Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014
The Committee consisted of the following Members:
† Adams, Nigel (Selby and Ainsty) (Con)
† Baldwin, Harriett (Lord Commissioner of Her Majesty's Treasury)
Denham, Mr John (Southampton, Itchen) (Lab)
† Field, Mr Frank (Birkenhead) (Lab)
† Hammond, Stephen (Wimbledon) (Con)
† Heath, Mr David (Somerton and Frome) (LD)
† Hilling, Julie (Bolton West) (Lab)
† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)
† Offord, Dr Matthew (Hendon) (Con)
† Prisk, Mr Mark (Hertford and Stortford) (Con)
† Sandys, Laura (South Thanet) (Con)
Shannon, Jim (Strangford) (DUP)
† Slaughter, Mr Andy (Hammersmith) (Lab)
Smith, Mr Andrew (Oxford East) (Lab)
† Vara, Mr Shailesh (Parliamentary Under-Secretary of State for Justice)
† Whitehead, Dr Alan (Southampton, Test) (Lab)
Danielle Nash, Clementine Brown, Committee Clerks
† attended the Committee
First Delegated Legislation Committee
Monday 8 December 2014
[Philip Davies in the Chair]
Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014
4.30 pm
The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara): I beg to move,
That the Committee has considered the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014.
It is a pleasure to serve under your chairmanship again today, Mr Davies. I am delighted to see the hon. Member for Hammersmith, but I had thought that he might be moving on to bigger and better things. I am sorry that it was not to be and that the noble Lord Bach is instead to be the shadow Attorney-General. Nevertheless, I am sure that the hon. Gentleman lives in hope, as do we—for his career.
The draft order will amend schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, to amend the advocacy exceptions. It will not alter the means test or the merits test and will bring no new matters within the scope of legal aid. I apologise for the fact that the order is a rather technical one, and I ask the Committee to bear with me.
The draft order will ensure that advocacy is available for proceedings in the magistrates court in relation to injunctions under part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, and in relation to gang-related injunctions under part 4 of the Police and Crime Act 2009. It will ensure that advocacy is available in the Crown court, on appeal from the youth court, in the following three proceedings: injunctions under part 1 of the 2014 Act; parenting orders made in respect of a youth subject to an injunction under part 1 of the 2014 Act; and injunctions to prevent gang-related violence by under-18s. The draft order will also ensure that advocacy funding is available for all special educational needs matters in the upper tribunal.
Antisocial behaviour orders and antisocial behaviour injunctions will be replaced by injunctions under part 1 of the 2014 Act. Legal aid for advocacy for antisocial behaviour orders is provided for under the criminal legal aid scheme, but the 2014 Act brings all part 1 injunctions within the scope of civil legal aid. For under-18s, part 1 injunctions, along with parenting orders made in respect of the youth subject to such an injunction, will be heard in a youth court. The route of appeal from the youth court will be to the Crown court.
Part 1 injunctions are intended to address the same kind of behaviour as the earlier interventions, so it is reasonable that legal aid for the new injunctions, including related parenting orders, should be made available. That intention is achieved in part by the consequential
amendment made to schedule 1 to LASPO by the 2014 Act. The amendment made by that Act, however, was rendered defective by an amendment to paragraph 7 of part 3 of schedule 1 to LASPO that was made under the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014 a day before the Act received Royal Assent. Provision for advocacy in a Crown court, which is necessary in regard to appeals, was also not included.The draft order therefore provides for advocacy in a magistrates court and in a Crown court in relation to injunctions under part 1 of the 2014 Act, and for advocacy in a Crown court for related parenting orders in order to cater for appeals. Advocacy in a magistrates court for parenting orders is already provided for under schedule 1 to LASPO.
As for advocacy in special educational needs matters, part 3 of the Children and Families Act 2014 came into force on 1 September 2014. Paragraph 96 of schedule 3 to that Act made amendments to paragraph 2 of part 1 of schedule 1 to LASPO in order to allow for the funding of civil legal aid services in special educational needs matters. As previously mentioned, however, parts 2 and 3 of that schedule allow for advocacy only in certain circumstances, which do not include such matters. The Government consider it appropriate that legal aid should be available for advocacy in the new special educational needs matters under the Children and Families Act that are held before the upper tribunal. Advocacy is available already for similar proceedings arising under part IV of the Education Act 1996. For advocacy to be available in such matters, the draft order is required to amend part 3 of schedule 1 to LASPO.
The draft order provides that the new injunctions under part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 will combine the provisions of both ASBIs and ASBOs on application under one legislative umbrella. Part 1 of the Act is expected to be implemented by the Home Office early next year. This order must be made to ensure that advocacy is available for injunctions under part 1 of the 2014 Act and related parenting orders. Proceedings relating to gang injunctions have been moved from the county court to the youth court. Although the relevant provision has yet to be commenced, in the interests of providing for advocacy in the youth court for such proceedings and in the Crown court for related appeals, appropriate provision is made in the order.
The Government also consider it appropriate that legal aid should be available for advocacy in special educational needs proceedings before the upper tribunal, as it is for similar proceedings under the Education Act 1996, because such proceedings are aimed at resolving disputes about state assistance that will enable disabled individuals to live independent and fulfilled lives.
The draft order will make relatively minor but important changes to the civil legal aid scheme that will complement the wider changes made by the Anti-Social Behaviour, Crime and Policing Act 2014, the Crime and Courts Act 2013 and the Children and Families Act 2014. I therefore commend it to the Committee.
4.36 pm
Mr Andy Slaughter (Hammersmith) (Lab): It is a pleasure to be here under your chairmanship this afternoon, Mr Davies.
I thank the Minister for his opening remarks, which were sincerely meant. I notice that the Opposition Whip is scribbling furiously; clearly, another commendation is going on my file. They also serve who only stand and wait.
I would like to be as uncharacteristically emollient as I have been in recent weeks during our discussions on many statutory instruments. We will not oppose what we could describe as a potpourri of tweaks, corrections and amendments to schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, with which both the Minister and I are extremely familiar, having served on the Bill Committee. They are minor changes; I accept that there is nothing objectionable about them. However, I have some minor technical criticisms, which the Minister may wish to respond to.
It seems to me that there are four types of change here. One is to accommodate new legislation, which is fine; one is the change of venue, with the shift of some injunction proceedings from the county court to the magistrates and Crown courts; one, which I will come back to, is the error in the previous draft order; and one is the extension of legal aid to advocacy in the upper tribunal in relation to SEN matters.
Paragraph 7.2 of the explanatory memo says it is necessary to make a change because of
“the general exclusion of advocacy except for specified proceedings”.
That is the root of the problem. Because of how the Government chose to draft schedule 1 to LASPO, which led to a complete about-face whereby nothing was in scope unless so specified, we will have the same problem quite often, for any of the reasons I have given or a variety of other reasons, whereby we will be back-drafting new legislation or redrafting secondary legislation because minor changes are needed to bring the scope and the extent of legal aid into line with whatever legislation has been passed. We have today three significant Acts that require that treatment, which again shows the fallacy of how LASPO has been approached.
More specifically, can the Minister explain something else in paragraph 7.2 of the explanatory memorandum, which is about the extension of legal aid to advocacy in SEN cases? The order will expand the scope of civil legal aid to include advocacy in those proceedings. If we contrast that with his comment a moment ago that nothing in the order brings any new matters within the scope of legal aid, there seems to be a contradiction. Is there an extension of that scope or simply an extension of the quantum of legal aid that is available? I will come back to the financial implications of that in a moment.
To be fair, the explanatory memorandum and the Minister have fessed up to the fact that there was an error. The memorandum states that after the approval of the instrument dealing specifically with injunctions on gang-related violence, which was as recent as July this year,
“it became apparent that the instrument was defective.”
“The Ministry of Justice has introduced internal mechanisms to avoid similar difficulties arising in the future.”
I am not trying to score silly points. I appreciate that these matters are highly technical, but the Committee nevertheless deserves an explanation of how the mistake occurred, how it was spotted and what mechanisms will ensure that similar difficulties do not arise in the future. I am afraid that putting a sentence such as the one I
quoted into an explanatory memorandum raises the question of how issues are going to be avoided. Mistakes happen, but it is unfortunate if they happen in legislation; such mistakes have to be corrected in short order.The only other matter I will raise is what the implications of the changes are. That was asked in the other place, and it seems that there have already been discussions of the opportunity costs—that is, how many cases there have been in which representation should have been available but was not, because of the error in drafting. The answer to that question was none, so I will not pursue that line, but I will ask how many future cases are likely to be affected in relation to gang-related injunctions and special educational needs cases, including appeals. What is the measurable change going to be in the number of cases that do not attract legal aid assistance at the moment but will from now on, and what are the cost implications? I appreciate that the changes that the draft order will bring about are minor, and we did not expect full costings in the impact assessment, but civil servants must have some figure in mind.
The changes are complicated and technical, and occur for several different reasons, but there must nevertheless be a cumulative effect. This is the first statutory instrument we have considered that deals with amendments to schedule 1 to LASPO for some time—probably since the defective one in the summer—so it would be useful to hear what overall financial impact grouping these changes together will have. Will there be any increase in legal aid spend? The Government want to say, very proudly, that they are not increasing the scope of legal aid, but it looks as though the order will increase the scope, as well as increasing the potential for actions. It is therefore reasonable to ask what the financial implications will be.
4.43 pm
Mr David Heath (Somerton and Frome) (LD): I do not want to delay the Committee or make life difficult for the Minister, but it is important to put on the record that part of the reason for this Committee sitting today is that there were defects in a similar statutory instrument considered by a Committee in July. Those defects, which have clearly become apparent, were not a result of unforeseen problems with drafting or with subsequent legislation, but, if I understand the explanatory memorandum correctly, came about because of previous legislation. They were the result of an omission of consideration of the effects of the Crime and Courts Act 2013.
I gently say that secondary legislation and the procedures for dealing with it in this House have a cost, both financially and in Members’ time, so it is important that Departments properly take into account the legislation they are dealing with, however complex. I know mistakes happen—I have been a Minister, and I know how difficult legislating sometimes is—but it is important that we put on record that it should not be necessary to return to the House with a second attempt to get a statutory instrument correct when we are dealing with things that should have been known in advance. I am interested in what the Minister has to say about the procedures that have been introduced to prevent that from happening in future.
4.45 pm
Mr Vara: I thank the hon. Member for Hammersmith and my hon. Friend the Member for Somerton and Frome for their comments.
Subsequent to the approval of the previous draft order, it became apparent it statutory instrument was defective. In particular, the order would have amended paragraph 7 of part 3 of schedule 1 to LASPO, but it failed to take account of the amendments to that paragraph made by the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014. As a result, the Lord Chancellor did not make the draft order. This draft order supersedes that defective instrument and achieves the same policy intent.
The Ministry of Justice has introduced internal mechanisms to avoid similar difficulties from arising in future. I hope that both the hon. Member for Hammersmith and my hon. Friend the Member for Somerton and Frome will take comfort from our looking into that and putting in place internal mechanisms. I hope they will both appreciate that, sadly, these things occasionally occur when we are addressing such technical matters.
Under the order, there will be no extension of the scope or policy of legal aid, but there will be an extension of advocacy to ensure provision for all special educational needs matters that may potentially reach the upper tribunal under the Children and Families Act 2014.
So far, there have been few injunctions for under-18s to address gang-related violence. As the draft order will not make any changes to remuneration arrangements, there will be no cost implication. I believe the order will make a reasonable amendment, which is aimed at achieving the Government’s intention that civil legal aid should be available for advocacy in respect of injunctions under part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, parenting orders made in respect of a youth subject to an injunction under part 1 of the 2014 Act and injunctions to prevent gang-related violence by under-18s.
On special educational needs matters following the introduction of the Children and Families Act, it was never the Government’s intention that legal aid should not be available for advocacy in the upper tribunal for such proceedings. I therefore believe the order will make a reasonable amendment that will ensure that civil legal aid remains available for special educational needs matters.