My Lords, it is always a privilege to follow the noble Baroness, the campaigner on such matters. I support everything that the noble Lord, Lord Pannick, has said, but I want to focus on Amendment 82A to draw attention to an issue that arose at the Joint Committee on Human Rights which, unusually, has done two reports on the legal aid changes. The second of these looks particularly at the impact of the residence test on children. The Government responded to our first report by making some concessions, which we welcomed, with regard to Sections 17 and 20 of the Children Act 1989. However, concerns were then raised with us that, although this was welcome, so far as it went, it did not go far enough because it does not exclude from the residence test all legal remedies, including judicial review. I remind noble Lords that we are talking about cases relating to children in need: the additional care needs of a disabled child; support needs for homeless families; unaccompanied children who are homeless and need appropriate accommodation, support, care and supervision.
Anita Hurrell of Coram Children’s Legal Centre, gave us an example of what this would mean. She said:
“I would just highlight the situation faced by a child advised that they have a meritorious claim and with a solicitor telling them that they could pursue that claim and could need an immediate remedy such as some kind of injunction if the situation that they are living in is very desperate. That same solicitor is going to be advising the child that they cannot help them pursue that claim. They are in effect going to be saying to the child, ‘You can go to the High Court but you can go there on your own’ … It is going to be impossible for children to understand that they have this right but that it cannot be enforced.”
It would be difficult for most people to understand why that would be the case.
In its conclusions, the committee said:
“We are confused as to why the Government excluded certain child protection cases from having to satisfy the residence test, but did not exclude from the test all legal remedies including judicial review. Whilst welcoming the funding of legal advice, we do not understand the justification that it is a good use of public money to give funding for advice that cannot be taken through to a judicial review.”
Will the Minister comment on the point about what could be a misuse of public money?
The committee continued:
“We are concerned that children could be provided legal advice on Section 17 and 20 Children Act 1989 cases, only to find that their same solicitor will at some point no longer be able to help pursue a meritorious claim.”
It went on:
“We acknowledge the Government’s argument that they would prefer that people do not have to make an application for judicial review.”
That is quite understood. The committee continued:
“However, we believe that it is inevitable that judicial review will be a necessary remedy in certain cases. We are concerned that, if the residence test applies, there will no longer be the risk of a judicial review when a local authority fails a child in its care. This deterrent effect of a judicial review encourages local authorities to discharge their duties properly. Such cases requiring judicial review are of a serious nature and children should retain legal support.”
I find it very difficult to believe that anyone could disagree with that.