Tuesday was the fifth day of the line-by-line scrutiny of the Legal Aid bill in the Lords and it produced the first positive result for the opponents of the bill. The government announced that one of the most controversial elements of the bill – the means testing of suspects held in police stations – has been abandoned.

Former director of public prosecutions Lord Macdonald had just risen to propose an amendment to the much criticised clause 12 when, for the government, Lord McNally intervened. He said: “My Lords, if I may interrupt, this may ruin a few speeches but I think it will help if I say that the Government intend to table an amendment to Clause 12 on Report that will remove the power to introduce means testing for initial advice and assistance at the police station.” He went on to confirm that: “For an individual in custody at a police station, or other premises, legal aid will be provided under Clause 12.” At Report stage in the Commons last November, justice minister Djanogly had said: “I appreciate that there are many deeply held concerns across the House and more widely on both the principle and the practicality of means-testing for advice and assistance for those in police custody and in relation to the concept of contingent legislation…I can confirm that we will, therefore, carefully review our approach to these clause issues as the Bill goes through its stages in another place.” The promised review has borne fruit.

This was a welcome relief from the shadow boxing that has occupied the first five days of the Committee stage in the Lords. Over 100 amendments have so far been considered. The government have proposed several textual amendments which have all been agreed, and many other amendments were not moved. The majority of amendments have been debated but all have been withdrawn without being put to the vote. There have been over 30 hours of rhetoric, almost entirely hostile to the provisions of the bill, but the opponents have not laid a glove on the government.

Already many contentious matters have been raised. On Committee days 4 and 5 these included: young people; domestic violence; the definition of abuse; public funding for judicial review claims; those unlawfully deprived of their liberty; the victims of people trafficking; family reunion cases; debt issues; legal aid for employment matters and support for victims of unlawful practice; exceptional cases; and citizens advice bureaux, law centres and other not-for-profit advice and support agencies. Many amendments have been withdrawn on the vaguest government promise “to look again” at the particular matter before Report stage. But, as has been said before, government promises are like pie crusts – made to be broken.

Committee day 6 is listed for next Monday, 30 January. It is to be hoped that some of the teeth shown by their lordships in consideration of the Welfare Reform and the National Health Service bills can be brought to bear on the legal aid proposals. As it is, a great deal seems to be being left to Report stage.

The Lords continued their examination of the Legal Aid, Sentencing and Punishment of Offenders Bill on Monday, starting with Clause 8, which makes provisions about when civil legal services would be made available.

Amendment 21 was moved by Lord Beecham. He said that the bill sought to make legal aid provision a matter of exception rather than of course. Instead of listing only matters that would be eligible for legal aid, they exclude everything except those matters that are contained within the clause. The amendment would reverse the way that the Government are putting matters. It was withdrawn without being put to the vote.

Amendment 22, moved by Lord Faulks, concerned Clause 8(2), which gives the Lord Chancellor the power to modify Part 1 of Schedule 1 so as to omit services from the scope of legal aid and assistance. He said that the power would allow the Lord Chancellor to remove areas from the scope of legal aid without proper debate on the Floor of the House. After debate, he said: “I very much hope that, when this matter comes back on Report, those concerns can be reflected by the Minister. In that guise, I am happy to withdraw this amendment.” Amendments 23 to 27 were not moved.

Consideration moved on to Schedule 1: Civil legal services. Amendment 28 was moved by Lord Lloyd of Berwick, one of a group of amendments concerning clinical negligence proceedings and expert reports. All the amendments were directed towards the retention of legal aid in clinical negligence cases. Lord Wigley said: “Many people involved in cases arising from clinical negligence by a public authority are among the most destitute…Considering the inequality of arms that inevitably arises, having access to expert reports is vital. To put this debate into context, there are about 1 million adverse accidents in the NHS every year.” The debate – described as “very thoughtful” because so many of those who participated had experience, either legal or medical, of cases of this kind – looked at the best way to fund the expert report and resulted in the amendment’s withdrawal pending further figures from the government. Amendments 29 to 31 were not moved.

Baroness Doocey proposed amendment 32, relating to the ability of claimants, the majority of whom are disabled, to appeal against decisions on their entitlement to welfare benefits. She said that the Bill as it stands would remove social welfare cases from the scope of legal aid. “The need for such legal aid is best demonstrated by the fact that nearly 40 per cent of all appeals against work capability assessment decisions are upheld.” After a lively debate and a robust response from minister Lord McNally, Baroness Doocey said: “I really hope that the Minister will reflect again and consider bringing back some hope at Report stage. Meanwhile, I beg leave to withdraw my amendment.”

Baroness O’Loan proposed amendment 33, which sought to restore families with dependent children to the list of those eligible for legal aid and advice. She said: “Some 650,000 of the poorest people will be deprived of the access that they currently have through solicitors, CAB law centres and other advice centres…140,000 children will be affected by the proposed measures as legal aid is withdrawn from the adults who care for them, and…at least 6,000 children will be deprived of legal aid altogether.” In response to the debate, Lord McNally said: “I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.” She did.

More to come, with day four scheduled for Wednesday, 18 January.

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On Monday the Legal Aid, Sentencing and Punishment of Offenders Bill came before the Lords for its second reading. In eight hours there were over fifty contributors to a high quality debate.

Part 2 (litigation funding and costs) and part 3 (sentencing and punishment of offenders) did not feature greatly in the exchanges, and were largely approved. Overwhelmingly the debate concerned part 1 of the bill – legal aid. And overwhelmingly the contributors opposed the government’s proposals.

Baroness Scotland said: “Justice should be available in times of good and ill. In times of ill, it is more necessary than ever.” She quoted the late Lord Bingham when he argued “that one of the ingredients of the rule of law itself was that ‘means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve.” Lord Bingham went on to say that “denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law.” Lord Pannick looked back to the speech of Sir Hartley Shawcross, the Attorney-General, when he introduced the Legal Aid and Advice Bill in December 1948. He said: “His concern and the concern of the Labour Government in those days was that the doors of the courts were in theory open to ordinary people, ‘just as the grill room at the Ritz Hotel is open to all’, but obtaining and acting on legal advice were ‘luxuries which were beyond their reach’.”

Viscount Simon was concerned that taking clinical negligence out of the scope of legal aid will prevent vast numbers of people ever having their case properly investigated. “Because the vast majority of clinical negligence victims are harmed at the hands of a state body – the NHS – there is a strong moral argument that the state should ensure that these people have access to justice,” he said. Baroness Gould said: “The Bill is discriminatory and will entrench inequality for women, people from minority ethnic groups, disabled people and other groups facing discrimination, all of whom will be disproportionately affected.” Drawing on some 25 years’ experience of legal aid litigation, Lord Clinton-Davis said: “The real trouble with this Bill is that there will be no savings: indeed, the very reverse. Unrepresented persons will appear before courts and tribunals and many, through no fault of their own, will make false and incoherent points. Time will be wasted.”

Baroness Kennedy expressed concern that “having ready access to a lawyer will be replaced by a telephone hotline, a sort of call centre. We all know the problems that we have with call centres in every other area of our lives; imagine it when you are in distress and in need of decent legal advice.” Lord Elystan-Morgan asserted that “unless a Government of the future pass a one-clause Bill to abolish legal aid completely, the contents of this Bill and the proposals surrounding them must constitute the most savage and most deadly attack upon the institution of legal aid in the 62 years of its existence.”

As chief prosecutor, Lord Macdonald had seen the extent of the scourge of domestic violence, its impact on those who suffered it, who were mainly women, and its impact on the children, who usually witnessed it. He said: “An inevitable consequence of the Bill’s approach to domestic violence is that more people – again, mainly women and children – will be trapped in more abusive relationships with no succour at all from our law. I venture to suggest to noble Lords that that is a situation that would bring shame upon our entire legal system.” On means testing at the police station he said: “Are we really to say that no interview is going to take place before a means test is considered, no charge may be preferred until the financial forms are filled out and passed – mortgage payments, rents, wage slips, debts, assets and all the rest of it? It is – I choose my words carefully – a foolish notion. Who is going to calculate the cost of this in wasted time and disruption to the forensic process?”

Replying to the debate, minister of state Lord McNally said: “It is not true that we brushed aside the Law Society’s wonderful ideas for saving the money in different ways. We considered its proposals very carefully…A great deal of its proposals were shuffling responsibilities and costs around Whitehall or producing new taxes, which is not the same as making savings.”

The Bill was read a second time and committed to a Committee of the Whole House, on a date to be arranged. That’s when the serious business of attempting amendments to the bill will take place.

A Call for Evidence is a consultation paper containing proposals for change and new policies, which invites the public to comment within a given time period. The Ministry of Justice has recently announced two such consultations on European Commission initiatives.

The first seeks views on the EC’s Green Paper on potential changes to contract law. Published on 1 July, it sets out a number of proposals for progressing towards a European Contract Law for consumers and businesses. The Green Paper is based on the premise that the variety and divergence of contract laws operating in each of the EU Member States hinders the smooth operation of internal markets and makes dispute resolution across EU borders difficult. It looks at whether such situations require a European Union level response and details seven possible approaches ranging from maintaining the status quo through to the creation of a mandatory common code of contract law.

Justice Minister Lord McNally said: “The Government wants to hear views to ascertain whether changes to cross-border contract law are needed and to assess what the impact of each of the European Commission’s options will be. It is important that the Government provides a well-evidenced response to the European Commission and I encourage all those with an interest to share their views.” Closing date for contributions is 26 November 2010. The full text of the EC Green Paper can be found at:-

http://ec.europa.eu/justice_home/news/consulting_public/news_consulting_0052_en.htm

The second Call for Evidence seeks evidence about how the European Data Protection Directive 95/46/EC and the Data Protection Act 1998 are working, and their impact on individuals and organisations.

The Directive was conceived and negotiated during the early 1990s. This was at a time when computer technology was primitive by today’s standards and the internet was in its early stages. Since the Directive came into force, the last fifteen years have seen great advancement in technology, leading to more sophisticated ways of conducting businesses. The purpose of the Call for Evidence is to seek information about areas of the Directive (and therefore the DPA 1998) that may be out of date or could be improved, and also those areas that are working well and should be retained. With the growth of cross-border direct marketing and e-commerce, increasing numbers of marketers are gathering, processing and managing the personal data of individuals from across Europe and elsewhere. All of this increases opportunities for personal data originating in one country to be processed in another. And, with these advantages, there are also a number of risks, such as the potential to misuse personal data overseas in countries with less robust legal frameworks, causing substantial damage.

At the same time as launching this Call for Evidence, the Government has published a provisional post implementation review impact assessment of the Data Protection Act 1998, on which MoJ would also welcome comments. The full text of this review can be found at:

http://www.justice.gov.uk/consultations/docs/post-implementation-review-impact-assessment-2010.pdf

Closing date for substantive contributions is 6 October 2010, and the full text of the Call for Evidence can be found at:

http://www.justice.gov.uk/consultations/docs/dpa-call-evidence-02-07-2010.pdf

Party manifestos are really little more than wish lists. But the unprecedented Tory and Liberal coalition agreement, produced at breakneck speed, and to be followed in due course by a final and fully comprehensive agreement, is something else. It is little short of a Queen’s speech for a whole parliament. Section 10 of the agreement is about civil liberties. The preamble states: “The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.” There follow 12 specific pledges.

 Britain leads the world in the use of CCTV. As a result, surveillance has become an inescapable part of life. Britain has a larger DNA base and more police powers and email snooping than any comparable liberal democracy. The agreement pledges further regulation of CCTV, the ending of storage of internet and email records without good reason and the adoption of the protections of the Scottish model for the DNA database. The presumption of innocence and the principle that every defendant has the right to be tried by a jury were weakened by the Domestic Violence, Crime and Victims Act 2004 and the right to silence was further eroded by the Counter-Terrorism Act 2008. Under the same Act an individual and his lawyers may be barred from court proceedings. Freedom to communicate in private has been effectively extinguished by the Regulation of Investigatory Powers Act 2000. The rights to freedom of assembly and demonstration were eroded by the Anti-Social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005. The coalition agreement promises the protection of historic freedoms through the defence of trial by jury and the restoration of rights to non-violent protest.

In June last year, the law lords dealt a major blow to the controversial use of control orders on terror suspects, saying that reliance on secret evidence denies them a fair trial. The then Liberal Democrat home affairs spokesman, Chris Huhne, and Chris Grayling, the then shadow home secretary, went on record to welcome the law lords’ decision and to demand an end to “cruel and counter-productive punishments without trial”. Under section 44 Terrorism Act 2000 police can stop and search anyone in a designated area without suspicion that an offence has occurred. Last year a total of 117,278 people were stopped and searched. The coalition agreement promises safeguards against the misuse of anti-terrorism legislation.

Kenneth Clarke, the new Justice secretary, and his team, including Lord McNally, Lib Dem leader in the Lords, will immediately commence work on the promised ‘Freedom or Great Repeal Bill.’ Other major provisions include the scrapping of the ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database; the outlawing of finger-printing of children at school without parental permission; and the extension of the scope of the Freedom of Information Act to provide greater transparency. There will be a review of libel laws to protect freedom of speech and a new mechanism to prevent the proliferation of unnecessary new criminal offences.

The full text of the Conservative Liberal Democrat coalition Agreement can be found at:-

http://www.conservatives.com/News/News_stories/2010/05/Coalition_Agreement_published.aspx