference between foreign and domestic. If preparation needs to be made in this country in relation to potential foreign abduction, we have decided that legal aid should apply. The position is different domestically.

We do not consider purely domestic cases to raise the same difficulties as international abduction cases, because a resident parent would not be dealing with a foreign jurisdiction. Seek and locate orders, which are commonly employed in cases of children being removed within the jurisdiction without the other parent’s consent, are relatively straightforward to obtain. Many domestic agencies, including the police, can be engaged in trying to retrieve a child without the need for proceedings in court. If domestic violence or child abuse, and so an additional risk factor, is involved, legal aid would be available.

Dave Watts (Labour, St Helens North)

Any abduction in the UK starts with a domestic abduction, which may lead to abduction abroad. It seems to be more sensible that funding for legal aid should be available at the first stage, when the child is seized, rather than waiting for the child to be taken out of the country, which would be far more expensive and far more troublesome.

Jonathan Djanogly (Conservative, Huntingdon)

I have explained the proposed position.

Helen Goodman (Labour, Bishop Auckland)

I am puzzled by what the Minister has said. I have only ever dealt with one such case, but in that instance I found that the police were unwilling to act until there was a court order. Is the Minister saying that that should not generally be the case? If so, how will he ensure that it is implemented fully and properly across the land?

Jonathan Djanogly (Conservative, Huntingdon)

I cannot talk about specific circumstances, but the domestic position is clearly different from the international one.

Jessica Lee (Conservative, Erewash)

If a child goes missing in this country, the police, who have far-reaching powers, can go and find them, but does the Minister agree that the concern is that if a child is moved outside of that jurisdiction, there are the added complexities of other jurisdictions, international organisations, and so on, being involved? That is when legal expertise is required to seek and find that child.

Jonathan Djanogly (Conservative, Huntingdon)

I thank my hon. Friend for making the position clearer.

Amendments 155 to 158 would keep legal aid for all parties in private family cases in which the court has made a child a party to the case. The Government, of course, intend to keep legal aid for child parties in such circumstances. We do not accept, however, that, as a matter of routine in cases in which a child requires representation, adult family members should also get access to legal aid. Just because a child needs to be represented, it does not follow that the case would be so complex as to require representation for all parties. Of course, by their nature, some cases will be complex, as in the examples that many of us know, and in some circumstances people will not be able to represent themselves. The exceptional funding scheme will ensure that legal aid will be available where required—those cases in which people genuinely could not manage by themselves, and in which a failure to provide legal aid would be likely to breach an individual’s right to legal aid under the Human Rights Act 1998 or EU law.

Amendments 142 and 190 seek to make legal aid available to eligible applicants in ancillary relief and corresponding civil partnership proceedings who wish to apply to the courts for an order for the other party to fund or pay towards their legal costs in the proceedings. As the amendments anticipate, we propose to make changes to court powers in ancillary relief cases and the equivalent proceedings relating to dissolution of civil partnership in order to enable the court to make orders for payment against a party who has the means to fund the costs of legal representation for the other party. In other words, although legal aid will no longer be available for such cases unless domestic violence is present, there will be an option in some ancillary relief cases for a measure of funding to be made available by one party to the other. We accept that that will not apply in all cases; nor should it, as most cases do not present a need for extensive legal representation. Nevertheless, it will provide a route for private funding of legal costs in some cases where it is appropriate to the need and the available resources.

We have considered whether funding should be available for applications for and the enforcement of such orders for payment. We appreciate that in some cases, there will be disagreements about the amount of assets available to the party being asked to fund both sets of legal representatives. However, we do not think that it will be necessary to go into extensive and expensive detail about the other party’s assets at the application stage. The power is designed to be flexible and to allow for staged orders or orders covering specific arguments or points in the proceedings. It is not necessary to cover in one application every possible argument for the entire proceedings.

It will be readily apparent whether the other party can afford to fund his or her own legal representation, and basic factual information about the couple’s standard of living before their break up and the other party’s job or other declared sources of income or assets, as well as any available bank statements and so forth, will be relatively straightforward to collate, particularly as standard disclosure of such matters is required from both parties before the first appointment in the proceedings. That information is likely to be sufficient to enable the argument, for example, that the other party is being less than forthcoming about their available assets and that it is appropriate for them to provide funding for initial argument about those assets. If appropriate, further applications can be made subsequently to cover later stages of the proceedings.

In some cases, the party seeking the order may have a solicitor working for them on a contingency basis, on the expectation that the order will be granted. In any event, it would be inconsistent to provide legal aid for the purposes of disclosure, or other issues relating to application or enforcement, in such cases but not in other ancillary relief cases where the issues are similar and we do not consider it appropriate to maintain legal aid funding. Essentially, it should be within the capacity of most litigants in person to explain their former partner’s basic financial position to a judge and point to relevant evidence. In very exceptional cases where that is not at all possible and the applicant has no form of advice or assistance and no means of securing it, exceptional funding might be available if funding is necessary to avoid a breach of the Human Rights Act or EU law. I urge hon. Members to withdraw their amendments.

Andrew Slaughter (Labour, Hammersmith)

I am disappointed by the Minister’s responses, particularly in this case, as he has misrepresented the position that we set out clearly. He is right that we have not maintained throughout the process that we wish a wholesale restoration into scope of private family law. We accept, as we have accepted throughout, that savings must be made from the legal aid budget. However, there are crudities and problems with how the Government have gone about it, and we have sought—I thought in a positive way—to perfect the proposals with relatively minor but important changes, in the spirit that the Government have adopted in relation to considering alternative dispute resolution and in ways that would make the system work better for those party to it without costing a great deal more money. However, he has chosen not to accept that, which does not come as much of a surprise.

I will not press all three of my amendments to a vote, although my hon. Friends may wish to do so; I will leave that to them to determine. I will not press amendments 190 and 220. However, in amendment 191, we are making a clear point that the circumstances for mediation should be narrowly defined and controlled. The mediation system has the potential to be misused, or at least used in a way that to all parties—certainly to a trained mediator—is clearly inappropriate. The Government’s answer to that is, “Well, that is tough.” Either nothing happens and the issue remains unresolved: one party becomes the victim to the other or one party tries to get into court as a litigant in person. All of those are very unsatisfactory answers and I hoped for a slightly more constructive response to that but we did not get it.

Yvonne Fovargue (Labour, Makerfield)

I am sorry to say that I find the Minister’s response somewhat unsatisfactory and unconvincing. The fact that we are not dealing with a foreign jurisdiction does not make English law simple to deal with when people are in a particularly stressful situation. It seems perverse that parents can get assistance when the child is being taken abroad, but not when it is taken to the other end of the country. To give the parent an extra hurdle to prove that they cannot manage without support, to make it exceptional, in a circumstance like that, which I would have said was exceptional in any case, is perverse. I shall therefore press my amendment to a vote.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I beg to move amendment 163, in schedule 1, page 100, line 4, at end insert

‘or where an allegation is made that B has been abused by A or is at risk of being abused by A’.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this it will be convenient to discuss the following: amendment 229, in schedule 1, page 100, line 33, at end insert—

‘(c) the Director of Legal Aid Casework shall be entitled to determine whether A has been abused by B or to be at risk of being abused by B on the basis of evidence that he considers sufficiently compelling to make such a determination.’.

Amendment 164, in schedule 1, page 100, leave out lines 35 to 38.

Amendment 218, in schedule 1, page 100, leave out lines 35 to 38 and insert—

‘“abuse” means any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality;’.

Amendment 165, in schedule 1, page 100, line 35, leave out ‘physical or mental abuse’ and insert

‘any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)’.

Amendment 166, in schedule 1, page 101, line 26, leave out ‘(“A”)’.

Amendment 167, in schedule 1, page 101, line 28, leave out ‘other than A’.

Amendment 152, in schedule 1, page 101, line 40, at end insert—

‘(1A) Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1).’.

Amendment 153, in schedule 1, page 101, line 40, at end insert—

‘(1B) Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances).’.

Amendment 154, in schedule 1, page 101, line 40, at end insert—

‘(1C) Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10.’.

Amendment 230, in schedule 1, page 102, line 4, at end insert—

‘(7) For the purposes of this paragraph, the Director of Legal Aid Casework shall be entitled to determine whether a child who is or would be the subject of the order is at risk of abuse from an individual other than A on the basis of evidence that he considers sufficiently compelling to make such a determination.’.

Amendment 100, in clause 10, page 7, line 25, at end insert—

‘( ) But the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—

(a) the individual has been admitted to a refuge for persons suffering from domestic abuse,

(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or

(c) an assessment for the purpose of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse, and in this subsection “domestic abuse” means abuse of the kind to which paragraph 10(1) of Schedule 1 relates.’.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I will deal first with amendment 163. In schedule 1, on page 100 at line 4, where it says:

“where A has been abused by B or is at risk of being abused by B”,

I want to insert:

“or where an allegation is made that B has been abused by A or is at risk of being abused by A”.

I will come on to definitions later. There has been a great deal of unhappiness about the strict definition of domestic violence in the operation of these provisions.

Amendment 164 seeks to delete lines 35 to 38 on that same page, which contain the Government’s version of abuse, which is a definition which I certainly do not sign up to. More importantly, the Bar Council, the Association of Chief Police Officers and others do not sign up to it.

Amendment 165 would leave out “physical or mental abuse” from schedule 1 on line 35 of page 100 and insert

“any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional).”

The Bar Council in particular argues that in paragraph 10, the Bill uses a narrow definition of domestic abuse, which it believes is inconsistent with that used by ACPO. The definition that ACPO adheres to is:

“Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults, aged 18 and over, who are or have been intimate partners or family members, regardless of gender and sexuality…Family members are defined as mother, father, son, daughter, brother, sister and grandparents, whether directly related, in-laws or step-family.”

The proposed definition in amendment 165 would bring the Bill’s definition in line with ACPO’s.

The remainder amendments, which are amendments 166, 167, 152, 153 and 154, speak to the same subject. Amendments 166 and 167 are consequential amendments. Amendment 152 would insert the following to paragraph 11:

“(1A) Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1)”

Amendment 153 would insert the following:

“(1B) Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances)”

Finally, amendment 154 would insert the following to paragraph 11:

“(1C) Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and ‘family relationship’ has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10”

The reason for the amendments is that it is not understood why, under schedule 1, the provision of legal aid is limited to provisions relating to the children, and not the associated financial remedy proceedings linked in with the children. Surely, the child’s economic welfare is vital in abuse cases, particularly given the higher incidence of abuse in low-income households.

The Bar Council’s amendments would bring within scope, first, proceedings leading to an order under section 37 of the Children Act 1989, in other words, directing investigation where a care or supervision order may be appropriate; and secondly, all subsequent steps in family proceedings once a section 37 order has been made. The amendments would also ensure, like those proposed for paragraph 10, that the person against whom allegations of abuse are made is within scope. They would be important additions to the Bill, and I would be interested to hear what the Minister has to say in his response.

Kate Green (Labour, Stretford and Urmston)

First, let me associate myself with the comments of my right hon. Friend the Member for Dwyfor Meirionnydd and, in particular, with my amendment 218, which covers substantially similar ground to the amendment tabled in relation to the definition of domestic violence. I wish to take the discussion a little further. The purpose of my amendment is to align the definition of abuse for the purposes of the gateway to legal aid for victims of domestic abuse involved in private family law matters relating to children and finances with that adopted by the Association of Chief Police Officers, as my right hon. Friend has also sought to do.

Anyone who has looked at what the Government are proposing in respect of the definition is at an absolute loss to understand why they will not just accept the ACPO definition. It is now well established and understood and, as a result, means much less scope for argument and delay in the courts while people establish whether they fall within the particular definition. There is now good case law and history to be made clear about what does or does not constitute abuse within the ACPO definition. If Ministers believe that the definition that they are proposing for the Bill covers the same ground as the ACPO definition, why not just adopt the ACPO definition? If they consider that it will do something different from the ACPO definition, I should like to understand why they consider that something different is appropriate when it comes to domestic abuse in relation to the provision of legal aid.

The Minister is nodding, so perhaps he will offer some clarification on such matters. I have to warn him that there has been no endorsement of the differentiation in matters of legal aid from any of the organisations that have contacted us about it. I am sure that they have contacted those on the Treasury Bench, too. Perhaps the hon. Member for Ipswich can tell me one that has.

Ben Gummer (Conservative, Ipswich)

I wish to repeat the comments of several family barristers in my constituency, who said that they were very much happier with the new definition and were content with it.

Kate Green (Labour, Stretford and Urmston)

It is a pity that those family barristers did not take the trouble to submit written evidence to the Committee; then we would probably understand their arguments. Organisations that have worked in such an area for many years and campaigned particularly hard to have domestic violence taken with the seriousness that it deserves have made it absolutely clear that the ACPO definition is the right definition to use, that it is well understood and well established, and that they would prefer the legislation to go in that direction.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I wish to make the general point that there are good barristers and there are bad barristers.

Kate Green (Labour, Stretford and Urmston)

I bow to the right hon. Gentleman’s superior professional knowledge.

The Minister appears to believe that there will be an explanation. It will be an explanation that I very much looking forward to hearing, and I am sure that the many organisations that have been in contact with us will want to consider it with great care, too.

My hon. Friend the Member for Kingston upon Hull East will be discussing other concerns, as indeed has the right hon. Member for Dwyfor Meirionnydd, in relation to what evidence the Government actually take in respect of determining that domestic abuse has been present, and some real concerns have been expressed about the narrowness of the way in which they are approaching the matter. It is also unclear from the Bill whether there will be provision for legal aid for victims to obtain the initial legal advice and to get the warning letter sent to their abusers, which will be a prerequisite of getting into some of the situations that the Bill suggests will be recognised within the ambit of the definition of domestic abuse. It is important that the Minister clarifies whether legal aid will be available in relation to such warning letters; otherwise, only those cases where the risk of violence poses an immediate danger necessitating a same-day application report for an injunction will receive legal aid.

The Minister will also be well aware of the significant under-reporting of domestic violence. Indeed, a survey undertaken by Rights of Women and shared among members of the Committee showed that the majority of women had not reported domestic violence to the police or other authorities. Given that much of the way in which the policy will be applied will come through under regulations, it is important that Ministers think widely about the evidence that they will regard as acceptable to show that domestic abuse has taken place. That could include not just the non-molestation orders and legal actions that are proposed in the Bill, but evidence that someone has accessed domestic abuse services, a rape crisis centre, a women’s refuge or other similar organisations in the community, or help from social services, or, for that matter, where a mediator has determined that a case is not suitable for mediation because of the presence of domestic abuse. I look forward to hearing the Minister’s comments on the willingness of the Government to take a wider range of evidence in relation to domestic abuse.

I also highlight for the Minister that we know there is a particularly high risk of domestic abuse taking place when a woman is pregnant, or shortly after the birth of a new baby, or—more pertinently perhaps for the Bill—at the point of separation and particularly when child contact matters are in dispute. It is therefore particularly important that, where there is already additional tension and difficulty in a family, we make certain that there is proper legal advice to ensure that the best interests of all family members, but especially the children, are properly protected.

I hope that Ministers will revisit the domestic abuse proposals to ensure that they do not increase the obstacles faced by victims of domestic abuse seeking help, that they ensure that victims are able to obtain legal aid for early advice on intervention, and that there is absolute clarity about the definition of domestic abuse, which is well understood, well accepted and will serve to cut through a great deal of delay and uncertainty for those who are experiencing this particularly nasty form of violence.

Karl Turner (Labour, Kingston upon Hull East)

Amendments 229 and 230 give the director of legal aid casework the leeway to decide whether abuse has occurred for the purposes of awarding legal aid. Amendment 229 would insert the following:

“the Director of Legal Aid Casework shall be entitled to determine whether A has been abused by B or to be at risk of being abused by B on the basis of evidence that he considers sufficiently compelling to make such a determination.’.”

The amendment affects paragraphs 10 and 11, which lay down the circumstances in which legal aid may be provided for private, or family and children cases. As it stands, the provisions allow legal aid in cases of:

“Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where A has been abused by B or is at risk of being abused by B.”

Paragraph 11(1) states:

“Civil legal services provided to an adult (“A”) in relation to the following orders and procedures where the child…is or would be the subject of the order is at risk of abuse from an individual other than A—”.

The list of orders and procedures follows.

The provisions leave open the means by which it is determined whether A has been abused by B or is at risk of being abused by B, and where the child is or would be the subject of the order is at risk of abuse from an individual other than A. It is intended that the means of determination will be set out in regulations by the Lord Chancellor, as I understand it. My concern is that that is too rigid. The Government have stated that for the purposes of clauses 10 and 11 of the Bill, it will require objective evidence that the conditions are met and that the evidence must satisfy at least one of the criteria—I think there are seven criteria in all—which are essentially protective injunctions which are either in place or have been in place within the past 12 months.

In relation to abuse of adults, there are multiple objections to making those exclusive grounds for establishing abuse or the threat of abuse. Victims of domestic violence or domestic abuse are very often reluctant to report abuse to the police or, for that matter, in my experience, to any agency, whatever it might be. They may be unwilling to make public their private suffering for fear of further reprisals or to protect others, such as the children in that family. I am sure that hon. and right hon. Members on both sides of the Committee will appreciate that genuine and perhaps dangerous incidents of domestic violence will go on as a result of the proposed legislation, and I have no doubt that that is not the Government’s intention.

The Government’s refusal to accept an undertaking by a party to civil proceedings not to commit acts of abuse may, in many cases, aggravate domestic violence. Evidence such as a finding of fact or a criminal conviction would be necessary to satisfy the criteria as set out. It makes no sense for eligibility for legal aid under paragraphs 10 and 11 to be dependent on taking unnecessary and, in my view, very divisive legally aided proceedings under paragraph 9, which will burden the police or social services, perhaps unnecessarily. The amendment would allow prima facie evidence, such as police reports, hospital admissions, GP reports, evidence from refuge centres or undertakings in domestic violence cases, to be used.

Amendment 230 would insert:

“the Director of Legal Aid Casework shall be entitled to determine whether a child who is or would be the subject of the order is at risk of abuse from an individual other than A on the basis of evidence that he considers sufficiently compelling to make such a determination”.

With regard to incidents of child abuse, it must be said that similar objections arise. As it stands in the Bill, an adult seeking a residence order would not be eligible for legal aid, even if they had evidence of previous abuse, unless they could satisfy one of the conditions. It just does not seem right.

I respectfully submit that the Government should consider the position for the reasons given by the right hon. Gentleman whose constituency, despite your earlier warning, Mr Sheridan, I have absolutely no chance of pronouncing, and by my hon. Friend the Member for Stretford—I can manage that. [Interruption.] I cannot manage the second part of it. Is “Urmston” correct? It will do. I respectfully suggest that the Government consider the provisions very carefully.

Andrew Slaughter (Labour, Hammersmith)

I shall speak briefly, because my three colleagues have covered the amendments very well. This subject, along with clinical negligence, is the area that the Government struggled with when they responded to the consultation responses. They made some concessions, which were welcome, but they did not go far enough. As was highlighted by the amendments in the group, first, there is a question of definition. Notwithstanding the comments from the Government Benches, there is very wide and broad agreement that the ACPO definition is a sensible one. That is certainly the conclusion that the right hon. Member for Dwyfor Meirionnydd and my hon. Friend the Member for Stretford and Urmston reached with their amendments.

Secondly, the question of making domestic violence the gateway to legal aid in both private children and financial matters cases has been a thorn in the Government’s side. Such a provision—and all the baggage of perverse incentives that comes with it—is unseemly in restricting and funnelling access to legal aid through the medium of violent behaviour. That point is similar to the one made about complex cases, to which we shall probably return when we discuss welfare benefits. In such cases there might be a reason for providing legal aid in one respect, but that deals with only part of a legitimate claim. The Government have failed to deal with such inflexibility.

Thirdly, my hon. Friend the Member for Kingston upon Hull East made a point about the other so-called objective tests, which effectively require victims to jump through a series of procedural and legalistic hoops—it is almost a Catch-22 situation. Only in a very few cases will people arrive at a position from where they can prove sufficiently to obtain legal aid. One of the corollaries of that is the question of undertakings. It is a long time since I practised family law, but I suspect that in the vast majority of cases—there are other more expert people in Committee so I had better be careful what I say—the family courts would be unable to cope were it necessary in every case to prove violent incidents rather than to accept undertakings. That is another important matter that the Government have failed to deal with.

Again, we are not asking for the baby to be thrown out with the bathwater; we are asking for a sensible review to meet the facts on the ground in domestic violence cases. There has been a move forward in dealing with such cases in both criminal and civil law over the past 20 years, and domestic violence now courts a much greater appreciation by the police and prosecuting authorities, and a much more responsive attitude by the family courts. The provision goes against the grain of all that, which is why there is such concerted opposition to it. We need the Government simply to reconsider the measure in the context of the amendments. I shall leave it to my hon. Friends to decide which amendments they wish to press to a vote, but the matter needs further attention if we are to avoid undoing a great deal of good work that has been done in tackling domestic violence.

Jonathan Djanogly (Conservative, Huntingdon)

This substantial group of amendments relates to legal aid for private family law cases involving domestic violence and private law children cases involving children at risk of abuse.

I shall speak first to amendments 100, 229 and 230. Amendment 100 would set out in the Bill three sets of circumstances that would be accepted as demonstrating the fact of domestic violence for the purpose of qualifying for legal aid in private family law cases. Amendment 229 would provide for the director of legal aid casework to determine whether a person has been abused by the other party in a case or is at risk from them

“on the basis of evidence that he considers sufficiently compelling to make such a determination.”

Amendment 230 would provide for the director of legal aid casework

“to determine whether a child who is or would be the subject of the order is at risk of abuse”

on the same basis.

The domestic violence exceptional gateway, as it were, is a difficult balancing act for the Government. On one hand, we want genuine victims of domestic violence to receive the benefit of legal aid in cases in which they will face their abuser as the other party; on the other, we heard many concerns during consultation that such proposals might cause a rise in unfounded allegations. We want to guard against that.

We need clear, objective evidence of domestic violence to target legal aid on genuine cases in which the victim needs assistance. Such people will need assistance because of the history of abuse and the risk of further abuse by the other party, and the effect that that may have on the victims’ ability to conduct proceedings.

Forms of evidence that will be accepted for that purpose are not set out in the Bill; instead, they will be set out in regulations under clause 10. We believe that it is appropriate to set out such detailed provisions in secondary rather than primary legislation. We listened carefully to views expressed in response to the consultation about what should be accepted as evidence of domestic violence and, as a result, we have widened the criteria originally suggested. Legal aid will be available for victims of domestic violence in private family law cases in which one of those criteria is met.

The first criterion is that a non-molestation order, occupation order, forced marriage protection order, or other protective injunction against the other party is either in place or has been made in the past 12 months. The second is a criminal conviction for a domestic violence offence committed by the other party against the applicant for funding, unless the conviction is spent. The third is that there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding. The fourth is that the applicant for funding has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence and a plan has been put in place to protect them from violence by the other party. The final criterion is that there has been a finding of fact in the family courts of domestic violence by the other party, giving rise to the risk of harm to the victim.

Helen Goodman (Labour, Bishop Auckland)

Opposition Members are extremely concerned about the criteria and the high hurdle that the Minister is setting. I am sure that he is familiar with the facts. The truth is that many women have suffered an average of, I think, 35 instances of abuse before they even go to the police to report, yet the Minister does not accept that hurdle. He is setting a hurdle that would require a far higher level of domestic violence to have already occurred, a level that is so high that there would already have been a court order. That is the main objection to the definition that he proposes in the Bill.

Jonathan Djanogly (Conservative, Huntingdon)

The hon. Lady has made her point. The criteria all avoid self-reporting and involve a significant level of state intervention, and so maximise the objectivity of the evidence for legal aid purposes.

I hope it will be helpful if I give the Committee some idea of the prevalence of those forms of evidence. About 24,100 domestic violence orders were made in 2010. About 74,000 domestic violence crimes were prosecuted in 2009-10 and there were 53,000 domestic violence convictions. About 43,000 victims of domestic violence were referred to multi-agency risk assessment conferences in the 12 months up to June 2010. Clearly, those numbers will overlap to an extent, but, to compare, the LSC funded legal representation in about 69,000 private family law cases in 2009-10, not including legal aid for a protective injunction.

I will address each of the circumstances proposed in amendment 100 in turn. We are concerned that to include admission to a refuge in the criteria would be to rely on self-reporting, as well as place pressure on those organisations that provide refuges. Their assistance may be sought with greater frequency if they have a role in triggering access to legal aid.

Kate Green rose—

Jim Sheridan (Labour, Paisley and Renfrewshire North)

Order. Interventions must be brief.

Kate Green (Labour, Stretford and Urmston)

Thank you, Mr Sheridan. Frankly, the Minister’s remarks are fanciful. Refuges are significantly over-subscribed and are already having to be quite stringent in relation to who they admit to their protection. The Minister is not presenting a realistic picture in that statement.

Jonathan Djanogly (Conservative, Huntingdon)

Again, the hon. Lady has made her point. We are not persuaded that medical professionals would be best placed to assess whether domestic violence has occurred. Although they may witness injuries, it may be difficult for them to determine how they occurred. Again, there would be a strong element of self-reporting, rather than objective evidence. Evidence from medical professionals could, however, depending on the circumstances and the assessment of a judge, lead to a finding of fact in the family courts that domestic violence has occurred, which would trigger funding. Moreover, of course, evidence of having entered a domestic violence shelter may similarly trigger a finding of fact.

Helen Goodman (Labour, Bishop Auckland)

I would be grateful if the Minister would describe to the Committee why he thinks self-reporting is not an adequate piece of evidence. What he is suggesting is that grown women are not capable of making clear and accurate reports. If what he is saying were right, how would the police ever know to investigate something if they needed some further objective evidence beyond the self-report of the woman?

Jonathan Djanogly (Conservative, Huntingdon)

I am not saying that a woman reporting a matter to the police should not lead to an investigation. It should and that may lead to objective evidence of what we need to hear in order for funding to be provided.

The reference in amendment 100 to the individual having obtained

“other professional services relating to the consequences of domestic abuse”

is very broad and vague. In that regard, the criteria proposed by the Government have been widened from those originally suggested, so that legal aid will be available where the victim has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence and a plan has been put in place to protect them from violence by the other party.

Dave Watts (Labour, St Helens North)

Will the Minister give way?

Jonathan Djanogly (Conservative, Huntingdon)

I will make some progress and then the hon. Gentleman can come in.

Those referrals can be made by a range of professionals. The third part of amendment 100 deals with cases assessed as being unsuitable for mediation on the grounds of domestic violence. Again, we consider that the criterion does not sufficiently establish the objective evidence of harm or the risk of harm calling for legal aid to be made available for protection. Under the pre-action protocol for mediation, information and assessment, which came into force in April, a person is not expected to attend a mediation assessment meeting where allegations of domestic violence have been made that have resulted in a police investigation or civil protection proceedings.

Dave Watts (Labour, St Helens North)

I do not know whether the Minister was going to get round to this issue, but will he say why he is inventing new criteria? Other criteria are used by the police. I gather from the logic of his argument that he thinks that the police’s criteria are wrong and that the police should change their criteria to fit in with the Government’s policy.

Jonathan Djanogly (Conservative, Huntingdon)

I will come on to the ACPO definition shortly, as the hon. Gentleman requests.

We do not consider that allegations of domestic violence in themselves would constitute clear objective evidence and nor would the fact of a police investigation without more evidence provide sufficient evidence for the purposes of legal aid, as the result of an investigation could be inconclusive or the police might determine that domestic violence has not in fact taken place.

Legal aid will be available where a non-molestation order, occupation order, forced marriage protection order or other protective injunction is either in place or has been made in the previous 12 months.

Kate Green (Labour, Stretford and Urmston)

Has the Minister made any assessment of the sort of reduction in the number of domestic violence cases that will qualify for legal aid that will result from the narrowing of his definition compared with what would have occurred under an ACPO definition?

Jonathan Djanogly (Conservative, Huntingdon)

I do not have that information to hand. I will write to the hon. Lady on that issue.

Regarding amendments 229 and 230, we have sought to be clear about the forms of evidence of both domestic violence and child abuse that will be accepted. We expect that there will be tens of thousands of applications each year for legal aid in those cases and in order to be able to grant funding quickly and minimise bureaucracy the criteria will need to be clear. Setting out the criteria in secondary legislation will enable greater transparency and consistency than would be the case if decisions were taken without evidential criteria. It is important to remember that legal aid will remain available for exceptional out-of-scope cases where it is required as a result of our domestic or international legal obligations, including article 6 of the European convention on human rights.

Amendment 163 would provide for legal aid to be made available for any private family law cases where there are allegations of domestic violence or a risk of domestic violence, as opposed to evidence of abuse or risk of abuse. Clear objective evidence of domestic violence will be needed in order to target legal aid to genuine cases without providing an incentive for unfounded allegations to be made. If we were to accept allegations of domestic abuse or the risk of abuse without requiring any objective evidence, we would expect there to be a significant increase in the number of allegations.

Amendments 164, 165 and 218 would put parts of the definition of domestic violence used by ACPO in the Bill, in paragraph 10 of schedule 1, in place of the existing definition of abuse or, in the case of amendment 164, simply remove the definitions of abuse so that the term is left completely open. The amendments also seem to allow any incident of abuse to be accepted as sufficient evidence of abuse for the purpose of qualifying for legal aid in a private family law matter.

I turn to the issue of the definition of abuse. The existing definition of abuse in the Bill is a broad one that is explicitly not limited to physical violence. It is used elsewhere in the Bill, in paragraph 3 of schedule 1, which provides civil legal aid for child abuse cases. The definition is intentionally flexible and enables funding to be given, where there is a genuine need, on the facts of the case. Let me confirm that the definition of abuse embraces mental abuse as well as physical abuse. It specifically includes neglect, maltreatment and exploitation. These references would cover, for example, abusive behaviour relating to family finances. We do not consider that the Bill definition will restrict the availability of legal aid in comparison with using the ACPO definition and therefore this part of the amendment is unnecessary.

Kate Green (Labour, Stretford and Urmston)

I have heard exactly what the Minister has said and therefore I wonder whether he could address the other part of my question: if he does not believe there will be any cases excluded under the Bill’s definition that would have been picked up by the ACPO definition, why not use the ACPO definition?

Jonathan Djanogly (Conservative, Huntingdon)

I have not said that. Let me finish what I am going to say and then perhaps the hon. Lady may wish to comment further.

I turn to the phrase “any incident.” Putting that phrase into primary legislation would effectively fetter the power to limit legal aid in private family law cases by reference to the level of abuse, providing someone could point to some sort of incident, regardless of whether—

Jonathan Djanogly (Conservative, Huntingdon)

Regardless of whether it was serious or minor, such that the victim would not generally feel inhibited in pursuing litigation against the other party. The touchstone for whether a party obtains funding must be whether the abuse was such as to inhibit their ability to present their case against the other party. The circumstances that would be accepted as evidence of the abuse will turn on the application by courts, prosecutors and other agencies of their existing criteria, which would generally reflect the cross-Government definition of domestic violence. It is where the courts and others have determined that abusive conduct is of a level that protective action or prosecution must be taken that the gateway will apply.

Before taking any intervention, I will help Members by explaining why the Government are using a new criterion of domestic violence from that of ACPO. The ACPO definition of domestic violence is designed to ensure that allegations of domestic violence are properly investigated—I repeat the word “investigated”. That is a different purpose and a different stage from the purpose of the criteria being proposed by the Government as evidence of abuse that calls for funding for legal representation.

Helen Goodman (Labour, Bishop Auckland)

I am afraid the Minister confirms exactly the concerns raised by the Opposition, namely that there has to have been a long history of abuse before a person would be eligible for legal aid. The question I would like to ask the Minister arises from he just said. He said this is a cross-Government definition. Will he confirm that he has agreed the definition with the Minister for Women?

Jonathan Djanogly (Conservative, Huntingdon)

The Bill is a Government Bill. If the hon. Lady turns to the back of the Bill she will see that it is being presented and supported by people including the Home Secretary.

Amendment 218 goes beyond amendment 165 in referring to the relationship between those involved. It would cover intimate partners or family members, regardless of gender and sexuality. That part of the amendment is unnecessary in any event; it duplicates paragraph 10(7) of the schedule. That relies on the definition of associated persons in the Family Law Act 1996, which is a wide one and would cover the relationships set out in the amendment.

I will now turn to the other amendments relating to private law children cases, such as disputes about custody, where a child is at risk of abuse. The amendments are to paragraph 11 of schedule 1, which provides for legal aid to be available in those cases for the party seeking to protect the child where there is objective evidence of risk of abuse. Amendment 152 would provide for applications for financial provision for children to be in scope for legal aid where the child is the subject of one or more of the measures listed in paragraph 11(1) of schedule 1. That list of orders is wide and includes contact and residence orders. The effect of amendment 152 would be that child maintenance applications would be in scope whenever a contact or residence order has been made.

The original legal aid proposals were silent on the issue of children at risk of abuse in private law children cases. We listened to concerns raised during consultation on that point. For example, one party might be seeking an order barring an abuser from unsupervised contact with the child. We agreed that child protection is an issue of great importance. We also recognised that it would be difficult for the protective party to act in person in cases of potential complexity and heightened risk to the child, requiring prompt and clear action. That is a separate rationale to the situation where the adult himself or herself has been subject to abuse such that he or she cannot be expected to represent themselves against their abuser. We do not consider that cases concerning financial provision are of equal priority, nor do they raise the same issues. Financial matters are of a lower objective importance than child protection, and we would not expect the protecting party to encounter the same level of complexity, still less a need for urgent protective action in a case about financial provision.

Furthermore, the person presenting the risk of abuse might not be the other party in the financial provision proceedings. Although protecting a child from abuse is clearly of high importance, it is not appropriate that, in a case for financial provision, which is a separate matter from the consideration of protective measures, a distinction should be drawn between maintenance for children considered at risk of abuse and maintenance for other children.

Amendment 153 would bring into the scope of legal aid the entirety of any proceedings in which the court was considering whether to direct the local authority to investigate the circumstances of the child. Under section 37 of the Children Act 1989, the court may make such an order if it appears that it may be appropriate for a care or supervision order to be made. The amendment appears to be unnecessary; in any event it goes too far. Under paragraph 1 of the schedule, legal aid will be available for public family law cases such as care and supervision proceedings, as at present. We believe that the state should ensure that families are able to challenge decisions made by public authorities about the provision of care for children. Orders under section 37 of the 1989 Act are considered to be public family law matters for legal aid purposes, and fall within the list of public law proceedings in paragraph 1 of schedule 1. Funding is therefore available in relation to the section 37 issues. There is no reason in principle why a case could not be adjourned briefly in such a situation to allow the parties to seek a legal aid lawyer for the section 37 issue, if that were warranted. Providers are able to use devolved powers to grant immediate funding in emergency situations, subject to means and merits-testing. The funding would be on only that point, rather than on the main subject of the proceedings.

Amendment 154 also references section 37 directions. The amendment would bring into scope any private family law proceedings that involved a child in respect of whom a direction under section 37 of the 1989 Act had been given, regardless of the outcome of that section 37 investigation. That is a remarkably broad proposition, which I do not think can be justified. Under the amendment, a section 37 order, regardless of the outcome of the investigation, would trigger funding for all parties in any private law family proceedings in which the child was involved. A section 37 order in itself does not mean that the child is at risk of abuse. The local authority staff could conclude, once they had completed their investigation, that the child was not at risk and that no further action was needed. If the local authority concluded that action was needed, it would put a child protection plan in place, which would be accepted as evidence that the child was at risk of abuse and would trigger funding for the party seeking to protect the child.

Providing for legal aid to be available for any family proceedings involving the child, as amendment 154 would do, would mean that legal aid would not be targeted on proceedings about protection of the child, but could be available for proceedings that might not concern protection at all. For example, a case about financial relief for the parents could be covered if an application were made for financial relief for the child, given that the words “involving a child” do not give much indication of how closely the child needs to be concerned. It might even be that a case between the parents about a matter that did not directly concern the child was included.

Amendment 154 would also provide for legal aid to be available for all parties to the proceedings. We intend to target funding on the protecting party, and where a party is not the person taking action to protect a child from abuse the same level of importance and risk would not apply.

Finally, amendments 166 and 167 would also widen the availability of legal aid under paragraph 11, beyond the party seeking to protect the child. The amendments would mean that legal aid would be available for the other party in private law children cases where a child was at risk of abuse. We decided to keep the cases in scope for the protecting party because protecting children from abuse is of paramount importance. The party is effectively acting on the child’s behalf, to protect that child. As I said in respect of amendment 154, where a party was not the person taking action to protect a child from abuse, the same level of importance and risk would not apply. The tests that we wish to use to determine the availability of legal aid in such cases are designed to be as objective as possible and to minimise the risk of false allegations. The tests are for where there is a criminal conviction or ongoing criminal proceedings for a child abuse offence. Where a local authority has put a child protection plan in place to protect the child or where there is a relevant finding of fact by the family courts that child abuse has occurred, they will provide clear, objective evidence of the risk of abuse.

Helen Goodman (Labour, Bishop Auckland)

Will the Minister explain why his priority is to prevent false allegations, which is what he said three sentences ago, rather than to provide proper services for those families?

Jonathan Djanogly (Conservative, Huntingdon)

I did not say that the priority is false allegations at all. I said that the priority is the protection of the child. If the particular facts of an individual case meant that the failure to provide legal aid for both parties would be likely to result in a breach of individual rights under the Human Rights Act 1998 or the European Union law, exceptional funding would be available. On that basis, I urge the right hon. Gentleman to withdraw the amendment.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I respect the fact that the Minister has addressed this at length, but frankly I am not satisfied. I will press amendments 164 and 165 to a vote. I beg to ask leave to withdraw the amendment.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I beg to move amendment 143, in schedule 1, page 105, line 30, leave out

‘with the exception of paragraph 15 of that Part,’.

Jim Sheridan (Labour, Paisley and Renfrewshire North)

With this we may discuss the following: amendment 91, in schedule 1, page 110, line 4, at end insert—

‘(c) cases where an individual’s financial difficulties could lead to loss of home.’.

Amendment 150, in schedule 1, page 110, line 5, leave out sub-paragraph (2) and insert—

‘(2) Civil legal services provided to an individual in debt matters including—

(a) advice in relation to bank loans, credit cards or other regulated credit debts,

(b) advice in relation to rent, mortgage, council tax, utilities and court fines,

(c) representation on an action to recover monies due or owing against the opponent or owing against the opponent; and

(d) advice and representation in relation to bankruptcy or Voluntary Arrangements.’.

Amendment 133, in schedule 1, page 113, line 10, at end insert—

‘(3A) Civil legal services provided in relation to applications to the Criminal Injuries Compensation Authority.’.

Amendment 134, in schedule 1, page 114, line 33, leave out

‘with the exception of paragraph 15 of that Part,’.

Amendment 95, in schedule 1, page 115, line 2, at end insert—

‘38A Civil legal services in relation to—

(a) employment law,

(b) all areas of debt-related disputes not otherwise covered in this schedule, and

(c) all areas of housing law not otherwise covered in this schedule.’.

Amendment 93, in schedule 1, page 115, line 13, at end insert—

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I will briefly refer to the lead amendment, amendment 143, which seeks to ensure that the contents of paragraph 15 on page 116 will be subject to legally aided judicial review. For some reason, I might have misunderstood the matter. Am I right in saying that at the present time, the services listed in paragraph 15 on page 116 are exempted from being legally aided judicially reviewable matters? I might have misunderstood the matter. May I leave the Minister to take advice on that while I will move to the other amendments?

Jonathan Djanogly (Conservative, Huntingdon)

Yes.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

It is a matter that I am trying to clear in my own mind, really.

Amendment 150 is perhaps more straightforward. It seeks to replace paragraph 27(2) of schedule 1 with

“(2) Civil legal services provided to an individual in debt matters including—

(a) advice in relation to bank loans, credit cards or other regulated credit debts,

(b) advice in relation to rent, mortgage, council tax, utilities and court fines,

(c) representation on an action to recover monies due or owing against the opponent or owing against the opponent; and

(d) advice and representation in relation to bankruptcy or Voluntary Arrangements.”

Those measures seek to reinstate assistance for welfare and debt matters, many of which we encounter in our surgeries day after day.

Amendment 133 would insert proposed new sub-paragraph (3A) at the end of paragraph 33 of schedule 1. It states:

“Civil legal services provided in relation to applications to the Criminal Injuries Compensation Authority.”

Again, I want to see that provision reinstated. Having had some experience from when I was a solicitor, making an application to that authority is not a straightforward matter. It has become a rather judicial forum. The board is normally chaired by an experienced silk, and those appearing before it need to know what they are talking about when it comes to cases, the quantum of damages and so on. They have become not just a quasi chamber, but a fully legal chamber, and assistance is therefore deserved. Individuals without some expertise in court procedure would not find them palatable or reasonable to try to take on. Much as the chairs of such boards—the nominated silks—do their best to assist, if somebody comes their way hopelessly ill-prepared, it will not be a good experience for anybody and will be a waste of everyone’s time. Indeed, given the situation that they were in, it may undermine that person’s legitimate expectation of proper compensation.

I kindly ask the Minister to respond to my first inquiry in due course, and to give consideration to my other amendments.

Yvonne Fovargue (Labour, Makerfield)

I want to discuss amendment 91, which would widen the scope of advice on housing when an individual’s financial difficulties could lead to the loss of a home. Dealing with the preventing problem in the short term will simply mean that the client is likely to return if the underlying issue has not been dealt with. I have seen this time and time again in the advice agencies. The test that the Government would apply to determine immediate loss of pay is specifically legalistic. Possession proceedings, court orders, eviction notices and bankruptcy petitions come into play, which make it potentially harder to deal with the context in which homelessness situations arise and court proceedings are issued.

By far the most effective solutions and outcomes are likely to be achieved by focusing the scarce resources on early interventions to prevent the possession proceedings in the first place and on the triggers and causes that lead to people losing their home. They start long before the parties, whether they are landlords, tenants, homeowners or owner-occupiers, reach the door of the court. By the time a case reaches court, the relationship with the lender is likely to have broken down irretrievably. There are usually many reasons for that, such as misunderstood letters, letters that go behind the clock, other creditors that shout a lot louder—particularly those who knock on the door—changes in tenancy conditions and changes in circumstance and income. All of those have to be solved at an earlier stage, but they need legal advice to identify and separate the issues and find a solution.

That early resolution also fits well with the wider housing policy context. There is no doubt that last-minute action can prevent the loss of the home, but the legal costs simply inflate the debts owed. Early action could prevent that and keep the debt at a more manageable level. A range of legal options are available to home owners and tenants, provided they are brought into play at the correct time, which I suggest, is not the stage of actual eviction.

I am also aware of many people coming at an earlier stage, who are at the end of their tether. They cannot cope with the feeling of hopelessness or the letters coming through the door, and they are insistent. They want to hand the keys back to the mortgage lender or the landlord. They feel this is their only option, and they are completely desperate to avoid the stress of any court action, even if it is not imminent. To say to that individual, “I’m sorry, but you need to go back now and wait till you are absolutely on the brink before you can be helped,” is absolutely unthinkable to most advice agencies. The amendment, which would allow the advice process to start earlier, is small, but it would make a big difference and it would be more cost-effective.

Amendments 92 and 93 are also in my name, and I would like to speak to them together. The benefits system is notoriously complex—I have stated how many pages of instructions there are for DWP officials—and generates 160,000 appeals, over half of which are decided in the appellant’s favour. It is going through systemic transition under the Welfare Reform Bill, which will add to the morass of the social security statutes and case law. Amendment 92 would reinstate all advice on benefits, and claimants would be able to receive advice to assist with the unprecedented level of changes that the introduction of universal credit will bring to 19 million individuals and 8 million households.

At the same time, not a single benefit case will qualify for that assistance under the legal help scheme—not even for initial advice, which can assist in identifying whether there is a justiciable issue under social security law and can either steer cases away from a tribunal, or ensure that they are processed correctly. It is, of course, beneficial if cases are right first time, and there should be fewer disputes and errors, but removing the specialist advice before the changes have been proven is a big risk—not for the Government, but for individuals who are in and out of work and depend on such benefits to supplement their income and pay their bills.

Amendment 93 would limit the advice to reviews and appeals. There is, as I have stated, a high level of decision-making error within the DWP agencies, in applying the law correctly. The resulting issues, which often end up at tribunal, are extremely complex, involving interpretation of difficult statute and case law precedents. It is unrealistic to expect people without specialist knowledge to put together coherent review requests or appeals with no input from an independent specialist adviser, and advice agencies really cannot deliver advice at this level without funding specialist caseworkers. Volunteers do an excellent job, and they are the bedrock of advice services—particularly, the CAB. However, when the Government forms send people to the CAB for specialist advice, expectations are raised that advisers will deal with the most complex issues. Such cases are referred to the specialist adviser by the generalist adviser, performing a triage function. It is the continuity of the advice and the experience of the adviser that gives the excellent advice that is delivered by such services.

For example, in my bureau in Wigan, a client came in who was at risk of loss of liberty because of a benefit problem. They had been charged with £220,000 of fraud by the Department. It took 18 months and appeals to the highest court for this case to be resolved, and the client was found to owe around £2,600. It was an official error. They needed an experienced adviser, whom they needed to see around twice a month—which I think is how often they saw that adviser. They also needed to see that same adviser, and to be sure of doing that.

Advice on legal issues at the review stage can also avoid the need for an appeal or tribunal. Advisers can sift the evidence. They know how to look at the facts and they can ensure that the relevant facts, statutes and case law, backed up with the right evidence, are made available to decision makers, saving them time.

Preparing cases for tribunals helps to reduce the time needed for tribunal hearings. Claimants who go without advice quite often do not know what is relevant. An adviser spends a considerable time going through the case with the client, preparing them for the tribunal and often listening to quite an amount of irrelevant information. Sometimes, it is necessary for the client to get that off their chest, but they also need to be told that the tribunal does not need to hear it. Therefore, experienced advisers and welfare benefits advice actually save money.

The Citizens Advice service has costed how much it would cost to keep reviews and appeals in scope. Work on reviews and appeals accounts for approximately 66% of current welfare benefits casework, so, in monetary terms, there would be an expenditure of approximately £16.5 million. If the amendment applied only to appeals, that would cover 49% of casework, which would be an expenditure of £12.5 million. In context, supporting advice for benefits reviews and appeals is 0.8% of the legal aid budget, and yet that could help 100,000 people, who might find their income at risk and who, on the Government’s own assessments, are among the most vulnerable, ill and disabled people. Some 58% of the people affected by the removal of welfare benefits are in that category.

Naturally, it would be necessary to reduce the number of appeals—it would be wonderful if that could be done—but a study in Nottingham found that 31% of the demand for advice services is caused by preventable failure, primarily by the DWP and Jobcentre Plus systems and decision making. The potential for cutting the legal aid budget in that way is significant, if simplification is part of the answer, but if just 30% of appeals could be taken from the system, the savings to the legal aid budget would be about £8 million. However, we cannot guarantee that.

Any new system that is introduced brings its own problems—we saw that with tax credits—and to remove legal aid from all welfare benefits cases is to put on people who are often the most vulnerable, ill and disabled a disproportionate burden of the legal aid savings.

Kate Green (Labour, Stretford and Urmston)

I shall speak briefly about amendment 95, which is in my name. It would include in scope for legal aid,

“Civil legal services in relation to…employment law,…all areas of debt-related disputes not otherwise covered in this schedule, and…all areas of housing law not otherwise covered in this schedule.”

Many points have already been made about the importance of those categories of law and the need to ensure that people can access top-quality advice in relation to the justiciable matters that they face. We have discussed the boundary and cost-effectiveness issues, and the fact that those are often complex matters that people struggle to deal with on their own. In particular, very good points have been made by my hon. Friends in relation to homelessness and debt, which can frequently overlap. Indeed, many of the categories of law that will remain in scope will give rise to aspects of people’s difficulties with debt or housing that are not covered.

Now that employment falls out of scope, I am particularly concerned that cases of discrimination in the workplace are unlikely to be picked up, because the lawyers who are currently able to deal with discrimination matters under their employment contracts will no longer hold such contracts and will not be able to take on such cases. There continues to be a substantial amount of pregnancy discrimination, for example, in the workplace. Research by the then Equal Opportunities Commission highlighted that that remains an ongoing concern. It is important to recognise that by the removal of employment and therefore, indirectly, of discrimination in the workplace from scope, we would potentially be in breach of our international obligations in relation to protection from discrimination.

I would like such matters to be brought back into scope to ensure that we have the right provision of holistic legal advice. For that reason, I commend the amendment to the Committee.

Andrew Slaughter (Labour, Hammersmith)

Amendment 225, which stands in my name, also deals with the reversion into scope of employment law, which affects the most basic and the most complex advice in that area. The right hon. Member for Dwyfor Meirionnydd mentioned the complexity to which the tribunal service has run since its inception. At one level—I am looking at the Citizens Advice brief—the issue is about giving people basic but nevertheless legal advice when they go into advice agencies. Citizens Advice notes, perhaps not surprisingly given rising unemployment levels, that discrimination problems relating to employment increased by 7% to 2009-10, and that three quarters of all discrimination advice recorded by bureaux in 2009-10 related to employment. Citizens Advice makes this general comment:

“Timely advice can reduce stress and mitigate the economic cost and some or all of the personal negative impacts of employment problems and related impacts can be eased by good advice. As a result of bureau advice, clients with employment problems can retain their job, protect their terms and conditions, or, where it is not appropriate for them to return to their job, Citizens Advice Bureaux can help them…financial compensation through tribunals.”

That seems to be an entirely sensible way to proceed. At the other end, Members will have received the Equality and Human Rights Commission’s response, which makes this point about employment:

“The Commission has serious misgivings about the proposal to remove employment law from the scope of legal aid. In the year 2009/2010, nearly 32,000 new employment cases were started with Legal Help funding. While there is no legal aid for representation at the Employment Tribunal, this is currently available for cases before the Employment Appeal Tribunal and beyond. Removing legal aid for representation on employment matters in the higher courts will undermine access to justice in relation to a civil right (i.e., rights under a contract between an employer and employee). This is potentially in breach of Article 6(1) ECHR, especially if the client is facing an unusually complex employment law problem or if they would have particular difficulties in representing themselves. As we have already suggested…the MoJ’s forthcoming proposals for exceptional funding should be designed to deal with such situations to avoid the need for legal challenges by individuals who believe they should be granted legal aid on human rights grounds.

We also have concerns about the chilling effect on access to justice for workplace-based discrimination cases, were employment law to be removed from the scope of legal aid. Research conducted for the Equality and Human Rights Commission demonstrates that there are already significant gaps in the provision of discrimination advice in England, Scotland and Wales.”

The measures are another stroke of the pen to remove an entire area of social welfare law from scope, and they will have significant effects on employee-employer relations and the equality of arms between employers and employees. They are likely to lead to more cases of unfair dismissal and of people unjustly losing their jobs, and to more unemployment, with relatively little saving for the Government. The Government always think that they know best in such matters, and take the quick win and the money up front.

Housing is another subject that my hon. Friend the Member for Stretford and Urmston discussed. I used to do quite a lot of work in that area of practice. Even with further amendments, about 40% of the current provision will still be lost as a result of the changes. The Government say that homelessness cases will be dealt with. I note that we are coming to one or two Government amendments containing what appear to be—the Minister will correct me if I am wrong—concessions relating to parts of unlawful eviction and counter-claims in respect of disrepair. Of course, any concession is welcome, and we will clearly not oppose those, but as always, although not too late, it is certainly too little. I would like the Minister to clarify whether this will deal with the whole of unlawful eviction, including damages claims, which are complicated. They involve exemplary damages, and they are important matters that need to be tackled.

The concessions clearly do not deal with housing benefit issues, which form part of many claims because of the inefficiency of the housing benefit system as it is administered by local authorities. Debt arises as a consequence of delays in claims being paid. There are statutory, non-discretionary grounds for evicting tenants, and without proper advice—often quite assertive advice—before the courts, people can find themselves losing their homes.

Again, the proposal is very short-sighted of the Government. It is penny pinching, and in the end it will cost a great deal more money. The figure, which I am sure the Minister is sick of hearing now, for the cost-benefit in relation to housing for every £1 of legal aid spent is a saving of £2.34, rising to £2.98 for debt, £8.80 for benefits and £7.13 for employment.

I will not detain the Committee long, because most of these points have been well rehearsed in debates over the past year, but I want to put it on the record that we oppose the scope changes in social welfare law, including those that this group of amendments addresses. We do so because each of them individually plays a role in giving representation and advice to people who would otherwise go without and would be unfairly treated, and because it is the right thing to do not only socially and morally but often economically. When we look as a package, rather than discretely, at housing, debt and welfare benefits, we see that there are substantial links between them. The same problems often occur to the same individual or the same family, and often one leads into another. Debt leads to non-payment of rent and housing crises, and failure to be awarded welfare benefits when one is entitled to them again leads to debt. The link is there, as is the benefit to the state of dealing with such problems early.

My hon. Friend the Member for Makerfield has said that from her own experience—as a result of her job for many years, her experience in these matters is probably more extensive than any of ours, notwithstanding our surgeries—the clients whom one sees at advice agencies are in desperate need of help, and I imagine that that is true throughout the country. They need a certain amount of help, which some people in society would find it easy to deliver themselves; they have got themselves into a situation that they cannot get out of, but with a limited amount of professional help that could be effected. In making the changes, the Government are taking away that lifeline. That is why, even at this late stage, we urge the Minister to think again about the scope change in social welfare law, because of the cumulative ills that will affect not only the recipients, but the public purse as a consequence.

Jonathan Djanogly (Conservative, Huntingdon)

The amendments all relate to schedule 1 and the scope of legal aid. Given that they cover a wide range of law, I will deal with each amendment in turn.

Amendment 91 appears to be aimed at making legally aided advice, assistance and representation available when a person’s financial difficulties, such as debt problems, could lead to the individual losing their home. Amendment 150 is also aimed at making legal aid generally available in relation to debt and personal finance matters, regardless of whether the client’s home is at immediate risk.

In our consultation on legal aid reform, we proposed that funding should be prioritised for cases where the individual is homeless or at immediate risk of homelessness. We are, therefore, retaining legal aid in relation both to court orders for possession or sale of the home, and to eviction. We generally consider that other debt matters are a lower priority and do not justify public funding for legal aid and representation. We recognise that early advice can be helpful in a range of contexts, but what people often need is general advice—for example on welfare benefits, debt or housing—rather than legal advice. There are many alternative sources of help with debt issues, including Credit Action, the National Debtline, the Consumer Credit Counselling Service and local authorities, which also signpost people to local sources of advice and assistance on debt matters. In addition, the Money Advice Trust has recently launched “My Money Steps”, an online tool that advises people with debt problems, and the Consumer Credit Counselling Service offers “Debt Remedy”, a free online service.

The hon. Member for Makerfield went a step further. She said, “Isn’t it too late to provide legal aid only for possession and eviction? By that point things have progressed too far for legal aid to help someone save their home. It is about early intervention.” Indeed, it is about early intervention, but we do not accept that providing legal aid for possession or eviction is too far down the line to make a real difference. The effectiveness of legal advice provided in court when possession proceedings are already under way has been recognised by CAB, Shelter and Advice UK. In any event, legal aid will be available earlier than that. It will be available when repossession is contemplated—when a person is threatened with repossession action unless they immediately pay their outstanding debts, for example.

Yvonne Fovargue (Labour, Makerfield)

I think I said that late intervention can prevent people from losing their home, but it takes away some of the options that are available earlier and could help, such as some of the Government’s mortgage support schemes, which apply only at an earlier stage.

Jonathan Djanogly (Conservative, Huntingdon)

I am pleased that we all agree that both early-stage and later-stage interventions have a part to play.

We also recognise the arguments that the withdrawal of legal aid for any issue may lead, through a chain of events, to serious consequences. We considered those points carefully when formulating our final proposals. Our view, however, is that the limited public funds for legal advice and representation should be focused on those cases in which the client faces serious direct consequences. We do not propose, therefore, to devote limited public funds to less important cases on the basis that they could indirectly lead to more serious consequences for that person. As I have already said, general non-legal advice on debt is available from a variety of sources to people who are not at immediate risk of losing their home.

It is also important to recognise that the Bill does not require legal proceedings to have been issued before legal aid can be made available. Legal aid will be available when repossession or eviction is contemplated.

Yvonne Fovargue (Labour, Makerfield)

The Minister states that general advice on debt is available from a range of sources. That is under threat, however, due to the withdrawal of FIF—financial inclusion funding—which is due to end in March. Face-to-face advice is seriously under threat. Online advice and telephone advice is not suitable for all clients, particularly those who cannot even bring themselves to open an envelope.

The rest of the debate is in Hansard.