Fifth Delegated Legislation Committee
Tuesday 1 July 2014
[Mr Adrian Sanders in the Chair]
Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014
I beg to move,
That the Committee has considered the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014.
May I say what a pleasure it is to serve under your chairmanship this morning, Mr Sanders?
The draft order amends schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and it introduces a residence test for civil legal aid in England and Wales, subject to certain exceptions, to which I will refer later. In general, the proceedings for which civil legal aid is available under LASPO must take place in England or Wales. However, beyond that, LASPO does not impose any nationality or residence requirements. Civil legal aid may therefore be available to those simply here on a visa as tourists or those who are in the country illegally. We believe that is unfair to British taxpayers. Legal aid is a fundamental part of our justice system but resources are limited and it is the job of Government to ensure that they are targeted appropriately.
The Minister says it is unfair on taxpayers. What figure do the Government place on the cost and/or saving of these measures?
There are no precise figures for the savings that we would make because at present the nationality of an individual is not taken into account when legal aid is granted. As for savings to the British taxpayer, I can assure the hon. Gentleman that when I go knocking on doors the way that taxpayers’ money is used is certainly a feature in my constituency, even if it is not in his.
A clear and common-sense principle underpins the residence test: individuals should have a strong connection to the United Kingdom in order to benefit from taxpayer-funded public services. This principle is not new and neither is it unique to legal aid. A residence test is already used, for example, for entitlement to free national health service hospital treatment and certain income-related benefits. Similarly, legal aid is a public service, paid for by UK taxpayers, and they should not be expected to foot the legal bills for those who do not have a strong connection to the UK.
Does my hon. Friend agree that most taxpayers are not eligible for legal aid and would find the cost of litigation prohibitive, and so have no real access to the law themselves but are funding it for people who are eligible?
I am grateful to my hon. Friend for that contribution. Yes, she is right to point out that in order to qualify for legal aid, certainly civil legal aid, there are merits and means criteria which many people would not meet.
The order generally requires applicants to be lawfully resident in the United Kingdom, the Crown dependencies or the British overseas territories on the day they apply for civil legal aid; and to have resided there lawfully for a continuous period of at least 12 months at any period in the past.
The Minister will be aware that the Joint Committee on Human Rights said in a report today that the residence test will breach the UN convention on the rights of the child. Does he have any comment to make about that?
Yes, I do. I gave evidence to the Joint Committee on Human Rights and I disagreed with that Committee. We have looked into this matter and we are confident that the provisions we are putting forward comply with our international obligations.
I wonder whether the Minister has had advice from the Attorney-General on this.
I understand that the hon. Gentleman is a member of the Committee he just referred to—
He is not. I apologise for that. I can assure him that the Government have taken advice. I am sure that his party when in government took advice before undertaking various measures. I repeat the point that we are in compliance with all our international obligations.
The hon. Member for Kingston upon Hull East may not be a member of the JCHR, but I am, and I was there when the Minister gave evidence. Unfortunately, when questioned about this, he simply repeats the assertion, as he did last week. He has given no evidence. I accept that he may not wish to publish the legal evidence, but he could at least say something to explain his reasons.
My hon. Friend says that I keep repeating the point. With the utmost respect, I say to her that she keeps repeating her point as well, as she did at the JCHR meeting that I attended.
We believe that the test—focusing on current and past connections to the UK—is an appropriate one to put in place. The residence test was first proposed as part of the “Transforming Legal Aid: Next Steps” consultation in April 2013. At that stage, we proposed to make exceptions for serving members of Her Majesty’s UK armed forces and their immediate families, and for asylum seekers. We have listened carefully to those who responded to the consultation, and to the points raised by hon. Members and those in the other place in the intervening months, including the Joint Committee on Human Rights, and we have responded by putting in place further important exceptions and modifications to the test, including, as I said, recommendations made by the Joint Committee on Human Rights.
In addition to those seeking asylum, individuals recently granted asylum or refugee status will not be required to satisfy the test, in recognition of their particular vulnerability, and children under 12 months old will of course not be required to have 12 months of previous lawful residence.
That now seems a blindingly obvious statement, but of course in the original proposals even children under the age of 12 months were caught by this. Is it not indicative of how ill-thought-out the proposals are? We have had a series of nugatory concessions, but the instrument itself is still completely defective.
For the second Statutory Instrument Committee running, I have to remind the hon. Gentleman that we are a Government who listen. We are more than happy to take on board views. The hon. Member for Telford is pointing in this direction. May I remind him that we have a full complement of Members here who take this issue seriously, unlike Opposition Members whose attendance is so sparse?
If I may make some progress, we also recognised that there are certain categories of case where it would not be appropriate for the test to apply. These broadly relate to an individual’s liberty, where the individual is particularly vulnerable or where the case relates to the protection of children. We have made a number of important modifications to how the test will operate in practice. Individuals will be entitled to take a break in residence of up to 30 days during the 12-month required period.
We also recognise that the personal circumstances of some individuals, such as age, mental disability or homelessness, may make it impracticable for them to supply the necessary documentary evidence. In such circumstances, the legal aid provider carrying out the test will have flexibility to determine that the test or exception is nevertheless satisfied. Similar flexibility in evidential requirements already exists in respect of the means test for certain forms of civil legal aid.
Will the Minister take me to the exact parts of the instrument that deal with the situation in which the stringent evidence test cannot be met?
We propose to publish the criteria for flexibility.
Hon. Members will be aware that LASPO makes provision for exceptional case funding to be available for any case outside the scope of the legal aid scheme. This ensures that legal aid will be provided where failure to do so would breach the applicant’s rights under the European convention on human rights or EU law, or, in the light of a risk of a breach, it is appropriate to provide legal aid.
Anyone who is excluded by the residence test, and does not fall into one of the exceptions I have already outlined, would be entitled to apply for exceptional funding, so legal aid will continue to be provided where an individual has a fundamental right to it. We therefore do not consider that the proposal will breach any ECHR, EU or international law obligation on the UK. The issue that the hon. Member for Hammersmith raised is addressed in draft procedure legislation that was published last week.
Some would like us to have made wider exceptions, and we considered their arguments closely. Our starting point is that a residence test is right in principle, but we agree that, in limited circumstances, exceptions should be made. However, UK taxpayers should expect their money not to be made available to those who cannot demonstrate a strong connection to the UK. We believe we have struck the right balance.
I understand that the evidence requirements are in draft and will be subject to a separate instrument. I have seen that draft, but the exemptions are set out in this affirmative statutory instrument. If the Minister cannot answer me, perhaps he can take instruction on why it contains no specific reference to the fact that on occasion it will not be necessary to comply with the evidence requirements. This is a practical matter of great concern to practitioners, and people who might be eligible will be turned away because they turn up without evidence.
As with all things, guidance will be made available for practitioners, and we are happy to take on board any views. The practice will be dealt with in separate legislation, so we should concentrate on the issues at hand, rather than digress unnecessarily.
The residence test will need to be carried out by the legal aid provider. They will need to see evidence that an applicant meets the test or falls into one of the exceptions. We published draft regulations, making detailed provision on evidence and procedure on 19 June, and copies are available in the Library and online. If the draft order is approved, we will make and lay a negative instrument shortly to give effect to those regulations. In essence, our approach to evidence is broadly aligned with the long-standing precedent of the existing checks that employers must carry out on prospective employees to establish their right to work.
With the exceptions that we have put in place, we believe that the residence test that the draft order introduces strikes a proportionate balance, and will deliver a legal aid system that is fair both to the people who use it and the British taxpayer who pays for it. I therefore commend the draft order to the Committee.
It is a pleasure to serve under your chairmanship on such a glorious summer morning, Mr Sanders. I am sorry that I may have to sour the mood slightly with the comments I intend to make on this pernicious and provocative piece of legislation, which has been roundly condemned by Committees of both Houses, jurists, experts in the field and practitioners. No doubt, the other place will give it a kicking next week, as it does to almost all Government legislation arising out of “Transforming Legal Aid”, and as it did the other day to the Criminal Justice and Courts Bill—in particular, the parts pertaining to restrictions on judicial review. It gives me no pleasure to say that and to have read the hundreds of pages of evidence-based, educated criticism of what the Government have done, which contrast sharply with what the Minister said this morning and the comments from the Government Benches.
I take the point of hon. Member for Hornchurch and Upminster that many people are not eligible for legal aid. However, that is an argument for not extending legal aid to anybody, not simply to those covered by this instrument. Although I have the greatest respect for the Minister’s constituents, whose doors he knocks on to ask what they think about this or that issue, the Government need to produce evidence in the form of costings and figures to support the proposals. The conducting of research that would show the cost-benefit is the very least that the Government should have done, but they have done none of that.
The hon. Gentleman mentions the hundreds of pages of criticism. I gently remind him that millions of British taxpayers out there take a different view.
That is pure assertion from the Minister. Let us take the point on taxpayers. There is no evidence that the proposals will save money: indeed, they are likely to cost money, because the net effect will be more litigants in person and more hardship and distress cases, which will place a huge bureaucracy burden on small businesses—which is what most lawyers’ firms and not-for-profit firms are—that in any other context the Government would condemn as a massive increase in red tape. I will be surprised if the net effect of the proposals is not an increase in costs to both Government and small businesses. I do not know the answer to that, but neither do the Government. They should have done their job.
I said that the instrument is pernicious, and it is on the grounds of: legality of process and its infringement of international law obligations and equality legislation; its purpose, and it is uncertain whether there will be any savings at all; fairness, notwithstanding the exemptions that I will come on to, as at the heart of this is a concept alien to English law and the rule of law; and complexity. We need to look at the Government’s evidence test and see what will happen in practice because I suspect that, in the main, this measure will catch not non-UK nationals, but the most vulnerable UK nationals who cannot meet that test. The Government know what they are doing, because once again we have a measure that stems not from reasoned consideration of an evidence-based proposition, but from the gut instincts and tabloid language of the Lord Chancellor, which led to the headline in the Daily Mail on 21 April, “Deny foreigners legal aid, says Justice Minister Chris Grayling.” That one sentence sums up the Government’s position.
As we have throughout the “Transforming Legal Aid” process, here we go again. The process is a concerted attempt by the Government to undermine criminal legal aid and the legal profession. However, three measures, essentially civil in nature, were tacked on at the last minute. None of those saves significant sums if anything at all—they probably all have a net cost—but they were designed as dog-whistle measures, presumably to satisfy the Government’s Back Benchers. The proposals on legal aid for prison law and judicial review and those before us today have been comprehensively rubbished and taken apart across the board and in the other place in particular.
Let us turn to the timeline. The Minister dealt briefly with the process, but it is instructive to see how the Government have developed the proposals. They were first mooted in April last year as an add-on to the “Transforming Legal Aid” document and those who know better than the Minister immediately expressed that they may be unlawful.
We then saw a series of concessions. In September, “Transforming Legal Aid: Next Steps” was published and in December the first report of the Joint Committee on Human Rights was published. Following that, in January this year, permission was granted, together with a protective cost order, for the Public Law Project to challenge the proposals before us by judicial review. I will come to that in a moment, because that is significant. The hearing was on 3 and 4 April this year, but we have not had the judgment. The judgment is imminent, and it seems bizarre that we are proceeding to debate the measures now, in the absence of the High Court’s judgment on that case. The judgment is quite likely to come between our debates and, if the Government get their way, the implementation date of 4 August. That, again, seems to be a poor way to legislate.
In February this year, the Government published their responses to the JCHR and to the “Transforming Legal Aid” consultation, and made a series of partial qualifications. In some cases, the Government have made blindingly obvious concessions that should have been in the original proposals, even on the Government’s terms, such as exempting children under the age of one. They have then sought to tidy up some of the issues that have been brought to their attention regarding asylum seekers, refugees, children and deprivation of liberty cases.
However, in each case, the exemptions have been as narrow as the Government feel they can get away with, and they have been partial. We are therefore left with quite a strangulated instrument. It sets out a series of exemptions, but the exemptions do not achieve what the Government think they should. Over the past two months, we have had the reports of the Secondary Legislation Scrutiny Committee and of the Joint Committee on Statutory Instruments, and the second report of the Joint Committee on Human Rights. Although not co-ordinated, each of those estimable Committees referred to one another’s conclusions, and they are broadly in line with one another. I shall briefly refer to them, because I think those are the points that the Minister ought to answer. He should show more courtesy to the hon. Member for Brent Central (Sarah Teather), who has come here to put those points—I know she has studied the matter carefully.
The Committees have thought about the matter in great detail. The Joint Committee on Statutory Instruments conclusion is to draw
“the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act.”
That is a rare conclusion for the JCSI to draw.
The Government appear to have taken that seriously in the sense that they produced a 30-page memorandum, although I notice that quite a lot of those 30 pages are made up of my speeches in the LASPO Bill Committee debates. I do not know why the Government are seeking to rely on them, since they certainly do not support the Government’s case. Perhaps they just put some bundles and papers together and sent them off to the JCSI to see whether they can keep it happy. However, they did not keep it happy, as the Minister knows, because the JCSI continued:
“The Committee does not find these arguments persuasive. It is also aware that judicial review proceedings have been brought in relation to the proposed residence test which were heard in the Administrative Court…and that judgment is awaited…In the Committee’s view, it is far from clear that an order-making power enabling the Lord Chancellor to vary or omit services described in Part 1 of Schedule 1 permits him to create a new general exclusion of the type proposed. If Parliament had intended that the Lord Chancellor could introduce such an exclusion by secondary legislation, the Committee considers it likely that it would have conferred an express power enabling him to do so, analogous to that contained in section 175 of the National Health Service Act 2006”.
The JCSI goes through the issue in some detail. I do not have the time to go through it in the same detail, but I am sure the Minister is aware of the report, which concludes that
“the Committee considers there to be real doubt whether those powers”—
the powers contained in section 9(2) of LASPO—
“permit him to narrow the class by reference to a wholly extraneous factor, namely the…person’s immigration status.”
LASPO clearly sets out a different way of doing things. We know that because we said in debates at that time that the measure is not permissive in the sense that only those criteria set out in schedule 1 are now in scope. It did not in any way suggest, nor did any Minister argue throughout the proceedings in both Houses, that it would allow for that type of restriction. The purpose that the Government set out was that, as things change over time and certain aspects of the law come in or out of scope, the Government may want to broaden or restrict. The Opposition did not agree with restricting by secondary legislation but the Government made provision to do so. At no stage did the Government indicate that they wished to introduce powers that were aimed specifically at a group of the population in that way. That is why the Committee concludes that these matters are ultra vires, or not intra vires. The Committee concludes by saying that there was
“no indication at all in these passages or in any of the other Parliamentary materials identified by the Ministry of Justice that the Government proposed to exercise the power to create a general exception of the type now contemplated under which individuals who do not meet a residence test would be excluded from access to many of the types of civil legal services listed in Part 1 of Schedule 1.”
I hope the Minister deals with that point in his reply because he certainly has not dealt with it so far.
By the time the Secondary Legislation Scrutiny Committee published its report we had not had reports from the other two Committees. However, it also took the view that we should have a full account of what evidence will be required. It said we should have the judgment of the administrative court before matters were considered, and that the Government should make a clear statement on how they will handle emergency situations. That Committee, too, is not satisfied. It is obviously fulfilling a different function, but in procedural terms it is saying that this is not the appropriate time to consider these matters, because the Government are not in possession of the full facts.
I will not deal with the first report of the JCHR because time has overtaken that. With great efficiency, the Committee published a further report yesterday to deal with the point that it clearly believes the Government have not addressed. When summing up, the JCHR Chair said:
“We welcome the positive changes to the legal aid proposals the Government has made in response to our first Report on this subject—particularly to exempt refugees from the residence test.”
However, it is debateable how far that goes. He continued:
“However, as long as children have a legal right to take part in proceedings which affect their interests, it is wrong—indeed, unlawful—to make it more difficult for a particular group of children to exercise that right. We do not feel that the Government has supplied enough evidence to justify why children should not be excluded altogether from the residence test. Given the critical conclusions reached by two other parliamentary committees about this instrument, I think the Government should withdraw it immediately.”
That is the view of an all-party Committee of Members from both Houses. I am sure the Minister has read the report. Its specific conclusions that led it to make that request are these:
“We cannot see any way in which this proposal can be compatible with the UK’s obligations to ensure that the views of children are heard in any judicial or administrative proceedings affecting the child under Article 12 UNCRC, or to ensure that the child’s best interests are a primary consideration in such proceedings under Article 3. To comply with those obligations, which are owed to all children in the UK regardless of their residence or other status (Article 2), legal aid must in principle be available to make the child’s rights under Articles 3 and 12 practical and effective for those who have no recourse to other appropriate means.”
The report refers specifically to children and why there should be exemptions for them. However, the points are well made and apply to other categories of persons. At many points in the Committee’s conclusions, it says:
“We again do not believe this is what the Government intended.”
That is either graciousness from the Committee or incredulity that the Government could introduce proposals that fly in the face of many of our international obligations and equality legislation.
Who specifically will be affected by such cases? They fall into three separate categories. First, they may be non-UK residents who nevertheless have meritorious cases—I will mention some examples in a moment. Secondly, they may be UK citizens who have been resident abroad for a time. An example would be members of the armed forces or their families who have an exemption, but what if they have recently left the armed forces? How long does that protection last? Does it apply only to serving members of the armed forces or does it also apply to those who have previously served in the armed forces? There will be a variety of cases of that type.
Thirdly, and in many ways most significantly, probably the most numerous cases will be UK citizens who are entitled but for one reason or another are unable to meet the evidence test and unable to get representation. For example, homeless people may find it difficult to prove eligibility. There is some exemption for human trafficking victims, but only in connection with immigration and employment claims and claims against the alleged trafficker. No provision is made for claims relating to eligibility for support such as health care. Again, victims of domestic violence will be eligible but only in a limited number of cases. Asylum seekers are covered but not those whose claims have failed and who cannot be removed. Immigration detainees will be eligible but only for claims in relation to the fact of their detention. That would mean that the recently reported sexual abuse claims at Yarl’s Wood would not attract funding for legal aid.
There are many cases. I mentioned the cases of non-UK nationals, which would include the Gurkhas. I seem to remember that the Prime Minister and the Deputy Prime Minister were enthusiastic supporters of the Gurkhas in their time, but they would not have legal assistance under the provisions—they were not UK citizens or residents at the time. The Afghan interpreters are another case that appealed to Members across parties. They would not have been eligible.
The hon. Gentleman has mentioned a number of groups of people whom he would like to be eligible for legal aid. Would he advocate relaxing the eligibility rules even further to include taxpayers in this country on low income who would like legal aid but are not currently eligible? Would he advocate relaxing the rules so it would include more people by raising the threshold, in other words, of financial eligibility?
I do not really understand the relevance of that question. I will let the hon. Lady come back to me on that point. [Interruption.] I am happy to speak at length on the history of legal aid and the eligibility test. It sits rather ill with a Government who are cutting a quarter of the legal aid budget and who have already cut £350 million of legal aid, including civil legal aid, which goes to the most vulnerable people in this country such as those on welfare benefits, those who are have serious housing disrepair, people in debt, people with education claims and so on. Many types of claim were in scope when Labour was in power but are no longer in scope. If that is what the hon. Lady is talking about, I have some sympathy with her. If she is promoting the restoration of legal aid for social welfare cases, I suggest she reads the Low report to find some comfort. Otherwise, I am not sure what point she is making.
The point I am making is that if the hon. Gentleman were in government, is that what he would do?
It would not have happened.
I am very happy to have the LASPO debate again here. It is a matter of record. We have said that we opposed at the time not all the cuts that the Government were making but those in social welfare legal aid if that was—it was rather opaque—what the hon. Lady was referring to.
Order. We are not here to have a general debate on legal aid.
As always, I was trying to please even Government Back Benchers by giving as full an answer as possible to the hon. Lady. I am happy to continue the discussion with her after the Committee and I am grateful for her interest in social welfare legal aid. She is the first person on the Government Benches, in my experience, to show such an interest.
I notice that no Government Members rose to challenge any of the categories of people to say that they were unworthy of legal aid. There are also individual cases, and I hope that members of the Committee have read the briefings circulated by organisations such as Justice, Reprieve and the Immigration Law Practitioners Association. Victims of trafficking, a woman at risk trying to deliver her own baby, the mother of an autistic child facing removal, a destitute victim of torture, a pregnant woman sleeping rough, an amputee refused housing support—those are some of the cases given in the Immigration Law Practitioners Association briefing that will no longer be eligible.
What is most pernicious about this is the effect it will have on very vulnerable people. I have received a number of letters from practitioners in relation to this and I will read a few paragraphs from one:
“The test is unprincipled. It would operate without reference to the merits of a case or the seriousness of the issues involved, creating an underclass of people unable to access the protection of the civil law no matter how compelling their claim…The test is also hugely impractical. The difficulties of demonstrating 12 months of continuous residence will mean that even those who meet the test or who fall within an exemption will struggle to show that this is the case. Individuals will not always have the necessary documentation to prove residence. Solicitors attempting to evidence their prospective client’s claims of consistent lawful residence would be required to adopt the role of immigration official, refusing access to services unless clients can provide evidence of their present and historic immigration status.
Even the exemptions created in the order would be difficult to apply and likely to be ineffective at safeguarding those they aim to protect. The order identifies those in detention, victims of trafficking, victims of forced marriage or domestic violence and children as vulnerable groups who should retain access to legal aid...However the exemptions are narrowly defined and would allow those who do qualify to access legal aid for only limited types of legal problem. The order would help to insulate the state from legal challenge”.
The category of person we are talking about includes people with learning disabilities, such as the Winterbourne View residents. They would not be able to qualify unless they could meet these stringent evidence tests.
I have the 11-page policy guidance here on the evidence that must be produced. Of course, everyone now applying for legal aid has to do this; it is not just for a handful of people who the Government believe are disreputable or are trying to slip through the net. Everyone will have to prove that they are lawfully resident at present in the UK and have a period of 12 months’ continuous residence. That might sound an easy thing to do but, in many cases, it is not.
What on earth is wrong with that?
I suggest the hon. Gentleman directs those comments to some of the cases I cited. People who have been disabled since birth, who do not have a passport because they have never gone abroad and have no need for travel documents, who do not have driving licences because they will never be capable of driving, who do not have their birth certificate plus certification by a Government agency, who have dementia, head injuries or terminal illnesses—how are they supposed to produce all that evidence?
Does the hon. Gentleman not think that those people have families or people who can vouch for them? What a load of nonsense this is.
I am not entirely sure whether that was from a sedentary position. It seems to have been a halfway intervention, but I am sure that Hansard will pick up that intemperate outburst. The hon. Gentleman needs to stop being quite so out of touch and think about—[Interruption.] I have to say, I find the attitude of the Government on this issue disgusting and appalling. People without relatives to rely on, those with mental or physical capacity issues and elderly people will be the ones affected by the measure because they will be unable to meet the stringent evidence tests. If they go to practitioners—of course, practitioners are also under the cosh from the Government in terms of producing records and evidence—they will have to be told, “I’m sorry, we can’t help you until you come here with the right evidence.” Who is going to give them assistance? The cuts the Government have made to the advice sector mean that is very unlikely. The Government should reflect on that and look at their own guidance and how complicated it is.
The problem is not new. It is the same one that rose under LASPO in relation to domestic violence claims where it appeared that concessions had been made, but, in reality, the cost of providing evidence—there is often a cost for medical records and other matters of that kind—and the complexity of doing so meant that they had not. I mention that because we have had nearly two years of the Act’s implementation and can see the falling number of claims.
I come back to the issue of cost. The Government’s own impact assessment notes that people
“may have to pay a fee for a copy of their birth certificate or other documentation if they do not have easy access to them”
“Claimants may experience delay in their cases whilst documentation is sought.”
The main point that the impact assessment makes is:
“The LAA do not currently record the residency status of a client and therefore the data is not available to estimate the impact on the volume of cases this policy affects.”
That says it all. It is not a measure designed to save money or to deal with anomalies in the system, but is what the Lord Chancellor would see as a little propaganda push.
I will conclude there as I think others may wish to speak on the matter. Notwithstanding that there is no meeting of minds on the matter, will the Minister address the points that I have made? We agree with the Lord Chancellor that this is a matter of principle, but, possibly for party political reasons or because he is off on a frolic of his own, this is an attack on vulnerable people. It has unintended consequences, as the Joint Committee on Human Rights has pointed out, but, like so much Government legislation at the moment, it attacks the rule of law. That is what concerns us about the way the Lord Chancellor is driving judicial policy.
I will end by quoting a statement of Lord Nicholls of Birkenhead, which is in the Immigration Law Practitioners Association brief from the 2004 case of Ghaidan and Godin-Mendoza. He said,
“Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced.”
We could not get a better example of discriminatory law than the proposal. Whatever its genesis or the motivation behind it, it is fundamentally unfair. It attacks groups that even the most extreme parts of the Government would not wish to attack; people who this country should support either because they have given great service to the country or because they are vulnerable. They are the people who will suffer as a consequence of the proposals and that is why we will not support the instrument today.
Thank you, Mr Sanders. I do not have voting rights today, because I am not a member of the Committee. Knowing my views, it is perhaps too much to expect the Whips to place me on this Committee. However, I came here to speak as it is the only opportunity that Members of the House of Commons have to look at the regulations in detail and to get anything on the record.
I am extremely disappointed that the Government have decided to introduce the residence test through secondary legislation. It will have far-reaching implications for many vulnerable individuals. As I said in my intervention earlier, I am a member of the Joint Committee on Human Rights. It has produced two scathing reports on the residence test, which demonstrate the need for the Government to have provided proper time on the Floor of the House for Members to consider it. It is a cynical act to produce such controversial legislation and to put it through secondary legislation, because we all know that, in every Government of every colour, the people with voting rights who attend secondary legislation Committees are not those who will have serious objections. It is therefore not a good test of the views of the House.
In introducing these regulations, the Government are using a questionable enabling power from LASPO. As the hon. Member for Hammersmith pointed out, the Joint Committee on Statutory Instruments noted, when LASPO was being debated during its progress through Parliament, there was no indication that such a power as that contained in section 9(2) would be used to create such a broadly defined exemption as the residence test.
Schedule 1 of LASPO represents the civil cases that were felt by Members to be of such importance that legal assistance must be available. These regulations will prevent a vast range of people from accessing support. The Government argue that that is because funds must be used to help only those
“with a strong connection to the UK”,
whatever that means.
Not only is the Ministry of Justice unable to tell us exactly how much money will be saved by the test, but many of the types of cases provided for by schedule 1 relate to tackling unlawful actions by public bodies, including clinical negligence, provisions for children with special educational needs, and the unlawful removal of children. Are we, as parliamentarians, really happy to remove the ability for such wrongs to be challenged? Are we happy to say that women who are victims of sexual abuse, as covered by paragraph 39 of schedule 1, will be denied access to the justice system if they cannot pass the residence test? Or that those mistreated by police officers will be unable to challenge that treatment due to their immigration status?
The test fails consistently to recognise that recent migrants are no less likely to suffer wrongful treatment by public bodies than others. Indeed, in many cases they are more vulnerable to such mistreatment.
The regulations also run counter to other work being done across Government. When I was the Children’s Minister, I announced that all Departments would give due consideration to the United Nations convention on the rights of the child when making new policy and legislation. However, the regulations before us today will, as the JCHR has argued, inevitably lead to breaches of the convention by the UK, because it will prevent children from being effectively represented in legal proceedings. The Minister said that he disagrees with the JCHR’s findings, but, despite questioning, he has been unable to provide any explanation for that, and that is not good enough. Something so controversial that affects so many people, which the House was concerned enough about to put the exemptions in LASPO, deserves a full explanation from the Minster and not a repeated assertion.
For example, nearly half of all children who arrive in the UK on their own and who claim asylum are given what is known as
“limited leave to remain as an unaccompanied asylum seeking child.”
It is granted for 30 months or until the child turns 17 and a half, whichever is shorter. Children granted this leave, who, as the Coram Children’s Legal Centre pointed out in its evidence to the JCHR, have been recognised as being unable to return home by the Home Office, will not pass the residence test for the first 12 months of this leave, despite having previously been exempt while their case was outstanding. This is one of many examples of a clear breach of articles 3 and 12 of the UNCRC.
Next week, the House of Commons will debate the Modern Slavery Bill, which will tackle the horrendous reality of human trafficking. In my view, the Bill contains much to be applauded. However, the residence test captures many victims of trafficking, despite the Government’s exemption. Although the exemption extends to certain immigration and employment cases and actions against the trafficker, in addition to the cases highlighted by the hon. Member for Hammersmith, it does not cover, for example, claims for community care services, claims in tort, or damages claims for breach of human rights. Perhaps more importantly, and more seriously for many people, it does not extend to judicial review, which is the only practical means of challenging a decision where there are not reasonable grounds for considering that a person has been trafficked, thereby preventing people from accessing the very exemption that the Government put in place. The hon. Member for Hammersmith spoke about those in Yarl’s Wood who would have been unable to raise the issue of the sex abuse of which they claimed to be victims.
There is also no exemption for stateless individuals. In April last year, the Home Office introduced new rules to allow people to be granted leave to remain on the basis of their status as stateless persons. Yet those people will be captured by the residence test, despite the UK’s being a signatory to the 1954 convention on the status of stateless persons, article 16 of which states that such persons must be granted the same access to courts as nationals.
The test will not be simple to implement, as illustrated by the rather long and complicated “Policy statement on the intended evidence requirements in relation to the civil residence test for legal aid”. All individuals seeking civil legal aid will need to prove that they both have the right to reside in the UK and have exercised that right for a period of 12 months at some point in the past. Not only will the test prove exceptionally bureaucratic and burdensome for legal aid providers, it may well deny legal aid support to individuals who are unable to demonstrate that they can satisfy the test. In addition to the long list that the hon. Member for Hammersmith read out, undocumented children, such as those who have fled domestic violence, will not have the necessary documentation.
I am particularly frustrated that the exemption for sections 17 and 20 of the Children Act 1989 does not cover judicial review proceedings. That exemption was introduced in response to JCHR criticisms. However, the way the proposal is drafted makes the exemption all but meaningless, because in many cases the only way people can access justice is through judicial review. It is almost as if the Government introduced the exemption as a sleight of hand to distract us, rather than deal with the JCHR’s substantive points. I have no doubt that if those regulations had been introduced through primary legislation and given full scrutiny, those shortcomings would have been obvious.
Members should be extremely wary of supporting regulations that will introduce an unworkable residence test, cause the UK to be in breach of its commitments under international law and deny access to justice to many vulnerable children and adults. I do not have a vote today, but if I had one I would vote no. I urge members of the Committee to vote no.
I am ashamed of my own Government for introducing this proposal. This is legislation produced for bad purpose, and merely to chase headlines. It will have no good outcomes. The vocation of politicians is sometimes to lead public opinion, not merely to inflame it and appeal to the lowest common denominator. I urge those in the Committee who have a vote to vote against this terrible legislation.
I thank the hon. Member for Hammersmith and my hon. Friend the Member for Brent Central for their lengthy contributions, and all those who intervened in the debate.
First, I will address the points made by my hon. Friend the Member for Brent Central. I wrote to the JCHR yesterday, setting out in full the Government’s view on why the test is compliant, and copies of my letter are available in the Library. My hon. Friend said she feels the test will apply to children in a way that she considers inappropriate. The Government considered the report that the JCHR issued yesterday, and are satisfied that the test remains appropriate. The Government will respond in detail to the JCHR report in due course in the usual way.
I asked the Minister during his opening remarks what legal advice the Government had received from the Attorney-General. Will he assist the Committee and explain what the advice was, on that issue?
May I state the obvious to the hon. Gentleman? This Government are compliant with the long-standing convention that Governments neither confirm nor deny advice given by the Attorney-General. If he wishes to change a long-standing convention, I suggest that he takes it up with the powers that be in his party, who may wish to make some manifesto commitment.
I am not asking the Minister to publish the Attorney-General’s legal advice to the Government. I am simply asking whether he has had advice, and whether he can confirm that the advice is on all fours with what the Minister is saying. I put this simply to him: I do not think he has had advice from the Attorney-General. I suspect that the Attorney-General’s advice is completely contrary to what the Minister is saying.
I hope that the hon. Gentleman will take it on board that he and I are not going to agree. I will simply say to him that this Government have taken into account the views of many people and many experts from a whole variety of areas. After seeking that advice, we are confident that everything we are doing is correct, proper and compliant with both the law of this land and our international obligations.
The hon. Member for Hammersmith asked how much money would be saved by the measure. While the Legal Aid Agency does not currently keep the relevant data to ascertain the precise amount of money, it is clear that some money will be saved. Also, it is important to recognise that the measure is a point of principle. We expect it to save money.
It is just a question of allowing the Committee to understand whether the measure is proportionate. The Minister argues that it will save money, but I and others have argued that the damage to individuals will be considerable. If we are going to assess whether the measure is proportionate, it will be helpful if we can understand how much money it will save.
The hon. Lady is a member of the Committee to which I spent a considerable amount of time giving evidence. I repeat what I have already said: while this Government do not have a precise sum to hand, because we do not have the data, it is abundantly clear that money will be saved.
There is also the additional factor that it is not unreasonable for millions of UK taxpayers to expect that people from overseas who use taxpayer’s money for legal aid to have some connection to this land. I think that is perfectly reasonable. There is an issue of principle here.
Both those points are contentious. First, I am not sure that the majority of British taxpayers would think that the Gurkhas, the Afghan interpreters or the people in Winterbourne View did not deserve the support of legal advice and representation. I think the Minister is wrong about that. Secondly, he cannot just stand there and assert, “I feel that this will save money.” Could he address the specific points that I made regarding the additional burden that will be placed both on the Legal Aid Agency and on small businesses, which is quite likely to exceed any savings?
Unless the hon. Gentleman is able to provide precise statistics, which he is accusing the Government of not having, I am afraid that his argument completely fails.
As for the court case, to which the hon. Gentleman referred, it is important to remember that the courts and Parliament are looking at different things. The courts will consider whether the policy is reasonable and lawful, and has been developed in a fair manner; whereas it is for Parliament to consider whether the policy is appropriate and right. The remit of Parliament is very much wider than that of the courts. I therefore consider that it is entirely appropriate for Parliament to continue its consideration of the order.
What assessment have the Government made of the increased costs of litigants in person? We are seeing them in the courts; in criminal and family proceedings. There have been many delays in the system as a result of changes under LASPO.
The Government have done a lot of research and carried out full impact assessments, and it is after a lot of work and much thought that we are proceeding with the order.
The hon. Member for Hammersmith made reference to the Joint Committee on Statutory Instruments. I have tremendous respect for its diligent and careful work and, while I rarely disagree with its comments, I do in this case.
The hon. Gentleman also said that the residence test was not mentioned in the LASPO Bill. That is a quite absurd argument. It is not the first time that he has come up with absurd arguments and that is yet another. The whole point of taking a power to amend LASPO was to deal with subsequent developments. He appears to be suggesting that everything a power may be used for in the future must be explained to Parliament when the power is taken. That, frankly, is absurd.
Will the Minister give way?
I am happy for the hon. Gentleman to consider his absurd argument.
I hate being paraphrased by the Minister as he always gets it wrong. My point was not that the residence test was not mentioned in LASPO. The Government tried to get as much power as possible in LASPO to fiddle around with the legal aid system, but the drafting is defective and does not allow for this type of change: it cannot take a whole a class of persons out in such a way. That is the legal advice that I have received and, no doubt, that will be tested in the courts at some stage. The Minister should address that point, not one of his own.
I am confident that the order, and the argument that we are putting forward, is allowed under LASPO.
The hon. Gentleman also said that the evidence requirements were too tough and that those who should meet the test would not have the required evidence. As with other requirements for access to civil legal aid, such as financial means, the onus will be on claimants to demonstrate that they meet the test. In line with the JCHR’s recommendations, the Government have provided flexibility for those individuals whose personal circumstances are such that it would be impracticable to provide the required evidence.
I am confident that the order is in compliance with our international obligations, notwithstanding the arguments put forward.
The Minister is confident about a lot of things, but I am less than confident. He is setting up a series of conflicts. There will be eligibility issues and conflicts of law, and issues about whether we are complying with domestic and international legislation. These measures will create not just a great deal of bureaucracy but a lot of satellite legislation. I urge the Government to go away and look again to see whether they can bring forward something that will not disadvantage and confuse people and make the system far more likely to collapse.
The hon. Gentleman should be aware that this debate has been ongoing for many months. We have taken on board many of the points made and we are confident that the measure is correct.
A residency test seems fine in principle, but, as my hon. Friend the Member for Hammersmith has said and as people have written to us to outline, there are a number of problems. I want to pursue one point with the Minister that my hon. Friend raised: will he explain the position of Gurkhas?
The position is quite clear. People who are serving in the armed forces and their immediate families will qualify for civil legal aid, notwithstanding the residence test. If someone is subsequently not in the country, the usual residency rules will apply. We have a test and we have made clear the position of serving members of the armed forces.
That is fine for serving members of the armed forces, but what about former members of the armed forces and their families? Since we are dealing with anomalies, another is the exemption for family legal aid but not—several practitioners have written to me about this and it has been raised with me by the hon. Members for Ogmore (Huw Irranca-Davies) and for Wrexham (Ian Lucas) separately—for legally aided family mediation. Given that the Government wish people to use mediation and as there are problems with that at the moment, why are they not prepared to extend the exemption to mediation?
Let me be clear: serving armed forces personnel and their immediate families will qualify. As far as other exemptions are concerned, although I am grateful to the hon. Gentleman for having highlighted the fact that this is a listening Government, who have brought on board a huge number of exemptions that were not on the radar originally, after careful consideration, we have drawn a line. Therefore, although I hear what he says, we do not intend to go that far. As the hon. Gentleman is warm and hot in his criticism, I give him the opportunity to stand up and say that if there were a Labour Government, they would reverse the proposal and, indeed, all the legal aid proposals that we have put forward. I invite him to make a commitment that the Labour party will put that in its manifesto.
That is bizarre. May I take that in two parts? In relation to the proposal—
I will leave that to others.
Order. We really are here to debate the draft order, not the policy of Her Majesty’s official Opposition at the next election.
Mr Sanders, I should not rise to the bait, but I want to be clear, as far as this proposal and, indeed, the other two add-on or afterthought proposals in transforming legal aid are concerned. In relation to the Government’s wider attack on the rule of law, particularly judicial review, I hope that we would do everything we could to restore the position at an early date.
I take it that the hon. Gentleman is saying that there will be no commitment in the Labour party’s manifesto to reverse this or, indeed—
Order. May I ask the Minister, please, to refer just to the measure that is before us today?
I certainly will, but I think I have made my point. May I say that, notwithstanding the rhetoric from the hon. Gentleman and, indeed, one or two of his colleagues, the importance that the Labour party places on the issue is evident from the fact that there are five Members on their side of the Committee, whereas we have a full complement of 10 on our side, and I exclude my hon. Friend the Member for Brent Central (Sarah Teather) from that as she does not qualify to vote—
Will the Minister give way?
Will the Minister give way?
I am concluding now. The measure is something that we have thought through thoroughly. We are confident that it is the right thing to do for millions of British taxpayers who pay for legal aid.
The Committee divided: Ayes 10, Noes 5.
Question accordingly agreed to.
That the Committee has considered the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014.