Child Poverty Bill

My Lords, I thank the noble Lord, Lord Wallace, for this amendment. It gives us the chance to put something clearly on the record. As the noble Lord has outlined, the amendment has been prompted by correspondence from the Law Society of Scotland and concerns that it has expressed regarding the extent to which the duties in the Bill could be enforceable in Scotland, given the different legal system there. Some noble Lords present may have seen my response to that correspondence, but for the benefit of others I shall set out the arguments again today. I assume that the intention behind the amendment is to explore whether a judicial review of failure to comply with the duty in Clause 1 to meet the targets is available. It may also be to make it clear that judicial review can be brought in relation to breaches of the Clause 1 duties in the courts in Scotland as well as in England and Wales—indeed, I think that that was the thrust of the amendment. It is not clear that the amendment as drafted would achieve its purpose. The amendment uses a number of terms that are more generally used in private law and are therefore unclear in this context. In addition, as I understand it, the sheriff court does not hear judicial reviews in Scotland; that is for the Court of Session. Furthermore, in other contexts where the word "actionable" is used, it is explained who may bring an action, but the amendment is silent on this point. As I have previously explained, the Bill is not intended to create duties in private law. It is also not intended to create any individual rights or any rights to damages for financial loss. The Bill is about placing a duty on the Secretary of State to meet targets, and using the Bill to grant individual rights would detract from that. The amendment therefore adds very little, if anything, to the Bill, because the duties in the Bill can be enforced through judicial review in the courts in Scotland and in England and Wales. The duties in Clause 1 are legally enforceable by anyone in the UK and the court may grant such remedy as it considers appropriate. I shall come back to that in more detail in response to the probing of the noble Lord, Lord Freud. If an individual wishes to bring an action against the Secretary of State, that individual must pursue the action through the administrative courts by way of judicial review, which will involve showing title and interest in Scotland—the noble Lord acknowledged that—or standing in England. The amendment would not change the rules on title, interest and standing, and any person bringing a challenge would still need to show that they met these criteria. The rules on standing are in place so that purely academic claims are not brought and to ensure that a claimant or petitioner has a real interest in the case. It is true that—and this is a quote from the correspondence— ""because of the differences between the two legal systems, it may be more difficult for an interest group to bring a judicial review in Scotland than in England and Wales"." However, it remains a matter for the Scottish courts to decide whether a pursuer has title and interest, just as it would be for the courts in England and Wales to consider in each case whether an interest group has standing. What I am trying to say is that the amendment would not create that standing or that interest, which would have to be assessed by the court in all the circumstances of the case. The noble Lord asked how legal aid might operate. I understand that there are no restrictions on residents on getting legal aid from the Legal Services Commission. Therefore, if a claimant meets the normal means and merits tests for legal aid, there would be nothing to prevent a Scottish claimant from getting legal aid to pursue a claim in the English courts. However, it should be noted that legal aid is available only to individuals, not to businesses or companies. In the case of a judicial review, if a group of individuals brings a judicial review in the name of an interest group, it is possible for the group to get legal aid or, more usually, a contribution towards its legal costs even if the case is brought in the name of the charity or group. The noble Lord, Lord Freud, asked about the consequences of an adverse judicial review. I apologise to him if he has only just received the correspondence, which picked up on the discussion that we had in Committee on enforceability. All judicial review remedies are at the discretion of the court. The court might grant a declaration that the Government had acted in breach of their statutory duties. Therefore, if the targets are not met in 2020, the court might declare that the Secretary of State had acted in breach of the requirement in the Bill to meet them, which could result in political embarrassment. The court could also grant an order quashing a particular policy decision or making a mandatory order requiring the Secretary of State to take a particular course of action. As to what power the courts would have to order that necessary resources should be made available, it is difficult to predict what remedies the court would prescribe and it is not appropriate for the Government to attempt to do so. The full range of judicial review remedies would be available to the court. I hope that, on that basis, the noble Lord will not press his amendment. We believe that the form of it is more focused on issues of private law, whereas we are dealing here with judicial review. We believe that the existing rules around judicial review are sufficient to enable enforcement in Scotland as well as in England and Wales. I hope that I have dealt with the particular issues about costs and legal aid.