Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Lister of Burtersett Excerpts

Tuesday 10th January 2012 Lords Chamber

[Baroness Massey of Darwen]

My Lords, I want briefly to support this amendment moved by my noble friend and to welcome the contributions made by my noble friends Lord Judd and Lord Howarth about the potential downward spiral of misery that the Bill may bring on society. Of course we need a review of the costs for the groups and systems listed in this amendment. The lack of costing is very worrying, but what also concerns me is the impact on people’s welfare and health and on the stability of their lives. It has been said before that this is about justice and morality.

I want to give an example of the costs and impacts on young people. Later amendments will discuss the impact of the Bill on children and young people, on women and on those with disabilities. The noble and learned Baroness, Lady Butler-Sloss, has tabled a very comprehensive amendment, Amendment 33, on children affected by civil and family law proceedings. I have tabled amendments in the same group relating to legal aid for young people aged up to 24. However, I thought that I would flag up my concerns here in the hope that, in the gap between today and when the later amendments come up, the Minister will be able to give us more information not only about costs but about impacts. If the measures in the Bill do not save money in the long term—I repeat, in the long term—why have them?

As it stands, the Bill will lead to nearly 26,000 young people aged under 25 losing legal aid for social welfare cases each year. I will not go into a detailed breakdown now because I want to save that for my later amendments, but 26,000 young people may be plunged into misery and may not be able to find work, and their families will feel the impact of that, along with the rest of society. Protecting access to social welfare legal aid for all children and young people under the age of 25 would cost around £5.8 million a year. By way of comparison, the Prince’s Trust estimates that the weekly cost of youth unemployment is £20 million, which is an enormous contrast. Protecting legal aid for young people with disabilities and for care leavers is likely to cost a modest amount. I ask the Minister whether an assessment has been made of the size of these groups of young people and whether an estimate has been made of the costs that will be incurred by the measures proposed in this Bill. Also, how will the Government assess the potential of other impacts, such as those profiled by my noble friends Lord Howarth and Lord Judd? It is not just about money; it is about quality of life.

[Baroness Lister of Burtersett]

My Lords, like my noble friend Lady Massey, I want to draw attention to the impact of the proposals on quality of life. Like other noble Lords, I received a number of representations from organisations speaking out on behalf of various disadvantaged groups. Their representations bring home to me the need for a fine-grained impact analysis of the changes on people’s lives. The impact analysis that we have received does not provide that.

I want to draw attention to a few of these groups—we will talk about them in much greater depth later. My noble friend spoke about children and young people. The group JustRights has written about the vulnerability of those who are able to access legal aid in their own right. It says that 80 per cent of young people who report civil legal problems face other disadvantages such as lone parenthood, mental health issues and exclusion from education, employment and training. The group refers to the range of legal issues that these young people may need help with, one of them being immigration.

I spoke recently at a Law Society conference on social and economic human rights. A presentation was made by a group of young people from an organisation called Refugee Youth. Everyone at that conference was immensely impressed and moved by it. Afterwards, those young people wrote to me about the Bill. I hope that noble Lords will allow me to read from what they sent. They wrote:

“Many of us arrived as separated children, and have been through the asylum process. That has been successful for some of us, but not for all; and while many (not all) of us have been granted permission to stay in the UK, for some this has come from a non-asylum immigration claim”,

which is relevant to this Bill. They continue:

“Indeed many of us have experience of being refused asylum, but granted permission to stay for up to 3 years; and having to bring an immigration claim and appeal at the end of that period … We are very worried about the Legal Aid, Sentencing and Punishment of Offenders Bill, and the effect it will have on children and young people going through the immigration system in the future”.

They are not talking about themselves; they are talking about other young people who might be in the same position. They mention that it was said in the House of Commons that such young people would be assigned a social worker but they say why that is not adequate. They do not feel confident that social workers would have—and there is no reason why they should have—the legal expertise to be able to help such young people.

The organisation has produced a very useful briefing—I shall not read it all, obviously—in which it gives a number of reasons why it is so worried. It says:

“The court systems are intimidating and uncomfortable for young people … A court room is not made to be friendly, it is really intimidating. Having a lawyer makes you feel safe. As young people we feel we don’t have authority anywhere—let alone in a court room”.

It then quotes from some young people. One said:

“I had a really good lawyer and even though she was with me going to court was still one of the scariest things I have ever been through”—

this was from someone who had sought asylum. Another said:

“When I just had to say my name in court I was so scared and stuttering and shaking—I can’t even imagine how scary it would be to represent myself”.

Another young person said:

“It is too scary to relive traumatic experiences we have been through in court. Some things are too painful to represent ourselves”.

The organisation then makes the point:

“Unaccompanied young people rely on the expertise and knowledge of lawyers to represent them … Often we come from countries where you can’t criticize the police or the government or any authority, so sometimes we don’t know when it’s safe to speak out and tell our story. We need advice and support from our lawyers. When a lawyer is involved matters are taken more seriously”.

It is concerned about the quality of legal representation from private lawyers and the fact that they do not have the finances to pay for legal representation themselves. One individual said:

“If I hadn’t had that Legal Aid I don’t know what I would have done. I didn’t have a penny to pay for a lawyer and if I had to represent myself I would have no idea what evidence to provide”.

The organisation concludes:

“From our personal and lived experiences as young people involved in the asylum and immigration system we are absolutely certain that the proposed changes will have a severely damaging impact on us and our peers”.

Although that is a very subjective impact statement, it is rather telling and moving.

We have had other representations, such as from the National Federation of Women’s Institutes, which welcomes the concessions that have been made around issues of domestic violence and immigration but points out that this will not cover all women who are potentially affected. We will need to look at that and more general issues around domestic violence as we go through the Bill.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Lister of Burtersett Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, I shall intervene briefly. My remarks, such as they are—I hope they will not be long—apply also to quite a number of other amendments for which I shall not be able to stay, some of them in the name of the noble Lord, Lord Bach. At Second Reading, I indicated that I have a lot of sympathy with many of these concerns, not least those in the field of welfare, for exactly the reason that my noble friend Lord Thomas of Gresford has just outlined. At one and the same time, we are passing—or the Government are proposing that we should pass—significant changes in the welfare area affecting hundreds of thousands of people and we are seeking to reduce the scope for people to have legal aid or support of one kind or another in challenging some of the decisions that will then be made. I think I referred to it at Second Reading as a sort of pincer movement in that respect and I see no reason to change that judgment now.

That leads me to make two or three points. First, we really need something that we have not had, which is a combined impact assessment of the effect of the various pieces of legislation on poor and vulnerable people. We have not had it. This is not joined-up government and it is very difficult to make a judgment about what we collectively as a Parliament are doing to these people in those circumstances. That is aggravated by what has been acknowledged in this debate, which is that the Government do not know—I do not know whether the Minister will accept these words—what the financial effects of these measures will be, although we all know that there will be effects in increasing costs for other departments. The Government say that they cannot quantify them but I do not think that they would deny that they will be there. If they cannot quantify them, but cannot deny that they will be there, the savings figures are potentially meaningless.

Even within the Ministry of Justice, which I assume has costed the consequences, the extra costs of claimants, litigants and appellants defending themselves will almost inescapably drive up the costs of the Tribunals Service. Has that been measured? Is it taken into account in these savings figures? These are the questions to which we have to have answers. I do not want to see these amendments pressed to a Division tonight any more than I did the previous one, but they enable us to say that we need to know what we are doing before we can make a judgment in these matters.

I cannot stay for too much longer for reasons which I hope the House will understand but there are all sorts of things that one could say. Mediation was referred to earlier as well as alternative forms of advice in one way or another. Again, we need to know just what the position is. I should make the point that mediation has absolutely nothing to do with social welfare. You cannot have mediation about whether you are entitled to a benefit or not. You either are or you are not, although I accept that mediation may have a part to play in some other areas about which we are concerned.

In any event, we keep hearing talk about more cost-effective ways—I do not know the exact phrasing—of assistance, advice and so forth. But as has been said and as was illustrated in the debate on the CABs not much more than a week ago, most sources of advice are being squeezed either by this Bill—for example, the effect on law centres and other advisory services depending on pro bono work or legal aid work from lawyers—or by the squeeze on local authorities, which is putting the bite on CABs. We then hear talk about this, that or the other amount of money being available, but it is far from clear whether the Government know whether the availability of other forms of advice is going up or down and whether the measures will have any significant effect in either direction. We need to know more about all this before we can make a sensible judgment. I am very grateful to my noble friend for having raised this issue, even though I hope that he will not press it further tonight.

[Baroness Lister of Burtersett]

My Lords, it is always a pleasure to follow the noble Lord, Lord Newton, who I am tempted to call my noble friend even though technically he is not. I rise in support of Amendments 2, 19 and 29 in particular, although I do so with some trepidation because I am not a lawyer. After what my noble friend Lady Kennedy of The Shaws said, perhaps that is not such a bad thing after all. In fact, my first job was as a legal research officer with the Child Poverty Action Group. Many people assumed that I was a lawyer because the group did not have one in those days.

From what we have already heard in relation to Amendment 1, this Bill is not about a narrow understanding of the law; it is about an understanding of the law as an important instrument of citizenship. These amendments are about something I spoke on at Second Reading, the relationship between the citizen and the state. I cannot believe that any Member of your Lordships’ House wants to weaken the position of the individual citizen against the state, yet my fear is that that is what this Bill will do in Part 1.

I am a believer in the state, particularly the welfare state. But the state can loom very large and very oppressively in the lives of some of our most marginalised citizens. It is really important that they can turn to the legal system in their relations with the state. I also want to refer briefly—we will come back to this in later amendments—to the importance of the tribunal system. One of my first pieces of work as legal research officer at the Child Poverty Action Group was on one of the first empirical studies of the supplementary benefit appeal tribunal system. I was very privileged to be supervised by the late Professor John Griffiths, who I think would be horrified by the measures in front of us today.

--- Later in debate ---

[Baroness Lister of Burtersett]

I might be wrong, but is it not true that legal aid is available for advice for people who attend those tribunals?

[Lord McNally]

The noble Baroness is an expert. She wrote a precursor to 1,620 pages of advice, so I will accept that. We will have plenty of opportunities for correction if either of us is wrong.

When I started as a Minister I started counting the number of times the noble Lord, Lord Newton, and I disagreed, but I have now stopped counting. Nevertheless, my love for him remains totally undiminished and I know of his own concern and expertise in this area. He mentioned the danger of a pincer movement, but a number of proposals that are currently being considered across government should make it easier for people to receive the right provision or entitlement in areas such as welfare, benefits and education. The most notable of these is the universal credit, which will help to reduce the scope of error significantly, as it makes the whole benefits system simpler and easier to understand. The Ministry of Justice is working closely with the Department for Work and Pensions as part of its wider welfare reform programme to improve the quality and effectiveness of initial decision-making in social security applications, considerations within the DWP and the system of subsequent appeals to tribunal. That is another aspect.

A number of people have asked about the impact of particular reforms. It has not always been acknowledged that other government actions might be improving the situation in some of these areas. It is always difficult to give the full impact of any particular measure. As the Lord Chancellor points out in his oft-quoted Guardian article—I did not know there were so many Guardian readers in the House—part of the aim is, to a certain extent, to change attitudes and approaches so that we do not become overly reliant on legalistic solutions. There might well be changes, both beneficial and less beneficial, in the outcomes of some of the things that are going on.

I accept the point made by the noble Baroness, Lady Lister, the noble Lord, Lord Phillips, and others that appearing before a tribunal is daunting for the lay man. The noble Baroness, Lady Lister, asked me a specific question about the cost of legal aid appeals to the Upper Tribunal on welfare benefit matters. I am advised that at the moment we spend approximately £1 million a year on legal aid for advice and representation on welfare benefit appeals to the Upper Tribunal and higher courts. I will come back to Amendment 2.

Amendment 19 deals with Clause 7, which defines what “legal services” and “civil legal services” mean for the purposes of Part 1. Clause 7 provides an overarching definition, but the specific levels of service—for example, legal help and legal representation—that will be available in any particular case will be set out in regulations made under Clause 10. This approach is based closely on the current model, where Section 4(2) of the Access to Justice Act 1999 describes the types of services that can in principle be funded, and the Legal Services Commission’s funding code criteria set out the precise levels of service that are available in any particular case.

The definition of service in Clause 7 is wide enough to cover the things that one would expect, such as advice from a high street solicitor about a case that a person wishes to bring. I can perhaps assure noble Lords that legal advice and assistance in relation to tribunals is a service that is already encompassed in the description of legal proceedings in Clause 7(1). Indeed, “legal proceedings” is defined in Clause 41 as meaning,

“proceedings before a court or tribunal”.

We rely on this for the provision of services, including advocacy, in, for example, mental health tribunals as set out in paragraph 5 of Part 1 of Schedule 1 or in paragraph 9 of Part 3 of Schedule 1. The definition of legal services in Clause 7 is therefore wide enough to include legal help and indeed advocacy in proceedings before a court or tribunal, and this amendment is unnecessary.

Amendments 2, 29 and 78 all broadly concern appeals to the Upper Tribunal and appellate courts on a point of law. Amendment 2 seeks to make legal aid available in relation to,

“appeals on any point of law in the fields of welfare benefits, employment, debt, housing, immigration, education, and asylum”,

where an individual is in dispute with the state. Amendment 29 seeks to make legal aid, including advocacy, available in social security appeals before the Upper Tribunal and appellate courts. Amendment 78 would add a new paragraph to Schedule 1 and seeks to include appeals on a point of law,

“from the Immigration and Asylum Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court”,

within the scope of legal aid.

The categories of law in question include ones such as welfare benefits where tribunals are used. Legally aided representation is not available for most tribunal hearings because tribunals are designed to be user-friendly, without the need for legal representation. Indeed, legal aid is not currently available for legal representation in point-of-law appeals on welfare benefits. Amendments 2 and 29 seek to extend legal aid even beyond its current boundaries by providing legal representation for these Upper Tribunal appeals.

The Government have considered whether funding remains justified for all appeals, regardless of the area of law in which they arise. In the Government’s view, it does not. Under the present scheme, funding is not provided for cases that are not considered a priority for the scheme, such as defamation or business cases, even where these take place in the High Court, the Court of Appeal or the Supreme Court. We consider that the ability of the client to represent their arguments and the importance and complexity of the issues will vary from case to case. The fact that a case is to be heard in a higher court or tribunal does not automatically mean that it will be particularly complex; nor will the forum in which a case is heard outweigh other considerations that determine our priorities for funding.

The noble Lord, Lord Hylton, referred to immigration. Since consultation, we have taken on board some of the concerns raised, including those raised during the passage of the Bill in another place on domestic violence and immigration cases. On the introduction of the Bill, we included in Part 1 of Schedule 1 funding for advice in asylum support cases concerning the provision of accommodation. However, our fundamental position has not changed. It is our view that most immigration cases do not require a lawyer. I should make it clear, however—because some of the points made by noble Lord, Lord Hylton, refer to asylum cases—that asylum cases will remain within scope. I can assure noble Lords that funding is being retained, including for advocacy, for a range of tribunal appeals. These include appeals to the First-tier Tribunal under the Mental Health Act 1983 and appeals to the Upper Tribunal in special educational needs cases. Here, we have focused our limited resources on the highest priority cases.

On the question of appeals to the Supreme Court, we will continue to fund appeals to the High Court, the Court of Appeal and the Supreme Court where the area of law to which the appeal relates remains in scope. Again, this will allow for our limited resources to be focused on areas of higher relative priority.

Amendment 2 appears to suggest the requirement of an equality of arms with the state in such cases. The principle of equality of arms is clearly important but is susceptible to misunderstanding. This amendment implies that justice can be done only in a particular case where both parties in proceedings have identical representation. This is not a view supported by the law, or by the experience of many litigants who currently appear before tribunals without the benefit of legally aided representation.

The important question is whether an imbalance in representation gives rise to an obvious unfairness in the proceedings. The case law on Article 6 of the ECHR sets out the circumstances in which legal aid will be required to guard against an obvious unfairness in proceedings. In determining this question, it is necessary to consider all the circumstances of the case, including the nature of the rights at stake, the complexity of the law, the capacity of the individual to represent themselves and whether there are alternative means of securing access to justice. In many cases, for example before tribunals, the procedure is relatively straightforward and there are sufficient safeguards in place to ensure that the absence of legal representation on one side does not lead to an unjust outcome.

Clause 9 provides for an exceptional funding scheme that will continue to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as the rights to legal aid that are directly enforceable under European Union law. I must emphasise that the threshold here is very high—as the name suggests, they will have to be exceptional cases. However, in cases in which Article 6 of the ECHR is engaged, the exceptional funding scheme will provide an important safety net for those in which an egregr—

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Lister of Burtersett Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, I apologise that I have not been able to be present for much of the debate, but it would have meant absconding from the salt mines of the Welfare Reform Bill in Grand Committee, where I had an amendment down. In fact, I see the two Bills as being intimately connected, not least because what the Government herald as the most fundamental reform of social security for 60 years, to which the noble Baroness, Lady Doocey, has just referred, will coincide with the removal of social welfare law from the legal-aid scheme—a double whammy, for sure. I shall focus on this in my remarks, although I am aware that there are many other aspects of the Bill which are causing concern, such as its implications for children and young people, including immigrants, women, asbestos victims, tenants and squatters, who will be unnecessarily criminalised. According to the Law Society, the provisions in Part 1 represent the most profound change to the structure and nature of the legal-aid system in England and Wales since it was set up in 1949. Whole categories of law will be removed from the scope of legal aid in an approach that the Law Society considers to be fundamentally misguided.

Also in 1949 TH Marshall delivered his groundbreaking and influential lectures on citizenship and social class in which he discussed the Legal Aid and Advice Act as an example of a social right of citizenship which attempted to remove the barriers between civil rights and their remedies and to strengthen the civil right of the citizen. The current Bill restores the barriers between civil rights and their remedies and weakens the civil right of the citizen. It represents an assault on a key building block in the overall edifice of citizenship. Indeed, some years ago the National Consumer Council referred to access to information and advice as the “fourth right of citizenship”. In its briefing, Justice also reminds us that when the 1949 Act was before your Lordships’ House, it was presented as providing legal advice for those of slender means and resources so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right. In other words, Justice contends, it is misleading for the Government to suggest that the scope of legal aid has expanded beyond its original intentions.

What has certainly changed is the nature of social welfare law. In the other place, a number of references were made to the Child Poverty Action Group’s national welfare benefits handbook. I declare an interest of a kind in that I wrote the first edition of that handbook in the 1970s. It was about 20 pages long. Today it is 1,620 pages long. It is a symbol of the complexity of this area of law, testified to by DWP Ministers themselves. While universal credit might represent a simplification in the structure of one area of social security, it is also introducing new complexities. As Scope points out, the lesson from previous social security reform is that it increases the need for legal advice significantly during the transition period, a point made by the noble Baroness. The assumption that social welfare law does not justify help under the legal-aid scheme because it is insufficiently complex or important is, not surprisingly, challenged by a wide range of representations made on the Bill and by a recent Civil Justice Council report. A common theme voiced in an e-mail I received from the CAB local to my university in Loughborough is that timely legal advice can prevent a problem escalating and thereby save money in the long run. Where a problem cannot be resolved, legal advice is particularly important in helping people prepare appeals to the courts or the Upper Tribunal. We are not talking about large numbers here so perhaps the Minister could tell the House just how much money is being saved by removing legal aid from such cases.

Citizenship is in part about the relationship between individual citizens and the state. A recent report from the chair of the Administrative Justice and Tribunals Council argued that the Government are making it more difficult for citizens to challenge decisions made by the state. The removal of legal aid from social welfare will make the situation worse. The report of a commission of inquiry into legal aid states that legal aid plays a vital role in holding the state to account for its mistakes and failings. The suggestion in the Government’s response to the consultation that Jobcentre Plus and the benefits advice line are substitutes for independent legal advice is thus risible, never mind that it is their mistakes which often give rise to the need for advice in the first place. I find it strange that a Conservative-Liberal Government want to weaken the position of the individual citizen against the state in this way.

The suggestion that citizens might turn to Jobcentre Plus is made in the context of the Government’s acknowledgement that,

“Respondents have told us that other sources of advice, particularly the voluntary sector, may not be able to meet the demand for welfare benefit services because of factors such as local authority cuts”.

The welcome one-off £20 million support package to CABs notwithstanding—and I will be interested to hear whether it is the same £20 million that was announced earlier—I fear that the combination of local authority and legal-aid cuts will mean the destruction of the legal advice infrastructure so crucial to protecting that fourth right of citizenship I spoke about earlier. The equality impact assessment demonstrates that the citizens who will be disproportionately hurt will be those who are ill or disabled, female and/or of a black or minority ethnic group. As other noble Lords have eloquently demonstrated, we have a responsibility to defend the rights of these citizens in the name of justice.

Prisoners: Voting

Baroness Lister of Burtersett Excerpts

Wednesday 6th July 2011 Lords Chamber

[Lord McNally]

I am not sure I entirely agree that it is simply a lack of money or budget. I know that the noble Lord has made this point about the financing of the court before, but that is why my right honourable friend the Lord Chancellor has made this such an important part of our presidency of the Council of Europe; as the noble Lord says, any court that has a backlog of over 100,000 cases ain’t working. We are going to do our best, and we are gathering support for the idea of trying, to get some fundamental reform of the court.

[Baroness Lister of Burtersett]

My Lords, does the Minister agree that if we deny all prisoners one of the most basic rights of citizenship—that is, the vote—they are less likely to fulfil their responsibilities of citizenship on release?

[Lord McNally]

That is an opinion that, quite frankly, I share. Perhaps the noble Baroness could come down the Corridor with me and we will try to convince David Davis and Jack Straw.

Social Welfare Law

Baroness Lister of Burtersett Excerpts

Wednesday 29th June 2011 Lords Chamber

[Lord McNally]

Well, I hear what my noble friend is saying. The department was faced with some very hard decisions on a £2 billion cut in a department which, as I have said before, has expenditure on only four areas—prisons, probation, legal aid and on the administration of justice. We have tried to focus where we can on areas of need. I was very interested in the editorial in the Guardian on legal aid, which was headed, “Unjust cuts”. In the course of that editorial, it said:

“It is now being examined for the eighth time since the Children Act 1989”.

The noble Lord knows very well that his own Administration were looking hard at legal aid and how to cut it. It went on:

“The need for reform, and for a more cost-effective system, is undisputed … Professionals acknowledge that too many of these cases come to court, and welcome the proposal for greater use of mediation … Change is needed. There are savings to be made”.

That is under the title of “Unjust cuts”. Those are the realities that we are facing.

[Baroness Lister of Burtersett]

My Lords, there is considerable disquiet among welfare law agencies about the impact of the withdrawal of legal aid from welfare benefits law at the very time when that law is to be changed significantly. Can the Minister therefore please advise the House as to what steps the Government will take to ensure there is adequate independent advice and assistance for all those affected by the welfare reform legislation?

[Lord McNally]

The hope and the intention is that we can give further assistance to those who are giving advice. One of the analyses we make of this area of law—this goes partly back to the question asked by my noble friend—is that it is not necessarily legal advice that is needed. There may be alternative forms of advice to enable people to manage their way through these difficulties. These problems have been raised with us and we will continue to keep them under review. I take the point that the noble Baroness has made.