Clause 9 - Exceptional cases
Legal Aid, Sentencing and Punishment of Offenders bill

Philip Hollobone (Kettering, Conservative)

I remind the Committee that with this we are discussing the following: amendment 97, in clause 9, page 6, line 12, at end insert—

‘(c) that there is significant wider public interest in the resolution of the case,

(d) that the case is of overwhelming importance to the individual, or

(e) that should the individual represent himself this would create obvious unfairness in all the circumstances of the case.

‘(3A) For the purposes of subsection (3)(c), exceptional funding should be provided where, in the particular circumstances of the case, the provision of legal services under this Part is likely to produce significant benefits for a class of person, other than the individual and members of the individual’s family.

(3B) For the purposes of subsection (3)(d), exceptional funding should be provided where a case has exceptional importance to the client, beyond the monetary value (if any) of the claim, because the case concerns the life, liberty or physical safety of the client or his or her family, or a roof over their heads or raises other significant human rights issues.’.

Amendment 226, in clause 9, page 6, line 12, at end add—

‘(c) that the individual is a child, or is without mental capacity’.

Amendment 227, in clause 9, page 6, line 33, at end add—

‘(7) Civil legal services are to be available to an individual on a means tested basis for advice and assistance to prepare an application for funding under subsection (2)(a).’.

Andy Slaughter (Hammersmith, Labour)

It is a pleasure to see you in the Chair for our final sitting this week, Mr Hollobone. When we adjourned this morning, I was encouraging the Minister—by way of further encouragement, I will sit down shortly to give him a chance to respond—to explain in detail how clause 9 and the regime of exceptional circumstances will work. The Government have a duty to do so, having relied on that as they have.

I mentioned attending yesterday afternoon’s meeting of the all-party group on legal aid, which is ably chaired by my hon. Friend the Member for Makerfield. Historically, hon. Members of all parties have attended—the right hon. Member for Carshalton and Wallington (Tom Brake) has done so, and the Minister has been invited to attend; it is a shame that yesterday only I and Lord Bach attended—and I hope that, notwithstanding the serious disputes, it will continue to function in that way. The message that I was asked to bring to the Minister specifically on clause 9 was that practitioners want to know how the regime will operate, and how they can use it effectively, not to get round Government powers but to ensure that meritorious and acceptable cases are heard.

Yvonne Fovargue (Makerfield, Labour)

My hon. Friend refers to yesterday’s meeting of the all-party group. A specific query—I am sure he agrees that it is important that it is answered—is whether the telephone gateway operators will tell people about the exceptional cases funding. If so, where will they refer people to obtain advice on making their case, and will there be legal aid for that? If the court considers that someone needs an application, what will they have to do? The group raised a number of questions that I hope the Minister will answer.

Andy Slaughter (Hammersmith, Labour)

That is a good example of what I was talking about, and I am sure the Minister will take it and other points on board. I quite liked this morning’s idea of attribution, and although it may extend our sitting, I will attribute everything from now on because that will show how many and varied are the organisations opposed to the Bill.

Citizens Advice made two specific points that are not covered in its general remarks. It said:

“It is perverse that the proposed new criteria for civil funding set out in schedule 1 are structured around crisis point situations such as immediate homelessness and domestic abuse”.

It said that that also applies to clause 9, and it is absolutely right. The Government are setting up a system that works entirely in crisis situations—the exception rather than the rule. That is no basis for legal aid.

The Bar Council ventured the view that, even in their narrowly drafted clause, the Government may not achieve what they wish to achieve. It said:

“An oddity immediately arises from the prima facie exclusion of private family law from legal aid, given the apparent Strasbourg view that at least some non-domestic violence private family cases can be sufficiently important to require legal aid, given the importance of the issues to the lives of the parties, especially the children.”

Dave Watts (St Helens North, Labour)

Does my hon. Friend find it as strange as I do that both the Prime Minister and the Minister continue to praise Citizens Advice, then ignore any advice that it gives them?

Andy Slaughter (Hammersmith, Labour)

And it is free advice, at least at the moment.

I mentioned children, and because my hon. Friend the Member for Stretford and Urmston has dealt so comprehensively with that I shall not speak to her amendment save to say that there is a discrepancy between what the Government say today—unless they accept the amendment—and Lord McNally’s statement:

“As far as possible, our intention is that, where children are involved, legal aid will still be provided.”—[Official Report, House of Lords, 7 July 2011; Vol. 729, c. 343.]

What is in the Bill is not “as far as possible”, but it will be if the amendment is accepted, as I hope it will be.

Finally, I ask the Government to take a serious look at amendment 227. Another feature of the Bill is the catch-22 or, to put it in less clichéd terms, the way the Government are using the processes and procedures that they are setting up as a rationing mechanism—whether a telephone gateway, fees for access to services or, as in the case in question, an application process so complex that it would be difficult for an unrepresented person to make a proper case for exceptional funding. I commend to the Minister the simple, and not expensive, proposal contained in the amendment.

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

Amendment 96 to subsection (3)(b) and amendment 97, through which the right hon. Member for Dwyfor Meirionnydd would insert additional subsections after subsection (3), would essentially retain the existing exceptional funding criteria and enshrine them in primary legislation.

Subsection (3)(b) enables the director to make an exceptional case determination where he considers that the failure to provide legal services would not necessarily amount to a breach of an individual’s right to legal aid, but it is nevertheless appropriate for funding to be made available, having regard to the risk of such a breach occurring. Amendment 96 would allow the director additionally to fund excluded cases where he or she determined that it would be appropriate to do so in the particular circumstances of the case, having regard to the interests of justice. The phrase “interests of justice” is capable in the context of wide interpretation, and I have no doubt that that is the right hon. Gentleman’s intention. However, amendments 96 and 97 would together result in a power considerably broader than the one we propose in clause 9.

The existing exceptional funding criteria were created to complement the existing legal aid scheme. It is right that, as we refocus the legal aid scheme as a whole, we adjust the exceptional funding scheme accordingly. As the right hon. Gentleman will be aware, the new exceptional funding scheme will provide funding for excluded cases where, in the particular circumstances of a case, failure to do so would be likely to amount to a breach of the individual right to legal aid under the European convention on human rights, or any rights of the individual that are enforceable EU rights. Funding will also be available in inquests only where there is a significant wider public interest in the applicant’s being represented.

The hon. Member for Hammersmith asked for information about when exceptional funding would be awarded. We will publish guidance on the determination test and process in due course, but for now I will say that exceptional funding determinations will be made in  accordance with the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

Will the Minister give way?

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

I will finish my explanation, then give way.

For example, if a case involved the determination of civil rights or obligations, thereby engaging article 6 of the European convention on human rights, the director would go on to consider whether there was convincing evidence that, in the particular circumstances of the case, the absence of public funding would make the assertion of a civil claim practically impossible or lead to an obvious unfairness in the proceedings. It is a high threshold, but in considering whether legal aid should be provided in an individual case, the director of legal aid casework will need to take into account such things as the importance of the issues to the individual concerned and the nature of the rights at stake, the complexity of the case, the capacity of the individual to represent themselves efficiently and alternative means of securing access to justice.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

The Minister has answered part of my question. The other part was about what would happen if there was a point of law of general public interest. In other words, if a case could have wider implications, would that also be an exception to the rule?

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

I will come on to the wider public interest point. Exceptional funding determinations will continue to take into account a significant number of factors that inform the existing scheme. I hope that allays some of the concerns expressed by hon. Members.

Yvonne Fovargue (Makerfield, Labour)

Will the Minister give way?

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

I will follow up on the right hon. Gentleman’s second point and then the hon. Lady can intervene.

The amendment would have the further effect of retaining the significant wider public interest criteria for all excluded cases. We believe that that would not focus our limited resources effectively enough on those matters that we consider sufficiently important to justify the use of public funds.

Significant wider public interest currently means that the resolution of the case has the potential to benefit other people, and that legal aid will assist in delivering those benefits, but in the Government’s view, the simple fact that a number of other people may stand to benefit from the resolution of a case does not necessarily mean that the case should be funded exceptionally. For example, the criteria can be used to fund business cases where the likely beneficiaries would be other business men. Again, our approach on that point is consistent with our overall approach in the Bill. We propose that public interest should be a feature of the merits test for individual in-scope cases and that it should no longer be used as a basis for bringing tranches of cases back into scope.

Yvonne Fovargue (Makerfield, Labour)

The Minister mentioned funding for exceptional cases. Will there be a fixed budget for the maximum spend on exceptional cases? He talked about a number of cases of a particular type being brought back into scope. What mechanism will allow a review of whether to reduce spending should that type of case be brought back into scope?

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

I will come back to the hon. Lady on that point, but let me continue for the moment.

The right hon. Gentleman will be aware that clause 94 allows funding to be provided for representation in inquest cases where the director makes a wider public interest determination. It is right to retain wider public interest criteria in such proceedings because by their nature, inquests are concerned with matters different from those involved in civil litigation more generally. Inquest proceedings may offer lessons to be learned about potentially life-threatening practices that could affect other lives. In the Government’s view, providing exceptional funding for cases and inquests where there is a significant wider public interest may help to prevent deaths.

The wider public interest test is narrowly drawn for inquests in that it is the litigant’s representation at the inquest that must provide wider benefits, not merely the holding of the inquest itself. In addition, the cases described in proposed subsection (3A) would not be likely to require exceptional funding as they are precisely the types of case for which legal aid would generally remain available. The new scope of civil legal aid targets funding on those who need it most and the most serious cases in which legal aid or representation is justified. The Bill therefore provides that funding will continue to be routinely available for cases where people’s life or liberty is a stake, and where they are at risk of serious physical harm or the immediate loss of their home. Legal aid will continue to be provided for cases involving significant breaches of human rights.

Let me take the right hon. Gentleman back to the fundamental purpose of the reforms and the exceptional funding system. I remind the Committee that the changes included in the Bill will make civil legal aid more focused, effective and sustainable. Legal aid has expanded far beyond its original scope and many of the current areas of availability should not require any legal expertise to resolve. The changes will encourage people to seek early resolution of disputes and improve affordability. Access to legal aid will remain for those most in need and for the most serious cases in which legal advice or representation is justified. It is right to have an exceptional funding scheme to provide an essential safeguard for the protection of an individual’s fundamental right to access to justice, and clause 9 achieves that important end, but expanding the criteria for exceptional funding in the way suggested by the amendment would undermine our approach on scope and our rationale for making changes to the legal aid system.

Dave Watts (St Helens North, Labour)

The Minister makes the point that the scheme has been expanded over time. Has it been expanded because Parliament has accepted that without those criteria and that new provision, justice cannot prevail?

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

We could spend a large part of today and probably tomorrow debating how and why legal aid has expanded over the past 40 or 50 years, but we are  where we are. I am pleased to tell the hon. Member for Makerfield, who asked whether there will be a fixed budget for exceptional funding, that there will not be, and nor will it be capped.

Amendment 226, which the hon. Member for Stretford and Urmston explained in some detail, would ensure that children and those without mental capacity received exceptional funding in all circumstances. In effect, all matters of law would be brought into scope for children or those lacking mental capacity. Let me make it clear that children and those who lack mental capacity are among the most vulnerable members of society and are, as a consequence, likely to require the greatest protection. I do not think any Member here would have anything to say against that.

As I stated, clause 9 will enable the director to provide funding in an individual case where the failure to do so would be likely to amount to a breach of an individual’s rights under the ECHR. The individual’s capacity to represent himself or herself will obviously be an important part of that assessment, but the question whether legal aid is required to protect fundamental rights of access to justice will always turn on the individual facts of each case. The right hon. Member for Dwyfor Meirionnydd made a point about that. Parents often bring cases on behalf of children, as their litigation friend. That would be taken into consideration in deciding whether they have the ability to present their own case, but the amendment would introduce a blanket rule that was not capable of taking into account all relevant circumstances.

In considering whether exceptional funding should be granted in an individual case, we will consider the client’s ability to present their own case, the complexity of the issues, the importance of the issues at stake and all other relevant circumstances. Where a child brings an action without a litigation friend, that will be a relevant factor in deciding whether they have the ability to present their own case. However, in the vast majority of non-family civil cases involving children, their parents and guardians bring proceedings on their behalf. That means that children do not generally need to instruct a legal adviser themselves.

The hon. Member for Stretford and Urmston asked whether there would be legal aid for gathering evidence of abuse. Funding will continue to be available where there are allegations and civil claims of abuse of a child or vulnerable adult. People do not need to prove the abuse exists first. She also asked about retaining funding for children. I can tell her and the hon. Member for Stockton North, who spoke about funding and asked about costs, that we will continue to provide approximately £130 million of legal aid per annum for the representation of child parties. That represents about 95% of the current spend, so the percentage reduction in the spend on children will be about 5%.

Alex Cunningham (Stockton North, Labour)

I am grateful to the Minister for trying to address our concerns, but I sought his advice specifically about looked-after children. The question my hon. Friend the Member for Stretford and Urmston asked me, which I could not answer, was whether a local authority would be responsible for picking up legal costs in relation to looked-after children who needed to enter the justice system. What is the answer?

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

The point the hon. Gentleman raises, which has been raised by many other hon. Members throughout the various stages of the Bill and indeed by many outside organisations, is whether one part of the Government should have to pay for another. Throughout deliberations on the Bill—in fact, ever since I have been a Minister—I have had regular meetings with various Ministers in other Departments to see how we can improve communication between Departments and procedures for taking action. Ultimately, however, the hon. Gentleman must realise that there will not necessarily be a saving to the taxpayer if one Department gets savings from another; it could be, in effect, robbing Peter to pay Paul. That is not to say that it is not important that we facilitate better arrangements between Departments, and work is being done to achieve that.

Alex Cunningham (Stockton North, Labour)

I would be grateful if the Minister answered the specific question. If legal aid is not allowed under the law for a looked-after child who needs to go to law for whatever reason, will the local authority be responsible for picking up their legal costs?

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

It is impossible to say without knowing the circumstances of the particular case.

Amendment 227 would ensure that civil legal services were provided for the purposes of making an exceptional funding application. I assure the Committee that the Government will implement appropriate procedures to ensure that those who require exceptional funding will, in practice, be able to access the scheme. To that end, we will of course engage with all interested parties, including key stakeholders, to discuss relevant procedural issues such as contracting and remuneration and the important practical questions surrounding applications to which her amendment alludes. On that basis, I hope that hon. Members will withdraw their amendments.

Philip Hollobone (Kettering, Conservative)

Just to inform the Committee, should the present business in the main Chamber run its full course, we can expect a Division in the House at 8 minutes past 2, or at any time before then.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

Welcome back to the Chair, Mr Hollobone.

Although I am partly reassured by some of the things that the Minister said, I still have doubts. Some powerful and well argued speeches were made this morning, not least by the hon. Member for Stretford and Urmston. It would be better in the circumstances if the Minister took away the matter for further consideration, because my amendments were not meant to drive a coach and horses through the Bill. He said in response to an intervention that class actions are a thing of the past. Many citizens over the years have had redress through class actions funded by legal aid, and many landmark decisions and changes in the law have been made. All that will become a thing of the past, which is disappointing.

I am not one to press everything to a vote for the sake of doing so, but I believe that this part of the Bill is important, so I seek the Committee’s leave to press both my amendments to a Division. I do so in the knowledge that despite the outcome of the Division, the matter will undoubtedly be revisited in the other place and when the Bill returns to the Floor of the House. I hope that in  the ensuing weeks and months, the Minister will reflect further on my amendment and understand that neither it nor the others were intended to be wrecking amendments, but were intended to improve the Bill. If we are here to do anything, we are here to improve the Bill, whether we are helped by Liberty, the Bar Council or anybody else. If we decide to use their advice, that is a matter for our discretion, much as the Minister—with respect to him—read verbatim the brief that he was handed by civil servants.