Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Wednesday 18th January 2012 Lords Chamber

[Lord Macdonald of River Glaven]

One can imagine a category of abuse that is primarily financial. Of course, it could carry in its train some of the other features that the noble and learned Lord has alluded to, but it adds something to the definition of domestic violence. We all know that financial power is an important aspect of the power relationship that can exist between men and women, particularly, as he indicates, women who are being abused in other ways. My view is that the adjective “financial” is an important part of the realistic and modern definition of what can cause and amount to domestic violence.

I have a major problem with an approach that risks rolling back decades of progress in our understanding of a crime that is an absolute scourge, not least in the way that it condemns so many of the children who live with it to disordered and chaotic later lives of their own. Talking of cost, that brings its own very high cost, which all of us have to pay. We must have a system of legal aid that works properly to protect the victims of domestic abuse, understanding that it is money well spent. We must have a Bill with the modern definition of that crime and including provision for those who may be too scared or desperate to call the police. As we all understand, domestic violence brings a cycle of damage and despair that is deeply destructive and anti-social. No Government should ever find themselves on the wrong side of this argument.

[Lord Carlile of Berriew]

My Lords, I support these amendments. I will particularly refer to Amendment 46. It seems to me that sub-paragraphs (g) (j) and (k) are particularly important. They relate to the less formal types of evidence as opposed to court convictions and the like. These amendments have been eloquently and accurately spoken to by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Macdonald, and I do not want to add too much, apart from a couple of examples. Before I give them, I shall make a point of principle. From my experience as a legal practitioner, it is clear to me that the earlier legal aid is given for the earliest possible intervention, the least harm is likely to be done. I urge the Government to accept that as a very sound principle. I will now give my two illustrations that lead me to that principle.

On one occasion many years ago, when I still practised family law, I was asked to obtain an injunction for a lady from a small town in rural Wales. I was then practising in Chester, and the town in which she lived was about 50 miles west of Chester. She had been driven by various forms of abuse by her husband, some financial—the deprivation of money for daily expenditure for herself and the children, so she could not even buy the children shoes—some emotional and some physical, eventually to go to that daunting place, the local solicitor’s office on the high street. The great solicitor Mr Jones—and he really was called Mr Jones—decided to apply for an injunction, and I was instructed.

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I turn to Amendments—

[Lord Carlile of Berriew]

Before my noble friend moves on from that point, can he go a little further in answering the issue raised by the noble and learned Baroness, Lady Butler-Sloss, about cross-examination? Yes, of course the judge has power to limit inappropriate cross-examination, but the judge cannot prevent the person concerned putting their case, and putting it fully and properly. That is the issue that the noble and learned Baroness is trying to deal with. It is in that situation that the allegedly abused person faces real anguish, and in which the protection of the judge is but a very small instrument.

[Lord McNally]

I will take this back but, again, I am speaking as a layman to professionals. As far as I understand it, there are increasingly ways in the courts of preventing that kind of face-to-face, aggressive cross-examination. I think that there was a case recently which caused a good deal of public comment and distress. I will take the matter away and take further advice but, as I say, both my impression as a layman and the advice that I have are that there are safeguards to prevent that kind of brutal, face-to-face, intimidating cross-examination. I hear what my noble friend says and I will take further advice on the matter.

I turn to Amendments 43, 44, 45, 46 and 48 and start by reiterating why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid as it stands is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary relief applications to divide family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend some extra £10 million a year on mediation, taking the total to £25 million a year.

We accept, however, that mediation might not be suitable in every case—particularly, as we made clear, in cases involving domestic violence. It is important to remember that the inclusion of this provision is to ensure that legal aid remains available for private family law cases where there is evidence of domestic violence, creating a disadvantage for one party, and cases where a child is at risk of abuse.

Amendments 44 and 45 would put in paragraph 10 of Schedule 1 to the Bill, in place of the existing definition of abuse, parts of the definition of domestic violence first used by the Association of Chief Police Officers but subsequently more widely adopted for operational purposes—although not, it should be noted, by the courts. The existing definition of abuse used in the Bill is a broad and comprehensive one, having been drafted deliberately and explicitly so as not to be limited to physical violence. It should be noted that it is used elsewhere in Schedule 1: in paragraph 3, which provides for legal aid to be available in relation to the abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse.

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Moved by

[Lord Carlile of Berriew]

54: Schedule 1, page 125, line 38, leave out “paragraph 15” and insert “paragraphs 1 to 5, 8 and 15”

[Lord Carlile of Berriew]

My Lords, the amendment stands in my name and that of other noble Lords. I should make it clear that I shall speak specifically to Amendment 54 and not to the other amendments in this group, which I shall leave to others. Amendment 54 relates to paragraph 17 of Schedule 1 and deals with judicial review. This is an amendment on which the background work has been done by the Bar Council. I should declare an interest as an elected member of the Bar Council—despite that, I agree with it concerning this amendment.

I welcome the Government’s proposal generally to retain public funding for judicial review claims. Judicial review claims are an important part of the rule of law. They are all subject to an important qualification, which is the requirement to obtain the permission of the court for the claim to be pursued. That is not a light procedure. Your Lordships should know that when an application is made for permission for judicial review it goes through quite rigorous stages. The first stage is for the papers to be placed before a High Court judge or a deputy High Court judge—I do from time to time carry out the latter function in judicial review—where they are considered in full. In the great majority of cases, probably in about 95 per cent or possibly more, permission to apply for judicial review is refused at the papers stage. So the permission stage is quite a formidable hurdle. If permission for judicial review is refused, the matter can go for an oral hearing and there are stages thereafter. So this is quite a difficult procedure for potential claimants. It is not easy to be able to bring a case for judicial review.

However, paragraph 17 as drafted causes a difficulty which I and others are anxious to resolve and which may have arisen through inadvertence in drafting. Some of the most important judicial review cases brought in recent years have concerned the way in which public bodies have acted in relation to events giving rise to, or in the aftermath of, death or serious injury. Many of those cases have enjoyed or suffered a large amount of publicity and, indeed, debates in this House and another place. Other significant cases have concerned the exercising of powers enabling a body to seize goods or to enter land—again, a considerable intrusion with the rights of citizens on the face of it. The grounds on which the courts may grant remedies in judicial review are a signal of the excellence of our legal system. I see the noble and learned Lord, Lord Woolf, in his place and he has more experience than most, both at the Bar and on the Bench, in seeing judicial review developing the law in a way that I hope he would agree has become the envy of the world. The public body concerned in judicial review cases is either a statutory body that is alleged to have acted beyond or contrary to its powers, or a Minister or other Crown body exercising some statutory function, or occasionally other bodies that are like public bodies.

The Bar Council and I are concerned that the current drafting of Schedule 1 fails to make it clear that the relationship between paragraph 17 and the exclusions in Part 2 of Schedule 1 leave a fair and level playing field. A number of the exclusions in Part 2, including paragraph 8, which refers to “breach of statutory duty”, could on the face of it remove the scope of legal aid from a wide range of claims for judicial review. The following are examples that may be excluded. A challenge to a decision by a public authority to demolish private property, for example as part of a planning procedure, would be excluded, as would a judicial review to enforce the performance of a statutory duty such as housing a homeless child under the Children Act—I can tell the Committee that such applications are very frequent leave claims, at least permission claims in judicial review. A challenge to a hospital that refused to provide emergency life-saving treatment would be excluded—such claims sometimes arise in relation to elderly people or even in relation to people to whom treatment is denied because, for example, of a history of smoking. Also excluded would be a judicial review into a decision not to hold an inquiry into the violent killing of a young offender. Those are all examples of cases of real importance.

I hope that the Minister will say either that the intention is not to exclude any of those categories, as a statement to that effect would be of great utility in the event of ambiguity being perceived by the courts in such matters, or that he will say, preferably, that as there may be some ambiguity, the Government wish to clarify the matter by producing their own amendment for Report so that there is no lack of clarity or ambiguity. The simple way of doing that would be to remove any doubt by disapplying the exclusions in paragraphs 1 to 5 and 8 of Part 2. This is an important matter. I do not propose at this stage to spend more time on it because I hope that we will hear a helpful response from my noble and learned friend. I beg to move.

[Lord Thomas of Gresford]

My Lords, I speak to Amendments 55 to 59 which are in my name and that of other noble Lords. I recall when I first started as a lawyer there were some 400 to 500 certiorari applications every year. It was a very limited field but under the guidance of the noble and learned Lord, Lord Woolf, and others, the field of judicial review has expanded very considerably.

However, there is a problem. Unmeritorious claims are undoubtedly brought before the court in immigration cases, which take up a great deal of time but are not ever going to get a full hearing in any event. Attempts have been made to curb this, and it is a provision now that only certified people can give immigration advice and representation. It is regulated so that only solicitors, barristers, legal executives and those in a scheme run by the Office of the Immigration Services Commissioner are permitted to give immigration advice and representation in the course of a business. A voluntary agency or charity cannot unless it complies with certain requirements of the Immigration Services Commissioner. Despite all that, these claims are still brought. Some 70 to 80 per cent of immigration judicial review applications are not brought with legal aid, because in order to get legal aid at all there is a merits test, which the particular application has to pass before a solicitor is entitled to take the case forward.

The purpose of Amendment 55, which I have put forward, is to keep the scope of judicial review as it is under paragraph 17 but to remove the restrictions on immigration cases that are set out in sub-paragraphs (5) to (7). The immigration-specific exclusions that are now contained in that paragraph were not part of the original consultation. When the consultation was first put forward in November 2011, the Government said, quite robustly, that they regarded judicial review as a particular priority because:

“These proceedings … represent a crucial way of ensuring that state power is exercised responsibly”.

In their response to the consultation, the Government said, in relation to unmeritorious judicial review applications, that:

“The current criteria governing the granting of legal aid in individual cases would generally preclude such funding”.

So, on the one hand the Government are saying that they think judicial review is very important in making sure that the UK Border Agency acts properly, and on the other hand they are saying that the granting of legal aid will require the passing of the merits test, which will generally preclude such funding. That was their attitude then; however, when they produced the Bill, they excluded these cases, which they acknowledge are crucial to ensuring the responsible exercise of state power. I am looking to hear an explanation from the Minister of why, between the consultation and the publication of the Bill, it was thought necessary to exclude immigration cases in that way.

Amendment 59 is intended to retain legal aid for an immigration judicial review where a previous appeal or judicial review has been successful or has not been brought with legal aid. Under the Bill, a previous appeal or judicial review proceedings will prevent or exclude legal aid for any subsequent immigration judicial review applications—whatever the merit of subsequent applications and whatever the result in the previous appeal or judicial review proceedings. Whether the earlier proceedings were successful, or whether the UK Border Agency has failed to act on the previous decision or it is flouting the decision, it is not possible to have legal aid to bring a second judicial review. The Bill will remove legal aid generally for all non-asylum immigration matters. This means that those unable to pay for legal advice and representation will in immigration cases not be able to obtain legal aid for advice about their immigration situation or representation in dealing with the UK Border Agency or any immigration appeal. The immigration-specific exclusions relating to judicial review effectively ensure that those affected cannot have any legal aid at any stage of the immigration process. As I have already said to your Lordships, immigration is a problem, and it is brought forward in unmeritorious cases, generally without legal aid backing it. But now not even in the meritorious cases will legal aid be granted.

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[Lord Wallace of Tankerness]

My Lords, we have come to an important part of Schedule 1, relating generally to immigration, asylum, removal directions and judicial review, although the amendment moved by my noble friend Lord Carlile of Berriew was of much more general application to judicial review, which is an important part of our legal system, as he very clearly and eloquently set out. Amendment 54 seeks to disapply certain exclusions set out in Part 2 of the Bill for judicial review claims. It would appear to be aimed at ensuring that funding for judicial review is available for judicial reviews concerning, for example, breaches of statutory duty.

Our position is that we believe the amendment largely to be unnecessary, because the exclusions at paragraphs 1, 2, 3, 4, 5 and 8 of Part 2 of Schedule 1 are not intended to prevent funding for judicial review. Rather, the exclusions are intended to prevent the funding of, for example, tortious causes of action, typically for damages. While I hope that that would reassure, perhaps I can follow it by making it clear that our intention is to retain legal aid for most judicial review claims, including those relating to personal injury or death and breach of a statutory duty. I assure the Committee, and indeed my noble friend, that because we have obviously had representations on this point, we are actively and seriously considering whether in the light of this amendment and the points which my noble friend has made in moving it, we need to bring forward amendments of our own to clarify the position and to give proper effect to the intention.

[Lord Carlile of Berriew]

I am most grateful to my noble and learned friend. He has been extremely helpful. Can he clarify one point? Sometimes when judicial review claims are brought there is included in the claim a claim for damages, which can be awarded under judicial review. I take it from what he said that if a claim for damages is part of a judicial review, that part of the claim would also have legal aid available to it. It is one legal aid order.

[Lord Wallace of Tankerness]

This is quite important. As my noble friend will recognise, the overall structure of what is proposed to be in scope does not provide for legal aid for damages. However, I recognise what he says about damages being part of an overall judicial review claim. It is important that we look at this and ensure that what appears in the Bill delivers the intention. I am sure that we will return to this matter on Report.

My noble friend Lord Thomas of Gresford spoke to Amendments 55 to 59, which concern the exclusions from legal aid which we have made for some immigration judicial reviews. Before I turn to the specific amendments, it might be helpful if I briefly remind the Committee of the Government’s reasoning on this matter. My noble friend raised the question of the lack of consultation—as did the noble Lord, Lord Bach, who I am delighted to engage with again at the Dispatch Box. I think that the last time we did so was in the debate on the fixed-term Parliaments legislation. It has been six months but seems like a year.

My noble friend and the noble Lord raised the question of a lack of consultation. However, in response to our consultation on legal aid the Judges’ Council of England and Wales highlighted the large number of immigration judicial reviews that were without merit. That point was raised in the consultation and my noble friend has accepted in speaking to his amendments that there are a number of unmeritorious cases taking up time. This change was made against that background. Although only a minority of those cases would currently receive legal aid, the Government’s view is nevertheless that it is wrong in principle for such cases to remain within the scope of funding. We are therefore seeking to remove two classes of immigration judicial review from the scope of legal aid, again subject to certain exceptions which I will come on to discuss.

The noble Lord, Lord Bach, asked whether I would double-check the figures on taking these parts of judicial review out of scope. Of course we will double-check them, and if there is further information we will make it available not only to the noble Lord but to all those participating in our proceedings.

The first category of case that we seek to exclude is one where there has already been at least one appeal before the tribunal or another judicial review within the past year on the same or a substantially similar issue. The second category concerns judicial reviews of removal directions rather than the underlying immigration decision. Such proceedings are often brought at the last minute—sometimes literally as people are being put on to a plane. We recognise that there will be some genuine, if unusual, cases within these categories that could still warrant legal aid. That is why we have made exceptions to our proposed exclusions—if the Committee will bear with the double negatives, which seem to be quite frequent in this part of the Bill. These are intended to take into account the potential for changes in an individual’s circumstances over time. In both categories, the exclusion is subject to a one-year time limit. We have also made exceptions for judicial reviews of decisions by the Home Office to certify under Section 94 or Section 96 of the Nationality, Immigration and Asylum Act 2002. These provisions curtail asylum appeal rights in certain circumstances and so maintaining legal aid for a potential judicial review is, we believe, an important safeguard.

We are therefore keeping judicial reviews of a decision by the Home Office to refuse to treat further submissions as a fresh claim for asylum. Again, this maintains the availability of legal aid for judicial review asylum cases where there may not have been an appeal to the tribunal. It has been suggested that most types of immigration cases will not be able to get legal aid, but most types of immigration judicial review will still be in scope. The provisions in the Bill remove only two relatively limited types of judicial review, and even these provisions are subject to the exceptions that I have outlined.

On the specific amendments spoken to by my noble friend Lord Thomas, Amendment 55 seeks to keep all immigration judicial reviews within the scope of legal aid. From what I have said, noble Lords will see why the Government do not agree with that amendment.

Amendments 56 and 57 relate to the operation of the exclusion of judicial reviews on removal directions. The Government seek to exclude judicial reviews of removal directions from the scope of legal aid because there will already have been a chance to appeal the underlying decision. More specifically, Amendment 56 would in effect retain legal aid for these judicial reviews in circumstances where there had been no appeal of the original underlying decision, or at least no appeal before the removal had been effected.

It is true that some decisions to remove can be challenged only by appeal from overseas, as Parliament decided. While judicial review can still be used as a means of challenging this, it does not follow that legal aid should be available in all these cases. As I explained earlier, in asylum cases where there is no right of appeal or where, as in Section 94 cases, any right of appeal arises only outside the UK, legal aid will remain available for judicial review. However, we believe that choosing not to exercise this appeal right should not bring someone within the scope of legal aid.

Amendment 57 raises a technical point, as my noble friend recognised. It is based on the belief that the provision around the “leave to appeal” in paragraph 17(6)(b) is unnecessary because there is no provision to appeal to the First-tier Tribunal in these cases. However, there is a leave-to-appeal stage to the Upper Tribunal, so we think that the current drafting is sound, albeit that this is a very fine technical point.

The intention of Amendment 58, as I understand it and as was stated by my noble friend, is to avoid a potential definitional problem to do with the meaning of asylum across the 1951 refugee convention, the EU procedures directive and the qualification directive. Again, it is recognised that this is technical but of course important, and it is about the definition of protection cases—that is, non-refugee convention cases.

The Government understand the concerns but on balance we think that they are misplaced. Our view is that the reference in paragraph 17(7)(a) of Schedule 1 to an asylum application within the meaning of the EU procedures directive is sufficient to cover all applications for international protection. I am happy to put it on the record that that is our intention. However, the amendment goes further than the Government intend; it seems to provide legal aid in all judicial reviews connected with asylum matters, not just those where there has been no previous opportunity to appeal. I believe that it would be wrong to retain legal aid for judicial review cases that are very likely to be without merit, regardless of whether they are asylum cases. Nevertheless, I express my appreciation to my noble friend for raising this issue and regarding the specific points that he made, we will certainly look at whether anything further is required here.

Amendment 59 seeks to add two further exceptions to the exclusions. The first is to make an exception for cases that have not previously benefited from legal aid. I understand the logic: without legal assistance, someone may not have put the right arguments forward first time around, so when it comes to potential judicial review, should they not have legal aid to ensure that they get it right? Our response is that if legal assistance means that they can put new arguments forward—sufficiently new that the court or tribunal is considering a different issue—they would still be eligible for legal aid for the judicial review. This is because exclusion applies only where the judicial review is in respect of the same or substantially similar issue. However, if they are still raising the same or substantially similar issue, even with the potential benefit of a lawyer, we do not believe that they should be eligible for legal aid.

The second exception, as sought by Amendment 59, relates to cases where the appellants have been successful in their previous appeal for judicial review. We think that there is an issue here and we will certainly look at that.

I hope that we have given a satisfactory explanation. This is a technical matter but I do not for a moment deny that these are serious issues. In asking my noble friend Lord Carlile to withdraw the amendment in the light of the assurances that I have given, let me give him a further assurance. He asked whether judicial review funding would cover the damages remedy sought through the judicial review, and the answer is yes. If we can find the right words, we will give proper effect to our intention.

[Lord Thomas of Gresford]

Before my noble friend Lord Carlile replies regarding his amendment, I thank the Minister for his reply to my amendments, which raised difficult technical points. I hope that he will forgive me if I read what he has said with some care, as no doubt he will read the whole debate with some care. I look forward to seeing what technical amendments he may feel are necessary to deal with the points that I raised. I am also grateful to him for the assurances that he has given, certainly in relation to part of the amendments.

[Lord Carlile of Berriew]

My Lords, in relation to Amendment 54, I am grateful for the explicit support from the noble Lord, Lord Bach, on the opposition Front Bench. So far as my noble and learned friend’s response is concerned, as he spoke, I reminded myself that when I was a young man and he was a very young man, we shared a flat for a period within the Division Bell area. When you have shared a kitchen with someone, albeit one in which the most used utensil was the corkscrew, you get to know who you can trust. I entirely trust my noble and learned friend and always have done. I am extremely grateful for his assurances; he answered very fully the concerns that I and the Bar Council felt about this issue. I look forward to returning to the matter on Report, with those assurances intact and enhanced. In the circumstances, I beg leave to withdraw the amendment.

Amendment 54 withdrawn.