Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Grey-Thompson Excerpts

Monday 23rd April 2012 Lords Chamber

Moved by

[Baroness Grey-Thompson]

At end insert “but do propose Amendment 24B as an amendment in lieu”

24B* Page 21, line 7, at end insert—

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(vi) that it is otherwise in the interests of justice.”

[Baroness Grey-Thompson]

My Lords, I thank the Minister and his team for meeting with me earlier today and also for the letter I received this morning which laid out, with much greater clarity, issues previously discussed. I believe the telephone gateway will be positive for many people, and perhaps would go so far as to say that, for some, it could be better. I welcome the details of the exclusions that have been given: where there is an emergency; where the client has previously been assessed by the mandatory gateway as requiring advice face to face; where the client has accessed face-to-face advice within the past 12 months and is seeking further help to resolve linked problems from the same face-to-face provider; where the client is in detention; and where the client is a child, defined as being under 18. Some of the reassurances that have been given are positive, but these are really around those with much less complex cases.

In previous debates I have spoken much about the cost to the system and to individuals. and I initially welcomed the call-back system that has been proposed. However, on reflection, I cannot imagine an individual with a complex need or a vulnerable adult requesting this call back on the promise of a return call—there is just too much at stake.

I still have some areas of concern. The first is the continuing use of the word “mandatory”. I know that this is an operational matter; not only does it sound inflexible, it is. There are still many unanswered questions around the number of staff who will be employed, both in the first line and specialist operators, and also the cost. It is to be welcomed that they will be trained in listening, but the areas of law they will need to understand will be extensive and complicated.

The Minister has provided more information on this, and while those who work in the call centre will not be under any time constraint to get through the call, there will be a significant amount of pressure on them not only to guide the client in the right way, but to ensure that the client has understood what they are being told. How will this be measured? Will it be on customer satisfaction, or will the number of cases that progress or do not progress be used in some way?

The Minister in his letter—and I believe this is telling—twice mentions the fact that the key test will be whether the individual is able to give instructions and act on the advice given over the telephone. I am extremely concerned that vulnerable people, with complex problems, will drop out of the system, even if they make it to the first phone call. Just finding the telephone gateway may be a challenge for some. The same can be said of the online form on the DirectGov website. They may not be able to do it themselves, nor find appropriate third-party support to offer help.

I know that the Government are committed to reviewing these operations, and to make adjustments if they are not working correctly, but we could be 24 or 36 months into a new system before the figures are gathered and we understand who has been able to access the right support. It is all well and good that a client who makes it through the first call may be directly transferred to a specialist adviser, I take this to mean within the initial phone call—but I am still unclear about the route through for someone who will be advised to go to a face-to-face meeting. The current system relies on the individual being given three local centres and then making the necessary arrangements, but surely the proposed system should be better than the current one. How will this take-up rate be monitored to ensure that clients have taken the steps they are entitled to, and what are the costs attached to them?

My last amendment was rejected under financial arrangements, because there is a cost to it, but what is the cost of setting up this mandatory telephone gateway and, if vulnerable people are not able to access legal aid, what are the potential costs that could be shifted to other areas such as local authorities or the NHS? I believe a little more flexibility is required to ensure that the most vulnerable are able to access the support they are entitled to. I beg to move.

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[Baroness Northover]

My noble friend assures me that we will review how this is working and publish the findings. I am sure that noble Lords will scrutinise that with the greatest of care. I reiterate that the operation of the system will be monitored from the very beginning. Therefore, noble Lords do not need simply to wait for the review at the end of two years to make sure that this is working in the way that we trust will assist people, as opposed to raising the concerns that noble Lords have expressed. I hope that the noble Baroness will be able to withdraw her amendment.

[Baroness Grey-Thompson]

I thank noble Lords who have taken part in this afternoon’s debate, in particular the noble Lord, Lord Phillips of Sudbury. Not for the first time, I wish that I had trained in the law rather than doing a politics degree. I accept that my wording could be slightly better but, as the noble Lord, Lord Wigley, said, it has been improved since the last time I moved the amendment.

It seems that we are stuck in two slightly inflexible viewpoints. I wholeheartedly agree with the noble Lord, Lord Low, when he says that there is a place for a gateway. However, I also believe that there is a place for something else to help the most vulnerable. One idiosyncrasy of this system is that an individual could go into a citizens advice bureau and ask for help but be told to ring a phone number and be sent away. In an ideal situation, that person would be able to stay in the citizens advice bureau and make the call from there, and could even have that third-party support. If they are sent away, they may take that to mean that they are not eligible or that they do not understand some of the issues.

I thank the noble Baroness, Lady Northover, for her comments. It is probably not the right time to debate this, but now that we have a system that can be accessed on the internet through www.directgov.com or by Skype and through phone calls—there is information coming back and forth—I wonder whether there are not almost too many options for people. Perhaps a gateway and the potential for a face-to-face interview might be the simplest way to do it.

I go back to the point made by the noble Lord, Lord Phillips of Sudbury. I am sure that everyone in your Lordships’ House knows one, two, or maybe more people who would struggle to make that first contact and might drop out of the system, finding it too much to cope with, and would therefore not be able to access the help that they need. So as much as there has been some positive movement today and some very positive comments, I am not reassured that the most vulnerable would be supported through this system. Very reluctantly, I wish to test the opinion of the House.

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Moved by

[Baroness Grey-Thompson]

At end insert “but do propose Amendment 171B as an amendment in lieu”.

171B* Page 115, line 5, at end insert—

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(i) an appeal to the Supreme Court.”

[Baroness Grey-Thompson]

My Lords, this amendment is in my name at this stage. However, it received support from the late Lord Newton of Braintree and the noble Baronesses, Lady Eaton and Lady Benjamin, throughout the passage of the Bill.

This amendment is narrower than the one that was previously carried by your Lordships’ House. I was extremely disappointed that, due to the financial arrangements in the other place, I had to remove the areas of consumer law and immigration, as the latter alone accounts for around a third of the cases affecting children. This Motion makes legal aid available for children in cases where a boy or girl is a victim of medical negligence or malpractice, in all cases of private family law, education, housing and social welfare and for criminal injury appeals only after they are financially means-tested and found to qualify. This Motion would give legal aid to about 3,000 extra children a year who are not explicitly covered by the Bill. It would cost the Government about £3.2 million a year and could be easily affordable. When you consider that the Legal Services Commission is sitting on £500 million-worth of confiscation orders that it has not yet collected against supercriminals, there are other ways to save money rather than targeting children.

At present, legal aid helps around 40,000 children every year who have civil justice legal problems in their own right. If the Bill is left as it stands, legal aid will not be available for thousands of children under the age of 18 who would qualify if the current rules remained in place. It is estimated that between 5,000 and 6,000 children could be affected. The Government have not explained the rationale of why some children are being treated differently from other children who have problems under the same categories of law.

On our 40th day of debate in your Lordships’ House I asked why 220 of last year’s cases on education would qualify but 110 children would not receive access to legal aid. I still have not had an answer to that question. We have been told that individual children may qualify under an exceptional cases fund, and more information has been provided, but I still fear that children will fall through the net.

It is probably slightly unfair of me to quote the Minister when he was questioned about exceptional cases on the previous Motion, but he said that it is hard to quantify the amounts. For me, the merits of the case are not enough without knowing some of those figures. It could mean that more is spent than we are saving by doing this.

Why do I feel so strongly about this? It is because children are children; they are not adults. Children do not have the capacity to represent themselves or to interpret the thousands of pages of laws and regulations that affect them. The question of children’s capacity to represent themselves is explicitly recognised and provided for in international law.

I remind your Lordships’ House that the Children’s Commissioner for England, Dr Maggie Atkinson, wrote to the Lord Chancellor to warn that denying children a voice in legal proceedings would be in breach of the European Convention. She wrote:

“Children, by virtue of their age and capacity will not be able to present their case effectively in the majority of proceedings … Children’s need for legal aid in civil cases where they are a party should not be viewed as ‘exceptional’”.

In virtually all these cases a child will be taking action against the state, and we do not yet know how the state will begin to act if it cannot be challenged. It is therefore wrong that the state has discretion on whether it will grant legal aid to a child who is challenging it. Such systems are not synonymous with accountable and democratic systems. I ask noble Lords once again to support this Motion. This issue is so important that we should ask the other place to reconsider the case of these children. I beg to move.

[Baroness Hamwee]

I shall say a word about one of the items that has been left out of this list: immigration. I am sorry that the noble Baroness has decided, for reasons that I understand, not to include it in the list. We know that immigration matters will not be within exceptional funding, so that route will not be available. Unaccompanied children arriving here may very well initially claim asylum, but a child who makes an asylum claim that fails and fails again on appeal will fall back on an immigration claim. For instance, a child who comes here at, say, the age of 12 and does not succeed on asylum but gets leave to remain will after three years, at the age of 15, be seeking immigration status in circumstances that will have changed dramatically.

I can see that there may be different considerations for a child who comes within a family but there must be cases where the child should be represented separately. We have a spent a lot of time on this and we know that immigration is complex; that social workers are not qualified to deal with it; and that legal advisers need to be specially licensed for it. I know that we are not in a position to change this but it is right to put on record some disappointment. But there is hope that as time goes on the Government will realise that this is something on which particular help is needed.

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[Baroness Northover]

The noble Baroness may be right about social workers providing legal advice but I am talking about the kind of support that a social worker can give to a child in that situation. Often it is not a matter of specific legal advice but of assisting that child and steering them through the necessary procedures. There has been a running theme through a lot of this discussion that it is not necessarily legal advice that is required; it may be another form of support, which is where, for example, the CAB may be able to assist. Noble Lords have a lot of experience of organisations such as these assisting people and we should not forget that. We are looking at how best to ensure that local authorities can assist children in their care in the kind of cases that my noble friend has flagged up.

The noble Earl, Lord Listowel, asked about care leavers. I am glad that he was reassured by what my noble friend could tell him. I reiterate that the exceptional funding scheme will ensure the protection of the individual’s right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. The scheme will of course encompass children leaving care, where they meet the relevant legal tests. In considering whether exceptional funding should be granted on this basis in an individual case engaging Article 6 of the ECHR, the director will consider the ability of the client to present their own case, the complexity of the issues, the importance of the issues at stake and all other relevant circumstances.

Local authorities also have a range of duties to care leavers which will not be affected by the provisions of the Bill. It is late at night but I also recognise the huge commitment in this area of the noble Earl. If he would like further discussions we are happy to do that. I hope that I have addressed the concerns of most noble Lords and would like to remind them that 96 per cent of the current funding remains in place and that the principles of need and vulnerability, which underpinned the reasons for covering the areas that we have, remain the most important ones.

I hope that the noble Baroness, Lady Grey-Thompson, will be reassured that children who are in need will be protected and that we will not see the concerns that she has flagged up come to fruition. On that basis, I hope the noble Baroness will withdraw her Motion.

[Baroness Grey-Thompson]

I thank the noble Baroness, Lady Northover, for her response and all other noble Lords who have contributed this evening.

In my opening speech I did not mention clinical negligence because the issue had been eloquently argued in the previous Motion by the noble Lord, Lord Cormack, and the noble Baroness, Lady Finlay.

The noble Earl, Lord Listowel, raised the important issue of children in care and children leaving care. However, this will raise more issues about where the costs will move to. The hope that local authorities will pick up the pieces concerning this group of children in care or leaving care is naive. Local authorities are already under huge amounts of pressure, and pushing the costs—and potentially greater costs—on them will not help the children who we want to see receive this help.

I am also deeply uncomfortable about the role of the litigation friend and the ability of children to access an appropriate person who is able to help them through very difficult times.

I am afraid that I am still not convinced by the arguments on exceptional funding. When we debated the percentages of cases, we learnt that 13 per cent of children’s cases will be out of scope. However, information provided by JustRights shows that, contrary to misleading government claims, the 5,000 to 6,000 children covered by this amendment will not be protected by the exceptional funding scheme. The Ministry of Justice has confirmed to JustRights that its figures on the number of children affected already account for those who would receive exceptional funding. If children were automatically entitled to legal aid, the Government would avoid the cost of administering children’s applications to the scheme, as well as possible delays that would be detrimental to children’s welfare.

I am conscious of the late hour. This issue has been extensively debated in many sessions, but we should ask the other place to think again about the thousands of children who will be seriously and negatively affected if the amendment does not go through. I beg to move.