§ The Lord Chancellor (Lord Mackay of Clashfern)
rose to move, That the draft regulations laid before the House on 30th January be approved [11th Report from the Joint Committee].
The noble and learned Lord said: My Lords, in moving the above amendment regulations, I shall, with the leave of the House, speak also to the Legal Aid (Functions) Order, which follows. Both draft instruments were laid before the House on 30th January this year. The first instrument includes four amendments to the scope of the legal advice and assistance scheme. The draft functions order provides for the Legal Aid Board to be able to assess claims for costs in civil cases, and to assess the financial means of applicants for legal aid.
The first of the four amendments to the advice and assistance scheme would revoke the Legal Advice and Assistance (Scope) (Amendment) Regulations 1995. These regulations, which were debated in this House on 20th July 1995, dealt with a proposed change of procedure in the magistrates' courts. Section 44 of and Schedule 4(2) to the Criminal Justice and Public Order Act 1994 provided for the abolition of the committals for trial procedure and its replacement with transfer for trial. The regulations we are seeking to revoke would have put transfer for trial on the same footing in relation to legal aid as committal for trial had been in the past. However, neither the relevant provisions of the Act nor the legal aid regulations were brought into force. It is important that the statute book is not cluttered with legislation which is not used. Accordingly, we seek the House's agreement to the revocation of this provision.
The other three amendments provide for Assistance by Way of Representation, or ABWOR, to be extended; first, to persons at risk of imprisonment for failure to obey a court order; secondly, to prisoners detained at Her Majesty's pleasure who appear before the Parole Board; and, thirdly, to persons in relation to whom a removal order is sought under Section 47 of the National Assistance Act 1948.
The first of these extensions is designed to address the points raised by the European Court of Human Rights in its judgment in the case of Benham v. the United Kingdom. Mr. Benham was committed to prison by Poole magistrates for non-payment of his community charge. The court held that there had been a violation of Articles 6(1) and 6(3)(c) of the European Convention on Human Rights in that legally aided representation should have been made available to Mr. Benham. 1410 Although the court's judgment in the Benham case dealt only with a failure to pay the community charge, it is the Government's view that any proceedings for failure to obey a court order, where imprisonment is the ultimate sanction, are affected by the judgment.
Although the Government are concerned to meet their international obligations in these matters, we are equally anxious that blanket legal aid coverage should not be provided to address circumstances which arise in only relatively few cases. Accordingly, this amendment would provide for publicly funded representation to be available only for defendants in enforcement hearings where there was a real risk of imprisonment. To depart from this view would inevitably result in further pressure on the legal aid budget. The aim, therefore, must be to target legal aid representation on those most in need.
To do so, we propose to allow such defendants to be represented by a court duty solicitor, and where there is no duty solicitor available, or the case is complex, to be able to apply to the Legal Aid Board for ABWOR. We also intend to issue guidance to the courts on what administrative arrangements might be appropriate for such cases. Accordingly, paragraph 3(2) of the draft instrument would amend Regulation 7(4) of the Legal Advice and Assistance (Scope) Regulations 1989 to extend ABWOR to cover enforcement hearings resulting from a defendant's failure to obey a court order where the failure is likely to lead to him being at risk of imprisonment. A further instrument—not requiring affirmative resolution—will extend the magistrates' court duty solicitor scheme to civil cases.
I turn now to the second extension of ABWOR, set out in paragraph 4 of this instrument. This article would provide for prisoners detained at Her Majesty's pleasure to be represented at Parole Board hearings relating to a review of their case. On 23rd July 1996, the Secretary of State for Home Affairs answered a Written Question from the honourable Member for Finchley about procedural changes relating to prisoners detained at Her Majesty's pleasure. Such prisoners who have served a period adequate to satisfy the requirements of retribution and deterrence have their cases reviewed by the Parole Board, although the responsibility for their release rests with the Secretary of State. As an interim measure, the administrative arrangements for the review and release of prisoners were changed with effect from 1st August 1996. These arrangements include allowing such prisoners to have legal representation and an oral hearing before the Parole Board. The interim arrangements announced by the Secretary of State will be made permanent in the Crime (Sentences) Bill which is currently before the House.
The third proposed extension of ABWOR relates to people who are the subject of a removal order under Section 47 of the National Assistance Act 1948. Section 47 provides for the removal to suitable premises of people who for any of a variety of reasons are in need of care and attention. The application for removal can be made in the interests of the person whose removal is sought or to prevent serious nuisance or injury to the health of other people. The order to remove a person may be made for a period not exceeding three months 1411 in the first instance, and may be extended by the court. The result of this type of application may result in the individual concerned losing his liberty. Respondents to a Section 47 application are likely to be particularly vulnerable members of society, and are unlikely to be able to fully prepare a case or represent themselves before magistrates.
I turn now to the second instrument. This contains the draft functions order which would confer two functions on the Legal Aid Board. The first of these, set out in Article 3 of the draft order, is to correct an error in the current law. The Legal Aid Act 1988 specifically prohibits the board from performing certain functions, unless the Lord Chancellor directs by order, and then only to the extent set out in the order. Assessing claims for costs in civil cases is one of the functions which requires such an order.
The function of assessing costs was carried out by the Law Society prior to its functions relating to legal aid being transferred to the Legal Aid Board under the terms of the Legal Aid Act 1988. However, due to an oversight, no functions order was made to allow the board to carry on this function. Of course, the board has assessed costs since 1989 and the cost limits which apply to assessment by the board are set out in regulations. The absence of a functions order to enable the board to undertake this function was discovered only relatively recently and we have brought forward this draft order as early as it was practicable to do so. No one has been disadvantaged as a result of this error.
A second function which requires an order by the Lord Chancellor is the determination of the financial resources of persons for the purposes of the Act. This is the purpose of Article 4 of the draft order. At present, the assessment of means in civil cases is undertaken by the Legal Aid Assessment Office—a unit within the Benefits Agency. In criminal cases, means assessment is undertaken by the court to which the application for legal aid is made.
From 1st April this year, responsibility for means assessment in civil cases will transfer from the Benefits Agency to the Legal Aid Board. The aim of this transfer of functions is to create a more integrated and efficient service relating to the grant of legal aid in civil cases. The Legal Aid Assessment Office currently employs approximately 280 staff at a single site in Preston, but the intention is that during the year to 1st April 1998 the means assessment process will be assimilated within the Legal Aid Board's 13 area offices. Benefits Agency staff will be reabsorbed by the Benefits Agency during this process.
Although the Legal Aid White Paper, Striking the Balance, proposes that the assessment of means in criminal cases should also transfer, ultimately, from the courts to the Legal Aid Board, that is unlikely to take place for two to three years. It is important that civil means assessment is properly bedded into place before the board's attention turns to criminal matters. However, when the work of the Legal Aid Assessment Office transfers to the board, it will include the Special Investigations Unit which was set up in 1996 to investigate cases in which applicants' means are 1412 complex. This was part of our strategy for combating the grant of legal aid to apparently wealthy applicants. At present, the Special Investigations Unit deals only with civil cases. However, when the board has properly assimilated civil means assessment, we intend that the unit's remit should be extended to cover criminal cases.
Although the main purpose of this functions order is to enable the transfer of civil means assessment from the Benefits Agency to the Legal Aid Board to go ahead, it would also allow the unit to investigate criminal cases. Realistically, this is unlikely to take place before civil means assessment has been properly assimilated, in 1998.
The draft regulation amendments about which I spoke first will enable Britain to meet its international obligations in relation to defendants facing imprisonment, and prisoners detained at Her Majesty's pleasure. They will also provide for representation to be provided to vulnerable people whom the authorities seek to have removed to suitable premises. As such, I commend this instrument to the House. I beg to move.
Moved, That the draft regulations laid before the House on 30th January be approved [11th Report from the Joint Committed—(The Lord Chancellor.)
§ Lord Irvine of Lairg
My Lords, I am pleased to be the first Labour spokesman on this bright and beautiful morning. We support both instruments. In particular, we welcome the three extensions of ABWOR. I agree with the Government's interpretation of the Benham decision. In principle it must apply to a failure to obey any court order where there is a risk of imprisonment. It is not confined to its own facts—a failure to pay community charge.
We agree also with the other two extensions of ABWOR for the benefit of prisoners who appear before the Parole Board while detained at Her Majesty's pleasure and persons subject of a removal order under Section 47 of the National Assistance Act 1948. ABWOR should plainly extend to the latter because they are often the most vulnerable in society who could lose their liberty as a result of the application for removal.
We also support the second instrument. It is right that means assessment in civil cases transfer from the Benefits Agency to the Legal Aid Board. I specifically welcome the confirmation given by the noble and learned Lord that this transfer will include the Special Investigations Unit. It investigates cases where the resources of applicants are obscure and complex. We must bear down hard on those whose life styles give the lie to the want of resources which they profess, whether the case is a civil or a criminal one.
The sooner the investigations unit is up and running within the board and able to investigate both classes of case, both civil and criminal, the better for the public purse. There are a number of things which can bring legal aid into public discredit, but none greater than the huge fees sometimes paid out for the benefit of those who can well afford to pay for their own lawyers. We therefore welcome both instruments.
§ The Lord Chancellor
My Lords, I am grateful for this support. We all know, of course, that sunny weather 1413 for some can change quite quickly into very dark and thunderous clouds. I am sure that the time between now and some other events may be quite sufficient for that purpose.
§ On Question, Motion agreed to.