Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019

Debate between Lord Keen of Elie and Baroness Smith of Basildon

Tuesday 1st October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I am obliged for the contributions from all sides of the House, to a greater or lesser extent. This is an important area and an important issue. I will begin by addressing generally some of the points that a number of different noble Lords raised.

First, the noble Earl, Lord Listowel, raised the very real question of those termed care leavers, who tend to be a cohort aged 18 to 25 years. It was a point raised by the Children’s Society when we discussed this matter more generally, as the noble Earl and the right reverend Prelate will be aware. The position we are in regarding that cohort is that we have agreed to consider the position of care leavers and their access to legal aid via the exceptional case funding scheme in relation to immigration matters. That work is ongoing, but I cannot say more than that at the present time.

In addition, there is the question of separated children who applied for legal aid but turned 18 before the original immigration application had been fully determined. They will continue to be eligible for legal aid until the immigration or citizenship matter has been concluded. How it is concluded is a different matter, but if it is concluded through the immigration process, legal aid will continue to be available. I seek to reassure noble Lords on that point.

Very diverse figures were given regarding the number of children who might have been or may now be eligible for legal aid under this provision. It is very difficult indeed to identify precise figures. That might explain why such a diversity of figures is being quoted. So far as we are concerned, the most reliable figures are from 2012-13 because after that, as a consequence of LASPO taking these cases outwith the scope of legal aid, there are not reliable figures. That is why it has been necessary to go back to the last set of reliable figures pre the LASPO provisions themselves. That might be unfortunate in a number of respects, but that is where we are. We intend to monitor the figures, but clearly we will have an eye on the number of applications being made.

In that regard—to respond to the noble Baroness, Lady Smith—we are and have been engaging since July last year with legal aid agencies over the scheme for provision. Indeed, pending this order coming into force, we have been explaining to legal aid agencies that separated children falling into this category who still rely on exceptional case funding would be entitled to certain presumptions so far as their application was concerned, because their rights under Article 8 of the convention are clearly to be regarded as in play, if I can put it in those terms. There has also been an assumption that they are vulnerable and that they are not capable of carrying through these proceedings without the assistance of legal aid. That has actually simplified the exceptional case funding application process. Indeed, we are working with legal practitioners to review and simplify the exceptional case funding application forms and guidance, which we hope again might be of assistance to the cohort known as the 18 to 25 year-old care leavers.

[Baroness Smith of Basildon]

Just to clarify: if I have understood correctly, is the Minister saying that all children who currently get exceptional case funding will now get legal aid to complete their cases?

[Lord Keen of Elie]

If they already have exceptional case funding then they have legal aid, so there should not be any interruption regarding that cohort, who have already received it. I was seeking to stress that since this matter arose in July 2018—I acknowledge that that was because the Children’s Society took steps with regard to judicial review—we have taken steps to try to simplify the ECF process for those separated children but as a result they have legal aid, so generically they have legal aid and that should not be interrupted.

Regarding the future position, ECF is not affected by our decision to leave the European Union. Of course, convention rights are already expressly covered by LASPO. There is also the question of retained EU rights under our domestic legislation. Therefore, there is no reason why the ECF scheme should be affected by that.

As regards the wider number of children who may have been affected by this, it is not possible to give figures. The noble Baroness, Lady Smith, referred to 144,000 undocumented children potentially being in the United Kingdom. The point to stress is that if they are undocumented, it is very difficult to determine how reliable that estimate is, where they are, what they are doing, where they have gone or where they have been. By the very definition of undocumented, we have an issue here which is surrounded by a penumbra of doubt and uncertainty and very little can be done with that.

However, I hope that with these regulations coming into force we will have a more meaningful ability to deal with these vulnerable children, to provide them with the support that we acknowledge they will require in future and which they have had in the past under the exceptional case funding, but which we believe should now more appropriately be brought within the scope of Section 9 of LASPO. I beg to move.

Business of the House

Debate between Lord Keen of Elie and Baroness Smith of Basildon

Wednesday 4th September 2019 Lords Chamber

[Baroness Smith of Basildon]

My Lords, it may be helpful to the House to know that the House of Commons has passed the European Union (Withdrawal) (No. 6) Act by 327 votes to 299, a majority of 28. Given that we now know the views of the House of Commons on this piece of legislation, it would be helpful to open discussions with the Government as soon as possible on how our business may proceed. I have already told your Lordships’ House that I am happy to have those discussions as soon as possible. We want to have a timely, ordered approach to business between now and Prorogation to ensure that we give effect to decisions taken by the House of Commons. So I propose that we adjourn during pleasure until 8.39 pm.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, without any commitment at all on the part of these Benches, we do not seek to oppose the Motion for an adjournment for the period indicated by the noble Baroness, Lady Smith.

[Baroness Smith of Basildon]

I am grateful to the noble Lord, because I think that it would be helpful to have those discussions. I know that he said, “no commitment”, but I am sure that he will have heard the mood of the House earlier today—from his own Benches and everyone else—that discussions should open up and would be very helpful for the interests of the House. So I am grateful to the Government for not opposing this.

Justice: Private Sector

Debate between Lord Keen of Elie and Baroness Smith of Basildon

Tuesday 18th June 2019 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, when talking about privatisation, it is not just about the Prison Service; we also have to look at the probation service. The Question mentions “the principles of government”. Surely, a pragmatic, sensible approach is better than the expensive ideological approach taken by Chris Grayling to the probation service. May I ask the Government to look at what works rather than at what is in the Government’s best interest, which has clearly been dangerous to offenders and victims alike?

[Lord Keen of Elie]

We are concerned to secure the best interests of all those affected by the provision of services, whether public or private. Probation service delivery is driven not by ideology but by a recognition that often in these areas a mixed-economy approach works best, not just financially but more broadly terms in the quality of delivery.

Sexual Offences Legislation

Debate between Lord Keen of Elie and Baroness Smith of Basildon

Tuesday 22nd May 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, that would be a matter for the Home Office and not for the Ministry of Justice to consider. However, I am sure that Ministers in that department are listening.

[Baroness Smith of Basildon (Lab)]

My Lords, can I take the Minister back to the question asked by my noble friend Lady Corston? His answer seemed rather complacent. If on Google women who have been victims of rape can be identified and help is being offered to do that, surely the Minister would want the Government to take some action and not just accept it.

[Lord Keen of Elie]

With respect to the noble Baroness, there was no complacency in my previous answer. Clearly, we will look at the facts and circumstances of any complaint and then determine what action it is appropriate to take. However, it would not be appropriate to anticipate prosecution or other action without a proper investigation of the facts. Indeed, that underlies many of the complaints made here today.