Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness O'Loan Excerpts

Monday 16th January 2012 Lords Chamber

Moved by

[Baroness O'Loan]

33: Schedule 1, page 116, line 1, at end insert—
“Children affected by civil and family law proceedingsCivil legal services provided to a person having dependent children related to—
(a) private family law;(b) any benefit, allowance, payment, credit or pension under—(i) the Social Security Contributions and Benefits Act 1992,(ii) the Jobseekers Act 1995,(iii) the State Pension Credit Act 2002,(iv) the Tax Credits Act 2002,(v) the Welfare Reform Act 2007,(vi) the Welfare Reform Act 2011, or(vii) any other enactment relating to social security;(c) all areas of employment law not otherwise covered in this Schedule;(d) all areas of housing law not otherwise covered in this Schedule;(e) all areas of debt-related disputes not otherwise covered in this Schedule;(f) all areas of immigration and asylum law not otherwise covered in this Schedule;(g) all areas of clinical negligence law not otherwise covered in this Schedule;(h) consumer law;(i) all areas of consumer law not otherwise covered in this Schedule;(j) appeals to the Criminal Injuries Compensation Authority;(k) reviews or appeals under sections 11 or 13 of the Tribunals, Courts and Enforcement Act 2007; or(l) appeals to the Supreme Court.”

[Baroness O'Loan]

My Lords, I have put my name to the amendment, which seeks to restore families with dependent children to the list of those eligible for legal aid and advice in respect of a range of legal issues that can be fundamental to the ability of a family to function. The proposed changes in the Bill, and in other Bills before your Lordships’ House such as the Welfare Reform Bill, which was referred to before the break, will have a disproportionate effect on those families in our society who are the least advantaged, most marginalised and most deprived. The number of those who would benefit from the amendment is necessarily limited by the terms and conditions under which legal aid and advice is available, but they may well be the people who are least able to contemplate the complexities and mysteries of conditional fee agreements, of lawyers, and of the costs of the ATE insurance premium in cases that they may have to fight.

We in this country have to make many decisions about how we spend our money. In November last year, the Government affirmed their commitment to spend £200 million on an airstrip in the south Atlantic, for St Helena island, which has 4,000 inhabitants. As we contemplate our reasons for doing that and observe similar expenditure, we should ask ourselves: what would be the consequences of removing access to legal aid from the poorest and most marginalised families in our country? The Minister spoke earlier today of the hard choices faced by government. They are infinitely harder for those upon whom these choices and legislative changes will fall.

Some 650,000 of the poorest people will be deprived of the access that they currently have through solicitors, CAB law centres and other advice centres that are estimated to provide services at a cost of between £150 and £200 per case. Justice for All, a coalition of some 4,000 organisations, has estimated that approximately 140,000 children will be affected by the proposed measures as legal aid is withdrawn from the adults who care for them, and that at least 6,000 children will be deprived of legal aid altogether. It is also estimated that 57 per cent of those who will no longer be able to access specialist advice on welfare benefits are disabled—about 78,000 people. Where those disabled people are part of families with dependent children, or where dependent children are living in a family, they will encounter even more marginalisation as a result of the consequential difficulties of access to specialist advice.

The Coalition: our Programme for Government stated:

“The Government believes that strong and stable families of all kinds are the bedrock of a strong and stable society”.

We know from the recent Save the Children report that 45 per cent of parents living in severe poverty are considering cutting back on food to pay energy bills. Many families with very low incomes, lacking job stability because of the area in which they live, facing deprivation on a scale of which most of us have little experience and living in overcrowded accommodation, nevertheless provide a stable and strong base from which to launch their children into the world as active, contributing members of society. When they face legal challenges, they should be supported, because it is the right thing to do and also because if we do not, they may find themselves unable to maintain their family lives and will inevitably become a cost to the state.

I want to say a word about private family law. Great concern has been expressed about the fact that private family law cases have been excluded from legal aid provision. Not all cases of family breakdown are susceptible to mediation or even to the type of collaborative law project discussed earlier. There will inevitably be cases where legal aid and advice is required by families. Concerns have been raised about cases in which a child is unlawfully removed from one part of the United Kingdom to another, and about cases in which a spouse has suffered prolonged violence during a relationship or has other problems, such as extreme poverty, illiteracy or even as simple a thing as no one to mind the children. That person may not have the capacity personally to challenge the other in the courts to try to recover the child. If it has to be done before the courts, under the proposed arrangements, it could result in two spouses both personally conducting their cases in court—surely a recipe for all sorts of failure in the delivery of access to justice.

Legal aid is not being withdrawn for international child abduction cases. The effect of moving a child from Barnstaple to Belfast may be as difficult as moving a child from Barnstaple to Brittany. In such cases, the safety of the child may be at risk. There is the risk of psychological and emotional damage because of their inability to contact the second parent, or the risk that the parent who looks after the child ensures that the child has a distorted and damaged view of the action of the other parent.

To make a blanket provision excluding all private family law cases is neither proportionate nor necessary. The ultimate result will inevitably be a significantly enhanced burden on the individuals concerned and further involvement of the various statutory agencies, which carries its own cost.

We discussed benefits just before the dinner break. I therefore do not intend to say any more, other than that benefits are not something extra to a family's income, they are the family's income. They are that which enables the family to function, and there are good financial reasons to continue to provide the current low-cost legal assistance which has been available to date.

In cases of employment, as with civil litigation, access to legal aid permits a screening of cases, which facilitates the handling of such cases in a reasonably effective manner. The removal of access to pre-tribunal advice will have consequences similar to those which are being predicted consequential to the removal of legal aid for civil litigation. People will bring actions before tribunals without advice and, because of their lack of knowledge of tribunal procedures and employment law, there will undoubtedly be delays, additional adjournments and a necessity for the tribunal chair to ensure that litigants have equality of access in the absence of appropriate representation, particularly where the respondent is legally represented, as is the case in most employment tribunal applications. The cost of providing this service will inevitably rise.

There is a significant risk that the removal of legal advice in such cases could result in an awareness that employees have much reduced opportunities to assert their legal rights, with a consequent lowering of general standards of protection in employment. Those who face serious exploitation or discrimination at work may ultimately end up unemployed and on benefits. That could be the beginning of a downward spiral for many families—a situation in which today they could be successfully protected through the tribunal process.

Although housing advice is being retained for those at imminent risk of homelessness, there will nevertheless be situations in which people have serious housing benefit problems or other housing-related issues. One example given by Justice for All involves a woman who had previously attempted suicide and her 11 year-old daughter. They were living together and both were receiving psychiatric help following the suicide attempt. They were subjected to a campaign of harassment by newly arrived neighbours. There was verbal abuse, poison-pen letters, and endless complaints about the puppy which they had happily owned but which had to go because of complaints about noise. Shelter, using legal aid, was able to get them rehoused. People in this situation have been known to feel, as this lady did previously, that their only escape lies in suicide. What would this woman have done had she not been able to go to Shelter for help?

Many people in this country are living on the minimum wage, which amounts to less than £200 a week, or on benefits such as jobseeker’s allowance, where the weekly benefit is £53.50 for a person under 25 or £67.50 for a person over 25. I ask noble Lords whether they could live on even £67.50 a week, after housing benefit of course. People in this situation live from day to day and from week to week. Planning ahead is not really possible. Meeting the costs of sudden illness or a reduction in working hours, which is happening to many people across the country, is a burden too far. Pay-day loans and other debt solutions are an unwarranted and disliked solution in such circumstances. They simply tie the borrower into the debt spiral, often with massive rates of interest, and the borrowers know this but they have nowhere else to go.

Debt causes stress and illness, and it leads to conflict and tension in families. People who find themselves in intractable difficulties despite their wish to work need help, such as that offered by money advice agencies, to access benefits to which they are entitled, to make a manageable agreement to repay their debts and ultimately to avoid losing their homes. If such advice and help is not available in the early stages, the consequences are almost inevitable. The cost to the public purse of the splitting up of the family is equally predictable in terms of sickness, housing costs, welfare benefits and access to medical services.

I want to say a brief word about immigration, which I have also included in the amendment. Trafficked persons and children would have no access to legal aid under the Government’s proposals. Refugees would not have access to advice about cases involving bringing members of their family to safety, and there would be no legal aid for many immigration judicial review cases, thereby reducing the accountability of the UK Border Agency.

Clinical negligence we have discussed at length, and I shall say no more other than that the King’s College, London, report is fairly persuasive that the ultimate cost could be £18 million, consequential upon the increased costs of ATE insurance.

There are compelling reasons to provide legal aid and advice for those families who would qualify in these circumstances. Acknowledging these issues, the Government have announced £20 million of funding to support people affected by the cuts. However, this is limited to the current financial year. There will be no capacity for sustainability in this measure. CAB research, which has not been challenged, has shown that for every £1 of legal aid advice and expenditure, the state potentially saves £8.80.

It is very clear that the attempts to remove access to justice from the most marginalised and deprived of our families will cause immense damage. Families with dependent children face not only the challenge of trying to make money stretch and to remain healthy, but also the challenge of producing the citizens of the future. If those children grow up knowing that their parents have no access to justice, how can they believe that this society cares for its weak and its vulnerable? How many families will splinter under the combined weight of lost jobs, lost expectations, reduced benefits, rising interest rates, and our failure to provide them the access to justice which will enable them to be, in the Government’s words,

“strong and stable families … the bedrock of a strong and stable society”?

I beg to move.

[Baroness Benjamin]

My Lords, I have put my name to Amendment 33, which seeks to retain legal aid in cases where a child will be affected by the outcome of a case brought by a parent or guardian. Many children are affected by civil law problems and family cases involving their parents or guardians, even though they themselves are not the applicant or claimant. The Government have said that,

“where children are involved, legal aid will still be provided”.—[Official Report, 7/7/11; col. 343.]

However, this is not in fact the case under the proposals in the Bill. I know that the Government recognise the importance of legal aid funding in a range of cases where children’s interests are paramount, which is good news. There are, however, still areas that cause grave concerns to many charities and organisations across all parts of society, and which unfairly affect children. They are: housing; welfare; immigration; domestic violence; clinical negligence; criminal injury compensation; and education. This will probably be due to their parents’ lack of financial resources and ability to navigate the legal system. Their parents may also be hindered by disability, language barriers, poverty, and mental health issues. These are no good reasons for children to be penalised.

Almost 150,000 children under 18 will lose the civil law and family law protection provided by legal aid. They are currently helped by legal advice or representation in court to deal with problems that are no fault of their own. Children are the named party in 6,000 cases per year that will no longer qualify for legal aid, and are financially affected by more than 140,000 cases per year involving their parents. The amendment would ensure that where dependent children will be affected by a case their parents are being represented in, legal aid will continue to be available subject to existing rules on financial suitability and the viability of the case.

For welfare benefit advice, currently 135,000 advice sessions per year are funded by legal aid. Under the Bill’s proposal, however, legal aid’s support for benefit advice is being abolished. In tribunal appeals where the applicant has legal advice, 55 per cent of all Department for Work and Pensions decisions to cut benefit are found to be wrong and are overturned. About 36,000 children are affected each year who come from the lowest income families, for whom losing the benefits they are entitled to will make a significant difference to their lives. As I have often said, childhood lasts a lifetime and the adversities children go through when they are young will in most cases stay with them for ever and affect their adult lives.

--- Later in debate ---

[Lord McNally]

I promise the noble and learned Baroness that I shall go into the Lord Chancellor’s room tomorrow and say, “Baroness Butler-Sloss has asked me to ask you to clarify what you told me”. It is a very serious point. My briefing states that the police would help. She has made a relevant point about whether they would do so without a court order. I have never pretended that my knowledge on these matters was only six years out of date. In fact, my expertise is right up to date because I am learning all the time. I take on board what both noble and learned Baronesses have said, and I will try to explain to the Lord Chancellor that when I stand at the Dispatch Box I am facing a considerable amendment of experience and expertise which, dare I say it, he does not always face in the other place.

Amendment 41 is also open to the argument that it would extend to applications to prevent the child being moved by the parent with whom he or she resides and so put back into the scope of legal aid a very common type of family dispute. It is hard to estimate what effect this would have on our savings, but it would inevitably run into many millions of pounds. However, I will go back. As we know from other aspects of this thing about the rights of fathers—the noble and learned Baroness gave some of the horrific statistics about family break-up—we are touching a very sensitive area and I will raise these matters with my right honourable colleague.

Amendment 51 seeks to guarantee the availability of legal aid, subject to the means and merits test, for every family dispute that is not resolved by mediation. In considering the effect of this amendment, it is important to remember that both privately paying and publicly funded clients are already required to consider mediation before bringing proceedings. Given those existing requirements, it is difficult to see how this amendment would do anything other than maintain the status quo, retaining legal aid for all or most family cases. That would completely undermine our targeted approach to legal aid reform. We have to reduce expenditure on legal aid, but we also want less reliance on litigation as a means of solving problems. This amendment would do the opposite. If the fact that mediation had not resolved the parties’ differences were to become a route to legal aid, it would have the unintended consequence of discouraging people from paying more than lip service to the mediation process and reducing genuine engagement with it.

The Government’s position is clear. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. Accordingly, for most divorces, child contact applications or ancillary applications to divide up the family assets, legal aid will no longer be available. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend an extra £10 million on mediation, taking the total to £25 million a year.

However, we accept that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family cases where there is evidence of domestic violence and cases where a child is at risk of abuse. We will be turning to the matter of domestic violence on Wednesday. I want to make clear that funding for victims of domestic violence seeking a protective order will remain available as at present; that is, we will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, such as a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. Again, the exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as the rights to legal aid that are directly enforceable under European law.

Amendment 52 is aimed at providing legal aid for any adult party in family proceedings where a child party may give oral evidence, presumably to prevent cross-examination of the child by the alleged perpetrator. I understand the concerns which the noble Baroness who moved the amendment is trying to address here, but we are seeking to ensure funding for the most vulnerable in society. We do not think that to automatically extend funding to an alleged perpetrator fits well with this. It would be a mistake to assume that the only means of protection for the prospective witness is funding representation for the prospective questioner.

The situation which the noble and learned Baroness seeks to address can already occur in the courts. Should a victim of abuse face questioning from their abuser, judges have powers and training to manage the situation, to make sure that the court’s process is not abused and that hearings at which oral evidence is given are handled sensitively. In family proceedings, for example, the court is specifically empowered to limit cross-examination—it can have questions relayed to the witness rather than asked directly—and can use video links and intervene to prevent inappropriate questioning.

That brings me to the end of that list. I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.

[Baroness O'Loan]

I thank the Minister for his comments, and I am glad to hear that he will reflect further upon this very wide-ranging debate, in which the consequences of the proposed legislation have been so well articulated on all sides of the House. I am not persuaded by what the Minister has said—that it is right, necessary or proportionate that there should be a whole-scale removal of the availability of legal aid to families with dependent children, when there is such a huge range of issues of vital importance, such as basic family income.

The Government suggest that we may save £270 million, but we know already that those figures are very questionable. Careful analysis suggests that the consequences of this part of the Bill will be a much greater involvement of social services, housing authorities, welfare services, the criminal justice system, education services, and, I fear, ultimately the health service.

The Minister has not persuaded me that the drafters of this Bill have had sufficient regard to the needs of the child and of the family to which the child belongs. We may need to return to the matter on Report. For the present, I beg leave to withdraw.

Amendment 33 withdrawn.