Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beith Excerpts

Monday 31st October 2011 Commons Chamber

[Mr Djanogly]

I am not entirely sure whether the right hon. Lady is talking about all cases of divorce or partners separating, or just those where there is domestic violence. However, I can tell her that in 90% of cases where there is a separating of the ways, the couple will reach an agreement. We are therefore talking about the remaining 10%. What we are saying in terms of policy is that for basic divorce—if divorce can ever be basic—people should not rely on legal aid for carving up the family assets or settling contact issues. However, I want to make it clear that funding for victims of domestic violence who seek a protective order will remain available.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Is it not also important to point out that the family courts have great difficulty dealing with contact issues, many of which are naturally unsuited to such treatment? Frankly, it is not very easy for a court to sort out arguments about whether a child can go to the scout group on a Friday night or whether they have to be with the other parent.

[Mr Djanogly]

My right hon. Friend makes an important point. I can tell him and other hon. Members that it has become clear to me, from my many meetings over the last year and a half with mediators and lobby groups such as those already mentioned, that in the vast majority of cases the parties are better off sorting out their problems together with the help of the mediator. For the most part, mediation is empowering. In most cases, the best way forward is for people to be able to sort out their own futures and those of their children without being told what to do by a judge, and that is what the Government support.

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My right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) said that 61% of immigration appeals were successful, and that that demonstrated a need for legal aid for such cases. However, most appeals are factual and are not brought on points of law. I said to him earlier that I would consider further the question of complex cases, and I will come back to him on that.

[Sir Alan Beith]

What that 61% success rate on appeal demonstrates is a bad decision-making system. Ought not the Minister be more sympathetic to the Justice Committee’s view that Departments that make their decisions so badly that they generate large numbers of successful appeals should be penalised, perhaps even to the extent of contributing to a fund for the advice agencies that help the people who are affected?

[Mr Djanogly]

My right hon. Friend makes a good point. High levels of successful appeals perhaps show that too many cases are going before the tribunals in the first place. The other day, I saw a figure of about 80% for special educational needs tribunals, which was not very impressive either. I can also tell him that I am personally engaging with Ministers in the Home Office, the Department for Work and Pensions and the Department for Education with the specific intention of getting them to work with the Department of Justice to improve their initial decision making. I am pleased to say that they are all are working with us, and that they want to make the system better. This is a matter of significant concern to me, not least because I would like to see fewer appeals relating to my Department coming through the courts and tribunals.

The hon. Member for Brighton, Pavilion (Caroline Lucas) talked about domestic violence, immigration and legal aid. She also talked about people who fall outside the domestic violence immigration rule, such as EEA nationals. As I mentioned earlier, we are looking at cases of EEA spouses who have suffered dramatic abuse. The right hon. Member for Dwyfor Meirionnydd mentioned immigration judicial reviews. I think that he accused the Government of putting appellants into a Catch-22 situation because legal aid would not be available for immigration appeals or for some judicial reviews. I can tell him, however, that people will still be able to appeal immigration decisions themselves and, as is often the case at the moment, they will still be able to get legal aid for a subsequent judicial review, as long as it is not on exactly the same or substantially similar issues, or on a removal direction. As I said earlier, we are making various exceptions to the exclusions, which will include ensuring that, when there has been no possibility of an appeal, legal aid will remain for judicial review.

My right hon. Friend the Member for Bermondsey and Old Southwark raised various points about immigration, and I will write to him about those. He specifically mentioned children, as did other hon. Members, so I shall briefly address that point. In most immigration cases, a child’s interests are represented by their parent or guardian. Most cases in which a child is unaccompanied involve an asylum claim, and legal aid will remain for those cases as at present. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support. Legal support in such immigration cases may be found, if needed, from law centres and from pro bono legal representation. The Refugee Council provides services for separated children, which can include litigation friends.

A number of hon. Members asked how we justified plans that could disproportionately affect women. That question has also been asked in relation to disabled people, ethnic minorities and people who live in rural areas. The equalities impact assessment, published alongside the Government’s response to consultation, sets out our analysis of how the reforms will affect people with protected characteristics as set out in the Equality Act 2010. We have identified the potential for the reforms to have a greater impact on some groups, but we believe that those impacts are proportionate, and justified by the need to meet our objectives, including the pressing need to make savings from legal aid. We are also keeping discrimination claims relating to a contravention of the Equality Act 2010 within the scope of legal aid, which we consider will make a significant contribution to the fulfilment of our public sector equality duty.

The hon. Member for Stretford and Urmston asked about the removal of legal aid in many family cases, which she said would remove access to justice from many people. She asked how that could be right. Legal aid will remain available for family mediation and private family law cases, including private law children and family proceedings and ancillary relief proceedings. We want to encourage more use of such mediation. In ancillary relief cases, courts will be able to make orders for payment against a third party or a party who has the means to fund the costs of representation for the other party. Removing costly and often unnecessary legal aid does not mean removing access to justice. Litigants in person already feature in the justice system. Judges and magistrates currently assist litigants in person without compromising their impartiality, and we expect that to continue.

Finally, I was asked whether we expect all cases to be resolved through mediation. As I said earlier, the answer is categorically no. Cases involving domestic violence and child abuse, and emergency cases will still not be required to go through mediation. In addition, exceptional funding will be available when necessary for the UK to meet its international and domestic legal obligations via a proposed scheme for excluded cases. On that note, I rest my case.

Amendment 10 agreed to.

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[Stephen Phillips]

I am grateful to the right hon. Gentleman for his observations, but he may be eliding two matters. The first is the unavailability of legal aid for what we might call cases in the middle—neither the severe cases that will be picked up by the exceptional funding arrangements or CFAs, nor the cases in which solicitors and counsel will be prepared to take the case on and earn their money well down the line. I agree that that middle group of cases is the difficult group, but as well as the CFA arrangements mentioned by the hon. Member for Kingston upon Hull East, one must consider whether those cases are likely to be picked up and run with by the legal profession. My judgment is that they are.

Never having done a clinical negligence case, and having no expertise in those cases at all, I base that judgment partly on my experience of the position as it prevails in many jurisdictions in the United States, where of course no state or federal funding at all is available for civil cases. A legal profession has grown up in which attorneys have had to educate themselves about which cases they should be prepared to take. They consider which cases are worth taking forward, but also those that they believe have merit from a perspective of social justice and ensuring that there is access to justice for all.

Having worked with many attorneys across many jurisdictions in the United States, I can tell the right hon. Member for Dwyfor Meirionnydd that there are attorneys who take cases that they suspect will lead either to a settlement, out of which they will get very little or nothing, or to an eventual loss if they have to take the matter to court. They consider that part of their professional obligation.

I hope that both limbs of the legal profession in this country will come to appreciate that we owe an obligation not merely to try to make money out of the practice of law, but to do what we all did when we first came to the law—have a burning sense of justice on behalf of our clients, so that they are properly represented whether or not we believe them, whether or not we think their case is meritorious and certainly whether or not we think we will make money out of it. I hope that that deals to a large extent with the right hon. Gentleman’s points. I am, of course, as concerned as he is that there may be a group of cases in the middle that will somehow fall through the net. If that is the position, we may have to revisit the issue later.

[Sir Alan Beith]

rose—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

I call Sir Alan Beith.

[Stephen Phillips]

With the leave of the House, I was about to make my final few remarks.

[Sir Alan Beith]

I apologise to my hon. and learned Friend; I thought he had concluded his speech.

[Stephen Phillips]

The amendment proposed by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) addresses schedule 1 and the non-exclusion of clinical negligence cases in the context of convention rights. As I have informed the House more often than, perhaps, I ought, I have never conducted a clinical negligence case. [Interruption.] Mr Deputy Speaker tells me that the House has taken that point on board, and I am pleased it has taken at least one of my points on board.

Notwithstanding the Government’s insistence on the exclusion of clinical negligence in this context, I find it difficult to envisage any circumstances in which a case could be brought under the convention that engages this part of the law. I am not sure that my right hon. Friend addressed that point adequately—or, indeed, at all—when I intervened on him earlier, but he has said that this is a probing amendment that may have to be debated further in another place. At present however, I remain perplexed by the amendment.

[Stephen Phillips]

It may be an area the Government have to come back to. The amendment would change schedule 1 and, specifically, the cases for which civil aid is, and is not, available in the context of breaches of convention rights by a public authority. It addresses the convention rights contained in the Human Rights Act 1998, a piece of legislation of which the House will know I am not greatly enamoured. Clinical negligence is itself defined in paragraph 20(6) of the schedule, and the amendment suggests that civil legal aid should continue to be available in cases where a breach of convention rights is asserted in the context of clinical negligence. Although I think the Human Rights Act is bad law, I find it difficult to envisage circumstances in which the convention might be used and legal aid ought, in any event, to be available.

I therefore do not support the amendments, as they are unnecessary and misconceived, and the Government will have my support tonight.

[Sir Alan Beith]

I apologise to my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for having misinterpreted—and for perhaps leading you, Mr Deputy Speaker, to misinterpret —his meaningful pause, which sometimes occurs when senior counsel are delivering their well-chosen words, and which led me to think he had finished his speech.

I commend the members of my Committee who have brought this issue to the attention of the House: the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Member for Kingston upon Hull East (Karl Turner). The current system reveals many shortcomings in dealing with matters of this kind. I can recall a case, which went on for many years, of a young man who was brain damaged for life because he was not provided with proper recovery following an operation after a road accident. It was only when I managed to drag some information out of a health authority that the third firm of solicitors involved sued the second firm of solicitors for its professional negligence in allowing the matter to run out of time when a claim against the health authority would have been successful had it been undertaken with that information in the first place. These very difficult matters frequently involve the kind of cases that most of us are concerned about tonight: lifetime injury cases with very high care costs for those involved. My understanding is that when it comes to recovering costs from people who have been awarded damages in these circumstances, they will be recovered not from their damages for care, but from the other aspect of damages; a provision that the court has made for someone’s lifelong welfare ought not to be affected.