Legal Aid, Sentencing and Punishment of Offenders Bill Debate
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Lord Bach
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Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Bach
My Lords, at 29 minutes to seven of the evening, I move my Amendment 74, and it is a great pleasure to do so.
Immigration law is a very complex area of the law, is highly regulated and immigration practitioners need, of course, to be qualified. The giving of general advice by non-legal professionals—for example, by not-for-profit organisations—is prohibited and, indeed, can be a criminal offence unless it comes within the Immigration Service’s Commissioner’s scheme. The point of providing legal aid for immigration matters is not to help fat-cat lawyers and it is not necessarily always to help immigrants themselves, although, of course, it ensures that those fleeing persecution and those wishing to be reunited with their loved ones—their wives and children—are able to do so. The main point of providing legal aid for immigration matters is to ensure that this complex, sensitive and highly regulated system functions. A radically deprofessionalised immigration system would collapse quickly under its own weight within a short period.
Last week in the case of Lamichhane, in the lead judgment in the Court of Appeal, Lord Justice Stanley Burnton referred to an observation of Lord Justice Jackson in the Sapkota case. Lord Justice Jackson’s name has occasionally been heard in this House and will no doubt be heard again in the next few days. Lord Justice Jackson observed that,
“this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion … are now perfectly possible. There is an acute need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights.
Lord Justice Stanley Burnton said:
“In my judgment, if anything Lord Justice Jackson understated the problems. I could easily have reached contrary conclusions in this case, and given respectable reasons for doing so. There is an urgent need for a simply-stated and clear codification of statute law on immigration rights, restrictions, administrative procedures and appeals”.
Therefore, legal aid is necessary to ensure justice in an overly complex system.
The Administrative Justice and Tribunals Council responded to the consultation put out by the Ministry of Justice with regard to the forerunner of this Bill, citing this very complexity. The council cannot be attacked in the way that lawyers and others have been attacked as simply being concerned to protect its own self-interest. The AJTC also notes the extraordinary complexity of immigration law and takes issue with the assertion that,
“individuals will generally be able to represent themselves”.
As the consultation document acknowledges, these are cases where important issues arise, including the right to family life. The AJTC says:
“It is essential that appellants are properly advised and prepared before facing a highly complex process with potentially life-changing consequences. As with other areas of administrative justice, immigration raises matters of fundamental concern. The issues faced by appellants may be more important to them than anything else. At the same time, the system is flawed and mistakes are often made by initial decision-makers. Legal aid in immigration is a cost-effective means of correcting systemic injustice. … Removal of legal aid will leave vulnerable people even more prey to unregulated and illegal advisers than they are already”.
I submit that this is pretty powerful stuff which any Government should not easily and comfortably reject.
Another point worth making is that the Government envisage a system in which immigration law is not covered but asylum cases are. Can anyone see the possible end result of such a system? Spurious asylum case after spurious asylum case will flood into the immigration and tribunal system. In my experience immigrants do not simply choose to come to the UK in the same way as one makes a consumer choice. Refugees come here for various reasons; for example, to escape tyranny and oppression. They come to this country as it represents a beacon of freedom, tolerance and justice. They miss their homes and their families, whether the latter are in India, Australia, the United States, Nigeria or anywhere else in the world. This House accepts that immigrants to the United Kingdom are not a drain on the United Kingdom, despite what some would have us believe. Every economic study shows the net benefit they bring to our country. Indeed, they and their descendants are now part of the fabric, and a very valued part.
Anyone who watched the television coverage of Her Majesty the Queen’s visit to Leicester last week may have seen the same scene that I did, which showed an Asian woman being interviewed while waving a small Union Jack. She was asked why she was waving the Union Jack and had come to see the Queen. She said quite simply, “Because this is my country and she is my Queen”. I do not think one could get a better example of the way in which immigration has benefited this country rather than the opposite.
By making the system less fair and by making it nearly impossible to reunite families and allow people the right to stay, we will probably create a chaotic system. The wrong people will end up staying here for years waiting for their hearings; the right people will end up in limbo, when they might be contributing to our nation’s success. Worse still, the impact on women and girls will be severe. They will face an immigration system without receiving any advice or assistance. In the measure’s current form there will be no provision for legal aid for trafficked victims to resolve an immigration problem other than to make an asylum application. They will not be able to obtain advice on the implications of being referred to the national referral mechanism. As such, their informed consent for referral would be questionable. Nor will they be able to challenge decisions on whether or not they are victims of trafficking.
Last week, to their credit, the Government pledged that they would sign up to the Council of Europe convention on preventing and combating violence against women and domestic violence. However, this sits slightly askew from the Government’s position on this Bill, despite their recognising that without legal aid women are at much greater risk of being trapped in an abusive relationship when their immigration status is dependent on their abuser, or when a woman’s insecure immigration status is used as a means of control by an abuser. These matters were brought up by noble Lords on all sides of the House in Committee, but the Government have not responded satisfactorily to the points that were then made.
This policy is the worst of both worlds. It will disadvantage all applicants, force communities in Britain to house desperate people who are unable to work for longer and longer periods as the tribunal system creaks further, and will mean that many people with considerable merit cannot stay and contribute to Britain. If we do not rectify this change now, it will lead to chaos, greater expense and negative consequences for all of us.
I conclude as follows: with immigration advice and representation regulated—and quite rightly regulated because of the scandal of advisers in the past—I ask the Minister, from where are people going to get advice when legal aid is gone? There just will not be the availability of advice, let alone representation. A commonsense forecast would be that people will be forced to revert to second-rate, greedy and corrupt advisers keen to extend for as long as they can the existence of the case, and who will often fleece what money they can out of the client and then leave them high and dry. That is not an appealing scenario, and it is certainly a step backwards from the situation today, which is hardly satisfactory. We ask the Government in the amendment to think again about taking immigration out of scope. I beg to move.
Lord Pannick
My Lords, I support the amendment. I am concerned that in the Minister’s letter dated 1 March to all noble Lords he said that the Government were removing legal aid for what he called “routine” immigration matters. I have to say to him that there is nothing routine about many of the cases for which legal aid would be denied.
Many of these cases have two important characteristics. First, they concern issues of fundamental importance to the individuals concerned, as well as to society. There are few issues as vital to an individual as whether they should be deported from this country, or whether members of their family should be able to join them in this country. The second characteristic is that many of these cases are of extreme legal complexity. The noble Lord, Lord Bach, has already quoted what the Court of Appeal said last week; and those words would be equally true of very many areas of immigration law. Yet legal aid would not be available for appeals to the immigration judge, or on points of law to the Upper Tribunal, the Court of Appeal and the Supreme Court. The UK Border Agency will of course have the benefit of lawyers to argue its case on such appeals.
I understand the need for cuts in public expenditure, but this proposal to remove legal aid in immigration matters is proceeding on the fundamental misapprehension that these cases are somehow routine—they are not.
Lord Wallace of Tankerness
My Lords, we are not proposing to abandon the regime. As the noble Lord, Lord Bach, pointed out, immigration advice is tightly regulated by the OISC, to which complaints can be made.
Substantial savings are required. The change that we propose will save an estimated £20 million a year out of a total of £90 million spent in this sphere of law. It is important to show a balance; it is not just a case of taking immigration cases out of scope. Cases affecting some of the most vulnerable people will remain in scope. I do not for a moment doubt the motivations behind the amendment. However, I assure noble Lords that the matter has been given careful consideration. My noble friend Lord Boswell asked about complex law being kept under review. He will be aware that the power to add, within scope, that has been proposed for Clause 8 is a safety net that could be used if, in the light of experience, the somewhat apocalyptic scenario described by the noble Lord, Lord Bach, came to pass. Of course, there will be a post-implementation review after five years.
I hope that noble Lords will recognise that in a very difficult area we have sought to strike the right balance in cases that are particularly demanding and that particularly affect asylum seekers, such as cases of domestic violence and where people are being held in detention, and that we are addressing some of the most difficult cases in the immigration field. However, we had to draw the line somewhere. It could never be in the right place for all noble Lords. I can only assure them that it was done with some care and thought, and ask the noble Lord to withdraw his amendment.
Lord Bach
My Lords, I am very grateful to all noble Lords who spoke in this important debate, and not least to the Minister, who in his usual reasonable way explained the Government’s position. I am afraid that I cannot accept the explanation. To save £20 million in order potentially to set back the system by many years and to cause difficulties for so many people is not a sensible saving of money.
The noble Lord, Lord Newton, talked about other expenditure the Government had found. He was too polite to say what I will say. My example is the £250 million the Government found to make fortnightly bin collections weekly. It is absurd to save £20 million here but spend £250 million there—such an absolutely wrong sense of priorities—that any satirist would have enormous fun writing a story about it. Jonathan Swift should be living at this hour.
I will simply ask the House to recall the comments of two of our most distinguished judges: the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss. Their words a few minutes ago gave the lie to the argument that this was a sensible move by the Government. Almost all other noble Lords who spoke said that the measures were not worth taking and were wrong in themselves. I ask the House to ask the Government to think again. I beg to test the opinion of the House.
“Unfair dismissal1 (1) Civil legal services provided in respect of employment cases where a person has been unfairly dismissed.
(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages.”
Lord Bach
My Lords, the House will remember that we had a robust debate on this issue in Committee and some valuable contributions were made, particularly by the noble Lord, Lord Pannick. I shall refer to some of the points he made in a moment. Legal advice for employment law matters is used by around 15,000 people a year, and at current levels we spend £4 million on it, which works out at around £300 per advised person. This advice deals with issues such as unfair and wrongful dismissal, redundancy, contract disputes, discrimination, strike action, data protection and employee confidentiality, and wage issues such as when people are paid below the minimum wage. It goes without saying that these issues are of considerable importance to the individual and to the state.
Someone who is dismissed and is unable to get fair recompense or their job back becomes a burden on all taxpayers. It is one that most of us are willing to bear. Jobseeker’s allowance is a safety net for precisely these kinds of people, but it is one that we should not bear unduly. Legal advice is valuable when attending a tribunal because the other side, that of the employer, is nearly always represented, certainly by a lawyer and often by counsel. The inequality of arms between a cleaner who is being paid below the minimum wage and their employer’s counsel is substantial. There is an alternative to legal aid, of course—that of damages-based agreements. But those agreements are not yet widely available and they are not available at all for certain classes of case. Worse, they leave the most impecunious sometimes at the mercy of predatory claims managers.
In Committee, the noble Lord, Lord Pannick, outlined four particular concerns. First, he highlighted the importance of employment rights. He contrasted these with environmental pollution rights, which remain in scope. The second was the point about equality of arms and the injustices that flow from that. The third point was the illusory nature of the savings in that through state benefits we will essentially subsidise bad employers, who will not be brought to justice. His fourth point highlighted a perverse consequence of the Bill as it is now drafted. Given that discrimination remains in scope, we are going to see an awful lot of people tacking discrimination claims on to their dismissal claims. The noble Lord may remember that such a problem arose when defamation was not within the scope of legal aid but malicious falsehood was. That led to many legal aid cases being brought under the Trojan horse of malicious falsehood, where the most appropriate tort for that was defamation. That loophole was closed in 1999, but this Bill as drafted intends to reintroduce a number of what we would call perverse incentives, of which this is perhaps the most obvious.
As I have said, employment legal aid costs £4 million a year, but accepting this amendment will not cost £4 million a year. The amendment does not change the Government’s ability to set their own budgets—rather, it is a statement of principle that employment law is important and complex, and that victims of abuse need redress and advice on how to seek that redress. EJ Cohen was cited the other day in aid of legal aid; he said:
“The State is not responsible for the outbreak of epidemics, for old age or economic crisis. But the state is responsible for the law. That law again is made for the protection of all citizens, rich and poor alike. It is therefore the duty of the State to make its machinery work alike for the rich and the poor”.
Employment law exists to protect citizens—hard-working ones, often—from unfair and unlawful practice by employers. At its best, it evens up the natural imbalance between the rights of employers and those of employees. We did not create those laws out of folly, but because there was abuse after abuse which forced us to act. Many good employers are grateful for the fact that good, fair employment laws exist. However, despite these laws and the access to justice that was promised when legal aid was introduced for employment law, there remain—and the Government have to take this into account—some bad employers out there.
Lord McNally
On the point that the noble Baroness has just made, I for one would certainly not be worried if the provision increased trade union membership. That seemed to me to answer the question of whether certain kinds of advice should be made because people take the precaution of joining a trade union rather than expecting the taxpayer to pay for their advice. As I explained in Committee, we have thought very carefully about which areas should be removed from scope. We also considered whether there were procedures that would allow people to resolve their problems without legal assistance, such as tribunals or alternative dispute resolution, and we have looked carefully at whether all the matters currently funded through the legal aid scheme are strictly legal work.
Employment tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation. The rules of the employment tribunal place a duty on the tribunal and its chairmen to deal with cases justly and fairly, including, so far as possible, ensuring that parties are on an equal footing. While we recognise that clients find advice useful in the preparation of their case, we have had to prioritise funding on cases that involve fundamental issues such as liberty or safety, and proceedings in which litigants are generally unlikely to be able to represent themselves effectively. We do not accept that the employment tribunal cannot be accessed or that justice cannot be obtained without access to legal aid for advice—a point made by my noble friend Lord Faulks.
I should also mention that the Government are looking at referring all employment cases to the Advisory, Conciliation and Arbitration Service, ACAS, before the employment tribunal to try to resolve problems early on. Indeed, ACAS itself offers advice through a free helpline and help is usually available from trade unions. The noble Baroness, Lady Turner, made that point. BIS is still considering with ACAS the route forward on this issue. My honourable friend Jonathan Djanogly is in discussions with BIS and ACAS to take this forward. ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. As noble Lords will be aware, we propose that legal aid should continue to be available for claims relating to a contravention of the Equality Act 2010 in employment cases that are currently within the scope of the legal aid scheme.
As with other things, we do not believe that the changes will have the impact that noble Lords opposite have suggested. The answer to many employment and other issues is economic recovery, which will provide the jobs. That is why those issues continue to be our priority. I hope that the noble Lord will withdraw his amendment.
Lord Bach
My Lords, once again I thank noble Lords who have spoken with a lot of knowledge in this debate. It is a bit rich for the Minister to say that all these people should join trade unions. It is not easy for many employees these days to join trade unions, particularly those who work for private companies. I am not saying that it is impossible, but it is not easy. To throw that line as an excuse for taking away from those who are not members of trade unions their ordinary legal rights seems extraordinarily superficial.
The Minister talked about not strictly legal work. I would have thought that a claim for unfair dismissal was almost certainly a legal issue that has to be decided by a tribunal. It may be that the noble Lord, Lord Faulks, acted for the employer only in cases that were legal. I cannot think why the employer would employ a barrister as good as the noble Lord, Lord Faulks, must undoubtedly have been even then—the noble Lord tells me that it was not much, and of course I believe him completely—and bothered to pay him at all if these were not legal matters. Unfair dismissal is a legal matter, as are other matters that come before the employment tribunal, so let us please not use the excuse in this case that these somehow are not legal matters. They clearly are, and they mean a huge amount to the lives of the individuals concerned.
Lord Martin of Springburn
On that point, does the noble Lord agree that government departments and health services all turn up with lawyers when they are defending an unfair dismissal? The Government will use lawyers, but they are saying that those who are seeking to fight their case do not need lawyers.
Lord Bach
The noble Lord is absolutely right; that is the thinking behind it. The same Government who say that this is not legal advice will of course have lawyers there to represent their interests at industrial tribunals. That will continue whether this legislation goes through or not, so let us have no more of that.
We have already heard mention of the unanimous resolution that was passed, I think only yesterday, at the Liberal Democrat party conference in Gateshead to support legal aid. I shall read three parts of that quite long resolution. First:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.
Secondly:
“The continued provision of legal aid”—
yes, legal aid—
“for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
That seems to me like an employment tribunal. Lastly:
“The implementation of the party’s policy on Access to Justice debated at Conference in 2011”.
Of course, the leadership of a party does not always take complete note of what the conference passes, even if it passes it unanimously. Yet it might have been better if the Government, who obviously did not agree with what was said in that unanimous resolution, had had the courage to say so during the course of whatever debate took place. It is very depressing.
Lord McNally
I actually spoke in favour of that resolution because, as we have been debating for some months now, ever since legal aid was started, people in successive Governments have had to draw lines and make difficult and tough decisions. As this point has often been made, the noble Lord has gone to some extreme extent to suggest that we are cancelling legal aid in any particular sector. As we then find out, whether it be with immigration, where we are retaining £70 million in legal aid, or welfare, where we are spending £50 million, that suggestion just does not add up. It is hyperbole and the facts are a long way apart. I had no difficulty in accepting that resolution because it shows that my party continues to give high priority to this issue but a high priority based in the reality of the economic situation that we face.
Lord Bach
I am much obliged to the Minister. He supported, then:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”,
did he? He supported, to repeat:
“The continued provision of legal aid, for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
I admire him very much for being able to support those provisions and then argue today what I would argue is the precise opposite. If there is an example of a serious case in which legal aid is available now—for advice in many cases, and sometimes for representation—but will not be available if this Bill goes through in this form, that is it.
Lord Clinton-Davis
Is it not quite usual for the Minister to stand on his head?
Lord Bach
A few months ago I would have said no; now I am not quite sure. I just find it incredible that the Government seem to have taken no notice at all of this wonderful resolution, which was passed unanimously. It is extremely depressing that we find ourselves in a position where people who may have lost their job completely wrongly or suffered other wrongs in their employment are now not able to get that advice because they do not have the resources. The cost to the Exchequer is £4 million a year. Is there nothing else that the Government could have found in order to save employment law as we know it?
It is always tempting to have a vote but, because of matters beyond my or indeed the Minister’s control, we have started this series of important debates at a ridiculous hour, 6.30 pm, and it becomes really stupid to have a vote at this stage. With considerable reluctance, I beg leave to withdraw the amendment.
Baroness Turner of Camden
My Lords, I support these amendments. I do not want to add anything to the very detailed case already made by the noble Lord, Lord Avebury, in introducing the amendment. It seems to me that local authorities have an obligation in law to provide sites for Travellers and their failure to do so is responsible for the need to provide legal assistance to Travellers. Otherwise, Traveller families, which include numbers of children, are rendered homeless, and that, in my view, is quite unacceptable. I hope that the detailed amendments before the House tonight meet a sympathetic response from the Government.
Lord Bach
My Lords, we agree with the amendments in this group. In Committee, the noble Lord, Lord Avebury, said:
“Ministers say that Travellers must obey planning laws like everyone else; but they demolished the system created by the previous Government under which an obligation was imposed on local authorities to provide planning permission for Travellers’ sites that would accommodate the number of Travellers in each area, as determined by an independent assessment of needs, buttressed by public inquiries. Since the Secretary of State gave local authorities carte blanche to rip up those plans and decide in their unaided wisdom”—
that was the phrase he used—
“whether to allocate any land at all in their development plans to Travellers’ sites, the number of sites for which it was intended that planning permission should be granted has plummeted by half, according to research conducted”.—[Official Report, 24/1/12; col. 928.]
In his reply, will the Minister explain to the House why the Government took that decision and changed the policy that had been set up under the previous Government?
Lord Wallace of Tankerness
My Lords, as my noble friend Lord Avebury explained in moving this amendment, Amendments 77A, 77B, 77C and 77D are aimed at ensuring that legal aid remains available for possession proceedings for persons who are clearly trespassers on the property or land where they are residing, in particular for people living on unauthorised encampments. Under the Bill, legal aid would no longer be available in such cases.
I valued the opportunity to meet my noble friend Lord Avebury, the noble Baroness, Lady Whitaker, and their colleagues from the Community Law Partnership. It was an opportunity for them to set out in more detail what underlies their amendments and for me to indicate where the Government are coming from on this. My noble friend raised a particular point about the judicial review vis-à-vis the county courts, to which I will return.
Let me say clearly that as a matter of principle the Government believe that they should not be funding individuals to resist eviction where they have unarguably entered and remained on the property or site as a trespasser. The whole rationale of this Bill is to focus scarce resources on the cases that are the highest priority.
I remind noble Lords that the Government amended the Bill in Committee to make it crystal clear that legal aid will continue to be available for possession and eviction matters where there are grounds to argue that the client has not entered the property or site as a trespasser and where there are any grounds to argue that the client has not remained on the property or site as a trespasser. I believe that, with this safeguard in place, it is not an appropriate use of resources to retain funding more widely.
I readily acknowledge that the legal aid position in relation to judicial review is different from the position in relation to possession proceedings concerning those who are clearly trespassers. However, as my noble friend Lord Avebury indicated, we are generally retaining legal aid for judicial review. In any major reform such as this, it is reasonable and necessary to draw relatively broad lines in order to achieve an effective system. We believe that our approach is a reasonable one in the circumstances.
It has been argued that our approach in the Bill cuts across case law that permits public law arguments to be raised in possession proceedings themselves, a point made by my noble friend. As we discussed when we met, along with colleagues from the Community Law Partnership, the Government do not necessarily accept that argument. It is correct that case law has developed so as to allow public law arguments to be raised directly in possession proceedings. Our proposals in relation to legal aid do not affect that. However, there is no legal bar on seeking a judicial review of a public authority’s decision to bring possession proceedings.
We recognise that, as with all judicial reviews, the decision on whether to grant permission for such a judicial review to be brought will be entirely at the discretion of the court. The court will consider a number of factors, such as the availability of alternative remedies, including any grounds that could be raised by way of defence to the possession proceedings.
It has also been argued that retaining the trespasser exclusion in relation to possession proceedings while retaining legal aid for judicial reviews will be much more costly for the legal aid fund. I indicated that I wanted to reflect on this issue. Regrettably there are no detailed data, as the Legal Services Commission does not record whether a recipient of legal aid is a trespasser. Nevertheless, we believe that the number of possession cases involving trespassers that are funded under the current legal aid scheme is likely to be relatively small. Of those cases, fewer still are likely to involve seriously arguable points of public law. Accordingly, we do not consider that the current approach in the Bill will have significant cost implications.
In any event, the amendments would restore legal aid under paragraph 28 of Part 1 of Schedule 1 for trespassers generally, including cases involving trespass to private property or cases involving public authorities where no public law issues in fact arise. In these circumstances, we do not believe that the width of the amendment proposed by my noble friend would be a proper and wise use of the limited funds available.
I appreciate that my noble friend and the noble Baroness are particularly concerned about the Gypsy and Traveller communities. As I stated in Committee, the Government certainly understand the potential impact of the Bill’s provisions on these communities. Nevertheless, we consider that the proposed changes to the scope of legal aid set out in the Bill are both proportionate and necessary to our objective of targeting legal aid to those who need it most while achieving a more affordable system.
I emphasise that the provisions to which these amendments relate apply to trespassers generally, whoever they are. They are not specifically targeted at the Gypsy and Traveller communities. My noble friend asked whether, given the criminal offence of squatting created elsewhere in this Bill, the trespasser exclusion in paragraph 28 now specifically targets Gypsies and Travellers only. The exclusion in paragraph 28(1) of Part 1 of Schedule 1 applies to trespassers generally and not just to Gypsies and Travellers on unauthorised encampments; for example, an individual who squats in a non-residential building would not be committing a criminal offence under the provisions of the Bill and would be subject to the trespasser exclusion for legal aid if the owner of the building brought possession proceedings to evict them. Therefore, we do not accept the argument that the Bill’s trespass exclusion now targets Gypsies and Travellers in particular.
Before I move on to the mobile homes amendment moved by the noble Baroness, Lady Whitaker, the noble Lord, Lord Bach, asked whether the abolition of the regional strategy pitch targets would lead to fewer traveller sites. The Government’s draft planning policy makes it clear that local authorities should set pitch targets based on robust evidence, and the Government are currently considering the responses to the consultation on the draft policy. Rather than imposing top-down targets which fuelled opposition to development, the Government believe that we are offering councils real incentives to develop additional traveller sites in their areas. The previous model of top-down pitch targets under regional strategies did not deliver, not least because between 2000 and 2010 the number of caravans on unauthorised developments increased from 728 to 2,395.
As I mentioned in Committee, the Homes and Communities Agency is responsible for administering the Traveller pitch funding programme and monitoring the use of the funding awarded to local authorities and registered providers. In January this year the Government announced the allocation of £47 million of Traveller pitch funding, which will help provide more than 600 new pitches and refurbish more than 160 existing pitches between now and 2015. This funding is based on payment by results at completion—a question was raised as to why nothing has actually been paid out yet—but £47 million has been allocated and the delivery of the funding allocations will be monitored through the Homes and Communities Agency’s established programme management framework, with quarterly contract review meetings forming part of the process.
The noble Baroness, Lady Whitaker, spoke to Amendment 77E, which seeks to bring into scope legally aided advice for any matter arising under the Mobile Homes Act 1983. That Act gives rights to residents who have agreements with site owners to live in their own mobile homes on site. We do not believe that this amendment is consequential to Amendments 77A to 77D.
As I have already argued and as we have already said many times in debates, we are facing a serious financial position. If the justice system is to contribute the necessary savings, it is necessary to focus legal aid on the highest priority cases. Accepting this amendment would mean funding low-priority cases, such as disputes about the sale or inheritance of mobile homes. Once again, I cannot see how this is a good revision of our proposals or an affordable one, not least given that legal help and representation will in any case continue to be made available where the individual is at immediate risk of losing their home, including possession and eviction from a mobile home site.
The noble Baroness asked about harassment, to which I think I made reference in Committee. I confirm that paragraph 32 of Part 1 of Schedule 1 to this Bill brings into scope harassment injunctions under Sections 3 or 3A of the Protection from Harassment Act 1997, which would cover issues where there is harassment.
If we were to accept this amendment it would amount to a strange anomaly whereby exceptions would be made for people who live in mobile homes so that they received legal aid for lower-priority matters whereas people living in other homes would not. We find it difficult to justify that it would be coherent to create such differences between the level of legal aid available to different kinds of home owner. I recognise the commitment which my noble friend and the noble Baroness have to the Gypsy and Traveller community. I appreciate the opportunities we had at our meeting and in this debate to set out our respective positions, but, for the reasons given, I hope that my noble friend will withdraw his amendment.
Lord Bach
My Lords, it is absurd that we are debating such a crucial set of amendments as this at 10.15 in the evening. This is a crucial part of the Bill and the House should be much fuller. However, we have heard some very impressive speeches from around the House on Clause 9, which is a key clause in the Bill and, I imagine, a key clause in the Government’s thinking on the structure of Part1 of the Bill.
We had a substantial debate at an earlier hour in Committee on these amendments, with the exception of Amendment 93A in the name of the noble Lord, Lord Avebury. However, the amendment of the noble Lord, Lord Thomas, and my amendments were debated. There was a widespread feeling around the House on that occasion, as there is tonight in a much emptier House, that Clause 9 is much too narrow in scope. It does not allow for the flexibility that is crucial if exceptional cases are to have any real meaning. In our view, this is such a narrow clause and it will be so difficult to put into practice that a great deal will be left to the director to decide. At the moment, we do not know under what rules the director will have to make his decisions, and it is a shame that we do not.
We still greatly support the amendment in the names of the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. It seems to us a very sensible amendment and one that, if the Government do not intend what my noble friend Lord Judd was implying, they should accept. However, they do not accept it in those terms. The noble and learned Lord the Minister listened carefully when the noble and learned Lord, Lord Mackay of Clashfern, said in Committee:
“My second point is that, although ‘the interests of justice’ is a rather general and vague subject, on the other hand if you turn it round and say that the director, before he allowed this ground to prevail, had to be satisfied that there was a real risk of injustice unless legal aid was granted in a particular case, that would focus on the issue in the case in a more distinct and direct way than the phrase ‘the interests of justice’”.
In response, the noble and learned Lord said:
“I am certainly interested in what my noble and learned friend said about turning the phrase around, which has a certain seductive charm.”
That is the phrase that the noble and learned Lord, Lord Wallace, used. He continued, with his usual careful caution:
“I would not want to immediately agree to that but, without commitment, it is certainly something that I would want to think about”.—[Official Report, 24/1/12; col. 989.]
This is the perfect opportunity for the noble and learned Lord, Lord Wallace of Tankerness, to tell us whether he did think about it and what his conclusion was. It is an attractive offer. It is based on the original amendment of the noble Lord, Lord Thomas, and on what the noble and learned Lord, Lord Mackay of Clashfern, had to say about it. I shall be interested to know his view on that. Amendment 93A fits in very well with the debate that we had earlier this evening, in which the Government found few friends around the House as regards their argument. I suspect that there are very few friends in the House at present as regards what the noble and learned Lord may say about Amendment 93A. We back it.
The first of my amendments is exactly the same as the one that I moved last time. It is based on a draft amendment by the Law Centres Federation. It is not necessary for me to praise the law centres movement yet again in the House; the House has a very strong feeling that it has done a fantastic job over the past 40 or 50 years. When it puts forward a draft amendment to a Bill like this, the very least that we can expect is that the Government take it seriously. It would have different criteria, having regard to the previous circumstances of the case, including: the client’s vulnerability; the client's capacity to represent himself or herself; the client's health, including mental health issues; the actual availability of alternative sources of advice and assistance; the fact that the client is under the age of 18; or it is otherwise in the interests of justice. So we come back to the phrase in Amendment 93 in the name of the noble Lord, Lord Thomas of Gresford.
The noble and learned Lord, Lord Wallace of Tankerness, rejected that amendment last time. I dare say he will do so again in a few minutes. I still wonder why, when it seems to cover so many of the crucial things that are of importance for any clause that deals with exceptional cases.
My Amendments 95 and 96 deal with the position of chief coroner, who barely survived, but survived eventually, even though it was the Government’s intention to get rid of him before he started his job. It was good that the Government were persuaded to keep him. On Clause 9(4)(b), where the director has made a wider public interest determination in relation to the individual and the inquest, it would be helpful, rather than harmful or delaying, for the director to consult with the chief coroner. We still think that is a good idea and we cannot see why the Government reject it. These are important amendments and I know that they will be treated seriously by the noble and learned Lord, but to keep Clause 9 as narrowly based as it is on the ECHR and the European Court of Justice rulings is, in our view, much too restrictive and will in the end cause a great deal of concern for clients who really ought to get some legal aid under any exceptional provision but who will be barred from doing so because of the narrowness of the definition of Clause 9.
Lord Wallace of Tankerness
My Lords, notwithstanding the hour—a point made by the noble Lord, Lord Bach—I agree with him that this is an important group of amendments. Clearly, there is concern about the parameters of the exceptional funding scheme that will be created by Clause 9. It is very clear that many of your Lordships would prefer a very broad discretionary power, perhaps akin to that proposed in Amendment 94, on the face of the Bill. However, I ask that we reflect on the fundamental purposes of the changes that we are making to the general legal aid scheme. We need these reforms in order to create a fair, balanced and sustainable legal aid scheme. We have taken into account the importance of the issue; the litigant’s ability to present their case, including their vulnerability; the availability of alternative sources of funding; and the availability of other routes to resolution. It is also right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice. Clause 9 achieves this important end.
I acknowledge that we have limited the exceptional funding power in such a way as to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights and European Union law. I acknowledge that this is a high threshold. However, it is right to limit exceptional funding to those important cases in which an individual’s fundamental rights of access to justice are challenged. I do not agree with the initial comments of the noble Lord, Lord Bach, which suggested that this would be impossible to operate. Certainly it is our anticipation that there will be several thousand applications to the fund. As I stated in Committee, there will not be a fixed budget for exceptional funding. It will also be available—we will come on to this later—where there is a wider public interest in an individual being represented at inquest proceedings into the death of a family member.
It is also important to note that the individual must qualify for such services in accordance with Clause 10, which will mean that decisions on exceptional funding will be subject to the means and merits criteria. The director of legal aid casework will make all exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions on excluded cases. Clause 4(3) provides that the Lord Chancellor may issue guidance or directions about the exercise of the director's functions, including functions exercised under Clause 9. Through this guidance, the Lord Chancellor will set out the legal criteria that the director must take into account in determining an exceptional case application.
I confirm that the guidance will be based largely on the factors that domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case. It will be published in a clear and accessible format so that applicants and their solicitors can see whether their case will be likely to meet the necessary tests. Certainly it is our intention to publish more details of the operation of the proposed exceptional funding scheme, with associated guidance.
My noble friend Lady Hamwee asked a question about excluded cases that she had put to my noble friend Lord McNally. I have not had a conversation with my noble friend in which he imparted the question to me. In another context, she suggested that there might be a discussion outwith the debate. I am sure that my noble friend will be happy to answer her question in that context.
Amendment 93 would allow the director to fund excluded cases where he or she determines that it is in the interests of justice generally to do so. As the noble Lord, Lord Bach, said, Amendment 94 would allow the director to make an exceptional case determination where it is appropriate to do so in the circumstances of the case, taking into account certain prescribed criteria. In moving his amendment, my noble friend Lord Thomas of Gresford referred to Amendment 22, which we debated—I think—on Monday of last week. I indicated that I would take the matter away and think about it. His diary has now caught up with mine and I understand that we will meet tomorrow to discuss it further. He indicated that many issues that he believes will be covered under that amendment will go up to the director for a similar determination under Clause 9. Clearly that is something that we can pursue when we meet.
The phrase “interests of justice”—and the more seductive turnaround of the words proposed by my noble and learned friend Lord Mackay of Clashfern—is capable in this context of wide interpretation. The amendment would create a power that is considerably broader than the one we currently propose under Clause 9. As I acknowledged, Clause 9 is limited and we have already set out why it has to be so.
Our concern with Amendment 94 is again that it could be open to wide interpretation. Nevertheless, I will repeat an assurance that I gave before to the noble Lord, Lord Bach. Many factors listed in his amendment, such as the client’s capacity to represent themselves, their vulnerability, and alternative sources of funding, are to be found in the jurisprudence on Article 6 of the European Convention on Human Rights. As such, they would form part of the test for exceptional funding to be taken into account by the director in those cases where Article 6 is engaged.
In considering whether legal aid should be provided in an individual case, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent himself or herself effectively; and alternative means of securing access to justice.
Importantly, Clause 4(4) explicitly prohibits the Lord Chancellor giving directions or guidance to the director in relation to an individual case. We believe that this change will guarantee the objectivity of the decision-making process for both in-scope and excluded cases and serve as a safeguard against political interference in the making of any individual exceptional funding decisions in future.
My noble friend Lord Avebury tabled Amendment 93A, which is concerned with immigration cases in which an individual risks being unable to obtain qualified and affordable representation and where there may be a risk of injustice if the appellant is not represented. As we have made clear, and as we debated earlier this evening, the Government believe that asylum cases and immigration detention cases must be treated as a priority for funding. I am sure it will readily be agreed that the consequences of these cases are of much higher seriousness, involving threats to life and limb or to the liberty of the person.
Clause 9 indicates that civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) or (4) is satisfied. Paragraphs 1 to 27 of Part 1 of Schedule 1, if we include the Special Immigration Appeals Commission, all deal with aspects of immigration, including asylum, protection for legal aid for immigration detention and cases where there is domestic violence. In addition, we are also keeping legal aid for most immigration judicial review cases. Many cases will already be within scope and have a right to legal aid.
Protecting funding in these areas, which I hope your Lordships will agree are of fundamental importance, means that we have had to make difficult choices about other immigration cases, which have not been considered to be as high a priority. At the same time, we have been clear that funding for cases falling outside the scope of the civil legal aid scheme should be focused on those cases in which the failure to provide legal aid would amount to a breach of an individual’s rights under the ECHR or directly enforceable European Union law.
As my noble friend Lord Avebury noted, the case law of the European Court of Human Rights is currently clear that decisions concerning issues of immigration, nationality and residence do not engage Article 6 because they do not involve the determination of civil rights or obligations. My noble friend asked whether lack of immigration legal aid would breach Article 8 or Article 14. Exceptional funding would cover whatever legal aid is required by the European Convention on Human Rights or is enforceable under European Union law. As I have indicated, case law as it currently stands generally means what Article 6 requires, but if the case law were to change, the exceptional funding scheme would have to respond to that. As such, the Government’s position is that immigration cases will not generally qualify for exceptional funding, other than a few cases that may arise under other aspects of EU law. However, the fact that immigration cases would currently be unlikely to qualify for exceptional funding does not mean that injustice must inevitably arise from a lack of legally aided representation.
The noble Baroness, Lady Lister, asked about children and social workers. Children will rarely be applicants in non-asylum immigration cases and will normally be considered as part of their parents’ application. Child applicants are much more likely in asylum cases for which legal aid will remain available. The noble Baroness also referred to unaccompanied children. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them. Their role includes helping the child access the same advice and support as a child permanently settled in the United Kingdom, and they could also offer assistance in filling in forms, explaining terms and providing emotional support. I was asked particularly about training in immigration law. The proposal is not for social workers to give detailed legal immigration advice but to help with form filling. As I indicated in an earlier debate, we intend to work with the Office of the Immigration Services Commissioner to exempt local authorities from regulation so that they can offer low-level advice and assistance.
I do not wish to repeat everything that was said in the earlier debate, other than to remind the House that in trying to get the balance in immigration cases we have sought to focus legal aid on those areas that are of much greater seriousness to the individual; for example, where the individual is subject to domestic violence. More generally, we have gone as far as we can on exceptional funding, but we have made it clear that there is a narrow determination with regard to the European Convention on Human Rights.
Amendment 95 would make it a requirement for the director to consult with the chief coroner and have regard to his views before making a “significant wider public interest” determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the present funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case itself.
The Government believe it is important to retain the ability to fund inquest representation on the basis of wider public interest, because the provision of such representation may lead to findings that help prevent future deaths. That is why Clause 9(4) gives the director the power to provide funding on the basis of a wider public interest determination.
The onus has never been on the decision-maker to consult coroners, many of whom will not wish to give a view at all. Indeed, some coroners are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention. Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has “significant wider public interest”.
We envisage that, under the new exceptional funding system, the director will continue to consider the views of individual coroners when taking decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the European Convention on Human Rights. It would therefore seem somewhat incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the “significant wider public interest” aspect of the case.
We believe that compelling the director to consult with the chief coroner in all cases is likely to add an unnecessary bureaucratic element to the assessment process, which could lead to unfortunate delays. It would represent a significant burden on the chief coroner, who would be unfamiliar with the circumstances of each case, unlike the individual coroner holding the inquest. The chief coroner would be required to acquaint him or herself with information pertaining to a number of cases. We do not believe that there would be any obvious benefit for bereaved families, individual coroners or indeed the chief coroner in mandating this additional process in law.
I am not sure whether the noble Lord mentioned Amendment 96 in this group, which would compel the director to pay,
“reasonable costs incurred by any person making a successful funding application under this section”.
Perhaps it would be helpful to say that the concept of “reasonable costs” is open to broad interpretation and could be seen to authorise payments at commercial rather than prescribed legal aid rates. However, I can reassure the noble Lord that although discussions about the arrangements for exceptional funding applications are ongoing, we expect to propose that a payment may be made towards the costs associated with the making of an application where that application is successful.
I trust that my response indicates that the exceptional funding scheme is intended to provide an important safety net where an inequality of arms would lead to an obvious—and possibly unlawful—unfairness in proceedings. I accept that many people would like to see this cast much more widely and more cases brought within the ambit of exceptional funding. However, I have explained the architecture of the Bill and why it is cast in the way it is, with particular reference to the European Convention on Human Rights and the other specific issues with regard to coroners’ inquests.
Lord Phillips of Sudbury
My Lords, I am supported in this amendment by the noble and learned Lord, Lord Woolf, and my noble friend Lord Faulks, who is a QC. Both noble Lords apologise for not being in the Chamber at this hour.
The general point of the amendment is to allow the Government at some future time, but I would hope earlier rather than later, to institute an independent review of clinical negligence claims, given that within the legal profession they are generally accepted as being uniquely difficult, complex, expensive and long-winded. Very briefly, the fulcrum of any decision in these cases revolves around medical experts’ reports, often not one, two or three, but a series of such reports depending on the seriousness of the injuries or defects. They are extremely complex when one comes to try to assess the course that an injury may take over the rest of a person’s life. There are huge problems of what lawyers call causation. There are particular problems in relation to the very young and the very old, who are disproportionately affected by cases of clinical negligence, and those who are mentally impaired, whether prior to the alleged negligence or as a result of it. There are particular complexities around the funding and expenses related to clinical negligence claims and around insurance, particularly what is called “after the event” insurance. I should declare that I was a non-executive director of a company providing such insurance for a number of years. There are problems in relation to the cost of the medical reports, which can be extraordinarily high, and of the insurance itself. One has after the event policies known as qualified one-way cost-shifting insurance. In fact, there is no aspect of these wretched claims that is straightforward and simple. I suppose that that is why one sees the sort of extraordinary cases of which I gave an example in Committee, given to me by the Welsh NHS legal department, where the award of damages was £4,500. The cost of the insurance, of the medical reports and of the lawyers came, believe it or not, to £98,000. That may not be typical, but this is an area of notorious expense, complexity and long-windedness.
The noble Lord, Lord Faulks, who is an expert practitioner in this field, dropped me a note earlier in the day in which he said:
“Clinical negligence has always been an area of particular complexity calling for both experience and expertise, in that it involves the evaluation of expert evidence … When legal aid was removed from personal injuries generally”—
that was, I think, 10 or more years ago; it might even have been in the Access to Justice Act 1999—
“it remained for clinical negligence—in recognition of its especial challenges”.
That is absolutely the point.
I shall not repeat the short account that I gave in Committee of the various attempts made in this country and in Wales to grapple effectively with the problems of clinical negligence claims. If anybody is interested, that was in relation to Amendment 99A, which was debated on 24 January at col. 1016 of Hansard. As long ago as 2003, there was a report by the Chief Medical Officer for England, called Making Amends, which related specifically to the slowness, complexity and cost of these claims. That does not seem to have been actioned. Similarly, Wales has had two pieces of legislation directed specifically at this area, the outcome of which is the Speedy Resolution Scheme. Wales is still in the process of evaluating that. One has to conclude that, because of the difficulties of getting to grips with the various aspects of this type of litigation, it is a sore that runs, unhealed, year to year. That is why we have proposed this power—we propose a power and not a duty. Out of deference to what the noble Lord, Lord McNally, said in Committee, we have made it an option for any future Administration.
I shall quickly deal with a couple of arguments against the amendment which were produced last time. One argument was that there is already a post-legislative scrutiny regime which is the subject of Cabinet Office guidance. There is also a post-implementation review plan. The trouble with this is that it is very general and entirely discretionary. With a Bill of this scale and breadth—there are 270 pages of primary legislation with probably as much again to come in secondary legislation—we are into a massive reform right across the face of legal aid and it is expecting too much to think that there will be a review of this particularly difficult area of litigation in order to arrive at the best conclusion for all concerned.
This issue affects not only the people who claim to have been clinically damaged but the National Health Service itself, which currently spends a great deal of time, effort, energy and funds in dealing with it. That is why we feel that the present informal Cabinet Office guidance does not go far enough. We want something that is nearer the Charities Act 2006 which provided for specific post-legislative review, which is now going on.
That is the bones of what I want to say. The Government have nothing to lose and everything to gain in agreeing to this amendment. It will lead to better justice in a field where the present injustice is felt keenly. People who are unluckily damaged in the course of medical treatment feel further damaged by the byzantine system we are currently left with. The amendment, which has been redrafted since the Committee stage, takes note of the points made by the noble Lord, Lord Beecham, from the Labour Benches. We hope, therefore, that Amendment 101A will introduce a provision that can do nothing but good for an area of litigation that desperately needs reform. I beg to move.
Lord Wallace of Tankerness
My Lords, Amendment 101A seeks to provide for the possibility of a wholesale independent review of clinical negligence claims by an independent person, and this would appear to provide for a review of both the civil procedure and legal aid funding. Having sat through the speeches at Second Reading and having responded to the debate on clinical negligence in Committee and again last week to other amendments moved on Report, like any other Member of the House I am under no illusion as to both the importance and sensitivity of this area. My noble friend Lord Phillips said something about the exceptional challenge that these issues give rise to and, when we debated amendments on Report last week, my noble friend Lord Faulks spoke to this amendment even though it was degrouped at that time.
The amendment has the somewhat novel effect of permitting the Lord Chancellor to introduce an exceptionally detailed and costly review function for an entire area of civil litigation. Albeit that it is now couched in terms of a power rather than a statutory requirement, there would certainly be an expectation raised if Parliament were to pass it. There are, therefore, fundamental problems.
I have alluded to the costs issue, and this cannot be overstated. One assumes that it is straightforward for the Government to set up a review, but a research, monitoring and evaluation framework of the magnitude proposed here does not give sufficient weight to the financial constraints under which the Government are operating. I recognise that the Government have in recent times committed resources to previous reviews, but the resources are somewhat more strained. At a time when we have had successive groups of amendments in which cases have been advanced for legal aid in particular areas to bring them within scope, which we have had to resist on the grounds of cost and because it was not part of the scheme, it is difficult to commit or even give the possibility of committing to a significant expenditure that would follow on from a review of this nature.
Lord Bach
I can be fairly brief here, as the Minister made an important concession in Committee by saying that there would be no means test on advice for individuals in custody. I was grateful for his concession, as was the Committee. However, I am still concerned—and I referred to this in passing in Committee—by the expression to be found in Clause 12(2):
“The Director must make a determination under this section having regard, in particular, to the interests of justice”.
I do not know what that phrase, which we debated a few minutes ago in a different context, means in the context of Clause 12. The really important part of the clause is the first sentence, which states:
“Initial advice and initial assistance are to be available under this Part to an individual who is arrested and held in custody at a police station or other premises”.
After that most of this clause is, to coin a phrase, otiose. It does not really matter; what matters is that there is the right to initial advice and initial assistance. What do the words “the interests of justice” add to the debate? In my view, they add absolutely nothing but they put me rather on edge. Do they mean that there may be some cases where the director thinks it is not in the interests of justice for there to be advice and assistance for someone in custody?
The Minister wrote us all a reassuring letter a few weeks ago. I am afraid that I do not have my copy in front of me as I address the House tonight, but I think it basically said, “Don’t worry about it. It doesn’t actually mean anything in this context”. I put down my amendment so that the Minister can explain why the phrase “the interests of justice” has to appear in this clause at all. Perhaps it is necessary for all the rest of the clause to be there, with regard to what the regulations may include and what initial advice and initial assistance mean. However, that phrase rather concerns me, lest some future director were to decide that “the interests of justice” meant that it was not necessary for advice and assistance to be given.
Without any doubt it is the view of the House—and, I suspect, that of many outside—that the change that the Police and Criminal Evidence Act effected, so that there was advice and assistance for those in custody, has been nothing but a good thing. It has meant that guilty men and women cannot get off their responsibilities because they can blame something on some alleged false admission. It also means that those who are innocent and have been arrested have the protection of some initial advice and assistance, so perhaps the Minister will explain to us why that phrase needs to stay in this clause at all. I beg to move.
Lord McNally
My Lords, I will try to help the noble Lord. I do not think there is anything sinister in this, and I hope that once I have finished speaking he will be happy to withdraw his amendment and leave my two amendments to go through. Perhaps I should start by saying that the scope of provision under Clause 12 is intended to reflect the existing provision in the Access to Justice Act 1999. The Government have no plans—I repeat, no plans—to change the existing provision of advice and assistance to those held in police custody. I indicated in Committee, after an extremely persuasive speech by my noble friend Lord Macdonald, that the Government intended to table an amendment to Clause 12 to remove the power to introduce means-testing for initial advice and assistance—
Lord McNally
I think that it lasted under 30 seconds, and what I was trying to draw to the attention of the House for future reference is that interventions do not have to be for 17, 20 or 25 minutes to convince me. It is to encourage the others that I make the point. As I say, the Government intended to table an amendment to Clause 12—
Lord Bach
My Lords, given the time of night, I will obviously withdraw the amendment. I thank the Minister for his response but I cannot say that I am totally satisfied. My ears started to prick up when he said that in general it was considered that it would be in the interests of justice. My question to the Government is: when will it not be in the interests of justice for someone in custody at a police station or other premises to have initial advice or assistance? Are there any examples? I do not ask the noble Lord to answer now but it would help the House if he could write with some examples of the kind of situation in which it would not be in the interests of justice for someone in custody to receive this assistance and advice. It is the fact that there may be occasions when it is not considered by the director to be in the interests of justice that worries me. I would be grateful if the noble Lord could find the time to write to me with some examples. I think other Members of the House would be grateful for them as well.
Lord McNally
My Lords, I think it would worry me as well. I will reflect on what the noble Lord has said and write to him on the specific point that seems to be worrying him.
Lord Bach
My Lords, we give our total support to the amendment moved by the noble Lord, Lord Thomas of Gresford. The principle behind it was set out clearly in Committee. That principle remains. It has not been answered satisfactorily. The Government are rightly looking for ways of saving legal aid funds. This is an area of criminal legal aid where considerable savings could be made. The Government should take advantage of this amendment and make sure something like it happens very soon.
Lord McNally
I cannot remember whether the noble Lord was a Minister in the department responsible in 2002, because it was the then Government who decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence.
Lord McNally
Yes, but there is some kind of responsibility for past acts. It is all right for the noble Lord to get to the Dispatch Box and say what a wonderful idea this is, which he has been doing throughout the Bill as regards £20 million here, £18 million there and £4 million there. He now of course wants to change something that the previous Government did.
Lord Bach
Again, I have déjà vu. I think I ate enough sackcloth and ashes, or whatever the expression is, on the previous occasion about what my role may or may not have been towards the end of the previous Government. We do not need to go through that again, unless the noble Lord insists. I should like to know why he does not accept the amendment.
Lord McNally
Excellent; that was good for the record. Amendment 105A would amend the Proceeds of Crime Act 2002 to allow courts to release restrained assets to fund legal expenses in criminal proceedings. POCA currently prevents restrained funds from being released to a defendant for legal expenses in relation to the offences to which the restraint order relates.
The Government recognise that there is a public perception that rich people are being given free legal aid because their assets are restrained. There are good policy reasons behind the current regime, but I can assure noble Lords that my department is currently working with the Home Office and the Attorney-General’s Office to explore options that might allow the Government to recover legal aid costs wherever possible.
My noble friend—and this I welcome—has stimulated activity and cross-departmental examination of this issue in a constructive way. I cannot accept the amendment tonight, and I am not likely to within the context of the Bill. However, he can claim credit for stimulating active working with my department, the Home Office and the Attorney-General’s Office, and we will see where this initiative takes us. In the mean time, I hope that my noble friend will withdraw his amendment.
Lord Bach
Not at all. It is late at night, so I think we can forgive the Minister what he considers to be his bit of fun. However, Governments do make mistakes from time to time and people do change their minds. Even the noble Lord—never mind his party—has been known to change his mind on a few occasions.
Lord McNally
Very good. On the specific issue at hand, we hope to bring in the scheme with the rest of the Bill in 2013 and it will be subject to the affirmative order, so my noble friend will have other opportunities to discuss this matter. As he has now acknowledged, the Explanatory Notes to the Bill make it clear that we intend to use the power in subsection (3) to establish a supplementary legal aid scheme. The scheme will apply to damages cases where the successful party has been legally aided.
As we also said in our response to the consultation on legal aid reform, under the regulations that we will make, 25 per cent of certain damages successfully claimed by legally aided parties will be recovered by the Legal Aid Fund. The relevant damages are all those other than damages for future care and loss. I had better stop there and say that I have just had a message that the procedure will be negative, not affirmative.