Jobseekers (Back to Work Schemes) Bill

Lord Bach Excerpts

Monday 25th March 2013 Lords Chamber

Moved by

[Lord Bach]

2: Clause 1, page 3, line 14, at end insert—
“( ) The Secretary of State will, within a month of this Act coming into force, lay a report before Parliament outlining whether in his view claimants affected by the introduction of this Act have access to adequate legal advice and support, taking into account the availability of legal aid for claimants appealing a sanction imposed under the 2011 Regulations or the Mandatory Work Activity Scheme Regulations after the coming into force of this Act.”

[Lord Bach]

My Lords, Amendment 2 is in my name and those of my noble friends Lady Sherlock, Lady Hollis of Heigham and Lord McKenzie. My first point is that this is about as mild an amendment as could possibly be imagined. All that I am asking is that the Secretary of State should lay a report before Parliament within one month of the Act coming into force. The report would outline the Secretary of State’s view on whether claimants affected by the introduction of the Act would, in the crucial words,

“have access to adequate legal advice and support, taking into account the availability of legal aid for claimants appealing a sanction … under the 2011 Regulations or the Mandatory Work Activity Scheme Regulations”,

both of which were declared unlawful. It is a limited request, and one to which I hope the Government will listen sympathetically in the course of this short debate.

It goes without saying that every claimant has the right of appeal. It would be pretty shocking if they did not. However, what use is a right that cannot be enforced? That is where the problem arises. At present any claimant who has sanctions imposed can obtain legal advice as to an appeal, whether the appeal is in the form of a review to the department or to the First-tier Tribunal. If a claimant is eligible, they are, as we speak, entitled to legal aid. Therefore, in reality they can get the advice perhaps from a solicitor or, more probably, from a not-for-profit organisation such as a law centre, the CAB or an advice centre.

This advice is not expensive—about £150 for this sort of case. It does not make the lawyers rich. It is quality advice. It often tells the claimant that he or she has no chance in any review or appeal. On the other hand, it may tell the claimant that he or she has a proper legal appeal. Early advice of this sort stops people going to the First-tier Tribunal. It does not encourage them to do so. The advice does not extent to representation. What it does is give these citizens some limited access to justice, which a mere right of appeal does not do.

Of course, in a week’s time on 1 April, legal aid will no longer be available to a claimant in this kind of case however poor, disabled or marginalised he or she may be. It has been taken out of scope. The question arises: from where is the client who believes that he or she may have an appeal to get advice? Law centres, CABs and other advice centres rely on legal aid as a major part of their income. How will they survive? Will it all be done pro bono by other lawyers? I would argue it is not possible in the real world for that to happen. There is not the expertise in this field of law or the time for busy lawyers to do pro bono work to cover all these cases. All pro bono lawyers agree with that. There is no satisfactory answer to the question: where will these people go?

Her Majesty’s Government’s more general assertion has been that welfare benefit law, under which these sanctions arise, is simple, not complicated, easy to understand and is not really law at all. One only has to state that point of view to know what rubbish it is. The thousands of pages of legal textbooks, the comments of tribunal judges from top to bottom and the experience of real life gives the lie to a trite and convenient lie. In this amendment, I invite the Government to live in the real world and do their proper duty to ensure adequate legal advice and support.

My remarks so far have concerned all claimants who face sanctions since the introduction of the new regulations on 12 February this year, following the Appeal Court judgment. However, there is a past and pressing problem for those claimants whose cases have been put on one side as a result of a Court of Appeal judgment. The decision to sanction those people will either not be made, or it will have been made under what were ruled to be unlawful regulations, their time for appeal not having run out by 12 February. In both cases, they would have a reasonable expectation of knowing their fate some time ago. Any decision to sanction them would, of course, have been subject to appeal. Of course, claimants are entitled now to get legal advice and, if eligible, entitled to legal aid for that advice. But in a week’s time, while still theoretically they are entitled to legal advice for an appeal, they will not be entitled to legal aid, which means in practice that many fewer than should will be able to get that advice. How can it be just that those people are put into a worse position by a delay that is absolutely no fault of their own but is, frankly, the responsibility on the other side—in this case, the department and the Government behind it? That is according to the Court of Appeal—in other words, as we stand now, the law of the land. It would be wrong for any of them to be deprived of their right to legal aid in those circumstances. Does the Minister agree? If not, why not?

My amendment asks the Secretary of State to take into account the availability of legal aid for claimants in that situation. In my view, the Government can do no less. It is a modest amendment to which the Government could give their blessing. I beg to move.

--- Later in debate ---

Given that the numbers affected will be small and that we do not feel it necessary to legislate for this group, and that the independent review will look at how the appeal system will operate in relation to these penalties, I ask the noble Lord to withdraw his amendment.

[Lord Bach]

My Lords, I thank the Minister for his reply. I thank other noble Lords who have spoken, all of them in favour of my amendment. I also thank noble Lords who have asked questions of the Minister in regard to this matter.

I have to say that I sometimes wonder whether the Government really understand how important these issues are. We enjoy a system of law that enjoys a reputation that is well deserved over many years. One of the jewels in the crown of the English legal system is that people, when they hear about it, know that it applies to everyone, not just to the rich and powerful but applies, sometimes to a limited extent, to those who are at the bottom of the pile. That is the glory of the legal system. What the Government do not seem to understand is that it does not matter whether there are 20 cases, 500 cases, or 5,000 cases; these are fellow citizens who should be entitled to the protection of the law like everybody else. Is the Minister really saying that if the numbers were much greater the Government would change their attitude? I do not think that that is what he is saying.

This measure is particularly unfair to those who, through no fault of their own, have been caught by the hiatus that has been caused by the Court of Appeal saying that the regulations put forward by the Government were unlawful.

[Lord Freud]

Perhaps I may make absolutely clear the point about the numbers. There was a lot of comment from noble Lords opposite that the system would be overwhelmed by the numbers because people did not have legal advice and the system could not therefore cope. The point I am making is that that argument does not stand in the light of the rather small number of cases—between 1,500 and 2,000—that might come towards the First-tier Tribunal as a result of the Bill.

[Baroness Hollis of Heigham]

If I may intervene, approximately 500,000 sanctions were issued last year. Something like 3,500 or 4,000 of those cases went to appeal. That was last year, before this additional provision hits them. The Minister may wish to reconsider his statistics.

[Lord Bach]

My Lords, perhaps I may go back for a moment to the hiatus caused by the Court of Appeal decision. It means that those who stood to have the protection of the law as it stood at the time that they were sanctioned or due to be sanctioned will, if the Minister is right, no longer have that protection, merely because of the passage of time and because something has intervened that is absolutely no fault of theirs, but is, I am afraid, the fault of the Government. That seems to be against any British sense of fair play. I beg to test the opinion of the House.