Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Beecham]

My Lords, like the noble Lord, Lord Best, I have the benefit of having received a briefing from Shelter, which in my case was sent with a covering letter from a solicitor of a very highly reputed firm. He says:

“I can readily attest to the importance of being able to advise clients upon their welfare benefits problems within the context of housing possession proceedings. It is very often the benefits problems that have resulted in the possession proceedings being issued in the first place”.

He goes on to say that it is far more cost-effective if the legal representative is able to help resolve the problems,

“whilst assisting in defending the possession proceedings themselves”.

Shelter is heavily involved in dealing with cases of housing benefit and support for mortgage interest where problems arise. Sometimes there are issues of delay but frequently errors are made in adjudicating on the amount of benefit or mortgage interest support that is to be made available. As the briefing says, unless that underlying problem is resolved, there is no hope of somebody whose home is threatened with repossession ever meeting the rental or mortgage payments and clearing any arrears. Significantly, Shelter deals with thousands of cases in which tenants have not received the housing benefit to which they are entitled and who would have been evicted but for its intervention. It is a complex world and it is not surprising that mistakes occur. I am not being unnecessarily critical of those who have to deal with a very large case load of benefits. Nevertheless, there is clearly a significant number of cases where the wrong decision is made and this can lead to very significant hardship.

Apparently, ministry officials have said that the mixed-case rule will allow for matters out of scope to be brought back into scope if it was otherwise impractical to run the case. However, Shelter points out that the rule excludes the kind of help that it is particularly capable of deploying, which is the most useful sort in resolving some of these cases—that is, dealing with the housing benefits department through letters and calls to sort out an incorrectly paid claim or one which has not been paid at all. Nor, apparently, does the mixed-case rule allow for backdating or appeals. That would lead to precisely one of the elements to which the noble Lord, Lord Best, referred, which is more adjourned hearings with a waste of tribunal and court time and, ultimately, probably more possession orders.

It is worth mentioning an interesting case cited by Shelter of a client to whom it had given advice as the latter had received a notice from his local authority seeking possession. It transpired that the Shelter adviser found that the possession claim was due to rent arrears caused by the same local authority failing to assess housing benefit properly. It dealt with a revision of the housing benefit decision and got six months of backdated housing benefit. The arrears were cleared and the notice was withdrawn. However, without Shelter’s assistance provided under the legal aid scheme, that simply would not have happened.

The briefing goes on to deal with a number of matters that were discussed in Committee. A series of points made by the noble Lord are rebutted in the briefing. In particular, the noble Lord indicated that while many people rely on benefits, they are primarily about financial entitlement and they have a lower importance than the liberty or safety of the person. He has used this phrase a number of times as we have debated the Bill. It is obviously true but it does not take us very far in dealing with the very difficult problems that people have to face short of losing their liberty or safety. Losing their home must be one of the more traumatic experiences that anyone has to suffer. Shelter points out that unless advisers can look at the underlying problems that cause the arrears, they will simply be unable to stop people losing their homes. It is not, therefore, simply a question of people going to someone to resolve a problem on the basis of advice. There is more to it than that.

Equally, the Minister, as an example, said that factual advice was available for Jobcentre Plus. As the noble Lord reminded us, housing benefit is likely to move towards Jobcentre Plus or, at any rate, the DWP. He referred also to the benefits inquiry line and the tribunal itself. However, Shelter points out:

“There is little or no overlap between the legal advice funded by legal aid and the sort of factual advice on entitlement offered by Jobcentre Plus”.

It is not equipped to deal with the complexities that Shelter has become used to dealing with. The tribunal, which is there to adjudicate between the parties, is not there to represent or assist one party against the other.

Finally, the Minister observed:

“Legal aid will be available to help tenants engage with landlords to try and resolve the actual or threatened possession issue wherever possible, including … delaying the possession matter until the benefit matter is resolved”.—[Official Report, 18/1/12; col. 697.]

However, that assumes that landlords are willing to wait. That is not Shelter’s experience. It is clear that,

“landlords will not agree to delay the possession matter unless they are assured that”

the tenant,

“will be actively assisted in resolving the benefits problem”.

That is an assumption that may be difficult to satisfy a private landlord about. There are sometimes, by necessity, delays and difficulties in resolving those issues, particularly without legal aid and advice being available.

The amendment is, as the noble Lord, Lord Best, said, confined to one issue. Other issues will be covered by legal aid—notably serious disrepair. Several other housing issues might have been brought forward by way of amendment, but it is clear that the Government will not accept them. I join the noble Lord in urging the Minister to look more sympathetically at this issue, given the serious consequences that can ensue and that could have an impact on other elements of public expenditure. If a family is evicted, one may find that the costs of rehousing fall on the public purse—perhaps even the costs of taking children into care and so on. That is less likely to happen when the landlord is the local authority, but it might well arise in the private sector. The economics are not therefore as straightforward as even the noble Lord would suggest. I hope that there will be a sympathetic response—if not tonight, then before and at Third Reading.

[Lord McNally]

My Lords, I listened with care to the views of the noble Lord, Lord Best, on matters concerning housing. However, our existing proposals make sensible provisions to keep people in their homes. Notably, they already preserve legal aid for advice and assistance for those facing immediate risk of losing their dwelling, whether the cause is housing-related or a consequence of welfare and debt issues.

Crucially, legal aid will be available when repossession action is contemplated, for example where a person is threatened with repossession action. Our plans do not mean that a case must reach court before legal aid is available. Therefore, for example, legal aid would be available on reaching agreement with a landlord to delay threatened possession action pending the resolution of a welfare benefits issue. In addition, in cases where possession proceedings have already started, legal aid could be used to argue for an adjournment if, for example, the individual is likely to be in a position to make the necessary payments if the benefits dispute is resolved in their favour.

Some argue that we need to fund welfare advice earlier to prevent problems escalating, but, crucially, what people often need is general advice on, for example, benefits, debt or housing, not specialist legal advice. That is one reason why we were pleased to announce that additional funding will be made available in the Budget for citizens advice bureaux on a sustainable footing. We recognise that many people rely on benefits, and my department is working with the DWP as part of the wider welfare reform programme to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and a system of subsequent tribunal appeals.

In addition, the Bill ensures that legal aid will continue to be available in judicial review about welfare benefit decisions and benefit matters which relate to the Equalities Act 2010. Noble Lords may not agree with the choices we are making, but I hope that they recognise that our proposals represent a genuine attempt to ensure that people can get access to legal advice on the most serious issues.

To cover one or two points raised, the noble Lord, Lord Howarth, asked about when a benefit appeal is lost and people are facing homelessness. Where the client loses their benefit appeal and subsequently faces action for rent or mortgage arrears that place the home at risk, legal aid will be available, including, for example, to negotiate with mortgage lenders, but it will not be available for welfare benefit matters. Where the benefit dispute is ongoing at the point where repossession action is taken, legal aid will be available in relation to the action. Legal aid could be used to argue for adjournment of possession, as I said.

On the point made by the noble Lords, Lord Beecham and Lord Best, and others, that changes will mean more serious cases resulting in homelessness, we recognise that early advice can be helpful in a range of contexts. However, as I said, people need general advice. Where a debt or welfare benefit problem places individuals at risk of immediate risk of loss of their home due to, for example, rent arrears, legal aid will be available.

The noble Lords, Lord Howarth and Lord Beecham, both referred to the research by Citizens Advice, which has certainly not been short of resources for its lobbying activities. I note what Citizens Advice states in Towards a Business Case for Legal Aid. Although we have read that research with interest, it did not contrast the outcomes of legal aid recipients with those who did not receive legal aid, so our view is that the evidence is not sufficiently robust to allow the conclusions drawn about the impact of advice. That said, we recognise that early advice can be helpful in a range of contexts. However, what people often need is general advice. We propose focusing our limited legal aid resources on those cases which need it most: disabled people in dispute with local authorities about care needs; people detained under mental health legislation; or parents who are facing the removal of their children by social services.

We do not believe that we have got it very far wrong on housing, and I hope that the noble Lord will withdraw his amendment.

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[Lord McNally]

My Lords, with this amendment we intend to extend the scope of civil legal aid in Schedule 1 to include civil legal services provided in relation to terrorism prevention and investigation measures. The Terrorism Prevention and Investigation Measures Act 2011 replaced the old control order regime with TPIMs. TPIM notices impose measures on an individual for purposes connected with protecting members of the public from the risk of terrorism. The current legal aid scheme provides for civil legal services to be available in relation to control orders and TPIMs, and we intend to make similar provisions in the new scheme. This is consistent with our commitment to fund legal services where restrictions are placed on a person’s liberty. I beg to move.

[Lord Beecham]

Without prejudice to one’s views about the change from control orders to TPIMs, I can give an unqualified welcome to the Government’s amendments. I congratulate the Minister on ensuring that legal aid is available in these cases.

Amendment 79 agreed.

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[Lord McNally]

My Lords, Amendments 86 and 87 are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998. Again, I have written to noble Lords explaining the rationale behind the amendments and again give them the assurance that these are technical amendments. If noble Lords want a longer explanation, I am willing to provide it, but I hope that they will accept them as technical amendments. I beg to move.

[Lord Beecham]

My Lords, I hesitate to ask for a longer explanation, but perhaps a slightly longer explanation would help me. Others of your Lordships may have grasped the full implications of the amendment; I fear that I have not quite. It is not clear to me whether as a result of the amendments any claims brought under Section 7 of the Human Rights Act remain outside scope or are brought within scope. I confess that I do not recall having seen the relevant part of the noble Lord’s letter. Section 7 of the Human Rights Act seems to cover an extraordinary range of really quite serious issues. It would be unfortunate if they were to be excluded from scope, but perhaps that is not the intention of the amendment. If the Minister would be so kind as to elucidate, he need not feel that he has to do so at length this evening but could write me a short note.

[Lord McNally]

No, I fully appreciate the noble Lord’s position. We are aware that the current wording in paragraph 12 could be read as preventing funding for claims which involve a breach of convention rights, even where the client is not seeking damages under the Human Rights Act 1998 for that breach. The amendments are intended to make it clear that paragraph 12 of Part 2 excludes only a claim for damages for a breach of convention rights which is brought in reliance on Section 7 of the Human Rights Act 1998.

As I have said previously, the Government’s view is that damages claims are generally of a lower priority for funding than other claims; for example, claims concerning domestic violence or homelessness. Therefore, the Bill allows funding only for damages claims in certain areas. These include in relation to a contravention of the Equality Act 2010 or a previous discrimination enactment, or if they satisfy paragraphs 3, 19, 20, or 34 of Part 1 of Schedule 1. These paragraphs allow funding respectively for: claims concerning abuse of a child or vulnerable adult; abuse of position or power by a public authority; significant breach of convention rights by a public authority, and claims concerning allegations of a sexual offence.

The exclusion in paragraph 12 of Part 2 of Schedule 1 is lifted for the purposes of paragraphs 3, 19, 20 and 34, so that claims under these paragraphs can include a claim for damages made in reliance on Section 7 of the Human Rights Act 1998. The Government have also tabled an amendment to make it clear that where a claim for damages is made in the context of a judicial review under paragraph 17 of Part 1 of Schedule 1, the grant of legal aid would cover the work associated with the damages aspect of the claim. This includes a claim for damages for a breach of convention rights brought in reliance on Section 7 of the Human Rights Act 1998. Therefore, paragraph 12 of Part 2 has been lifted also for the purposes of judicial review proceedings.

I again assure noble Lords that these are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998, but I appreciate that the noble Lord might want to read at leisure what I have just said, as will I. If there are still areas of confusion, I will be glad to engage with the noble Lord on them.

[Lord Beecham]

I am most grateful to the noble Lord.

[Baroness Hamwee]

I, too, shall read the Minister’s reply with interest. Is he satisfied that there would not be other types of claim, apart from judicial review, with which a damages claim might be almost inseparably linked as part of the same proceedings? I do not expect him to answer that immediately.

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Moved by

[Lord Beecham]

90: Schedule 1, page 148, line 32, leave out paragraph 16

[Lord Beecham]

My Lords, when we considered this issue in Committee, I pointed out that the scheme for criminal injuries compensation—it has changed in terms of the tariff that is now being applied, but that is an irrelevance for the purposes of tonight’s discussion—ran to 55 pages and the guidance to 113 pages and that it seemed there were issues on which advice, if not representation, might clearly be helpful and necessary for claimants. For example, I referred to the fact that the compensation authority could take into account a failure to report an incident in proper time to co-operate with an inquiry, about which there may well have been difficulties for an applicant, and that the existence of a criminal record may also affect the size of a compensation claim.

Moreover, as I recall, the cash in question is fairly limited—a figure of £4 million comes to mind—and, although it is the noble Lord who is replying tonight, the noble and learned Lord who replied then said that he wanted to reflect on the matter and seemed to be sympathetic. I do not know whether the buck has been passed because the noble and learned Lord is unable to translate sympathy into action or whether he is giving his noble friend an opportunity to win plaudits all round the House by following through on not a promise but at least an indication that there might be some movement.

I wait to hear what the Minister has to say about this and I hope that those good intentions will be borne out. If a decision has not yet been reached, perhaps the noble Lord will undertake to bring the matter back on Third Reading for a final determination. I beg to move.

[Lord McNally]

My Lords, Amendment 90 would have the effect of making legal aid available for services to support some compensation claims to the Criminal Injuries Compensation Authority. Proper support and help for victims of crime is a fundamental part of the Government’s vision of the justice system. However, as with the rest of our proposals on legal aid, the challenge before us is to reconcile the savings required as a consequence of our economic situation with the protection of those facing the most urgent and pressing problems. The logic across our reforms is that claims that are essentially financial in nature are of a lower priority than those concerning life, liberty or safety. On the basis that CICA claims are, by definition, primarily about money, the Bill seeks to remove them from scope by including a general exclusion in paragraph 16 of Part 2 of Schedule 1.

My noble and learned friend Lord Wallace indicated in Committee that we would consider the points made by the noble Lord, Lord Beecham. We have done so carefully but, giving his arguments due weight, I remain unpersuaded that Criminal Injuries Compensation Authority claims should be retained within the scope of legal aid. We recognise that victims of crime will have been involved in a traumatic event. However, the process for making a CICA application is relatively straightforward and there is guidance and support available from CICA to enable victims to make their applications. On the website there is an easy-to-use online form that takes no longer than half an hour to fill out. The section of the guidance about applying for compensation is comprehensive and straightforward. Noble Lords may find it helpful to know that CICA also operates a free telephone helpline to assist people in filling out the form, which is open five days a week. It also offers assistance to those who have difficulty reading or writing.

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[Lord Beecham]

The noble Lord will expect me to express my disappointment at that conclusion, in my understanding of the change of role from soft cop to hard cop. Of course, in many cases it is certainly true that advice is not necessary, but I have indicated at least three areas in which they might well have been necessary. I have experience of a couple of those in the rare occasions on which I have appeared before a tribunal, and I am sorry that Ministers have not felt able to make the very modest concession that would have ensured that in those rather more difficult cases—and they are the exception—legal advice would be available. It is not simply a question of filling in a form. However, clearly the Government are not disposed to take further action and, in the circumstances, I beg leave to withdraw the amendment.

Amendment 90 withdrawn.

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Moved by

[Lord Beecham]

100: Clause 11, page 8, line 25, leave out “may” and insert “must”

[Lord Beecham]

My Lords, this is a straightforward amendment that deals with the question of creating a right of appeal to a tribunal or court from a decision by the director. It seems highly undesirable that there is only the possibility in the Bill of regulations being provided to allow for such an appeal, and clearly there ought to be a proper route to appeal. The amendment requires that regulations should be brought into being instead of simply laying down an option for them to be brought forward. I hope that the noble and learned Lord will accept that it is desirable to have that avenue prescribed and subject to regulations from the outset rather than leaving it open. I beg to move.

[Lord Wallace of Tankerness]

My Lords, as the noble Lord, Lord Beecham, has indicated, the amendment would require regulations to be made under Clause 11 to make provision for appeals to a court, tribunal or other person against determinations made by the director under Clauses 8 and 9, and against the withdrawal of such determinations. I can reassure the House that the Government’s intention is to continue with the existing effective appeal procedures that are currently used by the LSC. First, an internal review on all determinations on civil legal aid will be available. This is required by Clause 11(5). Secondly, we are retaining the current system of independent lawyers, known as independent funding adjudicators, who volunteer to carry out independent reviews of funding decisions in in-scope civil and family representation cases. Clause 11 already allows us to make regulations to set out those appeal processes in secondary legislation, as they are set out currently.

The existing system, which deals with over 11,000 reviews and 3,500 appeals to independent funding adjudicators each year, is both efficient and effective and costs an estimated £60,000 per year to administer. I am not sure that he did, but it may be that the noble Lord envisions instead a tribunal to review these appeals. The review by Sir Ian Magee initiated by the previous Administration into the governance of legal aid looked at the option of directing all legal aid appeals to a tribunal and concluded that this would cost up to £1 million per year to administer. We do not believe it would be sensible to replace a system that works well with an unknown system at possibly 15 times the current cost.

This amendment would also require an appeal in cases covered by Clause 9. Again, we intend to retain the existing system under which, although there will be an internal review available in accordance with Clause 11(5), there will be no appeal to an independent funding adjudicator where applicants remain dissatisfied. I do not agree that these cases should attract a right of appeal to an IFA. It would not be appropriate to refer exceptional funding decisions to an IFA. This is because of the particular nature of the assessment at the heart of such cases, which will focus on an interpretation of the relevant obligations under the European Convention on Human Rights to provide legal aid. Exceptional case determinations, along with all other decisions by the director, would be amenable to judicial review. I think my noble friend Lord Thomas of Gresford confirmed that in his response to an earlier debate. I therefore urge the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, if there is no intention at any stage to provide for appeals to a court, tribunal or other person against such determinations, why is the option included in the first place? Either the Government intend at some point for some categories of case to be dealt with in that way or they do not. If they do, they should make regulations. If they do not, subsection (6) is otiose. However, I am making no progress with the noble and learned Lord, and at this hour I do not propose to take the matter further. I beg leave to withdraw the amendment.

Amendment 100 withdrawn.

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[Lord Beecham]

Would the Minister acknowledge that it does not necessarily follow that he has to speak for 17 or 25 minutes to convince us either, especially at this time of night?

[Lord McNally]

I take the point entirely. I will try again to say that Amendment 103 fulfils the commitment that I made. Government Amendment 104 also clarifies that initial assistance might include assistance in the form of advocacy. It ensures that the current position under the Access to Justice Act 1999 is carried forward in this respect in the Bill.

However, Amendment 102 would make police station advice and assistance automatically available to all. It would mean that the director would not be required to determine whether an individual qualified for police station advice, while having regard to the interests of justice. As such, the amendment is unnecessary. Determinations under Clause 12 are for the director to make. However, in practice, as is currently the case, solicitors apply what is known as a “sufficient benefit” test, which is deemed to be satisfied in circumstances in which a client has a right to legal advice at the police station and has requested such advice in accordance with Section 58 of the Police and Criminal Evidence Act. On subsequent attendances in the same investigation, the solicitor must ensure that the sufficient benefit test is satisfied before continuing with the matter.

Article 6 of the ECHR requires legal aid in criminal cases only where the interests of justice require it. The provisions of the Bill are based on the starting point that advice and assistance at the police station should be made available only where the interests of justice require it. Therefore, it is appropriate to allow the director to determine whether an individual qualifies for initial advice and assistance. However, our present view is that it will generally be in the interests of justice for those held in custody at the police station to receive advice and assistance in some form, whether over the telephone or in person. There are no plans to change the current system that operates in practice for police station advice. It is currently intended that initial advice and assistance should continue to be available to all those to whom it is available at the moment.

I should add that the Delegated Powers Committee recommended that regulations under Clause 12(9) should be subject to the affirmative procedure. We have accepted the committee’s recommendation and have tabled Amendment 109, which we will move when we reach Clause 40, to make the regulations under Clause 12(9) subject to the affirmative procedure. Given what I have said, I hope that the noble Lord will withdraw his amendment.

I make one further clarification on this. Subsection (2) requires the director to have regard to the interests of justice when making a determination under Clause 12. As I have said, solicitors currently apply the sufficient benefit test. However, it is interesting that the Access to Justice Act, which we are reimplementing, does not make express reference to the interests of justice, although it is implied. We are covering something that ties in to the ECHR commitment and reinforces what is in the original Act. I do not think there is anything sinister in what the noble Lord is probing. With those assurances, I hope he will withdraw his amendment.

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[Lord Thomas of Gresford]

My Lords, I move the amendment in a probing manner. I am concerned about a statement made by the noble Lord, Lord McNally, in Committee that involves setting up a supplementary legal aid scheme with a proposed deduction of 25 per cent from the damages of people who are supported by legal aid.

So much time has been spent in the course of the Bill in fighting to get areas of litigation back into scope that it is ironic that if those efforts were to succeed and damages awarded in any particular case, they would be immediately subject to a 25 per cent deduction for the purposes of setting up a fund from which other people would receive legal aid. It is a tax on their damages.

The noble Lord, Lord McNally, said in Committee that that was in order to make it no more attractive to have legal aid than to have damages subject to a success fee payable by a successful claimant limited to 25 per cent of his damages to date of trial. There is a difference. The whole purpose of changing the success fee, the burden of payment in conditional fee agreements, from the defendant to the claimant, and for it to be a charge on his damages, was so that there would be competition between solicitors for the business of the claimant at the outset. A solicitor might say, “There will be no success fee payable with me”, or, “My success fee will be limited to 12.5 per cent of the damages, not 25 per cent”. That is a better position than that of a legally aided person, who will have a whole 25 per cent taken out of his damages in any event. When is the supplementary legal aid scheme likely to come into being? I know that there was similar provision in the Access to Justice Act 1999, but under the previous Government it was never brought into effect.

The other matter that concerns me is that the provision could be brought in by secondary legislation under the negative procedure. That would mean that it would be subject to no or very little debate in Parliament and imposed on us. My second concern is to ensure that if such a scheme is to be introduced in future, it should properly be brought under the affirmative procedure so that we have a chance to debate and consider it before it comes before the House for approval.

Those are the reasons why I have tabled the amendment, and I await enlightenment. I beg to move.

[Lord Beecham]

My Lords, this is another case of déjà vu. In Committee, I congratulated the noble Lord, Lord Thomas, on his amendment. He was absolutely right then; he is absolutely right tonight. I hope that, having heard the noble Lord again, the Minister will acknowledge that he has made a very powerful case on both limbs—the principle and the procedure to which his amendments are addressed. I hope that the Minister can give a satisfactory reply that will not lead to those deductions being made, still less by the defective procedure, which, as the noble Lord has amply demonstrated, would be quite inappropriate.

[Lord McNally]

Yet again the Opposition, with a completely straight face, agree with my noble friend, although, as the noble Lord himself pointed out, we are making use of a provision in the Access to Justice Act 1999 which was brought in by the previous Government. He is now against it, as he was against the previous one. It seems that things are only good ideas when the Opposition are in government.

[Lord Beecham]

My noble friend will confirm that from time to time I, in particular, was extremely critical of some of the actions taken by the previous Government in the field of justice. I am not bound by a 1999 Act at all.

[Lord McNally]

Is another noble Lord going to have a go? Is there to be more sackcloth and ashes?