Legal Aid, Sentencing and Punishment
of Offenders bill

The Committee consisted of the following Members:

Chairs: Mr Philip Hollobone  , †Jim Sheridan 

Blunt, Mr Crispin (Parliamentary Under-Secretary of State for Justice)  

Brake, Tom (Carshalton and Wallington) (LD) 

Buckland, Mr Robert (South Swindon) (Con) 

Crockart, Mike (Edinburgh West) (LD) 

Cunningham, Alex (Stockton North) (Lab) 

Djanogly, Mr Jonathan (Parliamentary Under-Secretary of State for Justice)  

Fovargue, Yvonne (Makerfield) (Lab) 

Goodman, Helen (Bishop Auckland) (Lab) 

Green, Kate (Stretford and Urmston) (Lab) 

Gummer, Ben (Ipswich) (Con) 

Hinds, Damian (East Hampshire) (Con) 

Lee, Jessica (Erewash) (Con) 

Llwyd, Mr Elfyn (Dwyfor Meirionnydd) (PC) 

Reynolds, Jonathan (Stalybridge and Hyde) (Lab/Co-op) 

Slaughter, Mr Andy (Hammersmith) (Lab) 

Soubry, Anna (Broxtowe) (Con) 

Truss, Elizabeth (South West Norfolk) (Con) 

Turner, Karl (Kingston upon Hull East) (Lab) 

Wallace, Mr Ben (Wyre and Preston North) (Con) 

Watts, Mr Dave (St Helens North) (Lab) 

Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Kate Emms, Committee Clerk

† attended the Committee

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Public Bill Committee 

Thursday 8 September 2011  


[Jim Sheridan in the Chair] 

Legal Aid, Sentencing and Punishment of Offenders Bill

Clause 9 

Exceptional cases 

9 am 

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly):  I beg to move amendment 22, in clause 9, page 6, line 8, leave out ‘the individual’s rights’ and insert 

‘any rights of the individual’. 

The Chair:  With this it will be convenient to discuss Government amendments 23, 44, 45, 54, 55 and 58. 

Mr Djanogly:  Good morning to you, Mr Sheridan, and to hon. Members. Thanks to a sterling effort on both sides on Tuesday, we made good progress and had some good debates. We now come to clause 9, on exceptional funding. 

These are technical amendments, which aim to improve drafting consistency to bring the Bill’s wording into line with existing legislation, and particularly the European Communities Act 1972. The clause is intended to allow the director to provide exceptional funding where the failure to do so would breach, or risk breaching, those rights of an individual under European Union law that are directly enforceable in the domestic courts. 

Section 2(1) of the Act refers to such rights as enforceable EU rights. That definition is adopted by the Interpretation Act 1978 and is employed in other enactments. We propose that that defined term replace the formulation in the clause and that the same references in clause 31 and schedule 3 are amended accordingly. 

We also propose that the ambulatory reference in clause 39(2)(b) be deleted, since the definition of an enforceable EU right in section 2(1) of the 1972 Act already refers to rights arising “from time to time”. 

Amendment 22 agreed to.  

Amendment made: 23, in clause 9, page 6, line 8, leave out ‘under European Union law’ and insert 

‘that are enforceable EU rights’.—(Mr Djanogly.)  

Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC):  I beg to move amendment 96, in clause 9, page 6, line 11, before ‘any’, insert 

‘the interests of justice, including’. 

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The Chair:  With this it will be convenient to discuss the following: amendment 97, in clause 9, page 6, line 12, at end insert— 

‘(c) that there is significant wider public interest in the resolution of the case,

(d) that the case is of overwhelming importance to the individual, or

(e) that should the individual represent himself this would create obvious unfairness in all the circumstances of the case.

‘(3A) For the purposes of subsection (3)(c), exceptional funding should be provided where, in the particular circumstances of the case, the provision of legal services under this Part is likely to produce significant benefits for a class of person, other than the individual and members of the individual’s family.

(3B) For the purposes of subsection (3)(d), exceptional funding should be provided where a case has exceptional importance to the client, beyond the monetary value (if any) of the claim, because the case concerns the life, liberty or physical safety of the client or his or her family, or a roof over their heads or raises other significant human rights issues.’.

Amendment 226, in clause 9, page 6, line 12, at end add— 

‘(c) that the individual is a child, or is without mental capacity’.

Amendment 227, in clause 9, page 6, line 33, at end add— 

‘(7) Civil legal services are to be available to an individual on a means tested basis for advice and assistance to prepare an application for funding under subsection (2)(a).’.

Mr Llwyd:  Good morning, Mr Sheridan—I am in slight disarray. I want to speak to amendments 6 and 7. [Hon. Members: “96 and 97.”] It would be helpful if I knew where I was. I have been caught slightly unawares. I am now awake. The other night has rather taken it out of me. 

The Bar Council and others proposed amendment 96, which deals with the provision of funding in exceptional cases. The belief is that the clause does not go far enough to address the gap in funding for parties who need representation. The amendment might seem simple and straightforward, but it would ensure that an exceptional case determination may be made when it was appropriate in the interests of justice, and not merely in cases where there would otherwise be a breach, or the risk of a breach, of the European convention on human rights or European Union rights. 

We could see the amendment as a catch-all. It would improve the Bill and would certainly have no detrimental effects on it. It would provide further protection and would, in my respectful submission, add to the Government’s wording. I hope that the Minister will give my contention a considered reply. 

Amendment 97 would also amend clause 9. The point is to insert cover where there 

“is significant wider public interest in the resolution of the case”, 


“the case is of overwhelming importance to the individual” 

or where, 

“should the individual represent himself”— 

or herself— 

“this would create obvious unfairness in all the circumstances of the case.” 

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Proposed new subsection (3A) states: 

“For the purposes of subsection (3)(c), exceptional funding should be provided where, in the particular circumstances of the case, the provision of legal services under this Part is likely to produce significant benefits for a class of person”— 

that is to say, through a class action— 

“other than the individual and members of the individual’s family.” 

In effect, that is a point of law. 

Proposed new subsection (3B) states: 

“For the purposes of subsection (3)(d), exceptional funding should be provided where a case has exceptional importance to the client, beyond the monetary value (if any) of the claim, because the case concerns the life, liberty or physical safety of the client or his or her family, or a roof over their heads or raises other significant human rights issues.” 

Again, that adds to the Government’s intention in their version of the catch-all and would further enhance it. It would expand the exceptional funding regime to capture cases where there would be obvious and significant inequality of arms should an individual represent himself or herself. It relates to cases that do not fall within the individual categories listed in part 1 of amended schedule 1, which is provided for in clause 8(1)(a), but which, notwithstanding, are of exceptional importance to the individual involved or of significant interest to a wider social group—the class to which I referred. 

Kate Green (Stretford and Urmston) (Lab):  I welcome the amendment. Does the right hon. Gentleman not agree that one advantage of his amendment in relation to class actions is that it would clarify and simplify the law, avoiding future litigation and therefore saving costs down the line? 

Mr Llwyd:  The hon. Lady is absolutely right. Although the Government have attempted to include a catch-all to deal with these matters, the amendment would improve the Bill. Some classes of action have a wider public interest and should be litigated for the purpose of giving guidance to the Government on the administration of public services. I agree entirely with the hon. Lady. My amendments are constructive and will enhance and improve the Bill. 

In excluding so many areas of law from the scope of legal aid, the Bill throws into sharp focus the need for a robust mechanism for providing exceptional funding on an individual basis. Clause 9 provides that the new director can bring excluded cases back into scope where he or she is satisfied that a failure to make legal services available would be a breach of 

“the individual’s Convention rights (within the meaning of the Human Rights Act 1998), ” 

or where 

“it is appropriate to do so in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.” 

That carefully worded provision limits exceptional funding cases where the decision not to fund would lead to a violation of human rights. 

The due process aspects of the right to a fair trial provide hugely important protection, but they do not extend, for example, to immigration cases, and they will, of course, have no impact on the range of early advice and assistance provided to people in many areas

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of law and undertaken with the aim of resolving matters before they reach the doors of the court. At best, it is uncertain whether the exceptional funding regime will be of assistance to those seeking initial advice on, for example, welfare benefits, debt or employment issues. That appears to be the case, whether or not an individual’s case raises human rights issues. 

Liberty, for example, believes that the exceptional funding test currently established by guidance drafted pursuant to the Access to Justice Act 1999 provides a sensible means of determining the requirements for effective access to justice in priority cases that nevertheless fall outside the scope of legal aid. In particular, the criteria mirrored in Liberty’s proposed amendment allow for cases of exceptional importance to the individual or wider social significance, or cases involving significant inequality of arms, to be funded on an individual basis. 

The Government’s intention to confine the exception to fundamental rights that have a procedural element going to due process is set out in the explanatory memorandum: 

“It will be necessary to provide legal aid to an individual under clause 9(3)(a) where the withholding of services would clearly amount to a breach of Article 6 of the ECHR (‘right to a fair trial’), Article 2 of the ECHR (‘right to life’) or any other provision of the Convention giving rise to an obligation to provide such services.” 

The Government’s consultation response states that 

“our new exceptional funding scheme will mean that no one will be deprived of their fundamental rights to access to justice.” 

The amendments would be a sensible addition to secure that intention. They will not drive a coach and horses through the Government’s intentions; they will improve the Bill. I hope that the Government will consider them carefully. 

The Chair:  I call the Minister—[ Interruption. ] I am sorry; I call the hon. Member for Stretford and Urmston. 

Kate Green:  Good morning, Mr Sheridan. It is because I am little, perhaps, that you did not notice me sitting in the second row. It is a great pleasure to serve under your chairmanship again this morning. I want to speak to amendments 226 and 227, which you have grouped with the amendments tabled by the right hon. Member for Dwyfor Meirionnydd. 

Amendment 226 would extend the scope of legal aid to cases in all categories of law in which a child, or someone who lacks the mental capacity to conduct their own case, is engaged, and where it is clear that such individuals could not be expected to act in their own interest without assistance. My contention in tabling amendment 226 is that a child or someone who lacks mental capacity should automatically fall within scope, rather than having to overcome the hurdle of showing the need for funding to be routed through the Bill’s exceptional funding provisions. 

It is clear from the proposals that Ministers are keen to target legal aid provision on those they have described as the most vulnerable. The Under-Secretary of State for Justice, the hon. Member for Huntingdon repeatedly relied on that contention in our discussions on Tuesday, when we expressed concern about several areas of law that were out of scope. I cannot think of a group more likely by definition to be in a vulnerable position than children. 

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I know that all hon. Members will agree that it is a mark of a civilised society that we should make special provision for and offer special protections to our children in our legal system; indeed, the law takes that view, both in the Children Act 1989, which set out the fundamental principle that the well-being and interests of children should be paramount when decisions affecting them are taken, and in the signature by the UK Government of the UN convention on the rights of the child. 

It is rightly recognised that children occupy a special position in the protections afforded to them within our legal system. There are good reasons for that. We know that investment in our children today pays long-term dividends in their improved outcomes as adults, and the social good that brings for us all. 

9.15 am 

It is correct to say that children have evolving levels of capacity—indeed, the Children’s Society pointed that out in its written evidence to the Committee. The capacity of a three or four-year old child is plainly different from that of a child or young person of 16 or 17. However, in the interests of keeping the amendment simple, and because in many other areas of law we have recognised that any child, whether a young child or an older child, has to be treated as a child, I propose in the amendment that all individuals under the age of 18 should fall within the scope of legal aid. 

I am talking specifically about situations where the child or young person is the party in the case and directly in need of advice and representation. Of course, there are many situations in which the interests of children are protected through the legal rights of their parents or guardians. For example, in the majority of cases, welfare benefits are not paid directly to children. Those benefits are extremely important for the well-being of children because parents should have an adequate income to care for and raise them, but the assertion of rights to welfare benefits is largely made by the parent and not by the child—I will say a little more about that as I proceed with my remarks. The amendment is specifically about those cases where the child as an individual in his or her own right is the party in the case, and would therefore be directly in receipt of advice and in need of financial support to conduct their case. 

Hon. Members will rightly want to know what the cost would be of bringing all cases involving children under 18 within the ambit of the legislation. In fact, the Government have helpfully already indicated from their own estimates that the cost would be modest. Through their own calculations, they estimate that 6,000 children under 18 would be captured under the amendment, and that the estimated cost of bringing cases for those 6,000 children who are currently excluded from scope would be about £10 million. 

I know that £10 million is not an insignificant amount of money, but I suggest respectfully to the Minister that in the scheme of the savings he seeks to achieve overall—not only in the justice system although that is naturally his focus but also, importantly, for society and the public purse in the round—£10 million is a modest level of investment to improve significantly access and outcomes for children, especially the poorest. The long-term impact on those children’s life chances and on future costs to

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the state would significantly outweigh an investment of £10 million and help secure and protect children’s legal rights. 

I would like to explore those remarks further and look in a little more detail at those categories that are currently excluded under the law but would come back into scope for children, and at why those categories matter for children. I am grateful to JustRights for the briefing with which it has provided me. I think it has been offered to all hon. Members and has provided a good deal of food for thought. I am sure that hon. Members will agree with me and pause for thought when looking at what the Bill could mean for some of the most vulnerable children who are in need of our protection. 

As hon. Members will know, JustRights is a coalition of over 30 organisations established by Youth Access, the Law Centres Federation, the Howard League for Penal Reform, and the Children’s Rights Alliance for England, organisations for which I have tremendous respect and with which I have been privileged to work in the past. They campaigned specifically for the rights of children and young people in the legal system, and I am grateful to them for this briefing. 

We all know that the Bill will remove access to legal aid for clients in a significant number of categories of law that could have a bearing on children, including: medical negligence; employment—that might come as a surprise to hon. Members when talking about children, and I will say a little more about it; immigration; debt, which again might not frequently be a problem directly, but can be from time to time; similarly, some housing cases; most education cases, which by definition are likely to impact on children; and welfare benefits in some cases. Among the children and young people who will lose access to legal aid and be expected to represent themselves, as children but in an adult system, are: those who might be living independently after leaving the care system and who would not now be in a position to obtain the support to challenge decisions about their access to financial support; those, fairly worryingly, who have experienced criminal injuries, including abuse, and we all know that that, to our shame, can happen while children are in care as well; and those left severely disabled by medical negligence. 

The Government have taken some steps to protect children up to the age of 18 from the changes proposed in the Bill, which seems to be evidence of a recognition on the part of Ministers that children and young people differ from adults: developmentally, obviously; in their legal status—we certainly know that to be the case, for example, with some of the obligations and duties that we owe children in the legal system; and, crucially for the amendment, in their ability to navigate the legal system. I was pleased to note that Lord McNally, said in the House of Lords on 7 July this year, for the Government: 

“As far as possible, our intention is that, where children are involved, legal aid will still be provided.”—[Official Report, House of Lords, 7 July 2011; Vol. 729, c. 343.] 

The Government have made some concessions, albeit quite minor, to protect children in some family cases, which I very much welcome, and to exempt under-18s from the requirement to access legal advice via the single telephone gateway. Those are good steps, but none the less thousands of children and young people

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have not yet been protected properly and will be denied access to justice if my amendment is not accepted today. For matters that will now be out of scope, children will simply be left without advice or representation—just as adults will, but with very different effects and much greater vulnerability—yet the Government’s own equality impact assessment has barely considered children directly, as I believe fundamentally that it should. 

In what kind of circumstances could that impact on children become an issue? I mentioned employment earlier and, while young people under the age of 18 are not frequently in employment, we might have those aged 16 and 17 in paid work and in need of challenging exploitative and discriminatory practices at work which have directly affected them—for example, not being paid the national minimum wage. In some circumstances, people might be living independently and claiming financial support in their own right. That, too, might be a relatively unusual occurrence, but none the less those young people—often those who have left the care system—are particularly likely to be vulnerable. In this category, I highlight a very small number of young mothers and young pregnant women or mothers-to-be. Not only do we have to think about the young person in that situation receiving particular protection, but her very young children might also be involved. For criminal injuries, children who experience abuse, including potentially in the care system, will not now get help to enable them to gather the evidence to put in a claim for compensation. There are also exclusions in relation to immigration and debt. 

I am grateful to JustRights and a several law centres which provided us with some powerful case histories, so we could get a real handle on the sort of situations we are talking about. They describe the case of Terry, age 17. Terry got his first job as a trainee mechanic in a local garage. He was thrilled to get employment and keen to work. We often say that our young people are not keen to work, but my experience is absolutely the opposite. Most young people, like most adults, are desperate to be in employment. It is a hallmark of transition to adult life. Terry was keen to be in paid work, proud of his job and consequently willing to take on overtime, which led to him—a young man of 17 in his first job—working 50 hours a week during his first four weeks on the job. That is exploitative in itself—I am interested to know why the working time directive has not been drawn into the case study—but what is shameful is that at the end of those four weeks, he was paid only £160, the equivalent of 70p an hour. That is well below the national minimum wage, even for 16 and 17-year-olds.

Terry was understandably disappointed by the amount of money that he received, and asked his employer why his pay was so low. The employer told Terry that he was not paid for the first week of his employment, as he was training, and that he was paid that much—the case study says “that much”; I would say “that little”—because he was a trainee. Terry’s Connexions adviser recommended that he contact the law centre, which advised Terry that he should have been paid the national minimum wage for all the hours that he had worked, including the week during which the employer alleged that he was training. The law centre wrote to the employer pointing out the breaches of law and threatened to take a case to the employment tribunal. As a result, and without the need to go to law—that is a crucial point if we are considering

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saving costs downstream—Terry was paid for all the hours worked, including the overtime. I am glad to say that he went on to find another job where he was not exploited. 

A second example that I would like to draw to hon. Members’ attention relates to John, also 17 years old, who was living independently, having been thrown out of his mother’s home after repeated conflicts with her boyfriend. John has a learning disability and attended a special school. He had no experience of managing money, and arguably would have struggled with it in any event because of his disability. As a result, he fell into arrears with the service charge on his accommodation and was threatened with eviction. Streetwise community law centre supported him to apply for disability living allowance. He was refused initially but won a review. 

John did not really understand that he had a learning disability, and on his own, he would not have been able to explain his needs at a review or appeal. Nor did he have anyone to support him. Not only had his family thrown him out of the family home, the staff at his accommodation had no knowledge of disability living allowance, which is admittedly a complex benefit to apply for. The backdated benefit that Streetwise secured for him cleared the arrears on his service charge. Streetwise also helped him set up a standing order to pay his rent as soon as the DLA was paid into his bank account. It is a powerful story of how early investment in supporting young people can save costs down the road. 

Mr Andy Slaughter (Hammersmith) (Lab):  I have listened carefully to those examples. Apart from the human circumstances, they show how simple it is for a qualified person to intervene in such cases, and therefore how low the cost of an intervention at that time can be, compared with exploitation in one case or the eventual costs to the state in the other. I do not know whether my hon. Friend has figures on the costs of intervention. My guess is that it is hundreds of pounds rather than thousands. That shows not just the seriousness of the cases but the fact that false economies are being made, particularly where young people and vulnerable people are concerned. Relatively light intervention can make a huge difference. 

9.30 am 

Kate Green:  My hon. Friend is absolutely right. I am afraid that I do not have the costs of carrying out the advice work in those cases, but given that both instances involved voluntary agencies, which I think we all agree are a cost-effective source of advice for vulnerable people, I suspect the costs compared with the long-term saving to the public purse was small. 

I sense that hon. Members are anxious because I am taking some time over the amendment, so I will move on and talk a little more generally about children and young people in the immigration system, a group about which I am concerned. Out of 4,000 cases with no funding through the legal aid or exceptional funding schemes that are proposed, approximately 2,500 of the excluded cases for under-18s will relate to immigration matters. I am concerned that taking immigration out of scope will have a detrimental effect on the children, including trafficked children, even though I accept that they might be eligible for exceptional funding. I will say a little more about that in a moment. 

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The Children’s Society has highlighted the vulnerability of children who might have been abused, neglected or exploited by their carers in its “Hidden Children” report. Child victims of trafficking may have immigration claims that are not asylum claims and might not automatically qualify for legal aid. Such cases can be complex and require expert legal advice and representation, sometimes including medical legal reports, country expert evidence, and evidence on the modus operandi of the traffickers and how the child arrived in the country. Additionally, in many instances, an unaccompanied or separated child under age 18 will need to apply for further leave, or appeal against a refusal of leave to remain, because children are usually granted discretionary leave to remain for only three years. An 11-year-old unaccompanied child could be granted leave when they arrive in the country, but that would take them to age 14 only. They would then require a new application, and it would be fair to say that it is difficult for a 14-year-old to make that application on their own. 

It is important that the Government have already recognised the need for some extension into scope of immigration cases where domestic violence is involved—that is welcome. We should look carefully at the position of children in the immigration system, particularly unaccompanied children, who are a very vulnerable group. 

The other group of cases that I want to highlight through the amendment relates to education, which is clearly likely disproportionately to affect children under 18, who have the fundamental right to receive an education. I welcome the Government’s adoption of the previous Government’s intention to extend the age of compulsory education to 18. That would encompass all the children whom I am discussing and require them to be in education or other equivalent activity. Education will be in scope for all of them. 

I also welcome the Government’s decision to retain legal aid and assistance in cases affecting special educational needs. However, according to the information provided by the Ministry of Justice and its equality impact assessment, at least 58% of all education cases will still be out of scope under the current proposals. They include cases of bullying, exclusions and admissions. Appeals are not straightforward, and many parents will struggle to support their children’s cases without legal help and representation. Providing legal aid for admissions appeals helps ensure that children from different backgrounds have equal access to the better-performing schools, something I know that the Government are keen to achieve. It is also important to note that some children face a particularly high risk of exclusion from school. In particular, Traveller, Gypsy and Roma children are five times more likely to be excluded from school than the national average and would be disproportionately affected by the elimination of legal aid for education cases. Parents are often ill-equipped to understand the law and apply facts effectively to challenge exclusion decisions. Legal aid funding is therefore crucial in such situations to protect a child’s right to education. The changes will go against the Government’s own ambitions for the most disadvantaged children to participate in and benefit from the top-quality education that we all want our children to have. 

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I want to talk a little about the issue that I touched on in my opening remarks, which is children’s actual level of legal capability. It is well understood, and researchers have demonstrated, that young people have the lowest levels of legal capability. Children are not always able fully to understand the consequences of their decisions. New evidence shows that the brain’s centre of reasoning and problem solving is among the last to mature in terms of our physiological development. That indicates the case for an age-specific approach to service delivery and legal rights. 

The Government have recognised that children have different needs within the legal system; for example, by retaining legal aid for children in some types of family cases and by excluding under-18-year-olds from the requirement to access legal advice via the proposed single telephone gateway. I would like to see the recognition that children are in a special place extended to ensure that they are never left to fend for themselves in a legal system that is designed for adults. 

Unresolved problems can have a significant negative impact on young people’s prospects—for example, on their emotional and mental health—and stress-related illnesses can result from civil justice problems. We can all understand that, for example, debt and housing are issues that could cause high levels of stress and distress. If the amendment is not accepted, young people will be more likely to experience those problems. Departments have previously recognised the importance of providing good early advice to young people on issues such as benefits, housing and debt. As the Community Legal Service and Connexions joint initiatives document states, early advice is key to helping young people 

“to overcome barriers to participation in learning and make a smooth transition to adulthood and working life.” 

The cost of retaining legal aid for all children and young people would be modest. New Ministry of Justice data show us that only 6% of currently funded civil representation cases involving under-18-year-old clients are due to fall out of scope. Protecting all those children and young people from legal aid cuts would be affordable in the short term and would generate significant savings to the public purse in the long term. Any savings made through denying children and young people civil legal aid are likely to be outweighed by increased costs for the MOJ in the criminal legal aid budget, as well as the wider costs to the public purse. 

Young people who have recently been arrested report experiencing at least one difficult to solve civil justice problem. That group was particularly likely to have problems concerning housing, debt, benefits and employment—all key factors in influencing reoffending rates—and to have multiple problems. Legal advice can help vulnerable children and young people resolve civil justice problems and support them to achieve their potential. Seventy per cent. of young people report reduced levels of stress after getting legal advice. More than a third report improvements in their ability to engage in employment, education and training, and 48% of disadvantaged young people report an improvement in their behaviour. 

Retaining legal aid for children and young people would also cut bureaucracy and reduce delays in the system. In the absence of a blanket exemption for children and young people from the cuts to scope, it is likely that lawyers will apply for exceptional funding for

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legal aid for their clients case by case under the exceptional funding scheme. It is proposed that the scheme will provide for legal aid to be granted where it would not be reasonable or in the interests of justice for vulnerable clients to present their own cases. Bureaucracy and administrative costs will increase substantially, leading to delays that could harm children and young people’s chances of obtaining timely justice, as well as increasing the cost to the system itself. 

It is also important to note that the availability of advice for children and young people from alternative sources is being drastically reduced. The Government have suggested repeatedly that clients faced with problems that have been removed from scope will be able to seek advice from the voluntary sector. However, as we all know from our constituencies, local authority funding cuts mean that the availability of advice to young people from the voluntary sector is being reduced and is under serious pressure. Youth Access surveyed youth advice providers earlier this year and found that a quarter will close this year and a further half expect to operate at a reduced level. Youth Access says that that means 45,000 young people will lose access to advice at the same time as demand is increasing and that 85% of agencies already say that they do not expect to be able to meet young people’s needs in full in the next 12 months. 

Helen Goodman (Bishop Auckland) (Lab):  Is my hon. Friend saying that at the same time as the Government are withdrawing this source of support they are also withdrawing funding for alternative sources of advice, such as Connexions? 

Kate Green:  That is exactly what I am saying. Indeed, I was about to make the point that it is not only in the non-profit sector that sources of advice for young people are suffering financial cuts; the future of Connexions is obviously of great concern too. Connexions is facing cuts of 40%. 

There is other advice provision that is not specifically tailored to the needs of young people, but few young people will access that kind of advice at all if it is not dedicated to and designed for them. For example, they are particularly unlikely to go to a citizens advice bureau or a law centre. Outreach to young people requires much more involvement in the type of organisations that young people themselves would go to. Fewer than 1% of advisers and solicitors currently practising social welfare law report that they see young people as a target group. Young people are the least likely of any age group to obtain advice. 

Finally, we should note that UK and international law demands that we provide special protection for children. It is not only morally right that we should do so; there is a legal obligation on the Government to do so. The Government are bound by UK and international law to make the welfare of the child the primary consideration in any legal proceedings involving children and to ensure children’s access to justice, for example through the provision of advice and representation. Article 3 of the United Nations convention on the rights of the child says: 

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” 

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The Council of Europe’s guidelines on child-friendly justice say: 

“Children should have access to free legal aid, under the same or more lenient conditions as adults.” 

I accept that the Bill acknowledges the Government’s responsibilities to uphold children’s rights under international law, for example in paragraph 15 of schedule 1. However, in practice the Bill still leaves thousands of children’s cases outside scope and that is simply unacceptable. 

Other people—not necessarily children—also lack the mental capacity to carry out their own cases. It is important that we ensure that they too are properly protected and have access to advice and legal support. Again, the Government have indicated their recognition of the special needs of people lacking mental capacity by protecting legal aid for them to challenge mental health detention orders. However, if the Government recognise their lack of capacity to challenge the very order that determines their lack of capacity, the logical follow-through from that is to accept that those people will need advice to exert any other rights they may have, since their mental capacity has already been an issue. It is quite clear that adults who lack the mental capacity to exert their rights will struggle in all categories of law. 

It is also right that we recognise what we are talking about—the sort of situations that could have given rise to lack of mental capacity. It could be mental illness. It could certainly be adults with learning difficulties and disabilities, adults who have been brain-damaged or people suffering from dementia. Those are all cases that we would regard as worthy of protection under the law. 

Of course, many people in those situations are more likely to be receiving the type of support that can lead to justiciable issues; they are more likely to be in receipt of benefits and they are likely to be in debt. I heard a very traumatising story in my constituency last week of a lady who was in the early stages of dementia and who was repeatedly ordering completely unwanted goods from catalogues. Not only was her house stuffed full of goods that she simply did not need or want, but the debt that she had piled up to those catalogue companies was not insubstantial. The illness itself can create problems that in turn create justiciable needs. 

Criminal injury is another consideration. Regrettably, vulnerable people can sometimes be subject to abuse, including in the public services that exist to care for them. They may have difficulties with employment; for example, learning disabled people are often poorly treated in the workplace. Those are all concerns that we must address. 

9.45 am 

It is clear that such adults will be much less likely to be able to resolve problems on their own. They will struggle to comprehend what is going on, and the legal issues involved, and will sometimes struggle to communicate, to read and interpret information, and to present information in an orderly and systematic way so that the issue may be considered on the appropriate merits and arguments. The Ministry of Justice’s own research acknowledges that for such people the experience of being in a court or at a tribunal may be exceptionally stressful. If we do not ensure that those who lack the mental capacity to conduct their own case are properly

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protected, the likelihood is that they will receive no advice, and will not be able to take forward their own case. The social exclusion of a group of people who are already at significant risk of social exclusion will be greatly increased. 

There are legal limitations on participation in litigation when adults or children lack capacity under the Mental Capacity Act 2005. Under that Act, they cannot conduct their own litigation. Without support, they simply cannot access courts. In his written evidence to us, the Official Solicitor said that that would be completely at odds with the Government’s laudable ambition of targeting their reforms to ensure access to justice for the most vulnerable people. They will be expressly shut out from access to justice. They will not be entitled to legal aid, but will be prohibited from taking cases to litigation on their own. 

For all those reasons, I hope that the Government will seriously consider amendment 226, and think carefully about extending provision to those who, by definition, are too vulnerable to prosecute their own case effectively. That is a moral, as well as a legal obligation on us, and I look forward to the Minister’s response. 

I turn to amendment 227, and hon. Members will be pleased to hear that I will be brief. It says: 

“Civil legal services are to be available to an individual on a means tested basis for advice and assistance to prepare an application for funding under subsection (2)(a)”— 

in other words, to prepare an application for exceptional funding. An applicant for such funding already faces a high hurdle if it is to be secured. He or she must demonstrate to the satisfaction of the director of casework that it would be a breach of their human rights not to provide funding for representation. That will, of necessity, involve a detailed explanation of the substance of the legal case to show why the applicant needs representation, plus evidence of any characteristics that contribute to the need for representation, and legal argument around the test being applied. It is not plausible for a client who meets the test and needs the exceptional funding criteria to demonstrate, without assistance, that they meet the test. It is a classic Catch-22 situation, and not the first in the Bill. 

If we are not to fall foul of our convention obligations, it is essential that legal aid funding is available to assist prospective clients to make an application under the test, and the amendment provides for such assistance to be made available. I hope that the Minister will accept it. 

Alex Cunningham (Stockton North) (Lab):  I want to speak about amendment 226. I have spent much of my time in politics working hard to get a better deal for children, but it seems from the Bill that the deal is becoming much worse. Tens of thousands of children and young people will suffer adverse consequences as a result of the cuts in legal aid. They will be affected not just as individuals and advice-seekers in their own right, but as members of families whose problems are left without satisfactory resolution following withdrawal of affordable and acceptable advice. 

My hon. Friend the Member for Stretford and Urmston eloquently outlined in considerable detail and with excellent examples why the Government should reconsider the amendment. She referred to the Law Society’s “Sound Off for Justice” campaign and JustRights, a coalition of children’s charities co-ordinated by the Law Centres

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Federation and Youth Access, which published a powerful report demonstrating why the Government must consider the amendment.

The report says that Government plans to cut the scope of legal aid will mean that the help accessed last year by 6,000 under-18s is longer available. Those who will lose out range from the victims of particularly tragic circumstances to ordinary young people facing everyday problems that they need help to resolve. In most employment, education, debt, welfare and immigration cases, legal aid will no longer be available to those under 18. Those cuts come on top of other cuts to services for young people. Some 45,000 will lose access to voluntary sector youth advice services this year, and the state service for 13 to 19-year-olds, Connexions, which has been mentioned, is being cut by nearly 40%. The children and young people who will miss out are also likely to be the most vulnerable in our society. 

Recent evidence shows a clear link in young people between civil legal problems and crime and mental and emotional ill health. Many of those young people are looked-after children. I have known many such children. They need the state to provide support to develop their lives. I do not know the exact figures, but when visiting prison I have met young people who have come out of the care system—looked-after children who have not had the support that they need—and their numbers are far too high. Unable to deal positively with their issues on the civil side, they find themselves on the criminal side, and many end up in prison. Are the Government going to abandon the support that makes a difference to the lives of such young people? 

Kate Green:  Can my hon. Friend answer this question? I ask because I genuinely do not know the answer. If looked-after children are excluded from the scope of legal aid by the Bill, does that not mean that the local authority responsible for their care will bear the cost? Is that not simply a transfer of costs from central Government to local authorities? 

Alex Cunningham:  I have been asked a question that I cannot answer. I hope that the Minister can answer it. My local authority in Stockton-on-Tees is proud of the services that we provide to children, but I am thinking of children moving into adult life. Looked-after children are often left at 16 to live their own lives. They want to leave the care system and its support mechanisms, which often leads them into the sorts of problems with debt, housing and education that my hon. Friend outlined earlier. It is critical that the state is in a strong position to pick up such young people when they realise that they need support. One of my two sons left home at 27. The other left home at 25. I am still supporting and helping them in all sorts of ways. How can we expect vulnerable young people such as those exiting the care service to look after themselves when they cannot go back? My sons also return to the bank of Dad occasionally. If they needed financial help for legal advice, I would help them, but where will young people in the care system find the cash? 

Can those young people find their own legal support or represent themselves? Does the Minister know of any teenager—a son or daughter, a niece or nephew or perhaps the child of a friend—who could represent themselves in a formal court or tribunal environment,

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or appeal against the refusal of a benefit? I see no response from him; he is looking down. Maybe he is thinking deeply about it. So how can we expect some of our most vulnerable young people to know what to do when they need help and support? 

My hon. Friend the Member for Stretford and Urmston gave some excellent examples of why the Government should accept the amendment. I would like to add my own specific example. A young woman in my constituency faces deportation to Ethiopia, despite arriving here as a child of 15 many years ago. The conflict between Ethiopia and Eritrea resulted in her parents splitting up; one parent was from one nation and one from the other. The father disappeared, but they found themselves on opposite sides of the conflict. The issues in that conflict are very well documented, with rape, killing and maiming on both sides being very much in evidence. Fortunately, the young woman I refer to was able to escape that situation and, eventually, found her way to Britain. She attended school here, she attended college here, she trained herself to be an interpreter and she was given permission to work, which was tremendous news. She is able to work, she supports herself, she is a valuable member of our society and yet now she faces deportation. Next week, I will be leaving Committee to see a Minister and discuss her case. What will happen to young people such as that woman under the Bill? They will simply not get the support that they require so, again, I hope that the Minister will deal with such issues. 

I believe that children and young people are treated by the justice system in particular ways, which will define our view of them as citizens and shape their own views of our society. In addition to all the adverse effects that they could face as a result of not getting personal support, children will suffer the effects of their parents being unable to resolve disputes. The Law Society and JustRights provided some more examples, such how the 34,000 disputes about residence and contact, involving an estimated 60,000 children, that get at least as far as the issuing of court proceedings before the parents manage to resolve them, will no longer be funded. Somewhere in excess of 36,000 children are likely to be affected by problems involving their parents’ benefits; the cases will either not be resolved correctly or take longer to be resolved, meaning that the children will live in greater poverty than the law says that they should, indefinitely or for longer than they currently would. Thousands of children are likely to end up living in substandard accommodation because their parents are no longer entitled to advice and representation to secure repairs unless or until their health is at serious risk. 

I am proud of the youth advice services, legal and otherwise, in my constituency of Stockton North and in Teesside. The Cabin provides bespoke advice on a wide range of issues, from housing to training, and the service is recognised nationally for its expertise. I am always pleased to meet young people who have accessed services at that centre, and have done so several times. They say that it makes a tremendous difference dealing with people who are on their wavelength and understand their issues, rather than with the general services in which people do not understand the specific issues facing young people. Good management has allowed the Cabin to maintain its services, but I fear for its future as the spending cuts bite deeper. I would like to

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know where the young people will go. Where will they get advice? Where will they get that shoulder to cry on, in some cases, with someone who can guide and help them? 

To provide to those under 18 the right advice in all cases for which advice can be obtained is not a huge ask of the Government. According to JustRights, the Law Society and of course the Government themselves, as outlined by my hon. Friend the Member for Stretford and Urmston, the cost of protecting from the cuts all those children up to the age of 18 would be £10 million. What will be the cost to Government if that need for advice is not met? I hope that the Minister will come up with some numbers for the real financial effect of those particular cuts. Potentially the cost will be many millions more, but more important than the cash cost will be the damage done to our young people and their opportunity to live fulfilling lives. It is obvious to me that unresolved legal problems will have knock-on impacts on the employment prospects, physical and mental health and housing situation of children and young people.

10 am 

By helping young people to solve their problems earlier, the Government could make greater savings than they will by cutting off access to legal aid. Withdrawing that legal funding is tantamount to abuse, which will condemn thousands of young people— people who already feel that their lives are hardly worth living, in a society from which they often feel excluded. I hope that the Government will show compassion for young people and accept the amendment. 

Helen Goodman:  It is a pleasure to see you in the Chair this morning, Mr Sheridan. 

I support amendment 226. I am not sure whether I should make a declaration of interest at this point. We had a very good briefing from the Children’s Society, and I used to work for it when it was the Church of England Children’s Society, as many hon. Members know. It works with 100,000 children throughout the country, who face a wide variety of difficulties in many hard situations and many poor communities. 

We hear a lot from Ministers about the importance of working with the voluntary sector. It is therefore incumbent on us, as well as telling the sector that we want to do things in partnership with it, to listen to it when it tells us the lessons of its experience. It is extremely significant that we have had briefings from an array of voluntary sector organisations that work with children and young people. 

Clause 9 is clearly one of the points in the Bill at which there is a link between the earlier parts dealing with legal aid and part 3, dealing with the sentencing and punishment of offenders. Everyone repeatedly says what a problem it is that our prisons are full of people who have been in the care system. It is remarkable: a third of people in prison, I think, have been in the care system. The Under-Secretary, who is responsible for prisons, is trying to remember whether that statistic is right, and we can both check later. 

The fact is that there is a high correlation between being in the looked-after sector and going to prison. Some of the problems that are outlined by the voluntary sector bodies in the evidence that they submitted to us

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show that that is not chance—it has not come about accidentally. The transmission mechanism, as it were, from the looked-after sector to prison is clear. The voluntary sector organisations have fully and helpfully set out what is happening in their evidence. Children in the looked-after sector have multiple problems, which are not resolved adequately. Making cuts to legal aid that affect children is making that situation worse. 

Another aspect of the double standards or confusing messages that we get from the Government is the fact that, as well as saying that they want to work with the voluntary sector, they make statements such as, “As far as possible, our intention is that, where children are involved, legal aid will still be provided.” However, the figure of about 6,000 children under 18 who will no longer receive legal aid is the Government’s. It has not been made up by the Opposition; we are using the Government’s numbers and we are examining those cases, based on the evidence that Ministers signed off in their impact assessment. I therefore want to examine what is happening with the transition mechanism and why children in the looked-after sector end up in the criminal justice system later on. 

As I said, those children have multiple problems and difficulties, many of which remain unresolved. The other problem is the fact that when they leave the care system the services that were provided collapse and they are pushed out into the big world. Those young people have more difficulties than the average child, but less support. That does not make sense. 

I am sorry to say this, but Ministers are taking a really short-term view. I cannot see how that fits with what the Secretary of State has said about the rehabilitation revolution. We need a rehabilitation revolution, and the Opposition agree with and share that aspiration, but this is not the way to achieve it. 

Let me turn to some of the more detailed issues. If people’s problems are not resolved adequately, their situation will get worse and worse. The areas where legal aid is being withdrawn include employment—my hon. Friend the Member for Stretford and Urmston described a serious employment case—welfare benefits, criminal injury, immigration and debt. 

As my hon. Friends the Members for Stretford and Urmston and for Stockton North said, young children who move into the criminal justice system frequently have a range of other problems. Research shows that 80% of 16 to 24-year-olds with civil justice problems fall into at least one vulnerable group. More than 8% of young people with civil justice problems experience loss of employment as a result. 

Young people leave care, they attempt to establish themselves—perhaps in a flat—and they try to get a job, but something goes wrong, and they do not get the help they need. They are then are on a downward spiral and end up being dealt with under another part of the Department’s budget—the prisons budget. That does not make sense for young people or the Government. 

Some 55% of 16 to 24-year-olds who have recently been arrested have reported experiencing at least one difficult-to-solve civil justice problem. When disadvantaged young people received advice, however, and things were resolved properly, 48% reported an improvement in

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their behaviour. More than a third reported improvements in their ability to engage in education, employment and training. 

The other big problem, as the Under-Secretary of State for Justice, the hon. Member for Reigate (Mr Blunt), knows perfectly well, is that the prisons are full of people who cannot read or count, so their employment prospects are severely limited. It would be far better to take a preventive approach to such problems. 

Yvonne Fovargue (Makerfield) (Lab):  Does my hon. Friend agree that the cost of taking this early approach is likely to be very much lower? I can give some figures. The cost of a welfare benefits case under a contracted agency is approximately £148, an employment case is approximately £220, a debt case is about £166 and a housing case is approximately £200. Does that not show the value of giving early advice, as opposed to letting vulnerable individuals go through the prison system? 

Helen Goodman:  As ever, my hon. Friend comes with the precise numbers, which so illuminate the debate. I am grateful to her for her intervention. 

Ministers have included in the Bill references to some of our international obligations. This is another example of where we get confusing and, if I might say so, confused messages from them. They know that we have obligations under the United Nations convention on the rights of the child. I am not happy about this, but to do justice to the Tories, it was a Tory Administration that signed the convention—Virginia Bottomley signed it when she was the responsible Secretary of State. I cannot understand how the Government, having gone into this and made great optimistic statements about doing something really good, have gone down a path that completely undermines all those good intentions. That is what we are seeing. 

My hon. Friend the Member for Stretford and Urmston spoke about immigration cases. Again, there is consensus across the House that we need to tackle child trafficking properly, but its victims are another group who will lose legal aid. 

Ben Gummer (Ipswich) (Con):  Child trafficking is a criminal offence. 

Helen Goodman:  I am sorry, but we are told this is not the experience that the young people have. Child victims of trafficking will also have asylum claims, and to succeed in such claims they will need legal advice. 

Ben Gummer:  We are straying far from the amendment. The effect of the hon. Lady’s amendment would be an exceptionalism for children, which would mean that children with wealthy parents would have their legal fees paid by my constituents on very low incomes through their taxes, and that is wrong. 

Helen Goodman:  If I may say so, that remark is very revealing. The vast majority of children who will lose legal aid do not have wealthy parents. They are children in extremely vulnerable situations. They have come out of the looked-after sector with an array of problems. 

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Anna Soubry (Broxtowe) (Con):  Does the hon. Lady agree that if someone is under the age of 18 and is an alleged victim of human trafficking, suffering all the difficulties that she so eloquently describes, they would have been under the protection of social services and therefore do not require any legal aid because they will have the full protection of social services and indeed the police? 

Helen Goodman:  I am glad the hon. Lady is so optimistic. All I can do is tell her that the people who work with the victims of child trafficking do not take that view. 

I will return to the point made by the hon. Member for Ipswich. If he was concerned that people on low incomes would be paying for legal aid for wealthy children, it would have been possible to draft the Bill in that way. That would be something we could discuss and debate, but that is not what is before us today. That is why the Opposition are extremely concerned about the proposals. I hope the Minister will reconsider what he has put in the Bill today. 

Mr Slaughter:  The Minister seems to have struck a raw nerve with some of my colleagues—[ Interruption. ] I am not surprised. We have heard compelling speeches. I request that the Minister listen to the debate and respond not by reading out a briefing note that has been given him by civil servants but by answering the points that have been raised. I am afraid that that was absent from much of the debate on Tuesday. I understand that Government Members wish to get through to certain parts of the Bill, but we have a lot to say about other parts. I understand that that is why they have been mute. I am sure that is not from malice or indeed lack of interest. 

Kate Green:  On a point of order, Mr Sheridan, I heard the Minister imply that my speech earlier was based entirely on reading pressure group briefings. I certainly took note of them, but I think all Members know of my and my hon. Friends’ long history in working in the sector on such matters. 

The Chair:  Order. The point has been noted. 

Mr Slaughter:  Let me deal with that point. It is a point that my hon. Friend the Member for St Helens North raised when a similarly cheap point was made by the Under-Secretary of State for Justice, the hon. Member for Reigate, before the summer recess. I do not have a problem with referring to briefings. I am going to refer to several briefings that have been given to us on the clause, because they come from very authoritative sources representing very strong interests. 

Mr Llwyd:  If the hon. Gentleman is not right in what he is saying, what is the point of calling for evidence from such people? Why did we sit through the pre-legislative scrutiny? What was the point of it all if they are just dismissed as pressure groups? 

Mr Djanogly  rose—  

10.15 am 

Mr Slaughter:  Let me respond to the right hon. Member for Dwyfor Meirionnydd and then I will give way to the Minister. Perhaps he will also deal with this

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point. My hon. Friend the Member for Stretford and Urmston quoted from JustRights. I have chaired meetings of JustRights; it is not a single organisation but a consortium of about 30 organisations that deal with the rights of children. I personally feel that I can speak with moral authority having met and discussed with those organisations, heard their views and synthesised them into what I want to say. I find extraordinary the ridiculous view taken by the Government that the views of anybody outside this place are irrelevant to the debate. 

Mr Djanogly:  The hon. Gentleman totally misinterprets what I said and think. He said he did not like the fact that I have spoken on the basis of briefings. Many hon. Members have been speaking on the basis of some briefing or another. I believe that over 50% of the briefings and amendments of the right hon. Member for Dwyfor Meirionnydd come from Liberty. I decided not to call attention to that, but it may be a good idea in the future for hon. Members who mention a briefing to state who gave it to them for the record. 

Mr Llwyd  rose—  

The Chair:  Order. The Minister has made his position clear. We need to get back to the amendments. 

Mr Llwyd:  On a point of order, Mr Sheridan, I have attributed every single briefing I received, and for every amendment, I mentioned those who assisted me. I am quite prepared to say that experts have assisted me. I am a lawyer, but I know there are others with far more experience in this field than me. If the Minister would care to reflect on that and look at the record, he will see that I have attributed that assistance to those experts. 

The Chair:  The point of order has been well made and the Minister has clarified his position. 

Kate Green:  On a point of order, Mr Sheridan I want to place on the record the fact that, in my speech earlier, I said that I was grateful to JustRights and the Children’s Society for their briefings. If the Minister would care to look at my speaking notes, he will see a combination of pages that replicate the brief, and a substantial number of pages in my own handwriting that I wrote myself. 

The Chair:  The point is well made. 

Mr Slaughter:  For the avoidance of further doubt, I have no problem with the Minister reading out notes from civil servants—I do not know what we would do if he did not have them to read out. My point is different. The Minister has heard eloquent and compelling speeches from five or six Opposition Members who have made points, some of which will have been new or unanticipated. I would like those points responded to, particularly in the case of this clause. That is because not only during the proceedings of this Committee but over the months in which I have heard the Minister speak and write on these issues, I have lost count of how much reliance he has placed on this clause. Whenever it is put to him that the swingeing cuts that are being made to legal aid will annihilate legal aid in many areas, as we discussed on Tuesday— 

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Ben Gummer:  Will the hon. Gentleman give way? 

Mr Slaughter:  Not yet. Whenever that is put to the Minister, this is the clause to which he refers and the fig leaf he holds up, saying “Yes, but what about exceptional cases? There will still be provision.” 

Ben Gummer:  The point about the briefs and the amendment— 

Mr Slaughter:  We have moved on. 

Ben Gummer:  No, we have not moved on. The point is that the hon. Gentleman is the spokesman for Her Majesty’s Opposition, not the spokesman for Shelter or the Law Society, from which he read a considerable amount in his speech last night. 

The Chair:  Order. We have moved on from briefings. We are now speaking to the amendment. 

Mr Slaughter:  What the hon. Gentleman said is just not right and I object stringently to it. If he wants to go away and produce some evidence, that is fine. Let me say clearly that there is no issue with briefings—I find it almost unnecessary to say so. The Government are showing complete contempt for the views of the Law Society and the Bar Council. There has been a complete and utter breakdown between the Government and the professional bodies, which represent not their members in the sense of a member organisation, but the people—particularly, in this case, vulnerable people. 

May we return to the amendment after that completely spurious point, which was made, as usual, by the hon. Member for Ipswich? [ Interruption. ]  

The Chair:  Order. 

Mr Slaughter:  May I suggest to the hon. Member for Ipswich that he gets back to tweeting and reading The Economist as he was doing all day Tuesday? 

The problem with the clause as drafted—I refer again to the explanatory note—is that it is drawn about as narrowly as it can be. The explanatory note says that the clause is about exceptional cases. This is how exceptional cases are described: 

“exceptional case determination is a determination by the Director that the failure to provide legal services to an individual would amount to a breach of the individual’s rights under the European Convention on Human Rights (ECHR) (within the meaning of the Human Rights Act 1998) or of the individual’s rights to the provision of legal services under European Union law. 

It will be necessary to provide legal aid to an individual under clause 9(3)(a) where the withholding of services would clearly amount to a breach of Article 6 of the ECHR…Article 2 of the ECHR…or any other provision of the Convention giving rise to an obligation to provide such services. There will be a breach of an individual’s rights to the provision of legal services under European Union law where the withholding of such services would be clearly contrary to the rights reaffirmed by Article 47 of the Charter of Fundamental Rights, or to the rights to legal services that are conferred on individuals by EU instruments.” 

Let us have a look at what the pressure groups say about that, shall we? 

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Alex Cunningham:  Which ones? 

Mr Slaughter:  I shall quote a number of them because I do not want to be accused of using a single source, which might seem like plagiarism. The Bar Council says: 

“The proposed scheme for funding exceptional (excluded) cases where it is shown to be necessary in order for the United Kingdom to meet its legal obligations (under the European Convention on Human Rights) is unduly narrow. It would not be sufficient to counter the adverse effects of litigants being forced to pursue litigation in person in areas of civil and family law where legal representation is important for the proper conduct of the case.” 

Justice’s amendment is similar in form to the selected amendment, but it is the Liberty amendment, as the Minister says, that the right hon. Member for Dwyfor Meirionnydd has tabled. Justice’s proposed amendment, which has not been tabled but could be, would have much the same effect as the selected amendment. Justice says that its 

“proposed amendment is appropriate to ensure that the test for exceptional cases is not limited to the Convention rights but also considers each individual case to see whether exceptional circumstances arise which warrant legal aid.” 

What Liberty says—this is a precise but important point—is that 

“In excluding so many areas of law from the scope of legal aid, the Bill throws into sharp focus the need for a robust mechanism for providing exceptional funding on an individual basis.” 

That is what we agree with and that is the effect of the amendment of the right hon. Member for Dwyfor Meirionnydd. Liberty goes on to say: 

“Clause 9 provides that the new Director can bring excluded cases back into scope where he is ‘satisfied’ that a failure to make legal services available ‘would be a breach of the individual’s Convention rights (within the meaning of the Human Rights Act 1998) or that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that a failure to do so would be such a breach’. This carefully worded provision limits exceptional funding to cases where it is the decision not to fund which would lead to a violation of human rights.” 

The Government have drawn the definition of exceptional cases as narrowly as they can, which leads me to the conclusion that the clause is more about protecting the Government and seeing that they do not fall foul of a breach of a statutory duty than about ensuring that there are more rights for people who would otherwise be excluded from legal aid because of the cuts in scope. 

This is the point I want the Minister to address. Given the reliance that he has placed on this provision as the escape valve for those people who are now refused legal aid and who may be in extremis, how does he see it working in practice? Who does he see the measure applying to and when does he think it will be used? We need to hear about that. I know that practitioners out there are very keen to do so. I was at the all-party group on legal aid— 

10.25 am 

The Chair adjourned the Committee without Question put (Standing Order No. 88).  

Adjourned till this day at One o’clock.  

Prepared 9th September 2011