Committee (4th Day)(Continued)
Schedule 1 : Civil legal services
Amendments 61 and 61ZA not moved.
61A: Schedule 1, page 128, line 20, at end insert—
“Victims of trafficking of human beingsCivil legal services provided to a victim of trafficking in human beings (“V”) in relation to—
(a) rights to enter or remain in the UK;(b) an employment claim relating to the experience of trafficking; (c) a claim for damages relating to the experience of trafficking; or(d) compensation relating to the experience of being trafficked under the criminal injuries compensation scheme.”
My Lords, the Minister may be relieved to hear that these are the last two amendments in my name. They refer specifically to human trafficking, a very special part of the Bill. I declare an interest as the joint chairman of the All-Party Parliamentary Group on Human Trafficking. In moving Amendment 61A, I must also refer to Amendment 90A, which I hope noble Lords will consider to be self-evident from the wording.
The European Union directive, which the Government have signed up to, to everyone's delight, has in Article 12(2) and Article 15(2) the requirement for legal aid provision and legal assistance. If the Minister will forgive me, I want to quote the words of Article 12(2), which are very similar to the words in Article 15(2), which deals with adults. The directive states:
“Member States shall ensure that victims of trafficking in human beings have access without delay to legal counselling, and, in accordance with the role of victims in the relevant justice system, to legal representation, including for the purpose of claiming compensation. Legal counselling and legal representation shall be free of charge where the victim does not have sufficient financial resources”.
There is very similar wording on children in Article 15(2).
The Government also signed the European convention prior to the European directive. Article 12(1)(d) requires a party—that is, the United Kingdom—to provide,
“counselling and information, in particular as regards their legal rights … in a language that”,
the victims of trafficking in persons can understand.
That is the background to the four matters raised in the first of the two amendments, which aims to provide civil legal services to victims of trafficking in relation to rights to enter or remain in the United Kingdom, employment claims, claims for damages in the employment tribunal, damages in the county court or possibly the High Court, and compensation under the criminal injuries compensation scheme.
The Immigration Minister in the other place, the right honourable Damian Green MP, suggested recently in answer to a question that victims of trafficking did not need legal aid. If he was including civil proceedings, then the Minister is mistaken. There are a number of situations in the civil and immigration areas of the law where legal aid and advice can continue to be vital for many victims, who will be disproportionately adversely affected by these cuts. They are, as noble Lords will know, a very special group of disadvantaged people. Amendment 61A would restore legal aid to victims of trafficking in the four specific areas that I have already mentioned.
Between July and December of last year, something like 219 victims of trafficking were identified under the national referral mechanism. By no means would all of these require legal aid for the various areas that I am referring to. Some victims will require asylum while some will seek immigration status and not asylum; they will be trying to stay in the United Kingdom. However, there will be many others who wish to return home but want to make a claim against traffickers before they do so.
The two main groups who will be affected by Amendment 61A are sex slaves—victims of sexual exploitation—and domestic slaves, who are caught in domestic labour situations. The group who have been sexually exploited would almost certainly be seeking damages in the county court if the traffickers have assets here, as some do. These traffickers are serious and well organised groups with a great deal of money available.
The victims of labour exploitation are generally unpaid domestic servants who make their claims in the employment tribunal. The trafficker in those cases is very often an individual who has brought somebody in or employed somebody to whom he or she is not paying a single penny. They take their passport from them and make it impossible for them to leave the house. Those people are trafficked but in a different way. That sort of trafficker will have assets in this country and the employment tribunal can make orders in relation to them. I remind the Minister that it would be far preferable for victims to claim against traffickers than against the criminal injuries compensation scheme which relies, as everyone knows, on public money. How on earth are foreigners without legal advice and assistance, and with limited English, going to manage to get to the county court or the employment tribunal if these cuts take effect?
At present, the effective system is that law centres with legal aid contracts take on an advisory role for these victims using legal aid. They get the case to the door of the county court or the employment tribunal. Marvellous pro bono lawyers, mainly barristers, then conduct the cases in the tribunal and sometimes in the county court. It is very interesting that employment tribunals are making large awards to victims of domestic exploitation—up to a quarter of a million pounds. These are far larger than those in the county court. I am told by the North Kensington Law Centre—which does the most excellent job—that if this legal aid is removed, the help will not be available and the traffickers will not be challenged by compensation claims. The only area that will retain legal aid will be claims for discrimination, which is not always the appropriate claim for a victim of human trafficking, whose main claim may be for five years of unpaid wages. I am told that a large number of these cases in the employment tribunal settle very early on for quite large sums and consequently cost very little money to the legal aid system.
There is a further serious point. It is suggested that domestic visas may be withdrawn. The Government have said this, but I do not know whether they have yet made a decision. If they do withdraw domestic visas, women and children brought in to work in houses will be illegal immigrants. This area of trafficking will be uncontrolled and the employment tribunal will no longer be available. It will be most likely to affect children, because children can be brought into this country on education visas by fake parents or other relatives and then put to work, as they are already put to work as domestic slaves. It will be extremely difficult to stop this sort of slavery if the domestic visa is no longer available. Then, of course, these young people—or indeed adults—will be forced into the asylum system, which is already overloaded, rather than making claims and then returning home.
A matter of particular concern is the proposed telephone gateway, which is the Government’s idea—I do not mean that impolitely—or plan for how people can obtain help. Not all victims necessarily get processed through the NRM and they need to be otherwise identified as victims. As I understand it, the telephone operators will not be specialists. One would not expect that. However, a foreign victim of trafficking with little or no English, having escaped from an appalling situation of slavery, is not likely to be coherent or explicit on the telephone. He or she may say his or her passport has been withheld, or that he or she has not been paid, and probably does not know what to ask for—for example a claim for compensation or the right to remain until the claim has been processed. He or she is very unlikely to say he or she is a victim of trafficking, and is very unlikely to be identified by the telephone operator as a victim or to be referred to the appropriate specialist adviser with expertise in this field of trafficking. These are very complex cases—how on earth will the telephone operator cope? Victims are likely to fall through the net. This will be discrimination against those victims; in which case the United Kingdom will be failing in its obligations under the directive.
I hope the Minister accepts that the Government have overlooked the effects of cuts upon this relatively small, special group of people. The wording of Amendment 61A could undoubtedly be improved, particularly in terms of identifying who is actually a victim of trafficking, but to penalise this group of seriously disadvantaged people would be contrary to the EU directive, the European convention and, perhaps more importantly, the Government’s own excellent strategy document. I beg to move.
My Lords, I support these amendments with great enthusiasm. The noble and learned Baroness referred to the convention, and at the end of her remarks she referred to the government strategy which I think was published in the middle of last year. That, as I read it, has two limbs: one is to deter and disrupt trafficking; and the other, quite explicitly, is improved victim identification and care. These amendments fall absolutely squarely within the strategy that has already been articulated.
Trafficking by its nature is very largely hidden. It seems that as the unwilling but nevertheless host country in which victims find themselves, we have a number of duties. One of those duties is to enable these people to use the facilities of the state. The issues that have been listed in these amendments would fulfil that obligation. The noble and learned Baroness referred to migrant domestic workers. Those who may have been trafficked to work in cannabis farms or sometimes in restaurants—in the kitchens, not where you see them—would have similar sorts of claims. I do not want to repeat all the points that have been made or turn this into a hearts and flowers argument, as I see it as a matter of duty and central to what the Government have already identified.
I am in total sympathy with the amendments that the noble and learned Baroness has tabled, but I wanted to ask her whether she envisages that victims of trafficking who might make employment claims could also include people who are employed by gangmasters in conditions of well nigh slavery, fruit-picking or cockle-picking.
I warmly commend the amendment, which I think will receive strong support from all parts of the House. The Bill in general is open to the awful charge of shifting the burden of our economic difficulties on to those who already in their lives face disproportionate difficulties and hardship. This is a particularly nasty and mean provision within that general strategy. These people are victims. They are not people who have just transgressed the law; they are victims of cruel, harsh and cynical treatment. If this country stands for anything, it must surely stand for ensuring that such people get some kind of justice after the experiences to which they have been exposed.
I would like to say a word on migrant domestic workers. First, I congratulate the noble and learned Baroness, Lady Butler-Sloss, on the wonderful work that she does on the All-Party Parliamentary Group on Human Trafficking, which has been influential on helping to shape government policy on trafficking, which has as she said made enormous strides in recent years.
The particular case of migrant domestic workers is subject to a consultation being undertaken by the Home Office. From what I have heard, the Government are moving towards ending the special status of migrant domestic workers on the basis that, as the Home Office considers, employers who want to have domestic servants should employ people from the European Union and pay them the national minimum wage. This is a fantasy when you consider that many lawyers are at present already breaking the law by bringing in people under other headings, such as students, and then transferring them to domestic slavery.
The particular case that has been drawn to our attention many times by Kalayaan, the organisation that defends the rights of migrant domestic workers, is that of people who bring in domestic workers as visitors accompanying them when they enter the country. They get leave to enter for six months, which in many cases is enough to meet the needs of the employer, but in some cases they remain on as overstayers after that period. If the Government move in the direction that I have suggested, there will be an enormous increase in the number of people brought in illegally by the employers in this way. They will really need the support that they can get only from having access to legal aid, because by definition if they manage to escape they will be destitute. They will have the support of NGOs such as Kalayaan, but without access to the courts they will be deprived of remedies that we think are their rights.
I very much welcome the amendments tabled by the noble and learned Baroness and hope that if the Government cannot accept them in precisely the form as they are tabled today, they will find some way in which to meet this need.
My Lords, we absolutely support the noble and learned Baroness in her amendments in this group. Very few crimes engender more opprobrium or anger both within and between Governments than crimes involving human trafficking. It is dispiriting that even today the illegal trade of people in this form still exists and perhaps even flourishes.
As the noble and learned Baroness said, we should rightly be proud that the international community has worked together to promulgate the protocol to prevent, suppress and punish trafficking in persons, especially women and children, adopted by the United Nations in Palermo in 2000. I am proud again that nine years later our country ratified the Council of Europe Convention on Action against Trafficking in Human Beings. The noble and learned Baroness quoted from part of that convention. The quote that I have is from Article 15 of that convention, to which she referred. She quoted from Article 12, I think, but Article 15.2 says:
“Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law”.
It goes on at paragraph 4 to say:
“Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets”—
and it goes on to describe those assets. It is a pity that the Government have, so far at least, shown a somewhat less generous view of their obligations.
The Government stated in their response to consultation on this matter:
“There will be instances in which the Convention”—
meaning the Convention on Action against Trafficking in Human Beings —
“requires legal aid to be provided to victims of trafficking to fund their claims. However, we estimate that the volume of these cases is likely to be small and any obligation to provide legal aid will be met by the proposed new exceptional funding scheme that will provide legal aid where failure to do so would be likely to result in a breach of the individual’s rights to legal aid under the Human Rights Act 1998”.
The feeling around the Committee seems to be, and I very much share it, that that approach on this matter is unacceptable. Neither is it worthy of our legal system and our commitment to access to justice. It is not enough to rely on the Human Rights Act 1998 and say that anything that might not be in breach of it is somehow okay.
If legal aid is taken out of scope, it threatens to force victims of trafficking—acknowledged by the Government as some of the most vulnerable people in our country—to navigate an unfamiliar system in a language they may not understand, when they are almost certainly highly distressed and seeking legitimate redress against their persecutors. The noble and learned Baroness described the state of a number of those who had suffered in this way. To abandon them in the way that the Government intend, if this Bill were to go through unamended, for such small savings would be a violation of our positive obligations under the treaty and of our obligations under any sensible framework for deciding when the state should provide legal advice to those who need it.
If I use an unparliamentary expression, forgive me, but this amendment really should be a no-brainer. Victims of trafficking deserve not just our compassion and help, but that of the state when they require it. If we take the Government's own analytical framework for decisions on scope for legal aid, this would seem to be a group that perfectly fits the criterion of a,
“physically or emotionally vulnerable group”.
ILPA, the immigration lawyers’ association, described this group as a kind of paradigm of that criterion and I hope that the Committee would agree.
As far as the gateway to which the noble and learned Baroness referred in opening this short debate is concerned, it must always be remembered that the gateway is there only for matters that remain in scope. In any matters that come outside scope, the person who receives a phone call from a would-be client has to say, “I am sorry, this is not in scope”. Maybe they will give the name of some solicitor or other but they will not be able to take it further themselves, because the matter is out of scope. How horrific it would be if this matter became out of scope, so that even when a telephone call was made—and that is not the most satisfactory way of doing it—they could not be helped.
Secondly, some years ago the noble Baroness, Lady Young of Hornsey, who is not in her place and the noble Lord, Lord Carlile, among others, came and saw me about an issue in a criminal justice Bill that was going through this House which involved this sort of vulnerable victim. They asked us to take some action in regard to it. It was not to do with legal aid or anything like that, but I mention it because we listened to what they had to say. The arguments then were powerful; they are very powerful tonight on behalf of this group. I very much hope that the noble and learned Lord will at least take this away, and consider whether the Government cannot make what would be generally received as a very acceptable concession, if concession is the word, to the present wording of the Bill. Given all the difficulties the Government have and the criteria they set down, I ask them to reconsider their approach to this group of people. These are very powerful amendments indeed.
My Lords, I wonder whether the noble Lord has had the professional experience that I have had, where somebody who is faced with a claim which may result in quite a hefty award of compensation or damages against him finds that his mind is quite concentrated. That in itself is a very significant deterrent to continuing in the business, and trafficking is a business.
My Lords, the noble and learned Baroness, Lady Butler-Sloss, indicated when speaking to her amendments that they were the last two that she had in this section. None the less, in dealing with vulnerable people, their importance was obvious by the end of the debate that they engendered. The more that I have learnt about human trafficking over the years, the more appalled and outraged I am by some of the abuses that go on. Various conventions have been acknowledged, such as the Council of Europe Action against the Trafficking of Human Beings, to which the previous Administration quite properly signed up.
Amendments 61A and 90A intend to bring into scope particular areas of legal aid for victims of human trafficking. Amendment 61A would give the victims of such trafficking legal aid for immigration matters as well as for damages in compensation claims in relation to the experiences of trafficking before the Criminal Injuries Compensation Authority, the civil courts and the Employment Tribunal. Amendment 90A would allow for publicly funded advocacy for victims of human trafficking in cases that they bring before the Employment Appeal Tribunal.
On the immigration element of Amendment 61A, the first point to make is a general one that was reflected in one or two contributions. In many cases, victims of trafficking want to return home. In some cases, though, they wish to claim asylum, and, for that, legal aid will remain. It is important that that point is made clear. There may be other occasions where they need to remain in the country, perhaps to help police with their investigations or on compassionate grounds if there are compelling reasons for that. There are provisions for victims to remain in these circumstances.
As the Committee will know, the Government provide funding of some £2 million per year to the Salvation Army to provide support to victims of trafficking so that they can rebuild their lives. This includes signposting and informing victims of their rights to stay in the country, whether in the short or long term. However, we believe that specialist legal advice in respect of immigration on top of that is not required. Nevertheless, the Salvation Amy and its subcontractors signpost and inform victims of their legal rights.
Government funding also helps to inform people about their options regarding compensation as a result of trafficking, whether through the Criminal Injuries Compensation Authority, the civil courts or the Employment Tribunal. Compensation orders, too, can be made at the end of a criminal trial.
For the civil routes to compensation, which a number of contributions have revolved around, the Government made it clear in their response to the consultation on legal aid reform that the route for funding in these cases would be the exceptional funding scheme, and published guidance will reflect that. In fairness, the noble Lord, Lord Bach, acknowledged the Government’s position, although he did not agree with it, and it would be unfortunate if this debate gave the impression that all avenues of funding have been cut off or withdrawn.
The noble and learned Baroness, Lady Butler-Sloss, asked whether it would be possible to make claims against traffickers and whether those claims would be funded. The answer is yes—they are capable of being funded through exceptional funding. This is because the right to legal support for compensation claims, as set out in the convention, is with reference to the requirements of Article 6 of the European Convention on Human Rights and is therefore very much in line with the exceptional funding test. It is important to recognise that there is a route for funding for people who find themselves in these circumstances.
Amendment 90A would allow for advocacy for victims of trafficking in employment appeal tribunals. The noble and learned Baroness raised the question of the consultation on visas for domestic workers, a point picked up by my noble friend Lord Avebury. My understanding is that a Home Office consultation has taken place; as far as I am aware, no response has yet been published, but I will certainly ask officials to ensure that the comments made on that important point are drawn to the attention of those at the Home Office who are dealing with the consultation.
With regard to the Employment Appeal Tribunal, it has been observed that some very large awards can be made. Again, however, such cases would in principle be funded through the exceptional funding scheme if required by not only the European Convention on Human Rights but European Union law. The exceptional funding scheme is available in these cases—it is not the case that support has been withdrawn. There are other means of support for those who have been trafficked. As I have said, the Salvation Army has made efforts to support and assist them. Therefore, I ask the noble and learned Baroness to withdraw her amendment.
My Lords, may I first thank noble Lords for their substantial and much appreciated support for these two amendments? The Government are undoubtedly to be congratulated on their strategy. They are also to be congratulated on opting in to the directive. It is the directive to which the Minister has just referred and it is the leading matter that we have to consider. The convention matters but the directive is part of English law and requires,
“access without delay to legal counselling, and … legal representation”.
I have to say that I am disappointed by the Minister’s response. The Salvation Army, which got the contract for this work, is doing excellent work but it is expected to look after these women—they are generally women—for only up to 45 days. The fact that, out of the goodness of its heart, it keeps some of these people far beyond 45 days is not in the contract that the Government have with them. The Salvation Army is not in a position to put forward a case for exceptional funding, for instance. Until we see what sort of regulations and instructions are given to the director of legal aid about how he or she is to operate exceptional funding, I would be very unhappy that one can just say that any victim of trafficking who wanted to make a claim against traffickers, or against the CIB, has to go through the exceptional funding route. It may be extremely difficult to get into it and even more difficult to be recognised within it as someone who is in an exceptional position.
Who is going to do that for a non-English person? We ought to look after our own people but we also ought to look after the people brought here against their will, or brought here misleadingly with promises that turn out not to be true. They are, in effect, dumped here or they escape. We have to look after them; we have a legal and moral duty to do so. Unless the Minister is able to say in due course that exceptional funding will specifically include claims by victims of human trafficking, his response will be inadequate. I should like him to go away and discuss with his advisers—and perhaps, as I asked a little earlier, with the Lord Chancellor—whether this very special and very small group of people should be specifically identified. I do not mind whether they are identified under exceptional funding or elsewhere, but they must not be left out on a limb. For the moment, I beg leave to withdraw the amendment.
Amendment 61A withdrawn.
62: Schedule 1, page 129, line 14, leave out “indefinite”
My Lords, in moving Amendment 62 I shall speak also to Amendments 63 to 67, 69A and 70A. I am delighted to follow the noble and learned Baroness and the previous debate. This is an added dimension, which also relates to a very small number of very vulnerable people. I shall try to explain it simply because it is complex but I will do so as well as I can, not being an expert in immigration rules, rather as the noble Lord, Lord McNally, is not an expert in the subject. However, there are principles here that it would have been impossible to avoid.
I start with the purpose of Amendments 62 to 67. These six amendments need to be considered together. They extend the legal aid protection provided by paragraph 25 of Part 1 of Schedule 1 to victims of domestic abuse whose immigration status is dependent on their abusive partner. Paragraph 25 currently provides for legal aid for migrant victims of domestic abuse whose leave to enter or remain is dependent on their relationship as the partner of a British citizen or person with indefinite leave to remain so that they may have legal aid to help them address the consequences to their immigration status of escaping the abusive relationship. These amendments would extend the same protection to migrant victims of domestic abuse whose immigration status is dependent on a partner who is exercising European free movement rights or on a partner who has limited leave to enter or remain. The Government have indicated that they are considering the first of these extensions—that related to European free movement rights—but not the second. I must add that the amendments stop short of providing legal aid in relation to immigration for any victim of domestic abuse but are restricted to those who are lawfully in the UK, where their lawful presence is dependent on that very relationship in which they are experiencing abuse.
Several organisations, including Rights of Women, the National Federation of Women’s Institutes, Southall Black Sisters and the Moroccan Women’s Centre, have highlighted the situation of victims of domestic abuse who face being trapped in an abusive relationship because their immigration status is dependent on that relationship and they fear the immigration consequences of seeking to escape. However the Government have already amended the Bill to provide legal aid for some of these victims. For instance, it now provides for victims who are dependent on British citizens and settled persons. The Government have agreed to give further consideration to other victims as yet left out of the Bill, such as those dependent on European Economic Area nationals and others exercising free movement rights, those dependent on migrants with limited leave to enter or remain and those dependent on migrants whose status is irregular. Each of these classes of victim face the same or similar difficulties to the class of victim for whom the Government have now made provision in the Bill. Those difficulties were described by the Minister for Legal Aid. He said:
“There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status. The type of trauma that they might have suffered will often make it difficult to cope with such applications. We also appreciate that people apply under great pressure of time, and access to a properly designated immigration adviser is a factor”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 19/7/11; col. 245.]
Therefore, the Minister identified four factors relevant to why legal aid should be provided in the cases to which he was referring: the risk that the victims will stay trapped in abusive relationships for fear of jeopardising their immigration status; the trauma they may have suffered which often makes it difficult to cope with the application; time pressures that apply to immigration proceedings; and difficulties of access to a properly designated immigration adviser. These factors are borne out in that domestic abuse-related immigration applications are far from straightforward.
Further, the exclusion of some victims from legal aid offends the Government’s own factors which they identify as needing to be taken into account. They include the fact that the UK Border Agency’s record in dealing with these cases is especially poor with some 61 per cent to 69 per cent of refusals being overturned on appeal; the gathering and presentation of evidence, with associated costs and risks, is often necessary for success; many applications are, sometimes wrongly, refused by the UK Border Agency on the grounds of inadequate evidence; to escape abusive relationships victims need to understand the implications for their immigration status; victims need immigration advice; only regulated advisers can provide this advice and without advice and assistance many victims will not find the confidence to escape their abuser. The Bill risks the undesirable outcome that victims of domestic abuse will remain, with their children, in abusive relationships for fear of the immigration consequences of escaping those relationships. The fact that the Government have decided to deal with some aspects but not all for people in this situation adds to the confusion. I hope that the Minister will clarify that. However, I genuinely believe that Amendments 62 to 67 would overcome the problematic and dangerous outcomes that will occur due to the present state of the Bill.
I turn now to Amendments 69A and 70A that together would ensure that those who have experienced gender-based violence are able to access immigration advice and representation and are not placed at risk of experiencing further violence and abuse. The amendments would protect children, victims of domestic violence and trafficking, as well as other groups who are at risk of gender-based exploitation such as migrant domestic workers to whom the noble and learned Baroness referred. They would also protect others whose ability to represent themselves in an immigration law issue is impaired because of their age, illness or disability.
The amendments would also confer a power to specify other classes of persons in regulations. The “specified person”, as referred to in Amendment 70A would include children, victims of trafficking and victims of gender-based violence—men as well as women. The Government made the decision to bring back into scope legal aid for victims of domestic violence applying for indefinite leave to remain in the UK under the domestic violence rule—rule 189A of the Immigration Rules. Announcing that decision, the Minister for Legal Aid, said,
“There is a real risk that, without legal aid, people will stay trapped in abusive relationships out of fear of jeopardising their immigration status”.—[Official Report, Commons Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 19/7/11; col. 245.]
How that can be said over and over again and yet not followed through, I find difficult to accept.
The concerns raised by the Minister apply equally to other vulnerable applicants in immigration cases who have experienced or are at risk of violence and abuse, who simply cannot be expected to represent themselves in applications effectively because of the trauma they have experienced. These include individuals who have been trafficked into the UK for the purposes of sexual or other exploitation, and migrant domestic workers—many of whom, as the noble and learned Baroness said, are trafficked into this country and are extremely vulnerable to exploitation and abuse because of the invisible nature of their work that takes place in private households, and who, because of their dependency on their employers for their work, accommodation and immigration status, can be exploited by their employers and find themselves in a very similar position to victims of domestic violence.
I am told that there were around 15,000 migrant domestic workers issued with a visa to work in the UK in 2010. I am horrified to hear that there might be a move to remove their right to a visa. Research shows that 41 per cent of migrant domestic workers cite abuse or exploitation as their reason for changing their employer, but under the Bill legal aid will not be available for them to seek advice on how to regularise their immigration status or, if they wish, to change their employer.
Equally, victims of domestic violence whose immigration status may not be dependent on maintaining an abusive relationship with their spouse may also be vulnerable to remaining in a violent relationship if they cannot access legal aid to regularise their immigration status. Rights of Women indicates that it receives many calls to its immigration and asylum law advice line from women whose leave is not dependent on their spouses, yet their insecure immigration status is still used by the perpetrator as a tool of control.
All these cases raise complex issues and affect particularly vulnerable women whose fundamental human rights, including the right to be free from inhuman and degrading treatment, are at risk. Yet what sets these cases apart from other areas of law is that there are no alternative advice providers because it is a criminal offence for anyone to give immigration advice or services unless they are qualified to do so. Removal of legal aid for the cases such as those I have identified will place women at greater risk of violence and prevent those with valid legal reasons for remaining in the UK being able to access and benefit from their legal rights.
This is not a marginal problem, because between 1 April 2009 and 31 March 2011 there were 1,481 referrals to the National Referral Mechanism, the national framework for the identification of human trafficking in the UK. We know that, in reality, the figure for individuals trafficked is likely to be higher. A further implication of the Bill is that they will not be eligible for legal aid because of the implications of being referred into the National Referral Mechanism, and therefore their informed consent for referral may be questioned.
My information from Rights of Women is that it hears countless testimonies from women whose immigration status, which is often reliant on their abusers, has restricted their ability to leave a violent situation and access the advice and support services that they need.
Without legal advice and representation, domestic violence victims, migrant domestic workers and trafficked victims remain reliant on misinformation from their abusers about their legal rights and status and are trapped and dependent upon violent relationships, placing their lives at risk. The amendments together would ensure that those who have experienced violence are able to access legal aid for immigration advice and representation.
For too many women, their insecure immigration status is still used by the perpetrator as a tool of control. That cannot be justified. The amendments would eliminate that position. I beg to move.
My Lords, I speak in support of the amendments and thank my noble friend Lady Gould for speaking to this group in such a comprehensive manner. What we are discussing today is not whether we should have more or fewer immigrants; rather, the matter at hand is whether legitimate migrants are able to exert their rights.
Amendments 62 to 67 work together to extend the availability of legal aid for immigration matters. The Government have proposed that legal aid will be available to a person seeking indefinite leave to remain after suffering domestic abuse by their partner. Furthermore, their partner must be present and settled in the United Kingdom. My noble friend Lady Gould's amendments would extend that to someone who is seeking any form of leave to remain, and their partner would not necessarily need to be present and settled in the United Kingdom. So they only fractionally extend the coverage to ensure that all women who suffer domestic abuse and try to escape will be given the protection they need. A failure to accept the amendments would mean that some women might feel trapped in an abusive relationship, wanting to escape from it but knowing that, because they slip through the Ministry of Justice's legislative cracks, they would not get the help that they would need.
Amendments 69A and 70A would extend legal aid to immigration matters relating to entering or remaining in the country for three classes of persons: those under 18; those who have been subjected to gender-based violence; and those unable to represent themselves due to a physiological or psychological condition. Amendments 69B and 70B would extend legal aid to immigration matters relating to entering or remaining in the country for those under 18.
We support all the amendments. I am pleased that my party's position is that immigration matters should remain in the scope of legal aid to the same extent that they are now. That forms part of our overall commitment to keeping social welfare legal aid fully in scope by re- tendering criminal legal aid contracts in line with our 22 March 2010 paper, Restructuring the Delivery of Criminal Defence Services. Unamended, the Government's approach means that significant cracks will form in the provision of immigration law legal aid. Many claimants with very good cases will fail to exert their rights legitimately because of the current proposals’ failures. My noble friend Lady Gould's package of amendments clearly demonstrates one of these cracks.
A failure to accept the amendments might mean that people could be forced into accepting domestic abuse for fear of losing their children, their friends and the life they live in the United Kingdom. It could be regarded as a charter for abusers because of the difficulties that women will face in removing themselves from an abusive relationship. It will lead to chaos in the immigration system. Legal aid advice and representation oil the system, allowing interactions to occur professional to professional. Our system, which some would regard as creaking under the weight of poor decision-making and a high volume of cases, cannot afford this kind of radical deprofessionalisation.
I have one final, quite specific question for the Minister. Will Clause 9 funding be available for vulnerable children in complex immigration cases? The Government’s long-standing position is that Article 6 of the European Convention on Human Rights does not apply to immigration, and I believe that that would prevent these cases ever being funded under Clause 9. This ties in somewhat with Monday’s debate on the needs of young people.
I urge the Minister to listen to what has been said tonight. Earlier, the noble Lord, Lord McNally, proved to be in a listening mood when he replied to the debate on domestic violence and child abuse. The aim of this amendment is perhaps of a similar nature in that it deals with women suffering from domestic abuse. Therefore, I urge the Minister to continue in the vein of the noble Lord, Lord McNally, this afternoon when he said that he was prepared to listen—and indeed it seemed to me from his responses that he was listening. I hope that the Minister will continue to listen tonight. Noble Lords who have put their names to this group of amendments should be confident that if the Minister does not listen, we would support the amendments if they were brought forward at a future date, and we would take our own position on the provision of immigration law legal aid.
My Lords, first, I thank the noble Baroness, Lady Gould of Potternewton, for introducing the amendments, and I thank the noble Baroness, Lady Gale, who encouraged me to listen. I hope to indicate later that in some respects we have already been listening.
Amendments 62 to 67 propose to make an amendment to paragraph 25 of Part 1 of Schedule 1. This paragraph provides for those applying for indefinite leave to remain on the grounds that they have limited leave to enter or remain as a partner of another individual present and settled in the United Kingdom and that the relationship has broken down permanently as a result of abuse. Such matters are to be within the scope of legal aid. The arguments regarding partnerships which have broken up and the power relationship that can result were very well made.
Amendment 62 seeks to extend the scope of legal aid to those applying for “leave to remain” as opposed to “indefinite leave to remain”. Amendment 65 seeks to remove the need for a person’s partner to be present and settled in the United Kingdom, and Amendments 66 and 67 are consequential amendments, removing the definitions of “indefinite leave to remain” and “present and settled in the United Kingdom”. We do not believe that these amendments are necessary. The provision as currently worded in the Bill is directly linked to Rule 289A of the Immigration Rules, which deals with applications for indefinite leave to remain by victims of domestic violence on a limited spousal visa. This is deliberate: other than via the Immigration (European Economic Area) Regulations 2006, the appropriate route for someone to apply would be through the Immigration Rules. Where the person’s partner has only a temporary form of residence, it is not clear that they intend, or indeed whether they would have a right, to reside more permanently in the country. As such, we do not believe that these cases require funding.
Amendments 63 and 64 relate to partners of EEA nationals, known as third-country nationals, and are similar to an amendment raised in the House of Commons—I think that the noble Baroness mentioned the debate that took place there either in Committee or on Report. These amendments are intended to bring within the scope of civil legal aid services applications from partners of EEA nationals who require confirmation of their right to reside in the United Kingdom where their relationship has broken down permanently as a result of domestic violence, as well as any subsequent appeal. EEA nationals and their family members, if from a third country, have a long-term right to reside in the United Kingdom if they are economically active or are able to support themselves without becoming an unreasonable burden on public funds.
The Immigration (European Economic Area) Regulations 2006 make provision for family members to remain in the United Kingdom; that is that their right to reside can continue if they cease to be a family member of an EEA national because their marriage or civil partnership, on the basis of which they are a family member of an EEA national, breaks down as a result of domestic violence. The application is different for those people who apply for indefinite leave to remain under the domestic violence provisions in the Immigration Rules, where the rules that apply are different.
Nevertheless, as has been pointed out, and as my honourable friend, Mr Djanogly, has said, we will look further at this point. I indicated earlier that we believe that some of the initial concerns raised are covered and we do not believe that the amendments are necessary. However, it is only reasonable, in the light of what was said by the noble Baroness, Lady Gale, that we ensure that we have addressed the points which she made in that regard.
Amendments 69A and 70A deal with making legal aid available to certain categories of vulnerable persons for immigration matters. I think there are another two amendments in this group which have not been moved but I shall try to deal with them. Part of Amendment 70A —that which seeks to cover those persons who have suffered domestic violence at the hands of spouses or partners—is already covered by the Bill at paragraph 25 of Part 1 of Schedule 1, where the application for indefinite leave to remain in the United Kingdom meets the requirements of that paragraph. We decided that, on reflection, the issues faced by those facing domestic violence were such that special provision should be made for them. Without legal aid, there is a real risk that such people will remain trapped in an abusive relationship for fear of jeopardising their immigration status. Furthermore, they have only a limited window in which to submit their immigration application when they leave their partners and after that period their access to public funds ceases. However, these factors do not apply to other categories of vulnerable persons that have been suggested in the amendments.
As we have indicated on numerous occasions in these debates, we believe that we should target legal aid on those who need it most. In general, we want to prioritise asylum cases, which can be about life and death, over immigration cases. I do not deny for a moment the importance of such cases to the individuals concerned, but they do not raise the same issues.
Children will not normally be applicants in asylum and immigration cases, as they are usually considered as part of their parents’ application. Child applicants are much more likely in asylum cases, for which, of course, legal aid will remain available. Most immigration claims are straightforward and, in the majority of cases, we expect the child, with the help of a guardian, to be able to complete the process without recourse to specialist help. The noble Baroness, Lady Gale, asked about children's applications, their interaction with Article 6 and whether exceptional funding would be available. The answer, as I think she anticipated, is that it would not. The position in the Bill is that exceptional funding should be granted only where it is required by law; that is that denying legal aid would risk a breach of an individual's rights under EU law or the ECHR. Case law has been consistent: that immigration cases do not, as she indicated, involve such a determination and, as such, exceptional funding would not be available.
I have sought to try to give some reassurances and I urge the noble Baroness, Lady Gould, to withdraw her amendment.
I thank the Minister for his reply. In some ways, I am partially encouraged by the reply but I also find it extremely complex. I need to go away and read it very carefully and then I shall be able to answer whether I am satisfied or not. In the light of that, I beg leave to withdraw the amendment.
Amendment 62 withdrawn.
Amendments 63 to 67 not moved.
68: Schedule 1, page 130, line 8, after “Kingdom” insert “to a person who is liable to detention under immigration laws, or”
My Lords, these amendments, supported by the Immigration Law Practitioners’ Association, which assisted in their drafting, were tabled to draw attention to and to remedy the inconsistency of the Government in claiming to protect legal aid for people whose liberty is at stake, while denying those who are liable to detention, pending their removal or deportation, the means to assert their claim before the tribunal constituted for that purpose.
Paragraphs 22 to 24 of Schedule 1 allow a person who is detained under the Immigration Act to obtain legal aid to challenge their detention but not to contest the reasons for the refusal of their application for leave to remain. Over the past several years, more than one-quarter of appeals against refusal have been granted; the decision-making process is obviously seriously flawed. If the Government want to reduce spending on legal aid for immigration appeals they should concentrate on improving the quality of the UK Border Agency's decisions. Until now, those with genuine claims have had a reasonable chance of asserting their rights because they have been able to get legal aid. However, when Schedule 1 comes into effect, there is absolutely no doubt that some people who are entitled to remain here will be deported unlawfully.
Among the many reasons given by respondents who were against the proposal to deprive applicants of legal aid in all immigration proceedings were the complexity of immigration legislation, the inequality of arms between the state and the individual applicant, the fact that many applicants would have little if any understanding of English law and the fact that English might not be their first language. The Government summarily dismissed all the respondents' arguments in three short paragraphs. They said that individuals in immigration cases should be capable of dealing with their immigration application and should not require a lawyer. If it is so easy to decide how to pursue immigration applications, why have Citizens Advice staff been instructed not to give advice on them but to take down the facts and send them to a solicitor?
The Immigration Law Practitioners’ Association gives four examples of cases where the claimant would have been removed if the courts had not intervened. Two of the cases went all the way to the House of Lords. I will not detain the Committee by reading the details of the cases in full, but I invite the Minister to agree that in the first case—I assume that he received the note from ILPA—the trial judge found that the appellant, a Dutch national of Somali origin, would have been deported to Somalia or held in detention indefinitely under the Immigration Act but for the efforts of his solicitor.
In the second case, the High Court ordered the release of an individual who had been detained unlawfully for 11 months under a secret Home Office policy when there was no realistic prospect of deporting him. In the third case, the House of Lords ruled that it would rarely be proportionate to remove a person if there was a close bond with his or her spouse, who could not be expected to follow them to their country of origin, or if the effect of the removal order would be to sever a genuine and subsisting relationship between the person and their child. In the final example, the appellant was a woman from Zimbabwe who was married to a British citizen, by whom she had a child. The Home Office had decreed that she had to return to Zimbabwe and make an application to come here as a spouse.
In these four cases and many others, it would have been extremely unlikely—I dare say impossible for the two people whose cases went to the House of Lords—for the two appellants to have succeeded without legal aid. Again, I invite my noble friend to agree with that proposition. Will he also acknowledge that cases where someone is liable to detention with a view to their removal or deportation and passes the merits threshold for legal aid are among the most serious that come before the courts? If so, it cannot be denied that among them are instances of the most egregious errors by the state, extending to the wrongful removal of British citizens who have the right of abode in the UK.
The importance of the issues at stake, such as the absence of any alternative source of funding or of any other means of resolving claims that the individual may even be incapable of formulating without professional advice, cries out against their removal from the scope of legal aid. So, too, does the risk of unintended and perverse effects such as an increase in asylum claims by people who would have had valid reasons to ask for leave to remain on other grounds, the need to accommodate and make allowance for an increase in the number of litigants in person, and the damage to the viability of practitioners who serve mainly asylum clients through the loss of their work on other immigration cases. It is certain that meritorious claims will be lost because the applicant is not legally aided, although official statistics on appeals do not separately identify those with representation and those without either at the stage of first decision by the UKBA or on appeal. The Ministry of Justice conducted a survey of litigants in person which concluded:
“Most evidence … indicated that case outcomes were adversely affected”,
“The weight of the evidence indicated that lack of representation generally had a negative effect on case outcomes”.
In November 2011, the Civil Justice Council published a report on litigants in person and access to justice making recommendations on the basis that Schedule 1 remained intact. The authors warned:
“Even if all the recommendations we make are acted upon, they will not prevent the reality that … as a result of the reductions and changes in legal aid, there will be a denial of justice”.
The Administrative Justice and Tribunals Council, in its devastating response to the consultation on the Government’s legal aid proposals, drawing on the previous study by the Legal Services Commission, found:
“In mental health and immigration, where issues are highly complex and representation is often required, the success rate is over 60%”.
The council quotes evidence of the glaring disparity in the social security and child support tribunal between the success rates of litigants who are represented and unrepresented. They are 55 per cent and 28 per cent respectively. Although, unfortunately, there are no equivalent statistics for the immigration tribunal, it concludes that throughout the administrative justice system:
“If the proposals are pursued then the Government lays itself wide open to allegations that the withdrawal of legal aid is designed both to reduce the number of appeals … in general, even where they would probably be successful”.
As regards immigration issues in particular:
“The AJTC also notes the extraordinary complexity of immigration law and takes issue with the assertion that ‘individuals will generally be able to represent themselves’”.
“It is essential that appellants are properly advised and prepared before facing a highly complex process with potentially life-changing consequences”.
Detainees are uniquely and materially disadvantaged in presenting their own cases, being isolated and incapable of gathering evidence, such as witness statements, and having no funds to pay for telephone charges, registered post or the copying of documents. The AJTC goes on to conclude:
“For all of these reasons”,
of which I have mentioned just a few, it,
“strongly opposes the removal of legal aid for immigration advice”.
Finally, I turn to the distinction made between detention and the underlying immigration matter. Hardly any of the respondents to the consultation challenged the decision to retain legal aid in relation to detention, but some experts, notably ILPA, disputed the Government’s assertion that legal aid providers would be able to distinguish between advice on detention and on the underlying reasons for the detention. It said:
“Challenging immigration detention is necessarily and intrinsically linked to challenging the underlying immigration decision which is both the cause of, and justification for, detention”.
This needs to be spelled out for the record.
In the case Lumba and Mighty, Lord Dyson, giving the lead judgment said that,
“it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one”.
The merits of the appeal are directly relevant to the lawfulness of immigration detention. If the appeal is ultimately likely to be successful, the grounds for detention, which are to effect removal, must be commensurately weaker. If the detention is at the earlier stage where the person’s entitlement to enter the UK is being investigated, the same principle applies. The solicitor who advises him on the lawfulness of his detention at that point would have to look into the merits of the application for leave to enter because that would be the only practical reason for challenging his detention.
I really hope the Government will think again about denying legal aid to immigration detainees and instead address the abysmal standards of decision-making by the UKBA, thus reducing the wholesale cost of the detention system and the administrative and legal costs of tribunals, and saving far more than they will by depriving meritorious immigrants of access to justice. I beg to move.
My Lords, the noble Lord, Lord Avebury, has made a very powerful case for the amendment that he has so ably moved. We support it from the opposition Front Bench, very much for the reason that he was arguing in the latter part of his speech: the complete mismatch between being allowed to get legal aid to get advice on detention but not being able to get any advice as to the underlying reasons why an individual is detained.
The Government are quite right to have recognised that legal aid is crucial when an individual’s liberty is at stake, and we see that principle in existence here in their preparedness to allow someone who is in detention to get legal advice to challenge that detention. However, how on earth can they challenge that detention—and this is the point the noble Lord was making—without also getting legal advice as to the underlying cause of that detention? It does not look as though this could work properly in practice. The Government are trying to hold fast to two principles: that an individual’s liberty demands legal aid advice; but, when that matter is looked into, the reason behind their loss of liberty cannot be advised on in the same way. The noble Lord, Lord Avebury, is quite right: some really serious mistakes will go uncorrected if this provision goes through.
To make the point absolutely clearly—and this is the point that ILPA seems to have made—challenging immigration detention is inextricably linked to challenging the immigration decision that forms the justification for detention. If the Government want to help those detained wrongly—presumably they do; no one wants to have people detained wrongly—it is pretty self-evident that they should deal with the underlying problems. A failure to do so will simply mean a return to detention—a complete waste, frankly, of public money.
Although I have been brief, we on this side believe that the noble Lord, Lord Avebury, and the others who signed the amendment have a very good point. I would like the Minister to explain to the Committee how these provisions can actually work in practice. It looks as though there is a serious mismatch between what they will and will not allow legal aid for in this field.
My Lords, I thank my noble friend Lord Avebury for moving his amendment, which relates to issues of immigration and detention. Amendments 68 and 70 would bring into scope of legal aid several legal services in relation to rights to enter and remain in the United Kingdom for anyone who is liable to be detained under the immigration powers.
As a preliminary to his arguments my noble friend suggested that, if the Government wished to save money, we should tackle the UKBA’s decision-making. The UKBA already has a wide-ranging improvement programme under way to continue to improve the quality of its decision-making in asylum and entry claims and in points-based systems, although I would be the first to acknowledge that in any programme like that there is always scope for improvement.
The amendment would cover those who have been refused leave to enter or remain. It would also, however, cover persons “liable to detention” pending examination while the decision to grant leave to enter is taken, or while on temporary admission pending deportation under Schedule 3 or under the auto-deport provisions in the UK Borders Act—that is where the words “liable to be detained” appear—and where removal action has been taken against them as overstayers.
As has been said in relation to a number of issues, not least earlier today in relation to immigration issues, tough decisions have to be taken and choices made about the scope of legal aid. Nevertheless, we are being clear that where issues of liberty are at stake, legal aid should be available, subject to the means and merits tests. That is why this Bill provides that when someone is detained under the immigration powers to detain, as referred to in paragraph 22 of Part 1 of Schedule 1, legal aid will still be available to challenge their detention. The amendment however would go well beyond that principle.
Both my noble friend Lord Avebury and the noble Lord, Lord Bach, asked how one might distinguish between immigration detention and the underlying reasons. Under the current legal aid scheme, solicitors have to deal with mixed cases where some elements of the case are in scope and some are out of scope. That is dealt with through guidance, and further guidance will be made available setting out what solicitors can and cannot do under legal aid.
It is absolutely clear that it will be necessary for them to understand the immigration background of their client in detention. Legal aid will not cover advice on an appeal on the matter of the substance of the immigration decision but it does not preclude taking action to secure a client’s liberty. My noble friend mentioned a case that had been raised by ILPA involving someone who might be deported to Somalia. There had been difficulties in removing the person to Somalia and it was expected that that person could be detained for some considerable time. Clearly, in such a situation it would be possible to challenge detention and legal aid would remain if the UKBA had no realistic prospect of removal within a reasonable period of time. As I have indicated, the amendment takes us well beyond the situation of liberty. The phrase in the amendment, “liable to detention”, covers those who are not detained.
Amendments 68 and 70 would bring back into scope legal aid in relation to rights to enter and remain for any immigration case where a negative decision has been made, or for anyone “liable to detention” pending examination of our decision to grant leave to enter that is taken while on temporary admission pending deportation and when removal action is taken against overstayers, as opposed to being focused on those cases where the individual’s liberty is at stake. Were the amendment to be passed, it would have a significant impact. Our proposals regarding immigration will bring an estimated £20 million saving. We do not believe—I have indicated that it is not easy and that it is tough—that that is appropriate in these circumstances.
Immigration cases are generally about whether the facts of a particular case meet the Immigration Rules and are generally heard in tribunals, which are designed to allow people to represent themselves. It is important that, as well as indicating that issues affecting the liberty of the individual are within scope, the Bill makes legal aid available too to asylum seekers and those seeking protection for human rights’ reasons. It also makes legal aid available in relation to matters concerning accommodation for asylum seekers and in immigration cases, as I have said, where the person’s liberty is at stake.
There are of course other categories where legal aid will be available. Immigration matters relating to the Special Immigration Appeals Commission and the domestic violence immigration rule will remain in scope as well as advocacy in the Upper Tribunal in such cases. Immigration judicial reviews are in scope, subject to some exceptions, and it is intended to focus legal aid on those who need it; that is, those seeking protection in the UK where persons may be at risk of persecution or torture if returned to an unsafe country or where a person’s liberty is at stake.
It has been a question of trying to prioritise and to focus help on those who need it most in the most serious cases. It is these cases where we believe that legal aid representation is justified. I anticipate that that will not satisfy my noble friend but I hope that he will understand that, in trying to address these issues, we have sought to give priority in cases such as asylum and where the liberty of the individual is at stake. In doing so, I hope he agrees that these are appropriate judgments. The consequence has been that it has not been possible to include within scope a much wider range of immigration cases. I invite my noble friend to withdraw his amendment.
In one respect, I can agree entirely with my noble and learned friend and that is that I am wholly dissatisfied with his reply, as he expected. If we are helping those who need help most, who could possibly be higher on the list than somebody who has been detained and is therefore incapable of conducting his case effectively? As I said—my noble and learned friend did not address this point—how does he get in touch with witnesses and how does he get the money for the telephone calls, for duplicating of papers and for all the rest of the preparatory work that needs to be done in formulating a proper appeal?
Nor did my noble and learned friend address my point that there were likely to be more cases where a person was unjustifiably refused if he did not have representation—and that comes from the figures. We know that in other types of case there is a much higher percentage of success where the appellant is represented than in cases where he conducts the case himself. The same figures would be seen if it was possible to distinguish between the two categories in immigration cases. Therefore, it follows that if people do not have representation when they are in detention, more of them will unlawfully be sent back to the countries of their origin. I think that my noble and learned friend missed the point that I made in relation to the case of the Dutch citizen of Somali origin who was threatened with deportation but was able to get representation. The solicitor showed that it would have been unlawful to deport him because he was not a Somali citizen but a Dutch citizen of Somali origin. If he had been able to appeal only against his detention, it would have to be a two-stage process. Would my noble and learned friend not agree that he would first have to obtain his liberty and then get a solicitor to point out to the tribunal that he was not liable to deportation because the UKBA had falsely assumed he was a Somali citizen?
I am most grateful for the support of the noble Lord, Lord Bach, for the amendments. As he said, there is a complete mismatch between the facts that a person can obtain legal aid for his detention but not for the underlying reasons for the detention in the first place. I see that we will have to return to this subject on Report and I shall have to discuss what we do about it with ILPA and our other advisers. For the time being, I have no alternative but to beg leave to withdraw the amendment.
Amendment 68 withdrawn.
69: Schedule 1, page 130, line 12, at end insert—
“(1A) Civil legal services provided to an individual for a matter arising out of any rule laid down under section 1(4) of the Immigration Act 1971 making provision for family members to enter or remain in the United Kingdom as the family member of a refugee or beneficiary of humanitarian protection.”
My Lords, I must apologise to my noble and learned friend for failing to address this issue when it was listed at an earlier stage. Amendment 69 is also supported by the Immigration Law Practitioners’ Association, which does such tremendous work in this very difficult field and not for any great return. It is to be commended.
Amendment 69 would retain legal aid for applications and appeals by family members of refugees and family members of those who are found to be at risk of serious harm such as torture but are not granted humanitarian protection for a refugee convention reason. The legal aid would be for applications and appeals for those reunited with a refugee recognised in the United Kingdom. When a person is recognised as a refugee or granted humanitarian protection, they are entitled under the Immigration Rules to apply to have certain family members, spouses, partners and minor children to join them. Such persons may themselves be living in danger in the country of origin, may be refugees themselves or may be living in a precarious situation in a third country. There are considerable parallels with asylum cases, which remain within scope. Without this special provision in the rules, refugees would have to wait until they were settled to have their families join them and would have to fulfil additional criteria.
Someone who is granted humanitarian protection is at risk for some other reason than the refugee, who is at risk by reason of,
“race, religion, nationality, membership of a particular social group, or political opinion”.
These cases concern family reunion for persons whose applications for international protection have been found to be well founded and to whom the United Kingdom’s protection has been extended. The UNHCR stated in a report published in June 2010:
“Family reunification plays a significant role in meeting the long-term needs of resettled refugees … The family is often the strongest and most effective emotional, social and economic support network for a refugee making the difficult adjustment to a new culture and social framework”.
When in another place my right honourable friend Simon Hughes urged the Government to bring refugee family reunion back into scope for legal aid in this Bill, the Minister with responsibility for legal aid then acknowledged that these cases can be complex. He said that he would look further into those cases. That was an assertion made in another place and we are hoping that we will hear a little more on that in this Chamber.
Several factors contribute to the complexity of these cases and the need for legal aid to be retained. First, as my noble friend Lord Avebury and others have pointed out, the United Kingdom Border Agency's record in dealing with these applications has been especially poor. Some 61 per cent to 66 per cent of refusals are overturned on appeal. It is a terrible result for a government department that 61 per cent of its decisions are found to be wrong. Secondly, the often precarious situations of applicant families overseas and the distress and trauma of sponsoring refugees in the UK mean that they are particularly ill placed to make and pursue applications by themselves in British consulates in other countries.
The United Kingdom Border Agency also frequently disputes family relationships and accordingly many applications are protracted and evidentially complex. It alleges bad faith that the person concerned is not related. But the UK Border Agency loses 61 per cent of its cases. On appeal, the immigration judge is confined by the evidence presented to him, however careful he may be to treat litigants in person. Of course, when you are dealing with applicants who are abroad, the hearing is restricted by the absence of the family members at the appeal hearing. They are still overseas and therefore cannot be called to give evidence. Continued separation is a major obstacle to a refugee’s integration into the United Kingdom.
Refugee family reunion applications are complicated by the fact that not all applications are permitted to be made under the rules. Child refugees cannot secure family reunion and must rely on applications made outside the rules. There are all sorts of complex problems relating to family members. At the end of the day, it prevents the person who has been accepted and is able to enjoy the protection of this country from settling down and becoming integrated into our society.
Amendment 71 deals with matters that we have already covered. It is almost an omnibus provision that deals with refugee family reunion, on which I have just addressed your Lordships, to immigration matters concerning trafficking victims, which we addressed before the dinner break, and onward appeals relating to immigration—a matter that I raised at the outset of the Committee deliberations. I beg to move, and I trust that my noble and learned friend will have his responses ready.
I warmly support my noble friend in this amendment. I reinforce what he has already said by reference to a note issued by the UNHCR dated November 2011, which I presume has been drawn to the attention of my noble and learned friend the Minister. Has he been approached directly by the UNHCR on these matters? If so, what was his response? I very much look forward to hearing from him. He is nodding, which I presume means—
I was saying that I hope that this note, which we have all received from the UNHCR, has been sent by the UNHCR representative in the United Kingdom to noble Lords on the Front Bench. I look forward very much to knowing how they have replied.
As my noble friend has already pointed out, the UNHCR is concerned because, although the safeguarding of asylum seekers’ access to legal aid is being retained, it is worried about the way in which the Bill limits access to legal aid for families of refugees who seek to rejoin their family members in the United Kingdom. The UNHCR notes with concern that,
“the current proposals exclude legal aid for family members of persons who have been recognised as refugees or people who have been granted humanitarian protection”.
I cannot think of a more powerful agency to make representations of this kind than the UNHCR. It almost goes as far as to say that it is a breach of the refugee convention to deny legal aid to the family members. As my noble friend pointed out, the UNHCR believes that,
“reunification of the family unit plays an important role in ensuring the protection and well-being of individual members of a refugee family”.
It goes on to describe the adverse consequences that may follow from the denial of legal aid for these purposes.
One point on which I think I should add to my noble friend’s comments is on disputed family relationships, which are frequently a matter of continued difference between the UKBA and the applicant and which have to be resolved by reference to, for example, DNA evidence. The UNHCR asks how the costs of evidence gathering and the private legal fees that have to be borne in connection with this process can be borne by the refugee and his family. It notes that,
“the Government’s response during the consultation stage was that family reunion applications are ‘generally straightforward’ and that an alternative for family members is to claim asylum in their own right”.
However, the UNHCR points out that, since a refugee family are still outside the United Kingdom, they are not able to claim asylum in their own right—they would have to travel illegally to the United Kingdom to make such an application. Is that what the Government want them to do? It seems to me that, by denying them legal aid, the Government are inciting them to break our immigration laws and enter by some other means in order that they can claim asylum here in their own right. This cannot be right, and I hope that my noble friend will consider these amendments very seriously.
My Lords, I can be very brief. The arguments put forward for these amendments are very powerful and I have nothing to add to them, save to say that this relates to families, and one of things that this Government claim—as all Governments do, quite rightly—is their faith in the family. It would be slightly ironic if the Government went on with the Bill as it is now published, in terms of the effect that this may have on refugee families, when they have the answers given to them by the exception provided for in the amendment moved by the noble Lord, Lord Thomas of Gresford. We think the Government should accept his amendment.
My Lords, Amendment 69, moved by my noble friend, seeks to bring family reunion cases into the scope of legal aid. In recognising the purpose of the amendment, I also wish to indicate that the anticipated cost of that would be around £5 million a year.
Such cases involve a person who has been granted asylum and sponsors the applications of the immediate family to join them here in the United Kingdom. Applications to join family members are immigration applications rather than asylum ones. This may to some extent respond to the point made by my noble friend Lord Avebury when he indicated that there was an encouragement to people to come in as illegal immigrants and to be asylum seekers. I have repeated on many occasions that asylum will come within the scope of legal aid, but it is widely recognised that navigating the laws is far more complex than is intended to be the case with regard to immigration applications in such cases.
I may have misled my noble friend. What I was pointing out was that it was the Government’s own suggestion that family members should claim asylum in their own right and that the only method by which they could do so was to enter the United Kingdom by some unlawful means so that they could claim asylum.
I hear what my noble friend says. I will check, but I was not aware that the Government had encouraged people to come in in those circumstances. The point that I was about to make was that UK Border Agency guidance in these cases, when people are coming in under an immigration route, is that it sets out presumption of a grant of an application if the relevant criteria are met. The evidence required, such as marriage and birth certificates, should not require specialist legal assistance to collate. Indeed, the entry clearance officer may on occasion ask for DNA testing to prove a family relationship, but in these circumstances the test will be free of charge to the applicant.
These cases do not require specialist legal advice and, as we have indicated with other immigration cases, it is not necessary for them to remain within the scope of civil legal aid. Nevertheless, I recognise what my noble friend Lord Thomas of Gresford said in moving his amendment. In spite of the fact that most cases should be relatively straightforward, as my honourable friend the parliamentary under-secretary Mr Djanogly indicated, there are some cases which are complex—I would certainly repeat what he indicated in the other place—so we will look at this again. I say this without wanting to raise an expectation, but it is important that we look at the issues where there are complex cases, and I undertake to look at that aspect again.
On Amendment 71, as my noble friend indicated we have dealt with most of these issues in the course of the evening. I am prepared to elaborate on the answers again, but perhaps he could just take as read the answers given in respect of those cases. Again, the issue relates to the fact that, as a general rule, we have taken the view that, unlike cases of asylum, where legal aid will be in scope, in cases of immigration the number of cases that turn on a point of law are relatively low and the cost of funding them is one that we believe can be better applied and applied in a more focused way on cases where the needs are greater.
On the question asked by my noble friend Lord Avebury about the UNHCR letter, I do not recall seeing the letter and nor does my noble friend Lord McNally. However, it is my understanding that Mr Djanogly has not only seen it but replied to it and has done so in the terms in which I have replied to the debate. In those circumstances, I ask my noble friend to withdraw his amendment.
I am grateful for the assurance that the Minister has given that he will look at this matter again and consider what the attitude of the Government should be in complex cases involving family reunification.
I would point out that, on the question of claiming asylum, the Government said in their response to the consultation:
“Applications to join family members are treated as immigration cases, and are generally straightforward because they follow a grant of asylum”.
That is what my noble and learned friend told us just now. The Government’s response went on:
“Respondents argued that these cases are akin to claims for asylum … if a person wishes to claim asylum it is open to that person to do so either as a dependant of a primary asylum claimant or to do so in his or her own right. Legal aid for any such asylum claim will be in scope”.
As my noble friend Lord Avebury has said, the family members with which this amendment is concerned are outside the United Kingdom and cannot claim asylum unless they get here. The only way that they can get here would be through some hazardous and clandestine journey to get to this country and make a claim. It would be unlawful under the Immigration Act 1971 for a person in this country, including a person who has been granted asylum, to assist them in any way but if they can get here and claim asylum, they then apparently get legal aid to fight their claim. That seems ludicrous. I am sure that my noble and learned friend, in considering the matter further as he has promised to do, will take that into account, but for the moment I beg leave to withdraw this amendment.
Amendment 69 withdrawn.
Amendments 69A to 71 not moved.
72: Schedule 1, page 131, line 7, at end insert—
“( ) situations where a person’s financial difficulties could lead to loss of home.”
My Lords, I shall also speak to Amendments 82ZC and 82D in the name of my noble friends Lord Bach and Lord Beecham. In so doing, I declare an interest as chair of the Consumer Credit Counselling Service, the country's leading debt advice and solutions charity.
Under the proposals in the Bill all legal aid for debt issues, including advice, is excluded from the scope of legal aid except for legal services provided in relation to a bankruptcy order against individuals under Part IX of the Insolvency Act 1986, where the individual’s estate includes their home. As I understand it, the Government's view is that debt advice is not strictly legal work and that financial matters are a far lesser priority than matters such as homelessness or loss of liberty.
We disagree. All debt problems are underpinned by complex contractual obligations, and debt advisers typically need to advise debtors on issues of liability, consumer credit contracts, creditors’ enforcement powers, statutory debt remedies and enforcement processes within the court system and beyond. While some debt advice may appear to be primarily negotiation over repayment terms and schedules, it is important to note that in fact such negotiations take place within a legal framework such as protections under the Consumer Credit Act. It is also true that the experience of my charity, the CCCS, and others in this field, such as Citizens Advice, is that most if not all of those who contact us for debt advice have other issues, such as illness, employment problems or relationship problems, which have either caused the problem or contributed to it. It is this compounding effect which makes the withdrawal of legal aid for all debt issues seem such a simplistic proposal.
Other areas where we consider that there is a good case for retaining legal aid are the important debtor protections under consumer credit legislation, which allows unfair or mis-sold consumer credit agreements to be legally challenged and ensures that citizens can challenge enforcement actions. However, I mainly want to focus on a clear lacuna that will be left from the withdrawal of legal aid for debt in relation to statutory debt relief remedies. Debt relief orders, or DROs, were introduced by Part 5 of the Tribunals, Courts and Enforcement Act 2007 as a quicker and cheaper alternative to bankruptcy for those with no income and no assets. They require application via an approved intermediary working for organisations which are approved by the Insolvency Service. Approved intermediaries are experienced debt advisers who are often legal aid-funded debt caseworkers.
DROs have proved a successful alternative to bankruptcy and are delivered at a far lower cost to the Insolvency Service. They are designed for people with debts of below £15,000 with no income or assets. The scheme enables the applicant to be discharged after 12 months with all their debts written off. It is generally thought to have been effective in supporting people who need debt relief but cannot afford bankruptcy or meet the criteria for an IVA. Indeed, more than 25,000 debt relief orders were made in 2010.
The key reason why the scheme is successful is that it is low cost. Under the DRO scheme, the application or administration fee is £90. It is possible for the DRO scheme to work at this low cost only if the approved intermediaries are funded from elsewhere. Fees would have to be substantially increased if the DRO scheme were to be self-funding, which of course would kill it off. Until now, roughly 70 per cent of DROs in 2010 were processed by CAB debt advisers funded under legal aid. When legal aid is removed, as provided for in the Bill, these approved intermediaries will simply not be around.
If the Bill goes ahead in its present form, it is not easy to see how the DRO system will survive. Thousands of people who would otherwise be able to write off their debts will not be able to do so. Their problems and suffering can be imagined. I cannot believe that BIS would be happy with that situation. Is this really what the Government intend?
The obvious solution to this problem is to retain legal aid in debt cases for remedies under Part 5 of the Tribunals, Courts and Enforcement Act 2007. Citizens Advice has established from its data that approximately 13 per cent of the Legal Services Commission-funded debt casework involves DROs—in other words, about £3 million of what the LSC currently spends on debt advice. We also think that there is a case for keeping within scope advice around other debtor protections and contractual rights under the Consumer Credit Act, unsecured lending, advice around remedies for creditor harassment, disputing liability for debts and court enforcement of debts by bailiffs who, it is alleged, often exceed their legal powers. We estimate that this would be between 20 per cent and 30 per cent of current work—that is, around £5 million of what is currently funded by the LSC on debt advice. We think that this is justified and ask the Government to think again about removing all debt from legal aid. I beg to move.
I shall speak to Amendment 72 and make the case for legal aid in housing cases beyond those where someone faces imminent loss of their home.
The private rented sector has no regulator, in stark contrast to the social housing sector, nor is there an ombudsman to consider complaints against private landlords as there is for complaints against housing associations and council landlords. There is a voluntary ombudsman scheme for complaints about managing and letting agents, and I declare my interest as chair of the independent council of the Property Ombudsman. However, that redress scheme—
I do not think the noble Lord should worry. At this time of night it becomes a bit of a blur for us all.
Amendments 72 and 82ZC would bring into scope debt matters that are not covered in Schedule 1 and which we intend no longer to fund. We are faced, as we have said before, with tough choices in this current fiscal climate, but this has allowed us to focus resources on those who need them most in the most serious cases where legal advice and representation are justified. We estimate that we will continue to spend around £50 million on social welfare law overall.
Amendment 72 relates to paragraph 28 of Part 1 of Schedule 1 and appears to be aimed at making legally aided advice, assistance and representation available where a person’s financial difficulties, such as debt problems, could potentially lead to the individual losing their home.
Amendment 82ZC would bring into scope all debt matters not covered in Schedule 1. In our consultation on legal aid reform, we proposed that funding should be prioritised on cases where the individual’s home is at immediate risk. We are therefore retaining legal aid in relation to court orders for possession or sale of the home and in relation to eviction. We generally consider that other debt matters are a lower priority and therefore do not justify public funding for legal advice and representation.
We recognise that early advice can be helpful in a range of contexts. However, what people often need is general advice, for example on welfare benefits, debt or housing, rather than legal advice. There are many alternative sources of help with debt issues, including Credit Action, the National Debtline, the Consumer Credit Counselling Service and local authorities, which also direct people to local sources of advice and assistance on debt matters. In addition, the Money Advice Trust has recently launched My Money Steps, an online tool for providing advice for people with debt problems. The Consumer Credit Counselling Service also offers a free online debt remedy service.
We also recognise the argument that withdrawal of legal aid for any issue could lead, by a chain of events, to serious consequences. We considered this point carefully when formulating our final proposals. However, our view is that the limited public funds for legal advice and representation should be focused on those cases where the client faces serious direct consequences. Therefore, we do not propose to devote these limited public funds to less important cases on the basis that they could indirectly lead to more serious consequences for that person.
It is also important to recognise that the Bill does not require legal proceedings to have been issued before legal aid can be made available. Legal aid will be available where action for repossession or eviction is contemplated—for example, where a person receives a letter threatening repossession action in the absence of payment. Therefore, legal aid will be available to a person threatened with repossession action for mortgage or rent arrears, for example to negotiate with the mortgage lenders. It should also be noted that we will retain funding for the housing possession court duty scheme. It offers free legal advice and representation to anyone in danger of eviction or having property repossessed, on the day of the hearing, regardless of their means. Research shows that 77 per cent of clients who receive this last-minute advice avoid the immediate loss of their home. Under the circumstances, I hope the noble Lord will consider withdrawing his amendment.
Amendment 82D appears to be aimed at bringing into scope debt relief remedies under Part 5 of the Tribunals, Courts and Enforcement Act 2007 and, in particular, as the noble Lord said, debt relief orders. As I have already said, we consider certain debt matters to be a high priority for funding. That is why we are retaining legal aid for debt cases where the individual’s home is at immediate risk of repossession because of rent or mortgage arrears or involuntary bankruptcy. We recognise that debt problems can be difficult for the individuals concerned. Nevertheless, we strongly believe that what is often required is practical advice to resolve issues, rather than advice of a legal nature.
It is important to note that debt relief orders are relatively informal procedures. Advisers act as approved intermediaries and assist debtors in applying to the Insolvency Service for a debt relief order. I reiterate that individuals who have debt issues are able to seek advice from alternative routes. For example, the Insolvency Service website provides guidance and leaflets, and information is available through the insolvency inquiry line. Importantly, it should be noted that debt relief orders are used by people who owe limited amounts of money and have no assets. Therefore, they do not involve a person’s home being at immediate risk. They are clearly not analogous to cases in which a home owner is at immediate risk of losing their home as a result of involuntary bankruptcy. I hope that noble Lords will be reassured by what I have said and will not press these amendments.
Can the Minister assure the Committee with complete confidence that every single one of the organisations that he has named in his remarks are confident that they will be in a position to provide debt advice—indeed, sufficient personalised debt advice—to the people who will need it? Has he taken into account that the number of people sinking into the toils of debt is increasing hand over fist as the economy deteriorates?
My Lords, I thank the noble Lord, Lord Best, for trying to come to my aid. I am sorry that he was not able to continue with that. I am sure that he would have been able to include debt into the case that he was making, skilled orator that he is. However, this is a dialogue and I would like to respond to a few of the points that the Minister made.
We have heard the rhetoric about tough choices a number of times in these debates and no doubt we will hear it again. I wonder whether we might get a second script. Perhaps we could work together on that and enjoy a variation on the theme. We on this side of the House accept that legal aid costs have to go down, and have said so. We understand what the Minister is saying but we think that we have other ways of doing that. However, the same question emerges whichever way you approach this: namely, in saving a cost on an annual basis are the Government providing value for money in the long run? We have severe doubts that that is happening.
As my noble friend Lord Howarth mentioned, debts are increasing although perhaps not quite in the way that he indicated. CCCS, the charity which I chair, receives approximately 500,000 inquiries a year. Our average client owes more than £25,000 to more than eight different lenders. These people have a debt problem. The debts are not necessarily related to housing, to which a different contractual basis often applies, but arise because people overstretch themselves. As I tried to say in my opening address, they also arise because other things happen to these people; for example, they lose their jobs, suffer bereavement or become ill. This is not an easy area to talk about. It is not helpful to be overly simplistic and talk about owner-occupiers whose mortgages are at risk when many of these people will be in rented accommodation. However, the problems arising from losing their homes will be just as bad. I do not see any solution coming forward for those people.
The main point that I was trying to get across in my address concerned the DRO effect. I am afraid that the Minister did not answer the question that I posed: namely, what fee will be necessary to enable this service to be continued? It is presently £90. It seems to me that it will go up to nearer the fee that is charged for a full bankruptcy of £900. What will happen to debt advisers? Will funds be available to keep that generic debt advice going, particularly in the citizens advice area? As we explained, the only reason that the DRO system has continued is that the debt advisers are largely paid for by legal aid funds. If that goes, are we saying that those people who are in severe difficulty with their debts will have to rely on a website, which they probably cannot access because they do not have the necessary equipment, or guidance in leaflets? I do not think that that is a satisfactory solution to what is clearly a very serious problem.
These are very difficult issues that are part of a broader context of social welfare law. We shall probably have to come back to them but in the interim I beg leave to withdraw the amendment.
Amendment 72 withdrawn.
72A: Schedule 1, page 131, line 7, at end insert—
“( ) a demolition order under section 82A of the Housing Act 1985 or section 6A of the Housing Act 1988.”
I rise to move Amendment 72A and to speak to Amendments 72B to 72D, 74C, 77A to 77H, 77K, 78A and 78B. That makes a total of 16 amendments, but they are interrelated so I hope that at this late hour it will not take too long to speak to them.
As it stands, the Bill would limit housing and debt legal aid to homelessness, loss of home and very serious cases of disrepair. However, there are major problems with the definitions that would enable an individual to qualify for legal advice and support. This set of amendments forms a set of proposals that would address this difficulty.
The Bill currently applies a very tight legalistic test in making legal aid available in cases involving court orders for sale or possession or for eviction proceedings. The nature of the test would make it very difficult to solve a problem at an early stage, which would be practical, fair and effective both for the individual and the legal system.
These amendments would make it easier for an individual in financial difficulties that could lead to the loss of their home to get help at the pre-litigation stage in a case, for example, involving arrears. The cost of allowing the advice process to start earlier could be as low as around £3 million, but could solve problems earlier and save money later when litigation occurs.
Specifically, Amendments 72B and 72C would enable an individual threatened with the loss of their home, due to the failure to pay either the rent or the mortgage, to get advice on any underlying benefit problems. The problem is that the proposals in the Bill are that all benefits work is to be removed from the scope of legal aid, except in cases that go to judicial review.
At present, legal aid helps to fund support to defend possession proceedings as well as to resolve underlying benefit issues. Although in theory the Government have said that the loss of the home will continue to be prioritised for legal aid funding, the Bill will in fact prevent advisers from resolving benefits problems that lead to eviction proceedings. This is despite the fact that early intervention to resolve benefits issues often prevents these situations from escalating into possession proceedings. The danger is that the exclusion of benefits work from legal aid will tie the hands of advisers who are trying to prevent homelessness and will lead to many more unresolved cases filling the county courts. The courts will have more adjourned hearings and will ultimately have to make more possession orders because there is no one to resolve the benefits issue. This could result in higher costs to the taxpayer as a consequence.
Amendment 74C enables people to obtain advice where their right to occupy their home has been terminated for reasons entirely beyond their control and for which they bear no responsibility. The Bill as currently worded removes the entitlement to legal aid-funded advice from people who are regarded as “trespassers in law”, even if they were perfectly lawful occupiers when they first moved into the premises and they may indeed have been living there lawfully for many years.
The policy intention seems to be to exclude squatters from legally aided advice. However, a consequence of the wording is to exclude unfairly others who unknowingly may be counted as trespassers and who may need legal advice. The term “trespasser” is not synonymous with “squatter”, which denotes those who enter premises that they have no lawful right to occupy. A trespasser is someone who currently has no right in law to occupy their accommodation. In other words, a squatter is and has been a trespasser from day one of their occupation, but other people may have become trespassers, often without knowing it, when circumstances change.
This change of status occurs in common situations such as the following: a person who takes a tenancy when the landlord is actually a tenant too and cannot sub-let—the sub-tenant is a lawful occupier only until the head landlord terminates the landlord’s tenancy, making the sub-tenant a trespasser; a person who takes a tenancy from a landlord when the landlord has a mortgage on the property on which he then defaults, leading to the lender securing a possession order—the occupier becomes a trespasser through no fault of their own; or where there is a joint tenancy and the relationship breaks down, one partner terminates the entire tenancy and the other partner is left, often after many years of occupation, as a trespasser in their own home. In cases such as these—and there are many more similar examples—there will be a need for good legal advice on all the options for many people on very low incomes.
Amendments 77A to 77H, 77K, 78A and 78B relate to the rights of tenants and the powers of landlords. A difficulty with the Bill as it stands is that it decreases the powers of vulnerable tenants. For example, essential repairs and maintenance may not be done by a landlord but it may be impossible for a vulnerable tenant to do anything about it unless legal aid is available for disrepair and harassment damages claims. Amendment 77B extends the range of disrepair cases within the scope of lega1 aid by providing that legal aid should be available in cases where there is a risk of harm to the health or safety of the individual, not only where the risk is “serious”. Trivial and unmeritorious cases claims would still be excluded by the operation of the legal aid merits test.
Amendments 77D, 77H and 77K expand the class of persons whose health or safety is at risk to include anyone who resides in the property as a household member, even if he or she is not related to the tenant. Amendments 77A, 77C, 77E and 77F would allow funding to continue subject to means and merits to enable a tenant to claim damages where the landlord has carried out repairs.
Amendments 78A and 78B would ensure that legal aid continues to be available for people needing to pursue a damages claim. In that case, most legal remedies used against difficult landlords include a claim for damages even where the tenant is seeking an injunction. That is necessary because, in contract law, damages are the primary civil remedy and an injunction will be granted only where damages could not be an adequate form of compensation. The Bill will remove damages claims from the scope of legal aid but leave injunctions within scope, although in successful damages claims legal aid costs will be recompensed in the award.
In future, the Government intend damages to be funded by conditional fee agreements, which will require a client to find a lawyer willing to act for them on that basis. It is unlikely that that will be feasible in all but the most exceptional cases. In practice, the decoupling of damages from injunctions has the effect of offering only a part remedy to those needing to rely on legal aid. The law entitling tenants to claim for damages will remain on the statute books, but the low-income client dependent on legal aid will have no way to access that form of redress.
In the case of illegal eviction, the Government have been persuaded that both damages and injunctions should remain eligible for legal aid. In Committee in the House of Commons, the Government put forward amendments to that effect. However, in cases of harassment and disrepair, damages claims are still currently to be excluded from legal aid funding.
The cost of the amendments could be low. The Law Society has estimated that 60 per cent of the Government’s estimated savings in social welfare will not be made because of knock-on costs. I hope that some further work can be done before Report to ensure that the impact of the Bill can be minimised.
I have one final point. The Supreme Court, citing the European Court of Human Rights, has recently upheld the need for the legal system to put in place appropriate safeguards where something as serious as eviction is concerned. It stated:
“The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal … notwithstanding that, under domestic law, his right of occupation has come to an end”.
That is exactly the position of occupiers in the examples I have mentioned. The legal system cannot provide appropriate safeguards if such individuals cannot receive legal advice. The amendments would make legal aid available to ensure that low-income tenants can receive advice on their occupancy rights and ensure that people are not unfairly denied advice where they have major tenancy problems or where their home is about to be taken away from them.
I hope that my noble friend will see the amendments as intended to help the administration of justice and make it more effective, rather than to hinder it. I beg to move.
My Lords, I shall speak to Amendment 72A and support the case made by the noble Lord, Lord Shipley, for legal aid in housing cases to go beyond those where someone faces imminent loss of their home. I have made the case that the private rented sector has no regulator and no ombudsman. Therefore, private rented tenants are in a different position from consumers of other necessities such as electricity, gas, water, telephone or even financial services. If tenants are in dispute with their landlords, the only way of obtaining redress may well be to go to court.
That being so, legal advice can be of enormous help, not least in explaining to some tenants that they do not have a case and that it would be a waste of the time of the tenant and the courts to go down the route of litigation. Thanks to the current legal aid system, a publicly funded solicitor can advise tenants at an early stage that they should not pursue a hopeless case. If legal advice is not available, more tenants will try to proceed through the courts with ill advised cases as litigants in person, causing the courts and landlords—both private and public—to incur irrecoverable legal costs for wasted time litigating nonsense. My barrister colleague, Peter Marcus, who specialises in housing, tells me that he handles cases where, even if the landlord makes a successful application to have the tenant’s case struck out, the landlord none the less incurs significant irrecoverable legal fees.
Of course, the case for legal aid for housing matters goes much deeper than that. Justifiable cases against landlords, regrettably, are only too common in this sector. There are some 1.2 million private landlords and some are ignorant of their responsibilities, while a minority are deliberately exploitative. However, while legal aid is currently available to even the poorest tenant, the threat of litigation has teeth. Landlords know that, despite the absence of regulation or dispute resolution by an ombudsman, tenants advised by law centres or citizens advice bureaux can pursue them through the courts, with the landlord facing considerable costs when they lose the case. Without Amendment 72A, however, the disreputable landlord would see that threats from landlords of legal action would be empty, as tenants would not be able to take the matter forward unless the case concerned the likelihood of the imminent loss of their home.
Informing bad landlords that, however awful their behaviour, they will not be taken to court is like telling Somali pirates that they will never be held to account if they board ships and demand fantastic ransoms. It seems bound to lead to an escalation of criminality. Removing recourse to legal aid removes the capacity of tenants credibly to threaten litigation, leaving them with no way out of the misery of living in a property where the heating system does not work, where there is no management of anti-social neighbours, where disrepair is a major issue and where landlords simply refuse to answer letters or phone calls. As we all know, acute shortages mean that tenants, unlike consumers in other areas, do not have the luxury of being able to shop around and find a better property elsewhere.
The other way in which housing differs from other services lies in the legal complexities that surround it. Quite apart from the extensive body of landlord/tenant legislation, the ever changing entitlements to benefits—for example, to local housing allowances—are fiendishly complicated. Social landlords very often provide expert welfare benefits advice but private landlords, of course, do not. The ordinary consumer—the tenant—cannot be expected to have full knowledge of the legal niceties to deploy in a tribunal hearing; hence the need for professional advice, for which legal aid provides the funding mechanism. Take this away and not only will landlords be able to break the law with impunity but tenants who are ignorant of their entitlements or who are victims of incompetence at the hands of bureaucrats will never see justice.
The noble Lord, Lord Shipley, has made the case for legal aid housing advice preventing problems escalating to homelessness, and legal aid help for housing cases has to go much wider than stepping in at the last minute when possession of the home is imminent. Of course, many cases are not about eviction. Moreover, some of the cases where eviction has occurred may be about ancillary aspects of the actions of the landlord—it is not uncommon for tenants who are unlawfully evicted to have all their possessions thrown out of the property. If the landlord has previously exercised violence or harassment, the tenant may have no wish to get back their former home but merely to get back their belongings or obtain compensation for belongings destroyed. It would be perverse if a tenant could not get legal aid in such cases unless they declared that they wanted to go back into a property to which it would be unreasonable, if not unsafe, to return.
Regrettably, although we now depend on the private rented sector to house many poorer households, it is fraught with conflict that often requires a legal input to get sorted. With benefits advice being taken out of scope and the likely closure of many citizens advice bureaux as a result, housing is badly affected by the Bill. This surely is one area of our national life where legal aid is essential. Its withdrawal will not only cause misery but will cost central and local government money in picking up the pieces. I support the amendment.
My Lords, the speech of the noble Lord, Lord Best, was well worth waiting for. This is a very important and valuable group of amendments and I endorse the arguments so powerfully stated by the noble Lords who have spoken. Under the Government’s proposals in the Bill, legal aid will no longer be available for damages claims in relation to tenancy disputes; for example, disrepair. CLG tells us that more than 40 per cent of private rented dwellings do not meet the decent homes standard. Tenants will still be able to get legal aid to seek injunctions to get the work done, although only where there is serious risk of harm to the health or safety of the household. So there is a very high threshold for one to get legal aid for an injunction of that kind.
Under the current arrangements, as the noble Lord, Lord Best, explained, bad landlords know that the longer that they delay in carrying out the repairs, the greater the damages that they will have to pay. Therefore, the current arrangement, whereby legal aid is available for damages suits for disrepair, constitutes an incentive on landlords to carry out the repairs relatively promptly. Without the availability of legal aid for such damages claims, the pressure on landlords not to let their properties fall into disrepair will be removed.
Illegal eviction, actual or threatened, is a horrible reality for all too many people. Under the Government's proposals, legal aid will be available only to secure an injunction for the tenant to be reinstated to the property from which he has been illegally evicted. Again, as the noble Lord said, it is most likely that tenants will not want to go back to a tenancy with that same landlord. They will want to secure recovery of their possessions but they will not want to go back to that landlord. Under the Government’s proposals, the worst landlords will be able to get away with the worst behaviour and their victims will not be protected and will not be able to obtain compensation. The availability, through legal aid, of damages claims against bad landlords is a deterrent against bad behaviour; and the aggravated and exemplary damages that are, from time to time, awarded because the court takes a particularly severe view of the behaviour of a landlord are a most important deterrent. We will not be able to see that working in the future.
These problems are all too extensive. Environmental health officers testify to the fact that there are too many bad landlords and that many of them behave with the peculiar ruthlessness with which unfortunately people tend to act in housing matters; 90 per cent of environmental health officers say that they have personal experience of landlords harassing or illegally evicting tenants. The proportions of people availing themselves of private rented accommodation are rising at the moment. The Localism Act encourages local authorities now to place homeless households in the private rented sector. The benefits cap and the cuts to local housing allowance will drive families lower down the scale of the private rented sector towards the bottom end. It seems bizarre that legal aid will not be available to people facing housing problems until they are actually on the precipice of losing their homes. It is obvious that early intervention to deal with the underlying causes is a sensible policy to prevent the underlying problems deteriorating. It is both kinder and more economic.
Removing welfare benefit and debt cases from the scope of legal aid will mean, as my noble friend Lord Stevenson pointed out, that we will see a compounding effect of people getting deeper and deeper into trouble until they face homelessness. Under the Government's proposals, only then will they be able to get legal aid to help extricate them from the crisis that they have been allowed to get into.
This policy will increase insecurity and distress among tenants. It will add to the pressure on tribunals and courts, as the noble Lords, Lord Shipley and Lord Best, told us. It will increase costs to the taxpayer because of the consequences of the distress and of the problems that will be without remedy.
The Minister prayed in aid time and again in debates on different parts of this foolish and iniquitous Bill the requirement of the Treasury that the Ministry of Justice should make its contribution to reducing the deficit. The Treasury will certainly not be swayed by the pathos of vulnerable people finding themselves in greater difficulty than they need be in, but it should be swayed by the prospect of increased costs being shunted around Whitehall so that we end up with no reduction of the deficit but possibly an increase in it. I very much hope that the Treasury will review the policy that is proposed in the Bill before we get to Report. I hope that it will look at the arguments and figures put forward by Dr Cookson of King’s College. The central case on which the Minister relies—that all this, miserable though it may be, is inescapably necessary in order to reduce the deficit—is profoundly flawed. I hope that on Report we will see major government amendments to the Bill.
My Lords, after three excellent speeches I will make only one point, following directly from the last point made by the noble Lord, Lord Howarth. What I may perhaps call the Cookson report—the King’s College report—quantifies certain knock-on costs. What it does not do is look at indirect knock-on costs. For example, in a case such as the one my noble friend referred to when he moved the amendment of somebody not getting timely advice and as a result finding that he and his family were on the street with the local authority having to pick up the problem and provide housing, along with the welfare fallout and so on, the indirect costs were not included in the figures of the King's College report. That makes the self-interest of the Government in listening to and agreeing the amendments in this group all the more acute.
My only other point was made by all three preceding speakers but is worth emphasising. The noble Lord, Lord Best, drew an analogy with Somali pirates. He talked of a small minority of exploitative landlords. That is absolutely fair; it is only a small minority of private landlords. However, they are concentrated among poor tenancies. If we throw our minds back to Rachman, we will remember that his tenants were among the poorest in London. That was no accident. Landlords who are of that evil mind know that poor tenants are least able to protect and stand up for themselves, and most easily harassed. Again, it is an issue of self-interest on the part of the Treasury to recognise that. If it does, it will see the sense of the amendments in this group without getting into morality and justice.
My Lords, I confess to feeling very troubled by what I have heard in the Chamber during this debate. I will say a few words about my concerns in particular about vulnerable families in private accommodation. A few years ago I accompanied a health visitor in the borough of Redbridge in north-east London just north of West Ham. We visited a number of families living in very poor conditions in private property. In one such home the basement was flooded and the landlord had taken no action to remedy this. Another was overcrowded. A mother and her two young children shared one room with water almost running down the walls. The third, and most shocking, was a home in which the shower and the lavatory were somehow combined in one system. It may be a small proportion of landlords, but there seemed to be a lot of them in Redbridge, back then, at least. I declare my interest as a landlord. I hope that the Minister can offer some real reassurance in his reply that the most vulnerable individuals and families in society are not going to suffer significantly because of what the Government propose.
My Lords, I come to this debate informed not only, as ever, by the noble Lord, Lord Best, whose expertise in matters of housing is second to none in your Lordships' House, but by my experience over many years representing an inner-city ward in Newcastle that has a mix of housing. It has owner-occupiers, a substantial number of council houses, houses owned by registered social landlords and a significant number of private rented properties, many of which are, I have to say, poorly managed and which present many problems to the tenants. It is certainly true that, as the noble Lord, Lord Phillips, has said, some landlords are exploitative. Others are simply incapable for one reason or another of managing their properties adequately. They do not have the resources or the skill, or they may not live locally. Whatever the reason, it is the tenants who suffer. In these circumstances, there has to be some redress.
I will be speaking to Amendment 81, which seeks to cut to the chase in terms of the overall issue. The amendment so ably moved by the noble Lord, Lord Shipley, deals with a series of issues, but Amendment 81 simply seeks to restore legal aid across the piece in housing matters, which strikes my noble friends and me as probably the most efficacious way of dealing with the problem. That is not in any way to minimise the strength of the arguments put by the noble Lord, Lord Shipley. He and I have been opening and closing debates across the council chamber for about 35 years, and it is a pleasure to continue that long-standing tradition.
Housing is now becoming one of the critical areas of public policy. For those engaged in not only the policy but the daily life that is influenced by housing, it is obvious that matters are getting increasingly difficult. We have spiralling rents and a shortage of available accommodation exacerbated, as other noble Lords have said, by pending changes to housing benefits that are likely to lead to still greater pressure on the private rented sector. At the same time, councils are having increasing difficulty in maintaining their stock as capital programmes are reduced and repairs and investment in existing council properties become more difficult to achieve. It must be said that not all councils are wonderful managers of property. Council tenants also have their problems and need redress as, occasionally, do the tenants of registered social landlords. What will occur as a result of the changes that the Bill proposes is that 40 per cent of housing cases—52,000 cases—will lose legal help, often from organisations such as Shelter rather than from solicitors but sometimes from solicitors, and that will save the Exchequer some £10 million. There will be 1,200 cases where legal representation will no longer be available. That will save the Exchequer £3 million. These are not inordinately large sums one might think, and other noble Lords have pointed out that the potential on-cost to other services could be considerably greater. Under the provisions of the Bill, there will be exceptional case funding, up to 25 per cent for some proceedings. I do not know whether the Minister is able to indicate the likely take-up. Up to 25 per cent can, of course, mean from virtually nothing up to 25 per cent, and it is not entirely clear what proceedings are envisaged in the term “some proceedings”. A little enlightenment on that would be helpful.
As we have heard, legal aid will still be available for eviction cases, but in effect at the last gasp and not at a stage when matters might be resolved earlier, potentially to the benefit of both sides. That must be a more cost-effective way of dealing with it. However, we are not just dealing with money; we are dealing with people’s lives, with families and individuals living in stressful conditions once the threat—explicit or otherwise, legal or otherwise—is made, and that must also have a bearing on how society reacts in terms of the assistance it is prepared to offer.
Of course, much of the problem arises in the private sector, although it should be clear that it is a minority of landlords who are deliberately exploiting and neglecting their tenants. However, it is disconcerting that 100 per cent of environmental health officers encounter persistent failures on the part of landlords to carry out their obligations. Every environmental health officer has cases of that kind to deal with. Sixty per cent of them say that more than half the cases they are involved with affect vulnerable people, so we are dealing with a significant and very widespread problem affecting many vulnerable people.
A very strong case has been made by previous speakers around the issue of damages. It seems absurd that damages claims for distress, hardship or loss or damage to possessions will not be covered by legal aid that might be available to deal with evictions. It is clearly necessary to restore legal aid and assistance for a damages claim alongside repair orders, for example. After all, at the moment it is possible for a court to award aggravated or even exemplary damages in particularly bad cases, which is a clear indication of the extent of the problem. Of course, if legal aid is not available, the situation is simply going to get worse.
I have no doubt the Minister will fall back yet again—and I am not blaming him, that is the job that he has to do on behalf of the Government—on saying that there are alternatives to legal aid, but that is not a realistic view. Local authorities certainly have housing departments; they often have housing advice services, but these are also under pressure. The noble Lord, Lord Shipley, would no doubt confirm that in the last year of the previous administration in Newcastle there was a reduction in the number of people employed precisely in this area of dealing with private landlords; he is nodding his agreement.
Shelter, the body most concerned with and most effective in helping tenants, is sustaining a 70 per cent cut in its anticipated capacity to offer advice. I was rather surprised to learn that this is not just a problem of the cities, as one might think—of the Newcastles and Manchesters and Birminghams. If Shelter’s figures are to be believed—and there is no reason to dispute them—the reduction in the number of cases and the income of Shelter branches will actually be greater in Dorset and Somerset than in Manchester and Newcastle. So we are not talking about a specifically urban problem—not that it should make any difference where these things occur—we are talking about a very widespread problem reaching right across the country. It is clearly necessary to provide access to as much help as possible. It may very well be required to be legal help from the legal profession. But in many cases it would be through precisely the kind of organisation that normally Ministers would be able to pray in aid as being available. They simply will not be available on the scale required. Amendment 81 seeks to restore legal aid for housing. As I have already indicated, the direct cost would not be inordinate but the indirect savings to the public purse would be greater if it is available.
As we have seen earlier today, Amendment 90ZZB has been spatchcocked into this group. It is based on a Law Society proposal to ensure that legal aid is available for advocacy, once again, in the Court of Protection for people in relation to the right of respect for a person’s home or their private life, which comes under the European convention. The Law Society’s view is that if the Bill is not amended someone who suffers from learning disabilities or dementia, and is facing a forced removal from their home by a relative or a public authority, would have no legal aid to be represented before the Court of Protection. Although there may be other issues around deprivation of family life, some cases would not be within the scope of legal aid if the Bill is implemented as drafted. That is particularly the case where a vulnerable person does not have any family but is still removed from his or her home. Unless funding is made available, the official solicitor would not be available to assist. I do not quite know why the amendment has been put in this group—it seems to relate to other business affecting the Court of Protection—except that there is a clear housing connection. That is also a matter of concern.
The noble Lord, Lord Shipley, raised the issue of trespassers. By sheer coincidence, I received an e-mail today on behalf of a constituent who suffers from very poor health and disability, and has been caring for a relative who has died. He is now concerned about his position vis-à-vis his occupancy of the house. Technically, he is a trespasser—or he will be as soon as the arm’s-length management company which manages the house tells him that he has to go. He would not be able to receive legal advice under the terms of this Bill. That puts into very clear light the difficulties which the Bill would create.
Bad housing and the trauma of eviction and homelessness lead to damage to individuals and families, and clearly have social and, ultimately, financial costs which have to be borne by the public purse. For legal aid in these cases to be restricted by a mantra that it is to be available only in respect of cases affecting life and liberty is to create a two-tier system of justice, which is particularly objectionable in such an important area as housing on an individual’s life and the lives of communities. Having heard the very strong arguments from all around this house, not least from at least part of the coalition Benches, I hope that the Government will rethink their position. If they proceed with the Bill in its present form, this would be one of the gravest errors that they would make. I urge them to listen to their colleagues in this place and those in the Commons who, in fairness, made similar points. It is not too late to see sense and to retain rights which can make a significant difference to people’s lives.
My Lords, this large group includes a number of government amendments, which I presume are acceptable in their being mainly technical. I am extremely pleased to be sandwiched between my noble friend Lord Shipley and the noble Lord, Lord Beecham, as far as this debate is concerned. It is a great tribute to that great city of Newcastle that two of its most pre-eminent city leaders should now be giving such good service in this House and is a reflection of the quality of our civic leadership.
As is obvious, this group of amendments has provided a very useful opportunity to examine our proposals as they affect housing. I do not underestimate the importance of housing as an issue. Like the noble Lord, Lord Phillips, I am old enough to remember Rachmanism and when and how it entered our language. I can still remember the shock that the initial showing of “Cathy Come Home” had on British society in the late 1960s. There is no doubt that housing matters, as this debate has reflected.
As I said earlier to the noble Lord, Lord Howarth, a number of the points that were made either looked at worst-case scenarios or avoided exactly what the Government are providing for in the Bill. For example, when all these measures have gone through, we will still be spending some £35 million on housing-related legal aid.
During the passage of the Bill and in light of respondents’ views in consultation, we decided that legal aid should be available for cases of unlawful eviction. We amended the Bill in Commons Committee to ensure that legal aid continues to be available in cases of unlawful eviction for lawful occupiers without a tenancy agreement. Therefore, those who are unlawfully evicted can get legal aid, not only for the case of the eviction but for claims for damages and damage to their goods. We are also retaining legal aid for housing disrepair where it is alleged that the disrepair poses a serious risk to health or life. This, too, will give some protection to tenants. Legal aid will also remain where a tenant is threatened with eviction for early advice on the merits of their case. The merits test, which applies to all legal aid cases, will help prevent public funds being wasted on hopeless cases brought by tenants—a point made by the noble Lord, Lord Best. So we are listening. I shall not repeat the mantra, but we are concentrating limited funds on what we think are the most important cases.
At this hour, I shall go through the amendments to enable noble Lords to see where we are coming from on the issues raised by them. Amendment 81, as the noble Lord, Lord Beecham, acknowledged, appears to bring into scope housing law areas that are not covered in Schedule 1 and which we intend no longer to fund. We consider that many housing cases are primarily about money or property, and that these issues are not of importance when compared with such fundamental issues as homelessness or the immediate safety of individuals.
As I have already made clear, we intend to retain housing matters in scope only where the individual’s home is at immediate risk. Accordingly, legal aid will be available in relation to court orders for the possession or sale of an individual’s home and eviction from the home. We are also retaining legal aid for housing disrepair cases where there is a serious risk of harm to the health or safety of the individual or their family, and legal services are provided to ensure that the landlord remedies the disrepair. Legal aid will also be retained for those who are homeless or threatened with homelessness and are seeking homelessness assistance from the local authority.
Amendment 72A is aimed at making legal aid available where a tenant of a private registered provider of social housing, registered social landlord, housing action trust or local housing authority is facing a demotion of their secure or assured tenancy as a result of anti-social behaviour or use of the premises for unlawful purposes.
If an individual’s tenancy is demoted, it is replaced with a less secure form of tenancy. Demotion orders are designed to send clear warnings to tenants who are found to have behaved anti-socially or used their home for unlawful purposes. A court can grant a demotion order only where it is satisfied that the alleged behaviour has occurred and that it is reasonable to make the order.
Demotion orders are sought where there is anti-social behaviour but the landlords want to continue working with the tenants to improve their behaviour rather than evicting them outright. Accordingly, the individual is not at immediate risk of losing their home— as with, for example, an application for a possession order—and the Government therefore consider that the provision of legal aid is not justified in these circumstances.
We acknowledge that where a court demotes the tenancy of an individual, it is easier for the landlord subsequently to seek their eviction. However, the granting of the demotion order does not necessarily mean that possession proceedings will be brought, and the tenancy will revert to secure or assured status after 12 months, provided that the landlord has not issued a notice seeking possession during the demotion period—for example, because of further anti-social behaviour. However, where that is not the case and in consequence a possession order is sought by a landlord, legal aid will be available at that point.
Where a local housing authority or housing action trust decides to seek possession, the demoted tenant has the statutory right to seek an internal review of that decision. Legal help will be available for that under paragraph 28(1)(a) of Part 1 of Schedule 1. Legal aid will also be available in possession proceedings against a demoted tenant.
Where the landlord is a public authority and the tenant raises proportionality under Article 8 of the ECHR as a defence to the possession proceedings, case law makes clear that the court must consider proportionality. In addition, where a social landlord obtains a demotion order and subsequently seeks possession of the property, legal aid will be available for the tenant in relation to any judicial review of the landlord’s decision to bring possession proceedings.
Amendments 72B and 72C seek to make legally aided advice available in relation to welfare benefit entitlement where the individual is at immediate risk of losing their home and the benefits in question relate to housing costs—for example, housing benefit or the support for mortgage interest component of income support or pension credit.
Legal aid will continue to be available where the home is at immediate risk through the repossession or sale of the home, or eviction. However, legal aid will not be retained for advice on welfare benefits matters. While we recognise that many people rely on benefits, these cases are primarily about financial entitlement and we generally consider their importance to be lower than cases concerning, for example, the liberty or safety of a person.
For those who need assistance on a welfare benefits matters, factual advice is available from, for example, Jobcentre Plus, the benefits inquiry line and the tribunal itself. Accordingly, where possession action results from mortgage or rent arrears caused by a welfare benefits issue, we do not believe that legal aid should be provided in relation to the welfare benefits matter.
I have already explained the Government’s reasoning for this. We consider that the tribunal for resolving disputes is generally accessible without the need for legal assistance. Where the benefits dispute is ongoing at the point where possession action is taken, legal aid will be available in relation to the possession action, and it can be used to argue for an adjournment of possession proceedings—for example, if it appears that the client may be able to make the necessary payments once their benefits dispute has been resolved.
The Government understand that in cases where private landlords bring possession proceedings against their tenants, they will generally give the tenants reasonable notice that they are being asked to leave. Legal aid will be available to help tenants engage with landlords to try and resolve the actual or threatened possession issue wherever possible, including, if possible, coming to an agreement about delaying the possession matter until the benefit matter is resolved.
Amendment 72D relates to the loss-of-home matters at paragraph 28 of Schedule 1. It appears that the intention, by lifting certain exclusions in Part 2 of Schedule 1, is to make legal aid available for a wide range of potential claims in tort and for welfare benefit matters within the context of eviction and possession. The Government amended paragraph 28 of Part 1 of Schedule 1 at Commons Committee stage to lift certain exclusions in Part 2 of the schedule in order to give effect to the original policy intention that legal aid should continue to be available for counterclaims to possession proceedings. It was important to do so as such counterclaims have the potential to keep clients from becoming homeless. We also lifted those exclusions in relation to unlawful eviction, in order to ensure that our policy that legal aid should continue to be available for such matters was given effect.
The provisions that we introduced, now at paragraph 28(6)(a) and (b), lift the exclusions for trespass to person, to property and to land, and breach of a statutory duty in respect of counterclaims to possession proceedings and unlawful eviction proceedings. We believe that the provisions in paragraph 28 already sufficiently lift relevant exclusions in Part 2 of Schedule 1 as are necessary for the purpose of paragraph 28.
Amendment 72D would go much further and is, we believe, intended potentially to allow legal aid funding for any tort claim that may arise in the context of a loss of home. Indeed, it might even in some circumstances make legal aid funding available to a landlord to bring a damages claim against a tenant within the context of eviction.
In relation to tort claims more broadly, they are being more generally excluded from the scope of legal aid. The Government take the view that these cases are essentially claims for money or damages, which are a lower priority for funding than cases that involve more fundamental issues. Conditional fee agreements may provide a viable alternative means of funding such claims.
We are retaining legal aid for the most serious damages claims against public authorities where the issue is an abuse of position or power or a significant breach of human rights, or for any case concerning alleged abuse of a child or vulnerable adult, or alleged sexual offence. We are also retaining funding for claims under the Equality Act 2010.
On welfare benefits, with the exceptions of judicial reviews and claims related to the contravention of the Equality Act 2010, we have decided to remove welfare benefits matters from scope, for the reasons that I gave the House earlier.
Amendment 74C is aimed at ensuring that the provisions of sub-paragraph 28(10) of Schedule 1, which relate to trespassers facing eviction, exclude from legal aid only those who are in occupation as a trespasser and who began their occupation as such. Legal aid will generally be available for possession and eviction matters under paragraph 28 of Part 1 of Schedule 1. However, the Government do not believe that it is justifiable to use taxpayers’ money to provide legal aid funding in circumstances where an individual has unarguably both entered and remained on a property or site as a trespasser and is facing eviction. Such cases are intended to be excluded by paragraph 28(10) of Part 1 of Schedule 1.
The Government agree with the objectives behind this amendment and the concern motivated by it, namely that paragraph 28(10) as drafted could be read as having a different effect from that intended. These provisions could possibly be read as preventing an individual from obtaining legal aid for eviction if they unarguably entered as a trespasser but then regularised their arrangement by, for example, entering into a tenancy. The provision could also be interpreted as excluding cases from legal aid where an individual had initial consent to be present—for example, as a tenant—but no longer has such consent, for example, because of a dispute with their landlord.
As government Amendments 74A, 74B and 74D concern the same point, I will deal with them together. These amendments do not represent a change in policy; rather, they are aimed at giving better effect to our stated policy. They therefore address the same objective as Amendment 74C. The Government’s amendments are more appropriate to meet the concerns that have been expressed because they leave no room for doubt that the provision achieves the effect that I have described and that the Government have always intended. These government amendments put beyond doubt that the exclusion in paragraph 28 of Schedule 1 in relation to trespassers will apply only when the person is both unarguably occupying a property as a trespasser and began their occupation as such. I hope that noble Lords will be reassured by that clarification.
The next group of amendments relates to the provisions in paragraph 30 of Part 1 of Schedule 1, concerning housing disrepair cases. Amendments 77A, 77C and 77E relate to legal aid for damages claims by tenants relating to disrepair in rented homes—in particular, ensuring that when legal aid has been granted for a housing disrepair case, if the landlord makes arrangements for the repairs to be carried out, or carries them out, legal aid can continue for the damages aspect of the claim until the conclusion of the case. We have prioritised funding on cases which concern such fundamental issues as homelessness and the safety of the individual or their family. We are therefore retaining legal aid when serious disrepairs threaten the health of the client or their family and the client wishes to bring an action against their landlord to remove or reduce that risk. We are, however, generally excluding damages claims from the scope of legal aid because we take the view that these cases are essentially claims for money, which are a lower priority for funding than cases which involve more fundamental issues. We also consider that conditional fee agreements offer an alternative means of funding such claims.
It may be that the intention of this and related amendments is generally to extend Schedule 1 to cover disrepair damages claims. In this context, we note that Amendment 77G disapplies a range of the exclusions set out in Part 2 of Schedule 1 which concern causes of action which can be used to obtain damages. As I have already said, we do not consider that damages claims for housing disrepair are a sufficient priority for funding and that conditional fee agreements present a viable alternative means to fund such claims. We recognise that, when a housing disrepair claim is funded under paragraph 30 of Part 1 of Schedule 1 to remove or reduce the serious risk of harm arising from disrepair, and the claim also includes a damages element, legal aid could be extended to cover the excluded damages aspect of the claim. This could happen under the rules for connected matters made under paragraph 40 of Part 1 of Schedule 1.
Amendment 77F appears to be intended, in such cases, to allow funding for the damages aspect of a claim for disrepair to continue to be funded even where the disrepair itself has been addressed by the landlord. We do not consider this to be appropriate or necessary. I have already explained that we do not consider damages claims to be a high priority. In addition, where a landlord has carried out repairs, or has been ordered to do so, this should remove any doubt as to liability for the disrepair. If there continues to be a meaningful damages claim and a reasonable prospect of recovering damages, the client should be able to continue the damages aspect of the claim under a conditional fee agreement. This amendment may also, in part, be motivated by a concern that failure to fund the damages aspect of the case will prevent the legal aid fund from recovering any unrecouped costs. If so, this amendment is unnecessary. Where the damages aspect of a case continued under a conditional fee agreement, if the client were successful in obtaining damages, the statutory charge would ensure that any unrecouped funds expended at the earlier stages of the case by the legal aid fund would be recouped.
In addition, noble Lords should be aware that legal aid will not in general be withdrawn where it is in the interests of the legal aid fund for it to continue. In an unusual case where the damages aspect of a funded case could not be continued under a conditional fee agreement, legal aid for a housing disrepair case could continue to its conclusion to protect public funds by obtaining a costs order, even when repairs have been carried out.
Regarding Amendment 77B, paragraph 30 of Part 1 of Schedule 1 provides that legal aid is available for disrepair cases concerning,
“the removal or reduction of a serious risk of harm to the health or safety of the individual or a relevant member of the individual’s family”.
Amendment 77B deletes “serious” and therefore extends funding to cases where there is any risk to health or safety, however small. The Government’s intention throughout this reform process has been to focus our constrained resources on the most important cases. That is why the provisions in the Bill target legal aid on those disrepair cases where it is alleged that there is a serious risk to health or safety—it is important to stress the word “alleged” because claimants will not be required to prove the seriousness of the disrepair before funding can be granted. In any case where it is reasonably alleged that disrepair poses a serious risk to health or safety, legal aid will be available to enable the merits of the claim to be investigated. This would include, for example, instruction of a joint expert where possible to investigate the disrepair, in line with the housing disrepair pre-action protocol. While I recognise that some disrepairs start out small and then deteriorate, the reality is that we have to target funding as best we can. That means we cannot fund trivial cases.
Amendments 77D, 77H and 77K appear to be aimed at making legal aid available in disrepair matters under paragraph 30 of Part 1 of Schedule 1, not only where the disrepair poses a threat to the health or safety of the legal aid client or a member of their family, but where the individual whose health or safety is at risk is a household member who is not related to the client. We have clearly stated our intention that legal aid should continue to be available in relation to remedying household disrepairs where it is the legal aid client, or a member of their family, whose health or safety is said to be at serious risk as a consequence of the disrepair. We consider it appropriate that, for example, an individual can apply for legal aid on behalf of their child or partner whose health is jeopardised. However, we see no reason why funding should be extended to other occupiers. These amendments could make schemes vulnerable to abuse by, for example, enabling a person who does not qualify for funding on financial eligibility grounds to obtain legal aid for a disrepair matter by virtue of having a housemate who qualifies for legal aid. We believe that our definition of the relevant family member, set out in paragraph 30(3), is broad enough to capture members of the household who have a sufficiently strong connection to the legal aid client.
Government Amendment 77J relates to the definition of “home” used in relation to housing disrepair matters at paragraph 30 of Part 1 of Schedule 1. This is a minor, technical amendment which addresses a slight discrepancy between the definitions of “home” used in paragraph 30(4) and in paragraph 28(9). The latter paragraph includes “other vehicle or structure” in the definition, but paragraph 30(4) refers only to “other structure”. Amendment 77J addresses this unintentional discrepancy and ensures consistency in Schedule 1.
Amendments 78A and 78B appear to be aimed at making legal aid available if a residential occupier of a property brings a claim for damages where they have been harassed, perhaps by their landlord. The Government position is clear: limited legal aid resources should not be focused on cases concerning financial advancement and the obtaining of monetary damages, unless the claim has significant additional importance. For example, legal aid will remain available for damages claims concerning abuses of position or power, or significant breaches of human rights by a public authority, or for claims concerning sexual assault, or abuse of a child or vulnerable adult.
These amendments seek to protect residents from unscrupulous landlords. I reassure noble Lords that there is already significant protection for residents. Paragraph 28 of Part 1 of Schedule 1 provides legal aid in relation to the eviction of an individual from their home, which will include damages claims against a landlord in relation to the unlawful eviction of a residential occupier. In addition, paragraph 32 of Part 1 of Schedule 1 provides legal aid so that those suffering harassment can obtain a protective injunction under the Protection from Harassment Act 1997. An injunction could be granted to prevent interference with the peace or comfort of a resident or to prevent services being unreasonably withheld by a landlord. Breach of such an injunction can bring a prison term of up to five years. For other meritorious damages claims that fall outside the scheme, a conditional fee agreement could be used.
On the point that the noble Lord, Lord Beecham, made at the end of his speech about Amendment 90ZZA, we believe that the Bill contains significant safeguards in respect of mental health treatment. Amendment 90ZZB, however desirable, goes beyond what is currently provided by the current civil legal aid scheme. Because we have had to focus our resources, we have had to focus on those interests of the individual that are really of the most vital importance. I therefore hope that the noble Lord will withdraw these and other amendments.
I know that that was quite a gallop through a very detailed set of amendments about what I fully acknowledge is an important issue, and I am sure that noble Lords will want to take tomorrow’s Hansard as their bedtime reading. I hope that they will see that some of the issues raised by the noble Earl, the noble Lord, Lord Best, and others are already covered by the Bill and that the Government have listened to some of these concerns. Perhaps we will return to some of them on Report. In the mean time, I ask noble Lords from both ends of Newcastle to withdraw their amendments.
My Lords, listening to this debate on housing reminds me of being told when I was very young that a stitch in time saved nine, that for want of a nail a shoe was lost or what would happen if you went out courting on Ilkley Moor without your hat on—I could not think of anything relating to the Lambton Worm, but I am sure there was something along those lines as well—the point being that the Government are prepared to fund at the most expensive end, when you get to court or near to it. I think of all those days as a solicitor when you settle things by picking up the phone, writing a letter or meeting face to face. That is the hidden part of the iceberg that I do not think the Ministry of Justice appreciates at all. It is sad that there is a perverse incentive for lawyers to escalate a case to the point at which they are about to go to court, as opposed to funding at a lower level where things can be sorted out as they always have been. That is a brief comment; I have sat here long enough, and I think I am entitled to make it.
My Lords, I am grateful to my noble friend for his contributions to identifying what is at the heart of this. I am grateful to the Minister for the very full answers that he has given to this set of amendments, but of course broadly speaking what he said is what the Bill says—it was a restatement of the current position.
I ask the Minister to look again at two things. One is the King’s College/Law Society evidence base for what the knock-on costs might actually be. The contribution of my noble friend Lord Phillips helped us to understand that some of the indirect costs have not been counted in the King’s College calculations. That being so, there might well be an evidence base that tells us that it will be more expensive. As opposed to saving a little money, it might end up costing the Government more.
Secondly, I wonder whether we might look at the basis of the cost-shunting around Whitehall, which I take very seriously. When cuts are required, there is a tendency in Whitehall departments to do things that deliver the cuts in that department but cause someone else additional cost. That other department tends not to pick up that cost until it has happened and there is suddenly no alternative.
We have had a full and frank debate. Many of us in the Committee think that there is a problem that we need to address in greater detail. It may well prove to be in the interests of the Government to save money by adopting some of the amendments that have been proposed this evening. However, for the moment, I beg leave to withdraw the amendment.
Amendment 72A withdrawn.
Amendments 72B to 72D not moved.
House adjourned at 11.42 pm.