Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I thank the noble Lord, Lord Ramsbotham, for introducing this group of amendments. Arguably, there is nothing more fundamental for a parliament to discuss than the relationship between the state and the citizen. His amendments have given rise to an important debate, with contributions from my noble friend Lord Phillips, the noble Earl, Lord Sandwich, and the noble Lords, Lord Judd and Lord Howarth. I hope that I can reassure Members of the Committee in my response. Amendment 60 seeks to make civil legal aid available for claims in relation to any alleged unlawful act by a public authority that causes reasonably foreseeable harm. In general terms, Schedule 1 makes legal aid available for the most serious cases and for proceedings that seek to hold public bodies to account for their decisions. This includes civil legal services for judicial review of an act, decision or omission, and provides a means for people to challenge the lawfulness of a public authority’s actions on public grounds. In terms of private law claims primarily for damages, while we consider that such claims do not generally justify funding, an important exception to the rule provided for in the Bill is for the most serious claims against public authorities. The Bill ensures that funding may be made available for tort and other damages claims against public authorities for an abuse of position or powers, a significant breach of human rights, allegations of the abuse of a child or vulnerable adult, or allegations of a sexual offence. The definition—about which I shall say more—of: "““Abuse of position or power by public authority””," is intended to cover the most serious misuses of state power. That is why it is defined in the Bill as an alleged act that is deliberate or dishonest, and that causes reasonably foreseeable harm to a person or property. Our definition would exclude from scope a range of less serious cases against public authorities—a point made by my noble friend Lord Phillips—including simple negligence claims such as ““slipping”” or ““tripping””. He asked if ““deliberate”” abuse of position or power is the same as ““intentional””. The answer is yes. As to the point raised by the noble Lord, Lord Beecham, who asked whether ““deliberate”” referred to a deliberate act or deliberate consequences, the word refers to the act or omission that is complained of and for which legal aid is sought. Legal aid would therefore be available for deliberate or dishonest acts or omissions by a public authority that cause reasonably foreseeable harm. Amendment 60 would widen the scope of paragraph 19 of Part 1 of Schedule 1 to make legal aid available for claims in tort or other damages claims for any alleged unlawful act by a public authority that causes harm. Noble Lords will be interested to know that unlawful acts are already covered by paragraph 19, which covers situations where an act is deliberate and dishonest, and results in foreseeable harm. However, the concern is that the amendment as tabled would widen the coverage beyond what we believe should be within scope. Alternatively, public law challenges to the lawfulness of a public authority’s action can be brought by judicial review, which is in scope under the Bill. We have focused limited resources on those who need them most and the most serious cases, in which legal advice or representation is justified. I accept that that approach means that public funding will not be available for each and every claim involving a public authority, but it is intended to be available for the most serious cases and to address serious abuses. Specifically, the noble Lord, Lord Ramsbotham, highlighted the important issue of the loss of liberty. He seeks to amend paragraph 19(7) of Part 1 of Schedule 1 to specify that harm includes loss of liberty. Currently, paragraph 19 provides for civil legal services to be provided in relation to abuse by a public authority of its position of power. That allows, typically, for damages claims to be funded for the most serious claims against public authorities. Paragraph 19(6) provides that an act or omission by a public authority does not constitute an abuse of its position or powers unless the act or omission is deliberate or dishonest—we have already indicated what is intended by deliberate—and results in harm to a person or property that was reasonably foreseeable. Paragraph 19 already covers the situation where the harm suffered by an individual results in the loss of their liberty, as long as the act or omission which resulted in that loss of liberty was deliberate or dishonest and the harm, in the case of loss of liberty, was foreseeable as a result of that action. By way of illustration, paragraph 19 would allow for legal aid to be provided for a person to bring a false imprisonment claim where they had been unlawfully detained by a public authority and the actions of the authority were deliberate or dishonest. Noble Lords should note that legal aid may also be available for bringing claims in relation to a loss of liberty such as false imprisonment claims under paragraph 20 of Schedule 1, providing that the act of a public authority involves a significant breach of convention rights. It also retains within scope legal aid for other means of challenging detention or loss of liberty. For example, civil legal services provided in relation to a writ of habeas corpus have been retained in scope under paragraph 18. Public law challenges to the lawfulness of a public authority's actions could be brought by judicial review, which is in scope under paragraph 17. The Bill also allows for the provision of civil legal services in relation to immigration detention, including bail applications. I hope that that gives some reassurance to the noble Earl, Lord Sandwich, and the noble Lord, Lord Beecham, who raised that matter. That is available under paragraph 22.