Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Monday 16th January 2012 Lords Chamber

We must not turn our backs on the most vulnerable in our society—those without a voice and those who will most certainly be fundamentally affected. The proposals laid out in the Bill will do just that if the right safeguards are not put in place to protect children’s well-being. I hope that the Government will secure protection for this highly vulnerable group by ensuring that when children are involved, legal aid will continue to be provided. Finally, I leave my noble friend the Minister with this thought. Research shows that children in Britain are considered to be some of the most unhappy in the world. I plead with the Minister: let us not compound this. Please accept this amendment.

[Lord Howarth of Newport]

I have a number of anxieties about the impact of the Government’s proposals on children in painful and difficult situations. If the Minister can reassure me that my anxieties are misplaced I shall be more than pleased. However, I suspect that they are valid and that a number of amendments in this large group would be helpful.

First, I am concerned about inequality of arms. Wealthy people will be able to go to court armed with their lawyers while people on modest incomes will not. They will therefore appear either as litigants in person or cave in and be defeated because they lack the legal advice and support that would allow their case to be heard on a fair basis. Secondly, legal aid is to be confined to cases of physical or sexual assault. Surely that is too narrow. It will leave unhappy children in inappropriate residential and contact arrangements, split off perhaps from siblings and grandparents. We should surely widen the range of circumstances in which legal aid is available in support of children in those situations.

Thirdly, I think that there will be a perverse incentive. If an allegation of abuse would be a gateway to legal aid, some parents may be tempted to up the ante. In particular, we should be concerned that there may be cases where there has been some violence during the breakdown of the marriage or relationship but there is not a longstanding history of violence and there is no persuasive reason to suppose that there would be patterns of violence in the future; the violence has been generated by the crisis in the failure of the relationship. I do not think that it is in children’s interests that contact arrangements should be determined by such a factor. Of course, it will increase the private law workload of CAFCASS.

Fourthly, there is possibly another perverse incentive if a trigger for legal aid is to be the existence of a formal child protection plan. Some parents may be tempted to allege child maltreatment when other forms of help would be more appropriate and better for the children. Clogging up the child protection system could be disastrous. Again, more private law cases could spin over to the children’s social care workload which is already staggering following the Baby P case and will be under immense pressure with the cuts to come. There will be more formal child protection investigations and more case conferences, often when a more consensual approach would be more in the interests of the child. I fear that there will be increased and prolonged bitterness between parents.

Finally, while the Bill does not propose changes to legal aid for children and parents involved in public law care, clogging up the system with private law cases and litigants in person will have an adverse effect on the speedy resolution of such cases in the courts. That will be harmful, particularly to young children for whom it is very important to have a speedy return to permanent family arrangements, whether with parents, relatives or adopters.

[Baroness Eaton]

My Lords, I rise to speak to Amendment 34 standing in my name and the names of my noble friends Lord Newton of Braintree and Lord Cormack and the noble and learned Baroness, Lady Butler-Sloss.

The reductions to the provision of legal aid as proposed in the Bill will leave 40,000 children and 69,000 18 to 24 year-olds struggling with serious legal problems relating to employment, education, welfare benefits, homelessness and debt. Children and young people affected by these changes are among the most vulnerable in our society, with 80 per cent, as we have already heard from the noble Baroness, Lady Benjamin, of young people reporting civil legal problems also facing challenges and great disadvantages.

The cost of legal aid for children is small compared with the total amount spent on legal aid. The cost of fully protecting all children up to the age of 18 from the cuts to legal aid would be £10 million, which is the equivalent to the cost of imprisoning just 71 young offenders. For young people aged 18 to 24, the cost is £40 million, less than half the weekly cost of youth unemployment. The cost of not providing appropriate legal advice is far greater. We know that when young people do not get advice their problems increase. There are well researched links between civil legal problems and crime. Many young people who have been arrested have higher levels of housing problems, debt and benefit problems, all of which are key factors influencing reoffending. Fifty-five per cent of 16 to 24 year-olds arrested were experiencing at least one difficult to solve civil justice problem.

There is substantial evidence of an adverse impact of legal problems on young people’s mental and emotional health, with 34 per cent of 18 to 24 year-olds not in employment, education or training reporting stress-related illness as a result, and more than one-third going on to use National Health Service services. Citizens Advice estimates, as we have heard before, that for every £1 saved by the removal of legal aid, the Government will spend £8 dealing with the social, judicial and health issues that will result.

Recent figures from the Ministry of Justice give a breakdown of the types of cases for which children and young people use legal aid to help deal with their problems. The top four legal issues for children and young people are debt, housing and welfare benefits, asylum and immigration. Help with legal representation is most often given for housing, immigration and clinical negligence. Eighty per cent of young people reporting legal problems also face other disadvantages, including sole parenthood, having a mental health issue, being a victim of crime, or exclusion from education, employment and training.

It is disturbing to note that many children and young people in the United Kingdom meet the criteria for vulnerability. Thirty per cent of households headed by a 16 to 24 year-old live in poverty and 36 per cent of people presenting as homeless in the three months January to March 2011 were aged 16 to 24. The latest unemployment figures show that 20.2 per cent of 16 to 24 year-olds are unemployed. In 2010 approximately 225,000 young people aged 16 to 24 lived alone.

These are very serious issues for society. We have to ask why so many young people are in such a vulnerable position. However, for us today the issue is to recognise the needs that these children have and the help that legal aid can give in enabling them to turn their lives around. The Government’s proposals will remove from the scope of legal aid most cases concerning education, including disputes about exclusion, school closure issues, bullying cases, disputes about poor educational standards, disputes about grants and loans, and cases about choice of school. Only education cases involving discrimination and special educational needs will qualify for legal aid support but then only for telephone advice.

These plans will leave 29 per cent of children who are currently represented in their educational needs cases without legal representation in court. Pupils with special educational needs are eight times more likely to be excluded permanently or for a fixed period than other children. There is a strong correlation between exclusion from schooling and falling foul of the criminal justice system. Removing legal aid support that enables children to challenge exclusion may have more children turning to crime, which would lead to future youth justice costs for the Government.

I fully appreciate the Government’s desire to reduce the UK deficit, but in order for any savings to contribute to this reduction, the reforms must not generate consequential costs or the shunting of costs to other government departments. The Justice Select Committee in another place reported that the magnitude of these knock-on costs had not been estimated. I sincerely hope that, on the basis that these proposed savings of £270 million from the legal aid budget will not achieve the aim of reducing costs, the Minister will consider seriously the effect of proposed savings on the vulnerable children involved and the additional cost to the public purse of implementing the changes unamended.

--- Later in debate ---

[Lord McNally]

Of course, having listened to a debate dominated by what I acknowledge is a great deal of expertise and experience in this area, I will go away to ponder and think about what has been said, and discuss it with my right honourable friend the Lord Chancellor. At this time of night, like the noble Baroness I think it is better if I put on the record our approach and we can then resume on Wednesday.

Amendments 33, 34, 39, 40, 41, 51, 52, 79B, 80, 80A, 82A, 82B and 82C all concern legal aid for children and young people, or people with dependent children. Others refer to the use of mediation in family cases. While—as I have said—I acknowledge the expertise and experience on display today, and while I understand what motivates these amendments, I ask the House in turn to acknowledge the economic realities behind the difficult decisions that we have been forced to take.

As the House is well aware, the Government’s approach has been to look at every area of law where legal aid is provided, and to consider whether it should continue, and in what form. In developing our proposals, we have considered carefully a number of factors, including: the importance and complexity of the issue; the litigant’s ability to present their own case; the availability of alternative sources of funding; and the availability of other routes to resolution. We have used these factors to prioritise funding so that civil legal services will be available in the highest priority cases; for example, where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or for domestic violence remedies, or where children may be taken into care.

A number of noble Lords have drawn inferences that this is a cruel and uncaring Government; as the noble Lord, Lord Alton, said, a government for the sharp elbowed. Let me just put on record at this stage and remind noble Lords that even after our reforms are in place we will still be spending £120 million of funding per year for private family law, including domestic violence; an extra £10 million per year on mediation; £50 million on categories of social welfare law; £6 million on clinical negligence; and £2 million on education. That is why I sometimes bridle at suggestions that we are destroying the legal aid system. We are trying to manage an overall cut in legal aid that will still leave us with—as I have said before—one of the most generous legal aid systems in the world.

Amendment 33 applies to all civil and family proceedings, and seeks to bring into scope civil legal services for many areas of law that are excluded where the individual has a child who is dependent on them. The intention appears to be that this group of people should receive civil legal services because of the potential impact on their children of the withdrawal of legal aid. The amendment would retain funding across the board for people with dependent children, without regard to the relative priority and alternative methods of resolving disputes, and would lose the bulk of the £170 million of annual savings, as most family law cases involve a respondent or applicant who has dependent children. It would also significantly impact on the £110 million saving in other areas of civil law. We have not sought simply to retain legal aid for any case where the individual has a child. Doing so would mean expending limited funds on a range of cases: some important, some not as important and some where alternative ways of resolving the dispute would be preferable. Therefore, I hope that noble Lords will not press the amendment.

Amendment 79B would bring all civil non-family matters within scope for children, with the exception of work relating to breach of a statutory duty, the making of wills, trust law and business cases. Amendment 82C seeks to bring into scope civil legal services covering welfare benefits, debt, housing and employment for those aged 24 or under or who are represented by a legal guardian. Amendment 82B seeks to bring into scope civil legal services in relation to advice and proceedings where the person is a care leaver under the age of 21 in wide-ranging civil and family areas specified in the amendment. Amendment 79B would mean that nearly all civil cases would be brought into scope if the applicant were a child. It is worth making it absolutely clear that in civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s litigation friend rather than by the child themselves. This accords with the normal rules of civil litigation. The civil justice system as a whole does not generally require children to act on their own behalf.

I turn now to the rest of the amendments in the group. Providing blanket funding for all cases where the child or young person is the applicant would be costly, unnecessary and might create perverse incentives for parents to attempt to bring civil litigation in their children's name purely to secure funding in otherwise out-of-scope areas of law. The Government recognise the importance of funding in a range of cases where children's interests are paramount. This is reflected in the decisions that we have reached. As a result we have protected funding in areas that specifically involve children. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We have also made special provision so that legal aid will be available for children who are made parties to private family proceedings.

There will also be an exceptional funding scheme that will ensure the protection of an individual's rights to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. Each case will be decided on its own facts, but in cases where Article 6 of the European Convention on Human Rights is engaged, the ability of the client to present their own case, the complexity of the issues and the importance of the issues at stake will be relevant factors when a decision is taken on whether to grant exceptional funding. Therefore, where a child brings an action without a litigation friend, this will be an important factor in deciding whether they have the ability to present their case.

Amendments 80 and 80A seek to bring into scope civil legal services for any person who is under 24 and has a disability. They include but do not limit themselves to particular areas of scope that are excluded. Amendment 82A seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 or under and has a disability or lacks mental capacity. We have considered the point that the amendment makes about legal aid for those with disabilities. The equality impact assessment published alongside the Government’s response to consultation sets out our analysis of the potential effects that the reforms may have on people sharing protected characteristics in accordance with the public sector equality duty set out in the Equality Act 2010. We have acted consistently with that duty, one requirement of which is to have due regard to the impact on groups of different ages and those with different needs, such as disabilities. While we have identified the potential for the reforms to have greater impacts on some groups, 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.

[Lord Howarth of Newport]

As this issue came up in an earlier debate, will the Minister explain to the Committee how it is that his policies that he acknowledges will have an impact on disabled people are not discriminatory and therefore legally offensive?

[Lord McNally]

They are not legally offensive. We have been honest right from the first day I answered questions. I go back again to this, which is something that the noble Lord in his many, many interventions never acknowledges. If you are making cuts in such an area that is directed at the poorer sections of society, of course, you will affect the poorer sections of society. But what will also affect the poorer sections of society is if you lose control of the economy and are forced to bring in further draconian cuts over which you have no control. We will return, as we have done, through six or seven parallel debates with the same briefings and research from the same organisations. We have a fundamental difference of opinion on how to tackle these problems. I am not even sure that the noble Lord is quite on message at least with the latest pronouncements from his Front Bench in the other place about what we are facing in these matters. I suspect that we will have further discussions on this.

The Bill contains important safeguards for children and adults who lack capacity and who require treatment for mental health issues. Paragraph 5 of Part 1 of Schedule 1 provides that legal aid may be made available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning medical treatment of patients or those who lack capacity. Furthermore, paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the mental health tribunal. Paragraph 4 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual: medical treatment, including psychological treatment; life; liberty; physical safety; the capacity to marry or enter into civil partnerships; the capacity to enter into sexual relations; or the right to family life. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for an onward appeal to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope.

As I have already mentioned, there will also be an exceptional funding scheme that will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights as well as those rights to legal aid that are directly enforceable under European Union law.

Amendment 34 applies to all civil and family proceedings. It seeks to bring into scope civil legal services for many areas of law that are excluded for any child party or child represented by legal guardian. I will address the amendment on the basis that the term “legal guardian” means the child’s guardian of the type appointed by CAFCASS. We are already retaining legal aid for child parties in family proceedings which we have prioritised. This part of the amendment is therefore unnecessary. Otherwise the amendment retains funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them.

As I said, the Government recognise the importance of funding in a range of cases where children’s interests are paramount. That is reflected in the final decisions we have reached. As a result, we have protected funding in areas that specifically involve children. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings.