Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Judd Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Woolf]

My Lords, rightly, we have heard a lot about victims so far in this debate and, if this amendment is not accepted, we are going to create another victim—the justice system. Government after Government have struggled to find ways of curtailing the ability of those who seek to justify their presence in this country by excluding them through legislation that Parliament has passed in a series of Bills—legislation which has made the law into the state in which it is now and which has already been vividly described.

In those attempts, there is normally strong support in the other place and probably in this House because it is thought that often the legislation has popular appeal. Those who said that the Government were creating a situation which would be difficult, if not impossible, to administer and adjudicate upon were not listened to. So far as I recollect, the only occasion when a Government were forced into reverse was when it was said that the legislation they were proposing sought to prevent access to the courts. The previous Government realised that that accusation, made in various quarters, was justified. To their credit, they realised that, because of the seriousness of the criticism, they had to withdraw, as the legislation would indeed have prevented admission to the courts. Of course, the issue that we are now considering is not quite as dramatic as that but I can tell the House, based on my experience, that the consequence of removing legal aid altogether—I emphasise “altogether” because we are talking about taking it out of scope—could have very serious consequences for the administration of justice.

If you go along to the Strand, where you will find our most senior court apart from the Supreme Court, you will see that much of the time of the Royal Courts of Justice is spent dealing with the problems of immigration law. The Supreme Court, in its short existence, has found that a sizeable proportion of its diet again involves immigration. I urge the House to think about the consequences for the legal system of depriving those who desperately need legal assistance of the ability to get that assistance. Without it, the task of the courts will become even more difficult than it already is, as amply confirmed by the statements from senior courts to which the House has been referred. I urge the Government to think very seriously about this amendment because it is of great importance to the legal system of this country.

[Lord Judd]

My Lords, the noble and learned Lord has reminded us very powerfully of the damage that can be done to our whole system of the administration of justice. Perhaps I may briefly make two wider points arising from that. One is that the Government are always telling us how they seek to play a constructive and powerful part in the deliberations of the international community in finding the solutions that matter for humanity as a whole. I can think of no more calculated way of undermining the respect in which we are held and the influence that we bring to bear than if there seems to be specific, mean action of the kind proposed. I do not want to exaggerate, as it would be quite wrong and irresponsible to do so, but I sometimes get very vexed. We all recognise the importance of joined-up government and we all recognise that we want to build a stable and secure world, but how does it help if there are increasing numbers of embittered and frustrated people having a bad experience at the hands of our legal administration in this country? How does that help to build international security and stability? I say no more.

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, I support the amendment, as well as Amendments 93A and 94, particularly in relation to immigration law. I do not claim any expertise whatever in immigration law, but I am concerned by many representations that I have received, particularly as regards children and women who will be affected by denial of exceptional cases support. As the noble Lord, Lord Avebury, has said, and as was emphasised by noble Lords from across the House earlier, this is an extraordinarily complex area of law. It is unrealistic to expect vulnerable immigrants to represent themselves without any legal assistance.

I am particularly concerned about the suggestion that children should turn to their social workers for legal advice and assistance. The noble Lord, Lord Newton of Braintree, gave that idea pretty short shrift earlier. He asked whether social workers would receive training. I do not recall the Minister answering that question, so perhaps the noble and learned Lord can do so in his response. I have been written to by Refugee Youth about this matter. It says:

“Social workers have played an important role in many of our lives, but social workers are not immigration lawyers and are not experts in the immigration process and we have had mixed experiences of social workers”.

Refugee Youth also says:

“We want social workers to do what they are trained for and best at in supporting children, not take on roles that they are not trained or competent for. The Government’s proposal simply stands to increase pressures on social workers, and on their sometimes difficult relationship with the children they support”.

That is a very fair point. The Immigration Law Practitioners’ Association states that, “any inevitable failing” in advice provided,

“can be expected to have serious ramifications for trust and confidence as between child and social worker”.

I taught social workers when I was at Bradford University, and the idea that these students would go out and then act as poor persons’ immigration lawyers is frankly laughable. Social workers are on their knees trying to fulfil their statutory responsibilities and should not become second-rate immigration lawyers.

I am also concerned about the implications for women. Rights of Women has written to me, especially about women who have experienced gender-based violence—other than in certain domestic violence cases that will still be in scope—whose immigration status places them at great risk of harm, and about those who may have been subject to trafficking. I know that the noble and learned Lord has said that he will be looking at this matter again before Third Reading, and I hope that at least that issue will be dealt with. Regardless of the complexity of a case, it will not be covered by exceptional cases funding.

It is therefore unbelievable that the Government can expect two vulnerable groups to navigate this complex area of law without those groups being covered by even the safety net of the exceptional cases scheme. I hope that the Minister will look kindly on these amendments and rethink the Government’s position on this issue. I cannot believe that it will cost very much money to extend exceptional circumstances funding to cover these groups.

[Lord Judd]

My Lords, this debate relates to one that we had earlier, when there was that magnificent and to be expected contribution by the noble and learned Lord, Lord Woolf. Without saying everything that I said previously, I should like to underline that I do not believe that I am in a small minority. A significant number of people in this country are ashamed of what we are doing.

What kind of society do we want to be? Are we just cynically abandoning people to a system? Perhaps worse, are we really finding devious ways to get negative results which we want? That is what worries me. I am not convinced that our immigration policy operates with fairness. I believe that there is an underlying principle that we want to get rid of people; that we do not want people here; that we want to discourage people from coming.

Are we a country about justice or are we not? If we are a country about justice, those people, often in sad and desperate circumstances, are the very people whom, in the midst of economic pressures, and all the rest, we should be determined to protect.

I am very glad that there is this opportunity to air this matter. I am glad that concern spreads across the House into different political groups. All that I can say is that I am getting very depressed about the real motivation for some of this legislation.

[Baroness Hamwee]

My Lords, I support, in particular, Amendment 93, to which my noble friend Lord Thomas has spoken. No one has yet mentioned—although I suspect that the noble Lord, Lord Bach, may—concerns expressed by the Joint Committee on Human Rights about the extent of Clause 9 and whether it will be practically effective. One of its concerns was about the need for provision of services swiftly. Noble Lords will have read the report.

There is exceptional funding under the current scheme covered by guidance and, beyond that, a funding code. I was pleased to have been able to find that quickly through Google, if not through any government website. I am unclear, but fearful about just how closely Clause 9 and guidance which has not yet been written will reproduce what exists now.

I mentioned earlier today to the noble Lord, Lord McNally, that I was going to ask this question. He said that he would know the answer by now. I hope that that has transmitted itself through the ether or on paper to the noble and learned Lord who will respond. The guidance on exceptional funding refers to “significant wider public interest”; overwhelming importance to the client and other exceptional circumstances such that, without public funding by representation, it would be practically impossible for the client to bring or defend the proceedings; or that the lack of public funding would lead to obvious unfairness in the proceedings. I should have thought that that would amount to “in the interests of justice”. The terms “overwhelming importance to the client” and “wider public interest” are both defined: overwhelming importance to the client meaning a case which has exceptional importance beyond monetary value because it concerns the life, liberty or physical safety of the client or his or her family. I particularly note the reference to family, because in the immigration cases to which we have been referring, there is concern about family or a roof over their heads. Wider public interest could produce real benefits for individuals other than the client, and this particular case is an appropriate one in which to realise those benefits.

We have referred several times to concern about class actions and cohorts. I said on a previous day on Report, although probably not very clearly, that I was glad to know, pending seeing the detail, that people who have been victims of trafficking will be the subject of a government amendment, my noble and learned friend having said previously that they would come within Clause 9. However, if the Government are concerned that they might not come within Clause 9, then my concern is whether Clause 9 is too narrow. I would extend that concern to a very small group of people—victims of torture. Although not large in number, both these groups have substantial needs. All this may benefit from some detailed discussion outside the Chamber but I think that it is appropriate to raise it today. My question is about the extent of the change from the current arrangements.