European Union (Notification of Withdrawal) Bill

Debate between Lord Wallace of Tankerness and Lord Judd

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Wallace of Tankerness (LD)]

This has been a wide-ranging debate. I put my name to Amendment 34. The fishing industry is important; part of the problem is that people have too often tried to shut the fishing industry up, when it has had genuine concerns about the way the common fisheries policy has operated over many years. Indeed, there are concerns now that in the Brexit negotiations it might yet be forgotten about.

I had the privilege of representing for 18 years in the House of Commons and for eight years in the Scottish Parliament a constituency which had many fishing communities. I am aware that there was a concern as to what happened when Britain entered the European Union and that the interests of the fishing industry were sold short. It was a belief that, when the papers were subsequently released under the 30-year rule, was proved to have some substance. A briefing note from the Department of Agriculture and Fisheries for Scotland in the early 1970s warned:

“In short, at present it is much easier to see the drawbacks for our fishermen likely to be involved in the Common Fisheries Policy than to be at all positive that there will be benefits to offset, let alone outweigh them”.


The amendment that my noble friend Lord Bruce of Bennachie and I have put forward is intended to try to ensure that some way or other there will be an engagement of the devolved legislatures in Scotland, Wales and Northern Ireland to help allay some of these concerns.

The House has had the benefit of a very good and well-informed report on Brexit and fisheries from the EU Energy and Environment Sub-Committee, chaired by my noble friend Lord Teverson. It makes clear the complexities of untangling the United Kingdom from the common fisheries policy and the need for agreement. For example, my noble friend Lord Teverson said in Grand Committee on 16 January that,

“the moment we leave the European Union, the EEZ will become our exclusive economic zone, exactly as it says on the tin. There will be no automatic right for us to fish in other people’s EEZs; nor will there be any automatic right for other nation states to fish in ours. We will be excluded immediately, if we have not renegotiated access, from agreements with Iceland, Norway and the Faroes, which are particularly important to our Scottish fleets”.—[Official Report, 16/1/17; col. GC 1.]

It is not academic. Important negotiations will have to take place about the future of our fisheries, not only in terms of fishing opportunities but in terms of our trade in fish. It is said that we export the majority of fish caught by our UK vessels and import the majority of fish that we eat. Measured by volume, 49% of our domestic production is exported to the European Union and 32% of the imports that we eat are from the European Union. Fishing will be an important part of these negotiations in terms of catching opportunities and in terms of trade, not only for the fishermen in the immediate area but for the fish processors and all who are dependent on the fishing industry.

In terms of our total United Kingdom GDP, the fishing industry does not loom very large, but in terms of the many communities around our coast in Scotland, Wales, Northern Ireland and many parts of England it is important. I remember taking part in the annual debate on fisheries in the House of Commons where it was clear from the wide range of people who took part the importance to many communities of the fishing industry. Therefore, it is important we focus on this and that we give the devolved Administrations, Parliaments and Assemblies an opportunity for involvement.

In replying to the debate on 16 January, the noble Lord, Lord Gardiner of Kimble, said:

“Obviously, we must work—and are working—as closely as we have always done with our colleagues in the devolved Administrations and Crown dependencies as we develop our positions, and will ensure that their views are fully taken into account as negotiations move forward”.—[Official Report, 16/1/17; col. 29.]


I do not expect the Minister to have the answer tonight so he can write to me, but can he tell us up until now what discussions have taken place at official and ministerial level on fisheries with the respective devolved Administrations? As I said, it is a small part of our GDP but vital for our many coastal communities and it is vital that their interests are advanced and safeguarded as we go forward into these negotiations.

[Lord Judd (Lab)]

My Lords—

Immigration Bill

Debate between Lord Wallace of Tankerness and Lord Judd

Monday 3rd March 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I am grateful to all noble Lords who have taken part in this debate. I acknowledge the welcome that has been given to these particular moves. I assure your Lordships’ House that the Government take very seriously our duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to carry out our functions,

“having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.

As I indicated in moving the amendment, the intention is to lock in, on a statutory basis, what has been an administrative change in policy. I assure my noble friend Lady Hussein-Ece that that is the purpose here; it is not to lay the pathway towards a change in policy. We believe that we have implemented a good policy, one that has commanded support from all quarters of your Lordships’ House. We wish to ensure that that cannot be undone in future except by a change to primary legislation.

Noble Lords commented on Cedars. I confess that I have not been there; that is something I maybe ought to do given what has been said about it in the course of this short debate. My understanding is that it could not be further in look or feel from an immigration removal centre such as Yarl’s Wood. It is important to emphasise, again, that families are held there only as a last report, for only a short period prior to their return and only after safeguarding advice has been sought from the independent family returns panel. Since Cedars was established, Barnardo’s has provided dedicated social work, welfare services and family support to children and their families there. I echo the compliments and praise paid to the work of Barnardo’s by a number of those who have contributed to this debate.

I will try and respond to a number of points. First, my noble friend Lord Avebury asked some questions about numbers. There are published data on voluntary returns, enforced returns and other outcomes in the family returns process. I will certainly send those data to my noble friend. I do not have details as to what the voluntary packages look like but if I can I will try to set out some of those, too. I think everyone would agree that if a voluntary arrangement can be made it is a far better outcome, not least for the dignity of the family. However, published statistics show that, under the old system, 1,119 children entered detention centres such as Yarl’s Wood in 2009, and 436 in 2010. By contrast, the latest statistics show that in the first three-quarters of 2013, seven children—at that time believed to be adults—were held in immigration removal centres and subsequently released following an age assessment. Some 64 children have been held briefly at the Tinsley House family unit after being stopped at the border and 68 children have been held at the new pre-departure accommodation for very short periods prior to leaving the United Kingdom.

On Amendment 9, my noble friend Lady Hamwee asked who a carer is in proposed new Section 78A(1)(b) and whether that included the local authority. No, the carer must be someone who has been living with the child and subject to removal as well. That rules out local authority carers but captures a situation where, for example, a child is part of a family unit with an aunt. In those circumstances, the family unit would benefit from the protection here.

My noble friends Lady Hamwee and Lady Benjamin raised the possibility of families being separated during the 28-day reflection period. As I sought to emphasise when moving the amendment, we will always seek to ensure that families remain together during the return. However, temporary separation may sometimes be necessary to safely ensure the family’s return. We would not separate a family solely for a compliance reason. It would always be where it was considered in the best interests of the child to be temporarily separated from their parent or where the presence of one of the parents or carers was not conducive to the public good. We would never separate a child from both adults for immigration purposes, or from one in the case of a single-parent family, if the consequence of that decision is that the child would be taken into care.

My noble friend Lord Avebury asked whether we can always give families a copy of the factual summary in the case. We have been working on making these documents more readily available. I am sure your Lordships’ House will readily appreciate the sensitivities involved in sharing these documents and the timings of the returns process. Indeed, one of the particular concerns is that individual members of a family may have provided information in confidence. There is a level of sensitivity around this, although as I indicated we have been working on making those documents more readily available.

My noble friends Lady Hamwee and Lord Avebury asked about the independence of the Independent Family Returns Panel. Appointments to the panel are made in accordance with the code of practice published on 1 April 2012 by the Commissioner for Public Appointments. This ensures that panel members are appointed on merit following a fair and open selection process, and the process does not compromise the panel’s independence. It includes an independent chair and other members with safeguarding and medical expertise, and provides independent advice to the Home Office on the method of return of individual families when an enforced return is necessary. The advice provided by the panel helps ensure that individual return plans take full account of the welfare of the children involved and that the Home Office will fulfil its responsibilities under Section 55 of the Borders, Citizenship and Immigration Act 2009.

I was also asked about the situation regarding the detention of unaccompanied children. I sought to make clear when moving the amendment that it is possible that a removal attempt will be unsuccessful for reasons that may be beyond the Government’s control. For example, a plane may develop a technical fault. When this happens, we accept that children should not continue to be held in a short-term holding facility for more than 24 hours. They should be released and given time to rest and recuperate. But the fact that a removal attempt is unsuccessful should not mean that such people are automatically entitled to stay in the UK. It should still be possible to enforce immigration decisions. It may therefore be necessary, after a suitable period, to attempt removal again and this may require a further, short, period of detention.

I reiterate what I said earlier. While it is vital that we enforce immigration decisions in these circumstances, we will not hold children for multiple 24-hour periods in order to achieve this.

One of the points raised by the noble Lord, Lord Northbourne, relates to holding unaccompanied children who arrive at the border. Where a child is travelling alone or is identified as a potential victim of trafficking, we may need to hold them for a very short period while we arrange for them to be taken into the care of local children’s services. I do not have figures as to how often this has happened, but all border force officers are given training on trafficking and child protection, so they know what to look out for. To support this we use a system of risk profiles, alerts, and intelligence tools to give officers the information they need to intervene in cases of suspected trafficking.

The noble Lord, Lord Judd, asked about a counsellor for unaccompanied children. It is the view of the Government that the child’s needs and interests are best protected by all the professionals already involved in the care-working. It is better that they do this together and that they each perform and fulfil their statutory responsibilities. Local authorities have a statutory duty to ensure that they safeguard and promote the welfare of children under Section 11 of the Children Act 2004 regardless of the immigration status of the children. I rather suspect that some of the valuable work done by Barnardo’s also helps support children, who I accept are at a very difficult time in their lives.

I think it has been recognised by those who have contributed to this debate that, in view of how difficult and sensitive this could be, the Government have taken great strides to try to put this on a proper basis. It is very different from what it was in the past. I recommend these amendments to your Lordships’ House.

[Lord Judd]

My Lords—

--- Later in debate ---

[Lord Judd]

My Lords, I am very grateful to the Minister for his response to my observations on unaccompanied children. I wonder whether it would be possible for the Government to make provision whereby it was required that every unaccompanied child subject to a removal process should have a qualified and transparently independent counsellor specifically allocated to them to guide them through what may be a nightmare situation.

[Lord Wallace of Tankerness]

My Lords, I hear the noble Lord’s point and I think I understand what lies behind it. I was trying to make a point about what our view has been. We should probably also recognise that unaccompanied children may arise in a number of different circumstances. For example, as I was indicating, some might potentially be the victims of child trafficking, which might raise a different set of considerations from others. If a professional team has already been involved in a case, we would not want to cut across that by bringing in someone new at that stage. I recognise the importance of what the noble Lord is saying; I will reflect on it and if there is more that I can add to the answer that I have given, I will write to him.

Justice and Security Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Judd

Tuesday 17th July 2012 Lords Chamber

[Lord Wallace of Tankerness]

I understand the point being made by my noble friend, but what is in the Bill goes beyond a ministerial assurance. What is in the Bill is that nothing in Clauses 6 to 11 or in any provision made by virtue of them is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. I will come to this more specifically in a moment, but these will be matters that will be determined by the court; it is not a matter of ministerial assurance. As we saw in the case of AF (No 3), the courts asserted what was required to make the proceedings consistent with the requirements of Article 6. What is required to achieve fairness in accordance with Article 6 is a matter to be determined by the courts in the context of each individual case. The AF (No 3) disclosure requirement will, of course, be applied by the court when it considers that the requirements of Article 6 so demand to ensure that fair trial requirements are met. However, this does not mean that the AF (No 3) formulation would or should apply in all cases that use these closed procedures. We submit that we must allow the judges to assess the level of disclosure required in each case to meet Article 6.

My noble friend Lord Faulks said that he anticipated that I might refer to what the noble and learned Lord, Lord Hope, said in the case of Tariq. I fully intended to do so. The deputy president of the Supreme Court said in that case:

“There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances. There are no hard edged rules in this area of the law”.

Reference has already been made in this debate to Mr David Anderson QC, who is in favour of gisting. In January this year, in evidence to the Joint Committee on Human Rights, reflecting on what the noble and learned Lord, Lord Hope, said, he said:

“The courts have … said that it is not a hard-edged area of law. In other words, it is one for them to decide on rather than for Parliament”.

Later he said,

“it is not an area where certainty can sensibly be provided by legislation ... I do not think I would like the legislation very much if it came out”.

Let me also remind your Lordships that the Justice and Security Green Paper suggested that we might consider legislating to clarify the context in which the AF (No 3) gisting requirement does not apply. The Government listened to the consultation responses, which held a majority view that situations in which the AF (No 3) disclosure requirement applied needed to be considered on a case-by-case basis in the courts. The Bingham Centre said:

“Establishing a statutory presumption as to the circumstances in which the AF (No 3) disclosure requirement applies would not avoid the need for the precise parameters of the principle being worked out in the courts. This issue cannot be resolved by domestic legislation alone but requires careful and detailed reference to ECHR and EU law. The content of UK legislation could not have any appreciable influence on the CJEU or ECtHR. Therefore we see no value in this suggestion. If anything, a legislative presumption would only complicate the law and lead to more rather than less litigation”.

I do not think there is any distance between us in trying to ensure fairness. I recognise the importance and significance of all the amendments, not least Amendment 62, but our position is that this would put hard edges into law where it is not desirable and where the courts themselves have indicated that they should be determined on a case-by-case basis. As I have also indicated, if in a particular set of circumstances the court’s view was that the gisting level required in AF (No 3) was the one required in that case, the regard the courts must have to Article 6 of the European Convention on Human Rights allows them to require that. The common law is as much part of our legal system as statute law, and I believe that the courts will continue to be the guardians of individual rights to a fair trial and that further legislation on this provision is not only unnecessary but may even be counterproductive.

[Lord Judd]

The noble and learned Lord in his full reply referred to the special advocates being on board and being involved in the process. Does he agree they are involved in the process with one and a half hands tied behind their back, because they will have had no opportunity to discuss the really crucial issues with their client, who might well have something relevant to contribute to the deliberations going on? When we talk about it being better to have an imperfect system of justice than no system at all, what concerns some of us is that this is an exceptional process and the Government should look seriously at a belt and braces approach to make sure that it is exceptional. Otherwise there is a tendency over time for it to become just an alternative.

[Lord Wallace of Tankerness]

I fully accept—and it was said from this Dispatch Box in earlier debates—that it is very much seen as an exceptional procedure. It is not intended to be run-of-the-mill, and nor would we wish it to be seen as “creep”. It is meant to apply in only a very limited number of cases where the Government believe that they have a proper defence to cases made against them, but where at the present time it is not possible to deploy that defence because it would mean disclosing material which would be damaging to the national interest.

As for the earlier point, it has been said on a number of occasions that the role of the special advocates is crucial. It will be crucial in arguing over and determining which pieces of material should be disclosed and which should not and in making representations as to what should or should not be in any gist. However, as I indicated in an earlier debate, it is important to remember, too, that we are dealing with civil proceedings in which the defendant will almost certainly be the state and the claimant will be the person who has been excluded. Therefore, they will know full well what their case is as it is their own case that they will be advancing. Before the closed material is made available to the special advocate, there will be an opportunity for the person who knows what his or her case is to discuss it with the special advocate.

Finally, many judges have gone on record as praising the very valuable work that special advocates do in these cases. It would be wrong to suggest otherwise. Perhaps the noble Lord is not suggesting that, but it would be wrong to give the impression that special advocates are totally hamstrung. They have a very good track record, as has been recognised by a number of senior judges.

Justice and Security Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Judd

Tuesday 17th July 2012 Lords Chamber

[Lord Judd]

My Lords, as somebody who would anyway have supported the amendment, I just want to say that the last two interventions by the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, have convinced me that this is an essential amendment.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, it is obvious that the amendment moved by the noble Lord, Lord Beecham, is important and goes to a number of aspects of the use of closed judgments. I think it is agreed that we are constantly trying to balance fairness and national security. It is self-evident that closed judgments contain material that should not be disclosed in the interests of national security. Of course, this is the only basis on which a judgment can be classified as closed. As is the practice in existing statutory regimes for CMPs, such as TPIMs and SIAC cases, judges will hand down an open judgment, in tandem with a closed judgment, that contains the parts of the judgment that can be disclosed without causing damage to national security.

In February 2010, special advocates raised concerns about accessing a searchable database of closed judgments. I hope this goes some way in answering the point raised by my noble friend Lady Berridge. The Government agree that it is important to ensure that those who are entitled to access closed judgments are able to do so efficiently and effectively. We have been consulting the Special Advocates Support Office on the creation, storage and dissemination of the head notes and are in the process of finalising arrangements. We anticipate that the database will be populated with all historic closed judgments by the end of the summer. I know that does not go the whole way, as some noble Lords have indicated, but I hope that I have indicated that we have addressed the concern that was raised and are making significant progress towards meeting it.

The next part of my remarks will probably reflect what was said by my noble friend Lord McNally in his response to my noble friend Lord Lester. It is the case that judges will put as much of their reasoning into the open as possible, including the statements of legal principle that are most likely to have cross-case relevance. It is the role of special advocates to make submissions about what material can properly go into the open judgment. If the court is persuaded that it would not harm national security, material will be included in an open judgment rather than a closed judgment.

However, it is not always possible to provide an open statement containing the information as it is described in this amendment. For example, the amendment suggests that it should reveal the length of the closed hearing, the number of witnesses and the nature of those witnesses, which could be damaging to national security. If in the judgment the summary said that the closed session lasted five days while members of the Security Service gave evidence, this would provide to the claimant the knowledge that the intelligence services held a lot of information on them when they may not have been aware of that fact. As already outlined, it will be up to special advocates and counsel for the Government to make submissions about whether material can be included in an open judgment or should remain closed, with the final decision being for the court, which will decide that material should be classified as closed only if its disclosure would be contrary to the interests of national security.

The amendment also requires the judge to declare whether national security was an issue in the proceedings. I believe that this is unnecessary. As we have made clear on a number of occasions in Committee, the Bill makes it clear that the only reason a court can go in to a closed session is that the disclosure of some material relevant to the case would damage national security.

The Lord Chancellor’s code of practice on the management of records, issued under Section 46 of the Freedom of Information Act 2000, provides guidance on the management of records held by bodies subject to the Public Records Act 1958. Authorities are required to identify records worthy of permanent preservation and transfer them to the National Archives, a place of deposit for public records or the Public Record Office of Northern Ireland, as appropriate. Authorities all need to consider whether parts of records might be released if the sensitive information were redacted— in other words, rendered invisible or blanked out. Information that has been redacted should be stored securely and should be returned to the parent record when the exemption has ceased to apply.

I heard what was said by my noble friends and by the noble Lords, Lord Beecham and Lord Pannick, about when the national security considerations have in some respects flown off. I want to revisit this matter and discuss it with officials because I recognise the point that has been made. I am not going to pretend that there may be an easy answer to it, but if there is no longer a national security consideration, I see the force of what has been said. However, I have tried to describe the current arrangements for the storage and permanent preservation of records.

However, as things stand, it is up to the courts to decide the detail to include in their judgments. The Bill allows the judges to make these judgments with as much information available to them as possible, while ensuring that the interests of national security are not damaged. I do not believe that Parliament needs to go further and dictate to judges specific information that they are require to release, and I therefore do not believe that the many detailed parts of the amendment are necessary. I hope that in the light of that explanation, the noble Lord will be willing to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Judd

Wednesday 18th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, at the risk of repetition, I have already said that numerous routes within scope, other than a damages claim, might be open to an individual and might be even more appropriate in addressing the situation where a public authority or the state acts in a way that the individual citizen wishes to challenge. Indeed, as I have indicated, other means, such as conditional fee agreements, might also be appropriate in some cases that are not at the serious end.

[Lord Judd]

My Lords—

--- Later in debate ---

[Lord Wallace of Tankerness]

Part 1 of Schedule 1 indicates a number of remedies that are available and within scope. We have sought to make available a range of remedies, particularly with regard to the protection of the liberty of the subject. A deliberate policy choice was made to try to ensure that legal aid would be available to safeguard the liberty of the subject. No doubt the noble Lord, Lord Judd, is being patient.

[Lord Judd]

I am very grateful to the Minister for giving way. He is being given quite a cross-examination at this stage in our considerations. Before Report, when he is considering what has been said in this debate, I plead with him to remember that this is not just a private matter between the individual concerned and the authorities. In this very sensitive area of public policy there are bound to be much wider ramifications. Ultimately, this is about the credibility of the Home Office and its policies and how they operate. If there appears to be a reluctance to put right generously what has been done indefensibly, that will hardly help to achieve public confidence in the general policies as they are applied. I hope that the Minister will take away that general point, because it is crucial to our deliberations.

[Lord Wallace of Tankerness]

I recognise the important point that the noble Lord, Lord Judd, makes. I assure him that, in trying to allocate limited resources, we have sought to ensure that a proper balance is struck. As I indicated, it is of course a balance, and we will weigh in what has been said in this debate. However, I have sought to indicate that we are dealing here not just with claims for damages; we have deliberately included a whole range of remedies within scope in Schedule 1 because we recognise the importance of proper safeguards in the citizen’s relationship with the state. I hope that the noble Lord will recognise that a whole range of remedies will be eligible for legal aid.

The noble Lord, Lord Berkeley, has no doubt been waiting for a response to his Amendment 61ZA, which would include within the definition of “public authority” the Crown Estate and the Duchy of Cornwall. The position is that paragraph 19(7) uses a definition of “public authority” that is used in Section 6 of the Human Rights Act 1998. At Section 6(3) of that Act, the definition of a public authority includes,

“(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament”.

Section 6(5) of the Human Rights Act goes on to provide that,

“In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private”.

Therefore, the point is that this is not so much about the name of the body but about determining whether the function is of a public nature. It is the nature of the service or function that is determinative, rather than the legal status of a body that is performing the function. One noble Lord asked whether we could have a definition of that. Ultimately, it must be for the courts to determine whether a body is a public authority, given that definition for the purposes of the Human Rights Act.

The noble Lord, Lord Beecham, said that there may be another time and place to discuss the Crown Estate and the Duchy of Cornwall. I know that the Scottish Affairs Committee in the House of Commons is currently looking at the work of the Crown Estate. It is an issue that has attracted more attention, but as regards this amendment and this Bill the definition is used in the Human Rights Act and is a proper definition to import into this Bill.

I will briefly address a number of government amendments in this group. Amendments 79A and 79C address predecessor claims under the pre-Equality Act 2010 legislation to ensure that legal aid continues to be available to people who have live claims under predecessor equalities legislation, and not just in relation to a contravention of the Equality Act 2010.

At present, paragraph 38 of Part 1 of Schedule 1 limits legal aid cases to cases where the Equality Act 2010 has been contravened. The 2010 Act presents a new unified legal framework for addressing harassment, victimisation and discrimination based on any of eight protected characteristics. Where previous equality enactments have been repealed, we recognise that certain claims will continue to be capable of being brought under these enactments by virtue of the transitional arrangements introduced by the 2010 Act. For this reason, we seek to amend paragraph 38 to allow funding for predecessor claims that might still need the benefit of public funding. This amendment will also amend paragraph 38 to put beyond doubt our intention to retain funding for civil legal services relating to the breach of equality clauses and rules and non-discrimination rules.

Government Amendments 78C, 78D and 78E ensure that civil legal services are provided in circumstances where a sexual offence has actually been committed or is alleged to have been committed. They also ensure that civil legal services are provided in circumstances where a sexual offence has not actually been committed but there has been: an incitement to commit a sexual offence; an offence committed by a person under Part 2 of the Serious Crime Act 2007, in relation to which a sexual offence is the offence which the person intended or believed would be committed; conspiracy to commit a sexual offence; and an attempt to commit a sexual offence.

Additionally, the amendment to paragraph 34 of Part 1 of Schedule 1 will ensure that civil legal services are capable of being provided in relation to conduct that would be an offence mentioned in sub-paragraph (3)(a) or (b) of the existing definition of “sexual offence” but that is not considered an offence under the present definition because it took place before the relevant provision came into force. At present, paragraph 34 limits legal aid to cases where a sexual offence has been committed under the provision of the Sexual Offences Act 2003 and to cases where an offence has been committed under Section 1 of the Protection of Children Act 1978, which deals with indecent photographs of children. We recognise that it is possible that offences committed before the present legislation came into force might need the benefit of public funding, and for this reason we have amended paragraph 34 to allow for funding.

I am not sure why Amendment 90ZZA is in this group, but I hope the Committee will recognise that this is a serious attempt to ensure that where there have perhaps been gaps due to prior legislation, we seek to fill them. Amendment 90ZZA would bring into scope advocacy within the Court of Protection where a person’s mental or psychological safety is concerned. This echoes debates on Amendment 53. The current position is that advice is available for any mental capacity matter and that representation is available for the Court of Protection in limited circumstances where there is to be an oral hearing and the case will determine the vital interests of the individual.

Paragraph 4 of Part 3 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—for example, medical treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, and the capacity to enter into sexual relations or the right to family life. The amendments go beyond what is currently provided through legal representation by the civil legal aid scheme. We have had to focus our limited resources on the most serious cases and on the interests of the individual that are vital. We do not seek to go beyond what is already the present position. I hope that the noble Lord will reflect on that and, when the time comes, not move his amendment.

It is some time since the noble Lord, Lord Ramsbotham, moved his original amendment, but I hope he is assured that the serious issues involving state public authorities and the citizen are addressed by this. With regard to the liberty of the individual, there are a number of specific provisions, quite apart from the more general provision that loss of liberty is seen as a harm to the individual. I hope, on the basis of these reassurances, that the noble Lord will withdraw his amendment.