Legal Aid, Sentencing and Punishment of Offenders Bill

Geraint Davies Excerpts

Monday 31st October 2011 Commons Chamber

[Geraint Davies (Swansea West) (Lab/Co-op)]

May I ask why the Minister is discussing amendments that have not been selected by the Speaker? He seems to be referring to amendments 98 and 97.

[Mr Djanogly]

Amendments 94 to 102 have been selected.

Under amendment 98, a section 37 direction, regardless of the outcome of the investigation, would trigger funding for all parties in any private law family proceedings in which the child was involved. A section 37 order in itself does not mean that the child is at risk of abuse. The local authority staff could conclude, once they had completed their investigation, that the child was not at risk and that no further action was needed. If the local authority concluded that action was needed, it would put a child protection plan in place. As I have said, legal aid will be available in private law children cases in which a child is at risk of abuse for a party seeking to protect the child where there is objective evidence of the risk of abuse. A child protection plan will be accepted as objective evidence in criteria that will be set out in regulations under clause 10. That means that if a local authority put such a plan in place, that would trigger funding for the party seeking to protect the child.

Providing for legal aid to be available for any family proceedings involving the child, as amendment 98 would do, would mean that legal aid would not be targeted on proceedings about protection of the child, but could be available for proceedings that might not concern protection at all. For example, a case about financial relief for the parents could be covered if an application were made for financial relief for the child. Given that the words “involving a child” do not give much indication of how closely the child needs to be concerned, it might even be that a case between the parents about a matter that did not directly concern the child was included.

Amendment 98 would also provide for legal aid to be available for all parties to the proceedings. We intend to target funding on the protecting party. Where a party is not the person taking action to protect a child from abuse, the same level of importance and risk would not apply.

Amendments 94 and 95 would also widen the availability of legal aid under paragraph 11 beyond the parties seeking to protect the child. That would mean that legal aid would be available for the other party in private law children cases where a child is at risk of abuse. As I have explained, we decided to keep those cases in scope for the protecting party because protecting children from abuse is paramount. Where a party is not the person taking action to protect a child from abuse, the same level of importance and risk would not apply.

The tests we wish to use to determine the availability of legal aid in these cases are designed to be as objective as possible and to minimise the risk of false allegations. The tests are: where there is a criminal conviction or ongoing criminal proceedings for a child abuse offence; where a local authority has put a child protection plan in place to protect the child; or where there is a relevant finding of fact by the family courts that child abuse has occurred. They will provide clear and objective evidence of the risk of abuse. However, if the particular facts of an individual case mean that failure to provide legal aid for both parties would be likely to result in a breach of the individual’s rights under the Human Rights Act or European Union law, exceptional funding would be available.

I turn now to amendments 99 to 102, which seek to retain legal aid provision for all parties in private family cases where the court has made a child a party to proceedings. Identical amendments were debated in Committee. The Government intend to retain legal aid for a child who is a party in these circumstances. However, as we made clear in Committee, we do not accept that, where a child requires representation, adult family members should as a matter of routine also be given legal aid. There are a variety of reasons for a child to be a party, and not all will involve the complexity of a case. In cases where a child is represented, it does not follow that the case will necessarily be so complex or that the child’s involvement will render the case so complex or difficult as to require representation for all parties.

By their nature, some of the cases will be complex, and we recognise that in some circumstances people will be unable to represent themselves, but we think that those cases will be the exception. The exceptional funding arrangements will ensure that legal aid will be available where required. A failure to provide legal aid in cases where people genuinely could not represent themselves would be likely to breach an individual’s right to legal aid under the Human Rights Act or EU law.

I turn now to the immigration amendments, which include technical Government amendments, Government and Opposition amendments relating to domestic violence immigration cases and other amendments seeking to widen the scope of legal aid for refugee family reunion matters and immigration judicial review cases. Government amendments 61 and 62 will amend paragraph 25(1) of part 1 of schedule 1 to correct an omission in the meaning of asylum in the Bill. That will ensure that persons who make a claim to enter or remain in the UK based on the EU qualification directive are eligible for legal aid. Government amendment 60 will make a similar change to paragraph 25 to cover claims based on article 2 of the European convention on human rights, which sets out the right to life. Although most claims for asylum will be made on the basis of the 1951 refugee convention or article 3 of the European convention on human rights, the amendment will allow funding for cases involving execution and the death penalty; serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict; and unlawful killing.

Government amendments 55 to 58 clarify the wording of paragraph 17(7) of part 1 of schedule 1 with regard to the exceptions from scope to the exclusion of certain types of immigration judicial review proceedings. Amendments 55 and 56 will amend paragraph 17(7)(a) to clarify that the exception applies only to a judicial review of a negative decision in relation to an asylum application where there is no right of appeal to the first-tier tribunal against the decision. Amendments 57 and 58 will amend the exception in paragraph 17(7)(b) to add a reference to section 94 of the Nationality, Immigration and Asylum Act 2002. Section 94 allows the Secretary of State to issue a certificate on a number of different grounds, for example when an asylum claim is clearly unfounded. The certificate prevents an appeal to the first-tier tribunal being brought while an individual is in the UK. The amendments clarify the position and ensure that the policy is given effect.

Amendment 83 seeks to maintain within legal aid civil funding certain immigration judicial review cases that are very likely to be without merit. We debated an identical proposition in Committee. These are cases that either have already had a hearing on the same, or substantially the same, issue within a period of one year, or are judicial reviews of removal directions where there is less than one year between the giving of the direction and determination of the decision to remove. In response to our legal aid consultation, the Judges Council highlighted the large number of immigration judicial reviews that were without merit and, in effect, clog up the system. Only a minority of those would receive legal aid. As we made clear in Committee, the Government’s view is that it is wrong in principle for such cases to remain within the scope of funding.