Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019

Lord Marks of Henley-on-Thames Excerpts

Tuesday 1st October 2019 Lords Chamber

It is very important to have a commitment from the Government to introduce a presumption—the word “presumption” is very important—that care leavers will receive exceptional case funding. Can the Minister give this House that assurance, using that rather precise term? It is not good enough to somehow suggest that we would like to think that children leaving care will have access to legal aid. Related to this question, can the Minister confirm that the right to exceptional case funding will not be affected if we leave the European Union? The Government’s Explanatory Memorandum notes that in Section 10 of LASPO, exceptional case funding will be granted where a failure to grant it would breach the individual’s human rights under the European Convention on Human Rights or another enforceable EU right. I hope that the Minister can reassure me that care leavers will be entitled to ECF and that this right will not be affected if we leave the EU.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I, too, welcome this order and thank the Minister for introducing and explaining it. I also welcome the comments made initially by the noble Earl, Lord Listowel, regarding the position of care leavers and new adults, those points being echoed by the right reverend Prelate the Bishop of Newcastle and the noble Baroness, Lady Meacher.

As the noble Baroness, Lady Meacher, pointed out, the credit for this SI is due to the Children’s Society, for the judicial review it brought last year challenging the lawfulness of the exclusion of legal aid in these cases. Credit is also due to members of the Refugee and Migrant Children’s Consortium, who worked with the Children’s Society and the Government to ensure that this SI came into being, making good on the Government’s promise, given by Lucy Frazer MP, which was the basis on which the Government settled the Children’s Society’s case.

I can do no better in summarising the existing position and the reason for change than to quote from the statement of facts and grounds submitted by the Children’s Society’s legal team, led by Paul Bowen QC, with the consent of Mr Bowen:

He says:

“Where such children are involved in non-asylum immigration matters, with the very limited exceptions, these matters are currently considered ‘out of scope’ for the purposes of Section 9 of LASPO, and so will only be funded if an Exceptional Case Funding … determination has been made pursuant to Section 10 of LASPO.


These children are among the most vulnerable individuals in the country. They are at a heightened risk of abuse and exploitation as a result of their immigration status. The potential immigration processes and proceedings they face in an attempt to regularise their status in the UK are extremely complex. The consequences for these children if they do not or are unable to negotiate these processes and/or proceedings are fundamental and life-changing, ranging from a lack of access to further education, social services and healthcare to deportation. They have a consequent need for legal advice and assistance. That need is not currently being met by the ECF system nor by any other means. This is unlawful for the reasons summarized in the argument”.


The Children’s Society rightly claims that it securing this change was,

“a significant achievement as so far it is the only cohort the government has agreed to bring back into scope for legal aid”.

It wrote that:

“The change all our supporters and partners helped bring about will have huge implications for thousands of children who need this vital support”—


I repeat the point made by the noble Baroness, Lady Meacher, about the numbers affected—and that:

“It will ensure they can once again access the legal aid they so desperately need to live full and settled lives”.


I also quote from paragraphs 34 and 35 of the Government’s impact assessment, which state that:

“Separated migrant children have distinct vulnerabilities and needs, which can be made worse by uncertainty in their immigration status. This includes the risk of going missing from local authority care, and being subject to exploitation in private foster care arrangements. Further, if children do not resolve their immigration status during childhood, they can become ineligible for certain public services (like being able to work, find housing or continue with education) when they turn 18 … It is expected that professional legal advice from legal aid immigration solicitors on non-asylum immigration matters will help to ensure more robust initial decision making because the original application should make the best possible case, improving the quality of applications and appeals to the Home Office”.


This case is absolutely overwhelming, so the Government must acknowledge that this change was long overdue and that the litigation should never have been contested, as it was for some time.

In welcoming this SI unreservedly, I remind the House that it is significant that this crucial reform was forced on the Government by judicial review. The review involved the courts considering a decision on judicial review as to whether the power in Section 9(2) of the LASPO Act should be used so as to bring unaccompanied and separated children’s immigration cases into the scope of LASPO. I also remind the House and the Government that the LASPO Act includes the power to bring claims of different types back within scope. That was a power for which we argued before the Act was enacted.

As we now know, the LASPO Act has caused great hardship in denying legal aid to a number of vulnerable groups, who cannot afford legal advice or representation and are left unable to understand or take advantage of their legal rights and protections without it. We have argued for restoration within the scope of legal aid of much social welfare law, more housing law and more cases of debt, for easier access to legal aid in domestic violence cases and for a wider exceptional case funding scheme. I hope that with the precedent of this statutory instrument, itself of limited but very important application, we may see an approach to the scope of legal aid more generally that is fairer, more generous and more progressive.

[Baroness Smith of Basildon (Lab)]

My Lords, like others, I unreservedly and wholeheartedly support the order before us today. However, I have to say that the congratulations should go not to the Minister but to the Children’s Society. The noble Lord, Lord Marks, the noble Baroness, Lady Meacher, and the right reverend Prelate the Bishop of Newcastle made similar comments. I was pleased to see the Government recognise this in their impact assessment, which refers to the justification of their preferred option going forward:

“In order to meet the commitments made following litigation”.


It is quite clear there and later on, in paragraph 4, why these have been brought forward:

“Following litigation from The Children’s Society, the government agreed to bring civil legal services for separated migrant children’s non-asylum immigration matters back within the scope of the legal aid scheme”.


It should never have been taken out of the scheme.

It is in some ways an embarrassing—but I can tell that the Minister was not embarrassed—U-turn for the Government. We cannot hold the Minister responsible in this case for having found that he was wrong on this issue because it was before the noble and learned Lord entered your Lordships’ House. Some of us will recall what were at the time very heated, at times unpleasant, debates during this legislation. It was coalition government legislation. Numerous votes took place. It was one of those Acts that many of us found very difficult. I am pleased to see that we are now addressing some of the injustices that were taken forward at that point.

To have taken legal aid away from some of the most vulnerable people—this was not the only case. I remember going home one evening extraordinarily upset because the Government had taken away legal aid from women who were victims of domestic violence. It was taken away from women who were contesting child custody cases as well. There were a lot of injustices, and I welcome the fact that this is one injustice that is being corrected. I hope we shall see many more.

The Minister already has a number of questions to address. Do the Government have any idea how many children have been affected negatively by losing the right to legal aid? It would be helpful to know how many got exceptional case funding. I think there were a few instances of that. How many children may have been deported because they were unable to get legal aid? How many children went missing from care because they were unable to get the support they needed? I think those are the kinds of figures the Government need to provide to fully understand the impact the legislation had at this time.

Does the Minister know how many separated migrant children are in local authority care, and could be expected to benefit from the change? I think that the noble Earl, Earl Listowel, and the right reverend Prelate the Bishop of Newcastle made very powerful points about the position of children when they turn 18. This is a problem for any care leaver, but I think it is particularly relevant to separated migrant children.

The Children’s Society estimates that there are 144,000 undocumented migrant children living in England and Wales. The Government obviously have a responsibility now to make this change known to those children. How is this possible? What plans do the Government have to ensure that those who can benefit from this change will know about it?

There is a welcome point in the order, that, if there is a case going through, and a child turns 18 during the process of that application, they will continue to get legal aid until that application has been completed. I am looking at the Minister to see whether or not he understands the point I am making—he does. That is welcome, I am grateful for that, but if that separated migrant child is reunited with a relative during the process of that application, will the case be able to continue with legal aid?

This year is the 70th anniversary of legal aid, something that we in the Labour Party are very proud of, but the Government have been rather quiet during the anniversary. I think it would be a welcome opportunity to have a look back at other provisions in this legislation and see what other injustices have been done. This one has been a long, hard fight. I pay enormous tribute to the Children’s Society and other children’s charities which have ensured that this change has come about, but perhaps there is an opportunity now to look at other injustices in the legislation and see what more can be done, particularly with the spending commitments being made by the Conservative Party this week. This is a real opportunity to see whether we can address further injustices.