Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 11 months ago)
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Lord Bach
My Lords, this amendment, short though it is, is important because it allows the Committee to question the Minister and to have a discussion around public legal education. That subject does not appear much in the Bill and we thought it worth tabling a probing amendment. If the Minister is not able to answer all the questions today, I am sure that he will be kind enough to write to Members of the Committee.
Perhaps I may go down memory lane for a moment or two. When I held the position that the Minister’s colleague, Mr Djanogly, now holds, part of my brief covered public legal education. It was based on the thesis that, of course, it is important for people to be able to access justice, but people will do so only when they know that a civil wrong may be or has been done against them. The truth is probably that many millions of our citizens do not know when they have some claim—perhaps not big or major—because some civil injustice has been done against them. They have no idea how the system works.
We very much want to keep the good things in this system, which means that people with a legal claim can get advice and, it is hoped, sort out the claim in that way. We think that legal aid plays an important role in making that system work. However, when we live under the rule of law in a modern liberal democracy, what do we do when people do not have a clue about their rights and responsibilities in this legal sense?
I was lucky enough to chair a pretty powerful committee of independent outsiders at the department on this issue. From outside the ministry, a committee group was led by the brother-in-law of the noble Lord, Lord Brooke. He is a very distinguished former Lord Justice of Appeal who has done very good work in many fields, as the Minister is confirming. The committee included people such as Professor Hazel Genn; Richard Susskind, the expert on legal IT and associated subjects who has advised Governments of all colours and none; Michael Smith, a very distinguished solicitor; the chairman of the Legal Services Board; and Amanda Finlay, to name just a few. What we talked about and tried to do something about, and what we as a Government were prepared to put money into, was an attempt to make our legal system better understood by ordinary citizens.
Public legal education is not a very attractive phrase, but we know what we mean by it. The question was where we would concentrate the limited resources that were devoted to such a concept. It seemed to me that there was one place where more work ought be done. Some work had been done in schools, which was excellent, but more was needed. Also, sixth-form colleges and colleges of further education were places where probably there was not much teaching or education even in its broadest sense about a citizen's legal rights and obligations. We thought that this was an important part of trying to establish a proper democracy that lives under the rule of law.
I hope that other noble Lords will join in the debate and ask other, perhaps deeper questions. In the Bill the requirement to provide legal education is discretionary rather than mandatory. Our probing amendment argues that it should be mandatory; there should be an obligation on the Lord Chancellor. What mechanisms does the Minister’s right honourable friend intend to use to secure the provision of information about the law? That is an important point. Online facilities, with the exception of YouGov, are fragmented and of varying quality. How does his right honourable friend intend to work with other departments of state and external actors to ensure that citizens are informed of their rights and duties when interacting with the state and other services?
I think that most noble Lords in Committee will agree that this question could be well directed to the Department for Work and Pensions, because I imagine that we will talk quite a lot about mistakes that have been made by that department. However, it applies also to the Department for Education, the National Health Service, private banks and of course local authorities. Our concern is that the Government have rather put on one side this sort of work, either for financial reasons or because they do not believe that it has much place in the Ministry of Justice's responsibilities.
What is the Government's attitude towards the future of public legal education under our system, and to the goal of educating more of our citizens in the ways of knowing what their obligations and rights are, so that they do not walk around blind to the kinds of rights and obligations that they have in a society such as ours? That is the point of the amendment. I need hardly tell the Committee that of course I shall not press it; it is a probing amendment to elicit the Government's views on the issue. I beg to move.
Lord Phillips of Sudbury
My Lords, I declare an interest as president and founder of the Citizenship Foundation, which is the principal educator about the law in schools in this country. We work with more than half of all primary and secondary schools and try to give young people a sense of what it is to be a citizen of the modern, highly complex state. I commend the noble Lord, Lord Bach, for bringing forward this amendment and, indeed, I commend the Minister and the Government for an imaginative clause. I do not think that a clause such as this has appeared in legislation before, and I wholly commend it.
I have only a couple of points to add to what the noble Lord, Lord Bach, said in moving his amendment. The first is that we still live in a system where ignorantia legis neminem excusat, which is all very well if you know Latin and if you know a bit of law, but the average man or woman in the street, let alone the average pupil in any of our schools, is understandably, predictably, woefully ignorant of this extraordinarily complicated society and state that we have given birth to, principally, I have to say, in these Houses of Parliament. I have mentioned before, and I have to mention again in relation to this amendment and this clause, that we have a larger corpus of statute law than any democracy in the world by far and, of course, we are supposed to be a common law system, so it is not as if it stands on its own.
I believe that one of the principal causes of civic disaffection, if I can call it that, in this country, which I think is present and apparent on all sides—and I do not refer just to the riots a few months ago, I refer also to the declining turnout at elections and the declining inclination of people to stand for office in local government and so on—has everything to do with how people, not even consciously, feel that somehow we carry on here in total disregard of them out there. They never get asked, and they never get told, unless there is an election on, when all candidates are deeply keen to engage with the public at large. We have to do something about this. I am delighted to see that this clause is here. I shall be interested to hear what the Minister and other noble Lords say, but I would have thought that the importance of doing something about this is so pressing and so little understood that to have a requirement here rather than a discretion would, on balance, be desirable because there is no time to lose.
I shall give one small example of what a desert there is of accessible information about the law. It is that the Citizenship Foundation publishes the Young Citizen’s Passport, which is a passport to the law that will affect young citizens when they leave the school gates or, indeed, before they leave them, to do with housing, sex, contract and so on. The Citizenship Foundation has sold 2 million copies of this booklet, and that is not a small number. I suggest that that gives an indication of what a thirst there is for accessible, practical information about issues of law that are not voluntary for anybody, but are compulsory for everybody. I wholeheartedly support this amendment.
Lord Howarth of Newport
It was a very good idea of my noble friend Lord Bach to table this amendment, and I do not want to introduce a jarring note because I am sure that we want to be consensual on this matter, as on others, but I make the point that if more people are going to have to represent themselves in tribunals and courts, they are going to need better opportunities to inform themselves about the law and it is not quite clear how that is to happen, not least against the background of reductions in funding from the Department for Business, Innovation and Skills, the Ministry of Justice and local government for CABs, a matter we touched on earlier this afternoon.
The need is going to be acute, and I fear that it will be the greater because with the reductions in legal aid there is a risk that more of our people will feel alienated from our society. They will no longer have confidence that the legal system will sustain all their legal rights when they find themselves in baffling situations of conflict in which they feel that they may suffer injustice and that there is no one there to champion them. That is dangerous and risks disaffection from the state and the justice system, and would develop cynicism about the law. That is a cultural trend that we may need to anticipate and the Government will need to think deeply about how they might mitigate and counter it.
When the Minister replies to this debate, it would be helpful if he would tell the House a little about how the Government envisage general information about the law and the legal system may be provided. It is not a duty on the Government, as expressed in the Bill, but presumably they are contemplating this at least as a possibility. I certainly think that they should do so.
The noble Lord, Lord Phillips of Sudbury, mentioned with legitimate pride the Citizenship Foundation. But we have learnt, I think this week, that citizenship is to be removed from the national curriculum. Once again, that underscores the importance of finding ways to help a new generation of young people to be aware of their responsibilities and rights as citizens. It may well be that there are excellent members of the legal profession who already visit schools and do pro bono work in helping to advance the legal education of our young people. I hope that that is so. Again, I do not know whether the Government have plans to encourage more of such activity.
I think that we can all remember the days when the law reports in the newspapers were very much fuller and the serious newspapers felt that it was their responsibility to communicate the important cases and decisions in the law. I may be wrong but I have the impression that law reports in the broadsheet newspapers are now more perfunctory than they were. Of course, the tabloid treatment of legal issues is almost entirely sensational. There is a challenge as to how more responsible, more thoughtful, more informative and more effective education through the media can be achieved. Information technology must offer new and better possibilities. I do not know whether the Ministry of Justice is thinking of developing its own website or of encouraging others to develop websites that may help to supply the present deficiency.
If we had less law and clearer law, and if we had more law codified in relatively succinct and simple terms, it would be easier for the people of this country to understand it. Finally, I therefore ask the Minister to say something about the Government’s plans to support the Law Commission in pursuing its perennial task of bringing the law up to date and making it relatively accessible and comprehensible for lay people.
Baroness Butler-Sloss
My Lords, I share with the noble Lord, Lord Phillips of Sudbury, the commendation of the Government for putting in the extraordinarily interesting and, I think, very valuable subsection (3) in Clause 1. It is excellent. The only thing that I do not understand is why the word is “may” and not “must”. One starts by knowing that whatever happens in the latter part of this Bill, we are bound to have a situation where the Government will have less money to put into legal aid. As the noble Lord, Lord Howarth, has pointed out, consequently, more people will have to deal with their own cases.
It is very important that there should be an obligation, rather than just the opportunity, for the Lord Chancellor or the Ministry of Justice to have some imaginative ideas to help people who are going to have to do their own cases. The word “must” should be in the Bill. I am somewhat surprised that the Government, having gone so far with this imaginative idea, did not think that it was necessary to make it compulsory.
Lord Elystan-Morgan
My Lords, I support the amendment and congratulate the Government on their imaginative development in relation to this matter, but I too accept that it should be mandatory rather than discretionary. As the noble Lord, Lord Howarth of Newport, mentioned, there is the problem of the unrepresented defendant—the bane of every judge’s life, particularly, if I may say so, that of the circuit judge. Often one found in a perhaps not uncomplicated situation two unrepresented defendants. One would have to spell out to them with bullet points essentially what the civil law is. One would then have to explain that if the claimant could on a balance of probability establish the case, he or she would succeed. If not, the other side, the defendant, would triumph.
However, it is not really the unrepresented defendant, complicated though the situation is, that this matter deals with, but the person who has not made a claim at all and will possibly never make a claim. I think it must have been around 10 years ago that I saw a memorandum from the Law Society. It had conducted a comprehensive survey across the country and found that around 30 per cent of straightforward industrial claims which had every prospect of success were, for some reason or another, never pursued. That is the essential community that this piece of legislation is aimed at. Therefore I commend the Government on their imagination, but to my mind there is no earthly reason why it should not be mandatory rather than discretionary.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it is warming to find a clause in the Bill that has such general approval. Amendment 3 seeks to amend Clause 1(3) to make the power of the Lord Chancellor in relation to the provision of information a duty. This amendment is not appropriate. The duties of the Lord Chancellor under this Bill relate to the provision of legal aid for those who qualify for it in accordance with Part 1. In contract, this subsection is aimed in particular at enabling the Lord Chancellor to direct those ineligible for legal aid to other sources of advice. In the future this may include the provision of referral to paid-for advice through a telephone helpline service. The Government have decided not to implement the proposal at this stage, but intend to run a pilot scheme. The intention is that any individual who is seeking legally aided services but is ineligible for legal aid advice could be signposted to other sources of advice that may be able to assist them in their problem. However, to create a duty in this regard would be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all encompassing service. In a sense, the debate has covered demands for that much broader service, but I still maintain that we cannot make this a bounden duty on the Lord Chancellor. However, it takes us in a direction that is interesting so far as this debate is concerned and, indeed, in the way our legal services are being developed.
Some of the issues raised by the noble Lord, Lord Bach, and my noble friend Lord Phillips go far beyond the responsibilities of the Ministry of Justice and of the Bill about the rights and responsibilities of the citizen in our society. However, I accept that it is sensible to address the need for a better understanding of how the justice system works and allow the citizen a more fully understood access to it.
Lord McNally
He will be very annoyed; that is what his father was called. It is one of the problems of being in the House of Lords that you remember their fathers. I am working with Francis Maude on our transparency agenda. On a number of things that have been, and will be, discussed in this Bill, some of my noble friends talk as if the legal profession was set in aspic. I suspect that we are about to see an enormous change in the legal profession. As in any sector where there is change, it is unsettling, but it could also be very enabling. I wonder whether alternative business structures, whereby accessing a lawyer might not be so formidable as calling on the high-street solicitor but a matter of going to somewhere in your local Co-op, might make a difference in terms of access.
Noble Lords underestimate just how willing people are to use the telephone and, increasingly, their e-mails and computers to get information. One has only to see the impact of eBay to appreciate how confidently people use that kind of technology for everyday use. The idea that people will get their advice via telephones and computers is not so far fetched.
The noble Lord, Lord Howarth, asked me what the department was doing. Through Directgov, the public can gain access to a range of information online about the justice system, including legal aid. The introductory page on legal aid on Directgov includes specific information about accessing the community legal advice helpline via the telephone or by completing a web-based online form to book a call back from the helpline in a language and at a time convenient to the caller. Plans are for e-mail advice and community legal advice, and the Legal Services Commission is currently working to enhance the facilities for clients to access advice electronically from the community legal advice helpline via secure e-mail. Initial access to the CLA e-mail advice service will be via the current “contact us, call me back” page on Directgov.
Online general services come in three forms: free web-page services provided by a variety of commercial and not-for-profit organisations such as National Debtline, the Adviceguide from Citizens Advice, and consumer credit counselling services.
I went to the Law Society awards ceremony earlier this year and it was interesting how many of the award-winning companies had online services. Some of them went quite a way down in terms of advice before you pressed the button to start being charged. Again, online services are an interesting development.
These online and digital resources also explain court processes and procedures and how court hearings work, which is particularly important for litigants in person. There are a number of links that demonstrate how comprehensive these resources are. They give advice on, for example, how to avoid repossession, what to do if you get into mortgage arrears and a whole variety of other services.
I am suggesting that part of what the noble Lord, Lord Bach, raised in this amendment, which I welcome because it allowed us to tease out some of these matters, is that a great part of our responsibilities under this section will be carried through by the new technologies. We believe that the public, who in other parts of our life show an amazing capacity to use these new technologies, will find them an important part of understanding and having access to our legal system.
We resist the amendment because we think that this should not be a duty, although it is certainly a direction of travel for the MoJ. We regard the creation of a duty at this stage to be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all-encompassing service. I hope that the noble Lord will accept where our intentions lie and where our direction of travel lies, and at this stage will agree to withdraw his amendment.
Lord Bach
I will withdraw the amendment in due course, although I must say that having had the support that I have had around the House I am sorely tempted to have our first vote on this Bill tonight. But as I think that we are probably the only part of the whole of British society that is working at the moment—they certainly are not at the other end—I will resist that very strong temptation.
I am about to find out what Section 4(2)(a) of the Access to Justice Act 1999 says. I believe that it says that the Government have to provide general information about the law—I will find out in a moment—so the praise with which the present Government have been lauded during the course of this debate for having raised this issue for the first time ever may be a little premature. At the same time, it is good to have it in the Bill, but not good to see it as a “may” rather than a “must”. I shall start by saying to the Minister that we may well come back to this on Report, on the basis of what he said.
Section 4(1) of the Access to Justice Act says, under the heading “Community Legal Service”, that the commission—which means the Legal Services Commission—shall,
“establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs”.
We met those last words earlier today, so I will not mention them again. Subsection (2) goes on:
“The descriptions of services referred to in subsection (1) are … (a) the provision of general information about the law and legal system and the availability of legal services”,
so the Government have done well to put it back into this Bill, but it is a pity that it is voluntary and not mandatory.
I would like the noble Lord to tell us, either tonight or in writing, what is in the budget for this work—what is being spent on it this year and what is planned to be spent on it next year. I hope that the answer is not “Nil”. I rather fear it might be.
Lord McNally
I cannot give precise figures, but I am, as I said, the Minister responsible for digital development within the system and have been witnessing a lot of work going on, concerning how to make websites understandable, accessible and people-friendly. Since we are being swamped with advice, a little bit that has come to me says that, under the Access to Justice Act 1999, the provision of information is part of civil legal aid, but we have decided to take it out of the concept of legal aid because, although it appears in Section 4(2)(a) of the 1999 Act, the Legal Services Commission did not in practice treat it as something that it would normally fund. It was put in the Act, but nothing happened, which is not unknown.
Lord Bach
We spent quite a lot of money on it, and planned to spend more. I think that that is as far as we can take it tonight, but if the noble Lord can supply the figures, if there are any, that would be helpful to the Committee.
I want to thank all noble Lords who have spoken in this fairly short debate. I particularly want to praise the noble Lord, Lord Phillips of Sudbury, for his role in the Citizenship Foundation. As my noble friend Lord Howarth pointed out, it is wrong to congratulate him this week if citizenship is no longer to play the role that it has done in the curriculum. I suspect that the noble Lord, Lord Phillips, will have more to say on that, perhaps even now.
Lord Phillips of Sudbury
My Lords, I would simply like to make clear that the noble Lord, Lord Howarth, was right up to a point: the issue is not decided. There is everything to play for. I say to anybody in this Chamber who thinks that it would be a bad step, please get your pen out and write to Mr Gove.
Lord Bach
As the noble Lord says, there is everything to play for—rather like this Bill, I hope.
At the risk of taking up too much time, I will just quote from the speech of Lucy Scott-Moncrieff, the vice-president of the Law Society this year, who I am sure will be a very distinguished president next year. She has had a great deal to do with the Law Society’s reaction to and comments on this Bill. In a speech to the Northumbria School of Law earlier this month, which I have been lucky enough to see, she said the following, which I think is pertinent:
“But access to the courts is only half the story … the story of those who know that they have a problem, and perhaps know that there is a legal remedy, but have limited opportunity to use the legal system to achieve justice. The other part of the story concerns people who may not realise that their problem has a legal remedy, who have a whole tangle of issues affecting their lives which need to be unpicked to understand what solutions are possible - which may or may not be legal solutions. Very few people who receive legal advice proceed to litigate”.
That point was made before the dinner break. Those are wise words and there is a lot for the Government to gain by making sure people have a better understanding of their legal rights.
I will withdraw the amendment in a moment, but will just say that this is an issue that may be small in terms of the length of amendment, but may be an important issue that we should press the Government on when we come to Report. I seek leave of the Committee to withdraw the amendment.
“( ) The Lord Chancellor must ensure that a person eligible for legal aid advice is able to access it in a range of forms ab initio, including securing the provision of initial face-to-face advice.”
Lord Bach
My Lords, we come on now to an important element of Part 1 of the Bill, which is the mandatory gateway. Although I am sure the Committee knows this very well, I just remind noble Lords that if the relevant area of law is out of scope, there will be no point in ringing up the mandatory gateway, because the client will be told—no doubt very politely—that this is not in scope and that they will have to go elsewhere if they want legal advice. When we talk about the mandatory gateway, it is for the areas of law that remain in scope, such as parts of housing law, very small parts of debt, community care and parts of education. We are talking about a limited field. It is no answer to the areas of law that it is intended to take out of scope.
I start by saying that my experience as a Minister was that the telephone advice centre is a fantastic channel for delivering advice. I am sure that the noble Lord and his colleague the Legal Aid Minister have, as I have, visited telephone advice centres and been impressed. I certainly was in my turn. It can be convenient for those with busy lives, allowing them to access services at their convenience, and it can be—although it is not always—a cheaper way to deliver advice than face to face through a bricks-and-mortar centre. We also have the community legal advice helpline, which is excellent. All of us, I am sure, would be glad to see the work of that organisation continue and expand.
However, there is a “but” here, and it is a big “but”. We on this side of the House do not think that the right way of dealing with the issue of getting advice lies in the Government’s plans to institute a mandatory telephone gateway. We will ask the Government exactly what they intend, but this would seem to mean that anyone seeking to use a service funded through the legal aid and advice scheme would have first to call a hotline that would then direct them to the right service.
Our concerns are these. It is proposed to introduce the mandatory single telephone gateway first for matters of debt, although comparatively few debt matters are left if the Bill goes through in its present form; for special educational needs—that part of education law that the Government have had second thoughts about and that is still now in scope; for discrimination—the only part of employment law that remains; and for community care cases, which, again, the Government quite rightly had second thoughts about. The Government have stated their intention to roll it out to other areas of law as soon as practicable.
It is hard to find much mention of the mandatory gateway in the Bill. You have to look pretty hard, but in Clause 26 the Committee will see that there is mention of various ways in which advice can be given. It is otherwise something that we know about because the Government have spoken a lot about it, but it is not something that appears directly in the Bill. Clause 26(2) is actually the subsection that I am thinking of.
If the Government have stated their intention to roll out this mandatory gateway as I have said, they have failed in our view to answer, particularly in another place, some fairly fundamental questions that need answering before Parliament should sanction such a departure from the present abundance of channels. Perhaps the Minister can illuminate us as to how the Government’s thinking has evolved on this issue, which I am sure they have spent a long time thinking about.
When an individual with learning difficulties, for example, communication and speech problems or mental health problems tries to find help, will they be able to, first, find this new gateway service, secondly, properly access and understand the service and, thirdly, gain full utility from it? Will an individual who may be severely upset or traumatised—a victim of domestic violence, perhaps, or someone who is in extreme debt and feels rather ashamed about it—be willing to speak to a distant person without the comfort of direct, human interaction? Is it really the Government's case that they will all be happy to do that?
How will someone who is utterly impecunious be able to make a lengthy telephone call, in which the caller refers to documents and must wait for interpreters and answer detailed questions, in anything close to an acceptable manner from, say, public telephone boxes, which still exist? For those with English as a foreign language, there may be a particular problem. There might be an interpreter, too; three-way conversations are hardly practicable. It will be difficult to consider documents over the phone. What if the caller is perhaps semiliterate or, in fact, illiterate? They will obviously need personalised help—the kind of help that they get at the moment. What if there is a mass of documents, only one or two of which are particularly relevant? Visually, someone obviously sifts through these papers, as they are using knowledge in a particular form that is relevant, but it could become a nightmare on the telephone.
We think that those fears, which I am sure the Government have thought about, might prove an insurmountable hurdle to a number of those who, quite justifiably and within their rights, need legal advice or help. There are those with communication problems or mental health issues, those with learning difficulties or literacy issues, and those who just cannot express themselves in a particularly articulate way. Those who would be unwilling to use a phone need the immediacy of face-to-face contact and we fear that they may drop out. If the mandatory gateway is the only way through, will they actually get the advice that may solve the problem or get them their rights?
There is an economic argument, too, because if telephone conversations become muddy and too long, with both parties struggling to make themselves understood while sifting through masses of paper and language difficulties, cost-efficiencies look much less likely. We think that there are ways of mitigating these issues, but at the moment there has been no proper debate about this issue. In a way, I am sorry that this debate is taking place in Committee at this time today, but it is still an opportunity for the Government to express their views and for other noble Lords to say whether or not they agree. On how this part of the Bill will actually work, we have little to guide us. We have Clause 26(2), but that gives us little insight into how it will work. I look forward to the debate on this issue in the time available to us.
I end, I hope not too pretentiously, with this comment: when the great writer EM Forster talked about only connecting—“Only connect” was his model for living—he was talking not about connecting two telephone wires but about human interaction. The Government should not discount human interaction when they or lawyers are in the business of giving advice on some of the matters that we have been discussing in this Committee. I beg to move.
Baroness Grey-Thompson
My Lords, I support Amendment 4, which has been comprehensively moved by the noble Lord, Lord Bach. I have a number of concerns about the gateway and how people may access it, specifically disabled people in the wider sense. While it makes a lot of sense to limit the access to the gateway to four areas initially, I feel that this could cause some difficulty for a number of people who may be confused about signposting. We are talking about areas of rights and obligations that are complex and specialised and require a great deal of knowledge of the system.
That leads me straight on to staff training. The Justice Minister in Committee in another place said that,
“legal qualifications will not be a contractual requirement”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 6/9/11; col. 294.]
I seek further assurance that, if this is pursued, appropriate training will be carried out.
While I am supportive in principle of simplifying any system—for disabled people especially, the idea of cutting down on travelling, which can be difficult, is very positive—I immediately start thinking of the number of people who might just find this method too difficult to use. Does the Minister have any thoughts on the number or possibly the percentage of people who may struggle to use the proposed system? Whether they be people with a hearing difficulty who might not have access to the right equipment if they are only recently impaired, people whose impairment may make this type of communication difficult, people with language difficulties or people with learning disabilities, the group could be wide and varied. It is not easy to categorise those people who might find some difficulty with this. Also, that presumes that the individual knows and understands how their individual impairment affects them. What about those who do not, or those who need extra help making the initial phone call?
I have also been thinking about those people who might find it difficult to take down an accurate record of what has been discussed, perhaps even to follow the line of questioning. I would like some more detail about how records are going to be kept and what information will be sent to the individual. If they do not agree with the record of the conversation, how will this be monitored? What is the follow-up?
I would like to understand how the system will be evaluated. Obviously, you need a trial system in operation to iron out as many bugs as possible, even if this is the trial system for wider expansion. I know from my work on the Welfare Reform Bill that the assessment process is critical not just to asking the right questions—that is hard enough—but to getting the correct and useful information from the individual and then being able to tie all that data together to get to an appropriate outcome. I receive a reasonable amount of correspondence about face-to-face assessments, where the visual recognition of response and the nuances of conversation are easier to pick up. That is why I am so concerned about the initial assessment being through a phone call.
The Minister mentioned the use of technology. I am a huge fan of technology, and for lots of disabled people it can be used in an incredibly positive way. I do not think that any of us would be surprised at how many young people are using technology now or at the stories in the media about toddlers who think that every TV screen is a touch screen and can flick through the channels—they are almost born knowing how to use this technology. The reality, though, is that older people and disabled people still struggle with different forms of technology. For me it is not just about the access to technology; that is just the first part. The second part is actually understanding how to signpost people to get to that information, and that is difficult for a large number of people.
Baroness Prashar
My Lords, I rise to support this amendment. I thank the noble Lord, Lord Bach, for introducing it in such a comprehensive way. I also thank the noble Baroness, Lady Grey-Thompson, for spelling out some of the broader implications of this matter. I will be brief as I want to underline just a couple of points. One is that I fear that the single mandatory telephone gateway will potentially reduce access for some of the most vulnerable members of the community. I think that the Government’s intention to deliver legal services through a single telephone gateway and to further provide some casework by telephone fails to recognise the difficulties this will present to many of those attempting to access the system, particularly those with complex or distressing legal problems, as has been spelt out by the noble Lord, Lord Bach.
As we have heard, telephone services are, of course, of value to many and their expansion is welcome. However, in my view they do not provide a universal solution to those seeking initial legal advice. When a problem arises, many seek legal advice from providers that they have used before and know and trust. A strong relationship between adviser and client is central to clients providing vital information about their circumstances. Remote mediums of seeking advice are not conducive to building trust with an adviser.
Research by the Legal Action Group has revealed that people in social classes D and E are the most likely to experience a social welfare legal problem, are most reliant on local advice centres for help and are least likely to use telephone advice. It is also the case that those who make initial contact by phone like to follow it up with face-to-face advice. As we heard from the noble Lord, Lord Bach, those with language difficulties and urgent matters to address prefer personal contact, and there may well be issues with literacy. There are real dangers that driving all advice provision to a telephone gateway will result in a substantial number of those who currently seek face-to-face advice dropping out and not receiving any legal aid at all. Their problems will be left to become more complex and expensive for the state to resolve further down the line. This in the long run will defeat the purpose of the legislation.
My second concern is the Bill’s implications for the sustainability of local legal services which are normally embedded in the community. One can see what will happen to those. With their local knowledge, these organisations not only promote good practice but campaign to improve services. We need more strategic provision for legal advice services drawing on the best practice of local solutions. Throughout this afternoon we have heard that access to justice is a constitutional principle. Initial legal advice provided in an appropriate way is a first step to accessing justice and can avert long-drawn-out legal wrangles. In my view it is therefore imperative that legal aid advice is provided in a range of forms and is accessible to those who really need it.
Lord Shipley
My Lords, I rise to speak to Amendments 114 and 116 and to all the principles that lie behind the amendments in this group. We are discussing a mandatory telephone gateway and whether it can on its own deliver equal and effective access to legal aid. Currently, signposting comes from a variety of sources such as library information desks, council customer services, GP surgeries, councillors’ and MPs’ surgeries, voluntary and public organisations, charities and so on. They all currently direct people to CAB, law centres and voluntary organisations such as Shelter. That system works. In the main, the signposting is of high quality and gets people who need help to the right advice from the most appropriate place.
There is a great danger in a call-centre approach. I hope that that is not what the Government intend, but a call-centre approach is dependent upon speed and low costs as its main drivers. The telephone can be very good, but in this case it would be very good only if: first, individuals can communicate via the telephone—for example, there could be significant levels of documentation to quote from, and there is therefore a strong probability of complexity in an inquiry; secondly, if individuals have the confidence to clearly prepare what they need to say and then say it; and thirdly and crucially, if the quality of the staff is sufficient to answer the initial inquiry in terms of their legal knowledge and ability to prompt the facts to come out in conversation. In conclusion, a telephone gateway should have, as a minimum, law graduates or experienced advice workers taking the initial calls, not unqualified generalists who may fail to pass on a call that should be passed on, or who may fail to diagnose a case because they think it is out of scope, when actually something that is related to it is within scope.
The telephone can never be the only means of accessing legal aid—nor should be electronic variations such as the internet and so on. Sometimes a face-to-face initial interview can be a more effective and cheaper option than the telephone or the web. We should bear it in mind that large numbers of households in the UK do not have access to broadband or the internet and are reliant upon public services such as public libraries and schools for access. Around a quarter of households simply do not have any access to that means of communication. Normally, but not necessarily, very many members of those households will be poor and unable to afford the relevant equipment. Expecting them to communicate across the web could be a significant problem.
Most contact for assessing an initial inquiry is currently face-to-face. I have not followed why, if someone accesses, say, a CAB, law centre or public library, the initial face-to-face inquiry that has already taken place cannot then be referred for another face-to-face discussion. Why should there be the additional cost of an extra loop in the system by generating a computer record that can then be accessed by a range of other people?
I have concluded that we must have a range of providers that can address the needs of all those likely to require help, some of whom may not speak English well. I noted recently research from the USA that shows that one-fifth of people who receive telephone advice do not act upon it because they have not fully understood what the advice actually means.
There is a further issue around cost. Is it cheaper? Figures have been quoted of savings of between £50 million and £70 million. In my view, the cost could prove to be much less than that because the current calculations compare the cost of face-to-face interviews with the cost of a telephone call via a community advice line, but they are not directly comparable because those who use the latter are a self-selecting group who are content and confident with using a telephone.
We need to look at a whole range of issues more deeply. I hope that my noble friend will be willing to undertake further work on the advisability of a single mandatory channel; that further work will be done on the relative costs involved; and that the proposal’s impact on equality and access to justice will be looked at very closely. There are real dangers that some of those most in need of help will fail to secure it through a mandatory telephone gateway.
Lord Howarth of Newport
My Lords, my noble friend Lord Bach and the noble Baroness, Lady Grey-Thompson, have identified, imaginatively and sensitively, extensive groups of people for whom a mandatory telephone gateway would be entirely inappropriate. I hope that the Minister will reflect carefully on the apprehensions expressed this evening. The noble Baroness, Lady Prashar, and the noble Lord, Lord Shipley, both suggested that it would be a false economy to skimp on the cost of the initial advice and assistance. We could end up, perversely, having to spend a lot more because people did not receive the advice and assistance that they needed, it was not comprehensible to them, it failed to match what was appropriate for them or because they lacked the encouragement to explain themselves fully, so their cases were not taken further through the appropriate channels and their personal predicament deteriorated. We must take all those worries seriously.
The noble Baroness, Lady Grey-Thompson, touched on the question of training, and the noble Lord, Lord Shipley, talked about the need for the people who are to provide the service to be of high calibre. Those things are important. It would be helpful if the Minister would say more about what the Government envisage by way of training programmes and the level and standard of personnel who will be recruited to provide the service. We are in a familiar dilemma as we examine the legislation. It is perfunctorily articulated in extremely important aspects. We were asked to take the Government on trust. We are willing to take the Government on trust to the extent that they will explain themselves to us and we know what we are being asked to trust. I hope that the Minister will be able to be helpful to the Committee on those points.
I have two quick questions to put to the Minister. Will this be a freephone service? Secondly, does he envisage that there will be a network of telephones that people will be able to use when they make these calls? It could be a very sensitive matter for people explaining themselves to someone at the other side of the telephone gateway about issues concerning family breakdown, debt and so forth. It is not just that they are painful topics but that it could be positively hazardous for people not to be able to make those telephone calls in circumstances of privacy where they can be confident that they will not be overheard or interrupted. We need to know a lot more detail about how the Minister anticipates that the system will be made to work in practice.
Lord Carlile of Berriew
My Lords, I raise just one or two points about the notion of a compulsory telephone gateway. The first relates to legal professional privilege. Can my noble friend confirm that all communication in the telephone gateways are and will continue to be covered by legal professional privilege, so that we can avoid the risk of cases eventually arriving in court and initial conversations with telephone gateways being used for the purposes of cross-examination when the person accessing the telephone gateway may well have been lacking in confidence and have stated their case in an inaccurate way?
The second matter I wanted to raise is about the group of people—and there are many of them—who contact what I will call informed lay services. That would include people going to citizens advice bureaux, well informed councillors, Members of the Welsh Assembly in their constituency surgeries and, of course, Members of Parliament in their constituency surgeries. It would not make much sense if people who had gone through those routes were then required thereafter to access a mandatory telephone gateway. Otherwise, we will run into the ludicrous situation where people sit in those establishments with their MPs and a call is made to the telephone gateway during the constituency surgery. That would of course be an absurdity. Perhaps the Minister would explain to the Committee what is proposed in such circumstances, the ones that I have described being but examples.
Lord Phillips of Sudbury
My Lords, I want to make one point and one point only but I hope to do so forcibly. If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted. It is a small but significant group, and it would be an irony if the most needy people in our society were the very ones who were, in effect, cut off from access to legal help when they most needed it.
I say this from a considerable amount of personal experience working for the Samaritans and for one of the London law centres, and from my life as a young solicitor in a general practice and, indeed, as the director of the first national legal telephone helpline. I emphasise to the Minister that the problem really is not at all obvious. It is a commonplace that the younger generation today is phenomenally computer literate and so on, but there is still a small group of people who are totally lacking in self-confidence and in an ability to analyse their own problems, and they are fearful of being made fools of on a telephone. I could go on describing this group. I quite accept that for the majority of people what is currently proposed is fine but, as my noble friend Lord Shipley and others have said, we must, whatever else we do, have a second route into legal help which does not cut off that most needy group.
Lord McNally
I thank noble Lords for their comments. A number of points have been raised. The helpline is an 0845 number. However, callers can text or call to request a call back at minimum cost, and the call back will be entirely free. There is also an online form which can be sent to the helpline at no cost. The helpline is a confidential service and the legal advice given will be protected by legal professional privilege.
I hear what my noble friend Lord Phillips says, although it is ironic that one of the experiences that he quotes is that of the Samaritans, whose service is based on the telephone. I hear that there will be this needy section of society but I suggest that the range of services mentioned by my noble friend Lord Shipley will capture these people. There are also health visitors and local councillors. If there are such people in our society and if they are disabled in this way in the broader sense of that word, they will get advice. I really think that it is taking the argument too far to say that there must be a system that can identify the individual who is so afraid of the modern world that he will not engage. No system on earth can cover that.
I am not being flippant about what we are addressing now but, when we were involved with broadcasting issues, noble Lords would make a great fuss about some mythical pensioner, who lived in the West Riding, had a nine-inch Bush television and would ask whether she would be able to get the television stations when we switched to 625 lines from 405. We can always take things to the extreme, but the people who were mentioned by my noble friend Lord Phillips and others are those who will be given other sources of advice to enable them to go through the gateway.
I will deal with the issues raised by the noble Baroness, Lady Grey-Thompson. She asked how records will be kept. Recordings and case records will be retained for six years after the contract with the provider has expired. If a caller calls on more than one occasion, the operator will hold on to the information held. She asked whether an advocate can ring on behalf of a client. All clients will be assessed on a case-by-case basis and a caller identified as being unable to give instructions, or to act on advice given, will be referred to a face-to-face advice service and there will be provision for a third party to call a gateway on a client’s behalf.
We have taken on board the issues of people with learning difficulties or mental health issues. Where a client who lacks capacity contacts the specialist telephone advice service, or the adviser believes that they may lack capacity, the advice provider will need to follow relevant professional standards. However, the specialist advice service will be able to discuss the details of the case with an authorised third party.
The noble Lord, Lord Shipley, raised the question of whether the operating service may not correctly diagnose a problem. Only where the operator service is fully satisfied that it has correctly diagnosed that a case is out of scope will they make a decision. If there is any doubt, they will refer the matter to a legally trained specialist. The noble Lord, Lord Bach, asked how people will know how to ring the helpline. We will be developing a communication strategy between now and 2013 when it will come online. That was also a question asked by the noble Baroness, Lady Grey-Thompson. That information about the line will be appropriate and specifically targeted to routes that individuals currently use to find out information.
Both the noble Lord, Lord Howarth, and the noble Baroness, Lady Grey-Thompson, asked whether helpline operators will be legally qualified. The answer is no, because they do not offer callers legal advice. They are fully trained to identify key words from a client’s description of a problem to ensure an accurate diagnosis. That means that the client can then be passed on to the appropriate legally trained adviser who is able to give advice on the relevant point of law.
The noble Lord, Lord Shipley, and the noble Baroness, Lady Grey-Thompson, asked about qualifications. Gateway operators are fully trained. Telephone advice specialists are required to have the same level of qualification as their face-to-face equivalents.
I am well aware from the debate that noble Lords have concerns about the mandatory single gateway and the Government are seeking to give assurances about those concerns. Amendment 4 relates to Clause 1 and would affect the introduction of the mandatory single gateway as set out in the Government’s consultation response on legal aid reform. It is essential that the Government should seek to provide legal aid services in a cost-effective manner that meets the needs of their clients. However, this amendment seeks to fetter the Government’s flexibility to do so by placing the specific duty on the Lord Chancellor under Clause 1 that for those people eligible for legal aid, those legal aid services must be available in a range of forms and that this must include face-to-face advice. This would preclude the possibility of providing, subject to exceptions, legal aid services in certain areas of law only through specialist telephone advice services. This amendment would also conflict with the provisions in Clause 26(1) and (2), which provide that the Lord Chancellor’s duty at Clause 1 does not, where an individual qualifies for legal aid, include a duty to secure that services are made available by the means selected by the individual. The Lord Chancellor may discharge that duty by arranging for services to be provided by telephone or by other electronic means.
The Government explained in their consultation response their intention to implement a mandatory single gateway, based on the community legal advice helpline, initially in a restricted number of areas of law. Clients in these areas would generally be required to apply for legal aid over the telephone or other electronic means, and would then, if they qualify for legal aid, be offered legal aid advice only over the telephone or other electronic means. The areas of law concerned are debt, in so far it remains in scope; community care; discrimination—in other words, claims relating to a contravention of the Equality Act 2010—and special educational needs. There would be an exception to using the mandatory single gateway to the four areas of law covered by the gateway. These would be emergency cases; instances where the client had previously been assessed by the mandatory single gateway as requiring advice face-to-face within the last 12 months and is seeking further help to resolve link problems from the same face-to-face provider; and clients who are in detention, including prison, a detention centre or a secure hospital, and children, defined as those under the age of 18.
In the legal aid consultation response, we also explained that where clients access the community legal advice helplines through the mandatory single gateway in those four areas of law, we expect that those who qualify for legal aid would normally be transferred to the community legal advice specialist telephone adviser. However, both gateway call operators and specialist advisers will assess the specific needs of all callers on a case-by-case basis. This assessment will be based on the personal circumstances of the client and the nature of the issue about which they are seeking legal assistance. Generally speaking, the key consideration is whether the individual client or someone on their behalf will be able to give instructions and act on the advice given. But where it becomes clear that legal representation will be necessary, clients will be given the option to see a face-to-face provider.
Where it is determined that face-to-face advice will be more appropriate for the caller, they will, where possible, be given a choice of face-to-face advice provider either from a list of suitable advice providers or a specific suitable provider known to the client. The Government do not believe that there will be any significant delay to an individual receiving the help they need or any increased bureaucracy caused by the introduction of a gateway. In some cases—for example, where a client does not know which provider will be able to help—we believe that telephone advice is likely to be quicker even where a referral is to a face-to-face provider. The Government believe that the diagnostic and routing service offered by the gateway will be of value to many.
Amendments 114 and 116 would require that where legal aid services are provided by telephone or other electronic means, those services should be provided solely by a not-for-profit sector. I recognise and value the important role that not-for-profit organisations play in delivering advice at the local level. I also recognise the concerns of many noble Lords about not-for-profit organisations and the future provision of advice services. However, seeking to create a type of monopoly for not-for-profit organisations is not the way to address this.
As noble Lords will be aware, it would not be possible for the Government to commit to awarding contracts for telephone services solely to a specific sector, as any services commissioned by public bodies are subject to EU procurement rules. However, not-for-profit and charitable organisations can and already do bid for contracts to provide specialist telephone advice under the existing community legal advice helpline. At present, six of the 15 contracts for specialist telephone advice through the helpline are held by not-for-profit or charitable organisations. Future contracts will continue to provide opportunities for such organisations to bid to deliver specialist telephone advice services through the helpline and the telephone gateway. Of course, such organisations are also able to bid for the telephone operator contract for the helpline. The amendments would also mean that the criminal legal aid telephone advice service, CDS Direct, could be provided only by the not-for-profit sector. Not-for-profit organisations do not currently provide telephone criminal legal aid advice and I am not aware that they wish, or are currently equipped, to do so.
Related to general concerns about the future provision of face-to-face advice services is the decision to limit the initial scope of the telephone gateway to four areas of law, which will have a more limited impact when compared with the original proposal set out in the consultation paper. The Government are confident that implementing the telephone gateway in limited areas of law will enable better monitoring of the impact on clients and providers in order to inform future decisions about any further expansion of the gateway.
On future civil legal aid advice provision more generally, the Government are committed to ensuring that people continue to have access to good-quality, free advice in their communities. This is why the Government have launched the advice services fund and a review of free advice services. They have set aside £20 million—I say to the noble Lord, Lord Beecham, that it is the same £20 million; I am not announcing yet another £20 million—to support the not-for-profit sector in the short term. The fund will provide immediate support to not-for-profit advice service providers in England to deliver essential debt, welfare benefit, employment and housing advice services. The details of the fund were announced on 21 November by my honourable friend Nick Hurd MP, the Minister for Civil Society.
Lord Bach
I will certainly withdraw my amendment, and I thank the Minister for his very full reply. Speaking for myself, I have to say that I remain entirely dissatisfied by his speech about this very important part of the Bill. I will be as quick as I possibly can be because of the time.
I thank the noble Baronesses, Lady Grey-Thompson and Lady Prashar, for signing the amendment in the name of my noble friend Lord Beecham and myself and for their excellent speeches, and I thank all other noble Lords who spoke—all of them against the proposal for the mandatory gateway.
A number of important issues came out, which I think the Government really should pay careful attention to. The remark made by the noble Baroness, Lady Grey-Thompson, that legal issues will remain unrecognised is a crucial point. The comment made by the noble Baroness, Lady Prashar, about reducing access to some of the most vulnerable is also crucial.
As far as the freephone service is concerned, I do not know whether the Minister is able to give an answer to the question asked by my noble friend Lord Howarth. We understand that the current cost of the community legal advice helpline is 4p per minute, but I do not know what the intention is for the future. Perhaps the Minister can tell us now or write about that when he has had the chance to ask.
Lord McNally
I will write to the noble Lord to clarify that. If there is a problem of cost, a person will be able to make a short call or send an e-mail asking for a call back. I will have to seek advice on whether the 0845 number is a free number.
Lord Bach
I am not concerned about that tonight, but the position is not clear yet and we need to be clear. The real problem is the mandatory nature of this provision, which is what worries us. It is not the fact that there will be telephone advice. Such advice is excellent. When the Minister gently chides some of his noble friends for taking the argument too far, surely the Government are taking it too far by insisting on a mandatory gateway. Flexibility is everything in something like that.
The Minister almost gave the game away when he said that someone who was unable to make a telephone call would somehow get advice from someone. No, they will not necessarily. Perhaps they will but they may not. Nor will they get legal advice, which they probably need, from anyone. The Government cannot be as vague about it as they currently appear to be.
What worries us is that the present system does not work badly. I wish to refer to two points made in the debate. The noble Baroness, Lady Prashar, said that these not-for-profit organisations and solicitors are embedded in the community. They are part of our way of life. The noble Lord, Lord Shipley, has a great deal of experience and knowledge in this field. He talked about the right advice from the right place. That is the British way of doing this and it is a system that works pretty well. There is flexibility and various ways in which a person can get advice. It is not that a person has a choice between all sorts of ways of getting advice—the best way for them will be obvious. But to restrict it to a mandatory gateway sounds almost too dirigiste for this country. We should be much more flexible, which is much more in our political tradition. What makes it even better is that it works. The great danger is that in their attempt to change everything, the Government will change this for much the worse. Of course, tonight I will withdraw the amendment but the noble Lord knows that we will certainly return to this issue.