Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Tuesday 27th March 2012 Lords Chamber

[Baroness Eaton]

My Lords, I speak in support of the children’s amendments moved and spoken to by the noble Baroness, Lady Grey-Thompson, and my noble friend Lord Cormack. I should like to add my thoughts on Lord Newton, who kindly supported the amendment. I know that we will all miss his integrity and compassion in all our debates, particularly around these sensitive subjects. I also thank the noble Lord, Lord McNally, because I and other noble Lords have had a number of conversations with him, and he has been most gracious in his dealings with us. However, I still find myself in the unhappy position of being unable to support the Government’s intention to remove the clear and straightforward right to legal advice for children under 18 generally, and for all children who are injured in clinical negligence cases.

The Bill as it stands draws a distinction between, on the one hand, any child who suffers brain damage as a result of medical negligence before the age of nine weeks, and, on the other, any child suffering injury of any other kind caused by medical negligence—including a child who suffers from brain damage when they are nine weeks and one day old. Let me tell noble Lords about a Plymouth boy who suffered brain damage at the age of one when doctors at the Frenchay Hospital in Bristol failed to follow up a suspected aneurysm. Months later, he suffered a devastating bleed in his brain, which would have been avoided if the correct procedure had been followed. The boy will require care for the rest of his life; he cannot talk and will never be able to work. A settlement with North Bristol NHS Trust at the High Court in November 2011 will help to provide care for the rest of the boy’s life. He is now 10. The case could not have been started without legal aid, which would not be available if the Bill were to pass unamended.

I simply do not see how children who have been injured in these often heartbreaking circumstances can be divided into two groups in this way. We would allow legal aid for a baby suffering brain damage at birth, but deny legal aid to a baby suffering brain damage in hospital at the age of one. Or we would prevent a child who has been paralysed from seeking help. Just imagine two babies at two weeks old in the same hospital. One is brain damaged and the parents can seek support on their behalf, while the other is paralysed and the parents cannot get legal aid.

Are we really saying that a brain-damaged child who can walk needs more care and support than a child who has to be carried to the bathroom and turned in bed during the night? The severe difficulties facing the child’s parents will be exactly the same in both cases. They will be desperate for help. They will want to know whether they have a legal case and, first and foremost, they will be giving their child the day-to-day care and love that all parents must, whatever the difficulties.

Are we really going to ask half of those parents to appeal to the director of legal aid casework to see whether their child qualifies for legal aid as an exceptional case—as if that would be a satisfactory way to organise legal aid for children even from the Government’s point of view? I ask noble Lords to consider the expense, bureaucracy and delay that will result from such an approach.

I have highlighted medical negligence but, as a former leader of a local authority, I could go through each subject heading and make a similar case. The simple truth is that children are defined as minors in law because they cannot represent themselves and sometimes need protection and redress from their families and from the state. It is not good enough to suggest that a social worker can apply for their legal support as an exceptional case. Social workers are not legal executives and have no legal training. Inherent in that suggestion is a misunderstanding of the nature of the legal actions that may be taken. In most cases, the child will be challenging a decision or action taken by the local authority. Do we really believe that every social worker will apply for a child to have legal aid in cases which challenge his or her decisions or those of his or her employer?

All of us in this House understand that in a healthy democracy, it must be possible to challenge the state, particularly where children are concerned. We also understand that there are lots of terrible cases where children’s voices have not been heard, which is why we need to ensure that they can take independent legal advice that is accessible directly, not via a social worker or any other arm of government.

I support the amendments because I believe that they will save an enormous amount of trouble and wasteful expenditure for the Government, whom I support. I want to help the Government to pull back from what would be a regrettable and avoidable mistake, and they will save a great deal of anxiety for parents who are already coping with more than anyone should have to bear.

[Lord Avebury]

My Lords, I would have been inclined to support the amendment if I had not been here to listen to the debate and heard what my noble friend had to say, which appears basically to contradict the argument just made by the noble Baroness, Lady Eaton. She was saying that in the case of the infant who died at Frenchay Hospital, the case could not have been brought if legal aid had not been available; but my noble friend said that it was preferable, in terms of the amount that the litigant would receive, to conduct a case of this sort through the conditional fee arrangements which are now available. The litigant would have ended up with more money than would have been available to the child under the arrangements that prevailed at the time of that terrible accident.

I should like to hear from my noble friend when he winds up whether it is a general principle that can be accepted on all sides of the House that people who were formerly legally aided would have done worse than those who are now to be conducting their cases under the CFA. Saying that we do not need an arrangement of the sort put forward by the noble Lord, Lord Cormack, is a very powerful argument.

I also thought that perhaps the noble Lord had failed to notice that in all these cases involving children there is a litigation friend, who has to be approved by the court. Therefore, his comment that we are looking at people who are least able to help themselves may not be altogether valid. The parent or a suitable adult always appears on the child’s behalf and the child does not have to go into the court without that support. Therefore, although children may be apparently less able to conduct litigation, they do not have to deal with these matters in the court; litigation friends appear on their behalf.

[Lord Cormack]

I am well aware of that but the point that I was seeking to make in a very brief speech was that those who are damaged by an agency of the state deserve the help of the state automatically if they are seeking redress.

[Lord Avebury]

I am not sure that that proposition is right. I do not think that my noble friend had borne in mind the possibility that the child would do better financially under the CFA. That is a very important consideration. In fact, in my mind it is the determining consideration in how I approach this amendment. If the argument of my noble friend Lord Thomas of Gresford is correct, it is conclusive that we should not support the amendment but that we should allow cases to go forward under the CFA, under which people will be better compensated than they would have been.

[Baroness Massey of Darwen]

My Lords, I have put my name to an amendment in this group—that in the names of the noble Baroness, Lady Howe, and others. I simply make one appeal to the Government concerning their commitment to protect vulnerable children and young people.

I declare an interest as the chair of the All-Party Parliamentary Group for Children. Over the past year our theme has been vulnerable children. We have heard about the problems that such children and their families have in dealing with complex systems such as education, health and the law, and we have heard many passionate and committed speeches about these young people today. In my experience, this House has never been party-political on issues regarding children; it has always considered the well-being of children to be above party politics. That spirit has been shown today on the Benches opposite, and long may it continue.

The Minister for Children, Sarah Teather, for whom I have the greatest respect, made a commitment in 2010 to assess legislation against the needs of children, as enshrined in the United Nations Convention on the Rights of the Child, and I find it ironic that we are now considering legislation that will potentially damage vulnerable children and their families. The Government, in their report Positive for Youth—I shall not go into that but the commitment is there—made commitments to protect disadvantaged and vulnerable children, and the Liberal Democrat youth policy Free to be Young makes commitments to improve young people’s access to legal advice. I think we should all remember those commitments today. I trust that the Government will recognise that intervention at an early age, particularly for the vulnerable, is not only humane; it also benefits well-being and is cost effective. I hope that the Government will look again at the commitments to vulnerable children and young people.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, it is unfortunate that the amendments tabled on this important subject by the noble Baroness, Lady Miller of Chilthorne Domer, should have been reached so late at each successive phase of our consideration—in Committee, on Report and now at Third Reading. It is unfortunate because the House is less full than it might have been, and it is much more difficult at this stage of the evening to win a vote on an amendment opposed by the Government. If it is unfortunate for her, though, how much more unfortunate is it for homeless and vulnerable people all across the country? They will be deeply grateful to her for the passion, determination and eloquence with which she has pursued this subject, and we ought also to thank her.

We face a housing crisis in this country, and that crisis is deepening. I am grateful to the noble Baroness, Lady Northover, for the letter that she wrote to a number of us following a debate on Report on squatting. She herself has acknowledged that while the nature of the case means that it is difficult to know precisely how many people may be squatting in this country, the best estimate by academics, homelessness organisations and people who provide advice services to squatters is that there are no fewer than 10,000 people squatting and possibly as many as 50,000. Those are large numbers and those statistics, uncertain as they are, underline the gravity of the issue all the same.

What are the Government doing to respond to this problem? It so happens that today the Government have published the national planning policy framework. It is an important document with an extended two-page section in which the Government offer their thoughts on:

“Delivering a wide choice of high quality homes”—

words that may sound a little hollow to those who are homeless and those who are squatting. However, there are good intentions in the document. It is a vigorous exhortation to all concerned to act to increase the supply of housing in this country. There is a section at paragraph 51 that is very relevant to the amendments tabled by the noble Baroness:

“Local planning authorities should identify and bring back into residential use empty housing and buildings in line with local housing and empty homes strategies and, where appropriate, acquire properties under compulsory purchase powers”.

If local authorities were to act on that exhortation, that would be helpful. I would be grateful if the Minister would say how much more the Government intend to do to translate that aspiration and exhortation into an effective and practical reality. I am concerned that even where local planning and housing authorities will wish, as I am sure they will, to increase the supply of housing available for people in desperate need and to follow the particular advice that I have just quoted, it may not be easy for them because their resources have been much reduced and we are now just entering a phase in which local authorities are having to face the first and biggest part of a reduction of some 30 per cent in available resources. If they decide that they would like to use compulsory purchase powers, it is not clear to me how they are going to be able to afford to do so.

The Government’s broader economic strategy has, unfortunately, squeezed both growth and confidence, as the Chancellor was driven to recognise last week. The upshot is that the housing market is pretty well dead in the water. People do not have the confidence to apply for mortgages and bankers do not have the confidence to offer them, so house builders cannot find a market. While the private sector of housing development is stagnant, the Government have seen it as appropriate drastically to reduce funding for social housing construction. In the face of a rising population and rising demand, particularly at the lower end of the market, we are seeing reduced supply. The consequence is that rents are rising, and in the face of rising rents the Government have also judged it right to cut housing benefit severely.

The Government have also introduced their new policy for council tax benefit—a fixed budget for each local authority to limit the total that it can spend on the benefit. Our late friend and colleague, Lord Newton of Braintree, whom we all miss so much, spoke on that very topic in our debates on the Welfare Reform Bill. He asked what the position would be if there was a fixed budget for council tax benefit in a local authority area but a factory closure meant that it had to be spread across a larger number of people. He said that it was mad—that was the word that he used—and I think it is.

The noble Baroness, Lady Miller, is absolutely right to pull us up on this and to insist that, in the face of these circumstances and against the background of these other policies, now is not the time to criminalise people who may be driven by circumstances to fairly desperate actions, and to squatting in particular. It is not the time to criminalise them if they squat in a residential premise that has been unoccupied for 12 months and for which there is no planning application. She is also right to ask the Government, at the very least, to postpone implementation of this clause until they have conducted a thorough consultation with people across the country and on the ground who understand these issues. It is of course late. However, if the noble Baroness decides to test the opinion of the House, I will enthusiastically support her.

[Lord Avebury]

My Lords, I shall add only a few sentences to what the noble Lord, Lord Elystan-Morgan, said about the undesirability of creating new criminal offences unless there is a substantial reason to do so. Surely that argument is doubly important when the offence carries a term of imprisonment, in this case of up to 51 weeks. We all know—I thought that there was general agreement on this—that short sentences are harmful, leading to greater recidivism on the part of those so imprisoned.

If we are to create these new offences, there have to be extremely powerful arguments in their favour, whereas here the exact opposite is true. I will not rehearse all the reasons that have already been given by noble Lords as to why these provisions are unnecessary and harmful. However, keeping houses empty for more than a year is to be discouraged. People whose homes are occupied by squatters already have effective remedies. In the consultation, not only were 96 per cent of respondents against the clause, but that included the substantial opinions of such organisations as the Law Society, ACPO, the Criminal Bar Association, Liberty, Shelter and Crisis. There is also the fact that homelessness is increasing rapidly. For all these reasons, I hope that the Government will see reason and accept my noble friend’s amendment.

[Baroness Howe of Idlicote]

My Lords, I commend the noble Baroness, Lady Miller, on her persistence in pursuing this issue. Over time, she has opened our eyes to just what is involved.

The noble Baroness, Lady Hamwee, raised the question of homelessness and housing supply. One of the things that worries me a lot is the number of blocks of flats that are blocked up over huge areas and have been, I should have thought, for a good 12 months. They are areas of housing that could have been redeveloped much earlier if there had been any sense of urgency about getting on with that sort of building. We all know that there is a great deal of replacement of existing buildings in this country; it goes on the whole time. We know that we are in a financial crisis and that there are many people out of work who do not have the money to pay rent. I commend noble Lords to remember that just outside our own door, at the entrance to the Underground, one can find signs of people sleeping there at night. They sleep on the cold stone with their tiny bits of property literally outside the entrance to the Underground and cover themselves up with cardboard boxes as best they can. It is hardly a good advertisement for what we are doing to help those who are genuinely homeless.

I would like the noble Baroness who is responding to the amendment to concentrate on how many premises remain empty when they could be inhabited by families. That is no doubt a factor that increases rents. I will leave it at that. However, I have certainly begun to think rather more seriously about the issue than I did when the noble Baroness, Lady Miller, first raised it.