Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Wednesday 7th March 2012 Lords Chamber

Moved by

[Lord Beecham]

19: Schedule 1, page 125, line 5, at end insert—
“Consumer(1) Civil legal services provided in respect of consumer law disputes.
(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages.”

[Lord Beecham]

My Lords, the amendment would bring consumer law back into scope. Consumer law does not simply cover small issues that perhaps citizens advice bureaux or other organisations could speedily resolve. It can relate to much more significant claims: for example, professional negligence claims against members of my profession, against the professions of other noble Lords in the Chamber at the moment—heaven forfend—or against those who have custody of their clients’ money in investment funds. I refer to people like Michael Brown, the well known donor to the Liberal Democrats, who managed to make off with £2.5 million of other people’s money. There is a range of cases for which legal advice and assistance is clearly very important.

In consulting on these matters, the Government made the obvious point that these cases are not of the same gravity as—to use a term that the noble Lord, Lord McNally, used earlier—issues of safety and liberty. That of course is true but does not take us very far. They can certainly affect people’s lives as well as their fortunes very substantially. A range of claims might be brought that would be entirely out of scope and where, even if conditional fee agreements were obtainable —as they might be—questions would then arise about success fees, premiums and the like.

It is incumbent on the Government to look again at the issue and acknowledge that, while generally these are not matters that threaten life and liberty, they can make a significant difference to a great many people in our society, and that there will often—though not always—be a requirement for legal advice and representation. In Committee, much was made of the funding that the Government had already announced, which was again foreshadowed tonight with reference to possible similar sums over the next two or three years. However, as my noble and learned friend Lord Goldsmith mentioned, many organisations are already facing significant cuts in their funding—particularly Citizens Advice, law centres and the like—at a time when demand for their services, even before the changes in the legal aid system come in, is already rising.

I therefore hope that the Minister will feel able to indicate a reconsideration of the position as of tonight or, failing that, will agree to take this away and bring it back at Third Reading in the hope that we can accommodate the very real needs of many people who face considerable financial and, potentially, other losses as a result of failure on the part of those with whom they contract to deliver what is expected of them. I beg to move.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the noble Lord, Lord Beecham, has moved his amendment to make civil legal services available for consumer disputes. It will come as no surprise to him that in response to a similar amendment in Committee we explained, and I do not apologise for repeating it because it is at the core of the architecture of the Bill, that in developing our reforms we have focused legal aid on those who need it most and for the most serious cases in which it is justified.

I recognise that there will be some difficult cases—for example, consumer matters that are concerned with financial matters—but we nevertheless consider that their relative importance is lower compared with, for example, issues of safety and liberty. Issues of safety and liberty are of the highest importance. That is why, in having to make these kinds of decisions, we have removed legal aid from consumer disputes. Moreover, we also note that, particularly in this sphere, there are other sources of advice; for example, trading standards and Consumer Direct. There may be alternative non-court-based solutions in some cases through regulators and ombudsmen. I do not think they can be as lightly dismissed as sometimes they are. Any consumer matter that concerns alleged contravention of the Equality Act 2010 will be within scope.

As was indicated in an earlier debate, the Government will provide additional funding to the not-for-profit sector in the Budget, and it is often a sector that has a role to play in areas such as this. It will be made available within the current spending review period. I understand that the Cabinet Office review is expected to conclude shortly and will provide recommendations on proposals to secure the long-term sustainability of the sector. I hope that the House will allow this important work to reach its conclusion.

There is consistency in our responses. When lines have to be drawn and decisions taken about what should or should not be within scope, we believe that higher priority should be given to some of the areas I have indicated. In these circumstances, consumer matters do not fall within the area we believe should be within scope. On that basis, I ask the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I remain disappointed in that response. There is potentially a huge range of claims that might be made. Some of them are minimal and perfectly capable of being disposed of in the way the noble and learned Lord referred to. Other are clearly of a different order altogether. Negligence advice from a solicitor, accountant, architect or other professional person can be very costly to individuals who may not be able to afford litigation. Even if they recover using CFAs, they will potentially lose a significant slice of the amount they have already lost. I do not think that is just, and it again reinforces the impression that the Government are giving that they are content with, effectively, a two-tier system of justice from which many people will be excluded. It is most unfortunate, but clearly in the circumstances and in the light of the time, there is not much point in seeking to test the opinion of the House. Accordingly, I beg to leave to withdraw the amendment.

[Lord Thomas of Gresford]

Before the noble Lord sits down, I may say that he is developing a very fine line in insulting jibes. I did not hear any mention of Brown in anything that he said in presenting his submission or in his reply.

[Lord Beecham]

I do not quite understand the relevance of that observation. I mentioned Brown. I am sorry if it offended the noble Lord. Mr Brown has offended a great many people.

Amendment 19 withdrawn.

--- Later in debate ---

Moved by

[Lord Beecham]

20: Schedule 1, page 125, line 5, at end insert—
“Education(1) Civil legal services provided in respect of education law disputes.
(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages.”

[Lord Beecham]

My Lords, this amendment deals with education. It is right to say that, having consulted—although perhaps not initially—the Department for Education, the Government have amended their original proposals to bring special educational needs within scope. I very much welcome that.

However, there are significant problems in the education world that require assistance. These include school exclusions, admissions issues and bullying. In fact, at the moment there is a significant workload that potentially falls within scope. If the Government do not move their position, some 2,800 fewer clients will be given advice on educational law matters, and a small number—only 70 but for them it is important—would fail to obtain representation on such matters.

Clearly there are potentially significant issues around admissions which affect different categories of children disproportionately; for example, refugee and asylum-seeker children, for whom there is often a difficulty in obtaining places. Sometimes by definition these children arrive mid-year; they do not always arrive at convenient times for the academic year. Sometimes schools may have difficulty in admitting pupils with perhaps little educational experience or poor language skills. Equally, some of these children are more susceptible to bullying and racism than perhaps would normally be the case.

In any event, bullying is not confined to that group. It is common, unfortunately, in many schools. Some years ago, Bullying UK discovered that 87 per cent of parents sampled reported that children had been bullied. Of course, these will not all be serious matters but there will be cases where sometimes it is necessary for people to seek assistance and redress for incidents of that kind.

The Government consulted on all these matters publicly. They restricted their changes to the proposals to special educational needs. However, given that there is not a vast number of cases, where there are difficulties of this kind it seems proper that legal advice—and, if necessary, in a very small number of cases, representation —should be available. Again, we are talking about children. They have cropped up regularly this evening and in earlier debates as a group that we have to have special regard for.

Again, I hope that the Government will consider building on their welcome amendment on special educational needs to afford the possibility of advice and representation to these other categories. That would be welcome to those who suffer from bullying and would assist the education system in dealing with what can be very difficult problems. I beg to move.

[Lord Faulks]

My Lords, perhaps I might intervene briefly on this matter. I have experienced quite a number of cases involving educational law and I notice that this amendment is very widely drawn, potentially embracing all sorts of disputes.

It has to be said that the support of legal aid for educational law disputes has not been the finest hour of the LSC. In particular, I can speak from experience of three cases in the Supreme Court and a whole rash of cases alleging educational negligence, almost none of which were successful, which cost the taxpayer an enormous amount of money. Although well intentioned on the part of the claimants, these cases turned out to be expensive, unsuccessful and, quite frankly, misconceived.

I am very concerned about the width of this amendment, notwithstanding the fact that there are some areas, which I think are covered by the government amendment, where it is plainly appropriate that there should be support.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, Amendment 20 would bring back into scope all education matters not already covered by Schedule 1. We have retained legal aid for any educational case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination. We have also retained current legal aid funding for appeals on special educational needs matters and for educational judicial reviews. In practice, this amendment would retain legal aid for all education matters. The judgment we have made in prioritising funding is that SEN, discrimination and judicial review are of the highest priority and that advice on such matters as exclusions and damages claims are not.

Where parents are not satisfied with an admissions refusal, they can appeal to an independent panel. This requires them to set out in writing why they disagree with the admissions decision and why they think that the admissions arrangements have not been followed correctly. These are not usually legal arguments. Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors setting out their reasons for challenging the exclusion. If parents are unhappy with the decision to permanently exclude their child, they will be able to appeal.

From September 2012, such an appeal will be to the independent review panel. The Department for Education will fund the children’s legal centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line. Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination and legal aid is being retained for advice and assistance in such cases.

Advice is also available on admission and exclusion matters from the Advisory Centre for Education and the Children’s Legal Centre. Education negligence claims have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid on only those money claims which concern a significant breach of human rights, an abuse of a position of power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement. I hope that noble Lords will recognise that we have focused resources on education cases of the highest priority and that the noble Lord will withdraw his amendment.

The two technical government amendments in this group fulfil the promise we made in Committee concerning SEN provisions. These amendments ensure that SEN matters are fully within the scope of the Bill and, specifically, that learning difficulty assessments are captured by our provisions on scope. As we stated in Committee, the Government accept that the existing wording in paragraph 2 of Schedule 1 does not cover the provision of advice and assistance in relation to the making of learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. These amendments ensure that these services are brought within the Bill’s scope.

[Lord Beecham]

My Lords, the noble Lord, Lord Faulks, has made a valid point about education negligence cases. I think the consultation revealed that some respondents were quite supportive of excluding that, which I quite accept would be a sensible measure. The Government’s report on the key issues raised referred to suggestions by others that often difficult admission cases arose where clients were, for example, Travellers. The exclusion of education admission matters could prevent discrimination claims from being brought because it would take legal advice to identify that the clients had grounds for discrimination claims. Equally, lack of early advice could ultimately lead to the more expensive procedures of judicial review.

It is unfortunate that the Government do not at this stage wish to move. I clearly will not press the matter and hope that it can be kept under review perhaps, more particularly, in conjunction with the department rather than simply by the Ministry of Justice. As I understand it, there has been a little disconnection between the two on these issues thus far. For the future, I hope that that is something that could be repaired. In the circumstances, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

--- Later in debate ---

[Lord McNally]

My Lords, stakeholders have drawn it to our attention that the definition of community care service in the Bill is incomplete. We are expanding it to ensure that currently funded legal services in relation to community care remain eligible for funding under the new regime. These amendments will bring within the scope of civil legal aid services provided in relation to Section 2 of the Carers and Disabled Children Act 2000, which covers community care services to carers, and Part 1 of the Housing Grants, Constructions and Regeneration Act 1996, which covers facilities grants to enable disabled people to live independently in their homes. I beg to move.

[Lord Beecham]

My Lords, we welcome the Minister’s amendments and are glad that an error has been repaired.

Amendment 32 agreed.

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[Baroness Butler-Sloss]

My Lords, there are three amendments here that relate to internal child abduction. Noble Lords may well know that international child abduction is governed by the Hague convention, to which the United Kingdom is a signatory. There is a well established procedure for dealing with a child wrongfully removed from any part of the UK to a foreign country. There are emergency hearings before a High Court judge and the attempt at recovery process then takes over. That process is well known and well established.

There is no such procedure for internal child abduction within the UK, although we operate three separate legal processes in the three jurisdictions of England and Wales, Scotland and Northern Ireland. A child may be taken wrongfully from Exeter to Belfast, Glasgow or even Carlisle, which may be just as upsetting or traumatic as abduction to France or Sweden. Removal from home, school, friends and security, and fleeing with a parent who is often acting irresponsibly and removing the child wrongfully, is certainly not in the best interests of the child. It is also traumatic for the left-behind parent, who has no idea what happened to the child or even whether he or she will ever see that child again. The decision for a child’s future should be made sensibly and responsibly.

Where there are two parents, each with parental responsibility, one parent cannot up and go with the child to live elsewhere without the consent of the other parent—I do not think that all parents know that—and even more so when the parents are separated and one parent has a residence or custody order. Under the Bill’s proposals, though, there is no provision for legal aid for the left-behind parent to find out where the child has gone, whether the child is safe and how to put into effect a process similar to that employed if the child has gone abroad. Quite simply, I am asking that there should be exactly the same process internally within the United Kingdom as there is externally for abduction to a foreign country.

I am extremely grateful to the Lord Chancellor, who asked to see me on this issue, and to the Minister for seeing the noble Baroness, Lady Shackleton, and the chairman of the Family Law Bar Association. As I understand it, the Government recognise the problem and that it requires a solution. I suspect that the only issue between us is how far they will go, because there are two aspects to the issue of internal child abduction: one is the recovery of the child but the other is the prevention of the removal of the child. Consequently, one needs both the prohibited steps order or a specific issue order and the location order, sometimes called “seek and find”, or a recovery order involving the tipstaff and the police—the police will not act unless there is an order—asking various agencies for addresses and going through the well known process that happens internationally but not nationally.

There is no reason why the international system should not apply internally, and I understand that the Government accept that. It is important that the whole process should be applied. I make it clear that it is intended only to stop the child being removed, to get the child back or at least to know that they are safe and properly cared for. It is not intended to be a backdoor entry into private-law family cases. Everyone understands that in a situation in which it is known where the child is—perhaps a social worker in the area finds the child with grandparents and says that the child is perfectly safe—the legal aid will drop at that moment. It would be the responsibility of the left-behind parent or the parent who has wrongfully removed the child to go to court. They would then be on their own, like any other couple in dispute over their children.

The process for which I seek legal aid is purely and simply connected to potential or actual abduction. I repeat without apology that I am asking for the process for abduction throughout the United Kingdom to be exactly as the same as the international process under the Hague convention. I beg to move.

[Lord Beecham]

My Lords, this amendment gives me a sense of déjà vu. More than 30 years ago, I acted for a father whose three children were in effect abducted by his wife and removed to Scandinavia in flagrant breach of undertakings and a court order. The case was tried by a Mr Justice Faulks. I do not know whether he was any relation of the noble Lord, Lord Faulks, who is not now in his place. It was a tragic case; the father lost virtually all contact with his two daughters, although his son eventually returned of his own volition. It exemplifies the kind of family tragedy that can occur when one party flouts all legal responsibilities.

I congratulate the noble and learned Baroness on bringing these amendments forward. Since there is a sympathetic reaction from the Government, I hope that the Minister will undertake to bring this back at Third Reading to resolve the matter satisfactorily. It seems axiomatic that the same procedure should, as the noble and learned Baroness suggests, apply whether the abduction is outside the jurisdiction of the UK courts or within one of the three jurisdictions that obtain. It looks as though the Government are minded to accede to that. I very much hope that an indication can be given that this will be resolved at Third Reading.

[Lord Wallace of Tankerness]

My Lords, as she has indicated, the amendments moved and spoken to by the noble and learned Baroness, Lady Butler-Sloss, concern legal aid for measures to prevent the unlawful removal of a child within the United Kingdom and for taking steps to remedy such a removal. They would add to similar existing legal provisions for legal aid to prevent and remedy the unlawful removal of children from the United Kingdom. It is important to stress that unauthorised removal from the United Kingdom is a crime, whereas, as has been acknowledged in this debate, one parent taking a child to another part of the United Kingdom without consent is not. Trying to navigate a foreign jurisdiction in a foreign language without a lawyer would also be considerably more difficult than trying to do something similar in the United Kingdom.

That said, the noble and learned Baroness has, as ever, made a powerful and persuasive case. We have indicated that in future people should, subject to various important exceptions, be able to deal with their family matters themselves, without the benefit of taxpayer-funded legal aid. However, I certainly recognise that if you cannot even find your child because they are in the hands of an ex-husband, ex-wife or estranged partner, it may seem impossible even to begin that process. The emotional stress on people in such situations can be immense. Therefore, we are sympathetic to the concerns of the noble and learned Baroness, particularly the proposals to make legal aid available for Section 33 and Section 34 orders under the Family Law Act 1986 —that is, the seek and find orders and the recovery orders.

Seek and find orders allow a court to compel someone who might reasonably know where a child is to tell the court. The court will then judge whether this information should be passed on to the left-behind parent. Obviously, if there are safety issues it might not be advisable to do so. Refusal to impart that information is treated as contempt. Thankfully, Section 34 orders are somewhat rarer, but they give the police powers to recover a child forcibly in emergency situations. As the noble and learned Baroness identified, we are not yet convinced that the associated prohibited steps and specific issue orders require funding. The same applies to registering an order made in one part of the United Kingdom in another part.

I fully accept that the noble and learned Baroness is not trying to find a backdoor entry into private law matters. However, our concern, and the reason we are not yet convinced about this, is that these orders get us much more into funding a family case as a whole, including by preventing relocation. The issue here is that many cases involving children are in fact arguments about where a parent with residence might reasonably live and the effect that will have on contact for the other parent. Therefore, when we talk about prevention in this context, that is the kind of situation we are talking about. I know that the noble and learned Baroness, from her vast experience, would see it as that. However, sometimes when members of the public talk about prevention orders, they have an image of stopping a child being bundled into the back of a car. That is sometimes the description conjured up by “domestic child abduction”.

If the noble and learned Baroness is willing to withdraw this amendment, the Government will table at Third Reading a similar amendment that covers Section 33 and Section 34 orders, for international abduction as well as domestic. I am happy for officials in the Ministry of Justice to continue discussions with the noble and learned Baroness, which I know have been ongoing, as she acknowledged, on the exact drafting of that amendment.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, I moved this amendment in Committee. It is concerned with people who tragically are in a vegetative state and require an application to the court for the withholding of nutrition and/or treatment. I said everything that I needed to say in Committee and I wait to hear what further thoughts the Minister may have had. I beg to move.

[Lord Beecham]

My Lords, I congratulated the noble Lord on moving this important amendment in Committee, where he raised a particularly moving case. I congratulate him on raising the matter again on Report. I hope that the Minister will produce a satisfactory answer.

In Committee I raised a different point—perhaps not as clearly as I might have done—based on advice that MIND provides for patients. The point was not in relation to treatment for a mental health disorder, which of course would be covered by the Mental Health Acts and which the noble Lord, Lord McNally, pointed out would remain within scope. However, there may be a question regarding someone who suffers from a mental health disorder but whose treatment is for a physical problem, not for that disorder. The MIND briefing to patients states:

“Specifically, the laws in Part IV of the MHA on treating people without consent, only apply to treatment for mental disorder. They do not apply to the treatment of physical disorders unless it can reasonably be said that the physical disorder is a symptom or underlying cause of a mental disorder”.

A situation may be arising there in which the provision of legal advice would not be within scope because it is not for treating the mental health disorder.

I appreciate that an off-the-cuff answer might not be immediately available on that point, and I may have got it entirely wrong. However, such a situation strikes me as a possibility emerging from this briefing. So while I would certainly encourage the Minister to endorse the amendment of his noble friend, I would also ask him to undertake to look at the point that I have raised and, if necessary, to bring something back at Third Reading.

[Baroness Butler-Sloss]

My Lords, I supported the noble Lord, Lord Thomas of Gresford, in Committee, and I do so again now. As I said then, I had experience, at one time, of trying the majority of permanent vegetative state cases. I fear that there will be a small number of cases that are extraordinarily difficult to decide, where the families are placed in an agonising position. They really ought to have the opportunity to be heard in the court and to deal with this matter. Such cases are rare but very important. I very much support the proposal that something should be done about this.