Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Whitaker Excerpts

Tuesday 24th January 2012 Lords Chamber

Making life more difficult for Gypsies and Travellers is not the way to turn them into good citizens who generate fewer burdens on public services. I beg to move.

[Baroness Whitaker]

My Lords, the noble Lord, Lord Avebury, has set out very clearly and powerfully the way this group of amendments would work. I will briefly give noble Lords a couple of examples to flesh out what they mean in real cases.

For instance, there are two Gypsies on different plots, both facing injunctions to make them leave their own land because they have not yet obtained planning permission—notoriously low down on most local authorities’ to-do lists. With legal aid, lawyers managed to hold off the injunctions on the basis that there were reasonable prospects of success in their planning appeals. One of them has now obtained permanent planning permission and the other has obtained temporary permission for three years—of importance when there are school-age children in the family. The point is that these two would have been homeless without legally aided assistance, but these cases would not qualify for legal aid.

I should just add that the other Minister’s amendments to the previous group of housing clauses, offered in the witching hour last Wednesday, are welcome, but they are not nearly bewitching enough. They do not materially alter the unfair situation that Gypsies and Travellers will find themselves in if the Bill becomes law.

I also cite the case of a family on a private caravan site, protected by the Mobile Homes Act 1983—unless this Bill becomes law—but facing harassment by their landlord. The harassment was clearly intended to force them to leave the site. Their legal aid lawyer obtained an injunction to stop the harassment. One of the victims said, “Without a solicitor acting for us, they would have got us out by now”—again, they would have been homeless. As the noble Lord, Lord Avebury, said, Gypsies and Travellers are often illiterate and harassment can be very complex in legal terms.

Gypsies and Travellers are often illiterate because that is what happens when you are moved on all the time as a child. Is it any wonder that our Gypsy and Traveller children have the lowest attainment rates in school, are more likely to die in infancy and have mothers who are more likely to die in childbirth? These are the consequences of constant eviction and moving on. The reason for even more moving on will still be the lack of legal sites, but added to an overwhelmingly unmet need—if the Bill becomes law—for legal advice and assistance in establishing such entitlement as exists.

Of course, the costs of unnecessary evictions are huge, but the most important disbenefit, if some form of these amendments is not accepted, will be to the ordinary human rights accepted for all other citizens not to be made homeless. As it stands, this Bill discriminates against a defined minority-ethnic group—whatever previous government letters to me have said—and I hope the noble and learned Lord can provide a more positive attitude.

[The Earl of Listowel]

My Lords, I, too, support Amendment 79, to which my name is added, and I declare my interest as a landowner. I am most grateful to the noble Baroness, Lady Whitaker, and my noble friend Lord Avebury, for drawing my attention to these amendments. All children need a degree of stability in their lives if they are to do well. Instability for Traveller children arising from repeated displacements—the “churning” to which my noble friend referred—impacts particularly adversely on their educational outcomes. Displacement risks undermining the education of Traveller children, excluding them from society and contributing to a cycle of generational failure. I would encourage the Minister to accept this amendment as a means of improving educational outcomes for Traveller children and of promoting their inclusion in society.

I should like to pray in aid two documents; namely, My Dream Site, which includes research with Traveller children and is published by the Children’s Society, and a 2003 Ofsted report, Provision and Support for Traveller Pupils. The Ofsted report states:

“The average attendance rate for Traveller pupils is around 75%. This figure is well below the national average and is the worst attendance profile of any minority ethnic group … The 1996 Ofsted report The education of Travelling children estimated that at least 10,000 Traveller pupils of secondary age were not registered at school. This survey”—

the 2003 survey—

“indicates no decrease in these numbers and estimates that the figure could now be closer to 12,000. Despite examples of success by some services, the picture at the secondary phase remains a matter of very serious concern. Not enough Traveller pupils attend or stay on at secondary school … The vast majority of Traveller pupils linger on the periphery of the education system. The situation has persisted for too long and the alarm bells rung in earlier reports have yet to be heeded”.

That 2003 report highlights our failure to educate secondary-school-age Traveller children in particular.

The Children’s Society report indicates the connection between stability and school success for Traveller children. It states:

“More than any other amenity school raised a range of emotions.

‘It’s good for your education but it’s hard to get in because you’re travellers and that, so you get a lot of hassle at school.’ Johnny aged 12 years.

Other children’s experiences at school were similar, as they had also experienced bullying because of their traveller status.

‘The only reason a lot of people do it is because they don’t understand. I tell the teachers but they don’t do anything.’ Daisy aged 12 years.

There was a marked difference in attitude towards school from the children who had been settled on a site for a stable period of time. These children had an opportunity to settle into a school routine and knew what was expected from them in a school setting. The opportunity to build up a relationship with staff and with other children seemed to make attending school a far easier experience. They appeared to have less of a problem with being bullied because of living a nomadic lifestyle. Some of the children no longer identified themselves as travellers but saw themselves more as settlers. These children had been able to attend one school and had lived in one place for most of their lives”.

To conclude, all children need a degree of stability. The education of Traveller children is likely to be significantly impaired by continued upheavals, which can lead to their exclusion from society and failure for successive generations of Traveller children. I support this amendment because it may contribute to improved stability for Traveller children and I look forward to the Minister’s response.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, we have had an important debate. As the noble Lord, Lord Alton, said, it is no surprise that the amendment was moved by my noble friend Lord Avebury, whose record over the best part of half a century in standing up for the rights of Gypsies and Travelling people is well recorded. As I understand it, he continues to be the secretary of the All-Party Parliamentary Group for Gypsy Roma Travellers. I understand that the noble Baroness, Lady Whitaker, is vice-chairman of that group. We have heard important views on wider issues, not exclusively on legal aid. The noble Earl, Lord Listowel, raised the important educational issues relating to Gypsies and Travelling people.

I will focus on the amendments and the impact on legal aid. Amendments 73, 74, 75 and 76 go together as a package. They would ensure that legal aid remains available in relation to possession and eviction matters for persons who are clearly trespassers on the property or land where they reside. As has been pointed out, the Bill currently excludes such persons from receiving legal aid under paragraph 28.

While we are generally retaining legal aid where a person is at immediate risk of losing their home, the Government do not consider it appropriate for the taxpayer to provide funding for individuals to try to resist removal where they unarguably entered and have remained on the property or site as a trespasser. On a point raised by the noble Lord, Lord Pannick, paragraph 28 states:

“if there are no grounds on which it can be argued … that the individual is occupying the vehicle or structure otherwise than as a trespasser, and … that the individual’s occupation of the vehicle or structure began otherwise than as a trespasser”.

I hope the noble Lord will be reassured that Gypsies and Travellers will have access to legal aid under paragraph 28 in relation to loss of home if there are any grounds to argue that they are not trespassers. That is certainly the intention. It is quite clear that that is what will be delivered.

I emphasise again that legal aid will remain available for eviction and possession cases where there are any grounds to argue that the client has not entered and remained as a trespasser. On the other point, we are also retaining legal aid for most judicial review cases as set in out the Bill, and also—as the noble Lord asked—with regard to breach of convention rights by public authorities. I can confirm that Gypsies and Travellers will continue to have access to legal aid in terms of that particular paragraph of the schedule, along with others.

My noble friend also referred in his amendment to the Mobile Homes Act cases. Amendment 77 seeks to bring into scope legally aided advice for all matters arising from the Mobile Homes Act 1983. That Act gives rights to residents who have agreements with site owners to live in their own mobile homes on site. As I have explained, we have generally retained legal aid where the individual is at immediate risk of homelessness. This includes possession and eviction from a mobile home site. However, the consequence of the amendment would be to extend legal aid to cover all matters under the Mobile Homes Act 1983. It would make legal aid available for what we regard as lower priority matters where legal aid is not in our view justified, for example disputes about the sale or inheritance of mobile homes.

The point made by the noble Baroness, Lady Whitaker, was on the more important issue of harassment. I hope I can reassure her that legal aid is available for harassment injunctions under Sections 3 or 3A of the Protection from Harassment Act 1997 and, by extension, under paragraph 32 of Part 1 of the schedule.

[Baroness Whitaker]

I am grateful to the Minister for that point, but perhaps I may refer back to his remarks about judicial review, in response to the noble Lord, Lord Pannick. I am still not exactly clear what happens when it is not quite an eviction but a matter that would lead to an eviction. For instance, would judicial review be available to defend a county court possession action or a failure by a local authority to follow or have regard to relevant government guidance? It is those cases that lead to eviction but are not exactly eviction actions—and indeed the Gypsy is a trespasser on the prima facie case but, after judicial review, might be found not to be a trespasser.

[Lord Wallace of Tankerness]

My Lords, I will double-check on that. I would in no way wish to mislead, but on judicial review paragraph 17 indicates that,

“civil legal services are to be provided in respect of an enactment, decision, act or omission”.

It is certainly my understanding that that is the case, but I shall conclude my speech and double-check that. That paragraph of Schedule 1 will apply and entitle Gypsies and Travellers in the same way as it entitles others. I am as certain as I can be that that is the case, but the noble Baroness gave some very specific examples. Perhaps the best thing for me to do would be to set out in writing to her, and circulate it to those who have taken part in our debate, precisely the position in regard to the very specific cases that she raised in her intervention. I hope that she will accept that. There is certainly a general power or provision to bring within scope judicial review cases, and I believe that that addresses the point, but I want to be absolutely certain with regard to the specific issues that she raised. Obviously, other Members of the Committee who have contributed to the debate will be copied into that letter.

Amendment 79 relates to this and brings in issues of planning. I hope that I can reassure the Committee, and my noble friend in particular, that it is unnecessary. Planning matters that concern eviction from home will remain in scope under paragraph 28 of Part 1 of Schedule 1. Accordingly, legal aid will, for example, remain available to defend an application for an injunction to evict a person from a site under Section 187B of the Town and Country Planning Act 1990 or for a planning appeal under Sections 288 and 289 that might result in the individual being legally required to leave their home, including the land where the home is located.

The noble Lord, Lord Alton of Liverpool, and my noble friend in moving his amendment raised the Dale Farm-type situations. To look at the legal issue that arises in relation to the amendment, we are retaining legal aid for eviction cases, including eviction from a mobile home or a caravan site. Legal aid will remain available for eviction from an unauthorised development, subject to the means and merits tests, as apply in other cases. It is important to distinguish those cases from situations where people have set up unauthorised encampments. So there is a difference between an unauthorised development and an unauthorised encampment on a site that they neither own nor have permission to enter. In these circumstances, they would be outwith the scope, as I have indicated; but if the issue is one of an unauthorised development on property that they own and have a legitimate right to be there, legal aid would be available.

Amendments 87 and 88 refer to “trespass to land” in Part 2 of Schedule 1. Amendment 88 concerns cases where the client is trespassing on land, including land surrounding a building, but is not trespassing in the building itself. I recall in a debate that we had last week under an amendment moved by my noble friend Lord Carlile of Berriew that we sought to reiterate that the reference in this part of Schedule 1, specifically to “trespass to land”, is not intended to generally exclude matters falling within Part 1 of Schedule 1 that involve trespass to land but to generally prevent funding for the tort of trespass to land. I indicated during last week’s Committee debate that we are giving active consideration to the exclusions in Part 2 of Schedule 1 generally to ensure that the drafting fully delivers on that particular intention. Clearly, we will look at the particular issue raised in regard to the specifics of trespass to land in this context when looking at whether the Bill as drafted delivers what is intended.

Part 2 of Schedule 1 generally excludes funding for tort claims, because they are primarily concerned with money and alternative funding arrangements can be made available through conditional fee agreements. However, tort claims for trespass to land are not excluded under the Bill where they concern allegations of the abuse of position or power or a significant breach of human rights by a public authority.

The debate has ranged more widely, and I am sure that if the House has not debated the wider issues in recent times, they merit a debate sooner rather than later. The Government understand the issues here and consulted on their new draft planning policy for Traveller sites over last summer. The Department for Communities and Local Government is considering all the consultation responses and intends to publish the new policy as soon as possible. Let me just put on the record that the Government are taking measures to ensure fair and effective provision of authorised sites for Travellers more generally, which seemed to be one of the issues being raised, including providing £60 million in England over the current spending period to help local authorities and other registered providers to build new Traveller sites in consultation with local communities. Councils will also be given incentives to deliver new housing, including Traveller sites, through the new homes bonus scheme.

For the reasons given, and with some of the reassurances that I have given on the scope being not quite as narrow as has perhaps been thought, I hope that my noble friend will agree to withdraw his amendment. As I have indicated, I will certainly respond—