Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Bach Excerpts

Wednesday 7th March 2012 Lords Chamber

The judges themselves have commented in their response to the consultation that it is ridiculous to have different procedures whereby you can get legal aid if you frame your case as a judicial review but you cannot get legal aid if you frame your case merely as an appeal on the merits of it. I commend these amendments to my noble friend and I look forward to his reply. I beg to move.

[Lord Bach]

Very briefly, we agree in principle with the noble Lord and his amendments. After today, the Bill will have Amendment 12 in it. That deals with welfare benefit appeals and is phrased in a rather different way from Amendments 22 and 78, although Amendment 22 is on the social entitlement chamber and talks about the same sort of appeals as the House passed in Amendment 12. I look forward to hearing what the Minister will say on that position and the points that the noble Lord, Lord Thomas of Gresford, has made.

[Lord Wallace of Tankerness]

My Lords, the amendment moved by my noble friend Lord Thomas of Gresford would seek to provide legal aid for all onward appeals on issues arising from a social entitlement chamber. My understanding is that that would be advice on matters of asylum support, criminal injuries compensation and welfare benefit. I am not able to judge offhand whether it covers the whole extent of what was passed earlier this evening by your Lordships but we are in the same area.

My first point is that the amendment would go beyond the existing scope of civil legal aid to the extent that it would allow legal aid for advocacy in the Upper Tribunal on welfare benefit, asylum support and criminal injury matters. We are restricting legal aid and I ask my noble friend to bear that in mind. It is the case that legal aid for legal representation has never been routinely available for the Upper Tribunal for matters of welfare benefit, asylum support or criminal injuries compensation. An estimate has been made that to do so could cost up to £7 million per year.

--- Later in debate ---

[Baroness Hamwee]

My name is to this amendment. The Minister in Committee referred to Clause 9 on exceptional case determination and said that guidance would make it clear that victims of trafficking would, or should, be able to benefit from those provisions. Tonight, we have heard that the Government will bring claims by victims of trafficking within scope, I assume, at Third Reading. We have not seen the detail and, like the noble and learned Baroness, I have been wondering about the issue of evidence about an individual being a victim of trafficking. I was very pleased about that—I suppose it is a provisional pleasure until one has seen the detail—although it raises the question of whether the government amendment is necessary, given Clause 9, and given what was said at the previous stage. I hope that does not sound ungrateful. If it is necessary, what about problems that we have not yet unpacked on Clause 9?

Amendment 69, as the noble and learned Baroness said, is relatively limited in its ambition. That is not a criticism at all. However, it made me start to think about the problems faced by trafficked people. The noble Lord, Lord Beecham, referred to children in schools from a particular background having problems. I have written down: education issues around childcare; benefits, obviously; immigration other than asylum; the associated costs; expert reports; interpretation; and the disbursements paid by a solicitor such as these. I know that the Minister may think that I am pushing my luck but, as I have said before, this country finds itself as the involuntary host to a number of people who have been trafficked and it has very particular responsibilities. Perhaps after tonight it might be possible to explore what the Government have in mind in this connection and how far assistance can be provided. I pray in aid the Government’s strategy which makes it entirely clear that improved victim identification and care is at the heart of our response to trafficking. I am very pleased to be able to support the amendment. I look forward to what may come at the next stage.

[Lord Bach]

My Lords, we continue to support this theme of amendments. There were two in Committee moved by the noble and learned Baroness, Lady Butler-Sloss. We supported them then and described them as powerful amendments. Amendment 69 remains a powerful amendment. We look forward to hearing what the Minister has to say. We hope and expect him to be sympathetic.

[Lord Wallace of Tankerness]

My Lords, Amendment 69 intends to bring into the scope of legal aid damages and compensation claims made by victims of human trafficking in either the civil courts or employment tribunals. Echoing the words of the noble Lord, Lord Bach, and my noble friend Lady Hamwee, I have noted the powerful arguments put forward that exceptional funding was not sufficient to provide for legal aid in this area. It goes without saying that we are all agreed that trafficking is a heinous, cynical crime. The ability to bring damages claims against former so-called employers is an important tool to secure reparations for victims and to punish their exploiters. As has been said tonight, and as was highlighted in our debates on similar amendments in Committee, it also helps to discourage those who seek to exploit people for financial gain. We had always anticipated that legal aid would have been available under the exceptional funding scheme for these damages claims, as was indicated by my noble friend Lady Hamwee, where such cases met the test for exceptional funding under Clause 9 of the Bill.



On reflection, we recognise the risk that in some cases this will not be sufficient. My colleagues and I are very grateful to the noble and learned Baroness for her constructive discussions with the Lord Chancellor, in which she pointed out that what is typically required in these cases is advice and assistance in making the claim. Therefore, we agree in substance with the amendment and accept it in principle. However, as I think is anticipated by the noble and learned Baroness, for drafting reasons—not least around definitions—we cannot accept it verbatim. If the noble and learned Baroness withdraws the amendment, I can assure her that we will come back at Third Reading with a finalised amendment.

My noble friend Lady Hamwee asked whether victims of trafficking would get legal advice for other matters as well as for damages. For non-damages cases, they would have to apply for exceptional funding if legal aid was not available. However, the amendment that we discussed earlier this evening would cover legal help for trafficked victims in bringing damages claims in the employment tribunal, and both legal help and advocacy for damages claims in other civil courts where they relate to the experience of being trafficked.

It is important that we have addressed these matters. I thank the noble and learned Baroness for bringing them back to the House. I hope that, with my assurance, she will withdraw her amendment.