Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Lister of Burtersett Excerpts

Monday 12th March 2012 Lords Chamber

All these problems could be avoided if the Government would accept my amendment, as I hope my noble and learned friend is about to do.

[Baroness Lister of Burtersett]

My Lords, I support the amendment, as well as Amendments 93A and 94, particularly in relation to immigration law. I do not claim any expertise whatever in immigration law, but I am concerned by many representations that I have received, particularly as regards children and women who will be affected by denial of exceptional cases support. As the noble Lord, Lord Avebury, has said, and as was emphasised by noble Lords from across the House earlier, this is an extraordinarily complex area of law. It is unrealistic to expect vulnerable immigrants to represent themselves without any legal assistance.

I am particularly concerned about the suggestion that children should turn to their social workers for legal advice and assistance. The noble Lord, Lord Newton of Braintree, gave that idea pretty short shrift earlier. He asked whether social workers would receive training. I do not recall the Minister answering that question, so perhaps the noble and learned Lord can do so in his response. I have been written to by Refugee Youth about this matter. It says:

“Social workers have played an important role in many of our lives, but social workers are not immigration lawyers and are not experts in the immigration process and we have had mixed experiences of social workers”.

Refugee Youth also says:

“We want social workers to do what they are trained for and best at in supporting children, not take on roles that they are not trained or competent for. The Government’s proposal simply stands to increase pressures on social workers, and on their sometimes difficult relationship with the children they support”.

That is a very fair point. The Immigration Law Practitioners’ Association states that, “any inevitable failing” in advice provided,

“can be expected to have serious ramifications for trust and confidence as between child and social worker”.

I taught social workers when I was at Bradford University, and the idea that these students would go out and then act as poor persons’ immigration lawyers is frankly laughable. Social workers are on their knees trying to fulfil their statutory responsibilities and should not become second-rate immigration lawyers.

I am also concerned about the implications for women. Rights of Women has written to me, especially about women who have experienced gender-based violence—other than in certain domestic violence cases that will still be in scope—whose immigration status places them at great risk of harm, and about those who may have been subject to trafficking. I know that the noble and learned Lord has said that he will be looking at this matter again before Third Reading, and I hope that at least that issue will be dealt with. Regardless of the complexity of a case, it will not be covered by exceptional cases funding.

It is therefore unbelievable that the Government can expect two vulnerable groups to navigate this complex area of law without those groups being covered by even the safety net of the exceptional cases scheme. I hope that the Minister will look kindly on these amendments and rethink the Government’s position on this issue. I cannot believe that it will cost very much money to extend exceptional circumstances funding to cover these groups.

[Lord Judd]

My Lords, this debate relates to one that we had earlier, when there was that magnificent and to be expected contribution by the noble and learned Lord, Lord Woolf. Without saying everything that I said previously, I should like to underline that I do not believe that I am in a small minority. A significant number of people in this country are ashamed of what we are doing.

What kind of society do we want to be? Are we just cynically abandoning people to a system? Perhaps worse, are we really finding devious ways to get negative results which we want? That is what worries me. I am not convinced that our immigration policy operates with fairness. I believe that there is an underlying principle that we want to get rid of people; that we do not want people here; that we want to discourage people from coming.

Are we a country about justice or are we not? If we are a country about justice, those people, often in sad and desperate circumstances, are the very people whom, in the midst of economic pressures, and all the rest, we should be determined to protect.

I am very glad that there is this opportunity to air this matter. I am glad that concern spreads across the House into different political groups. All that I can say is that I am getting very depressed about the real motivation for some of this legislation.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, notwithstanding the hour—a point made by the noble Lord, Lord Bach—I agree with him that this is an important group of amendments. Clearly, there is concern about the parameters of the exceptional funding scheme that will be created by Clause 9. It is very clear that many of your Lordships would prefer a very broad discretionary power, perhaps akin to that proposed in Amendment 94, on the face of the Bill. However, I ask that we reflect on the fundamental purposes of the changes that we are making to the general legal aid scheme. We need these reforms in order to create a fair, balanced and sustainable legal aid scheme. We have taken into account the importance of the issue; the litigant’s ability to present their case, including their vulnerability; the availability of alternative sources of funding; and the availability of other routes to resolution. It is also right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice. Clause 9 achieves this important end.

I acknowledge that we have limited the exceptional funding power in such a way as to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights and European Union law. I acknowledge that this is a high threshold. However, it is right to limit exceptional funding to those important cases in which an individual’s fundamental rights of access to justice are challenged. I do not agree with the initial comments of the noble Lord, Lord Bach, which suggested that this would be impossible to operate. Certainly it is our anticipation that there will be several thousand applications to the fund. As I stated in Committee, there will not be a fixed budget for exceptional funding. It will also be available—we will come on to this later—where there is a wider public interest in an individual being represented at inquest proceedings into the death of a family member.

It is also important to note that the individual must qualify for such services in accordance with Clause 10, which will mean that decisions on exceptional funding will be subject to the means and merits criteria. The director of legal aid casework will make all exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions on excluded cases. Clause 4(3) provides that the Lord Chancellor may issue guidance or directions about the exercise of the director's functions, including functions exercised under Clause 9. Through this guidance, the Lord Chancellor will set out the legal criteria that the director must take into account in determining an exceptional case application.

I confirm that the guidance will be based largely on the factors that domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case. It will be published in a clear and accessible format so that applicants and their solicitors can see whether their case will be likely to meet the necessary tests. Certainly it is our intention to publish more details of the operation of the proposed exceptional funding scheme, with associated guidance.

My noble friend Lady Hamwee asked a question about excluded cases that she had put to my noble friend Lord McNally. I have not had a conversation with my noble friend in which he imparted the question to me. In another context, she suggested that there might be a discussion outwith the debate. I am sure that my noble friend will be happy to answer her question in that context.

Amendment 93 would allow the director to fund excluded cases where he or she determines that it is in the interests of justice generally to do so. As the noble Lord, Lord Bach, said, Amendment 94 would allow the director to make an exceptional case determination where it is appropriate to do so in the circumstances of the case, taking into account certain prescribed criteria. In moving his amendment, my noble friend Lord Thomas of Gresford referred to Amendment 22, which we debated—I think—on Monday of last week. I indicated that I would take the matter away and think about it. His diary has now caught up with mine and I understand that we will meet tomorrow to discuss it further. He indicated that many issues that he believes will be covered under that amendment will go up to the director for a similar determination under Clause 9. Clearly that is something that we can pursue when we meet.

The phrase “interests of justice”—and the more seductive turnaround of the words proposed by my noble and learned friend Lord Mackay of Clashfern—is capable in this context of wide interpretation. The amendment would create a power that is considerably broader than the one we currently propose under Clause 9. As I acknowledged, Clause 9 is limited and we have already set out why it has to be so.

Our concern with Amendment 94 is again that it could be open to wide interpretation. Nevertheless, I will repeat an assurance that I gave before to the noble Lord, Lord Bach. Many factors listed in his amendment, such as the client’s capacity to represent themselves, their vulnerability, and alternative sources of funding, are to be found in the jurisprudence on Article 6 of the European Convention on Human Rights. As such, they would form part of the test for exceptional funding to be taken into account by the director in those cases where Article 6 is engaged.

In considering whether legal aid should be provided in an individual case, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent himself or herself effectively; and alternative means of securing access to justice.

Importantly, Clause 4(4) explicitly prohibits the Lord Chancellor giving directions or guidance to the director in relation to an individual case. We believe that this change will guarantee the objectivity of the decision-making process for both in-scope and excluded cases and serve as a safeguard against political interference in the making of any individual exceptional funding decisions in future.

My noble friend Lord Avebury tabled Amendment 93A, which is concerned with immigration cases in which an individual risks being unable to obtain qualified and affordable representation and where there may be a risk of injustice if the appellant is not represented. As we have made clear, and as we debated earlier this evening, the Government believe that asylum cases and immigration detention cases must be treated as a priority for funding. I am sure it will readily be agreed that the consequences of these cases are of much higher seriousness, involving threats to life and limb or to the liberty of the person.

Clause 9 indicates that civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) or (4) is satisfied. Paragraphs 1 to 27 of Part 1 of Schedule 1, if we include the Special Immigration Appeals Commission, all deal with aspects of immigration, including asylum, protection for legal aid for immigration detention and cases where there is domestic violence. In addition, we are also keeping legal aid for most immigration judicial review cases. Many cases will already be within scope and have a right to legal aid.

Protecting funding in these areas, which I hope your Lordships will agree are of fundamental importance, means that we have had to make difficult choices about other immigration cases, which have not been considered to be as high a priority. At the same time, we have been clear that funding for cases falling outside the scope of the civil legal aid scheme should be focused on those cases in which the failure to provide legal aid would amount to a breach of an individual’s rights under the ECHR or directly enforceable European Union law.

As my noble friend Lord Avebury noted, the case law of the European Court of Human Rights is currently clear that decisions concerning issues of immigration, nationality and residence do not engage Article 6 because they do not involve the determination of civil rights or obligations. My noble friend asked whether lack of immigration legal aid would breach Article 8 or Article 14. Exceptional funding would cover whatever legal aid is required by the European Convention on Human Rights or is enforceable under European Union law. As I have indicated, case law as it currently stands generally means what Article 6 requires, but if the case law were to change, the exceptional funding scheme would have to respond to that. As such, the Government’s position is that immigration cases will not generally qualify for exceptional funding, other than a few cases that may arise under other aspects of EU law. However, the fact that immigration cases would currently be unlikely to qualify for exceptional funding does not mean that injustice must inevitably arise from a lack of legally aided representation.

The noble Baroness, Lady Lister, asked about children and social workers. Children will rarely be applicants in non-asylum immigration cases and will normally be considered as part of their parents’ application. Child applicants are much more likely in asylum cases for which legal aid will remain available. The noble Baroness also referred to unaccompanied children. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them. Their role includes helping the child access the same advice and support as a child permanently settled in the United Kingdom, and they could also offer assistance in filling in forms, explaining terms and providing emotional support. I was asked particularly about training in immigration law. The proposal is not for social workers to give detailed legal immigration advice but to help with form filling. As I indicated in an earlier debate, we intend to work with the Office of the Immigration Services Commissioner to exempt local authorities from regulation so that they can offer low-level advice and assistance.

I do not wish to repeat everything that was said in the earlier debate, other than to remind the House that in trying to get the balance in immigration cases we have sought to focus legal aid on those areas that are of much greater seriousness to the individual; for example, where the individual is subject to domestic violence. More generally, we have gone as far as we can on exceptional funding, but we have made it clear that there is a narrow determination with regard to the European Convention on Human Rights.

Amendment 95 would make it a requirement for the director to consult with the chief coroner and have regard to his views before making a “significant wider public interest” determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the present funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case itself.

The Government believe it is important to retain the ability to fund inquest representation on the basis of wider public interest, because the provision of such representation may lead to findings that help prevent future deaths. That is why Clause 9(4) gives the director the power to provide funding on the basis of a wider public interest determination.

The onus has never been on the decision-maker to consult coroners, many of whom will not wish to give a view at all. Indeed, some coroners are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention. Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has “significant wider public interest”.

We envisage that, under the new exceptional funding system, the director will continue to consider the views of individual coroners when taking decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the European Convention on Human Rights. It would therefore seem somewhat incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the “significant wider public interest” aspect of the case.

We believe that compelling the director to consult with the chief coroner in all cases is likely to add an unnecessary bureaucratic element to the assessment process, which could lead to unfortunate delays. It would represent a significant burden on the chief coroner, who would be unfamiliar with the circumstances of each case, unlike the individual coroner holding the inquest. The chief coroner would be required to acquaint him or herself with information pertaining to a number of cases. We do not believe that there would be any obvious benefit for bereaved families, individual coroners or indeed the chief coroner in mandating this additional process in law.

I am not sure whether the noble Lord mentioned Amendment 96 in this group, which would compel the director to pay,

“reasonable costs incurred by any person making a successful funding application under this section”.

Perhaps it would be helpful to say that the concept of “reasonable costs” is open to broad interpretation and could be seen to authorise payments at commercial rather than prescribed legal aid rates. However, I can reassure the noble Lord that although discussions about the arrangements for exceptional funding applications are ongoing, we expect to propose that a payment may be made towards the costs associated with the making of an application where that application is successful.

I trust that my response indicates that the exceptional funding scheme is intended to provide an important safety net where an inequality of arms would lead to an obvious—and possibly unlawful—unfairness in proceedings. I accept that many people would like to see this cast much more widely and more cases brought within the ambit of exceptional funding. However, I have explained the architecture of the Bill and why it is cast in the way it is, with particular reference to the European Convention on Human Rights and the other specific issues with regard to coroners’ inquests.

[Baroness Lister of Burtersett]

My Lords, on unaccompanied children, I accept the point that social workers will not be expected to provide formal legal advice, but in the other place the Parliamentary Under-Secretary of State for Justice said that they could turn to law centres, pro bono representation or the Refugee Council for such formal legal advice. As I am sure the Minister knows, the Refugee Council and the Law Centres Federation have written to the Parliamentary Under-Secretary of State to say that it is simply impossible for that gap to be filled in that way and to point out that the Refugee Council does not provide that kind of support. Will the Minister take that on board? I still do not know where these children will get that legal advice if they need it.

[Lord Wallace of Tankerness]

The noble Baroness acknowledged that I referred to some of the issues about unaccompanied children, but I will certainly draw her remarks and the point that she made about the Refugee Council to the attention of my honourable friend the Parliamentary Under-Secretary of State.