Legal Aid
Earl of Sandwich Excerpts(9 years ago)
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The Earl of Sandwich (CB)
My Lords, finding myself properly behind and below a formidable list of speakers, I should first explain why I entered the Chamber. As in previous debates, I remain concerned about the ability of asylum seekers, migrants, trafficked persons and detainees to obtain legal aid following recent cuts and LASPO changes. Our inherited sense of justice, backed up, as we have heard, by the ECHR Article 5, requires that we maintain the status of their claims among all the other priorities facing our legal aid system.
Many lawyers are rightly up in arms about the cutting of legal aid for all kinds of reasons—most rehearsed today. I am glad that the noble Lord, Lord Bach, is leading the review, since it is rightly a major concern of the old and new Labour Party. Family law, domestic violence, poverty and indebtedness all have their claims on public money, and I recognise that asylum and immigration generate a lot of claims and difficulties of interpretation for which exceptional case funding may well not be available. However, asylum, migration and trafficking are way down the list on the GOV.UK website, coming at number nine out of 12 things that you can get legal aid for.
I am aware that these issues are causing the Government more trouble and that the numbers keep going up, but we also have an exceptionally disturbed world, especially when it comes to Syrian refugees. Once they have arrived, we have a clear humanitarian duty to look after them until they are either safely returned home or accepted into our society. Those in limbo between those two alternatives are often detained for long undefined periods in immigration detention centres. I had the opportunity in the past to visit a number of these IRCs, such as Haslar, Campsfield, Oakington, Yarl’s Wood and Harmondsworth, and little seems to have changed since I was a member of the Independent Asylum Commission some years ago.
A year ago the charity Detention Action quoted detainees’ typical comments, such as, “I felt completely helpless”, “I was scared”, “You feel trapped”, and, “The Home Office had turned off my brain for three and a half years”. This is not the time to re-examine the law governing detention centres, the length of detention or the rules and conditions in those centres, though some of us may have that opportunity during the Immigration Bill. I mention them only because many of the inmates who are seeking legal redress, whatever the merits of the Home Office’s case against them, are still finding it difficult to get proper representation.
We forget that many detainees are not isolated individuals but have families in this country. An organisation for which I have the highest regard, Bail for Immigration Detainees, in a report entitled Rough Justice, recently looked at the cases of 102 parents who had been separated from their children by immigration detention during an 18-month period in 2013-14. They left detention between 1 April 2013 and 30 September 2014. In most cases they were detained pending deportation or removal to countries like Somalia, Iraq and Zimbabwe. Criminal convictions were often triggered by non-violent offences such as theft and false documents. Only half of these parents had current access to a legal representative, most of them to a legal aid solicitor, and 11% had never had access to a legal representative. Some 77% of the detainees who had access had to wait longer than a week to make an appointment, and one in 20 had to wait longer than a month. Fewer than half the detainees who did contact a solicitor were subsequently taken on as a client, and even among the detainees who had legal aid representation, just one in three had a bail application made on their behalf by their legal representative. The survey also revealed details of the 219 children of these detainees. Nearly all of those for whom data were available were born in the UK, and 80% were even British citizens. Most of their parents had therefore lived in the UK for long periods. One in five was deported or removed without their children.
These figures provide a fairly grim picture of a system that the Government claim to be inclusive and accessible. On the present trend of cuts and savings, which many see as inevitable, conditions are likely to get worse and exceptional circumstances are likely to be fewer. Out of 102 detainees surveyed by BID, only two were known to have applied for exceptional case funding, and only one of these was successful after a long court battle, which ties in with what the noble Baroness, Lady Dean, was saying. Having said this, I very much hope that the Minister will contradict me and point out that exceptional cases are not being reduced and that cuts in funding will not affect immigrants and asylum seekers disproportionately.
Noble Lords will know better than me that the Government have acted on at least some of the 2013 JCHR report recommendations. One sentence caught my eye:
“We remain concerned that refugees may be unable to access civil legal aid during their first few months of lawful residence in the UK”.
Given that the gateway programme is considerably expanded owing to the Syrian crisis, will the Minister assure us that the UK’s international obligations will be met and that civil legal aid will be available to all new refugees?
Assisted Dying Bill [HL]
Earl of Sandwich Excerpts(10 years, 5 months ago)
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The Earl of Sandwich (CB)
My Lords, in our last debate on this issue, when we considered the Bill brought forward by the noble Lord, Lord Joffe, I mentioned a friend of mine whose husband was kept needlessly alive after brain surgery against his wishes. He died a few years ago in considerable pain and he would have opted for an assisted death. His wife is now in her 90th year and she says that she is not afraid of death, but of the process of dying and of the prolongation of suffering in life—what she calls “this ever-present death”. Being a classicist, my friend has a Latin quotation to offer us from Pliny the Younger. In Book III.16, Pliny writes about a Roman lady called Arria, who was famous for her courage. She used the following words for her caring family when she was herself preparing for death,
“potestis enim efficere ut male moriar, ut non moriar non potestis”.
“You do not have the power to prevent my death, but you can make sure that I will die badly”. In other words, carers, with the best of motives and their undoubted skills, can also be the unwitting agents of the most horrible suffering that could be said to be worse than death itself, which then comes as a blessed relief.
Life may be sacred, and yet doctors already intervene at various critical points in people’s lives, including at the end of a terminal illness. I do not think that the church, the palliative care community or even doctors, let alone families, should have a legislative monopoly on death. Let us give that right to a small number who are suffering needlessly.
“I can’t understand why I have to go on living like this—why can’t I just die?”,
said Dr Ann McPherson, who was mentioned earlier by the noble Lord, Lord Blair. She died in terrible pain after suffering from pancreatic cancer for four years. What right has the church or any other institution to prohibit death or to prolong life in these circumstances? What right has the palliative care community to provide the ultimate comfort if it allows suffering and falls short of providing the ultimate relief? I agree that doctors are in a separate category and I admire those who already take the law into their own hands. The Crown Prosecution Service has also shown, in its own way, commendable compassion to those families who decide to go through their ordeal in Switzerland. We must be grateful for that, but it is not enough. The law does not offer proper protection.
This is a limited measure which helps only a very few; it is not the tip of the iceberg or the slippery slope. It is a humane gesture towards a small number of people who are suffering intolerably. Of course I acknowledge that there are risks, and the noble Lord, Lord Alli, set out very well what the risks on the other side are, but let us take courage like the Roman lady and take this modest step forward. I urge the House to accept the Bill.
Criminal Legal Aid (General) (Amendment) Regulations 2013
Earl of Sandwich Excerpts(10 years, 10 months ago)
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The Earl of Sandwich (CB)
My Lords, I am extremely honoured to be in this learned company and I will try not to take too much time because everything has been said.
We have been here before. I spoke in the debate of the noble Baroness, Lady Deech, as did many other noble Lords. On that occasion, I mentioned the work of the CAB. But today, like others, I am much more concerned about the effect of these regulations on young people in difficulty, including asylum seekers in detention, unaccompanied minors and even young people released from prison and wishing to make a new life. These young people would normally benefit from professional legal advice at a critical stage in their lives when they are separated from their families or being made homeless at the moment of leaving prison. Specialised agencies such as the Howard League mentioned by the noble Lord, Lord Carlile, have given hundreds of people not just hope but essential practical advice on restarting their lives. This kind of work, as the noble Lord, Lord Ramsbotham, said, characterises fairness in our society. It is not charity.
I notice that the Minister has been a member of the Select Committee looking at mental capacity, so he will be more aware than most of the special problems of the mentally ill already mentioned. Many of those people are in prison through no fault of their own. I said in the legal aid debate that those with mental health problems were especially vulnerable. There were no exceptions for children nor for prisoners accepted to have a disability. A detained child unable to identify legal issues will not have the financial resources, let alone the intellectual resources, to pay for lawyers or even to frame their complaint to the prison authority, as is suggested. That is a serious point that the Minister has to answer. It would be a serious personal crisis for young people.
A case of a 12 year-old boy was mentioned to me by the Howard League. He was an unaccompanied minor who had been detained in a secure children’s home. He had behaved well, earned himself early release and had sought help with resettlement. The lawyer concerned approached social services but only then discovered through an interpreter that he had been wrongly detained in the first place and had to appeal against his sentence. None of this will happen if cases are not referred in the future and legal aid is unavailable.
Last September, there were 1,789 immigration detainees spread across the UK in removal centres and short-term holding facilities simply waiting to be removed. Many are moved from place to place and I doubt if the Minister or anyone else can keep count of how many of them are young people. I heard from a Member of Parliament last week that one young detainee, originally from his constituency, had been moved eight times. Mental health problems loom large in these situations because no one knows when they can leave or even when they can receive a hearing. Detainees depend heavily on outside advice. This may be a subject for the Immigration Bill next month, but it is surely highly relevant to the present regulations. Is it fair to exact cuts that will impinge on young people in these conditions and restrict their lives even more than at present?
It is true that the Joint Committee on Human Rights accepted that it was legitimate for the Government to introduce a residence test, as the Minister may mention, and to restrict the scope of prison law funding. But it strongly recommended that there should be more and broader exemptions from these proposals to make it less likely that they will lead to breaches of the fundamental right of effective access to justice.
What is especially unfortunate, as the noble Lord, Lord Pannick, mentioned, is that young people in prison had been receiving much better attention over a long period. For example, the Minister will know that in 2002 there was a court ruling that the welfare and child protection duties in the Children Act apply to children in prison just as they do to children in the community.
The amount and percentage of cuts has already been discussed. They are surely disproportionate. I shall lastly mention one piece of evidence given to the Select Committee last July. I was surprised to read that the Justice Secretary had changed his mind about equal shares in legal aid work. He told the committee he had been persuaded that competition among legal providers was more essential than advice shared equally. He said:
“That is something that the market has said to me: ‘Actually, the principle of choice is one that we regard as more important’”,
than equal shares. If the market is speaking in this way, many young people and their families are going to suffer from these regulations.
Baroness Hamwee (LD)
My Lords, the noble Earl mentioned the debate in this House last July. I looked back at that and reminded myself that the title of the Motion of the noble Baroness, Lady Deech, was “Effect of Cuts in Legal Aid Funding on the Justice System of England and Wales”. I think that that was a very well chosen title because the effect of the cuts is not just on individuals but on our system of justice.
I was not going to talk about whether this was a matter of ideology on the part of the Justice Secretary. I had a look at the transcript and am not sure that that was quite the exchange about ideological differences, but I am tempted to wonder whether that was an admission or a boast.
I want to say very clearly—though noble and learned Lords, and noble Lords who are not technically learned, have put it much better than I can—that for those who are convicted and sentenced by the courts, the punishment is imprisonment. The punishment should not extend to the loss of rights, whether convention rights or at common law.
A number of threads seem to run through the Government’s approach. The first is a reference to and reliance on judicial review. I do not need to comment on the paradox in that given the policy regarding judicial review. I was not aware of the Daily Mail article quoted by the noble and learned Lord, Lord Goldsmith. I do not think that I need to spend any time on saying how undesirable it is to rely on judicial review. But I will mention the skill that is needed, at what I shall describe as first instance, to ensure that the right points are raised and dealt with in order that there is a basis for an application for judicial review. I think that that is not a job for someone who is not trained.
Another theme which I picked up from the JCHR report is that the Justice Secretary thinks that the number of cases affected will be very small. If that is so, I do not understand why the Government do not give in gracefully. We know about the cost pressures on the MoJ. We know that the Government want to focus public resources on cases with sufficient priority to justify the use of public money and to get value for money for the taxpayer. But I know that I am not alone in this Chamber in setting justice high in my priorities as a taxpayer.
What seems to be a common theme in the responses to the Government from those who work in the sector is a mention of the “see-saw impact”—that is, cuts here meaning costs there. Concerns around mother and baby units and the cost of keeping a baby in care is one example, undermining the principles of rehabilitation and the costs associated with all that. We will all have seen and read particular cases. I shall mention one which I found very compelling—the story of a 17 year-old who was given a 36-month custodial sentence. He was studying for his A-levels at the time. With the work of solicitors, who engaged in both detailed representations and liaison with a clutch of agencies, he was granted release on temporary licence to attend college part-time and then home detention curfew, and so he lost only one year of education, not the further years which were in prospect.
Of course, there is also the cost of the loss of expertise among solicitors. I have seen, and heard about tonight, a large number of points relating to costs rather than savings. We really have not got any better, have we, at joining up and reading across budgets? I have actually been defeated—my level of energy depleted—in trying to understand the savings projected as against the knock-on costs. I hope that when the Minister—who has everyone’s sympathy in this—replies he will be able to unpack this for the House.
The third theme I picked up was the emphasis on the non-judicial complaints system. I do not see this as an either/or. There should be a good complaints system. That should then alleviate to some extent the necessity for lawyers to be involved. There should be an effective system that inspires confidence. However, there are limits to the system that we have—to the powers, to the remit, which does not extend to making recommendations to external agencies or investigating them. These concerns seem rightly to have been stressed.
We have heard, although not tonight, about ambulance chasing—if that is the right term—by some solicitors in prison, soliciting work and planting the idea in prisoners’ minds that they have real claims. However, that should not mean that proper advice, assistance and representation is not available.
I do not suppose that the MoJ has found much which it regarded as supportive or constructive in the responses to the proposed changes. The House has managed to cover quite a lot of ground, and I will end by citing a point made by the Council of Her Majesty’s Circuit Judges, which noted, according to the Howard League, that:
“The practice of prison law is so unique; its impact on the most vulnerable within society so profound; and the potential savings suggested by these reforms so limited at best, and so obscure in any event, prison law should be removed altogether from the scope of the legal aid reforms”.
Legal Aid
Earl of Sandwich Excerpts(11 years, 5 months ago)
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The Earl of Sandwich
My Lords, I congratulate my noble friend on winning the ballot for the Cross-Bench debate and on drawing our attention to this issue. It is a situation that concerns lawyers, of course, but only in relation to a much wider constituency of clients. As a non-lawyer, I have rarely received so much material for a debate, and most of this comes from individuals whom I trust to give a fair picture of what is happening. As the noble and learned Baroness, Lady Scotland, has already said, it has been quite moving to receive briefings and advice from a range of organisations which have a genuine concern for people in need. It is as simple as that. I have the highest regard for the CAB, for example. My sister worked for it voluntarily and I know that its specialists are like personal counsellors. They are often the very last resort for people in great personal distress.
The Minister will know from his previous incarnations that organisations such as BID and ILPA not only have a good track record in their field but they are the only ones that will stand by the most vulnerable groups in society, such as refugees and the homeless. I would go further than that. In the absence of government, they are effectively the government in their particular field in that they may be the only service-providers available. Of course, one of these services is legal aid.
As the Minister is bound to point out, none of these non-governmental organisations has the responsibility that government has in a recession. We all have to recognise financial necessity on a national level but they have to deal with the finance of individuals. They know better than anyone in government what the real costs of recession are to ordinary people on the brink of survival.
All these organisations are linked by a common purpose and they are all clear about what needs to be done in forthcoming legislation. They want the Government to understand that judicial review is the key way in which people can challenge decisions by public bodies. They want the Justice Minister to reconsider his refusal to fund the initial stages of judicial review, including the critical preparation of the evidence. They want the residency test modified to extend eligibility to currently excluded groups, such as babies under 12 months of age and asylum seekers. Asylum seekers will be allowed to access legal aid while their application is pending but, once they are granted asylum, they must wait a further 12 months, even if they have already been here for more than 12 months, before they can receive civil legal aid on any new matter. This can be discriminatory because refugees fleeing persecution abroad may be denied equal access to justice for longer than those whose residency arises from other causes. These organisations also want a fairer tendering process. They want contracts to be worded to ensure that appropriate adjustments are made to meet specific cultural, geographical and financial needs. They would also like the Government to undertake a review of quality assurance schemes to help consumers of legal services to identify reputable providers.
Here, the comments of the noble and learned Lord, Lord Neuberger, on 18 June about the quality and amount of legal aid must have given the Government food for thought. Essentially his warning was about cut-price litigation leading to unrepresented litigants and worse lawyers.
All the people giving evidence to the Justice Select Committee agreed with the Law Society that a 17.5% cut in fees on top of PCT in the case of criminal legal aid was unsustainable, even for large firms. The Secretary of State seemed to accept some of the Law Society’s ideas when he welcomed the model on client choice of solicitor. However, apart from the effect on the legal firms, as the noble Lord, Lord Faulks, pointed out, there is a real risk of diminution of advice at a local level. On that, the Bar Council says:
“We are concerned that access to legal aid via the nationwide network of high street law firms will be undermined as 1,200 out of 1,600 firms will be forced to close or pull out of legal aid. The advice ‘deserts’ we already see in some rural areas will spread more widely, making it harder for millions to get the right advice and support”.
On asylum-seekers in immigration detention, mentioned by the noble and learned Lord, Lord Irvine, there are many concerns that I have no time to mention. ILPA lists challenges to detention, applications for bail, judicial reviews of unlawful detention, habeas corpus applications and applications for damages for unlawful detention. I am tempted to quote from the Bail Observation Project’s latest report expressing views on the lack of justice in immigration hearings but I suspect that the Minister will already be familiar with that report.
Finally, I was shocked to hear from the Islington Law Centre only this afternoon of some of the effects of the proposed legislation on the more vulnerable prisoners that it works with. It says:
“We note with dismay that there are no exceptions for children, and those prisoners who are accepted to have mental health problems, a disability or other vulnerability, including those who may not have legal capacity. For example, a detained child who will be unable to identify legal issues, will not have the financial resources to pay for lawyers ... Such a child or person of any age with a mental health problem or other relevant disadvantage ... will have no means by which to fully frame their complaint to the prison authority”.
That speaks for itself. I am not convinced that the Government have sufficiently taken account of the most helpless people in our communities, and I look forward to the Minister’s positive response to these concerns.
Crime and Courts Bill [HL]
Earl of Sandwich Excerpts(12 years, 5 months ago)
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The Earl of Sandwich
My Lords, I am not sure that the Minister answered the point made by the noble Lord, Lord Avebury, about the relative inexperience of the Upper Tribunal in immigration. He quotes the wise and the good, and we have heard from the noble and learned Lord, Lord Woolf, but surely we are not making a decision on the basis of advice only but on the actuality of the court over the period.
Lord McNally
The point was made that the Upper Tribunal over the past three years has demonstrated very clearly that it has both the experience and the expertise to deal with these matters. The Upper Tribunal’s expertise in reducing backlogs in the Administrative Court has been demonstrated. I do not have the most up-to-date figures on UKBA withdrawals, but in my closing remarks I accepted that one issue was the UKBA’s tendency in the past to withdraw objections. Reforms that are being taken forward by my right honourable friend the Home Secretary aim to deal with some of those criticisms of the UKBA.
However, that does not take away the central thrust of this proposal that since 2009 the Upper Tribunal has shown itself to be working well, and we are not rushing our fences in this case. Both the Lord Chancellor and the Lord Chief Justice will be closely involved in gauging the movement of cases to the Upper Tribunal, but no one has seriously doubted its competence or expertise to deal with these matters. On the contrary, it has shown itself to be remarkably efficient at cutting time for dealing with cases, which must be in the interests of justice.