Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Judd Excerpts

Wednesday 18th January 2012 Lords Chamber

[Lord Howarth of Newport]

I, too, would like to say a word in support of the amendments tabled by the noble Lord, Lord Ramsbotham. He has raised very important points. Surely, what he has argued for is self-evidently right in principle. As the noble Lord suggested, public authorities are almost by definition powerful in relation to citizens. It is, of course, incumbent on all public authorities to act lawfully. Ignorance of the law on the part of a public authority should be no excuse for that public authority any more than it is on the part of the citizen. Therefore, the amendment of the noble Lord, Lord Ramsbotham, would repair an omission in the drafting. Otherwise, it would be possible under the Bill as drafted for the public authority to say, “We did not realise. We did not mean to do this. It was not intentional. It was not done knowingly”. Or it could tell lies, but it will be caught that way. If the public authority said that it was sorry and that it had made a mistake of law, it certainly seems to me that the citizen ought to be entitled to some redress.

Amendment 61 in the name of the noble Lord, Lord Ramsbotham, is also very valuable. From time to time a number of us may be rather concerned at the readiness and apparent arbitrariness with which people seeking immigration status can be detained. It must be beyond question that deprivation of liberty, whether or not it was deliberate or dishonest, is a harm. Therefore, it is surely right that the two amendments that the noble Lord has proposed should go in the Bill. They make evident good sense and they are proper.

[Lord Judd]

My Lords, I, too, commend this amendment for very serious attention. In the economic pressures under which we are operating and which are very much a factor in everything we are considering under this legislation, it seems to me that this provision is another example of a heavy penalty falling on the most vulnerable and those in the worst possible psychological situation. Sometimes we need to break away from our legal preoccupations and think of the predicament of the individual. They go through an extraordinary nightmare in many of the circumstances that we are discussing. We are discussing an authority of the state doing something which is a denial of everything that the state says it is about. In our immigration and other policy, we expect people to give undertakings and to prove that they understand the culture of our society and why it matters. Here is a provision which is an absolute denial of what this country is about—the deprivation of liberty. I would have thought that if we realised such a thing had happened, we would fall over backwards to put it right and to give a positive indication of our disapproval of what had happened and our sympathy for the individual concerned.

I hope that I may be allowed to make a wider point. I sometimes think that in our preoccupation with specific legislation we fail to make connections. All the time we are worried about stability, terrorism and the appeal of extremists. However, this kind of thing plays into the hands of agitators who portray these issues as examples of the hypocrisy of our society. It is hypocritical for an agent of the state to do something that is a denial of what the state is about and for the state to give no assistance in making sure that the wrong is put right. A terribly important principle has been raised in this amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, at the risk of repetition, I have already said that numerous routes within scope, other than a damages claim, might be open to an individual and might be even more appropriate in addressing the situation where a public authority or the state acts in a way that the individual citizen wishes to challenge. Indeed, as I have indicated, other means, such as conditional fee agreements, might also be appropriate in some cases that are not at the serious end.

[Lord Judd]

My Lords—

[Lord Wallace of Tankerness]

Part 1 of Schedule 1 indicates a number of remedies that are available and within scope. We have sought to make available a range of remedies, particularly with regard to the protection of the liberty of the subject. A deliberate policy choice was made to try to ensure that legal aid would be available to safeguard the liberty of the subject. No doubt the noble Lord, Lord Judd, is being patient.

[Lord Judd]

I am very grateful to the Minister for giving way. He is being given quite a cross-examination at this stage in our considerations. Before Report, when he is considering what has been said in this debate, I plead with him to remember that this is not just a private matter between the individual concerned and the authorities. In this very sensitive area of public policy there are bound to be much wider ramifications. Ultimately, this is about the credibility of the Home Office and its policies and how they operate. If there appears to be a reluctance to put right generously what has been done indefensibly, that will hardly help to achieve public confidence in the general policies as they are applied. I hope that the Minister will take away that general point, because it is crucial to our deliberations.

[Lord Wallace of Tankerness]

I recognise the important point that the noble Lord, Lord Judd, makes. I assure him that, in trying to allocate limited resources, we have sought to ensure that a proper balance is struck. As I indicated, it is of course a balance, and we will weigh in what has been said in this debate. However, I have sought to indicate that we are dealing here not just with claims for damages; we have deliberately included a whole range of remedies within scope in Schedule 1 because we recognise the importance of proper safeguards in the citizen’s relationship with the state. I hope that the noble Lord will recognise that a whole range of remedies will be eligible for legal aid.

The noble Lord, Lord Berkeley, has no doubt been waiting for a response to his Amendment 61ZA, which would include within the definition of “public authority” the Crown Estate and the Duchy of Cornwall. The position is that paragraph 19(7) uses a definition of “public authority” that is used in Section 6 of the Human Rights Act 1998. At Section 6(3) of that Act, the definition of a public authority includes,

“(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament”.

Section 6(5) of the Human Rights Act goes on to provide that,

“In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private”.

Therefore, the point is that this is not so much about the name of the body but about determining whether the function is of a public nature. It is the nature of the service or function that is determinative, rather than the legal status of a body that is performing the function. One noble Lord asked whether we could have a definition of that. Ultimately, it must be for the courts to determine whether a body is a public authority, given that definition for the purposes of the Human Rights Act.

The noble Lord, Lord Beecham, said that there may be another time and place to discuss the Crown Estate and the Duchy of Cornwall. I know that the Scottish Affairs Committee in the House of Commons is currently looking at the work of the Crown Estate. It is an issue that has attracted more attention, but as regards this amendment and this Bill the definition is used in the Human Rights Act and is a proper definition to import into this Bill.

I will briefly address a number of government amendments in this group. Amendments 79A and 79C address predecessor claims under the pre-Equality Act 2010 legislation to ensure that legal aid continues to be available to people who have live claims under predecessor equalities legislation, and not just in relation to a contravention of the Equality Act 2010.

At present, paragraph 38 of Part 1 of Schedule 1 limits legal aid cases to cases where the Equality Act 2010 has been contravened. The 2010 Act presents a new unified legal framework for addressing harassment, victimisation and discrimination based on any of eight protected characteristics. Where previous equality enactments have been repealed, we recognise that certain claims will continue to be capable of being brought under these enactments by virtue of the transitional arrangements introduced by the 2010 Act. For this reason, we seek to amend paragraph 38 to allow funding for predecessor claims that might still need the benefit of public funding. This amendment will also amend paragraph 38 to put beyond doubt our intention to retain funding for civil legal services relating to the breach of equality clauses and rules and non-discrimination rules.

Government Amendments 78C, 78D and 78E ensure that civil legal services are provided in circumstances where a sexual offence has actually been committed or is alleged to have been committed. They also ensure that civil legal services are provided in circumstances where a sexual offence has not actually been committed but there has been: an incitement to commit a sexual offence; an offence committed by a person under Part 2 of the Serious Crime Act 2007, in relation to which a sexual offence is the offence which the person intended or believed would be committed; conspiracy to commit a sexual offence; and an attempt to commit a sexual offence.

Additionally, the amendment to paragraph 34 of Part 1 of Schedule 1 will ensure that civil legal services are capable of being provided in relation to conduct that would be an offence mentioned in sub-paragraph (3)(a) or (b) of the existing definition of “sexual offence” but that is not considered an offence under the present definition because it took place before the relevant provision came into force. At present, paragraph 34 limits legal aid to cases where a sexual offence has been committed under the provision of the Sexual Offences Act 2003 and to cases where an offence has been committed under Section 1 of the Protection of Children Act 1978, which deals with indecent photographs of children. We recognise that it is possible that offences committed before the present legislation came into force might need the benefit of public funding, and for this reason we have amended paragraph 34 to allow for funding.

I am not sure why Amendment 90ZZA is in this group, but I hope the Committee will recognise that this is a serious attempt to ensure that where there have perhaps been gaps due to prior legislation, we seek to fill them. Amendment 90ZZA would bring into scope advocacy within the Court of Protection where a person’s mental or psychological safety is concerned. This echoes debates on Amendment 53. The current position is that advice is available for any mental capacity matter and that representation is available for the Court of Protection in limited circumstances where there is to be an oral hearing and the case will determine the vital interests of the individual.

Paragraph 4 of Part 3 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—for example, medical treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, and the capacity to enter into sexual relations or the right to family life. The amendments go beyond what is currently provided through legal representation by the civil legal aid scheme. We have had to focus our limited resources on the most serious cases and on the interests of the individual that are vital. We do not seek to go beyond what is already the present position. I hope that the noble Lord will reflect on that and, when the time comes, not move his amendment.

It is some time since the noble Lord, Lord Ramsbotham, moved his original amendment, but I hope he is assured that the serious issues involving state public authorities and the citizen are addressed by this. With regard to the liberty of the individual, there are a number of specific provisions, quite apart from the more general provision that loss of liberty is seen as a harm to the individual. I hope, on the basis of these reassurances, that the noble Lord will withdraw his amendment.