Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Lister of Burtersett and Lord Newton of Braintree

Monday 16th January 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, I intervene briefly not to support every last dot and comma of the amendment—not least because I have not heard what the Minister has to say about cost, which we cannot completely ignore—but to indicate my general sympathy with the concerns that have been expressed by the noble Baroness and echoed by the noble Lord, Lord Wigley. I indicated earlier my concern about the Bill extending to the social security area for a number of reasons. First, the Welfare Reform Bill, whatever its merits—I am a strong supporter of it as a whole—creates a certain amount of turbulence, to put it mildly, for a lot of people, including many disabled people and carers. They have great concerns, which may well lead them to want to challenge some decisions. They ought to be able to do so.

Secondly, there is an interrelation here with the concerns expressed about the absence of sufficiently effective proposals to come anywhere near replacing the availability of legal aid, or at least legal advice, in such cases. We know from a debate in the House only shortly before Christmas that citizens advice bureaux are feeling acute pressure in their ability to maintain, let alone enhance, their level of service. This may have come up earlier, before I was able to be present, but we know that law centres are also feeling acute pressure from expected losses of money from the legal aid changes. From the point of view of claimants in the social security field, as one or two people have said—including me on previous occasions—there is a double or triple whammy here: you do not get help from one quarter; you are steered to another quarter; but that quarter itself is being starved of resources and unlikely to be able to help you.

I make no apology for repeating things I have said on previous occasions: there is an absence of apparent—I choose my words reasonably carefully—joined-up government. Ministers have effectively said that they do not know what is the overall financial effect of this, because they know what is saved to the Ministry of Justice, but they do not really know what are the costs elsewhere.

I doubt whether they even know what will be the net effect on the Ministry of Justice. It is well known to anyone who knows anything about tribunals that the less help and advice that people have in social security tribunals and related matters, leading them to represent themselves, the more time will be taken at the tribunal trying to sort out what are the issues. Cases will get taken to tribunals which would not have been had people been well advised beforehand. There will be costs to the Tribunals Service in the Ministry of Justice that I am not sure are allowed for in the costing that the Ministry of Justice has ascribed to the savings on legal aid. We need more convincing answers on this than we have so far had. I do not want to see the amendment pressed to a vote tonight, but I hope that Ministers have their ears open on this one and will look carefully at the reality, as opposed to the optimistic forecasts of the original estimates of savings in this field.

[Baroness Lister of Burtersett]

My Lords, it is always a pleasure to follow the noble Lord, Lord Newton, so I am keen to come in at this point.

I support the amendments proposed powerfully by the noble Baroness, Lady Doocey. I shall focus on Amendment 32 but say just a few words on Amendment 35. Although I would not want to confine advice and assistance for social security claims before tribunals to disabled people, if it was to be confined to a single group, there is a strong case for that being the group, because of the high proportion of those who are affected who have additional needs over and above legal needs which affect their ability to exercise their legal rights.

That is brought out very well in the briefings we have received from Citizens Advice and Scope’s report, Legal Aid in Welfare: the Tool We Can't Afford to Lose. I also received a case study from Charnwood CAB, which is local to my university. I will not read it out because it is rather long and complex, but someone came for help because of the interaction between decisions on disability living allowance and income support. Then they ran out of time in appealing and were going to get in a real mess. It was only with the help of the citizens advice bureau that they were able to lodge an appeal. The CAB pointed out that that cost the taxpayer no more than £167 excluding VAT—since October, it would have cost £150.

That exemplifies the more general point of Amendment 32, which would put social security law back into scope. As the noble Baroness said, like it or not, social security law is complex and will remain so however successful universal credit is.

The Government's suggestion that people can turn to Jobcentre Plus or the benefits advice line for help with such cases has been described as incongruous by the president of the First-tier Tribunal, his honour Judge Martin. It is utterly incongruous when one considers that it is their mistakes that have so often given rise to the need for legal advice in the first place. According to Liberty, Community Links advice service recorded that in 2010, 73 per cent of benefit-related cases handled by its staff arose from errors made by the Department for Work and Pensions.

The president of the First-tier Tribunal also pointed out that the emphasis on the user-friendliness of the tribunal system misses the point, because the tribunal has no role to play in assisting claimants to decide whether to bring their appeal or to help them prepare their case. The experience of CABs and other agencies and research by the LSE shows that often the role played is to stop cases getting to the appeal tribunal, so, in a sense, saving the Government money, because the advisers know whether there is a case worth pursuing or not.

As the noble Lord, Lord Newton, said, the other suggestion is that people can turn to CABs, law centres and so forth. However, as the noble Lord said, these are under immense pressure. Not only that but sometimes people ask how what is happening now compares with what was happening in the 1980s, when we had social security reform and cuts. At the time, I was working at the Child Poverty Action Group. One thing that is making things much harder now is that in the 1980s local authorities were expanding welfare rights advice services, and they were able to help people to deal with the turbulence of social security reform and the changes being made. Now, local authorities throughout the country are cutting back on welfare rights advice services, and this is happening when law centres, like CABs, are under pressure. Therefore, that is not the answer either.

As has already been said, removing legal aid for help with social security law would be damaging to some of the most vulnerable people in society at the best of times, but doing so when we are facing the most radical change in social security law in 60 years, as the Government themselves bill it, could be seen as bordering on the vindictive.

I want to turn to a rather limited but important aspect of this issue. On our first day in Committee, the Minister and I had an exchange about whether legal aid was available for cases coming before the Upper Tribunal and the higher courts. I am sure that, like me, the Minister went away and did his homework. My homework confirmed that I was right: legal aid is available for advice before one gets to the Upper Tribunal. However, I was only partially right because in some cases it can also be available for representation. I sought advice from Roger Smith of Justice, who is a former colleague of mine, and this is what he said:

“Legal help is, of course, currently available for advice. The position on representation is a bit more complicated. Legal aid for representation is not available as routine for social security cases in the Upper Tribunal but has been available for further appeals to the courts. Legal aid for court representation will be withdrawn under the Bill.

Legal aid is available for certain specified appeals to the Upper Tribunal, basically where legal aid was available prior to the establishment of the Upper Tribunal but this does not include social security”.

Nevertheless, he continues:

“The Access to Justice Act allows funding in exceptional circumstances where proceedings are otherwise out of scope … and, therefore, can cover representation at Upper Tribunal cases. This is the provision that is used to provide representation in inquests but it covers all proceedings”.

The Child Poverty Action Group confirmed that it had legal aid for a social security case in the Upper Tribunal, even though, admittedly, it was hard to get.

Roger Smith also drew my attention to a very useful article in the CPAG’s Welfare Rights Bulletin by the group’s solicitor, Sarah Clarke. She points out that legal aid for social security matters at higher courts is being withdrawn despite the fact that the Ministry of Justice puts no savings on this at all. In fact, at our first sitting, the Minister said that this would save £1 million. In public expenditure terms, £1 million is so well within the margin of error that it hardly counts as public spending; it can simply be written off. The article is helpful. It says:

“In the future, social security claimants who find themselves faced with an incorrect Upper Tribunal decision, or who win their case at the Upper Tribunal but find themselves on the receiving end of an appeal by the DWP, HMRC or a local authority, could be facing the courts and the costs risks attached on their own or not at all. It also means that the big social security test cases which reached the higher courts by way of the appeals process, such as Zalewska on the lawfulness of the Workers’ Registration Scheme, Hinchy on the interpretation of the overpayment recovery test, Pedro, on the meaning of ‘family member in EU law’, and Mallinson, the seminal case on the interpretation of the law on disability living allowance, will not be funded in future.

In view of the complexity of the relevant law and procedure, the importance of what is at stake for the applicant and others, and the fact that many social security claimants are vulnerable and may be disabled or may not have English as a first language, and therefore are particularly disadvantaged in presenting their cases, it seems possible that, particularly in cases before the higher courts, a lack of legal aid could breach the rights of claimants under Article 6 of the European Convention on Human Rights”.

Given that an appeal to the Upper Tribunal has to be on a point of law; given the complexities of that law and how much is at stake in terms of the livelihoods of some of the most disadvantaged members of our society; given that, as Justice points out, even if the Supreme Court had agreed to a case because of its complexity and its importance, legal aid would not be available because the Government say that it is not complex or important enough; and given that the savings are so minuscule that the Ministry of Justice does not even normally record them, can the Minister explain to the Committee why the Government are withdrawing legal aid from this small yet important category of cases, and can he please justify this to the Committee?

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Lister of Burtersett and Lord Newton of Braintree

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.

Welfare Reform Bill

Debate between Baroness Lister of Burtersett and Lord Newton of Braintree

Monday 10th October 2011 Grand Committee

[Baroness Lister of Burtersett]

My Lords, I am very grateful to my noble friends and noble Lords for their support. I am struck by the extent to which noble Lords throughout the Committee share my concerns and have made important points in support of these amendments. There is perhaps a slight disagreement over whether we should be pushing for fortnightly payments or for choice. My preference would be for fortnightly payments, as argued for by the noble Lord, Lord Skelmersdale. However, I tabled a menu of amendments thinking that choice would probably be more acceptable to the department than what I prefer, which is the status quo. Perhaps that is the one way in which I am a conservative. But as I have argued, and according to the Financial Times, the panoply of flexibility and special assistance which the Minister talked about will bring in complexity if we go down the route of monthly payments, and we have not heard what the costs will be. I am very disappointed with the Minister's response because he has not really engaged with the arguments that I put. Therefore, my supposed flirtation with conservatism has been very short-lived indeed.

The Minister made great play of the distinction between the assessment period and the payment period, and I understand that. However, the argument seems to support my position rather than his because paying a benefit more frequently does not affect proposals to assess it on a monthly basis. One could have a monthly payment that is paid in two tranches, which would make it easier for people to manage. The only hope that I got from the Minister was the statement that we had given him food for thought. I hope that it will not be too indigestible for him—actually, I hope that it will be indigestible, because he will then think seriously about it.

He has not answered some of the most basic questions. I know that the special assistance will not only be budgeting advice. The papers have said that it will “include” budgeting advice. However, it is still not clear who is going to provide this. Will it be officials? If I were a claimant, I am not sure that I would want officials advising me on how to budget. Or will it be the poor old voluntary sector/big society, which will be on its knees anyway because of cuts, the effects of the legal aid Bill and so forth? I am not at all reassured by vague talk about flexibility and budgeting support.

The Minister said that the Government would look at areas of flexibility after the next year or so. I am sorry, but I want to know what the position is by the Report stage. While I have made clear that I realise it is not appropriate to write into the Bill itself the frequency of payments, given the strength of feeling that has been expressed on all sides, it is not good enough that we should have to wait a year; the Bill will be an Act by then. We want to know before the Bill goes back to the other place what is going to be done to ensure that the kind of problems that I and other noble Lords have raised will be adequately addressed. One of these amendments must be the way to do it.

[Lord Newton of Braintree]

I apologise for intervening: I probably should not, as I was not here earlier. However, if the House authorities schedule at the same time on one day on the Floor of the House and in this Committee three Bills in all of which I have an interest, it presents a difficulty. The Minister should know that had I been here, I would have been rebellious. I endorse in particular the noble Baroness’s point about needing to know, not at some vague time in the future but before the Report stage, what the Government have in mind. Perhaps I might also say to the noble Baroness—craving the indulgence of the Committee—that I thought the Minister went as far as Ministers can go under these circumstances towards saying that he would think again, and that this is not the last word. I think that she should be pleased with that.