Mental Capacity Act 2005: Small Payments Scheme
Lord Touhig Excerpts(1 year, 9 months ago)
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Lord Bellamy (Con)
My Lords, essentially, there was general support for the idea of some sort of scheme, or at least some simplification of the process, but no consensus on what safeguards we should have. In particular, most banks and financial services companies expressed concerns about what they would have to do to carry out the relevant checks. There would be quite a small demand and it would be quite expensive for most institutions to provide the relevant service. In those circumstances, the Government decided that this was a case where we should avoid legislation and work to improve the present system.
Lord Touhig (Lab)
My Lords, do His Majesty’s Government know how many of the 6 million child trust fund holders lack capacity? If this is not known, how can fund providers be sure that it is right to release funds to third parties? I ask this question because there is concern that some fund providers are not as diligent as they ought to be in this regard.
Lord Bellamy (Con)
My Lords, I cannot comment on how fund providers operate their relevant systems. The number of adults holding child trust funds who have become adults and lack capacity is quite small—it is thought to be around 1% to 2% percent—but it is none the less significant and the risk of abuse is quite prominent.
Child Trust Funds
Lord Touhig Excerpts(3 years, 2 months ago)
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Lord Wolfson of Tredegar (Con)
My Lords, the noble Baroness has put her finger on the point. What we have to do here is balance the need to protect vulnerable young adults—because that is what they are—with their desire and that of their parents and guardians to access small amounts of money speedily and efficiently. It is that balance which the consultation will be aimed at.
Lord Touhig (Lab)
My Lords, I declare my interest as a vice-president of the National Autistic Society. Seven months ago, I told the Minister that, for families of autistic youngsters seeking to access the child trust fund, the Mental Capacity Act code of practice was a barrier. Mr Justice Hayden in the High Court said that the wording of the guidance needed to be revisited. In reply, the Minister said that he had met Mr Justice Hayden and that the Government were looking to address this. Can he tell the House: whether the Government have completed their look, and can he give us an update?
Lord Wolfson of Tredegar (Con)
My Lords, the position with the Court of Protection is this: we did invite the court to look afresh at all its forms—that is a matter for the court and not the Government—and it declined to revise its forms. We want to do two things: first, consult on the small payments scheme, which I think really is the answer here; and, secondly, educate people. If people apply to the court before they turn 18, there is no time pressure and everything can be completed before the legal problem arises—which is at the point when the child becomes an adult and the parents, therefore, cannot access the money without an order of the court.
Child Trust Funds: Children with Learning Disabilities
Lord Touhig Excerpts(3 years, 9 months ago)
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Lord Wolfson of Tredegar (Con)
My Lords, the noble Baroness is right that fundamentally this is about safeguarding the interests of the young person. On the Court of Protection, staff have been coming into the court throughout the pandemic to make sure that it can continue to function. They are putting in place new digital ways of working to streamline and simplify their processes and will ensure that there is as little administrative and procedural delay as possible.
Lord Touhig (Lab) [V]
My Lords, I declare my interest as a vice-president of the National Autistic Society. The needs of autistic youngsters differ: some lack capacity to make financial decisions, the capacity of others may fluctuate, but the need for parental support is vital. Yet the Mental Capacity Act code of practice says that family members should be appointed as welfare deputies in only the most difficult cases. This adds to the problem that parents of autistic youngsters have in accessing the child trust fund. Mr Justice Hayden in the High Court said that the wording of the guidance should be revisited; when are the Government going to do this?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord for referring to Mr Justice Hayden, with whom I have met and who I know is personally committed to resolving this. It is fair to say that our understanding of all sorts of mental capacity is considerably greater now than it was in 2005, when the Act was passed, and in 1995, when the Law Commission reported on this issue. We are therefore looking to address this.
Learning Disabilities: Child Trust Funds
Lord Touhig Excerpts(3 years, 10 months ago)
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Lord Wolfson of Tredegar (Con)
My noble friend is absolutely right that, because these funds are generally of relatively small amounts of money, it is all the more important that court procedures, which are designed to comply with the Mental Capacity Act 2005, are both accessible and proportionate. Rules and procedures are a matter for the courts, not Ministers, but I will do all I properly can to ensure that children and young adults with a learning disability can access what are, after all, their own funds.
Lord Touhig (Lab) [V]
My Lords, in December, some finance firms started to allow parents supporting a disabled youngster to access trust funds without a court order in exceptional circumstances. Some 30% of families benefit, but 70% are still required to go to court. Last week, in a meeting with the Investing and Saving Alliance, officials from the Minister’s own department refused to support this—why?
Lord Wolfson of Tredegar (Con)
My Lords, it is not for the Government to comment on the development of private sector proposals and the extent to which—and whether—they comply with the relevant legislation. We are working with all the financial trade bodies to ensure that parents and guardians of young people who do not have the required mental capacity to make the decision to access a child trust fund at age 18 are aware of both lasting powers of attorney and the important benefit of making an application to the Court of Protection before they reach 18 to avoid court fees.
Criminal Justice System: Autism
Lord Touhig Excerpts(9 years, 11 months ago)
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Lord Touhig (Lab)
My Lords, a young Japanese boy by the name of Naoki Higashida wrote a book entitled The Reason I Jump. It should be basic reading for anybody in public service who has to deal with other members of the public. It is just 198 pages long and is set out in a question and answer format. There are just 58 questions, each question no more than 10 words long, with the answer about 100 to 150 words long. Question 21 in the book is relevant to today’s debate. The question which some people ask him as an autistic person is:
“Why don’t you do what you’re told to straight away?”.
He answers:
“There are times when I can’t do what I want to, or what I have to. It doesn’t mean I don’t want to do it. I just can’t get it all together, somehow. Even performing one straightforward task, I can’t get started as smoothly as you can. Here’s how I have to go about things.
1. I think about what I’m going to do.
2. I visualise how I’m going to do it.
3. I encourage myself to get going.
How smoothly I can do the job depends on how smoothly the process goes.
There are times when I can’t act, even though I really, badly want to. This is when my body is beyond my control”.
That one sentence jumps off the page for me:
“How smoothly I can do the job depends on how smoothly the process goes”.
Just think of that sentence, and how easy it would be for the most basic and simple encounter between a police officer and an autistic person not to go smoothly, and to get out of hand.
The plain truth is that people with autism have no more desire to commit a crime than any of us. But what may start as an innocent inquiry—an encounter with a police officer—could lead to a crime being committed. A situation could escalate simply because the police, in the main, have no idea about, and lack sufficient training in dealing with, people with autism.
People with autism communicate in a way that is not familiar to most of us. The command of spoken language in a person with high-functioning autism or Asperger’s syndrome does not necessarily indicate their true level of understanding or social awareness. The wider implications of a situation may not be apparent to a person with autism, and they may not understand the kind of information they need to give in response to questioning. People with autism are also often unaware of the consequences of their actions or the effect their behaviour will have on other people, because they do not link cause and effect.
Put yourselves in this position, my Lords, and imagine that you are autistic and for one reason or another enter into a confrontational situation with a police officer. Imagine the police officer telling you to do something. They, rightly, expect you to respond immediately. And then remember that young man’s question 21:
“Why don’t you do what you’re told to straight away?”
And his answer:
“There are times when I can’t do what I want to, or what I have to. It doesn’t mean I don’t want to do it. I just can’t get it all together, somehow”.
People with autism are often very single-minded about their interests, and can be unaware of the effect that their actions could have on others, or that those actions could lead to them putting themselves or others in danger, or committing a crime. A person with autism, when faced with a situation such as arrest, or following an incident, may have difficulties in managing their emotional reaction. The response of the criminal justice system to this is crucial. But without appropriate training in autism, the situation could escalate, leading to inappropriate sanctions being taken against a person with autism.
The refreshed autism strategy, Think Autism, which the Government published last April, commits the Home Office to working with the College of Policing to update the mental health training for new officers, and to look at the feasibility of an autism marker being used on the police national computer, so that police officers can identify whether someone has autism, and make appropriate adjustments. That point was well made by my noble friend Lady Uddin, who we congratulate on securing this debate. The strategy was signed off by both the Home Office and the Ministry of Justice. If there were a marker on the police national computer, it could also be seen by other criminal justice system professionals, including prison and probation staff. So may I ask the Minister what progress has been made in this area, and what processes exist to roll out autism training to all police officers and prison staff, not just to new recruits?
Contact with the criminal justice system will have a significant impact on a person’s life. This is no less true of a person with autism. Such contact may also be a sign that their existing care and support is no longer working. For some people with autism, the situation may have been compounded over recent years by their no longer being eligible for support as a result of changing criteria—or perhaps they never qualified for support in the first place.
I share the disappointment of the National Autistic Society—here I must declare an interest as a vice-president of that organisation—that the revised adult autism strategy failed to highlight the need to reassess a person’s needs when they enter or leave the criminal justice system. So I ask the Minister: what steps are the Government taking to ensure that people with autism in prisons are identified and given appropriate support? I must stress that they need to be properly assessed to ensure that support will be there for their journey out of prison and back into the community.
Like the noble Lord, Lord Addington, I believe that training plays a key part in trying to overcome some of these problems. The questions and answers in the small book that I have spoken about should be essential reading for everybody working in the public sector. It would make a difference in solving some of these problems.
Criminal Justice and Courts Bill
Lord Touhig Excerpts(10 years, 5 months ago)
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Lord Hodgson of Astley Abbotts (Con)
My Lords, my name is on the amendment. The noble Lord, Lord Low, has made a powerful speech. I do not intend to repeat his arguments and I shall not detain the Committee long.
In this case we must surely be seeking a balance. There is the need to ensure that the position of children or dependents of a person detained in custody is properly protected at a time of considerable trauma and family disturbance. The impact on the children of a parent, particularly a mother, going to jail has been well documented—it has been referred to by the noble Lord, Lord Low, and in briefings that your Lordships will have received from Barnardo’s and other NGOs—and that is one side of the balance. The other side of the balance is that we have to do this without tying up the courts in extensive bureaucratic form filling, much of which is time consuming and may prove ineffective. It is the balance between those two considerations that Amendment 55A seeks to achieve.
All that remains for me to do is to thank the Minister, his officials and, indeed, the Government for the courtesy they have shown in considering this difficult matter. I hope that this redrafted amendment will commend itself to him.
Lord Touhig (Lab)
My Lords, I support the noble Lord, Lord Low, and other noble Lords on Amendment 55A. I do so having supported a similar amendment to the Anti-social Behaviour, Crime and Policing Bill in November 2013, to which an amendment was tabled by the noble Lord, Lord Ramsbotham, with my support. This is a straightforward request. It simply requires the courts to inquire whether individuals who are refused bail or are sentenced to prison have caring responsibilities for any children or vulnerable adults; and, if they do, to allow them or another—probably social services—to take the appropriate action to provide care and support. With representatives of the Families Left Behind campaign, the noble Lord, Lord Ramsbotham, and I had a very good meeting with the then Minister, the noble Lord, Lord McNally, who was very helpful and encouraging to us at that time. I was even more encouraged later when I received a reply to a letter I had sent to Lord Justice Gross, the senior presiding judge in England and Wales, who agreed to reissue existing guidelines to the courts on this matter. Although that is certainly most welcome, we need to underpin the whole issue with this amendment.
Lord Faulks
I entirely agree with my noble friend. It is important that it should be acquired before sentence rather than after sentence.
The Children Act 2004 already requires inter-agency co-operation to safeguard and promote the well-being of the child. It is important that probation staff—albeit that in the view of the noble Lord, Lord Low, they have become more concerned with offender management —those working in court or those preparing pre-sentence reports have a responsibility to consider the impact of custody on an offender’s children. All those who have read such reports will realise that that is almost always a central feature of them. If there is a likelihood of custody then children’s services will be alerted by probation to ensure that arrangements are in place to safeguard the well-being of any children. We are working to ensure that this system of assessment and referral is as robust as possible for both pre-sentence report assessment and court practice. This is a very important role for the new National Probation Service.
Much reference was made to the existence of troubled families, and quite rightly so. The Government understand the challenges and poor outcomes faced by children dealing with parental imprisonment, including higher risk of mental illness, poor educational outcomes and offending in later life. I agree it is important that these families receive appropriate support, alongside support for offenders’ rehabilitation and for tackling inter- generational offending. We have already had conversations with organisations such as Barnardo’s to discuss the issues raised by its report On the Outside, published in May this year, and intend to expand our discussions wider to other government colleagues, criminal justice system agencies and practitioners such as legal representatives.
The scope of this approach is potentially very wide—childcare is obviously a pressing concern—but there are also other concerns for families of offenders: financial support, continuing accommodation and so on. This is another reason why it is simply not realistic for the criminal courts to step in and manage an offender’s life after they have been convicted. However, there is a role for government here. That is why we are working across government, and in partnership with local authorities under the troubled families programme, to turn around the lives of 120,000 families suffering from the most complex problems by May 2015. We have already announced an expansion of the programme to an additional 400,000 families from 2015-16. The next phase of the programme will focus on families with a broader range of problems.
I should also mention the important role of the charitable voluntary sector. My noble friend Lord McNally has in the past paid tribute to the work that organisations such as Pact have done and continue to do to support the families of those in custody. I add my own appreciation of that important work and my commitment that the Government will look at how we can both publicise and support the services those organisations provide. I am glad to hear that Lord Justice Gross is concerned that some further guidance should be given in relation to the problem identified by the amendment.
Lord Touhig
Perhaps I did not make it clear that, in his reply to me, Lord Justice Gross said he would reissue the existing guidelines, not set out any new ones.
Lord Faulks
I am grateful for that clarification. Perhaps reissuing the guidance will bring it home to those who see it. Perhaps for the first time it will remind them of the pre-existing obligation.
I started my response with a list of reasons why the Government could not accept the proposed new clause, but we believe that the issue should be addressed. It is a difficult area but we are now making progress in developing consensus on the best approach. I hope we can continue to work with noble Lords who have consistently shown an interest in this matter, with Barnardo’s, with the judiciary and with the legal profession to develop the best way to tackle this issue. Although I cannot accept the amendment, we are very much concerned to ensure that nobody should slip through the net in the way that the amendment is directed. I hope that, with the reassurance I have given, the noble Lord will feel able to withdraw the amendment.
Prisons: Prisoners with Children
Lord Touhig Excerpts(11 years, 1 month ago)
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Lord Touhig (Lab)
My Lords, in replying to a debate on this matter on 12 November, the Minister offered a meeting and I certainly look forward to that. I have since read his remarks from that day. When an elderly or disabled person’s carer is sent to prison, the cared-for person often suffers the most as, in many cases, the courts do not even know that they exist. Although I accept that there is the safety net of pre-sentence reports in certain circumstances, when bail is denied there is no pre-sentence report and the court may not know that there is a cared-for person around at all. The consequence is that the cared-for person becomes an unintended victim. How are we going to stop that?
Lord McNally
My Lords, I appreciate very much the point that the noble Lord is making, and I look forward to meeting him and the Prison Advice and Care Trust. In some ways, it is amazing that we are in the 13th or 14th year of the 21st century and that we find these gaps in our care provisions. I often think that it is not that the state does not care but that we are not yet good enough at connecting bits of the state so that people do not fall through the net. As part of the exercise of bringing forward this basic custody screening tool, I hope that by bringing in the expertise of organisations such as PACT we will be able to make sure that people do not slip through the net in the way that the noble Lord suggests.
Anti-social Behaviour, Crime and Policing Bill
Lord Touhig Excerpts(11 years, 1 month ago)
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“Protection arrangements for children and dependants
(1) The Criminal Justice Act 2003 is amended as follows.
(2) After section 174 (duty to give reasons for, and explain effect of, sentence) there is inserted—
“174A Duty to ask about children etc left behind
(1) Any court passing a custodial sentence on an offender who was on bail when awaiting sentence must ask what the arrangements are for the care of any children of the offender or any vulnerable adult who is dependent on the offender while the offender is in custody.
(2) If the court considers the arrangements are not satisfactory the court must make a referral to the relevant local authority social care team.
(3) Any person or body having statutory responsibilities for children or vulnerable adults must co-operate with the court in securing that arrangements are made for their safety in the circumstances to which subsection (1) refers.”
(3) The Bail Act 1976 is amended as follows.
(4) In section 5 (supplementary provisions about decisions on bail), after subsection (5), there is inserted—
“(5A) Where a court withholds bail in criminal proceedings from a person to whom section 4 of this Act applies, the court must ask what the arrangements are for the care of any children of the defendant or any vulnerable adult who is dependent on the defendant while the defendant is on remand in custody.
(5B) If the court considers the arrangements are not satisfactory the court must make a referral to the relevant local authority social care team.
(5C) Any person having statutory responsibilities for children or vulnerable adults must co-operate with the court in securing that arrangements are made for their safety in the circumstances to which subsection (5A) refers.”
(5) This section shall come into force two months after enactment.”
Lord Touhig (Lab)
My Lords, this amendment stands in my name and that of the noble Lord, Lord Ramsbotham, who has asked me to apologise for his absence as he is en route to Kenya as we speak.
This probing amendment would introduce a very straightforward duty on courts to inquire whether individuals who are refused bail or sentenced to prison have caring responsibilities for any children or vulnerable adults and, if they do, to make a referral to the appropriate local authority if arrangements are not in place for their immediate safety and well-being.
The noble Lord, Lord Ramsbotham, if he were here, would have sought to discover more about the Government’s plans to transform the probation service. He would have reminded the House that in pre-Grayling days family details would have been discovered by the probation service, which would have included this information in pre-sentence reports. I know he would have worried that a privatised probation service would not have the time to complete full reports, and I believe that he would have been right to do so.
Our proposed change in the amendment would not have any bearing on decisions about the length of sentence or whether bail is granted, nor would it place any onerous burden on courts to establish care provisions themselves. It is simply about identifying young, old or disabled people who have been left in a precarious situation as a result of their primary carer being imprisoned, so that the appropriate steps may be taken. Regrettably, far too many are let down by the current system.
At Second Reading, I spoke about a seven year-old boy who was neglected and, ultimately, left alone by friends after his mother was sentenced. Then there was the case of the young lady who was unaware of her daughter’s whereabouts and only discovered that she had been hospitalised after a support worker contacted four different councils. Finally, a 19 year-old boy was left caring for five siblings when his mother was denied bail. These give an indication of the kind of cases that organisations supporting this amendment—members of the Families Left Behind campaign—are regularly faced with. Charities such as the Prison Advice and Care Trust, Barnardo’s, the NSPCC and Caritas Social Action Network have all highlighted how vulnerable people are unnecessarily put at risk, sometimes overlooked for hours or even days. In such cases, serious risks often only become apparent when the prisoner talks to a support worker or chaplain about their family.
People facing trial or bail hearings are rightly encouraged to make arrangements for their dependants before entering the courtroom, and many do just that. Where the court is assured that suitable support is in place, this amendment will not necessitate any further action whatever. However, where those arrangements have not been made, perhaps because the defendant was confident of being released or was simply overwhelmed by the judicial process, it offers a vital opportunity for early intervention to prevent people from coming to harm. The importance of avoiding any break in care for children or vulnerable adults is well established. The Government themselves advise that children under 16 should not be left alone overnight; children under 12 should not be left alone for long periods of time; and babies or toddlers should never be left alone at all. The advice continues and warns that parents may be prosecuted if any child is left,
“in a manner likely to cause him unnecessary suffering or injury to health”.
Yet this is precisely the situation some children face when a parent is remanded in custody or sentenced to prison. The longer it takes for the appropriate authority to intervene, the greater the risk becomes.
Likewise, we are only too aware of the danger posed to older or disabled adults by depriving them of necessary support, even for a short time. We have all been appalled by cases in recent years where just one or two missed homecare visits have led to people being left in darkness, unable to use the toilet or even without vital medication. In more extreme situations, people have experienced serious harm, or even lost their lives, after falling through gaps in the system and finding themselves without support. Many steps are being taken to ensure that such tragedies are never repeated and that homecare schedules are properly adhered to. Yet equally robust provision is lacking in situations where a person’s primary carer is a relative or friend and they have been given a custodial sentence.
It is worth revisiting the number of people at risk of being left in these difficult circumstances. Some 200,000 children in England and Wales experience the imprisonment of a parent every year, more than twice the total number of children in the care system. While statistics for adults who experience the imprisonment of their carer are not centrally collected, this figure is also likely to be significant, given that the prison population currently stands at over 80,000 and approximately one in eight of Britain’s adults is a recognised carer. A simple process whereby courts make relevant inquiries and notifications regarding dependants, at the point when a sentence is passed or bail is refused, will go some considerable way to addressing current shortcomings, without creating significant pressure on either time or resources. The proposal also stands to reduce the need for the more intensive and costly intervention often required further down the line if people are left without support.
I therefore hope that we can take this opportunity to adopt this sensible and constructive measure. It is a small change in procedure but it will make a significant difference for a child who finds that there is no one to collect them from school because their mother has been refused bail, or for the elderly parent who finds that there is no one to help prepare their dinner because their son has been handed a custodial sentence. When anyone is sent to prison, the families and dependants who are left behind will invariably feel the consequences. It is perhaps impossible to completely mitigate the impact of losing a parent or carer in this way but we can and must make improvements to ensure that those innocent people who, through no fault of their own, are placed in positions of extreme vulnerability do not go unnoticed.
We are all grateful to the noble Lord, Lord Taylor of Holbeach, who took a great deal of trouble to write on a number of matters that came up at Second Reading but this was one issue that slipped through the net and was not referred to in his letter—just like many of the people who I talked about; they, too, slip through the net. Perhaps the Minister when he replies can give us some hope that our pleas have not fallen on deaf ears. I beg to move.
Lord Touhig
My Lords, I will be brief because I appreciate that other Members want to carry on with other matters. The noble Baroness, Lady Hamwee, made a good point about whether the courts or the Local Government Association have been consulted. I am not sure, but it is a valuable question. However, I should point out that in a note to me, which I mentioned in my opening remarks, the noble Lord, Lord Ramsbotham, did say that currently the probation service would provide family details for a pre-sentence report. Perhaps we are part of the way there.
My noble friend Lord Judd referred to the account of a prison officer who pointed out to him the number of people who are left behind when someone with older people or children to care for is sentenced. The noble Lord, Lord Hylton, made the point that a coalition of charities has come together to help this vulnerable group. However, that coalition has no power to change the law; only we have that power and we should do so. I welcome the remarks made by the Minister and his suggestion of a meeting, but here we have a chance to put in a safety net. I have no crystal ball, but I am as sure as God made little green apples that some way down the line, unless we put in this extra element of support in one way or another, there will be a case where an elderly vulnerable person is left uncared for and dies or a child is left uncared for and dies because of the system. It is not an uncaring system, but it is an oversight that will let people down. With those few remarks, I beg leave to withdraw the amendment.
Legal Aid
Lord Touhig Excerpts(11 years, 5 months ago)
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Lord Touhig
My Lords, I congratulate the noble Baroness, Lady Deech, on securing this debate. I shall confine my remarks to the impact that proposals outlined in Transforming Legal Aid will have on victims of trafficking and domestic violence.
Under the proposals, civil legal aid will be available only to individuals who are lawfully resident in the United Kingdom at the time of their application and have been lawfully resident here for 12 months. At first sight this may seem perfectly reasonable but then look more closely and there are some pretty bad consequences. I am extremely concerned that no exemptions to this residence test are planned for either victims of human trafficking or for women who have entered the United Kingdom as the partner of someone settled here, and then experienced domestic violence at their husband’s hands. This is the more surprising considering that, in an Answer in the other place on 3 July, the Prime Minister described human trafficking as “modern-day slavery”. He added:
“We are looking at legislative options, and I will be chairing a committee across Government to look at what more can be done”.—[Official Report, Commons, 3/7/13; col. 920.]
I hope that Mr Cameron will look at this and perhaps read Hansard for today’s debate.
Legal aid for both of the groups that I have mentioned is explicitly protected under legislation passed only last year but would be removed in a large number of cases under the proposed system. This is despite a series of statements and publications by the Government giving reassurance to those of us who are concerned. Indeed, I find it hard to discern exactly what the Government’s position is, because they keep contradicting themselves.
The noble and learned Lord, Lord Wallace of Tankerness, speaking in this House on 27 March last year at Third Reading of the LASPO Bill rightly acknowledged that, given their “particular vulnerabilities”, support for trafficking victims to resolve immigration matters should be available to them during,
“a period relevant to the experience of being trafficked”.—[Official Report, 27/3/12; col. 1291.]
The same noble and learned Lord said on March 7 2012:
“The ability to bring damages claims against former so-called employers is an important tool to secure reparations for victims and to punish their exploiters”,
and that successful claims,
“discourage those who seek to exploit people for financial gain”.—[Official Report, 7/3/12; col. 1889.]
He said that there was a risk of leaving some trafficking victims without necessary support if cases relied on exceptional funding. He admitted that the scheme was not sufficient to protect victims of trafficking.
However, just two weeks ago, the Justice Secretary, Mr Grayling, said in a letter to Helen O’Brien, the chief executive of Caritas Social Action Network:
“Individuals who do not meet the residence test would be entitled to apply for exceptional funding under the power set out in the Legal Aid, Sentencing and Punishment of Offenders Act”.
I invite noble Lords to contrast that statement from Mr Grayling with the conclusions reached by the noble and learned Lord, Lord Wallace, on 7 March. He said:
“We had always anticipated that legal aid would have been available under the exceptional funding scheme for these damages claims, as was indicated by my noble friend Lady Hamwee, where such cases met the test for exceptional funding under Clause 9 of the Bill”.
However, he added:
“On reflection, we recognise the risk that in some cases this will not be sufficient”.—[Official Report, 7/3/12; col. 1889.]
Perhaps like me, noble Lords are at a loss to know quite what the Government really want to do.
After all, let us not forget that the LASPO Act includes equivalent provision for legal aid funding in immigration cases concerning anyone granted indefinite leave to remain as the partner of an individual settled in the United Kingdom whose relationship then permanently breaks down because they are the victim of domestic violence.
During the passage of the Act, the then Minister, Mr Jonathan Djanogly, emphasised the importance of this provision stating:
“There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 19/7/11; col. 245.]
Since 2002, over 2,000 women have been granted indefinite leave to remain in the United Kingdom following the breakdown of a relationship with a violent partner. While this accounts for a comparatively small fraction of legal aid expenditure, it reflects the significant human cost that would be incurred were such recourse not available.
To be fair, the Government have demonstrated a strong commitment to tackling the horrors of human trafficking. They have also shown a clear determination to prevent and reduce domestic violence. On 24 April this year, Helen Grant, the Minister for Women, Equalities and Victims, told the Salvation Army trafficking conference that trafficking is.
“something that no civilised country should tolerate. It creates victims who are often some of the most vulnerable members of society”.
In the human trafficking strategy published by Theresa May the Home Secretary in 2011, the Government outlined the UK’s positive record in tackling trafficking and committed to a series of measures building upon this, including better care for victims.
The Home Office website setting out the Government’s policy on ending violence against women and girls states:
“We all must do much more to prevent violence against women and girls happening at all”.
It specifically highlights that,
“fewer than one in four people who suffer abuse at the hands of their partner—and only around one in 10 women who experience serious sexual assault—report it to the police”.
Those of us who are concerned about the victims of trafficking and the women victims of domestic violence in the circumstances that I have described have heard warm words from Ministers and read many encouraging statements, but I conclude by saying to the Minister that depriving victims of legal aid for immigration cases risks undermining steps to address domestic violence against vulnerable women and significantly exacerbating the problem of underreporting of these cases. I hope that he and the Government will think again about these proposals.
Crime and Courts Bill [HL]
Lord Touhig Excerpts(12 years ago)
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Lord Touhig
“( ) In fixing such an amount, and subsequent additions, account must be taken of the person’s relevant weekly income, excluding housing benefit and child related benefits, and allowance must be made for the protection of a reasonable financial subsistence level, in the manner used to determine the initial fine.”
Lord Touhig
My Lords, the intention behind this amendment is to ensure that the new financial penalties imposed on people who make late or incomplete fine repayments do not in any circumstances force individuals or families below a reasonable level of subsistence. In particular, it seeks to safeguard the level of income necessary to sustain housing security and to meet the basic needs of dependent children. It is based upon the means-testing system already used to set fines which is accepted by the Government as a suitable mechanism for ensuring that, while offenders feel financial hardship, their welfare and that of their family is not jeopardised as a result. The noble Lord, Lord McNally, in a Written Answer to a Question I posed, stated:
“There is a very fine balance between protecting vulnerable debtors as well as ensuring that justice is served and the order of the court is met”.—[Official Report, 24/9/12; col. WA345.]
I believe that this amendment falls on the correct side of that line; it will prevent neither the penalisation of those who do not keep to their payment plans nor the unprecedented step of recovering operational costs in such cases. It will simply mean that in some situations where this process could hinder a person’s ability to pay for necessities such as rent or family meals, the precise amount recoverable will be adjusted.
The level of concern about the absence of any such safeguard in the Bill as it stands is reflected in the support for this amendment from a number of charities. These include Housing Justice, the largest Christian housing charity in the UK; the Zacchaeus 2000 Trust, a London-based charity for vulnerable debtors; Depaul UK, which works nationwide with disadvantaged young people; and the Catholic Children’s Society in Westminster, which works with some of the poorest families in this area.
I am grateful to the noble Lord, Lord McNally, for agreeing to meet me last week to discuss my concerns about this matter, but he knows that I left the meeting feeling somewhat concerned because I learnt that one of the most worrying aspects of Clause 21 is that the charging structures for the new penalties will not be laid before Parliament, but will be set following commercial negotiations with the firms contracted to collect fine payments—and this will not happen until after Parliament has passed the legislation. In effect, we are being asked to write a blank cheque for unknown contractors with no inbuilt safeguards to ensure that the most vulnerable individuals and families will be protected from threats to their basic subsistence income. With this clause, our system of justice will depend on the negotiating skills of civil servants pitted against private contractors out to make a profit.
The Courts and Tribunals Service, responding to a freedom of information request on October 3, said that the penalties will be set in proportion to the actual costs of chasing up a late or incomplete repayment. But I have discovered that the service does not hold information relating to the average cost of such processes. This means that any reasonable estimation of the likely amounts that people will be charged is impossible to make. In Committee on 2 July at col. 539 the noble Baroness, Lady Northover, admitted that in practice the actual amount may sometimes even exceed that of the initial fine. Moreover, we have seen no substantive analysis of the likely impact on children or on housing security, neither of which is explicitly addressed in the impact assessment.
The Courts and Tribunals Service, in a letter to the Caritas Social Action Network on 5 November, stated that, “we do not believe there will be significant impact on a child’s welfare”. But in another freedom of information request dated 3 September, I find that the service does not hold information on the family profiles of those sentenced to pay fines. It is therefore unable to project how many dependent children are likely to be affected. Similarly, the absence of information on the housing situations of those currently failing to meet fine payment plans prohibits any projection of how the new penalties will affect people’s ability to meet rent payments. In a letter to the Caritas Social Action Network, the service sought to provide reassurance by predicting that the penalties will be “small and proportionate”. But as those with experience of working to support people in financial hardship will know only too well, any amount regarded as small in some circumstances will in fact be very significant in others. This is particularly significant at a time when an increasing number of families are struggling to meet the costs of essentials including heating, food and rent. Even a small change in their income will often have serious consequences.
Lord McNally
My Lords, I am grateful for those interventions. The points made by the noble Lord, Lord Touhig, the noble Earl, Lord Listowel, and the noble Lord, Lord Beecham, are undeniable. There are people whose lives are so dysfunctional and chaotic that they can get into a complete downward spiral in how they manage their lives. It is extremely important that we try to make sure that what happens to them does not make that downward spiral worse.
I am pleased that the noble Lords, Lord Beecham and Lord Touhig, acknowledge that we are dealing with people who have offended, who have been before a court and who have been given a fine. As I said in my opening remarks, if they follow the instructions of the court, they should be able to avoid the worst of the kind of downward spirals that both the noble Earl, Lord Listowel, and the noble Lord, Lord Touhig, referred to. As a former Member of Parliament for Stockport, I could take a rough guess at the estate from which the young lady who was mentioned came. Her story is the other side of the penny to what can sometimes be the bleakest of stories. I have a great-niece who works for Blackpool social services and the stories that she tells me of the sheer dysfunctionality of the some of the families that she has to deal with are out of the range of most of our normal lives.
I do not underestimate this and although I will ask the noble Lord, Lord Touhig, to withdraw his amendment, I emphasise again that, in cases where the most vulnerable are sentenced to pay a fine, it may be deemed appropriate for the court to issue a deduction from benefits order, where a maximum level, which is currently set at £5 a week, can be automatically deducted from the person’s benefits to pay their financial penalty. This is capped at a level so that it does not significantly impact on the person or cause further hardship. This maximum weekly deduction from benefits will not be increased by the introduction of the collection costs, so there is some safety net there.
As I said in opening, the costs will be set at a level that is proportionate to the actual costs of collecting the fine. We are trying and we will be returning to this when we debate the amendment of the noble Baroness, Lady Meacher. On the one hand, we have to be aware of these dysfunctional individuals and families who come into the justice system. However, we have to operate that system and try to get the balance right between the instilling of proper responsibility when it comes to fines imposed by the court and the collection of those fines, so that they do not become a kind of option but are real and we have the means of making sure that they are enforced. At the same time, we must try to ensure that a just punishment of the court does not spiral into unjust impacts on other individuals associated with the person who has to pay the fine.
These are difficult and complex decisions. We hope that we have got them right. I certainly do not object to the noble Lord, Lord Touhig, bringing this matter before the House and his continuing interest in this area. I assure the House that the Government will continue to examine this carefully to see what reforms we can bring forward. The noble Earl, Lord Listowel, referred to the operation of loan sharks. That is something that we need to look at with some urgency as well. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.
Lord Touhig
My Lords, when the Minister came to the Dispatch Box straight after I spoke, I did feel a sense of excitement—I thought he was going to accept my amendment. I thought, “My goodness, there is another Christmas card I will have to send this year”. I am disappointed that the Government do not feel able to support this perfectly reasonable amendment. I fully understand the point the noble Lord makes and I share the view that people who commit offences and are fined should pay those fines. However, I am sure that nobody in this Chamber knows the level and degree of poverty that the people we are talking about tonight experience. The fines might not be a large amount to us but £15 is two weeks’ electricity for a poor family. I fully accept that those who commit the crime should pay the penalty but it is their children and other dependants who ultimately pay the price and suffer far more, perhaps, than the people who are brought before the courts.
I welcome the noble Lord saying that there will be a further impact assessment. Perhaps I may tease him with this idea. Is he prepared to have some discussions about what could be included in that impact assessment? Those of us who have concerns, such as the noble Earl, Lord Listowel, and others, might be able to suggest what should be looked at. In that way, we might arrive at better legislation that will not make victims of the children and dependants of people who commit these crimes, who are innocent in all these matters and will have a more difficult life as a result.
Lord McNally
As I said in my opening remarks, I know how deeply concerned the noble Lord and the noble Earl, Lord Listowel, are about these matters. I would be glad to have further talks with them on what is to be covered by an impact assessment.
Lord Touhig
What can I say? I am most grateful to the Minister and he will certainly be on my Christmas card list. In view of the lateness of the hour, I do not intend to test the opinion of the House at this stage. I am most grateful for the comments made in the debate and I beg leave to withdraw the amendment.