Laspo debate

[nickd]

Civil Legal Aid (Merits Criteria) Regulations 2012

Civil Legal Aid (Merits Criteria) Regulations 2012
10th Report from the Joint Committee on Statutory Instruments

www.publications.parliament.uk/pa/ld201213/ldhansrd/text/121203-0002.htm

Motion to Approve
4.44 pm

Moved By Lord McNally

That the draft Regulations laid before the House on 29 October be approved.

Relevant documents: 10th Report from the Joint Committee on Statutory Instruments

The Minister of State, Ministry of Justice (Lord McNally): My Lords, in moving the draft Civil Legal Aid (Merits Criteria) Regulations 2012, I shall speak also to the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012. The Civil Legal Aid (Merits Criteria) Regulations 2012 set out the merits criteria both for applications within the scope of the civil legal aid scheme, which are described in Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and for exceptional funding cases that fall outside that schedule.

The merits criteria are those that the director of legal aid casework must apply in deciding whether an individual qualifies for civil legal services. When the director delegates his functions under the regulations to providers or his employees, they will also be required to apply these criteria. The criteria include both general merits criteria and specific merits criteria. Specific merits criteria are applied for particular types of case where the general criteria are considered to be too strict or where bespoke criteria are appropriate for particular types of case.

Noble Lords may be aware of the funding code created under Section 8 of the Access to Justice Act 1999. These regulations replace that funding code. The funding code criteria are based on a list of factors set out in Section 8 of the Access to Justice Act 1999. These include the importance of the case to the client, the prospects of success and the likely costs. The regulations

3 Dec 2012 : Column 465

before us are based on a list of similar factors set out in Section 11(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The criteria must also reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings. I hope that this is a principle we all share. Our approach in making these regulations has been broadly to retain the existing merits criteria. In our consultation on legal aid reform we consulted on one significant change to the current funding code criteria; namely, that legal aid will be refused for any individual case which is suitable for a conditional fee agreement or CFA. That is reflected in Regulation 39(b).

At present that funding code requirement is disapplied for judicial review cases, claims against public authorities and claims for clinical negligence. We have removed these exceptions. We believe that our limited resources should not be focused on cases where alternative options for funding exist. The Legal Services Commission, or the Legal Aid Agency as it soon will become, has significant experience in determining whether a CFA is likely to be a real alternative. If funding is refused on this basis, an applicant can ask for a review of that decision. If they still are not satisfied, they can seek an independent appeal.

The noble Lord, Lord Pannick, has tabled a regret Motion regarding Regulation 53(b). This states that the regulation will substantially reduce the availability of legal aid in public law cases because the word "reasonable" has been omitted in relation to other means of challenging the relevant decision. I am assuming that this is in comparison to Regulation 39(d), which raised concern in the House of Commons.

Let me first explain what this regulation provides. Regulation 39(d) concerns alternative dispute resolution, such as complaints systems which might allow the client to resolve the dispute without issuing proceedings. The director has a wide discretion to decide whether such alternatives are reasonable in the circumstances. This criterion applies to public law, as well as other claims.

By contrast, Regulation 53(b) is about alternative routes to address the problem predominantly through proceedings. No concept of reasonableness is needed here because if there is an alternative route to resolving the problem in proceedings, that should be taken. This is because judicial review should be a tool of last resort. We recognise that the equivalent provision in the current funding code may on its face appear wider. However, in accordance with its published guidance, the Legal Services Commission has in practice applied this provision so that if there is an alternative appeal or procedure that addresses the problem, legal aid will not be granted for judicial review. Regulation 53(b) therefore reflects current working practice.

The Government made clear in Committee in the House of Commons that if pursuing an administrative appeal or other procedure meant that the individual could not obtain the remedy they needed, the director of legal aid casework would have the flexibility to fund. This is because the regulation specifically refers to alternative routes that "are available". The director

3 Dec 2012 : Column 466

would need to interpret this in a realistic way. Where the director of legal aid casework found that alternative proceedings could not provide the remedy that the client needs, funding for a judicial review would not be refused under this criterion. I stress that this point would be put beyond doubt in published guidance.

However, the noble Lord, Lord Pannick, and others have expressed concerns about this matter, and others have expressed very strong anxieties about how we have framed this provision. I am not convinced that such anxieties are justified, but I will listen to what noble Lords have to say and see if, in my reply, I can move further to meet those anxieties and concerns.

I turn now to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012. The noble Lord, Lord Bach, will speak to his Motion shortly, but I would like to explain first what the order does. This order makes legal aid available in relation to a review by the First-tier Tribunal where it has identified an error of law in its own decision on a welfare benefit appeal. It also brings into scope certain applications as required by the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. Finally, it addresses a technical issue in relation to legal aid for judicial review.

The first aspect of the order makes available advice and assistance in relation to a review by the First-tier Tribunal where it has identified an error of law in its own decision on a welfare benefit appeal. This follows a commitment made by the Government during Commons consideration of Lords amendments of the then LASPO Bill to explore whether there was a way for independent verification to be used to identify any First-tier Tribunal welfare appeals which involved a point of law.

Of course, appeals to the First-tier Tribunal on welfare benefits matters are appeals against an administrative decision of a public authority. This is quite different from an appeal to the Upper Tribunal, where one must identify an error of law arising from the decision made by the First-tier Tribunal in order to bring the appeal. To appeal to the First-tier Tribunal, the appellant need only set out their reasons for disagreeing with the public authority's decision in plain language. I understand that many appellants will wish to question whether the public authority has applied the law correctly. But this is precisely the job of the tribunal: to decide what the correct facts are and how the law should be correctly applied to them.

The Motion of the noble Lord, Lord Bach, against this order suggests that the Government have not fulfilled the undertaking given during the passage of the then LASPO Bill in this area. The then Lord Chancellor said at that time that he would "explore the options" available for a system of independent verification. I repeated the same assurances to this House, stating that we were,

"committed to doing further work to see how we might provide funding for those appearing before the First-tier Tribunal whose case also turns on a point of law".-[Official Report, 23/4/ 2012; col. 1557.]
That is exactly what we have done. We have given very serious consideration to the various options for independent verification. We have come to the conclusion

3 Dec 2012 : Column 467

that imposing an additional task of verifying whether a case involved a point of law on either the judiciary of the First-tier Tribunal, the successor to the Legal Services Commission or the Department for Work and Pensions would be unworkable. This is because it would have resulted in significant extra administrative and cost burdens. We do not consider it right to impose these burdens in the current economic climate.

It is also important to remember that legal aid will not be limited to welfare benefit cases in this area only. We have retained legal advice and assistance for appeals under the Equality Act 2010. We have retained legal advice and assistance for reviews before the First-tier Tribunal, as I indicated. We have retained legal advice and assistance for applications for permission to appeal to the Upper Tribunal. We have retained legal advice and assistance for substantive appeals in the Upper Tribunal. We have retained legal advice, assistance and representation for onward appeals to the Court of Appeal. We have retained legal advice, assistance and representation for onward appeals to the Supreme Court. We have retained legal advice, assistance and representation for welfare benefit judicial reviews. It is important to stress that at no point in progressing our legal aid reforms did we say that it was our intention for all welfare benefit First-tier Tribunal appeals to receive legal aid. The Government's position throughout has been that in these economic times we need to target legal aid at cases of the highest priority, where it is needed most. That was what the LASPO Bill was about. This is what we have done.

I turn briefly to the second aspect of the order, which brings into scope certain applications to meet our international obligations under the Hague Convention 2007. The convention sets out certain requirements for the provision of legal aid in relation to the recognition, enforcement or establishment of a decision in relation to maintenance, and there are reciprocal arrangements for signatory countries. We expect it to come into force in April next year. The convention is broadly equivalent to the EU maintenance regulations for which services are already made available under Schedule 1 to the LASPO Act. Most countries that have signed up to the convention will already be covered by the EU maintenance regulations-with a few exceptions, such as Norway.

The third part of the order addresses a technical issue in relation to legal aid for judicial review. In our consultation response on legal aid reforms, we confirmed that legal aid would be available for judicial review subject to a few specific exclusions. That remains our position. It is reflected in paragraph 19 of Part 1 of Schedule 1 to the LASPO Act, which puts within scope legal aid for judicial review in almost any area bar the exclusions debated and agreed by Parliament. However, an arguable effect of how the LASPO Act is drafted is that judicial review may be in scope for any area of law listed in Schedule 1, despite the exclusions in paragraph 19. This order simply makes a technical amendment to ensure that judicial review is governed exclusively through paragraph 19, and that the specific exclusions have the intended effect. I hope that this explanation has been helpful and I commend the orders to the House. I beg to move.



3 Dec 2012 : Column 468

[nickd]

Amendment to the Motion

Moved by Lord Pannick

As an amendment to the above Motion, at end to insert "but that this House regrets that Regulation 53(b) will substantially reduce the availability of legal aid in public law cases because the word 'reasonable' has been omitted in relation to other means of challenging the relevant decision".

Lord Pannick: My Lords, I tabled a Motion of Regret because the Civil Legal Aid (Merits Criteria) Regulations will very substantially restrict the availability of legal aid in public law cases, particularly judicial review. In his very helpful speech, the Minister indicated that he would listen very carefully to this debate and that he might be able to move further in his reply. Therefore, I will explain the problem in the hope that he will be moved if not by me then by the many noble-and noble and learned-Lords who are limbering up to express their concerns on this issue.

The problem is caused by Regulation 53(b), which states that legal aid for a public law claim will be available only if the director of legal aid casework is satisfied that the individual has exhausted all administrative appeals and other alternative procedures which are available to challenge the decision before bringing a public law claim. Therefore, the director will have no discretion. Alternative procedures must be exhausted before legal aid is available to bring the legal challenge. The problem is that in many of these cases-whether they are judicial reviews, housing appeals or habeas corpus claims about people in detention-it is simply not reasonable to expect the litigant to exhaust other procedures and appeal mechanisms before going to court. The other procedures may take months and sometimes years to arrive at a conclusion. They may involve no power to grant an interim remedy to protect the position of the claimant-for example, if the claimant is challenging the removal of housing provision in the services provided or the removal of services which have been given to him or her to address a mental health problem. The courts themselves recognise the force of this point. If you want to bring a judicial review in the High Court, you must exhaust other remedies except if the court is satisfied that the alternative procedures are less effective or less convenient.

5 pm

The vice of Regulation 53(b) is that it will prevent the director granting legal aid if an alternative procedure is available, even if the director is satisfied that the alternative procedure is less effective than judicial review. Indeed, the bizarre effect of Regulation 53(b) will be that legal aid will be least available in the cases where it is most needed because the potential litigant faces an urgent problem which requires an urgent court order and he or she cannot wait for the other procedure to be exhausted.

The previous rules set out in the Legal Services Commission funding code, to which the Minister referred, address the issue perfectly sensibly. They say that legal aid,

"may be refused if there are administrative appeals or other procedures which should be pursued before proceedings are considered".


3 Dec 2012 : Column 469

So far as I am aware, that wording has caused no difficulties because it confers a proper discretion that allows the funding body to require the use of alternative procedures only if they are equally effective or appropriate in the circumstances of the case. The Minister mentioned that there had been consultation on another aspect of the change in regulations, but as far as I am aware there has been no consultation on the change indicated in Regulation 53(b).

Nor can it be said that this problem can be remedied by implying into Regulation 53(b) the word "reasonable". The reason that is very difficult is that other provisions of the regulations not dealing specifically with public law claims state that alternative remedies must first be exhausted but only where they are reasonable alternatives. That is what Regulation 39(d) says on the standard criteria for obtaining legal aid. I repeat that the difficulty with Regulation 53(b) is that it omits the word "reasonable", therefore suggesting that there is an obligation to exhaust all other procedures, however unreasonable it may be to require the person to use those other procedures, before legal aid is granted.

The Minister suggested that Regulation 53 was concerned "predominantly" with alternative court proceedings. The problem with that approach is that Regulation 53(b) speaks of first exhausting,

"all administrative appeals and other alternative procedures"-
all, not some. Indeed, "administrative" suggests a process other than a judicial determination. The Minister in any event said that Regulation 53(b) is concerned "predominantly" with cases where there is an alternative court procedure, so he recognised that the regulation would also cover other cases. Even if the Minister is right that Regulation 53(b) is concerned predominantly with alternative court proceedings-and it is not-sometimes a judicial review is more appropriate than an appeal to a tribunal because, for example, the tribunal may lack the power to make an interim order which the claimant urgently needs.

The other point made by the Minister today was to suggest that, under Regulation 53(b), the claimant has to exhaust other procedures only if they are "available", which he said provides the necessary "flexibility". However, with great respect, that is no answer. The problem is not that the administrative and other procedures are not available; it is simply that they are less speedy or less effective than going to court for an immediate legal remedy. The Minister's final point was that guidance will be issued on this matter, which will of course be very welcome. The problem is that guidance simply cannot cure the enactment of a duty imposed on the director to refuse legal aid.

The Minister will know that a large number of expert organisations, including the Constitutional and Administrative Law Bar Association, Mind and the Legal Aid Practitioners Group, have drawn attention to the defect in the drafting of Regulation 53(b). This restriction on legal aid in public law cases, about which so many people are concerned, is not, as I understand it, designed to advance any deliberate policy of the Government. We are not concerned here with any policy dispute. I say that having had a very helpful meeting with the Minister last week in which

3 Dec 2012 : Column 470

he and his officials listened very carefully to the concerns that I, together with other noble Lords, expressed. It would be very surprising if there were any policy dispute here, because the regulations are designed to implement the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The then Lord Chancellor, Mr Kenneth Clarke, gave an assurance in the other place during consideration of amendments to that legislation made by this House. I remind your Lordships of what the assurance was. Mr Clarke said that,

"we are continuing legal aid in all cases involving judicial review, so legal aid is available to someone who is trying to have a welfare decision judicially reviewed. That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice. This is not an easy concession to make, because quite a lot of people who seek judicial review are not instantly popular with all sections of society, but we still give them legal aid".-[Official Report, Commons, 17/4/12; col. 277.]
I say to the Minister that the unhappy effect of Regulation 53(b) will be that legal aid will become unavailable in practice for judicial review and other public law cases where there are other less effective and slower procedures available. I therefore very much hope that in his reply the Minister will be able to move, and that he will be able to assure the House that amending regulations will be brought forward to cure what is undoubtedly a serious defect in Regulation 53(b).

Before I beg to move, I will say something about the fatal Motion of the noble Lord, Lord Bach, because, as I understand it, it is being debated together with my regret Motion. The Motion tabled by the noble Lord, Lord Bach, concerns another set of legal aid regulations. The issue here is distinct; it is access to legal aid for legal advice at First-tier Tribunal level. As the noble Lord will explain, this was a very controversial matter during the passage of the legislation earlier this year. Although most cases in the First-tier Tribunal concern the factual application of the law, some of them raise important points of law. They are very often highly complex points of law which the claimant cannot be expected to address without legal advice. Mr Clarke gave an undertaking, to which the noble Lord, Lord Bach, will refer.

I am very disappointed by the provision now made in those regulations. As I understand it-and it is a complex matter-legal aid will be provided at first-tier level only where the tribunal has already decided the case and recognises that it has made an error of law or seeks representations on whether it has made an error of law. If I may say so, that is a very odd way of addressing the issue because it opens the legal aid door only after the tribunal recognises that the legal horse has bolted, or may have bolted. I cannot understand why those regulations do not adopt the much more sensible and practical course of conferring a power-a discretion-on the chairman of the First-tier Tribunal to certify, on looking at the appeal, that it raises a point of law on which it would be appropriate for the claimant to receive legal aid for advice purposes.

I shall, of course, listen very carefully to the Minister's answers to the Motion in the name of the noble Lord, Lord Bach, and I very much hope that the Minister will be able to move on my regret Motion. I beg to move.

[nickd]

3 Dec 2012 : Column 471

Lord Bach: My Lords, I rise to support the noble Lord, Lord Pannick, in the amendment that he has just moved, and also to speak to my Motion which I will move at the appropriate place. Before I speak to my amendment, perhaps I may say that I support unreservedly the amendment in the name of the noble Lord, Lord Pannick, to the Civil Legal Aid (Merits Criteria) Regulations. All noble Lords who have had the benefit of listening to his speech will have seen the logic and force of what he had to say. I suspect that there is no serious argument but that he is correct. I look forward, if it is necessary, to supporting him in the Lobby later on.

What I am doing with my Motion is to ask the Minister to withdraw the order that I have prayed against-namely the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012-so that it can be reconsidered as a fresh order when it is laid again. I am not seeking to go behind the Act of Parliament. I still believe that many parts of it are entirely wrong and an enormous mistake, but whether I like it or not, Parliament has passed it. It will come into force on 1 April 2013 and we will have to see what the consequences are, but that is not the point today.

5.15 pm

There are two main grounds for my request for the order to be withdrawn and they are linked together. If the order is not withdrawn, I will ask the House to decline to support it. That is why my amendment can be described as fatal, although in my view it is rather too emotive a term and is a somewhat misleading description because the Government can always come back with something that is acceptable to the House. So-called fatal amendments may be rare, but they are not that rare in this House. We have had 27 since 2000 instigated by Peers of all parties and of none. Indeed, I am in good company today in moving a fatal Motion because no one less than the Minister himself moved one-some time ago, let it be said-and pressed it to a vote. I also feel more content about moving a fatal Motion as I happen to have discovered that the Leader of the House, who is not in his place at present, has also been known to support such Motions in the past.

My first ground, and one that I hope will appeal to all parliamentarians, is that Her Majesty's Government undertook on 17 April this year in the House of Commons to bring forward secondary legislation to allow eligible appellants to a First-tier Tribunal legal aid if their appeal is based on a point of law, but that in the event the Government have failed to honour this undertaking and are offering instead, as the noble Lord, Lord Pannick, has just said, a much narrower and, in the words of Citizens Advice, a "completely inadequate" alternative. Again, in the words of the Citizens Advice briefing: "It would appear the Government is not making any commitment at all to provide legal aid for people to prepare appeals to the first-tier tribunal, even when that appeal is on a point of law".

Let me take your Lordships back to the other place which, on 17 April, was involved in ping-pong, as it is described these days, with this House. Three weeks earlier, the noble Baroness, Lady Doocey, had successfully

3 Dec 2012 : Column 472

moved an amendment that would have allowed legal aid for legal advice for welfare benefit preliminary reviews and hearings; in other words, the position that has prevailed for many years in this country and is supported by a wide consensus from all political parties. She won her amendment by 39 votes. Her Majesty's Government wanted to overturn the Doocey amendment, but faced a similar amendment from the honourable Tom Brake MP. It was a critical moment for this highly controversial legislation. The Brake amendment, if pressed, could well have passed the House of Commons and the Government would have lost a central plank of their Bill.

The Government needed to make a meaningful concession on First-tier Tribunals to avoid defeat. The then Lord Chancellor accepted the argument that if Second-tier Tribunal, Court of Appeal and Supreme Court appeals, all of which can be made only on points of law, can attract legal aid, then it is logical that welfare benefit cases should attract legal aid at the First-tier Tribunal as well, so that any point-of-law case in the First-tier Tribunal is legally aided. In such a case it would be absurd not to allow the appellant at a First-tier Tribunal at least some legal help or advice to prepare for their point of law appeal. The then Lord Chancellor stated:

"just as we have accepted the argument about legal issues in the upper tribunal, we could of course do so if the same thing arises in the lower"-[Official Report, Commons, 17/4/12; col. 226.]-
meaning the lower tribunal.

Anyone present at that debate in the House of Commons that day-and I was sitting in the Peers' Gallery myself-was in no doubt that there was an undertaking to find a way to give appellants in points of law cases legal aid. The intention to do this was understood by everyone on all sides present in the Chamber. Certainly Tom Brake thought so. In agreeing to withdraw his amendment, he said:

"I also welcome the Justice Secretary's clarification that it is the Government's clear intention that, whether the points of law are for the upper or lower tribunals, these cases should be funded by legal aid".-[Official Report, Commons, 17/4/12; col. 243.]

There was a "clear intention". What happened next was that the Lords amendment of the noble Baroness, Lady Doocey, was overturned, and on 1 May the Bill became law. Many of us thought at the time that the concession did not go far enough, but whether it did or did not, none of us imagined what would follow.

On 18 September, the Parliamentary Under-Secretary of State at the Ministry of Justice, Mr Jeremy Wright, made a Written Ministerial Statement to another place in which he set out the Government's solution to the concession. This is what is in Article 3 of the order before us this afternoon. The solution, I argue, is rather shocking. Instead of allowing legal aid in points of law cases at First-tier Tribunal, the Government will not allow any such thing. Instead, only in the extremely rare cases where, following the First-tier Tribunal decision the tribunal itself says it has made an error of law and sets up a review to decide what to do about it, will legal aid be even possible. In order to get to this stage, an appellant who has lost at First-tier Tribunal would have to draft his or her notice of appeal. This is an appellant who has received no legal help. Remember: this is about points of law, not about

3 Dec 2012 : Column 473

facts. So an appellant has received no legal help, no legal advice prior to or during the First-tier Tribunal or worked with a notice of appeal after the First-tier Tribunal. If the solution applies to anyone, it will be to very few people for a year.

Why have the Government given up and come up with something so different and so much less than they undertook? My guess is that the official asked to come up with a solution was told that it should not cost anything, even though the cost of the concession would have been minimal-perhaps about £5 million at £160 a case. I will remind the House that this is approximately one-twentieth of what the police commissioner elections have cost this country. Whatever the reason, my amendment is based on the belief that no Government-whatever their colour-should be allowed to get away with this. An undertaking to Parliament, even one made in extremis, must be kept. If it is not, then Parliament should insist. This is not a party point. Yes, I am proud to sit on these Benches, but it would not matter which Government of whatever colour were involved. Parliament should just not be treated like this. It is not common sense.

Briefly, my second reason for this amendment is bound up with the first. A very large number of appellants at First-tier Tribunal are disabled people appealing against decisions by the Department for Work and Pensions, whether in relation to employment and support allowance, disability living allowance or industrial injuries. Others appealing are often working men and working women who have been the object of other wrong decisions about benefits which they are entitled to. All these appeals are vital to the citizens who bring them. That is why early, inexpensive legal advice has been so important. It means that hopeless cases do not clog up the tribunals and that appellants can put their case better.

I have to accept that in the vast majority of cases legal aid will no longer be available after 1 April. However, many of the minority of cases that involve points of law are brought by disabled appellants and it has got to be common sense, and just, that they should receive some-some-legal advice. How can they be expected to know or understand the legal points that arise in their case? The Government agreed with that proposition in April; for some reason they do not now. Surely they should think again, and that is what I am asking them to do. In due course I will seek to move my amendment.

Lord Mackay of Clashfern: My Lords, I will speak in relation to both these matters; not in order of importance but in the order in which they were taken, so I will speak first to the amendment of the noble Lord, Lord Pannick.

As I understand it, what the noble Lord, Lord Pannick, finds difficult is Regulation 53(b), which requires that the director whose job it is to decide such matters has to be satisfied that,

"the individual has exhausted all administrative appeals and other alternative procedures",
which are available to challenge the act, omission or other matter,

"before bringing a public law claim".


3 Dec 2012 : Column 474

That is not just judicial review; it is quite a wide area of law, including habeas corpus jurisdiction, as the noble Lord, Lord Pannick, mentioned. However, this is not the whole of this matter. It is interesting that it is Regulation 53, because I think that the original rule of the Supreme Court that brought in judicial review was Order 53. It is a strange coincidence, but not particularly important. What is important is that, apart from what I have just read, the beginning of Regulation 53 requires that,

"the Director must be satisfied that the criteria in regulation 39 (standard criteria for determinations for legal representation) are met".
So Regulation 39 has to be met before you come to this regulation at all.

The noble Lord, Lord Pannick, briefly referred to Regulation 39. It includes this provision at sub-paragraph (d), requiring that,

"the individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution".
I understood my noble friend Lord McNally to suggest that that only applied to a limited number of alternative procedures-but it says "all reasonable alternatives". I cannot see how it is possible to have Regulation 39, with that provision in it, and Regulation 53(b), which requires that that regulation is accepted, and also adds this. The two seem to be contradictory. It is not just the point that the word "reasonable" is used in Regulation 39; it is incorporated into Regulation 53 at the beginning. It simply does not make sense. That is the short and long of it.

5.30 pm

This matter was looked at by the Secondary Legislation Scrutiny Committee in its 14th report. On page 15, paragraph 44, it says:

"The Committee noted some variations in the terminology used in the Regulations and expects the guidance to make absolutely clear why these distinctions are made. For example, regulation 39(d)"-

the one I have just read-

"includes a test of reasonableness requiring the individual to have 'exhausted all reasonable alternatives to bringing proceedings' whereas regulation 53(b) does not include a similar test and requires the individual to have 'exhausted all administrative appeals', which would appear to be a higher threshold".
Regulation 53(b) does not include a similar test, but Regulation 53 as a whole does because Regulation 39 is incorporated at the beginning of Regulation 53. Therefore the matter is quite clearly set out as a complete contradiction within Regulation 53 itself.

In my submission, Regulation 39(d) includes all alternatives, as it says, and the same is true of Regulation 53(b). The obvious solution is to delete Regulation 53(b) altogether and leave Regulation 53(a) as the only additional requirement. I hope that my noble friend will feel able to do that because I cannot accept the view of the Secondary Legislation Scrutiny Committee that guidance can solve this matter, because Regulation 53(b) is not alone as part of Regulation 53 because Regulation 39(b) is in it as well. The guidance cannot resolve a dispute-or at least a difference-on the terms of the statutory regulations. That is not the function of guidance. The guidance is supposed to explain what the regulations mean. However, it is hard

3 Dec 2012 : Column 475

to explain two different contradictory tests in the same area. That is beyond the scope of any guidance that could be offered.

The amendment in the name of the noble Lord, Lord Pannick, is well taken. Obviously, my noble friend does not need to withdraw these regulations because they deal with quite a lot of other things, but a simple amending regulation would solve this problem. I rather got the impression from my noble friend that the intention was that reasonable alternatives would be taken into account in Regulation 53(b), although it was not expressed. The difficulty is that when the contrary is expressed earlier on in the same regulation the difficulty is extreme. If a Minister has given an undertaking to Parliament, a regret Motion seems the right way to bring that to the attention of the House when the regulations are in question.

I turn to the amendment in the name of the noble Lord, Lord Bach. If I have understood the situation, and I am very capable of being corrected-very susceptible to being corrected is perhaps what I should say-on this matter, the regulation to which the noble Lord, Lord Bach, refers is complicated. It allows a person legal aid under the regulation if he is invited to make a representation on requesting a review. My impression is that any appellant will be entitled to ask for a review. If the appellant asks for a review and he is invited to make representations, he will have legal aid to do that. However, if he is not asked to make representations and the tribunal goes on to make a decision on the review without his representations, the second branch comes in and he is entitled to legal aid. If I have understood the set-up correctly, where there is a challenge to a decision of the First-tier Tribunal, that is done by representations to that tribunal, and in that situation the regulations permit legal aid-as far as I understand them.

Lord Bach: With the greatest of diffidence, I rise to try to explain the situation as I see it. The respect I have for the noble and learned Lord is well known. My understanding is that what the Government propose comes at the end of the First-tier Tribunal hearing. Therefore, leading up to the First-tier Tribunal, whether or not on a point of law, there would be no advice at all to the appellant. During the tribunal hearing there would be no advice to the appellant. Only if the appellant after the event decides to ask for facts and reasons and, after that, puts in a notice of appeal, will there be the slightest chance that he might get legal aid at that stage.

Lord Mackay of Clashfern: With great respect, the noble Lord's own explanation shows that what happens is that the First-tier Tribunal makes a decision and that is one in a very large number of decisions. If somebody wants to make a representation against that decision, asking for a review, the tribunal can invite representations at that stage; if it does, the applicant, as long as he was the original appellant, can get legal aid. If, on the other hand, the tribunal decides, "We do not want representations, we know that we are right", it goes ahead with the review and comes back to the same decision; because an application has not been opened with right of representations at that stage, the second branch of the regulation gives legal aid. That is how I understood it but I may be wrong.



3 Dec 2012 : Column 476

Lord Bach: I am sorry to come back, but it is only if the tribunal finds an error of law. An error of law has to be found by it first; then a review takes place. It is only in those circumstances, which are very rare indeed, that legal aid could be available at post First-tier Tribunal level. The other thing they might do is appeal to the Second-tier Tribunal, when other considerations would arise. However, it does not and cannot happen in every case. As I understand it, an error of law has to be found by the First-tier Tribunal after it has made its decision.

Baroness Doocey: My Lords, I support the amendment proposed by the noble Lord, Lord Bach, because I believe that the Government's present proposals will be catastrophic for many thousands of people. During the passage of the Bill, provision for legal aid funding and advice for assistance in welfare benefit appeals made to the Upper Tribunal on a point of law was included in the legislation. The Government also conceded that the same point of principle should apply to the consideration of points of law by the First-tier Tribunal. The Lord Chancellor said, in reference to First-tier Tribunals:

"We are quite open to the argument for ensuring that we have legal representation when there is a legal issue that we cannot expect a lay person ordinarily to argue".-[Official Report, Commons, 17/4/12; col. 226.]

However, the Government have honoured neither the spirit nor the letter of that commitment. The conditions they have laid down for legal aid to be available require so many planets to be in conjunction that, in practice, it is doubtful that the vast majority of claimants could ever meet them.

My prime concern is the needs of disabled people, who will be disproportionately affected by the removal of welfare benefits from the scope of legal aid. By not considering whether a point of law is involved other than when a further appeal is being pursued, the Government are effectively denying legal help to a significant proportion of disabled people whose appeal cases could nonetheless be considered to raise a point of law.

According to the Government's own impact assessment figures, restricting legal aid to cases where the First-tier Tribunal itself identified that it erred in law would keep legal aid to just 696 welfare benefit cases in lower tribunals. That represents only a tiny proportion of the 135,000 welfare benefit cases each year. Of those 135,000 cases, 78,000-nearly 60%-involve disabled people who currently rely on legal aid for welfare benefit appeals.

What makes the situation worse is that the Government are in the middle of a major overhaul of the welfare benefits system. Millions of claimants will be reassessed and moved on to different benefits. During the transition period, disabled people will increasingly need expert legal advice to challenge inaccurate decisions about their benefits. The lack of legal aid to pursue an appeal in the first place will mean that disabled people are unlikely to reach the stage where they can get legal aid, as the vast majority of claimants are unlikely to recognise a point of law.

Legal aid for welfare benefit claimants costs an average of £150 a case. There can be significant

3 Dec 2012 : Column 477

consequences if disabled people do not receive the benefits to which they are entitled, causing considerable financial strain and pushing many of them into poverty. Their long-term costs in terms of demands on the health and welfare system are likely to be an awful lot higher than £150 per head.

As I have argued on previous occasions, the removal of legal aid from welfare claimants is fundamentally unjust. The paltry savings will prove to be a false economy. The Government's latest proposal has made a bad policy worse. I urge the Minister to reconsider.

Baroness Lister of Burtersett: My Lords, I am very happy to follow the noble Baroness, Lady Doocey, who has contributed so much to our discussion of previous legislation on this issue. I shall speak to the amendment to the Schedule 1 order, but I also strongly support what the noble Lord, Lord Pannick, said on the other amendment.

My noble friend Lord Bach made a powerful case. He speculated on why the Government have reneged on their commitment. The only answer that we have received is that the Government say that it is not feasible. I wonder why not. Today, the Minister has argued that it is because of administrative costs, but in my book, administrative costs and feasibility are not the same thing.

[nickd]

Citizens Advice has proposed a number of options to make a reality of the Government's commitments and made representations on them to the Government. Are those options among those which the Government have reviewed-the Minister referred to a review in passing? Were they considered not to be feasible? If so, why not? Was the suggestion made by the noble Lord, Lord Pannick, considered not to be feasible? If so, why not? Unfeasibility is a vague response. Citizens Advice referred to the Government's proposal as "irrational". It criticises the fact that there has been no consultation on it. Can the Minister explain why has there been no consultation?

I finish by referring to an e-mail that I received this morning from a member of the public. She does not stand to be affected by the measures. She calls herself an ordinary woman, "nothing special", but she is motivated by concern for her fellow citizens-in particular those who are sick or disabled. She refers to the fear that many such people now feel. She writes:

"I am pleading with you ... to be fair and just when you 'discuss'",

the regulations. She finishes:

"I have never felt so strongly about anything before so forgive me if I am departing from normal protocol. All I know and believe is that this is wrong and it needs to be stopped".

How right she is.

5.45 pm

Lord Woolf: My Lords, I been trying to limber up, and I hope that I am now able to follow what has been said by my noble friend Lord Pannick and my noble and learned friend Lord Mackay of Clashfern. I agree with every word that they said with regard to the amendment to the Civil Legal Aid (Merits Criteria) Regulations, which are the subject of the regret Motion.



3 Dec 2012 : Column 478

In order to understand the context, it is necessary to know that judicial review is, of course, subject to principles which have been judge-made. Judicial review, in the form that it is now, is a judicial invention of which we are extremely proud. We are proud of it because the object of the exercise is to ensure, in particular in relation to public law proceedings, that the appropriate procedure is adopted, having regard to the issues raised.

At one time, it was thought-again, by decision of the House of Lords in the well known case of O'Reilly v Mackman, that it was always necessary to use judicial review in public law proceedings. It was then found in practice that that led to satellite litigation over whether the right procedure had been used or the wrong procedure. The courts sought to produce watertight compartments. Fortunately, that was only a temporary stage in the development of judicial review. The next step was to adopt a much more sensible and realistic approach, which involved proceedings being dealt with in the most sensible and reasonable way. Although the phrase that judicial review should be used only where there was no alternative remedy was retained as a simple method to identify one of the principles, the law had developed beyond that. It was made clear by authority after authority that that was subject to the requirement that it should always be reasonable to adopt the procedure which was proposed: judicial review.

Regulation 53(b) contains the statement that is in accord with the general principle of exhausting alternative procedures, but does not refer to the fact that that is not a rigid limitation, but reflects the nature of the procedure, which requires the court to adopt a reasonable course in considering the matter. As has been pointed out by both my noble and learned friend, Lord Mackay, and my noble friend Lord Pannick, that approach of the courts is almost impossible to adopt as a matter of interpretation because of the language of Regulation 39(d). An additional reason to those which have been given for accepting my noble friend Lord Pannick's Motion and amending Regulation 53(b) is that if that is not done, the procedures in the courts and the procedure for granting legal aid will be out of sync; they will be in conflict. That cannot be a sensible position. Litigants will be forced not to do the reasonable thing, which is what the Civil Procedure Rules require, because they will not have legal aid if they do that, but to adopt an unreasonable course and bring proceedings by judicial review and then get legal aid. That cannot be a sensible course.

I hope the Minister, having heard the argument before the House, will accept the invitation which has been made to consider the matter again. I would be very happy to adopt the amendment suggested by the noble and learned Lord, Lord Mackay, but would, perhaps, suggest that if it is thought preferable to amend Regulation 53(b), what was intended, I believe-or what, at any rate, it should state-could be achieved by inserting into paragraph (b), "the individual exhausted all administrative appeals and other alternative procedures which it would be reasonable for him to adopt to challenge the act, omission or other matter before bringing a public law claim".



3 Dec 2012 : Column 479

I should have said that my noble and learned friend Lady Butler-Sloss intended to speak and asked me to indicate that she supports the arguments advanced by the noble Lord, Lord Pannick, and those which I have just advanced.

Lord Goldsmith: I want briefly to support both amendments. So far as the amendment moved by the noble Lord, Lord Pannick, is concerned, it is not necessary to say very much after a former Lord Chancellor and a former Lord Chief Justice have both criticised the order as it stands because of the way it operates in different ways. I can summarise my view in relation to it very briefly. This order already recognises that there may be "reasonable" and "not reasonable" alternative procedures. It does that in Regulation 39. However, if one then reads Regulation 53(b), it is very clear that the word "all" must be read as meaning "all". Therefore, if one expands the meaning, what is being said as it stands is that there will not be legal aid unless the individual has exhausted all reasonable and unreasonable alternative procedures. As soon as one poses the question that way, it becomes absolutely plain that it must be wrong to impose that obligation. I do not think it is necessary to say anything more than that to summarise why the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, are absolutely right.

Let me turn to my reasons for supporting my noble friend Lord Bach in his amendment. I recall very well the clear and powerful way in which the noble Baroness, Lady Doocey, moved the amendments which led to this particular issue. They were strong and supported by a majority of this House. I have read the debate-though I did not listen, as my noble friend Lord Bach did, to the debate itself-which took place in the other place. It seems clear to me that what was being said was that a way would be found to enable legal aid to be provided in the first tier where there were points of law. The concern expressed by the Government was that they did not want that to be a point of law just because it was so stated by the claimant or the claimant's lawyer. That is clear in column 266. However, the Government have not ended up with that at all. They have ended up with something which appears-if my understanding of the way the procedure works is right, and it follows that of my noble friend Lord Bach-to mean that legal aid does not come into the picture until after the event. That may be appropriate in certain other circumstances, but not here.

What one needs in these circumstances is the ability to identify a point of law which will be relevant and necessary for a particular applicant-particularly a claimant of the sort to which the noble Baroness, Lady Doocey, referred-to be able to put that point of law before the tribunal. I fully endorse her point that most claimants do not recognise a point of law when they see it. I suppose that as a practising and paid lawyer, I am quite pleased, on the whole, that that is the case, although I do not actually practise in this area. The point is this, however, and I ask the Minister to answer this question: why could the way the Government limit this not be by the chairman of the tribunal identifying the point and certifying it at the outset rather than waiting until after the event?



3 Dec 2012 : Column 480

There is one point which connects these two amendments, and it is what drives me to want to persuade the House to support them. In LASPO, we were faced with changes which, for many of us, were very difficult to accept. The Government put them forward on the basis of economic necessity. However, there was a strong belief that there were cases where justice required that there should still be some opportunity for legal advice to be taken and used. In these particular cases-public law and cases involving claimants with disabilities, for example-the Government are failing to give effect even to that limited, modest exception that they were prepared to allow. I very much hope that the Government will think again in the light of this debate.

Lord Phillips of Sudbury: In the light of what I am going on to say to my noble friend Lord McNally, I would first like to say that the whole House well understands the exigency that led to the LASPO Bill. However, as my noble friend Lady Doocey forcefully pointed out, and it cannot be repeated enough, in the realm of social welfare law, there is a singular obligation on us as parliamentarians to will the means of accessing those benefits. Unless we do that, everything that Parliament does is a charade or a sham; because it is cynical on our part not to give the people most in need in our blessed country-the poor, those lacking in self-confidence, those without a scintilla of understanding of the law and those who can scarcely read a Bill and understand it-the real opportunity to access the benefits we are proud to bestow on them. It puts this realm of public expenditure into a special bracket. There are very few areas of expenditure, I suggest, that really come within that narrow purview.

It was interesting to hear the noble and learned Lord, Lord Goldsmith, talking about lawyers looking forward to these rather nuggety issues in social welfare-it was a joke of course-but the reality is that no lawyer goes into the realm of social welfare law to line his or her pockets. I can tell the House that only the most socially minded lawyers subject themselves to practising in this field.

I hope my noble friend Lord McNally will accept my next point. In all the fields of law, there is nowhere more complex than the forest of social welfare legislation. It runs to hundreds and thousands of pages. It is utterly futile to pretend that the ordinary bloke can begin to put together the grounds for going to the director to ask for support to launch an appeal if he or she has got to understand the legal background and legal prospects, because that is way beyond the capacity of all but a very small number.

My final point is this. When the noble and learned Lord, Lord Mackay of Clashfern, was five minutes into his speech, I wondered whether he had, by mistake, picked up my notes. Every single word he said about the clash between Regulations 39(d) and 53(b) was absolutely the same as what I was going to say. The only thing I would add to it-and this is addressed to my noble friend Lord McNally-is that, as the noble and learned Lord, Lord Mackay, made clear, Regulation 39(d) is expressly imported into Regulation 53, but the language in Regulation 39(d) and Regulation 53(b) is not consistent.



3 Dec 2012 : Column 481

That raises further problems. If things proceed as they are, for example, it is unclear what is meant by the word "unavailable" in Regulation 53(b). It is also not apparent to me how to construe the words in Regulation 53(a),

"appears to be susceptible to challenge",
with the word in the following subsection (b), "procedures", which are available to challenge. The refinements in the language and, I believe, the confusion are such as to render this part of the regulations not fit for purpose. I very much hope that my noble friend will be able to give the House an assurance at the end of this debate that there will be amendments to the regulations hot on the heels of the passage of the same.

6 pm

Lord Beecham: My noble friend is to be congratulated not only on bringing this amendment to the House but also on being elected Peer of the Year. At this rate he may turn into the Hilary Mantel of your Lordships' House; she of course has won her second Man Booker prize, and it may be that next year my noble friend is awarded with his accolade again. I will speak briefly to his amendment before turning to that of the noble Lord, Lord Pannick.

The Opposition entirely support the case made by my noble friend, particularly because, embedded in the Government's approach and reflected to some degree in today's debate, there is some confusion between points of law and errors of law for the purpose of these regulations. The Citizens Advice briefing helpfully makes this distinction clear. It says:

"Furthermore in devising this whole policy Government appears to be confusing 'points of law' with 'errors of law'. Whilst the majority of first tier welfare benefit appeals turn on 'points of fact' such as financial and other circumstances ... many cases do raise significant legal issues over statutory interpretation (ie social security regulations), legal tests for disability"-

as referred to by the noble Baroness, Lady Doocey-

"or disputed application of ... precedents etc. The tribunal making an error of law which may be subject to a right of appeal is a much narrower concept".
We have to bear that distinction in mind when weighing the strength of the case made by my noble friend. It will be the very exceptional case, as the noble Baroness pointed out, that may qualify for that description of an error in law, which of course has to be self-certified by the tribunal itself-a peculiar process, one might think. We are certainly not in the position that the Minister mentioned in the debate in the House of Commons when he talked about 440,000 cases. That number is inconceivably large and, in my view, can be dismissed. Certainly, though, probably a good deal more than 650 cases could potentially arise if the definition were to deal with points of law. I hope that, bearing in mind the assurances given on the earlier occasion by the former Lord Chancellor, the House will support my noble friend's amendment.

I also support the amendment moved by the noble Lord, Lord Pannick, and supported by the noble and learned Lord, Lord Mackay, as I understand him. Indeed, there is a peculiar relationship between Regulation 53 and Regulation 39, but in my view it

3 Dec 2012 : Column 482

goes somewhat beyond the matter identified by the noble and learned Lord. In addition to the potential clash with Regulation 39(d), it strikes me that problems arise in relation to two earlier parts of that regulation, paragraphs (a) and (b). I remind noble Lords that all these matters have to be borne in mind when dealing with Regulation 53. Under Regulation 39(a) the director has to be,

"satisfied that the following criteria are met ... the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case".
That is a fairly open-ended requirement. Regulation 39(b) says that the director has to be satisfied that,

"the case is unsuitable for a conditional fee agreement".
Suppose, though, that it was suitable for a conditional fee agreement; that of course does not necessarily mean that a conditional fee agreement is available. Suitability and availability are not the same thing. That reinforces the noble and learned Lord's point that there is an inconsistency between Regulation 39 taken as a whole, not just in relation to Regulation 39(d), and Regulation 53. I hope that noble Lords will be convinced by that element.

There is a further matter that I need to touch on. The thrust of the Government's proposals is to reduce the reliance on judicial review. We have to be concerned about this in view of recent pronouncements about the Government's desire to reduce substantially the number of cases that can be advanced by that method, which is of course a principal method of holding the Executive to account. This is just one potential example, but I think that noble Lords will want to pay particular attention to it, having regard to the category of people who will be most affected by it. We should not lose sight of the fact that this may be part of a process of restricting access to judicial review that will go well beyond this particular category. In my submission, that is an additional reason for noble Lords to support the amendment moved by the noble Lord, Lord Pannick.

Lord Mackay of Clashfern: My Lords, am I right or wrong in thinking that any appellant who is unhappy with the decision of the First-tier Tribunal can ask it to review the decision?

Lord Beecham: Assuming that the appellant has the knowledge of that procedure, he might ask it to review its decision, but the review will amount to nothing unless the tribunal convicts itself, as it were, of an error in law. If it makes that mea culpa then under the Government's amendment there is a potential for legal aid to be granted, but not otherwise.

Lord Elystan-Morgan: My Lords, I support both amendments. I am sure that it is not necessary for me to add my voice to the very distinguished contributions that have already been made in this regard. Both amendments turn upon undertakings that have been solemnly given-and, no doubt, in the best faith-by the right honourable Kenneth Clarke. I accept that completely. If there has been mischief, it has probably been the mischief of mandarins thereafter in trying in some way to release him in some way from an undertaking that he solemnly and sincerely gave.



3 Dec 2012 : Column 483

The other feature that is common to both amendments is that they deal with situations where preliminary machinery is set up before a person can qualify for legal aid. In both cases, in my view, that machinery imposes such a burden upon the potential applicant to make his or her case virtually impossible-in other words, a total denial of what otherwise would be a fair and just application by that person.

In the circumstances, bearing in mind the weight of authority that has been projected towards the Government in this case, it would be a very rash Minister who did not concede the obvious points made in the amendment moved by the noble Lord, Lord Pannick. If the noble and learned Lord, Lord Mackay, is correct about the interaction of Regulations 39 and 53, and if it be that Regulation 53 in this regard is totally and absolutely governed by the relevant provision in Regulation 39, then that is it-the Government do not lose one millimetre advantage, because that situation has already been covered and fully determined. However, if that is not the case, then it seems that the argument put so powerfully by the noble and learned Lord, Lord Goldsmith, must have come into play. That is that the director could come to the conclusion that indeed all reasonable avenues had been pursued but that there were unreasonable avenues that had not been pursued. That would be an absurdity and a miscarriage of justice. It is either one or the other.

As far as the amendment of the noble Lord, Lord Bach, is concerned, it seems to me that there again is an irrefutable case. I am not at all clear what triggers the situation where there would be a review by the first tribunal. Would it be something entirely within the discretion of that tribunal, or would it be on application? If it is within the discretion of the tribunal, it is a very strange situation that a tribunal is invited to consider whether it is in error.

Of course, I draw the distinction that has already been pointed out by the noble Lord, Lord Beecham. There is a world of difference between a point of law and an error of law. When a judge has adjudicated in a civil case and is invited to grant leave to appeal, he is not saying, "I am wrong", or, "I am sure that I am wrong, please appeal". What he is saying is that there is a point of law that is properly arguable. That is a very different situation from a tribunal which says, "We are wrong". In fact, I do not know of any other circumstance where such machinery exists in law, but I am sure I will be corrected with regard to that.

The basic principle that we are concerned with here is that legal advice on a point of law should belong to the beginning of an action, not to the end of it. So much anguish will be saved by a very modest expenditure. I believe that so much money from the public purse will be saved because there are undoubtedly downstream costs which will be massive in scale in relation to this. However, above all it is a question of miscarriage of justice.

We think of miscarriage of justice as a situation where a tribunal has come to an utterly wrong decision. It is not limited to that at all. A miscarriage of justice occurs where a person has a just, meritorious case, and on account of lack of money is unable to have that case properly adjudicated. If you ask any decent citizen

3 Dec 2012 : Column 484

of this land, whatever politics or total lack of politics he or she may have, "Do you believe in a miscarriage of justice?", we all know what the answer would be.

Lord Marks of Henley-on-Thames: My Lords-

Noble Lords: Minister!

Lord McNally: I have never been so popular.

A noble Lord: It won't last.

Lord McNally: I heard that as well. I am very grateful for the contributions to this debate and not least for all the free legal advice I have been given. It has been a useful debate and I have listened very carefully to the points made. A number of noble, and indeed noble and learned, Lords have raised the issue of judicial review. The difference is in approach between Regulations 53(b) and 39(d).

As I said earlier, the Government believe that the current drafting of Regulation 53(b) meets the concerns raised both here and in another place. However, having listened to the arguments that have been put forward today, I recognise the strength of feeling that the regulation has provoked. I make it clear at the outset that it has never been our intention to cut off legal aid for all judicial reviews. The noble Lord, Lord Beecham, was just setting a hare running about other plans for judicial review. In our view, this provision has been misunderstood.

That said, I have heard the anxieties that have been forcefully expressed about this provision. In the light of that, I believe we should put the situation beyond doubt by setting it out in the regulation. Therefore, having listened carefully and having consulted with colleagues, I can tell the House that, once these regulations are made, the Government will bring forward as soon as practicable, and in any event well before April 2013, amending regulations to revise Regulation 53(b). These regulations will introduce discretion into Regulation 53(b) so that the director of legal aid casework will have the express power to grant legal aid for public law claims, even if the alternative routes have not been exhausted, if he none the less considers that such an appeal or procedure would not be effective in providing the remedy that the individual requires. This would clearly address the situations that are causing noble Lords concern. It would, for example, put beyond doubt that legal aid for judicial review would be available where the claimant required urgent interim relief and this could not be provided in any other way.

I hope this will meet the concerns of the noble Lord, Lord Pannick, my noble and learned friend Lord Mackay of Clashfern, and others. Indeed, we will have the time to consult noble Lords about the wording of the amending order that I will bring forward in the new year. I hope that in the light of that the noble Lord will not press his regret Motion.

6.15 pm

Lord Reid of Cardowan: My Lords, for those of us who have experienced neither legal training nor legal practice but who have listened to the very articulate

3 Dec 2012 : Column 485

and understandable critique by many noble and learned friends, can the Minister answer this question for me? I very much welcome what he has said. Is it implicit in what he says that, whatever discretion is given, it will not only come into effect if the First-tier Tribunal decides that it has made an error in law? That was explicit in many of the critiques which have come out. Is that conditionality now removed?

Lord McNally: My Lords, I, too, am not a lawyer. I think that the noble Lord is asking what comes next, and that relates to the second order, not the first one, which the noble Lord, Lord Pannick, asked about. I will try to cover the point which he has raised when I get to that.

As I said, there was never any attempt on our part to change the rules as far as judicial review was concerned. However, when a former Lord Chancellor, a former Lord Chief Justice and a former Attorney General tell you that it needs clearing up, I think it is only wise to see whether it can be cleared up, and that is what we will do.

Moving on, I have explained in detail how we have listened to the concerns of this House-in particular, in extending legal aid in welfare areas. I have never hidden the fact that the LASPO Bill was a very difficult Bill involving some difficult choices. I can remember answering questions at this Dispatch Box two years ago, when we first launched the consultation. I said then that, if you have a system which is targeted to help the poorest and most disadvantaged in your society and you are forced to make cuts in that system, you are going to affect the poorest and most disadvantaged in your society. I have never hidden that fact.

The idea that LASPO was nothing other than a very difficult Bill is again before this House. Many of the arguments that have been deployed tonight were deployed during the passage of that Bill. However, I remind this House that the LASPO Bill is now an Act that went through both Houses of Parliament and carries with it financial implications that have to be considered when discussing any changes to it. There is no infinite pot of money available and we have to think very carefully about how taxpayer-funded money is spent. The Bill was therefore designed to ensure that public funding remains available for the most serious cases and for those who need it most. In making hard decisions and tough choices, we have listened to the concerns of some of the very same Peers who have spoken today, and we made changes during the passage of the LASPO Bill.

Not for the first time, the noble Lord, Lord Bach, claims that the Government have not listened. I take this opportunity to set the record straight. I remind the House of the Government's original proposal following the consultation on Proposals for the Reform of Legal Aid in England and Wales. Our response to the consultation stated that,

"it remains the Government's view that legal aid should be removed for welfare benefits cases, as proposed in the consultation. However, it will be retained for judicial review of welfare benefit decisions, and for claims about welfare benefits relating to a contravention of the Equality Act 2010 that are currently funded, as proposed in the consultation".


3 Dec 2012 : Column 486

That was our starting point. Since then, we have moved considerably from that position in response to arguments deployed in both Houses. During ping-pong on the LASPO Bill, having listened carefully to the arguments, we agreed to make available legal aid for advice and assistance for welfare benefit appeals on a point of law in the Upper Tribunal, including for applications made to the Upper Tribunal for permission to appeal. In addition, we agreed to make legal aid available for advice, assistance and representation for welfare benefit onward appeals in the Court of Appeal and Supreme Court. The order before us today makes a further concession which is not insignificant.

It may be helpful if I illustrate how this will work. An individual will make an appeal to the First-tier Tribunal against an administrative decision of a public authority. If the appeal is unsuccessful, the claimant can request a statement of reasons for the decision. The appellant can then apply to the First-tier Tribunal for permission to appeal to the Upper Tribunal. At this point, the First-tier Tribunal must consider whether to review its own decision if it considers that it has erred in law, and legal aid for advice and assistance will now be available in relation to that review. If the tribunal decides not to review, the next step is for the First-tier Tribunal to decide whether to grant or refuse permission to appeal to the Upper Tribunal. Where the tribunal refuses permission to appeal, the appellant can then apply directly to the Upper Tribunal for permission to appeal. Again, legal aid will be available for an application for this stage of the process. If permission is granted by the Upper Tribunal, then legal aid is again available for the substantive appeal before the Upper Tribunal.

Therefore, it is wrong and misleading to suggest that we are not making legal aid available in respect of points of law. As I mentioned in my opening remarks, we considered this matter in great detail following the debates during the passage of the Bill. We have explored every possible option to find a workable solution. Our considered assessment is that other methods of independent verification would have proved unworkable. We did consider the CAB proposals but we felt that they would create unreasonable cost and administrative burden. The cost is important. We have never tried to hide the fact that part of the exercise was for legal aid to make a contribution to the cuts in the spending review for the Ministry of Justice, a department which spends money only on prisons, probation, court services and legal aid. The proposals would have placed burdens on the successor to the Legal Services Commission, the tribunal judiciary and the Department for Work and Pensions.

In the Government's impact assessment we identified that, in 2009-10, we funded 135,000 instances of welfare benefits legal advice. If the judiciary had to consider up to 135,000 interlocutory applications for legal aid, the impact on the tribunal service would be severe, and it could lead to serious delays in the resolution of other cases. Similarly, if the Department for Work and Pensions or the successor to the Legal Services Commission had to consider that large number of cases before they could be funded, it would result in a significant extra administrative

3 Dec 2012 : Column 487

and cost burden. We do not believe it right to impose these additional burdens in the current economic climate.

We have therefore decided on the approach set out in the order. This would impose no additional burdens on the tribunal judiciary because it must already consider whether to conduct a review on receipt of an application for permission to appeal against a finding of the First-tier Tribunal. The tribunal can conduct a review only if it is satisfied that there has been an error of law in the First-tier Tribunal's decision.

Baroness Mallalieu: If the position is, as we have heard during this debate, that the noble and learned Lord, Lord Mackay, a former Lord Chancellor, and my noble friend Lord Bach, a Queen's Counsel, cannot agree on the interpretation of the wording of Article 3 of this order, is it not clear that people who have no legal qualification and are going to have to look at it to see whether they can obtain legal aid are going to be completely mystified? Whatever the merits or otherwise of the order which the Minister is addressing now, this is badly drafted, unclear and needs to be looked at again.

Lord McNally: I do not accept that. I accept that the lawyers may have glossed the patch a little, as the noble Lord, Lord Reid, acknowledged. We are discussing various complex matters of its operation. I go back to the point that our initial intention was to take welfare out of legal aid-something that the noble Lord, Lord Bach, has opposed from the very beginning; I understand and appreciate that. That does not take away the fact that we have argued our case through both Houses of Parliament and put an Act on to the statute book. This is about implementing that Act.

It is clear that the Government have listened. We have compromised. However, we can go no further with concessions which impact the fundamental objectives of our reform: to focus legal aid on the highest-priority cases while delivering the essential savings needed to address the deficit which is threatening this country's stability.

I was at a conference the other day where the noble Lord, Lord Bach, used a term which he may have been saving up for his final remarks. He said that next year we face a "perfect storm" in terms of welfare, in that we are indeed carrying through the LASPO reforms and the welfare reforms at the same time. That is going to introduce strain. However, the perfect storm would be if we lost control of our currency and economy, and if we lost markets. That is when the people whom we have heard about today, whom people want to protect, would really feel the full blast of economic problems. We are trying to-

[nickd]

Lord Howarth of Newport: I am grateful. The noble Lord used to tell the House that taking welfare benefits out of the scope of legal aid would save £25 million, but we know also that his department is dumping all kinds of costs on other departments through the health consequences and the damage to vulnerable children living in circumstances of great poverty.

3 Dec 2012 : Column 488

What is the noble Lord's assessment now of the net contribution to reducing the deficit made by his policy of removing access to justice for some of the neediest people in our society? Does he still think that it is £25 million? Does he think it is less? Does he think that that is the crucial difference that is going to avert fiscal disaster?

Lord McNally: I do not believe that these matters remove access to justice. I notice that an organisation called MyLegal put out quite a long briefing, the interesting bit of which was on the last page, where it said that Ken Clarke had said these measures would cost £25 million. The briefing said that that was wrong and that it was £14 million. The noble Lord, Lord Bach, said that it would cost only £5 million. What I do know is that it will have a cost. When I am carrying out my other responsibilities in the Ministry of Justice and I am suddenly told by this House, which has no responsibilities in the Ministry of Justice, that I have to find £5 million, £15 million or £25 million, there are decisions that must be made. I sit on boards where people lose their jobs and where the management of these changes is extremely difficult. I have never tried to hide that but I ask this House to have a sense of responsibility. We came up with a concession after a lot of exploration and talks with departments and various boards. It is a narrow concession but it comes on top of a whole range of other concessions which we believe retain legal aid in a vast swathe of the process of welfare and which we think is in keeping with the promises we made to Parliament.

I ask this House not to go further in voting on this. I must make it clear that, if the amendment is carried and this concession is lost, the Act is still an Act of Parliament and will still be implemented in April but without this concession. I would consider that a rather pyrrhic victory.

Lord Pannick: My Lords, I am very pleased that the Minister has agreed to bring forward amending regulations that will deal with Regulation 53(b) and I thank him for considering the points that have been made in the debate. He mentioned that the regulations would focus on whether the alternative remedy is effective. I hope that when he and his officials read the record of this debate, they will see that the concern is that the criterion should state that the issue is whether the alternative remedy is a reasonable one to use in all the circumstances. It is not just a question of efficacy; it is also a question of speed and convenience, for example. The Minister indicated that he would consult noble Lords who have expressed concern about this. I very much hope that he will take further advantage of the free legal advice available from, in particular, the noble and learned Lords, Lord Mackay of Clashfern, Lord Woolf and Lord Goldsmith. I would be very happy to act as their junior in this respect. On that basis, I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Motion agreed.

[nickd]

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012
10th Report from the Joint Committee on Statutory Instruments

Motion to Approve
6.33 pm

Moved By Lord McNally

That the draft order laid before the House on 29 October be approved.

Relevant document: 10th Report from the Joint Committee on Statutory Instruments

Amendment to the Motion

Moved by Lord Bach

As an amendment to the above Motion, leave out from "that" to the end and insert "this House declines to approve the draft Order laid before the House on 29 October as it does not fulfil the undertaking given by Her Majesty's Government on 17 April; and will mean claimants, including a disproportionate number of disabled people, will not receive legal help on a point of law in first-tier tribunals relating to welfare benefits thus denying them a fair hearing on point of law cases".

Lord Bach: My Lords, I spoke to my amendment earlier in the debate and the House will be relieved to hear that I have very few words to say at this stage. My case is this: how can it be right that there is automatic legal aid for any client who gets to the second-tier or upper tribunal-the Court of Appeal and the Supreme Court-on a welfare law case but no automatic right to legal aid for first-tier tribunals? You can get to the second-tier tribunal or the Court of Appeal or the Supreme Court only on a point of law. If that is the position, how can it be right that at a first-tier tribunal, when a client has a point of law, they should not be allowed some legal advice before the first-tier tribunal commences-in other words, before the first-tier tribunal or during it? It is no use being able to get it at the very end of the first-tier tribunal in very remarkable and odd circumstances.

The Government seem to believe that was appropriate logic because that is the concession they were generous enough to make in the House of Commons on 17 April 2012. But they have not kept to that concession. They have come up with something much more vague; something that will happen in very, very few cases.

I am very grateful to the Minister for the time he has taken with this and to all noble Lords who have spoken on my amendment. When the Minister answered a question from me the other day he said:

"I want to make sure that we maintain a legal aid system that will remain one of the most generous in the world and focus it on the most needy".-[Official Report, 27/11/12; col. 90.]

Can noble Lords think of anyone who is more needy than the sort of person that the noble Baroness, Lady Doocey, was describing-a disabled person who has undergone some of these tests in order to get her or his benefits, who is not happy with the result, thinks something has gone wrong and wants to appeal? What the Government are intending is that that person

3 Dec 2012 : Column 490

should not have the ability to get legal aid in order to appeal to the first-tier tribunal even when the matter is a point of law which they cannot be expected to know or understand. It defies logic and fairness to suggest that kind of process should continue.

All we are asking is that the Government withdraw this Motion, which they are clearly not prepared to do tonight. If they will not withdraw it, I shall ask the House, in a completely non-partisan spirit, to decline to give approval to this Motion tonight and invite the Government to come back with a slightly more generous order that looks after the type of person the noble Baroness, Lady Doocey, was telling us about earlier in our debate.

Lord McNally: My Lords, we are almost on the verge of another financial Statement by the Chancellor. I have made it clear that the noble Lord must not lure the House into an idea that following him into the Division Lobby will produce a better offer because it will not.

Lord Bach: Is the noble Lord saying that he will not come back with anything on this matter if this amendment is carried? I think that that is a threat that the House should be very wary of accepting at such a late stage in the debate.

Lord McNally: It is not a threat. I just do not want the House to make a decision on such an idea. This is not the Committee stage of a Bill. The order relates to what is already an Act of Parliament. If we do not bring forward another order in this area, the Act simply will go through. I want the House to be aware of that fact.

Lord Bach: There is a framework Act of Parliament, passed by Parliament, which I have never sought to go behind. These orders add flesh to those bones. This is a very important order. In any event, the Government would have to have some kind of order on these matters. On this occasion, the Government have, in effect, not kept with the intention that they certainly had in the House of Commons. By announcing what they did in the Commons, they managed not to lose a vote and to get the Bill through. As a consequence, it is a serious matter.

Lord Phillips of Sudbury: I am grateful to the noble Lord, Lord Bach-I almost said "my noble friend", which he is. My noble friend Lord McNally has not commented on the noble Lord's fundamental assertion on which, for me, the strength of the case rests; namely, that the former Lord Chancellor made a clear undertaking which is now not being kept. Would it not be helpful to the House for the noble Lord, Lord Bach, to ask my noble friend Lord McNally for his comment on that?

Lord Bach: That would be a fair question to the noble Lord, Lord McNally, who has had every opportunity to answer it and has chosen not to.

Lord McNally: I will answer it-I answered it in my remarks. The Lord Chancellor said that he would take the matter away and use his best endeavours. I have seen the exchange of papers with the DWP, the Legal

3 Dec 2012 : Column 491

Services Commission and the Administration on whether this could be done. We have come back with our best endeavours. This casual throwing around of betrayal fires the troops up for voting but it simply is not true.

Lord Bach: I would not dream of using the word betrayal as regards this matter. The noble Lord misunderstands me completely. It is not a betrayal. The governing party in the House of Commons said that it intended to do something and, in that way, managed to get an adverse amendment withdrawn. It has come up with a solution but the solution is not the concession that it made in the House of Commons. That is the fact of the matter. It is a much narrower solution and it is deeply unsatisfactory for those who are interested in how the poor, the disabled and the vulnerable are looked after in our society and their rights to access to justice.

For that reason, I ask the House to decline to approve this order, so that the Government can think again and come back with an order which we can all accept. I beg to move.

6.41 pm

Division on Lord Bach's amendment.

Contents 201; Not-Contents 191.

Amendment agreed.

[nickd]

How they voted on Lord Bach's fatal motion

Government lost the vote by 10 (201 against 191)(


www.publicwhip.org.uk/division.php?date=2012-12-03&number=1&house=lords&showall=yes#voters

134 Conservatives voted no

Con no Lord Ahmad of Wimbledon
Con tellno Baroness Anelay of St Johns
Con no The Earl of Arran
Con no Lord Ashton of Hyde
Con no Lord Astor of Hever
Con no Earl Attlee
Con no Lord Baker of Dorking
Con no Lord Bates
Con no Baroness Berridge
Con no Lord Black of Brentwood
Con no Lord Blackwell
Con no Lord Blencathra
Con no Lord Bowness
Con no Viscount Bridgeman
Con no Lord Brittan of Spennithorne
Con no Lord Brooke of Sutton Mandeville
Con no Lord Brougham and Vaux
Con no Baroness Browning
Con no Baroness Buscombe
Con no Baroness Byford
Con no The Earl of Caithness
Con no Earl Cathcart
Con no Lord Cavendish of Furness
Con no Baroness Chalker of Wallasey
Con no Lord Colwyn
Con no Lord Cope of Berkeley
Con no The Earl of Courtown
Con no Lord Crickhowell
Con no Baroness Cumberlege
Con no Lord de Mauley
Con no Lord Dixon-Smith
Con no Lord Dobbs
Con no Viscount Eccles
Con no Baroness Eccles of Moulton
Con no Lord Eden of Winton
Con no Lord Edmiston
Con no Lord Elton
Con no Lord Faulks
Con no Lord Feldman of Elstree
Con no Lord Fink
Con no Baroness Fookes
Con no Lord Forsyth of Drumlean
Con no Lord Fowler
Con no Lord Framlingham
Con no Lord Fraser of Carmyllie
Con no Lord Freeman
Con no Lord Freud
Con no Lord Gardiner of Kimble
Con no Baroness Gardner of Parkes
Con no Lord Geddes
Con no Lord Gold
Con no Lord Goodlad
Con no Viscount Goschen
Con no Lord Grade of Yarmouth
Con no Lord Green of Hurstpierpoint
Con no Lord Hamilton of Epsom
Con no Baroness Hanham
Con no Lord Harris of Peckham
Con no Lord Henley
Con no Baroness Heyhoe Flint
Con no Lord Hill of Oareford
Con no Lord Hodgson of Astley Abbotts
Con no Lord Howard of Lympne
Con no Lord Howard of Rising
Con no Earl Howe
Con no Lord Howell of Guildford
Con no Lord Hunt of Wirral
Con no Lord Hurd of Westwell
Con no Lord Inglewood
Con no Lord James of Blackheath
Con no Baroness Jenkin of Kennington
Con no Lord Jenkin of Roding
Con no Lord Jopling
Con no Lord King of Bridgwater
Con no Lord Kirkham
Con no Baroness Knight of Collingtree
Con no Lord Lexden
Con no Lord Lingfield
Con no The Earl of Liverpool
Con no Lord Luke
Con no Lord Lyell
Con no Lord Mackay of Clashfern
Con no Lord MacLaurin of Knebworth
Con no Lord Marland
Con no Lord Marlesford
Con no Lord Mawhinney
Con no Lord Mayhew of Twysden
Con no Lord McColl of Dulwich
Con no The Duke of Montrose
Con no Lord Moore of Lower Marsh
Con no Baroness Morris of Bolton
Con no Lord Moynihan
Con no Lord Naseby
Con no Baroness Neville-Jones
Con no Baroness Newlove
Con no Baroness Noakes
Con no Lord Norton of Louth
Con no Lord Palumbo
Con no Lord Plumb
Con no Lord Popat
Con no Baroness Rawlings
Con no Lord Renfrew of Kaimsthorn
Con no Lord Ribeiro
Con no Lord Roberts of Conwy
Con no Lord Ryder of Wensum
Con no Lord Sassoon
Con no Baroness Seccombe
Con no The Earl of Selborne
Con no Lord Selkirk of Douglas
Con no Lord Selsdon
Con no Baroness Shackleton of Belgravia
Con no Baroness Sharples
Con no Lord Shaw of Northstead
Con no Lord Sheikh
Con no Baroness Shephard of Northwold
Con no The Earl of Shrewsbury
Con no Lord Spicer
Con no Baroness Stedman-Scott
Con no Lord Stewartby
Con no Baroness Stowell of Beeston
Con no Lord Strathclyde
Con no Lord Taylor of Holbeach
Con no Lord Trimble
Con no Lord True
Con no Lord Tugendhat
Con no Viscount Ullswater
Con no Baroness Verma
Con no Lord Wakeham
Con no Baroness Warsi
Con no Lord Wasserman
Con no Lord Wei
Con no Baroness Wheatcroft
Con no Baroness Wilcox
Con no Viscount Younger of Leckie

169 Yes - Labour with 1 DUP/1 Ind Lab/2 Lib dems


DUP aye Lord Browne of Belmont
Ind Lab aye Lord Stoddart of Swindon
Lab aye Baroness Adams of Craigielea
Lab aye Lord Ahmed
Lab aye Lord Anderson of Swansea
Lab aye Baroness Andrews
Lab aye Baroness Armstrong of Hill Top
Lab aye Lord Bach
Lab aye Baroness Bakewell
Lab aye Lord Barnett
Lab tellaye Lord Bassam of Brighton
Lab aye Lord Beecham
Lab aye Lord Berkeley
Lab aye Baroness Billingham
Lab aye Lord Bilston
Lab aye Lord Borrie
Lab aye Lord Bradley
Lab aye Lord Brooke of Alverthorpe
Lab aye Lord Brookman
Lab aye Lord Browne of Ladyton
Lab aye Lord Campbell-Savours
Lab aye Lord Carter of Coles
Lab aye Viscount Chandos
Lab aye Lord Christopher
Lab aye Lord Clark of Windermere
Lab aye Lord Clinton-Davis
Lab aye Lord Collins of Highbury
Lab aye Baroness Corston
Lab aye Baroness Crawley
Lab aye Lord Davidson of Glen Clova
Lab aye Lord Davies of Coity
Lab aye Lord Davies of Oldham
Lab aye Baroness Dean of Thornton-le-Fylde
Lab aye Lord Desai
Lab aye Baroness Donaghy
Lab aye Lord Donoughue
Lab aye Lord Dubs
Lab aye Lord Elder
Lab aye Lord Evans of Temple Guiting
Lab aye Lord Evans of Watford
Lab aye Baroness Farrington of Ribbleton
Lab aye Lord Faulkner of Worcester
Lab aye Lord Filkin
Lab aye Baroness Ford
Lab aye Lord Foster of Bishop Auckland
Lab aye Lord Foulkes of Cumnock
Lab aye Baroness Gale
Lab aye Baroness Gibson of Market Rasen
Lab aye Baroness Golding
Lab aye Lord Goldsmith
Lab aye Lord Gordon of Strathblane
Lab aye Baroness Gould of Potternewton
Lab aye Lord Grocott
Lab aye Lord Harris of Haringey
Lab aye Lord Harrison
Lab aye Lord Hart of Chilton
Lab aye Lord Haskel
Lab aye Lord Haworth
Lab aye Baroness Hayter of Kentish Town
Lab aye Baroness Healy of Primrose Hill
Lab aye Baroness Henig
Lab aye Baroness Hilton of Eggardon
Lab aye Lord Hollick
Lab aye Baroness Hollis of Heigham
Lab aye Lord Howarth of Newport
Lab aye Baroness Howells of St Davids
Lab aye Lord Howie of Troon
Lab aye Lord Hoyle
Lab aye Baroness Hughes of Stretford
Lab aye Lord Hughes of Woodside
Lab aye Lord Hunt of Kings Heath
Lab aye Lord Irvine of Lairg
Lab aye Lord Janner of Braunstone
Lab aye Baroness Jay of Paddington
Lab aye Lord Jones
Lab aye Baroness Jones of Whitchurch
Lab aye Lord Jordan
Lab aye Lord Judd
Lab aye Lord Kennedy of Southwark
Lab aye Baroness Kennedy of The Shaws
Lab aye Baroness King of Bow
Lab aye Lord King of West Bromwich
Lab aye Lord Kinnock
Lab aye Baroness Kinnock of Holyhead
Lab aye Lord Kirkhill
Lab aye Lord Knight of Weymouth
Lab aye Lord Layard
Lab aye Lord Lea of Crondall
Lab aye Lord Liddle
Lab aye Lord Lipsey
Lab aye Baroness Lister of Burtersett
Lab aye Lord Macdonald of Tradeston
Lab aye Lord MacKenzie of Culkein
Lab aye Lord Mackenzie of Framwellgate
Lab aye Baroness Mallalieu
Lab aye Lord Mandelson
Lab aye Lord Martin of Springburn
Lab aye Baroness Massey of Darwen
Lab aye Lord Maxton
Lab aye Lord McAvoy
Lab aye Baroness McDonagh
Lab aye Baroness McIntosh of Hudnall
Lab aye Lord McKenzie of Luton
Lab aye Lord Mitchell
Lab aye Lord Moonie
Lab aye Lord Morgan
Lab aye Lord Morris of Aberavon
Lab aye Lord Morris of Handsworth
Lab aye Baroness Morris of Yardley
Lab aye Lord Noon
Lab aye Baroness Nye
Lab aye Lord O'Neill of Clackmannan
Lab aye Lord Patel of Blackburn
Lab aye Lord Pendry
Lab aye Lord Peston
Lab aye Baroness Pitkeathley
Lab aye Lord Plant of Highfield
Lab aye Lord Ponsonby of Shulbrede
Lab aye Lord Prescott
Lab aye Baroness Prosser
Lab aye Baroness Quin
Lab aye Lord Radice
Lab aye Baroness Ramsay of Cartvale
Lab aye Lord Rea
Lab aye Lord Reid of Cardowan
Lab aye Baroness Rendell of Babergh
Lab aye Lord Rooker
Lab aye Lord Rosser
Lab aye Lord Rowlands
Lab aye Baroness Royall of Blaisdon
Lab aye Lord Sawyer
Lab aye Baroness Scotland of Asthal
Lab aye Lord Sheldon
Lab aye Baroness Sherlock
Lab aye Viscount Simon
Lab aye Baroness Smith of Basildon
Lab aye Lord Smith of Finsbury
Lab aye Baroness Smith of Gilmorehill
Lab aye Lord Snape
Lab aye Lord Soley
Lab aye Lord Stevenson of Balmacara
Lab aye Baroness Symons of Vernham Dean
Lab aye Lord Taylor of Blackburn
Lab aye Baroness Taylor of Bolton
Lab aye Lord Temple-Morris
Lab aye Baroness Thornton
Lab aye Lord Tomlinson
Lab aye Lord Triesman
Lab tellaye Lord Tunnicliffe
Lab aye Lord Turnberg
Lab aye Baroness Turner of Camden
Lab aye Baroness Uddin
Lab aye Baroness Wall of New Barnet
Lab aye Lord Warner
Lab aye Baroness Warwick of Undercliffe
Lab aye Lord Watson of Invergowrie
Lab aye Lord West of Spithead
Lab aye Baroness Wheeler
Lab aye Baroness Whitaker
Lab aye Lord Whitty
Lab aye Lord Williams of Baglan
Lab aye Lord Wills
Lab aye Lord Winston
Lab aye Lord Wood of Anfield
Lab aye Lord Woolmer of Leeds
Lab aye Baroness Worthington
Lab aye Lord Young of Norwood Green
LDem aye Baroness Doocey
LDem aye Baroness Tonge

45 Lib Dem 1 UUP no

LDem no Lord Alderdice
LDem no Lord Allan of Hallam
LDem no Baroness Bonham-Carter of Yarnbury
LDem no Baroness Brinton
LDem no Lord Burnett
LDem no Lord Dholakia
LDem no Lord Fearn
LDem no Baroness Garden of Frognal
LDem no Lord German
LDem no The Earl of Glasgow
LDem no Lord Hussain
LDem no Baroness Hussein-Ece
LDem no Baroness Jolly
LDem no Lord Lee of Trafford
LDem no Lord Loomba
LDem no Baroness Maddock
LDem no Lord Marks of Henley-on-Thames
LDem no Lord McNally
LDem tellno Lord Newby
LDem no Baroness Northover
LDem no Lord Oakeshott of Seagrove Bay
LDem no Lord Palmer of Childs Hill
LDem no Baroness Parminter
LDem no Baroness Randerson
LDem no Lord Razzall
LDem no Lord Redesdale
LDem no Lord Roberts of Llandudno
LDem no Lord Rodgers of Quarry Bank
LDem no Baroness Scott of Needham Market
LDem no Lord Sharkey
LDem no Lord Shutt of Greetland
LDem no Lord Smith of Clifton
LDem no Lord Stephen
LDem no Lord Stoneham of Droxford
LDem no Lord Taylor of Goss Moor
LDem no Lord Teverson
LDem no Lord Tope
LDem no Lord Tordoff
LDem no Lord Tyler
LDem no Baroness Tyler of Enfield
LDem no Lord Wallace of Saltaire
LDem no Lord Wallace of Tankerness
LDem no Baroness Walmsley

UUP no Lord Empey

29 Crossbench Yes

Crossbench aye Lord Best
Crossbench aye Lord Bichard
Crossbench aye Lord Bilimoria
Crossbench aye Lord Blair of Boughton
Crossbench aye Viscount Clancarty
Crossbench aye Baroness Coussins
Crossbench aye Baroness Deech
Crossbench aye Lord Elystan-Morgan
Crossbench aye Baroness Grey-Thompson
Crossbench aye Lord Harries of Pentregarth
Crossbench aye Lord Kerr of Kinlochard
Crossbench aye The Countess of Mar
Crossbench aye Baroness Masham of Ilton
Crossbench aye Baroness Meacher
Crossbench aye Baroness O'Neill of Bengarve
Crossbench aye Lord Ouseley
Crossbench aye Lord Palmer
Crossbench aye Lord Pannick
Crossbench aye Lord Patel of Bradford
Crossbench aye Baroness Prashar
Crossbench aye Lord Ramsbotham
Crossbench aye Lord Robertson of Port Ellen
Crossbench aye The Earl of Sandwich
Crossbench aye Lord St John of Bletso
Crossbench aye Baroness Stern
Crossbench aye Baroness Warnock
Crossbench aye Lord Wilson of Tillyorn
Crossbench aye Lord Woolf
Crossbench aye Baroness Young of Hornsey

12 Crossbench No

Crossbench no Lord Brabazon of Tara
Crossbench no Viscount Brookeborough
Crossbench no Lord Condon
Crossbench no Viscount Craigavon
Crossbench no Lord Craig of Radley
Crossbench no Lord Dear
Crossbench no The Earl of Erroll
Crossbench no Lord Laming
Crossbench no Lord Luce
Crossbench no Lord Maginnis of Drumglass
Crossbench no Lord Mawson
Crossbench no Lord Rogan