Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Northover Excerpts

Monday 23rd April 2012 Lords Chamber

24A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

[Baroness Northover]

My Lords, noble Lords gave great attention to this issue in earlier stages. I hope that the discussions that have resulted, both within and outside the Chamber, have helped to reassure them.

I begin by saying that the Government have always agreed that telephone legal aid advice will not be suitable for everyone. That is why there will be exceptions to having to use the gateway to apply for legal aid—for example, for emergency cases. Those who are eligible for legal aid will be assessed on a case-by-case basis to identify whether they are suitable for telephone advice.

A key consideration in assessing suitability for receiving advice over the telephone will be whether a caller is able to give instructions and act on advice over the telephone. Trained and skilled assessors will assess this suitability, and a range of reasonable adjustments and service adaptations will also be available to assist callers in their contact with the gateway.

The gateway, based on the existing highly successful Community Legal Advice helpline, will be a two-stage process—not just, as some have called it, a “call centre” service. It may help noble Lords if I briefly set out how the process will work in practice.

Stage one: when applying for legal aid in one of the areas of law subject to the gateway, trained and skilled telephone operator service staff will engage with the caller to identify their problem and eligibility for legal aid, giving the caller the time needed to explain their problem. Organisations such as the Samaritans have contributed to training for current operator service staff. These staff will not provide legal advice, but will route clients to sources of help. If the problem is in an area of law subject to the gateway, the client will be transferred to a legally trained specialist for telephone advice.

In the second stage, as now, under the current Community Legal Advice Helpline contract, where an eligible caller is transferred to a specialist, legally trained telephone adviser, that adviser will speak to the caller to assess their needs, including their suitability for telephone advice. Where it is clear, having regard in particular to whether a caller is able to give instructions and act on advice over the telephone, that face-to-face advice is needed, the client will be referred to a face-to-face provider. I ask noble Lords to note that both the telephone operators and specialist telephone providers will have ongoing training, including awareness of different vulnerable callers, such as those with mental health issues and learning difficulties.

The Government have engaged and will continue to engage with stakeholders, including equality groups, to identify any additional reasonable adjustments for callers with specific needs. For those with little or no spoken English, a free three-way translation service in 170 languages can assist engagement with the gateway. Few face-to-face providers could offer this extensive range of languages. A third party, including a family member or advocate, can contact the gateway to speak for a person or help them explain their problem. To minimise costs, all potential callers can contact the gateway by mobile phone text or the internet to ask for a call back, and all callers can ask for a call back, too.

The use of new technologies such as Skype and webcam—wider than for just the British Sign Language service—are being investigated to enhance the service further. There will also be a service enabling an individual to contact the gateway by secure e-mail. The Government will raise awareness of the gateway to users, including the services and support it offers and we will also be monitoring its operation from day one of implementation and engaging with those using it to ensure that needs are indeed met. As we have also stressed, there will be a review of its implementation and operation, and the report of that review will be published. This will happen within two years of the implementation of the gateway and before any decision about any possible extension of the gateway to other areas of law is taken.

The Government are confident that a mandatory gateway can facilitate efficient and prompt access to legal advice, including advice for those vulnerable people in need of it. The effect of Amendment 24 and, in particular, the amendment of the noble Baroness, Lady Grey-Thompson, Amendment 24B in lieu, would be to impact severely on the provision of any legally aided advice services by telephone, including the existing Community Legal Advice helpline, the existing criminal defence service direct telephone scheme as well as the proposed mandatory gateway for certain areas of civil legal aid. These amendments are unnecessary and disproportionate to the concerns of the noble Baroness, which previously have centred on the mandatory gateway and vulnerable people.

Amendment 24B would require every eligible client to receive face-to-face advice, regardless of their particular circumstances or personal preference. This would result in a very inflexible system that would invariably introduce a delay in clients receiving advice as not only would they have to locate a suitable provider, they would also need to contact them to make an appointment to see them. No longer, for example, would a client be able to make contact with and discuss their problem at a time and place convenient to them.

Noble Lords have already acknowledged the effectiveness of telephone advice itself. On 20 December, the noble Lord, Lord Bach, described the Community Legal Advice helpline as excellent and he was sure that noble Lords would be glad to see its work continue and expand. However, such a requirement would invariably mean the end of any telephone advice as it would be highly unlikely that any individual who has explained their problem to a face-to-face advice provider would then choose to switch to a different telephone advice provider at a later stage.

Not only would this amendment have the potential to eliminate all the savings from the gateway, it could add about £4 million to the legal aid bill for criminal cases and additional cost to civil legal aid for additional face-to-face advice—advice which is currently successfully provided by telephone. The specific duties contained in Amendment 24B are also unnecessary. I can assure the noble Baroness that the Government have complied with the public sector equality duty under Section 149 of the Equality Act 2010 and we have published an equality impact assessment—at the time of the consultation on the legal aid reforms and at the time of the Government’s response—which includes consideration of the mandatory gateway policy. The public sector equality duty is a continuing one and we will continue to comply with it.

As noble Lords know, under the public sector equality duty it is necessary to have due regard to the need to eliminate discrimination, harassment, victimisation and other conduct that is prohibited by or under the Equality Act 2010, advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. The relevant protected characteristics for these purposes are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These types of discrimination are all defined in the Equality Act 2010 and we are complying, of course, with that. For these reasons, I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

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[Baroness Northover]

My Lords, I thank noble Lords for their attention to this very important area and I especially thank the noble Baroness, Lady Grey-Thompson, for her kind words to my noble friend about his engagement with her concerns. I have a note that I need to correct the figure given for the costs of the noble Baroness’s amendment. The costs are likely to be in excess of £20 million per annum for both civil and criminal legal aid—I need to clarify that.

In reaction to what the noble Baroness, Lady Grey-Thompson, said, I point out that stage 1 is where people come in and it is decided whether they need to go through the telephone system. Stage 2 is the detailed case assessment of suitability.

To my noble friend Lord Phillips I point out that the kind of cases to which he points may well be those that are then directed towards face-to-face advice. It is extremely important to bear in mind the flexibility that is built into this system and to contrast that with the lack of flexibility of insisting that the advice is face to face. This system means that when people are taken into the telephone system their cases can be assessed to see whether they are suitable for phone advice or face-to-face advice.

[Lord Phillips of Sudbury]

I did not explain myself adequately. I was trying to get across the point that people will not get as far as a telephone. That is the problem. Once they are there, I absolutely think that what my noble friend has explained to the House is fine. However, I am talking about the people who, for the reasons I tried to explain, will not have the confidence or the competence to say what their problem is over the phone because it is often so damn difficult to do so.

[Baroness Northover]

I understand what my noble friend means about getting to that point. I ask him to ask himself how they would get to face-to-face advice. There they are with a major problem. They may very well end up in a CAB, in which case the CAB may assist them in phoning the telephone gateway and may indicate in its call that this is a suitable candidate for face-to-face advice. My noble friend needs to go back a bit and ask how the person who is in such circumstances will access any advice and then see how this may route them through to the kind of suitable, appropriate and flexible advice that I hope I have laid out.

[Lord Clinton-Davis]

However, where someone is incapable of expressing themselves—I remember having to listen to such a person for more than an hour—would they not be excluded from what is being proposed?

[Baroness Northover]

Let us assume that that person has come to you as a constituency Member of Parliament—I think that is the kind of case the noble Lord is talking about. Again, the Member of Parliament could phone the helpline and say that, for the reasons given by the noble Lord, in this case the person is likely to need face-to-face advice. If someone else, such as a family member, were to phone up, it would become apparent that the person in question could not do this. For those reasons it becomes apparent that this person is going to need face-to-face advice.

As I said in my introductory remarks, there are clearly cases where, for all sorts of reasons—and noble Lords have experience of these kinds of cases—that person will not be best helped by the telephone. In other cases that might be exactly what a person prefers: the distance of telephone rather than face-to-face advice. They might not be able to get to wherever the face-to-face advice is, or they might find that Skype is what they want to use.

The other point to bear in mind is the provision of language translation. Some 170 languages can be provided on the phone line, and very few CABs or constituency advice surgeries have that kind of provision; so there are certain advantages to that provision that might be of help to other cases. The important thing to remember in all this is the equality duty—the diversity of people and their situations and our obligation to address those needs. Those needs will need to be met in different ways, and that is built into how the system operates. The very fact that the Samaritans have been involved in training the operators is an indication of how seriously we consider the responsibility towards people with those diverse needs. Of course, the Samaritans operate a phone system for their own advice line.

I assure the noble Lord that there will be no restriction on the length of time that a person can speak to a caller. If that is the problem—that it is a matter of time—it will not kick in here.

My noble friend Lord Phillips asked about the Budget, which announced £40 million and £20 million in each of the remaining years of the spending review. I think he sought assurance of provision for the CABs.

I have emphasised how operator service staff and specialist telephone advisers will be trained to be aware of the needs of callers, especially those with mental health and learning impairment problems. There will be reasonable adjustments and adaptations available to assist callers, including provision for a third party such as a family member to call on an individual’s behalf. As long as a person authorises someone to call on their behalf, the third party could equally be a member of a CAB or other support or advice service. If the caller is assessed as unsuitable for telephone advice, they will still have access to face-to-face assistance and be referred directly to that provider. That is an improvement over the current situation, in which they might be given three phone numbers of advisers whom they then have to contact. Again, they have to use the telephone to set up these appointments, whereas with this they could be referred directly to that provider and will not have to find the face-to-face provider themselves from those phone numbers, and those providers will have to make contact back to the person.

Noble Lords might bear in mind how flexible the system is within the new arrangements. In December, the noble Lord, Lord Bach, referred to the satisfaction rates with both the existing community legal advice helpline operator service and the specialist telephone advice service; 96 per cent of respondents found the operator service helpful, and the 2010 survey of clients advised by telephone showed that 90 per cent of respondents found the advice provided helpful. That is a very encouraging response.

As I emphasised, and as we will continue to emphasise, we will keep this under review so that we can make sure that it is working as effectively as possible. As my noble friend Lord McNally assured the House, I assure noble Lords that the telephone gateway will apply initially to only a limited number of areas of law and will be monitored from day one. Noble Lords have picked up on the review, but I assure them that we will keep a watching brief over this from the very beginning to make sure that it is working well. The engagement with stakeholders that has already taken place and the need to make sure that everyone’s needs are addressed is a reflection of that. I can give that further assurance.

I hope that noble Lords will support the Government in this area.

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble friend again, but can she tell the House that the review will be undertaken by an independent experienced reviewer?

[Baroness Northover]

My noble friend assures me that we will review how this is working and publish the findings. I am sure that noble Lords will scrutinise that with the greatest of care. I reiterate that the operation of the system will be monitored from the very beginning. Therefore, noble Lords do not need simply to wait for the review at the end of two years to make sure that this is working in the way that we trust will assist people, as opposed to raising the concerns that noble Lords have expressed. I hope that the noble Baroness will be able to withdraw her amendment.

[Baroness Grey-Thompson]

I thank noble Lords who have taken part in this afternoon’s debate, in particular the noble Lord, Lord Phillips of Sudbury. Not for the first time, I wish that I had trained in the law rather than doing a politics degree. I accept that my wording could be slightly better but, as the noble Lord, Lord Wigley, said, it has been improved since the last time I moved the amendment.

It seems that we are stuck in two slightly inflexible viewpoints. I wholeheartedly agree with the noble Lord, Lord Low, when he says that there is a place for a gateway. However, I also believe that there is a place for something else to help the most vulnerable. One idiosyncrasy of this system is that an individual could go into a citizens advice bureau and ask for help but be told to ring a phone number and be sent away. In an ideal situation, that person would be able to stay in the citizens advice bureau and make the call from there, and could even have that third-party support. If they are sent away, they may take that to mean that they are not eligible or that they do not understand some of the issues.

I thank the noble Baroness, Lady Northover, for her comments. It is probably not the right time to debate this, but now that we have a system that can be accessed on the internet through www.directgov.com or by Skype and through phone calls—there is information coming back and forth—I wonder whether there are not almost too many options for people. Perhaps a gateway and the potential for a face-to-face interview might be the simplest way to do it.

I go back to the point made by the noble Lord, Lord Phillips of Sudbury. I am sure that everyone in your Lordships’ House knows one, two, or maybe more people who would struggle to make that first contact and might drop out of the system, finding it too much to cope with, and would therefore not be able to access the help that they need. So as much as there has been some positive movement today and some very positive comments, I am not reassured that the most vulnerable would be supported through this system. Very reluctantly, I wish to test the opinion of the House.

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171A Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.

[Baroness Northover]

Motion J concerns legal aid for children. When the Government undertook their comprehensive review of legal aid, we looked at the principles of each type of case funded by the scheme and considered, first, the importance of the issue; secondly, the litigant’s ability to present their own case, including and especially any vulnerability; thirdly, the availability of alternative sources of funding; and, fourthly, the availability of other routes to resolution. We have used those principles to prioritise funding so that civil legal services will be available in the highest-priority cases—for example, as my noble friend Lord McNally said earlier, where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care.

The application of these principles led us to protect the vast majority of funding in cases involving children. These include family cases where a child is at risk of abuse; child care and supervision cases; civil claims concerning the abuse of a child; special educational needs cases; clinical negligence claims concerning brain-damaged babies; cases concerning the inherent jurisdiction of the High Court in respect of children; cases concerning the unlawful removal of children from the UK; cases concerning EU and international agreements on children; and legal aid for children who are made parties to private family proceedings. That is why 96 per cent of the current spend on cases involving child claimants will continue. Because we have adopted the approach that I have outlined, we do not accept Amendment 171, which seeks to bring all cases back into the scope of legal aid where a child is a party. On current plans, the overwhelming majority of current support will continue, as I said.

The noble Baroness, Lady Grey-Thompson, has tabled Amendment 171B, which is almost identical to Amendment 171, with the exception of immigration and consumer law cases, on which the House of Commons has offered a clear view. In our opinion, Amendment 171B will elicit the same response in the House of Commons. However, I will set out again the measures that are in place that will guard against the risk of children falling through the net.

As noble Lords know, we have committed to providing additional resources for citizens advice bureaux and similar groups that provide the general practical advice that can often prove more productive than drawn-out adversarial legal action. As I mentioned earlier today, we will be making a further £20 million available to the sector in each of the next two financial years. It is therefore not the case that there will be no or substantially reduced funding for cases involving children and young people.

Some in past debates have suggested that children might be left to fend for themselves in courts of law. Let me address that very clearly. It is already a requirement of the rules of civil litigation that a child must have a litigation friend to conduct a case on their behalf, usually a parent unless the court specifically orders otherwise. It will be only in exceptional circumstances that the court will make an order permitting the child to conduct proceedings on their own behalf. Any step taken before a child has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child’s parent, or other person caring for the child, for example, to act as the child’s litigation friend in proceedings where the child is a party.

In other scenarios—for example, tribunals that are addressed in the amendment tabled by the noble Baroness—where a child may be bringing an action without a litigation friend, this will of course be a relevant factor in deciding whether they have the ability to present their own case and whether exceptional funding for representation is required in order to avoid a breach of Article 6 of the ECHR. This means that the existing Civil Procedure Rules, combined with our exceptional funding system, will provide crucial safeguards against children being left to navigate court and tribunal hearings on their own. We believe that these measures, taken together, are sufficient to guard against the risk of children falling through the net where they do not fall into the vast majority of cases that are still covered by legal aid. I beg to move.

Motion J1 (as an amendment to Motion J)

Moved by

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It is simply unacceptable to withdraw this level of support from these vulnerable young people. I hope that even at this late stage the Government will reconsider. If not, we will certainly support the noble Baroness should she decide to test the opinion of the House.

[Baroness Northover]

My Lords, I thank noble Lords for their very important contributions to this debate.

At the beginning of this discussion, I set out in some detail the reasons behind the Government’s position on legal aid for children, and that legal aid should apply to the highest priority cases, which has been at the heart of our reform proposals. I produced a long list of where funding is being retained for children as a result of the application of this principle. The fact that 96 per cent of current spend on cases involving child claimants will continue reflects the importance that the Government have placed on that.

[Lord Phillips of Sudbury]

My Lords, I regret to interrupt my noble friend at this time of night, but she mentioned the figure of 96 per cent remaining in scope. The figure of 13 per cent taken out of scope was just mentioned. I wonder where the reconciliation is between those two figures, because it is significant.

[Baroness Northover]

It is very straightforward. As I have just said, 96 per cent of current spend on cases is included, and in terms of numbers of cases 13 per cent are outside. So 4 per cent of spend is outside, which represents 13 per cent of the number of cases.

The noble Baroness, Lady Grey-Thompson, flagged up great concern about children in this situation and referred to the Children’s Commissioner saying that if this happened, it would breach the ECHR. Indeed, we agree. I hope my introductory remarks reassured her that this is not in breach, because if there was a failure to provide funding in such a situation that it was a breach, that would be covered either within that 96 per cent that I have just mentioned or through the exceptional fund. Any child qualifying for that kind of protection would qualify, under the European Convention on Human Rights, for that exceptional funding. I hope that that reassures her. The Children’s Commissioner may say that it would be abuse of children’s rights if that were not to be the case but we are saying that that is covered because of that protection.

My noble friend Lady Hamwee flagged up the area of immigration, and here the child’s interests are generally represented by the parent or guardian. In most cases where a child is unaccompanied, the issue is usually an asylum claim and legal aid is of course remaining for these cases. My noble friend asked what would happen if the case was not accepted as an asylum claim. In these cases unaccompanied children would have a social worker assigned to them, whose role would include helping the child access the same advice and support as a child permanently settled in the UK. They could also, for example, offer assistance in filling in forms, explaining terms and giving them emotional support. As my noble and learned friend Lord Wallace of Tankerness outlined previously, the Home Office will be working with the Office of the Immigration Services Commissioner on how best to ensure that local authorities can assist children in their care with immigration applications if necessary. This could, for example, mean exempting local authorities from Office of the Immigration Services—

[Baroness Lister of Burtersett]

I am sorry to interrupt the noble Baroness but we have gone over this a number of times. I remember the late Lord Newton questioning this issue of using social workers. Social workers are not trained for this kind of work and, as I understand, it would be totally wrong for them to provide legal advice for children in their care. It could create real problems of conflicts of interest.

[Baroness Northover]

The noble Baroness may be right about social workers providing legal advice but I am talking about the kind of support that a social worker can give to a child in that situation. Often it is not a matter of specific legal advice but of assisting that child and steering them through the necessary procedures. There has been a running theme through a lot of this discussion that it is not necessarily legal advice that is required; it may be another form of support, which is where, for example, the CAB may be able to assist. Noble Lords have a lot of experience of organisations such as these assisting people and we should not forget that. We are looking at how best to ensure that local authorities can assist children in their care in the kind of cases that my noble friend has flagged up.

The noble Earl, Lord Listowel, asked about care leavers. I am glad that he was reassured by what my noble friend could tell him. I reiterate that the exceptional funding scheme will ensure the protection of the individual’s right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. The scheme will of course encompass children leaving care, where they meet the relevant legal tests. In considering whether exceptional funding should be granted on this basis in an individual case engaging Article 6 of the ECHR, the director will consider the ability of the client to present their own case, the complexity of the issues, the importance of the issues at stake and all other relevant circumstances.

Local authorities also have a range of duties to care leavers which will not be affected by the provisions of the Bill. It is late at night but I also recognise the huge commitment in this area of the noble Earl. If he would like further discussions we are happy to do that. I hope that I have addressed the concerns of most noble Lords and would like to remind them that 96 per cent of the current funding remains in place and that the principles of need and vulnerability, which underpinned the reasons for covering the areas that we have, remain the most important ones.

I hope that the noble Baroness, Lady Grey-Thompson, will be reassured that children who are in need will be protected and that we will not see the concerns that she has flagged up come to fruition. On that basis, I hope the noble Baroness will withdraw her Motion.

[Baroness Grey-Thompson]

I thank the noble Baroness, Lady Northover, for her response and all other noble Lords who have contributed this evening.

In my opening speech I did not mention clinical negligence because the issue had been eloquently argued in the previous Motion by the noble Lord, Lord Cormack, and the noble Baroness, Lady Finlay.

The noble Earl, Lord Listowel, raised the important issue of children in care and children leaving care. However, this will raise more issues about where the costs will move to. The hope that local authorities will pick up the pieces concerning this group of children in care or leaving care is naive. Local authorities are already under huge amounts of pressure, and pushing the costs—and potentially greater costs—on them will not help the children who we want to see receive this help.

I am also deeply uncomfortable about the role of the litigation friend and the ability of children to access an appropriate person who is able to help them through very difficult times.

I am afraid that I am still not convinced by the arguments on exceptional funding. When we debated the percentages of cases, we learnt that 13 per cent of children’s cases will be out of scope. However, information provided by JustRights shows that, contrary to misleading government claims, the 5,000 to 6,000 children covered by this amendment will not be protected by the exceptional funding scheme. The Ministry of Justice has confirmed to JustRights that its figures on the number of children affected already account for those who would receive exceptional funding. If children were automatically entitled to legal aid, the Government would avoid the cost of administering children’s applications to the scheme, as well as possible delays that would be detrimental to children’s welfare.

I am conscious of the late hour. This issue has been extensively debated in many sessions, but we should ask the other place to think again about the thousands of children who will be seriously and negatively affected if the amendment does not go through. I beg to move.