Civil Legal Aid (Procedure) Regulations 2012

Lord Beecham Excerpts

Wednesday 27th March 2013 Lords Chamber

I should reassure the Minister that those who are assisting victims in this sphere are trying as energetically as they can to reassure victims that some legal aid is still available but I have to tell the House that, increasingly when victims come forward, the answer that they will be given by a number of practitioners now is, “I’m sorry. Legal aid is not available to assist you”. I bitterly regret that reality and I know that, all around the House, we have always been together on this. This issue has never divided Members of this House no matter on which Bench they sit. I hope that the House as a whole will feel that it bitterly regrets the situation that we now find ourselves in.

[Lord Beecham]

My Lords, I am pleased to join my noble and learned friend Lady Scotland and the noble Baroness, Lady Grey-Thompson, in expressing concern and regret at the situation which potentially confronts so many people in both the categories to which these Motions refer. The Motion of the noble Baroness, Lady Grey-Thompson, refers specifically to,

“legal aid services for disabled persons”,

and goes on to state that,

“the category of ‘exempted person’ is defined too narrowly”.

I am sure she will agree that, hugely important though the needs of disabled people are, other people without a disability as such will also potentially lose out under the new processes. I refer in particular to the concerns that she expressed about the gateway as opposed face-to-face advice. That will be a serious matter.

By sheer coincidence, looking at a news programme this morning, I saw a report of a benefit claimant—I think he was from Barnsley; it was somewhere in Yorkshire at any rate—who has been sanctioned for not applying for a job, but the basis of that was that he had not applied online. Apparently, it is necessary in that area to apply online. The claimant has never used a computer; he does not know how to use a computer; he was not, incidentally, given any advice about how to use a computer by the jobcentre; and he was sanctioned. That is a different context, but it underlines that, despite the fact that many of us are up to a point familiar with modern technology—I do not profess any particular expertise myself in this area—many other people are simply not used to it. That is particularly true of those with perhaps less of an educational background and less experience of, for example, conducting financial transactions in that way. More generally, they might be limited in their vocabulary or not speak English as a first language, as the noble Baroness pointed out, or in other ways find it either impossible or difficult to access advice online.

The noble Baroness made a valid point as well about third-party representation. It will be interesting to hear the Minister’s views on how secure and effective that is likely to be as there are clearly concerns about whether a third party can effectively represent someone remotely. The Minister rather casually dismissed the question of remoteness in our previous debate. The noble Lord shows his dissent. Well, perhaps I am being unkind to him and I withdraw that. However, he did seem rather to play down the potential problems of physical remoteness from the source of advice. Those of us who professionally or otherwise have engaged with people over the years in our various capacities—as lawyers, as people in the voluntary sector or as elected politicians—will know that face-to-face contact is very important and by no means everyone has access to that kind of remote-access technology.

There is another question about remote access that I want to put to the Minister. At the moment the system is that an applicant will make a telephone call and the person at the other end of the line will offer to call back. That seems to be an unnecessary complication. First, the call-back method is not always easy or reliable as there may well be problems in returning a call. Secondly, the initial cost will fall on the applicant. Will the Minister undertake to look at making this a freephone service rather than a system where one has to pay and then, one hopes, receive a call back?

I am concerned that serious problems in relation to the gateway and the whole area of access will be experienced over the next few months. I am sure that the Government will be monitoring this, but it would be good to know a timetable within which they will look at how the system is working and how they propose to do that, whether nationally or on a regional basis.

In relation to my noble and learned friend’s important Motion on domestic violence, I begin by referring to an interesting observation made by the president of the Family Division, Sir James Munby, giving evidence to a Public Bill Committee in the Commons on 5 March. Addressing the issues of legal aid in family law, he said:

“Coming back to the specific question that we are concerned with today, everybody who is involved in the family justice system is necessarily very concerned about what will happen in four weeks’ time, when legal aid effectively withdraws from private law proceedings. We are, I am afraid, unprepared for that. When I say ‘we’, I am not talking about the judges; I am talking about the entire family justice system. We are prepared for the changes to public law that are being phased in over the next 12 months, but we are desperately unprepared for what is going to hit us in four weeks’ time”.—[Official Report, Commons, Children and Families Bill Committee, 5/3/13; col. 31.]

That is a remarkable statement by the president of the Family Division, and it would be interesting to know what response the Government make to it.

It seems that, potentially, chaos will strike in this very important and sensitive area of law, not in four weeks’ time but next week. Judging by the experience of some other government changes to our legal system—for example, the issuing of proceedings out of a single county court, which happened last year—we can expect considerable difficulties. That has been a most unhappy episode, which is still not totally resolved. Of course, this now becomes an area not simply of ordinary court proceedings, but very sensitive, difficult and often urgent matters that affect people’s lives very closely—the lives of vulnerable people, in particular women, and of course children. I therefore hope that the Government will pay some attention to the very important strictures and concerns of the president of the Family Division, Sir James Munby.

There are a couple of other issues on which it would be interesting to hear the Government’s present views. Reference was made by the Minister to the cost of obtaining evidence from GPs. It is thought that this might amount to some £50 or £60. The Government may well be looking at alternative forms of evidence that might be suitable, but as I said, this process starts in a week’s time. It would be interesting to learn how far the Government have got in producing a suitable procedure for people to follow. This is a significant issue because almost by definition many of those who may want to seek legal advice and take legal proceedings —now without the benefit of legal aid unless they can prove in the context of domestic violence that they are exempt—will find it very difficult to find £50 or £60 to pay their GP. I understand that the Government are in discussion about this with the BMA, which is apparently unhappy, as a matter of principle, about the expectation that family doctors, and perhaps other doctors, should be producing reports at all for this purpose, while the Royal College of General Practitioners has taken a more constructive attitude. Can the Minister update us on where we are in that context? I can understand the situation where a GP is perhaps a family doctor to both parties and therefore might be in a position of some conflict, but in general it ought to be almost axiomatic that a doctor would be prepared to give evidence—no doubt brief evidence—which might assist a woman, or man for that matter, who is claiming that he or she has suffered domestic violence.

The other aspect is that the whole rationale of the Government’s approach to family law is that mediation is a better answer; it is less formal and less expensive. I have said before, and I repeat, that in my experience as a practising solicitor who did some family law work, it is all very well to talk about mediation where there is a rough equilibrium in the position of the parties in terms of their psychological strength or financial resources. It is rather different in many cases where one party is so much stronger than the other. Therefore, mediation is not necessarily the best or only way. In any case, it has always been available. The other aspect is that it would appear that only 5% of family law cases are contested. In other words, matters are being resolved without ending up in court. The support of qualified legal advisers is essential to secure those outcomes in general in terms of family law. But in particular it is important that people should be adequately represented where domestic violence is part of the scene. As my noble and learned friend pointed out, the conditions under which such victims would be able to be categorised as exempt and obtain legal advice are, on the face of it, certainly too narrow. At the very least I hope that the Government will undertake to review how things are going, sooner rather than later, because, as my noble and learned friend pointed out, we are talking potentially not only about serious injury but about death—about people, mostly women, being killed as a result of domestic violence.

Obviously the Government do not want that to happen. Of course they do not. However, there is a danger that it may happen if the Government do not respond quickly and effectively to any issues that arise in regard to obtaining access to proper advice and representation in these highly sensitive areas. In those circumstances, if the noble Baroness and my noble and learned friend intend to test the opinion of the House, from the opposition Front Bench I will certainly be calling on colleagues to support them.

--- Later in debate ---

The noble Lord, Lord Beecham, asked about the callback option. The callback option works well now and is often requested by callers. It is important to remember that many clients already make initial calls to face-to-face providers.

[Lord Beecham]

My suggestion was that a freephone system might be adopted. Have the Government considered that; if so, will they consider it again?

[Lord McNally]

The noble Lord is quite right: the number will not be a freephone number. I will inquire whether that was considered. The point is that it is minimalist. Just to put it on the record, you can use the 0845 3454345 number and immediately ask for a call-back, so it is not that big a hurdle.

I have taken a lot of the time of the House. I have tried to answer some important questions. I hope that, in doing so, I have conveyed that we are dealing with issues of shared concern about protecting the most vulnerable in our society.

Throughout both these debates today, we were faced with making tough financial decisions, but I believe we have made them in a way that targets resources at the most vulnerable in the way that would be most effective. I would regret it if the Motions were pressed. I will note the opinion of the House, but I go back to the growl of approval that greeted the noble and learned Baroness, Lady Scotland. It is an approval that I share: we have got to make sure that in our approach to legal aid and the broader issues that encompass both, our aim must be to give priority to attacks on the broader causes of domestic violence and to ensure that there is legal aid available in family law. I believe that if noble Lords look at the way that women will qualify for legal aid, it will be very difficult to say that those provisions are not there.

On aid for issues of disability, I hope I have clarified some of the concerns of the noble Baroness, Lady Grey-Thompson. I hope she will go to Hinckley and see the gateway in progress. I can assure all sides of the House that as far as I am concerned, monitoring will start on day one to see what the impact of these changes will be. In that respect, I hope the noble Baroness and the noble and learned Baroness will not press their Motions.