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Like the noble Lord, Lord Judd, I deplore any suggestion that funds are not available to give the people we are discussing what is their right as citizens. Tomorrow, the Independent Asylum Commission, of which I am a commissioner, will launch a report in which one of our findings is exactly the same; that is, that a lack of provision of legal aid is affecting a number of asylum seekers. I see a parallel in young offenders and the number of complaints that they make. People say that they do not make complaints, but that is not so. As one finds when talking to them, they are not guided, aided and enabled to make complaints, or put in the way of making them. The numbers that the noble Earl read out suggest that hidden among the quarter of young people being charged who are not applying is a large number who should and would qualify if the means were made available to them.

I wonder whether the numbers are known and, if not, why not. Surely we should have a better understanding of what it means in financial as well as legal terms. Should it be the responsibility of the Youth Justice Board to find out? I do not know. I am concerned that the Youth Justice Board appears slightly to have lost its way by failing to provide leadership on a large number of issues connected with youth justice, of which this may be one. There may be

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a legal way of doing it—I am not an expert on this and do not know—but it is important to establish the facts so that we know what is involved. We should then look at the procedures to make certain that as many qualified young people as possible are put in the way of getting the help they require. Surely that will have an impact on the justice they receive, and therefore on the outcome—which, as so many have said, is aimed at protecting the public.

Baroness Howe of Idlicote: My Lords, I, too, support the amendment. It is worrying that something like a quarter of the under-18s being charged may not be applying and are not really aware of their rights. As we are all aware, the people most likely to be in that group are the most deprived and the most difficult to reach, perhaps because of their family circumstances. It is doubly worrying when one thinks that this is the group of young people that the Prime Minister is targeting as the most vulnerable. As the noble Earl said, it is for our sake as well as theirs that they get the help that they require, because they will ultimately cost society so much more if their situation is allowed to continue. Their contribution to the nation, which could be positively unleashed, would be lost.

I support also the remarks of the noble Lord, Lord Judd, who is always so eloquent on these matters. Prevention is crucial. As has been said, we need to ensure that as much independent advice as possible is provided to young people who are in this position and to their families.

I am a little worried that court services are allowing the numbers of young people mentioned to go without legal aid. I agree with my noble friend Lord Ramsbotham that research is needed in this area. I hope that it will again be thought hard about.

Lord Elystan-Morgan: My Lords, I support the sentiments expressed by all noble Lords who have spoken on this matter. The case is unanswerable. There are few cases more meritorious than people who are inarticulate and unable even to understand their position, and who are so much in need of legal advice and a voice to speak for them. Denial of that voice and that advice is undoubtedly a denial of justice.

It is clear that many thousands of young people fail to take up the opportunity of applying for legal aid in circumstances where it would probably have been granted to them. That means, in financial terms, that the Government are thereby profiting from the failure, which I know is neither their intention nor their desire. It also means that some of the £17 million to which we have referred should not be there at all, in so far as it is in reserve and unspent. Further, I have no doubt that there could be a cost-benefit factor here that is not irrelevant.

Perhaps I may make one practical suggestion. It would assist take-up if the obligation of drawing to the defendant’s attention his rights to legal aid were placed on the desk sergeant, who is responsible for dealing with the procedures when a person is arrested. One extra little box should be added to that ample document that is the custody memorandum. If anything is going to work, that would be it.

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Baroness Stern: My Lords, I hope the Minister will clarify what is emerging from our discussion and from his letter to the noble Earl, Lord Onslow, which I have not had an opportunity to read—that the cost is not a cost. It would be a case simply of people who have an entitlement taking it up, rather than not taking it up so that the money was left in the budget to be spent on something else or else returned to the Treasury. I would be grateful for clarification that this understanding is right.

Amendment No. 86, which is on the issue, is in the group. Proposed new sub-paragraph (3A) states that:

If you are talking about someone under the age of 18 it would be hard to argue against that, with the problems of understanding and of vulnerability. Perhaps the Minister will say whether he is in favour of that. If not, perhaps he will say how he justifies not being when we are talking about people under 18.

Lord Thomas of Gresford: My Lords, peering through the smoke and gloom of 11 years of new Labour government, increasingly authoritarian as it is, there is a shining beacon—a light—and it was the passing of the Human Rights Act and the incorporation of the European Convention on Human Rights into English law. There is no point in having rights unless there is a means of enforcing them. Similarly, the Government have ratified the United Nations Convention on the Rights of the Child—rights that are given to young people under the age of 18. That is useless unless the child has available the ability to enforce those rights. That is what the amendment is about. It is about making available the provision of legal aid and legal representation, which will be of assistance not just to the person before the court but to the court itself, because the magistrate or judge who is dealing with a young person wants to do the best for that young person, and wants to ensure that the sentence passed is the most constructive and the least negative one that can be achieved. That is done through informed argument and discussion by those who know something about it.

To be complacent about the fact that a quarter of those entitled to legal aid do not claim it is, quite honestly, an ignominious retreat from the principles under which the Human Rights Act was made law in this country. We on these Benches wholeheartedly support the amendments.

Amendments Nos. 6 to 10 are confined to the making of a YRO. That is a serious step in itself; it is not the beginning of the process of children appearing before the court. Amendment No. 86 addresses a wider issue—the right of a child to have legal aid in any criminal proceedings. Amendment No. 86 is very carefully put together. It creates a presumption that a person under 18 should have legal aid; it also envisages circumstances whereby that presumption can be rebutted in the appropriate case. Surely that is the right balance—that the young person should have a presumption in his or her favour to have proper legal representation, and only in certain circumstances, the onus of proving

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which lies on the other side, could that right be taken away. Hand in hand with rights granted by this Government is the need to enforce those rights. That is what these amendments maintain.

Baroness Butler-Sloss: My Lords, I also particularly support Amendment No. 86 and the principle behind it. I respectfully endorse everything that the noble Lord, Lord Thomas of Gresford, has just said. It is important to bear in mind that under new sub-paragraph (3B) proposed by the noble Earl, Lord Onslow, and the noble Lord, Lord Ramsbotham, there will be cases where it is not necessary to have legal aid. There will be a large number of road traffic offences—even for those well under the age of 17—and criminal damage offences, particularly graffiti, and there may be other minor offences for which children will find themselves before the youth court.

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We are really looking at the disadvantaged minority that the noble Lord, Lord Judd, and, indeed, the noble Earl, Lord Onslow, were dealing with, who are probably facing the more serious offences whereby he or she—particularly he—is likely to be seriously disadvantaged if there is no one to speak for them. I particularly have in mind children in care.

A large number of children who appear in the youth court are also going through care proceedings. They do not have parents to look after them. They will almost certainly be excluded from school. They have a succession of social workers, who may be short-term. They do not have advisers, although under the children Bill, which recently had its Third Reading, there will be advisers; they may or may not be in place at the moment. They may not have a single person who matters to them to whom they can go. But the one thing they are entitled to is representation in court in those sorts of cases which matter. The noble Lord, Lord Thomas of Gresford, has reminded us that the Human Rights Act makes that a right. That is the sort of child about whom the noble Earl, Lord Onslow, was really talking in moving the amendment. We should particularly look at Amendment No. 86.

Lord Hunt of Kings Heath: My Lords, this has been an extremely interesting debate. I congratulate the noble Earl once again on raising the matter. We have shone a light into an area which has not been discussed recently, and we have identified some areas, as he reflected, which probably need further research to discover whether people who ought to get legal representation are not getting it. The evidence for that is very slim indeed. My department has received no representations from organisations involved in the criminal justice sector to suggest that this is a genuine problem—and I will come back to the question of whether further research needs to be undertaken.

I also congratulate all noble Lords on their approach to monetary matters and what I can only describe as inspired accountancy. I will come back to the point about where the £17 million now is. My noble friend quite rightly said that justice costs

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resource. Of course it does. The current budget for legal aid in this country is £2 billion. We have the most generous legal aid system in the world. The kind of expenditure is, I think, £38 per head compared to about £3 or £4 in France and Germany. In countries with systems that seem akin to ours, such as Ireland or New Zealand, I think the figures are about £7 or £8 per head. I know that noble Lords will point to areas where they think more legal aid resource should be spent. That is fair enough, but we start with a basis of a huge amount spent in this country on legal aid. We spend as much on legal aid as we do on the direct cost of the Prison Service. I will come on to the question of resource in a moment.

We think that the current arrangements give sufficient and proper protection to young defendants. That case rests on the Access to Justice Act 1999, which says that all defendants must satisfy the interests of justice test to qualify for publicly funded representation. In applying the test, the court takes into account a range of factors. This includes whether the defendant is of a young age and whether they can understand the proceedings or state their own case.

There have been some changes. Since October 2006, defendants appearing before the magistrates’ court and youth court have also been required to pass a financial eligibility test to qualify for publicly funded representation. However, that was changed in November 2007. From that point, all defendants under the age of 18 have been passported through the means test, so this has become a universal benefit if the interests of justice test has been met, as the noble Earl, Lord Onslow, suggested. That change was warmly welcomed by the legal profession, the judiciary and the Law Society, and I do not always look to the Law Society for support on legal aid matters.

My understanding is that in practice it would be extremely rare for a young person applying for legal aid not to pass the interests of justice test. As I said in Committee, this arises only in less than 2 per cent of applications. In many cases, the test is passed because court staff take the view that the young person may well not understand proceedings and so would be unable to state their own case. Therefore, in the overwhelming majority of cases, young people applying for legal representation will qualify.

It is important to stress, however, that we know that approximately one-quarter of the 126,000 youths who appeared in court in 2006 did not apply for a representation order. As the noble and learned Baroness, Lady Butler-Sloss, said, many of those cases involve the more minor summary offences, particularly those related to motoring offences, public order offences and criminal damage cases. It is probably entirely appropriate that legal representation is not required in those cases. However, I have no evidence to suggest that in the serious cases that noble Lords mentioned legal aid was not applied for, and that when applied for it was not given. I accept that we lack evidence in this area but, as I say, I have no hard evidence to suggest that there is a major problem in those circumstances.

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The noble Lord, Lord Elystan-Morgan, made an interesting suggestion about the advice that might be given to desk sergeants in custody suites. I shall reflect on that important consideration. When a young person is arrested, cautioned and taken to the police station to be interviewed, she or he should be informed of access to free and independent legal advice and offered the services of the duty solicitor. That young person may well have taken up the services of the duty solicitor. That suggests that if the system is working well, there is no reason why a young person should not be represented if they ought to be.

On resources, your Lordships felt that the figure I quoted in Committee of £800,000 sounded a very small sum. It was based on the 1.7 per cent who failed the interests of justice test. The problem I have is that if all the people brought before the courts applied for and were granted legal aid through the interests of justice test, there could be a considerable increase in the legal aid budget. That is a risk that I do not feel I am in a position to take. I know noble Lords think that I have £17 million which I am saving for a rainy day or some other purpose. Alas, it is not like that. I have a cash-limited budget of £2 billion, which is set for the next three years.

The Earl of Onslow: My Lords, if, peradventure, another 20 per cent of these people apply for legal aid and 10 per cent of that 20 per cent are granted it, the Minister will have to find it, will he not, because they are claiming a right to which they are statutorily entitled? I think that is right, so he still has to find the £17 million, or whatever the sum is.

Lord Hunt of Kings Heath: Yes, my Lords, but I have to find it from the legal aid budget. There is nowhere I can go to suddenly produce an extra £17 million. It would have to come from other parts of the legal aid expenditure. That is why I feel that as a government Minister I would need to have much more information about the consequences before I could support the proposal of the noble Earl, Lord Onslow.

Amendment No. 86 concerns a rebuttable presumption that all youths under 18 years would satisfy the interests of justice test. My view is that the interests of justice test already addresses this by asking whether the defendant is capable of understanding the proceedings. Equally, it might be argued that the presumption could be rebutted by taking into account the seriousness of the alleged crime. But again, this would be adequately covered by the interests of justice criteria regarding the likely loss of liberty in the event of conviction. Therefore, we see this amendment as essentially operating much as the existing interests of justice arrangements do. The figures seem to indicate that the system works well in that so few young people are refused legal aid representation when the interests of justice test is applied.

This has been a very genuine debate. While I cannot on behalf of the Government support the noble Earl’s amendments, I accept that—as he, the noble Lord, Lord Ramsbotham, and other noble Lords said—we

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clearly need a better understanding of how this is working. I will ask my department to contact the Law Society, the Justices’ Clerks’ Society and the Magistrates’ Association to verify whether they have real concerns in this area. As I say, we have received no representations at all from those bodies on these matters. I will also ask my officials to explore with the Legal Services Commission and Her Majesty’s Courts Service whether everything is being done to inform youth defendants of the arrangements for entitlement to legal aid. I will add to that the suggestion of the noble Lord, Lord Elystan-Morgan, as regards information to be given to desk sergeants in custody suites, to see whether that can be done. I shall ensure that the results of my inquiries are published in a report and placed in the Library. If problems come to light as a result of those inquiries, I can consider introducing changes via secondary legislation under the Access to Justice Act 1999 if I am persuaded that a genuine problem has been unearthed.

I hope noble Lords will consider that a constructive response, given the constraints within which I am operating. I again thank the noble Earl, Lord Onslow, for raising the matter.

Lord Judd: My Lords, before my noble friend sits down, let me say that I am sure that I am not alone in the House in greatly appreciating the way in which he has tried yet again to meet a real anxiety that has been expressed. In his future discussions and representations, will he bear these points in mind? Budgets are not set in stone. Behind everything else, there is the basic question of how much in a decent society, of which justice is an important part, we prefer to rely on private affluence, although that is a much wider debate. Can he please make the point that there is a special need here, because we are dealing with the young? So often in our deliberations, we have talked about the paramount importance of rehabilitation in getting things right for the future because of all the cost that lies ahead if we do not get it right; there is a false economy. Therefore, if justice demands that there should be more financial provision, it should be made available. It is great that my noble friend can say that we are more generous than any other nation in the world; I, for one, am extremely proud of that. Let us follow through the logic of the course that we have set.

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Lord Hunt of Kings Heath: My Lords, we are on Report, so I will briefly respond to my noble friend. I thank him for his kind remarks. Of course budgets are not set in stone, but there is a cash-limited budget for legal aid for the next three years and, frankly, if we increase expenditure under one heading, it has to come from somewhere else. That is the practicality of public finance. On that basis, I need to be assured that there is a special need, but so far there is no evidence to suggest it. That is why the best course of action is what I have suggested, which is to contact the organisations that should know best. If they identify a real and genuine problem, of course I shall give further consideration to this.

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Baroness Howe of Idlicote: My Lords, I hope that the noble Lord will indulge me for a tiny moment—

Lord Bach: My Lords, I am not stopping the noble Baroness, but I am grateful to her for giving way. I remind her that we are on Report. Only the mover of an amendment or the Lord in charge of the Bill may speak after the Minister on Report, except for short questions for elucidation to the Minister, or where the Minister speaks early to assist the House in debate, which was not the case for this amendment. Will the noble Baroness ask a short question for elucidation, as I am sure she was intending to do?

Baroness Howe of Idlicote: My Lords, I am most grateful. Am I right in thinking that everyone over 18 who is arrested on a charge is automatically offered the chance to apply for legal aid? I am unclear why that right is not also available to children under 18.

Lord Hunt of Kings Heath: My Lords, the general point is that the interests of justice test applies to adults as well. Eligibility for legal aid is rather a complex question. I think that I need to write to the noble Baroness on the general point, because it is not something that can be answered quickly. The general point is that the interests of justice test is applicable to much wider situations than with the young people whom we are talking about.

The Earl of Onslow: My Lords, I thank the noble Lord for his answer, in which he has gone a very small way down the road of reassurance. A way forward that would make me quite happy, and I hope that would appeal to those noble Lords who have spoken in my favour, is to ask the noble Lord whether he can make his inquiries before Third Reading. I will table an amendment for Third Reading to cover the same point, by when he will have had time to make some inquiries. It is obvious that the Minister does not know where the 25 per cent goes. I am not in any way blaming him for that; it is a problem that has come up. We have discussed it and none of us really knows the exact nature of the problem. The noble Lord has said that he will try to find that out, so the best thing for me to do now is to withdraw the amendment and table another on Third Reading—

Lord Thomas of Gresford: My Lords, may I ask the noble Earl a short question for elucidation? Is he reserving his position on Amendment No. 86 until we reach it in due course during consideration of the Bill, which I think will be some weeks hence?

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