Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Ramsbotham Excerpts

Wednesday 18th January 2012 Lords Chamber

Moved by

[Lord Ramsbotham]

60: Schedule 1, page 127, line 33, after “deliberate” insert “, unlawful”

[Lord Ramsbotham]

My Lords, the purpose of Amendments 60 and 61 is to ask the Government to rectify an omission that denies legal aid to those who have been unlawfully deprived of their liberty by the state and their ability to obtain redress through the courts.

The Government’s consultation resulted in legal aid being denied except for cases that concern a significant breach of human rights—abuses of positions of power or claims arising from allegations of sexual abuse or attack. Abuse of power by a public authority—which is itself a position of power—is defined in paragraph 19 of Schedule 1 as an act or omission that is deliberate or dishonest and results in reasonably foreseeable harm to a person or property. Unfortunately, however, the extent of the meaning of the words “deliberate” and “harm” in the Bill is not defined. Unless it is, I fear that based on past experience, immigration authorities and police will continue to disregard unlawful or false imprisonment on the grounds that “deliberate” means something more than merely unlawful, and “harm” means injury.

Let me give an example of what I mean. A British man spent 19 months in an immigration detention centre pleading with the Home Office that he was British, but lacking the documents to prove it. His deportation appeal, for which he was unable to obtain representation due to the cuts in immigration legal aid, was dismissed. However, a solicitor gave him the benefit of the doubt and wrote to the Home Office saying that the onus was on it, as the detainer, to prove that the man was not British. Within two days of the letter, he was released. At this point, under the new proposals, no further legal aid would have been available because on the face of it, no harm—other than the loss of personal liberty for a period—had been caused by an inadvertent and honest mistake. However, after many hours of legal aid-funded work, evidence emerged of prolonged deceit on the part of the Home Office, resulting in substantial damages having to be paid.

--- Later in debate ---

[Lord Wallace of Tankerness]

I recognise the important point that the noble Lord, Lord Judd, makes. I assure him that, in trying to allocate limited resources, we have sought to ensure that a proper balance is struck. As I indicated, it is of course a balance, and we will weigh in what has been said in this debate. However, I have sought to indicate that we are dealing here not just with claims for damages; we have deliberately included a whole range of remedies within scope in Schedule 1 because we recognise the importance of proper safeguards in the citizen’s relationship with the state. I hope that the noble Lord will recognise that a whole range of remedies will be eligible for legal aid.

The noble Lord, Lord Berkeley, has no doubt been waiting for a response to his Amendment 61ZA, which would include within the definition of “public authority” the Crown Estate and the Duchy of Cornwall. The position is that paragraph 19(7) uses a definition of “public authority” that is used in Section 6 of the Human Rights Act 1998. At Section 6(3) of that Act, the definition of a public authority includes,

“(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament”.

Section 6(5) of the Human Rights Act goes on to provide that,

“In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private”.

Therefore, the point is that this is not so much about the name of the body but about determining whether the function is of a public nature. It is the nature of the service or function that is determinative, rather than the legal status of a body that is performing the function. One noble Lord asked whether we could have a definition of that. Ultimately, it must be for the courts to determine whether a body is a public authority, given that definition for the purposes of the Human Rights Act.

The noble Lord, Lord Beecham, said that there may be another time and place to discuss the Crown Estate and the Duchy of Cornwall. I know that the Scottish Affairs Committee in the House of Commons is currently looking at the work of the Crown Estate. It is an issue that has attracted more attention, but as regards this amendment and this Bill the definition is used in the Human Rights Act and is a proper definition to import into this Bill.

I will briefly address a number of government amendments in this group. Amendments 79A and 79C address predecessor claims under the pre-Equality Act 2010 legislation to ensure that legal aid continues to be available to people who have live claims under predecessor equalities legislation, and not just in relation to a contravention of the Equality Act 2010.

At present, paragraph 38 of Part 1 of Schedule 1 limits legal aid cases to cases where the Equality Act 2010 has been contravened. The 2010 Act presents a new unified legal framework for addressing harassment, victimisation and discrimination based on any of eight protected characteristics. Where previous equality enactments have been repealed, we recognise that certain claims will continue to be capable of being brought under these enactments by virtue of the transitional arrangements introduced by the 2010 Act. For this reason, we seek to amend paragraph 38 to allow funding for predecessor claims that might still need the benefit of public funding. This amendment will also amend paragraph 38 to put beyond doubt our intention to retain funding for civil legal services relating to the breach of equality clauses and rules and non-discrimination rules.

Government Amendments 78C, 78D and 78E ensure that civil legal services are provided in circumstances where a sexual offence has actually been committed or is alleged to have been committed. They also ensure that civil legal services are provided in circumstances where a sexual offence has not actually been committed but there has been: an incitement to commit a sexual offence; an offence committed by a person under Part 2 of the Serious Crime Act 2007, in relation to which a sexual offence is the offence which the person intended or believed would be committed; conspiracy to commit a sexual offence; and an attempt to commit a sexual offence.

Additionally, the amendment to paragraph 34 of Part 1 of Schedule 1 will ensure that civil legal services are capable of being provided in relation to conduct that would be an offence mentioned in sub-paragraph (3)(a) or (b) of the existing definition of “sexual offence” but that is not considered an offence under the present definition because it took place before the relevant provision came into force. At present, paragraph 34 limits legal aid to cases where a sexual offence has been committed under the provision of the Sexual Offences Act 2003 and to cases where an offence has been committed under Section 1 of the Protection of Children Act 1978, which deals with indecent photographs of children. We recognise that it is possible that offences committed before the present legislation came into force might need the benefit of public funding, and for this reason we have amended paragraph 34 to allow for funding.

I am not sure why Amendment 90ZZA is in this group, but I hope the Committee will recognise that this is a serious attempt to ensure that where there have perhaps been gaps due to prior legislation, we seek to fill them. Amendment 90ZZA would bring into scope advocacy within the Court of Protection where a person’s mental or psychological safety is concerned. This echoes debates on Amendment 53. The current position is that advice is available for any mental capacity matter and that representation is available for the Court of Protection in limited circumstances where there is to be an oral hearing and the case will determine the vital interests of the individual.

Paragraph 4 of Part 3 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—for example, medical treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, and the capacity to enter into sexual relations or the right to family life. The amendments go beyond what is currently provided through legal representation by the civil legal aid scheme. We have had to focus our limited resources on the most serious cases and on the interests of the individual that are vital. We do not seek to go beyond what is already the present position. I hope that the noble Lord will reflect on that and, when the time comes, not move his amendment.

It is some time since the noble Lord, Lord Ramsbotham, moved his original amendment, but I hope he is assured that the serious issues involving state public authorities and the citizen are addressed by this. With regard to the liberty of the individual, there are a number of specific provisions, quite apart from the more general provision that loss of liberty is seen as a harm to the individual. I hope, on the basis of these reassurances, that the noble Lord will withdraw his amendment.

[Lord Ramsbotham]

My Lords, I am very grateful to the noble and learned Lord for summing up in a very complicated summing-up situation. I am also extremely grateful for the many powerful interventions that were made both immediately after the amendment was moved and during the Minister's summing up. I think that their content has increased understanding and has pointed out many more aspects of the problem than I was able to point out in moving the amendment. Some very serious points have been raised and I think it behoves us all to read very carefully in Hansard what has been said in the House this evening. I think and I hope that it will be possible, having done that, to have a discussion with the Minister and with the officials concerned with this issue before we bring it back on Report. Issues involving people who are in the hands of the state should not be allowed to be dropped until we are absolutely certain that the legislation is clear and protects the most vulnerable who are up against the state. Meanwhile, I beg leave to withdraw the amendment.

Amendment 60 withdrawn.