My Lords, Amendment 2 is in my name and those of my noble friends Lady Sherlock, Lady Hollis of Heigham and Lord McKenzie. My first point is that this is about as mild an amendment as could possibly be imagined. All that I am asking is that the Secretary of State should lay a report before Parliament within one month of the Act coming into force. The report would outline the Secretary of State’s view on whether claimants affected by the introduction of the Act would, in the crucial words,
“have access to adequate legal advice and support, taking into account the availability of legal aid for claimants appealing a sanction … under the 2011 Regulations or the Mandatory Work Activity Scheme Regulations”,
both of which were declared unlawful. It is a limited request, and one to which I hope the Government will listen sympathetically in the course of this short debate.
It goes without saying that every claimant has the right of appeal. It would be pretty shocking if they did not. However, what use is a right that cannot be
enforced? That is where the problem arises. At present any claimant who has sanctions imposed can obtain legal advice as to an appeal, whether the appeal is in the form of a review to the department or to the First-tier Tribunal. If a claimant is eligible, they are, as we speak, entitled to legal aid. Therefore, in reality they can get the advice perhaps from a solicitor or, more probably, from a not-for-profit organisation such as a law centre, the CAB or an advice centre.
This advice is not expensive—about £150 for this sort of case. It does not make the lawyers rich. It is quality advice. It often tells the claimant that he or she has no chance in any review or appeal. On the other hand, it may tell the claimant that he or she has a proper legal appeal. Early advice of this sort stops people going to the First-tier Tribunal. It does not encourage them to do so. The advice does not extent to representation. What it does is give these citizens some limited access to justice, which a mere right of appeal does not do.
Of course, in a week’s time on 1 April, legal aid will no longer be available to a claimant in this kind of case however poor, disabled or marginalised he or she may be. It has been taken out of scope. The question arises: from where is the client who believes that he or she may have an appeal to get advice? Law centres, CABs and other advice centres rely on legal aid as a major part of their income. How will they survive? Will it all be done pro bono by other lawyers? I would argue it is not possible in the real world for that to happen. There is not the expertise in this field of law or the time for busy lawyers to do pro bono work to cover all these cases. All pro bono lawyers agree with that. There is no satisfactory answer to the question: where will these people go?
Her Majesty’s Government’s more general assertion has been that welfare benefit law, under which these sanctions arise, is simple not complicated, easy to understand and is not really law at all. One only has to state that point of view to know what rubbish it is. The thousands of pages of legal textbooks, the comments of tribunal judges from top to bottom and the experience of real life gives the lie to a trite and convenient lie. In this amendment, I invite the Government to live in the real world and do their proper duty to ensure adequate legal advice and support.
My remarks so far have concerned all claimants who face sanctions since the introduction of the new regulations on 12 February this year, following the Appeal Court judgment. However, there is a past and pressing problem for those claimants whose cases have been put on one side as a result of a Court of Appeal judgment. The decision to sanction those people will either not be made, or it will have been made under what were ruled to be unlawful regulations, their time for appeal not having run out by 12 February. In both cases, they would have a reasonable expectation of knowing their fate some time ago. Any decision to sanction them would, of course, have been subject to appeal. Of course, claimants are entitled now to get legal advice and, if eligible, entitled to legal aid for that advice. But in a week’s time, while still theoretically they are entitled to legal advice for an appeal, they will not be entitled to legal aid, which means in practice
that many fewer than should will be able to get that advice. How can it be just that those people are put into a worse position by a delay that is absolutely no fault of their own but is, frankly, the responsibility on the other side—in this case, the department and the Government behind it? That is according to the Court of Appeal—in other words, as we stand now, the law of the land. It would be wrong for any of them to be deprived of their right to legal aid in those circumstances. Does the Minister agree? If not, why not?
My amendment asks the Secretary of State to take into account the availability of legal aid for claimants in that situation. In my view, the Government can do no less. It is a modest amendment to which the Government could give their blessing. I beg to move.
11.30 pm