Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Phillips of Sudbury Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I declare an interest as president and founder of the Citizenship Foundation, which is the principal educator about the law in schools in this country. We work with more than half of all primary and secondary schools and try to give young people a sense of what it is to be a citizen of the modern, highly complex state. I commend the noble Lord, Lord Bach, for bringing forward this amendment and, indeed, I commend the Minister and the Government for an imaginative clause. I do not think that a clause such as this has appeared in legislation before, and I wholly commend it.

I have only a couple of points to add to what the noble Lord, Lord Bach, said in moving his amendment. The first is that we still live in a system where ignorantia legis neminem excusat, which is all very well if you know Latin and if you know a bit of law, but the average man or woman in the street, let alone the average pupil in any of our schools, is understandably, predictably, woefully ignorant of this extraordinarily complicated society and state that we have given birth to, principally, I have to say, in these Houses of Parliament. I have mentioned before, and I have to mention again in relation to this amendment and this clause, that we have a larger corpus of statute law than any democracy in the world by far and, of course, we are supposed to be a common law system, so it is not as if it stands on its own.

I believe that one of the principal causes of civic disaffection, if I can call it that, in this country, which I think is present and apparent on all sides—and I do not refer just to the riots a few months ago, I refer also to the declining turnout at elections and the declining inclination of people to stand for office in local government and so on—has everything to do with how people, not even consciously, feel that somehow we carry on here in total disregard of them out there. They never get asked, and they never get told, unless there is an election on, when all candidates are deeply keen to engage with the public at large. We have to do something about this. I am delighted to see that this clause is here. I shall be interested to hear what the Minister and other noble Lords say, but I would have thought that the importance of doing something about this is so pressing and so little understood that to have a requirement here rather than a discretion would, on balance, be desirable because there is no time to lose.

I shall give one small example of what a desert there is of accessible information about the law. It is that the Citizenship Foundation publishes the Young Citizen’s Passport, which is a passport to the law that will affect young citizens when they leave the school gates or, indeed, before they leave them, to do with housing, sex, contract and so on. The Citizenship Foundation has sold 2 million copies of this booklet, and that is not a small number. I suggest that that gives an indication of what a thirst there is for accessible, practical information about issues of law that are not voluntary for anybody, but are compulsory for everybody. I wholeheartedly support this amendment.

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[Lord Bach]

We spent quite a lot of money on it, and planned to spend more. I think that that is as far as we can take it tonight, but if the noble Lord can supply the figures, if there are any, that would be helpful to the Committee.

I want to thank all noble Lords who have spoken in this fairly short debate. I particularly want to praise the noble Lord, Lord Phillips of Sudbury, for his role in the Citizenship Foundation. As my noble friend Lord Howarth pointed out, it is wrong to congratulate him this week if citizenship is no longer to play the role that it has done in the curriculum. I suspect that the noble Lord, Lord Phillips, will have more to say on that, perhaps even now.

[Lord Phillips of Sudbury]

My Lords, I would simply like to make clear that the noble Lord, Lord Howarth, was right up to a point: the issue is not decided. There is everything to play for. I say to anybody in this Chamber who thinks that it would be a bad step, please get your pen out and write to Mr Gove.

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[Lord Phillips of Sudbury]

My Lords, I want to make one point and one point only but I hope to do so forcibly. If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted. It is a small but significant group, and it would be an irony if the most needy people in our society were the very ones who were, in effect, cut off from access to legal help when they most needed it.

I say this from a considerable amount of personal experience working for the Samaritans and for one of the London law centres, and from my life as a young solicitor in a general practice and, indeed, as the director of the first national legal telephone helpline. I emphasise to the Minister that the problem really is not at all obvious. It is a commonplace that the younger generation today is phenomenally computer literate and so on, but there is still a small group of people who are totally lacking in self-confidence and in an ability to analyse their own problems, and they are fearful of being made fools of on a telephone. I could go on describing this group. I quite accept that for the majority of people what is currently proposed is fine but, as my noble friend Lord Shipley and others have said, we must, whatever else we do, have a second route into legal help which does not cut off that most needy group.

[Lord McNally]

I thank noble Lords for their comments. A number of points have been raised. The helpline is an 0845 number. However, callers can text or call to request a call back at minimum cost, and the call back will be entirely free. There is also an online form which can be sent to the helpline at no cost. The helpline is a confidential service and the legal advice given will be protected by legal professional privilege.

I hear what my noble friend Lord Phillips says, although it is ironic that one of the experiences that he quotes is that of the Samaritans, whose service is based on the telephone. I hear that there will be this needy section of society but I suggest that the range of services mentioned by my noble friend Lord Shipley will capture these people. There are also health visitors and local councillors. If there are such people in our society and if they are disabled in this way in the broader sense of that word, they will get advice. I really think that it is taking the argument too far to say that there must be a system that can identify the individual who is so afraid of the modern world that he will not engage. No system on earth can cover that.

I am not being flippant about what we are addressing now but, when we were involved with broadcasting issues, noble Lords would make a great fuss about some mythical pensioner, who lived in the West Riding, had a nine-inch Bush television and would ask whether she would be able to get the television stations when we switched to 625 lines from 405. We can always take things to the extreme, but the people who were mentioned by my noble friend Lord Phillips and others are those who will be given other sources of advice to enable them to go through the gateway.

I will deal with the issues raised by the noble Baroness, Lady Grey-Thompson. She asked how records will be kept. Recordings and case records will be retained for six years after the contract with the provider has expired. If a caller calls on more than one occasion, the operator will hold on to the information held. She asked whether an advocate can ring on behalf of a client. All clients will be assessed on a case-by-case basis and a caller identified as being unable to give instructions, or to act on advice given, will be referred to a face-to-face advice service and there will be provision for a third party to call a gateway on a client’s behalf.

We have taken on board the issues of people with learning difficulties or mental health issues. Where a client who lacks capacity contacts the specialist telephone advice service, or the adviser believes that they may lack capacity, the advice provider will need to follow relevant professional standards. However, the specialist advice service will be able to discuss the details of the case with an authorised third party.

The noble Lord, Lord Shipley, raised the question of whether the operating service may not correctly diagnose a problem. Only where the operator service is fully satisfied that it has correctly diagnosed that a case is out of scope will they make a decision. If there is any doubt, they will refer the matter to a legally trained specialist. The noble Lord, Lord Bach, asked how people will know how to ring the helpline. We will be developing a communication strategy between now and 2013 when it will come online. That was also a question asked by the noble Baroness, Lady Grey-Thompson. That information about the line will be appropriate and specifically targeted to routes that individuals currently use to find out information.

Both the noble Lord, Lord Howarth, and the noble Baroness, Lady Grey-Thompson, asked whether helpline operators will be legally qualified. The answer is no, because they do not offer callers legal advice. They are fully trained to identify key words from a client’s description of a problem to ensure an accurate diagnosis. That means that the client can then be passed on to the appropriate legally trained adviser who is able to give advice on the relevant point of law.

The noble Lord, Lord Shipley, and the noble Baroness, Lady Grey-Thompson, asked about qualifications. Gateway operators are fully trained. Telephone advice specialists are required to have the same level of qualification as their face-to-face equivalents.

I am well aware from the debate that noble Lords have concerns about the mandatory single gateway and the Government are seeking to give assurances about those concerns. Amendment 4 relates to Clause 1 and would affect the introduction of the mandatory single gateway as set out in the Government’s consultation response on legal aid reform. It is essential that the Government should seek to provide legal aid services in a cost-effective manner that meets the needs of their clients. However, this amendment seeks to fetter the Government’s flexibility to do so by placing the specific duty on the Lord Chancellor under Clause 1 that for those people eligible for legal aid, those legal aid services must be available in a range of forms and that this must include face-to-face advice. This would preclude the possibility of providing, subject to exceptions, legal aid services in certain areas of law only through specialist telephone advice services. This amendment would also conflict with the provisions in Clause 26(1) and (2), which provide that the Lord Chancellor’s duty at Clause 1 does not, where an individual qualifies for legal aid, include a duty to secure that services are made available by the means selected by the individual. The Lord Chancellor may discharge that duty by arranging for services to be provided by telephone or by other electronic means.

The Government explained in their consultation response their intention to implement a mandatory single gateway, based on the community legal advice helpline, initially in a restricted number of areas of law. Clients in these areas would generally be required to apply for legal aid over the telephone or other electronic means, and would then, if they qualify for legal aid, be offered legal aid advice only over the telephone or other electronic means. The areas of law concerned are debt, in so far it remains in scope; community care; discrimination—in other words, claims relating to a contravention of the Equality Act 2010—and special educational needs. There would be an exception to using the mandatory single gateway to the four areas of law covered by the gateway. These would be emergency cases; instances where the client had previously been assessed by the mandatory single gateway as requiring advice face-to-face within the last 12 months and is seeking further help to resolve link problems from the same face-to-face provider; and clients who are in detention, including prison, a detention centre or a secure hospital, and children, defined as those under the age of 18.

In the legal aid consultation response, we also explained that where clients access the community legal advice helplines through the mandatory single gateway in those four areas of law, we expect that those who qualify for legal aid would normally be transferred to the community legal advice specialist telephone adviser. However, both gateway call operators and specialist advisers will assess the specific needs of all callers on a case-by-case basis. This assessment will be based on the personal circumstances of the client and the nature of the issue about which they are seeking legal assistance. Generally speaking, the key consideration is whether the individual client or someone on their behalf will be able to give instructions and act on the advice given. But where it becomes clear that legal representation will be necessary, clients will be given the option to see a face-to-face provider.

Where it is determined that face-to-face advice will be more appropriate for the caller, they will, where possible, be given a choice of face-to-face advice provider either from a list of suitable advice providers or a specific suitable provider known to the client. The Government do not believe that there will be any significant delay to an individual receiving the help they need or any increased bureaucracy caused by the introduction of a gateway. In some cases—for example, where a client does not know which provider will be able to help—we believe that telephone advice is likely to be quicker even where a referral is to a face-to-face provider. The Government believe that the diagnostic and routing service offered by the gateway will be of value to many.

Amendments 114 and 116 would require that where legal aid services are provided by telephone or other electronic means, those services should be provided solely by a not-for-profit sector. I recognise and value the important role that not-for-profit organisations play in delivering advice at the local level. I also recognise the concerns of many noble Lords about not-for-profit organisations and the future provision of advice services. However, seeking to create a type of monopoly for not-for-profit organisations is not the way to address this.

As noble Lords will be aware, it would not be possible for the Government to commit to awarding contracts for telephone services solely to a specific sector, as any services commissioned by public bodies are subject to EU procurement rules. However, not-for-profit and charitable organisations can and already do bid for contracts to provide specialist telephone advice under the existing community legal advice helpline. At present, six of the 15 contracts for specialist telephone advice through the helpline are held by not-for-profit or charitable organisations. Future contracts will continue to provide opportunities for such organisations to bid to deliver specialist telephone advice services through the helpline and the telephone gateway. Of course, such organisations are also able to bid for the telephone operator contract for the helpline. The amendments would also mean that the criminal legal aid telephone advice service, CDS Direct, could be provided only by the not-for-profit sector. Not-for-profit organisations do not currently provide telephone criminal legal aid advice and I am not aware that they wish, or are currently equipped, to do so.

Related to general concerns about the future provision of face-to-face advice services is the decision to limit the initial scope of the telephone gateway to four areas of law, which will have a more limited impact when compared with the original proposal set out in the consultation paper. The Government are confident that implementing the telephone gateway in limited areas of law will enable better monitoring of the impact on clients and providers in order to inform future decisions about any further expansion of the gateway.

On future civil legal aid advice provision more generally, the Government are committed to ensuring that people continue to have access to good-quality, free advice in their communities. This is why the Government have launched the advice services fund and a review of free advice services. They have set aside £20 million—I say to the noble Lord, Lord Beecham, that it is the same £20 million; I am not announcing yet another £20 million—to support the not-for-profit sector in the short term. The fund will provide immediate support to not-for-profit advice service providers in England to deliver essential debt, welfare benefit, employment and housing advice services. The details of the fund were announced on 21 November by my honourable friend Nick Hurd MP, the Minister for Civil Society.