Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Avebury]

Will my noble friend allow me—

[Lord McNally]

No. I have been here for two hours—

[Lord Avebury]

So have I.

[Lord McNally]

And I have heard a lot. The House has to move on. We want to get through Schedule 1.

This is not a debate about who cares most; it is about whether this House is willing to take the tough decisions that our economic situation requires, or whether it is simply going to push the problem down the corridor for the other place to take those decisions. That is it, because the other place will have to take those decisions whether we do so or not.

I believe that these amendments dismantle the central architecture of the Bill and our reform programme. As a result, as I have said many times, it will come as no surprise to the House that we have had to make these difficult choices about legal aid, as we have done with every aspect of MoJ expenditure. I know that we are debating issues about which noble Lords care deeply; I do not think there is any monopoly on that. There will be noble Lords who will follow me into the Lobby tonight who have just the same—if I may use the words of the noble Lord, Lord Carlile—“determinations of principle and conscience” as those who will not.

I remind noble Lords that the reform programme is specifically aimed at protecting the most vulnerable. The noble Lord, Lord Bach, talked about the social welfare programme being “decimated”. We will still be spending an estimated £120 million a year on funding for private family law; £50 million on categories of social welfare law; an extra £10 million a year on mediation; £6 million on clinical negligence; and £2 million on education.

We are keeping legal aid for child parties in family proceedings. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We are keeping legal aid for people with mental health problems or who lack capacity for cases that determine their vital interests, and for advocacy in front of mental health tribunals. Legal aid will be retained for judicial review of welfare benefit decisions, and for claims about welfare benefits relating to contraventions of the Equality Act 2010. We will agree to extend funding to victims of human trafficking and domestic child abduction—something I know that the noble and learned Baroness, Lady Butler-Sloss, is interested in.

Our reforms have been deliberately designed with these cases in mind. Crucially, as I said in the House on Monday, we will amend the Bill to enable the Lord Chancellor to bring areas of law back into the scope of legal aid. When the noble Lord, Lord Phillips, rose, everyone groaned that there was nothing more that could be said. But I congratulate him on being the first to mention what was a very significant concession by the Government, in that what was a ratchet in the Bill is now a regulator. If some of the doom and gloom is proved to be true, the scope is there to respond to those facts.

While we are clear that our reforms are the right ones, we believe that this is an important amendment. As has also been said, the Treasury has announced that additional funding in this spending period will be available for the not-for-profit sector. As noble Lords know, we believe that in many social welfare cases it is not legal advice that people want; it is simply advice. We will support the advice sector to do just that. While we appreciate that many people rely on welfare benefits, these decisions are made in a tribunal, which is a court especially designed to ensure that claimants do not require legal representation. They are also primarily about financial entitlement and do not raise such fundamental issues as cases concerning liberty or safety.

As I have mentioned, the Government are committed to ensuring that not-for-profit advice, as well as other forms of welfare benefit advice, remains to ensure that claimants are clear about what they are entitled to claim and how they can seek redress. However, as those colleagues who have sat in another place and have advised constituents in these areas can testify, legal advice is not required in all these cases. That said, legal aid will be retained for the judicial review of welfare benefit decisions and for claims about welfare benefits relating to a contravention of the Equality Act 2010.

Amendments 21 and 46 concern legal aid for children and vulnerable young people but, as I have already said, it is simply not true to suggest that there will be no funding for cases involving children and young people. These amendments seek to bring into scope certain civil legal services for any person aged 24 or under who has a disability, is a former care leaver or a victim of trafficking, or has other vulnerabilities as prescribed in regulation. I should at this point tell the House that the Government intend to table an amendment at Third Reading on legal aid for victims of trafficking and claims for compensation.

The Bill also has important safeguards for children and adults who lack capacity or require treatment for mental health issues. Paragraph 5 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual: that is, medical treatment including psychological treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, the capacity to enter into sexual relations or the right to family life.

Paragraph 5 of Part 1 of Schedule 1 provides that legal aid may be made available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning the medical treatment of patients or those who lack capacity. Paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the mental health tribunal. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope. The exceptional funding scheme will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as rights to legal aid that are directly enforceable under European Union law.

On Amendment 46, about children, we are already keeping legal aid for child parties in family proceedings. Therefore, part of this amendment is superfluous. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them. I have already mentioned that the Government recognise the importance of funding in a range of cases where children’s interests are key. That is evidenced in how we have proposed to allocate legal aid funding by protecting funding in those areas that specifically involve children.

I am very willing to meet my noble friends and others who have asked to meet me between now and Third Reading, but I cannot make promises or give guarantees. We have retained legal aid for child protection cases and civil cases concerning the abuse of a child, as well as for cases concerning special educational needs assistance. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings. In civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s “litigation friend” rather than the child themselves. This is a normal part of the rules on civil litigation; the civil justice system as a whole does not generally require children to act on their own behalf.

We have also made it clear that one of the key criteria for the exceptional funding scheme is the ability to represent yourself. This will obviously be relevant where a child is bringing an action without a litigation friend. We must also ensure that we do not create a loophole in the system through which lawyers might encourage parents to attempt to bring civil litigation in their children’s name purely to secure funding that is otherwise outside the scope of this area of the law.

Amendment 45 seeks to make legal aid available for private family law cases where, in the course of mediation, the mediator has identified issues pointing to potential child abuse, a point addressed by the noble and learned Baroness, Lady Butler-Sloss. Legal aid will remain available on a means and merits free basis for public family law proceedings where a local authority seeks to take a child into care, at a cost of around £300 million a year. Legal aid would also be available in private family law proceedings where a child was at risk if those proceedings were an alternative to public law proceedings. An example of this would be legal aid for a special guardianship order for grandparents where the local authority had decided that this would be a preferable solution to taking a child into care. We have also expanded our original proposals on providing legal aid for private family cases where domestic violence is present to include evidence of child abuse.

The child-specific evidence here is the fact of a child protection plan as put in place by a local authority, although other types of evidence relevant in domestic violence cases would also apply. This is particularly relevant in respect of Amendment 45, which would use the evidence of a mediator to qualify someone for legal aid. It is of course important that a mediator reports any suspected child abuse to the local authority, and mediators are obliged to do so under their code of conduct. The local authority would then investigate, and if the mediator’s suspicions were confirmed, where relevant it would put a child protection plan in place. Alternatively, the authority may start immediate public law proceedings. Either way, legal aid would then be available either for private or public proceedings. Such a system ensures the well-being of the child, which must be the priority, but it would seem slightly strange to pre-empt the results of a local authority investigation by granting legal aid for a private family matter. Of course, if there was an emergency and the local authority for whatever reason was not taking action, legal aid would be available, with the benefit of a financial eligibility limit waiver, for someone to take out a protective injunction. Legal aid would also be available where a subsequent local authority investigation found that the issues were substantiated and a child protection plan put in place. The safeguards in the Bill are sufficient to secure the safety of children, and legal aid where it is needed.

Amendment 101—I see the humour in the number—seeks to include a power in the Bill to fund the not-for -profit sector to do work that is outside the proposed scope of the civil legal aid scheme. I can assure the House that we have been listening to the concerns raised about the sustainability of the not-for-profit sector, and we agree with many of them. As I listened to the noble Lord, Lord Newton, I recalled one of the advantages of a long life. One of the few successful things I did when I was in the House of Commons was something that I think cost the then Tory Minister, Gerard Vaughan, his job. He tried to cut CAB funding. I do not know whether the noble Lord, Lord Newton, was a member of the Government who sought to cut CAB funding at the time, but it just goes to show that what goes around, comes around. The Ministry of Justice already has the power to provide grants to not-for-profit organisations. For example, we are already funding the Money Advice Trust, a not-for-profit sector organisation that is responsible for running National Debtline.