Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Whitaker Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Avebury]

My Lords, I shall speak also to Amendments 77B to 77D, and after that my noble friend will probably deal with Amendment 77E, which covers a different matter.

We are grateful to my noble and learned friend Lord Wallace of Tankerness for his Pepper v Hart statement in our previous debate on the effect of the Bill on Gypsies and Travellers that cases under Sections 187B, 288 and 289 of the Town and Country Planning Act 1990 will remain within the scope of legal aid. We are also very grateful to him for giving us the time to explain these amendments to him personally last week.

The main amendment in this grouping—Amendment 77B—would remove paragraph 28(10) of Schedule 1, to which I now turn. As the Minister is aware, we are still deeply concerned about the Bill’s impact on people living on unauthorised encampments on council-owned land. At present, if a local authority takes action to evict Gypsies and Travellers using a procedure other than a county court possession action—for instance, by using Section 77 of the Criminal Justice and Public Order Act 1994—then any public law challenge based, for example, on the fact that the local authority has failed to conduct welfare inquiries would have to be by way of judicial review. No doubt the Minister will confirm that such a challenge will continue to be available under the Bill as presently drafted.

If, on the other hand, the local authority decides to evict Gypsies and Travellers from its land by seeking possession in the county court, then the decision of the House of Lords in Doherty v Birmingham City Council makes it clear that any public law challenge to such action should be pursued in the county court and not by way of a separate judicial review application. However, paragraph 28(10) of Part 1, Schedule 1, provides that trespassers living in caravans facing repossession actions in the county court will no longer be entitled to legal aid to defend such proceedings. The effect of it would be that Gypsies and Travellers, having public law grounds to challenge a local authority's decision to seek possession, will be forced to make an application in the High Court for judicial review.

Perhaps I may give an example of the sort of case in which this would apply. Government guidance states that local authorities should carry out welfare inquiries before deciding whether to evict an unauthorised encampment. If a Traveller family, whose members are in very poor health and are pursuing a homeless application with the council by asking it to find them a pitch where they can lawfully place their caravan, is camped on the land of a local authority without authorisation, but is not causing any obstruction, and the local authority then decides to commence eviction action without making any welfare inquiries, the family would like to ask the court not to make the possession order because of ill health and the pending homelessness application. However, the family would not be able to do so if sub-paragraph (10) is retained. It would have to go for judicial review of the council’s decision to seek possession in the High Court on the basis of the local authority’s failure to take into account relevant considerations and rationality. If the Minister will confirm that this would be within scope, does he also agree that there is no merit in removing legal aid for the defence of possession proceedings in the county court on public law grounds, leaving the option only to go to the High Court?

We had an actual example of this only this morning in an e-mail from a lady whose brother and sister-in-law are in precisely this position. They are encamped on the borders of a local authority highway. They are both 57 and are in poor health. The lady’s brother has recently seen a doctor and has been diagnosed as having lesions in his lungs and her sister-in-law has emphysema. They stopped at this place because they wanted to consult a general practitioner, which they have been able to do, and to seek treatment for these conditions. They have been fortunate in having remained on this site for the past four months without being noticed, but at any moment the local authority could seek possession and they would be removed from the site and would be unable to continue to obtain medical advice and treatment, which clearly they desperately need.

Satellite judicial review proceedings in the High Court can be expensive and can result in delaying the resolution of the possession proceedings. The House of Lords in Doherty considered that public law arguments relating to possession proceedings should be determined by county court judges and we respectfully agree. Is it not far more sensible, I ask my noble and learned friend, to encourage local authorities to deal with these matters in their local county court where, self-evidently, they can be settled far more cheaply and more effectively? If this local authority commences action under the Criminal Justice and Public Order Act 1994, the Traveller family, assuming that it is financially eligible, of course, will be able to obtain legal aid judicially to review the council's decision but if the council issues possession proceedings in the county court, the family will not be able to seek legal aid for representation so that they can defend these proceedings on public law grounds. I suggest that this is an arbitrary and perverse distinction. I am absolutely sure that the Government did not intend to undermine the Doherty ruling and make it inevitable that cases that ought to be dealt with in the county court have to be heard in the High Court at far greater cost to public funds, a point which I hope that my noble and learned friend has been able to consider, since we brought it to his attention when he kindly received us to discuss these amendments last week.

I would be grateful if my noble and learned friend could confirm that the trespasser exception to the loss of home being within scope was originally intended to deal with the problem of squatters in buildings. At some point it was decided—wrongly, in my opinion—to make this a criminal offence, as provided elsewhere in the Bill. This means that the vast majority, if not all, of the cases that will remain within the trespasser exception will involve Gypsies and Travellers on unauthorised encampments. The reason why they are there is because of the admitted failure by successive Governments to ensure adequate site provision, for which the UK is the target of trenchant criticism by the Council of Europe’s High Commissioner for Human Rights.

We must assume that the Government have not intentionally set out to discriminate against two ethnic minority groups, although that is the unlawful result of paragraph 28(10) following the decision about squatting in buildings. Given this unintended consequence, we invite the Government to reconsider their position on the amendment and on the others in this group, which are consequential. The noble Baroness, Lady Whitaker, will deal with Amendment 77E. This concerns the separate issue of actions under the Mobile Homes Act 1983, which will also be taken out of scope. I beg to move.

[Baroness Whitaker]

My Lords, I apologise for the fact that my voice has not kept up with the strength of my convictions. For that reason, I will say no more about the earlier amendments that the noble Lord, Lord Avebury, spoke to so clearly. Amendment 77E will make a big difference to the security of place for many Gypsies and Travellers. The Bill proposes that all aspects of the Mobile Homes Act 1983, apart from those that concern possession, will go out of scope. The result will be that Gypsies and Travellers living on rented sites will be deprived of legal aid and legal advice of any sort to deal with cases that involve breach of a covenant of quiet enjoyment, succession, resiting of a mobile home, rent increases and repairs. Both the law and the facts relating to these issues can be complex. The consequences of failing to deal properly with them can be serious. They can result in homelessness—even though the intended effect is not to create homelessness—because the tenants are effectively driven out.

The further complication in the situation of many Gypsies and Travellers is that they have not always been educated to read and write, and to be able to follow the complexities of the law. Therefore, because of the situation in which they will find themselves, they will be discriminated against in all these matters. We are talking only about the continuation of the legal aid initial advice scheme for these cases. The provision of this kind of advice is quite cheap and extremely cost-effective.

These actions are not technically called “harassment”, but they amount to it when the person who is on the receiving end cannot deal with them and is cast out of their home. The noble and learned Lord, Lord Wallace, said in Committee that he could reassure us that legal aid would be available for harassment injunctions in relation to the Mobile Homes Act. I was very glad to hear that. It showed that he understood the injustice that can so easily befall people who are marginalised by society, and that it is incumbent on society to reduce this marginalisation. Given his helpful response, I ask him to consider whether cases of breach of a covenant of quiet enjoyment—that is to say, Article 8 rights under the Human Rights Act—should also be included in the scope of legal aid. If he prefers, he could confirm that the Government intend that such breaches should be included under the term “harassment”. It would be a small step conceptually, but it would make a big difference.