Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Bishop of Exeter Excerpts

Wednesday 7th March 2012 Lords Chamber

[Baroness Eaton]

My Lords, I speak in support of Amendment 46. As noble Lords know, this amendment seeks to protect access to legal advice, and when necessary to legal representation at tribunals and in court for all children under the age of 18. It seeks to maintain the system as it is at present, working reasonably well at low cost and protecting the rights of the most vulnerable children in the land. I strongly support the Government’s determination to drive down the deficit and attack waste in public expenditure wherever it is found. However, I also strongly support policies that do not create mountains of red tape and do not push unbudgeted costs on to local authorities.

It is because we must do everything possible to reduce the deficit that I cannot support the proposals to remove legal aid from 6,000 children every year, as would happen if the Bill passed without amendment. That would cause enormous knock-on costs to the public purse that will far outweigh the £6 million to £7 million that the Ministry of Justice believes it can save from its legal aid budget. As a matter of principle and conscience, I cannot support a proposal that will see a child go into the courtroom alone to argue his or her case against a barrister paid for by the taxpayer. This is what will happen in hundreds of cases every year where children find that they must contest decisions about their lives taken by the Home Office, education authorities and social housing providers.

By removing legal aid for welfare benefits advice to children in their own names, the Ministry of Justice believes that it will save £260,000 a year. This is at a time when there has been a complete failure to collect £1.5 billion in fines to be paid by criminals.

There can be no doubt that if a child has suffered harm because of a decision made by a public authority, and if the child is unable to challenge that decision, there will be consequences and damage to that child’s life which the rest of society and the taxpayer will ultimately pay for. We will reap what we sow.

We should remember that the ministry’s own impact assessments, published in support of the Bill, admitted that it created a risk of “increased criminality” and increased costs to other government departments and local authorities. When the Justice Select Committee in the other place asked the ministry to quantify these unintended costs it received a reply that should give us all pause for thought. The ministry’s response to the consultation on the Bill says:

“The lack of a robust evidence base means that we are unable to draw conclusions as to whether wider economic and social costs are likely to result from the programme of reform or to estimate their size”,

and that it is,

“not possible to quantify accurately these wider costs”.

In other words, we are flying blind.

The Bill asks us to support spending reductions that even its authors cannot say will ever be achieved. The legal aid budget reductions have the extremely unusual distinction of making some of the most hardened supporters of spending cuts feel very uneasy. I put myself in that category. The noble Lord, Lord Tebbit, says he fears the cuts to legal aid for children in medical negligence cases go too far. The chief executive of the TaxPayers’ Alliance, Mr Matthew Elliot, says:

“Almost everyone who has looked at these particular cuts thinks that too many of them will end up costing taxpayers more than they save”.

We must listen to the people and organisations who are going to be left to pick up the pieces if children cannot get help with their legal problems.

I would like to tell noble Lords about some of the detail as it will affect local authorities and children in immigration cases. Last year there were 2,490 immigration cases involving children in their own right. These will mainly be children who are not living with their parents, sometimes after escaping difficult family circumstances, or having been victims of trafficking. On Report in the other place, the Justice Minister said:

“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”.—[Official Report, Commons, 31/10/11; col. 689.]

So here we have a knock-on cost of the kind the ministry says that it cannot quantify accurately.

The Local Government Association, of which I am a vice-president, says:

“Transferring responsibility to councils in this manner, without consideration of the funding implications and at a time when they are already processing reductions in funding for children's services, will place resources under considerable pressure. This will have a particularly detrimental impact on the most vulnerable children who make up the largest portion of children placed in emergency or short-term care”.

The example which the Local Government Association gives of children who will be affected in this way are children who have been trafficked into the UK from other EU states, who cannot claim asylum. It is hard to think of a more desperate or vulnerable group of children. The Department for Communities and Local Government knows very well that there will be extra costs to local authority social services departments if legal aid is withdrawn from these children.

I would like to ask the Minister this evening to inform the House about the precise level of costs that will be borne by local authority social services departments, which they will then claim back from his department via the DCLG in a tangle of expensive, time-consuming and wholly avoidable red tape.

My question to the Minister and noble Lords on all sides is: how is it that we are keeping legal aid for about 35,000 cases every year involving children in their own right, but withdrawing it from 6,000 children with civil justice problems? They will all be very similar children—trusting, scared, brave and deserving of our protection. The Government have gone a long way towards maintaining civil legal aid for most children; they need move only a few steps further to protect legal aid for all of them.

[The Lord Bishop of Exeter]

My Lords, I speak as the father of a daughter with Down’s syndrome, who over the years has had to face complex welfare benefit issues. My own experience has taught me that it is not only the severely disabled for whom welfare support is complex—it can be even more so for those who suffer from a range of disabilities, each of which may in itself be classed as mild. There have been times when my daughter has been let down by the system and then, being extremely vulnerable, she has needed those able to act as advocates on her behalf.

My daughter, though, is one of the fortunate ones. She comes from a supportive family, has reasonably articulate parents and a mother who has used both her personal and professional expertise to support advocacy networks and provide advocacy support for others. What of those who do not have such resources available to them? Many of them depend for legal and procedural advice on not-for-profit agencies such as Citizens Advice. Such organisations provide essential help to ensure that disabled people have access to the benefits and support to which they are entitled, but these agencies also need support in the vital work that they do.

What Amendments 11 and 12 seek to achieve is important in providing the safety net that will enable such access and support to continue. If either were to be accepted, it would offer provisions much narrower in scope than those in existing legislation but would ensure that the resources were there for those who face both disability and, additionally, the kind of complex welfare benefits issues that arise from their disability, in order to be able to challenge decisions that adversely affected them through review, supersession or appeal.

As the noble Baroness, Lady Doocey, has pointed out, we are at a time of unprecedented upheaval in the welfare system; I see that day to day for myself. I do not criticise that; in fact I am in favour of much of that change and I understand it. Amid such wholesale change, though, with its attendant impact on the lives of some of the most vulnerable in our society, safeguarding the minimal access to legal aid in these circumstances is more important and necessary, rather than less.

I turn to Amendments 21 and 46, both of which I support. I do not add much to the weight of words that we have already heard in support of them, but I want to return to the Minister’s assurance, which has already been quoted, that as far as possible the intention of the Government is that where children are involved, legal aid will still be provided. We have also heard that on the basis of the Legal Services Commission’s data for 2009-10, around 6,000 children under 18 will no longer receive legal aid, including cases regarding immigration, welfare and education.

In that context, I return to the assurance offered by the Government that, for cases that would be excluded from the scope of legal aid, there would be a safety net in the form of the exceptional funding scheme. However, that in itself raises a number of questions. How adequately will “exceptional” be defined? Will it be driven by need or by available funding? Will there be rights of appeal? What will its real impact be?

We have heard how the Children’s Society estimates that just over 4,000 cases for under-18s will be excluded from scope and not receive exceptional funding, yet, according to the Government’s own estimates, ensuring that all children under 18 had access to legal help and, crucially, representation would cost just £10 million—a relatively small cost for a very great gain. However, if legal aid is not to be available in these circumstances, where exactly are alternative sources of funding to come from?