Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Wednesday 7th March 2012 Lords Chamber

[Viscount Slim]

My Lords, one word has been left out of our discussions—“veteran”. I refer to veterans of all ages. I respectfully remind the Minister that there are still disabled veterans from World War 2 and from right the way through until today’s campaigns and those that will come. The military covenant lays down that a veteran—man or woman—must be cared for. The right honourable gentleman the Secretary of State for Defence has to make a public report nationally at given times. I see nowhere that legal aid or legal advice is automatically offered or given to a disabled veteran in need. Has the noble Lord’s department discussed with the Ministry of Defence how they will handle this and make legal aid and legal advice available to veterans, as required by the military covenant? Is the noble Lord hearing me?

[The Minister of State, Ministry of Justice (Lord McNally)]

Yes.

[Viscount Slim]

Thank you. My question is simply: have there been discussions between the Ministry of Justice and the MoD and a methodology put forward to ensure that free legal aid and advice will be given to disabled veterans where necessary?

--- Later in debate ---

[Lord Bach]

I rise to give my support, and that of my party, to Amendment 11, moved so brilliantly by the noble Baroness, Lady Doocey, now some time ago. My Amendment 88 is consequential on that amendment and deals with the other side of the coin. For me, Amendment 11 is the most important amendment in the entire Bill, and I shall try to explain shortly why I believe that. I want to speak also to my own Amendment 12, which is not an alternative in any sense to Amendment 11, but refers to the appeals process as opposed to the earlier process. Perhaps I may also briefly say how much we support the other amendments that have been spoken to in this debate, namely Amendments 21, 45 and 46.

We pride ourselves that our legal system is among the best in the world. We encourage rich foreign litigants to try their legal disputes in English courts and say that our system is fair, is not corrupt and has a very high class of judges and advocates. All that is true, but what underpins and guarantees our system is that there is access to justice for everyone. The law is there to help everyone, including the poor, the disabled and the marginalised, and we have a system of helping the poor that is both practical and principled—it is not perfect, but it works. If that system is decimated, as I fear the Bill as it is presently constituted will do, then as many as 650,000 people who have access to justice now will no longer have it. That fact alone should make us pause for thought. It is as serious, stark and uncomfortable, I am afraid, as that.

We all know that citizens with legal problems in the complex fields of welfare benefits, debt, employment and housing—which often involve the organs of the state, as the noble Lord, Lord Carlile, emphasised—can at present obtain expert legal advice, and “advice” is the key word here, so that those problems can be resolved. Legal advice of this kind helps people keep away from the courts and the tribunals; it does not urge them towards the courts. One of the myths that I am afraid has been rather put about by the Government in this Bill is that doing away with legal aid for social welfare law will reduce the number of cases going to the courts. However, the exact opposite is true. It is the availability of early advice that keeps the numbers down for our tribunals and courts. The people who use these services are not those whom the Daily Mail might choose to call scroungers or the work-shy; these are ordinary people who lead good lives and come up against the complexity of the modern state. They may have served in the Armed Forces; they may have been in all sorts of professions; they may not have led particularly successful professional lives. However, they are our fellow citizens, and if a system of law is to have any justice at all, it must look after them as much as it looks after us. The noble Lord, Lord Cormack, made this point a few minutes ago.

This is not an expensive type of law. My noble and learned friend Lord Goldsmith made it clear that no cat gets fat on welfare legal aid. Also, it works. If early advice is not available, we all know what the other side of the coin will be; things will get worse; a welfare problem will become a debt problem, then a housing problem; people will become homeless and unemployed; families will break down; and some people will fall into criminality. This should be a no-brainer. The changes will cost so much more than they will save. We have all seen studies that tell us that. Alas, the Government have not seen fit to contradict the statistics. They will not give us any figures—and I doubt that they could—to counter those arguments.

The consequences will not just be that many clients will not get access to justice; there will be a knock-on effect of making it impossible for CABs and law centres to continue to function in the way that they do now. They depend on legal aid money to attract other funds to do other work. If the legal aid money dries up, so may other sources—and then we will be deprived of them in our country.

Amendment 101—rather aptly named, if I may say so—is a brave attempt, but only an attempt, to try to move us away from what we as a House must come to grips with today. We must quite legitimately put pressure on the Government and say to them: “Look, you should not be withdrawing legal aid in this field. Just think again about this”. This is the attitude taken by Citizens Advice, for which the House has a huge feeling of respect. In its briefing, it states clearly:

“We therefore strongly support Baroness Doocey’s amendment that legal aid for casework advice on review and appeals should be retained within scope”.

It could not be clearer.

I will say a brief word about Amendment 12 because I will not have another opportunity to speak to it. It follows Amendment 11 and concerns appeals. The matter should be one of common sense. Very few of these cases—involving very little taxpayers’ money—get to the upper-tier tribunal, where at the moment there is no representation, only advice and assistance. Although I think that there should be representation, I am not asking for it in Amendment 12 because I do not want to add to existing costs. However, of course representation in the Court of Appeal and the Supreme Court should be granted through legal aid because it is quite ridiculous to suggest that claimants should get to that stage, in matters that are about law only, and have to argue their case. It would be impossible and would not help the court in any way. It is common sense that we should ask the Government to say that those matters should be legally aided. That is what Amendment 12 is about. It is quite separate from Amendment 11, which is about advice at a much earlier stage.

I have a quotation from the noble Lord, Lord Phillips of Sudbury. On the matter that Clause 12 deals with, he said:

“Seriously, however, it is not reasonable to demand a citizen even to decide whether he or she has a point of law which can be taken before a tribunal. It is simply unrealistic. One could almost say it is cruel to pretend that we are creating rights for those citizens most in need when they cannot even get advice and representation on points of law at appeals”.—[Official Report, 20/12/11; col. 1725.]

Precisely; that is exactly the point, and I hope that the House will support Amendment 12.

I return briefly to Amendment 11. The proposal to take legal aid out of scope is wrong in three ways. First, it is wrong because it picks on those least able to defend themselves, and not on others whose opposition would be much more powerful. Secondly, it verges on the unconstitutional because it directly attacks access to justice for a large number of people. Finally, and this is one of the crucial points, the cost of not providing advice will be outweighed by the cost down the line. That point has been made by many noble Lords on all sides. We have heard that the House has a tradition of protecting the interests of the poor and the powerless in our society. If we decline to do so on this occasion, we will be diminishing our legal system and making our country a less civilised place. I very much hope that the House will support the noble Baroness, Lady Doocey.

[Lord McNally]

My Lords, if we have a debate about how we help the poor then it is bound to be emotive and emotional. We have had such a debate, and it has been emotive and emotional. If we have a debate about the rule of law, and we had such a debate on Monday, then it will certainly be high minded—although even on Monday I thought that the line was blurred between access to justice as a basic right. a right with a long history in our country, and access to justice funded by the taxpayer, where there have always been limitations and where lines have always had to be drawn. By all means we can have the broad-based debate, and I understand the motives and emotion behind a lot of what we have heard.

The noble Lord, Lord Bach, said that this is the most important amendment in the Bill and he is right. I make no complaint—it is nothing to do with me anyway—but those who grouped these amendments together did so very sensibly, because these amendments, separately and collectively, tear out the heart of the rationale of the Bill. Be under no dubiety about it—that is what this collection of amendments does.

Let me, in making my case, go back to the beginning, as it were. One of the few advantages of being around a long time is that you remember things. I was a junior official in the Labour Party in 1976 when the then Labour Government had to devalue the pound. A great deal of pain and anguish followed as various departments had to undertake cuts. I was actually in Downing Street—in the Cabinet Room, with the Prime Minister and the Chancellor of the Exchequer—when the pound went from $1.95 to $1.47 in a single afternoon, and we sent for the Governor of the Bank of England and then for the IMF. Painful cuts followed. I can see sitting round this Chamber people who had ministerial responsibility or senior Civil Service responsibility. They know that even the most high-minded and principled Government sometimes have to face difficult decisions and make difficult choices and cannot simply rely on the emotion of the moment.

When we came into office we inherited an economy that was out of balance and faced a historically large public deficit. In more prosaic language, that meant that we were all a lot poorer than we thought we were. As a result, across government, we have had to take some very tough decisions on public expenditure. As I have said before, my department had to make cuts of £2 billion out of a total budget of £10 billion. It is easy to say—I have heard it today—that £1 million, £10 million or even £16 million is not so much. Of course, the House has got used to dealing in the rather larger sums of the Welfare Reform Bill. But for a smallish department with a small budget, and with a very restricted number of areas where cuts can be made, that involves taking tough decisions.

The noble Lord, Lord Bach, has indicated that he is going to divide the House. I hope that those who are going to go into the Lobby—many of whom have had to take responsibility for budgets, for making cuts and drawing lines—will not do so simply in the cavalier view that this will send a message to the Government.

[Lord Avebury]

Will my noble friend allow me—

[Lord McNally]

No. I have been here for two hours—

[Lord Avebury]

So have I.

[Lord McNally]

And I have heard a lot. The House has to move on. We want to get through Schedule 1.

This is not a debate about who cares most; it is about whether this House is willing to take the tough decisions that our economic situation requires, or whether it is simply going to push the problem down the corridor for the other place to take those decisions. That is it, because the other place will have to take those decisions whether we do so or not.

I believe that these amendments dismantle the central architecture of the Bill and our reform programme. As a result, as I have said many times, it will come as no surprise to the House that we have had to make these difficult choices about legal aid, as we have done with every aspect of MoJ expenditure. I know that we are debating issues about which noble Lords care deeply; I do not think there is any monopoly on that. There will be noble Lords who will follow me into the Lobby tonight who have just the same—if I may use the words of the noble Lord, Lord Carlile—“determinations of principle and conscience” as those who will not.

I remind noble Lords that the reform programme is specifically aimed at protecting the most vulnerable. The noble Lord, Lord Bach, talked about the social welfare programme being “decimated”. We will still be spending an estimated £120 million a year on funding for private family law; £50 million on categories of social welfare law; an extra £10 million a year on mediation; £6 million on clinical negligence; and £2 million on education.

We are keeping legal aid for child parties in family proceedings. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We are keeping legal aid for people with mental health problems or who lack capacity for cases that determine their vital interests, and for advocacy in front of mental health tribunals. Legal aid will be retained for judicial review of welfare benefit decisions, and for claims about welfare benefits relating to contraventions of the Equality Act 2010. We will agree to extend funding to victims of human trafficking and domestic child abduction—something I know that the noble and learned Baroness, Lady Butler-Sloss, is interested in.

Our reforms have been deliberately designed with these cases in mind. Crucially, as I said in the House on Monday, we will amend the Bill to enable the Lord Chancellor to bring areas of law back into the scope of legal aid. When the noble Lord, Lord Phillips, rose, everyone groaned that there was nothing more that could be said. But I congratulate him on being the first to mention what was a very significant concession by the Government, in that what was a ratchet in the Bill is now a regulator. If some of the doom and gloom is proved to be true, the scope is there to respond to those facts.

While we are clear that our reforms are the right ones, we believe that this is an important amendment. As has also been said, the Treasury has announced that additional funding in this spending period will be available for the not-for-profit sector. As noble Lords know, we believe that in many social welfare cases it is not legal advice that people want; it is simply advice. We will support the advice sector to do just that. While we appreciate that many people rely on welfare benefits, these decisions are made in a tribunal, which is a court especially designed to ensure that claimants do not require legal representation. They are also primarily about financial entitlement and do not raise such fundamental issues as cases concerning liberty or safety.

As I have mentioned, the Government are committed to ensuring that not-for-profit advice, as well as other forms of welfare benefit advice, remains to ensure that claimants are clear about what they are entitled to claim and how they can seek redress. However, as those colleagues who have sat in another place and have advised constituents in these areas can testify, legal advice is not required in all these cases. That said, legal aid will be retained for the judicial review of welfare benefit decisions and for claims about welfare benefits relating to a contravention of the Equality Act 2010.

Amendments 21 and 46 concern legal aid for children and vulnerable young people but, as I have already said, it is simply not true to suggest that there will be no funding for cases involving children and young people. These amendments seek to bring into scope certain civil legal services for any person aged 24 or under who has a disability, is a former care leaver or a victim of trafficking, or has other vulnerabilities as prescribed in regulation. I should at this point tell the House that the Government intend to table an amendment at Third Reading on legal aid for victims of trafficking and claims for compensation.

The Bill also has important safeguards for children and adults who lack capacity or require treatment for mental health issues. Paragraph 5 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: that is, medical treatment including psychological treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, the capacity to enter into sexual relations or the right to family life.

Paragraph 5 of Part 1 of Schedule 1 provides that legal aid may be made available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning the medical treatment of patients or those who lack capacity. Paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the mental health tribunal. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope. The exceptional funding scheme will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as rights to legal aid that are directly enforceable under European Union law.

On Amendment 46, about children, we are already keeping legal aid for child parties in family proceedings. Therefore, part of this amendment is superfluous. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them. I have already mentioned that the Government recognise the importance of funding in a range of cases where children’s interests are key. That is evidenced in how we have proposed to allocate legal aid funding by protecting funding in those areas that specifically involve children.

I am very willing to meet my noble friends and others who have asked to meet me between now and Third Reading, but I cannot make promises or give guarantees. We have retained legal aid for child protection cases and civil cases concerning the abuse of a child, as well as for cases concerning special educational needs assistance. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings. In civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s “litigation friend” rather than the child themselves. This is a normal part of the rules on civil litigation; the civil justice system as a whole does not generally require children to act on their own behalf.

We have also made it clear that one of the key criteria for the exceptional funding scheme is the ability to represent yourself. This will obviously be relevant where a child is bringing an action without a litigation friend. We must also ensure that we do not create a loophole in the system through which lawyers might encourage parents to attempt to bring civil litigation in their children’s name purely to secure funding that is otherwise outside the scope of this area of the law.

Amendment 45 seeks to make legal aid available for private family law cases where, in the course of mediation, the mediator has identified issues pointing to potential child abuse, a point addressed by the noble and learned Baroness, Lady Butler-Sloss. Legal aid will remain available on a means and merits free basis for public family law proceedings where a local authority seeks to take a child into care, at a cost of around £300 million a year. Legal aid would also be available in private family law proceedings where a child was at risk if those proceedings were an alternative to public law proceedings. An example of this would be legal aid for a special guardianship order for grandparents where the local authority had decided that this would be a preferable solution to taking a child into care. We have also expanded our original proposals on providing legal aid for private family cases where domestic violence is present to include evidence of child abuse.

The child-specific evidence here is the fact of a child protection plan as put in place by a local authority, although other types of evidence relevant in domestic violence cases would also apply. This is particularly relevant in respect of Amendment 45, which would use the evidence of a mediator to qualify someone for legal aid. It is of course important that a mediator reports any suspected child abuse to the local authority, and mediators are obliged to do so under their code of conduct. The local authority would then investigate, and if the mediator’s suspicions were confirmed, where relevant it would put a child protection plan in place. Alternatively, the authority may start immediate public law proceedings. Either way, legal aid would then be available either for private or public proceedings. Such a system ensures the well-being of the child, which must be the priority, but it would seem slightly strange to pre-empt the results of a local authority investigation by granting legal aid for a private family matter. Of course, if there was an emergency and the local authority for whatever reason was not taking action, legal aid would be available, with the benefit of a financial eligibility limit waiver, for someone to take out a protective injunction. Legal aid would also be available where a subsequent local authority investigation found that the issues were substantiated and a child protection plan put in place. The safeguards in the Bill are sufficient to secure the safety of children, and legal aid where it is needed.

Amendment 101—I see the humour in the number—seeks to include a power in the Bill to fund the not-for -profit sector to do work that is outside the proposed scope of the civil legal aid scheme. I can assure the House that we have been listening to the concerns raised about the sustainability of the not-for-profit sector, and we agree with many of them. As I listened to the noble Lord, Lord Newton, I recalled one of the advantages of a long life. One of the few successful things I did when I was in the House of Commons was something that I think cost the then Tory Minister, Gerard Vaughan, his job. He tried to cut CAB funding. I do not know whether the noble Lord, Lord Newton, was a member of the Government who sought to cut CAB funding at the time, but it just goes to show that what goes around, comes around. The Ministry of Justice already has the power to provide grants to not-for-profit organisations. For example, we are already funding the Money Advice Trust, a not-for-profit sector organisation that is responsible for running National Debtline.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord McNally]

Oh look, they are all waiting. It is the responsibility of Cross-Benchers, who supposedly, I am readily assured, are deciding individually to consider, as I am sure they do, whether their experience of having to take tough decisions in tough times merits filleting this Bill, as this series of amendments would do. What I have said in this speech makes a mockery of the idea that we are decimating—

[Baroness Royall of Blaisdon]

My Lords—

[Lord McNally]

No, I will not give way. Noble Lords have had a very good time. I have a right to point out that the attack that we have decimated social welfare law does not stand up. So much has been said in this debate, but it has been a matter of presenting doomsday scenarios and making predictions that may or may not come back. We have made many concessions, which makes this a better Bill, and I thank the House for that, but I hope that the House will not be lulled into taking a decision that will take the tougher responsibilities —the Budget responsibility and the public spending responsibility—down the Corridor. We should have the courage to make those decisions here and now.

[Lord Laming]

My Lords—

[Lord McNally]

No, I am not giving way. I am not giving way.

[Noble Lords]

Sit down. You have finished.

[Lord Laming]

The House will realise that I rarely intervene in matters of this kind. In fact, I would go as far as to say that this is the first time that I have intervened. I hope that the noble Lord the Minister, for whom I have the highest regard, will withdraw any suggestion that if members of the Cross-Bench group go through the Lobby supporting these amendments, they are behaving irresponsibly.

[Lord McNally]

Cross-Benchers are individuals who make up their own minds. I am entirely right to say that decisions that we have taken in the context of this Bill relate to public expenditure and the need to bring this economy under control. I will also say this, because we have had enough examples in Europe in the past year: if you lose control of your economy you go into another round of public expenditure cuts. Part of the reason why we have been able to have this debate today is the success of the Government in stabilising the economy.

What we have never heard—and I hope that the Cross-Benchers will also put this into their minds when they make their decision—is that members of the party opposite were committed to making a similar round of public expenditure cuts. That is their right in opposition, but they did not have to spell out where or how or when. That is very comfortable in opposition, but I am proud that we in the Government have taken those decisions. I hope that those who are willing to accept that we have taken tough decisions will give us their support in the Lobby tonight.

[Lord Low of Dalston]

My Lords—