Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Bach Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Hylton]

I support the principle laid out in Amendment 78, which is in this group, because appeals will almost always involve points of law. However, I urge the Government to think further about the kind of legal advice that is essential to immigrants and asylum applicants at a much earlier stage in the process. They cannot be expected to know when they leave their country of origin everything that is contained within the 1951 UN Refugee Convention, nor can they be expected to know the highly complex law that we now have in this country, much of which is expressed in statutes which refer to earlier statutes.

Therefore, I ask the Government to think deeply, as the previous Administration began to do when they set up the Solihull pilot project, about providing legal advice to asylum seekers at a very early stage before even they have had their principal interview. That project has been going on for more than one year. I hope that it will very soon be possible to draw practical conclusions from it which can be extended to the whole country.

Legal advice for these people does not necessarily have to be given by fully qualified solicitors or barristers who know or can be expected to look up the whole range of English law; it needs to be given by persons who understand the current content of immigration or asylum law.

[Lord Bach]

My Lords, I apologise to the Committee for not being present during the first, very important debate. I hope that I informed the principal players in that debate that I would not be here for personal reasons —I had to go to a funeral of a dear friend. I am grateful to the Minister for welcoming me in the manner in which he did. However, when I came and heard my noble friend Lord Beecham making his speech, I wondered why I bothered to come back at all.

[Lord Howarth of Newport]

He was very good.

[Lord Bach]

That is what I mean—in case there is any misunderstanding about it. I can see how that could be misinterpreted.

As the noble Lord, Lord Thomas of Gresford, said, with his Amendment 2, to which he spoke along with his later amendments, Amendments 29 and 78, we get down to the nitty-gritty. I want to talk briefly about Amendment 19, which is in my name and that of my noble friend Lord Beecham. It is the first outing of what I think will be a very important issue in this Committee, which is what should happen to scope of legal aid in particular areas of social welfare law.

The noble Lord, Lord Thomas of Gresford, and the others who spoke in favour of his amendment have been too gentle with the Government on this issue. It is absolute nonsense that there could be any question that anyone who gets to the second tier, the Court of Appeal or even, heaven forbid, the Supreme Court, on a point of law—for example, on a welfare benefits issue—should not have legal can not afford their own lawyer to conduct their case, and I very much hope that the Government put it in the Bill in order to take it out. It is inconceivable that John Smith, as it were, could turn up alone at the Supreme Court with his case and be faced with the Supreme Court justices and the very experienced and brilliant counsel representing the other side. I cannot think of any other Government, of any persuasion, ever having thought of doing anything like that. I am quite sure that the Government of whom the noble Lord, Lord Newton, and the noble and learned Lord, Lord Mayhew, were distinguished members would not even have dreamt of suggesting that someone should appear on their own at a case like that without the benefit of legal aid. I very much hope that we do not hear too much more about it.

Some vital case law—on welfare benefits, for example—has been decided at the higher courts as a consequence of the claimants concerned having been properly legally represented. Big social security test cases which reached the higher courts by way of the appeals process include Zalewska, on the lawfulness of the workers’ registration scheme; Hinchy, on the interpretation of the overpayment recovery test; Pedro, on the meaning of “family member in EU law”; and Mallinson, the seminal case on the interpretation of the law on disability living allowance. The idea that cases of that kind, or even those that are less important, should be conducted by a claimant in person is absurd. So I hope that the Government will accept Amendment 2 without cavil. Whether the wording is right is not a matter for tonight, but it is the principle that matters.

We argue in our Amendment 19, which is a probing amendment designed to find out what the Government feel about it, that the law should go wider and that there should be no question of taking out of scope reviews of welfare benefits. The amendment would ensure that individuals seeking to defend their fundamental economic and social rights had the advice that they needed to be able to present their cases and understand the processes that they would be subject to. Our amendment would allow the applicants to get advice before going to a tribunal. The First-tier Tribunals were set up, as we have heard, to consolidate the various tribunals that adjudicate on administrative matters of the state. Admirable work has been done and is being done to try to make First-tier Tribunals as user-friendly as possible—I praise the noble Lord, Lord Newton of Braintree, for having played a big role in this, as well as Lord Justice Carnwath, whom we should congratulate on being elevated to the Supreme Court today.

[Lord Phillips of Sudbury]

The noble Lord’s mention of Lord Justice Carnwath put me in mind of a fact which none of us has so far mentioned but which I invite him to endorse, which is that the amount of court and tribunal time wasted by having unrepresented appellants has a cost attached to it.

[Lord Bach]

I agree with the noble Lord and I shall say a little word about that before I sit down.

Admirable work has been done in the First-tier Tribunal to make it as friendly as one can. However, it is impossible—and the Minister has heard this from around the Committee today—to square the circle in that those tribunals still fundamentally are ruling on matters defined and decided through laws, rules and guidance, which is sometimes pretty heavy, that often carry criminal sanctions if violated. It is quite clear when one looks at official statistics on the First-tier Tribunals that the Government are wrong when they say that tribunals can be accessed without advice. You are twice as likely to win an appeal if you have had some basic advice rather than no advice at all. The Minister's team has kindly provided information that allows us to quantify the increase in likelihood of winning an appeal if the appellant has been advised. This is to the First-tier Tribunal. For some types of cases, such as employment support allowance, you are more than twice as likely to win. Given that it allows people to return to work, seeing thousands of cases that would have been won with advice is surely wrong headed.

[Lord Thomas of Gresford]

Rather than saying that cases would have been won, would the noble Lord not use the expression “gained access to justice and obtained the benefits to which they were entitled”?

[Lord Bach]

In my legal career and otherwise, I have always given way to better phrases used by Welsh lawyers and certainly by the noble Lord, Lord Thomas of Gresford, and I do on this occasion too. Access to justice is rather important because you cannot win if you do not have access to justice. One of the worries is that the Bill will ensure that there is no access to justice for many who have had it up until now.

The reason for marked disparities is that appealing on welfare benefits inevitably requires, as my noble friend Lady Lister and the noble Lord, Lord Newton of Braintree, have just mentioned, an understanding, whether we like it or not, of complex statutes and rules and guidance that govern how the state evaluates an individual's eligibility for legal aid. Had legal aid not been present in 2009-10, if we apply the success rate for those without advice to those who did receive advice, 51,223 people in total would have lost their appeals. The long-term cost of supporting those people is incalculable. Never mind Second-tier, Court of Appeal and the Supreme Court; to take out of scope advice on a review to the First-tier Tribunal is unfair and wrong.

The effect of people not being able to exercise their rights is again frankly explained in the Government's own impact assessment. The Government say that the changes may lead to:

“Reduced social cohesion … Increased criminality … Reduced business and economic efficiency … Increased costs for other Departments … Increased transfer payments from other Departments, in particular higher benefits payments for people who spent their savings on legal action”.

In welfare benefit cases, it is not enough to have legal aid at the Second-tier Tribunal upwards. In fact, if you do not have it earlier you are unlikely to ever get to the Second-tier Tribunal or above. Advice is needed when seeking to review, for example, DWP decisions before the First-tier Tribunal. It does not have to be expensive or sophisticated legal advice, but it has to be legal advice.

If advice is given at that stage, hopeless cases, as has been said, can be got rid of. First-tier Tribunals would not be so clogged up in the future. The Committee will remember what Judge Martin of the Social Entitlement Chamber said about unrepresented defendants—that at least 10 per cent of time is wasted in explaining what is going on. Proper cases can therefore go ahead quicker. In particular, many legal issues can be sorted out by the advice that is currently given so that the wrong can be put right before the tribunal ever gets involved.

That is what the present system does, although not perfectly. Lots of people do not take advantage of it and sometimes it does not work, but more or less it works pretty well. People get their advice, which frankly does not cost very much money and lawyers certainly do not get rich on it. The truth is that many cases no longer have to go anywhere near a tribunal. It does not encourage courts or tribunals: it actually avoids courts and tribunals. That is why it is slightly ironic that the Lord Chancellor said today in his Guardian article that legal aid’s,

“broad scope means that problems are dragged straight to the courtroom that could often be solved earlier and more simply elsewhere”.

That comment is not his finest: I would go so far as to say that it is rather absurd. The type of legal aid that he seeks to abolish is exactly the type of legal aid that he should be encouraging and reinforcing because it avoids courts and tribunals rather than encouraging them. In fact it often has some sort of mediating effect, and we know that mediation is an important and proper part of the Government's policy in this field.

The Minister has described himself today as a social democrat and someone who has a copy of The Rule of Law by his bed. If he is a person of that sort, he must see the argument that has been put in the Committee tonight.