HL Deb 13 November 1998 vol 594 cc905-8

11.30 a.m.

Lord Falconer of Thoroton rose to move, That the draft regulations laid before the House on 19th October be approved [45th Report from the Joint Committee].

The noble and learned Lord said: My Lords, the amendments to the Advice and Assistance (Scope) Regulations relate to proceedings for anti-social behaviour orders, sex offender orders, parenting orders and child safety orders. The four orders I refer to were introduced in the Crime and Disorder Act 1998. The measures in that Act are aimed at tackling crime and disorder and helping to create safer communities. The Act received Royal Assent in July.

At present assistance by way of representation can be provided to respondents in these proceedings on the day of a hearing, at the direction of the court. This is provided so that a person within the financial eligibility condition does not go without representation where the court thinks it is necessary.

When the court grants assistance in this way it will ask either the duty solicitor or another solicitor within the precincts of the courthouse at that time to act for the respondent. The solicitor will then give advice to the respondent and represent him before the court.

These arrangements will mean that for the majority of cases assistance by way of representation will be provided. However, there will be the minority of cases where a court does not have a duty solicitor, there is no other solicitor in the court willing to act, or the case is too complex for advice to be given on the day. For these cases the court may have no alternative but to adjourn the hearing.

The instrument before your Lordships today addresses this by extending the circumstances in which assistance by way of representation can be granted. It does this by allowing respondents to approach a solicitor of their choice in advance of the hearing, and ask that solicitor to provide assistance by way of representation for them. The solicitor will then apply to the Legal Aid Board, on behalf of the client, for approval to provide this assistance. If the application is approved the solicitor will be allowed to prepare the client's case and represent him under the scheme.

It is necessary to do this for three reasons: first, to adjourn a hearing so that a respondent can obtain representation will expose the community to the continued threat of the type of behaviour the order is intended to prohibit; secondly, to refuse representation will deny respondents their basic right to a fair hearing; thirdly, we recognise that in complex cases, where a solicitor is already familiar with the people and issues involved, not allowing that same solicitor to provide representation may mean that the court would not have all the relevant facts before it. By allowing people to use a solicitor of choice in these circumstances this situation will not occur, and the court will be able to make an order that is fair to all the parties.

In considering when assistance by way of representation should be granted in advance of a hearing, the Legal Aid Board will assess whether it is necessary for assistance to be given before the day of the hearing, and, if not, whether the court is likely to have someone available on the day to provide assistance. Any assistance provided in this way will be subject to a means test.

As well as extending the regulations to initial hearings and applications to vary or discharge these orders, the instrument also extends the regulations to allow for assistance by way of representation in appeals against anti-social behaviour orders, sex offender orders, and parenting orders made in some civil proceedings. There is no form of representation currently available for appeals against these orders, although breaches of orders carry the risk of imprisonment. Where there is this risk we believe that representation should be available so that people are guaranteed their basic right to appeal. The reason no publicly funded representation is available is a technical one. The existing regulations are worded in such a way that legal aid is not available for appeals against civil orders in the criminal courts. Anti-social behaviour orders and sex offender orders are both civil orders, but appeals against them can be made only to the Crown Court. Parenting orders made at the same time as an anti-social behaviour order or sex offender order are also civil orders, where appeal is to the Crown Court.

The amendments will mean that assistance by way of representation will be available for these appeals. As with the first extension to the regulations, any assistance provided in this way will be subject to a means test, and an assessment of whether it is reasonable and necessary for representation to be provided in the circumstances of the case.

The regulations ensure that representation will not be available for people to appeal an order without sufficient reason. Representation will only be granted where it is reasonable to do so.

A further instrument, not requiring affirmative resolution, was laid before the House on 6th November to amend the Legal Advice and Assistance Regulations 1989. This instrument incorporates the proposed amendments to the Advice and Assistance (Scope) Regulations in the Legal Advice and Assistance Regulations. This instrument had to be laid before the House three weeks before coming into force.

By laying this second instrument in advance of consideration of the instrument before the House today the Lord Chancellor is not pre-empting your Lordships' approval. It is a technical measure necessary for the first instrument, if approved, to come into force on 1st December, the date when applications for sex offender orders can first be made. I commend this instrument to the House. I beg to move.

Moved, That the draft regulations laid before the House on 19th October be approved [45th Report from the Joint Committee].—(Lord Falconer of Thoroton.)

Lord Kingsland

My Lords, the Minister will recall that, during the passage of the Act, concerns were expressed by a number of noble Lords about the extent to which it will fall foul of the anticipated Human Rights Act. Can the noble and learned Lord tell us what consultations have been made by the Government before these regulations were drafted and issued?

Can the noble and learned Lord also say something about the anticipated cost of these proposals? I am aware that, in another place, Mr. Hoon, the Minister of State, gave some preliminary figures. In relation to anti-social behaviour orders he anticipated a figure of something like £5 million over a period of five years and in relation to sex offender orders a figure of something in the neighbourhood of £100,000. He said—and of course the approach is quite accepted by this side of your Lordships' House—that, as regards the other two orders, there will be pilot schemes before final decisions are taken about the way they are to be applied.

My question in relation to these sums is the following. What assumptions do they make about the kind of representation that will be furnished? We know from the proposed order that the duty solicitor and other solicitors are likely to be representatives; but we also know that the Government are giving the whole question of representation in courts and tribunals some serious thought. If the Government change their mind about the kind of men and women who act as representatives in these cases, what effect would that have, if any, on their anticipated cost figures?

Lord Falconer of Thoroton

My Lords, I am grateful to the noble Lord for his helpful questions. As regards consultations, there have been discussions during the course of this week with both the Law Society and the Bar Council about these orders. As regards the European Convention on Human Rights, the Lord Chancellor's Department has considered what Article 6 of the convention requires. They and I are satisfied that this measure meets the requirements of the convention.

As regards costings, I am afraid I shall not take the matter much further than my honourable friend in another place. Earlier costings indicated that costs of the anti-social behaviour orders would be in the region of £5 million a year and the cost of the sex offender orders would be less than £100,000. It is not possible to provide a figure for the cost of parenting orders and child safety orders. These orders, like a number of other measures in the youth justice reform programme, are currently being piloted in nine selected areas. One of the aims of the pilots is to identify the costs—including legal aid—and savings generated by the orders.

I can give the noble Lord those general estimates. I can indicate that piloting is taking place. One of the purposes of the piloting is to try to find out how much it will cost, inter alia, in relation to the legal representation that respondents may have in these particular orders. However, I do not think that I can take it much further than that.

I am not sure whether that meets the noble Lord's concerns, but I think that it gives him the scale of the costs we anticipate. Quite sensibly, we will only be able to come back with more detailed figures once we know the results of the piloting.

Lord Kingsland

My Lords, before the Minister sits down, perhaps I may press him a little further on his last answer. I was seeking to probe the definition of representation in relation to costs. I wanted to see how helpful he could be in anticipating any widening of the categories of individuals who would be entitled to represent the people subject to these orders.

Lord Falconer of Thoroton

My Lords, the subtlety of the Question is lost on me. I think that, in practice, in most cases the person providing the representation for a respondent to such an order will be the duty solicitor. That appears to satisfy the noble Lord. In those circumstances I shall sit down. I commend the regulations to the House.

Lord Renton

My Lords, before the noble and learned Lord sits down, perhaps I may say that I have listened to a very interesting discussion. However, so far as representation is concerned, if I remember rightly the Legal Aid and Advice Act refers only to legal representation, and that is all we are considering on this occasion, or am I wrong about that?

Lord Falconer of Thoroton

My Lords, perhaps I had better give myself a way out in relation to this by saying, "I shall write and correct myself if I am wrong", which I am bound to be. I think we are talking about the sort of representation which is acceptable to the magistrates' court and which can be funded by the legal aid scheme. However, I do not know whether or not, in certain cases, with the leave of the magistrates' court it is appropriate for a legal executive, for example, to appear in front of a particular magistrates' court with its consent and whether that would be paid for by the legal aid fund. I suspect that it probably would be, in certain cases. Subject to that, we are talking about representation by a lawyer.

On Question, Motion agreed to.