Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013

Wednesday 27th March 2013 Lords Chamber

Motion to Approve

12:50

Moved by

[Lord McNally]

That the draft regulations laid before the House on 4 February be approved.

Relevant document: 20th Report from the Joint Committee on Statutory Instruments.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, in moving that these regulations be approved, I shall respond, first, to the Motion in the name of the noble Baroness, Lady Grey-Thompson.

I am confident that the legal aid scheme under LASPO meets the access needs of disabled people. However, I understand that the introduction of the mandatory gateway continues to raise concerns in this area, and therefore I shall address them.

The Government believe that it is unnecessary for regulations to include specific reference to provision for access for disabled people in relation to the mandatory gateway. We have made a public commitment that reasonable adjustments and adaptations to ensure access to legal aid services—legal help—for vulnerable people, including disabled people, will be in place for the gateway.

The gateway is based on the existing community legal advice helpline, which already successfully uses a number of reasonable adjustments and adaptations for all clients. The gateway service will continue to operate these, and the requirement for reasonable adjustments is also specifically included in the contracts of those who will provide the service. Reasonable adjustments will include a third party being able to speak on a person’s behalf, British Sign Language via webcam, and call-back services to minimise call costs for callers.

My officials have met a number of equality organisations to discuss appropriate reasonable adjustments and further enhancements. They have also put in place a system to monitor the take-up of reasonable adjustments and adaptations, and to monitor the disability profile of gateway clients. Regarding the definition of “exempted person”, as debated and agreed during the passage of LASPO, there are three exemptions to using the gateway for accessing legal help, set out in regulation 20 of the procedure regulations. In summary, these are: a child under 18 years of age; a person who has been deprived of their liberty; or a person assessed by the gateway in the previous 12 months as qualifying for gateway work to be provided by face-to-face advice and who is seeking further advice on a linked matter. It should also be remembered that the gateway provides legal help only, not legal representation. So I do not consider that the definition is drawn too narrowly.

I am aware that others feel that a further exemption for vulnerable people would provide additional protection. I do not believe that that is necessary. The term “vulnerable people” covers a wide range of individuals with particular needs or issues. While some of those to whom the term might be applied may not be able to use the telephone or the other methods permitted to give instructions and receive advice, others will. The Government’s view is that the best way to test suitability for telephone or online advice is through an assessment of each individual’s needs and abilities, not through a blanket exemption for the extremely broad group defined as vulnerable people. The Government are confident that the gateway call operators and specialist telephone advice providers will be sufficiently experienced and trained to support vulnerable people. We plan to review the implementation and operation of the gateway in the initial three areas of law, to ensure that the exemptions, adjustments and support available properly protect those with disabilities and vulnerable people more broadly. We will publish a report of the review within two years of implementation. I hope that that meets the concerns of the noble Baroness, Lady Grey-Thompson.

I turn now to the Motion tabled by the noble and learned Baroness, Lady Scotland. At the outset I must refute the suggestion in the Motion, and in some of the comments made, that as a result of our reforms domestic violence victims will be at greater risk of injury or death. This has been suggested at various points during this debate and the passage of the Bill, and it is entirely untrue. Let me be clear: legal aid will continue to be available to help victims to obtain the full range of court protection against domestic violence in exactly the same way as now. There is no evidential requirement for legal aid for these remedies. Those who need legal aid to protect themselves will be able to get it.

The issue, therefore, that is legitimately up for discussion is whether we have made the right provisions for victims of domestic violence. In particular, it is whether we have set the right evidential criteria for someone to show that they are a victim of domestic violence so that they can qualify for legal aid for their private family law issue. I am clear that we have. We have moved a great distance in this area since the LASPO Bill first came into Parliament. We listened to the concerns of this House in particular, and the regulations before us today reflect the position that was agreed in both Houses before the Act gained Royal Assent, and in certain respects, it goes even further.

Of the forms of evidence listed in the regulations, a finding of fact is particularly important. A finding of fact made in proceedings in the UK that the applicant has been the victim of domestic violence, no matter how long ago it occurred, that gave rise to a risk of harm to the applicant, is acceptable as long as the finding was made within the 24 months before the application for legal aid was made. Our position on the evidence requirement was agreed by Parliament as reasonable during the passage of the Act and I remain of the view that it is both sensible and comprehensive. There has been a specific concern that GPs and others may charge for producing the evidence and that people may not be able to afford such charges. It is perhaps worth highlighting the fact that legal aid was never designed to deal with the costs of actually acquiring legal aid, whether this be the cost of a telephone call or evidence. I do not think it unreasonable to continue that policy here. Many of the forms of evidence, such as protective injunctions, will not attract a charge at all. We expect any charges that are applied to be modest. I cannot pretend that we have absolute control over charges—we do not. However, we have included in the regulations provisions for other health professionals to provide evidence to help mitigate against possible charges by GPs.

We have produced guidance and a template letter following discussion with the relevant professional bodies to make acquiring the evidence as simple and straightforward as possible for both applicants and those providing the evidence. We will continue to liaise with relevant bodies about the impact of our reforms to ensure that, where necessary, changes are made.

I also highlight the fact that we have now also changed the definition of domestic violence in the Act to reflect the amended across-Government definition that will come into force at the end of the month. This followed the clearly expressed view in Parliament that the definition should reflect that adopted across Government to ensure clarity of meaning. I am sure that the House welcomes this change. I would also like to reassure noble Lords that the Government will be closely monitoring the way in which the system is working from day one of the implementation and the way in which the evidence requirements are working. If concerns are raised we will take steps to address them.

I hope that that meets the concerns of the noble and learned Baroness, Lady Scotland, and others, as they have expressed unease with the Government’s approach. We are continuing to listen on these matters. I beg to move.

Motion agreed.