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On Question, amendments agreed to.
The Earl of Onslow moved Amendment No. 12:
The noble Earl said: Again, I speak from the point of view of the Joint Committee on Human Rights. When I discovered that it was not mandatory for children to be represented, I was completely horrified. That a civilised society could prosecute vulnerable, probably ignorant, deprived children, however brutish or unpleasant they might be in appearance, forcing them to appear before some court or other, without properly trained legal assistance, strikes me as abhorrent. I can put it no lower than that. It is almost certainly against Section 6 of the Human Rights Act, and it is against Article 12 of the UN Convention on the Rights of the Child.
I saw the noble Lord’s private secretary before we came in, and I asked her to ask the Minister to find out what percentage of children did not have legal representation. If the numbers are low, there can be no cost implications at all. If the numbers are high, it is a screaming scandal and has to be put right. As noble Lords know, Cardinal Morton’s fork worked out for Henry VII, as he said, that “if you do not look rich you are hiding your money, so I am going to tax you. If you do look rich, you have a lot to spend, so I am going to tax you”. On this issue, if there are none, it can be afforded, and if there are many, it must happen. I beg to move.
Lord Mayhew of Twysden: I support this amendment. I do not see how it can be said that we are treating custody as a last resort, unless we have secured that the court has the advantage of representation as to the
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Baroness Stern: I am very grateful to the noble Earl, Lord Onslow, for introducing this amendment. I apologise for missing the first 30 seconds of his contribution. I think he said that the Joint Committee on Human Rights was very surprised to find that there is no legal requirement for children to be represented in legal proceedings, as indeed we were.
The Bill expressly provides for representation when a fostering order is being considered, but not when a child might go into custody. In correspondence with the Government, the Minister told the committee that this was a reasonable provision because there are already a number of safeguards in place to ensure that a young person will be granted publicly funded representation where necessary, mainly in the form of the interests of justice test in the Access to Justice Act 1999; and that legal representation is available to anyone facing criminal proceedings where it is in the interests of justice that public funding should be granted. The Minister also told the committee that accompanying guidance states that the court should give consideration to whether the defendant is of a young age, and to the defendant’s ability to understand the proceedings or to state his own case.
The Government also said, in probably the most significant part of their submission, that extending the scope of publicly funded representation for children,
The Joint Committee on Human Rights, needless to say, was not convinced by the Minister’s arguments. The committee was surprised, given the provisions of the Convention on the Rights of the Child. I draw the Minister’s attention to general comment 10, issued by the Committee on the Rights of the Child in 2007. The general comment has a large section on the right of the child to be heard. Article 12(2) of the Convention on the Rights of the Child requires that a child be,
- “provided with the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law”.
The committee also stresses the right to effective participation in the proceedings. Finally, the committee says:
“The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence”.
The committee recommends that the state parties provide as much as possible for adequate, trained legal assistance. This is a rich country. The Committee on the Rights of the Child would clearly expect the United Kingdom to be able to afford trained legal assistance for children coming before the courts. It is my experience and, no doubt, that of those who are involved in this work that the children and families caught up in this system are
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Lord Ramsbotham: I, too, support the amendments very strongly, and draw attention again to two aspects. In our discussion of children and young persons with regard to the Bill, a very large amount of time has been devoted to advocacy and to making certain that advocates are available whenever disciplining young people is involved. Again, that links to the fact that this should undercut the whole administration of youth justice. The second subject of considerable concern was the suggestion that young juvenile asylum seekers and others should brief their own solicitors. Have you ever heard anything so silly when they do not have English as their first language and know nothing about the law, let alone about this country? This suggests that this whole business of the legal representation of the young needs to be looked at seriously right across the board and not only in the context of the amendment.
7 pm
Baroness Linklater of Butterstone: I, too, support the amendment, and shall speak to my Amendments Nos. 13 to 16, which are grouped with it.
I absolutely agree with the noble Earl, Lord Onslow, that it is astonishing that there is no presumption in Schedule 1 that children are entitled to publicly funded representation in criminal proceedings. In paragraph 19 in Part 2 of the schedule, a young person can be legally represented before a local authority residence or fostering requirement can be imposed under a YRO. However, no legal representation is required before any other version of the YRO can be imposed, including even the ISS. This astonishment was echoed by the JCHR, and so it should be by the rest of us when the outcome could be so serious, and with the long-standing implications of which we are all aware.
Furthermore, the best interests of the child are the primary consideration, as required by the CRC. As it happens, provision is made in the Bill for when a fostering requirement is being considered, and quite rightly, but why not for when all the other requirements, which have similar important implications, are being considered? What is the logic for excluding the other requirements for legal representation, in particular the ISSP, which may be imposed as a last resort before custody? What could be more serious for the future of a child than that? Indeed, a breach of the YRO may result in custody. It would be contrary to Article 6 of the ECHR, which says that legal representation is required for children to have a fair hearing. The court must be in a position to have all the circumstances of the child explained to it, particularly if the suitability and proportionality issues are to be properly addressed and if the child is to have all decisions properly explained to him or her.
I understand that the Government regard the “interests of justice” test as a safeguard under the Access to Justice Act 1999, with consideration given
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Lord Elystan-Morgan: I, too, support the amendment, with all the fervour that I can command. The case proves itself over and over again. Legal aid is a dark cloud that hovers on the horizon of justice all too often. This has a lot to do with the fact that those funds comes from a small department that has a limited budget and with the fact that comparatively small increases year by year reflect themselves in substantial percentages. I have been aware of that for many decades, and it is one of the great impediments to the development of justice in our land.
I have no doubt that there is a massive moral obligation and, I believe, a convention obligation on the Government, with regard to the rights of the child. It is not sufficient to say that the child’s situation must somehow or other contract itself into a situation that justice demands. It should be the other way round: in other words, the child has a right to representation unless the situation contracts itself out of the consideration of justice.
For those reasons, I urge the Government to reconsider the position. Not only is it a matter of justice, it is a matter of considerable assistance as far as the court itself is concerned. More time and money are lost by judges and magistrates going out of their way to satisfy themselves that they have covered every possible situation in relation to an unrepresented defendant than in the opposite case. That has been my experience.
Baroness Butler-Sloss: For the reasons given by noble Lords in this discussion, I strongly support the amendment. I would like to underline what the noble Lord, Lord Elystan-Morgan, has just said.
First of all, for everybody—or nearly everybody—going into court is quite a frightening experience. For most children, it must be very frightening. They do not necessarily have family with them; they do not necessarily have family at all. It is a huge injustice to a child to ask him or her to go into court without anyone who can tell them how to behave and what to do or to alert the court to what is needed to be known. I really feel that this country is in the state of
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There are good, practical cost implications. Of course, legal aid will be a concern, but, if legal aid is seen in the light of the cost of the administration of justice, an area at which, it seems to me, government almost never looks, we can see how much can be saved by spending legal aid.
The Earl of Listowel: I am sure that the Minister must listen with great interest to what my noble and learned friends have said. I add a supplementary question that he may care to write to me on.
I reflect on what my noble and learned friend Lady Butler-Sloss said about the confusion of children in such circumstances. The Michael Sieff Foundation, a child welfare charity of which I am a trustee, proposed some time ago that there should be child defendant packs for every child going into court. I would be grateful to the Minister if he could let me know what progress has been made in introducing such packs, so that every child, even if they lack legal representation, at least has this support to orientate themselves in the court—if they can read.
Lord Clinton-Davis: I did not intend to participate in this debate, but I found the remarks of the noble Lord, Lord Elystan-Morgan, and the noble and learned Baroness, Lady Butler-Sloss, compelling.
My experience as a lawyer suggests that the Government ought to think seriously about this situation. I find that it is impossible to support what is apparently on paper at the moment. I hope that my noble friend will say that he will think seriously about this situation.
Lord Kingsland: Since 2 October 2006, defendants appearing before magistrates’ courts and youth courts have been required to pass the financial eligibility test to qualify for publicly funded representation. However, since 1 November 2007, all defendants under the age of 18 are passported through the means test. In the debate in another place held on the sixth day in Committee, the Minister, Mr Hanson, said:
“I take the view that whatever our arguments around the question of publicly funded support under the 1999 Act and the amendments to it, from 1 November there will be sufficient safeguards to ensure that those individuals who require publicly funded support will get it”.—[Official Report, Commons Criminal Justice and Immigration Bill Committee, 23/10/07; col. 186.]
By the expression, “those individuals”, I take him to mean everyone under the age of 18 who appears in court.
The determining statute for legal aid is the Access to Justice Act 1999. That ensures that all defendants must satisfy what is described as the “interests of
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The ideas that animate these amendments are compelling, but we all recognise that there is great pressure on the legal aid budget. The noble and learned Baroness, Lady Butler-Sloss, has rightly pointed out that actually there is a lot of misplaced weight on that budget because money spent publicly to fund representation saves an enormous amount of court time and leads more often than not to higher quality judicial decisions. But that is a general argument about legal aid upon which the Minister may or may not wish to express an opinion. The issue to which the Minister must address himself is how the 1999 Act bears on youth sentencing.
Lord Hunt of Kings Heath: This has been an interesting debate. The amendments seek to ensure that all children and young persons are publicly funded where the court is considering opposing a youth rehabilitation order. The case has been argued with great force that there should be automatic funding, but I have to say that the Government would resist that. We believe that the existing arrangements for the provision of legal representation already provide sufficient safeguards for young defendants.
I want to reflect in part the words of the noble Lord, Lord Kingsland. Under the Access to Justice Act 1999, all defendants must satisfy the interests of justice test in order to qualify for publicly funded representation. In deciding this, the court takes into account, among other factors, whether the defendant may suffer serious damage to his or her reputation or whether the charge is punishable with imprisonment. The court also gives consideration to whether the defendant is of a young age and to their ability to understand the proceedings or to state their own case. As the noble Lord, Lord Kingsland, pointed out, since October 2006, defendants appearing before the magistrates’ court and youth court have also been required to pass a financial eligibility test to qualify for publicly funded representation, but from November 2007, all defendants under the age of 18 have been passported through the means test. That change has been widely welcomed by the professional judiciary and the Law Society.
In practical terms, it will be extremely rare for a young person not to pass the interests of justice test. Indeed, the figures from January to December 2007 show that 95,000 legal aid applications were made, of which 1,598—1.7 per cent—failed the test. It is a small figure. Given his argument, the noble Earl will damn me if I do and damn me if I do not. I accept that it can be argued either way, but at least I have given him the straight figures.
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7.15 pm
The Earl of Onslow: Absolutely I damn the noble Lord if he does or he does not. A figure of 1 per cent when allied to what the noble and learned Baroness, Lady Butler-Sloss, has said, means that I could probably take the Minister out to dinner on the difference to the amount of money it is actually going to cost the legal aid budget. Not to have it in the Bill is, in my view, nothing short of barbaric.
Lord Hunt of Kings Heath: That is a bit harsh, and to be frank if he were to do so, it would be a very good dinner indeed. So good, in fact, that all noble Lords in this House assembled would also enjoy a very good dinner. I will come on to the question of resources because, as noble Lords know, I am responsible for legal aid at the Ministry of Justice. I want just to say that we cannot ignore the cost issue. The question for noble Lords is where the interests of justice test might not be met. The kind of example I have been given is one such as where a young person aged 17 in full-time education is charged with a relatively minor crime such as being drunk and disorderly in a public place. There may be an aggravating factor such as using offensive language to members of the public. Such a person might receive a youth rehabilitation order, depending on other sentences he may previously have received. The offender is familiar with the court process, having been before the youth court for relatively minor offences on previous occasions. Custody is not an option for such offence as he is not working for a living, so he will not lose his livelihood. Such a person might be held not to satisfy the interests of justice test.
In answer to the noble Lord, Lord Kingsland, and the circumstances he suggested, I would have thought it rare for a young person who might receive a youth rehabilitation order not to meet the interests of justice test. Indeed, it is worth quoting from the Access to Justice Act 1999 the factors that the court has to consider,
- “whether the individual would if any matter arising in the proceedings is decided against him be likely to lose his liberty or livelihood, or suffer serious damage to his reputation; ... whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law; ... whether the individual may be unable to understand the proceedings or state his own case; ... whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and ... whether it is in the interests of another person that the individual be represented”.
For the great majority of cases where the defendant is under 18 years of age, the interests of justice test will be held to be satisfied because the defendant would be considered to be unable to follow the proceedings. This is not being dealt with in isolation. The Legal Services Commission is about to start research into the consistency of decision-making under the interests of justice test. This will provide a much clearer analysis of the application of this test in relation to the under-18s and clearly it will inform any potential change of policy.
Why do we give automatic legal aid representation for local authority residence or fostering requirements? The rationale for that is because both the LA residence and fostering requirements will require the young person to abide at somewhere other than their usual place of
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I understand the comments that noble Lords and the noble and learned Baroness, Lady Butler-Sloss, have made about legal aid and the interesting point that curtailing expenditure on legal aid may lead to additional costs in the administration of justice. That is a matter of which we are mindful. I am determined that the legal aid reforms should go with the grade of a more efficient system within the courts and that the incentives all work in the right direction.
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