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That was a win-win. The employer was able to retain the experience of the employee and put him to good use-he got a job-and the state did not have to step in at the taxpayer's expense. In fact, through national insurance and income taxes, the state benefits. That is not a bad example, I hope the House feels, of how this kind of advice has so many broader benefits and saves so much more than it costs.
By these two amendments, we are attempting to ensure that mischief is subject to sanction and that employees of bad employers can assert their rights with the right advice and with a proper chance of succeeding. To fail to do so will create a burden on the state. It will essentially reward bad employers-for example, those who contravene the law by paying people less than the minimum wage, which still happens, or through other practices-and it will disadvantage good employers, the majority, who respect and value their employees.
It is hard not to see this proposal in this Bill as part of a general government policy to change the balance of employment law and to make it much more difficult for employees who have been wrongly treated to get justice. There are many examples that may be mentioned in the debate that follows, but to take £4 million out of legal aid to achieve this result seems to us on this side to be absolutely ridiculous. I beg to move.
I hope that the Liberal Democrats will abandon their rather erratic behaviour on this occasion. The unfair dismissal amendment is vital for employees who are not unionised or where the trade unions are unable to act. I do not think there is any real chance of such employees being able to pursue their remedies effectively. That is the crux of the matter. Quite often the claims they wish to make are complex and they need professional advice. Unfair dismissal affects their livelihoods-make no mistake about that-and what is proposed in the Bill represents a bonus for unfair employers. That is wholly out of accord with what we on this side seek to achieve.
As to unemployment disputes, the significance of this proposal places an unfair burden, again, on the employees. How are they going to pursue their claims without the necessary machinery provided by the trade
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Having been a lawyer for some 50 years, in both cases-unfair dismissal and employment disputes-there is no doubt in my view that professional advice is imperative. Otherwise, people will pursue claims that ought not to be pursued and eventually it will cost the taxpayer far more than if they were able to pursue the policy envisaged by these amendments.
Lord Faulks: My Lords, as a young barrister I had quite a lot of experience of going to employment tribunals. It has now become fashionable to talk about equality of arms but on those occasions when I represented the employer I dreaded the moment when the employee was unrepresented. This usually meant that, quite rightly, extra steps were taken by the chairperson and those assisting him or her to make sure that everything possible could be said on behalf of the employee. On the whole, while I am sympathetic to what underlies the amendment, these tribunals were designed for access by ordinary people without lawyers and, while I should be the last person to stress the fact that lawyers are not always the answer, on this occasion I need some convincing.
Baroness Turner of Camden: My Lords, I have spoken on this issue several times in the course of the discussion on the Bill. I support the amendment wholeheartedly. I speak, of course, as a former trade union official. It was my job when working for my union to have charge of the legal aid system that we applied to members. When I saw the provisions in the Bill, I hoped that the unions would begin to impress on their members the necessity of belonging to and having the support of the union when they are faced with this kind of problem.
It is, of course, an enormous problem for the ordinary worker and his family, who depend upon his employment, when they suddenly no longer have it. If the worker has been unfairly dismissed, they need to have access to a way of compensating them for their loss. Unfortunately, the Government also have employment policies in train generally that are designed to make it easier for employers to get rid of workers when they wish to do so.
The arrangements that the Government have in mind, which we have discussed from time to time in this House, are that if the worker wants to get to a tribunal he should have to pay to get there. A fee of £1,000 has been suggested. Furthermore, when a worker gets before a tribunal in future, it will not be a tribunal made up of lay members who have some knowledge of the working practices and industry generally; it will be before a judge sitting alone. In other words, it will be a much more legal system, but there will be no legal assistance to represent the member. All I can suggest to the Government is that perhaps there will be consequences that they had not foreseen. In other words, there will be much more interest in union membership and unions will increase their members-and the Government may not be very pleased about that.
Lord McNally: On the point that the noble Baroness has just made, I for one would certainly not be worried if the provision increased trade union membership. That seemed to me to answer the question of whether certain kinds of advice should be made because people take the precaution of joining a trade union rather than expecting the taxpayer to pay for their advice. As I explained in Committee, we have thought very carefully about which areas should be removed from scope. We also considered whether there were procedures that would allow people to resolve their problems without legal assistance, such as tribunals or alternative dispute resolution, and we have looked carefully at whether all the matters currently funded through the legal aid scheme are strictly legal work.
Employment tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation. The rules of the employment tribunal place a duty on the tribunal and its chairmen to deal with cases justly and fairly, including, so far as possible, ensuring that parties are on an equal footing. While we recognise that clients find advice useful in the preparation of their case, we have had to prioritise funding on cases that involve fundamental issues such as liberty or safety, and proceedings in which litigants are generally unlikely to be able to represent themselves effectively. We do not accept that the employment tribunal cannot be accessed or that justice cannot be obtained without access to legal aid for advice-a point made by my noble friend Lord Faulks.
I should also mention that the Government are looking at referring all employment cases to the Advisory, Conciliation and Arbitration Service, ACAS, before the employment tribunal to try to resolve problems early on. Indeed, ACAS itself offers advice through a free helpline and help is usually available from trade unions. The noble Baroness, Lady Turner, made that point. BIS is still considering with ACAS the route forward on this issue. My honourable friend Jonathan Djanogly is in discussions with BIS and ACAS to take this forward. ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. As noble Lords will be aware, we propose that legal aid should continue to be available for claims relating to a contravention of the Equality Act 2010 in employment cases that are currently within the scope of the legal aid scheme.
As with other things, we do not believe that the changes will have the impact that noble Lords opposite have suggested. The answer to many employment and other issues is economic recovery, which will provide the jobs. That is why those issues continue to be our priority. I hope that the noble Lord will withdraw his amendment.
Lord Bach: My Lords, once again I thank noble Lords who have spoken with a lot of knowledge in this debate. It is a bit rich for the Minister to say that all these people should join trade unions. It is not easy for many employees these days to join trade unions, particularly those who work for private companies. I am not saying that it is impossible, but it is not easy. To throw that line as an excuse for taking away from those who are not members of trade unions their ordinary legal rights seems extraordinarily superficial.
The Minister talked about not strictly legal work. I would have thought that a claim for unfair dismissal was almost certainly a legal issue that has to be decided by a tribunal. It may be that the noble Lord, Lord Faulks, acted for the employer only in cases that were legal. I cannot think why the employer would employ a barrister as good as the noble Lord, Lord Faulks, must undoubtedly have been even then-the noble Lord tells me that it was not much, and of course I believe him completely-and bothered to pay him at all if these were not legal matters. Unfair dismissal is a legal matter, as are other matters that come before the employment tribunal, so let us please not use the excuse in this case that these somehow are not legal matters. They clearly are, and they mean a huge amount to the lives of the individuals concerned.
Lord Martin of Springburn: On that point, does the noble Lord agree that government departments and health services all turn up with lawyers when they are defending an unfair dismissal? The Government will use lawyers, but they are saying that those who are seeking to fight their case do not need lawyers.
Lord Bach: The noble Lord is absolutely right; that is the thinking behind it. The same Government who say that this is not legal advice will of course have lawyers there to represent their interests at industrial tribunals. That will continue whether this legislation goes through or not, so let us have no more of that.
We have already heard mention of the unanimous resolution that was passed, I think only yesterday, at the Liberal Democrat party conference in Gateshead to support legal aid. I shall read three parts of that quite long resolution. First:
Of course, the leadership of a party does not always take complete note of what the conference passes, even if it passes it unanimously. Yet it might have been better if the Government, who obviously did not agree with what was said in that unanimous resolution, had had the courage to say so during the course of whatever debate took place. It is very depressing.
Lord McNally: I actually spoke in favour of that resolution because, as we have been debating for some months now, ever since legal aid was started, people in successive Governments have had to draw lines and make difficult and tough decisions. As this point has often been made, the noble Lord has gone to some extreme extent to suggest that we are cancelling legal aid in any particular sector. As we then find out, whether it be with immigration, where we are retaining £70 million in legal aid, or welfare, where we are
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I admire him very much for being able to support those provisions and then argue today what I would argue is the precise opposite. If there is an example of a serious case in which legal aid is available now-for advice in many cases, and sometimes for representation-but will not be available if this Bill goes through in this form, that is it.
Lord Bach: A few months ago I would have said no; now I am not quite sure. I just find it incredible that the Government seem to have taken no notice at all of this wonderful resolution, which was passed unanimously. It is extremely depressing that we find ourselves in a position where people who may have lost their job completely wrongly or suffered other wrongs in their employment are now not able to get that advice because they do not have the resources. The cost to the Exchequer is £4 million a year. Is there nothing else that the Government could have found in order to save employment law as we know it?
It is always tempting to have a vote but, because of matters beyond my or indeed the Minister's control, we have started this series of important debates at a ridiculous hour, 6.30 pm, and it becomes really stupid to have a vote at this stage. With considerable reluctance, I beg leave to withdraw the amendment.
"(1A) Services provided to an individual at risk of losing their home under sub-paragraph (1) shall include services in relation to the entitlement of the individual to welfare benefits relating to housing costs."
Lord Best: My Lords, Amendments 76 and 77 are consequential on Amendment 75. Amendment 75 relates to legal aid for work covering welfare benefits advice and casework relating exclusively to the potential loss of a home because of the non-payment of rent or mortgage. The amendment is advocated by Shelter and backed by Citizens Advice, Justice for All, the
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The amendment addresses an anomaly in the Bill. Very properly, the Bill leaves legal aid as it is in funding work to defend possession proceedings in the courts, and I commend the Government for prioritising this support. However, the proposal in the Bill is for legal aid funding to be withdrawn for the advice and support surrounding possession proceedings that at present prevents these housing cases from clogging up the courts and leading unnecessarily to homelessness thereafter. I gather that between one-quarter and one-fifth of the time of the solicitors and caseworkers dealing with clients' potential loss of their homes goes on sorting out the non-payment of rent or mortgage, usually relating to benefit claims. Typically, this means discovering that arrears have built up because of a problem with the administration of housing benefit. Unsurprisingly, in view of the complexity of these arrangements, local authorities can make bureaucratic errors, claims forms can be lost, incorrect payments can be made and so on. At present, legal aid makes possible the service that can often sort out these matters through an expert contacting the officials on behalf of a probably confused or inarticulate tenant. The same goes for claims for support for mortgage interest by homebuyers who lose their jobs but are likely to be unfamiliar with the processes of seeking benefits.
The shift next year from councils administering housing support for tenants to the Department for Work and Pensions doing so is likely, at least for the first year or two, to compound the problem. It is not just that officials new to the task will need to learn the ropes but that the loss of close working relationships between local landlords and local authority benefit teams will take away an important dynamic for sorting out these difficulties.
Shelter's extensive experience of thousands of cases each year is that the possession claims due to rent arrears can often be headed off at the pass by the Shelter adviser making speedy representations to the housing department that may well have failed to assess a housing benefit claim appropriately. Without legal aid, thousands of cases would certainly have gone to court, using court time and public money, and might still not have been resolved. Worse, without this help many tenants would have lost their homes through no fault of their own.
On other occasions, tenants will leave matters until the last moment and the case will have to go to court. However, an adjournment will often be granted, usually for four weeks. During that time, the legal aid-funded adviser can beaver away, establishing the facts and negotiating as necessary with benefits officials. If in the future the advisers in such cases are not able to handle the support with benefits claims, if they can deal with matters only in the courts and are not free to treat with officialdom on behalf of the client, and if they have to sit on their hands and do nothing for four weeks after an adjournment, people will lose their
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The chief executive of the South West London Law Centre has explained to me that, in future, to engage the housing benefit officers in a dialogue it will be necessary to issue witness summonses to bring them to court because dealing with them outside court processes will no longer be funded. That would mean costs to benefit officers from having to travel to the court and, no doubt, spend time hanging about, perhaps facing difficulties from not having all the right files with them. It is obviously better for the legal aid-funded expert to deal directly with the official before or during the four weeks of adjournment of a case when so often the problem can be sorted out. If benefits advice relating specifically to possession proceedings is taken out of the scope of legal aid, the funding that remains covered by it-75 per cent to 80 per cent of expenditure-will be much less effective.
In Committee, I argued for the continuation of legal funding to cover many other aspects of housing cases. However, the amendment before us today is much more modest, much more focused and simply retains the scope of legal aid to provide benefits advice and casework where possession is being sought by the landlord or the mortgage company. It seems certain to cost the state a good deal less than removing from the scope of legal aid the funding that pays for the work that prevents and solves problems, and ensures that the rest of legal aid spending and the time of the courts is not wasted when matters could be settled away from the courtroom. It means that the Bill will not unwittingly lead to the injustice of people unnecessarily losing their homes because there was no one there to sort out the problems with their benefits, particularly in the next year or two when the whole housing benefit system will go through such dramatic change.
Lord Howarth of Newport: My Lords, I fully endorse the amendment proposed by the noble Lord and will add just two points for the consideration of the House that I do not think he touched on. I take it that his amendment would encompass legally aided advice in relation to council tax benefit as well as to housing benefit and support for mortgage interest, which he mentioned. We know that, under the changes that the Government propose, adjudications about council tax benefit will become very contentious. The rules for council tax benefit will be made locally and will vary, perhaps significantly, from one local authority area to another. I wonder whether when he responds to the debate the noble Lord, Lord Best, would comment on that.
My other point is a reflection that I should like to put to the Minister. Having looked at outcomes and data provided by the Legal Services Commission, Citizens Advice has found that legal aid to advise benefit claimants represents a very good investment, certainly where housing is concerned. It has computed that for every £1 invested in advice on housing benefit,
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Lord Beecham: My Lords, like the noble Lord, Lord Best, I have the benefit of having received a briefing from Shelter, which in my case was sent with a covering letter from a solicitor of a very highly reputed firm. He says:
"I can readily attest to the importance of being able to advise clients upon their welfare benefits problems within the context of housing possession proceedings. It is very often the benefits problems that have resulted in the possession proceedings being issued in the first place".
Shelter is heavily involved in dealing with cases of housing benefit and support for mortgage interest where problems arise. Sometimes there are issues of delay but frequently errors are made in adjudicating on the amount of benefit or mortgage interest support that is to be made available. As the briefing says, unless that underlying problem is resolved, there is no hope of somebody whose home is threatened with repossession ever meeting the rental or mortgage payments and clearing any arrears. Significantly, Shelter deals with thousands of cases in which tenants have not received the housing benefit to which they are entitled and who would have been evicted but for its intervention. It is a complex world and it is not surprising that mistakes occur. I am not being unnecessarily critical of those who have to deal with a very large case load of benefits. Nevertheless, there is clearly a significant number of cases where the wrong decision is made and this can lead to very significant hardship.
Apparently, ministry officials have said that the mixed-case rule will allow for matters out of scope to be brought back into scope if it was otherwise impractical to run the case. However, Shelter points out that the rule excludes the kind of help that it is particularly capable of deploying, which is the most useful sort in resolving some of these cases-that is, dealing with the housing benefits department through letters and calls to sort out an incorrectly paid claim or one which has not been paid at all. Nor, apparently, does the mixed-case rule allow for backdating or appeals. That would lead to precisely one of the elements to which the noble Lord, Lord Best, referred, which is more adjourned hearings with a waste of tribunal and court time and, ultimately, probably more possession orders.
It is worth mentioning an interesting case cited by Shelter of a client to whom it had given advice as the latter had received a notice from his local authority seeking possession. It transpired that the Shelter adviser found that the possession claim was due to rent arrears caused by the same local authority failing to assess housing benefit properly. It dealt with a revision of the housing benefit decision and got six months of backdated housing benefit. The arrears were cleared and the notice was withdrawn. However, without Shelter's assistance provided under the legal aid scheme, that simply would not have happened.
The briefing goes on to deal with a number of matters that were discussed in Committee. A series of points made by the noble Lord are rebutted in the briefing. In particular, the noble Lord indicated that while many people rely on benefits, they are primarily about financial entitlement and they have a lower importance than the liberty or safety of the person. He has used this phrase a number of times as we have debated the Bill. It is obviously true but it does not take us very far in dealing with the very difficult problems that people have to face short of losing their liberty or safety. Losing their home must be one of the more traumatic experiences that anyone has to suffer. Shelter points out that unless advisers can look at the underlying problems that cause the arrears, they will simply be unable to stop people losing their homes. It is not, therefore, simply a question of people going to someone to resolve a problem on the basis of advice. There is more to it than that.
Equally, the Minister, as an example, said that factual advice was available for Jobcentre Plus. As the noble Lord reminded us, housing benefit is likely to move towards Jobcentre Plus or, at any rate, the DWP. He referred also to the benefits inquiry line and the tribunal itself. However, Shelter points out:
It is not equipped to deal with the complexities that Shelter has become used to dealing with. The tribunal, which is there to adjudicate between the parties, is not there to represent or assist one party against the other.
"Legal aid will be available to help tenants engage with landlords to try and resolve the actual or threatened possession issue wherever possible, including ... delaying the possession matter until the benefit matter is resolved".-[Official Report, 18/1/12; col. 697.]
That is an assumption that may be difficult to satisfy a private landlord about. There are sometimes, by necessity, delays and difficulties in resolving those issues, particularly without legal aid and advice being available.
The amendment is, as the noble Lord, Lord Best, said, confined to one issue. Other issues will be covered by legal aid-notably serious disrepair. Several other housing issues might have been brought forward by way of amendment, but it is clear that the Government
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Lord McNally: My Lords, I listened with care to the views of the noble Lord, Lord Best, on matters concerning housing. However, our existing proposals make sensible provisions to keep people in their homes. Notably, they already preserve legal aid for advice and assistance for those facing immediate risk of losing their dwelling, whether the cause is housing-related or a consequence of welfare and debt issues.
Crucially, legal aid will be available when repossession action is contemplated, for example where a person is threatened with repossession action. Our plans do not mean that a case must reach court before legal aid is available. Therefore, for example, legal aid would be available on reaching agreement with a landlord to delay threatened possession action pending the resolution of a welfare benefits issue. In addition, in cases where possession proceedings have already started, legal aid could be used to argue for an adjournment if, for example, the individual is likely to be in a position to make the necessary payments if the benefits dispute is resolved in their favour.
Some argue that we need to fund welfare advice earlier to prevent problems escalating, but, crucially, what people often need is general advice on, for example, benefits, debt or housing, not specialist legal advice. That is one reason why we were pleased to announce that additional funding will be made available in the Budget for citizens advice bureaux on a sustainable footing. We recognise that many people rely on benefits, and my department is working with the DWP as part of the wider welfare reform programme to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and a system of subsequent tribunal appeals.
In addition, the Bill ensures that legal aid will continue to be available in judicial review about welfare benefit decisions and benefit matters which relate to the Equalities Act 2010. Noble Lords may not agree with the choices we are making, but I hope that they recognise that our proposals represent a genuine attempt to ensure that people can get access to legal advice on the most serious issues.
To cover one or two points raised, the noble Lord, Lord Howarth, asked about when a benefit appeal is lost and people are facing homelessness. Where the client loses their benefit appeal and subsequently faces action for rent or mortgage arrears that place the home at risk, legal aid will be available, including, for example, to negotiate with mortgage lenders, but it will not be available for welfare benefit matters. Where
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On the point made by the noble Lords, Lord Beecham and Lord Best, and others, that changes will mean more serious cases resulting in homelessness, we recognise that early advice can be helpful in a range of contexts. However, as I said, people need general advice. Where a debt or welfare benefit problem places individuals at risk of immediate risk of loss of their home due to, for example, rent arrears, legal aid will be available.
The noble Lords, Lord Howarth and Lord Beecham, both referred to the research by Citizens Advice, which has certainly not been short of resources for its lobbying activities. I note what Citizens Advice states in Towards a Business Case for Legal Aid. Although we have read that research with interest, it did not contrast the outcomes of legal aid recipients with those who did not receive legal aid, so our view is that the evidence is not sufficiently robust to allow the conclusions drawn about the impact of advice. That said, we recognise that early advice can be helpful in a range of contexts. However, what people often need is general advice. We propose focusing our limited legal aid resources on those cases which need it most: disabled people in dispute with local authorities about care needs; people detained under mental health legislation; or parents who are facing the removal of their children by social services.
Lord Howarth of Newport: Will the noble Lord be kind enough to write to us with a detailed refutation of the specific figures that Citizens Advice has put forward in all good faith and on the basis of careful research? That is important and a lot of people would be interested.
Lord McNally: I will consider that matter, but quite honestly, during the passage not just of this Bill but of every Bill, lobbying organisations produce reports-as the noble Lord says, in all good faith. To answer every one might overburden a relatively small department working on a small budget. I will consider that request.
Lord Best: My Lords, I am grateful to the noble Lord, Lord Howarth, for his support. Certainly council tax benefit is going to cause some administrative headaches in the months and years ahead, and that would be part of the package covered in the amendment, as would support for mortgage interest. However, housing will be the big one, not least-I promise that I will not go into this-the under occupation penalty that is going to be introduced, over which there will be endless wrangles, and there will be arrears for some people, leading, I fear, to possession proceedings.
I am also very grateful for the support of the noble Lord, Lord Beecham, who made the point that mistakes will undoubtedly occur. That is the way of things.
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I am grateful to the noble Lord, Lord McNally, for clarifying a number of matters and for giving me some important food for thought. He told us that where possession action is contemplated, legal aid might be available to agree, with the landlord, to an adjournment of the case. That is important. However, the amendment is trying to say that there must be the opportunity to spend legal aid funding on the representations that follow with the people administering the housing benefit.
I was glad to be clear that funding will be available to negotiate with the mortgage company where people are in arrears with their mortgage repayments. However, why would it therefore not be available for dealings with the housing benefit administrators, who may be the ones with whom the dialogue needs to be held? An expert needs to talk to the people in question. I fear that leaving people to their own devices will not work.
In terms of evidence, I have received the usual pile of representations from bodies representing other bodies but also from some front-line people. The Nottingham Law Centre sent me a letter last week saying:
"What is the point of representing a client facing eviction, identifying issues with benefits (particularly Housing benefit which is extremely complex) securing an adjournment to resolve those issues but being unable to help to resolve them? It will lead to a need for further adjournments thereby clogging up the courts or it will make it harder to persuade landlords to agree to adjourning cases as there will be less likelihood of a successful result".
This is the kind of evidence that people who are trying to resolve these issues are faced with. I am afraid they are likely to be undermined without an amendment of this kind. However, at this late hour, and with the opportunity to ponder some of the Minister's helpful remarks, I beg leave to withdraw the amendment.
We are grateful to my noble and learned friend Lord Wallace of Tankerness for his Pepper v Hart statement in our previous debate on the effect of the Bill on Gypsies and Travellers that cases under Sections 187B, 288 and 289 of the Town and Country Planning Act 1990 will remain within the scope of legal aid. We are also very grateful to him for giving us the time to explain these amendments to him personally last week.
The main amendment in this grouping-Amendment 77B-would remove paragraph 28(10) of Schedule 1, to which I now turn. As the Minister is aware, we are still deeply concerned about the Bill's impact on people living on unauthorised encampments on council-owned land. At present, if a local authority takes action to evict Gypsies and Travellers using a procedure other than a county court possession action-for instance, by using Section 77 of the Criminal Justice and Public Order Act 1994-then any public law challenge based, for example, on the fact that the local authority has failed to conduct welfare inquiries would have to be by way of judicial review. No doubt the Minister will confirm that such a challenge will continue to be available under the Bill as presently drafted.
If, on the other hand, the local authority decides to evict Gypsies and Travellers from its land by seeking possession in the county court, then the decision of the House of Lords in Doherty v Birmingham City Council makes it clear that any public law challenge to such action should be pursued in the county court and not by way of a separate judicial review application. However, paragraph 28(10) of Part 1, Schedule 1, provides that trespassers living in caravans facing repossession actions in the county court will no longer be entitled to legal aid to defend such proceedings. The effect of it would be that Gypsies and Travellers, having public law grounds to challenge a local authority's decision to seek possession, will be forced to make an application in the High Court for judicial review.
Perhaps I may give an example of the sort of case in which this would apply. Government guidance states that local authorities should carry out welfare inquiries before deciding whether to evict an unauthorised encampment. If a Traveller family, whose members are in very poor health and are pursuing a homeless application with the council by asking it to find them a pitch where they can lawfully place their caravan, is camped on the land of a local authority without authorisation, but is not causing any obstruction, and the local authority then decides to commence eviction action without making any welfare inquiries, the family would like to ask the court not to make the possession order because of ill health and the pending homelessness application. However, the family would not be able to do so if sub-paragraph (10) is retained. It would have to go for judicial review of the council's decision to seek possession in the High Court on the basis of the local authority's failure to take into account relevant considerations and rationality. If the Minister will confirm that this would be within scope, does he also agree that there is no merit in removing legal aid for the defence of possession proceedings in the county court on public law grounds, leaving the option only to go to the High Court?
We had an actual example of this only this morning in an e-mail from a lady whose brother and sister-in-law are in precisely this position. They are encamped on the borders of a local authority highway. They are both 57 and are in poor health. The lady's brother has recently seen a doctor and has been diagnosed as having lesions in his lungs and her sister-in-law has emphysema. They stopped at this place because they wanted to consult a general practitioner, which they have been able to do, and to seek treatment for these
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Satellite judicial review proceedings in the High Court can be expensive and can result in delaying the resolution of the possession proceedings. The House of Lords in Doherty considered that public law arguments relating to possession proceedings should be determined by county court judges and we respectfully agree. Is it not far more sensible, I ask my noble and learned friend, to encourage local authorities to deal with these matters in their local county court where, self-evidently, they can be settled far more cheaply and more effectively? If this local authority commences action under the Criminal Justice and Public Order Act 1994, the Traveller family, assuming that it is financially eligible, of course, will be able to obtain legal aid judicially to review the council's decision but if the council issues possession proceedings in the county court, the family will not be able to seek legal aid for representation so that they can defend these proceedings on public law grounds. I suggest that this is an arbitrary and perverse distinction. I am absolutely sure that the Government did not intend to undermine the Doherty ruling and make it inevitable that cases that ought to be dealt with in the county court have to be heard in the High Court at far greater cost to public funds, a point which I hope that my noble and learned friend has been able to consider, since we brought it to his attention when he kindly received us to discuss these amendments last week.
I would be grateful if my noble and learned friend could confirm that the trespasser exception to the loss of home being within scope was originally intended to deal with the problem of squatters in buildings. At some point it was decided-wrongly, in my opinion-to make this a criminal offence, as provided elsewhere in the Bill. This means that the vast majority, if not all, of the cases that will remain within the trespasser exception will involve Gypsies and Travellers on unauthorised encampments. The reason why they are there is because of the admitted failure by successive Governments to ensure adequate site provision, for which the UK is the target of trenchant criticism by the Council of Europe's High Commissioner for Human Rights.
We must assume that the Government have not intentionally set out to discriminate against two ethnic minority groups, although that is the unlawful result of paragraph 28(10) following the decision about squatting in buildings. Given this unintended consequence, we invite the Government to reconsider their position on the amendment and on the others in this group, which are consequential. The noble Baroness, Lady Whitaker, will deal with Amendment 77E. This concerns the separate issue of actions under the Mobile Homes Act 1983, which will also be taken out of scope. I beg to move.
Baroness Whitaker: My Lords, I apologise for the fact that my voice has not kept up with the strength of my convictions. For that reason, I will say no more
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The further complication in the situation of many Gypsies and Travellers is that they have not always been educated to read and write, and to be able to follow the complexities of the law. Therefore, because of the situation in which they will find themselves, they will be discriminated against in all these matters. We are talking only about the continuation of the legal aid initial advice scheme for these cases. The provision of this kind of advice is quite cheap and extremely cost-effective.
These actions are not technically called "harassment", but they amount to it when the person who is on the receiving end cannot deal with them and is cast out of their home. The noble and learned Lord, Lord Wallace, said in Committee that he could reassure us that legal aid would be available for harassment injunctions in relation to the Mobile Homes Act. I was very glad to hear that. It showed that he understood the injustice that can so easily befall people who are marginalised by society, and that it is incumbent on society to reduce this marginalisation. Given his helpful response, I ask him to consider whether cases of breach of a covenant of quiet enjoyment-that is to say, Article 8 rights under the Human Rights Act-should also be included in the scope of legal aid. If he prefers, he could confirm that the Government intend that such breaches should be included under the term "harassment". It would be a small step conceptually, but it would make a big difference.
Baroness Turner of Camden: My Lords, I support these amendments. I do not want to add anything to the very detailed case already made by the noble Lord, Lord Avebury, in introducing the amendment. It seems to me that local authorities have an obligation in law to provide sites for Travellers and their failure to do so is responsible for the need to provide legal assistance to Travellers. Otherwise, Traveller families, which include numbers of children, are rendered homeless, and that, in my view, is quite unacceptable. I hope that the detailed amendments before the House tonight meet a sympathetic response from the Government.
"Ministers say that Travellers must obey planning laws like everyone else; but they demolished the system created by the previous Government under which an obligation was imposed on local authorities to provide planning permission for Travellers' sites that would accommodate the number of Travellers in each area, as determined by an independent assessment of needs, buttressed by public inquiries. Since the Secretary of State gave local authorities carte blanche to rip up those plans and decide in their unaided wisdom"-
Lord Wallace of Tankerness: My Lords, as my noble friend Lord Avebury explained in moving this amendment, Amendments 77A, 77B, 77C and 77D are aimed at ensuring that legal aid remains available for possession proceedings for persons who are clearly trespassers on the property or land where they are residing, in particular for people living on unauthorised encampments. Under the Bill, legal aid would no longer be available in such cases.
I valued the opportunity to meet my noble friend Lord Avebury, the noble Baroness, Lady Whitaker, and their colleagues from the Community Law Partnership. It was an opportunity for them to set out in more detail what underlies their amendments and for me to indicate where the Government are coming from on this. My noble friend raised a particular point about the judicial review vis-à-vis the county courts, to which I will return.
Let me say clearly that as a matter of principle the Government believe that they should not be funding individuals to resist eviction where they have unarguably entered and remained on the property or site as a trespasser. The whole rationale of this Bill is to focus scarce resources on the cases that are the highest priority.
I remind noble Lords that the Government amended the Bill in Committee to make it crystal clear that legal aid will continue to be available for possession and eviction matters where there are grounds to argue that the client has not entered the property or site as a trespasser and where there are any grounds to argue that the client has not remained on the property or site as a trespasser. I believe that, with this safeguard in place, it is not an appropriate use of resources to retain funding more widely.
I readily acknowledge that the legal aid position in relation to judicial review is different from the position in relation to possession proceedings concerning those who are clearly trespassers. However, as my noble friend Lord Avebury indicated, we are generally retaining legal aid for judicial review. In any major reform such as this, it is reasonable and necessary to draw relatively broad lines in order to achieve an effective system. We believe that our approach is a reasonable one in the circumstances.
It has been argued that our approach in the Bill cuts across case law that permits public law arguments to
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We recognise that, as with all judicial reviews, the decision on whether to grant permission for such a judicial review to be brought will be entirely at the discretion of the court. The court will consider a number of factors, such as the availability of alternative remedies, including any grounds that could be raised by way of defence to the possession proceedings.
It has also been argued that retaining the trespasser exclusion in relation to possession proceedings while retaining legal aid for judicial reviews will be much more costly for the legal aid fund. I indicated that I wanted to reflect on this issue. Regrettably there are no detailed data, as the Legal Services Commission does not record whether a recipient of legal aid is a trespasser. Nevertheless, we believe that the number of possession cases involving trespassers that are funded under the current legal aid scheme is likely to be relatively small. Of those cases, fewer still are likely to involve seriously arguable points of public law. Accordingly, we do not consider that the current approach in the Bill will have significant cost implications.
In any event, the amendments would restore legal aid under paragraph 28 of Part 1 of Schedule 1 for trespassers generally, including cases involving trespass to private property or cases involving public authorities where no public law issues in fact arise. In these circumstances, we do not believe that the width of the amendment proposed by my noble friend would be a proper and wise use of the limited funds available.
I appreciate that my noble friend and the noble Baroness are particularly concerned about the Gypsy and Traveller communities. As I stated in Committee, the Government certainly understand the potential impact of the Bill's provisions on these communities. Nevertheless, we consider that the proposed changes to the scope of legal aid set out in the Bill are both proportionate and necessary to our objective of targeting legal aid to those who need it most while achieving a more affordable system.
I emphasise that the provisions to which these amendments relate apply to trespassers generally, whoever they are. They are not specifically targeted at the Gypsy and Traveller communities. My noble friend asked whether, given the criminal offence of squatting created elsewhere in this Bill, the trespasser exclusion in paragraph 28 now specifically targets Gypsies and Travellers only. The exclusion in paragraph 28(1) of Part 1 of Schedule 1 applies to trespassers generally and not just to Gypsies and Travellers on unauthorised encampments; for example, an individual who squats in a non-residential building would not be committing a criminal offence under the provisions of the Bill and would be subject to the trespasser exclusion for legal aid if the owner of the building brought possession
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Before I move on to the mobile homes amendment moved by the noble Baroness, Lady Whitaker, the noble Lord, Lord Bach, asked whether the abolition of the regional strategy pitch targets would lead to fewer traveller sites. The Government's draft planning policy makes it clear that local authorities should set pitch targets based on robust evidence, and the Government are currently considering the responses to the consultation on the draft policy. Rather than imposing top-down targets which fuelled opposition to development, the Government believe that we are offering councils real incentives to develop additional traveller sites in their areas. The previous model of top-down pitch targets under regional strategies did not deliver, not least because between 2000 and 2010 the number of caravans on unauthorised developments increased from 728 to 2,395.
As I mentioned in Committee, the Homes and Communities Agency is responsible for administering the Traveller pitch funding programme and monitoring the use of the funding awarded to local authorities and registered providers. In January this year the Government announced the allocation of £47 million of Traveller pitch funding, which will help provide more than 600 new pitches and refurbish more than 160 existing pitches between now and 2015. This funding is based on payment by results at completion-a question was raised as to why nothing has actually been paid out yet-but £47 million has been allocated and the delivery of the funding allocations will be monitored through the Homes and Communities Agency's established programme management framework, with quarterly contract review meetings forming part of the process.
The noble Baroness, Lady Whitaker, spoke to Amendment 77E, which seeks to bring into scope legally aided advice for any matter arising under the Mobile Homes Act 1983. That Act gives rights to residents who have agreements with site owners to live in their own mobile homes on site. We do not believe that this amendment is consequential to Amendments 77A to 77D.
As I have already argued and as we have already said many times in debates, we are facing a serious financial position. If the justice system is to contribute the necessary savings, it is necessary to focus legal aid on the highest priority cases. Accepting this amendment would mean funding low-priority cases, such as disputes about the sale or inheritance of mobile homes. Once again, I cannot see how this is a good revision of our proposals or an affordable one, not least given that legal help and representation will in any case continue to be made available where the individual is at immediate risk of losing their home, including possession and eviction from a mobile home site.
The noble Baroness asked about harassment, to which I think I made reference in Committee. I confirm that paragraph 32 of Part 1 of Schedule 1 to this Bill brings into scope harassment injunctions under Sections 3 or 3A of the Protection from Harassment Act 1997, which would cover issues where there is harassment.
If we were to accept this amendment it would amount to a strange anomaly whereby exceptions would be made for people who live in mobile homes so that they received legal aid for lower-priority matters whereas people living in other homes would not. We find it difficult to justify that it would be coherent to create such differences between the level of legal aid available to different kinds of home owner. I recognise the commitment which my noble friend and the noble Baroness have to the Gypsy and Traveller community. I appreciate the opportunities we had at our meeting and in this debate to set out our respective positions, but, for the reasons given, I hope that my noble friend will withdraw his amendment.
Lord Avebury: My Lords, I am most grateful to the noble Baronesses, Lady Whitaker and Lady Turner, for their contributions to this debate. I should like to begin by pointing out that the noble and learned Lord did not cover the case of the family camped on the roadside for reasons of absolute desperation. There was nowhere else for them to go. They needed to consult a doctor and stopped temporarily in order to receive medical advice and treatment. That was the sort of case we had in mind when framing these amendments in consultation with the Community Law Partnership. It still seems to me that they should have the right to be able to contest an action for possession on public law grounds and that they should be able to do this in the county court. With respect, my noble and learned friend did not refute the allegation that it would be far more expensive to deal with these cases by way of judicial review in the High Court. All he said was that there would not be very many of them but that does not seem to be a very valid argument against the amendment.
The noble Baroness, Lady Turner, said that local authorities had an obligation to provide sites, which they manifestly have failed to honour. The noble Lord, Lord Bach, was good enough to quote what I said at an earlier stage about the contrast between regional spatial strategies under which definite plans were in hand to grant planning permission for sites. That was scrapped and we were left with the unfettered decisions of the local authorities, which I am afraid will not result in the delivery of the sites. My noble and learned friend mentioned the £47 million allocated by the Homes and Communities Agency to local authorities and social housing agencies to provide some 700 pitches. But the agencies in question have not even begun to identify the land on which this money will be spent, let alone apply for planning permission.
Figures provided by the Irish Traveller Movement in Britain in its survey of local authorities show that the number of sites for which planning permission is intended has plummeted by 50 per cent from the figures that were given in the regional spatial strategy. I consulted Essex County Council to see what was happening there. As noble Lords will recall, there was a high profile eviction case at Dale Farm in Basildon. The figures from the council show that under the regional spatial strategies, the minimum number of pitches that were to be provided by 2021 was 965, whereas the planned Gypsy and Traveller pitches in the individual local authority plans that have so far
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I am very disappointed that we have not been able to make more headway on this minor amendment, but as with the noble Lord, Lord Bach, on the previous amendment, I am afraid that we have come to it late at night, and I do not propose to press it to a Division. I shall withdraw the amendment with the utmost regret.
Lord McNally: My Lords, with this amendment we intend to extend the scope of civil legal aid in Schedule 1 to include civil legal services provided in relation to terrorism prevention and investigation measures. The Terrorism Prevention and Investigation Measures Act 2011 replaced the old control order regime with TPIMs. TPIM notices impose measures on an individual for purposes connected with protecting members of the public from the risk of terrorism. The current legal aid scheme provides for civil legal services to be available in relation to control orders and TPIMs, and we intend to make similar provisions in the new scheme. This is consistent with our commitment to fund legal services where restrictions are placed on a person's liberty. I beg to move.
Lord Beecham: Without prejudice to one's views about the change from control orders to TPIMs, I can give an unqualified welcome to the Government's amendments. I congratulate the Minister on ensuring that legal aid is available in these cases.
"(a) the exclusions in Parts 2 and 3 of this Schedule, except to the extent that regulations under this paragraph provide otherwise, and
(b) any other prescribed exclusions."
Lord McNally: My Lords, this is a technical amendment to the drafting of paragraph 40 in Part 1 of Schedule 1. I have written to Peers on this matter, but I am willing to go into further detail if noble Lords wish. However, I assure them that this is a technical amendment. I beg to move.
Lord McNally: My Lords, Amendments 86 and 87 are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998. Again, I have written to noble Lords explaining the rationale behind the amendments and again give them the assurance that these are technical amendments. If noble Lords want a longer explanation, I am willing to provide it, but I hope that they will accept them as technical amendments. I beg to move.
Lord Beecham: My Lords, I hesitate to ask for a longer explanation, but perhaps a slightly longer explanation would help me. Others of your Lordships may have grasped the full implications of the amendment; I fear that I have not quite. It is not clear to me whether as a result of the amendments any claims brought under Section 7 of the Human Rights Act remain outside scope or are brought within scope. I confess that I do not recall having seen the relevant part of the noble Lord's letter. Section 7 of the Human Rights Act seems to cover an extraordinary range of really quite serious issues. It would be unfortunate if they were to be excluded from scope, but perhaps that is not the intention of the amendment. If the Minister
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Lord McNally: No, I fully appreciate the noble Lord's position. We are aware that the current wording in paragraph 12 could be read as preventing funding for claims which involve a breach of convention rights, even where the client is not seeking damages under the Human Rights Act 1998 for that breach. The amendments are intended to make it clear that paragraph 12 of Part 2 excludes only a claim for damages for a breach of convention rights which is brought in reliance on Section 7 of the Human Rights Act 1998.
As I have said previously, the Government's view is that damages claims are generally of a lower priority for funding than other claims; for example, claims concerning domestic violence or homelessness. Therefore, the Bill allows funding only for damages claims in certain areas. These include in relation to a contravention of the Equality Act 2010 or a previous discrimination enactment, or if they satisfy paragraphs 3, 19, 20, or 34 of Part 1 of Schedule 1. These paragraphs allow funding respectively for: claims concerning abuse of a child or vulnerable adult; abuse of position or power by a public authority; significant breach of convention rights by a public authority, and claims concerning allegations of a sexual offence.
The exclusion in paragraph 12 of Part 2 of Schedule 1 is lifted for the purposes of paragraphs 3, 19, 20 and 34, so that claims under these paragraphs can include a claim for damages made in reliance on Section 7 of the Human Rights Act 1998. The Government have also tabled an amendment to make it clear that where a claim for damages is made in the context of a judicial review under paragraph 17 of Part 1 of Schedule 1, the grant of legal aid would cover the work associated with the damages aspect of the claim. This includes a claim for damages for a breach of convention rights brought in reliance on Section 7 of the Human Rights Act 1998. Therefore, paragraph 12 of Part 2 has been lifted also for the purposes of judicial review proceedings.
I again assure noble Lords that these are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998, but I appreciate that the noble Lord might want to read at leisure what I have just said, as will I. If there are still areas of confusion, I will be glad to engage with the noble Lord on them.
Baroness Hamwee: I, too, shall read the Minister's reply with interest. Is he satisfied that there would not be other types of claim, apart from judicial review, with which a damages claim might be almost inseparably linked as part of the same proceedings? I do not expect him to answer that immediately.
Lord Beecham: My Lords, when we considered this issue in Committee, I pointed out that the scheme for criminal injuries compensation-it has changed in terms of the tariff that is now being applied, but that is an irrelevance for the purposes of tonight's discussion-ran to 55 pages and the guidance to 113 pages and that it seemed there were issues on which advice, if not representation, might clearly be helpful and necessary for claimants. For example, I referred to the fact that the compensation authority could take into account a failure to report an incident in proper time to co-operate with an inquiry, about which there may well have been difficulties for an applicant, and that the existence of a criminal record may also affect the size of a compensation claim.
Moreover, as I recall, the cash in question is fairly limited-a figure of £4 million comes to mind-and, although it is the noble Lord who is replying tonight, the noble and learned Lord who replied then said that he wanted to reflect on the matter and seemed to be sympathetic. I do not know whether the buck has been passed because the noble and learned Lord is unable to translate sympathy into action or whether he is giving his noble friend an opportunity to win plaudits all round the House by following through on not a promise but at least an indication that there might be some movement.
I wait to hear what the Minister has to say about this and I hope that those good intentions will be borne out. If a decision has not yet been reached, perhaps the noble Lord will undertake to bring the matter back on Third Reading for a final determination. I beg to move.
Lord McNally: My Lords, Amendment 90 would have the effect of making legal aid available for services to support some compensation claims to the Criminal Injuries Compensation Authority. Proper support and help for victims of crime is a fundamental part of the Government's vision of the justice system. However, as with the rest of our proposals on legal aid, the challenge before us is to reconcile the savings required
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My noble and learned friend Lord Wallace indicated in Committee that we would consider the points made by the noble Lord, Lord Beecham. We have done so carefully but, giving his arguments due weight, I remain unpersuaded that Criminal Injuries Compensation Authority claims should be retained within the scope of legal aid. We recognise that victims of crime will have been involved in a traumatic event. However, the process for making a CICA application is relatively straightforward and there is guidance and support available from CICA to enable victims to make their applications. On the website there is an easy-to-use online form that takes no longer than half an hour to fill out. The section of the guidance about applying for compensation is comprehensive and straightforward. Noble Lords may find it helpful to know that CICA also operates a free telephone helpline to assist people in filling out the form, which is open five days a week. It also offers assistance to those who have difficulty reading or writing.
In addition to the Criminal Injuries Compensation Authority's own services, Victim Support provides independent advice to victims of crime and this can include help with filling in a CICA application. Though it does not provide legal advice, some offices will deal with CICA on behalf of the victims throughout the process. When an applicant is dissatisfied with an offer or a refusal, they can ask CICA to review that decision. If they remain unhappy, they can appeal to the tribunal, and will need to fill in a four-page form and set out their reasons for disagreeing with the CICA decision.
Lawyers are perhaps understandably inclined to think that disputes always require their expertise to be resolved, but we must not forget the original idea of tribunals; they were precisely designed to be accessible for the lay person, creating a non-adversarial, fact-finding environment that avoids the formality of court proceedings. It is a regrettable fact that we no longer live in a climate where money can be found for any deserving cause. CICA applications are an excellent example of an area where funding would be helpful in some cases but the system is set up in such a way as to be accessible to the vast majority of applicants. The test that we have applied in these cases is not whether it would be nice to have legal aid funding but whether, given that savings are unavoidable, this is an area where the absence of legal aid is likely to cause serious problems, having regard to the importance of the issue at stake, the litigant's ability to present their own case, the availability of alternative sources of funding, and the availability of other routes to resolution. In our judgment, CICA claims are one area where it is not. I urge the noble Lord to withdraw his amendment.
Lord Beecham: The noble Lord will expect me to express my disappointment at that conclusion, in my understanding of the change of role from soft cop to hard cop. Of course, in many cases it is certainly true that advice is not necessary, but I have indicated at least three areas in which they might well have been necessary. I have experience of a couple of those in the rare occasions on which I have appeared before a tribunal, and I am sorry that Ministers have not felt able to make the very modest concession that would have ensured that in those rather more difficult cases-and they are the exception-legal advice would be available. It is not simply a question of filling in a form. However, clearly the Government are not disposed to take further action and, in the circumstances, I beg leave to withdraw the amendment.
(a) those services include the types of advocacy listed in this Part of this Schedule, except to the extent that Part 1 of this Schedule provides otherwise;
(b) those services include other types of advocacy to the extent that Part 1 of this Schedule so provides."
Lord McNally: My Lords, again, this is a technical amendment, of which I sent noble Lords details. It is a minor technical amendment, and the full explanation is contained in my letter. If any noble Lord who has read my letter or read the amendment wants further clarification, I am very happy to give it. However, I assure them that it is a technical amendment to the opening text of Part 3 of Schedule 1, which deals with advocacy. I beg to move.
"(c) that it is in the interest of justice generally"
Lord Thomas of Gresford: My Lords, we have finally clawed our way out of Schedule 1 and back into the body of the Bill to meet immediately a difficulty-what is meant by an exceptional case determination under Clause 9. The problem that lawyers see immediately on seeing the word "exceptional" is that when it is normally used in proceedings it means that out of a cohort of cases one stands out because of some
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My mind immediately goes to the sort of issues that we discussed earlier in relation to appeals, from the First-tier Tribunal to the Upper Tribunal and beyond, where a litigant in person is seeking to cope with a government legal team that appears on the other side to argue what must necessarily be issues of law, otherwise it would not be up in that area. That immediately rings the bell of equality of arms in a very serious way, and I cannot imagine that any of these cases would not fall within the definition of an exceptional case determination as set out in Clause 9(3), which I have already read out. In one sense it is a very narrow definition, but in another it introduces all the rights that are available under the European convention. Yet there must be other cases where the European convention is not engaged.
The purpose of my amendment, and I note amendments in the name of other noble Lords, is to widen the ambit of an exceptional case determination to the point where the director of legal aid services considers,
I appreciate that is a very wide definition, but unless the director of legal aid services has a wide discretion, how can he cope with the multifarious applications that will be made to him on the basis of their being exceptional cases? I am not going to spell out any, because these things come out of the woodwork. All of a sudden a case will obviously require, in the interests of justice, to be supported by legal aid because of the wider interest that is involved or because of the public points that have been made, and so on. One can envisage all sorts of circumstances. Although the words here seem modest, they are asking for a wide discretion, and that is the purpose of my amendment. I beg to move.
Lord Avebury: My Lords, when we were discussing the first amendment this afternoon it was said that some immigration cases are determined on straightforward questions of fact. However, what we did after that Division, unfortunately, was to lump them all together so that the routine immigration matters that were referred to in the Minister's letter, which was quoted by the noble Lord, Lord Pannick, are being integrated with issues of extreme legal complexity which, as we have heard, go all the way up to the Supreme Court. We heard the noble and learned Lord,
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The intention of the amendment is to provide scope for exceptional funding to be made available in these complex immigration cases. In such cases, the individual will be without legal representation by reason of the restriction on non-legal professional provision of immigration advice and services, the individual being unable to afford legal representation and the general exclusion of immigration from the scope of legal aid. The Bill removes most non-asylum immigration matters from the scope of legal aid. One of the main arguments used by the Government is that legal advice is not needed in a whole variety of cases, of which immigration cases are one example, and that instead those currently receiving advice and representation under legal aid will be able to look to general advice agencies, particularly the non-for-profit sector, for assistance, as we have heard. This rationale fails to address the provisions dealing with immigration advice and services in Part 5 of the Immigration and Asylum Act 1999, which say that only a person who is registered under the regulatory scheme run by the office of the Immigration Services Commissioner can provide those services. That scheme includes some not-for-profit organisations but very few of them are permitted to undertake work in key areas of immigration law. None is permitted to do judicial review work. Only those at the higher levels of the scheme, levels 2 and 3, are permitted to work on family reunions, appeals-representation at which is restricted to the highest level, level 3-removals and deportations, applications outside the rules, and illegal entrants and overstayers.
Level 1 advisers, who constitute the vast majority of the not-for-profit organisations, are excluded altogether from these key areas for which legal aid is currently provided but will not be provided in future, save where an asylum claim is being pursued. Therefore, the suggestion that general advisers can fill the gap left by the withdrawal of legal aid simply does not work in immigration cases because of the regulatory scheme. Yet the scheme is an important safeguard against the exploitation of migrants by unqualified persons who offer themselves as immigration advisers, of which there used to be hundreds. The scheme was introduced with support across the political parties in response to serious concerns about such exploitation.
I shall give a couple of examples of the sort of immigration cases that I envisage being far too complex for the individual to cope with. First, there is the case of a British overseas citizen of Malaysian origin, about whose plight my right honourable friend Simon Hughes and I had an interview, along with representatives of the Malaysian BOC community, with the Minister, Damian Green, a couple of weeks ago. It would not be necessary to trouble the Minister with cases that did not warrant representation by legal professionals.
My second example is of a Kuwaiti Bidoon who has indefinite leave to remain in this country but whose wife and children, having left Kuwait clandestinely, found themselves in Damascus, where there was no provision for them to establish their identity as relatives of the head of the family in England. They have been stranded there for months, separated from him, because of the difficulty in getting permission to come here. Do they not need legal aid? Is it really the case that a family reunion of this sort can be dealt with by non-professionals, or even with the assistance of Members of Parliament? As I said, we expect Members of Parliament to be deluged with requests for advice and help in such cases.
"I certainly agree with my right hon. Friend that some immigration cases are complex, and I think that the point that he has raised is one for me to look at after today. I will do so, and I will come back to him on that".-[Official Report, Commons, 31/10/11; col. 651.]
The fact is that the statutory appeals scheme is highly complex. Part 5 of the Nationality, Immigration and Asylum Act 2002 contains an intricate set of provisions to determine whether a person may appeal, on what grounds, and what evidence may be relied on in support of the appeal. There are numerous exclusions and limitations within this framework. The UKBA has not infrequently issued notices giving incorrect advice on the individual's appeal rights.
The Administrative Justice and Tribunals Council says that immigration is an area of extraordinary complexity, as we heard earlier. We heard also that Lord Justice Jackson said of an issue affecting the situation of persons liable to removal that,
"The position in the Bill is that exceptional funding should be granted only where it is required by law; that is that denying legal aid would risk a breach of an individual's rights under EU law or the ECHR. Case law has been consistent: that immigration cases do not ... involve such a determination and, as such, exceptional funding would not be available".-[Official Report, 18/1/12; col. 668.]
It follows, therefore, that without legal assistance justice will not be done, and that the right way to reduce costs would be to simplify the rules and procedures rather than effectively depriving these people of access to justice.
The UKBA website section on staff guidance, instructions and country information contains 20 distinct sets of guidance, many of which are themselves broken
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I can understand the Government's position as described by my noble and learned friend the Lord Advocate, if, indeed, the alternative sources of advice that are available in every other type of case were available to immigrants with complex cases such as the family reunion case cited by my right honourable friend the Member for Bermondsey and Old Southwark, and I could give many other examples from my own correspondence with the Immigration Minister, as I am sure he would confirm.
One side effect of totally excluding complex immigration cases from legal aid, as I have said, is that honourable Members and those of us in this House who take an interest in immigration cases will be deluged with a flood of letters and e-mails from those who desperately need help and cannot get it anywhere else. I dread to think of the additional burden on the staff dealing with correspondence on behalf of the Minister. As in other areas of this Bill where access to legal aid is being terminated, the savings the Government hope to achieve at the expense of the poor and vulnerable are counterbalanced by increases in spending elsewhere, which they have not bothered to quantify. I wonder also whether in some of these complex immigration cases-I think of family reunion cases in particular-the denial of legal aid might be held to constitute a breach of Article 8, the right to respect for family life, coupled also with Article 14 on freedom from discrimination. I ask my noble and learned friend whether he has thought of the likelihood of such cases being brought against the Government in respect of the denial of legal aid in these cases, and how would they deal with them.
Baroness Lister of Burtersett: My Lords, I support the amendment, as well as Amendments 93A and 94, particularly in relation to immigration law. I do not claim any expertise whatever in immigration law, but I am concerned by many representations that I have received, particularly as regards children and women who will be affected by denial of exceptional cases support. As the noble Lord, Lord Avebury, has said, and as was emphasised by noble Lords from across the House earlier, this is an extraordinarily complex area of law. It is unrealistic to expect vulnerable immigrants to represent themselves without any legal assistance.
I am particularly concerned about the suggestion that children should turn to their social workers for legal advice and assistance. The noble Lord, Lord Newton of Braintree, gave that idea pretty short shrift
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"Social workers have played an important role in many of our lives, but social workers are not immigration lawyers and are not experts in the immigration process and we have had mixed experiences of social workers".
"We want social workers to do what they are trained for and best at in supporting children, not take on roles that they are not trained or competent for. The Government's proposal simply stands to increase pressures on social workers, and on their sometimes difficult relationship with the children they support".
I taught social workers when I was at Bradford University, and the idea that these students would go out and then act as poor persons' immigration lawyers is frankly laughable. Social workers are on their knees trying to fulfil their statutory responsibilities and should not become second-rate immigration lawyers.
I am also concerned about the implications for women. Rights of Women has written to me, especially about women who have experienced gender-based violence-other than in certain domestic violence cases that will still be in scope-whose immigration status places them at great risk of harm, and about those who may have been subject to trafficking. I know that the noble and learned Lord has said that he will be looking at this matter again before Third Reading, and I hope that at least that issue will be dealt with. Regardless of the complexity of a case, it will not be covered by exceptional cases funding.
It is therefore unbelievable that the Government can expect two vulnerable groups to navigate this complex area of law without those groups being covered by even the safety net of the exceptional cases scheme. I hope that the Minister will look kindly on these amendments and rethink the Government's position on this issue. I cannot believe that it will cost very much money to extend exceptional circumstances funding to cover these groups.
Lord Judd: My Lords, this debate relates to one that we had earlier, when there was that magnificent and to be expected contribution by the noble and learned Lord, Lord Woolf. Without saying everything that I said previously, I should like to underline that I do not believe that I am in a small minority. A significant number of people in this country are ashamed of what we are doing.
What kind of society do we want to be? Are we just cynically abandoning people to a system? Perhaps worse, are we really finding devious ways to get negative results which we want? That is what worries me. I am not convinced that our immigration policy operates with fairness. I believe that there is an underlying principle that we want to get rid of people; that we do not want people here; that we want to discourage people from coming.
Are we a country about justice or are we not? If we are a country about justice, those people, often in sad and desperate circumstances, are the very people whom, in the midst of economic pressures, and all the rest, we should be determined to protect.
I am very glad that there is this opportunity to air this matter. I am glad that concern spreads across the House into different political groups. All that I can say is that I am getting very depressed about the real motivation for some of this legislation.
Baroness Hamwee: My Lords, I support, in particular, Amendment 93, to which my noble friend Lord Thomas has spoken. No one has yet mentioned-although I suspect that the noble Lord, Lord Bach, may-concerns expressed by the Joint Committee on Human Rights about the extent of Clause 9 and whether it will be practically effective. One of its concerns was about the need for provision of services swiftly. Noble Lords will have read the report.
There is exceptional funding under the current scheme covered by guidance and, beyond that, a funding code. I was pleased to have been able to find that quickly through Google, if not through any government website. I am unclear, but fearful about just how closely Clause 9 and guidance which has not yet been written will reproduce what exists now.
I mentioned earlier today to the noble Lord, Lord McNally, that I was going to ask this question. He said that he would know the answer by now. I hope that that has transmitted itself through the ether or on paper to the noble and learned Lord who will respond. The guidance on exceptional funding refers to "significant wider public interest"; overwhelming importance to the client and other exceptional circumstances such that, without public funding by representation, it would be practically impossible for the client to bring or defend the proceedings; or that the lack of public funding would lead to obvious unfairness in the proceedings. I should have thought that that would amount to "in the interests of justice". The terms "overwhelming importance to the client" and "wider public interest" are both defined: overwhelming importance to the client meaning a case which has exceptional importance beyond monetary value because it concerns the life, liberty or physical safety of the client or his or her family. I particularly note the reference to family, because in the immigration cases to which we have been referring, there is concern about family or a roof over their heads. Wider public interest could produce real benefits for individuals other than the client, and this particular case is an appropriate one in which to realise those benefits.
We have referred several times to concern about class actions and cohorts. I said on a previous day on Report, although probably not very clearly, that I was glad to know, pending seeing the detail, that people who have been victims of trafficking will be the subject of a government amendment, my noble and learned friend having said previously that they would come within Clause 9. However, if the Government are concerned that they might not come within Clause 9, then my concern is whether Clause 9 is too narrow. I would extend that concern to a very small group of
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Lord Bach: My Lords, it is absurd that we are debating such a crucial set of amendments as this at 10.15 in the evening. This is a crucial part of the Bill and the House should be much fuller. However, we have heard some very impressive speeches from around the House on Clause 9, which is a key clause in the Bill and, I imagine, a key clause in the Government's thinking on the structure of Part1 of the Bill.
We had a substantial debate at an earlier hour in Committee on these amendments, with the exception of Amendment 93A in the name of the noble Lord, Lord Avebury. However, the amendment of the noble Lord, Lord Thomas, and my amendments were debated. There was a widespread feeling around the House on that occasion, as there is tonight in a much emptier House, that Clause 9 is much too narrow in scope. It does not allow for the flexibility that is crucial if exceptional cases are to have any real meaning. In our view, this is such a narrow clause and it will be so difficult to put into practice that a great deal will be left to the director to decide. At the moment, we do not know under what rules the director will have to make his decisions, and it is a shame that we do not.
We still greatly support the amendment in the names of the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. It seems to us a very sensible amendment and one that, if the Government do not intend what my noble friend Lord Judd was implying, they should accept. However, they do not accept it in those terms. The noble and learned Lord the Minister listened carefully when the noble and learned Lord, Lord Mackay of Clashfern, said in Committee:
"My second point is that, although 'the interests of justice' is a rather general and vague subject, on the other hand if you turn it round and say that the director, before he allowed this ground to prevail, had to be satisfied that there was a real risk of injustice unless legal aid was granted in a particular case, that would focus on the issue in the case in a more distinct and direct way than the phrase 'the interests of justice'".
This is the perfect opportunity for the noble and learned Lord, Lord Wallace of Tankerness, to tell us whether he did think about it and what his conclusion was. It is an attractive offer. It is based on the original amendment of the noble Lord, Lord Thomas, and on what the noble and learned Lord, Lord Mackay of Clashfern, had to say about it. I shall be interested to know his view on that. Amendment 93A fits in very
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The first of my amendments is exactly the same as the one that I moved last time. It is based on a draft amendment by the Law Centres Federation. It is not necessary for me to praise the law centres movement yet again in the House; the House has a very strong feeling that it has done a fantastic job over the past 40 or 50 years. When it puts forward a draft amendment to a Bill like this, the very least that we can expect is that the Government take it seriously. It would have different criteria, having regard to the previous circumstances of the case, including: the client's vulnerability; the client's capacity to represent himself or herself; the client's health, including mental health issues; the actual availability of alternative sources of advice and assistance; the fact that the client is under the age of 18; or it is otherwise in the interests of justice. So we come back to the phrase in Amendment 93 in the name of the noble Lord, Lord Thomas of Gresford.
The noble and learned Lord, Lord Wallace of Tankerness, rejected that amendment last time. I dare say he will do so again in a few minutes. I still wonder why, when it seems to cover so many of the crucial things that are of importance for any clause that deals with exceptional cases.
My Amendments 95 and 96 deal with the position of chief coroner, who barely survived, but survived eventually, even though it was the Government's intention to get rid of him before he started his job. It was good that the Government were persuaded to keep him. On Clause 9(4)(b), where the director has made a wider public interest determination in relation to the individual and the inquest, it would be helpful, rather than harmful or delaying, for the director to consult with the chief coroner. We still think that is a good idea and we cannot see why the Government reject it. These are important amendments and I know that they will be treated seriously by the noble and learned Lord, but to keep Clause 9 as narrowly based as it is on the ECHR and the European Court of Justice rulings is, in our view, much too restrictive and will in the end cause a great deal of concern for clients who really ought to get some legal aid under any exceptional provision but who will be barred from doing so because of the narrowness of the definition of Clause 9.
Lord Wallace of Tankerness: My Lords, notwithstanding the hour-a point made by the noble Lord, Lord Bach-I agree with him that this is an important group of amendments. Clearly, there is concern about the parameters of the exceptional funding scheme that will be created by Clause 9. It is very clear that many of your Lordships would prefer a very broad discretionary power, perhaps akin to that proposed in Amendment 94, on the face of the Bill. However, I ask that we reflect on the fundamental purposes of the changes that we are making to the general legal aid scheme. We need these reforms in order to create a fair, balanced and sustainable legal aid scheme. We have taken into account the importance of the issue; the
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I acknowledge that we have limited the exceptional funding power in such a way as to ensure the protection of an individual's rights to legal aid under the European Convention on Human Rights and European Union law. I acknowledge that this is a high threshold. However, it is right to limit exceptional funding to those important cases in which an individual's fundamental rights of access to justice are challenged. I do not agree with the initial comments of the noble Lord, Lord Bach, which suggested that this would be impossible to operate. Certainly it is our anticipation that there will be several thousand applications to the fund. As I stated in Committee, there will not be a fixed budget for exceptional funding. It will also be available-we will come on to this later-where there is a wider public interest in an individual being represented at inquest proceedings into the death of a family member.
It is also important to note that the individual must qualify for such services in accordance with Clause 10, which will mean that decisions on exceptional funding will be subject to the means and merits criteria. The director of legal aid casework will make all exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions on excluded cases. Clause 4(3) provides that the Lord Chancellor may issue guidance or directions about the exercise of the director's functions, including functions exercised under Clause 9. Through this guidance, the Lord Chancellor will set out the legal criteria that the director must take into account in determining an exceptional case application.
I confirm that the guidance will be based largely on the factors that domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case. It will be published in a clear and accessible format so that applicants and their solicitors can see whether their case will be likely to meet the necessary tests. Certainly it is our intention to publish more details of the operation of the proposed exceptional funding scheme, with associated guidance.
My noble friend Lady Hamwee asked a question about excluded cases that she had put to my noble friend Lord McNally. I have not had a conversation with my noble friend in which he imparted the question to me. In another context, she suggested that there might be a discussion outwith the debate. I am sure that my noble friend will be happy to answer her question in that context.
Amendment 93 would allow the director to fund excluded cases where he or she determines that it is in the interests of justice generally to do so. As the noble Lord, Lord Bach, said, Amendment 94 would allow the director to make an exceptional case determination where it is appropriate to do so in the circumstances of
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The phrase "interests of justice"-and the more seductive turnaround of the words proposed by my noble and learned friend Lord Mackay of Clashfern-is capable in this context of wide interpretation. The amendment would create a power that is considerably broader than the one we currently propose under Clause 9. As I acknowledged, Clause 9 is limited and we have already set out why it has to be so.
Our concern with Amendment 94 is again that it could be open to wide interpretation. Nevertheless, I will repeat an assurance that I gave before to the noble Lord, Lord Bach. Many factors listed in his amendment, such as the client's capacity to represent themselves, their vulnerability, and alternative sources of funding, are to be found in the jurisprudence on Article 6 of the European Convention on Human Rights. As such, they would form part of the test for exceptional funding to be taken into account by the director in those cases where Article 6 is engaged.
In considering whether legal aid should be provided in an individual case, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent himself or herself effectively; and alternative means of securing access to justice.
Importantly, Clause 4(4) explicitly prohibits the Lord Chancellor giving directions or guidance to the director in relation to an individual case. We believe that this change will guarantee the objectivity of the decision-making process for both in-scope and excluded cases and serve as a safeguard against political interference in the making of any individual exceptional funding decisions in future.
My noble friend Lord Avebury tabled Amendment 93A, which is concerned with immigration cases in which an individual risks being unable to obtain qualified and affordable representation and where there may be a risk of injustice if the appellant is not represented. As we have made clear, and as we debated earlier this evening, the Government believe that asylum cases and immigration detention cases must be treated as a priority for funding. I am sure it will readily be agreed that the consequences of these cases are of much higher seriousness, involving threats to life and limb or to the liberty of the person.
Clause 9 indicates that civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) or (4) is satisfied. Paragraphs 1 to 27 of Part 1 of Schedule 1, if we include the Special Immigration Appeals Commission, all deal with aspects of immigration,
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Protecting funding in these areas, which I hope your Lordships will agree are of fundamental importance, means that we have had to make difficult choices about other immigration cases, which have not been considered to be as high a priority. At the same time, we have been clear that funding for cases falling outside the scope of the civil legal aid scheme should be focused on those cases in which the failure to provide legal aid would amount to a breach of an individual's rights under the ECHR or directly enforceable European Union law.
As my noble friend Lord Avebury noted, the case law of the European Court of Human Rights is currently clear that decisions concerning issues of immigration, nationality and residence do not engage Article 6 because they do not involve the determination of civil rights or obligations. My noble friend asked whether lack of immigration legal aid would breach Article 8 or Article 14. Exceptional funding would cover whatever legal aid is required by the European Convention on Human Rights or is enforceable under European Union law. As I have indicated, case law as it currently stands generally means what Article 6 requires, but if the case law were to change, the exceptional funding scheme would have to respond to that. As such, the Government's position is that immigration cases will not generally qualify for exceptional funding, other than a few cases that may arise under other aspects of EU law. However, the fact that immigration cases would currently be unlikely to qualify for exceptional funding does not mean that injustice must inevitably arise from a lack of legally aided representation.
The noble Baroness, Lady Lister, asked about children and social workers. Children will rarely be applicants in non-asylum immigration cases and will normally be considered as part of their parents' application. Child applicants are much more likely in asylum cases for which legal aid will remain available. The noble Baroness also referred to unaccompanied children. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them. Their role includes helping the child access the same advice and support as a child permanently settled in the United Kingdom, and they could also offer assistance in filling in forms, explaining terms and providing emotional support. I was asked particularly about training in immigration law. The proposal is not for social workers to give detailed legal immigration advice but to help with form filling. As I indicated in an earlier debate, we intend to work with the Office of the Immigration Services Commissioner to exempt local authorities from regulation so that they can offer low-level advice and assistance.
I do not wish to repeat everything that was said in the earlier debate, other than to remind the House that in trying to get the balance in immigration cases we have sought to focus legal aid on those areas that are of much greater seriousness to the individual; for example, where the individual is subject to domestic violence. More generally, we have gone as far as we
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Amendment 95 would make it a requirement for the director to consult with the chief coroner and have regard to his views before making a "significant wider public interest" determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a "significant wider public interest" in the applicant being represented. This is a term with a clear definition under the present funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case itself.
The Government believe it is important to retain the ability to fund inquest representation on the basis of wider public interest, because the provision of such representation may lead to findings that help prevent future deaths. That is why Clause 9(4) gives the director the power to provide funding on the basis of a wider public interest determination.
The onus has never been on the decision-maker to consult coroners, many of whom will not wish to give a view at all. Indeed, some coroners are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state's obligations under Article 2 of the European convention. Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has "significant wider public interest".
We envisage that, under the new exceptional funding system, the director will continue to consider the views of individual coroners when taking decisions on whether legal aid is required to fulfil the state's obligations under Article 2 of the European Convention on Human Rights. It would therefore seem somewhat incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the "significant wider public interest" aspect of the case.
We believe that compelling the director to consult with the chief coroner in all cases is likely to add an unnecessary bureaucratic element to the assessment process, which could lead to unfortunate delays. It would represent a significant burden on the chief coroner, who would be unfamiliar with the circumstances of each case, unlike the individual coroner holding the inquest. The chief coroner would be required to acquaint him or herself with information pertaining to a number of cases. We do not believe that there would be any obvious benefit for bereaved families, individual coroners or indeed the chief coroner in mandating this additional process in law.
Perhaps it would be helpful to say that the concept of "reasonable costs" is open to broad interpretation and could be seen to authorise payments at commercial rather than prescribed legal aid rates. However, I can reassure the noble Lord that although discussions about the arrangements for exceptional funding applications are ongoing, we expect to propose that a payment may be made towards the costs associated with the making of an application where that application is successful.
I trust that my response indicates that the exceptional funding scheme is intended to provide an important safety net where an inequality of arms would lead to an obvious-and possibly unlawful-unfairness in proceedings. I accept that many people would like to see this cast much more widely and more cases brought within the ambit of exceptional funding. However, I have explained the architecture of the Bill and why it is cast in the way it is, with particular reference to the European Convention on Human Rights and the other specific issues with regard to coroners' inquests.
Baroness Lister of Burtersett: My Lords, on unaccompanied children, I accept the point that social workers will not be expected to provide formal legal advice, but in the other place the Parliamentary Under-Secretary of State for Justice said that they could turn to law centres, pro bono representation or the Refugee Council for such formal legal advice. As I am sure the Minister knows, the Refugee Council and the Law Centres Federation have written to the Parliamentary Under-Secretary of State to say that it is simply impossible for that gap to be filled in that way and to point out that the Refugee Council does not provide that kind of support. Will the Minister take that on board? I still do not know where these children will get that legal advice if they need it.
Lord Wallace of Tankerness: The noble Baroness acknowledged that I referred to some of the issues about unaccompanied children, but I will certainly draw her remarks and the point that she made about the Refugee Council to the attention of my honourable friend the Parliamentary Under-Secretary of State.
Lord Thomas of Gresford: My Lords, one of the comforting sayings at the Bar, which I have found over 50 years to be absolutely true, is that when one door shuts another opens. It seems to me that, if he has heard of that saying north of the border, the noble and learned Lord will be aware that he has set out in his reply the basis of innumerable applications for judicial review of the decisions made by the director of legal aid services. It is impossible for there not to be a challenge to the statement made by the noble and learned Lord because almost anything can be brought within the ECHR rules, generally speaking, if you really try. We have heard reference to Articles 2, 6, 7, 8 and 14 tonight, which gives us five articles to play with.
I can assure the noble and learned Lord that the legal profession will look forward to testing his description and the ambit of the clause for a considerable period-case after case. It would be so much simpler if a broad
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Lord Wallace of Tankerness: My Lords, this is another minor and technical amendment designed to correct a drafting inconsistency between Clause 7 and Clause 10. Clause 10(4) is intended to cover the possibility of a different level of service being appropriate to a matter that falls within the scope of Part 1 of Schedule 1-for example, legal help or legal representation. In Clause 10(4), we currently use the phrase "description of service" when our intention is simply to refer to "forms" of service as we have in Clause 7(2). The amendment simply standardises the terminology between Clause 7 and Clause 10(4). I beg to move.
Lord Beecham: My Lords, this is a straightforward amendment that deals with the question of creating a right of appeal to a tribunal or court from a decision by the director. It seems highly undesirable that there is only the possibility in the Bill of regulations being provided to allow for such an appeal, and clearly there ought to be a proper route to appeal. The amendment requires that regulations should be brought into being instead of simply laying down an option for them to be brought forward. I hope that the noble and learned Lord will accept that it is desirable to have that avenue prescribed and subject to regulations from the outset rather than leaving it open. I beg to move.
Lord Wallace of Tankerness: My Lords, as the noble Lord, Lord Beecham, has indicated, the amendment would require regulations to be made under Clause 11 to make provision for appeals to a court, tribunal or other person against determinations made by the director under Clauses 8 and 9, and against the withdrawal of such determinations. I can reassure the House that the Government's intention is to continue with the existing effective appeal procedures that are currently used by the LSC. First, an internal review on all determinations on civil legal aid will be available. This is required by Clause 11(5). Secondly, we are retaining the current system of independent lawyers, known as independent funding adjudicators, who volunteer to carry out independent reviews of funding decisions in in-scope civil and family representation cases. Clause 11 already allows us to make regulations to set out those appeal processes in secondary legislation, as they are set out currently.
The existing system, which deals with over 11,000 reviews and 3,500 appeals to independent funding adjudicators each year, is both efficient and effective and costs an estimated £60,000 per year to administer. I am not sure that he did, but it may be that the noble Lord envisions instead a tribunal to review these appeals. The review by Sir Ian Magee initiated by the previous Administration into the governance of legal aid looked at the option of directing all legal aid appeals to a tribunal and concluded that this would cost up to £1 million per year to administer. We do not believe it would be sensible to replace a system that works well with an unknown system at possibly 15 times the current cost.
This amendment would also require an appeal in cases covered by Clause 9. Again, we intend to retain the existing system under which, although there will be an internal review available in accordance with Clause 11(5), there will be no appeal to an independent funding adjudicator where applicants remain dissatisfied. I do not agree that these cases should attract a right of appeal to an IFA. It would not be appropriate to refer exceptional funding decisions to an IFA. This is because of the particular nature of the assessment at the heart of such cases, which will focus on an interpretation of the relevant obligations under the European Convention on Human Rights to provide legal aid. Exceptional case determinations, along with all other decisions by the director, would be amenable to judicial review. I think my noble friend Lord Thomas of Gresford confirmed that in his response to an earlier debate. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham: My Lords, if there is no intention at any stage to provide for appeals to a court, tribunal or other person against such determinations, why is the option included in the first place? Either the Government intend at some point for some categories of case to be dealt with in that way or they do not. If they do, they should make regulations. If they do not, subsection (6) is otiose. However, I am making no progress with the noble and learned Lord, and at this hour I do not propose to take the matter further. I beg leave to withdraw the amendment.
(2) The Lord Chancellor may appoint an independent person to review claims for clinical negligence and means of improving the modes, procedures, financing and outcomes relating to the same as he or she shall specify.
(6) In this section "claims" shall mean claims and complaints made by patients receiving services provided or commissioned in England in respect of a liability in tort or contract owed in respect of personal injury or loss arising in connection with breach of a duty of care owed to any person in connection with the diagnosis of illness, or in the care or treatment of any patient of an NHS body, or of a primary care or independent provider.
Lord Phillips of Sudbury: My Lords, I am supported in this amendment by the noble and learned Lord, Lord Woolf, and my noble friend Lord Faulks, who is a QC. Both noble Lords apologise for not being in the Chamber at this hour.
The general point of the amendment is to allow the Government at some future time, but I would hope earlier rather than later, to institute an independent review of clinical negligence claims, given that within the legal profession they are generally accepted as being uniquely difficult, complex, expensive and long-winded. Very briefly, the fulcrum of any decision in these cases revolves around medical experts' reports, often not one, two or three, but a series of such reports depending on the seriousness of the injuries or defects. They are extremely complex when one comes to try to assess the course that an injury may take over the rest of a person's life. There are huge problems of what lawyers call causation. There are particular problems in relation to the very young and the very old, who are disproportionately affected by cases of clinical negligence, and those who are mentally impaired, whether prior to the alleged negligence or as a result of it. There are particular complexities around the funding and expenses related to clinical negligence claims and around insurance, particularly what is called "after the event" insurance. I should declare that I was a non-executive director of a company providing such insurance for a number of years. There are problems in relation to the cost of the medical reports, which can be extraordinarily high, and of the insurance itself. One has after the event policies known as qualified one-way cost-shifting insurance. In fact, there is no aspect of these wretched claims that is straightforward and simple. I suppose
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"Clinical negligence has always been an area of particular complexity calling for both experience and expertise, in that it involves the evaluation of expert evidence ... When legal aid was removed from personal injuries generally"-
I shall not repeat the short account that I gave in Committee of the various attempts made in this country and in Wales to grapple effectively with the problems of clinical negligence claims. If anybody is interested, that was in relation to Amendment 99A, which was debated on 24 January at col. 1016 of Hansard. As long ago as 2003, there was a report by the Chief Medical Officer for England, called Making Amends, which related specifically to the slowness, complexity and cost of these claims. That does not seem to have been actioned. Similarly, Wales has had two pieces of legislation directed specifically at this area, the outcome of which is the Speedy Resolution Scheme. Wales is still in the process of evaluating that. One has to conclude that, because of the difficulties of getting to grips with the various aspects of this type of litigation, it is a sore that runs, unhealed, year to year. That is why we have proposed this power-we propose a power and not a duty. Out of deference to what the noble Lord, Lord McNally, said in Committee, we have made it an option for any future Administration.
I shall quickly deal with a couple of arguments against the amendment which were produced last time. One argument was that there is already a post-legislative scrutiny regime which is the subject of Cabinet Office guidance. There is also a post-implementation review plan. The trouble with this is that it is very general and entirely discretionary. With a Bill of this scale and breadth-there are 270 pages of primary legislation with probably as much again to come in secondary legislation-we are into a massive reform right across the face of legal aid and it is expecting too much to think that there will be a review of this particularly difficult area of litigation in order to arrive at the best conclusion for all concerned.
This issue affects not only the people who claim to have been clinically damaged but the National Health Service itself, which currently spends a great deal of time, effort, energy and funds in dealing with it. That is why we feel that the present informal Cabinet Office guidance does not go far enough. We want something that is nearer the Charities Act 2006 which provided for specific post-legislative review, which is now going on.
That is the bones of what I want to say. The Government have nothing to lose and everything to gain in agreeing to this amendment. It will lead to better justice in a field where the present injustice is felt keenly. People who are unluckily damaged in the course of medical treatment feel further damaged by the byzantine system we are currently left with. The amendment, which has been redrafted since the Committee stage, takes note of the points made by the noble Lord, Lord Beecham, from the Labour Benches. We hope, therefore, that Amendment 101A will introduce a provision that can do nothing but good for an area of litigation that desperately needs reform. I beg to move.
Lord Wallace of Tankerness: My Lords, Amendment 101A seeks to provide for the possibility of a wholesale independent review of clinical negligence claims by an independent person, and this would appear to provide for a review of both the civil procedure and legal aid funding. Having sat through the speeches at Second Reading and having responded to the debate on clinical negligence in Committee and again last week to other amendments moved on Report, like any other Member of the House I am under no illusion as to both the importance and sensitivity of this area. My noble friend Lord Phillips said something about the exceptional challenge that these issues give rise to and, when we debated amendments on Report last week, my noble friend Lord Faulks spoke to this amendment even though it was degrouped at that time.
The amendment has the somewhat novel effect of permitting the Lord Chancellor to introduce an exceptionally detailed and costly review function for an entire area of civil litigation. Albeit that it is now couched in terms of a power rather than a statutory requirement, there would certainly be an expectation raised if Parliament were to pass it. There are, therefore, fundamental problems.
I have alluded to the costs issue, and this cannot be overstated. One assumes that it is straightforward for the Government to set up a review, but a research, monitoring and evaluation framework of the magnitude proposed here does not give sufficient weight to the financial constraints under which the Government are operating. I recognise that the Government have in recent times committed resources to previous reviews, but the resources are somewhat more strained. At a time when we have had successive groups of amendments in which cases have been advanced for legal aid in particular areas to bring them within scope, which we have had to resist on the grounds of cost and because it was not part of the scheme, it is difficult to commit or even give the possibility of committing to a significant expenditure that would follow on from a review of this nature.
According to the NHS Litigation Authority data for 2010-11, only 18 per cent of clinical negligence claims are funded by legal aid, so it would seem
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Lord Phillips of Sudbury: My Lords, to say that I am disappointed in that response is, I am afraid, an inadequate estimate. The whole point of amending the resolution from last time was to make this discretionary. For the Government to say that they do not even want to be under an expectation of having such a wide review seems wayward. I also find it wayward that the amendment is rejected on grounds of cost. It is to save massive waste in this area that this amendment is put forward. I will withdraw the amendment, as there are only a dozen of us here, but I do so with disappointment.
Lord Bach: I can be fairly brief here, as the Minister made an important concession in Committee by saying that there would be no means test on advice for individuals in custody. I was grateful for his concession, as was the Committee. However, I am still concerned-and I referred to this in passing in Committee-by the expression to be found in Clause 12(2):
I do not know what that phrase, which we debated a few minutes ago in a different context, means in the context of Clause 12. The really important part of the clause is the first sentence, which states:
After that most of this clause is, to coin a phrase, otiose. It does not really matter; what matters is that there is the right to initial advice and initial assistance. What do the words "the interests of justice" add to the debate? In my view, they add absolutely nothing but they put me rather on edge. Do they mean that there may be some cases where the director thinks it is not in the interests of justice for there to be advice and assistance for someone in custody?
The Minister wrote us all a reassuring letter a few weeks ago. I am afraid that I do not have my copy in front of me as I address the House tonight, but I think it basically said, "Don't worry about it. It doesn't actually mean anything in this context". I put down my amendment so that the Minister can explain why the phrase "the interests of justice" has to appear in this clause at all. Perhaps it is necessary for all the rest of the clause to be there, with regard to what the regulations may include and what initial advice and initial assistance mean. However, that phrase rather concerns me, lest some future director were to decide that "the interests of justice" meant that it was not necessary for advice and assistance to be given.
Without any doubt it is the view of the House-and, I suspect, that of many outside-that the change that the Police and Criminal Evidence Act effected, so that there was advice and assistance for those in custody, has been nothing but a good thing. It has meant that guilty men and women cannot get off their responsibilities because they can blame something on some alleged false admission. It also means that those who are innocent and have been arrested have the protection of some initial advice and assistance, so perhaps the Minister will explain to us why that phrase needs to stay in this clause at all. I beg to move.
Lord McNally: My Lords, I will try to help the noble Lord. I do not think there is anything sinister in this, and I hope that once I have finished speaking he will be happy to withdraw his amendment and leave my two amendments to go through. Perhaps I should start by saying that the scope of provision under Clause 12 is intended to reflect the existing provision in the Access to Justice Act 1999. The Government have no plans-I repeat, no plans-to change the existing provision of advice and assistance to those held in police custody. I indicated in Committee, after an extremely persuasive speech by my noble friend Lord Macdonald, that the Government intended to table an amendment to Clause 12 to remove the power to introduce means-testing for initial advice and assistance-
Lord McNally: I think that it lasted under 30 seconds, and what I was trying to draw to the attention of the House for future reference is that interventions do not have to be for 17, 20 or 25 minutes to convince me. It is to encourage the others that I make the point. As I say, the Government intended to table an amendment to Clause 12-
Lord McNally: I take the point entirely. I will try again to say that Amendment 103 fulfils the commitment that I made. Government Amendment 104 also clarifies that initial assistance might include assistance in the form of advocacy. It ensures that the current position under the Access to Justice Act 1999 is carried forward in this respect in the Bill.
However, Amendment 102 would make police station advice and assistance automatically available to all. It would mean that the director would not be required to determine whether an individual qualified for police station advice, while having regard to the interests of justice. As such, the amendment is unnecessary. Determinations under Clause 12 are for the director to make. However, in practice, as is currently the case, solicitors apply what is known as a "sufficient benefit" test, which is deemed to be satisfied in circumstances in which a client has a right to legal advice at the police station and has requested such advice in accordance with Section 58 of the Police and Criminal Evidence Act. On subsequent attendances in the same investigation, the solicitor must ensure that the sufficient benefit test is satisfied before continuing with the matter.
Article 6 of the ECHR requires legal aid in criminal cases only where the interests of justice require it. The provisions of the Bill are based on the starting point that advice and assistance at the police station should be made available only where the interests of justice require it. Therefore, it is appropriate to allow the director to determine whether an individual qualifies for initial advice and assistance. However, our present view is that it will generally be in the interests of justice for those held in custody at the police station to receive advice and assistance in some form, whether over the telephone or in person. There are no plans to change the current system that operates in practice for police station advice. It is currently intended that initial advice and assistance should continue to be available to all those to whom it is available at the moment.
I should add that the Delegated Powers Committee recommended that regulations under Clause 12(9) should be subject to the affirmative procedure. We have accepted the committee's recommendation and have tabled Amendment 109, which we will move when we reach Clause 40, to make the regulations under Clause 12(9) subject to the affirmative procedure. Given what I have said, I hope that the noble Lord will withdraw his amendment.
I make one further clarification on this. Subsection (2) requires the director to have regard to the interests of justice when making a determination under Clause 12. As I have said, solicitors currently apply the sufficient benefit test. However, it is interesting that the Access to Justice Act, which we are reimplementing, does not make express reference to the interests of justice, although it is implied. We are covering something that ties in to the ECHR commitment and reinforces what is in the original Act. I do not think there is anything sinister in what the noble Lord is probing. With those assurances, I hope he will withdraw his amendment.
Lord Bach: My Lords, given the time of night, I will obviously withdraw the amendment. I thank the Minister for his response but I cannot say that I am totally satisfied. My ears started to prick up when he said that in general it was considered that it would be in the interests of justice. My question to the Government is: when will it not be in the interests of justice for someone in custody at a police station or other premises to have initial advice or assistance? Are there any examples? I do not ask the noble Lord to answer now but it would help the House if he could write with some examples of the kind of situation in which it would not be in the interests of justice for someone in custody to receive this assistance and advice. It is the fact that there may be occasions when it is not considered by the director to be in the interests of justice that worries me. I would be grateful if the noble Lord could find the time to write to me with some examples. I think other Members of the House would be grateful for them as well.
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