Legal Aid, Sentencing and Punishment of Offenders Bill
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I welcome this debate and in particular thank my noble friend Lord Clement-Jones for introducing an important amendment that would seek to make a change to paragraph 2 of Part 1 of Schedule 1 to the Bill. This is the paragraph that brings special educational needs within the scope of the new scheme.
The Government, in response to our consultation on this package of reforms, recognised the compelling arguments that stakeholders made concerning special educational needs cases. As a result, we altered our position on special educational needs, which has been recognised in the contributions to the debate. The Bill included provision for these cases when it was published.
Our intention is to cover all matters that can legitimately be classed as special educational needs issues. It has been brought to our attention by stakeholders, particularly the Special Educational Consortium, that the current wording in paragraph 2 does not cover all SEN matters—in particular, learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. My noble friend and others made a very compelling case on that point. Although I have no reason to doubt the drafting skills of my noble friends, I hope that they will understand if I do not accept their amendment at this time. The focus on Section 140 of the 2000 Act would include Wales only. That might be because of the hand of my noble friend Lord Thomas of Gresford—that is no criticism—but I can assure the Committee that my officials are working closely with the Department for Education to ensure that the issue that noble Lords have raised is addressed and that the contents of paragraph 2 encompass all SEN matters. I assure noble Lords that the Government in principle accept the point and that we will table a technical amendment on Report to ensure that SEN matters are fully within the Bill’s scope.
The noble Lord, Lord Stevenson of Balmacara, spoke to Amendment 82ZA, which, as he indicated, would bring into scope all education matters not already covered by Schedule 1. As he said, we have retained legal aid for any education case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination, and current legal aid funding for appeals on special educational needs matters, as we have just discussed. We have also retained legal aid for education judicial reviews.
In practice, the amendment would retain legal aid for all education matters, including advice on admissions and exclusion decisions and for educational negligence damage claims, and would mean lost savings of approximately £1 million. The judgment that we have had to make has been to prioritise funding on the most important education cases, which are special educational needs, discrimination and judicial review. We believe that those are of the highest priority, and that advice on, for example, admissions, exclusions and damages claims are not. Of course, those are not unimportant, but where parents are not satisfied with an admissions refusal they can appeal to an independent panel. That requires them to set out in writing why they disagree with the admissions decision, and why they think that the admissions arrangements have not been followed correctly. Those are not usually legal arguments, and the local authority choice adviser can assist parents and attend the appeal hearing with them.
Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors, setting out their reasons for challenging the exclusion. Again, if they are unhappy with the decision permanently to exclude their child, they can appeal—currently to an independent appeal panel, but from September this year to an independent review panel. The Department for Education will fund the Children’s Legal Centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line.
Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination, and legal aid is being retained for advice and assistance in such cases. Advice is also available on admission and exclusion matters, although I recognise that the organisations involved, such as the Advisory Centre for Education and the Children’s Legal Centre, face the same difficulties as others in the current financial climate.
The other tier or category is education negligence claims, which have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid only on money claims that concern a significant breach of human rights or abuse of position or power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings and will be removed from scope. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement.
I have heard my noble friend Lord McNally say from this Dispatch Box on a number of occasions that very difficult tough choices have had to be made on these issues and that there has had to be prioritisation. We believe that we have focused resources on education cases of the highest priority. I hope that the House will recognise that, and I urge my noble friend to withdraw his amendment.
Lord Clement-Jones
My Lords, I propose simply to respond on Amendment 36, so if those on the opposition Front Bench wish to respond on Amendment 82ZA, I shall briefly pause. I see that they do not.
First, I should have declared an interest as the president of Ambitious about Autism, the education and special needs charity for autistic children. I know that both it and the Special Educational Consortium will be delighted by the Minister's response. I thank the noble Lord, Lord Howarth, and the noble Baroness, Lady Browning, for their contributions. The noble Lord, Lord Howarth, used a very felicitous phrase, “something of a cliff edge”, about the 16-to-25 period. Of course, the experience of the noble Baroness, Lady Browning, in this area is enormous, and I particularly welcome her contribution.
I very much welcome the Minister’s response and the fact that he has recognised the compelling arguments that have been made to him and to the Department for Education not only for the phase up to 16 but for the 16 to 25 year-old phase. I recognise that the amendment might not be fully technically correct but it might cover other sections—Section 139A is a possibility—that may need to be covered in the drafting.
I think that many noble Lords around the Committee are hoping that this is but the first swallow of summer as we progress through the Bill, but I am very content with the response today and beg leave to withdraw the amendment.
Baroness Scotland of Asthal
My Lords, that is right. We tend to think of familial violence as violence within a family group and people living together in partnership. Regrettably, the right reverend Prelate is right in saying that age does not prohibit violence—domestic violence is no respecter of persons, irrespective of age, ethnicity, economic background or any dividing issue one can think of. Regrettably, domestic violence affects everyone, and this definition, which has been used, continues to be efficacious and would include those issues.
I should also say that of course the Government themselves have been undertaking a review of domestic violence strategy. In part of that strategy, the definition is being considered and, from what I understand of the consultation, they are seeking to widen the net and not restrict it. That is why these provisions are so concerning and—I have to say—utterly surprising. If there was one area in which I did not believe that there would be any dissent at all among the parties or any of our Benches, it would have been this. So there is deep concern and surprise but also bitter disappointment that we are having this debate.
Lord McNally
My Lords, the other evening I said that a smile always came to my face when the noble and learned Baroness reached the Dispatch Box. I think there is usually an exception, and that is when you are in the firing line from her formidable advocacy.
The noble and learned Baroness put her finger on it when she said that domestic violence has its impact on every index of dysfunction in our society. I think that we all accept and understand that. My noble friend Lord Macdonald made the point in acknowledging that the Government have from the very beginning, as the noble and learned Baroness said in quoting my honourable friend Jonathan Djanogly, intended to put domestic violence within scope.
This debate is about whether we have got the definition right. Obviously in discussing that, I have to take into account the comments of a former President of the Family Division, a former Director of Public Prosecutions, a former Attorney-General with considerable lateral experience as well in these matters, and even my noble friend Lord Carlile, who in this case is just an honest jobbing barrister. Obviously, if one gets that weight of evidence, we go back and look carefully at what has been said. I did not realise that this Government were so radical, as was suggested by the query of the noble Lord, Lord Clinton-Davis. Of course, I have talked to my noble friends and have tried in the course of the Bill to be available to Members on all sides of the House. However, as I said at an earlier stage, I am trying to use this Committee stage to listen and to take on board and match our aspirations for the Bill with the experience and wisdom that we receive in Committee to see whether there are areas in which we will make changes when we get to Report, or areas where we simply say to the House that we simply disagree. The spirit is one of listening.
I agree with the noble and learned Baroness that it should be a matter of cross-party co-operation to deal with this scourge of domestic violence. I visited Holloway Prison and was taken to see an ongoing programme of training and educational skills for girls. I went around talking to a number of them. The lady who showed me round suddenly said something that really chilled me. I said, “This seems to be working very well”. She said, “Yes, of course, but you know these girls are probably in the safest place that they have ever been in their lives”. So please do not think that our approach is either frivolous or without concern for the very real problems that domestic violence causes. Again, in a phrase that was used by my noble friend Lord Macdonald, it is certainly not our intention to roll back the decades of progress.
Lord Carlile of Berriew
Before my noble friend moves on from that point, can he go a little further in answering the issue raised by the noble and learned Baroness, Lady Butler-Sloss, about cross-examination? Yes, of course the judge has power to limit inappropriate cross-examination, but the judge cannot prevent the person concerned putting their case, and putting it fully and properly. That is the issue that the noble and learned Baroness is trying to deal with. It is in that situation that the allegedly abused person faces real anguish, and in which the protection of the judge is but a very small instrument.
Lord McNally
I will take this back but, again, I am speaking as a layman to professionals. As far as I understand it, there are increasingly ways in the courts of preventing that kind of face-to-face, aggressive cross-examination. I think that there was a case recently which caused a good deal of public comment and distress. I will take the matter away and take further advice but, as I say, both my impression as a layman and the advice that I have are that there are safeguards to prevent that kind of brutal, face-to-face, intimidating cross-examination. I hear what my noble friend says and I will take further advice on the matter.
I turn to Amendments 43, 44, 45, 46 and 48 and start by reiterating why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid as it stands is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary relief applications to divide family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend some extra £10 million a year on mediation, taking the total to £25 million a year.
We accept, however, that mediation might not be suitable in every case—particularly, as we made clear, in cases involving domestic violence. It is important to remember that the inclusion of this provision is to ensure that legal aid remains available for private family law cases where there is evidence of domestic violence, creating a disadvantage for one party, and cases where a child is at risk of abuse.
Amendments 44 and 45 would put in paragraph 10 of Schedule 1 to the Bill, in place of the existing definition of abuse, parts of the definition of domestic violence first used by the Association of Chief Police Officers but subsequently more widely adopted for operational purposes—although not, it should be noted, by the courts. The existing definition of abuse used in the Bill is a broad and comprehensive one, having been drafted deliberately and explicitly so as not to be limited to physical violence. It should be noted that it is used elsewhere in Schedule 1: in paragraph 3, which provides for legal aid to be available in relation to the abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse.
Baroness Butler-Sloss
I hope that the Minister will forgive me for interrupting him. Can he explain what is wrong with the ACPO definition and why it is preferred to have a different definition, twice to be found in the Bill but not to be found elsewhere? As far as I know, there has been no broad definition by the judges of domestic abuse, which has been referred to in all its various forms. I am absolutely certain that the courts accept the ACPO definition.
Lord McNally
I will write on this matter, but I think that here the noble and learned Baroness is wrong. As far as I understand it, the Supreme Court did not accept the ACPO definition of domestic violence. If the noble and learned Baroness will bear with me, I will come to that point in the brief—there is a part that deals with this.
Any consideration of the definition in one paragraph should not be undertaken entirely in isolation from the others, lest confusion should result. The definition should also be seen in the light of the Bill’s structure and the purpose of the paragraph where it appears.
I want to know—“like most normal people”, I was going to say—why on earth, if there is a perfectly good ACPO definition, we do not use it. The Supreme Court held that domestic violence could extend to psychological abuse but did not adopt the ACPO definition. However, the majority of the court indicated approval of the approach of what is now Practice Direction 12J, supporting the Family Procedure Rules 2010. For its purposes, it defines domestic violence as,
“physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm”.
Baroness Scotland of Asthal
Was that not a case in which the Supreme Court was being asked to determine whether a specific aspect of emotional abuse was to be included so that someone could get relief and, in so doing, referring to that aspect rather than any other? Could the noble Lord tell the Committee to which case he is referring?
Lord McNally
If I am misleading the Committee in any way in this exchange, I will of course write and correct it. The Supreme Court did not adopt the ACPO definition of domestic violence in the Yemshaw case. If the noble and learned Baroness questions me any more, she will go way above my pay grade in terms of the law.
Baroness Scotland of Asthal
One of my colleagues has just suggested that maybe the noble Lord is in need of a little legal aid.
Lord McNally
Every time I look up, the noble Lord, Lord Beecham, is speaking somewhere in the Chamber. The Opposition are overworking the man—give him the night off.
The definition should also be seen in the light of the Bill’s structure and purpose. Paragraph 10 reflects the underlying policy of ensuring that a party to private law family proceedings who has been subject to domestic violence by the other party to those proceedings and is likely, as a result of that abuse, to be intimidated or otherwise disadvantaged in presenting his or her case, should have access to legal aid. It does not provide that any individual who has been the subject of, or is at risk of being the subject of, abuse—as defined in that paragraph—will qualify regardless of what evidence of abuse might exist. Not every such individual will be intimidated or otherwise disadvantaged in the way that the paragraph is intended to address.
The paragraph establishes a description of legal services. Whether an individual qualifies for them in any specific case requires not only that the individual falls within the categories in paragraph 10 but that the individual meets the criteria to be established in regulations made under Clause 10. As has been explained in the Government’s response to consultation and in debates on the Bill, those criteria will set out the specific requirements as to the evidence of the fact or risk of abuse. Therefore, the definition of abuse itself is only a preliminary part of the picture. However, it is important that we get it right. I suspect that the Committee will say “hear, hear” to that.
The definition of abuse presently in the Bill embraces mental as well as physical abuse, neglect, maltreatment and exploitation. These references would cover, for example, abusive behaviour relating to family finances—a point that was raised earlier. The definition in the Bill would not exclude from scope any of the types of abuse covered by the definition used by the Association of Chief Police Officers, so this part of the amendment is unnecessary. This could lead to the understandable question of why we do not simply adopt the ACPO definition, given its general recognition. However, the ACPO definition is not set in legislation anywhere and is therefore not permanent, as demonstrated by the recent consultation announced by the Home Office. It could change but legislation would not change with it, at least not without subsequent primary legislation.
Baroness Scotland of Asthal
I hesitate to interrupt the noble Lord but can he help me on a point about legal aid being withdrawn from private law cases? He will know that one of the main ways of there being a finding of fact is through those private law situations. If there is an impecunious litigant, can he help me as to how that litigant—normally a woman—is going to get those findings of fact if she does not have legal aid to do so? That is one issue.
Secondly, has the noble Lord seen or read the recent survey by Women’s Aid, Rights of Women and Welsh Women’s Aid that found that the majority of respondents did not report abuse the first time it occurred but typically did so after being assaulted between three and five times? Although 99 per cent had reported at least one incident to the police and/or the police had attended an incident, only 8.3 per cent would be able to prove that they had had an ongoing criminal proceeding in the previous 12 months. There seem to be a lot of practical difficulties and I wonder whether the noble Lord can help the Committee in relation to those matters.
Lord McNally
The Welsh Women’s Aid report has been published very recently and we will look carefully at it. I should point out that the organisation surveyed women who are in receipt of domestic violence services rather than women who are seeking legal aid for private family matters. It is a distinction but it means that the survey may not fully square with the issues that we are looking it. We know that this latter group will often, for example, seek a domestic violence injunction at the same time as they take their private family law action, and thereby will qualify for legal aid. None the less, we will look closely at this matter and I will perhaps write to the noble and learned Baroness on her other point.
Baroness Scotland of Asthal
My Lords, I do not by any means want to harry the noble Lord but, given what he said about the need for flexibility and certainty, will he consider putting all the evidential issues into the schedule and providing us with an amendment we can look at? Perhaps we could have something such as an affirmative resolution in relation to these issues, which would give us flexibility—if that is what the Government think would be necessary—and clarity as to what evidence would acceptable. I am making a suggestion to the noble Lord that I will not necessarily be bound by, but I just want him to think about it.
Lord McNally
I will very happily think about it and I naturally assume that the noble and learned Baroness is trying to help me. I am very grateful for that. This reply and this whole debate will need to be looked at to see whether we are achieving our real objectives of getting something that is fit for purpose—although I hate using that phrase—in terms of addressing a matter of genuine concern right across the House. There are no differences on this and I freely admit that I do not have the noble and learned Baroness’s detailed experience of these matters. I hope that she will accept that I share her commitment that we get this right.
It may be helpful to give some idea of the prevalence of those forms of evidence. About 24,100 domestic violence orders were made in 2010; about 74,000 domestic violence crimes were prosecuted in 2009-10; and there were 53,000 domestic violence convictions. About 43,000 victims of domestic violence were referred to multi-risk assessment conferences in the 12 months up to June 2010. Clearly, those numbers will overlap to a certain extent but, to compare, the Legal Services Commission funded legal representation in about 69,000 private family law cases in 2009-10, not including legal aid for protective injunctions. The forms of evidence we intend to accept will meet a very high standard of objectivity. We are concerned that many of the additional forms of evidence suggested in the amendments would rely on the word of those involved and provide an incentive to make allegations where none presently exists. However, I also heard what both the noble Lord, Lord Macdonald, and the noble and learned Baroness said.
Let me be clear. We are not questioning the integrity of genuine victims. However, during the legal aid consultation, concerns were expressed about providing an incentive for unfounded allegations. Accepting self-reporting without objective evidence would prevent us from focusing assistance on those victims of domestic violence who would be unable effectively to present their case against the other party because of the history or risk of abuse by that party. Both amendments referred to evidence from professionals in a variety of roles. We have widened our criteria, so that legal aid will be available where the victim has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence, and a plan has been put in place to protect them from violence by the other party. Those referrals can be made by a range of professionals. Further, a finding of fact in the court that domestic violence has occurred will trigger legal aid and the court will be able to assess any relevant evidence.
Amendment 48 would prevent a time limit applying to any evidence. We have already said that a 12-month period, where relevant, will apply, but we consider that 12 months will be an appropriate period to protect victims and enable them to deal with their private law issue. The point made by the noble and learned Baroness about an intervening prison sentence would not interfere with that rule. If the criteria were to rise again—for instance, if a second protective injunction is made—the period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to a breach of an individual’s right under the European Convention on Human Rights, in particular Article 6.
This has been one of the most important debates on the Bill because, as all those who have contributed said, it is essential that we get this right. There have been some very well informed and committed speeches. I have put on record the Government's approach, which is to get it right on domestic violence and the legal aid that we provide to those who are subject to it. With that, I hope that the noble and learned Baroness and others will not press the amendments today but allow me to go away, study the debate and the proposals made, match the commitment that we all share to what is in the Bill and return to the matter on Report.
Baroness Butler-Sloss
My Lords, I thank all those who, with a great deal of knowledge, have contributed to this important and anxious debate. It is obvious that the Government are entirely committed to doing their best to combat domestic violence, so the only issue between the various speakers in the debate has been the best way to achieve it in the legislation before the Committee.
I am very grateful to the Minister for his obvious concern, and I hope that he will go away and think about what those of us with some knowledge of these matters have said. If I may respectfully say so, it is equally important that the Lord Chancellor reads and takes account of what has been said.
Lord McNally
That can be taken as implied. I assure the noble and learned Baroness that when I tell him who has spoken and what they have said, he will listen. Taking up the point made by the noble Lord, Lord Clinton-Davis, it is not that we do not talk to each other; we are following the process of the Bill. I am grateful that the Committee is taking this approach, as we can look at the arguments that have been made and think very hard about the issue before Report. I assure the noble and learned Baroness that when I say that I shall be taking the matter away, I mean that I shall be taking it back to the Lord Chancellor.
Baroness Butler-Sloss
I thank the Minister. I found it absolutely irresistible to say that. Each of the points that we have been dealing with is important but two of them are particularly so. The first is the definition. I think that we might all do more work in looking at the definition—in particular, by accepting the Minister’s invitation to see whether the wording in Schedule 1, as he has explained it, really does meet the ACPO requirements. If it does not, we should ask why not, and to what degree it does not meet them.
The second point is the very important list in Amendment 46. With respect, I would adopt the suggestion of the noble and learned Baroness, Lady Scotland, that these formulae for triggering legal aid in domestic violence should be in the schedule. As I understand it, the Minister’s alternative suggestion is that they should be in the regulations. It would be enormously helpful, before Report, to have a rough draft of what the regulations are likely to provide so that we may know that what we are all worried about will be found in them. The Merits of Statutory Instruments Committee, of which I am a member, is all too well aware that a statutory instrument either comes in or goes out. There is absolutely no possibility of amending it unless the government department is prepared to take it back and rewrite it. It would be much better if we knew in advance what was going to be in the regulations, rather than having to attack a statutory instrument at a later stage, which is always an unhappy situation. However, as I said, I am personally very comforted by what the Minister has said.
I want to make one point about Amendment 42. I suggest that the advice that the Minister receives is theoretical rather than practical and on the ground. I wonder whether any of those who have given him advice about what goes in court appreciates that a defendant always has the right to put his case. That is the point that I made in my preliminary observations and it was a point also made by the noble Lord, Lord Carlile. The judge cannot stop that, but it can be a real extension of the domestic violence. I pursued that matter because one has to bear it in mind. Judges can ameliorate the position but they cannot prevent the defendant having the right to put his case. If he does not have that right before the judge, he can appeal to the Court of Appeal and ultimately to Strasbourg under the articles of the convention. Therefore, human rights apply to the defendant as well as to the victim. That is the problem and it is why legal support for the defendant would be a protection for the victim. Having said that, I beg leave to withdraw the amendment.
Baroness Scotland of Asthal
I support the noble and learned Baroness in this matter. She is absolutely right that these cases are rare, but unfortunately they tend to be the most painful. The opportunity for the judge who is managing such a case to be able, if he or she thinks it appropriate, to invite legal representation for that part of the case, and there being legal aid available for the judge to so invite, may be extremely important. It is very unlikely that this avenue would be used very often, but I respectfully suggest that it would be important, in support of what the noble and learned Baroness, Lady Butler-Sloss, says, for that opportunity to be available for the better protection of the child, whose best interests would in those circumstances of course be paramount.
Lord McNally
My Lords, I do not want to get into a situation where I take things away and give the impression that the case has been made. However, again, I must listen to a former president of the Family Division and a former Attorney-General when they say that there is a problem. The noble and learned Baroness, Lady Butler-Sloss, said that my advisers cannot have much experience of what happens in court. I can only say that our position is based on the assumption that judges are able to manage their cases in such a way as to prevent the kind of confrontation that we are concerned with here.
I will go away and take further advice on this. It has been examined in the other place. I do not want to leave a situation where very rare cases are not covered. On the other hand, we do not want automatically to extend funding to alleged perpetrators because that is not our line of travel as we try to focus aid on the most vulnerable and needy. It would be a mistake to assume that the only means of protecting a prospective witness, however vulnerable or young, is to fund representation for the prospective questioner. However, the two noble and learned Baronesses speak from considerable experience. I will test that experience with my advisers. If the noble and learned Baroness will withdraw her amendment, I will either reassure her before Report or we will come back to this then.
Baroness Butler-Sloss
I am very grateful for the support and experience of the noble and learned Baroness, Lady Scotland. As a distinguished former family practitioner she knows exactly what I have been talking about. There are only two former family judges in the Chamber at the moment: the noble Lord, Lord Elystan-Morgan, and me. He has just indicated that he agrees with me, in particular that a judge could not protect a child where the father or mother had the right of cross-examination in order to put his or her case. That is the problem. It is rare. Therefore, dealing with it would be very inexpensive. It might happen once or twice a year at most, and the judge would be required to certify the case. Judges will be well aware that legal aid is not to be easily given. They will be well aware that to certify a case would be very unusual. However, the situation exists and children require protection. I am grateful to the Minister for saying that he will at least take away the matter and think about it. No doubt he, and all of us, should have great respect for his advisers, but they do not understand the rights of defendants quite as well as those of victims. For the moment, I beg leave to withdraw the amendment.
Lord Beecham
I am very grateful to the noble Lord for his intervention. On behalf of all those who have benefited from his wisdom and experience as chair of a mental health trust, perhaps I may express the gratitude that they would wish no doubt to convey to him on this aspect of his very long and very distinguished public service.
Lord McNally
I echo that tribute to my noble friend Lord Newton. I passed him in the corridor the other day and said that he was in grave danger of becoming a national treasure but not necessarily one on whom the Government can rely.
Lord McNally
My Lords, on the treatment issues raised by the noble Lord, Lord Beecham, and others, I am advised that the Bill covers them. The matters covered by the Mental Health Act 1983 and the Mental Capacity Act 2005 are covered in paragraph 5 of Part 1 of Schedule 1, which includes treatment issues. Amendment 53 seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. The amendment is unnecessary.
As I have explained, paragraph 5 of Part 1 of Schedule 1 already provides for legal aid to be available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning medical treatment of patients or those who lack capacity. Furthermore, paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the Mental Health Tribunal. Paragraph 4 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual—for example, medical treatment, including psychological treatment, life, liberty, physical safety, capacity to marry or enter into civil partnerships, capacity to enter into sexual relations, or the right to family life.
Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on mental health or capacity issues concerning medical treatment. Furthermore, public law challenges to the lawfulness of public authority actions could be brought by way of judicial review, which is in scope under paragraph 17 of Part 1 of Schedule 1. We believe therefore that this amendment is unnecessary and I hope that my noble friend will agree to withdraw it.
I am advised that in the particular case to which he referred the issue was the eligibility of the family for legal aid, because of their means. We have continued to emphasise that legal aid is means-tested in these circumstances and that our intention is to focus it on those who are most needy. I hope that, with those references and that explanation, my noble friend will agree to withdraw his amendment.
Lord Wallace of Tankerness
My Lords, we have come to an important part of Schedule 1, relating generally to immigration, asylum, removal directions and judicial review, although the amendment moved by my noble friend Lord Carlile of Berriew was of much more general application to judicial review, which is an important part of our legal system, as he very clearly and eloquently set out. Amendment 54 seeks to disapply certain exclusions set out in Part 2 of the Bill for judicial review claims. It would appear to be aimed at ensuring that funding for judicial review is available for judicial reviews concerning, for example, breaches of statutory duty.
Our position is that we believe the amendment largely to be unnecessary, because the exclusions at paragraphs 1, 2, 3, 4, 5 and 8 of Part 2 of Schedule 1 are not intended to prevent funding for judicial review. Rather, the exclusions are intended to prevent the funding of, for example, tortious causes of action, typically for damages. While I hope that that would reassure, perhaps I can follow it by making it clear that our intention is to retain legal aid for most judicial review claims, including those relating to personal injury or death and breach of a statutory duty. I assure the Committee, and indeed my noble friend, that because we have obviously had representations on this point, we are actively and seriously considering whether in the light of this amendment and the points which my noble friend has made in moving it, we need to bring forward amendments of our own to clarify the position and to give proper effect to the intention.
Lord Carlile of Berriew
I am most grateful to my noble and learned friend. He has been extremely helpful. Can he clarify one point? Sometimes when judicial review claims are brought there is included in the claim a claim for damages, which can be awarded under judicial review. I take it from what he said that if a claim for damages is part of a judicial review, that part of the claim would also have legal aid available to it. It is one legal aid order.
Lord Wallace of Tankerness
This is quite important. As my noble friend will recognise, the overall structure of what is proposed to be in scope does not provide for legal aid for damages. However, I recognise what he says about damages being part of an overall judicial review claim. It is important that we look at this and ensure that what appears in the Bill delivers the intention. I am sure that we will return to this matter on Report.
My noble friend Lord Thomas of Gresford spoke to Amendments 55 to 59, which concern the exclusions from legal aid which we have made for some immigration judicial reviews. Before I turn to the specific amendments, it might be helpful if I briefly remind the Committee of the Government’s reasoning on this matter. My noble friend raised the question of the lack of consultation—as did the noble Lord, Lord Bach, who I am delighted to engage with again at the Dispatch Box. I think that the last time we did so was in the debate on the fixed-term Parliaments legislation. It has been six months but seems like a year.
My noble friend and the noble Lord raised the question of a lack of consultation. However, in response to our consultation on legal aid the Judges’ Council of England and Wales highlighted the large number of immigration judicial reviews that were without merit. That point was raised in the consultation and my noble friend has accepted in speaking to his amendments that there are a number of unmeritorious cases taking up time. This change was made against that background. Although only a minority of those cases would currently receive legal aid, the Government’s view is nevertheless that it is wrong in principle for such cases to remain within the scope of funding. We are therefore seeking to remove two classes of immigration judicial review from the scope of legal aid, again subject to certain exceptions which I will come on to discuss.
The noble Lord, Lord Bach, asked whether I would double-check the figures on taking these parts of judicial review out of scope. Of course we will double-check them, and if there is further information we will make it available not only to the noble Lord but to all those participating in our proceedings.
The first category of case that we seek to exclude is one where there has already been at least one appeal before the tribunal or another judicial review within the past year on the same or a substantially similar issue. The second category concerns judicial reviews of removal directions rather than the underlying immigration decision. Such proceedings are often brought at the last minute—sometimes literally as people are being put on to a plane. We recognise that there will be some genuine, if unusual, cases within these categories that could still warrant legal aid. That is why we have made exceptions to our proposed exclusions—if the Committee will bear with the double negatives, which seem to be quite frequent in this part of the Bill. These are intended to take into account the potential for changes in an individual’s circumstances over time. In both categories, the exclusion is subject to a one-year time limit. We have also made exceptions for judicial reviews of decisions by the Home Office to certify under Section 94 or Section 96 of the Nationality, Immigration and Asylum Act 2002. These provisions curtail asylum appeal rights in certain circumstances and so maintaining legal aid for a potential judicial review is, we believe, an important safeguard.
We are therefore keeping judicial reviews of a decision by the Home Office to refuse to treat further submissions as a fresh claim for asylum. Again, this maintains the availability of legal aid for judicial review asylum cases where there may not have been an appeal to the tribunal. It has been suggested that most types of immigration cases will not be able to get legal aid, but most types of immigration judicial review will still be in scope. The provisions in the Bill remove only two relatively limited types of judicial review, and even these provisions are subject to the exceptions that I have outlined.
On the specific amendments spoken to by my noble friend Lord Thomas, Amendment 55 seeks to keep all immigration judicial reviews within the scope of legal aid. From what I have said, noble Lords will see why the Government do not agree with that amendment.
Amendments 56 and 57 relate to the operation of the exclusion of judicial reviews on removal directions. The Government seek to exclude judicial reviews of removal directions from the scope of legal aid because there will already have been a chance to appeal the underlying decision. More specifically, Amendment 56 would in effect retain legal aid for these judicial reviews in circumstances where there had been no appeal of the original underlying decision, or at least no appeal before the removal had been effected.
It is true that some decisions to remove can be challenged only by appeal from overseas, as Parliament decided. While judicial review can still be used as a means of challenging this, it does not follow that legal aid should be available in all these cases. As I explained earlier, in asylum cases where there is no right of appeal or where, as in Section 94 cases, any right of appeal arises only outside the UK, legal aid will remain available for judicial review. However, we believe that choosing not to exercise this appeal right should not bring someone within the scope of legal aid.
Amendment 57 raises a technical point, as my noble friend recognised. It is based on the belief that the provision around the “leave to appeal” in paragraph 17(6)(b) is unnecessary because there is no provision to appeal to the First-tier Tribunal in these cases. However, there is a leave-to-appeal stage to the Upper Tribunal, so we think that the current drafting is sound, albeit that this is a very fine technical point.
The intention of Amendment 58, as I understand it and as was stated by my noble friend, is to avoid a potential definitional problem to do with the meaning of asylum across the 1951 refugee convention, the EU procedures directive and the qualification directive. Again, it is recognised that this is technical but of course important, and it is about the definition of protection cases—that is, non-refugee convention cases.
The Government understand the concerns but on balance we think that they are misplaced. Our view is that the reference in paragraph 17(7)(a) of Schedule 1 to an asylum application within the meaning of the EU procedures directive is sufficient to cover all applications for international protection. I am happy to put it on the record that that is our intention. However, the amendment goes further than the Government intend; it seems to provide legal aid in all judicial reviews connected with asylum matters, not just those where there has been no previous opportunity to appeal. I believe that it would be wrong to retain legal aid for judicial review cases that are very likely to be without merit, regardless of whether they are asylum cases. Nevertheless, I express my appreciation to my noble friend for raising this issue and regarding the specific points that he made, we will certainly look at whether anything further is required here.
Amendment 59 seeks to add two further exceptions to the exclusions. The first is to make an exception for cases that have not previously benefited from legal aid. I understand the logic: without legal assistance, someone may not have put the right arguments forward first time around, so when it comes to potential judicial review, should they not have legal aid to ensure that they get it right? Our response is that if legal assistance means that they can put new arguments forward—sufficiently new that the court or tribunal is considering a different issue—they would still be eligible for legal aid for the judicial review. This is because exclusion applies only where the judicial review is in respect of the same or substantially similar issue. However, if they are still raising the same or substantially similar issue, even with the potential benefit of a lawyer, we do not believe that they should be eligible for legal aid.
The second exception, as sought by Amendment 59, relates to cases where the appellants have been successful in their previous appeal for judicial review. We think that there is an issue here and we will certainly look at that.
I hope that we have given a satisfactory explanation. This is a technical matter but I do not for a moment deny that these are serious issues. In asking my noble friend Lord Carlile to withdraw the amendment in the light of the assurances that I have given, let me give him a further assurance. He asked whether judicial review funding would cover the damages remedy sought through the judicial review, and the answer is yes. If we can find the right words, we will give proper effect to our intention.
Lord Thomas of Gresford
Before my noble friend Lord Carlile replies regarding his amendment, I thank the Minister for his reply to my amendments, which raised difficult technical points. I hope that he will forgive me if I read what he has said with some care, as no doubt he will read the whole debate with some care. I look forward to seeing what technical amendments he may feel are necessary to deal with the points that I raised. I am also grateful to him for the assurances that he has given, certainly in relation to part of the amendments.
Lord Beecham
That certainly must be a risk, and the need for the assistance of the Court of Protection is therefore enhanced. I am grateful to my noble friend for allowing that point to be emphasised. It is therefore essential that legal aid is available so that the court can be approached and the Official Solicitor can represent the person in question. Otherwise, he would be unable to do so because there would be no provision for costs.
I hope that despite the odd location of our amendment the Minister might look at it with some sympathy, and that if he cannot come to a conclusion on it, given that it was tabled very late, he will at least agree that he will take this matter back to look at before we reach Report.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Ramsbotham, for introducing this group of amendments. Arguably, there is nothing more fundamental for a parliament to discuss than the relationship between the state and the citizen. His amendments have given rise to an important debate, with contributions from my noble friend Lord Phillips, the noble Earl, Lord Sandwich, and the noble Lords, Lord Judd and Lord Howarth. I hope that I can reassure Members of the Committee in my response.
Amendment 60 seeks to make civil legal aid available for claims in relation to any alleged unlawful act by a public authority that causes reasonably foreseeable harm. In general terms, Schedule 1 makes legal aid available for the most serious cases and for proceedings that seek to hold public bodies to account for their decisions. This includes civil legal services for judicial review of an act, decision or omission, and provides a means for people to challenge the lawfulness of a public authority’s actions on public grounds.
In terms of private law claims primarily for damages, while we consider that such claims do not generally justify funding, an important exception to the rule provided for in the Bill is for the most serious claims against public authorities. The Bill ensures that funding may be made available for tort and other damages claims against public authorities for an abuse of position or powers, a significant breach of human rights, allegations of the abuse of a child or vulnerable adult, or allegations of a sexual offence. The definition—about which I shall say more—of:
“Abuse of position or power by public authority”,
is intended to cover the most serious misuses of state power. That is why it is defined in the Bill as an alleged act that is deliberate or dishonest, and that causes reasonably foreseeable harm to a person or property. Our definition would exclude from scope a range of less serious cases against public authorities—a point made by my noble friend Lord Phillips—including simple negligence claims such as “slipping” or “tripping”. He asked if “deliberate” abuse of position or power is the same as “intentional”. The answer is yes. As to the point raised by the noble Lord, Lord Beecham, who asked whether “deliberate” referred to a deliberate act or deliberate consequences, the word refers to the act or omission that is complained of and for which legal aid is sought. Legal aid would therefore be available for deliberate or dishonest acts or omissions by a public authority that cause reasonably foreseeable harm.
Amendment 60 would widen the scope of paragraph 19 of Part 1 of Schedule 1 to make legal aid available for claims in tort or other damages claims for any alleged unlawful act by a public authority that causes harm. Noble Lords will be interested to know that unlawful acts are already covered by paragraph 19, which covers situations where an act is deliberate and dishonest, and results in foreseeable harm. However, the concern is that the amendment as tabled would widen the coverage beyond what we believe should be within scope.
Alternatively, public law challenges to the lawfulness of a public authority’s action can be brought by judicial review, which is in scope under the Bill. We have focused limited resources on those who need them most and the most serious cases, in which legal advice or representation is justified. I accept that that approach means that public funding will not be available for each and every claim involving a public authority, but it is intended to be available for the most serious cases and to address serious abuses.
Lord Avebury
Although paragraph 26(1)(a) allows claimants to be granted legal aid in respect of asylum, it does not extend to the families of refugees who seek to rejoin the principal member of the family in the United Kingdom. Anxiety concerning that omission has been expressed by the UNHCR. Can my noble and learned friend say anything on that?
Lord Wallace of Tankerness
It is an important point, which has been raised before in the context of the Bill. I think that Amendments 69 and 71 in the name of my noble friend Lord Thomas of Gresford—to which we will come, dare I say, sooner rather than later—raise the point about families of asylum seekers. I hope that when we come to that, we will have a proper debate on the important issue that my noble friend raises.
Lord Howarth of Newport
The Minister is defending the Bill’s drafting against the proposal of the noble Lord, Lord Ramsbotham, in Amendment 60. Is he therefore saying that if someone is the victim of a mistake by a public authority—not a deliberate mistake or one dishonestly intended but none the less an egregious error arising from ignorance of the law, which ought to be known by the people working in the public authority—there is to be no legally aided redress for the citizen, even if the harm is considerable?
Lord Wallace of Tankerness
As I said to my noble friend Lord Phillips, the Bill does not include negligent actions of a public authority. I made very clear that it is intended for the serious-end range of abuse of power and the harm that results. It is not intended to include all that lies by way of negligence.
Lord Phillips of Sudbury
I am sorry to interrupt the Minister’s flow, but this is a valuable opportunity to get to the bottom of this. From what he is saying, a reckless act on behalf of the state would be neither deliberate nor dishonest. If it was reckless, there would be no redress. Can that be right?
Lord Wallace of Tankerness
My noble friend well knows that where recklessness goes into intent is not always very clear. I very much hear the point that he is making; I want to reflect on it. There is a continuum, but I have made it clear that it certainly does not include negligence. That is why we are concerned about “unlawful”, because that opens the provision beyond what is intended and could lead to cases of damages for what are not by any stretch of the imagination serious consequences or serious harm for the individual.
Lord Neill of Bladen
On Paragraph 19(6), the Minister said that the word deliberate would not cover negligence. What is a deliberate act intended to cover? Most people, when they do things, do them deliberately. Is that what it means, or anything beyond that?
Lord Wallace of Tankerness
As I said earlier, when my noble friend asked whether deliberate meant intentional, that is what it means: it is an intentional act of a public authority. The question is: if it is a mistake that leads to considerable harm but is not deliberate or dishonest, will legal aid not be available? I hope that I have indicated that no, under paragraph 19 it would not be available but, as I said, paragraph 20, which covers a significant breach of human rights, might nevertheless allow for funding in those circumstances, or cases might be taken forward by way of judicial review, which might be available for funding.
There is a range of provision in Schedule 1 for cases to be taken forward against public authorities, not solely on the particular part of the schedule to which the amendment of the noble Lord, Lord Ramsbotham, is directed.
Lord Mayhew of Twysden
We quite understand the point that the noble and learned Lord is making: that the intention of Ministers is to restrict legal aid to serious cases and that that is the measure. Would he reflect on the position of someone whose liberty has been wrongfully denied and whether it would be any consolation to know that that resulted not from a deliberate act but from some oversight—a mistake, to use the words already employed, of an egregious kind? It does not seem to me that it makes much difference, if you are unlawfully detained, whether it was just by mistake.
Lord Wallace of Tankerness
I recognise what my noble and learned friend is saying. I said at the outset that we intend to focus on those areas where there is serious abuse by the state and where serious harm has resulted. It is an effort to target limited resources—I think that there is recognition that resources are limited—where there is the greatest abuse of power or position by the state. In those circumstances, we believe, as I have tried to explain, that abuse does not cover negligence. The noble and learned Lord, Lord Neill, asked what it covers. The paragraph covers the most serious abuses, which may not include mistakes but could include abuses such as misfeasance in public office. I think that that would fall within the definition here.
Lord Bach
Why should it be only the most serious abuses that allow the victim to get legal aid? There are all kinds of abuses. We know that there are some petty abuses and perhaps I would agree with the Minister that not every petty abuse should allow the victim to get legal aid. There are very serious abuses, which the noble and learned Lord says his Bill intends to cover, but what about medium-sized abuses? I am talking about abuses that are pretty severe for the victim. Should the state be stopped from dealing with those? Why should the victim not be able to get legal aid in order to get a remedy in such a case? Why are the Government saying that the abuse has to be really serious?
Lord Wallace of Tankerness
My Lords, as I have sought to explain, we are trying to recognise in the Bill that there are limited resources and to ensure that those limited resources are best and most fairly targeted. I think that in asking the question the noble Lord, Lord Bach, accepted that not all abuse should lead to a claim. That is what we are seeking to do: we are trying to strike a balance between where it would and would not be appropriate for legal aid to be made available. That is why, along that continuum, it is at the serious end where we have sought—
Lord Clinton-Davis
Did the Minister really say that in no circumstances would legal aid be available where the infringement immediately appeared to be minor? Does he not recognise that lawyers often come across cases that appear to be minor but later become rather more serious? What remedy is available in such an instance? Is the Minister really arguing that, once it is decreed that a situation is minimal, there is no possible remedy?
Lord Wallace of Tankerness
It is not that there is no possible remedy; it is a question of whether legal aid would be available—whether it is within scope. I do not shy away from the fact that these are difficult judgments to make, but the resources are not unlimited. The noble Lord, Lord Clinton-Davis, refers to a minimal infringement. If the resources are limited, it is very difficult to see why a minimal infringement, which may be one of error, should attract the same level of resources as a case where there has clearly been a misuse or abuse of power on the part of a public authority.
Lord Clinton-Davis
I am talking about the solicitor who originally investigates a case being not very competent. He concludes that the case is minimal but he might be wrong. Why should legal aid not be available later?
Lord Wallace of Tankerness
I am not sure that I fully understand the point that the noble Lord is making. Obviously, if at a later stage a case clearly qualifies for legal aid under the definition here, one would expect legal aid to be available. Furthermore, in many of the cases that we are talking about where legal aid might not be available, conditional fee agreements might provide a viable alternative where there is clearly merit in the case but it would not qualify under the definition here.
Lord Beecham
I am sorry to intervene and I am grateful to the Minister for giving way. Are the Government approaching this matter as though it is to deal only with claims for damages? Of course, other forms of relief might be sought—injunctive relief, declarations and so on—that might bring a spotlight to bear on the alleged abuse that has occurred. That might be the most powerful way of dealing with the error in the first place. Is that not something for which legal aid should be available?
Lord Wallace of Tankerness
My Lords, I have tried to identify the other parts of Schedule 1 where other remedies are indicated to be within scope. If I can find the place in my notes, I shall be able to make them very clear. I think I made it clear that judicial review, referred to in paragraph 17 of Part 1 of Schedule 1, is within scope of legal aid. I entirely agree with the noble Lord, Lord Beecham, that there may be many cases where that is the most appropriate route to go down and it would be within scope. However, I have indicated that, where damages are concerned, the criteria that I have tried to set out are the ones that would apply at the serious end of abuse. I gave specific examples of things that are within scope within the schedule, judicial review being possibly the most obvious.
Lord Howarth of Newport
Will the noble and learned Lord consider very carefully whether he is really content that through the Bill the Government are in effect carving out a significant area of immunity for their agents where they might have acted incompetently or irresponsibly—not deliberately or dishonestly but incompetently and irresponsibly—and, in so doing, have caused considerable damage to individuals? In stipulating that legal aid should not be available to enable individuals to secure redress and damages in such a situation, surely the Government are acting to protect themselves in a way that is simply wrong when one considers what the proper relationship between the state and the individual should be.
Lord Wallace of Tankerness
My Lords, at the risk of repetition, I have already said that numerous routes within scope, other than a damages claim, might be open to an individual and might be even more appropriate in addressing the situation where a public authority or the state acts in a way that the individual citizen wishes to challenge. Indeed, as I have indicated, other means, such as conditional fee agreements, might also be appropriate in some cases that are not at the serious end.
Lord Wallace of Tankerness
Part 1 of Schedule 1 indicates a number of remedies that are available and within scope. We have sought to make available a range of remedies, particularly with regard to the protection of the liberty of the subject. A deliberate policy choice was made to try to ensure that legal aid would be available to safeguard the liberty of the subject. No doubt the noble Lord, Lord Judd, is being patient.
Lord Judd
I am very grateful to the Minister for giving way. He is being given quite a cross-examination at this stage in our considerations. Before Report, when he is considering what has been said in this debate, I plead with him to remember that this is not just a private matter between the individual concerned and the authorities. In this very sensitive area of public policy there are bound to be much wider ramifications. Ultimately, this is about the credibility of the Home Office and its policies and how they operate. If there appears to be a reluctance to put right generously what has been done indefensibly, that will hardly help to achieve public confidence in the general policies as they are applied. I hope that the Minister will take away that general point, because it is crucial to our deliberations.
Lord Wallace of Tankerness
I recognise the important point that the noble Lord, Lord Judd, makes. I assure him that, in trying to allocate limited resources, we have sought to ensure that a proper balance is struck. As I indicated, it is of course a balance, and we will weigh in what has been said in this debate. However, I have sought to indicate that we are dealing here not just with claims for damages; we have deliberately included a whole range of remedies within scope in Schedule 1 because we recognise the importance of proper safeguards in the citizen’s relationship with the state. I hope that the noble Lord will recognise that a whole range of remedies will be eligible for legal aid.
The noble Lord, Lord Berkeley, has no doubt been waiting for a response to his Amendment 61ZA, which would include within the definition of “public authority” the Crown Estate and the Duchy of Cornwall. The position is that paragraph 19(7) uses a definition of “public authority” that is used in Section 6 of the Human Rights Act 1998. At Section 6(3) of that Act, the definition of a public authority includes,
“(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament”.
Section 6(5) of the Human Rights Act goes on to provide that,
“In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private”.
Therefore, the point is that this is not so much about the name of the body but about determining whether the function is of a public nature. It is the nature of the service or function that is determinative, rather than the legal status of a body that is performing the function. One noble Lord asked whether we could have a definition of that. Ultimately, it must be for the courts to determine whether a body is a public authority, given that definition for the purposes of the Human Rights Act.
The noble Lord, Lord Beecham, said that there may be another time and place to discuss the Crown Estate and the Duchy of Cornwall. I know that the Scottish Affairs Committee in the House of Commons is currently looking at the work of the Crown Estate. It is an issue that has attracted more attention, but as regards this amendment and this Bill the definition is used in the Human Rights Act and is a proper definition to import into this Bill.
I will briefly address a number of government amendments in this group. Amendments 79A and 79C address predecessor claims under the pre-Equality Act 2010 legislation to ensure that legal aid continues to be available to people who have live claims under predecessor equalities legislation, and not just in relation to a contravention of the Equality Act 2010.
At present, paragraph 38 of Part 1 of Schedule 1 limits legal aid cases to cases where the Equality Act 2010 has been contravened. The 2010 Act presents a new unified legal framework for addressing harassment, victimisation and discrimination based on any of eight protected characteristics. Where previous equality enactments have been repealed, we recognise that certain claims will continue to be capable of being brought under these enactments by virtue of the transitional arrangements introduced by the 2010 Act. For this reason, we seek to amend paragraph 38 to allow funding for predecessor claims that might still need the benefit of public funding. This amendment will also amend paragraph 38 to put beyond doubt our intention to retain funding for civil legal services relating to the breach of equality clauses and rules and non-discrimination rules.
Government Amendments 78C, 78D and 78E ensure that civil legal services are provided in circumstances where a sexual offence has actually been committed or is alleged to have been committed. They also ensure that civil legal services are provided in circumstances where a sexual offence has not actually been committed but there has been: an incitement to commit a sexual offence; an offence committed by a person under Part 2 of the Serious Crime Act 2007, in relation to which a sexual offence is the offence which the person intended or believed would be committed; conspiracy to commit a sexual offence; and an attempt to commit a sexual offence.
Additionally, the amendment to paragraph 34 of Part 1 of Schedule 1 will ensure that civil legal services are capable of being provided in relation to conduct that would be an offence mentioned in sub-paragraph (3)(a) or (b) of the existing definition of “sexual offence” but that is not considered an offence under the present definition because it took place before the relevant provision came into force. At present, paragraph 34 limits legal aid to cases where a sexual offence has been committed under the provision of the Sexual Offences Act 2003 and to cases where an offence has been committed under Section 1 of the Protection of Children Act 1978, which deals with indecent photographs of children. We recognise that it is possible that offences committed before the present legislation came into force might need the benefit of public funding, and for this reason we have amended paragraph 34 to allow for funding.
I am not sure why Amendment 90ZZA is in this group, but I hope the Committee will recognise that this is a serious attempt to ensure that where there have perhaps been gaps due to prior legislation, we seek to fill them. Amendment 90ZZA would bring into scope advocacy within the Court of Protection where a person’s mental or psychological safety is concerned. This echoes debates on Amendment 53. The current position is that advice is available for any mental capacity matter and that representation is available for the Court of Protection in limited circumstances where there is to be an oral hearing and the case will determine the vital interests of the individual.
Paragraph 4 of Part 3 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual—for example, medical treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, and the capacity to enter into sexual relations or the right to family life. The amendments go beyond what is currently provided through legal representation by the civil legal aid scheme. We have had to focus our limited resources on the most serious cases and on the interests of the individual that are vital. We do not seek to go beyond what is already the present position. I hope that the noble Lord will reflect on that and, when the time comes, not move his amendment.
It is some time since the noble Lord, Lord Ramsbotham, moved his original amendment, but I hope he is assured that the serious issues involving state public authorities and the citizen are addressed by this. With regard to the liberty of the individual, there are a number of specific provisions, quite apart from the more general provision that loss of liberty is seen as a harm to the individual. I hope, on the basis of these reassurances, that the noble Lord will withdraw his amendment.
Lord Ramsbotham
My Lords, I am very grateful to the noble and learned Lord for summing up in a very complicated summing-up situation. I am also extremely grateful for the many powerful interventions that were made both immediately after the amendment was moved and during the Minister's summing up. I think that their content has increased understanding and has pointed out many more aspects of the problem than I was able to point out in moving the amendment. Some very serious points have been raised and I think it behoves us all to read very carefully in Hansard what has been said in the House this evening. I think and I hope that it will be possible, having done that, to have a discussion with the Minister and with the officials concerned with this issue before we bring it back on Report. Issues involving people who are in the hands of the state should not be allowed to be dropped until we are absolutely certain that the legislation is clear and protects the most vulnerable who are up against the state. Meanwhile, I beg leave to withdraw the amendment.