Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Wallace of Tankerness Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Beecham]

My Lords, the amendment would bring consumer law back into scope. Consumer law does not simply cover small issues that perhaps citizens advice bureaux or other organisations could speedily resolve. It can relate to much more significant claims: for example, professional negligence claims against members of my profession, against the professions of other noble Lords in the Chamber at the moment—heaven forfend—or against those who have custody of their clients’ money in investment funds. I refer to people like Michael Brown, the well known donor to the Liberal Democrats, who managed to make off with £2.5 million of other people’s money. There is a range of cases for which legal advice and assistance is clearly very important.

In consulting on these matters, the Government made the obvious point that these cases are not of the same gravity as—to use a term that the noble Lord, Lord McNally, used earlier—issues of safety and liberty. That of course is true but does not take us very far. They can certainly affect people’s lives as well as their fortunes very substantially. A range of claims might be brought that would be entirely out of scope and where, even if conditional fee agreements were obtainable —as they might be—questions would then arise about success fees, premiums and the like.

It is incumbent on the Government to look again at the issue and acknowledge that, while generally these are not matters that threaten life and liberty, they can make a significant difference to a great many people in our society, and that there will often—though not always—be a requirement for legal advice and representation. In Committee, much was made of the funding that the Government had already announced, which was again foreshadowed tonight with reference to possible similar sums over the next two or three years. However, as my noble and learned friend Lord Goldsmith mentioned, many organisations are already facing significant cuts in their funding—particularly Citizens Advice, law centres and the like—at a time when demand for their services, even before the changes in the legal aid system come in, is already rising.

I therefore hope that the Minister will feel able to indicate a reconsideration of the position as of tonight or, failing that, will agree to take this away and bring it back at Third Reading in the hope that we can accommodate the very real needs of many people who face considerable financial and, potentially, other losses as a result of failure on the part of those with whom they contract to deliver what is expected of them. I beg to move.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the noble Lord, Lord Beecham, has moved his amendment to make civil legal services available for consumer disputes. It will come as no surprise to him that in response to a similar amendment in Committee we explained, and I do not apologise for repeating it because it is at the core of the architecture of the Bill, that in developing our reforms we have focused legal aid on those who need it most and for the most serious cases in which it is justified.

I recognise that there will be some difficult cases—for example, consumer matters that are concerned with financial matters—but we nevertheless consider that their relative importance is lower compared with, for example, issues of safety and liberty. Issues of safety and liberty are of the highest importance. That is why, in having to make these kinds of decisions, we have removed legal aid from consumer disputes. Moreover, we also note that, particularly in this sphere, there are other sources of advice; for example, trading standards and Consumer Direct. There may be alternative non-court-based solutions in some cases through regulators and ombudsmen. I do not think they can be as lightly dismissed as sometimes they are. Any consumer matter that concerns alleged contravention of the Equality Act 2010 will be within scope.

As was indicated in an earlier debate, the Government will provide additional funding to the not-for-profit sector in the Budget, and it is often a sector that has a role to play in areas such as this. It will be made available within the current spending review period. I understand that the Cabinet Office review is expected to conclude shortly and will provide recommendations on proposals to secure the long-term sustainability of the sector. I hope that the House will allow this important work to reach its conclusion.

There is consistency in our responses. When lines have to be drawn and decisions taken about what should or should not be within scope, we believe that higher priority should be given to some of the areas I have indicated. In these circumstances, consumer matters do not fall within the area we believe should be within scope. On that basis, I ask the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I remain disappointed in that response. There is potentially a huge range of claims that might be made. Some of them are minimal and perfectly capable of being disposed of in the way the noble and learned Lord referred to. Other are clearly of a different order altogether. Negligence advice from a solicitor, accountant, architect or other professional person can be very costly to individuals who may not be able to afford litigation. Even if they recover using CFAs, they will potentially lose a significant slice of the amount they have already lost. I do not think that is just, and it again reinforces the impression that the Government are giving that they are content with, effectively, a two-tier system of justice from which many people will be excluded. It is most unfortunate, but clearly in the circumstances and in the light of the time, there is not much point in seeking to test the opinion of the House. Accordingly, I beg to leave to withdraw the amendment.

--- Later in debate ---

[Lord Bach]

Very briefly, we agree in principle with the noble Lord and his amendments. After today, the Bill will have Amendment 12 in it. That deals with welfare benefit appeals and is phrased in a rather different way from Amendments 22 and 78, although Amendment 22 is on the social entitlement chamber and talks about the same sort of appeals as the House passed in Amendment 12. I look forward to hearing what the Minister will say on that position and the points that the noble Lord, Lord Thomas of Gresford, has made.

[Lord Wallace of Tankerness]

My Lords, the amendment moved by my noble friend Lord Thomas of Gresford would seek to provide legal aid for all onward appeals on issues arising from a social entitlement chamber. My understanding is that that would be advice on matters of asylum support, criminal injuries compensation and welfare benefit. I am not able to judge offhand whether it covers the whole extent of what was passed earlier this evening by your Lordships but we are in the same area.

My first point is that the amendment would go beyond the existing scope of civil legal aid to the extent that it would allow legal aid for advocacy in the Upper Tribunal on welfare benefit, asylum support and criminal injury matters. We are restricting legal aid and I ask my noble friend to bear that in mind. It is the case that legal aid for legal representation has never been routinely available for the Upper Tribunal for matters of welfare benefit, asylum support or criminal injuries compensation. An estimate has been made that to do so could cost up to £7 million per year.

[Lord Thomas of Gresford]

Is that on the basis of an assessment of how many cases a judge would declare complex? I propose a filter for these cases; only those that are complex should go there.

[Lord Wallace of Tankerness]

That is the point I was about to make. It is possibly based on the majority of cases currently going to the Upper Tribunal. As my noble friend rightly points out, we perhaps do not know how many cases would be certified as complex. That is an unknown unknown. I think my noble friend gets the point I am trying to make: we do not know that.

My noble friend makes an important point that the complexity of those cases arising out of the social entitlement chamber would be one factor that could engage Article 6 and lead into the exceptional funding in Clause 9. That exceptional funding is intended to take account of Article 6 issues. As he indicated in moving his amendment, that would require taking into consideration the complexity of each individual case considered under Clause 9. He indicated that that could lead to a waste of resources and he asked what was lost were a judge to make the determination rather than a legal aid director. One possible response is that the director’s determination under Clause 9 is whether the case is such that the refusal of legal aid would be a breach. Clearly, each case would have to be determined on its individual merits.

We move on to bringing into scope cases which are certified to be of significant wider public interest. Under the current legal aid scheme, there is a rule that allows any excluded case other than a business case to be brought back into scope if it is of significant wider public interest. As I have indicated previously, the Government do not intend to include such a rule in the civil legal aid scheme created by the Bill.

My noble friend also made a point that I wish to reflect on. I think he referred to the Cart case in terms of judicial review. If one were to go down that route, where legal aid would be available, the balance would be in terms of costs as opposed to what he proposes, where there would be a possibility of certification of a case in the significant wider public interest.

Without being in a position to make any commitment as to the outcome, on the point that the noble Lord raised—as well as the point that he made that not all cases would necessarily qualify that went to the Upper Tribunal or beyond—I have discussed the issue with my noble friend Lord McNally and we would be willing to consider this further if the noble Lord will withdraw the amendment. However, I make it clear that I cannot guarantee that he will necessarily ultimately get the result that he wants. But he has raised matters that I want to reflect on and pursue further. I include the noble Lord, Lord Bach, in that. There are important legal issues at stake.

[Lord Thomas of Gresford]

I am most grateful to my noble friend for that reply. I ask him to add this point to his deliberation. If the judge who has tried the case and knows all the facts and circumstances certifies that it is complex, the case can go forward on its merits to the Upper Tribunal under what I am suggesting. If the judicial review procedure is followed, an application for leave will be made to the Upper Tribunal, so that whoever sits in the Upper Tribunal has to determine first of all whether leave can be granted in this particular case. It happens in criminal courts all the time that cases go forward on the basis of a certificate from the judge, from the Court of Appeal to the Supreme Court in particular. The particular judge is in so much better a position to decide whether this is a case that merits a certificate and whether the merits of the case are such that it should be given permission to go up. That is a far better situation than the one whereby the defeated applicant applies for leave for judicial review to a judge in the Upper Tribunal who has to spend his time considering the papers put in front of him. If the noble and learned Lord has any contact with members of the judiciary, he will know that one thing that they do not like doing is to wade through piles of applications for judicial review from scratch to try to determine whether there is a point worth arguing in the administrative court. So there is a practical side to it that I suggest he should take into consideration. I am grateful to him for his response and on that basis hope to have further discussion and, perhaps, return to the matter on Third Reading. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, this amendment gives me a sense of déjà vu. More than 30 years ago, I acted for a father whose three children were in effect abducted by his wife and removed to Scandinavia in flagrant breach of undertakings and a court order. The case was tried by a Mr Justice Faulks. I do not know whether he was any relation of the noble Lord, Lord Faulks, who is not now in his place. It was a tragic case; the father lost virtually all contact with his two daughters, although his son eventually returned of his own volition. It exemplifies the kind of family tragedy that can occur when one party flouts all legal responsibilities.

I congratulate the noble and learned Baroness on bringing these amendments forward. Since there is a sympathetic reaction from the Government, I hope that the Minister will undertake to bring this back at Third Reading to resolve the matter satisfactorily. It seems axiomatic that the same procedure should, as the noble and learned Baroness suggests, apply whether the abduction is outside the jurisdiction of the UK courts or within one of the three jurisdictions that obtain. It looks as though the Government are minded to accede to that. I very much hope that an indication can be given that this will be resolved at Third Reading.

[Lord Wallace of Tankerness]

My Lords, as she has indicated, the amendments moved and spoken to by the noble and learned Baroness, Lady Butler-Sloss, concern legal aid for measures to prevent the unlawful removal of a child within the United Kingdom and for taking steps to remedy such a removal. They would add to similar existing legal provisions for legal aid to prevent and remedy the unlawful removal of children from the United Kingdom. It is important to stress that unauthorised removal from the United Kingdom is a crime, whereas, as has been acknowledged in this debate, one parent taking a child to another part of the United Kingdom without consent is not. Trying to navigate a foreign jurisdiction in a foreign language without a lawyer would also be considerably more difficult than trying to do something similar in the United Kingdom.

That said, the noble and learned Baroness has, as ever, made a powerful and persuasive case. We have indicated that in future people should, subject to various important exceptions, be able to deal with their family matters themselves, without the benefit of taxpayer-funded legal aid. However, I certainly recognise that if you cannot even find your child because they are in the hands of an ex-husband, ex-wife or estranged partner, it may seem impossible even to begin that process. The emotional stress on people in such situations can be immense. Therefore, we are sympathetic to the concerns of the noble and learned Baroness, particularly the proposals to make legal aid available for Section 33 and Section 34 orders under the Family Law Act 1986 —that is, the seek and find orders and the recovery orders.

Seek and find orders allow a court to compel someone who might reasonably know where a child is to tell the court. The court will then judge whether this information should be passed on to the left-behind parent. Obviously, if there are safety issues it might not be advisable to do so. Refusal to impart that information is treated as contempt. Thankfully, Section 34 orders are somewhat rarer, but they give the police powers to recover a child forcibly in emergency situations. As the noble and learned Baroness identified, we are not yet convinced that the associated prohibited steps and specific issue orders require funding. The same applies to registering an order made in one part of the United Kingdom in another part.

I fully accept that the noble and learned Baroness is not trying to find a backdoor entry into private law matters. However, our concern, and the reason we are not yet convinced about this, is that these orders get us much more into funding a family case as a whole, including by preventing relocation. The issue here is that many cases involving children are in fact arguments about where a parent with residence might reasonably live and the effect that will have on contact for the other parent. Therefore, when we talk about prevention in this context, that is the kind of situation we are talking about. I know that the noble and learned Baroness, from her vast experience, would see it as that. However, sometimes when members of the public talk about prevention orders, they have an image of stopping a child being bundled into the back of a car. That is sometimes the description conjured up by “domestic child abduction”.

If the noble and learned Baroness is willing to withdraw this amendment, the Government will table at Third Reading a similar amendment that covers Section 33 and Section 34 orders, for international abduction as well as domestic. I am happy for officials in the Ministry of Justice to continue discussions with the noble and learned Baroness, which I know have been ongoing, as she acknowledged, on the exact drafting of that amendment.

[Baroness Butler-Sloss]

I am very grateful to the Minister for what he has said, although it does not go quite as far as those who undertake these cases nowadays feel is necessary. I have had extensive experience of these cases as only High Court judges tried them in the past. I think that only High Court judges or deputy High Court judges try the international ones nowadays. That is an indication of the importance that is attached to these cases.

Given where the noble and learned Lord comes from, I have to say that in the past there have been real problems in getting a child back from Scotland who has been removed by a parent without the consent of the other parent. The process is not simple. I have not had a similar experience with Northern Ireland, but I am sure that these cases must arise there occasionally. As noble Lords know, those are different jurisdictions; that is the problem. I am very happy with where we have got so far, but I would like to get a little further. I am grateful for the opportunity to continue to discuss this matter not only with the noble and learned Lord but with his officials. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

48: Schedule 1, page 135, line 38, leave out “paragraph 15” and insert “paragraphs 1 to 5, 6, 8, 12, 15 and 16”

[Lord Wallace of Tankerness]

My Lords, as has been said several times, the Government’s intention is to retain legal aid for most judicial review cases, given the important role of this procedure in holding public authorities to account. Responding to concerns raised in Committee, not least by my noble friend Lord Carlile of Berriew, Amendment 48 puts beyond doubt that legal aid will be available for any judicial review concerning death, personal injury, damage to property and Criminal Injuries Compensation Authority payments.

Secondly, the amendment disapplies exclusions which prevent tort claims generally being funded under the Bill, so that where a claim for damages is made in the context of a judicial review, the grant of legal aid would cover the work associated with the damages aspect of the claim. Where a damages claim is brought separately from judicial review proceedings, legal aid would not be available unless the claim concerned abuse of a child or vulnerable adult, an abuse of a position of power, a significant human rights breach by a public authority or a sexual assault. That is again in accordance with our intention to focus limited resources on the highest priority cases.

Amendments 81 to 85 make it clear that the exclusions in paragraphs 2 to 5 and 8 of Part 2 of Schedule 1 are intended to exclude a claim in tort in respect of the matters set out in those paragraphs. I hope that that clarifies the position. There was a lack of clarity before, and I hope that the amendments address that. I beg to move.

Amendment 48 agreed.

Moved by

[Lord Wallace of Tankerness]

49: Schedule 1, page 136, line 4, leave out sub-paragraph (5) and insert—
“(5) The services described in sub-paragraph (1) do not include services provided in relation to judicial review in respect of an issue relating to immigration where—
(a) the same issue, or substantially the same issue, was the subject of a previous judicial review or an appeal to a court or tribunal,(b) on the determination of the previous judicial review or appeal (or, if there was more than one, the latest one), the court, tribunal or other person hearing the case found against the applicant or appellant on that issue, and(c) the services in relation to the new judicial review are provided before the end of the period of 1 year beginning with the day of that determination.”

[Lord Wallace of Tankerness]

My Lords, my noble friend Lord McNally has sent your Lordships details of a group of minor and technical amendments which the Government have tabled to Part 1 of the Bill. A copy of his letter has been placed in the Library for the convenience of the House. Amendments 49 to 57 are in that group. I beg to move.

Amendment 49 agreed.

Moved by

[Lord Wallace of Tankerness]

50: Schedule 1, page 136, line 12, leave out “a removal direction” and insert “removal directions”

--- Later in debate ---

[Lord Bach]

My Lords, we continue to support this theme of amendments. There were two in Committee moved by the noble and learned Baroness, Lady Butler-Sloss. We supported them then and described them as powerful amendments. Amendment 69 remains a powerful amendment. We look forward to hearing what the Minister has to say. We hope and expect him to be sympathetic.

[Lord Wallace of Tankerness]

My Lords, Amendment 69 intends to bring into the scope of legal aid damages and compensation claims made by victims of human trafficking in either the civil courts or employment tribunals. Echoing the words of the noble Lord, Lord Bach, and my noble friend Lady Hamwee, I have noted the powerful arguments put forward that exceptional funding was not sufficient to provide for legal aid in this area. It goes without saying that we are all agreed that trafficking is a heinous, cynical crime. The ability to bring damages claims against former so-called employers is an important tool to secure reparations for victims and to punish their exploiters. As has been said tonight, and as was highlighted in our debates on similar amendments in Committee, it also helps to discourage those who seek to exploit people for financial gain. We had always anticipated that legal aid would have been available under the exceptional funding scheme for these damages claims, as was indicated by my noble friend Lady Hamwee, where such cases met the test for exceptional funding under Clause 9 of the Bill.



On reflection, we recognise the risk that in some cases this will not be sufficient. My colleagues and I are very grateful to the noble and learned Baroness for her constructive discussions with the Lord Chancellor, in which she pointed out that what is typically required in these cases is advice and assistance in making the claim. Therefore, we agree in substance with the amendment and accept it in principle. However, as I think is anticipated by the noble and learned Baroness, for drafting reasons—not least around definitions—we cannot accept it verbatim. If the noble and learned Baroness withdraws the amendment, I can assure her that we will come back at Third Reading with a finalised amendment.

My noble friend Lady Hamwee asked whether victims of trafficking would get legal advice for other matters as well as for damages. For non-damages cases, they would have to apply for exceptional funding if legal aid was not available. However, the amendment that we discussed earlier this evening would cover legal help for trafficked victims in bringing damages claims in the employment tribunal, and both legal help and advocacy for damages claims in other civil courts where they relate to the experience of being trafficked.

It is important that we have addressed these matters. I thank the noble and learned Baroness for bringing them back to the House. I hope that, with my assurance, she will withdraw her amendment.

[Baroness Butler-Sloss]

I am very grateful to the noble and learned Lord for his very constructive and heart-warming words. It is only right that I should congratulate the Government on their strategy. The only point about strategy is its implementation, so I warn the noble and learned Lord that I shall continue to battle to implement the strategy, which is excellent in outline. However, this is a very good step forward. I look forward to further discussions with the noble and learned Lord and his team. In the mean time, I am very happy to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

70: Schedule 1, page 139, leave out line 20 and insert “because I was the victim of domestic violence”

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

73: Schedule 1, page 140, line 5, at end insert—
“Immigration: victims of domestic violence and residence cards25A (1) Civil legal services provided to an individual (“I”) in relation to a residence card application where I—
(a) has ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person,(b) is a family member who has retained the right of residence by virtue of satisfying the conditions in regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (S.I. 2006/1003) (“the 2006 Regulations”), and(c) has satisfied the condition in regulation 10(5)(d)(iv) of the 2006 Regulations on the ground that I or a family member of I was the victim of domestic violence while the marriage or civil partnership of the qualified person was subsisting.General exclusions(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.
Specific exclusion(3) The services described in sub-paragraph (1) do not include attendance at an interview conducted on behalf of the Secretary of State with a view to reaching a decision on an application.
Definitions(4) In this paragraph—
“domestic violence” means threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other (within the meaning of section 62 of the Family Law Act 1996);
“family member” has the same meaning as in the 2006 Regulations (see regulations 7 and 9);
“family member who has retained the right of residence” has the same meaning as in the 2006 Regulations (see regulation 10);
“qualified person” has the same meaning as in the 2006 Regulations (see regulation 6);
“residence card application” means—
(a) an application for a residence card under regulation 17 of the 2006 Regulations, or (b) an application for a permanent residence card under regulation 18(2) of the 2006 Regulations.”

[Lord Wallace of Tankerness]

My Lords, I shall speak also to Amendment 92. This is another group of amendments on which my noble friend Lord McNally wrote to your Lordships. They are amendments of a minor and technical nature which the Government have tabled to Part 1 of the Bill. As I indicated when addressing earlier amendments, a copy of my noble friend’s letter has been placed in the Library of the House for the convenience of noble Lords. I beg to move.

Amendment 73 agreed.