Legal Aid, Sentencing and Punishment of Offenders Bill — Report (2nd Day) (Continued)
9:35 pm

Photo of Baroness Anelay of St Johns

Baroness Anelay of St Johns (Conservative)

My Lords, it may be for the convenience of the House if I explain that there have been discussions between the usual channels since last we considered the Bill earlier this evening, as a result of which I understand that, when Amendments 16, 17 and 18 are called, it may be that they will not be moved, but that is of course a decision for the noble Lords concerned. The first substantive amendment may therefore be Amendment 19. The House will then by agreement rise after it has considered government Amendment 73.

Amendments 16 to 18 not moved.

Amendment 19

Moved by Lord Beecham

19: Schedule 1, page 125, line 5, at end insert-

"Consumer

(1) Civil legal services provided in respect of consumer law disputes.

(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages."

Photo of Lord Beecham

Lord Beecham (Labour)

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.

Photo of Lord Wallace of Tankerness

Lord Wallace of Tankerness (Liberal Democrat)

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.

Photo of Lord Beecham

Lord Beecham (Labour)

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.

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Liberal Democrat)

Before the noble Lord sits down, I may say that he is developing a very fine line in insulting jibes. I did not hear any mention of Brown in anything that he said in presenting his submission or in his reply.

Photo of Lord Beecham

Lord Beecham (Labour)

I do not quite understand the relevance of that observation. I mentioned Brown. I am sorry if it offended the noble Lord. Mr Brown has offended a great many people.

Amendment 19 withdrawn.

Amendment 20

Moved by Lord Beecham

20: Schedule 1, page 125, line 5, at end insert-

"Education

(1) Civil legal services provided in respect of education law disputes.

(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages."

9:45 pm
Photo of Lord Beecham

Lord Beecham (Labour)

My Lords, this amendment deals with education. It is right to say that, having consulted-although perhaps not initially-the Department for Education, the Government have amended their original proposals to bring special educational needs within scope. I very much welcome that.

However, there are significant problems in the education world that require assistance. These include school exclusions, admissions issues and bullying. In fact, at the moment there is a significant workload that potentially falls within scope. If the Government do not move their position, some 2,800 fewer clients will be given advice on educational law matters, and a small number-only 70 but for them it is important-would fail to obtain representation on such matters.

Clearly there are potentially significant issues around admissions which affect different categories of children disproportionately; for example, refugee and asylum-seeker children, for whom there is often a difficulty in obtaining places. Sometimes by definition these children arrive mid-year; they do not always arrive at convenient times for the academic year. Sometimes schools may have difficulty in admitting pupils with perhaps little educational experience or poor language skills. Equally, some of these children are more susceptible to bullying and racism than perhaps would normally be the case.

In any event, bullying is not confined to that group. It is common, unfortunately, in many schools. Some years ago, Bullying UK discovered that 87 per cent of parents sampled reported that children had been bullied. Of course, these will not all be serious matters but there will be cases where sometimes it is necessary for people to seek assistance and redress for incidents of that kind.

The Government consulted on all these matters publicly. They restricted their changes to the proposals to special educational needs. However, given that there is not a vast number of cases, where there are difficulties of this kind it seems proper that legal advice-and, if necessary, in a very small number of cases, representation -should be available. Again, we are talking about children. They have cropped up regularly this evening and in earlier debates as a group that we have to have special regard for.

Again, I hope that the Government will consider building on their welcome amendment on special educational needs to afford the possibility of advice and representation to these other categories. That would be welcome to those who suffer from bullying and would assist the education system in dealing with what can be very difficult problems. I beg to move.

Photo of Lord Faulks

Lord Faulks (Conservative)

My Lords, perhaps I might intervene briefly on this matter. I have experienced quite a number of cases involving educational law and I notice that this amendment is very widely drawn, potentially embracing all sorts of disputes.

It has to be said that the support of legal aid for educational law disputes has not been the finest hour of the LSC. In particular, I can speak from experience of three cases in the Supreme Court and a whole rash of cases alleging educational negligence, almost none of which were successful, which cost the taxpayer an enormous amount of money. Although well intentioned on the part of the claimants, these cases turned out to be expensive, unsuccessful and, quite frankly, misconceived.

I am very concerned about the width of this amendment, notwithstanding the fact that there are some areas, which I think are covered by the government amendment, where it is plainly appropriate that there should be support.

Photo of Lord McNally

Lord McNally (Liberal Democrat)

My Lords, Amendment 20 would bring back into scope all education matters not already covered by Schedule 1. We have retained legal aid for any educational case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination. We have also retained current legal aid funding for appeals on special educational needs matters and for educational judicial reviews. In practice, this amendment would retain legal aid for all education matters. The judgment we have made in prioritising funding is that SEN, discrimination and judicial review are of the highest priority and that advice on such matters as exclusions and damages claims are not.

Where parents are not satisfied with an admissions refusal, they can appeal to an independent panel. This requires them to set out in writing why they disagree with the admissions decision and why they think that the admissions arrangements have not been followed correctly. These are not usually legal arguments. Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors setting out their reasons for challenging the exclusion. If parents are unhappy with the decision to permanently exclude their child, they will be able to appeal.

From September 2012, such an appeal will be to the independent review panel. The Department for Education will fund the children's legal centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line. Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination and legal aid is being retained for advice and assistance in such cases.

Advice is also available on admission and exclusion matters from the Advisory Centre for Education and the Children's Legal Centre. Education negligence claims have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid on only those money claims which concern a significant breach of human rights, an abuse of a position of power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement. I hope that noble Lords will recognise that we have focused resources on education cases of the highest priority and that the noble Lord will withdraw his amendment.

The two technical government amendments in this group fulfil the promise we made in Committee concerning SEN provisions. These amendments ensure that SEN matters are fully within the scope of the Bill and, specifically, that learning difficulty assessments are captured by our provisions on scope. As we stated in Committee, the Government accept that the existing wording in paragraph 2 of Schedule 1 does not cover the provision of advice and assistance in relation to the making of learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. These amendments ensure that these services are brought within the Bill's scope.

Photo of Lord Beecham

Lord Beecham (Labour)

My Lords, the noble Lord, Lord Faulks, has made a valid point about education negligence cases. I think the consultation revealed that some respondents were quite supportive of excluding that, which I quite accept would be a sensible measure. The Government's report on the key issues raised referred to suggestions by others that often difficult admission cases arose where clients were, for example, Travellers. The exclusion of education admission matters could prevent discrimination claims from being brought because it would take legal advice to identify that the clients had grounds for discrimination claims. Equally, lack of early advice could ultimately lead to the more expensive procedures of judicial review.

It is unfortunate that the Government do not at this stage wish to move. I clearly will not press the matter and hope that it can be kept under review perhaps, more particularly, in conjunction with the department rather than simply by the Ministry of Justice. As I understand it, there has been a little disconnection between the two on these issues thus far. For the future, I hope that that is something that could be repaired. In the circumstances, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Amendment 21

Moved by Baroness Howe of Idlicote

21: Schedule 1, page 125, line 5, at end insert-

"Vulnerable young people

1 (1) Civil legal services provided in relation to advice and proceedings under this paragraph where the applicant or respondent is aged twenty four or under, and-

(a) has a disability under section 6 of the Equality Act 2010;

(b) is a former relevant child care leaver by reference to the Children (Leaving Care) Act 2000;

(c) is a victim of trafficking; or

(d) is a vulnerable person as specified by regulations; or

(e) otherwise falls within the categories of vulnerable young people which the Secretary of State may prescribe in regulations.

(2) Civil legal services provided in relation to advice and proceedings relating to private family law,

(3) Civil legal services provided in relation to advice and proceedings relating to any benefit, allowance, payment, credit or pension under-

(a) the Social Security Contributions and Benefits Act 1992;

(b) the Jobseekers Act 1995;

(c) the State Pension Credit Act 2002;

(d) the Tax Credits Act 2002;

(e) the Welfare Reform Act 2007;

(f) the Welfare Reform Act 2012; or

(g) any other enactment relating to social security.

(4) Civil legal services provided in relation to advice and proceedings relating to section 140 of the Learning and Skills Act 2000 (assessments relating to learning difficulties) and all areas of education law not otherwise covered in this Schedule.

(5) Civil legal services provided in relation to advice and proceedings relating to all areas of employment law not otherwise covered in this Schedule.

(6) Civil legal services provided in relation to advice and proceedings relating to all areas of housing law not otherwise covered in this Schedule.

(7) Civil legal services provided in relation to advice and proceedings relating to all areas of law related to personal debt not otherwise covered in this Schedule.

(8) Civil legal services provided in relation to advice and proceedings relating to all areas of immigration and asylum law not otherwise covered in this Schedule.

(9) Civil legal services provided in relation to advice and proceedings relating to all areas of clinical negligence law not otherwise covered in this Schedule.

(10) Civil legal services provided in relation to advice and proceedings relating to all areas of consumer law not otherwise covered in this Schedule.

(11) Civil legal services provided in relation to advice and proceedings relating to appeals to the Criminal Injuries Compensation Authority.

(12) Civil legal services provided in relation to advice and proceedings relating to a review or appeal under sections 11 or 13 of the Tribunals, Courts and Enforcement Act 2007.

(13) Civil legal services provided in relation to advice and proceedings relating to an appeal to the Supreme Court."

Photo of Lord Geddes

Lord Geddes (Conservative)

If the noble Baroness has started to speak to her amendment, she must move it.

Photo of Baroness Howe of Idlicote

Baroness Howe of Idlicote (Crossbench)

What I wanted to say is that I am of course sad that this amendment cannot be debated tomorrow or on the next day of the Report stage because it is the sort of amendment that would have had the kind of support that was given to amendments taken earlier today. It has a modest aim to help those with a disability, those who have been in care, young people who are victims of trafficking and, above all, young people aged between 18 and 24. That group needs special help to get them through to adult life as more satisfied people in themselves and at less of a cost to the community. However, I accept that the usual channels have not arrived at such an agreement, so I apologise to the many groups who support this amendment-including the Children's Commissioner for England. It is strange that one is not able to satisfy their desire as I would have wished by testing the opinion of the House, but I accept that now is not the time to do that.

I would like the opportunity to discuss this issue further with the Minister. He seems very happy to see people even though he is not that keen on giving assurances that things will change as a result, but I would still like that opportunity.

Photo of Lord Geddes

Lord Geddes (Conservative)

Having spoken to her amendment, does the noble Baroness wish to move it? That will give noble Lords a chance to reply.

Photo of Lord McNally

Lord McNally (Liberal Democrat)

I am always delighted to see the noble Baroness and I will certainly meet her to discuss this further, but with the rather grim caveats that I gave when we considered it earlier. In the circumstances, I hope that she will withdraw the amendment.

Photo of Baroness Howe of Idlicote

Baroness Howe of Idlicote (Crossbench)

I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Amendment 22

Moved by Lord Thomas of Gresford

22: Schedule 1, page 125, line 5, at end insert-

"Social entitlement

(1) Civil legal services and advocacy in appeals from the Social Entitlement Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court where the relevant court or tribunal certifies that-

(a) the appeal raises a complex issue of law or of fact (in which case the certificate must identify the issue),

(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or

(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).

(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph."

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Liberal Democrat)

My Lords, Amendment 22 and Amendment 78 are concerned with appeals in social welfare and immigration cases. I am grateful to the noble Lord, Lord Bach, for paving the way to this earlier today. They seek to secure legal aid for appeals in welfare cases from the Social Entitlement Chamber and the Immigration Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court. By Clause 9 of the Bill, civil legal services other than Part 1 services are made available where the Director of Legal Aid Casework has made an exceptional case determination and, of course, an individual's means qualify. The tests of exceptionality as we have known them in the law, and as have previously been applied by the Legal Services Commission and indeed by the then Minister, Lord Bach, in person as he did from time to time, are no longer relevant. That is because an exceptional case determination is precisely defined in Clause 9(3). Exceptionality is directly linked to any case where the failure to provide civil legal services would be a breach of the European covenant rights-EU rights-or where there is a risk of such a breach.

I seek to persuade your Lordships that there can be no clearer case of a breach, or at least the risk of a breach of Article 6 rights, than in appeals from the First-tier Tribunal to the Upper Tribunal or beyond if the litigant in person is opposed at the hearing by a government legal team of counsel and/or solicitors. This is particularly so since appeals are permitted only on a point of law and the litigant in person will be required to argue legal points for which he is by no means qualified. No appeal can be brought to the Upper Tribunal without the leave of the First-tier Tribunal, nor can appeals be brought to the Court of Appeal or the Supreme Court without leave. At each stage, leave has to be obtained. The mechanism is already in place for the judges who tried the case and heard all the facts to determine not just whether there is sufficient merit in the appeal on a point of law to go forward but to determine whether the issues are complex. Who better to judge whether a matter is complex than the judge who has tried the case? It is a small step to amend the rules to require them to certify whether or not the issues are complex.

The alternative, looking at the Bill is it stands, is that applications will be made to the Director of Legal Aid Casework in all these cases where leave to appeal has been granted by the judge because there is a point of law that is worth arguing and the officers of the director, starting from scratch and picking up the papers for the first time, will have to determine whether there are merits and whether there is complexity on the papers alone, without ever having been involved in the hearing itself. It is a senseless waste of resources. On the other hand, if the court, having heard all the facts, grants leave on the basis that there is a point of law that is worth arguing and, in addition to that, certifies that it is complex, then an application to the director will be concerned only with the means of the applicant and whether he qualifies by passing the means test for legal aid to be granted to him.

I can see no reason why the Government should resist these amendments unless there is some thought in the back of the minds of Ministers that the Director of Legal Aid Casework is more easily influenced by Ministers. But of course that is not their point. Their point is that the director is no less independent than a court, and his decision, subject only to general guidance, cannot be influenced by the Ministry of Justice. So what is lost? Why have a director trying to decide whether legal aid should be granted in the particular case on the papers as opposed to the judge giving a certificate of complexity and giving leave on the basis that there is merit?

The difficult point is this-and I would be grateful if my noble friend could appreciate it. Since 30 September 2011, legal aid has been available if appeals from the First-tier Tribunal are framed as judicial reviews. Your Lordships may remember that there was a great deal of argument about whether judicial reviews could go to the Upper Tribunal as opposed to going to the Administrative Court. After a lot of argument, it was decided that the Upper Tribunal would be entrusted with judicial reviews. As my noble friend Lord Carlile pointed out today, judicial reviews are more involved with procedural matters-whether a decision could be said to be unreasonable beyond the scope of a particular judge-whereas where there is an appeal under statute from the First-tier Tribunal to the Upper Tribunal, the merits can be considered as well as whether there has been procedural fairness.

The judges themselves have commented in their response to the consultation that it is ridiculous to have different procedures whereby you can get legal aid if you frame your case as a judicial review but you cannot get legal aid if you frame your case merely as an appeal on the merits of it. I commend these amendments to my noble friend and I look forward to his reply. I beg to move.

10:00 pm
Photo of Lord Bach

Lord Bach (Labour)

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.

Photo of Lord Wallace of Tankerness

Lord Wallace of Tankerness (Liberal Democrat)

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.

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Liberal Democrat)

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.

Photo of Lord Wallace of Tankerness

Lord Wallace of Tankerness (Liberal Democrat)

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.

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Liberal Democrat)

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.

Amendment 22 withdrawn.

Amendment 23 had been withdrawn from the Marshalled List.

Amendments 24 to 30

Moved by Lord McNally

24: Schedule 1, page 126, line 3, after "to" insert "-

(a) "

25: Schedule 1, page 126, line 4, at end insert-

"(b) assessments relating to learning difficulties under sections 139A and 140 of the Learning and Skills Act 2000."

26: Schedule 1, page 126, line 18, after "to" insert "-

(a) "

27: Schedule 1, page 126, line 19, after "1," insert "2,"

28: Schedule 1, page 126, line 19, at end insert ", and

(b) "

29: Schedule 1, page 126, line 20, leave out from beginning to "the" in line 24

30: Schedule 1, page 126, line 25, at end insert-

"( ) The services described in sub-paragraph (1) do not include services provided in relation to clinical negligence."

Amendments 24 to 30 agreed.

Amendment 31 not moved.

Amendment 32

Moved by Lord McNally

32: Schedule 1, page 128, line 30, at end insert-

"(ja) section 2 of the Carers and Disabled Children Act 2000 (services for carers);"

Photo of Lord McNally

Lord McNally (Liberal Democrat)

My Lords, stakeholders have drawn it to our attention that the definition of community care service in the Bill is incomplete. We are expanding it to ensure that currently funded legal services in relation to community care remain eligible for funding under the new regime. These amendments will bring within the scope of civil legal aid services provided in relation to Section 2 of the Carers and Disabled Children Act 2000, which covers community care services to carers, and Part 1 of the Housing Grants, Constructions and Regeneration Act 1996, which covers facilities grants to enable disabled people to live independently in their homes. I beg to move.

Photo of Lord Beecham

Lord Beecham (Labour)

My Lords, we welcome the Minister's amendments and are glad that an error has been repaired.

Amendment 32 agreed.

Amendment 33

Moved by Lord McNally

33: Schedule 1, page 129, line 2, at end insert-

"Facilities for disabled persons

6A (1) Civil legal services provided in relation to grants under Part 1 of the Housing Grants, Construction and Regeneration Act 1996 for the provision of facilities for disabled persons.

Exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.

Definitions

(3) In this paragraph "disabled person" has the meaning given in section 100 of the Housing Grants, Construction and Regeneration Act 1996."

Amendment 33 agreed.

Amendment 34

Moved by Baroness Butler-Sloss

34: Schedule 1, page 129, line 13, after "from" insert "or within"

10:15 pm
Photo of Baroness Butler-Sloss

Baroness Butler-Sloss (Crossbench)

My Lords, there are three amendments here that relate to internal child abduction. Noble Lords may well know that international child abduction is governed by the Hague convention, to which the United Kingdom is a signatory. There is a well established procedure for dealing with a child wrongfully removed from any part of the UK to a foreign country. There are emergency hearings before a High Court judge and the attempt at recovery process then takes over. That process is well known and well established.

There is no such procedure for internal child abduction within the UK, although we operate three separate legal processes in the three jurisdictions of England and Wales, Scotland and Northern Ireland. A child may be taken wrongfully from Exeter to Belfast, Glasgow or even Carlisle, which may be just as upsetting or traumatic as abduction to France or Sweden. Removal from home, school, friends and security, and fleeing with a parent who is often acting irresponsibly and removing the child wrongfully, is certainly not in the best interests of the child. It is also traumatic for the left-behind parent, who has no idea what happened to the child or even whether he or she will ever see that child again. The decision for a child's future should be made sensibly and responsibly.

Where there are two parents, each with parental responsibility, one parent cannot up and go with the child to live elsewhere without the consent of the other parent-I do not think that all parents know that-and even more so when the parents are separated and one parent has a residence or custody order. Under the Bill's proposals, though, there is no provision for legal aid for the left-behind parent to find out where the child has gone, whether the child is safe and how to put into effect a process similar to that employed if the child has gone abroad. Quite simply, I am asking that there should be exactly the same process internally within the United Kingdom as there is externally for abduction to a foreign country.

I am extremely grateful to the Lord Chancellor, who asked to see me on this issue, and to the Minister for seeing the noble Baroness, Lady Shackleton, and the chairman of the Family Law Bar Association. As I understand it, the Government recognise the problem and that it requires a solution. I suspect that the only issue between us is how far they will go, because there are two aspects to the issue of internal child abduction: one is the recovery of the child but the other is the prevention of the removal of the child. Consequently, one needs both the prohibited steps order or a specific issue order and the location order, sometimes called "seek and find", or a recovery order involving the tipstaff and the police-the police will not act unless there is an order-asking various agencies for addresses and going through the well known process that happens internationally but not nationally.

There is no reason why the international system should not apply internally, and I understand that the Government accept that. It is important that the whole process should be applied. I make it clear that it is intended only to stop the child being removed, to get the child back or at least to know that they are safe and properly cared for. It is not intended to be a backdoor entry into private-law family cases. Everyone understands that in a situation in which it is known where the child is-perhaps a social worker in the area finds the child with grandparents and says that the child is perfectly safe-the legal aid will drop at that moment. It would be the responsibility of the left-behind parent or the parent who has wrongfully removed the child to go to court. They would then be on their own, like any other couple in dispute over their children.

The process for which I seek legal aid is purely and simply connected to potential or actual abduction. I repeat without apology that I am asking for the process for abduction throughout the United Kingdom to be exactly as the same as the international process under the Hague convention. I beg to move.

Photo of Lord Beecham

Lord Beecham (Labour)

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.

Photo of Lord Wallace of Tankerness

Lord Wallace of Tankerness (Liberal Democrat)

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.

Photo of Baroness Butler-Sloss

Baroness Butler-Sloss (Crossbench)

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.

Amendment 34 withdrawn.

Amendments 35 and 36 not moved.

Amendments 37 and 38

Moved by Lord McNally

37: Schedule 1, page 130, leave out line 11 and insert "-

(a) there has been, or is a risk of, domestic violence between A and B, and

(b) A was, or is at risk of being, the victim of that domestic violence."

38: Schedule 1, page 130, line 28, leave out "abuse of A by B" and insert "domestic violence"

Amendments 37 and 38 agreed.

Amendment 39 not moved.

Amendment 40

Moved by Lord McNally

40: Schedule 1, page 130, leave out lines 42 to 45

Amendment 40 agreed.

Amendment 41

Moved by Baroness Butler-Sloss

41: Schedule 1, page 130, leave out lines 42 to 45 and insert-

""abuse" means any incident or repeated incidents of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional, and including acts of neglect, maltreatment, exploitation or acts of omission) between adults who are or have been intimate partners or family members, regardless of gender or sexuality;"

Amendment 41 agreed.

Amendment 42

Moved by Lord McNally

42: Schedule 1, page 131, line 1, at end insert-

""domestic violence" means threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;"

Amendment 42 agreed.

Amendments 43 and 44

Moved by Baroness Butler-Sloss

43: Schedule 1, page 131, line 31, at end insert-

"( ) For the purposes of this paragraph, evidence that abuse has occurred may consist of one or more of the following (without limitation)-

(a) a relevant court conviction or police caution;

(b) a relevant court order (including without notice, ex parte, interim or final orders), including a non-molestation undertaking or order, occupation order, forced marriage protection order or other protective injunction;

(c) evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic violence;

(d) evidence that a victim has been referred to a multi-agency risk assessment conference, as a high risk victim of domestic violence, and a plan has been put in place to protect that victim from violence by the other party;

(e) a finding of fact in the family courts of domestic violence by the other party giving rise to the risk of harm to the victim;

(f) a medical report from a doctor at a UK hospital confirming that the applicant has injuries or a condition consistent with being a victim of domestic violence;

(g) a letter from a General Medical Council registered general practitioner confirming that he or she has examined the applicant and is satisfied that the applicant had injuries or a condition consistent with those of a victim of domestic violence;

(h) an undertaking given to a court by the alleged perpetrator of the abuse that he or she will not approach the applicant who is the victim of the abuse;

(i) a letter from a social services department confirming its involvement in providing services to the applicant in respect of allegations of domestic violence;

(j) a letter of support or a report from a domestic violence support organisation; or

(k) other well-founded documentary evidence of abuse, such as from a counsellor, midwife, school or witness."

44: Schedule 1, page 132, line 10, at end insert-

"( ) For the avoidance of doubt, no time limit shall operate in relation to any evidence supporting an application for civil legal services under paragraphs 10 and 11."

Amendments 43 and 44 agreed.

Amendment 45

Tabled by Baroness Butler-Sloss

45: Schedule 1, page 133, line 3, at end insert-

"Exceptional family proceedings

(1) Civil legal services provided in relation to a family dispute with respect to the upbringing of a child, including orders mentioned in section 8(1) of the Children Act 1989 (residence, contact and other orders) and special guardianship orders under that Act, where an assessor for mediation (competent to carry out publicly funded assessment) certifies that the case is unsuitable for mediation having regard to any significant harm which the child has suffered or is at risk of suffering; and in this paragraph "family dispute" has the same meaning as in paragraph 12.

Exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule."

Photo of Baroness Butler-Sloss

Baroness Butler-Sloss (Crossbench)

My Lords, I have already spoken to this amendment, which, as I said, was rather oddly included in the first group of amendments. I am not entirely sure what the Minister was offering. I would therefore like to read Hansard rather carefully to find out what he was offering and, if necessary, bring the amendment back at Third Reading if I am not happy with his comments, as I fear I may not be. For the moment, however, I shall not press the amendment.

Amendment 45 not moved.

Amendment 46 not moved.

Amendment 47

Moved by Lord Thomas of Gresford

47: Schedule 1, page 135, line 31, at end insert-

"Best interests of patients

16A Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment.

Exclusions

16B Paragraph 16A is subject to the exclusions in Parts 2 and 3 of this Schedule.

Definitions

16C For the purposes of this paragraph "medical treatment" has the same meaning as in the Mental Health Act 1983."

10:30 pm
Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Liberal Democrat)

My Lords, I moved this amendment in Committee. It is concerned with people who tragically are in a vegetative state and require an application to the court for the withholding of nutrition and/or treatment. I said everything that I needed to say in Committee and I wait to hear what further thoughts the Minister may have had. I beg to move.

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Lord Beecham (Labour)

My Lords, I congratulated the noble Lord on moving this important amendment in Committee, where he raised a particularly moving case. I congratulate him on raising the matter again on Report. I hope that the Minister will produce a satisfactory answer.

In Committee I raised a different point-perhaps not as clearly as I might have done-based on advice that MIND provides for patients. The point was not in relation to treatment for a mental health disorder, which of course would be covered by the Mental Health Acts and which the noble Lord, Lord McNally, pointed out would remain within scope. However, there may be a question regarding someone who suffers from a mental health disorder but whose treatment is for a physical problem, not for that disorder. The MIND briefing to patients states:

"Specifically, the laws in Part IV of the MHA on treating people without consent, only apply to treatment for mental disorder. They do not apply to the treatment of physical disorders unless it can reasonably be said that the physical disorder is a symptom or underlying cause of a mental disorder".

A situation may be arising there in which the provision of legal advice would not be within scope because it is not for treating the mental health disorder.

I appreciate that an off-the-cuff answer might not be immediately available on that point, and I may have got it entirely wrong. However, such a situation strikes me as a possibility emerging from this briefing. So while I would certainly encourage the Minister to endorse the amendment of his noble friend, I would also ask him to undertake to look at the point that I have raised and, if necessary, to bring something back at Third Reading.

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Baroness Butler-Sloss (Crossbench)

My Lords, I supported the noble Lord, Lord Thomas of Gresford, in Committee, and I do so again now. As I said then, I had experience, at one time, of trying the majority of permanent vegetative state cases. I fear that there will be a small number of cases that are extraordinarily difficult to decide, where the families are placed in an agonising position. They really ought to have the opportunity to be heard in the court and to deal with this matter. Such cases are rare but very important. I very much support the proposal that something should be done about this.

Photo of Lord McNally

Lord McNally (Liberal Democrat)

My Lords, the amendment seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. As my noble friend Lord Thomas explained, he also tabled this amendment in Committee, where I think it was established that the matters envisaged by the amendment would in fact already fall within the scope of paragraph 5 of Schedule 1.

However, my noble friend also took the opportunity to speak about the wider issues and asked that I consider the observations made by the judge in the case of W against M and others-in particular, whether an exception could be made to provide free legal aid for mental incapacity cases which concerned the withdrawal of nutrition and hydration from a family member. Although it would not be right to comment on the specifics of any particular case, I understand the concern that such a case can raise. However, we do not plan to abolish means-testing for cases involving the withdrawal of nutrition and hydration. The means test for legal aid is intended to focus our limited resources on those who need them most and takes into account the applicant's income and any capital they may hold. Those who fall outside the financial eligibility limits are expected to rely on their resources to fund their case. However, if an applicant's circumstances change, they can apply for legal aid funding. I therefore urge my noble friend to withdraw his amendment.

On the specific point raised by the noble Lord, Lord Beecham, if he would like to send me the briefing that he has received, I will certainly check on it, write to him and put the letter in the Library of the House.

In the mean time, although I know that my noble friend will be disappointed by my reply, means-testing for legal aid is intended to focus our limited resources on those who need them most.

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Liberal Democrat)

My Lords, I am grateful to noble Lords who have spoken in support of the amendment. I am indeed disappointed by the Minister's response, but it seems to me that he has accepted that applications of this sort fall within paragraph 5, and that is on the record. I am disappointed that means tests come into a case of this nature; it seems to me utterly heartless that it should be like that, particularly when the noble and learned Baroness, Lady Butler-Sloss, has pointed out how difficult those cases are. They are heart-rending for the people concerned and for the judge who has to try such issues, not to mention all those who are involved in presenting evidence.

I shall not press the matter, but I register my view that the Government ought to have taken a more generous view on this small number of cases.

Amendment 47 withdrawn.

Amendment 48

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"

Photo of Lord Wallace of Tankerness

Lord Wallace of Tankerness (Liberal Democrat)

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.

Amendment 49

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."

Photo of Lord Wallace of Tankerness

Lord Wallace of Tankerness (Liberal Democrat)

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.

Amendments 50 to 68

Moved by Lord Wallace of Tankerness

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

51: Schedule 1, page 136, line 13, leave out "direction was" and insert "directions were"

52: Schedule 1, page 136, line 15, after "decision" insert "(or, if there was more than one, the latest decision)"

53: Schedule 1, page 136, line 16, leave out "such a direction" and insert "removal directions"

54: Schedule 1, page 136, line 27, at end insert-

"(7A) Sub-paragraphs (5) and (6) do not exclude services provided in relation to judicial review of removal directions in respect of an individual where prescribed conditions relating to either or both of the following are met-

(a) the period between the individual being given notice of the removal directions and the proposed time for his or her removal;

(b) the reasons for proposing that period."

55: Schedule 1, page 136, line 39, at end insert-

""an issue relating to immigration" includes an issue relating to rights described in paragraph 26 of this Part of this Schedule;"

56: Schedule 1, page 136, line 46, after "Schedule" insert ", or responsible for determining proceedings prescribed under paragraph 23 of that Part,"

57: Schedule 1, page 136, line 49, leave out ""removal direction" means a direction" and insert ""removal directions" means directions"

58: Schedule 1, page 137, line 22, after "to" insert "-

(a) "

59: Schedule 1, page 137, line 23, after "1," insert "2,"

60: Schedule 1, page 137, line 23, at end insert ", and

(b) "

61: Schedule 1, page 137, line 24, leave out from beginning to "the" in line 28

62: Schedule 1, page 137, line 28, at end insert-

"Specific exclusion

( ) The services described in sub-paragraph (1) do not include services provided in relation to clinical negligence."

63: Schedule 1, page 138, line 6, after "to" insert "-

(a) "

64: Schedule 1, page 138, line 7, after "1," insert "2,"

65: Schedule 1, page 138, line 7, at end insert ", and

(b) "

66: Schedule 1, page 138, line 8, leave out from beginning to "the" in line 12

67: Schedule 1, page 138, line 12, at end insert-

"Specific exclusion

( ) The services described in sub-paragraph (1) do not include services provided in relation to clinical negligence."

68: Schedule 1, page 138, line 20, at end insert-

"Clinical negligence and severely disabled infants

20A (1) Civil legal services provided in relation to a claim for damages in respect of clinical negligence which caused a neurological injury to an individual ("V") as a result of which V is severely disabled, but only where the first and second conditions are met.

(2) The first condition is that the clinical negligence occurred-

(a) while V was in his or her mother's womb, or

(b) during or after V's birth but before the end of the following period-

(i) if V was born before the beginning of the 37th week of pregnancy, the period of 8 weeks beginning with the first day of what would have been that week;

(ii) if V was born during or after the 37th week of pregnancy, the period of 8 weeks beginning with the day of V's birth.

(3) The second condition is that-

(a) the services are provided to V, or

(b) V has died and the services are provided to V's personal representative.

General exclusions

(4) Sub-paragraph (1) is subject to-

(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs 1, 2, 3 and 8, and

(b) the exclusion in Part 3 of this Schedule.

Definitions

(5) In this paragraph-

"birth" means the moment when an individual first has a life separate from his or her mother and references to an individual being born are to be interpreted accordingly;

"clinical negligence" means breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services);

"disabled" means physically or mentally disabled;

"personal representative", in relation to an individual who has died, means-

(a) a person responsible for administering the individual's estate under the law of England and Wales, Scotland or Northern Ireland, or

(b) a person who, under the law of another country or territory, has functions equivalent to those of administering the individual's estate."

Amendments 50 to 68 agreed.

Amendment 69

Moved by Baroness Butler-Sloss

69: Schedule 1, page 138, line 20, at end insert-

"Victim of trafficking of people for exploitation

(1) Civil legal services provided to a victim of trafficking of people for exploitation for-

(a) a claim for compensation in the Employment Tribunal, or

(b) a claim for personal damages relating to being trafficked for exploitation.

(2) In this paragraph "victim of trafficking of people for exploitation" means a person who has been identified as a victim of-

(a) an offence under section 59A of the Sexual Offences Act 2003 (trafficking people for sexual exploitation); or

(b) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (trafficking people for labour and other exploitation)."

Photo of Baroness Butler-Sloss

Baroness Butler-Sloss (Crossbench)

My Lords, I declare an interest as co-chairman of the human trafficking parliamentary group and as a trustee of the Human Trafficking Foundation. This is a very specific and limited amendment, which seeks to help the victims of human trafficking who have escaped.

We have two groups in mind. The first is those who manage to get away from domestic slavery. Quite often somebody from the Indian sub-continent, further east or the Middle East comes to this country thinking that they are going to work in an ordinary way. However, they find that they become a slave, working seven days a week for no pay and sleeping on the floor, and they are unable to leave the house. When they eventually escape-a certain number of these cases come up from time to time but not very many-some of them manage with the help of a law centre to get to an employment tribunal, where there are pro bono lawyers who sometimes achieve quite large sums for them by way of compensation. If the legal aid sought here, which is for legal advice and assistance to reach the door of the court, is taken away from the law centre on behalf of the individual who is exploited for domestic or labour reasons, then that individual will not get that advice. They will be foreigners, they will have no idea how to get to the employment tribunal and, quite simply, their rights will have been totally overlooked.

The second group, where cases arise perhaps less often, concerns those who are exploited for sexual reasons-generally prostitution-and who are generally but not always women. They escape and sometimes manage to find the person who has trafficked them for sexual exploitation. They manage to get to the county court or occasionally the High Court-again, with the help of a law centre, which puts the case together-and at court they will find a pro bono lawyer.

Therefore, it is advice and assistance that the amendment specifically seeks. I recognise that there is a difficulty in how best to identify a victim of human trafficking or a,

"victim of trafficking of people for exploitation",

the phrase used in the amendment. I had originally thought of referring to someone who had been identified by the national referral mechanism, but I was then warned that that mechanism was not an identifiable entity from the point of view of legislation. That is why I have used the wording as it appears in the amendment.

I am extremely grateful to the Minister and particularly to those behind him, who have indicated to me that the Government are sympathetic to this issue, but the question remains-and I understand it entirely-of how best to identify victims. However, I understand that what I am asking for is, at the moment at least, being sympathetically considered by the Government.

10:45 pm
Photo of Baroness Hamwee

Baroness Hamwee (Liberal Democrat)

My name is to this amendment. The Minister in Committee referred to Clause 9 on exceptional case determination and said that guidance would make it clear that victims of trafficking would, or should, be able to benefit from those provisions. Tonight, we have heard that the Government will bring claims by victims of trafficking within scope, I assume, at Third Reading. We have not seen the detail and, like the noble and learned Baroness, I have been wondering about the issue of evidence about an individual being a victim of trafficking. I was very pleased about that-I suppose it is a provisional pleasure until one has seen the detail-although it raises the question of whether the government amendment is necessary, given Clause 9, and given what was said at the previous stage. I hope that does not sound ungrateful. If it is necessary, what about problems that we have not yet unpacked on Clause 9?

Amendment 69, as the noble and learned Baroness said, is relatively limited in its ambition. That is not a criticism at all. However, it made me start to think about the problems faced by trafficked people. The noble Lord, Lord Beecham, referred to children in schools from a particular background having problems. I have written down: education issues around childcare; benefits, obviously; immigration other than asylum; the associated costs; expert reports; interpretation; and the disbursements paid by a solicitor such as these. I know that the Minister may think that I am pushing my luck but, as I have said before, this country finds itself as the involuntary host to a number of people who have been trafficked and it has very particular responsibilities. Perhaps after tonight it might be possible to explore what the Government have in mind in this connection and how far assistance can be provided. I pray in aid the Government's strategy which makes it entirely clear that improved victim identification and care is at the heart of our response to trafficking. I am very pleased to be able to support the amendment. I look forward to what may come at the next stage.

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Lord Bach (Labour)

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.

Photo of Lord Wallace of Tankerness

Lord Wallace of Tankerness (Liberal Democrat)

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.

Photo of Baroness Butler-Sloss

Baroness Butler-Sloss (Crossbench)

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.

Amendment 69 withdrawn.

Amendments 70 to 72

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"

71: Schedule 1, page 139, leave out lines 35 to 41

72: Schedule 1, page 139, line 43, at end insert-

""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);"

Amendments 70 to 72 agreed.

Amendment 73

Moved by Lord Wallace of Tankerness

73: Schedule 1, page 140, line 5, at end insert-

"Immigration: victims of domestic violence and residence cards

25A (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."

Photo of Lord Wallace of Tankerness

Lord Wallace of Tankerness (Liberal Democrat)

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.

Consideration on Report adjourned.

House adjourned at 10.53 pm.