Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Bach Excerpts

Tuesday 20th December 2011 Lords Chamber

Moved by

[Lord Bach]

3: Clause 1, page 2, line 1, leave out “may” and insert “must”

[Lord Bach]

My Lords, this amendment, short though it is, is important because it allows the Committee to question the Minister and to have a discussion around public legal education. That subject does not appear much in the Bill and we thought it worth tabling a probing amendment. If the Minister is not able to answer all the questions today, I am sure that he will be kind enough to write to Members of the Committee.

Perhaps I may go down memory lane for a moment or two. When I held the position that the Minister’s colleague, Mr Djanogly, now holds, part of my brief covered public legal education. It was based on the thesis that, of course, it is important for people to be able to access justice, but people will do so only when they know that a civil wrong may be or has been done against them. The truth is probably that many millions of our citizens do not know when they have some claim—perhaps not big or major—because some civil injustice has been done against them. They have no idea how the system works.

We very much want to keep the good things in this system, which means that people with a legal claim can get advice and, it is hoped, sort out the claim in that way. We think that legal aid plays an important role in making that system work. However, when we live under the rule of law in a modern liberal democracy, what do we do when people do not have a clue about their rights and responsibilities in this legal sense?

I was lucky enough to chair a pretty powerful committee of independent outsiders at the department on this issue. From outside the ministry, a committee group was led by the brother-in-law of the noble Lord, Lord Brooke. He is a very distinguished former Lord Justice of Appeal who has done very good work in many fields, as the Minister is confirming. The committee included people such as Professor Hazel Genn; Richard Susskind, the expert on legal IT and associated subjects who has advised Governments of all colours and none; Michael Smith, a very distinguished solicitor; the chairman of the Legal Services Board; and Amanda Finlay, to name just a few. What we talked about and tried to do something about, and what we as a Government were prepared to put money into, was an attempt to make our legal system better understood by ordinary citizens.

Public legal education is not a very attractive phrase, but we know what we mean by it. The question was where we would concentrate the limited resources that were devoted to such a concept. It seemed to me that there was one place where more work ought be done. Some work had been done in schools, which was excellent, but more was needed. Also, sixth-form colleges and colleges of further education were places where probably there was not much teaching or education even in its broadest sense about a citizen's legal rights and obligations. We thought that this was an important part of trying to establish a proper democracy that lives under the rule of law.

I hope that other noble Lords will join in the debate and ask other, perhaps deeper questions. In the Bill the requirement to provide legal education is discretionary rather than mandatory. Our probing amendment argues that it should be mandatory; there should be an obligation on the Lord Chancellor. What mechanisms does the Minister’s right honourable friend intend to use to secure the provision of information about the law? That is an important point. Online facilities, with the exception of YouGov, are fragmented and of varying quality. How does his right honourable friend intend to work with other departments of state and external actors to ensure that citizens are informed of their rights and duties when interacting with the state and other services?

I think that most noble Lords in Committee will agree that this question could be well directed to the Department for Work and Pensions, because I imagine that we will talk quite a lot about mistakes that have been made by that department. However, it applies also to the Department for Education, the National Health Service, private banks and of course local authorities. Our concern is that the Government have rather put on one side this sort of work, either for financial reasons or because they do not believe that it has much place in the Ministry of Justice's responsibilities.

What is the Government's attitude towards the future of public legal education under our system, and to the goal of educating more of our citizens in the ways of knowing what their obligations and rights are, so that they do not walk around blind to the kinds of rights and obligations that they have in a society such as ours? That is the point of the amendment. I need hardly tell the Committee that of course I shall not press it; it is a probing amendment to elicit the Government's views on the issue. I beg to move.

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[Lord McNally]

He will be very annoyed; that is what his father was called. It is one of the problems of being in the House of Lords that you remember their fathers. I am working with Francis Maude on our transparency agenda. On a number of things that have been, and will be, discussed in this Bill, some of my noble friends talk as if the legal profession was set in aspic. I suspect that we are about to see an enormous change in the legal profession. As in any sector where there is change, it is unsettling, but it could also be very enabling. I wonder whether alternative business structures, whereby accessing a lawyer might not be so formidable as calling on the high-street solicitor but a matter of going to somewhere in your local Co-op, might make a difference in terms of access.

Noble Lords underestimate just how willing people are to use the telephone and, increasingly, their e-mails and computers to get information. One has only to see the impact of eBay to appreciate how confidently people use that kind of technology for everyday use. The idea that people will get their advice via telephones and computers is not so far fetched.

The noble Lord, Lord Howarth, asked me what the department was doing. Through Directgov, the public can gain access to a range of information online about the justice system, including legal aid. The introductory page on legal aid on Directgov includes specific information about accessing the community legal advice helpline via the telephone or by completing a web-based online form to book a call back from the helpline in a language and at a time convenient to the caller. Plans are for e-mail advice and community legal advice, and the Legal Services Commission is currently working to enhance the facilities for clients to access advice electronically from the community legal advice helpline via secure e-mail. Initial access to the CLA e-mail advice service will be via the current “contact us, call me back” page on Directgov.

Online general services come in three forms: free web-page services provided by a variety of commercial and not-for-profit organisations such as National Debtline, the Adviceguide from Citizens Advice, and consumer credit counselling services.

I went to the Law Society awards ceremony earlier this year and it was interesting how many of the award-winning companies had online services. Some of them went quite a way down in terms of advice before you pressed the button to start being charged. Again, online services are an interesting development.

These online and digital resources also explain court processes and procedures and how court hearings work, which is particularly important for litigants in person. There are a number of links that demonstrate how comprehensive these resources are. They give advice on, for example, how to avoid repossession, what to do if you get into mortgage arrears and a whole variety of other services.

I am suggesting that part of what the noble Lord, Lord Bach, raised in this amendment, which I welcome because it allowed us to tease out some of these matters, is that a great part of our responsibilities under this section will be carried through by the new technologies. We believe that the public, who in other parts of our life show an amazing capacity to use these new technologies, will find them an important part of understanding and having access to our legal system.

We resist the amendment because we think that this should not be a duty, although it is certainly a direction of travel for the MoJ. We regard the creation of a duty at this stage to be too onerous and potentially very costly as a duty implies a far greater requirement to provide an all-encompassing service. I hope that the noble Lord will accept where our intentions lie and where our direction of travel lies, and at this stage will agree to withdraw his amendment.

[Lord Bach]

I will withdraw the amendment in due course, although I must say that having had the support that I have had around the House I am sorely tempted to have our first vote on this Bill tonight. But as I think that we are probably the only part of the whole of British society that is working at the moment—they certainly are not at the other end—I will resist that very strong temptation.

I am about to find out what Section 4(2)(a) of the Access to Justice Act 1999 says. I believe that it says that the Government have to provide general information about the law—I will find out in a moment—so the praise with which the present Government have been lauded during the course of this debate for having raised this issue for the first time ever may be a little premature. At the same time, it is good to have it in the Bill, but not good to see it as a “may” rather than a “must”. I shall start by saying to the Minister that we may well come back to this on Report, on the basis of what he said.

Section 4(1) of the Access to Justice Act says, under the heading “Community Legal Service”, that the commission—which means the Legal Services Commission—shall,

“establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (2) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services that effectively meet their needs”.

We met those last words earlier today, so I will not mention them again. Subsection (2) goes on:

“The descriptions of services referred to in subsection (1) are … (a) the provision of general information about the law and legal system and the availability of legal services”,

so the Government have done well to put it back into this Bill, but it is a pity that it is voluntary and not mandatory.

I would like the noble Lord to tell us, either tonight or in writing, what is in the budget for this work—what is being spent on it this year and what is planned to be spent on it next year. I hope that the answer is not “Nil”. I rather fear it might be.

[Lord McNally]

I cannot give precise figures, but I am, as I said, the Minister responsible for digital development within the system and have been witnessing a lot of work going on, concerning how to make websites understandable, accessible and people-friendly. Since we are being swamped with advice, a little bit that has come to me says that, under the Access to Justice Act 1999, the provision of information is part of civil legal aid, but we have decided to take it out of the concept of legal aid because, although it appears in Section 4(2)(a) of the 1999 Act, the Legal Services Commission did not in practice treat it as something that it would normally fund. It was put in the Act, but nothing happened, which is not unknown.

[Lord Bach]

We spent quite a lot of money on it, and planned to spend more. I think that that is as far as we can take it tonight, but if the noble Lord can supply the figures, if there are any, that would be helpful to the Committee.

I want to thank all noble Lords who have spoken in this fairly short debate. I particularly want to praise the noble Lord, Lord Phillips of Sudbury, for his role in the Citizenship Foundation. As my noble friend Lord Howarth pointed out, it is wrong to congratulate him this week if citizenship is no longer to play the role that it has done in the curriculum. I suspect that the noble Lord, Lord Phillips, will have more to say on that, perhaps even now.

[Lord Phillips of Sudbury]

My Lords, I would simply like to make clear that the noble Lord, Lord Howarth, was right up to a point: the issue is not decided. There is everything to play for. I say to anybody in this Chamber who thinks that it would be a bad step, please get your pen out and write to Mr Gove.

[Lord Bach]

As the noble Lord says, there is everything to play for—rather like this Bill, I hope.

At the risk of taking up too much time, I will just quote from the speech of Lucy Scott-Moncrieff, the vice-president of the Law Society this year, who I am sure will be a very distinguished president next year. She has had a great deal to do with the Law Society’s reaction to and comments on this Bill. In a speech to the Northumbria School of Law earlier this month, which I have been lucky enough to see, she said the following, which I think is pertinent:

“But access to the courts is only half the story … the story of those who know that they have a problem, and perhaps know that there is a legal remedy, but have limited opportunity to use the legal system to achieve justice. The other part of the story concerns people who may not realise that their problem has a legal remedy, who have a whole tangle of issues affecting their lives which need to be unpicked to understand what solutions are possible - which may or may not be legal solutions. Very few people who receive legal advice proceed to litigate”.

That point was made before the dinner break. Those are wise words and there is a lot for the Government to gain by making sure people have a better understanding of their legal rights.

I will withdraw the amendment in a moment, but will just say that this is an issue that may be small in terms of the length of amendment, but may be an important issue that we should press the Government on when we come to Report. I seek leave of the Committee to withdraw the amendment.

Amendment 3 withdrawn.

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Moved by

[Lord Bach]

4: Clause 1, page 2, line 4, at end insert—
“( ) The Lord Chancellor must ensure that a person eligible for legal aid advice is able to access it in a range of forms ab initio, including securing the provision of initial face-to-face advice.”

[Lord Bach]

My Lords, we come on now to an important element of Part 1 of the Bill, which is the mandatory gateway. Although I am sure the Committee knows this very well, I just remind noble Lords that if the relevant area of law is out of scope, there will be no point in ringing up the mandatory gateway, because the client will be told—no doubt very politely—that this is not in scope and that they will have to go elsewhere if they want legal advice. When we talk about the mandatory gateway, it is for the areas of law that remain in scope, such as parts of housing law, very small parts of debt, community care and parts of education. We are talking about a limited field. It is no answer to the areas of law that it is intended to take out of scope.

I start by saying that my experience as a Minister was that the telephone advice centre is a fantastic channel for delivering advice. I am sure that the noble Lord and his colleague the Legal Aid Minister have, as I have, visited telephone advice centres and been impressed. I certainly was in my turn. It can be convenient for those with busy lives, allowing them to access services at their convenience, and it can be—although it is not always—a cheaper way to deliver advice than face to face through a bricks-and-mortar centre. We also have the community legal advice helpline, which is excellent. All of us, I am sure, would be glad to see the work of that organisation continue and expand.

However, there is a “but” here, and it is a big “but”. We on this side of the House do not think that the right way of dealing with the issue of getting advice lies in the Government’s plans to institute a mandatory telephone gateway. We will ask the Government exactly what they intend, but this would seem to mean that anyone seeking to use a service funded through the legal aid and advice scheme would have first to call a hotline that would then direct them to the right service.

Our concerns are these. It is proposed to introduce the mandatory single telephone gateway first for matters of debt, although comparatively few debt matters are left if the Bill goes through in its present form; for special educational needs—that part of education law that the Government have had second thoughts about and that is still now in scope; for discrimination—the only part of employment law that remains; and for community care cases, which, again, the Government quite rightly had second thoughts about. The Government have stated their intention to roll it out to other areas of law as soon as practicable.

It is hard to find much mention of the mandatory gateway in the Bill. You have to look pretty hard, but in Clause 26 the Committee will see that there is mention of various ways in which advice can be given. It is otherwise something that we know about because the Government have spoken a lot about it, but it is not something that appears directly in the Bill. Clause 26(2) is actually the subsection that I am thinking of.

If the Government have stated their intention to roll out this mandatory gateway as I have said, they have failed in our view to answer, particularly in another place, some fairly fundamental questions that need answering before Parliament should sanction such a departure from the present abundance of channels. Perhaps the Minister can illuminate us as to how the Government’s thinking has evolved on this issue, which I am sure they have spent a long time thinking about.

When an individual with learning difficulties, for example, communication and speech problems or mental health problems tries to find help, will they be able to, first, find this new gateway service, secondly, properly access and understand the service and, thirdly, gain full utility from it? Will an individual who may be severely upset or traumatised—a victim of domestic violence, perhaps, or someone who is in extreme debt and feels rather ashamed about it—be willing to speak to a distant person without the comfort of direct, human interaction? Is it really the Government's case that they will all be happy to do that?

How will someone who is utterly impecunious be able to make a lengthy telephone call, in which the caller refers to documents and must wait for interpreters and answer detailed questions, in anything close to an acceptable manner from, say, public telephone boxes, which still exist? For those with English as a foreign language, there may be a particular problem. There might be an interpreter, too; three-way conversations are hardly practicable. It will be difficult to consider documents over the phone. What if the caller is perhaps semiliterate or, in fact, illiterate? They will obviously need personalised help—the kind of help that they get at the moment. What if there is a mass of documents, only one or two of which are particularly relevant? Visually, someone obviously sifts through these papers, as they are using knowledge in a particular form that is relevant, but it could become a nightmare on the telephone.

We think that those fears, which I am sure the Government have thought about, might prove an insurmountable hurdle to a number of those who, quite justifiably and within their rights, need legal advice or help. There are those with communication problems or mental health issues, those with learning difficulties or literacy issues, and those who just cannot express themselves in a particularly articulate way. Those who would be unwilling to use a phone need the immediacy of face-to-face contact and we fear that they may drop out. If the mandatory gateway is the only way through, will they actually get the advice that may solve the problem or get them their rights?

There is an economic argument, too, because if telephone conversations become muddy and too long, with both parties struggling to make themselves understood while sifting through masses of paper and language difficulties, cost-efficiencies look much less likely. We think that there are ways of mitigating these issues, but at the moment there has been no proper debate about this issue. In a way, I am sorry that this debate is taking place in Committee at this time today, but it is still an opportunity for the Government to express their views and for other noble Lords to say whether or not they agree. On how this part of the Bill will actually work, we have little to guide us. We have Clause 26(2), but that gives us little insight into how it will work. I look forward to the debate on this issue in the time available to us.

I end, I hope not too pretentiously, with this comment: when the great writer EM Forster talked about only connecting—“Only connect” was his model for living—he was talking not about connecting two telephone wires but about human interaction. The Government should not discount human interaction when they or lawyers are in the business of giving advice on some of the matters that we have been discussing in this Committee. I beg to move.

[Baroness Grey-Thompson]

My Lords, I support Amendment 4, which has been comprehensively moved by the noble Lord, Lord Bach. I have a number of concerns about the gateway and how people may access it, specifically disabled people in the wider sense. While it makes a lot of sense to limit the access to the gateway to four areas initially, I feel that this could cause some difficulty for a number of people who may be confused about signposting. We are talking about areas of rights and obligations that are complex and specialised and require a great deal of knowledge of the system.

That leads me straight on to staff training. The Justice Minister in Committee in another place said that,

“legal qualifications will not be a contractual requirement”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 6/9/11; col. 294.]

I seek further assurance that, if this is pursued, appropriate training will be carried out.

While I am supportive in principle of simplifying any system—for disabled people especially, the idea of cutting down on travelling, which can be difficult, is very positive—I immediately start thinking of the number of people who might just find this method too difficult to use. Does the Minister have any thoughts on the number or possibly the percentage of people who may struggle to use the proposed system? Whether they be people with a hearing difficulty who might not have access to the right equipment if they are only recently impaired, people whose impairment may make this type of communication difficult, people with language difficulties or people with learning disabilities, the group could be wide and varied. It is not easy to categorise those people who might find some difficulty with this. Also, that presumes that the individual knows and understands how their individual impairment affects them. What about those who do not, or those who need extra help making the initial phone call?

I have also been thinking about those people who might find it difficult to take down an accurate record of what has been discussed, perhaps even to follow the line of questioning. I would like some more detail about how records are going to be kept and what information will be sent to the individual. If they do not agree with the record of the conversation, how will this be monitored? What is the follow-up?

I would like to understand how the system will be evaluated. Obviously, you need a trial system in operation to iron out as many bugs as possible, even if this is the trial system for wider expansion. I know from my work on the Welfare Reform Bill that the assessment process is critical not just to asking the right questions—that is hard enough—but to getting the correct and useful information from the individual and then being able to tie all that data together to get to an appropriate outcome. I receive a reasonable amount of correspondence about face-to-face assessments, where the visual recognition of response and the nuances of conversation are easier to pick up. That is why I am so concerned about the initial assessment being through a phone call.

The Minister mentioned the use of technology. I am a huge fan of technology, and for lots of disabled people it can be used in an incredibly positive way. I do not think that any of us would be surprised at how many young people are using technology now or at the stories in the media about toddlers who think that every TV screen is a touch screen and can flick through the channels—they are almost born knowing how to use this technology. The reality, though, is that older people and disabled people still struggle with different forms of technology. For me it is not just about the access to technology; that is just the first part. The second part is actually understanding how to signpost people to get to that information, and that is difficult for a large number of people.

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I hope that that information, including those approximate figures on which I will try to get more detail for Report, helps, particularly in the various issues where we are still in dialogue about the concerns that have been expressed which have been raised again in this debate. I hope that, as he indicated earlier, the noble Lord, Lord Bach, will withdraw his amendment.

[Lord Bach]

I will certainly withdraw my amendment, and I thank the Minister for his very full reply. Speaking for myself, I have to say that I remain entirely dissatisfied by his speech about this very important part of the Bill. I will be as quick as I possibly can be because of the time.

I thank the noble Baronesses, Lady Grey-Thompson and Lady Prashar, for signing the amendment in the name of my noble friend Lord Beecham and myself and for their excellent speeches, and I thank all other noble Lords who spoke—all of them against the proposal for the mandatory gateway.

A number of important issues came out, which I think the Government really should pay careful attention to. The remark made by the noble Baroness, Lady Grey-Thompson, that legal issues will remain unrecognised is a crucial point. The comment made by the noble Baroness, Lady Prashar, about reducing access to some of the most vulnerable is also crucial.

As far as the freephone service is concerned, I do not know whether the Minister is able to give an answer to the question asked by my noble friend Lord Howarth. We understand that the current cost of the community legal advice helpline is 4p per minute, but I do not know what the intention is for the future. Perhaps the Minister can tell us now or write about that when he has had the chance to ask.

[Lord McNally]

I will write to the noble Lord to clarify that. If there is a problem of cost, a person will be able to make a short call or send an e-mail asking for a call back. I will have to seek advice on whether the 0845 number is a free number.

[Lord Bach]

I am not concerned about that tonight, but the position is not clear yet and we need to be clear. The real problem is the mandatory nature of this provision, which is what worries us. It is not the fact that there will be telephone advice. Such advice is excellent. When the Minister gently chides some of his noble friends for taking the argument too far, surely the Government are taking it too far by insisting on a mandatory gateway. Flexibility is everything in something like that.

The Minister almost gave the game away when he said that someone who was unable to make a telephone call would somehow get advice from someone. No, they will not necessarily. Perhaps they will but they may not. Nor will they get legal advice, which they probably need, from anyone. The Government cannot be as vague about it as they currently appear to be.

What worries us is that the present system does not work badly. I wish to refer to two points made in the debate. The noble Baroness, Lady Prashar, said that these not-for-profit organisations and solicitors are embedded in the community. They are part of our way of life. The noble Lord, Lord Shipley, has a great deal of experience and knowledge in this field. He talked about the right advice from the right place. That is the British way of doing this and it is a system that works pretty well. There is flexibility and various ways in which a person can get advice. It is not that a person has a choice between all sorts of ways of getting advice—the best way for them will be obvious. But to restrict it to a mandatory gateway sounds almost too dirigiste for this country. We should be much more flexible, which is much more in our political tradition. What makes it even better is that it works. The great danger is that in their attempt to change everything, the Government will change this for much the worse. Of course, tonight I will withdraw the amendment but the noble Lord knows that we will certainly return to this issue.

Amendment 4 withdrawn.